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Blog 2020 April First, Second, & Third-Degree Murder: What's the Difference?
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First, Second, & Third-Degree Murder: What's the Difference?

Posted By Jerry Loftin & Associates || 21-Apr-2020

Criminal homicide might involve premeditation, willful intent, or negligence. Murder charges range from the first-degree murder of stalking and then killing a rival to the second-degree murder of shooting someone during an unexpected argument to involuntary manslaughter, such as an act of self-defense.

To better understand the unique circumstances that respectively categorize each of these examples, let’s go into more detail about what constitutes a first degree, second degree, and third-degree murder.

First-Degree Murder

First degree murder refers to the deliberate and premeditated decision to kill another person. Note that Texas does not officially use the term “first degree murder” and instead refers to this as “capital murder.”

To convict someone of capital murder, prosecutors must be able to prove beyond a reasonable doubt that the defendant:

  • intentionally and knowingly caused the death of another person;
  • intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and caused the death of an individual; or
  • committed or attempted to commit a felony (other than manslaughter) and in performing that felony, committed an act that was clearly dangerous to human life and caused the death of an individual.

The penalty for first-degree murder (or capital murder) in Texas is serious. Since Texas is a state that allows capital punishment, it is possible to receive a death penalty sentence if convicted (hence the name “capital murder”). Generally speaking, then, the sentence for a capital felony in Texas is either death or life in prison without the possibility of parole. Note that the minimum age in Texas to receive the death penalty is 17 years of age.

It might be harder to defend against a charge of first-degree murder if the prosecution has shown that you planned and deliberately killed another person. That being said, possible defenses against first degree murder include the following:

  • Lack of intent
  • Lack of knowledge
  • Insanity
  • Intoxication
  • Self-defense

Note that, in general, the main distinction between first-degree murder and second-degree murder is that states require premeditation for first-degree murder (i.e. the defendant developed a plan). States vary when it comes to deaths caused while committing a felony, also called felony murder (i.e. shooting someone during a bank robbery). Some consider it second-degree murder, but Texas considers a felony murder to be first-degree murder.

Second-Degree Murder

While first-degree murder involves intention and/or felony murder, second-degree murder involves an impulsive action that results in death to another person. In other words, it is not a premeditated act. With second-degree murder, the defendant intends to commit murder, but did not plan it in advance. Some states consider it to be second-degree murder if the defendant intended only to cause serious bodily harm but knew or should have known that death could result from the act.

Texas does not officially use the term "second degree murder,” and instead refers to it as just "murder," which is a first-degree felony. To convict a defendant of murder, prosecutors must be able to prove beyond a reasonable doubt that the defendant:

  • intentionally and knowingly caused the death of another person;
  • intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual; or
  • committed or attempted to commit a felony (other than manslaughter) and in performing that felony, committed an act that was clearly dangerous to human life and this act caused the death of an individual.

Note that first-degree and second-degree murder appear similar in definition here, but the key distinction between the two is the premeditation that precedes the murder, not the actual intent of murder itself.

As murder in Texas is a first-degree felony, this charge will typically carry a sentence of between 5 and 99 years in a state prison and/or a fine of no more than $10,000. If during trial the defendant is found to have been in the “heat of passion” at the time of the murder, the charge will be reduced to a second-degree felony, which carries a sentence of between 2 and 20 years in a state prison and a fine of no more than $10,000.

With that in mind, defenses against a second-degree murder charge might be:

  • Lack of intent
  • Lack of knowledge
  • Insanity
  • Intoxication
  • Self-defense
  • "Heat of passion" defense (The defendant was provoked to commit the crime by fear, rage, terror or some other extreme emotion.)

Third-Degree Murder

Someone can be accused of third-degree murder if they unintentionally cause someone else's death while committing a dangerous act. As opposed to first-degree and second-degree murder charges, in third-degree murder intent is not required. Note that only 3 states have third-degree murder laws: Minnesota, Florida, and Pennsylvania.

As third-degree murder does not require intent, the most common defense against the charge are:

  • Innocence ("It wasn't me.")
  • Insanity ("I was mentally impaired and didn't understand what I was doing.")
  • Self-defense ("I was protecting myself from immediate and serious harm.")
  • Defense of others ("I was protecting others from serious harm.")
  • Exercise of duty ("I am a public officer who killed without unlawful intent, recklessness, or negligence.")

If you’ve been charged with murder, it is important to know what degree of murder you’ve been charged with, and what conviction would entail. This will help you get a better sense of potential defenses if you have been wrongly accused, especially as there is a fine line that can be shown between what constitutes these varying degrees of murder. An experienced criminal defense attorney can help you navigate these nuances in the law and establish a strong defense for your case.

Contact our firm at Jerry Loftin & Associates for more information.

Categories: Criminal Defense

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