Texas Hate Crime

December 22nd, 2009

Texas Hate Crime and Felony Statutes

Forty-five states have hate crime statutes, including Texas. The FBI’s definition of a hate crime is “a criminal offense committed against a person, property or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.” The Anti-Defamation League (ADL) reported that there are 31 states that have criminalized violence based upon sexual orientation, including Texas.

Texas James Byrd Jr. Hates Crimes Act

The Texas James Byrd Jr. Hate Crimes Act was enacted into law in 2001 to classify crimes motivated by the victim’s race, religion, color, sex, disability, sexual preference, age or national origin as hate crimes. The law was enacted after the hate crime of an East Texas black man named James Byrd, Jr. who was dragged to death by three white men in a pickup truck in 1998. Two of the men involved in the crime are on death row, and the third received a life sentence.

Under Texas Penal Code Section 12.47, the sentencing for a crime involving bias or prejudice, other than a First Degree Felony or a Class A Misdemeanor, is increased to the next highest category of offense, with a minimum increased term of 180 days of confinement. Under Article 42.014 of the Texas Penal Code, the judge may also require the defendant to attend an educational program on tolerance. Chapter 12 of the Texas Penal Code provides that a Texas First Degree Felony is punishable by life imprisonment for not more than 99 years or less than 5 years and a fine not to exceed $10,000. An individual found guilty of a capital felony crime where the state seeks the death penalty is punishable by life imprisonment without parole or by death.

The Matthew Shepard and James Byrd, Jr. Hates Crimes Prevent Act

In October of 2009, President Obama signed into law the The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (a.k.a.“Matthew Shepard Act”) as a rider to the National Defense Authorization Act for 2010 (H.R. 2647) to include crimes which are motivated by a victim’s “actual or perceived gender, sexual orientation, gender identity or disability” in response to the hate crime murders of Matthew Shepard and James Byrd, Jr. This law is a supplement to the 1969 Federal Hate Crimes Act. The Shepard hate crime occurred in October 1998 when Aaron McKinney and Russell Henderson took Matthew Shepard, a 21 year old political science student at the University of Wyoming, to a remote area east of Laramie, Wyoming where they tied him to a split-rail fence, assaulted him severely and left him to die in the cold evening temperatures. He was found 18 hours later by a bicyclist and died five days later of head injuries in a hospital in Colorado. His crime was classified as a sexually oriented hate crime. Both murderers were given life in prison sentences.

It should be noted that a different version of the case later was later reported on an ABC 20/20 episode in 2004 by reporter Elizabeth Vargas who reported that the crime was over a robbery by drug users who needed money for methamphetamine. The 20/20 show reported that both Shepherd and the two perpetrators were allegedly heavy methamphetamine users, and that Shepherd’s lifestyle caused him to visit places where he met the killers. In fact, according to the show, one of the killers used the defense at his trial to get a reduced sentence that Shepherd tried to proposition him at a bar and that he was not emotionally in control at the time of the murder. The defense failed. Whether the crime was a hate crime or a robbery, it was a terrible crime and it prompted lawmakers to enact the new federal law to recognize that crimes involving gender, sexual orientation and gender identity are hate crimes.

FBI Investigation of Texas Hate Crime

Currently, the FBI is investigating a Texas crime, which falls under the new Matthew Shepard Act regarding the kidnap and sexual assault of an 18-year-old high school student on December 6, 2009 by two suspects outside the Boathouse Bar and Restaurant Terlingua near Big Bend National Park and the Texas-Mexico border. The suspects kidnapped the victim and took him to a remote location, then burned his car and repeatedly sexually assaulted him. The victim was able to escape on foot across three miles of desert terrain where a Brewster County Sheriff’s Deputy found him. The victim is recovering at an undisclosed location. The FBI’s investigation could lead to federal hate crime charges being filed by the U.S. Attorney’s Office. The FBI believes the attack was an anti-Gay hate crime based upon statements from eye witnesses regarding events that occurred at the bar prior to the incident. However, it is unclear whether the victim is in fact gay. The FBI spokesperson emphasized that the FBI will be focusing their investigation on the kidnapping and sexual assault aspect of the case and making recommendations to the U.S Attorney’s Office. It is up to the U.S. Attorney’s Office as to whether they will prosecute the crime under the new federal law.

With regard to the prosecution of the crime by the State of Texas, the two suspects, 46 year old Daniel Martinez and 27 year old Kristopher Buchanan were arrested and indicted by the Texas grand jury with charges of aggravated sexual assault, aggravated kidnapping, aggravated robbery and arson. Bond has been set at $275,000 each. Suspect Buchanan is also being held on two outstanding felony warrants from two other Texas counties. Martinez also has prior arrests and convictions. Since Texas does not have a penalty enhancement under the 2001 James Byrd Jr. Hates Crimes Act for these charges, the Texas district attorney is not prosecuting the case as a hate crime.

Hire a Texas Criminal Defense Attorney

If you commit a crime involving bias or prejudice under the Texas James Byrd Jr. Hate Crimes Act or are charged with a First Degree Felony, capital punishment crime or Class A misdemeanor in Texas, you should hire a Texas criminal defense attorney to defend you. Article 27.02 of the Texas Penal Code gives the defendant the following options to plea guilty, not guilty, nolo contendere (which has the same affect as a guilty plea, except the plea cannot be used against the defendant in a civil lawsuit), applying for probation and electing to have the jury impose the punishment instead of the judge if the defendant is found guilty.

While you may not be charged with a hate crime under Texas law for committing a First Degree Felony or Class A Misdemeanor, you still may face the maximum sentence of life in prison or the death penalty for a capital punishment crime. You could also be charged and convicted under the new federal Matthew Shepard Act with a hate crime and prosecuted by the U.S. Attorney’s Office. Your attorney understands the Texas hate crime statutes and felony laws and the Federal Hate Crime Act and laws and may be able to argue legal defenses such as aggravated battery and
lesser charges such as mistaken identity, self defense and false accusations to get the charges reduced or the case dismissed.