What’s the Difference Between Murder and Capital Murder?

By Benson Varghese

Last Updated: October 21st, 2022
Published on: October 24th, 2015
What’s the Difference Between Murder and Capital Murder?

Capital Murder vs. Murder in Texas

In Texas, the biggest difference between murder and capital murder can be summed up in two words: death penalty.

Capital murder is punishable by life in prison without parole or the death penalty. Murder is punishable by up to life in prison, with the possibility for parole.

Capital Murder and Murder are Both Homicide in Texas

Both murder and capital murder are classified as criminal homicide under the law. The two most important distinctions between the two crimes are:

  • the way each offense is alleged
  • the punishment that each offense carries.

Here’s a look at the two offenses, the punishment, and answers to some frequently asked questions.

What is Murder in Texas?

Pursuant to Penal Code § 19.02(b)(1) there are three ways murder may be alleged. A person commits murder when:

  • The person intentionally or knowingly causes the death of an individual;
  • The person intends to cause serious bodily injury and commits an act that causes the death of an individual; or
  • The person causes the death of an individual during the commission or attempted commission of a felony.

What is the Punishment for Murder?

Generally, a defendant guilty of murder may be sentenced to imprisonment for life or a term of anywhere from five years to 99 years. In addition to imprisonment, a fine of up to $10,000 may be imposed.

What is Capital Murder in Texas?

Murder is elevated to a capital offense when the murder occurs under specific circumstances. Pursuant to Penal Code § 19.03(a), a person commits capital murder if he commits murder as defined above and:

  • The individual killed is a peace officer or fireman in the line of duty and the person knows the individual is a peace officer or fireman;
  • The killing occurs during the commission or attempt of the following felonies: kidnapping, burglary, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat;
  • The killing was committed for payment or promise of payment. Both the person who kills another and the person who hires a person to kill are guilty of capital murder;
  • The killing occurs during the escape, whether successful or not, from a penal institution;
  • The individual killed is an employee of a penal institution and the killing is committed by an incarcerated person;
  • The killing is committed by an incarcerated person in conjunction with organized criminal activity;
  • The killing is committed by a person incarcerated for murder or capital murder;
  • The killing is committed by a person incarcerated for the following aggravated felonies: aggravated kidnapping, aggravated sexual assault, or aggravated robbery;
  • The person kills more than one individual either during the same criminal transaction or during different transactions but under a common scheme;
  • The person killed is under 10 years old; or
  • The individual killed was a judge or justice and the killing was committed in retaliation or on account of the judge or justice’s service.

What is the Punishment for Capital Murder?

Capital murder carries a penalty of life in prison without parole or the death penalty.

Will Causing Multiple Deaths Result in Capital Murder Charges?

Yes, a person who intentionally or knowingly kills more than one individual during a single course of criminal conduct will be charged with capital murder. A person facing capital murder charges may face the death penalty. The State (meaning the local district attorney) will make a decision as to whether prosecutors will seeks the death penalty. If the State seeks the death penalty, and the individual is found guilty, the jury will decide whether or not to impose the death penalty. Only a jury can render a verdict of death.

What is Capital Murder – Terror/Fel in Texas?

A person accused of causing the death of another while in the commission or attempted commission of kidnapping, robbery, burglary, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat is charged with Capital Murder under Penal Code Section 19.03. This charge is often abbreviated as “Capital Murder – Terror/Fel.”


What are the Special Issues in a Death Penalty Case in Texas?

The Code of Criminal Procedure Article 37.071(2) provides the jury must decide two special issues in a death penalty case in Texas: whether the defendant is a future danger and if there are mitigating factors that would make a life sentence more appropriate:

(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

  • whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
  • whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.

If the jury answers “yes” to the first special issue and “no” to the second special issue, the defendant will receive the death penalty.

What are the Additional Special Issues in a Capital Murder Case in Texas?

In Capital Murder cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, the special issues are:

  • whether the defendant actually caused the death of the deceased;
  • if the defendant did not actually cause the death of the deceased but intended to kill the deceased or another;
  • if the defendant did not actually cause the death of the deceased but anticipated that a human life would be taken.

Example of a Death Penalty Jury Charge in Texas

Death Penalty Jury Charge

Can Capital Murder be Charged as a Hate Crime?

Chapter 411.046 of the Texas Government Code defenses hate crimes for reporting purposes in Texas. A hate crime is one that is motivated by prejudice, hatred, or advocacy of violence. That finding does not impact sentencing. For limited offenses, the Code of Criminal Procedure provides for an enhancement of one level if an offense was committed “because of the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference or by status as a peace officer or judge.”

There’s no sentencing enhancement in the state system for capital murder based on the offense qualifying as a hate crime. Article 42.014, Code of Criminal Procedure does not allow for a sentencing enhancement other than for arson, graffiti, a criminal mischief.

18 USC 249 is the federal Hate Crime statute. 18 USC 249 (a)(1) covers willfully causing bodily injury or death “because of the actual or perceived race, color, religion, or national origin” of the victim(s). The federal murder statute is 18 USC 1111 and would cover when a person malice aforethought, unlawfully killed victims with the firearm. A person convicted for first degree murder can receive the death penalty. In capital cases, the decision to seek the death penalty rests with the Attorney General. 18 USC 3591 sets forth instances when a person can be sentenced to death in the federal system.

Federal prosecutors rarely seek the death penalty, but did seek the death penalty for Dylann S. Roof, the white supremacist who shot and killed nine African-American churchgoers in 2015.

Can Insanity be Raised as a Defense to Capital Murder?

Insanity is a very difficult defense to raise successfully in Texas. The insanity defense and the requirements to raise the defense is codified in Texas Penal Code Section 8.01.(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

In the federal system, insanity can be raised the defendant as an affirmative defense that the defense would have to prove by a preponderance of evidence pursuant to 18 USC 17. The defendant would have to prove a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.

Can Someone Who is Guilty of Murder be Punished for a Second Degree Offense?

Yes. Penal Code Section 19.02(d) provides that once a defendant is found guilty of murder, he may prove that his actions occurred under certain circumstances that entitle him to a lesser degree of punishment. He or she must prove by a preponderance of the evidence that he caused the death under the immediate influence of sudden passion arising from an adequate cause. Under the circumstances, the defendant must have been provoked in such a way that an ordinary person in similar circumstances would have reacted similarly. The defense must show there was no time to cool down, and the defendant did not, in fact, cool down.

Further, the killing must occur under the influence of “sudden passion.” That is, the situation that provoked the defendant’s anger directly caused the defendant to react in the heat of the moment. The killing cannot be based on provocation that occurred before the time of the incident. Penal Code § 19.02(a)(2). If the defendant is able to establish by a preponderance of the evidence that the above circumstances existed, the offense becomes a felony of the second degree. Penal Code § 19.02(d).

What is the Punishment for Second-Degree Murder (Sudden Passion)?

A defendant guilty of murder in the second degree will be imprisoned for anywhere from 2 to 20 years. A fine of up to $10,000 may also be imposed.

Capital Murder and the Death Penalty

Capital murder—a capital felony—carries a more severe penalty than murder does. Texas is one of 27 states that allows for the death penalty to be imposed as capital punishment for capital felonies.

The state has the option to seek the death penalty. Under Penal Code Section 12.31, if the state seeks the death penalty, the mandatory punishment is either life without parole or death.

If the state does not seek the death penalty, the mandatory punishment depends on the defendant’s age at the time of the offense. If the defendant was younger than 18 years of age at the time the offense was committed, the mandatory punishment is life. For offenses committed when the defendant was 18 or older, the defendant faces life without parole.

Contact Us

named best lawyer

best criminal defense attorneys in Fort Worth


Client Review

I was arrested for murder on March 27, 2014 I received a court-appointed attorney whose name I won’t discuss. She was no good for me never made communication or put forth the effort to help me. Then a blessing came I received Joetta Keene and Christie Jack. Two of the best lawyers I’ve ever witnessed. They are amazing watching them work left me in awe. I would not want to be on the wrong end of an argument with these ladies. Christie is so soft spoken, but the woman sure can make people tremble in their seat. I was nervous for the opposition. She grilled them good. As far as communication goes this woman did more for me in 2 months than my previous Lawyer did in 2 years this speaks volumes to her work ethic. She prepared for a murder trial at such a short notice. When we got the not guilty verdict. It was the right verdict but it was a well-deserved win for this nice lady. Very compassionate, I will forever recommend Mrs. Jack to anyone with legal troubles. One of the best in Texas. No Mrs. Jack was the blessing I needed and as a court appointed attorney she did high-class work. I’m forever grateful.

A. Jones. (Former Client)

What’s the Difference Between Murder and Capital Murder?
Varghese Summersett PLLC
Varghese Summersett PLLC