Defendants accused of a hate crime face enhanced punishments in Texas, but this enhancement only applies to certain offenses. Pursuant to Code of Criminal Procedure Article 42.014, if someone commits a crime against a person, arson, graffiti, or criminal mischief, an affirmative finding must be made that the offense was committed because of bias or prejudice against a group identified by race, color, disability, religion, national origin, age, gender, sexual preference, or because the victim was a peace officer or judge. This affirmative finding will increase the punishment level by one degree (other than Class A misdemeanors, which has an enhancement on the minimum punishment.) Also, note that first degree felonies are excluded.
Hate crimes are soaring across the United States, reaching their highest level in more than a decade. It seems that every day, a new crime occurs against a group of people because of their status – whether it’s race, religion, sexuality, etc.
With hate crimes on the rise over the past few decades, states across the country as well as the federal government have been updating and expanding their hate crime laws. Today, there are numerous federal laws criminally charging hate crimes, and Texas itself has recently updated its hate crime laws to protect many minority groups. In this article, the attorneys at Varghese Summersett will explain the elements of a hate crime, how they are charged in Texas and in the federal courts, and potential punishments.
A hate crime is a crime that was committed because of a certain characteristic of the victim. In Texas, a hate crime occurs when a person intentionally chooses to commit a crime against the victim because of their:
The FBI, which handles hate crimes at the federal level, also uses similar distinctions to define a hate crime. Essentially, any crime that is motivated by prejudice toward an individual’s status – such as assaulting someone because of their race or shooting someone because of their sexual preferences – can be elevated to a hate crime. People who are charged with a hate crime face harsher punishment.
In Texas, crimes against people, arson, graffiti, and criminal mischief can be elevated to a hate crime if investigators determine hatred or prejudice was the clear motivation to commit the crime. Under the Texas Hate Crimes Act, a hate crime is defined as any crime motivated by “prejudice, hatred, or advocacy of violence.” Explicit motivation must be found showing the defendant committed the crime due to a hatred or prejudice toward the victim because of the victim’s status.
If a crime is prosecuted as a hate crime, the penalty range is usually elevated to the next higher category, as outlined in Texas Penal Code 12.47, which sets the punishments for hate crimes. For instance, if a Class C misdemeanor criminal mischief case was shown to have taken place because of hatred toward the victim’s race, the crime would be elevated to a Class B misdemeanor. There are a few exceptions to this rule, however. First, a Class A misdemeanor will not be enhanced to a felony, but rather the minimum time of confinement in jail is increased to 180 days. Second, a first degree felony cannot be upgraded because it already carries a punishment of up to life in prison.
While most crimes in the United States are handled by the state courts, federal prosecutors can choose to prosecute a hate crime, especially if the circumstances are extraordinary. There are numerous federal laws regarding hate crimes on the books, including the Civil Rights Act of 1968, the Violent Crime Control and Law Enforcement Act of 1994 and the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009. The federal government’s definition of a hate crime is quite similar to Texas law. While initially hate crimes were only considered under the categories of race, color, religion, or ethnicity, the 2009 Hate Crimes Prevention Act expanded the categories of hate crimes to include disability, gender, and LGBTQ identities.
The punishments for a federal hate crime are listed under 18 U.S. Code 249. Anyone found to be guilty of causing bodily injury or attempting to cause bodily injury to another person because of their race, color, religion, ethnicity, gender, sexuality, or disability, can be imprisoned up to 10 years and fined. If the hate crime results in the death of the victim, attempt to kill the victim, or involves kidnapping, attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, the alleged offender could face up to life in prison and fines.
While hate speech is offensive toward people and meant to be that way, there is no law that makes hate speech illegal in the United States. Under the First Amendment, Americans are protected to say just about anything they want, as long as it does not incite violence. The Supreme Court has agreed with this numerous times, such as in Brandenburg v. Ohio (1969), where the Court ruled that it was perfectly fine for a Ku Klux Klan member to use speech that promoted violence in general, unless the speech directed people to take unlawful action immediately. Furthermore, the infamous Westboro Baptist Church was found to be protected under the First Amendment in Snyder v. Phelps (2011), even though they are well-known to picket funerals of military members and use derogatory language towards individuals identifying as a member of the LGBTQ community. Based on the law and previous rulings, hate speech can only be considered a crime if it specifically incites immediate violence toward an individual or group because of their status.
Hate crimes have been and continue to increase. Based on the most recent data from the FBI’s 2019 Hate Crime Statistics Report, hate crimes rose 3 percent in 2019, with 7,314 hate crimes being recorded. This is the highest total since 2018. More specifically, there were 51 hate crime murders reported in 2019, the highest total since data collection began in 1991. Further, hate crimes rose for pretty much every minority group, with hate crimes toward Hispanics increasing 9 percent, crimes against Jews increasing 14 percent, and crimes against transgender individuals rising by 18 percent. Although recently hate crimes have decreased, likely due to the Covid-19 pandemic, hate crimes toward Asians have increased 149 percent from 2019 to 2020, according to The Center for the Study of Hate and Extremism at California State University.
One of the most recent and infamous hate crimes to occur in Texas was the 2019 El Paso Shooting, in which 23 individuals were killed and another 23 injured when a gunman opened fire at an El Paso Walmart. The gunman specifically targeted Hispanic people and was charged with 22 counts of committing a hate crime resulting in death, among other charges.
Although the El Paso Shooting seems like a rather extreme example of a hate crime, there are many hate crimes that occur every day that do not receive national media attention. For example, in 2019, police were investigating a shooting as a hate crime after a Dallas man shot and severely injuring a transgender woman while shouting slurs. That same year, San Antonio police were investigating a possible hate crime at a local church after it was vandalized with satanic symbols and profanity on Christmas Eve.
In 2019 alone, the FBI reported that there were 456 hate crime incidents in the state of Texas. Of that number, 15 were reported in Fort Worth – including eight because of race, two because of religion, and five because of the victim’s sexual orientation. Cities surrounding Fort Worth also reported high numbers of hate crimes that year, with Arlington totaling 16, North Richland Hills reporting 4, and Dallas reporting 30.
Being accused of a hate crime is a serious accusation that, if convicted, can carry substantial prison time and hefty fines. It is critical that you get experienced legal representation as soon as possible when facing such a serious charge. We can help. The team of hate crime attorneys at Varghese Summersett have a reputation for relentless, aggressive representation. Call today for a complimentary consultation with a member of our team.