Capital murder is the most serious offense you can commit in Texas. It means committing a premeditated murder but with aggravating factors that elevate the charge to a “capital” felony.

In Texas, capital murder is a death penalty offense, while first-degree murder carries a maximum sentence of life in prison.

Capital Murder vs. First-Degree Murder

	Capital murder	First-degree murder
Legal definition	Involves specific aggravating circumstances, including killing a peace officer or killing a minor under the age of 15	A defendant cannot plead guilty to capital murder but could agree to plead guilty to other charges or accept a plea deal
Criminal charge	Capital felony	Jurors will have to consider two particular issues – whether a defendant is a future danger and whether mitigating factors make a life sentence more appropriate
Maximum sentence	Death penalty	Life in prison and a $10,000 fine
Outcomes	If a jury finds a defendant guilty, jurors can only choose between life in prison and death.	Jurors could sentence the defendant to anywhere from 5 years to life in prison
Unanimous verdict required	Yes	Yes
Can a defendant plead guilty	Jurors will have to consider two particular issues – whether a defendant a future danger and whether mitigating factors make a life sentence more appropriate	Yes, but it probably won’t be a good idea. Don’t do so without first contacting an experienced defense attorney.
Special considerations for jurors	Jurors will have to consider two particular issues – whether a defendant is a future danger and whether mitigating factors make a life sentence more appropriate	None

What Elevates a First-Degree Murder Charge to Capital Murder?

A capital murder in Texas must meet specific criteria defined by Section 19.02(b)(1) of the Texas Penal Code. A capital charge involves additional aggravating circumstances that can include:

• Murdering a peace officer (cop, firefighter, judge, etc.) who is performing an official duty 
• Intentionally killing someone while committing or attempting to commit burglary, robbery, kidnapping, arson, terroristic threat, obstruction or retaliation, or aggravated sexual assault
• Killing for financial compensation or the promise of monetary compensation (or hiring another person to murder someone for compensation or the promise of compensation)
• Killing someone during an attempted escape from a jail or prison 
• Killing a jail or prison employee while incarcerated
• Murdering another person while incarcerated while serving a life sentence for murder
• Committing a murder while serving a prison term of life or 99 years for kidnapping, sexual assault, or aggravated robbery
• Murdering more than one person during a single criminal activity or different criminal activities, but the murders are committed in the same manner or code of conduct
• Murdering a minor under 15

In Texas, capital murder is the only crime classified as a “capital felony” and the only crime eligible for the death penalty.

Statistics: Capital Murder vs. Murder in Texas

In 2022, there were a total of 2,017 murder cases in Texas. According to the Texas Department of Public Safety, more than 75% of murders happened in cities with populations of 100,000 or more people. 

Additionally, we researched the murder rates in Texas’ five largest counties in 2023, which reported a total of 1,298 homicide cases. In total, there were 742 murders, 293 capital murders, and 263 other homicides. Here’s how they broke down by county:

County	Murder	Capital murder	Other homicides
Bexar	115	0	40
Dallas	78	33	39
Harris	325	136	120
Tarrant	153	84	48
Travis	71	10	15

Degrees of Murder

All forms of murder are considered homicide, but homicide covers virtually all charges involving a fatality, and not all homicides are illegal (for example, justifiable homicide). 

The specific charge depends on the circumstances of the killing. There are many different degrees of criminal charges: 

• Capital murder: This is the only death penalty offense in Texas. Examples include murder of more than one person, murder for financial gain, hate crimes, or murdering a public servant (police officers, judges, firefighters, etc.). 
• First-degree murder: Killing with intention and premeditation – a typical first-degree murder sentence is 25 years to life in prison.
• Second-degree murder: Killing someone intentionally but without premeditation – a typical second-degree murder sentence is 15 years to life in prison.
• Felony murder: This is a first- or second-degree murder that occurs during another felony (for example, a rape, kidnapping, or arson). Anyone involved in the original felony could face felony murder charges, even if they technically were not involved with the killing. Felony murder typically results in 15 or 25 years to life in prison.
• Manslaughter: Recklessly causing the death of another person. The key element distinguishing manslaughter from other homicide offenses (such as murder) is the reckless mental state of the defendant. Penalties range from 2 to 20 years in prison and a fine of up to $10,000.
• Attempted murder: Someone tries to kill another person in a manner that – if the outcome had been successful – would have resulted in murder. No one is required to be harmed. Attempted murder can be classified as first- or second-degree. A typical attempted murder sentence is two to nine years in prison.
• Criminally negligent homicide: This Involves causing the death of another person through criminal negligence. Penalties include a maximum of two years in a state jail facility and a possible fine.
• Justifiable homicide: This refers to a killing that is deemed lawful under specific circumstances, meaning the person who committed the act will not face criminal liability. It often arises in the context of self-defense, in defense of others, or when protecting your property (aka Texas’ Castle Doctrine).

Special Juror Considerations for Capital Murder Cases

The death penalty is the harshest verdict available, so the standard for jurors is higher. Texas Code of Criminal Procedure Article 37.071(2) requires juries to weigh two special issues in a death penalty case in Texas: 

• Is the defendant a future danger?
• Are there mitigating factors that make a life sentence more appropriate?

If the answer is “yes” to the first question and “no” to the second one, a defendant will likely receive a death sentence.

Murder Penalties

Whether it’s considered a first-degree murder or a capital murder charge, the consequences will be severe. The maximum sentence for murder ranges from 5 to 99 years or life in prison. And a capital murder conviction could mean the death penalty.

Possible Murder Defenses

If you’re facing a criminal charge, contact us immediately. Constitutional rights are in place to protect you, but it’s important to remember that “anything you say can and will be used against you.” (In other words, don’t say anything and don’t answer any questions without an attorney present).

Other rights include:

• The right to a speedy trial
• The right to a fair trial by a jury of your peers
• The case against you must be proven “beyond a reasonable doubt”

We can work to cast doubt on evidence and witness testimony and attempt to exclude anything questionable. We can also seek out and introduce exculpatory evidence (or evidence that works in your favor). 

Other potential defenses include:

• Self-defense
• Lack of intent
• Mistaken identity
• Mental status
• Alibi
• Illegal search and seizure
• Duress
• Intoxication
• Police misconduct