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Is “Factual Impossibility” A Valid Criminal Defense In Texas?

Jackson & Pearland Lawyer > Blog > Misdemeanor > Is “Factual Impossibility” A Valid Criminal Defense In Texas?

Is “Factual Impossibility” A Valid Criminal Defense In Texas?


If someone attempts to commit a crime, but it turns out to be “factually impossible” for that attempt to succeed, is the person still guilty of a crime? The short answer is “yes.” In Texas there is what is known as a criminal attempt. This is essentially defined as when someone has “specific intent to commit an offense” and commits an act “amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” The fact that the attempt ultimately proved unsuccessful is not a defense.

Court of Criminal Appeals Allows Defendant to Withdraw Guilty Plea in Forgery Case Involving Genuine $100 Bill

A recent decision from the Texas Court of Criminal Appeals illustrates the role that “factual impossibility” plays in criminal attempt prosecutions. This particular case, Ex Parte Hicks, involved a defendant who pleaded guilty to a charge of attempted forgery of a government instrument. Under a plea agreement with the district attorney, the defendant received a 180-day jail sentence.

The crux of the case against the defendant was that he allegedly tried to use a counterfeit $100 bill. The only problem was the bill turned out not to be counterfeit. It was a genuine $100 bill. This was only discovered, however, five years after the defendant entered his guilty plea, when the United States Secret Service informed local law enforcement of this fact. (Before the Secret Service became famous for protecting the President, it was and remains the principal federal agency charged with enforcing anti-counterfeiting laws.)

Based on this new evidence, the defendant filed a petition for a writ of habeas corpus, seeking a judicial declaration that he was “actually innocent” of the original attempted forgery charge. Since the bill was genuine, the defendant reasoned, it was factually impossible for him to have committed the crime.

The Texas Court of Criminal Appeals did not quite agree with that reasoning. It held this new information did not mean the defendant was “actually innocent” according to Texas law. Indeed, there was still sufficient evidence to find the defendant guilty of criminal attempt, as he himself believed the $100 bill to be fake when he attempted to pass it off. That was enough to demonstrate a “conscious objective” to commit forgery.

That said, the Court of Criminal Appeals did find that since the defendant “was not aware of all the circumstances at the time” he entered his guilty plea, that plea was not “knowing and voluntary.” The Court therefore granted the habeas petition to the extent that the defendant could withdraw that plea and elect to answer to the original indictment.

Contact Texas Criminal Defense Attorney Keith B. French Today

When you are charged with any criminal offense, it is important to be in full possession of the relevant facts before deciding how you wish to proceed. The last thing you want is to plead guilty only to find out years later the case against you was based on faulty evidence. An experienced Pearland misdemeanor crimes lawyer can provide you with skilled guidance and representation. Contact the offices of Keith B. French Law, PLLC, today, if you need to speak with a defense attorney today.


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