Possession of Controlled Substance Charge Dismissed…

In November of 2011, one of my clients was a passenger in a vehicle traveling westbound on Interstate 40 through Texas. The driver was stopped in Oldham County for speeding and driving in the left lane while not passing. During the course of the traffic stop, the state trooper asked the driver for consent to search the vehicle. The driver gave consent to search the vehicle. The driver also told the officer there was marijuana in the vehicle. During the search, the officer found approximately 15 grams of marijuana in the luggage belonging to the driver and a little over 10 grams of tetrahydrocannabinol (hashish) in a cooler in the backseat of the vehicle.

The driver and my client were arrested and subsequently charged with possession of a controlled substance.

Prior to my involvement in the case, my client had a court-appointed lawyer. The State had made a plea offer for probation and the court-appointed lawyer told my client that he should take the plea offer. My client refused to accept the plea offer and retained my services. After I conducted my investigation of the case, I entered into negotiations with the State to resolve the matter. We were able to get a sworn statement from the driver of the vehicle. The driver took full responsibility for the marijuana and hashish and stated that my client was not aware they were in the vehicle. My client did not have a criminal history, which worked to his benefit. I was able to show the prosecuting attorney there was little, if any evidence, to connect the marijuana or the hashish to my client.

In April of this year, the State dismissed the criminal charges filed against my client.

Money Laundering Charge Dismissed…

In August of 2012, one of my clients was stopped in Carson County for speeding. He was headed west on Interstate 40 to his home in Arizona. During the course of the traffic stop, the state trooper asked for consent to search the vehicle. My client gave consent to search. During the course of the search, law enforcement officers found approximately $45,000.00 in United States currency. The money was found inside luggage located in the passenger compartment of the vehicle.

My client was arrested and subsequently charged with money laundering. The State also filed a civil forfeiture action seeking to forfeit my client’s vehicle and the $45,000.00 found in the luggage.

In March of this year, the State dismissed the criminal charges and the civil forfeiture action. The vehicle and the $45,000.00 were returned to my client.

Although my client had an extensive criminal history, we were able to show the money was obtained lawfully. Factors that made these cases challenging for the State were: (1) no illegal drugs were found in the vehicle; and (2) there was no attempt to hide the money.

Traffic Offense – Failure to Use Head Lights…

Under Texas law, a vehicle is required to have a head light on each side of the front of the vehicle. Head lights are required to be used at nighttime and when light is insufficient or atmospheric conditions are unfavorable so that a person or vehicle on the highway is not clearly discernible at a distance of 1,000 feet. Texas Transportation Code Section 547.302(a) & (c). Nighttime is defined as the period beginning one-half hour after sunset and ending one-half hour before sunrise. Texas Transportation Code Section 541.401(5).

Failure to use head lights when required is a traffic offense under Texas Law.

Law enforcement officers often use the type of violation to stop vehicles on Texas highways to conduct their drug interdiction activities.

Unlawful Use of a Criminal Instrument…

In pertinent parts, Section 16.01 of the Texas Penal Code states:

(a) A person commits on offense if:
      (1) The person possesses a criminal instrument … with the intent to use the instrument … in the commission of an offense;
(b) For purpose of this section:
      (1) “Criminal instrument” means anything, the possession, manufacture, or sale of which is not otherwise an offense, that is specifically designed, made or adapted for use in the commission of an offense.

I have seen this statute used in situations where a large sum of cash has been found during a traffic stop and the state had little proof to support a conviction for money laundering. A good example would be where a large sum of cash is found in a false compartment in the bottom of luggage.

Four Texas appellate courts have attempted to define the proper application of Section 16.01.

In Eodice v. State, 742 S.W.2d 844 (Tex.App.-Austin 1987, no pet.), the Third Court of Appeals held:

In order to be a criminal instrument within the meaning of the statute, it is not enough that an object can be used to commit a crime. Rather, the object must be one that, as designed, made, or adapted, is distinctively or peculiarly suited to accomplishing a criminal objective. While the opinion in Universal Amusement may have overstated the point by suggesting that the commission of a crime must be the only use for a criminal instrument, it is certainly clear from the statutory definition that the commission of a crime must be the object’s primary purpose.

Eodice, 742 S.W.2d at 846.

In Ex parte Andrews, 814 S.W.2d 839 (Tex.App.-Houston [1st Dist.] 1991, pet. dism’d), the First Court of Appeals echoed the Third Court’s distinction between proof of intent to commit a crime and proof that the instrument was designed, made, or adapted for that purpose. The court held:

[T]he gravamen of the offense … is the physical adaptation of the alleged instrument for a specific criminal intent…. We find that any illegality to be proved is in the inherent characteristics of the object itself as adapted, and not in the conduct of defendants in using the object within a particular criminal episode. An object does not become a criminal instrument by the context of its use, but by the limited nature and specialized criminal use of its own distinctive properties.

Andrews, 814 S.W.2d at 841.

However, in Janjua v. State, 991 S.W.2d 419 (Tex.App.-Houston [14th Dist.] 1999, no pet.), the Fourteenth Court of Appeals has interpreted Section 16.01 inconsistently with Eodice and Andrews. The court stated that “the ontological essence of what constitutes a criminal instrument under Section 16.01 must be determined by both (1) its design or adaptation and (2) the facts and circumstances establishing its intended use.” Janjua, 991 S.W.2d at 426. The court limited its holding by stating that the word “specially” in the statute means that “the object must be a fundamental or critically important element in the commission of the intended offense.” Janjua, 991 S.W.2d at 427 n. 13.

Finally, in Danzi v. State, 101 S.W.3d 786 (Tex.App.-El Paso 2003, writ refused) the Eighth Court of Appeals held that a slim jim tool found in defendant’s vehicle was not shown to be a “criminal instrument” within meaning of statute prohibiting possession of criminal instruments. Although there was evidence that the slim jim could have been used to commit a burglary of a motor vehicle, there was no evidence that it was specially designed, made, or adapted by the defendant for that use. Danzi 101 S.W.3d at 793.

Danzi is an important cases because it discusses the other three cases discussed above and the legislative history of Section 16.01. From a defense point of view, it is important because it is well reasoned and received the blessings of the Texas Court of Criminal Appeals when the Court of Criminal Appeals refused to hear the petition for discretionary review filed by the State.

Recreational Use of Marijuana…

Voters in Colorado and Washington have just approved the recreational use of marijuana. Both states have taken the bold step to regulate marijuana like tobacco and alcohol. It should be remembered that eighteen states and the District of Columbia have enacted laws legalizing the use of marijuana for medical purposes. There are several other states considering medical marijuana laws. It is readily apparent that acceptance of marijuana use is a growing trend in the United States.

It will be interesting to see how things play out in Colorado and Washington. And it will be interesting to see if other states follow their lead.

Armstrong County – Increase in Drug-Interdiction Traffic Stops…

I have also noticed there has been an increase in drug-interdiction traffic stops by state troopers on U.S. Highway 287 in Armstrong County. Highway 287 runs through Amarillo southeast to the Dallas-Fort Worth metroplex and then on to the Gulf Coast of Texas. As I mentioned in my November 10 post, more and more counties in the Amarillo area want a piece of the huge revenues generated by drug-interdiction activity along Interstate 40 and the other major highways in this area.

Possession of Marijuana Charge Dismissed…

In April of this year, one of my clients was charged with possession of marijuana in Carson County. She was was stopped for speeding on Interstate 40. During the course of the traffic stop, the passenger in the vehicle gave consent to search the vehicle. Approximately 50 pounds of marijuana was found in luggage located in the vehicle. During negotiations with the State, the passenger took responsibility for the marijuana and claimed that my client had no knowledge of the marijuana. Since there was little evidence linking my client to the marijuana, the State dismissed the criminal charges filed against my client.

Dallam County & Hartley County – Uptick in Drug-Interdiction Traffic Stops…

Over the last year I have noticed there has been an uptick in drug-interdiction traffic stops by state troopers on U.S. Highway 87 in Dallam County and Hartley County. Highway 87 is the major road for travel from Colorado through New Mexico to the high plains of Texas. After seeing the revenues generated by drug-interdiction activity along Interstate 40, it appears Dallam and Hartley County authorities want to get in on the action.

With the relaxed attitude towards marijuana use and possession in Colorado, I expect to see more and more activity along Highway 87.

There is Money in Forfeiture Cases…

As of October 24, 2012, the distribution scheme in Carson County for monies acquired by civil forfeiture of U.S. currency in State court resulting from seizures made by the Texas Department of Public Service is as follows:

  • Forty Percent (40%) – Texas Department of Public Safety
  • Thirty Percent (30%) – State of Texas General Revenue Fund
  • Thirty Percent (30%) – Carson County District Attorney’s Office

Hundreds of thousands of dollars are forfeited to the State of Texas every year in Carson County.

Civil Forfeiture – Change in Tactics…

Over the last few months I have noticed a change in how civil forfeitures of U.S. currency are being handled in Carson County. During a recent conversation with someone in the know I learned that if the authorities believe the underlying criminal case is strong, the civil forfeiture case will be filed in State court. If the criminal case is believed to be weak, the forfeiture case will be filed in federal court. It is easier for the government to win in federal court due to proof issues placed on the claimant.

Interesting stuff.