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.

Bail…

Under the provisions of Article 1, Section 11 of the Texas Constitution and Article 1.07 of the Texas Code of Criminal Procedure, all persons accused of a crime (except capital crimes) are eligible to post bail.

Article 17.15 of the Code of Criminal Procedure states:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
(2) The power to require bail is not to be so used as to make it an instrument of oppression.
(3) The nature of the offense and the circumstances under which it was committed are to be considered.
(4) The future safety of the victim of the alleged offense and the community shall be considered.

The 8th Amendment to the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Texas courts recognize that the primary object or purpose of bail is to secure the presence of the defendant in court upon the trial of the accusation against him. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Cr.App. 1977). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex.Cr.App. 1977).

If a person is unable to post bail, it has been my experience that, in most cases, a bond reduction can be negotiated with the State. The trial court must approve the negotiated bond reduction. If the State will not agree to a bond reduction, the next step is to file a Writ of Habeas Corpus with the trial court.

Pre-Trial Diversion…

Pre-trial intervention programs in Texas are authorized by Section 76.011 of the Texas Government Code. Pre-trial diversion is an agreement between a person accused of committing a crime in Texas and the State of Texas.

Under the terms of the agreement, if the person complies with the conditions set out in the agreement, the State will dismiss the criminal charges. The agreement is very similar to probation, but not as rigorous. By statute, the maximum term for a pre-trial diversion is 2 years. Each county in Texas has great flexibility in setting up a pre-trial intervention program in that county.

As a general rule, pre-trial diversion is available to first time offenders who have been charged with a non-violent crime. When available, pre-trial diversion is a great way to resolve a criminal matter.

Possession of Illegal Drugs – Affirmative Links…

There are many instances when law enforcement officers find illegal contraband, for example, marijuana, cocaine, methamphetamine or United States currency, in a vehicle occupied by more than one person. In most of these cases everyone is arrested and charged with possession of an illegal drug (or money laundering when currency is found). The question then becomes: Is a person guilty of possession simply by being present where illegal drugs are found? The answer: No.

Conviction for possession of illegal drugs requires proof that the defendant possessed the drugs knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995 En Banc).

The Texas Court of Criminal Appeals has also held that: “To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called ‘affirmative links’ rule.” (Citations omitted). Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Cr.App. 2005).

The mere presence at a place where contraband is being used or possessed by others does not justify finding that a person is in joint possession or is a party to an offense. When the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the person to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it in order to convict the accused of possession of a controlled substance. Robinson v. State, 80 S.W.3d 730, 735 (Tex.App. – Houston [1st Dist.] 2002).

The “affirmative links rule” in a prosecution for possession of a controlled substance is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. Poindexter at 406.

Proof of an affirmative link between the accused and the contraband is needed to establish knowledge or intent to possess the contraband when the accused is not in exclusive possession of the place where the contraband is found. Robinson at 735.

Community Supervision – Deferred Adjudication Probation…

As I wrote in my July 14 post, under the provisions of Article 42.12 of the Texas Code of Criminal Procedure, trial courts are given the authority to place a person on community supervision, also known as probation, in lieu of incarceration. I noted that there are two types of community supervision commonly known as straight probation and deferred adjudication probation.

The topic of this post is deferred adjudication probation.

Article 42.12 §5(a) states:

… when in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.

This provision applies when a person enters a plea of guilty or nolo contendere to the trial court. A person cannot receive deferred adjudication probation from a jury.

Under deferred adjudication probation, the court would defer the proceedings without a finding of guilty and place the person on community supervision for a certain period. In most felony cases, the maximum length of the probation period is ten years. While on probation, the person would be required to comply with certain terms and conditions.

If the person successfully completes the probation period, he would be discharged from probation, the charges filed against him would be dismissed, he would not have a final conviction on his record and he would never serve time in prison.

If it is believed that the person has violated a condition of probation, the State may file a motion to revoke community supervision. The court would then conduct a hearing to determine if the person in fact violated a condition of community supervision. If the court determines the person did violate a condition of probation, the court may revoke the community supervision and impose sentence anywhere within the range of punishment prescribed by law.

The four most important points to remember about deferred adjudication probation are: (1) the person avoids serving time in prison if he successfully completes the probation term; (2) the person will not have a final conviction on his record if he successfully completes the probation term; (3) the charges filed against the person will be dismissed if he successfully completes the probation term; and (4) If the person violates a term or condition of probation, the Court may find him guilty and may impose sentence anywhere within the range of punishment prescribed by law.

Community Supervision – Straight Probation…

Under the provisions of Article 42.12 of the Texas Code of Criminal Procedure, trial courts are given the authority to place a person on community supervision, also known as probation, in lieu of incarceration.

There are two types of community supervision commonly known as straight probation and deferred adjudication probation. The topic of this post is straight probation.

Article 42.12 §3(a) states:

A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may suspend the imposition of sentence and place the defendant on community supervision or impose a fine applicable to the offense and place the defendant on community supervision.

Article 42.12 §4(a) states:

A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend imposition of the sentence and place the defendant on community supervision. A judge shall suspend the imposition of sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.

These provisions apply when a person is convicted of a crime by a jury or by the court, or when a person enters a plea of guilty or nolo contendere.

Under straight probation, the person would be found guilty and therefore have a final conviction on his record. In a felony case, the person would be sentenced to a term of confinement in prison. However, imposition of sentence would be suspended and the person would be placed on community supervision for a certain period. In most felony cases, the maximum length of the probation period is ten years. While on probation, the person would be required to comply with certain terms and conditions.

If the person successfully completes the probation period, he would be discharged from probation and would never serve time in prison.

If it is believed that the person has violated a condition of probation, the State may file a motion to revoke community supervision. The court would then conduct a hearing to determine if the person in fact violated a condition of community supervision. If the court determines the person did violate a condition of probation, the court may revoke the community supervision and impose the original sentence.

The two most important points to remember about straight probation are: (1) the person avoids serving time in prison if he successfully completes the probation term; and (2) the person will have a final conviction on his record.

Stolen Valor Act – Unconstitutional…

In 2006, it became illegal in this country to lie about your military service.

The Stolen Valor Act made it a federal misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal. If convicted, a person faced imprisonment in a federal prison for up to six months. If the decoration lied about was the Medal of Honor, imprisonment could have been up to one year.

This week, the United States Supreme Court, in United States v. Alvarez, ruled that the Stolen Valor Act was an unconstitutional abridgment of the freedom of speech under the First Amendment, striking down the law in a 6 to 3 decision.

Another stupid law bites the dust.

Consent to Search…

As I have noted in prior posts, the Fourth Amendment to the United States Constitution and Article 1, §9 of the Texas Constitution prohibit unreasonable searches and seizures by law enforcement officers. Hayes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App. 1971); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim. App. 1976).

However, the protections afforded by these constitutional guarantees may be waived.

One noted exception to the requirement of either a search warrant or probable cause is a search that is conducted pursuant to consent. Before the consent is deemed effective, the prosecution must prove by clear and convincing evidence that the consent was freely and voluntarily given. The burden to prove by clear and convincing evidence that consent was freely and voluntarily given requires the prosecution to show the consent given was positive and unequivocal and there must not be any duress or coercion, actual or implied. The question of whether consent was voluntary is a question of fact to be determined from the totality of all the circumstance surrounding the giving of the consent to search. See Meeks v. State, 692 S.W.2d 504, 508-509 (Tex.Crim.App. 1985, en banc); State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997, en banc); and Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000).

Traffic Stops – What Officers May Lawfully Do…

A law enforcement officer may lawfully stop a vehicle and conduct a brief investigation when he observes a traffic violation. Strauss v. Texas, 121 S.W.3d 486, 490 (Tex.App. – Amarillo 2003, pet. ref’d.). In general, the decision to stop a vehicle is reasonable when the officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000).

During a routine traffic stop, the officer may require the driver to identify himself and produce a valid driver’s license and proof of liability insurance. Strauss at 491. The officer may direct the driver to step out of the vehicle, Estrada v. State, 30 S.W.3d 599, 603 (Tex.App. – Austin 2000, pet. ref’d.), detain the driver to check for outstanding warrants, Walter at 542, inquire about the registration of the vehicle, Sieffert V. Texas, 290 S.W.3d 478, 483 (Tex.App. – Amarillo 2009), and ask about the destination and the purpose of the trip. Haas v. State, 172 S.W.3d 42, 50 (Tex.App. – Waco 2005, pet. ref’d.).

The officer may also question any passenger in the vehicle. Duff v. State, 546 S.W.2d 283, 286 (Tex.Crim.App. 1977).

Once the purpose of the traffic stop has been completed, the officer may then ask the driver if he possesses any illegal contraband and may also ask for voluntary consent to search the vehicle. Strauss at 491. If consent to search is not given, the officer may no longer detain the vehicle or its occupants unless reasonable suspicion of some other criminal activity exists. Sieffert at 484.