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.