Articles Posted in Texas Criminal Law

bank_robbery_2.jpgSection 7.02(b) states “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

The law of party theory most commonly presented at trial is 7.02(a)(2), i.e. that a person intended to promote or assist in the crime being carried out, and solicits (seeks out a person to commit the crime), encourages (does acts to encourage the crime to be committed, including paying money for the crime), directs (orders the crime), aids, or attempts to aid in the crime. The typical case we think of is “murder for hire” in which someone pays another to kill their spouse, or the driver in the “getaway car” from a robbery, but the language is broad and attempts to bring in anyone who intends the crime to be committed and helps or encourages in any way. The jury will be instructed that “mere presence at the scene of an offense is no offense,” but anything more and things could start to get sticky.

The conspiracy statute, 7.02(b), is interesting and has been used in capital murder cases, and in a high profile gang rape recently in local courts. Basically, if two people conspire and agree to commit a felony (such a burglary/robbery/kidnapping/rape, and while trying to carry out that crime, another felony is committed by a member of the conspiracy/agreement, even if the person not intend that crime (carried out by a conspirator in furtherance of the offense) to be committed, if it should have been anticipated, other conspirators are liable under this theory. I.e. if you are committing armed robbery and kidnapping and murder is committed, which could reasonably be foreseeable, a conspirator who only intended to commit robbery could be guilty of the capital murder.

bank_robbery_1.jpgOne of the most common misconceptions in the law is that one actually has to commit a crime themselves to face criminal charges. Better said, it is a misconception that a person must commit all the elements of an offense themselves to be convicted of a crime. However, old distinctions such as “accessory” and “accomplice” have been abolished under Texas law, and a person who commits a crime with the intent that it be committed can be convicted of the offense.

Section 7.01 of the Texas Penal Code states “(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. (b) Each party to an offense may be charged with commission of the offense…” Thus, all you have to be is a “party” to a crime by being “criminally responsible” for another’s conduct. Read section two to learn what this actually means.

Section 7.02 of the Penal Code states that “(a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.”

beeronice.jpgNot to be outdone by the wisdom of the Oklahoma Legislature, our braniacs in Austin last year enacted “aggravated” driving while intoxicated provisions similar to the Sooner state, whereby a first time offender now faces a year in jail if the person 1) commits the offense of driving while intoxicated, and 2) “If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.” The offense is enhanced from a Class B to a Class A misdemeanor.

This is problematic in several respects. First of all, a year punishment range (one day short of the Federal definition of a felony) for a first time, no property damage or injury driving while intoxicated is simply ridiculous. Driving while intoxicated is one of the only offenses above a traffic ticket level that has no mental state. I.e. a person does not have to intentionally, knowingly, recklessly or with criminal negligence drive while intoxicated. If you are driving and you are intoxicated (either with a blood alcohol level above .08 or by not being normal due to alcohol or a drug or a combination thereof), you are committing a crime and face the 180 days in jail and $2,000 fine, both of which can be probated for two years. Many good people are arrested for driving while intoxicated for having one drink too many, or because the arresting officer was less competent in his detection skills than he should be.

Now, if you are arrested for driving while intoxicated and cooperate with law enforcement, and the state’s highly unreliable intoxilyzer machine, or a blood test performed by someone who was working at Dairy Queen a few weeks ago, shows a .15 alcohol concentration at the time of the test, not the time of driving, you are punished twice as harshly. Notice, this new law does not require you to be .15 or above at the time of driving, only that your test reveal a .15 or above at the time of testing.

marijuana.jpgHow do you or a loved one end up in the Eastern District of Texas, particularly the Sherman division, sitting in the Fannin County Jail in Bonham, Texas on a drug conspiracy charge? Well, the Sherman Division (with courthouses in Sherman and Plano, Texas) is a choice forum for the United States Department of Justice. They are much more likely to get a conviction in the Sherman Division of the Eastern District of Texas than in Dallas, Texas, located in the Northern District of Texas. The Sherman Division is much more white, conservative and affluent than Dallas. The makeup of jury pools is overwhelmingly white (about 85%, compared to less than 50% in Dallas), and the Sherman Division venue contains Collin and Denton counties, wealthy suburban counties in which all persons are more likely to be more white collar and conservative.

To bring a conspiracy case whose acts occur mostly in Dallas into the Sherman Division of the Eastern District of Texas, some connection to the Eastern District (but not a whole lot) is required. The law of venue requires that an agreement be made in, or an “overt act” take place in or through the Eastern District. Venue is an element of the offense, meaning that at trial the Government must prove venue in the Eastern District of Texas beyond a reasonable doubt.

However, only one overt act in the conspiracy must take place in the Eastern District of Texas for venue to lie here for the entire conspiracy. That is how a person who may have never been north of Dallas or Tarrant County has landed in an Eastern District of Texas conspiracy case and now sits in Bonham, Texas in the Fannin County Jail awaiting trial. It’s called forum shopping, and it isn’t limited to plaintiff’s lawyers. However, when boatloads of Hispanics and African Americans are forum shopped from a minority-rich to an extremely conservative white venue, the ends of justice should require more than a distant, tangential act to bring them before a more foreign venue. Federal statutes and Department of Justice policy provide little relief to such activity, so the case will to a virtual certainly be tried in the Eastern District.

drugs and guns.jpgFederal prosecutors use the power of “conspiracy” prosecutions to obtain convictions all over the United States without the burden of proving that an individual committed the actual, substantive crime. Many people finding themselves charged in kilogram or multi-kilogram conspiracies although they may have simply been innocent or a user (innocent of conspiring to distribute), aggravated user (selling enough to support a habit), street dealer or trafficker. To understand conspiracy law, the best place to start with is the Fifth Circuit Court of Appeals pattern jury charge. If you go to trial in the Eastern District of Texas federal court on a drug conspiracy indictment, the jury will be given the following instruction:

Title 21, United States Code, Section 846, makes it a crime for anyone to conspire with someone else to commit a violation of certain controlled substances laws of the United States. In this case, the defendant is charged with conspiring to (distribute controlled substance(s), namely ____ or possess with the intent to distribute controlled substance(s), namely ____.)

A “conspiracy” is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of “partnership in crime” in which each member becomes the agent of every other member.

holster.jpgFederal law, especially 18 U.S.C. section 922, provides additional limitations on where you can carry. First, it outlaws a person “knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.” The term “school zone” means A) in, or on the grounds of, a parochial or private school; or B) within a distance of 1,000 feet from the grounds of a public, parochial, or private school. “School” means a school which provides elementary or secondary eduaction, as determined under State Law. This Federal section does not apply to possession of a firearm 1) on private property not part of school grounds; 2) to a person properly licensed to carry in a school zone; 3) a firearm that is unloaded and locked in a container or on a rack; 4) for use in a program approved by a school in the school zone; 5) or that is unloaded and possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting. 18 U.S.C. section 930 additioanlly prohibits carrying weapons on the actual premises (buildings and parts thereof) of property owned or leased by the Federal government or by the Federal Courts.

The prohibitions mentioned here are not exhaustive, and you should read Chapter 46 of the Texas Penal Code at www.state.tx.us and the Federal laws online, or contact an attorney or the ATF if you have questions about your right to carry in Texas. You should also decide whether you personally should choose to carry a weapon, and whether you are ready for its responsibilities (including the laws and consequences of using deadly force on another human being). Also, making a loaded firearm accessible to a child (under 17 years old) is a Class A misdemeanor in Texas. Talk to people who know about firearms at Red River Firearms 903-893-8449, Shooters Supply 903-868-8543 or your firearms dealer to decide what is right for you. Read the statutes and become familiar with both the law and the safety issues concerning your particular weapon if you plan to carry regularly.