News and Insights

What Does it Mean to Be in Knowing Possession of Drugs in Texas?

Police found George Williams sitting behind an air conditioner unit of a business building. Even though it was a cool morning, Williams had his shirt off and was sweating profusely. After doing a pat-down of Williams, police found a crack pipe in his pocket that was later determined to have cocaine residue in it by police and a chemist.

The Trial Court convicted Williams of knowingly possessing a controlled substance. The elements are:

1. that appellant exercised actual care, control and management over the contraband; and
2. that appellant had knowledge that the substance in his possession was contraband.

The 14th Court of Appeals (Houston) wanted to look further to see whether the evidence would support a reasonable inference that the defendant knowingly possessed the contraband. When the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance.

Read the Case:  Williams v. State (14th District Court of Appeals - Houston, 2015)

In other cases, the defendant was convicted because the State proved that there was saliva on the crack pipe, suggesting that it had recently been smoked and that the defendant was intoxicated at the time the police found him. Another example is a defendant being found in a well-known drug house holding a syringe with cocaine in it in a manner that he was about to insert, or had just inserted it, into his body.

In this case, the Court of Appeals found that the only evidence was that Williams had his shirt off and was sweating. The Court of Appeals held that this was not enough to prove Williams had recently used the pipe or knew of its purpose as a crack pipe. The Court of Appeals reversed this case in the favor of Williams.

This signals that it takes more than just merely being found with a pipe containing trace amounts of a drug to be convicted of knowingly possessing the drug. There must be more evidence such as intoxication, recent usage, or being found in a known drug house.

Fort Worth Drug Crimes Attorneys | Free Case Consultation

If you have been charged with possession of a controlled substance or any other drug crimes, contact our attorney today for a Free consultation of your case. We will take the time to speak with you about the incident and answer your questions about the criminal justice process in Tarrant County. Contact our office at (817) 993-9249.

Driving in the “Passing Only” Left Lane for Forty-Five Seconds Creates Reasonable Suspicion for Warrantless Traffic Stop in Texas

Jaganathan v. State: Francheska Jaganathan was driving in the left lane of a three-lane Texas highway, just ahead of a police cruiser. Mounted with a dashboard camera, the cruiser accelerated and changed lanes, but stayed behind Jaganathan’s car. A few seconds later, Jaganathan’s car passed a “Left Lane for Passing Only Sign,” yet her vehicle continued in the left lane despite the middle lane being clear of traffic. About forty-five seconds later, the trooper turned on his overhead lights, and conducted a traffic stop of Jaganathan’s car. During the traffic stop, the trooper smelled marijuana, prompting a search of the vehicle. The trooper found marijuana in the trunk, and as a result, Jaganathan was charged with possession of marijuana.

At trial, Jaganathan filed a motion to suppress the evidence, but the court denied the motion. Jaganathan chose a plea agreement where she pled guilty and was placed on deferred adjudication. On appeal, Jaganathan argued that the trooper lacked reasonable suspicion to conduct the traffic stop in the first place. The court of appeals agreed with her, stating that Jaganathan likely stayed in the left lane for safety reasons, that seeing the cruiser may have influenced her decision to stay out of the trooper’s way, and that a few seconds were an insufficient amount of time “to conclude that [Jaganathan] committed a [traffic] violation.”

The Court of Criminal Appeals of Texas disagrees with the court of appeals, citing the reasonable suspicion standard in Texas, and the Texas Transportation Code. The Court of Criminal Appeals also clarifies the issue at hand.

The issue is not whether Jaganathan committed a traffic offense, but whether the trooper had reasonable suspicion to stop the vehicle.

First, “A trooper may make a warrantless traffic stop if the reasonable suspicion standard is satisfied.” Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). “Reasonable suspicion exists if the trooper has specific and articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged …in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

Second, “an operator of a motor vehicle [must] comply with an applicable official traffic-control device, including a sign.” TEX. TRANSP. CODE § 544.004(a); § 541.304(1). “Before a trooper can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a “Left Lane for Passing Only” sign, the trooper must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over.” Abney, 394 S.W.3d at 549.

Here, Jaganathan was driving in the left lane without passing other cars, after driving past a sign that prohibited that conduct. The dashboard camera captured the sign and all of the movements of the car. According to the Court of Criminal Appeals, even if Jaganathan had a defense of necessity—she HAD to be in the left lane for a medical or traffic emergency—the trooper still had reasonable suspicion to conduct a traffic stop. The Court of Criminal Appeals states, “these were only possibilities, and so it was reasonable for [the trooper] to suspect the appellant had violated the law.” Further, the reasonable suspicion standard “accepts the risk that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). As a result of the forty-five second traffic violation, the trooper had reasonable suspicion to pull Jaganathan’s car over; and, as a result of smelling marijuana, the trooper was able to search the car without a warrant, resulting in charges against Jaganathan. The Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

It is important to note, however, that the ruling has a dissenting opinion. Justice Meyers is adamant that the sign and the Transportation Code supporting it are problematic for the following reasons:

• The Code is unclear on how to comply or not comply with the sign.
• The Code does not state a specific amount of time a driver has to pass and merge back into the non-passing lane.
• The Code does not address passing a string of cars, in the middle lane.
• The Code does not address the need to accelerate to be able to pass, whether intended or unintended (for example if the car being passed speeds up, making passing difficult).
• Proving a driver’s intent to pass another car is difficult.

If you or a loved one are facing traffic violations or drug charges, please contact our office for a free consultation at (817) 993-9249.

Renowned Trial Lawyer, Vincent Bugliosi, Explains One of His Theories About Cross-Examination

In 2011, I had the privilege of escorting the late Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized.  Mr. Bugliosi, 76 years old, was best known as the prosecutor that put Charles Manson away.  He was also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, 'Till Death Us Do Part, and Outrage.  He would tell you, however, that his proudest moment was his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy.  Other than this mock trial, Gerry Spence boasts a perfect trial record.

One of the things about which Mr. Bugliosi spoke was cross-examination.  He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action.  Lawyers are warned that they should never allow a witness to explain themselves on cross.  Well, Mr. Bugliosi did not exactly agree with that maxim.  Here's what he had to say on the subject:

Even if I do not ask "why," the lawyer who called the witness, if alert, will do so on redirect.  The witness has then often had a court recess or perhaps overnight to think up the very best answer to the "why" question.  I would much rather force the witness to answer on cross, not giving him extra time to fabricate.

Although both lawyers can avoid asking the "why" question and, as in some other situations, "save for final argument" the implications of the witness' testimony, by that late point in the trial the witness' reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.

The "why" question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn't first blocked off possible and anticipated escape hatches.  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell.  When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well.  So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable.  But a witness can't go somewhere when he has nowhere to go.

If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action.  The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the "why" question.  If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.

Mr. Bugliosi made sure to caveat that we should never ask the "why" question unless all possible escape hatches have been blocked off.  He was truly an outstanding speaker on this and many more topics.  His true crime books are excellent and are highly recommended for all criminal trial lawyers out there.  Vincent Bugliosi passed away on June 6, 2015.

Attempted Transfer of Explicit Video of Self to a Minor (Sexting) Amounts to a ‘Sexual Act’ Resulting in Registration on the Sex Offender Registry

United States v. Schofield - (5th Circuit Court of Appeals, 2015)

Should a person be ordered to register as a sex offender for sending explicit video to a minor (sexting), but never physically touching the victim? The Fifth Circuit Court of Appeals says yes.

In November 2013, twenty-four year old Nick Schofield began sending text messages to a fifteen-year-old girl. They sent text messages for four months, when an undercover federal agent assumed the girl’s side of the conversation. Believing he was still communicating with the girl, Schofield sent the undercover agent sexually explicit photos and videos of himself. A grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, violations of 18 U.S.C. § 1470. In his plea agreement, Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor, and the other counts were dismissed at sentencing.

The district court sentenced Schofield to two years imprisonment and ordered him to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). The purpose of SORNA is to establish a national sex offender registry, “to protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. Under SORNA, a convicted sex offender must register his current address and employer’s address.

At trial, Schofield objected to the registration requirement of his sentencing. Schofield appealed to the Fifth Circuit Court of Appeals, contending (1) that the crime of attempted transfer of obscene material to a minor was not a sex act under SORNA and (2) that the statutory definition of a sex offense as a “criminal offense against a minor” was an unconstitutionally vague, all-encompassing residual clause.

First, the Court stated the purpose of SORNA is to “cast a wide net to ensnare as many child offenders as possible.” United States v Dodge, 597 F.3d 1347. The wide net was meant to apply to as many offenses against children that make sense according to the plain language and plain meaning of the statute. The Court also quoted an Eleventh Circuit case dealing with similar facts and charges. The Eleventh Circuit held that the 18 U.S.C. § 1470 intended “[not] to exclude certain offenses but rather to expand the scope of offenses that meet the statutory criteria.” Id. In short, the Fifth Circuit Court of Appeals held that the crime of attempted transfer of obscene material to a minor, was in fact, a sex act under SORNA’s plain language, structure, legislative history, and purpose.

Second, the Court found that Schofield’s conduct in sending the explicit video to a fifteen-year-old girl falls within the SORNA residual clause, noting, “the key is conduct that contains a sexual component toward a minor.” Because Schofield’s conduct “engaged with” a young girl in a sexual manner, the Court held that his conduct includes a sexual component toward a minor, falling under SORNA’s residual clause. The Court reiterated, “Judges do not need a statute to spell out every instance of conduct that is a sexual offense against a minor.” Id.

The Fifth Circuit Court of Appeals held that the language of SORNA’s residual clause was intentionally vague, with the purpose of including as many criminal offenses as possible. Even though the Defendant did not have physical contact with the girl, he was deemed by the Court to have behaved in a sexual manner, which amounted to a sexual act requiring registry on the sex offender registry. If you or a loved one is facing a sexual or computer crimes charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249.

Dallas Fort Worth Bail Bond Scam

Public Service Announcement:  Attorneys beware that your clients could be the target of a Bail Bond scam that is going around.  There is a person with a Florida phone number (352-210-7464) that is calling criminal defendants in the DFW area claiming to be a representative from their bail bond office.  The caller then claims that the person (who is typically in good standing) owes some amount of money to the bail bondsman.  The caller then threatens to go off the bond if the person does not pay immediately.

This happened to one of our clients yesterday and we called the number to investigate and quickly uncovered the scam.  Please let your clients know that this is going around so that they are not fooled if they get a similar call.