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Fraudulent Prescription Forms Texas

Fraudulent Prescription Form Versus Alteration of Legitimate Prescription

By | Drug Crimes

Can a Defendant Be Convicted for Using a “Fraudulent Prescription Form” When They Only Altered the Information on an Otherwise Valid Prescription?

Avery v. State, 359 S.W. 3d 230 (2012)

Fraudulent Prescription Forms TexasIn 2012, the Texas Court of Criminal Appeals released an opinion concerning whether a defendant may be convicted under Texas Health and Safety Code Section 481.129(a)(5)(B) for using a “fraudulent prescription form” when the facts showed that the defendant altered the dosage information on an otherwise valid prescription that had been written by the defendant’s physician.

The Facts — The Trial Court Denied Defendant’s Motion and Defendant was Convicted for Using a Fraudulent Prescription Form

In 2009, Defendant received a prescription for forty 2.5-milligram Lortab pills from her doctor after she complained of knee and back pain. Before dropping off the prescription at the pharmacy, Defendant attempted to scribble out the “2.5” and make it look like “7.5.” The pharmacist became suspicious and called the doctor’s office to confirm the prescription. The nurse confirmed the Defendant’s prescription was for 2.5-milligram pills and the pharmacist called the store security, who then contacted police.

During trial in which the defendant had been charged with using a fraudulent prescription form, Defendant moved for a directed verdict of acquittal. Defendant argued that, while there was evidence of forgery, there was no evidence that she used a “fraudulent prescription form” as alleged in the indictment. Defendant further argued that the prescription form was not fraudulent, but only that what the doctor wrote was altered. Therefore, there was no evidence that Defendant committed fraud by using a fraudulent prescription form.

However, the State responded that even by altering an otherwise legitimate prescription form, as Defendant did when attempting to change the dosage, Defendant had created a fraudulent prescription form. The trial court denied Defendant’s motion and the jury found Defendant guilty. Defendant was sentenced of 25 years’ confinement and a $1,500 fine.

The Court of Appeals Vacated the Trial Court’s Judgment and Entered a Verdict of Acquittal, Holding Defendant’s Actions More Closely Resembled Actions in a Different Subsection of Statute Instead of that Listed in the Indictment

Section 481.129 of the Texas Health and Safety Code governs the offense of fraud under the Texas Controlled Substances Act. According to Section 481.129(a)(5)(A), a person commits an offense if they possesses, obtains, or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

Section 481.129(a)(5)(B) differs slightly in that a person commits the offense if they possess or attempt to possess a controlled substance through the use of a fraudulent prescription form.

Section 481.075 of the Texas Health and Safety Code governs the “Official Prescription Program,” which prescribers must follow in order to prescribe Schedule II Controlled Substances. This section describes the elements of an “official prescription form” as the controlled substance prescribed as well as the quantity of that controlled substance. The State argued that since the prescriber’s written words are part of the “official prescription form,” the Defendant turned the entire document into a “fraudulent prescription form” when she altered the written words.

The Court of Appeals, however, accepted neither party’s argument in full and believed its job was to determine whether Defendant’s actions were “more” like the “misrepresentation, fraud, [or] forgery” or like the “use of a fraudulent prescription form.” The Court of Appeals determined that the action may fall under either description, but cannot fall under both. Thus, the Court of Appeals ruled that Defendant’s actions—altering the writing—more closely resembled “forgery” than the “use of a fraudulent prescription form.”

Accordingly, the Court of Appeals vacated the trial court’s judgment and entered a verdict of acquittal.

The Court of Criminal Appeals Affirmed the COA, Holding that Defendant’s Alteration of Information on the Legitimate Prescription Violated a Different Statute than that for which Indicted

The Court of Criminal Appeals first addressed factual matters in the Court of Appeals’s opinion. Beginning with discussing the original indictment, it did not specify which Schedule of controlled substance Lortab is on. The Court of Appeals identified it is a Schedule II controlled substance, but also cited to definitions that describe Lortab as a combination drug that may be Schedule III. The pharmacist’s testimony identified Defendant’s Lortab as a Schedule III controlled substance mixture.

Secondly, as a result of a different schedule drug, Section 481.075 would not be applicable as it only applies to Schedule II controlled substances and does not mention Schedule III substances. Further, there was nothing in the record that led the Court of Criminal Appeals to believe that Defendant used an “official prescription form.”

The Court of Criminal Appeals analyzed how the Court of Appeals discussed the history and intent of the statutes, and determined that, based on statutory inferences and common language, “prescription form” refers to a pre-printed form that is used to write information on it. Further, the Legislature intended to create a legal distinction between completed prescriptions and the prescription forms.

After analyzing the statute applied in the Court of Appeals, the Court of Criminal Appeals determined that Subsection (B) of Section 481.129(a)(5) only governs the use of a fraudulent prescription form. Further, the Court of Criminal Appeals ruled that the writing on the form is not an element of that offense.

In the case at hand, the State originally charged Defendant with attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented by the State adduced that Defendant fraudulently altered the information written on the legitimate prescription form. Although the evidence would have supported a conviction had Defendant been charged under another statute, the evidence does not support a conviction for the offense Defefndant was charged with.

Although the Court of Criminal Appeals disagrees with the reasoning of the Court of Appeals, it agrees in its judgment and affirms the Court of Appeals’s judgment of acquittal.

Marijuana Laws in Texas

Not Up in Smoke Yet: Marijuana Laws in Texas 2017

By | Drug Crimes

Marijuana Laws in TexasYou have seen it on the news…yet another state has legalized marijuana. It seems as if weed is everywhere, surely Texas has jumped on the bandwagon and legalized it too! Our firm receives calls from people all the time who all say the same thing; they thought marijuana was legal now. Not in Texas.

Current Marijuana Laws in Texas

Despite having been legalized in other states, possessing even a small amount of marijuana is a crime in Texas. The Texas Health and Safety Code says it is illegal for a person to knowingly or intentionally possess a usable quantity of marijuana. How much marijuana a person has in their possession will affect the level of severity of the offense.

  • Up to 2 0z– Class B Misdemeanor, punishable by up to 180 days in jail and up to a $2,000 fine
  • 2oz to 4oz– Class A misdemeanor, punishable by up to 1 year in jail and a $4,000 fine
  • 4oz to 5lbsState Jail Felony, punishable by 180 days to 2 years in jail and up to a $10,000 fine
  • 5lbs to 50lbs– 3rd Degree Felony, punishable by 2 to 10 years in jail and up to a $10,000 fine
  • 50lbs to 2000lbs– 2nd Degree Felony, punishable by 2 to 20 years in jail and up to a $10,000 fine
  • More than 2000lbs– 1st Degree Felony, punishable by 2 to 99 years in jail and up to a $50,000 fine

Proposed Texas Laws Relating to Marijuana

Texas could be a state to watch in 2017 for Marijuana law reform. Texas Senator Jose Rodriguez has introduced Senate Joint Resolution 18, which would legalize cannabis for medicinal use, and Senate Joint Resolution 17, which would allow Texans to vote on legalization of marijuana in November 2018.

There are also three different proposed bills that would lessen punishment for possession of a small amount of marijuana under one ounce. Two propose a fine only, with a third taking the offense from a Class B to a Class C misdemeanor (also fine only).

Medical Marijuana in Texas

The Texas Compassionate Use Act was signed by Governor Greg Abbot in 2015. The Act allows for individuals with intractable epilepsy to have access to CBD oil, a low THC cannabis oil. The bill prohibits smoking marijuana. Critics of the law say it is unworkable, as it requires a doctor to “prescribe” marijuana rather than recommend it as they do in other states where medical marijuana is legal. Under current federal law, a doctor “prescribing” marijuana could be open to sanctions, while one recommending the use is not. Another issue is that the ratio of THC to CBD that is allowed under the law is not potent enough to help some patients. There is potential for changes to be made to the Act during this legislative session, with proponents of the Act looking to broaden the scope and make access easier for patients.

THC Oil in Texas (Wax, Dabs, Marijuana Concentrate)

Possessing THC (tetrahydrocannabinol) oil in Texas is considered a more serious crime than simply possessing marijuana. Over the last few years, vaping THC oil, which is a concentrated version of the mind-altering component of marijuana, has become popular. Under Texas law, THC oil or wax is considered a concentrate and possessing it is a felony criminal offense.

  • Less than 1 Gram– State Jail Felony
  • 1 Gram to 4 Grams– Third Degree Felony
  • 4 to 400 Grams– Second Degree Felony
  • 400 grams or more – First Degree Felony

The law considers THC oil and wax to be in a different penalty group that marijuana, due to the higher level of THC, and consequences are much harsher. So while a typical small amount of marijuana could be punishable as a misdemeanor, even a very small amount of THC oil can be punishable as a felony.

Edible THC in Texas

The use of THC oil in edibles can be very serious. When weighing the amount of a controlled substance, the Texas Health and Safety Code includes all adulterants and dilutants in the total weight. Popular THC laced edibles like gummy candy and brownies will be weighed in their entirety, and can result in very serious felony charges.

CBD Oil in Texas

Cannabidiol (CBD) oil is made from cannabis, but is non-psychoactive. Proponents claim it can have many health benefits. CBD oil that is made from industrial hemp is legal in Texas.

Synthetic Marijuana in Texas

K2, or Spice, is a synthetic form of marijuana that is created by spraying natural herbs with chemicals meant to mimic the effects of marijuana. Synthetic Marijuana is illegal in Texas, and carries the same punishment as marijuana.

Selective Prosecution for Marijuana Offenses in Texas

The District Attorney in Harris County (Houston) has decided not to prosecute low-level possession of marijuana cases. So far, that is the only county with such a policy. Other counties have diversion programs for first-time or low level offenders. You should check with a knowledgable attorney in your local area to learn more about the diversion programs available.

In Tarrant County, depending on the circumstances of the case, a marijuana offender may qualify for the Deferred Prosecution Program (DPP) or the First Offender Drug Program (FODP). Again, you should check with an attorney to determine whether you might be eligible to participate in either program.


Regardless of whether you disagree with what the law should be in regard to marijuana in Texas, it is currently illegal to use or possess. If you are arrested for possession of marijuana, you may qualify for a diversion program that will ultimately allow you to get your record fully expunged. Contact one of our attorneys today if you have pending marijuana charges in Tarrant County. We will be happy to discuss your options and defend your case.

Emergency Aid Police Arrest Texas

Does the Emergency Aid Exception Apply to Vehicle Stops?

By | Warrantless Search

Officers Are Justified in Stopping Vehicles to Render Emergency Aid Making Evidence Found in the Process Fair Game

Emergency Aid Police Arrest TexasThe Fifth Circuit Court of Appeals recently handed down an opinion dealing with the emergency-aid warrant exception and whether that exception extends to vehicular stops. The issue facing the court was whether a traffic stop of Appellant Toussaint to warn him that a gang member had ordered a hit on him was justified under the emergency aid exception to the Fourth Amendment. The court reversed the suppression order from the trial court holding that the emergency aid exception did justify the stop because this was a proper exigent circumstance.

US v. Toussaint (5th Circuit – 2016)

The Facts—Trial Court Found the Exigent Circumstances Had Expired

An FBI agent monitoring a wiretap overheard a suspected gang-member order his associate to kill Toussaint who could be found in a specific neighborhood driving a specific car, a silver Infiniti. Immediately the agent contacted a local police officer who met with several other officers to determine the plan to locate and warn Toussaint of the hit. The officers drive to the specified neighborhood and search for silver Infinities until they find one with an occupant leaving the neighborhood. The officers follow the vehicle, observe the driver, Toussaint, speeding and pull him over. Once pulled over Toussaint flees the officers on foot until he was caught and placed under arrest. During a search of Toussaint incident to arrest officers found a pistol and a bag of crack cocaine. The amount of time between the FBI agent overhearing the initial threat and Toussaint’s arrest was about 45 minutes.

Toussaint was charged with drug and firearm violations. Toussaint filed a motion to suppress the evidence obtained from the stop arguing that the stop was not justified. The trial court granted Toussaint’s motion to suppress finding that the exigency of the emergency had expired by the time the officers stopped Toussaint.

The Court of Appeals Reversed the Trial Courts Decision—Holding the Emergency-Aid Exception Applied in this Case and the Exigency Had Not Expired

The court held that the emergency-aid exception extends to vehicular stops when under the circumstances of the need to assist persons with serious injuries or threatened with serious injury. The emergency aid exception allows officers to conduct warrantless searches or seizures when there is a need to assist persons with serious injuries or threatened with a serious injury. Stuart, 547 U.S. 398 at 483. Under this exception, officers can enter areas they otherwise are not allowed in order to help someone. While the majority of such cases involve warrantless entries into homes, the court determined that there is no logical reason to not extend the exception to vehicular stops. Additionally, looking to reasonableness, “the ultimate touchstone of the Fourth Amendment,” the court stated “the benevolent act of trying to notify a driver that his life is in danger epitomizes reasonableness.” Thus, the court held that the emergency aid exception can be used to justify a traffic stop under proper exigent circumstances.

Then, the court held that the exception applied in this case and officers were justified in stopping Toussaint. The court stated that trial courts must examine objective facts of the circumstance in determining whether there was an objectively reasonable basis for believing exigency actually existed. The officers’ subjective motivations are never relevant in the determination. When the officers received what all parties agreed was a credible threat against Toussaint, who was located in a specific neighborhood and driving a specific vehicle, the court held it was reasonable for the officers to believe there was a serious threat on Toussaint’s life. Further, that exigency still existed at the time of the stop because the threat on Toussaint’s life had not ended within the 45 minutes it took officers to locate him and warn him. Since the stop was justified the search was proper and evidence was legally obtained because it would be contrary to the needs of law enforcement to force officers to ignore evidence found when they stop vehicles to render emergency aid.

In conclusion, the court held that the emergency aid exception extends to vehicular stops and that here, the stop of Toussaint was justified under this exception because there was a serious threat on his life. Accordingly, the court reversed the suppression order because the trial court was improper in granting the motion.

Tarrant County Juvenile Drug Court Program

Help When You Need It Most: Tarrant County Juvenile Drug Court Program

By | Juvenile

Tarrant County Juvenile Drug Court ProgramLast week I wrote about things that every parent needs to know about kids and drugs. Today, I want to share with you a valuable resource to use if your child has gotten involved in drugs in Tarrant County. If your teenager has been charged in juvenile court with their first drug offense, you need to ask about the Tarrant County Juvenile Drug Court Program.

The Basics of the Program

The Drug Court Program in Tarrant County was launched in 1999. It was the first of its kind in the State of Texas. It is a voluntary program aimed at first time juvenile drug offenders. According to Tom Zaback, a Tarrant County juvenile probation officer and the supervisor of the program, 80% of the participants in Drug Court graduate the program successfully.

Juveniles in the program, and their parents, are required to commit a lot to Drug Court. This commitment to the program leads to a commitment to change, which contributes significantly to juveniles graduating from Drug Court and kicking their drug problem. While in Drug Court, which lasts for six months, juveniles and their parents will work closely with a probation officer and drug counselors in classes and groups that are tailored to meet the individual needs of each child.

The Process of the Juvenile Drug Court Program

Cases are screened automatically by the probation officers assigned to Drug Court to determine kids who may be appropriate for the program. However, if your child has been charged with a drug offense and you feel this may be a good option for him, you can ask your intake probation officer about being considered for inclusion in Drug Court.

Once a juvenile has been identified for the program, one of the Drug Court probation officers will schedule an intake with that child and his parents. During the intake appointment, the probation officer will explain the requirements of the program, get a social history from the family, and have the juvenile to take a drug test. The juvenile must also submit to a drug assessment during the screening process. This assessment will help to determine the level of that child’s drug problem and the recommended level of treatment needed. At the end of the screening, the probation officer will make a recommendation about whether that child should be allowed into Drug Court.

If a juvenile is recommended for Drug Court, the case is then sent to the Tarrant County District Attorney’s Office Juvenile Unit for prosecution. The prosecutor will review the case and file the charges with the court. The Tarrant County Juvenile Court will then schedule the case for a drug court hearing. At that hearing, the juvenile must stipulate, or admit, to the charges. The judge will enter a judgment withheld, which means that the judge will note that there is sufficient evidence to adjudicate the juvenile delinquent (or find him guilty), but will not, at that time, actually adjudicate the juvenile. The judge will then order him into the Drug Court Program.

Every juvenile in the program must come back to court for a judicial review at the 3-month mark and again at the end of the program. The purpose of this judicial review is for the judge to monitor the child’s progress in Drug Court. At the end of the six-month program, if the child has successfully completed all requirements, the judge will deny the prosecutor’s petition and order the child’s offense record to be sealed immediately. This is a huge benefit to the child because it means that he can honestly say to anyone asking in the future that he has not been charged or adjudicated for a drug offense. Sealing one’s record effectively erases it from existence.

The Requirements of the Tarrant County Juvenile Drug Court Program

As I mentioned above, while in Drug Court, a kid will be required to work with a probation officer and drug counselor to resolve any problems that he is facing with regards to drugs. There are other conditions that a juvenile in the program is required to follow, which are similar to the conditions of traditional probation. Some of these conditions are: no drugs, go to school, be honest, and attend treatment regularly. If a kid violates the terms of his Drug Court agreement, a progress report will be sent to the judge. If it is determined that a juvenile has violated the terms of the program to the extent that he is kicked out, he will be required to return to court for a disposition hearing. At this court hearing, the judge will enter a finding that the juvenile is adjudicated of the drug offense and then proceed to determine the appropriate punishment, or disposition, for the drug violation. This may result in the child being placed on traditional probation, being ordered to attend an in-patient drug treatment program, or in extreme cases, being sentenced to the Texas Juvenile Justice Department. Additionally, a driver’s license suspension will usually be ordered.

The Tarrant County Juvenile Drug Court is a wonderful program designed to help kids who are charged with a first-time drug offense. Its purpose is to help juveniles work through their drug problems while giving them a second chance to keep their juvenile record intact. The program is very successful. It requires a high level of commitment from the juveniles and parents who are in it, but that commitment is rewarded with a true change in the behavior, attitude, and lifestyle of that child. If your child is struggling with drugs, it is worth asking whether the Tarrant County Drug Court Program can help.

juvenile drug possession texas

Drugs, Kids, and Juvenile Justice in Texas

By | Juvenile

What Every Parent Needs to Know About Drug Crimes and the Juvenile Justice Process

juvenile drug possession texasOne of the most common way for teenagers to run afoul of the law is with drugs. Between peer pressure, synthetic drugs, and confusion over possession vs. ownership, there are many pitfalls surrounding the topic of drugs for kids. Many times, parents aren’t even aware their child has been exposed to drugs until that child is in trouble. Here are some basic things that every parents needs to know about kids and drugs before it’s too late.

Levels of Drug Offenses and Ranges of Punishment in Texas

In Texas, criminal offenses are divided into two major categories: Felonies and Misdemeanors, with felonies being the more serious. Except for possession of small amounts of marijuana or prescription drugs, all other drug offenses in Texas are felonies. This means that this is a very big deal if your child is arrested for drugs.

In the juvenile system, the punishment for misdemeanors ranges from nothing up to probation until that child’s 18th birthday. This probation can be served out at home. However, if appropriate, the court can order the child to a treatment facility, boys’ ranch, or some other kind of placement as part of the probation.

The punishment options for felonies in the juvenile system, like for misdemeanors, include doing nothing and probation up to a child’s 18th birthday (with or without placement outside of the home). For felonies, however, the court also can commit a child to the Texas Juvenile Justice Department (TJJD), which is the prison system in Texas for kids. A commitment to TJJD can last up until a child’s 19th birthday.

Synthetic Drugs – A Moving Target

Some of the most popular drugs in use today are synthetic or designer drugs. They go by a variety of nicknames including K2, bath salts, and Spice. These particular drugs are especially dangerous for a number of reasons. First, because they are a chemically altered variation of an illegal drug, they are legal in many cases. The legislature is still struggling to write the laws in such a way to criminalize all of these variations. As they make one chemical formula illegal, the chemists making these drugs alter it to escape prosecution. The law is making headway in this field, but it is a slow process. Because of this loophole, many of these synthetic drugs are legally sold in stores and over the internet. This makes it very easy for kids to get their hands on them.

The second reason why these drugs are particularly dangerous is because there is no way for a user to know what exactly is in the dose they are taking due to the rapidly changing chemical alterations that are being made to stay ahead of the law. The K2 your child takes today may be drastically different from the dose he took last week. There is also no way to know what side effects a specific chemical combination will have on a particular person or even the human body generally.

Part of the reason why these drugs are so popular with kids is because it is almost impossible to detect them. Because of the quickly changing chemical makeups of these drugs, it’s difficult to develop a drug test that can detect them all. Additionally, most parents have never heard of these drugs, which makes it easier for kids to get away with using them without their parents realizing what they are doing. This difficulty in detecting these drugs makes it more likely for kids to abuse these particular substances.

Prescription Drugs

Another category of drugs that has risen in popularity with teenagers is prescription drugs. These are used frequently by kids because they are easy to get their hands on. All they have to do is to go to the medicine cabinet at home and help themselves to whatever drugs are on the shelf. It doesn’t matter what the prescription is for or who it belongs to, it can be abused by kids. Teens have been known to sell and/or use pills prescribed for everything from ADD to depression to high blood pressure. When parents are unaware of the potential for kids to take these medicines, they are unlikely to secure them in order to keep them away from their teenagers. There have been several cases recently in Tarrant County where kids have been arrested at school for illegally selling or possessing a prescription drug that they took from their parents.

Ownership vs. Possession

When it comes to the drug laws, many kids are confused about the difference between ownership vs. possession. The law makes it illegal to possess drugs, regardless of who owns them. In fact, because drugs are considered “contraband,” the law doesn’t consider anyone to “own” them. Many kids, when busted for possessing drugs, will say, “But it’s not mine. I was just holding it for my friend.” They don’t understand that this means they are breaking the law, not their friend. Possession is defined as having care, custody, and control of something. This means that if you have the drugs in your pocket, you are in possession of them whether you “own” them or not.

Many “good kids” who wouldn’t dream of committing a crime will get caught holding drugs for their friends. Because they don’t understand that, if caught, they will be the guilty party and not their friend, they agree to hold onto the drugs for their buddy. It’s important that parents talk to their kids and explain this aspect of the law and the effect it can have.

Common Situations Where Kids Encounter Drugs

As I said at the beginning, drugs are a common reason why kids find themselves in the juvenile justice system and in alternative school for a period of time. It is a slippery slope that many teenagers find themselves on before they even realize what has happened. Below are some of the most common places for kids to encounter drugs.

1. School
Our kids spend a good deal of their time at school. By the time a kid gets into middle school and high school, a big chunk of their social circle is centered around school. School is also the place where they are likely to encounter a wide variety of different people. So, it’s no wonder, that it is also the place where many kids first encounter drugs. Not only do the school administrators and teachers have to be on the alert for drugs in school, but parents also need to be aware and be proactive in preparing kids to walk away when they encounter drug activity in the school environment.

2. Friends
When kids are in their preteen and teenage years, peer pressure is a very powerful force. Many kids are first exposed to drugs by their friends. Therefore, it is important, as parents, to know our kids’ friends and to be around them enough to pick up on whether these friends have a problem with drugs before our kids follow the same path. It’s also important for parents to consistently work on having that open communication with their kids so that, when the time comes, your kids can feel comfortable coming to talk to you about drugs and friends. Kids also need to know that if they are ever asked to hold onto to drugs for their friends, that they must say no, even if it means losing a friend over it.

3. Cars
Cars present a tricky scenario for kids when it comes to drugs. If your teen gets into the car with someone who has drugs, it is very possible that your child will get charged with the drugs if they are pulled over by police. When police and prosecutors are looking at who within a car to charge with possession of the drugs, they will many times look to the person who was sitting the closest to the drugs. If someone else in the car drops their stash of drugs near your child, then it may appear that your child was the one in possession.

This is a situation where parents need to talk to their children about how easy it is for them to be in a car with others and be held responsible for the actions of those other people. Kids need to be very careful about who they get into a car with. Parents need to prepare their kids to make the right decision when confronted with whether to get in a car with someone or not.


While it is common for otherwise “good kids” to get in trouble with the law when it comes to drugs, it is not inevitable. If parents take the time to educate themselves and their kids about the pitfalls that drugs can create, they can help their teenagers to avoid getting involved in the juvenile justice system.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Drug Found in Car Driver Charged with Possession

Do Drugs Found in a Car Automatically Belong to the Driver?

By | Drug Crimes

Between the Driver and Two Passengers, who is in Possession of the Drugs Found in the Middle Compartment in Plain View?

Drug Found in Car Driver Charged with PossessionThe Court of Criminal Appeals recently handed down an opinion dealing with legal sufficiency of evidence in the context of possession of a controlled substance when it was not found in the exclusive possession of the defendant. The issue facing the Court was whether Appellant Tate intentionally or knowingly possessed methamphetamine by exercising “control, management or care” of the methamphetamine and he knew it was methamphetamine. Tex. Penal Code §1.07(a)(39). The Court found that a rational jury could infer that the owner and driver of a vehicle possessed the controlled substance found in the vehicle in plain view even when there were two other passengers.

Tate v. State (Tex. Crim. App. 2016)

The Facts—Trial Court Found Sufficient Evidence

Tate was pulled over by Detective Beckham due to his outstanding warrants. When pulled over Tate had two passengers. Tate explained that he owned the vehicle but did not have any proof of ownership. Tate was arrested after officers confirmed his outstanding warrants. The police searched Tate, the two passengers, and their belongings, but did not find any weapons or contraband. During Officer Beckham’s inventory search of the vehicle, he found a syringe loaded with a substance later identified as .24 grams of methamphetamine. He found the syringe in “plain view” in a compartment underneath the air conditioner and heating controls.

Tate, the owner of the vehicle, was charged with possession of a controlled substance. At trial, Officer Beckham described the compartment as “directly to the right” of Tate, accessible to Tate and the front-seat passenger but not the backseat passenger. He also testified that even though he couldn’t tell exactly what the front-seat passenger was doing, he observed her moving a lot but never towards the compartment. Tate argued that one of the passengers put the syringe there when Tate was talking to Beckham at the rear of the vehicle. The trial court found Tate guilty, relying on Tate’s “self-purported” ownership of the vehicle and his proximity to the syringe.

The Court of Appeals Reversed the Trial Court’s Decision

The Court of Appeals held that there was “insufficient evidence to prove that Tate had intentionally and knowingly possessed methamphetamine.” The court rejected the proximity argument made by the trial court for two reasons:

  1. There was insufficient evidence to show the syringe was in the car before Tate got out.
  2. Officer Beckham observed the front-seat passenger moving a lot but couldn’t tell exactly what she was doing.

Additionally, the court said that since Tate’s ownership could not be proven it was insufficient evidence to prove possession.

The Court of Criminal Appeals Reverses the Court of Appeals—Holding Defendant’s Ownership and Control of Vehicle Where Controlled Substance was Found in Plain View and Within Defendant’s Reach is Sufficient Evidence to Convict for Possession of a Controlled Substance

The CCA held that a rational jury, with these facts, could reasonably infer that the syringe was in the car the entire time. In coming to that decision the Court relied on the fact that the jury believed Beckham’s testimony that he never saw her reach for the compartment, that the back-seat passenger could not reach it, Tate said he owned the vehicle, and that the syringe was found in plain view. Therefore, a rational jury could infer that Tate would be aware of items in his vehicle in plain view, thus find he intentionally or knowingly possessed the methamphetamine in the syringe.

In making this decision the Court relied on the Jackson standard: “Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The Court found that the court of appeals incorrectly applied this standard. The Court pointed to a few links that the jury could reasonably rely on to find Tate guilty, which include:

  1. the contraband was found in the vehicle that Tate owned and was driving;
  2. the contraband was in plain view and conveniently accessible to Tate; and
  3. the jury could reasonably believe Beckham’s testimony that the front-seat passenger did not reach over to the compartment and that the back-seat passenger could not reach the compartment.

Thus, when the standard is applied here a rational jury could find the evidence sufficient to find Tate intentionally or knowingly possessed the methamphetamine beyond a reasonable doubt.

Decision of the Criminal Court of Appeals—Evidence is Legally Sufficient Where a Rational Jury Could Infer Guild Beyond a Reasonable Doubt

The CCA found that the evidence at trial was sufficient for the jury to reasonably find Tate guilty beyond a reasonable doubt and that the court of appeals overstepped its bounds in assessing the legal-sufficiency of the evidence.

Stop and Frisk Furr v. State 2016

Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016)

By | Reasonable Suspicion, Search & Seizure

Texas Court of Criminal Appeals Upholds a Stop and Frisk Case

Stop and Frisk Furr v. State 2016Furr v. State (Tex. Crim. App. 2016)

On September 21st the Criminal Court of Appeals decided Furr v. State. In Furr, the Court held that an anonymous tip was sufficiently corroborated to establish reasonable suspicion to stop and frisk Appellant Furr. To support the stop and frisk, the court noted that Appellant:

  • watched the officer as he drove by,
  • repeatedly looked at the officer as he walked away,
  • was nervous, anxious and sort of out of it,
  • appeared under the influence of drugs, and
  • did not initially respond as to whether he was armed.

Further, the Court stated it is not per se objectively reasonable for a police officer to execute a pat down of a suspect for weapons simply because they are accused of drug possession.

The Facts of Furr v. State

Corpus Christi Police Department received an anonymous tip that two men were doing drugs on a particular street corner, one dressed in all black and the other in a black shirt carrying a brown backpack. In response, an officer drove past the street corner. He observed two men that fit the description from the tip and noticed in his rearview mirror that the men were watching him as he drove by. The officer then approached the two men but one of the men, Furr, walked away into the nearby shelter, repeatedly looking over his shoulder at the officer. The officer described Furr’s actions as furtive, “like he was trying to get away.”

When another officer arrived, the officers made contact with Furr. Furr was described as nervous, anxious, evasive, and was sweating excessively. Furr did not respond when the officers initially asked if he had any weapons on him. Officers said he appeared “kind of out of it” and “like he was under the influence of a drug. As a result, for safety reasons, officers frisked Furr for weapons and found a glass crack pipe in Furr’s front pocket. When removing the pipe, the officer also found two syringes, and after arrest, two small balloons of heroin.

Furr was charged with possession of a controlled substance. He pled guilty, reserving his right to appeal after his motion to suppress was denied. Furr argued on Appeal that officers did not have reasonable suspicion to stop and frisk him and that the trial court erred by not granting the Motion to Suppress the search.

The Court of Appeals Affirmed the Trial Courts Decision

The court of appeals held that Furr’s nervousness coupled with the observation that he seemed to be under the influence of a drug sufficiently corroborated the tip to support the investigative detention and that Furr’s failure to initially respond about being armed coupled with the other circumstances justified the frisk.

The Criminal Court of Appeals Concluded that there Was Reasonable Suspicion to Detain and Frisk Furr.

1. The Analysis of the Detention

In order to detain a person, the police officer must have reasonable suspicion based on “specific articulable facts, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). Anything that happens or that is observed before the detention will be considered in determining whether the officer indeed had reasonable suspicion to detain Furr.

Furr argued that the anonymous tip alone was not enough.  The Court, however, explains that if there had only been the anonymous tip, it would not have established reasonable suspicion, but here there was more. The Court identifies several independent observations:

  • Furr and the other man were at the specified location and matched the informant’s description.
  • The area was a “high drug, high crime” area.
  • Furr and the other man watched the officer as he drove past
  • When the officer approached the two, Furr walked away “furtively.”
  • When the officers came upon Furr in the shelter he was sweaty, nervous, anxious, and appeared out of it as if he was under the influence of a drug.

Thus, the reasonable suspicion here was not solely based on the informant’s tip, but instead that tip was corroborated by independent observations made by the police officers. Looking at the totality of these circumstances, the Court held that the officers had reasonable suspicion to stop Furr and investigate the information from the anonymous tip that Furr and the other man were using and possessing a drug.

2. The Terry Frisk

The Court rejected the State’s request to adopt a rule that it is, “per se, objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs,” because reasonable suspicion to frisk a suspect cannot be established by accusations of drug possession alone.

The Court further rejects the State’s argument that the officer was objectively justified in patting Furr down for weapons because this was outside of a homeless shelter for two reasons: 1) Nothing in the record shows that the shelter was a homeless shelter; and 2) Even if it was a homeless shelter, the Court does not see a correlation between being armed and dangerous and being at a homeless shelter.

Even so, the Court ultimately agrees with the court of appeals that reasonable suspicion was established here because the anonymous tip was corroborated by all of the circumstances surrounding the officers’ interactions with Furr. Specifically, the Court noted the tip, personal observations by the officers and the high drug, high crime area would warrant a belief that the safety of officers and others was in danger.

DISSENT – Stop and Frisk Should Have Been Held Unlawful

Judge Meyers dissented from the majority and opined that the stop and frisk of Furr was unlawful and that the motion to suppress should have been granted. Judge Meyers concluded that neither Furr’s action of looking over his shoulder or the anonymous tip, alone or combined, were sufficient to establish reasonable suspicion. Thus, there was no need to analyze the legality of the frisk. Judge Meyers believes that the majority made its decision “not based on law but on the feeling that Furr should not get relief.”

THC Controlled Substance Analogue Designer Drug

Controlled Substance Analogue Ratio Equates to Higher Federal Sentence

By | Drug Crimes

THC Controlled Substance Analogue Designer DrugSynthetic Cannabinoids became popular in the 2000’s when they were first marketed as “legal herbs.” In 2008, chemical analysis revealed that these designer drugs were more than just herbs.  The military, in particular, had a big problem with Spice and K2 (two forms of synthetic marijuana) in the late 2000’s, because they gave users a similar (or greater) high than marijuana, but they were not included in any federal schedule of controlled substances.  As these substances became more popular and widely consumed, the DEA banned their use in 2010 using emergency temporary powers and then later by placing them on Schedule I of Controlled Substance Act.

How Do Controlled Substances Analogues (Designer Drugs) Fit Into the Federal Drug Control Scheme?


United States v Malone (5th Circuit Court of Appeals – 2016)

Thomas Malone and his business partner Drew Green owned NutraGenomics Manufacturing, LLC, a distributor of JWH-018, a synthetic cannabinoid substance, also known as “Spice” and “K2” on the street. However, in 2011 federal and state legislatures banned JWH-018 and other similar designer drugs or synthetic cannabinoids. Malone and Green began selling other synthetic cannabinoids, namely, AM-2201, known as “Mr. Miyagi…a mixture of AM-2201 and vegetable material that visually resemble[s] marijuana.” Eventually, Malone and Green ordered the mass manufacture of Mr. Miyagi, selling in bulk to a distributor in Louisiana. Although labeled as potpourri, Mr. Miyagi was supposed to be smoked like marijuana.

Malone Faced Federal Indictment For Possession and Distribution of Mr. Miyagi

A federal grand jury returned an indictment, charging Malone with one count of conspiracy to distribute and possess with intent to distribute AM-2201, and, one count of conspiracy to commit money laundering. Malone decided to take a plea agreement, pleading guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, a violation of 21 U.S.C. §§846, 841(b)(1)(c), 813, 802(32)(A). The district court accepted Malone’s guilty plea of distributing not less than 1400 kilograms of AM-2201, and ordered a pre-sentence report. A pre-sentence report “PSR” is a report created by a probation office in anticipation of the punishment phase of a trial—the PSR in this case set out to determine “the base offense level using the marijuana equivalency of the most closely related controlled substance to AM-2201.”

Pre-Sentencing Report’s Mathematical Formula Indicated Severe Penalty

The PSR listed Tetrahydrocannabinol, THC, as the most closely related controlled substance to AM-2201. Further, the federal Drug Equivalency Tables indicated that a 1 to 167 ration be applied to convert the 1400 kilograms of AM-2201 into marijuana for the purpose of sentences under the federal Sentencing Guidelines. Using this mathematical equation, it was determined that Malone should be sentenced for 233,800 kilograms of marijuana—the highest level set forth by the Drug Equivalency Tables. At trial, each side put forth an expert witness arguing for and against the use of the THC and the THC ratio set forth in the PSR.

Battle of the Experts at Trial

The Government’s Expert

The Government called Dr. Jordan Trecki to testify that THC is the most closely related substance to AM-2201. Dr. Trecki relied on a scientific study “showing that both THC and AM-2201 bind to the same cannabinoid receptor” in the brain. Second, he testified about a study on rats where the rats could not tell the difference between THC and AM-2201. Third, he discussed AM-2201’s potency and effects on humans. Dr. Trecki told the court that THC and AM-2201 are close in chemical make-up and in effect on the structures of the brain. Dr. Trecki said, however, that there was no scientific basis for the 1:167 ratio.

Malone’s Expert

Malone’s attorney called Dr. Nicholas Cozzi, who stressed the importance of comparison of the two drug compounds—THC and AM-2201—in humans, not just in animals. Dr. Cozzi criticized Dr. Trecki’s analysis because Trecki “combined the results of several studies” and that the studies were not conducted on humans, rather they were animal studies. Dr. Cozzi stated that marijuana, not THC, was the most closely related substance to AM-2201 because it’s smoked and inhaled, like marijuana, and because both substances are consumed for their effect. Dr. Cozzi agreed with Dr. Trecki on one point—that the 1:167 ratio was not rooted in science.

The Big Issue Before the Fifth Circuit

Relying heavily on Dr. Trecki’s expert testimony, the District Court sentenced Malone to 117 months imprisonment and three years of supervised release following prison. The court noted that “the ratios in sentencing guidelines are often arbitrary… [however] the ratios seek to outline the relative harm of certain drugs.” Malone appeals to the Fifth Circuit Court of Appeals.

The Fifth Circuit must determine whether THC really is the most closely-related substance to the controlled substance analogue, AM-2201, and if so, whether the 1:167 ratio is a reasonable conversion for sentencing purposes.

The Fifth Circuit Weighs In

Here, the Fifth Circuit points out that the district court spent a day holding an evidentiary hearing on the equivalency of AM-2201 to other drugs, “it is significant that the district court gave this matter studied attention.” The court notes that each side had the ability to present an expert witness and to cross examine. “Nothing in the record leaves us with…the conviction that a mistake [was made].”

Second, the Fifth Circuit compares AM-2201 and marijuana, disagreeing with Dr.Cozzi’s assertion that both drugs are smoked and inhaled in the same manner. “Marijuana is not consumed way…there is no evidence that a user would smoke a pure form of AM-2201, just as a user would not smoke pure THC.”

Third, the Fifth Circuit says that the district court did not have to “engage in a piece-by-piece analysis of empirical grounding behind…[the] sentencing guidelines.” United States v. Duarte, 569 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the Court says that only the Commission on sentencing guidelines can change the guidelines, and therefore, does not rule on this issue. The Fifth Circuit agrees with the holding and reasoning of the district court—Malone’s sentence is affirmed.
*This case consolidates two cases, United States v. Malone and United States v. Green.

Movie Plot Defense Opens Door 404b

Movie Plot Defense Opens the Door to Evidence of Other Crimes

By | Drug Crimes

The Fugitive, The Doctrine of Chances, and The Texas Rules of Evidence Collide: CCA Reviews a “Movie Plot” Defense Strategy

Movie Plot Defense Opens Door 404bDabney v. State (Tex. Crim. App. 2016)

Have you ever seen a movie like The Fugitive or Double Jeopardy where the main character finds himself in suspicious circumstances, only to be arrested and convicted, with the rest of the movie focused on proving the main character’s innocence? The defense counsel in Dabney v. State used this sort of analogy as the theme of his case to the jury—that the defendant was trapped in a bad movie plot and wasn’t actually guilty of any crime.

A Mystery Meth Lab Was Constructed at the Defendant’s Home

Defense counsel made a memorable opening statement at Ronnie Dabney’s trial. Dabney had been arrested and charged with manufacturing meth. Defense counsel told the jury that the evidence would show that the meth lab found on Dabney’s property was set up by others, without his knowledge, and that Dabney arrived home mere moments before law enforcement arrived to discover the lab. Defense counsel offered a movie-plot defense theory, “Have you ever seen a movie like The Fugitive or Double Jeopardy where a person is found in suspicious circumstances and [they] arrest and convict them?” The defense added, “Ronnie Dabney has been living this movie where he’s innocent, found in suspicious circumstances, and he’s trying to prove himself not guilty.”

In response to the movie-plot defense theory, the State filed a brief arguing that it should be permitted to present evidence of a previous incident years ago, in which Dabney was present when a search warrant was executed on his property and an active meth lab was found. The State argued that the opening statements about the movie-plot amounted to a defensive theory, where evidence or mistake is at issue, worthy of a rebuttal argument supported by rebuttal evidence allowed under Rule 404(b) of the Texas Rules of Evidence.

Before trial, Dabney submitted a request for “notice” of the State’s intent to use evidence of past “extraneous” offenses under the Texas Rules of Evidence 404(b). The state failed to give proper notice of any 404(b) allegations. However, after hearing the defense opening statement, the State argued that the similarities between the case at bar and a previous case “rebutted [Dabney’s] defensive theory of accident or mistake” and requested permission to use the previous incident as 404(b) evidence to show the absence of mistake. The judge concluded the evidence of the previous crime was admissible. During closing remarks, the State averred, “[Dabney is] the unluckiest man in the world…[he] wants you to think [he] is Harrison Ford from the Fugitive…[with] a confluence of unfortunate events that frame him…but…common sense says it’s not an accident if it has happened twice…it’s the Doctrine of Chances.” Ronnie Dabney was found guilty of manufacturing meth and the jury sentenced him to 30 years imprisonment.

Dabney appealed to the Second Court of Appeals arguing the State failed to give proper notice of intent to use evidence of Dabney’s past crimes in its rebuttal argument under Texas evidentiary rules. The Fort Worth Court of Appeals reversed the trial court’s judgment, holding that the evidence of Dabney’s past crimes was inadmissible without proper notice from the State. Dabney v. State, No. 02-12-00530-CR, 2014 Tex. App. LEXIS 11496 (Tex. App.—Fort Worth, Oct. 16, 2014) (mem.op., not designated for publication). The State petitioned the Court of Criminal Appeals for review, arguing that notice is not required for rebuttal evidence because defensive theories cannot be predicted ahead of time. Dabney asserts that the State has a duty to anticipate all defensive issues that may come up in rebuttal.

The Court of Criminal Appeals considered the following issues (among others not discussed in this article):

(1) Did the court of appeals incorrectly add a “notice requirement” for rebuttal evidence?
(2) Did the court of appeals improperly ignore the overwhelming evidence of Dabney’s guilt?

Texas Evidentiary Rules Regarding Other Crimes, Wrongs, or Acts

Rule 404(b) of the Texas Rules of Evidence states

evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity [of the crime being prosecuted].” “However, [such evidence] may be admissible for other purposes, such as…intent, preparation…knowledge…absence of mistake or accident, provided that upon timely request by the [defendant], reasonable notice is given in advance of trial of intent to introduce in the State’s case.

A defense opening statement can open the door for the admission of extraneous-offense evidence to rebut the defensive theory presented in opening statements. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The Doctrine of Chances tells [the court] that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” LaPaz v. State, 279 S.W. 3d 336, 347 (Tex. Crim. App. 2009).

Rule 404(b) is a rule of inclusion, rather than of exclusions—it excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that bad character. Id. at 343.

The CCA Holds that the Court of Appeals Improperly Added a Notice Requirement for Rebuttal Evidence

Here, the CCA reversed the decision of the court of appeals, holding that the court of appeals improperly added a notice requirement for rebuttal evidence and ignored the overwhelming evidence pointing to Dabney’s guilt. Because of the exception to the notice requirement when the defense opens the door to rebuttal evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence, the evidence of the prior crime was proper at trial, even without notice to defense beforehand. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of any trial, any and all potential defenses that a defendant may raise.” Also, there was no evidence that the prosecution acted in bad faith, or attempted to willfully avoid a discovery order. “Under the Doctrine of Chances, [Dabney’s] defense that he found himself in an unfortunate, highly unlikely situation becomes less credible when presented with evidence that he has been found in the exact same situation before.”

In sum, [Dabney] presented his defensive theory in opening statements and the State could use extraneous-offense evidence to rebut this theory in its case-in-chief, instead of waiting until the defense rested. Bass at 563. Defendants who are planning to use the “movie plot” defensive theory in the future, must be prepared to have the theory tested in front of a jury with 404(b) rebuttal evidence of other crimes, wrongs, or acts.

Reasonable Suspicion Brodnex Texas 2016

Turns Out That Walking Late at Night in a High-Crime Area Is Not Criminal Activity

By | Reasonable Suspicion, Search & Seizure

Reasonable Suspicion Brodnex Texas 2016Frequently the public’s perception as to what officers can and cannot do during encounters is convoluted and even wrong. Many people are unaware of what their 4th Amendment rights actually afford them when it comes to contact with police officers. First, it’s important to know that an officer is completely free to approach whomever he wants and have a consensual encounter with someone whether or not he has a specific reason. However, an officer cannot detain you on a simple hunch, the police officer must have reasonable suspicion of criminal activity. Then comes the question of what exactly is reasonable suspicion.

What is Reasonable Suspicion?

According to Fourth Amendment law, reasonable suspicion exists when there are specific articulable facts that, when combined with rational inferences from the facts, would lead a reasonable officer to believe crime was afoot. The police officer must have more than a hunch that a crime was in progress. If a police officer detains, frisks, or searches someone without reasonable suspicion that officer has violated the 4th Amendment and evidence coming from that unlawful detention must be suppressed.

The 4th Amendment in Action – Brodnex v State of Texas (2016)

In a case just decided by the Court of Criminal Appeals of Texas, the Court overturned a conviction because it found the officer did not have reasonable suspicion to detain the defendant, thus, violating the 4th Amendment.

In Brodnex v. State, the defendant was arrested and convicted of possession of a controlled substance. The arresting officer observed Brodnex and a female walking in an area known for narcotic activity around 2 a.m.. The officer approached the two individuals, asked them their names and what they were doing. When Brodnex identified himself, the officer asked him “Didn’t you just get picked up?” and Brodnex replied “Hell no.” The Officer then searched Brodnex and found a cigar tube with crack cocaine.

The Officer’s reasons for detaining Brodnex were:

  • The time of day;
  • The area’s known narcotic activity, and
  • His belief, based on what other officers had told him, that Brodnex was a “known criminal.”

Brodnex filed a motion to suppress challenging both the stop and search. The trial court denied the motion and the appellate court affirmed.

The CCA Overturns the Conviction for Lack of Reasonable Suspicion

The Court of Criminal Appeals of Texas held that Brodnex was illegally detained because at the time of detention, under the totality of the circumstances, the facts apparent to the officer “did not provide him with a reasonable suspicion for the detention.” Therefore, the crack cocaine should have been suppressed. The court’s holding relied on the fact that the officer had simply seen Brodnex walking, not doing anything that would suggest he was engaged or about to engage in criminal activity. Additionally, the court found that the officer’s limited personal knowledge of Brodnex’s criminal history was not enough to support the belief that Brodnex was lying about not being picked up.

Know Your Rights

This case explains that the officer must have sufficient information that links the suspect to a particular crime before reasonable suspicion exists. While the time of day and high-crime area are factors that Texas courts consider, those alone are insufficient to develop reasonable suspicion. Since reasonable suspicion is based on the totality of the circumstances, it is often not completely clear as to whether a particular set of facts rises to the level of reasonable suspicion.

If you are facing criminal charges that resulted from a detention or search that might not have been supported by reasonable suspicion, any evidence found from might be able to be suppressed. Contact our criminal defense team today to discuss your case and determine whether a reasonable suspicion issue is present.

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