Annual Reading of the Declaration of Independence

Every year I organize an annual reading of the United States' Declaration of Independence. The Conroe Courier reported on this year's reading here. I hope you enjoy and have a safe and happy Independence Day.

Warrantless Searches of Vehicles in Texas-The Automobile Exception to the 4th Amendment

An opinion was just released by the 9th Court of Appeals in Texas that explains when an officer may search your vehicle and why in Texas.

Here is the applicable discussion

Applicable Law

Pursuant to the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within an exception to the requirement for a warrant. Arizona v. Gant , 556 U.S. 332, 338  (2009); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). The “automobile exception” allows for the warrantless search of a vehicle “if it is readily mobile and there is probable cause to believe that it contains contraband.” see Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017); Keehn v. State , 279 S.W.3d 330, 335 (Tex. Crim. App. 2009); see also United States v. Ross, 456 U.S. 798, 825 (1982) (police may search a vehicle if they have probable cause to believe it contains evidence of a crime)...See California v. Carney, 471 U.S. 386, 391-92 (1985)(explaining that the “automobile exception” to the requirement of a warrant applies when a vehicle is being used on the highways). Probable cause exists when “the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime." Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972); see also Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). “Probable cause requires an evaluation of probabilities, and probabilities ‘are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Wiede, 214 S.W.3d at 24(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). If the totality of the circumstances demonstrate a “fair probability” of finding evidence at the location being searched, then the probable cause standard is met. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006). A court may consider “the training, knowledge, and experience of law enforcement officials” involved in the warrantless search. See Wiede, 214 S.W.3d at 25. Only a “minimal level of objective justification” on the part of the officer is required, and our “determination of reasonable suspicion must be based upon commonsense judgments and inferences about human behavior.” See Illinois v. Wardlow, 528 U.S. 119, 125 (2000); United States v. Sokolow, 490 U.S. 17 (1989)(quoting Immigration & Naturalization Serv. v. Dalgado, 466 U.S. 210, 217 (1984)).

"Possession" vs. "Ownership" of a Controlled Substance/Marijuana in Texas

One of the most often heard statements from someone charge with possession of a controlled substance or marijuana in Texas is that it "wasn't mine." This post will explain what "possession" means in the context of being charged with possession of a controlled substance or marijuana in Texas.

In Texas, to be convicted with Possession of a Controlled Substance, a prosecutor must be able to prove beyond a reasonable doubt: a person commits an offense if the person knowingly or intentionally possesses a controlled substance as indicated in Texas Health and Safety Code Chapter 481, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

In Texas, to be convicted with Possession of Marijuana, a prosecutor must be able to prove beyond a reasonable doubt:  a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana. 

"Possession" means actual care, custody, control, or management. If you will notice, no where in that definition does it contain the word "owner" or "ownership." For purposes of Possession of a Controlled Substance or Marijuana in Texas, ownership is not one of the elements that a prosecutor must prove, only "possession" which means actual care, custody, control, or management. So, if you find yourself charged with possession of a controlled substance or marijuana try not to focus so much on who the substance belonged to but can the prosecutor prove beyond a reasonable doubt that the substance was in your actual care, custody, control, or management. Or, in other words, in your possession.

Misdemeanor Punishment Ranges in Texas

If you find yourself charged with a misdemeanor offense there are several possible punishment ranges. In Texas, there are three possible classes of misdemeanors. There are Class A Misdemeanors, Class B Misdemeanors, and Class C Misdemeanors. This post will focus on Class A and Class B Misdemeanors. Class C Misdemeanors are generally punishable by a fine only, however, the amount of the possible fine varies by the type of offense and exceeds the scope of this post. See below for the maximum fine possible for a Class C Misdemeanor, though, it may vary based the particular offense charged.

An individual adjudged guilty of a Class B misdemeanor shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement. These punishments may also be suspended and a person placed on community supervision (probation) or deferred adjudication community supervision (probation). 

An individual adjudged guilty of a Class A Misdemeanor shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement. These punishments may also be suspended and a person placed on community supervision (probation) or deferred adjudication community supervision (probation).

An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

If it is shown on the trial of a Class A misdemeanor that the defendant has been before convicted of a Class A misdemeanor or any degree of felony, on conviction he shall be punished by:

(1) a fine not to exceed $4,000;

(2) confinement in jail for any term of not more than one year or less than 90 days; or

(3) both such fine and confinement.

(b) If it is shown on the trial of a Class B misdemeanor that the defendant has been before convicted of a Class A or Class B misdemeanor or any degree of felony, on conviction he shall be punished by:

(1) a fine not to exceed $2,000;

(2) confinement in jail for any term of not more than 180 days or less than 30 days; or

(3) both such fine and confinement.

(c) If it is shown on the trial of an offense punishable as a Class C misdemeanor under Section 42.01(disorderly conduct) or 49.02(public intoxication) that the defendant has been before convicted under either of those sections three times or three times for any combination of those offenses and each prior offense was committed in the 24 months preceding the date of commission of the instant offense, the defendant shall be punished by:

(1) a fine not to exceed $2,000;

(2) confinement in jail for a term not to exceed 180 days; or

(3) both such fine and confinement.

(d) If the punishment scheme for an offense contains a specific enhancement provision increasing punishment for a defendant who has previously been convicted of the offense, the specific enhancement provision controls over this section.