Intent to Deliver and Organized Crime Charges

Drug charges can quickly escalate from allegations of simple possession to participation in “organized crime.” Indeed, the Texas Penal Code describes a specific offense known as “engaging in organized criminal activity.” This applies to a scenario where the defendant participates “in a combination or in the profits of a combination or as a member of a criminal street gang” to commit one or more “predicate” offenses, including the “unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug.”

Distinguishing Between Manufacture, Delivery, and Possession with Intent

The Texas Court of Criminal Appeals recently clarified the scope of this particular predicate offense. In Hughitt v. State, prosecutors in Brown County charged the defendant with violating the organized crime statute, citing “the offense of possession of a controlled substance with intent to deliver” as the predicate crime.

To give some additional background, the Brown County sheriff’s office suspected the defendant and her boyfriend were running a meth lab. Law enforcement subsequently executed a search warrant for the defendant’s home. During the search, the officers found the defendant “in a bedroom with about one gram of meth and a glass pipe under her clothes.”

Prior to trial, the defendant moved to dismiss the indictment, arguing that possession with intent to deliver was not a predicate offense under the organized crime law. That is to say, she was not “engaging in organized criminal activity” as defined by the statute. The trial judge rejected this argument. A jury ultimately convicted the defendant and sentenced her to 18 years in prison.

The Court of Criminal Appeals reversed the conviction, however, and dismissed the indictment. Upholding an intermediary appellate court’s prior ruling, the Court of Criminal Appeals noted that the organized crime law specified the applicable predicate offense as the unlawful “manufacture” or “delivery” of illegal drugs. There was no reference to “possession” with the “intent” to deliver.

Before the appeals court, the state argued that “possession with intent to deliver” should be treated as part of the broader category of crimes involving the “manufacture” or “delivery” of drugs. The Court of Criminal Appeals disagreed. For one thing, the offenses of “manufacturing and possession with intent to deliver do not have a common focus.” Manufacturing refers to production, while possession-with-intent refers to potential delivery.

And on that point, the Court noted that “delivery” requires an “act of transfer.” Possession with intent, in contrast, does not. They are therefore distinct offenses. And in any case, if the Texas legislature had intended to specifically include possession with intent as a predicate offense, it could have done so.

Speak with a League City or Galveston Drug Crimes Defense Lawyer Today

The Hughitt decision is an important victory for the rule of law in Texas. Prosecutors should not be allowed to charge defendants with crimes that are not expressly defined as such in state law.

If you have been charged with a drug crime and need assistance from a qualified Houston criminal defense attorney, contact the Law Offices of Tad Nelson & Associates today. Call (281) 280-0100.