Court of Criminal Appeals Throws Out “Non-Existent” Drug Conspiracy Conviction

March 5th, 2020 by Tad Nelson in Drug Crime

There are scenarios where prosecutors elect to treat drug offenses, such as possession with intent to deliver, as part of a larger criminal conspiracy. The Texas Penal Code expressly authorizes prosecutions for “engaging in organized criminal activity,”, which carries potentially harsher jail terms for defendants if convicted. But the mere fact that a person is guilty of a “predicate offense” such as possession does not automatically mean they committed criminal conspiracy.

Defendant May Still Be Guilty of “Lesser” Offense of Possession with Intent to Deliver

Indeed, the Texas Court of Criminal Appeals recently had to sort out a situation where a defendant in a drug case was improperly charged with criminal conspiracy.

Here is what happened. The defendant was living in a house that local police considered a “major distribution point” for illegal drugs. One night, some intruders broke into the house and a gunfight ensued. One of the intruders was killed.

According to police surveillance video taken just after the shootout, the defendant “made several trips outside.” During one of those trips, she “carried a bag of more than 400 grams of dihydrocodeinone pills to an Infiniti parked outside.” Dihydrocodeinone is the chemical name for a common opioid, which is classified as a controlled substance in Texas.

After arriving at the scene, police conducted a search of the house and recovered a “large amount of controlled substances and drug paraphernalia,” according to court records. The police also found the pills that the defendant had previously delivered to the Infiniti.

Prosecutors charged the defendant with engaging in organized criminal activity, with a predicate offense of possession of a controlled substance. Later, the indictment was amended to state the defendant possessed a controlled substance “with intent to deliver.” The jury could have elected to convict the defendant only on the “lesser” offense of possession but instead found her guilty of the “greater” offense of organized criminal activity.

An intermediate appeals court found the trial court improperly instructed the jury and ordered a new trial. The prosecution then asked the Court of Criminal Appeals to review the intermediate court’s decision. The Court of Criminal Appeals agreed to the prosecution’s request and focused its analysis on whether the intermediate court could “reform” the judgment to reflect a conviction of the lesser offense.

What does that mean? As noted above, organized criminal activity requires a “predicate offense” of some sort. In a prior decision, the Court of Criminal Appeals held that possession “with intent to deliver” is not such a predicate offense unless the state can prove–beyond a reasonable doubt–that the defendant obtained the drugs in question “through forgery, fraud, misrepresentation, or deception.” But the jury never received this instruction. More to the point, the indictment itself did not refer to any “forgery, fraud, misrepresentation, or deception.” So the defendant was never properly charged with a predicate offense–and therefore the organized criminal activity allegation was “non-existent.”

That being said, there was evidence introduced at trial proving the defendant committed the “lesser” offense of possession with intent to deliver. The Court of Criminal Appeals, therefore, returned the case to the intermediate court, with instructions to determine whether said evidence was sufficient to “reform” the jury’s verdict to reflect a conviction solely on the lesser charge.

Get Legal Advice from a Drug Crimes Defense Lawyer in Houston, Galveston or League City

The Court of Criminal Appeals’ decision makes it clear that there are limits to a prosecutor’s ability to invoke organized criminal activity statutes to strong-arm drug defendants. If you have been charged with any drug-related offense and need representation from a qualified Houston criminal defense attorney, contact the Law Offices of Tad Nelson & Associates today


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