The Criminal Defense Blog

 

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In Texas, self-defense is an "affirmartive defense. That means that in order to be found not guilty, the defendant bears the burden of proving to the jury that the "person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a). 

In ESCOBEDO v. STATE, No. 04-18-00712-CR, 2019 WL 2518165, at *2 (Tex. App. June 19, 2019), Escobedo appealed the jury's rejection of her self-defense claim. Escobedo asserts the evidence established the alleged victim had her trapped between the car door and the frame and attempted to drive away. Accordingly, Escobedo contends the evidence establishes she made “a proper and correct split second decision to use minimal force against Ms. Sciaraffa” in order to “free herself.”

[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a). In this case, the jury was instructed that the State was required to prove Escobedo's conduct was not justified by self-defense by proving beyond a reasonable doubt that: (1) Escobedo did not believe her conduct was immediately necessary to protect herself against Sciaraffa's use or attempted use of unlawful force; or (2) Escobedo's belief was not reasonable. The appeal court held that after reviewing all of the evidence in the light most favorable to the prosecution, the jury rationally could have rejected Escobedo's self-defense claim.
 

 

On Monday, June 10, 2019, Governor Greg Abbott signed into law HB 1325 relating to the production and regulation of hemp. The Act immediately went into effect after Governor Abbott signed it because it received at least two-thirds “yes” votes in both the Texas State House and the Texas State Senate. Now that hemp is “legal” in Texas, many unanswered questions remain as to how the Act will be implemented. 

Below is a short summary of some critical sections of HB 1325. This short summary is by no means an exhaustive list of all the requirements set forth under the Act. It is therefore highly recommended that you either carefully read the Act or seek out the advice of a qualified lawyer to determine whether you are acting in compliance with the Texas’ new hemp law.  Here are some of the key provisions: 

  1. HB 1325 defines “hemp” asCannabis sativa L.(any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol  (THC) concentration of not more than 0.3 percent on a dry weight basis).
  1. The Act amended Schedules I through V of Sections 481.002(5) and (26) of the Texas Health and Safety Code to remove hemp from the list of controlled substances. Hemp that falls within the definition set forth in the Act is therefore no longer classified as controlled substance and punishable as a felony offense under Texas law. 
  1. To accomplish this declassification, Texas also amended the definition of “marihuana,” under § 481.002 (26), to exclude “hemp, as that term is defined by Section 121.001, Agriculture Code.” This means that hemp, which is sourced in compliance with the Act and has a THC level of no more than 0.3, is no longer subject to criminal prosecution in Texas. 
  1. As discussed below, that does not mean that you can now run out and buy hemp seeds and start planting them in the ground. There is an implementation process that must begin before hemp can legally be planted and cultivated in Texas.
  1. 443.204(3) of the Act prohibits smokable hemp products from being processed or manufactured. Sec. 443.001(11) defines “smoking” as “burning or igniting a substance and inhaling the smoke or heating a substance and inhaling the resulting vapor or aerosol. Although the Act itself does not address the retail sale of such products, this section suggests that Texas may later impose regulations under the catch-all regulation provisions of Sec. 121.004 that prohibit the sale or possession of smokable hemp in in either liquid or herb form.Stay tuned for more on this.
  1. Now that the Act is law, the Texas Department of Agriculture has 90 days from its effective date to submit a plan for hemp cultivation and processing to the USDA for approval. Once that plan is approved, the Texas Department of Agriculture has 30 days (or “as soon as practicable” thereafter) to “fully implement the plan”. That means the Texas Department of Agriculture must “as soon as practicable” implement procedures to guide Texas farmers on how to obtain a license to grow hemp. A license MUST be obtained to legally grow hemp in Texas. Until such a plan and licensing procedure is approved and implemented by the Texas Department of Agriculture, hemp cannot be cultivated or handled in Texas. Sec. 443.101 states that “[a] person may not process hemp or manufacture a consumable hemp product in this state unless the person holds a license under this subchapter.”
  1. In addition, consumable hemp products containing cannabidiols (i.e., CBD oils), which are sourced in compliance this Act and contain less than 0.3% THC, now appear to be legal in Texas. Whether or not existing consumable hemp products in the marketplace are in compliance with the Act, however, requires a very careful reading of HB 1325. That’s because as noted below, the Act imposes new packaging and labeling requirements on consumable hemp products. 443.2025 states that “[a] person may not sell consumable hemp products containing cannabidiol [CBD] at retail in this state unless the person registers with the department each location owned, operated, or controlled by the person at which those products are sold.”  Sec. 443.205 of the Act lists the packaging and labeling requirements for hemp-derived products. Sec. 443.205(6) requires the label to certify that the hemp-derived product contains a THC concentration of nor more than 0.3. Sec. 443.206 of the Act requires that the sale of out-of-state consumable hemp products must be in compliance with USDA hemp standards and those set forth under Sec. 443.151 of the Act. If there is any doubt as to whether a CBD product is in compliance, it is best to seek out the advice of competent and experienced legal counsel.
  1. In order to avoid arbitrary enforcement of hemp laws across the state, Section 122.002 prohibits any municipality, county, or other political subdivision in the state from enacting or enforcing any rule, ordinance, resolution or other regulation that prohibits the “cultivation, handling, transportation, or sale of hemp as authorized by this chapter.” This will likely protect farmers and landowners from local rules and zoning ordinances aimed at preventing hemp from being grown. It remains to be seen, however, whether this provision will also protect consumable hemp retailers from local regulation. 
  1. The Act also provides some guidance to retailers concerning CBD inventory. Section 11 of the Act notes that “[n]otwithstanding Chapter 443, … a retailer may possess, transport, or sell a consumable hemp product, as defined by Section 443.001, … that becomes part of the retailer’s inventory before rules under Section 443.051 … become effective UNLESS the product: (1) is unsafe for consumption based on the presence or quantity of heavy metals, pesticides, harmful microorganisms, or residual solvents;” or (2) has a THC level of more than 0.3 percent. 
  1. Section 12 of the Act adds that, “[n]otwithstanding Section 443.2025, … a person is not required to register a location to sell a consumable hemp product containing cannabidiol at retail in this state before the 60thday after the date the Department of State Health Services begins issuing registrations.” This provision suggests that there is a 60-day grace period to register a retail location after the Department “begins” issuing registrations. It will of course be the responsibility of the merchant to know when that period “begins” and when that 60-day clock starts ticking. It is currently unclear how the Texas Department of State Health Services and the Texas DPS will regulate and enforce the retail sale of CBD oils and other consumable hemp products. It would therefore be best to consult an attorney who has a working knowledge of the new Texas hemp law and the State’s proposed implementation process in order to avoid possible civil or criminal penalties. 

In closing, the Texas Hemp Act presents exciting opportunities for Texas retailers, consumers and farmers. It is unclear, however, how the Texas Health, DPS and Agriculture Departments will address the rule-making, licensing and compliance sides of the Act. If would like to receive further updates on HB 1325, including its implantation or enforcement, please subscribe to the Texas THC Lawyer Blog. 

 

In a recent case, Tilghman v. State, No. 03-17-00803-CR (June 7, 2019), the appeal court addressed the issue of whether consent obtained by "acquiescence to a claim of lawful authority" by police is sufficennt consent to justify a search by police. The court noted that: 

Consent is a "jealously and carefully drawn" exception to the warrant requirement. Georgia v. Randolph, 547 U.S. 103, 109 (2006). "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id. at 548-49; see Carmouche, 10 S.W.3d at 331. Moreover, consent is not voluntarily given when it is "the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). The voluntariness of consent "is a question of fact to be determined from the totality of all the circumstances." Id. at 227. "[I]f under all the circumstances it has appeared that the consent was not given voluntarily-that it was coerced by threats or force, or granted only in submission to a claim of lawful authority-then . . . the consent [is] invalid and the search unreasonable." Id. at 233. "Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given." Carmouche, 10 S.W.3d at 331 (citing State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997)).

In Tilghman, the police made an unlawful entry into a hotel room. The police obtained the consent of one of the guests after gaining unlawful entry into the hotel room. The couret noted that the following factors should be considered in this analysis include: (1) the temporal proximity between the unlawful entry and the given consent; (2) whether the unlawful entry brought about police observation of the particular object for which consent was sought; (3) whether the search or seizure resulted from flagrant police misconduct; (4) whether the consent was volunteered or requested; (5) whether the person consenting was made fully aware of the right to refuse consent; and (6) whether the police purpose underlying the illegality was to obtain the consent. See Orosco, 394 S.W.3d at 75 (citing Brick, 738 S.W.2d at 680-81). The Tilghman court concluded that officers obtained the consent to search the hotel room after gaining unlawful entry and based upon the Brick factors noted above, that consent was not valid because it was no more than acquiescence to a claim of lawful authority. 

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Think your fists are not a deadly weapon? Think again. In a recent Texas case, a defendnat punched a correctional officer in the side of his head and knocked him unconscious. A Bowie County jury found the Defendant's fists were deadly weapons and convicted him of aggravated assault against a security officer while in the performance of his duties.  BRYAN WHITE, Appellant v. THE STATE OF TEXAS, Appellee, No. 06-18-00205-CR, 2019 WL 2307360, at *1 (Tex. App. May 31, 2019)

 

The bill to end the unpopular Driver Responsibility Program, which adds annual surcharges on top of traffic fines — and prompts the suspension of millions of driver's licenses — sailed through the upper chamber. If the measure becomes law, pending surcharges will be dropped.

Criminal justice advocates have been pushing for years to pass a bill that would have limited the misdemeanor offenses for which someone can be arrested — including traffic infractions that are only punishable by fines  Currenlty, Texas police officerws can legally arrest people for misdemeanors that are punishable with only a fine, like most traffic violations. House Bill 2754 would limit that practice, so officers could only arrest people for specific fine-only misdemeanors including public intoxication, assault or voyeurism.

Texas farmers have taken another step closer to growing hemp today after the state’s senate voted in favor of legislation which will legalize the cultivation of hemp. The bill now heads to Gov. Greg Abbott's desk for his signature. HB 1325, authored by Rep. Tracy King, has sailed through each vote it has faced with very little opposition.

This is such a great article discussing the possible benefits that hemp could bring to our struggling farmers in Texas. Here's the full text. 

Take a trip down the aisle of the nearest Whole Foods Market and it won’t take long to fill a shopping basket with products trumpeting the health and beauty benefits of a commodity Texas farmers are forbidden to grow: hemp.

Lotions, shampoos and shower gels boasting hemp’s essential oils and antioxidants. Shelled seeds, or hemp hearts, promising bigger boosts of protein and omega fatty acids than chia or flax seeds. Boxes of non-dairy hemp milk touting vitamins, minerals and amino acids for healthy hearts and glowing skin. All in packaging that if not displaying the leaves of the long-taboo cannabis plant itself is inevitably splashed with hearty doses of green.

There already are more than 25,000 identified uses for hemp, ranging from health foods and nutraceuticals to clothing, car dashboards, biodegradable plastics and construction materials like “hempcrete.” With the nation’s farm incomes near a 12-year low, it’s no wonder Texas growers want in on a market that’s expected to explode nearly sixfold to $1.65 billion in the U.S. alone by 2021.

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“Making money from farming has gotten harder and harder every year and it it’s just another crop that gives me something else to grow,” said Jeff Williams, a West Texas rancher who raises alfalfa, corn and winter cereal grains near Fort Stockton. He envisions not only growing hemp but also investing in a co-op to process it.

“I raise cattle. And you know who makes ultimately the most money year in, year out is the slaughterhouses,” he added. “The producers, the feeders, we’re at the bottom of the totem pole. For me this is such a monumental new industry, and to be able to jump in at the ground floor and not only grow but produce products, to be able to have both sides of that chain, is one of the most exciting things.”

Whether that becomes a reality depends on the Texas Legislature.

Hemp is a variety of the cannabis genus, as is marijuana, but the two plants are distinctly different. Hemp grows tall and spindly, while marijuana is shorter and densely packed. More importantly, hemp has nominal amounts of THC, the psychoactive compound that caused cannabis to become illegal during the Depression era.

Yet while hemp can’t get you high, proponents say many lawmakers in this conservative state are fearful a vote to legalize hemp would be a vote to legalize pot.

Under a provision of the 2014 farm bill, 40 other states already allow farmers to grow hemp as part of pilot programs with universities or state departments of agriculture.

U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, whose bluegrass state once led the nation in hemp production, got wide bipartisan support for his 2018 farm bill provision to decriminalize hemp.

The measure would remove hemp from the Controlled Substances Act, which in 1970 classified marijuana (and hemp) as a Schedule 1 drug along with heroin, peyote and MDMA (ecstasy). It also would make growers eligible for crop insurance. Senate Minority Leader Chuck Schumer, a New York Democrat, cosponsored the bill.

“It’s Mitch McConnell’s bill but it’s cosponsored by Chuck Schumer as well as three dozen other senators,” Jonathan Miller, a Kentucky lawyer who serves as general counsel for the U.S. Hemp Roundtable, told members of the Texas House Agriculture & Livestock Committee during an interim hearing in July. “Can you imagine there’s any other issue than motherhood and apple pie that Mitch McConnell and Chuck Schumer agree on? But they’re both out there excitedly promoting this, which is a sign of true excitement of the industry.”

Kentucky’s pilot program has already resulted in about $17 million in gross product sales generating $7.5 million for hemp farmers and nearly 100 new full-time jobs. That’s a welcome development for farmers who have seen demand for tobacco steadily decline.

Hemp is not mentioned in the House version of the farm bill.

House Agriculture Committee chairman U.S. Rep. Mike Conaway, R-Midland, has said he is fine with it as long as it doesn’t cost crucial votes on a package that includes contentious work requirements for food stamp recipients that make up the bulk of the five-year spending plan.

“When it was over on the House side because of the food stamp issue the bill passed by only two votes,” Miller said. “They didn’t want to bring up the hemp issue because if it lost two votes then it would kill the bill.”

The two chambers will begin hammering out their differences in conference committee when House members return from their August recess.

Even if passed, the federal legislation would not pre-empt state laws.

Some Texas lawmakers already are convinced hemp production should be allowed in Texas. Legalization measures passed out of the state agriculture committee unanimously in both 2015 and 2017. But that’s as far as the effort got.

The Texas GOP’s 2018 platform supports legalization of hemp, and state Democrats’ 2018 platform supports legalization of recreational marijuana.

But so far, the only cannabis provision to make it into law is strictly regulated use of cannabidiol, or CBD, for treatment of intractable epilepsy. The allowance, known as the Compassionate Use Act, is so narrow Texas is not listed as one of the 30 states that allow medical-use marijuana.

“You’ve got this momentum going, but we have to somehow get these legislators beyond this knee-jerk response that hemp is marijuana and it’s going to cause everybody to become dopeheads and stuff,” said Laurance Armour, a Wharton farmer who thinks hemp could be a viable and less thirsty alternative to rice in a region whose sandy soils won’t sustain most row crops.

Rice farmers in the region were without water from 2012 to 2015 as drought conditions led the Lower Colorado River Authority to hold back water for reservoirs in Austin.

Cotton farmers also are interested in hemp as an alternative or rotator crop. According to Shawn Hauser, an attorney with the American Hemp Campaign, the per-acre value of hemp production is around $21,000 from seeds and $12,500 from stalks. As of May 1, the gross per-acre value for cotton and cotton seed was $637.

“Given Texas’ size, agricultural infrastructure, friendly business climate and low cost of resources,” she said, “we could likely be the biggest producer of all the states.”

Coleman Hemphill, chairman of the Texas Hemp Industries Association, said hemp’s advantages include the relatively time it takes to reach harvest, 60 to 90 days compared to about a 160 days for cotton.

“Just that reduced time frame is going to reduce a lot of the liabilities with the crop and the water consumption,” Hemphill said. “It’s not a silver bullet by any means, but it is resilient.”

Armour, the Wharton farmer, had just been at a water use luncheon with state Sen. Lois Kolkhorst, R-Brenham, who he said didn’t know of the difference between hemp and marijuana.

“It’s sort of the misconception that people have who are in a position to do something about legalizing it,” Armour said. “She said, ‘Well, what if you smoke it?’ I said, ‘Well, you’ll get a cough and a sore throat.’”

Asked to comment, Kolkhorst noted that she voted in favor of the 2015 Compassionate Use Act.

“In 2015, Texas enacted the Compassionate Use Act, which I supported to give some doctors the ability to prescribe low-THC cannabis for patients who have epilepsy,” she said. “In terms of expanding the conversation, federal law has traditionally included hemp within the same category as marijuana, but some states are experimenting with industrial hemp farming. I am confident Texas will continue to study this issue and listen to all sides of the debate during the next legislative session.”

Another common objection is that marijuana could end up hidden in hemp fields.

It’s an argument that’s quickly debunked, as cross pollination with hemp weakens marijuana’s THC content.

“The marijuana growers don’t get along with the hemp growers,” said Rick Trojan of Colorado Cultivars, the largest hemp farm in Colorado. “People that are growing high THC outdoors, they run the risk of having pollination and that crop ruined.”

Texas lawmakers largely have been mum about their positions on hemp legalization. Conaway’s office did not respond to an inquiry on whether he’d support hemp, nor did any of the five Texas congress members named to the farm bill conference committee.

Hemp, one of the oldest crops known to mankind, is believed to have originated some 10,000 years ago in Central Asia and arrived in America on board the Mayflower. The British Empire compelled colonists to grow hemp for such maritime uses as hempen ropes and canvas for sails. The Declaration of Independence was written on hemp paper. It was grown by both George Washington and Thomas Jefferson.

Accounts of why cannabis was essentially prohibited in 1937 vary, to include the theory Harry Anslinger, who led the Department of Prohibition, was looking for something new to ban after the prohibition on alcohol was repealed. Another popular explanation links prohibition to fears that minority groups were spreading a substance that incited madness and violence.

Elsewhere hemp has continued to be grown.

According to the Congressional Research Service, hemp imports to the United States totaled $67.3 million in 2017.

Ninety percent of the imports came from Canada. Other suppliers included China, Romania and other European countries, India, the Dominican Republic and Chile. The U.S. is the only industrialized nation to prohibit cultivating hemp.

“We currently cannot grow it but we can import it, said Jim Reaves of the Texas Farm Bureau, which is against legalizing marijuana but is for legalization of hemp. “We eat it, we make clothes out of it, we make all sorts of stuff out of it. ... I mean it’s grown in other states, this is a no-brainer.”

“We’ve been doing a lot of education just to make sure everybody understands this is not a bad thing,” Reaves added. “Over the last four years, we’ve had a 50 percent drop in gains from our crops and our crop production. This would give our farmers additional revenue, especially in some of those bad years.”

 

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In an historic resolution, the World Health Organization (WHO) Expert Committee on Drug Dependence just recommended that “preparations considered to be pure CBD should not be scheduled within the International Drug Control Conventions.”
 
Some key findings from the WHO:

  • There are no case reports of abuse or dependence relating to the use of pure CBD.”
  •  “No public health problems have been associated with CBD use.”
  • “CBD has been found to be generally well tolerated with a good safety profile.”
  •  “There is no evidence that CBD is liable to similar abuse and similar ill-effects as substances…such as cannabis or THC.”

 

On the eve of passage of the Farm Act of 2018 and the Hemp Amendment through Congress, the DEA has raided a vape shop in Amarillo and seized CBD oil. Texas Health has still yet to make a decision on whether it too will begin to seize CBD oil. This is a troubling day for advocates of Hemp based products. CBD oil contains a fractional amount of THC, if any, and in has none of the hallucinogenic affects of cannabis. Stay tuned for updates.  

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