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A person commits the offense of possession with intent to deliver a controlled substance if she knowingly possesses a drug with the intent to deliver it. See HEALTH & SAFETY § 481.112(a). Possession is defined as "actual care, custody, control, or management." PENAL § 1.07(a)(39). To prove unlawful possession of a controlled substance, the State must show (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015). The evidence must establish that the accused's connection with the drugs is more than just her fortuitous proximity to someone else's drugs. Id. at 405-06.

Hughitt v. State, No. 11-15-00277-CR, at *8-9 (Tex. App. Oct. 31, 2017).

Controlled substances are categorized into Penalty Groups based on their potential for abuse, medical use, and safety. The severity of the penalties depends on the Penalty Group classification, the quantity of the substance, and any prior convictions. For example, pursuant to Section 481.112 - Offense: Manufacture or Delivery of Substance in Penalty Group 1, an offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. " Tex. Health & Safety Code Ann. § 481.112(d).

The Concept of Joint Possession

Joint possession is a legal concept that refers to a situation where two or more individuals have control over a controlled substance. This can be either actual or constructive possession.

Actual possession refers to a situation where an individual has direct, physical control over the controlled substance. For example, if someone has drugs in their pocket, they have actual possession.

Constructive possession, on the other hand, involves situations where an individual does not have direct, physical control but has the power and intent to exercise control over the substance. This can occur when an individual has knowledge of the substance's presence and has the ability to access it, such as when drugs are stored in a shared living space.

Establishing Joint Possession in Texas

To prove joint possession, the prosecution must demonstrate that:

  1. The defendant had knowledge of the controlled substance's presence.

  2. The defendant had control over the controlled substance, either actual or constructive.

  3. The defendant shared control over the controlled substance with another person or persons.

Evidence that may be used to establish joint possession includes:

  • Testimony from witnesses who observed the defendants sharing or using the controlled substance together.

  • The presence of the defendants' personal belongings or paraphernalia near the controlled substance.

  • Communication records, such as text messages or phone calls, indicating knowledge and control of the controlled substance.

Courts have identified the following factors as affirmative links that may establish an accused's knowing possession of a controlled substance: (1) the accused's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the accused's proximity to, and the accessibility of, the contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed narcotics or other contraband when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the accused owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. Many of these same factors have been used by courts to determine if a person possessed a controlled substance with the intent to deliver. See Guttery v. State, No. 11-12-00160-CR, 2014 WL 3398144, at *2-3 (Tex. App.—Eastland July 10, 2014, pet. ref'd).

Hughitt v. State, No. 11-15-00277-CR, at *10 n.4 (Tex. App. Oct. 31, 2017)

Defenses to Joint Possession Charges

Several defenses can be raised against joint possession charges, including:

  1. Lack of knowledge: The defendant may argue that they were unaware of the presence of the controlled substance.

  2. Lack of control: The defendant may contend that they did not have control over the controlled substance or the ability to access it.

  3. Mere presence: Being present at the location where the controlled substance is found does not automatically establish possession. The defendant may argue that they were merely present and had no knowledge or control over the substance.

As we explained, the "affirmative links" rule

is designed to protect an innocent bystander from conviction based solely upon his mere presence in the vicinity of someone else's drugs. It recognizes that a defendant who is not in exclusive possession of the place where the controlled substance was found may not have knowledge of and control over the drugs; in such cases, additional independent facts and circumstances beyond mere presence must link him to the drugs.

Beltran De La Torre v. State, No. 01-17-00218-CR, at *11 (Tex. App. Aug. 13, 2020).

Courts have recognized several factors tending to establish affirmative links, including: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and accessibility of the contraband; (4) whether the defendant possessed other contraband when arrested; (5) whether other contraband or drug paraphernalia were present; (6) whether the conduct of the defendant indicated a consciousness of guilt; and (7) whether the accused was observed in a suspicious area under suspicious circumstances.

Kersey v. State, No. 08-20-00037-CR, at *13 n.3 (Tex. App. Dec. 10, 2021)

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only. DangeloLegal Blog 

 

Under Texas law, a person can be charged with evading arrest or detention if they intentionally flee from a peace officer or federal special investigator who is attempting to lawfully arrest or detain them. This offense is outlined in Section 38.04(a) of the Texas Penal Code. Section 38.04

The severity of the offense depends on a few different factors. Generally, evading arrest or detention is considered a Class A misdemeanor. However, if the actor has been previously convicted under this section, it becomes a state jail felony. Additionally, if the actor uses a vehicle or watercraft while fleeing and has not been previously convicted under this section, it also becomes a state jail felony.

If the actor uses a vehicle or watercraft while fleeing and has been previously convicted under this section, or if someone suffers serious bodily injury as a direct result of the officer's attempt to apprehend the actor, it becomes a felony of the third degree. And, if someone suffers death as a direct result of the officer's attempt to apprehend the actor, it becomes a felony of the second degree.

It's important to note that a tire deflation device is also considered a factor in determining the severity of the offense. If the actor uses a tire deflation device against the officer while fleeing, it becomes a felony of the third degree. And, if someone suffers serious bodily injury as a direct result of the actor's use of a tire deflation device while fleeing, it becomes a felony of the second degree.

In order for an individual to be convicted of evading arrest or detention, the prosecution must prove that the defendant knew the person chasing them was a peace officer or federal special investigator, and that the officer was attempting to lawfully arrest or detain them. Additionally, the prosecution must prove that the defendant intentionally fled from the officer.

In Texas, fleeing and eluding in a motor vehicle is a criminal offense that involves a driver intentionally attempting to evade a law enforcement officer who is attempting to conduct a traffic stop or arrest. The elements of the offense of fleeing and eluding in a motor vehicle in Texas are as follows:

  1. The defendant was operating a motor vehicle on a public roadway;
  2. A law enforcement officer gave a visual or audible signal to the defendant to bring the vehicle to a stop or submit to arrest;
  3. The defendant knew that the signal was given by a law enforcement officer;
  4. The defendant intentionally fled or attempted to elude the officer;
  5. The defendant's flight or attempted flight was for the purpose of evading arrest or detention.

Tyler Criminal Defense Lawyer Carlo D'Angelo

An officer's decision to detain a person must be based on more than just a hunch, according to the U.S. Supreme Court case of Terry v. Ohio. In that case, the Court held that the officer must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." This means that the officer must be able to offer "some minimal level of objective justification for making the stop."

In United States v. Sokolow, the Supreme Court reiterated that an officer must have some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This objective manifestation must be based on a totality of the circumstances and raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

In evaluating whether reasonable particularized suspicion exists to conduct a Terry stop, two elements must be satisfied. First, the assessment must be based on a totality of the circumstances. Second, the circumstances together must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo 

The entrapment defense is a legal principle that can protect individuals who have been charged with a crime that they would not have committed if not for the actions of the government or law enforcement officials. This defense has been recognized by the United States Supreme Court in a number of cases, including Jacobson v. United States and Glover v. United States.

In Jacobson, the Supreme Court stated that the entrapment defense protects an "otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." This means that the entrapment defense is designed to protect individuals who are not predisposed to committing a crime, but who are induced to do so by the government or law enforcement officials.

The entrapment defense has two key elements: government inducement and a lack of predisposition on the part of the defendant to engage in the criminal conduct. This means that in order for the entrapment defense to be successful, the defendant must be able to demonstrate that the government or law enforcement officials induced them to commit the crime, and that they were not predisposed to committing the crime on their own.

When a government informant buys drugs from a defendant, the defendant can show inducement by pointing to "evidence of reluctance" to sell the drugs or the informant's use of "persuasive overtures," beyond those "ordinarily present in a drug transaction." This means that if the defendant can demonstrate that they were hesitant to sell drugs or that the government informant used tactics beyond what is typically used in a drug transaction, they may be able to prove government inducement.

However, even if the defendant is able to prove government inducement, the government can rebut by demonstrating that the defendant was nevertheless predisposed to commit the crime. This means that if the government can show that the defendant was willing and able to commit the crime on their own, even without government intervention, the entrapment defense may not be successful.

In conclusion, the entrapment defense can be a powerful tool for individuals who have been charged with a crime that they would not have committed if not for the actions of the government or law enforcement officials. However, the success of this defense depends on the ability of the defendant to prove government inducement and a lack of predisposition on their part.

This blog post is strictly for infomrational purpose only and should in no way be considered legal advice. If you have a specific legal question about the entrapment defense, you should seek out the advice of a criminal defense attonrey. 

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo 

On March 2, 2023, Deputy Attorney General Lisa Monaco delivered Remarks at American Bar Association National Institute on White Collar Crime and crypto crime remains an enforcement priority for the DOJ. Lisa Monaco delivered Remarks at American Bar Association National Institute on White Collar Crime

"And we’re doubling down on the successful strategies we have deployed to attack cyber and crypto crime, to harness all tools across government to pursue prevention, deterrence and accountability."

"Now, since I returned to the department, I’ve also looked for ways to expand the resources available to the department’s prosecutors to address the evolution of corporate crime."

"And last year, we stood up the National Cryptocurrency Enforcement Team (NCET) and the FBI’s Virtual Asset Unit (VAU)."

"Now, these investments have already been paying off — whether you look at the over $5 billion in cryptocurrency recovered last year or the prosecutions we have brought against dozens of crypto criminals."

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo 

Wire fraud is a serious crime under federal law that occurs when someone uses electronic communication to carry out a fraudulent scheme. Wire fraud can involve a wide range of fraudulent activities, such as phishing scams, investment fraud, and internet auction fraud. The use of electronic communication in carrying out these schemes can include emails, phone calls, faxes, or other forms of communication.

Federal law criminalizes wire fraud under 18 U.S.C. § 1343, which states that anyone who "having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire...in interstate or foreign commerce" is guilty of a crime. This statute covers a wide range of fraudulent activities, including those that occur across state or international borders.

To prove wire fraud under 18 U.S.C. § 1343, the government must establish two elements. The first element is a "scheme to defraud," which refers to a plan or course of action designed to deceive others for financial gain. The scheme must be intentional and fraudulent, meaning that the defendant must have intended to deceive the victim. The second element is the use of wire communications to further the scheme. This means that the defendant must have used electronic communication, such as email or phone calls, to carry out or advance the fraudulent scheme.

It is important to note that the scheme referenced in the first element of 18 U.S.C. § 1341 must be designed to deprive the alleged victim of money or property. This means that the scheme must involve a plan to obtain something of value from the victim through fraudulent means. The victim can be an individual, a company, or a government agency.

Wire fraud is a serious offense that can result in severe penalties, including fines and imprisonment. In addition, a conviction for wire fraud can have long-lasting consequences, such as damage to one's reputation and difficulty finding employment. If you are facing charges for wire fraud, it is essential to consult with an experienced criminal defense attorney who can help you understand your rights and options for defending against these charges.

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo 

Possession of methamphetamine with intent to distribute is a serious offense that carries severe penalties under federal law. To convict a defendant for this offense, the government must prove three elements: knowledge, possession, and intent to distribute. In this blog post, we will discuss these elements and their importance in the conviction of possession of methamphetamine with intent to distribute.

Element 1: Knowledge

The first element of the offense is knowledge. The government must prove that the defendant knew that they were in possession of methamphetamine. This means that the defendant was aware of the presence of methamphetamine and knew that it was a controlled substance. Knowledge can be established by showing that the defendant was found in close proximity to the drugs, had control over the drugs, or made statements indicating knowledge of the drugs.

Element 2: Possession

The second element of the offense is possession. The government must prove that the defendant had actual or constructive possession of the methamphetamine. Actual possession means that the defendant physically held or controlled the drugs. Constructive possession means that the defendant had the ability to exercise control over the drugs, even if they were not physically present. For example, if the drugs were found in a vehicle that the defendant was driving, the government may argue that the defendant had constructive possession of the drugs.

Element 3: Intent to Distribute

The third element of the offense is intent to distribute. The government must prove that the defendant possessed the methamphetamine with the intent to distribute it. Intent can be established by showing that the defendant had a large quantity of drugs, drug paraphernalia, or other evidence indicating that the drugs were intended for distribution. Additionally, evidence of the defendant's involvement in drug transactions or conversations related to drug distribution can be used to support an intent to distribute charge.

Tyler Texas Criminal Defense Lawyer Carlo D'Angelo 

Possession of a firearm in furtherance of a drug trafficking crime is a serious offense that carries severe penalties under federal law. The government must prove that the firearm was possessed in a manner that advanced or furthered the drug trafficking offense. This requirement is outlined in 18 U.S.C. § 924(c)(1).

To support a conviction for possession of a firearm in furtherance of a drug trafficking crime, the government must demonstrate that the possession of the firearm advanced or helped to further the drug trafficking offense. This can be established by showing that the firearm was used to protect drugs or drug proceeds, intimidate others, or to facilitate the distribution or sale of drugs.

For example, if an individual is caught with a firearm and a large quantity of drugs, the government may argue that the firearm was used to protect the drugs and facilitate their distribution. In another scenario, if an individual is caught with a firearm and cash that is suspected to be drug proceeds, the government may argue that the firearm was used to protect the cash.

It is important to note that the possession of a firearm does not need to be the only evidence presented to support a conviction for possession of a firearm in furtherance of a drug trafficking crime. Other evidence, such as drug paraphernalia, witness testimony, or surveillance footage, may also be used to establish the connection between the firearm and the drug trafficking offense.

The penalties for possession of a firearm in furtherance of a drug trafficking crime are severe. A conviction for this offense carries a mandatory minimum sentence of five years in prison, which must be served consecutively to any other sentence imposed for the underlying drug trafficking offense. Additionally, a fine may be imposed up to $250,000.

 

It was recently reported that a judge in Colombia conducted a metaverse court hearing. I watched some of that hearing on YouTube. If I closed my eyes, I felt like I was in a typical Zoom court proceeding. But when I opened my eyes, I was looking at a virtual representation of a judge presiding over a virtual courtroom full of virtual lawyers and litigants.  Colombian Metaverse Court Hearing 

Prior to COVID-19, courts permitted remote hearings under very limited circumstances. That changed with the pandemic. The total shutdown of the justice system triggered by COVID-19 caused a massive backlog of civil and criminal cases. Judges were therefore forced to find alternative ways to preside over cases.

This urgent need to conduct the court’s business, while in the midst of a global pandemic, most certainly accelerated the mass adoption by judges of Zoom and other video conferencing services. In an effort to keep the court’s functioning during the pandemic, hearings were scheduled on virtual dockets and the lawyers, parties, and witnesses were provided links and instructions on how to appear remotely. But these remote hearings presented new challenges. All involved in the process had to adapt to the muting and unmuting of mics, camera settings for video feeds and dropped parties due to spotty internet connections.

Although this process works well for moving dockets and conducting court hearings, it is not well suited for jury trials. Although some courts experimented with conducting jury trials remotely, these remote trials created additional challenges and concerns. Having juries appear remotely to hear cases is simply not the same as being present for a live in-person trial. Lawyers are unable to pick up on subtle visual cues or potential juror bias during the jury selection and trial proceedings. Moreover, jurors are unable to fully assess the credibility of witness testimony on a video screen as well as they could if that witness were testifying in open court.  Another problem with virtual trials is that lawyers are limited in how effectively they can question testifying witnesses. There is simply no way to pick up on in-person verbal and non-verbal cues via a remote video feed.

While it may be possible to overcome these issues in a civil trial—especially with the consent of the parties—virtual criminal trials raise additional concerns.   In a virtual criminal jury trial, there are also significant fundamental constitutional rights at stake. Under the Sixth Amendment to the United States Constitution, a defendant has right to be “present” at trial and the right to “confront” the prosecution’s witnesses. These rights are obviously significantly curtailed in a virtual jury trial. Although there are rare exceptional circumstances when virtual testimony might be allowed in a criminal trial, a totally virtual criminal trial may very likely trigger a denial of the defendant’s constitutional right to a fair trial.

I do believe courts will continue to hold virtual hearings to address procedural matters in criminal cases, but I am unsure whether we will ever see virtual criminal trials involving cases where a person’s freedom is at stake. There are simply too many constitutional issues that would likely come up on appeal if the defendant is convicted.

My dear friend and colleague in the #Web3 world, Ira Rothken, posted that he and a team of lawyers recently filed a petition with the Supreme Court of the United States challenging whether remove witness testimony via the “metaverse” may violate a defendant’s Sixth Amendment constitutional right to confront her accuser.Ira Rothken Twitter Post

As bullish as I am on the future of Web3 technology, I think there are still many challenges that must be overcome before courts adopt metaverse trials and hearings. While on the surface, there may not appear to be any difference between a Zoom-like virtual court hearing and a metaverse AR/VR court hearing, I do see some potential distinctions worth discussing.

One critical difference is that on a Zoom-like hearing, the court can at least see the face of the testifying witnesses. If a witness is testifying through a digital avatar—even an avatar that looks strikingly similar to the witness—that raises issues over the true identity of the person testifying.  I suppose in theory, a soul-bound token could securely confirm that the avatar testifying on the virtual witness stand is in-fact that same individual in real life, but we are a long way off from mainstream adoption of that sort of on-chain proof of identity protocol. 

Testimony through a VR Avatar also makes it impossible for the court and the lawyers to weigh the credibility of the witness through observable social cues such as facial expressions and body language. As difficult as it is in Zoom-like virtual court hearings to read body language and visual cues, it would impossible to observe and evaluate those behaviors on a 2D virtual witness. As good as AR avatars might someday become at replicating facial and body language, they will never replace the subtle perceptions we make during human-to-human interactions.

My initial feeling after watching the Colombian metaverse trial is that courtroom virtual avatars don’t evoke the same emotional response as what we experience in-person court proceedings. Try this thought experiment: Watch this clip of the reading of the guilty verdict in the now infamous Alex Murdaugh murder trial. Take note of the emotions you feel as you witness the verdict being read and Murdaugh’s reaction to the guilty verdict. Now, close your eyes and play the clip again. This time, imagine how your eye would perceive the same experience if the courtroom was filed with computer generated avatars. Would you feel the same emotional response? Probably not. That’s the potential danger of metaverse jury trials. Could a metavrse trial sanitize, and even dehumanize, the raw and emotional drama of in-person court proceedings? And if so, would that impact the fairness of trials? Murdaugh Jury Verdict

The 2D avatars in the Colombian metaverse trial simply don’t lend any substance to the hearing. I couldn’t sense any of the social cues that I would normally rely up in making tactical changes to my arguments in court. As I watched the Colombian court hearing, I couldn’t help but wonder if the judge seem to agree with counsel’s argument or did she raise a brow? Did the opposing party fidget in her seat as the lawyer put on his case? Did opposing counsel tip their hand about the strength of their case?  Yes, digital mouths were moving and arms and hands were waving about in that virtual Colombian courtroom, but was any of it comprehensible on a human level? In my opinion, it was not.  

As I litigator, I have made it my life’s work to passionately advocate on behalf of my clients. I feel like advocating through a digital avatar takes something raw and emotionally vital away from that experience. It feels artificial, because well, it is artificial.

I recently gave and interview with CoinTelegraph discussing the good, the bad and the future of metaverse court dockets. Although I think there is a possible future use-case for virtual metaverse hearings, I don’t see metaverse jury trials happening anytime soon. There are simply too many potential points of failure in the process that the tech must still overcome. Only when the immersive metaverse experience is indistinguishable from an IRL court hearing, will we see judges consider approving the adoption of this technology. CoinTelegraph Article 

Even if the AR/VR technology reaches that fully immersive level, I still think trial lawyers will have concerns that jurors who are sitting behind virtual avatars might be potentially bored at having to look at a screen all day. How would the parties know if a juror fell asleep during the trial? Lawyers will also be concerned that jurors are multi-tasking during critical stages of the case. Even more alarming, lawyers will worry that the jurors might be sitting at home and doing real-time independent computer research instead of paying attention to the evidence coming from the witnesses stand. That’s a definite no-no in an IRL jury trial and could be a deal-breaker for the adoption of remote metaverse jury trials. These concerns coupled with the lack of an ability for lawyers and jurors to truly assess the credibility of witness testimony from behind the mask of a virtual avatar, also make the prospect of metaverse trials unlikely to happen in the near future.

Could advancements in VR and AR immersive technologies change all this? Of course. As a lawyer and technologist I am all in favor of innovation that will advance the legal profession forward. But that innovation cannot come at the expense of a fair trial. While I can easily foresee a future where small claims, traffic tickets and other informal court proceedings and procedural matters might be conducted in virtual metaverse courtrooms, I think that future will largely depend on the mass adoption of AR/VR by the general public. It will be of no use to hold metaverse court proceedings if the tools necessary to participate in the process are not universally available and adopted by the masses. When lawyers, judges and the public are all comfortable putting on an AR/VR headset and jumping into metaverse worlds, then maybe, just maybe we will see metaverse hearings start to show up on court dockets.  Crypto Criminal Defense Lawyer Blogpost

The Secondary Marketplace for "stolen NFTs just got a little more complicated with Blur's recent announcement that they have enabled trading of previously "flagged" NFTs. Here’s a link to the full conversation that’s available on Apple Podcasts and Spotify. 

LexLine Episode 126

 

https://open.substack.com/pub/cryptocriminaldefenselawyer/p/flagged-nfts-whats-the-deal?r=1px4pf&utm_campaign=post&utm_medium=web

 

  1. Flagged NFTs & Digital Asset Loans
  2. To Flag or Not to Flag? When It Comes to Stolen NFTs, That is the Question
  3. CEO Of Cryptocurrency And Forex Trading Platform Pleads Guilty To Over $240 Million Scheme To Defraud Investors
  4. The Hermes v. MetaBirkin NFTs Jury Verdict: LexLine: Episode 119
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