September 27, 2019

Court of Criminal Appeals

Hughitt v. State

No. PD-0275-18                 9/25/19


Is possession of a controlled substance with intent to deliver a valid predicate offense for engaging in organized criminal activity?

Holding (Newell, J.):

No. Possession with intent to deliver is not a valid predicate offense under §71.02(a) of the Penal Code because the plain meaning of “manufacture, delivery” requires more than “possession with intent to deliver.” The Court looked to the text of §71.02(a)(5) and concluded that the legislature’s use of the word “manufacture” was not a reference to the distinct offense of “possession with intent to deliver.” Additionally, the Court indicated that reading “delivery” to reference the offense of “possession with intent to deliver” would be inconsistent with both the Health & Safety Code’s definition of “deliver” and standard dictionary definitions of “delivery.” Read Opinion.


This case presented an interesting issue of how to read current statutory language in light of a related statute that changed over time. The Court found a solution that minimized the changes and supported its holding that the plain language of the statute did not allow this prosecution. Veteran court watchers are thinking, “another statutory construction case?” Yep. Prosecutors crafting indictments for engaging cases need to read the statute carefully to ensure that their underlying offense actually works—some are listed by description of the crime, some by section number, and some by chapter number.

De La Torre v. State

No. PD-0561-18                 9/18/19


Does including a non-statutory jury instruction on “joint possession” and “mere-presence” in a drug possession prosecution where several individuals were near the drugs constitute improper comments on the weight of the evidence?

Holding (Slaughter, J.):

Yes. Both “joint possession” and “mere-presence” instructions constitute improper comments on the weight of the evidence because the instructions are unnecessary to clarify the applicable law and draw the jury’s attention to evidence supporting a particular party’s theory of the case. The Court reiterated that the State was free to argue that the statutory definition of “possession” included the concept of “joint possession.” However, doing so would not entitle the State to a special instruction highlighting its theory of joint possession. Furthermore, a mere-presence instruction would state the opposite of, or negate, the elements of the statutory definition of “possession.” Thus, both “joint possession” and “mere-presence” jury instructions are unnecessary to clarify the applicable law and constituted an improper comment on the weight of the evidence. Read Opinion.


The summary discussing the lower court’s opinion in this case was prescient when it admonished prosecutors to “be cautious.” The mere fact that the charges came from a well-regarded source (the State Bar of Texas’ Texas Criminal Pattern Jury Charges manual) does not insulate them from challenge as improper comments on the evidence. The Court recounts several cases where it has consistently rejected non-statutory charges as improper comments—this will be a useful resource in evaluating requested instructions. The 2019 State Bar Pattern Jury Charge book on Controlled Substances still contains these instructions, but the State Bar Committee is working on an update. One bright note, though, is that the Court also ruled that general “mere presence” charges are no longer required.

Texas Attorney General

KP-0270                9/24/19


Can a court, under Code of Criminal Procedure Art. 17.09, order the rearrest of a defendant without a hearing to secure the defendant’s presence at the bond revocation hearing based on a probation officer’s sworn affidavit showing probable cause that the defendant violated a bond condition?


A court likely may, without a hearing, order a defendant’s rearrest to secure the defendant’s presence at a bond-revocation hearing under these circumstances. Code of Criminal Procedure Art. 17.09, §3 authorizes a court to order a defendant’s rearrest when the court “finds” the bond is insufficient or for any other “good and sufficient cause.” Although no court has addressed this specific issue, probable cause that a bond condition violation occurred would likely constitute “good and sufficient cause” under Art. 17.09 §3, authorizing the court’s issuance of a capias to secure the defendant’s attendance at a revocation or bond-increase hearing. Read Opinion.


The opinion also mentions Art. 16.16, which clearly authorizes rearrest prior to a hearing. While there is one ancient case that gives Art. 16.16 a limiting construction, it lacks any meaningful, modern statutory analysis.

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