Inconsistent Reasoning from the Court of Appeals

Yesterday, the Court of Appeals told the defendant he was wrong for requesting a jury instruction that could have helped him. Blithely ignoring its own reasoning, the Court provided a separate jury instruction, that could only have helped the State. There appears to be little even-handedness in this opinion and it telegraphs a dangerous message to lower courts and provides inconsistent reasoning from the Court of Appeals.

In Beltran De La Torre v. State, 2018 WL 1321125, No. 01-17-00218-CR (Houston [1st Dist]] March 15, 2018) Defendant was charged with Possession of less than a gram of cocaine. In a parking lot, police observed Defendant sitting in the driver’s seat and established that he was the owner of the car. Two female passengers were also in the car and there was another man in the vicinity who denied being associated with Defendant and the two women. The other man subsequently left the scene. Defendant testified that there were four people in his car that day, including the man who had walked away. Finally, the police noticed a small plastic bag on the car’s center console which was seized and later shown to be cocaine.

According to the Texas Health and Safety Code, to prove unlawful possession of cocaine, the State must show that the defendant: (1) exercised actual care, custody, control, or management over the cocaine, and (2) knew it was cocaine. Case law clarifies the meaning of “knowing possession” to exclude uninvolved third parties. What is known as the “affirmative links rule” says that the State must prove that Defendant’s connection with the drug was more than just fortuitous. This 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.

Defendant maintained that his “mere presence” at the scene was insufficient to find him guilty of knowing possession. The trial court denied his request for an affirmative links instruction and the Court of Appeals affirmed. The Appellate Court restated that a trial court must give the jury a written charge that sets forth the law applicable to the case. The charge must include statutory defenses, affirmative defenses, and justifications raised by the evidence. A trial court should not instruct the jury on defensive theories that are not expressly included as statutory defenses in the Penal Code but instead negate an element of the offense. The Court of Appeals held that a “mere presence” instruction is not a statutory defense included in the Penal Code.

So the Court held that it is proper not to instruct the jury on the mere presence – affirmative links – innocent bystander – defense. At the same time, the appellate Court held that it is proper to instruct the jury that possession means not just individual possession but joint possession. The trial court included the following language in the court’s charge: “[t]wo or more people can possess the same controlled substance at the same time.” Now that language appears no where in the Penal Code. It is not expressly included as a statutory defense nor is it set forth as the law applicable to the case. Instead, it comes from the Committee on Texas Criminal Pattern Jury Charges, see Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Intoxication, Controlled Substances & Public Order Offenses PJC 41.6 (2016) and a case from 1975, Brooks v. State, 529 S.W.2d 535 (Tex. Crim. App. 1975). This language adds a layer to the statutory definition — “actual care, custody, control, or management” by drawing the jury’s attention to the idea of joint responsibility. The instruction may very well have caused the jury to be more inclined to convict — where jurors may have had a reasonable doubt about Defendant’s sole possession, there was less doubt about his joint possession.

The question is, why was a “joint possession” instruction given when the “mere presence” instruction was not? The Court’s reasoning appears to be that without the joint possession instruction, jurors would be free to define “possession” in a manner that is inconsistent with its legal meaning. The court pointed out that the statutory definition of “possession” has particular legal significance and that it is not an expression of ordinary speech. That’s fine but this same reasoning should apply with even greater force to the affirmative links language. Jurors could mistakenly assume that merely being near contraband is evidence of “knowing possession,” when it is not.

The reasoning from this opinion encourages trial courts to loosely saunter in and define statutory terms whenever the trial court believes that a legal meaning differs from everyday usage. The danger of course is that providing these definitions is a comment on the weight of the evidence which may contribute to a conviction where a jury might be otherwise prone to acquit.