Brian Baker - CJ2360 Final Exam

Arson - elements (3)

1.starts a fire or causes an explosion 2.with the intent to damage or destroy 3.vegetation, fence, or structure on open-space land (except: controlled burn) OR building, habitation, or vehicle under 6 circumstances described by the statute (except: city limits + permit) • •OR reckless fire/explosion making drugs OR intentional fire (legal) but reckless damage/injury

beyond a reasonable doubt

All persons are presumed to be innocent unless each element of the offense is proved beyond a reasonable doubt

NHTSA Manual

Breaks down a DWI investigation into four areas: 1.Driving 2.Personal contact 3.SFSTs 4.Chemical test - breath or blood

Criminal Trespass Example

Cutting thru a vacant lot Door to door salesman Neighborhood kids versus Criminal Trespassers, typically Persons about to commit crimes Nuisance trespassers - civil liability, damage, littering Defiant trespassers - won't leave when given notice (consent revoked)

Arson - Texas statute

A person commits an offense if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage:

Arson - exceptions

Controlled burning of open - space land Permit

Central Nervous System Stimulants

Increase the functioning of the central nervous system. These drugs generally produce euphoria, excitement, and restlessness. cocaine, amphetamines (speed)

War on Drugs

President Nixon - June 17, 1971 - war on drugs has failed and the states are looking at the problems with a fresh start

Criminal Mischief - Punishment

Punishment depends on value of property stolen C <$100 B <$750 A <$2,500 Felony >$2,500 and so on This is called the "standard value ladder" and is consistent for theft and other property crimes like Criminal Mischief

Drug Schedules

Schedule I are those substance that have no currently accepted medial use and a high potential for abuse.

Burglary - TX Sec. 30.01 (Habitation, Building, Vehicle)

Sec. 30.01. DEFINITIONS. (1) "Habitation" means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle. (2) "Building" means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. (3) "Vehicle" includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as "habitation."

Burglary

entry into the habitation or building of another, or remaining inside, without consent, and with the intent to commit a crime

What determines the charge for Marijuana?

it must be a usable quantity, and stems and stalks and seeds incapable of germination may not be a "usable quantity" Generally punishment increases as <2oz, >2oz<4oz, >4oz<5lb, >5lb<50lb, >50lb<2,000, >2,000

Controlled Substance

means a substance, including a drug, an adulterant, and a dilutant, listed in Penalty Group 1, 1-A, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

Distribute

means to deliver a controlled substance other than by administering or dispensing the substance (legally, like a pharmacy or doctor).

Deliver

means to transfer, actually or constructively, to another

What are the common law elements of burglary?

the unlawful entry of a building at night with the intent to commit a felony therein (common law concepts of burglary include: "breaking and entering" , "in the nightime" & the requirement of a "dwelling"

Curtilage

•Structures called curtilage connected/adjacent to are included: garage, pool house, balcony, shed

Elements of Criminal Trespass: (entry, notice, communication, fencing, sign, etc.)

(1) "Entry" means the intrusion of the entire body. [NOTICE THE DIFFERENCE] (2) "Notice" means: (A) oral or written communication by the owner or someone with apparent authority to act for the owner; (B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock; (C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden; (D) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are: (i) vertical lines of not less than eight inches in length and not less than one inch in width; (ii) placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and (iii) placed at locations that are readily visible to any person approaching the property and no more than: (a) 100 feet apart on forest land; or (b) 1,000 feet apart on land other than forest land; or (E) the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.

Public Intoxication Sec. 49.02

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. (b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician. •a Class C misdemeanor.

Types of Firearms

A "firearm" generally means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. TEX. PENAL CODE § 46.01(a)(3). A "handgun" is a subset of a firearm and means any firearm that is designed, made, or adapted to be fired with one hand. Id. § 46.01(a)(5).

How is a person commit a typical burglary?

A person is guilty of the typical burglary once the entry without consent is complete, regardless of whether the intended theft, felony or assault is completed

States that allow marijuana

Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, and Washington..

Burglary - Punishment (Level)

Building - state jail felony Habitation + intent or act: theft or felony theft - 2nd degree felony Habitation + intent or act: felony other than felony theft - 1st degree felony your typical "home invasion" is going to be a 1st degree - robbery, sexual assault, aggravated assault, murder, arson, kidnapping - as it should be

Arson

Charring, burning, or scorching of the structure or dwelling was sufficient under common law. In fact, under Texas law, no burning at all is necessary!

Making a Firearm Accessible to a Child

Class C Class A - if child discharges the firearm and causes SBI or death to himself or another

Texas Penalty Groups

Classification depends on: •Medicinal purposes, if any •Potential for abuse •Potential for psychological or physiological dependency

Central Nervous System Depressants

Decrease the functioning of the central nervous system. These drugs tend to produce euphoria, inhibition, and impairments of mental and physical skills. opiates (heroin), opioids (painkillers), barbiturates, benzodiazepines (Alprazolam/Xanax/Valium) and alcohol

Criminal Trespass - Punishment (Levels)

Habitation - class A misd. Other - Class B misd. Agricultural - class C misd.

pen Container Sec. 49.031

Open Container:contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed. "Passenger area of a motor vehicle" term does not include: (A) a glove compartment or similar storage container that is locked;trunk; area behind the last upright seat of the vehicle, if the vehicle does not have a trunk; (B) knowingly possesses; passenger area of a motor vehicle; on a public highway (C) EXCEPTION bus, taxicab, or limo; camper/motor home/ CLASS C MISD

Texas Law - severity of crime depends on

Penalty Group (1 to 4) * 1 is highest Amount (weight, including adulterants and dilutants) Attendant Circumstances

Texas Burglary 30.2 Elements

Sec. 30.02. BURGLARY. (a) A person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

Burglary of a Motor Vehicle

Sec. 30.04. BURGLARY OF VEHICLES. (a) A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft. GENERALLY: a class A misdemeanor, except if prior conviction

SFSTs (three tests)

Three tests: 1.Horizontal Gaze Nystagmus 2.Walk and Turn 3.One Leg Stand

Possession

actual care, custody, control, or management.

Intoxicated

not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

Operate

that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." DOES NOT require the vehicle to move

TX Firealarm law - crminal trespass

•person with Texas License to Carry •carries a concealed handgun (or openly carried handgun) •on property of another without effective consent •received notice that entry on the property by a license holder with a concealed handgun (or openly carried handgun) was forbidden

Burglary - post entry act

•without the effective consent of the owner •enters a building or habitation •and commits or attempts to commit a felony, theft, or an assault

Burglary Punishment

(1) state jail felony if committed in a building other than a habitation; or (2) felony of the second degree if committed in a habitation. (d) An offense under this section is a felony of the first degree if: (1) the premises are a habitation; and (2) any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft. Example: sexual assault, robbery, etc.

Burglary - enter

(b) For purposes of this section, "enter" means to intrude: (1) any part of the body; or (2) any physical object connected with the body. Complete entry not required, in fact only the slightest breaking of the plane is required Breaking a lock, removing a screen, even theft of a window AC unit

Possession plus other factors include

(intent to deliver, delivery, manufacture, drug free zone, etc) can have a harsher punishment than simple possession

Texas Prohibited Weapons 46.05

) an explosive weapon; (B) a machine gun; (C) a short-barrel firearm; or (D) a firearm silencer; (2) knuckles; (deleted 2019 Leg.), (3) armor-piercing ammunition; (4) a chemical dispensing device; (5) a zip gun; (6) a tire deflation device; or (7) an improvised explosive device.

Public Place Sec. 1.07

"Public place" means any place to which the public or a substantial group of the public has access

Criminal Trespass Sec 30.05

(a) A person commits an offense if the person enters or remains on or in property of another without effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.

Possession - issues

- mere presence - insufficient - knowledge must be proven

Texas - affirmative links

- presence - plain view - proximity/accessibility - under the influence - possessed other drugs or contraband - incriminating statements - flee - furtive gestures - odor of drugs - paraphernalia/other contraband - defendant owned or had the right to possess the place -place where the drugs were found - large amount of cash - conscious of guilt

Criminal Mischief Sec. 28.03

- without effective consent -intentionally/knowingly damages or destroys - intentionally/knowingly tampers with the tangible property of the owner, causing pecuniary loss/inconvenience - intentionally- knowingly makes markings: slogans, drawings, paintings, etc.

Handgun vs. Long gun

-Handgun: any firearm that is designed, made, or adapted to be fired with one hand. •This definition applies to what everyone refers to as a pistol. A cut off rifle or shotgun is still a rifle or shotgun and is illegal if shorter than the statutory lengths (26 inches). -Long gun: a firearm such as a rifle or shotgun with an overall length longer than 26 inches.

Hemp (2019 Leg.)

EFFECTIVE IMMEDIATELY (JUNE 10, 2019) Hemp is legal Defined as cannabis sativa L, including seeds, extracts, cannabinoids, isomers, acids, salts whether growing or not, With Delta-9 tetrahydrocannabinol concentration of not more than 0.3%. A person may possession, transport, sell, and purchase legally produced nonconsumable hemp products in this state.

Criminal Trespass

Frequently when the prosecutor cannot establish the elements of burglary, the lesser included offense (same elements, minus one or more) of criminal trespass is used. The term criminal trespass is frequently applied to misdemeanor criminal activities associated with the unauthorized entry of a premise.

Drug Free Zones

If offense was committed with 1,000 feet of school, youth center or playground Or on a school bus Increased to next higher category of offense

Hallucinogens

Interact with the cerebral cortex to produce sensory hallucinations. LSD, PCP

Arson Sec 28.05 Actors Interest in Property

It is no defense to prosecution under this chapter that the actor has an interest in the property damaged or destroyed if another person also has an interest that the actor is not entitled to infringe.

Arson - Theft Statute (METH LABS & LEGAL FIRE/EXPLOSION)

Meth Labs: A person commits an offense if the person recklessly starts a fire or causes an explosion while manufacturing or attempting to manufacture a controlled substance and the fire or explosion damages any building, habitation, or vehicle Legal Fire Explosion PLUS Reckless damage or injury:A person commits an offense if the person intentionally starts a fire or causes an explosion and in so doing: (1) recklessly damages or destroys a building belonging to another; or (2) recklessly causes another person to suffer bodily injury or death.

Sec. 28.05 Actor's Interest in Property

No Defense to the prosecution if another person also has an interest in the property

Criminal Trespass - effective consent

No consent or without effective consent Effective consent works just like the theft statute and the burglary statute! Cannot be the product of deception, force, threat, fraud, nor from someone not authorized to act, too young, mentally ill, disabled, intoxicated....

With Burglary, is the use of force to gain entry required?

No, the use of force to gain entry is not required (the offender may simply trespass through an open door)

Burglary - intent or act? There are 2 required!

One of the following is required: •(1) with the intent to commit a felony, theft or assault (enter or remain concealed), OR •(2) regardless of intent, attempt or commit a felony, theft or assault

Criminal Trespass and the Constitution

•Conflict between the statute and the 1st Amendment (speech, assembly, petition) •Private property - no right, no government infringement •Privately owned public space - no right, no government infringement Publicly owned property open to all - (ex: park, courthouse steps, city hall) the government can only have content neutral restrictions as to time, place and manner

SFSTs

•DWI Detection and Standardized Field Sobriety Testing (AKA "the NHTSA Manual") by the National Highway Traffic Safety Administration •All police officers in the US learn from it and are certified to do standardized field sobriety testing (SFSTs)

DWI Enhancements

•DWI is generally a Class B misdemeanor, except: •BAC > 0.15 - Class A •Prior conviction - Class A •Two or more priors - 3rd degree felony •DWI with Child (14 and under) Passenger - state jail felony

Intoxication Assault + Manslaughter

•DWI with either serious bodily injury or death by reason of that intoxication intoxication must cause the SBI or death

DWI ELEMENTS

•Defendant •Operated •Motor vehicle •Public place •While intoxicated

Delivery, Possession with Intent to Deliver, Manufacture

•Generally increased to next higher punishment of offense •Delivery (or intent) is usually shown by circumstantial evidence: quantity, packaging, scales, ledgers, cash •NOTE: For marijuana there are only 2 crimes, possession or delivery, there is no possession with the intent to deliver •Delivery of small amounts of marijuana can be a felony •>1/4 oz is a felony •To a child (under 18) or still in high school

Medical Marijuana (2019 Leg.)

•HB3703 expansion of medical marijuana effective immediately §Terminal cancer §Epilepsy §Seizures §Multiple Sclerosis §Autism §Incurable neurodegenerative disease

Burglary - INTENT

•If entry is with the intent to commit a felony, theft or assault THE CRIME IS COMEPLETE ONCE "ENTRY" IS MADE....... an attempt, commission, success or failure is IRRELEVANT •Similarly, if remaining concealed is with the intent to commit a felony, theft or assault THE CRIME IS COMPLETE

TX firearm law - unlawful carry TPC 46.02

•Intentionally, knowingly or recklessly •Carrying on or about one's person •A handgun (NOT a firearm) •In a motor vehicle •Handgun is in plain view •Unless the person is licensed to carry, and the handgun is in a holster that is worn

Other Intox Offenses

•Intoxication Assault = DWI + causes serious bodily injury - 3rd degree felony •Intoxication Manslaughter = DWI + causes death - 2nd degree felony

Texas law - elements

•Knowingly •Possesses / possesses with the intent to deliver / delivers / manufactures •A controlled substance listed in penalty group [X] In an amount of [weight]

Burglary - building or habitation

•Must be one of the two •Note Burglary of a Motor Vehicle is a separate crime •A habitation can include a vehicle if it is adapted for overnight accommodations - RV, Camper, mobile home, yacht, houseboat, hotels, dorms, etc

Burglary - effective consent

•No consent whatsoever is typical •Effective consent works just like the theft statute!

Burglary - entry

•Open to public vs. closed portion of building open to public •"Employees Only" •Not then open to the public = closed to the public at the time •Or remaining concealed, not a common scenario •Owner - just like the theft statute

Penalty Group Levels

•Penalty Group 1 is most serious, any amount is a felony •Penalty Group 4 is least serious, typically a misdemeanor unless large quantity

Criminal Trespass - Firearms

•Person with Texas License to Carry •carries a concealed handgun or openly carries •on property of another without effective consent •received notice that entry on the property by a license holder with a concealed handgun was forbidden

Offenses Involving Alcohol

•Public Intoxication •Driving While Intoxicated •Open Container •Alcoholic Beverage Code Offenses §Driving Under the Influence by Minor §Minor in Possession §Consumption of Alcohol by Minor §Misrepresentation of Age by Minor §Purchase of Alcohol by Minor §Furnishing Alcohol to Minor

What determines the charge for controlled substance?

•The identity (and corresponding penalty group) and weight determine the charge •Generally punishment increases as <1g, >1g<4g, >4g<200g, >200g<400g, >400g

"Typical" Burglary Elements:

•Typically: enter (or remain) + without effective consent + required intent

Of "another"

•any person with a greater right of possession than the trespasser, just like the theft statute - owner, possessor, lessee, person in charge, manager, etc

Controlled Substance Cont..

any amount is illegal (without a prescription) includes adulterants and dilutants

Burglary - ACT

any felony any theft (even a misdemeanor) any assault (even a misdemeanor) EX: Kid breaks into high school and spray paints obscenities on the wall? Regardless of intent, attempt or commit a felony theft or assault

DWI 3rd + causing a death SEC 19.02 MURDER

commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. •Applying the felony murder rule to the DWI - 3rd felony charge, where a actor causes a death, the prosecutor will not charge the defendant with Intoxication Manslaughter, a 2nd degree felony (2-20), but instead, Murder, a 1st degree felony, for which a person is subject to 5-99 years and by statute, ineligible for probation.

Unlawful Possession of Firearm 46.04

convicted of a felony, prior to the expiration of 5 years convicted of a felony after 5 years, any place other than their residence convicted of any misd. assault involving family violence subject to a court order

TX Firearm - Disorderly Conduct

discharge a firearm in the public place displays a firearm in a public place in a manner calculated to alarm discharge a firearm on or across a public road

Unlawful Carry by license holder TPC 46.035

flashing the gun carries while intox intentional display on college campus reckless carry on school, hospital, amusement park, etc place where 51% of income is from alcohol

The Texas Court of Criminal Appeals Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)

has instructed that evidence of one or more of following affirmative links may provide the logical force that demonstrates possession and not mere presence:

Cannabis

most popular illegal recreational drug, cannabis sativa also effects the cerebral cortex and produces a euphoric high.

Long Guns

no licensing scheme for long guns a person is generally allowed to carry rifles and shotguns in public in Texas. There are some limitations, however, as we will see, to the manner in which they are carried (Locations/Who)

Driving Under the Influence by Minor

operates a motor vehicle, watercraft, any detectable amount of alcohol APPLIES ONLY TO MINORS UNDER 21 CLASS C MISD can cause ALR

Purchase/Furnish Alcohol to a minor

purchases or gives/makes available with criminal negligence CLASS A MISD APPLIES TO ANYONE

Places Weapons Prohibited TPC 46.03

school/education institution polling place govt court/govt offices racetrack airport place of execution

Texas Controlled Substances Act, Health and Safety Code, Chapter 481

various offenses and punishments for drug possession are divided into four groups: Penalty Group 1-4

Burglary - remain concealed

without the effective consent of the owner remains concealed in a habitation or building with intent to commit a felony, theft, or an assault

Narcotic Analgesics

§Depress the central nervous system to relieve pain, without producing the loss of consciousness. drugs made or derived from the opium poppy: opium, morphine, codeine, hydrocodone (commonly known as Vicodin, Lorcet, Lortab), oxycodone (commonly known as Percodan, Percocet), fentanyl, among others

Motor Vehicle

§Statute inapplicable to bicycles, horses, and other non-motorized transportation.

Federal Controlled Substance Act

•21 U.S. Code 801 et seq. Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. •The act is the federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain substances are regulated.

Property

•Can be land, residence, vehicle, building, boat, aircraft, etc.

Controlled Substances Act Section 812

5 federal schedules: I, II, III, IV, and V

Implied Consent

When you get your drivers license, you agree to give a sample of breath or blood if arrested for an intoxication offense •If you refuse, there is a process for an administrative license revocation (ALR) •If you fail the breath or blood test, there is also an administrative license revocation (ALR) •If a minor, and detectable amount of alcohol, there is also an administrative license revocation (ALR) If you pass, there is no ALR

Burglary - typical

Your typical burglary is just: •without the effective consent of the owner •enters a habitation, OR building (or portion) not then open to the public •with intent to commit a felony, theft, or an assault