Posted on 12/25/17

Late one night, the police are driving around downtown Dallas on a routine patrol. They observe a man coming stealithily out of an alleyway and looking at a hardware store. The man looks around, seemingly to determine whether anyone is watching him. He then takes a hard look at the lock on the store. He then turns and heads back to the alleyway. A minute later, the same man peeks out of the alleyway wearing gloves and starts feeling the bricks around the store. Again, the man looks around, seemingly with the intention to determine whether he is being watched. He then turns and heads back to the alleyway.

Immediately, the police jump out of the patrol car and head toward the alleyway. They do not want to take chances. The police use flashlights and confront the man in the alleyway where he is holding a brown paper bag. The police identify themselves and ask for the man’s name, address, and birth date. The man supplies the information. One officer goes to confirm the man’s information while the other officer requests to look in the man’s bag. The man consents to the search. The officer looks inside and finds gloves, pliers, and a screwdriver. The other officer returns, confirms the man’s information, and place the man under arrest.

The information is that the man has a history of break-ins. After an interrogation and subsequent arraignment, the prosecution charge the man with intent to commit burglary, a felony, and possession of a criminal instrument. With regard to the criminal instrument charge, the defendant pleads not guilty because such instruments are not “criminal” in nature.

Criminal Instrument

Section 16.01 of the Texas Penal Code provides: “A person commits an offense if the person possesses a criminal instrument or mechanical security device with the intent to use the instrument or device in the commission of an offense.” That is to say, it is a crime to possess a “criminal instrument” when there is intent to use that instrument to commit a crime. The issue is what is considered a criminal instrument under the statute.

In the 1987 case ofEodice v. State,  the Texas Appeals court stated that it is not enough that the instrument can be used to commit a crime; rather, the instrument must be that is peculiary made to commit a crime.

The 1991 case of Ex Parte Andrews echoed what the court said in Eodice. That is, it is not based on the alleged criminal’s conduct, by itself, to be considered a criminal instrument; instead, it is the physical adaptation of the item for a crime to be considered a criminal instrument.

While there is some discussion in later court rulings about the meaning of the statute, the Appeals Court in the 2003 case of Danzi v. State confirmed that a criminal instrument is as the courts in Eodice and Andrews explained.

In the example above, most likely a court would rule that the defendant was not in possession of a criminal instrument.

Accused of a crime? Contact the criminal defense firm of Christopher Abel.

(image courtesy of Jack Douglass) 

Flower Mound Office

Phone: 972.584.7837

Denton Office