Tex. Penal Code § 34.02(a) specifies that the accused
must be proved to have acted “knowingly.” Delay
v. State, 465
S.W.3d 232, 246–48 (Tex. Crim. App. 2014), made clear
that knowingly applies not only to the nature of conduct element
(under section 34.02(a)(1), the acquiring or maintaining an interest
in, concealing, possessing, transferring or transporting funds)
but also the circumstance element requiring proof that the funds
were the proceeds of criminal activity. This demands satisfactory
evidence that the defendant knew enough about the criminal law to
be aware that the funds were acquired or derived from, produced
or realized through, or used in the commission of conduct constituting
a felony criminal offense.
This must be reconciled with section 34.02(a–1): “Knowledge
of the specific nature of the criminal activity giving rise to the
proceeds is not required to establish a culpable mental state under
this section.” Section 34.02(a–1) appears to address not what awareness
of law is required but rather the specificity of the factual knowledge
that must be proved. If the state’s theory is that the funds were
the proceeds of felony theft, for example, section 34.02(a–1) means
the state need not prove the defendant was aware of precisely how
the theft was committed. It must, however, prove the defendant knew
that the manner in which the funds were produced or used violated
the criminal prohibition against felony theft or another felony
offense.
Under Delay, this offense then requires some
knowledge of the criminal law. But the knowledge required concerns
the criminal law covering the manner in which the funds were produced,
derived, or used. The offense does not require any awareness of section
34.02—the criminal law making it a crime to acquire or maintain
an interest in, conceal, possess, transfer, or transport funds the
person knows are the proceeds of criminal activity. Delay, 465
S.W.3d at 247 n.55.
In the instruction at CPJC 34.2, this reading of Delay is
implemented by the third element of the offense and the definition
of “knew funds were the proceeds of criminal activity.”
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Comment
Tex. Penal Code § 34.02(a) specifies that the accused must be proved to have acted “knowingly.” Delay v. State, 465 S.W.3d 232, 246–48 (Tex. Crim. App. 2014), made clear that knowingly applies not only to the nature of conduct element (under section 34.02(a)(1), the acquiring or maintaining an interest in, concealing, possessing, transferring or transporting funds) but also the circumstance element requiring proof that the funds were the proceeds of criminal activity. This demands satisfactory evidence that the defendant knew enough about the criminal law to be aware that the funds were acquired or derived from, produced or realized through, or used in the commission of conduct constituting a felony criminal offense.
This must be reconciled with section 34.02(a–1): “Knowledge of the specific nature of the criminal activity giving rise to the proceeds is not required to establish a culpable mental state under this section.” Section 34.02(a–1) appears to address not what awareness of law is required but rather the specificity of the factual knowledge that must be proved. If the state’s theory is that the funds were the proceeds of felony theft, for example, section 34.02(a–1) means the state need not prove the defendant was aware of precisely how the theft was committed. It must, however, prove the defendant knew that the manner in which the funds were produced or used violated the criminal prohibition against felony theft or another felony offense.
Under Delay, this offense then requires some knowledge of the criminal law. But the knowledge required concerns the criminal law covering the manner in which the funds were produced, derived, or used. The offense does not require any awareness of section 34.02—the criminal law making it a crime to acquire or maintain an interest in, conceal, possess, transfer, or transport funds the person knows are the proceeds of criminal activity. Delay, 465 S.W.3d at 247 n.55.
In the instruction at CPJC 34.2, this reading of Delay is implemented by the third element of the offense and the definition of “knew funds were the proceeds of criminal activity.”