Possession With Intent to Distribute Attorney in Texas

Much like drug possession laws, the State of Texas governs the manufacture and cultivation of controlled substances. Under Texas law, every controlled substance is categorized into one of four penalty groups. The only exception is marijuana, which is treated differently than other controlled substances.

The penalty for a conviction for possession with the intent to manufacture can vary. No matter what, a conviction carries serious consequences that can alter the course of your life. An attorney with experience in criminal defense law can help you develop a defense strategy that gives you the best chance for avoiding a conviction.

Elements of Possession with Intent to Manufacture

The Texas Controlled Substance Act prohibits the knowing manufacture of any actual or fake controlled substance with the intent to distribute it. For the prosecutor to gain a conviction, they must prove beyond a reasonable doubt that you knowingly manufactured a banned substance and that you did so with the intent to distribute it to others.

A prosecutor can prove the act of manufacturing a controlled substance using either direct or indirect evidence. They can use materials seized that indicate manufacturing of a controlled substance. They can also call witnesses that may testify that you were involved in the manufacturing or cultivating process. This testimony can come from people that you know or even police informants sent to collect evidence against you.

However, the prosecutor must also prove that you did so with the intent to deliver the controlled substance. Delivery involves the transfer or intended transfer of illegal substances to another individual. It is not necessary for money to change hands. Proving the intent to distribute can be more difficult given a prosecutor isn't able to see your intent directly. However, there are a number of circumstantial factors a prosecutor can establish that the state can rely on to show intent. Those factors include:

  • Possessing large amounts of cash;
  • Possessing more drugs than are necessary for individual use;
  • Possessing weapons or guard dogs;
  • Possessing paraphernalia like scales or packaging material;
  • Possessing a chemical lab;
  • Possessing equipment necessary to transport drug manufacturing materials; and
  • Possessing the chemicals needed to manufacture a controlled substance.

Potential Penalties

There are two factors considered when determining the potential penalties you could face due to a conviction for manufacturing a controlled substance with the intent to distribute. Those factors are:

  • The penalty group a controlled substance is in; and
  • The amount of a controlled substance seized by law enforcement.

For the most part, all controlled substances are grouped into one of the four existing penalty groups. The only exception is marijuana, which is generally treated less harshly than the other groups of drugs.

Penalty Group 1

Penalty Group 1 consists of the most heavily-regulated substances like cocaine, heroin, morphine, and methamphetamine. Penalty Group 1 also includes well-known “date rape drugs” including Ketamine and Rohypnol. The smallest amounts of a Penalty Group 1 substance constitute a state jail felony. It carries a sentence of 180 days to 2 years in a state jail as well as a maximum fine of $10,000. The maximum penalty is between 15 to 99 years as well as a maximum fine of $250,000.

Penalty Group 2

Penalty Group 2 contains controlled substances that are somewhat less addictive than those contained in Penalty Group 1. The group includes hallucinogens like psychedelic mushrooms and mescaline. Manufacturing or cultivating the smallest amounts is considered a state jail felony and carries a sentence of 180 days to 2 years in state jail. It also includes a maximum fine of $10,000. The maximum penalty is a sentence between 10 and 99 years in state prison as well as a maximum fine of $100,000.

Penalty Groups 3 and 4.

Penalty Groups 3 and 4 are the least addictive controlled substances outside of marijuana. The groups include some prescription drugs as well as barbiturates. Small quantities of these drugs are considered state jail felonies that carry a sentence between 180 days and 2 years. The maximum sentence is between 10 and 99 years as well as a fine not to exceed $100,000.


Marijuana is separated from the four primary penalty groups and is punished on a much lower level. Cultivation of the smallest amounts of marijuana with the intent to distribute is considered a Class B misdemeanor and carry a maximum of 180 days in jail and a $2,000 fine. The maximum penalty is between 10 and 99 years as well as a maximum fine of $100,000.

Potential Defenses

Like in any criminal case, there are potential defenses you may be able to rely on. Some of those defenses apply across all criminal charges, while some are specific to the manufacture of a controlled substance

Authorized Use

In some cases, there are exemptions to manufacturing what are otherwise illegal substances. If you were arrested for manufacturing a substance that you have a valid license to produce, an attorney can provide proof to the prosecution of the exemption.

Illegal Search and Seizure

The prosecutor can't use any evidence against you under every circumstance. If the state obtained evidence against you thanks to an illegal search or seizure an experienced defense attorney can have that evidence thrown out.

Lack of Intent to Distribute

The intent to distribute is a critical aspect of a manufacturing case. While it may not absolve you of a possession charge, you have a valid defense to a manufacturing charge if your attorney can show you lacked the intent to distribute the controlled substance

The Law Office of E. Jason Leach

A key factor in a manufacturing with intent to distribute case is your intention for the drugs. While still illegal, if the drugs were for personal use you could find yourself facing reduced legal jeopardy. Likewise, the existence of other defenses might be enough to exonerate you completely. Only an experienced criminal defense attorney can help you adequately prepare your defense before you face a jury of your peers. E. Jason Leach is a board-certified expert in Texas criminal defense law. Contact the Law Office of E. Jason Leach, PLLC to arrange a free initial consultation.