Possession of a Controlled Substance Lawyer in Texas

Texas is known for strict drug possession laws. If convicted for drug possession, you could face steep fines and imprisonment even for possessing small amounts of a controlled substance. What's more, a drug possession conviction may lead to a mandatory 6-month suspension of your driving privileges.

The substances that are most commonly involved in a drug possession charges are marijuana, methamphetamine, cocaine, and ecstasy. Outside of small amounts of marijuana, the possession of these substances is a felony under Texas law. Texas drug laws also cover the possession of prescription medication without a valid prescription.

The ramifications of a drug conviction on your liberty reach beyond a jail cell. A drug possession conviction on your record can impact your ability to get housing or find employment. If you face Texas drug possession charges it's important to discuss your case with an experienced criminal defense attorney. E. Jason Leach is a board-certified expert in criminal defense law and is ready to help you build the best defense possible.

Elements of Possession of a Controlled Substance

Under Texas law, possession of a controlled substance is the “actual care, custody, control or management” of a substance that is controlled by law. For a prosecutor to prove to a jury that you are guilty of possession, he or she must show:

  1. The accused exercised control, management, or over the substance; and
  2. The accused knew the substance was illegal.

In other words, a defendant must knowingly possess a substance that is otherwise outlawed by Texas state law. At trial, a prosecutor can use direct or circumstantial evidence to prove the state's case. Direct evidence of possession may be enough for the prosecutor to secure a conviction. However, if the state is unable to prove you were arrested in exclusive possession of the controlled substance at the place where it was found, the state must prove you had custody or control of the substance through a set of independent factors that will link you to the drugs. These factors include:

  • The accused's presence when a search is conducted
  • Whether the contraband was in plain view
  • The accused's proximity to and the accessibility of the narcotic
  • Whether the accused was under the influence of narcotics when arrested
  • Whether the accused possessed other contraband or narcotics when arrested
  • Whether the accused made incriminating statements when arrested
  • Whether the accused attempted to flee
  • Whether the accused made furtive gestures
  • Whether there was an odor of contraband
  • Whether other contraband or drug paraphernalia were present
  • Whether the accused owned or had the right to possess the place where the drugs were found
  • Whether the place where the drugs were found was enclosed
  • Whether the accused was found with a large amount of cash
  • Whether the conduct of the accused indicated a consciousness of guilt

For the state to prove their case, they must do more than just check off as many factors off of the list as possible. The prosecutor's case relies on the “logical force the factors create” to show a link between you and the controlled substance. The state can obtain a conviction by proving that you possessed a control substance solely or jointly with others.

Texas Drug Schedule Classification

Not every controlled substance is created equally. In Texas, drugs are divided into four separate Penalty Groups. Excluded from these groups is marijuana (or "marihuana"), which is treated differently than all other controlled substances. Penalty Group 1 includes the most addicting drugs that have the fewest, if any, legitimate medical uses. This group includes heroin and cocaine. Penalty Group 4 includes compounds or mixtures that are used to create narcotics or prescription drugs.

Penalty Group 1 drugs carry the stiffest penalty, while Penalty Group 4 drugs have the most lenient sentencing ranges. Be that as it may, all of the drugs across all four groups are felonies that have the potential of prison time.

Penalty Group 1: methamphetamine, heroin, cocaine, oxycodone, opium, methadone, ketamine and over 300 mg of hydrocodone.

Penalty Group 2: mescaline, psychedelic mushrooms, psilocybin, ecstasy, methaqualone, and amphetamine.

Penalty Group 3: Clonazepam, Xanax, Valium, Ritalin, and under 300 mg of hydrocodone.

Penalty Group 4
: compounds or mixtures containing small amounts of narcotics or active medical ingredients.

Potential Penalties

If you are convicted of drug possession, your penalty will depend on the amount of drugs you possessed and the Penalty Group those drugs fall in.

Possession of less than two ounces of marijuana carries a maximum sentence of six months. Possessing more than two ounces can be considered, in some instances, possession with intent to deliver and carriers much stiffer penalties.

Penalty Group 1 substances carry a sentencing range between six months and life in prison. All Group 1 drugs carry a maximum fine of $100,000 except for LSD and other hallucinogens. Those drugs carry a maximum fine of $250,000.

Penalty Group 2 drugs carry a maximum sentence of life in prison and a maximum fine of $50,000.

Penalty groups 3 and 4 can be charged as a misdemeanor in cases where the amount possessed is less than 28 grams. Cases involving more than 28 grams of a group 3 or 4 drug will be considered a felony; for higher amounts, this can lead to a maximum life sentence and $50,000 fine.

Potential Defenses

The Texas justice system is strict when it comes to drug charges, but there are still some potential defenses that can help you avoid a conviction. These defenses include but are not limited to:

Lack of knowledge of possession

As we discussed above, you must knowingly possess a controlled substance to be convicted. This means you may have a defense if you aren't aware that drugs are in your possession or that something in your possession is a controlled substance.

Valid prescription

There are several substances controlled by Texas law that can be possessed with a valid prescription from a doctor. You have a valid defense if you have been charged with possessing a drug that your doctor prescribed you before your arrest.

Insufficient quantity

To be convicted of possession you must be found to have a “usable amount” of a drug. Generally, this means enough of a substance to allow for lab testing. In some cases, the amount of narcotics is so small that it cannot be formally tested in a lab. If that is the case you may have a defense.

Not intended for human consumption

While substances are controlled for human use, there are some exemptions if the same drugs are intended for use with animals. For this to be a valid defense, you would need to have some form of authorization.

The Law Office of E. Jason Leach

Your best chance for a fair outcome in a drug possession case is by having legal representation that will defend you vigorously. If you have been arrested in the Odessa, Texas area for drug possession, contact the Law Office of E. Jason Leach, PLLC to set up your free consultation.