Updated October 23, 2021; Original Post: December 22, 2017
Texas has some of the harshest penalties in the nation for drug possession. If convicted, you could face years in prison and hefty fines for even small amounts of controlled substances. Moreover, you will be left with a criminal record that can come back to haunt you for the rest of your life. If you have been arrested for a drug possession charge in Fort Worth, Texas or in the surrounding cities of Tarrant County, Texas, you need to have a thorough understanding of Texas drug possession laws and the possible criminal defense that exist to protect your freedom and your clean criminal record.
Unfortunately, if you do not retain an experienced and aggressive drug possession attorney, you could be facing the prospect of a conviction, jail time and fines. However, not all drug possession charges lead to a conviction. In fact, most do not. The first question you must ask is whether your drug possession charge is a misdemeanor of felony drug possession case.
Misdemeanor drug possession cases are normally characterized by possessing prescription drugs or marijuana. For example, if you are found to be possessing a drug that is only available by prescription, you could be charged with a Class A Misdemeanor of Possession of a Controlled Substance under 28 grams, punishable by up to one year in the county jail and up to a $4,000 fine. If you are found to be in possession of marijuana under two ounces, you could be charged with a Class B Misdemeanor of Possession of Marijuana, punishable by up to 180 days in jail and up to a $2,000 fine. Although misdemeanor drug possession cases may seem to be minor, if you do not fight these charges, you could still be facing jail time or a tainted criminal record that could prevent you from obtaining meaningful employment.
Felony drug possession charges are characterized by possessing more serious illegal drugs or possessing large quantities of prescription drugs. For example, being caught in possession methamphetamine, heroin, cocaine or other serious drugs will land you with a minimum of a state jail felony drug possession case, punishable by up to 2 years in prison and up to a $10,000 fine. If you possess larger quantities of these substances, you could face up to life in prison or up to a 10 year probation.
To successfully convict a defendant of drug possession in Texas, the prosecution must prove beyond a reasonable doubt that the defendant intentionally or knowingly exercised care, custody or control over an illegal substance. Therefore, most defenses focus upon whether the defendant was intentionally or knowingly in possession, whether the evidence attained is admissible in court, and whether the substance was possessed illegally.
Unlawful Search and Seizure
Under the US Constitution’s Fourth Amendment, citizens are guaranteed the right to due process of law, including lawful search and seizure procedures. Law enforcement often uses questionable methods during drug investigations and arrests, so search and seizure violations are common in drug possession cases.
Plain View Doctrine. If the substance in question is in “plain view” (for example, discovered on a car dashboard during a legal traffic stop), it can be seized and used as evidence for possession. In other words, the police officer could just be walking by your car and if he sees what he thinks are drugs sitting in your front seat, he will not need independent probable cause to search your vehicle and potentially arrest you for drug possession.
However, if the officer conducts a search without probable cause or consent to search and the plain view doctrine does not apply, any concealed drugs found during the search are not admissible as evidence. Your aggressive and experienced drug possession attorney can file motions requiring a hearing before the judge to determine the admissibility of the drugs.
Because the substance in question is the primary evidence of possession, the charges are ordinarily dismissed if the defendant’s Fourth Amendment rights were violated during the search and seizure of the substance. If the prosecutor fails to do the right thing by dismissing your drug charge, a motion to suppress can be filed and a hearing requested where a formal ruling can be obtained from the judge, ensuring the case is officially dismissed.
To attain a successful drug possession conviction, the prosecution must prove that the defendant was intentionally or knowingly in possession of the drug.
In the case of unknowing possession, the defendant was in possession of the substance, but was unaware of the possession. In other words, the person may be exercising care, custody or control over an item that they had no idea contained drugs or was drugs. For example, if a third party mails a drug-containing package with a messenger service, the messengers cannot be held liable for drug possession. The messengers would have had no personal knowledge of the contents of the container.
Unknowing possession is also a common defense in constructive possession cases, in which drugs are discovered in the defendant’s residence, workplace, or vehicle. When we say “unknowing possession,” we mean someone may have illegal drugs within their wing span or close by but have no knowledge of it being near them. For example, a guest could have left drugs in these locations without informing the defendant, meaning that the defendant was left unwittingly in possession. Merely being in the presence of drugs without being aware of the fact the item was drugs and not exercising control over the drugs in some fashion, does not constitute the crime of drug possession under Texas law.
Lack of Possession
Lack of possession is also a common defense against constructive possession charges. This defense is appropriate when it cannot be proven that the substance belongs to the defendant, or that the defendant exercised care, custody or control over its presence.
What does it mean to “possess” something? Under Texas law, to “possess” illegal drugs, the prosecutor must show that you exercised care, custody or control over the illegal drugs and the prosecutor must affirmatively link you to those drugs.
For example, if the defendant shares his or her residence with other occupants, any drugs found in the residence may belong to other occupants unless the prosecution provides further evidence of personal knowledge or evidence affirmatively linking the defendant to the drugs. What do we mean by affirmatively linking you to the drugs? In order to affirmatively link you to drug possession, the police and prosecutor will have to show some personal identifying information indicating that you owned the drugs or had knowledge that the drugs were present. For example, if a police officer enters a room to do a search that you are not in, how do they affirmatively link you to those drugs? They will be looking everywhere within that room for something that indicates you had been in or living in this room, such as bills, identification cards, keys matching your vehicle, personal items or cell phones or any other personal item that would establish proof you would have been aware and exercised criminal intent with drug possession.
Another common example is when you are a passenger in a car and the police pull the car over and find drugs in the center console. What should happen if there are 4 people in the car, but the police do not know who has knowledge of the drugs? First, you should be cautious about talking to the police! If you speak to the police, everything you say can and will be used against you. Even innocent statements made by you could be twisted into something the police officer believes is an admission of guilt. In this situation, there is a good chance that other people in the car are being questioned and may even be blaming you for the drugs! Being silent is often one of the best tactics you can use in this situation.
What options do the police have in this example? They can arrest only the driver or arrest everyone. Either way, it is important to recognize that mere presence at the scene where drugs are located does not, by itself, establish “possession.” The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly exercised care, custody or control over the drugs.
Drug offenses are often caught in sting operations conducted by undercover law enforcement officers. These operations are legal only so long as they do not provoke the defendant to commit a crime he or she would not otherwise commit. For example, if the officer compels the defendant to pass drugs to a third party, this could be entrapment. This drug defense is rare to apply but if the police or narcotics unit step over the line, it is important that your aggressive drug possession attorney exposes the wrongdoing by the police to get your drug case dismissed.
Illegal Drug Dog Searches
Did the police pull you over and ask to search your car and you refused? Did they then tell you they were calling out a drug do to search the perimeter of your vehicle? How long did it take them to bring the drug dog to your car or truck?
Under United States and Texas criminal law, the police and narcotics are permitted to bring a drug dog to perform a perimeter search around a vehicle in order to establish probable cause. However, settled criminal case law has established that the police cannot keep you detained for an unnecessarily extended period of time waiting for the drug to arrive. For example, if the police pull you over on a traffic stop and ask to search your car and you refuse and they take 3 hours before a drug dog is able to arrive at your location, there is a strong argument that your constitutional rights were violated in the delay and they search may be ruled to have been illegal. If the drug search was ruled to be illegal and invalid, under case law, all items and drugs seized after the fact would be inadmissible in court and your drug case would be dismissed.
Drug Diversion Programs
Even if you do not have one of the drug defenses available to you that have been mentioned in this article, you may still have an option to get your drug case dismissed through a diversion program. Every county in Texas handles diversion programs differently but most counties now provide some type of drug diversion program to provide first offenders an opportunity to have their drug case dismissed and eligible to clear their criminal record. For example, in Tarrant County, Texas you have the options of Deferred Prosecution Program (DPP) and First Offenders Drug Program (FODP). Each program has their pros and cons and further emphasizes why you should seek the help of an experience criminal attorney to help you examine the option that is best for you.
If you are facing drug possession charges, consult a Texas drug lawyer immediately. A skilled attorney can make sure that your rights are protected, and may even be able to get your case thrown out entirely. In the event that your case goes to trial, he or she can build the best possible defense, maximizing your chance of a favorable outcome.
The Fulgham Law Firm is a team of former prosecutors with over 80 years of criminal law experience with a proven track record of obtaining great results for their clients. We offer our clients a team of lawyers to defend their drug possession cases and we will take the time to listen to your situation and create a customized defense strategy to help you put this drug possession case behind you and clear your criminal record.
Do not delay. Reach out to our office today.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.