It is no secret that the State of Texas has a history of treating drug crimes harshly. If you find yourself in the unfortunate position of being charged with a drug crime in Texas, then it is important that you understand that you are involved in a serious matter that carries with it potentially severe legal consequences. From large fines to extended jail time, being charged and convicted of a drug crime in Texas can have life-altering effects. As a result, you will want to do everything in your power to make sure that you are treated fairly and that you prevent this matter from ruining your reputation, lifestyle, and career. To help you in this fight, the lawyers at The Fulgham Law Firm have provided a detailed overview of drug crimes in Texas along with some helpful tips and possible defenses.
Because the drug laws in Texas use specific terms that you may not be familiar with, the following is a breakdown of commonly used drug crime words, and their definitions, according to Texas law.
Administer – to directly apply a controlled substance by injection, inhalation, ingestion, or other means to the body. This is typically done by medical personnel or under the supervision of a physician.
Controlled substance – any substance, including a drug, an additive, or a mixture that is listed in Schedules I through V. Examples of a Schedule I drug are heroin and ecstasy.
Counterfeit substance – an actual controlled substance or drug that is made to look like it was legally manufactured through its packaging or labeling. This is different from a simulated controlled substance, which is a fake controlled substance that has been made to look like a real one.
Deliver – to transfer to another person a controlled substance, counterfeit substance, or drug paraphernalia. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.
Drug – a substance that may or may not have an accepted medical use that is intended to affect the body or brain.
Drug paraphernalia – any equipment, product, or material that is intended to help use, manufacture, or sell the drugs.
Manufacturer – someone that makes or produces a controlled substance or drug.
Pharmacist – a person licensed by the Texas State Board of Pharmacy to practice pharmacy.
Producing – manufacturing, planting, cultivating, growing, or harvesting a controlled substance.
Narcotic drug – a drug or controlled substance that is produced by extraction from vegetables. Narcotic drugs include: opium and opiates, cocaine, and any other substance with a similar chemical structure.
Trafficking – the manufacture, delivery, or possession of certain controlled substances or dugs with the intention of delivering or selling them. Trafficking can also include simply possessing a large amount of a controlled substance.
Texas has a very strict drug crime tradition. How serious a drug crime becomes is determined by what type of illegal drug is involved, the specific amount, and the type of activity taking place (e.g. possession, distribution, possession with intent to manufacture or distribute, drug paraphernalia, drug-based DWI, and drug conspiracy). Almost all drug crimes in Texas are felonies and not misdemeanors. Typically, crimes that are felonies carry much more severe consequences than misdemeanors. To demonstrate how serious drug crimes are in Texas, merely being in possession of four ounces of marijuana can get you a felony drug charge.
Texas law defines “possession” of a controlled substance as the actual care, custody, control or management of the drug. The general nature of this definition allows for charges against you even when you don’t actually have the drugs on you, but when the drugs might instead be stored in a place which you control or manage. Also, even if the drugs aren’t technically yours, but have been shared amongst you and a group of other people, you can still be charged with possession. As long as you used the drugs, then that may be enough for a possession charge.
In order to prove that you are guilty of a possession charge, a prosecutor must prove that you knowingly or intentionally possessed the controlled substance. If you did not know that the drugs were on you, or if someone else put the drugs in the location in which they were seized by the police, then you may have a valid defense to a possession charge.
DISTRIBUTION AND DELIVERY
Texas law considers “distribution” and “delivery” as practically the same thing. Particularly, distributing means delivering a controlled substance, where delivering means transferring a drug to someone else, including selling the drug.
There can be actual or constructive delivery. Actual delivery is where you physically hand over a drug to someone else. Even offering to sell someone a drug without handing it over can constitute actual delivery. Constructive delivery is where there is no physical handoff between you and the other person, but you are still in control of the drug and facilitate its delivery. Also, you can be charged with constructive delivery if you manufacture the drug while leaving the actual delivery to someone else.
POSSESSION WITH INTENT TO MANUFACTURE OR DISTRIBUTE
One of the most common drug charges is possession with intent to manufacture or distribute. Under Texas law, manufacture means to produce, prepare, compound, convert, or process a controlled substance other than marijuana. The mere growing of marijuana is not considered manufacturing, but instead possession. However, creating synthetic marijuana can get you a manufacturing charge.
Drug paraphernalia basically includes anything that helps in the growth, manufacture, creation, or use of illegal substances. Texas law provides a long list of possible things that are considered or could be considered drug paraphernalia. So, if you possess any of these types of things, or you cause these items to be manufactured or delivered, then you can be charged with drug paraphernalia.
Even chemicals that are themselves not illegal to possess, but are considered “precursor” chemicals, can be illegal depending upon the circumstances of possession and the intent. Texas law lists what chemicals it considers to be precursor chemicals. For example, certain over-the-counter cold medications are used to make methamphetamine.
When most people think of “driving while intoxicated,” they are referring to alcohol. But you can be arrested for drug-based DWI (drugged driving) as well, and the laws will penalize you the same as an alcohol-based DWI. The law applies to driving under the influence of prescribed drugs, over-the-counter drugs, or illegal substances. The penalties for a first time DWI offense can include: up to six months in prison, substantial fines, and a possible suspension of your driver’s license for one year.
Texas law defines a conspiracy as an agreement between two or more people to commit a crime. In order to prove a conspiracy to manufacture or distribute drugs, the prosecutor has to prove the following:
- There was an agreement or plan to violate state or federal drug laws.
- You knew of this agreement and intended to participate in the plan.
- The conspiracy was “furthered along” by at least one act by you or your co-conspirators.
TEXAS DRUG SCHEDULES
In order to understand drug crimes in Texas and what penalties you may face, you must first understand that drugs (or controlled substances) are broken down into five separate categories, or schedules. Texas law uses the same schedules as federal law as outlined in the Controlled Substances Act. As you can see from the schedules below, the drugs are grouped together based on their dangerousness and potential for addiction.
If you have been charged with a drug crime in Texas, then the possible penalty you will face is determined by the type and quantity of the drug. What you need to know for purposes of being charged with a drug crime in Texas is that basically all of the drugs that can get you into trouble (e.g. street drugs) are typically controlled substances. The list below contains some of the more well-known controlled substances, but see the Texas Controlled Substances Act for a complete listing of the substances.
Schedule I drugs are substances that have been deemed to have no medical use, and are known to be extremely addictive.
Schedule II drugs may have some medical use but carry a high risk of addiction.
- Pure Codeine
- Pure Hydrocodone
Schedule III drugs are known to have a medical use but have also been known to be abused for recreational purposes.
- Anabolic Steroids
Similar to Schedule III drugs, Schedule IV substances are typically prescribed for medical use but also carry a risk of abuse for recreational purposes.
Schedule V drugs are the least dangerous controlled substances but still carry some potential for abuse.
- Cough suppressants with codeine
- Anti-diarrheal treatments
HOW THE POLICE CATCH YOU
The police can catch you with drugs in simple, almost accidental ways, as well as during investigations that can get pretty complicated. It can be as routine as being in a traffic stop where the police officer smells marijuana and then finds a bag of it. It could also be the result of a multi-layer investigation involving both state and federal officers, and most likely involving much more serious criminal charges.
Drug investigations can begin through information provided by undercover police, an informant, or even an anonymous tip from the public. Almost all police agencies have whole units of officers, investigators, and detectives exclusively dedicated to drug enforcement. Usually these units are where the agency spends most of its budget. The police will talk to witnesses, take statements, perform surveillance, and even use drones where they take pictures from the sky.
All of this information is then used to prove probable cause and to obtain a search warrant from a judge. Often, this search warrant will allow for more intrusive surveillance such as listening in on your phone calls. A search warrant will also allow law enforcement to search properties, buildings, homes, and land that they suspect contains drugs.
A stakeout is basically where the police hide out in an area that they believe is known to have drug activity. Through the use of cameras, or police officers witnessing drug transactions with their own eyes, a stakeout is a popular form of investigating drug crimes. Stakeouts rely on the element of surprise. As a result, the police will use unmarked cars to follow those that they suspect to be selling or transporting drugs. The police will wait until they observe a drug transaction and then swoop in and make an arrest.
The police are legally allowed to spy on your phone calls if they obtain a warrant from a judge to do so. What this means is that if you are arranging a drug deal over the phone, and the police have obtained a warrant to listen to your calls, they can then use this evidence to arrest you and bring criminal charges.
Still, wiretapping can include other forms of spying outside of phone calls. Your emails, text messages, and other forms of electronic communication (social media) can all be spied on if the police have a warrant. Wiretapping can also be used to determine your location. Because cell phones use towers to transmit their signal, the police can obtain a warrant to look at your cell phone records and to track your movements in an effort to prove that you were in a certain area when a drug transaction took place.
People that help the police catch criminals are known as informants. To be sure, these individuals are working with and for the police, but they are not police officers. Often informants have been caught selling or possessing drugs and have agreed to work with the police to catch other criminals. The reason that informants agree to work with the police is usually because they are offered a deal to get out of their own criminal matter. Notably, some informants simply work with the police in exchange for money. Regardless of their motive, informants can play a key role in helping the police catch you. A common example of how an informant may be used to catch you is where they are wearing a wire while conducting a drug transaction. The wire records your conversation with the informant and is then used by the police to arrest and charge you with a drug crime. Informants are used not just in Texas, but also by the FBI and by most state and federal law enforcement agencies.
Funded by the federal government, a drug task force is typically made up of law enforcement officers whose mission is to stop drug trafficking and drug abuse. Task forces work with state and federal law enforcement agencies, typically focusing on large criminal drug organizations. If you are purchasing or possessing large amounts of illegal drugs, or have simply been associated with members of a criminal drug organization, you may find yourself the target of a drug task force investigation.
Sometimes the police go undercover and pose as drug buyers. This is known as a controlled buy. Texas police will typically try to arrange a controlled buy with someone who is predisposed to purchasing drugs. What this means is that the police generally will not seek out a drug sale, but will instead focus on you if you have been observed selling drugs to informants, or are known to law enforcement as a drug dealer. In order to prove their case against you, the police obtain marked money (traceable money) to buy drugs from you. An undercover police officer will then go to a predetermined place to purchase the drugs. After a sale is made, the police check the buyer (undercover police officer) for drugs. Any drugs that the officer obtains in the controlled buy is then field-tested to determine whether the drugs are real. If the drugs turn out to be authentic, then you could be arrested for selling drugs. Once you have been arrested, the police will then seize the marked money involved in the sale and use it as evidence against you at your trial.
SEARCHES AND SEIZURES
The United States Constitution’s Fourth Amendment protects people from illegal searches and seizures without a properly executed warrant. What this means is that the police cannot search you, your home, or even your vehicle without first providing probable cause and obtaining a search warrant. The warrant has to specify what areas, buildings, or vehicles are to be searched. You should never just allow the police to search your home or vehicle without a warrant. You must also remember to read the warrant for the specifics of what is searchable and what is not. The search warrant doesn’t give the police a pass to search anything and everything they want to regardless of whether it might contain evidence of a crime. Without a warrant, and absent special circumstances such as a life-or-death emergency, you do not need to let the police into your home.
SEARCH OF VEHICLES
The police do not need to have a search warrant to search your car if they reasonably believe they have probable cause of drugs being in your vehicle, or evidence of some other crime. If you are stopped by the police and they want to search your car, do not give them consent. Refusing to give consent may not stop them from searching your vehicle, but if you emphatically state to the officers that you do not give consent to the search, then whatever evidence is found can potentially be challenged by your criminal defense lawyer. On the other hand, if you do give consent for a search, you may prevent your lawyer from arguing at your trial that the evidence found in your vehicle was obtained illegally.
PAT DOWN SEARCHES
A common way for police to search your body is to do an initial “pat down”. Generally, searches of your body or the clothes that you are wearing are not allowed unless you have been arrested or have consented to the search. Again, as a general rule, do not ever consent to have your body or clothes searched by the police, even if you are sure that you have nothing illegal on you. During these pat downs, the police can frisk you for weapons or anything that might be a danger to them.
Again, they typically can only do this if you’ve been arrested at the scene or if you consent to this type of search. During these searches, the police can, and often do, find illegal drugs or various types of drug paraphernalia for which you can be charged. A good criminal defense attorney might be able to challenge a search like this since the police are only supposed to be searching for weapons.
THE RIGHT TO REFUSE A SEARCH
You have the absolute right to refuse a search by any type of law enforcement, whether they be local, state, or federal. However, many people feel or believe that they do not have a right to refuse a search request by police. Because of the intimidating nature of the police, many people know that they have a right to refuse but are afraid to speak up. Do not be afraid to assert your rights.
Some people will allow the police to search themselves, their car, or even their home because they think that it might make them look innocent. Know that the police do not think like this. You may want to appear to be cooperating with police because you believe that it will help your circumstances somehow. However, if you are a suspect to the police, then all they want from you is information to ultimately use against you. If the only evidence that the police have to convict you is something that they obtained during an illegal search, one that you did not consent to, then that evidence could be rejected by the court, possibly causing the charges to be dismissed. There is a right in the Constitution that allows you to say no to unlawful or unreasonable searches. Use it.
If you have been charged with a drug crime in Texas, then there are a number of steps which have to take place before you can be found guilty and sentenced. These steps have been put in place to protect you and preserve your rights. The prosecutor cannot simply skip any of these steps and throw you in jail. Remember, it is the prosecutor’s job to prove that you committed a crime. Throughout the following steps, you and your lawyer will be given the opportunity to challenge the prosecutor’s evidence against you and present a defense. Critically, with the help of a good criminal defense lawyer, you may be able to have your case dismissed before you even go to trial.
This is typically the formal beginning of your criminal case. At your arraignment, you will be told by the judge or magistrate about the charges that the prosecutor has brought against you. You will then have the opportunity to enter what is known as a plea. Your plea is simply how you intend to respond to the charges brought against you. Your options are: not guilty, guilty or no contest. Pleading not guilty is sensible unless you have worked out an agreement with the prosecutor that calls for a different plea.
After you have entered your plea, the judge or magistrate typically will determine whether or not bail is necessary. The purpose of bail is to ensure that you will return to court for your trial. If you can show to the judge that you pose no threat to the community, and that you will not leave the state or country to avoid going to trial, then you may be released simply on a promise that you will return to court on your next court date. If you are not able to show the judge those things, you may have to pay bail. The amount of bail you will have to pay will be set by the judge. Once you show up for your trial, the bail money that you have paid will be returned to you.
During the next phase of your criminal case, you will be given an opportunity to view the evidence against you and potentially work out an agreement with the prosecution. In some instances, your case may be dismissed if the judge who is overseeing this phase determines that the prosecutor’s evidence against you is insufficient to move on to the next step.
An important aspect of the pretrial phase is what is known as plea bargaining. A plea bargain is an agreement between you and the prosecutor on how your case will end. Typically, a plea bargain will require you to plead guilty to a criminal charge in exchange for a reduced penalty. You may also have the opportunity to plead no contest. This is typically done when the prosecutor agrees to withdraw the charges after you complete certain requirements. An example would be community service or staying out of trouble for a specific period of time.
It is vital that you understand that any agreement that you reach with the prosecutor must also be approved by the judge. The judge in your case always has the option of rejecting your agreement if they do not like the terms. If this happens, then you may have an opportunity to work out a different agreement with the prosecutor that will then be resubmitted to the judge for approval. If you cannot work out an agreement that the judge approves, then your case will go on to the next step in the criminal justice process.
It is common for your lawyer to file a number of motions before your trial begins. A motion is basically a formal request by your attorney to the judge handling your case to take a specific action. A common example is a motion to exclude evidence. What this means is that your lawyer asks the judge to throw out certain evidence that the prosecutor plans on using against you at your trial. If your lawyer’s motion is granted, then the prosecutor will not be able to use that evidence during your trial. A successful motion to exclude evidence can result in your case being dismissed altogether.
The prosecutor will have the chance to respond to your lawyer’s motion request. Typically, a hearing in front of the judge is held to determine if the motion should be granted. In most cases, you will not be required to attend these hearings as they are typically argued only by the lawyers involved in the case. Still, witnesses may be called to testify during a motion hearing. After hearing arguments from your lawyer and the prosecutor, the judge will then make a decision to either grant or deny the motion.
If your case cannot be settled by a plea agreement, the next step is the trial. The purpose of the trial is for the prosecutor to present evidence to a judge or jury who will then determine if you are guilty of the charges brought against you. You must remember that it is the prosecutor’s job to prove beyond a reasonable doubt that you committed the crime(s) that you have been charged with. You are not required to come up with a defense or prove that you are innocent.
In Texas, you may have the option of having your case decided by a judge or a jury. A jury is a group of regular people from the community that will listen to the evidence and arguments at your trial, and then make a decision on whether you are guilty of the charges. The jury must be made up of people who have never met you and that have not been influenced in any way.
A trial typically begins with the prosecutor presenting to the judge or jury the evidence against you. This could be testimony from police officers, testimony from other witnesses, video, pictures and lots of other things. Your lawyer will have the opportunity to challenge all evidence put forth by the prosecutor. In most drug cases, the prosecution will also present evidence concerning the drugs involved in the case. What this means is that the prosecutor must show that the drugs that they claim were in your possession or control were in fact illegal drugs. In order to do this, the drugs must be tested by a laboratory. The prosecutor must then show through the testimony of the laboratory technicians that the substance(s) they tested were in fact illegal drugs. Again, your lawyer will have an opportunity to challenge this evidence and attempt to poke holes in the prosecutor’s arguments.
Once the prosecutor has presented all of the evidence against you, your lawyer will have a chance to present any evidence that will discredit or cast doubt on the prosecutor’s case. Remember, you are not required to present a defense and you have the absolute right to refuse to testify at your criminal trial. Still, it is likely that your lawyer will call witnesses and present evidence on your behalf.
After both the prosecution and your attorney have presented their cases, the judge or jury will issue what is known as a verdict. A verdict is simply the decision reached by the judge or jury concerning whether or not you are guilty of the charges. If you request to have a jury decide your case, then all of the jurors must agree in order for you to be found guilty or not guilty. If the jurors cannot agree, your trial will end in what is known as a hung jury. Critically, a hung jury is different from a not guilty verdict. In the event your trial ends in a hung jury, the prosecutor has the option of re-filing the charges against you and re-doing your trial in front of a different judge and jury.
If all jurors agree, then the verdict will either be guilty or not guilty. A not guilty verdict means that you have won and your trial is over. If you are found guilty, then your case will go on to the sentencing phase.
The sentencing phase of a criminal trial only occurs if you have been found guilty by the judge or jury deciding your case. Your sentence is just another way of saying what your punishment will be for the crime(s) that you have been found guilty of. Your sentence will be determined by a number of factors. Your criminal record, the seriousness of the charges, and your age could all be considered when deciding your sentence. At sentencing, you may have the option of presenting evidence and testimony from friends and family concerning your good nature. You may even be allowed to make a statement to the judge requesting leniency.
If there were mistakes in your trial that you or your lawyer believe should entitle you to a dismissal or a new trial, then you can file what is known as an appeal. An appeal must state what errors the judge, jury, or the prosecutor made during your trial. Your appeal must also show how those errors caused you to receive an unfair trial. If you can show your trial was unfair, you may have the verdict thrown out and your trial redone by a different judge and jury.
Texas law creates six drug penalty groups (or PG): PG1, PG1A, PG2, PG2A, PG3, and PG4. Which PG you are placed in by the judge will depend on the charges that you were found guilty of. For example, a charge for the manufacture of a particular drug and its delivery will be a different PG than mere possession of that drug. Your PG will further depend on the type and amount of the drug you are caught with. Schedule I drugs call for more serious penalties than Schedule V. Similarly, being in possession of a large amount of a particular drug will call for a more severe penalty than possessing a small amount of that controlled substance. There are also many other factors that might come into play in a specific case such as whether a minor was involved. Below are the six PGs and the possible penalties associated with them:
- Penalty Group 1 and 1A: Depending upon the amount of the drug, this group can start with a minimum of 2 years in prison with a $10,000 fine, and go all the way up to life in prison with a $250,000 fine.
- Penalty Group 2 and 2A: This is similar to PG1 and PG1A, but with a maximum fine of $50,000. It also allows for a life sentence if you are found to have 400 grams or more of a controlled substance in these groups.
- Penalty Group 3: The minimum for this group is a year in jail with a $4,000 fine, and a maximum of 20 years in jail and a fine of $10,000 for having 200 or more grams of the controlled substance.
- Penalty Group 4: Similar to PG3.
Notably, the penalties for crimes involving marijuana are different than the other controlled substances. The severity of your penalty will depend on the type of drug crime that you committed (e.g. possession, manufacture, distribution) and the amount of marijuana present. The penalties range from a Class B misdemeanor with 180 days in county jail, to a life sentence in prison.
TEXAS STATE LAW VS. FEDERAL LAW
Both Texas and federal law are very similar in how they categorize and penalize controlled substances and drug offenses. Under Texas law, there are categories of drugs that have been deemed illegal to grow, make, produce, possess or sell. Federal law is no different.
The United States Drug Enforcement Administration (DEA) has established seven categories of illegal drugs where federal law applies:
- Controlled Prescription Drugs: These are drugs that are legally manufactured by drug companies and legally prescribed by doctors, but are nonetheless abused by patients, family members and friends. These pills will often be prescribed legally by a doctor, but then turned around and sold on the streets.
- Heroin: Heroin is a highly addictive drug that the Mexican and South American drug cartels ship into Texas in huge amounts.
- Fentanyl, Other Synthetic Opioids: Over the last 15 years, these types of synthetic opioids, both on their own and when mixed with other drugs like heroin, have been one of the leading causes of drug overdoses and drug-related deaths in the United States.
- Cocaine: Another highly addictive street drug that is typically brought into the U.S. through the Texas-Mexico border.
- Methamphetamine: This drug can be easily manufactured and is highly addictive.
- Marijuana: Despite the fact that recreational use of marijuana is currently legal in many states, it is still a controlled, illegal drug under Texas and federal law.
- New Psychoactive Substances: This category of controlled substances is a hodge-podge of synthetically created drugs including synthetic cannabinoids and other drugs created in illegal laboratories around the world.
In a general sense, federal law enforcement is more concerned with drug trafficking on a national or international basis. Federal authorities primarily focus the resources of the federal government on large scale drug distribution operations such as cartels and gangs. The DEA has labeled drug cartels the most important threat to our country as it relates to controlled substances. These cartels come from South America, Mexico, the Dominican Republic, and Asian countries such as China, the Philippines, and Vietnam. The opposite is true for Texas drug enforcement divisions. Texas police and drug crime investigators focus their efforts on statewide drug distribution networks or local individuals who violate Texas state law.
FEDERAL VS. TEXAS SENTENCING GUIDELINES
If you are charged by federal authorities with violating Federal drug crime laws, then you will be sentenced under the federal sentencing guidelines. These guidelines were created so that drug crimes throughout the country will be treated the same no matter where in the country the crime was committed or where the defendant was arrested and convicted. The guidelines also create mandatory minimum sentences for certain types of drug offenses. This means that in some cases, the judge’s hands are tied when they wish to give a lesser sentence.
Texas also has minimum and maximum sentences on the various drug crimes listed in the Texas Controlled Substances law. In a normal case, the judge will decide the sentence of the defendant between the minimum and maximum ranges. It is the judge’s duty to explain the sentence given and the reasoning behind it. However, despite there being minimum and maximum sentences, generally, a judge will have more leeway under Texas state law versus what is allowed in the federal system.
DEFENSES TO DRUG CHARGES
An experienced Texas drug criminal defense lawyer will have several ways to aggressively defend against the prosecution of a drug crime. One of the most widely used tactics is a motion to suppress evidence. If evidence that the prosecution plans to use at trial was obtained in an improper or illegal way, then your defense attorney can file a motion with the court to have that evidence thrown out. What this means is that the prosecutor will not be able to use this evidence during your trial. In some instances, the thrown-out evidence is so important to the prosecutor’s case that the charges have to be dismissed. Sometimes, evidence can be thrown out because it was obtained through an improper interrogation or an illegal search and seizure. Motions to suppress evidence can also be filed when your rights have been violated by the police. The following are some examples:
- Being stopped by the police who had no probable cause that you were committing a crime. This includes stopping your car without evidence that you violated traffic laws.
- Undergoing a pat down by police who had no reasonable basis to believe that you were carrying a weapon.
- Searching a vehicle without your consent and without a proper search warrant.
- Searching your home without consent or without a proper search warrant.
- Searching your home when the police possess a warrant for your arrest, but not a search warrant for your home.
- Continuing to question you after you have requested to see a lawyer.
- When you have already hired a lawyer and the police continue to question you outside of your lawyer’s presence.
- Engaging in violence against you or threatening violence in order to force you to talk or give a confession.
In order to be convicted of possession, the prosecutor must prove that you knew, or had reason to know, that the drugs were in your possession. If you can show that you did not know that drugs were in your possession, then the charges might be dropped. For example, illegal drugs might have been found in your home, but they were found in an area where someone else was staying, like a guest room. Another example is when a passenger in your vehicle left their drugs in your car, and you had no idea that they were there.
NO AFFIRMATIVE LINK
An experienced criminal defense attorney can have charges dismissed if the prosecutor cannot prove that there was an affirmative link between you and where the drugs were found. For example, if you share a home with several people, and the drugs were found in a common area, then the prosecutor must prove that there is an actual link between you and the drugs that were found in the home.
UNLAWFUL SEARCHES AND SEIZURES
If evidence is obtained through an unlawful search and seizure, then that is a violation of the Fourth Amendment to the U.S. Constitution. Any and all evidence that was obtained through that search can be dismissed and never used during your trial. This can sometimes result in the criminal charges being dismissed altogether. There are several ways for a search to be illegal:
- There is no probable cause for the search. This means that before the police can search a home, vehicle, or an individual’s clothing or body, they must have a reasonable basis to suspect that a crime has been committed.
- Another way is through a search that you did not consent to and that the police did not have a warrant for. Also under this category is a scenario where your consent was given under deceptive means. This is where the police basically trick you into granting permission for the search.
- The search warrant is defective in some manner. In other words, the search warrant that was granted by the judge could have been based upon incorrect information or lies provided by the police.
SEARCH INCIDENT TO LAWFUL ARREST
The rules surrounding search and seizure change when you have been placed under lawful arrest. If this happens, then the police can search you and the immediate area that you have access to. If the arrest was done within a residence, a protective sweep can be done within the home to see if anyone else is present, all without a search warrant.
Once evidence is found and seized by the police, they must maintain proper custody of the evidence to make sure it is not tampered with or invalidated in any way. This is called the “chain of custody” in evidence collection. If the prosecutor cannot show that there was a proper chain of custody for a particular piece of evidence, then it can be argued that the evidence is not reliable and should not be used. The prosecutor must show that the evidence was property collected, marked, and bagged at the crime scene.
If the prosecution cannot account for how the evidence was handled after it was collected, then your lawyer can file a motion to suppress the evidence. If the judge decides to throw out the improperly handled evidence, then all of the charges could be dropped.
If you have ever seen an arrest on television, then you have probably heard the police give a suspect what is known as Miranda warnings (e.g. “You have a right to remain silent; anything that you say can and will be used against you in a court of law; you have a right to have your lawyer present when the police question you”). While you should not believe everything you see on TV, the Miranda warnings are in fact required when you are in police custody and they are about to question you. These warnings are a result of the U.S. Constitution’s right against self-incrimination. What this means is that the police must let you know that you do not have to speak to them and that you have the right to have an attorney present during questioning.
If the police question you while you are in their custody, and they don’t provide you with the Miranda warnings, then any statements that you make to them cannot be used against you during your criminal case. The police have a tremendous amount of power and could very easily force or deceive you into making statements that will be used against you. The law recognizes this imbalance of power, and as a result, requires the police to inform you of your rights before beginning an interrogation.
If the prosecutor wants to convict you of a possession charge, then they have to prove that what you possessed was actually a controlled substance. If you had something on you which did not appear on Texas’s controlled substance schedules at the time of the incident, then you have committed no crime. For example, suppose that Texas police arrest you for heroin possession. If what you possessed was brown sugar – not heroin – then you cannot be convicted of drug possession and your charges should be dropped.
Many substances listed on the controlled substance schedule are prescription drugs. If you have proof that your doctor prescribed the drug you were caught with, then you may have a defense to the drug crime offense. For some drugs in Texas, this defense will not be available as no doctor can legally prescribe them. Drugs like heroin, cocaine, and meth are illegal for anyone to possess, and no doctor can legally write you a prescription for them.
The State of Texas legalized marijuana for medical use in 2015. What this means is that if you have a prescription for marijuana from an approved doctor, then you can legally purchase and possess marijuana from a state-licensed dispensary. It is important to understand that Texas medical marijuana dispensaries can only sell marijuana with 0.5 percent THC or less. Critically, only cannabidiol oil can be sold at a dispensary in Texas. Currently, marijuana flower cannot legally be purchased or possessed in the state.
Entrapment is a legal defense to certain drug crimes in Texas. Entrapment is when the police entice an otherwise law abiding citizen into committing a crime. For this defense to be successful, the police must have made you commit the crime through persuasion or other suspicious means. In order for this defense to be successful, it does not matter that you were predisposed to commit the crime. Also, you have to be induced by the police to commit the crime. This defense doesn’t work if you would have done the crime even without the police’s encouragement.
An example of entrapment in a drug case is where a police officer has enlisted the help of an informant to investigate a known drug dealer. The officer asks the informant to buy drugs from the dealer, and the officer gives the informant money to do so. Once the deal is done, the informant brings the drugs to the police officer as proof, but then gets arrested for buying the drugs. This would be a classic case of entrapment and a valid defense to the criminal charges.
DEFERRED ADJUDICATION PROGRAMS IN TARRANT COUNTY
Tarrant County provides several pre-trial deferred adjudication programs that can keep you from experiencing the common criminal outcomes. These programs can help you correct a onetime mistake through being a part of a counseling program, mentorship, or a therapy or rehabilitation program. If eligible, being accepted into one of these programs could help divert your drug charges from the traditional outcome to one where the charges ultimately go away and your future is not ruined by a drug conviction.
DEFERRED PROSECUTION PROGRAM
This program is available for younger individuals who are between 17 and 24 years of age. This program will provide an opportunity for a first time young offender to demonstrate to the court that they can be rehabilitated. Other than the age requirement, in order to be eligible for this program, you cannot have a previous conviction of a Class B offense or more. The following will disqualify you from this program:
- Older than 24 years
- Previous juvenile case
- Member of the Mental Health Priority Population
- A positive drug screen at the time of the application
- A past conviction of a Class B offense or higher
- Previous participation in this program
FIRST OFFENDER DRUG PROGRAM
Tarrant County offers this program for first time drug offenders. If successfully completed, it is designed to help you remove the drug charge off your permanent record. There is no age limit for this program, and you might be eligible if you have been charged for the first time with a misdemeanor or low-level felony drug charge, provided you have never been arrested before. The following offenses may be eligible:
- Possession of controlled substance under 2 ounces
- Possession of marijuana under 4 ounces
- Controlled substance under 28 grams in drug free zone
- Forging or altering prescription
- Possession of dangerous drug
- Diversion of controlled substance
- Attempt of any above listed offense
To be eligible, you cannot have been previously convicted, have current or past community supervision or deferred adjudication, or have any pending case for offenses other than Class C misdemeanors or less serious offenses.
Being charged with a drug crime in the State of Texas is no laughing matter. When it comes to a drug charge, your freedom and reputation are at stake. As a result, hiring an experienced lawyer to defend you should be a top priority. While the government may provide you with a public defender, they are often overworked and lack the incentive to aggressively fight for your rights. The lawyers at Fulgham Hampton Criminal Defense Attorneys have a proven track record in successfully defending those charged with drug crimes in Texas. We will do everything in our power to help you get the best result possible. Do not gamble on your future. Reach out to Fulgham Hampton Criminal Defense Attorneys today by calling (817) 826-9905 or by contacting us online.