Have you been charged with Possession in Tarrant, Dallas, Parker, or other surrounding County? The penalties that you will face depend upon a number of factors. The two most important criteria are what kind of controlled substance it is and in what amount. The State also must prove that you knowingly or intentionally possessed it. Almost all crimes are found in the Texas Penal Code. However, drug charges are not. They can be found in the Texas Controlled Substances Act, which is located in Chapter 481 of The Health and Safety Code. This article will discuss many aspects of a Possession charge in depth, including what Possession means, and some of the consequences of this criminal accusation. The impact of a conviction can go beyond the criminal charge. Aside from potential jail time, fines, or probation, you could also be looking at a 6 month driver's license suspension. In Texas, like many other states, controlled substances are classified into four different penalty groups. These four groups are called Schedules. Marijuana is not included in the controlled substances, and carries its own penalties. This can be a complex part of the law. It is important to know that If you are facing this charge, it is important to get your defense started. There are all kinds of substances that are illegal to have (or at least illegal to have without a prescription). This article discusses the concept of possession and what it means. It also outlines some possible defenses to a charge. This article is about what possession means, what intent means in the context of a possession charge, and what an unconstitutional search is. For more in depth coverage, see Possession of a Controlled Substance and Possession of Marijuana.      

What Does Possession Mean?

What does Possession actually mean? What does it mean to actually possess something? The Texas Penal Code has a different, broader definition that Merriam-Webster does. Merriam-Webster defines it as ownership. The penal code construes possession to be akin to having or controlling, and does not go so far as owning. According to the law, if you have something on you, you possessed it. If it's in your glove compartment and it's your car, you possessed it. If it's in your backpack or purse, you possessed it also. All of these assumptions are ripe for defense challenge, of course. 

Possession, as we commonly know it, means owning or having something

The dictionary definition is about ownership, the Texas statutory definition is far broader and casts a wider net. Here is the definition from Chapter 481.002 of The Health and Safety Code:  

Legal Possession has four components to it: it means custody, control, care, or management. 

For the charge of possession to stick, the State must show that one of these four concepts must be proven beyond a reasonable doubt: a person must maintain actual control, management, care, or custody over the controlled substance. For instance, if a police officer finds a small bag of cocaine in your pocket or in your boots, it may be easy to show that you have control and exclusive possession. So, the dictionary concept of ownership is much narrower than the legal definition. A person can possess marijuana or a controlled substance and not own it. For example, by simply caring for the plant—watering, providing sunlight, and generally caring for it—someone can be charged with possession. They do not have to physically own it. That is, provided the search is legal—the constitutionality of the search is always an issue in possession cases.

Depending on the facts and circumstances of your case, it may be difficult to demonstrate possession. Possession is always very dependent by specific facts of the case. Sometimes control, management, or care may not be easy. What if the drugs are not on you, but are in a shoebox in an adjacent room of your house? How did you know they were there? Possession might be easier to show beyond a reasonable doubt if the shoebox is under your bed than if the shoebox was in a spare bedroom that someone else was using. It all depends on the facts. And possession is going to be a big battle in these cases. The State must present evidence that affirmatively connects you with the drugs; they must demonstrate actual control.  

Misdemeanor Possession

The criminal penalties for possession can be either a felony or a misdemeanor. For most controlled substances, the penalties are felony level. That is discussed below. Most of the controlled substances that come to mind are penalty group 1 drugs. These include cocaine, methamphetamine, heroin, and many others. The penalties for these drugs begin as felonies, regardless of amount. However, there are misdemeanor level punishments for controlled substances in other penalty groups 2-A, 3 and 4. The most common controlled substances that are criminalized as misdemeanors are prescription drugs. These include alprazolam (xanax), diazepam, lorazepam, and many others outlined in penalty group 3. There are two levels of misdemeanors, class A and class B. Misdemeanors are prosecuted in County Criminal Courts or County Courts at Law. This depends on how populous the county is and if they are big enough to have county courts that only deal with criminal cases. Large counties like Dallas, Harris, Travis, Tarrant all have these. Tarrant has ten of them. Misdemeanors carry only county jail time, if applicable. There is no possibility of time spent in prison, unlike felony convictions. Often times, misdemeanors convictions or deferred adjudications carry probation. Deferred adjudication is a way to avoid a conviction. Although a person will plead guilty, the judge will withhold a finding of guilty if the person completes probation and all conditions of probation. Class A carries a range of punishment of up to a year in county jail and up to a $4,000 fine. Class B misdemeanors carry up to 6 months in county jail.

Felony Possession

The majority of criminal penalties for possession of a controlled substance are felonies. Most criminal charges for possession of a controlled substance arise out of penalty group 1. These are always felonies, regardless of amount. As mentioned above, penalty group 1 substances include most of the well-known street drugs and many others. These include cocaine, opium, heroin, methamphetamine. It also includes fentanyl and gamma hydroxybutyric acid (GHB). There are many, many other substances that are included in penalty group 1. Possessing any of these in any amount is a felony charge. Any amount under one gram is a state jail felony. A state jail felony ranges in potential punishment in state jail confinement between 6 months and 2 years. Amounts between one and four grams is a third degree felony. A third degree felony ranges in potential punishment in prison between two and ten years in prison. An amount over four grams and up to two hundred grams is a second degree felony. This carries between two and twenty years in prison. Any amount over two hundred but less than four hundred grams is a first degree felony. This ranges in punishment between five and ninety nine years in prison. Anything over four hundred grams is punishable by either life in prison or ten to ninety nine years and up to a $100,000 fine.            

“But Officer, I Thought it was Baking Soda…”

Even if you the State of Texas can demonstrate that you possessed marijuana or a controlled substance beyond of a reasonable doubt, they also have to show that you have knowledge that you are possessing a controlled substance. Without this knowledge, you are not committing a crime. They must prove that you knowingly or intentionally possessed the substance. Why is this important?  

Perhaps your explanation to the officer that you thought the white dust inside of a plastic bag the size of a postage stamp was baking soda will not work. How could a person possess controlled substance and not know it? It happens to all of us, and it happens more often than you think. Have you ever been asked to hold a friend’s purse? You likely agreed to it without thinking twice about it, but you didn’t know everything inside when you agreed to do so. That would be an invasion of privacy. Has one of your buddies ever left his backpack at your place, or in your car? Likely, you kept it for him/her for a short time until a time in which they could come get it back. But you didn’t go through the contents. No, you respected their privacy. You didn’t know the contents of the bag, and it likely didn’t even cross your mind. Have you ever borrowed a friend’s car to run to the store? If so, it isn’t likely that you inspected the trunk or every container in that car before driving away. Imagine that your friend has a very small bag of cocaine inside of a cigarette box in the console. You didn’t see it there when you got into the car. If you then get stopped for speeding and one thing leads to another and the cocaine gets discovered (ignoring for the moment whether the stop or search was constitutional), have you knowingly or intentionally possessed it? No, you have not. Unfortunately, you are going to need to retain a skilled criminal lawyer to demonstrate that you did not knowingly or intentionally possess anything illegal.  

What is an Unconstitutional Search?

The question of whether or not the search was legal or constitutional is always going to be a key question in any Possession case. Whether or not the search of your home, your car, or your person is or is not constitutional is the first thing that I examine when I get a possession case. There are both Federal and Texas Rules that protect us from both searches and seizures without either a warrant or probable cause. Protection from unlawful and indiscriminate searches and seizures is one of our foundational constitutional rights, and one of the facets of our government that, at the time, separated us from England. The Founding Fathers believed it was very important to prevent the long arm of the law from reaching into our homes and our affairs without a warrant. The essence of the Fourth Amendment to the United States Constitution is our right to be secure in our homes and on our persons, against both searches and seizures that are unreasonable. Warrants shall only be issued based on probable cause, and the thing or person that is to be searched must be listed with particularity.  

Illegal Searches and Possession 

So what does this mean in the context of a Possession charge? It can become a crucially important weapon in the defense of this and other criminal accusations. Your rights in your home are very strong. There is a warrant requirement for police to search your home. The Supreme Court has ruled and reiterated that your rights in your home are the strongest rights, and that is why a warrant is required. Although, there are a few exceptions—such as consent, or hot pursuit. If an officer comes to your home and does not have a warrant, but you give that officer consent to search your home, and that consent is freely and voluntarily given, you cannot later argue that police didn’t have a warrant. It doesn’t work that way.

Your rights in your car are unfortunately not as strong as they are in your home. Your Fourth Amendment rights inside your automobile have been cut away over the years. The Supreme Court has determined that police do not need a warrant to search your vehicle provided that they have probable cause. Probable Cause is not clearly defined, but it essentially means that there is a a crime has probably occurred. But, without an independent review by a neutral and detached judge like a warrant requires. If you or a loved one is facing a Possession charge, call me and let’s discuss your case. I am happy to sit down with you and help you map out a strategy and build a defense.