By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Drug crimes in Texas operate very similarly to one another regardless of the substance alleged to be possessed. While the specific substance and the quantity dictate the level of offense, the law of “possession” in Texas is consistent.
Many people feel as though because they were in a situation where drugs were present that they are guilty of an offense. Not so in Texas.
“Possession” is defined by Texas Penal Code 1.07(a)(39) as “actual care, custody, control or management.”
The operative word (in my opinion) is “actual.” This means the prosecution must prove the drugs were in your possession — i.e. that the defendant ACTUALLY exercised some degree of of care, custody, control or management — of whatever contraband they have alleged the accused possessed.
If you think about how the police tend to encounter drugs — then you begin to get an idea of the struggles at trial of how the prosecutor attempts to persuade a jury that the accused actually possessed drugs (and the task of the defense lawyer to defend against the allegations). Some arrests are done when the drugs are found somewhere in a car. Some arrests are the result of drugs found under a search warrant, and some arrests come from pat-downs of someone’s person. In many instances, it’s not clear who possessed or controlled the drugs.
Generally, the prosecution must show some affirmative link between the accused and the contraband. This means they present circumstantial evidence of possession — for example if drugs are found in a car — who is the car’s owner? Who was driving? Who could have put the drugs where they were found?
Case law is very particular about “affirmative links” and where no legal affirmative links exist — a defendant may legally be entitled to acquittal as the State’s evidence of “possession” may be insufficient.
Defending drug possession cases is a very technical and detail oriented task for experienced criminal defense attorneys.
Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice, you should consult an attorney.