Possession of Cocaine

September 6, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972)562-7549

texasdefensefirm.com

Possession of Cocaine in any amount is a felony offense in Texas. Texas Health & Safety Code Sections 481.115 and 481.102 are the governing statutes. Section 481.102 places Cocaine in Penalty Group 1 of the Texas Controlled Substances Act, and Section 481.115 is the statute which makes it’s possession illegal. That law says:

“(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

“(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.

“(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

“(d) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.

“(e) An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.

“(f) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Texas Penal Code Section 1.07(39) legally defines possession as actual care, custody, control or management. Further, it is an extremely common defense to challenge the legality of the search where the cocaine was procured.

There are other aggravating factors under Texas State law which can enhance charges such as possession in a drug free zone or possession with intent to distribute.

Finally, under Texas law, first-time drug offenses which are in the State Jail Felony category MUST be punished by probation where there has been a conviction as the legislature has made recent strides towards rehabilitation in the past few sessions.

*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 about any situation you should directly consult an attorney licensed in your state.

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Posted by Jeremy Rosenthal, Esq.

Do the Police Have a Right to Enter and Search a House Without Your Consent?

June 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

They usually need a warrant to search a house.

As a rule of thumb, the more private an area is to an individual, the more difficult it is for the police to search under the Fourth Amendment to the U.S. Constitution.

A home obviously has the greatest expectation of privacy and is clearly more private than an office or a car or any other place the police may search for drugs, weapons, or even computers.  Police can only search without a warrant in very limited circumstances.

If the police search a home improperly, then the evidence will not be admissible during a trial.  This can mean cases ranging from possession of marijuana, cocaine, methamphetamine or possession of drugs with intent to distribute, all the way up to murder cases, can be severely crippled or even thrown out because of an invalid entry by police into a home.

Police can use an exception called “exigent circumstances” to do warrant-less entries into the home.  Where police have probable cause to believe an offense has been committed and there are “exigent circumstances” they can enter a house without a warrant.

Examples include if they are in “hot pursuit” of a suspect, there is clearly danger to someone inside, or if the officer is in danger.  Another exigent circumstance is if the officer believes evidence is being destroyed inside.  For an officer to claim he fears that there is destruction of evidence, he needs to have strong probable cause of a serious offense.

The main way police search houses without warrants, however, is because the homeowner (or another resident) consents to the search.  The consent must be voluntary and cannot be coerced.  Displays of force or threats to get search warrants can call the search into question.  A person does not have to consent to a voluntary search of a home.

Police use a technique called a “knock and talk” which courts have consistently upheld as being valid.  This is where an officer suspecting drugs or drug trafficking (for example) merely knocks on the door and asks to search.  Where police attempt to manipulate or coerce consent is where there have been legal problems with the searches.

The police won’t tell you it is perfectly legal to tell them to go away the same as if they were trying to sell you cookies at your doorstep… and if you allow them to search voluntarily, you’ve punted a ton of rights away.

*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 specific legal advice, you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Do I need an Attorney for Drug Charges in Texas?

May 11, 2010

Yes.  The law of drug possession and/or distribution is a highly complex area.  The law surrounding possession, search and seizure, or what it means to have intent to distribute are just some some of the highly technical issues encountered in Texas drug cases.

Law enforcement is typically not interested in your side of the story — and that is where effective advocacy plays a role as well.  Just because the prosecutor and the police believe there is only their side to the story doesn’t make it so.  It is the Judge and Jury that often decide.

Even in situations where someone may have a substance abuse problem — Texas has long had the mentality that harsh punishment and cruelty will cure substance abuse.  While many prosecutors and judges are now getting the message — that these problems don’t solve themselves — stiff criminal penalties and criminal records can still haunt people for the rest of their lives.

If you’re facing drug possession or distribution charges whether it be for Marijuana, cocaine, or any other type of drug, an attorney can help attain the best result possible in your case.

Jeremy F. Rosenthal, Esq.

(972) 369-0577

*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 specific legal advice you should directly consult an attorney.

 

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