Texas Marijuana Charges for Beginners

July 2, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

For Starters

Just because the police see it one way doesn’t make it so.  Marijuana charges in Texas are thrown out by judges and juries on a daily basis.  Aggressive legal representation is a must.

The Nuts and Bolts

Texas Health and Safety Code Section 481.121 governs possession of Marihuana.  That provision states, “a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.”

Tex.Health&Saftey.C. Section 481.002(26) defines marihuana as “the plant cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds.”

Possession is defined by Tex.Code.Crim.P. 107(39) as “actual care, custody, control, or management.”

Search and Seizure and the Exclusionary Rule

Drug cases will very frequently have search and seizure issues due to how the drugs were attained by law enforcement.  The 4th Amendment to the U.S. Constitution prohibits unreasonable search and seizure.   Voluminous legal cases and treatises are devoted to the topic.  The exclusionary rules (Tex.Code.Crim.P. 38.22 and 38.23) prohibit evidence in trial that is attained illegally.

Search and seizure issues alone often decide marihuana and other drug cases because of the exclusionary rule.

Punishment

Possession of Marijuana is a Class B misdemeanor which is punishable by a fine not to exceed $2,000 and up 180 days in jail for a usable quantity less than 2 ounces.

Between 2 and 4 ounces is a Class A misdemeanor punishable by up to a $4,000 fine and a jail sentence not to exceed 1 year.

Between 4 and 5 ounces is a State Jail Felony punishable between 180 days and 2 years of State Jail and a fine not to exceed $10,000.

Between 5 and 50 pounds of marijuana is a 3rd Degree Felony punishable between 2 and 10 years in prison and a fine not to exceed $10,000.

Between 50 and 2,000 pounds of marijuana is a 2nd Degree Felony punishable between 2 and 20 years of prison and a $10,000 fine.

Over 2,000 pounds is a 1st Degree felony punishable by life in prison or between 5 and 99 years in prison.

*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 for any specific case you should consult an attorney.

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The Legal Definition of Drug Possession

May 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

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.

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You Don’t Have to Prove You Are Innocent — It’s Probably Impossible Anyway!

March 4, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

One of the most common misconceptions in criminal law is people’s confusion about the difference between proving innocence and casting doubt.  It’s an understandable mistake because after all — we’re all programmed since birth to hear ‘both sides of the story.’

In our system of justice — you are under absolutely no burden whatsoever to prove you are innocent.  The prosecution must prove you’re guilty beyond all reasonable doubt.  If they can’t, then you’re entitled to acquittal.

This is because another way of saying a person has a reasonable doubt is there is a reasonable chance the person is innocent too.  So you can see the huge difference in demonstrating how innocence is a reasonable possibility and actually convincing jurors a person is innocent.

When I had jury duty in Collin County they even showed us a video where an actor said, “we had to find the person innocent” which, to me, sounds like someone scratching a chalkboard… they really had to find the person was ‘not guilty.’  and there is a huge difference.

There is really no other fair way to have a criminal trial if you really think about it.

During jury selection, I’ll often ask a panel member how they would prove to me that they didn’t break a traffic law — say speeding or running a red light — on their way to court.  Most say that they could swear to it.  But then they draw a blank about how they would actually prove their innocence with hard evidence and not just their word.  The truth is that they could never prove their innocence unless there was some sort of camera following them on their entire trip which is silly to even think about.  In fact, the harder they tried to somehow unsuccessfully prove their innocence — the guiltier they would look!

Think about all the people being let go after years and years of prison due to exoneration.  Those are cases where there is DNA evidence — and DNA evidence is not commonly used in DWI cases, theft cases, or drug possession cases.  It’s not always even available in murder or sexual assault cases!

If you’ve been charged in Dallas or Collin County you shouldn’t worry about whether you can prove that you’re innocent.  I’ll save you the time and trouble — there is a great possibility that you can’t – and you don’t have to anyway.  Focus on getting a criminal defense lawyer that can use the evidence available to cast doubt on the prosecution and state’s conclusions.

*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 should be considered legal advice.  For legal advice you should consult directly with an attorney.

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