Texas Penal Code Section 481.121 makes the possession of marijuana a criminal offense. Sounds simple, right… if there were drugs where you were and the police found them then you’re guilty, right? Not exactly. Remember, not only does the state have to prove beyond all reasonable doubt every element of this charge, but they may also have to prove whatever mechanism the used to attain the marijuana (the search) was lawful.
What is the Legal Definition of Possession?
Texas Penal Code Section 1.07(39) defines “possession” as “actual care custody, control or management.” Proving this for the prosecution is harder than it may seem. In other words, it’s not enough to prove that someone was merely in close proximity to the drugs. The state must prove that the accused somehow ACTUALLY took some action to control the paraphernalia in question. Take for example where a car with 4 passengers is pulled over. A passenger in the back seat has marijuana in his pocket — gets nervous — and tosses the marijuana underneath the driver’s seat. After an eventual search of the car – let’s assume the driver gets charged with marijuana possession. The prosecution must still prove at trial that the driver exercised actual care, custody, control, or management of the marijuana in question. If the only evidence is that the drugs were found near the driver, the driver in this scenario may be acquitted of possession of marijuana.
Were the Police Allowed to Search?
That is always a question which must be reviewed in great detail. Everyone within our country’s borders are free from unreasonable searches and seizures based on the 4th Amendment to the U.S. Constitution. Your remedy from an illegal search or seizure is through what is known as the exclusionary rule. That rule blocks anything and everything attained illegally by police or the government from coming into evidence at trial. With no evidence at trial, the prosecution loses because they have the burden of proof.
Though I could write about this all day, there are two main kinds of searches. With or without a search warrant. A search can be as simple as a pat-down by and officer or a full scale digging of a car or house. Most searches are without a warrant and the law actually presumes those searches to be unreasonable. The state must prove their reason to search fits within an exception by clear and convincing evidence if the defendant challenges the search. A search warrant is presumed reasonable, but is more difficult and time consuming for the police to attain. You can still challenge a search warrant if it was done improperly.
The word “illegal” with searches tend to throw people too. Think of it more like an “illegal procedure” penalty in a football game and not some action that will get the police officer thrown in jail himself for doing it wrong.
Judges can and do frequently throw out illegal searches for drugs, marijuana, and other paraphernalia whether they are from cars, houses, and even illegal searches in schools.
Punishment Ranges — What Level Offense is it in Texas?
The punishment for possession of marijuana depends on the amount alleged to have been possessed though other surrounding circumstances can kick up the punishment range such as possession a school zone or possession with intent to distribute. Otherwise the punishment ranges are as follows:
A usable quantity but less than 2 ounces is a class b misdemeanor;
More than two ounces but less than four is a class a misdemeanor;
More than four but less than five is a state jail felony;
More than five pound but less than 50 pounds is a third degree felony;
More than 50 pounds but less than 2,000 pounds is a second degree felony;
Over 2,000 pounds is a first degree felony.
Jeremy F. Rosenthal, Esq.
(972) 562-7549
*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 specific situation you should contact an attorney directly.
Posted by Jeremy Rosenthal, Esq. 