How To Beat A Possession Of Marijuana Charge In Texas: A Former Prosecutor Explains! (2022)


Defense Attorney for Marijuana Charges in Fort Worth, Texas: Possession & Distribution

Politicians of both major political parties are talking about criminal justice reform, reducing penalties for drug offenses and decriminalizing marijuana. Meanwhile, Texas law still prohibits the possession of even insignificant amounts of marijuana and, depending on the amount possessed, a conviction can result in a sentence of up to life in prison, and a hefty fine.

Anyone facing charges for cannabis should seek counsel from an experienced marijuana charge lawyer before speaking to any investigators, detective, or law enforcement officials. Remember that you have the right to remain silent and insist that your attorney is present, and you should absolutely exercise that right if you want a fair chance of winning the case.

Is It Illegal To Possess Marijuana In Texas?

Yes. Although some counties in Texas are choosing to issue a ticket with no arrest for possession of lesser amounts of marijuana, you can be subject arrest and charges for possession of any amount of useable marijuana. Specifically, under Texas marijuana laws, it is a crime to exercise care, custody or control over marijuana or THC. The marijuana must be a “useable quantity.” A useable quantity is an amount of marijuana, not including seeds and stems, that can be ingested, smoked, etc.

THC oil is categorized as a separate crime from possession of marijuana, and we will discuss the differences later in this article. The Texas Legislature determined that possession of marijuana should be punished more severely based upon the weight of the drugs, including adulterants and dilutants. In other words, the heavier the drug weight is determined to be by the drug lab, the more severe the legal consequences.

Consequences of a Misdemeanor Marijuana Conviction in Texas

In Texas, possession of marijuana has not been decriminalized like it has in so many other states in the United States.

According to the Texas Health and Safety Code, Section 481.121, even a ridiculously small amount of marijuana can send you to jail for up to six months! A misdemeanor possession of marijuana conviction carries the following penalties in Texas:

  • Class A Misdemeanor: The most serious offense for possessing an amount between two and four ounces. It carries a jail sentence of up to one year and a fine up to $4,000.
  • Class B Misdemeanor: This is for possession of more than two ounces but less than four ounces and carries a penalty of up to 180 days in jail (six months) and a fine of up to $2,000.

Fines & Penalties for Felony Possession of Marijuana in Texas

Possession of four ounces or more of marijuana results in felony charges according to Texas Criminal Code. If convicted, the penalty depends on the amount of marijuana the state alleges you possessed. The more marijuana you are charged with possessing, the harsher the penalties:

  • State Jail Felony: More than four ounces but less than five pounds of marijuana carries a penalty ranging from 180 days to two years in jail with a fine up to $10,000.
  • Third degree felony: Possession of five pounds up to fifty pounds carries a penalty of between two and 10 years in prison and up to a $10,000 fine.
  • Second degree felony: Possession of more than fifty pounds but up to 2,000 pounds carries a penalty ranging from two to 10 years in prison and up to a $10,000 fine.
  • First degree felony: Possession of more than 2,000 pounds carries a minimum mandatory sentence of five years in prison up to life in prison or a range up to 99 years and a fine not to exceed $50,000.

In determining the sentence within the range allowed by law, courts will consider all relevant background information, including any prior offenses, and all the circumstances surrounding the individual offense.

Laws Regarding Medical Marijuana in Texas

It is illegal to possess marijuana in Texas for any reason and possession of medical marijuana is not a defense. Even if you are visiting Texas from one of the fourteen states that allows possession of marijuana for medical purposes, and you have a medical marijuana card documenting a valid medical condition for possession in your state, you will still be charged with marijuana possession and, if convicted, you will be sentenced depending upon the amount of marijuana you possessed at the time of your arrest.

How Is Possession of THC Oil Punished In Texas?

Possession of THC oil or CBD Oil with a high THC content has been debated recently in the 2021 Texas Legislative session. There have been proposals by lawmakers to lower the punishment for possession of THC oil and CBD oil with a high THC content. However, those proposals did not pass in the Legislative session. As a result, possession of marijuana as THC oil remains illegal in Texas.

Under Texas Health and Safety Code, Section 481.002, Texas has categorized THC oil as a penalty group two drug. Because THC oil is a PG2 drug, anyone who has been arrested and charged for possession of THC oil will be facing a felony drug charge.

If the weight of the THC oil is less than one gram, you will be facing a state jail felony, punishable by a minimum of 180 days and up to 2 years in a state jail facility and up to a $10,000 fine. If the weight is more than one gram but less than found grams, you will be facing a third-degree felony, punishable by a minimum of two years and up to ten years in prison. Possession of THC oil weighing more than four grams, but less than two hundred grams is punishable by a minimum of two years and up to twenty years in prison. If the weight of the THC oil is more than four hundred grams, you will be facing a first-degree felony, punishable by up to life in prison and up to a ten thousand dollar fine.

Is It Possible To Get A Possession of THC Oil Case Dismissed?

It is possible. The first thing you should do is hire a Fort Worth drug possession lawyer that knows Texas drug laws and strategies to negotiate a favorable result on your case. At The Hampton Criminal Defense Attorneys, PLLC, we have negotiated a number of case reductions and dismissal for clients that have been charged with serious felony possession of marijuana and THC cases.

The best marijuana possession attorneys know that the prosecutor is fighting a losing battle at a jury trial involving THC oil. Most jurors are aware of the medical benefits of marijuana and oil cases are seen in a different light by much of the population. Because it is not being smoked, many jurors do not attach the negative stigma that many people associate with pot smoking.

As a result, we push the THC oil case to a trial setting demanding the prosecutor treat our client fairly by dismissing or reducing our client’s case. Although every case is unique, we make it a practice to fight tirelessly to obtain the following results for every client we represent for possession of THC oil:

  1. No jail time – it is unacceptable for our client to spend time in jail for a possession of THC oil. If you are a first-time offender, your drug lawyer should fight as long as it takes to ensure you maintain your freedom.
  2. No criminal conviction – in addition to maintaining your freedom, you must not become a convicted felon. Becoming a convicted felon will result in a loss of your voting and gun rights. Additionally, convicted felons find it difficult to obtain meaningful employment, which forever limits your potential and the potential of your family.
  3. Removal of all criminal arrest and case records – finally, it should be the goal of every criminal defense attorney to resolve their client’s case in a manner that ensures an opportunity to have the arrest and criminal records expunged for sealed from their criminal record.

Defenses to Marijuana Possession Charges

In order to obtain a conviction of possession of marijuana, the prosecutor must prove beyond a reasonable doubt that you knowingly and intentionally exercised care, custody, or control over the marijuana. Negotiating a favorable result depends upon your drug attorney’s ability to develop a legal defense for your case. As such, it is critical that both you and your criminal defense attorney sit down and develop a winning defense strategy. Defenses may include:

No Criminal Intent To Possess

Merely exercising care, custody or control over marijuana is not sufficient to prove possession of marijuana beyond a reasonable doubt in criminal court. The prosecutor must also prove that you possessed the marijuana “intentionally or knowingly.” In other words, you must have known about the presence of the drugs and decided to consciously exercise care, custody, or control over those drugs.

For example: we represented a client that was arrested for possession of marijuana because the police executed a search warrant in his apartment. However, two other tenants lived in the same apartment and the drugs were found in a shared area of the apartment (the living room). Our client immediately told the police he had no idea about the drugs and did not know they were present.

Can the police prove possession of marijuana? Mere presence at the scene where drugs are found is not enough to prove possession of marijuana. Here, the police would have to show that the client had knowledge regarding the presence of the drugs, such as the drugs found next to the client’s wallet or other belongings. There, the prosecutor would have a stronger case. However, under this set of circumstances, there was reasonable doubt established and this provided us leverage to negotiate a favorable result for our client.

Illegal Search and Seizure

Did the police have a valid search warrant? Did the search warrant affidavit establish probable cause to justify the search? If not, your criminal attorney can attack the search warrant in court by filing a motion to suppress and requesting a hearing. If you receive a favorable ruling, your marijuana case could be thrown out!

What if there was no search warrant but the police searched you or your car anyway? In that situation, your drug possession attorney should look to see if the drug officer had independent probable cause to justify a search. A mere hunch that you had drugs in your possession does not establish probable cause. If your warrantless search was illegal, your criminal defense attorney may be able to get your marijuana case dismissed.

Inability To Prove “Possession”

Can the prosecutor prove that you exercised care, custody, or control over the marijuana? As we identified earlier, merely being present at the scene does not prove the criminal element of possession.

The prosecutor must “affirmatively link” you to the drugs in order to prove possession. In other words, if the drugs were not found on your person, the prosecutor must look for pieces of evidence that link you to the possession of the marijuana. If the drugs were found in the center console of your car and nobody else was in the car, there is a persuasive argument that they can affirmatively link you to the possession of those drugs.

However, what if there are multiple people in proximity to the marijuana? Although the prosecutor could try to argue joint possession, it will be difficult because the issue of criminal intent will arise (as discussed earlier). If the prosecutor can not specifically link the drugs to you, your drug possession attorney should push for a dismissal of your possession of marijuana case.

There are other defenses that can be raised based on the circumstances surrounding the arrest. If you have been charged with marijuana possession, it is imperative that you protect yourself and consult with an experienced marijuana possession defense attorney as soon as possible to help you prepare a defense.

Contact an Experienced Fort Worth Marijuana Possession & Distribution Defense Lawyer

If you, or anyone you know, is facing a marijuana possession charge in Fort Worth or a surrounding city in Tarrant County Texas, contact The Hampton Criminal Defense Attorneys, PLLC for a free and confidential consultation.

Jeff Hampton and his team of Former Tarrant County prosecutors know how the other side works, so they have an edge in defending your drug case. Whether charged as a misdemeanor or felony marijuana possession, a conviction can deprive you of your freedom and cause you difficulty in many of life’s transactions such as getting a job, car, or home loan, or renting an apartment or house. The charges are serious, and you need an aggressive, strategic marijuana possession attorney standing by your side fighting for your freedom.

Contact The Hampton Criminal Defense Attorneys, PLLC now for a free consultation and case analysis. Our team of criminal attorneys have over 85 years of criminal law experience and over 550 criminal jury trials in Fort Worth, Dallas and other courts in the North Texas are. Call now (817) 826-9885.