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Texas Drug Possession Crimes

By June 1, 2018February 9th, 2024Drug Possession

5 Ways To Beat A Drug Possession Charge! A Former DA Breaks Down Your Drug Defense! (2021)

While much of the rest of the country is moving forward to legalize the use and distribution of marijuana, Texas has remained steadfast. Even today, marijuana is one of a long list of drugs on the list for drug possession charges, which are criminal offenses in the state of Texas.

The penalties for possession range from small fines to months or years behind bars, and can have a serious impact on your ability to gain employment. (Possession of cocaine or heroin are state jail felonies in the state of Texas.)

Luckily, drug possession charges are not the most serious offenses that the court has to deal with. If you make the effort to hire a criminal defense lawyer and build a strong case, you will have a better chance of achieving a positive outcome.

Drug possession is one of the most common crimes in Texas. It is important to understand what the State of Texas must prove. Generally, The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly exercised care, custody or control of the illegal drugs. The police must “affirmatively link” you to the drugs. Failure to affirmatively link you to the drugs and establish criminal intent regarding the possession of the drugs will result in a dismissal or not guilty verdict at a criminal jury trial.

Additionally, if you are facing a felony drug possession charge, it is critical that you find an experienced and aggressive criminal defense attorney that has a track record of handling drug cases. The best criminal attorneys make it a practice to gain access to the police reports and digital media evidence, share the information with their client and formulate a defense strategy based upon any possible police misconduct or factual weaknesses that are found by a thorough analysis.

If it is determined that a criminal defense strategy is appropriate for your felony drug possession case, your criminal defense lawyer can request an evidence packet be presented to a grand jury. Under Texas criminal law, a grand jury is a panel of citizens tasked with the responsibility of listening to evidence and making a determination if there is probable cause sufficient to move the case forward in the felony court.

Your criminal defense attorney can prepare a packet of evidence and make the argument to the grand jury why the case should not proceed forward. The grand jury has three options: (1) Agree with the prosecutor and keep the drug possession case a felony and schedule it on a felony court docket; (2) lower the felony drug possession charge to a lesser charge of misdemeanor drug possession; (3) no bill the case. A no bill is basically being exonerated of all charges. You will be eligible to have your drug arrest and charges expunged from your criminal record if your drug charge is no billed by a grand jury. Your criminal defense attorney MUST look into this option to give you an opportunity to win your case.

Below are some of the most common defense strategies for drug possession charges. Before you choose any of these defenses to use in court, talk to a defense lawyer about how appropriate and relevant these will be for your situation.

Not Your Drugs

This can be too common of an excuse, but if you have actual proof that the drugs in question belong to someone else, you may be able to get out of a conviction. To be clear, under the Texas drug possession law, ownership is not required to be prove by the prosecutor. You do not have to own the drugs to still be illegally possessing the drugs. In other words, you can be holding someone else’s drugs for them and if you intentionally or knowingly exercised care, custody or control of the drugs, it is still a crime. However, this evidence that someone else owned the drugs, coupled with other evidence that may create doubt regarding your intent to possess, could create a strong defense. Additional evidence could include messages to and from friends, video footage, or proof that someone else owns the property where the drugs were found.

In some cases, the drugs may be planted. There are multiple cases of possible drug planting making big headlines in 2017. In one instance, body cam footage showed police officers in Baltimore possibly planting drugs. If you can access body cam footage and show that drugs were planted, you may be able to walk away from the court with an apology instead of penalties.


Similar to planting drugs, police and criminal investigators may coerce someone into purchasing or holding drugs to make an arrest or charge someone on drug possession. This is another valid defense strategy, but only if you can show that your actions were the result of coercion or force.

Take note that a law enforcement officer lying to see if you have drugs is not considered entrapment. An undercover police officer is still an officer, and deceit can still result in a valid drug possession charge and conviction.

Unlawful Search and Seizure

Police may abuse their power or take advantage of citizens when they look for drugs. Know your rights and know when police are allowed to search your property or vehicle. If police find drugs as the result of an illegal search and seizure, the drugs will be dropped as evidence and the main element of your case will be missing.

Police are not permitted to search your person or your property without a warrant or without separate probable cause. If the police officer had a warrant, your criminal defense attorney should analyze the search warrant affidavit to determine if the facts in the affidavit were specific and sufficient to establish probable cause. If not, the search could be illegal. If it was a warrantless search, the police officer must articulate specific facts outlining that a crime was likely taking place – probable cause. Sometimes a police officer will have a hunch that somebody has drugs in their car. This is not sufficient to establish probable cause. Failure to articulate specific facts establishing probable cause on a warrantless arrest could result in your drug case being dismissed.

If, for example, the police search your car without your permission and without a warrant, you can argue that they committed an unlawful search and seizure of your property. Police must also have a reason to pull you over.

Not an Illegal Substance

White powder isn’t necessarily an illegal substance. If the court cannot prove that the substance you were caught with is a controlled substance, the charges may be dismissed. Remember, in our legal system, you are innocent until proven guilty.

Weight Of The Drugs Is Wrong

What if the police initially arrest you for a third degree drug possession case claiming you had over one gram of illegal drugs? One strategy to minimize the drug offense is to have the drugs weighed again for accuracy. This strategy can sometimes result in a felony charge being lowered to a lesser charge based upon the weight of the item. Every case is unique and you should consult with your drug possession lawyer to see if this defense would apply in your case.

No Criminal Intent To Possess

This is one of the most effective defenses when arguing drug possession charges in Texas. The State of Texas is required to prove beyond a reasonable doubt that the accused intentionally or knowingly exercised care, custody or control of the illegal drugs. What if you did exercise control over the drugs but you had no idea the drugs were present?

For example: You are a passenger in a car and you have no idea that there are drugs underneath your seat. You hitched a ride with a friend and no reason to know that your friend stashed his drugs under your seat so that he would not get in trouble if he got pulled over. Suddenly, police are behind you and now you are being pulled over for a traffic violation. The police approach and develop probable cause to search by claiming they smell the odor of burnt marijuana coming from the car. A search of the car reveals drugs under your seat. You deny any knowledge of the drugs but you are still arrested. Are you guilty? NO! You may have exercised custody or control over the drugs because they were within your wingspan and under your seat but you had no knowledge or intent to possess the drugs.

Cannot Affirmatively Link You To The Drugs

The State of Texas must also affirmatively link you to the possession of the drugs in order to sustain a drug conviction. For example: what if you are in a car with 4 people and you are sitting in the back seat. Police pull over the car and do a search of the car and find drugs in the center console of the car. There are four people in the car – who is in possession of the drugs? Technically, everyone is in close proximity to the drugs but the prosecutor will have to affirmatively link the drugs to a particular individual in order to sustain a conviction. That might be easier with the driver if he has personal items in the center console but everyone else in the car is a passenger. This would be a difficult case for the prosecutor to prosecute and an experience and aggressive criminal attorney may be able to get the case dismissed.

Explore Diversion Programs and Rehabilitation

In many cases, drug possession charges can be the result of addiction and a genuine call for help. Prosecutors and judges may take sympathy on someone who has received their first charge and is making the effort to recover and stay sober. If you make the plea for rehabilitation and sobriety, the judge may be able to offer you an alternative to prison through a diversion program.

For example: Tarrant County has several diversion programs that provide the offender the opportunity to have the drug possession case dismissed and be eligible for an expunction. For example, Tarrant County Deferred Prosecution Program, First Offender Drug Program, and Deferred Prosecution Initiative are examples of Tarrant County diversion programs that provide you the option of receiving a dismissal and expunction of your drug charges, EVEN if you are guilty! The programs can vary from minimal requirements of supervision up to more of a comprehensive rehabilitation drug program with intense drug testing, classes and reporting. Regardless of the program, all provide the incentive of your drug case being dismissed.

Medical Marijuana

Medicinal marijuana is legal in Texas, but not for everyone. The Texas Compassionate Use Act allows a small group of people to qualify for medicinal marijuana use. Most of these people have epilepsy and have to turn to marijuana after the failed use of other legal prescription drugs.

Only 18 doctors can sign off on patients for medical marijuana use, so if you are just caught randomly with pot, you won’t be able to use this as an excuse. However, if you have been approved under the Texas Compassionate Use Act, you will be able to use marijuana for your symptoms and can use this law to fight marijuana charges.

Talk to a Drug Possession Defense Lawyer to Start Building Your Case

Ready to fight your drug possession charges?

Whether you were charged for holding prescription drugs, marijuana, or cocaine, you still have a chance of beating your charges.

Reach out to a criminal defense lawyer today and begin building your case.

You need a team of experience and aggressive criminal defense attorneys willing to work to secure your freedom and clear your name. The Hampton Criminal Defense Attorneys, PLLC has a team of 5 Former Prosecutors that have a combined experience over 80 years and 500 jury trials. Let us put our experience to work for you. Call now for a free consultation.

About the Author:

After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.