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Possession of a Controlled Substance

Any possession of a controlled substance charge is treated harshly in Texas. The most common charges involve possession of marijuana, methamphetamines, cocaine or ecstasy. Even the possession of a prescription drug without a valid prescription for that medication can result in serious felony charges.

Most drug charges are considered felonies, with the exception of small amounts of marijuana. These felony drug charges come with the potential for very serious penalties, usually including prison and hefty fines. A conviction could mean a criminal record and a driver’s license suspension or loss of driving privileges.

Attorney for Drug Possession in San Antonio, TX

The results of a drug possession case can have a lasting impact on the rest of your life, whether you are a juvenile or an adult. Even misdemeanor drug charges can prevent you from obtaining employment or admittance to schools.

Most employers run background checks on every perspective employee and will likely deny your application based on your drug history alone. Your criminal record can also make it very difficult to qualify for apartments and other housing.

A drug possession defense lawyer at Goldstein & Orr will look into every aspect of your case. They work hard to defend you against the charges and do whatever possible to protect your freedom. The attorneys at Goldstein & Orr represents clients throughout San Antonio and the surrounding areas.

Call (210) 226-1463 for a free consultation.

Information on Drug Possession Charges

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Definition of Possession in Drug Crimes Cases

A person can be charged with possession of a controlled substance, narcotics or drugs if he or she knowingly or intentionally possesses substances found in Penalty Groups I through IV without a valid prescription from a person licensed to practice medicine, according to sections 481.115 through 481.118 of the Texas Health and Safety Code.

Drug crimes in Texas are largely governed by the Controlled Substances Act codified in the Texas Health and Safety Code, Chapters 481 through 486. Under Texas law, drugs are classified into four different penalty groups including:

  • Penalty Group 1: Methamphetamine, Heroine, Cocaine, Oxycodone, Opium, Methadone, Ketamine and Hydrocodone (more than 300 mg)
  • Penalty Group 2: Mescaline, Mushrooms, Psilocybin, Mescaline, Ecstasy, Methaqualone and Amphetamine
  • Penalty Group 3: Clonazepam, Xanax, Valium, Ritalin and Hydrocodone (less than 300 mg), Anabolic steroids and Lorazepam
  • Penalty Group 4: Compounds or mixtures that contain limited amounts of narcotics, and one or more active medical ingredients

Marijuana, or cannabis, is one of the most commonly used drugs in Texas. It is not considered a “controlled substance” under Texas law. However, it still is illegal and could lead to charges for illegal drug possession.

In a possession case, the prosecutor must prove beyond all reasonable doubt that the accused exercised care, control, or management over the contraband and that the accused knew the substance was contraband.

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Elements of a Drug Possession Case

The elements of possession may be proven through direct or circumstantial evidence. When circumstantial evidence is used, the evidence must establish the accused’s connection with the substance was more than fortuitous. When the accused is not in exclusive possession of the place where the contraband is found, the prosecutor for the must show additional affirmative links between the accused and the contraband.

The prosecutor often will attempt to show a reasonable inference that the accused knew of the contraband’s existence and exercised control over it by establishing an affirmative link. The courts in Texas have identified the following factors to show such an affirmative link between the accused and the controlled substance:

  • The accused’s presence when a search is conducted
  • Whether the contraband was in plain view
  • The accused’s proximity to and the accessibility of the narcotic
  • Whether the accused was under the influence of narcotics when arrested
  • Whether the accused possessed other contraband or narcotics when arrested
  • Whether the accused made incriminating statements when arrested
  • Whether the accused attempted to flee
  • Whether the accused made furtive gestures
  • Whether there was an odor of contraband
  • Whether other contraband or drug paraphernalia were present
  • Whether the accused owned or had the right to possess the place where the drugs were found
  • Whether the place where the drugs were found was enclosed
  • Whether the accused was found with a large amount of cash
  • Whether the conduct of the accused indicated a consciousness of guilt

The courts also have found that a large quantity of contraband might be a factor affirmatively linking appellant to the contraband. These so-called affirmative links are established by the totality of the circumstances, although courts have found no set formula necessitates a finding of an affirmative link sufficient to support an inference of knowing possession.

Texas law provides that in order to obtain a conviction for possession, evidence must affirmatively link accused to the contraband in such manner as to show he had knowledge of the contraband and exercised control over it. The possession can be shown to be sole or joint.

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Penalties for Possession of a Controlled Substance

The penalties for possession of an illegal substance in Texas depend on the type of substance and the amount of the drug possessed. For Penalty Groups I and II, the penalties and amounts are similar.

For instance, if a person possesses less than one gram of a substance from either group, he or she can be charged with a state jail felony. If someone possesses between one and four grams from either group, he or she could be charged with a third-degree felony.

To be charged with a second-degree felony, a person must possess four to 200 grams of a substance from Penalty Group I or four to 400 grams of a substance from Penalty Group II. Additionally, if a person possesses 200 to 400 grams of a substance in Penalty Group I, he or she can be charged with a first-degree felony.

The penalties for substances in Penalty Groups III and IV are different. If a person possesses less than 28 grams of a drug from Penalty Group III, he or she can be charged with a Class A misdemeanor. Possessing less than 28 grams of a drug from Penalty Group IV would be a Class B misdemeanor.

If the amount possessed from either group is between 28 grams and 200 grams, it could be a
third-degree felony. Possession of 200 to 400 grams of a substance from either group would be a second-degree felony.

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Defenses in Drug Possession Cases

When you are arrested for possession of a controlled substance, you may feel like there is no defense. However, our lawyers will carefully examine the facts and evidence related to your case and use the information to defend your rights. All areas of the case will be thoroughly scrutinized for the following types of defenses:

  • Whether the officers engaged in procedural misconduct in the arrest
  • Whether an unreasonable search and seizure occurred
  • Whether the officer properly advised the individual of his or her Miranda warnings
  • Whether evidence was properly collected and stored
  • Whether sufficient evidence existed to support the alleged actual or constructive possession

These defenses often lead to the suppression or exclusion of evidence which can cause the dismissal of charges. Even when the charges are not dismissed, the motions can lead to charges being reduced for the purposes of entering an alternative resolution in drug court or other diversion programs.

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Do First Time Drug Offenders Go to Jail in Texas?

The State of Texas takes drug crimes incredibly seriously. Even if you don’t have any prior criminal history, you could be sentenced to time in jail for possessing drugs. If you’re convicted of possession of a controlled substance as a first-time offender, your sentence will likely depend on the following factors:

  • The sheer volume of drugs you had in your possession
  • Which penalty group these drugs belonged in
  • If you possessed these drugs near a drug-free zone such as a school

Thankfully, the County does offer alternatives to jail/prison for those who are struggling with drug addiction. The Bexar County Adult Drug Court strives to reduce arrests and incarceration rates by rehabilitating defendants rather than punishing them. The Court holds participants accountable and assists them through every step of their recovery so it’s long-term and they can move on with their lives from their criminal past.

In order to be eligible for drug court you must:

  • Be at last 17 years old
  • Be a substance user that’s moderate or severe
  • Be charged with a misdemeanor offense
  • Resident of Bexar County
  • Not have any violent offenses pending against you
  • Not have a felony charge
  • Participate in another problem-solving court
  • The case isn’t in Bexar County

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Additional Resources

Texas Controlled Substance Act | Drug Possession Laws — Visit the official website for the Texas Penal Code to learn more about the various laws regarding drug possession, delivery, or manufacturing. Access the site to read the statutory language, find admissible defenses that may work for your case, and exemptions to the law.

NORML Texas Chapter –– Visit the official website for NORML, which is short for National Organization for the Reform of Marijuana Laws. Access the site to learn the laws and regulations in Texas surrounding marijuana, penalties for possessing the marijuana plant, hash and THC concentrates, and more.

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Lawyer for Drug Possession in Bexar County

If you were arrested for drug possession or any other drug-related offense, call Goldstein & Orr for skilled and aggressive representation from an experienced drug defense attorney. Our attorneys also represent clients charged with possession with intent to sell, delivery, manufacturing, and trafficking of a controlled substance. The attorneys at Goldstein & Orr have decades of experience representing clients throughout the San Antonio area.

The attorneys at Goldstein & Orr have decades of experience representing clients throughout the San Antonio area.

Call (210) 226-1463 for a free consultation.


(210) 226-1463
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