July 2, 2021

Unlawful possession of a controlled substance – defined in Section 481 of the Texas Health and Safety Code as the unlawful “care, custody, control or management” of a controlled substance – is a serious criminal offense, punishable, in Texas, by up to life imprisonment and a $250,000 fine.

Under Texas law, the severity of the criminal penalties for unlawful possession of a controlled substance are determined by the classification of the controlled substance in question (i.e. which schedule and penalty group the narcotic is listed under) and the quantity of the substance involved. For the purpose of determining criminal penalties for possession-related offenses, controlled substances are sorted into Penalty Groups 1 through 4 based on the substance’s recognized medical uses, risks of use, and probability of abuse and dependency. Penalty groups are listed in descending order, with the most dangerous illicit narcotics, such as cocaine, heroin, and methamphetamine, belonging to Penalty Group 1. Minimum sentences for possession related offenses similarly decrease in severity with each penalty group. Possession of controlled substance offenses range from Class C Misdemeanors to 1st Degree Felonies.

The penalties for Possession of a Controlled Substance range widely. However, in every case of Possession of a Controlled Substance the State of Texas must prove the accused person actually “unlawfully possessed” a controlled substance.

What Constitutes Unlawful Possession of a Controlled Substance?

Section 1.07 of the Texas Penal Code defines unlawful possession as “actual care, custody, or control” of illicit narcotics or prescription medication, absent a valid prescription. If convicted of Possession of a Controlled Substance a person’s driver’s license can be suspended, they can be made to pay a fine, be placed on probation or even be thrown into jail. This is true of both Felony and Misdemeanor offenses.

These violations and their respective minimum penalties are outlined in Subchapter D of Section 481 of the Texas Health and Safety Code.

Requirements to be Found Guilty

In all cases of Possession of a Controlled Substance, the State must prove a voluntary act or a conscience failure to act. The General Principles of Criminal Responsibility outlined in Chapter 6 of the Texas Penal Code.

Section 6.01 of the Code states that a person commits an offense “only if he voluntarily engages in conduct, including an act, an omission, or possession.” Subsection B of Section 6.02 states that “possession is a voluntary act [only] if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for sufficient time to permit him to terminate his control.” This means a person can be cannot be found guilty of Possession of a Controlled Substance unless they knew the controlled substance was in their possession.

Moreover, in order to convict a defendant of unlawful possession, the State must also establish criminal intent on the part of the accused. Section 6.02 of the Code states that “a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.”

As such, establishing criminal responsibility is a key component of any case brought by the State, and thus, shapes many criminal defense strategies in possession-related cases.

When is Only “Presence” Enough to Convict

With these rules in mind, the question is what is enough to convict a person of Possession of a Controlled Substance if they are only near or around the controlled substance. Thankfully, there is longstanding history of both criminal and appellate cases within the Texas court system which explore these questions and provide guidance. .

In Humason v. State, 728 S.W.2d 363 (1987), the Houston 1st Court of Appeals, reviewed this sufficiency question, in the context of an appellate challenge to a conviction for “intentionally and knowingly possessing less than 28 grams of a controlled substance.” In this case, the defendant argued being the only person in the vehicle was not enough to prove that he intentionally and knowingly possessed the substance. Id at II. In their review, the court looked to Section 6 of the Texas Penal Code for guidance and, in agreement with the defendant, the court stated “providing that a defendant must, at a minimum, be aware that his conduct or the circumstances surrounding his conduct constitute possession of a controlled substance… it is not enough for the State to show that a defendant was merely present in the vicinity of a controlled substance.” Id at III. Moreover, the court reaffirmed precedent established in McGoldrick v. State, 682 S.W.2d 573 (Tex. Crim. App. 1985), that “the State must provide evidence of “affirmative links” between a defendant and a controlled substance” to secure a proper conviction at trial. Id at III. In other words, the court stated there needs to me some evidence to tie the accused person to the controlled substance beyond simply being present near the controlled substance.

Texas courts have routinely reaffirmed this precedent and since provided numerous examples of potentially “affirmative links” which may be sufficient to establish a person’s unlawful possession of controlled substances.

Examples of “affirmative links,” as noted in Fuery v. State, 05-08-01015-CR (Tex. App. Jan. 27, 2010), include:

• Incriminating statements made during the arrest
• Attempts to flee
• Whether there was an odor associated with the substance
• The possession and/or presence of other narcotics, contraband or drug paraphernalia
• Large amounts of cash in defendant’s possession during the arrest
• Indications of a consciousness of guilt
• Whether the drugs were packaged or enclosed in a specific fashion
• Intoxication of defendant during arrest

Without one or more of these links a person will be not be found guilty at trial.

Questions About Possession of Controlled Substance Defenses?

For individuals, or the families of individuals, who believe they were arrested for possession of a controlled substance on insufficient grounds, we strongly recommend contacting an experienced criminal defense attorney, like George Napier of the The Napier Law Firm, to discuss your options.

Contact us at (713) 470-4097 to schedule your free consultation, today!