Possession with Intent to Deliver

Law enforcement officers in San Antonio and throughout Bexar County will often accuse a person of being a drug dealer and not just a user. In these cases, the officers might allege that the drugs were knowingly and intentionally possessed with an intention to deliver the drugs to another. 

When the evidence is insufficient to prove any intention to deliver the drugs, then the criminal defense attorney can meet with the prosecutor to demand a reduction in the charges. Alternatively, the attorney might file a motion to dismiss the charge. If the evidence is sufficient to prove an intent to deliver, then the ultimate question of fact is for the jury to resolve at trial.

The prosecutor will ask the jury to infer that the Defendant intended to deliver the drugs because of his acts, words, or conduct. Certain types of circumstantial evidence can be used to establish intent. The courts used a number of different factors to determine whether sufficient evidence supports a finding that the possession occurred with an intent to deliver the drugs.

Related charged include simple possession of a controlled substance and the manufacture of a controlled substance or the delivery of a controlled substance.

Attorney for Possession with Intent to Deliver in San Antonio, TX

If you were charged by indictment with the offense of possession with intent to deliver a controlled substance, then the penalties depend on the substance possessed and the amount possessed. Contact a criminal defense attorney who is focused on fighting drug crimes in San Antonio, TX.

Don Flanary is an experienced drug defense attorney at Flanary Law Firm, PLLC. With offices located in San Antonio, TX, Don Flanary represents clients arrested for drug crimes in the following communities New Braunfels, Schertz, Seguin, Boerne, Canyon Lake, Cibolo, Converse, Leon Valley, Live Oak, Timberwood Park, Universal City, Alamo Heights, Fair Oaks Ranch, Floresville, Helotes, Hondo, Kirby, Lackland AFB, Lakehills, Pleasanton, Selma, Terrell Hills and Windcrest.

He also clients charged with deal drugs throughout the greater San Antonio area including all of Bexar County and the surrounding counties of Kendall County, Comal County, Guadalupe County, Wilson County, Atascosa County, Medina County, and Bandera County.

Call today for a free and confidential consultation to discuss the charges pending against you, the potential penalties, and the best defenses that can be used to aggressively fight the charges at every stage of the case. Call (210) 738-8383.


Factors Used to Establish an Intention to Deal Drugs in Texas

In a possession with intent to deliver case, the State must prove that the defendant:

  • exercised care, custody, control, or management over the controlled substance;
  • intended to deliver the controlled substance to another; and
  • knew that the substance in his possession was a controlled substance.

When determining whether the defendant intended to deliver the controlled substance to another, the court will consider the following factors:

  • the nature of the location where the defendant was arrested;
  • the quantity of controlled substance in the defendant's possession;
  • the manner of packaging the controlled substance;
  • the presence of drug paraphernalia;
  • the defendant's possession of large amounts of cash; and
  • the defendant's status as a drug user.

See Williams v. State, 902 S.W.2d 505 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). The number of factors present is not as important as "the logical force the factors have in establishing the elements of the offense.” Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.–Houston [14th Dist.] 2006, pet. ref'd).


Definitions for the Texas Statute on Possession with Intent to Deliver

The term “delivery” means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

The term “constructive transfer” is the transfer of a controlled substance either belonging to an individual or under his direct or indirect control, by some other person or manner at the instance or direction of the individual accused of such constructive transfer. A constructive transfer can also include an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offense.


Penalties for Penal Group 1 - HSC Section 481.112

The penalties for penal group one under Health and Safety Code Section 481.112 for possession with intent to deliver a controlled substance include:

  • State Jail Felony: less than one gram
  • Third Degree Felony: less than one gram and child under 18 present
  • Second-Degree Felony: one gram or more but less than four grams
  • First Degree Felony: one gram or more but less than four grams and child under 18 present
  • First-Degree Felony: four grams or more but less than 200 grams
  • 15-99 years or life and fine not to exceed $150,000: 200 grams or more but less than 400 grams
  • 20-99 years or life and fine not to exceed $300,000: 400 grams or more

Penalties for Penal Group 1-A - HSC Section 481.1121

The penalties for penal group 1-A under Health and Safety Code Section 481.1121 for possession with intent to deliver a controlled substance include:

  • State Jail Felony: number of abuse units fewer than 20
  • Second-Degree Felony: number of abuse units 20 or more but fewer than 80
  • First-Degree Felony: number of abuse units 80 or more but fewer than 4,000
  • 15-99 years or life and a fine not to exceed $250,000: number of abuse units 4,000 or more

Penalties for Penal Group 2 - HSC Section 481.113

The penalties for penal group 2 under Health and Safety Code Section 481.113 for possession with intent to deliver a controlled substance include:

  • State Jail Felony: less than one gram
  • Second-Degree Felony: one gram or more but less than four grams
  • First-Degree Felony: four grams or more but less than 400 grams
  • 10-99 years or life and fine not to exceed $100,000: 400 grams or more

Penalties for Penal Group 3 or 4 - HSC Section 481.114

The penalties for penal group 3 or 4 under Health and Safety Code Section 481.114 for possession with intent to deliver a controlled substance include:

  • State Jail Felony: less than 28 grams
  • Second-Degree Felony: 28 grams or more but less than 200 grams
  • First-Degree Felony: 200 grams or more but less than 400 grams
  • 10-99 years or life and a fine not to exceed $100,000: 400 grams or more

This article was last updated on Friday, December 30, 2016.

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