Possession of a Controlled Substance

A person commits the offense of possession of a controlled substance if he intentionally or knowingly possesses a controlled substance.

For the purpose of the Texas drug crime statute, the term “possession” means actual care, custody, control or management. Under Texas law, possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. 

The best defenses in these cases involve filing and litigating motions to suppress the evidence after an illegal search and seizure or a motion to dismiss charges not supported by sufficient evidence. 

Attorney for Possession of a Controlled Substance in San Antonio, TX

If you were charged with the offense of possession of a controlled substance, including any adulterants or dilutants, then contact an experienced criminal defense attorney in San Antonio, TX, at Flanary Law Firm, PLLC. 

Don Flanary represents clients charged with a variety of drug charges throughout the greater San Antonio area including Bexar County and the surrounding counties of Medina County, Atascosa County, Wilson County, Kendall County, Guadalupe County, Comal County and Bandera County.

Call Flanary Law Firm, PLLC today for a free and confidential consultation to discuss your arrest for a drug crime in Texas including possession of controlled substances or related charges for possession with intent to deliver, cultivation or manufacture or more serious drug trafficking offenses.

Call (210) 738-8383 to discuss your case today during a free and confidential consultation.


Elements of Possession of a Controlled Substance

Texas law provides for two elements that must be established at trial beyond all reasonable doubt when the defendant is charged with possession of a controlled substance. Those elements include proof beyond all reasonable doubt that the defendant:

  1. exercised care, custody and control over the contraband; and
  2. knew that the object possessed was contraband.

The prosecutor can use circumstantial evidence to suggest that the defendant knew of the presence of the drug. In some cases, that circumstantial evidence could include the fact that the drug is found in an item of drug paraphernalia or an item closely associated with drug use. See Caballero v. State, 881 S.W.2d 745 (Tex.App.-Houston [14th Dist.] 1994, no pet.).

If the controlled substance can be seen and measured, the amount is sufficient to establish the defendant knew it was a controlled substance. If the quantity is too small to be measured, the State must prove, through other evidence, that the defendant knew that the substance in his possession was a controlled substance. See King v. State, 895 S.W.2d 701 (Tex.Crim.App. 1995). The term usable quantity has such a common and ordinary meaning that it is not required to be defined in the court's charge. Holmes v. State, 962 S.W.2d 663 (Tex.App.-Waco 1998, pet. ref'd, untimely filed).


Penalties for Possession of a Controlled Substance

The penalties for the possession of a controlled substance depend on the type of substance possessed, and the amount of the substance possessed. The term "controlled substances" is defined to includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

  • Possession of a Controlled Substance — Penalty Group 1
    • State Jail Felony: less than one gram
    • Third-Degree Felony: one gram or more but less than four grams
    • Second-Degree Felony: four grams or more but less than 200 grams
    • First-Degree Felony: 200 grams or more but less than 400 grams.
    • 10 years to life, fine up to $100,000: 400 grams or more
  • Possession of a Controlled Substance — Penalty Group 1-a (Health and Safety Code, SEC. 481.1151)
    • State Jail Felony: number of abuse units is fewer than 20
    • Third-Degree Felony: number of abuse units 20 or more but fewer than 80
    • Second-Degree Felony: number of abuse units 80 or more but fewer than 4,000
    • First-Degree Felony: number of abuse units over 4,000 or more but fewer than 8,000
    • 15-99 years or life and a fine not to exceed $250,000: number of abuse units 8,000 or more
  • Possession of a Controlled Substance — Penalty Group 2 (Health and Safety Code, SEC. 481.116)
    • State Jail Felony: less than one gram
    • Third-Degree Felony: one gram or more but less than four grams
    • Second-Degree Felony: four grams or more but less than 400 grams
    • First-Degree Felony and a fine not to exceed $50,000: 400 grams or more
  • Possession of a Controlled Substance — Penalty Group 2-a (Health and Safety Code, SEC. 481.1161)
    • Class B Misdemeanor: two ounces or less
    • Class A Misdemeanor: four ounces or less but more than two ounces
    • State Jail Felony: five pounds or less but more than four ounces
    • Third-Degree Felony: 50 pounds or less but more than five pounds
    • Second-Degree Felony: 2,000 pounds or less but more than 50 pounds
    • First-Degree Felony and a fine not to exceed $50,000: more than 2,000 pounds
  • Possession of a Controlled Substance — Penalty Group 3 (Health and Safety Code, SEC. 481.117)
    • Class A misdemeanor: less than 28 grams
    • Third-Degree Felony: 28 grams or more but less than 200 grams
    • Second-Degree Felony: 200 grams or more but less than 400 grams
    • First-Degree Felony and fine not to exceed $50,000: 400 grams or more
  • Possession of a Controlled Substance — Penalty Group Four (Health and Safety Code, SEC. 481.118)
    • Class B misdemeanor: less than 28 grams
    • Third-Degree Felony: 28 grams or more but less than 200 grams
    • Second-Degree Felony: 200 grams or more but less than 400 grams
    • First-Degree Felony and fine not to exceed $50,000: 400 grams or more

Defenses to Drug Crimes in Texas

In Texas, the possession of a controlled substance can be lawful if the contraband is obtained in accordance with state or federal law. For instance, in Wright v. State, 981 S.W.2d 197 (Tex.Crim.App. 1998), a controlled substance acquired pursuant to valid foreign prescriptions would be lawful.

The most common defenses to drug crimes for possession of a controlled substance involve filing and litigating a motion to discuss the case if the prosecutor has insufficient evidence to support the charges. In other cases, your criminal defense attorney will file and litigate a motion to suppress if the evidence seized by the law enforcement officer was seized without a warrant or a legal exception to the warrant requirement. 


Additional Resources

Statutes Prohibiting Drug Possession in Texas - Visit the website of the Texas Legislature to find crimes listed in Chapter 481 of the Texas Controlled Substance Act. Find definitions important to the prosecution of drug crimes including the term controlled substance, counterfeit substance, narcotic drug and drug paraphernalia.


Attorney for Drug Possession in Bexar County, TX

If you were charged with unlawfully, intentionally or knowingly possess a controlled substance, including any adulterants or dilutants, then contact a criminal defense attorney at Flanary Law Firm, PLLC.

Don Flanary represents clients throughout the greater San Antonio area for serious felony and misdemeanor drug crimes including in 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 (210) 738-8383 for a free consultation to discuss your case involving the illegal possession of any controlled substances or narcotic paraphernalia. Don Flanary also represents clients for related offenses involving the unlawful use, sale, distribution, or manufacture of narcotics.


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

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