Marijuana Delivery Charges in Texas: How the State Builds Its Case

To convict someone of delivering marijuana in Texas, prosecutors must prove that the person knowingly or intentionally delivered marijuana to another person. Few cases rest on a single piece of proof. Instead, the State usually builds its case from a combination of direct evidence, such as an officer watching a hand-to-hand exchange, and circumstantial evidence, such as text messages, cash, scales, and packaging. 

Flanary Law Firm defends people accused of marijuana and other drug offenses in San Antonio and communities throughout South Texas. We look closely at how the State gathered its evidence and whether it actually proves what the charge claims. Contact Flanary Law Firm at (210) 738-8383 for a case-specific consultation.

What Texas Law Means by Delivery of Marijuana

Marijuana delivery is charged under Texas Health and Safety Code § 481.120, which makes it an offense to knowingly or intentionally deliver marijuana (spelled “marihuana” in the statute). Under the definitions in Chapter 481, “deliver” generally means to transfer marijuana to another person, either actually or constructively, and can include an offer to sell. That makes delivery broader than a completed sale.

Delivery is a separate offense from simple possession. Possession focuses on whether a person exercised care, custody, or control over marijuana. Delivery focuses on whether the person transferred it, or offered to transfer it, to someone else. The two are graded differently, and delivery of even a small amount can carry heavier consequences than possessing the same amount.

Actual Transfers and Constructive Transfers

An actual transfer is the most straightforward theory: one person hands marijuana directly to another. 

A constructive transfer occurs when a person controls or directs a transfer without physically handing the drugs over, such as arranging for a third party to make the exchange or telling a buyer where to pick up a package. 

Because the law recognizes constructive transfers, prosecutors can bring a delivery charge even when no officer saw an exchange, though they must still connect the accused to the transfer through evidence.

Why Weight and Payment Can Matter

Under § 481.120, the grade of the offense depends mainly on the amount delivered and, for the smallest amounts, whether the person received payment, which the statute calls “remuneration.” Punishment ranges for each grade come from Texas Penal Code Chapter 12.

Penalties can increase if the alleged delivery occurred in a drug-free zone, such as near a school, or if a person has certain prior convictions. Very large quantities may also draw federal prosecution, which follows different rules.

The Evidence Prosecutors Often Use

Marijuana delivery cases are often built from several types of evidence working together:

• Surveillance: Officers may watch a location or follow a person, sometimes recording video or taking photos of suspected exchanges.
• Controlled buys: Police may use an undercover officer or confidential informant to arrange a purchase, often with marked money and recording equipment.
• Witness statements: Buyers, informants, co-defendants, and other witnesses may describe transactions, sometimes in exchange for leniency.
• Texts and social media messages: Messages discussing prices, quantities, meeting places, or slang terms are frequently used to show an agreement to deliver.
• Cash: Large amounts of currency, especially in small bills, may be offered as evidence of sales.
• Scales and packaging: Digital scales, baggies, vacuum sealers, and divided portions may be presented as signs of distribution rather than personal use.
• Location data: Phone records and GPS data may place a person at the scene of an alleged transaction.
• Admissions: Statements made to officers during a stop or after arrest are often central to the State’s case.

Circumstantial Evidence Still Has to Support the Charged Theory

Scales, sandwich bags, and cash are common items with many lawful explanations. Having them nearby doesn’t automatically prove someone delivered marijuana. Circumstantial evidence has to be evaluated in context and must actually support the specific theory the State has charged, whether that’s an actual transfer, a constructive transfer, or an offer to sell.

Searches, Seizures, and Phone Evidence

Much of the evidence in delivery cases comes from searches, and every search must comply with the Fourth Amendment and Texas law. A traffic stop needs reasonable suspicion, and extending a stop to investigate drugs must be justified. Search warrants must be supported by probable cause and executed within their limits. Consent must be voluntary, and a person can limit or withdraw it.

Phones deserve special attention. Police generally need a warrant to search the contents of a cell phone, and the search must stay within the warrant’s scope. The State must also prove a reliable chain of custody for any seized marijuana, showing it was properly collected, stored, and tested. Evidence obtained unlawfully may be suppressed.

Marijuana, Hemp, and THC Concentrates Are Not Always Charged the Same Way

Texas law treats plant marijuana, legal hemp, and THC concentrates differently. Hemp, defined by its low delta-9 THC content, is excluded from the definition of marijuana. THC concentrates, such as wax, oils, and vape cartridges, are generally charged under a different penalty group, where amounts are measured in grams and penalties can be much more severe than for the same weight of plant marijuana.

The line between legal hemp and illegal THC has also shifted in 2026. New Texas Department of State Health Services rules count THCA toward the THC limit in hemp, and the state began treating certain hemp-derived cannabinoids, such as delta-8, as controlled substances in July 2026. Some of these rules remain the subject of litigation. In any case involving hemp-derived products or concentrates, lab testing that identifies the specific substance and its THC content is critical.

How the State May Try to Prove Intent or Knowledge

Delivery requires a knowing or intentional act, and prosecutors rarely have direct proof of what someone was thinking. Instead, they ask a jury to infer knowledge from circumstances, such as a person’s statements, the quantity involved, how the marijuana was packaged, who had access to where it was found, and the person’s conduct during the alleged transaction. Each of these inferences depends on the full set of facts, and an innocent explanation may account for the same evidence.

Defense Issues That May Change the Case

Every case is different, but common defense issues include:

• Identity: Whether the State can reliably prove the accused was the person involved.
• Possession and control: Whether the accused actually controlled the marijuana, especially in shared homes or vehicles.
• Whether a transfer occurred: Whether the evidence shows an actual delivery, a constructive transfer, or a legally sufficient offer to sell.
• Weight and testing: Whether the substance was properly identified and weighed, which can change the offense grade.
• Unlawful searches: Whether evidence must be suppressed because of an illegal stop, search, or seizure.
• Unreliable informants: Whether an informant’s credibility, motives, or history undermine the State’s case.
• Missing context in messages: Whether texts or posts actually discuss marijuana or are being read out of context.
• Evidentiary gaps: Whether the State’s evidence leaves reasonable doubt on any element of the offense.

Raising these issues doesn’t guarantee a dismissal, but they can reshape the charges, the evidence, and the options available.

What to Do After a Marijuana Delivery Arrest or Investigation

If you’ve been arrested or believe you’re under investigation:

1. Don’t discuss the facts online or by text: Social media posts and messages can become evidence.
2. Preserve your communications: Don’t delete messages or records, which can create additional legal problems.
3. Comply with all bond and court conditions: Violations can lead to arrest and make your case harder to resolve.
4. Don’t give statements without advice: You have the right to remain silent and to have an attorney present during questioning.
5. Contact Flanary Law Firm: Speak with a defense attorney promptly by calling (210) 738-8383 so your rights are protected from the start.

Contact Flanary Law Firm About a Texas Marijuana Delivery Charge

A marijuana delivery charge can carry jail time, fines, and a criminal record that affects your job, housing, and future. At Flanary Law Firm, attorney Donald H. Flanary III and our team examine every part of the State’s case, from how the evidence was gathered to whether the weight and testing support the charged offense. 

We defend people across San Antonio and surrounding Texas communities. Learn more about our approach to marijuana delivery defense, felony defense, and Texas criminal defense.

Contact Flanary Law Firm at (210) 738-8383 for a case-specific consultation.

Frequently Asked Questions

Can Texas charge marijuana delivery without a completed sale?

Yes. Texas defines delivery to include an actual or constructive transfer and can include an offer to sell, so payment isn’t required for every delivery charge. Which theory the State relies on matters, and offers to sell are subject to specific evidentiary rules.

Is marijuana delivery always a felony in Texas?

No. Delivering a quarter ounce or less is a Class B misdemeanor without payment and a Class A misdemeanor with payment. Larger amounts are charged as felonies, and enhancements can raise the grade, so the current statute and the specific charging facts must be checked.

Can text messages be used as evidence of marijuana delivery?

They can be offered as evidence, but the State must authenticate them and show who sent them. The defense can challenge the messages’ meaning and context, and whether police obtained them lawfully.