Texas still criminalizes possession of usable marijuana, with offense levels generally tied to the weight of the substance involved. THC concentrates, however, may fall under a different penalty structure entirely and shouldn’t be treated the same as marijuana flower when evaluating potential charges and defenses.
At Flanary Law Firm, our marijuana defense attorneys help people throughout San Antonio and Bexar County understand exactly what they’re being accused of and what defenses may apply to their specific case.
If you’ve been charged with marijuana possession in Texas, call (210) 738-8383 to talk with our team.
Start by Identifying What Substance and Amount the State Alleged
Before anything else, identify exactly what substance the state alleges was in your possession and how much of it there was. This can include plant material, a claimed legal hemp product, edibles, vape oil, wax, or other concentrated forms of THC. Lab testing and the usable quantity involved both play a significant role in how a case gets charged and what defenses may be available.
Marijuana Flower and THC Concentrates Are Charged Differently
Not every cannabis product falls under the same statutory provision. Marijuana flower and THC concentrates are generally charged under different penalty structures, and treating every cannabis product as though it falls under Texas Health & Safety Code Section 481.121 can lead to a misunderstanding of the actual charge and potential penalty you’re facing.
Comparing the specific statutory definition that applies to your case is an important first step.
Texas Marijuana Possession Penalties by Weight
Texas marijuana possession penalties generally scale with the weight of the substance involved, ranging from a low-level misdemeanor for small amounts of flower up to a serious felony for large quantities.
Because these thresholds, offense grades, and corresponding punishment ranges are defined by current statute, it’s important to review the specific weight alleged in your case against the applicable law, rather than relying on a general assumption about where your case falls.
Our team can walk you through exactly where your specific charge sits within this framework. Call us today at (210) 738-8383.
When a Misdemeanor Becomes a Felony
Marijuana flower possession generally becomes a felony once the amount alleged exceeds four ounces. Concentrate cases follow a different framework and can involve felony-level charges even at smaller quantities, since concentrates are treated differently under Texas law.
Certain additional facts can also enhance a charge, making early case review important to understand exactly what you’re facing.
What Prosecutors Must Prove About Possession
For a possession charge to succeed, prosecutors generally must prove that a person knowingly or intentionally exercised actual care, custody, control, or management over a usable quantity of the substance. Simply being near drugs isn’t the same as possessing them under the law. Prosecutors need to establish an affirmative link between you and the substance, not just your proximity to it.
Actual Possession, Constructive Possession, and Shared Spaces
Possession cases often become complicated in shared spaces. Marijuana found in someone’s pocket presents a different question than marijuana found in a shared vehicle, a shared apartment, or luggage in a multi-occupant setting.
When more than one person has access to a location, establishing who actually knew about and controlled the substance becomes a central issue, and this is often where a strong defense can be built.
Evidence Commonly Used in a Texas Cannabis Case
Prosecutors typically rely on a combination of evidence to build a marijuana possession case, including:
- Direct officer observations at the scene
- Body camera footage
- Statements or admissions made by the accused
- The odor of marijuana reported by law enforcement
- The location where the substance was found
- Fingerprint or DNA evidence, where relevant
- Packaging materials
- Scales or other paraphernalia
- Cell phone records or messages
- Laboratory reports confirming the substance’s identity
- Evidence connecting ownership of the location or item where the substance was found
Defense Issues That Can Change the Case
Several potential defense issues can significantly change the direction of a marijuana possession case, including:
- An unlawful stop or search that led to the discovery of the substance
- A lack of knowledge or control over the substance in question
- Unreliable weight measurements or lab testing
- Ambiguity around whether a product is legal hemp rather than marijuana
- Breaks in the chain of custody for the evidence
- Claims of medical use
- Mistaken identity in cases involving multiple people
Call Flanary Law Firm at (210) 738-8383 to find out which of these issues may apply to your specific situation.
What Happens From Arrest Through Resolution
A Texas marijuana possession case generally moves through several stages, including booking or citation, a bond determination, the prosecutor’s charging decision, discovery of the evidence against you, pretrial motions, negotiation or diversion where available, a plea or trial, sentencing if convicted, and the resulting record consequences. Understanding where your case currently stands in this process can help you know what to expect next and what decisions need to be made along the way.
Put Flanary Law Firm Between You and the Prosecution
Facing a marijuana possession charge in Texas means facing a prosecution that already has a strategy for your case. You deserve a defense team with one too.
Don Flanary brings an aggressive, strategic approach to every case, ensuring clients enter each challenge with a clear path forward. Our criminal defense team has more than 30 years of combined experience defending Texans against criminal charges, from state misdemeanors to federal felonies, and we know how to handle even the most complex cannabis cases. We serve clients throughout San Antonio, Texas Hill Country, and Laredo, bringing the same strategic excellence, tailored solutions, and precision planning to every case we take on, whether you’re facing an accusation or have already been arrested.
Our San Antonio marijuana defense attorneys can review the search that led to your arrest, challenge the state’s marijuana possession evidence, and evaluate whether your case involves a THC concentrate charge requiring a different defense strategy entirely. If law enforcement conducted an unlawful search to find the evidence against you, we know how to challenge it.
Request a free criminal defense consultation with Flanary Law Firm at (210) 738-8383 today, and let our battle-tested approach go to work on your case.
Texas Marijuana Charge Defense FAQs
Is possession of less than two ounces a felony in Texas?
Generally, no. Possession of two ounces or less of marijuana flower typically falls at the lower end of the misdemeanor penalty range under Section 481.121. This changes significantly, however, if the substance involved is a THC concentrate rather than flower, or if additional enhancing circumstances apply to your case.
Can police charge everyone in a car with the same marijuana?
Police can potentially charge multiple people present in a vehicle where marijuana is found, but that doesn’t mean every charge will hold up. Prosecutors still need to prove knowing possession for each individual person, and proximity alone generally isn’t enough to establish that link for everyone in the vehicle.
Does legal hemp create a defense to a marijuana charge?
It can, depending on the specific facts and testing involved. Product identity and laboratory testing can matter significantly in these cases, but odor alone generally isn’t sufficient to prove or disprove whether a substance is legal hemp versus marijuana. This is not a guarantee that a hemp claim will result in dismissal, and it requires case-specific evaluation.
Can a first marijuana case be dismissed or diverted?
It depends. Eligibility for dismissal or diversion programs varies based on the specific charge, the facts of the case, your criminal history, the prosecutor handling the case, and the county where you’re charged. Because these factors vary so significantly, case-specific legal advice is necessary to understand your actual options.
