How To Beat a Felony Drug Charge

Drug Possession in

A possession of a drug charge requires a person to be in actual possession of a controlled substance. “Possession” is defined in the Texas Penal Code as actual care, custody, control, or management. This is the same for misdemeanor and felony drug charges in Texas.

This means that a person must knowingly or intentionally possess the drugs that he or she is accused of. If the defendant is not in exclusive possession of the place where the drugs are found, the State must prove additional circumstances and independant facts. These are called Affirmative Links as described in Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Cr.App. 2005) that prove the defendant knew of the contraband was there and exercised control of it.

Each case and set of circumstances are different and need to be looked at in a broad context with all the facts. One case’s similar fact may be of no value compared to another case. Case Law discusses that it is not the quantity of links but the ‘logical force’ that they create. The following is a non-exhaustive list of factors that may help to show an affirmative link to controlled substance possession. :

  • Accused attempted to flee or escape
  • Accused conducted hand to hand drug deal
  • Accused was the driver of the vehicle where the drugs were placed and had time to terminate possession, but did not
  • Accused was driver or owner of vehicle with contraband
  • Accused found with large amount of cash
  • Accused had relationship with others who have access to place where contraband was found
  • Accused had special connection to contraband
  • Accused knew of existence of place where narcotics were secreted
  • Accused made pertive gestures
  • Accused made incriminating statements connecting himself to contraband
  • Accused observed in suspicious area under suspicious circumstances
  • Accused owned or resided in place where contraband found
  • Accused possessed other contraband at the time of arrest
  • Accused present at time of search
  • Accused’s conduct indicated consciousness of guilt
  • Accused’s physical condition indicated recent consumption of contraband
  • Conflicting statements by vehicle occupants
  • Contraband found in closet containing men’s clothing, if accused is male
  • Contraband found in close proximity and accessible to accused
  • Contraband found on accused same as contraband found in accused’s room
  • Contraband found in plain view or recovered from enclosed space
  • Others present at time of search
  • Paraphernalia found on or near accused
  • Presence of evidence establishing accused’s occupancy of premises
  • Quantity of contraband
  • Strong residual order of contraband present

Texas Search and Seizure Laws

Most likely the first element of a drug case that a criminal lawyer needs to look at is how the drugs were found. The lawyer needs to be up to date on illegal search and seizure cases. The Fourth Amendment of the United States Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Each case is going to be different and will need to be researched by the attorney to determine whether the search violated the Fourth Amendment. The research will need to look into appellate case law to compare the opinions to the facts of the current client’s case.

Case law discusses the Supreme Court’s view on police-citizen encounters. They have broken it down into 3 distinct types of interactions: (1) Consensual Encounters which require no objective justification; (2) Investigatory Detentions, which require reasonable suspicion; (3) arrests, which require probable cause.

Are You required To Show ID To Police?

In Texas when a consensual encounter occurs, the Fourth Amendment is not implicated. An officer is just as free as anyone to stop and question a fellow citizen. A citizen is free to terminate a consensual encounter at will. In Texas, you can refuse to provide information, if you are not under arrest, lawfully detained, or requested information because the peace officer has good cause to believe you are a witness to a criminal offense. If you are in one of the previously 3 situations, you are required to tell your name, residence address and/or date of birth. There is no bright-line rule to determine when an encounter becomes a seizure. Courts will look at the totality of the circumstances.

Can a Drug Dog Smell My Car?

A police canine can sniff your car during a valid traffic stop and doing so does not violate the Fourth Amendment. However, a traffic stop is not without its limits. A traffic stop is temporary and may last no longer than necessary to effectuate its purpose.

What is Probable Cause To Search a Vehicle?

If an officer can search the vehicle if probable cause exists to believe it contains evidence of criminal activity. Such as if an officer smells marijuana, they will be able to search the vehicle without a warrant. 

Texas Search Warrant

If there is a warrant, it needs to be determined whether the warrant was properly applied and sworn to. Both the Texas Constitution and Code of Criminal Procedure require a search warrant to describe the place to be searched as near as possible. The description in the affidavit limits and controls the description contained in the warrant.

Does My Marijuana Case Have To Be In The County I was arrested?

No it does not if the defendant consents to move the case to an adjacent county. For a possession or delivery of marijuana case, Art. 13.22. POSSESSION AND DELIVERY OF MARIHUANA of the Texas Code of Criminal Procedure says “An offense of possession or delivery of marihuana (also spelled marijuana) may be prosecuted in the county where the offense was committed or with the consent of the defendant in a county that is adjacent to and in the same judicial district as the county where the offense was committed.”

The Drugs Need To Be Tested

For a person to be able to beat a case, aside from an illegal search and seizure, the alleged drugs need to be tested to prove what they are. That may seem obvious, but in reality mistakes happen in drug testing lab’s just like anywhere else.

What Happens if I have a Prescription?

If you have a prescription then it is legal to possess the drugs. If the prescription is expired, there is no restriction for possessing your own prescription drugs. If you have someone else’s drugs, then that can be a problem. You do have to be intentionally or knowingly in possession. And you also need to be prepared for the state to try and use affirmative links to connect you to possession of the drugs.

Drug Conviction and Federal Financial Student Aid

It is critical to not get a conviction for possession or selling drugs while receiving Federal Student Aid. This will affect the student’s eligibility. There will be a waiting period from the conviction date of at least 1 year up to an indefinite period for more than 1 conviction for selling drugs.

A student may speed up eligibility by completing an acceptable drug rehabilitation program or by passing 2 random drug tests by an acceptable drug rehab program.

In Texas Deferred Adjudication is not a conviction. This would be very least an attorney should fight for with his or her client.

Pretrial Drug Programs

Depending on the county, a pretrial drug program may be the best way to go. Defendants with no prior history are, at times, looked at with a more forgiving attitude. There may be some difficult tasks to complete to get successfully accomplish whichever program the county may have. Getting clean and passing drug tests while on bond may also help me when negotiating for my clients in court. Don’t settle for an attorney who does not care to look into your case. There are more issues to discuss depending on your particular circumstances. Give me a call or message at and we can discuss how to move forward.

Author: Eric Torberson

Eric Torberson is a licensed attorney in Texas as well as licensed in the federal courts of the southern and western districts of Texas.