Over the past few years there have been significant differences in the way that drug crimes are prosecuted in Bexar County, Comal County, Kendall County and other counties in Texas. Additionally, we have seen changes in how the Federal Government prosecutes the unlawful possession of controlled substances or drugs. So the first question that you need to have answered is how does the jurisdiction (the County or the Federal Court) where you were arrested handle felony or misdemeanor drug charges. It has become something of an issue a problem a source of confusion and frustration that if you are arrested in Travis County (Austin) with marijuana you have no problem, but if you are arrested for the exact same thing in Comal County you have a life altering problem.
When my clients come into my office they are often dealing with their own drug issues and with their own living issues, and now they are being asked to deal with the stress of an arrest. Many of them are struggling with anxiety and depression and have found that the marijuana or other drugs that they were using were helping them cope with those situations better than their prescribed medication.
The most common drug offense that we handle in Texas is possession of penalty one group controlled substances, such as heroin, synthetic marijuana, methamphetamine, hashish, and good old fashioned, marijuana.
What Is An Unlawful Controlled Substance?
There is actually a complete list of controlled substances that can be found in Texas Health and Safety Code 481.002(5) which states that a controlled substance is any substance found in Penalty Groups One through Four as listed in Texas Health and Safety Code 481.102. This list is exhaustive. And exhausting. And ridiculous. It contains thousands of compounds and substances and the list is so exhaustive that I will say that I do not believe that any one in the whole State of Great Big Texas has ever memorized it. But even as I say that I can imagine that there is some pale skinned prosecutor somewhere in Texas who has memorized the list of the substances in all of the Penalty Groups just so he can tell someone that he did it, but that person is probably not someone who would ever want to step outside to feel sunlight on his face, and would not know how to try a drug possession case if his life depended upon it.
So, because no one in this whole great State of Texas and County of Bexar or any other Coutny in the great State of Texas knows exactly what a Controlled Substance is or is not, they are grouped into big categories. These categories each have their own chemical formula, but they are widely known by the following names; methamphetamine, heroin, hashish, synthetic marijuana, and marijuana. In Texas, there are some substances, like marijuana, and Xanax, for which you would have to possess a significantly large quantity in order to receive a felony charge. However, being found in possession of any usable amount of methamphetamine or heroin is a state jail felony. Possession of more than a gram is a third-degree felony, possession of more than four grams is a second-degree felony, and possession of 200 grams or more is a first-degree felony.
The charges can be enhanced by one level if there is enough of the substance, or if it is packaged in a way, to have what is called the enhancement for intent to distribute or intent to deliver. This enhancement confuses a lot of people. Especially, at the lower quantity levels people will be confused why they have been charged with an intent to distribute enhancement. For example, if you have three grams of methamphetamine packaged in a way that makes it more likely to be distributed (like in individual baggies), then the detective will testify that that is a method of possessing a controlled substance with intent to distribute. As a result, your penalty group could be enhanced by one level.
In Texas, a state jail felony is punished by anywhere from six months in the state jail facility to two years in the state jail facility. State Jail sentences are strange, in Texas, because the sentences are served day for day. So, people who have longer sentences in prison often get out quicker than people with shorter sentences in State Jail.
Why? Why are there State Jail Felonies? An excellent question. The legislature feels that people who possess small quantities of drugs are actually more likely to be drug addicts than people who possess larger quantities of drugs (this is my opinion regarding what the legislature was thinking). So, the purpose is not really to put you in a State Jail Facility but it is to put you on deferred adjudication or probation. While most people are happy to get probation or deferred adjudication they find out later that it is a trap. So, that’s why you need to hire a lawyer who will not only handle your case, but also let you know how you can end up trapped on deferred adjudication or probation. Unless you have a qualifying medical exception, that state jail time is served day for day. A third-degree felony results in a sentence of two to 10 years in prison, a second-degree felony results in a sentence of two to 20 years in prison, and a first-degree felony carries a sentence of five years to life in prison. This means that if you possess two eight balls methamphetamine (7 grams) in individual packages and the detective charges you with intent to distribute, then you could be looking at spending five years to life in prison for possessing that quantity of methamphetamine.
The federal court system is a little bit different in that they usually deal with the possession of much larger quantities of drugs, especially methamphetamine and heroin. Unless, someone is arrested for a drug charge on a military base the federal government will allow the State of Texas to prosecute drug charges at the State level.They will charge you according to how many grams of the substance you have. If you have 50 grams of methamphetamine, then the federal court system will look at it and give you a five-year minimum mandatory sentence. If you have more than 100 grams of methamphetamine, cocaine or heroin, then there would be a 10-year minimum sentence. It is your attorney’s job to avoid these mandatory minimums. The good news is that we have a great deal of experience helping our clients avoid these mandatory minimum sentences.
What Factors Determine Whether A Drug Offense Is Charged At The Federal Or State Level?
There are several factors that go into whether the crime will be prosecuted by Federal or State authorities. There are two big determining factors regarding whether you will be charged at the State or Federal level. First, is the quantity of the drug. The quantity determines whether an offense is charged at the federal or state level. If I were a singer I would say it’s all about the weight. Additionally, the federal government becomes interested if there is a pattern of dealing, or a criminal organization that is distributing the substance. The second major determining factor is whether there is a firearm involved. Surprise on the feds hate guns. If they believe that you are dealing drugs and they arrest you with a firearm there is a better chance that you will be prosecuted by Federal authorities.
For more information on Common Drug Offenses In Texas, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (210) 229-8300 today.
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