WHAT IS MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCES IN TEXAS?
The Texas law against manufacture, delivery, or possession of miscellaneous substances prohibits manufacturing, delivering, or possessing with intent to deliver a controlled substance listed in any schedule, but not listed in a penalty group.
- What is a controlled substance? Texas Health and Safety Code Section 481.002 defines a “controlled substance” as a substance, including a drug, listed in Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance, but does not include “hemp” as defined by Texas Agriculture Code Section 121.001, or the tetrahydrocannabinols in hemp.
- What is the difference between Schedules I, II, III, IV, and V and the penalty groups of controlled substances? Controlled substances are divided into five “schedules” based on potential for abuse or addiction, which dictate the rules medical professionals must follow in prescribing medications listed in each schedule. Schedule I, for example, are the most addictive substances, and may generally not be prescribed. Substances in Schedule I are also typically in Penalty Group 1, and are considered illegal under most circumstances.Controlled substances are divided into “penalty groups” for determining criminal classification and penalties.
WHAT IS THE MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCES LAW IN TEXAS?
Tex. Health & Safety Code § 481.119. OFFENSE: MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCES.
(a) A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group. An offense under this subsection is a Class A misdemeanor, except that the offense is:
(1) a state jail felony, if the person has been previously convicted of an offense under this subsection; or
(2) a felony of the third degree, if the person has been previously convicted two or more times of an offense under this subsection.
(b) A person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group. An offense under this subsection is a Class B misdemeanor.
(c) It is a defense to prosecution for an offense under Subsection (b) that the actor:
(1) was the first person to request emergency medical assistance in response to the possible overdose of another person and:
(A) made the request for medical assistance during an ongoing medical emergency;
(B) remained on the scene until the medical assistance arrived; and
(C) cooperated with medical assistance and law enforcement personnel; or
(2) was the victim of a possible overdose for which emergency medical assistance was requested, by the actor or by another person, during an ongoing medical emergency.
(d) The defense to prosecution provided by Subsection (c) is not available if:
(1) at the time the request for emergency medical assistance was made:
(A) a peace officer was in the process of arresting the actor or executing a search warrant describing the actor or the place from which the request for medical assistance was made; or
(B) the actor is committing another offense, other than an offense punishable under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or 481.121(b)(1) or (2), or an offense under Section 481.125(a), 483.041(a), or 485.031(a);
(2) the actor has been previously convicted of or placed on deferred adjudication community supervision for an offense under this chapter or Chapter 483 or 485;
(3) the actor was acquitted in a previous proceeding in which the actor successfully established the defense under that subsection or Section 481.115(g), 481.1151(c), 481.116(f), 481.1161(c), 481.117(f), 481.118(f), 481.121(c), 481.125(g), 483.041(e), or 485.031(c); or
(4) at any time during the 18-month period preceding the date of the commission of the instant offense, the actor requested emergency medical assistance in response to the possible overdose of the actor or another person.
(e) The defense to prosecution provided by Subsection (c) does not preclude the admission of evidence obtained by law enforcement resulting from the request for emergency medical assistance if that evidence pertains to an offense for which the defense described by Subsection (c) is not available.
WHAT IS THE PENALTY CLASS FOR MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCES IN TEXAS?
Manufacturing, delivering, or possessing with intent to deliver a miscellaneous substance charged as a first offense is a Class A misdemeanor, punishable by up to one year in county jail.
If a person has a previous conviction for manufacture, delivery, or possession of a miscellaneous substance and is subsequently charged with the same offense, it is a state jail felony, punishable by 180 days to two years in a state jail facility.
If a person has two previous convictions for manufacture, delivery, or possession with intent to deliver a miscellaneous substance, the third charge or more is a third degree felony, punishable by two to ten years in prison.
WHAT IS THE PUNISHMENT RANGE FOR MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCE IN TEXAS?
The punishment range for manufacturing, delivering, or possessing with intent to deliver a miscellaneous substance depends on the penalty classification, which corresponds to a person’s previous convictions, if any.
- Class A misdemeanor (first offense):
- up to one year in jail, maximum $4,000 fine;
- State jail felony (one prior conviction):
- 180 days to two years in a state jail facility, maximum $10,000 fine;
- Third degree felony (two prior convictions):
- two to ten years in prison, maximum $10,000 fine.
WHAT ARE THE PENALTIES FOR MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCE IN TEXAS?
A person charged with Class A misdemeanor manufacturing, delivering, or possessing a miscellaneous substance may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed two years.
The community supervision term for a state jail felony ranges between two and five years, with the possibility of extending supervision for up to ten years. Probation for a first felony drug conviction is mandatory.
The period of deferred adjudication for a third degree felony controlled substance charge may not exceed ten years, and the probation period may range from two and five years.
WHAT ARE THE DEFENSES TO MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCE IN TEXAS?
The statute does not authorize specific defenses to manufacture or delivery of a controlled substance in Penalty Group 1-A, and the exemptions in Texas Health and Safety Code Section 481.111 do not apply. A person accused of manufacturing or delivering a substance in Penalty Group 1-A may attempt to negate at least one of the elements the State must prove at trial.
- What shows proof of intent to deal drugs in Texas? To convict a person of the higher offense of possession with intent to deliver a controlled substance, the State must show the accused possessed drugs for a purpose other than personal use. This may be shown by circumstantial evidence, the high volume of drugs, or any admissible statements the accused made during the investigation.For example, in Vega v. State, the defendant was sitting in the driver’s seat of a car with his wife when police approached. They saw marijuana in plain view, searched the car, and found a backpack on the floor when his feet were. Inside the backpack, police found ten baggies of methamphetamine. The backpack also had the defendant’s wallet and other possessions. He was convicted of possession with intent to deliver a controlled substance in PG1 (methamphetamine), and the appellate court affirmed.
- Is a lab test required for drug cases in Texas? Generally, yes. A person should not be convicted of possessing, manufacturing, or delivering a controlled substance in a specifically alleged penalty group without a lab report verifying the drug was the controlled substance alleged.In Ex parte Saucedo, the defendant was indicted for possession of methamphetamine, a controlled substance in Penalty Group 1. He pled before the lab results were sent to the prosecution, and was sentenced. The lab report revealed the defendant was actually in possession of methylethcathinone, a substance in Penalty Group 2. The Court of Criminal Appeals granted habeas relief, and cautioned all trial attorneys and defendants against pleading without all the evidence.
- What is drug possession in Texas? Texas Health and Safety Code Section 481.002 defines “possession” as actual care, custody, control, or management. Possession does not require proof a person is physically holding the controlled substance.In Rodriguez v. State, No. 04-21-00503-CR, the defendant’s girlfriend let her friend drive the defendant to the store. Police stopped the car while the defendant was in the passenger seat, and found 0.18 grams of methamphetamine in a chewing tobacco tin in the glove box. The officer noticed tobacco around the defendant’s mouth, so he was charged with and convicted of possession less than a gram of a controlled substance in Penalty Group 1.The appellate court affirmed. The drugs were conveniently accessible to the defendant on his side of the car, they were in a tobacco tin, and the defendant chewed tobacco.
- What is a search incident to arrest in Texas? The Fourth Amendment to the U.S. Constitution permits police officers to conduct warrantless searches incident to lawful arrests. The justification for permitting such a warrantless search is: (1) the need for officers to seize weapons or other things which might be used to assault an officer or effect an escape; and (2) the need to prevent the loss or destruction of evidence. See State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014).In State v. Sanchez, an officer approached the defendant’s jeep, which was parked in a grassy area next to a bar with the driver’s door open, the engine turned off, and the defendant was asleep in the driver’s seat. The officer woke the defendant up to check on him, and learned he had traffic warrants. Incident to arrest, the officer searched the defendant’s pockets, and he had cocaine. He was then arrested for possession of a controlled substance in PG 1, his car was searched incident to that arrest, and more cocaine was found. The appellate court upheld the car search as a valid search incident to his arrest for possession.In Botello v. State, police responded to an assault-in-progress. The officer spoke to the victim outside the home, who said the defendant was her estranged husband, had assaulted her, and was still inside. The defendant refused to come out, but the victim consented to a search of the home, so police forcefully went inside. Officers immediately arrested the defendant for assault, searched his pockets, and found over 24 grams of heroin. He was convicted of possession of a controlled substance in PG 1, and the appellate court affirmed.
WHAT IS THE STATUTE OF LIMITATIONS FOR MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCE IN TEXAS?
The limitation period for manufacturing, delivering, or possessing a miscellaneous substance categorized as a misdemeanor is two years. If classified as a felony, the limitation period is three years.
MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCE IN TEXAS
Texas law punishes manufacturing, delivering, or possessing with intent to deliver a miscellaneous substance based on prior convictions. A first-time offender will be charged with a Class A misdemeanor, regardless of the amount possessed or delivered. Subsequent convictions will be felony offenses.
