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Houston Drug Possession Defense Strategies

Comprehensive Defenses to Drug Possession Charge in Texas

Being arrested for drug crimes is an unpleasant experience. For some of you, the arrest may have been for a legitimate reason, but for others of you, it wasn't. For instance, not all controlled substances are a reference to illegal drugs. Some controlled substances are prescribed by your doctor, but if the prescription is absent, they are illegal. What happens in these cases is typical: you take a pill out of the prescription bottle and place it somewhere so you can consume it later, maybe your pocket or your purse. Then you are pulled over, and the police officer finds the pill without its prescription. It's not illegal to be without a prescription so long as you have a prescription, but the officer will treat you like a criminal anyway.

Whether your arrest was prompted by the possession of legal or illegal drugs does not matter. For either instance, you still need legal representation. There is a stigma out there for anyone arrested for drugs. A conviction can also lead to serious collateral consequences, like losing custody of kids, your job, security clearance, financial aid or housing if enrolled or applying for higher education, or professional licenses (e.g., pilot's license, medical license, or nursing license). If you want to fight that stigma and protect your educational or professional aspirations, an experienced criminal defense lawyer can help you.

Doug Murphy, a veteran criminal defense trial lawyer who is also Board Certified in criminal law, has the experience, insight, and resources to develop a defense strategy in accordance with the facts and circumstances of your case. He is committed to holding the jury accountable to the standard of not guilty unless proven beyond a reasonable doubt, and he is committed to weakening the prosecutor's case so that doubt exists. If you have been charged with possession of a controlled substance, contact Doug Murphy today. He represents clients in Houston and Houston's greater metropolitan community, including surrounding counties, like Austin, Brazoria, Galveston, Grimes, Harris, Fort Bend, Liberty, Matagorda, Montgomery, and Waller.

While you wait for your appointment to meet with Doug Murphy, you can review the below common defenses to get an idea of how Doug Murphy will defend you against your drug possession charge(s).

Insufficient Evidence

So that you do not prematurely plead guilty or accept a plea deal, the first thing you need to know is simple: the State must prove your guilt beyond a reasonable doubt with evidence. If evidence is in want, the prosecutor either has no case, or Doug Murphy will challenge it before a judge and jury.

Generally speaking, any offense alleged against any person has certain elements that must be satisfied before a jury can find a suspect guilty of the offense. It's the same with a drug possession offense. According to Tex. Penal Code §§ 481.115 - 481.118, the offenses of possession of controlled substances in penalty groups 1-4 require the elements of (1) "knowingly or intentionally" (2) possessing (3) controlled substance(s).

Knowingly or Intentionally

To be successful, the State must prove your state of mind in its drug possession case against you. You must have or should have knowingly or intentionally possessed the illicit controlled substance. You act intentionally when you are conscious of and determined to complete or perform an act, including an illegal act. Knowingly means you know the substance or object of the act is illegal. In a drug possession case, "knowingly" does not mean you know exactly what the controlled substance is. Rather, knowingly means you knew it was an illegal substance.

For instance, if you were in possession of marijuana, you may have intended to smoke it without really knowing what the substance was—you could have thought it was tobacco, a legal substance. On the other hand, you have a bag of marijuana and don't know exactly if it is marijuana or another substance—all you know is that it is illegal and no one should know you have it. In many cases, a defendant is pulled over for a traffic stop, and the officer sees a joint near the passenger seat. You are arrested for possession, but the joint belongs to a friend whom you just dropped off at home. You didn't know what it was or that it was there, so you are not guilty of the crime.

A good defense attorney pressures the prosecutor to prove that you knew the drugs were in your proximity and/or to prove that you intended to consume or use the drugs in some manner knowing it was illegal.

State of mind is usually proved by facts and circumstances of the case, your criminal history, and lay and expert testimony, among other means. A criminal defense lawyer will submit evidence to counter and weaken the prosecution's arguments.


The Texas Controlled Substance Act defines possession at Section 481.002(38) as "actual care, control, or management." To satisfy this element, there must be more evidence than the claim that you—the defendant—was in the same area where the contraband was found.

Possession requires that dominion or control over the contraband existed. In most cases, if you never actually handled the drugs or drug paraphernalia, then you never had dominion and control over it.

The State relies on affirmative links to connect you to the contraband. This reliance would include, for example, the presence of drug paraphernalia on your person when the drugs were found or fingerprints on items containing or related to the contraband.

Your attorney would attempt to un-associate these links with you by, for example, arguing that the drug paraphernalia was a friend's or was used for a legal purpose (to smoke tobacco), or showing that the fingerprints were actually only on the grocery bag but not on the Ziploc bags containing the controlled substance—and this matters, because who knows when the Ziploc bags were put into the grocery bag.

There have also been cases where the police have planted drugs on suspects. Though this is rare, and to prove it is difficult unless video is available, it is something to keep in mind. If no video is available, but it is still believed the police officer planted the evidence, a motion can be filed with the court to have the police department release the officer's file to identify a pattern of complaints. Information on the complainants can be obtained so that your attorney can contact them for investigative/interviewing purposes.

Controlled Substance

Finally, the substance must be a controlled substance that was illegally in your possession. That controlled substance could be from any of the penalty groups listed in the same Controlled Substance Act.

The prosecutor must prove that (1) there were actual drugs, and (2) the drugs were a controlled substance. There are a number of things that could go wrong here for the prosecution.

For instance, the contraband may be handled by different personnel before it makes its way to the evidence locker, and sometimes it could be misplaced, lost, or otherwise tainted somehow. If the drugs can't be produced at the time of trial, there's no case. In other instances, the forensic lab may have difficulty confirming exactly what the alleged controlled substance is, and without proper identification, there's no case. Likewise, the forensic lab may prove it's not a controlled substance at all, but something else altogether legal.

Overall, if one of these elements cannot be proved sufficiently, the State cannot prove your guilt beyond a reasonable doubt.

Constructive Possession

This defense is aligned with the elements of the drug possession offense. Constructive possession can be a prosecutor's link between you and the contraband, but an aggressive, perceptive criminal defense attorney will turn the argument around for your benefit.

Simply put: the drugs were not yours.

For instance, the prosecutor claims you were in possession constructively because you share an apartment with two other people, and the drugs were found in the living room of that apartment. As such, you must have had the ability to exercise dominion and control over the drugs. In these kinds of cases, the State must prove that you did indeed exercise dominion and control over the contraband substance.

Your attorney will show that you had no knowledge the drugs existed nor that you intended to use them in any way. A good criminal defense attorney will be able to cast doubt on the State's allegations against you and show that you were indeed not aware of the drugs. This can be done in multiple ways—for example, using witness testimony to build your character and demonstrate in part things like you were not really friends with your roommates and have never used drugs.

Each argument will be specifically based on the facts and circumstances, and it will only be used if applicable.

Valid Medical Prescription

People can be arrested when pills belonging to them are found on them or in their proximity without a prescription. If you have a valid prescription, then proof of it is an absolute defense. The prescription must have been provided in a legal setting.

Note, however, if the prescription was obtained through fraud, then you can be charged with both possession of a controlled substance and fraud.

Constitutional Challenges

Police in Houston and beyond Houston have been known to violate criminal suspects' constitutional rights. Regardless if you committed a crime or not, your rights must be upheld, and if they are not, then evidence flowing from the violation of the rights can be suppressed by the court upon a motion for the same. Two specific violations are important when it comes to drug crimes: Miranda rights and search & seizure.

Miranda Rights

There are two important considerations here: (1) the police must read you the Miranda rights when you are in their custody and are being interrogated (custodial interrogation)—which means you have been arrested; and (2) in Texas, you must expressly state that you wish to remain silent, it is not enough just to turn your head away from the police and remain silent. Salina v. Texas 133 S. Ct. 2174 (2013).

Miranda rights violations can materialize in different ways. Examples include interrogation without the warnings being read to you or intimidation by the police to force you to talk after you have been read your Miranda rights. Any evidence obtained from these violations is inadmissible. Your criminal defense lawyer will file a motion to suppress the evidence.

Search and Seizure

The 4th Amendment is important to drug crime cases. Police officers are constitutionally mandated to act reasonably when searching a person and seizing property. There are certain procedural rules that must be followed in order for the search warrant to be legal and the search and seizure to be lawful.

Search warrants must be valid, which means they must have been obtained properly and legally. If all the required information was not submitted to establish probable cause, then the warrant may be invalid. If the information to establish probable cause was obtained by bad evidence or a bad source, then the warrant may be invalid. If it's used to search and seize, then the evidence obtained from the invalid warrant may be inadmissible.

Furthermore, even with a valid warrant, the police must not exceed the scope of the warrant or violate it in any other way, or else the evidence obtained could also be inadmissible.

Contact Our Experienced Harris County Drug Crimes Defense Lawyer

Doug Murphy will use these or other relevant defenses and strategies to move your case towards dismissal before trial or acquittal at trial. He will aggressively defend your case to protect your future. Contact us today online or at 713-229-8333 to discuss the details of your case.

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