The cannabis plant, known as marijuana or marihuana, is a drug many people use for various purposes. However, its legality varies from state to state, and the federal government has deemed it illegal for all recreational purposes. Until July 2018, when the Federal Drug Administration (FDA) approved its first cannabis-based drug, all forms of marijuana had been illegal for medical purposes, too.

Regardless of its purpose, marijuana remains one-hundred percent illegal in Texas. If the police charge you with a marijuana crime, whether the possession or delivery of marijuana, rest assured, the State can throw the book at you. But don't despair. Even if you believe they will find you guilty, do not plead guilty. Instead, find an experienced and knowledgeable defense lawyer.

In the United States, a defendant is innocent until proven guilty. An experienced and knowledgeable Austin defense attorney can ensure that the prosecutor, judge, and jury remain accountable to this principle. Former prosecutor turned marijuana defense attorney Jason English describes some possible defenses below. Keep in mind that each case is unique and demands its own specific approach. Do you have questions? Contact Jason English to discuss your case.

Fundamental Texas Elements of a Marijuana Offense

When developing a marijuana defense, it is crucial to know what the State of Texas must prove. In Texas, possession, and delivery comprise the most common marijuana crimes.

What Constitutes Possession of Marijuana & the Elements Necessary to Prove It?

According to the Health and Safety Code § 481.121, an individual commits an offense if they knowingly or intentionally possess a usable quantity of marijuana.

The State must prove three elements to find someone guilty of possession of marijuana in Austin.

  1. You must have known you had possessed marijuana. Alternatively, you must have intended to possess it.
  2. The State must have found you with a usable quantity of marijuana.
  3. The substance the State found you with must have been marijuana.

Marijuana Offense Delivery & Necessary Elements to Prove It

According to the Health and Safety Code § 481.121, an individual commits an offense if they knowingly or intentionally deliver marijuana.

Per this statute, "deliver" means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of the existence of an agency relationship. It also includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.

Under this offense, the State must prove three elements to find you guilty.

  1. You must have known you delivered marijuana. Alternatively, you must have intended to deliver marijuana.
  2. You must have actually or constructively delivered marijuana.
  3. The substance you delivered must have been marijuana.

For both charges, the State must satisfy the elements. Your attorney will develop a defense that weakens or disproves the presence of the elements

What Are the Most Common Defenses in Texas Marijuana Cases?

Your attorney can use numerous defenses — if applicable — in your case. Read about a few of these defenses below. You'll see that many of them correspond with the above elements of the alleged crime

Lack of Knowledge About the Marijuana

If you did not know the substance you had was marijuana, you have no mental culpability. On the other hand, you may be aware the substance is marijuana, but you may not have known it was on your person or on your property. Without this knowledge, you also lack mental culpability.

Lack of Evidence of Marijuana Possession

Suppose the substance was not found under your care, custody, or control. In that case, you did not possess it. For instance, if the police found the marijuana in a car that you were riding in but was not your car and did not find the marijuana near you to indicate intent or knowledge of its existence, you did not possess the marijuana.

On the other hand, if the lab proves that the substance the police found on your person was not, in fact, marijuana, then you are not guilty of the crime. It could be another herb or substance with the same physical characteristics.

Absence of Usable Quantity

Texas law has not defined what is usable. The term “usable quantity” often pertains to either what is common or just enough to smoke or consume — a question left up to the jury. In Texas, it is a gamble unless you have an experienced criminal defense attorney on your side who knows how to speak to and influence juries.

Unlawful Search & Seizure

The 4th Amendment protects you against wrongful search and seizures. The police must have probable cause and lawfully obtain a warrant to search and seize either your person or your property. However, in Texas, there are some exceptions to this rule. Without probable cause, proper attainment of a warrant, proper administration of the warrant, or a warrant requirement exception, your criminal defense attorney can suppress any evidence resulting from a search and seizure.

Lab Errors or Misplaced Evidence

In some cases, the lab can make mistakes in the handling and analysis of the evidence. In other cases, they may misplace the marijuana evidence. Either circumstance could result in the dismissal of charges.

Retain a Resourceful Austin Marijuana Defense Attorney Today

As someone who prosecuted cases for over 15 years, Jason S. English understands the strategies prosecutors employ in drug cases to coerce the accused into pleading guilty. Before you plead guilty to any crime, understand your rights and explore your options for fighting the criminal charges.

Have you been arrested for a drug crime in Texas? It is crucial to retain a criminal defense attorney right away. Contact Austin criminal defense lawyer Jason S. English online or call (512) 454-7548. Jason English knows that a conviction of a marijuana crime, even for possession of a minimal amount, can lead to severe consequences, including jail, fines, and even problems associated with a criminal record — like passing a background check for a job or rental space. Drawing upon his many years of experience prosecuting criminal cases, Jason S. English has the knowledge, skills, and experience you need to fight for your constitutional rights.