Fort Worth Drug Crimes Attorneys

Facing drug charges in Texas can be a daunting experience, with potential consequences ranging from hefty fines and incarceration to long-term impacts on your personal and professional life. Texas has some of the strictest drug laws in the nation, and understanding the nuances of these statutes is crucial for anyone navigating the legal system. This detailed guide, complete with relevant legal citations, aims to shed light on the various types of drug offenses in Texas and the severe penalties associated with them.

1. Possession of a Controlled Substance

Possession of a controlled substance without a valid prescription is a serious offense in Texas, governed primarily by Texas Health and Safety Code §§ 481.115 - 481.118. The severity of the charge and its associated penalties are highly dependent on several critical factors:

• Type of Substance (Penalty Group): Texas law categorizes controlled substances into distinct "Penalty Groups," each carrying a different level of legal consequence. These groups, ranging from 1 to 4, with an additional 1-A and 2-A, are a fundamental aspect of Texas drug legislation. For instance, substances in Penalty Group 1 (PG1) typically incur the most severe penalties, reflecting their high potential for abuse and lack of accepted medical use.
• Quantity of the Substance: The amount of the controlled substance in possession directly correlates with the classification of the offense. Even a small amount of a PG1 substance can be charged as a state jail felony, while possessing larger quantities can escalate to first-degree felonies, carrying potential sentences of life in prison. The weight or aggregate weight of the substance is a key determinant.
• Aggravating Factors: Certain circumstances can significantly enhance the penalties for possession. These include, but are not limited to, possession within a drug-free zone (e.g., near schools or playgrounds), possession with the intent to deliver, or possession while in possession of a firearm. These factors demonstrate a greater threat to public safety and thus warrant more stringent punishment.

Understanding "Possession": It's important to note that "possession" in Texas law doesn't necessarily mean holding the substance in your hand. It can refer to "actual possession" (direct physical control) or "constructive possession" (exercising care, custody, or control over the substance, even if it's not on your person). Prosecutors must prove that the accused knowingly or intentionally possessed the substance in one of these ways.

2. Possession of Marijuana

Despite a growing national trend towards marijuana legalization, Texas maintains strict laws regarding marijuana possession. Texas Health and Safety Code § 481.121 specifically addresses marijuana offenses, with penalties directly tied to the quantity possessed.

Amount Possessed	Classification	Penalty
Less than 2 ounces	Class B Misdemeanor	Up to 180 days in county jail, up to $2,000 fine
2–4 ounces	Class A Misdemeanor	Up to 1 year in county jail, up to $4,000 fine
More than 4 ounces to 5 pounds	State Jail Felony	180 days to 2 years in state jail, up to $10,000 fine
More than 5 pounds to 50 pounds	3rd Degree Felony	2–10 years in state prison, up to $10,000 fine
More than 50 pounds to 2,000 pounds	2nd Degree Felony	2–20 years in state prison, up to $10,000 fine
More than 2,000 pounds	1st Degree Felony	10–99 years or life in state prison, up to $100,000 fine

Note on "Usable Quantity": For a marijuana possession charge to stick, the prosecution must prove the individual possessed a "usable quantity." This generally means enough to be used as a drug, though there's no precise definition, and it can be a point of contention in legal proceedings.

3. Possession of Drug Paraphernalia

The possession of drug paraphernalia, while often a lesser offense than drug possession itself, can still lead to significant legal trouble. Texas Health and Safety Code § 481.125 broadly defines paraphernalia to include any equipment, products, or materials used or intended for use in cultivating, manufacturing, processing, packaging, storing, or consuming controlled substances. Common examples include:

• Pipes, water pipes (bongs), and other smoking devices
• Rolling papers and blunt wrappers
• Digital scales used for weighing drugs
• Syringes and hypodermic needles (unless for legitimate medical purposes)
• Containers used for storing or concealing drugs

Simple possession of drug paraphernalia is typically classified as a Class C Misdemeanor, punishable by a fine of up to $500. However, if the prosecution can prove that the individual sold or possessed paraphernalia with the intent to sell it, the charge can escalate to a Class A Misdemeanor or even a felony, depending on the circumstances, such as selling to a minor.

4. Manufacturing or Delivery of a Controlled Substance

These offenses represent some of the most serious drug charges in Texas, outlined in Texas Health and Safety Code §§ 481.112 - 481.114.

• Manufacturing: This term encompasses the production, preparation, propagation, compounding, conversion, or processing of a controlled substance. It can range from operating a large-scale drug lab to even simple acts like growing marijuana plants if the intent is to produce a usable drug.
• Delivery: This is defined as the actual or constructive transfer of a controlled substance, regardless of whether there was payment or consideration. This includes selling, giving away, or even simply handing over a drug to another person.

The penalties for manufacturing or delivery are extremely severe and are determined by the Penalty Group of the substance and the quantity involved. For example, manufacturing or delivering a small amount of a PG1 substance can be a state jail felony, while large-scale operations involving significant quantities can result in first-degree felony charges, with potential sentences of life in prison and massive fines. Furthermore, enhanced penalties apply if these offenses occur in designated drug-free zones or if minors are involved in the illicit activities.

5. Possession with Intent to Deliver (PWID)

Even if an individual isn't caught in the act of manufacturing or delivering, they can still be charged with Possession with Intent to Deliver (PWID) under Texas Health and Safety Code §§ 481.112 - 481.114. This charge relies on circumstantial evidence that indicates the intent to distribute the controlled substance. Prosecutors often infer intent from:

• Large Quantities of Drugs: Possessing an amount of a substance that exceeds what would typically be for personal use.
• Packaging Materials: Having baggies, vials, or other materials commonly used for drug distribution.
• Weighing Scales: Possession of digital scales, especially in conjunction with drugs.
• Presence of Large Sums of Cash: Unexplained large amounts of money.
• Communications (Text Messages, Emails): Digital communications implying drug sales or distribution.
• Multiple Cell Phones: Possession of multiple phones, often associated with drug dealing.
• Weapons: The presence of firearms can also be used to infer an intent to protect drug operations.

The penalties for PWID mirror those for actual manufacturing or delivery, making it a very serious charge.

6. Drug-Free Zones & Enhanced Penalties

Texas takes a particularly harsh stance on drug offenses committed near protected locations. Texas Health and Safety Code § 481.134 designates "drug-free zones" and mandates enhanced penalties for offenses that occur within 1,000 feet of:

• Public or private schools (including childcare facilities and institutions of higher education)
• Playgrounds
• Public or private youth centers
• Public swimming pools
• Video arcade facilities
• School buses
• Correctional facilities
• Mental health facilities

These enhancements can include increased minimum sentences, often doubling the potential fine and adding additional years to a prison sentence. The rationale behind these laws is to protect vulnerable populations and deter drug activity in areas frequented by children and those in rehabilitative environments.

7. Penalty Groups in Texas: A Detailed Look

The Texas Health and Safety Code categorizes controlled substances into distinct Penalty Groups, which are fundamental to determining the severity of drug charges.

There are several federal acts that regulate drug charges, but the primary act is the Controlled Substances Act (CSA) (21 U.S. Code § 801 et seq.). This federal law establishes five schedules for controlled substances, similar to Texas' Penalty Groups, and sets out various criminal offenses related to manufacturing, distributing, and possessing these substances.

Federal drug charges are usually applicable when:

• Interstate or International Trafficking: The drug activity crosses state lines or international borders, bringing it under federal jurisdiction.
• Large-Scale Operations: The quantity of drugs involved, the complexity of the criminal enterprise, or the financial proceeds are substantial enough to warrant federal intervention.
• Federal Agency Involvement: The arrest is made by federal law enforcement agencies such as the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), or Immigration and Customs Enforcement (ICE).

Federal convictions under Title 21 U.S. Code often carry mandatory minimum sentences, meaning judges have less discretion in sentencing. For example, trafficking certain quantities of controlled substances can trigger mandatory minimums of 5 or 10 years, and these sentences can be significantly increased for repeat offenders or those involved in large-scale conspiracies. Federal prisons also tend to have different conditions and parole opportunities compared to state prisons.

8. Defending Against Drug Charges

A strong defense strategy is paramount when facing drug charges in Texas. A skilled criminal defense attorney will meticulously examine every aspect of your case to identify potential weaknesses in the prosecution's arguments and avenues for defense. Common defense strategies include:

• Challenging Illegal Searches and Seizures (Fourth Amendment): This is a cornerstone of many drug defenses. If law enforcement obtained evidence through a search conducted without a warrant, probable cause, or consent, or if the warrant itself was invalid, the evidence may be suppressed under the "exclusionary rule." This can effectively dismantle the prosecution's case.
• Disputing Knowledge or Control: Under Texas Penal Code § 6.03(b), a person commits an offense only if they act with the required culpable mental state. For drug possession, this means proving the accused knowingly or intentionally possessed the controlled substance. A defense may argue that the accused was unaware of the substance's presence or did not have actual control over it. For example, if drugs were found in a shared vehicle, a defense might argue that another occupant was responsible.
• Identifying Lab or Chain-of-Custody Issues: The prosecution must prove that the substance seized is, in fact, a controlled substance. This relies on forensic lab analysis. Issues with lab procedures, contamination of samples, or breaks in the chain of custody (how the evidence was handled from seizure to analysis) can render lab results inadmissible or unreliable.
• Presenting a Valid Medical or Prescription Defense: If the controlled substance was possessed with a valid prescription from a licensed medical practitioner, this can be an absolute defense to a possession charge. This typically applies to prescription medications in Penalty Groups 3 and 4, or sometimes 2.
• Challenging Quantity or Weight: Discrepancies in the reported weight of the controlled substance can lead to a lower classification of the offense and, consequently, reduced penalties.
• Entrapment: In rare cases, a defense of entrapment may be argued if law enforcement induced the defendant to commit a crime they would not have otherwise committed.
• Diversion Programs: For first-time offenders, particularly in less severe cases, an attorney may be able to negotiate for participation in a drug diversion program. Successful completion of such programs can lead to dismissal of charges, avoiding a criminal record.

Conclusion

The landscape of drug charges in Texas is complex and unforgiving. From the nuances of penalty groups and drug-free zones to the harsh realities of mandatory minimum sentences, the impact of a conviction can be profoundly life-altering, extending beyond immediate fines and incarceration to long-term criminal records that affect employment, housing, and civil liberties.

If you or a loved one is facing drug charges in Texas, the urgency of securing knowledgeable legal representation cannot be overstated. A qualified criminal defense attorney possesses the expertise to challenge illegally obtained evidence, skillfully advocate for reduced charges, or strategically negotiate for alternative outcomes such as drug diversion programs. Their in-depth understanding of Texas drug laws, courtroom procedures, and prosecutorial tactics is invaluable in protecting your rights and fighting for the best possible outcome in your case. Do not delay in seeking professional legal guidance.

A drug charge can be an overwhelming experience, but you don't have to face it alone. At Howard Lotspeich Alexander & Williams, PLLC (HLAW), we understand the complexities of Texas drug laws and are dedicated to providing compassionate yet aggressive representation. Let us help you navigate this challenging time. Reach out for a free, confidential case evaluation by calling 817-993-9249 or contacting us here.

In Texas, the concept of "possession" can sometimes be a little tricky when we think about it in terms of the law as opposed to what we all commonly define as "possession". Whether it’s related to controlled substances, firearms, or stolen property, possession is a key element in many criminal offenses. But what does possession actually mean in the eyes of Texas law? This post will break down the definition, legal standards, and consequences of possession in the Lone Star State.

Definition of Possession in Texas Law

Under Texas Penal Code §1.07(a)(39), possession is defined as having "actual care, custody, control, or management." This broad definition means that possession isn’t limited to physical ownership. Instead, it can include situations where a person has any access to or control over an object, even if they don’t physically hold it at the moment.

Possession can be categorized into two types:

1. Actual Possession: This occurs when the individual has physical custody of the item. For instance, if someone is holding a bag containing illegal drugs, they are in actual possession.
2. Constructive Possession: This arises when an individual does not have physical custody but still has control or the right or ability to excersise control the item. For example, if illegal drugs are found in the glove compartment of a car that a person owns and operates, they may be deemed to have constructive possession. Even if they don't own or are operating the vehicle, police officer's may deem a passenger in the vehicle as having the ability to exercise care, custody, control or management of the illegal item.

Establishing Possession in a Criminal Case

To prove possession in a criminal case, the prosecution must demonstrate two key elements:

1. Knowledge: The accused must have known about the presence of the item, and;
2. Control: The accused must have exercised, or had the ability to exercise, control over the item.

Merely being near an illegal item is not enough to establish possession. For example, if drugs are found in a house shared by multiple roommates, the prosecution must show evidence linking the accused to the drugs specifically—such as fingerprints, ownership of the container, or incriminating statements.

Joint Possession

Texas law also recognizes the concept of joint possession. This means that more than one person can be found to have possession of the same item. For example, if two people are in a vehicle and illegal contraband is found in a location accessible to both, they could both potentially be charged with possession.

Consequences of Possession Charges

Possession charges can carry serious consequences in Texas, varying based on the type and quantity of the item in question. For instance:

• Drug Possession: Penalties depend on the type of drug and the amount, with punishments ranging from misdemeanors to first-degree felonies.
• Firearm Possession: Certain individuals, such as convicted felons, are prohibited from possessing firearms, and violating this prohibition can result in severe penalties.
• Stolen Property: Possession of stolen property can lead to theft charges, with penalties depending on the value of the property.

Defenses to Possession Charges

There are several potential defenses to possession charges in Texas, including:

• Lack of Knowledge: Demonstrating that the accused was unaware of the item's presence.
• Lack of Control: Arguing that the accused did not have the ability to exercise control over the item.
• Mistaken Identity: Showing that the item belonged to someone else and the accused had no connection to it.
• Violation of Constitutional Rights: If law enforcement obtained evidence through an illegal search or seizure, that evidence may be suppressed.

Conclusion

"Possession" is a nuanced legal concept in Texas, encompassing both actual and constructive control over items. Understanding the intricacies of possession is crucial for anyone facing criminal charges. What you think may or may not be possession may be different than what the law defines it as. If you or someone you know is dealing with a possession-related charge, consulting an experienced criminal defense attorney is essential to ensure your rights are protected and to navigate the complexities of the legal system effectively.

What is CBD Oil?

CBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana. CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product's ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law?

Yes, if it is produced within federal guidelines.

As of December 20, 2018, the Fed Gov has legalized hemp that has a tetrahydrocannabinol (THC) concentration of no more than 0.3% by removing it from Schedule I of the controlled substances act. States and Indian Tribes may regulate the production of Hemp by submitting a plan to the USDA. This bill also makes hemp producers eligible for the federal crop insurance program and certain USDA research grants.

With the passing of the new 2018 Farm Bill, hemp and hemp-derived products have been officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status. Meaning that so long as CBD is extracted from hemp and completely pure (with less than 0.3% THC on a dry weight basis of THC, something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product.

However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana. CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA's authority to classify CBD Oil as within their administrative purview.²

For CBD Oil to be considered legal in the Federal system under the DEA's guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition. Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?

Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?

NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances. The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”³ The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.⁴ Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition. The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

If the CBD oil does not contain any THC, is it currently a Schedule V substance not in any penalty group. Possession of CBD with no THC can be charged as a Class B Misdemeanor with a punishment range of 0 - 180 days in jail and a fine up to $2,000.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

• Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.
• Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.
• Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online. But remember that even though many agencies are not choosing to arrest or prosecute for  zero THC CBD oil, the Tarrant County DA's office is still filing these cases if a person is arrested.

Sources:

1. H.R.2642 - 113th Congress (2013-2014): Agricultural Act of 2014.
2. Hemp Industries Association v. USDEA, No. 17-70162
3. SB339  Texas Compassionate Use Program
4. Conant v. McCaffrey  WL 1281174

Current Marijuana Laws in Texas

Despite having been legalized in other states, possessing even a small amount of marijuana is a crime in Texas. The Texas Health and Safety Code says it is illegal for a person to knowingly or intentionally possess a usable quantity of marijuana. How much marijuana a person has in their possession will affect the level of severity of the offense.

• Up to 2 0z- Class B Misdemeanor, punishable by up to 180 days in jail and up to a $2,000 fine
• 2oz to 4oz- Class A misdemeanor, punishable by up to 1 year in jail and a $4,000 fine
• 4oz to 5lbs- State Jail Felony, punishable by 180 days to 2 years in jail and up to a $10,000 fine
• 5lbs to 50lbs- 3rd Degree Felony, punishable by 2 to 10 years in jail and up to a $10,000 fine
• 50lbs to 2000lbs- 2nd Degree Felony, punishable by 2 to 20 years in jail and up to a $10,000 fine
• More than 2000lbs- 1st Degree Felony, punishable by 2 to 99 years in jail and up to a $50,000 fine

Proposed Texas Laws Relating to Marijuana

Texas failed to pass any new marijuana legislation in 2017, but proponents of legalized marijuana are hopeful for the 2019 legislative session. House Bill 2107 was proposed during the 2017 session, co-authored by 78 House members. The bill would have expanded the Compassionate Use Act to include Texans dealing with medical issues other than intractable epilepsy. While the bill narrowly missed being brought to a vote, it showed there was bipartisan support for such a bill, and legislators remain optimistic marijuana reform will happen in 2019.

Medical Marijuana in Texas

The Texas Compassionate Use Act was signed by Governor Greg Abbot in 2015. The Act allows for individuals with intractable epilepsy to have access to CBD oil, a low THC cannabis oil. The bill prohibits smoking marijuana. Critics of the law say it is unworkable, as it requires a doctor to “prescribe” marijuana rather than recommend it as they do in other states where medical marijuana is legal. Under current federal law, a doctor “prescribing” marijuana could be open to sanctions, while one recommending the use is not. Another issue is that the ratio of THC to CBD that is allowed under the law is not potent enough to help some patients. There is potential for changes to be made to the Act during this legislative session, with proponents of the Act looking to broaden the scope and make access easier for patients.

THC Oil in Texas (Wax, Dabs, Marijuana Concentrate)

Possessing THC (tetrahydrocannabinol) oil in Texas is considered a more serious crime than simply possessing marijuana. Over the last few years, vaping THC oil, which is a concentrated version of the mind-altering component of marijuana, has become popular. Under Texas law, THC oil or wax is considered a concentrate and possessing it is a felony criminal offense.

• Less than 1 Gram- State Jail Felony
• 1 Gram to 4 Grams- Third Degree Felony
• 4 to 400 Grams- Second Degree Felony
• 400 grams or more - First Degree Felony

The law considers THC oil and wax to be in a different penalty group that marijuana, due to the higher level of THC, and consequences are much harsher. So while a typical small amount of marijuana could be punishable as a misdemeanor, even a very small amount of THC oil can be punishable as a felony. This is a common misconception that we often see in our THC oil cases. The user believes that a low amount is a misdemeanor, much like a low amount of marijuana. Not so. Every THC oil case is a felony.

Edible THC in Texas

The use of THC oil in edibles can be very serious. When weighing the amount of a controlled substance, the Texas Health and Safety Code includes all adulterants and dilutants in the total weight. Popular THC laced edibles like gummy candy and brownies will be weighed in their entirety, and can result in very serious felony charges.

CBD Oil in Texas

Cannabidiol oil (CBD Oil) is made from cannabis, but is non-psychoactive. CBD oil that is made from industrial hemp is currently legal in Texas. Recently, shops selling CBD oil products have been popping up all over the metroplex, with promises the product can relieve pain and anxiety. The Texas Department of State Health Services has begun to crack down on retailers selling food products made with CBD oil, claiming they have the power to regulate any food product that contains CBD oil.

But not all CBD oil is legal. If there is any trace of THC in the CBD oil, the user could face prosecution for misdemeanor Possession of a Controlled Substance (Not in a Penalty Group).

Synthetic Marijuana in Texas

K2, or Spice, is a synthetic form of marijuana that is created by spraying natural herbs with chemicals meant to mimic the effects of marijuana. Synthetic Marijuana is illegal in Texas, and carries the same punishment as marijuana.

Selective Prosecution for Marijuana Offenses in Texas

Several counties across the state, including Dallas, Bexar, and Harris, have implemented a marijuana cite and release program whereby folks are not being arrested for low-level possession charges. Other counties have diversion programs for first-time or low level offenders. You should check with a knowledgable attorney in your local area to learn more about the diversion programs available.

In Tarrant County, depending on the circumstances of the case, a marijuana offender may qualify for the Deferred Prosecution Program (DPP) or the First Offender Drug Program (FODP). Again, you should check with an attorney to determine whether you might be eligible to participate in either program.

Conclusion

Regardless of whether you disagree with what the law should be in regard to marijuana in Texas, it is currently illegal to use or possess. If you are arrested for possession of marijuana, you may qualify for a diversion program that will ultimately allow you to get your record fully expunged. Contact one of our attorneys today if you have pending marijuana charges in Tarrant County. We will be happy to discuss your options and defend your case.

Can a Defendant Be Convicted for Using a "Fraudulent Prescription Form" When They Only Altered the Information on an Otherwise Valid Prescription?

Avery v. State, 359 S.W. 3d 230 (2012)

In 2012, the Texas Court of Criminal Appeals released an opinion concerning whether a defendant may be convicted under Texas Health and Safety Code Section 481.129(a)(5)(B) for using a "fraudulent prescription form" when the facts showed that the defendant altered the dosage information on an otherwise valid prescription that had been written by the defendant's physician.

The Facts — The Trial Court Denied Defendant’s Motion and Defendant was Convicted for Using a Fraudulent Prescription Form

In 2009, Defendant received a prescription for forty 2.5-milligram Lortab pills from her doctor after she complained of knee and back pain. Before dropping off the prescription at the pharmacy, Defendant attempted to scribble out the “2.5” and make it look like “7.5.” The pharmacist became suspicious and called the doctor’s office to confirm the prescription. The nurse confirmed the Defendant’s prescription was for 2.5-milligram pills and the pharmacist called the store security, who then contacted police.

During trial in which the defendant had been charged with using a fraudulent prescription form, Defendant moved for a directed verdict of acquittal. Defendant argued that, while there was evidence of forgery, there was no evidence that she used a "fraudulent prescription form" as alleged in the indictment. Defendant further argued that the prescription form was not fraudulent, but only that what the doctor wrote was altered. Therefore, there was no evidence that Defendant committed fraud by using a fraudulent prescription form.

However, the State responded that even by altering an otherwise legitimate prescription form, as Defendant did when attempting to change the dosage, Defendant had created a fraudulent prescription form. The trial court denied Defendant’s motion and the jury found Defendant guilty. Defendant was sentenced of 25 years’ confinement and a $1,500 fine.

The Court of Appeals Vacated the Trial Court’s Judgment and Entered a Verdict of Acquittal, Holding Defendant’s Actions More Closely Resembled Actions in a Different Subsection of Statute Instead of that Listed in the Indictment

Section 481.129 of the Texas Health and Safety Code governs the offense of fraud under the Texas Controlled Substances Act. According to Section 481.129(a)(5)(A), a person commits an offense if they possesses, obtains, or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

Section 481.129(a)(5)(B) differs slightly in that a person commits the offense if they possess or attempt to possess a controlled substance through the use of a fraudulent prescription form.

Section 481.075 of the Texas Health and Safety Code governs the “Official Prescription Program,” which prescribers must follow in order to prescribe Schedule II Controlled Substances. This section describes the elements of an “official prescription form” as the controlled substance prescribed as well as the quantity of that controlled substance. The State argued that since the prescriber’s written words are part of the “official prescription form,” the Defendant turned the entire document into a “fraudulent prescription form” when she altered the written words.

The Court of Appeals, however, accepted neither party’s argument in full and believed its job was to determine whether Defendant’s actions were “more” like the “misrepresentation, fraud, [or] forgery” or like the “use of a fraudulent prescription form.” The Court of Appeals determined that the action may fall under either description, but cannot fall under both. Thus, the Court of Appeals ruled that Defendant’s actions—altering the writing—more closely resembled “forgery” than the “use of a fraudulent prescription form.”

Accordingly, the Court of Appeals vacated the trial court’s judgment and entered a verdict of acquittal.

The Court of Criminal Appeals Affirmed the COA, Holding that Defendant’s Alteration of Information on the Legitimate Prescription Violated a Different Statute than that for which Indicted

The Court of Criminal Appeals first addressed factual matters in the Court of Appeals’s opinion. Beginning with discussing the original indictment, it did not specify which Schedule of controlled substance Lortab is on. The Court of Appeals identified it is a Schedule II controlled substance, but also cited to definitions that describe Lortab as a combination drug that may be Schedule III. The pharmacist’s testimony identified Defendant’s Lortab as a Schedule III controlled substance mixture.

Secondly, as a result of a different schedule drug, Section 481.075 would not be applicable as it only applies to Schedule II controlled substances and does not mention Schedule III substances. Further, there was nothing in the record that led the Court of Criminal Appeals to believe that Defendant used an “official prescription form.”

The Court of Criminal Appeals analyzed how the Court of Appeals discussed the history and intent of the statutes, and determined that, based on statutory inferences and common language, “prescription form” refers to a pre-printed form that is used to write information on it. Further, the Legislature intended to create a legal distinction between completed prescriptions and the prescription forms.

After analyzing the statute applied in the Court of Appeals, the Court of Criminal Appeals determined that Subsection (B) of Section 481.129(a)(5) only governs the use of a fraudulent prescription form. Further, the Court of Criminal Appeals ruled that the writing on the form is not an element of that offense.

In the case at hand, the State originally charged Defendant with attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented by the State adduced that Defendant fraudulently altered the information written on the legitimate prescription form. Although the evidence would have supported a conviction had Defendant been charged under another statute, the evidence does not support a conviction for the offense Defefndant was charged with.

Although the Court of Criminal Appeals disagrees with the reasoning of the Court of Appeals, it agrees in its judgment and affirms the Court of Appeals’s judgment of acquittal.