What Is the Legal Definition of Possession?

Texas Health and Safety Code § 481.002(38) defines it in eight words: “Possession” means actual care, custody, control, or management.

The “or” is the whole fight. The State does not have to prove the drugs were yours, that you bought them, or that they were on your body. Any one of those four relationships will do, and control is the one prosecutors reach for when nothing was in your pocket. If you were charged because something was found near you rather than on you, call (713) 664-4000.

Does it count if the drugs were not on me?

It can, and that doctrine has a name: constructive possession. Drugs in a center console, a glove box, a shared apartment, a friend’s trunk. The State’s theory is that you controlled them without holding them.

Texas puts a real limit on that theory. In Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), the Court of Criminal Appeals held that the State must show your connection to the drug was more than fortuitous, and said plainly that “mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs.”

The Court described the rule as one that protects the innocent bystander, “a relative, friend, or even stranger to the actual possessor,” from being convicted because of where they happened to be standing. If you were the passenger, the roommate, or the person who borrowed the car, that sentence is the one your case turns on.

What are affirmative links?

The facts the State stacks up to turn proximity into control. Evans itself is a useful list, because the court counted them out loud. The defendant was sitting a foot from a coffee table covered in cocaine, so presence and proximity. The drugs were in plain view. He was alone in the house. He told police he knew why they were there. He received mail at the address, which supported an inference he lived there. He had $160 in twenties while apparently unemployed.

Seven links, and the Court of Criminal Appeals held they were enough. The court of appeals had gone the other way, examining each fact in isolation and explaining it away one at a time, and the Court of Criminal Appeals reversed it for using that method. The standard it gave instead is the one that matters to your case: it is not the number of links that is dispositive, but the logical force of all the evidence.

So the defense work is not counting links. It is attacking their force. Whose car was it. Who else had access. Was the container closed. Was anything in your handwriting, your name, your fingerprints. Were the things the State calls links equally consistent with you being a passenger who knew nothing. Evans also noted the links that were absent in that case, including intoxication, flight, and furtive gestures, which is a reminder that what is missing from an offense report is argument too.

Does the State have to prove I knew about it?

Yes, twice over. The drug statute carries the mental state: § 481.115(a) and its companions all begin “a person commits an offense if the person knowingly or intentionally possesses.” The Penal Code then adds a second requirement that most pages miss. Penal Code § 6.01(a) says a person commits an offense only if he voluntarily engages in conduct, “including an act, an omission, or possession.” Then § 6.01(b) defines when possession is voluntary: the possessor must knowingly obtain or receive the thing, or be aware of his control of the thing for a sufficient time to permit him to terminate his control.

That last clause is doing a lot of work and almost nobody quotes it. Someone who never knew the bag was under the seat did not voluntarily possess it. Neither did someone who found out thirty seconds before the lights came on. The statute builds the time element in.

Why does the cut count against my weight?

Because the statute says it does, and this is where people get hurt worst. Section 481.002(49) defines an adulterant or dilutant as any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of that substance.

Regardless of its effect. The filler does not have to do anything. It counts toward aggregate weight anyway, and aggregate weight is what sets the grade of the offense. Under a gram of a Penalty Group 1 substance is a state jail felony; at one gram it becomes a third-degree felony, and the jump keeps going from there. A case that sits near a weight line is a case worth having the lab packet read by somebody who can read it, because a reweigh or a retest that moves the number across a line changes the charge itself.

Is hemp a controlled substance in Texas?

No. Under Agriculture Code § 121.001, hemp is cannabis with a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis. Below that line it is a legal agricultural product.

Above it, what you are charged with depends on the form, and this is where people get hurt. Plant material over 0.3 percent is marijuana, and two ounces or less is a Class B misdemeanor. A vape cartridge, a wax, or a gummy is not plant material. Health and Safety Code § 481.002(26)(A) excludes resin and preparations of resin from the definition of marihuana, which drops them into Penalty Group 2 under § 481.103. Under a single gram of a Penalty Group 2 substance is a state jail felony under § 481.116(b), and the whole weight of the product counts. One cartridge can be a felony where the same THC in a bag of flower would be a Class B.

That line created a real problem for the State, because a roadside officer cannot see the difference and many labs are not set up to quantify delta-9 in plant material. Whether the State has to affirmatively quantify it, and in which cases, is still being fought over in the Texas courts of appeals, which is precisely why it is worth fighting in yours.

When is possession lawful?

The Controlled Substances Act does not criminalize a substance obtained in accordance with state or federal law. Painkillers your doctor prescribed and a pharmacist dispensed to you are lawful possession. The same pills in a pocket without the prescription aren’t. Neither is holding a prescription written for somebody else, and that’s the one that catches people who never thought they were committing a crime.

Worth knowing the flip side, because it surprises people: a valid prescription is no defense to driving while intoxicated. Different statute, opposite rule.

What is the charge worth?

The grade depends on the substance and its aggregate weight, and it moves fast. Under a gram of cocaine, methamphetamine, heroin or fentanyl is a state jail felony. Less than 28 grams of a Penalty Group 3 drug such as Xanax or Valium is a Class A misdemeanor. Two ounces or less of marijuana is a Class B. Our page on possession of a controlled substance walks through the ladder, and the bond for a possession charge runs on that same grade.

Talk to a Houston drug possession lawyer

The definition in § 481.002(38) is eight words long and a jury gets to decide whether they describe you. That decision gets made out of the offense report, the video, the photographs of where things were sitting, and the lab packet, which means somebody has to go through all of it before anyone can tell you what your case is worth.

Our attorney, Jay Blass Cohen, is an ACS-CHAL Forensic Lawyer-Scientist trained in forensic chromatography, the lab method behind Texas drug identification and weight, and he has only ever worked for the defense. Weight sets the grade and the grade sets everything else, so reading the science is not a side issue on a possession case.

If you were arrested because of what was in the car rather than what was in your hand, that is an argument, not a conviction. Call (713) 664-4000 for a free, confidential review, or reach a Houston drug possession lawyer from our office today.