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Montgomery County Criminal Defense Attorney - Possession of Marijuana cases in Texas

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law



Yes Montgomery County, Texas is still making arrests for possession of marijuana. Conroe Police Department, the Montgomery County Sheriff's Office, DPS Troopers and all 5 precinct constable offices are making arrests for possession of marijuana.


Texas makes it a crime to be in "possession" of marijuana. But what does possession mean?


Texas Penal Code 1.07 (39) "Possession" means actual care, custody, control, or management. There must be some "affirmative link" to the marijuana and the person that is charge. This is true especially when the person is not the exclusive possessor of the substance. These links can take various forms, such as the person being the sole driver of a car in which the substance was found, exhibiting nervous or suspicious behavior indicating an attempt to hide the substance, being in close proximity to the substance and having easy access to it, or communicating with someone else to coordinate the transportation or concealment of the substance.


However, there is no fixed number or test for what constitutes affirmative links. Instead, it is based on the "logical force" of the links presented. In other words, if it is a stretch to establish that a person had possession of the substance, a prosecutor cannot simply list out frivolous reasons and claim it as "affirmative links." Instead, there must be substantial evidence showing a logical connection between the accused and the prohibited substance discovered by the police.

The Texas Health and Safety Code 481.121


Section 481.121 of the Texas Health and Safety Code defines the offense of possession of marijuana. A person commits an offense if they knowingly or intentionally possess a usable quantity of marijuana, unless they are authorized to possess it under the chapter. The severity of the offense and the corresponding punishment depends on the amount of marijuana possessed.


If the amount of marijuana possessed is two ounces or less, the offense is a Class B misdemeanor. Possession of four ounces or less but more than two ounces is a Class A misdemeanor. Possession of five pounds or less but more than four ounces is a state jail felony. Possession of 50 pounds or less but more than five pounds is a felony of the third degree. Possession of 2,000 pounds or less but more than 50 pounds is a felony of the second degree. Possession of more than 2,000 pounds is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000.


However, there are certain situations where it is a defense to prosecution for an offense punishable under Subsection (b)(1) or (2) (possession of two ounces or less, or possession of four ounces or less but more than two ounces). The defense is available if the actor was the first person to request emergency medical assistance in response to the possible overdose of another person, made the request for medical assistance during an ongoing medical emergency, remained on the scene until the medical assistance arrived, and cooperated with medical assistance and law enforcement personnel. The defense is also available if the actor 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.

The defense to prosecution provided by Subsection (c) is not available in certain circumstances. For example, the defense is not available if a peace officer was in the process of arresting the actor or executing a search warrant at the time the request for emergency medical assistance was made, or if the actor is committing another offense. Additionally, the defense is not available if 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, or if the actor requested emergency medical assistance in response to the possible overdose of the actor or another person at any time during the 18-month period preceding the date of the commission of the instant offense. Finally, the defense 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.

This section was enacted in 1989 and has been amended several times, most recently in 2021.

Sec. 481.121.  OFFENSE:  POSSESSION OF MARIHUANA.  (a)  Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.
(b)  An offense under Subsection (a) is:
(1)  a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;
(2)  a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;
(3)  a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;
(4)  a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;
(5)  a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and
(6)  punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.
(c)  It is a defense to prosecution for an offense punishable under Subsection (b)(1) or (2) 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), or 481.118(b), or an offense under Section 481.119(b), 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), 481.119(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.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 1, 1994.
Amended by: 
Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.105, eff. September 1, 2009.
Acts 2021, 87th Leg., R.S., Ch. 808 (H.B. 1694), Sec. 9, eff. September 1, 2021.


The first step to winning a possession of Marijuana case in Montgomery County, Texas is reviewing the evidence that the police collected. While I'm doing this legal work I have my clients create detailed notes about their life and their various accomplishments and plans for the future. Convincing the prosecution to dismiss a case, even when the evidence is considerable is possible when the prosecutor knows that you have a life and a future that is worth saving. Every client at Brian Foley Law PLLC is treated with individual attention and care so that we can always be sure that we get the best possible outcome.


We review the evidence and object when there is no reasonable suspicion for a traffic stop, no probable cause for a search, and no evidence beyond a reasonable doubt for conviction. According to Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011), a police officer has reasonable suspicion to detain an individual if he possesses specific, articulable facts that, when combined with rational inferences drawn from those facts, would lead him to reasonably conclude that the person detained is, has been, or will soon be involved in criminal activity.


Reasonable suspicion is established using an objective standard that disregards the subjective thoughts of the arresting officer. The court will consider the totality of the circumstances, which means that apparently innocuous circumstances may be combined to indicate criminal behavior. Id.



Sec. 521.372.  SUSPENSION OR LICENSE DENIAL.  (a)  A person's driver's license is automatically suspended on final conviction of:
(1)  an offense under the Controlled Substances Act;

The most common way that people are arrested in The Woodlands, Texas for Possession of Marijuana is through a traffic stop. The police may stop a vehicle if they have reasonable suspicion that a criminal offense has occurred. Typically this is a traffic offense but it doesn't have to be.



On October 6, 2022, President Biden announced a pardon for federal and D.C. offenses of simple marijuana possession, effective that day. The pardon lifts barriers to housing, employment, and education for individuals with those prior convictions. The pardon only applies to the offense of simple marijuana possession under federal and D.C. law. A pardon is not an indication of innocence or the expungement of the conviction, but it may remove certain legal and civil restrictions, such as voting or employment restrictions.


The Attorney General has developed an application process to request a certificate to establish proof of pardon. The certificate is only available for those who qualify for the pardon. The pardon does not apply to any state law offenses, including those that involve conspiracy, distribution, possession with intent to distribute, and other charges related to marijuana. The proclamation does not apply to individuals who were convicted of possessing different controlled substances in the same offense. The proclamation applies to charges pending as of October 6, 2022, even if the conviction had not yet been entered by the court. The proclamation does not protect against being charged with marijuana possession in the future.


The Office of the Pardon Attorney recommends providing as much information as possible to expedite the process of issuing a certificate. The processing time for the certificate depends on the completeness of the initial application, and the office may need to conduct additional review if not all the information is provided.



The role of the County Clerk is critical in any legal proceedings, including those related to possession of marijuana. Once you have been charged with possession, your case will be assigned a case number and filed with the County Clerk's office.


To find information about your case, including court dates and other important details, you can use the online search tool provided by the County Clerk's office. Simply click on the following link and enter your first and last name to search for your case: http://odyssey.mctx.org/County/default.aspx.


It's important to stay up to date with your case and attend all court hearings as scheduled. By using the online search tool provided by the County Clerk, you can ensure that you have the most current information about your case and avoid missing any important deadlines or court appearances.


BORING LEGAL DISCLAIMER


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.


For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.


For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.






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