Brian Foley is a Drug Charge lawyer and criminal defense lawyer in Conroe, Texas that represents people accused of possession of cocaine, heroin, or methamphetamine in Conroe, Houston, and the Woodlands in addition to the surrounding counties.  Brian is a former chief prosecutor and has handled thousands of drug charges.  Now Brian represents regular folks who have been charged with a crime and need their rights protected.  Brian can help take back your life and fight charges brought by the government.

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What does Penalty Group 1 mean? 

The criminal laws related to drug charges in Texas are not generally found in the Texas Penal Code.  The legislature created the Texas Health and Safety Code and most of the offenses that would be classified as “Drug Charges” are found there under Chapter 481. 

 

The Health and Safety Code was created by the Controlled Substances Act which was molded after federal standards for drugs and their regulation.  Penalty Group 1 is the first list of controlled substances and it consists of some of the most closely regulated drugs which can become habit forming. Most notably Penalty Group 1 includes:

 

• Cocaine

• Heroin

• Methamphetamine

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What can happen while waiting for my trial?

Judges typically impose restrictions on the freedom of individuals who have been charged with a crime even before they have been convicted.  If you are charged with a Penalty Group 1 charge in Montgomery or Harris County it is extremely likely that you will be required to submit to random urinalysis or “urine tests” to ensure that you have not been using drugs or alcohol.  Yes even if you are not charged with an alcohol related offense a judge will typically prohibit you from consuming alcohol if you have been released on a felony bond with bond conditions. 

 

Bond conditions are important to follow because the Judge could order you back into jail even after you have made a surety bond and been released.  Even if you are not arrested for an additional charge a positive drug test could land you back in jail until your case is tried to a jury or reaches a plea bargain agreement. 

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What does possession mean?  The drugs didn't belong to me.  

In Texas it is a crime to be in possession of a controlled substance listed in penalty group 1.  The prosecutor will not have to prove that you were the owner of the prohibited substance nor that you were the person who originally purchased the prohibited substance.  This is because the term possession has a specific legal definition.  

 

“Possession” means actual care, custody, control, or management.

 

This definition has been held to require that if the person charged with a  crime is not in exclusive possession of the substance that there be “affirmative links” between the person and the prohibited substance.  For example:

 

• Being the driver and only person in a car where the prohibited substance was found;

• The person charged with a crime makes nervous or “furtive” gestures which appear that the person is trying to conceal the prohibited substance;

• The person charged was in very close proximity to the prohibited substance and the substance was accessible (meaning it wasn’t in a locked container to which the person didn’t have a key);

• The person was found to have been texting or calling another individual coordinating the transportation or concealment of the prohibited substance.

 

There is no specific test or number of affirmative links that will predict if the court dismisses the case or allows it to be upheld on an appeal rather it is the “logical force” of the links as they are presented.  This means that if it is a stretch to say you were really in possession of the prohibited substance then a prosecutor can’t simply list out a bunch of silly reasons and call it “affirmative links.”  There has to be something substantial showing a logical connection between the person charged with a  crime and the prohibited substance found by the police. 

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What is the punishment for Possession of a controlled substance Penalty Group 1?

The punishment depends on the amount of the substance that can be proved. 

 

• 0-1 gram – State Jail Felony – 180 days – 2 years in a State Jail Facility and a $10,000 fine.

• 1-4 grams – 3rd Degree Felony – 2 years – 10 years in Prison and a $10,000 fine.

• 4-200 grams – 2nd Degree Felony – 2 years – 20 years in Prison and a $10,000 fine.

• 200-400 grams – 1st Degree Felony – 5 years – 99 years or Life in Prison and a $10,000 fine.

• 400 or more grams – Super 1st Degree Felony – 10 years – 99 years or Life in Prison and a $100,000 fine.

 

For all of these offenses you could be placed on deferred adjudication probation for up to 10 years and the applicable fine.  These punishments are enhanced if you are not found to be merely in possession of the prohibited substance but are in possession with intent to deliver the substance to another.