Brian Foley is Board Certified in Criminal law and handles drug charges in Conroe, Texas.  Brian Foley represents people accused of possession of tetrahydrocannabinols, Ecstasy, MDMA, and Marijuana Oil and Marijuana wax in Conroe, Houston, and the Woodlands, Texas.  Brian is a former chief prosecutor and has handled thousands of drug charges.  

​

What does Penalty Group 2 mean? 

“Drug Charges” are found there under Chapter 481 of the Texas Health and Safety code known as the Controlled Substances Act.  penalty group 2 was modeled after the federal controlled substances act is generally considered the second most dangerous types of drugs which can lead to

 

Penalty Group 2 includes the following substances: 

​

• 3,4-methylenedioxy methamphetamine (MDMA, MDM) (Commonly known as Ecstasy, or X) 

• Tetrahydrocannabinols (Marijuana oil, wax, or edible marijuana products containing greater than a 0.3 % Delta-9 THC content.)

​

There are many other substances listed under penalty group 2 but these two account for 99% of all Penalty Group 2 arrests. 

​

What do conditions of bond mean? 

Judges will regularly impose conditions on the freedom of people charged with a crime even before they have been convicted.  If you are charged with a Penalty Group 2 felony charge in Montgomery or Harris County you will be required to report to the probation department and to submit to random urinalysis or “urine tests” to ensure that you have not been using drugs or alcohol.  This is true even if you are not charged with an alcohol related offense.  Judges may prohibit you from consuming alcohol if you have been released on a felony bond with bond conditions. 

 

If bond conditions are not followed you may end up in jail even after you have made a surety bond and been released.  An allegation by the probation department that you tested positive on a  drug test could land you back in jail until your case is tried to a jury or reaches a plea bargain agreement. 

​

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

It is illegal to possess a substance listed in penalty group 2.  The prosecution does not have to prove that ownership of the drug.  There is no legal requirement for proof that you were the person who originally purchased the drug.  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. 

​

What is the punishment for Possession of a controlled substance Penalty Group 2?

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.

• 4-400 grams – 2nd Degree Felony – 2 years – 20 years in Prison and a $10,000 fine.

• 400 or more grams – Enhanced 1st Degree Felony – 5 years – 99 years or Life in Prison and a $50,000 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.