In Texas, possession of even trace amounts of marijuana is a Class B misdemeanor (6 months in jail and $2,000 fine). Possession of a weapon is a Class A misdemeanor (one year and $4,000 fine). IN some cases, a non-working firearm, a pocketknife, and a hammer could all be “weapons” under Texas Penal Code 46.02. These are just two examples of Texas’ very stiff possession laws.
However, a cardinal rule of Texas criminal law is that mere proximity does not establish possession. In many cases, a gun, dime bag, or other contraband could be within the defendant’s reach, and a Parker County prosecutor may be unable to establish possession.
In all criminal cases, the state must establish every element beyond a reasonable doubt. If even one juror has such a doubt, the defendant cannot be guilty as a matter of law.
Lack of Knowledge
Of course, proximity is one component of possession. But there are others as well. Generally, Tarrant County prosecutors must at least establish knowledge. There are two kinds of knowledge in possession cases:
· Actual Awareness: Assume that officers find an unregistered gun in a glove compartment. The passenger must know that there was a gun in the glovebox as opposed to “something illegal.” Again, prosecutors must establish this element beyond a reasonable doubt.
· Reasonable Knowledge: Assume Hank tells Bobby that he has a toy gun in the glovebox, but it’s actually a real gun. If Bobby reasonably believed Hank’s prevarication, Bobby may have a defense to possession in court.
In some UCW (Unlawfully Carrying a Weapon) cases, prosecutors need only establish recklessness. For this exception to apply, the weapon must generally be in plain view.
Lack of Control
To “possess” an item in Texas, the defendant must at least have a superior right of possession. This issue comes up quite frequently in marijuana possession cases. Many times, friends get together and pass a joint in a circle. From a purely technical standpoint, an officer could arrest everyone in the group for marijuana possession. For the instant that the defendant held the joint, the defendant had a superior right of possession.
But there is another issue here. It is not illegal to be under the influence of marijuana, unless the prosecutor has enough evidence to make a public intoxication or DWI case. At any rate, “under the influence” is certainly not the same thing as “possession.” So, in the joint-passing case, the prosecutor can probably only convict the person who was actually holding the joint at the time of arrest.
Illegal possession cases are not easy to prove in court. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Convenient payment plans are available.