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A person commits the offense of possession with intent to deliver a controlled substance if she knowingly possesses a drug with the intent to deliver it. See HEALTH & SAFETY § 481.112(a). Possession is defined as "actual care, custody, control, or management." PENAL § 1.07(a)(39). To prove unlawful possession of a controlled substance, the State must show (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. Poindexter vState153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson vState466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015). The evidence must establish that the accused's connection with the drugs is more than just her fortuitous proximity to someone else's drugs. Id. at 405-06.

Hughitt v. State, No. 11-15-00277-CR, at *8-9 (Tex. App. Oct. 31, 2017).

Controlled substances are categorized into Penalty Groups based on their potential for abuse, medical use, and safety. The severity of the penalties depends on the Penalty Group classification, the quantity of the substance, and any prior convictions. For example, pursuant to Section 481.112 - Offense: Manufacture or Delivery of Substance in Penalty Group 1, an offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. " Tex. Health & Safety Code Ann. § 481.112(d).

The Concept of Joint Possession

Joint possession is a legal concept that refers to a situation where two or more individuals have control over a controlled substance. This can be either actual or constructive possession.

Actual possession refers to a situation where an individual has direct, physical control over the controlled substance. For example, if someone has drugs in their pocket, they have actual possession.

Constructive possession, on the other hand, involves situations where an individual does not have direct, physical control but has the power and intent to exercise control over the substance. This can occur when an individual has knowledge of the substance's presence and has the ability to access it, such as when drugs are stored in a shared living space.

Establishing Joint Possession in Texas

To prove joint possession, the prosecution must demonstrate that:

  1. The defendant had knowledge of the controlled substance's presence.

  2. The defendant had control over the controlled substance, either actual or constructive.

  3. The defendant shared control over the controlled substance with another person or persons.

Evidence that may be used to establish joint possession includes:

  • Testimony from witnesses who observed the defendants sharing or using the controlled substance together.

  • The presence of the defendants' personal belongings or paraphernalia near the controlled substance.

  • Communication records, such as text messages or phone calls, indicating knowledge and control of the controlled substance.

Courts have identified the following factors as affirmative links that may establish an accused's knowing possession of a controlled substance: (1) the accused's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the accused's proximity to, and the accessibility of, the contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed narcotics or other contraband when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the accused owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans202 S.W.3d at 162 n.12. Many of these same factors have been used by courts to determine if a person possessed a controlled substance with the intent to deliver. See Guttery vStateNo. 11-12-00160-CR2014 WL 3398144, at *2-3 (Tex. App.—Eastland July 10, 2014, pet. ref'd).

Hughitt v. State, No. 11-15-00277-CR, at *10 n.4 (Tex. App. Oct. 31, 2017)

Defenses to Joint Possession Charges

Several defenses can be raised against joint possession charges, including:

  1. Lack of knowledge: The defendant may argue that they were unaware of the presence of the controlled substance.

  2. Lack of control: The defendant may contend that they did not have control over the controlled substance or the ability to access it.

  3. Mere presence: Being present at the location where the controlled substance is found does not automatically establish possession. The defendant may argue that they were merely present and had no knowledge or control over the substance.

As we explained, the "affirmative links" rule

is designed to protect an innocent bystander from conviction based solely upon his mere presence in the vicinity of someone else's drugs. It recognizes that a defendant who is not in exclusive possession of the place where the controlled substance was found may not have knowledge of and control over the drugs; in such cases, additional independent facts and circumstances beyond mere presence must link him to the drugs.

Beltran De La Torre v. State, No. 01-17-00218-CR, at *11 (Tex. App. Aug. 13, 2020).

Courts have recognized several factors tending to establish affirmative links, including: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and accessibility of the contraband; (4) whether the defendant possessed other contraband when arrested; (5) whether other contraband or drug paraphernalia were present; (6) whether the conduct of the defendant indicated a consciousness of guilt; and (7) whether the accused was observed in a suspicious area under suspicious circumstances.

Kersey v. State, No. 08-20-00037-CR, at *13 n.3 (Tex. App. Dec. 10, 2021)

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only. DangeloLegal Blog 

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