Defense of Charge: Serious Drug Felony
Case Result: No Billed and Expunged
My client was charged with the Felony Offense of Manufacture/Distribution of a Controlled Substance, penalty group 2 4-400 in Harris County, Texas.
Around 1:00 AM, officers observed a black Honda Civic parked in a gas station parking lot playing loud music. Officers drove near the vehicle and could smell marijuana. Officers made contact with a male pumping gas, later identified as K.M. Officers asked K.M. who was the vehicle’s owner, and K.M. pointed to my client, who was standing approximately 30 feet away. Two other friends ran in the convenience store when they saw the police. K.M. advised it was his birthday and the group was attending a local club party. Officers asked my client if they could search his vehicle. He permitted the officers. Officers questioned my client, but he said there were no drugs in the car. Inside the vehicle, officers found drugs (Ecstacy) in my client’s bag. Located in the bag were other forms of identification that connected the drugs to my client. My client was twenty years old at the time and had his entire life in front of him. There were two other people in the vehicle that were not arrested.
Drug Possession – Care, Custody, Control and Management
My client bonded out, and his family hired me. When we went to court, the prosecutor was convinced the drugs belonged to my client. I argued that my client did not have possession of the drugs. Indeed, he was not even the closest person to the drugs.
Possession is a voluntary act if the possessor obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Watson v. State, 752 S.W.2d 217, 221 (Tex.App.-San Antonio 1988, pet. ref’d).
Not only must a person voluntarily engage in conduct, but a person does not commit an offense (except for certain strict-liability offenses) unless he or she engages in the proscribed conduct with the culpable mental state that the definition of the offense requires. See Tex. Penal Code Ann. § 6.02(a) (West Supp.2007); Moss v. State, 850 S.W.2d 788, 795 (Tex.App.-Houston [14th Dist.] 1993, pet. ref’d) (evidence must show that defendant committed the voluntary act with the requisite culpable mental state). “Possession means the actual care, custody, control, and management.” Id. § 481.002(38) (West Supp. 2007); Tex. Penal Code Ann. § 1.07(a)(39) (West Supp.2007).11
When an accused is not in exclusive possession and control of the place where the contraband is found, it cannot be concluded or presumed that the accused had knowledge of or control over the contraband unless there are additional independent facts and circumstances connecting or linking the accused to the knowing possession of contraband. Poindexter, 153 S.W.3d at 406; Brown, 911 S.W.2d at 748; Hargrove v. State, 211 S.W.3d 379, 385 (Tex.App.-San Antonio 2006, pet. ref’d); Caldwell v. State, 686 S.W.2d 363, 365 (Tex.App.-Houston [1st Dist.] 1985, no pet.).
Even custody and control of the residence where the contraband is found are not dispositive of knowledge of any narcotic located in the residence, United States v. Rojas Alvarez, 451 F.3d 320, 334 (5th Cir.2006); United States v. Garza, 990 F.2d 171, 174 (5th Cir.1993), nor is it synonymous with control of the contraband found therein. Meyers v. State, 665 S.W.2d 590, 595 (Tex.App.-Corpus Christi 1984, pet. ref’d).
I met with my client several times, and I put together a grand jury packet. In Texas, Grand Juries determine probable cause exists to continue prosecuting the alleged crime. I raised enough doubt on the possession issue that the Grand Jury did not bill my case.
If you are charged with a serious felony, it is important that you hire an experienced criminal defense attorney who has successfully handled criminal cases. My client was facing a lengthy prison sentence and possibly losing her nursing license.
An expunction is a lawsuit naming all parties that helped charge/prosecute my client. Once the expunction is final, all state records and arrest records are ordered to be destroyed by a judge. It is important to hire an experienced criminal defense attorney who has experience in defending drug felony cases and getting them expunged. Contact the Tyler Brock Law Criminal Defense law firm for a consultation.
