Texas law prohibits the possession, delivery, and manufacture of cocaine.
It is unlawful in Texas to possess any amount of cocaine. “Possession” is a term that is defined by law and includes having “actual care, custody, control, or management.”
The defendant must possess the cocaine intentionally or knowingly. If the defendant does not intend or know he is possessing cocaine, a conviction may be avoided.
Punishment ranges depend on the amount of cocaine the defendant is found to be in possession of.
Possession of less than 1 gram of cocaine is a state jail felony. The state jail felony punishment range is six months to two years in prison. Deferred adjudication and regular probations are also options. In fact, if the defendant has never been convicted of a felony before and is accused of state jail possession of cocaine, the sentence must be probated.
Possession of between 1 gram and 4 grams is a third degree felony. Between 4 grams and 200 grams is a second degree felony; and between 200 grams and 400 grams is a first degree felony.
A defendant found in possession of more than 400 grams of cocaine can be punished by between 10 and 99 years in prison, and/or $100,000 in fines.
“Deliver” also has a specific definition. According to the Texas Health and Safety Code, deliver means to “transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship.”
The delivery may be actual (as in a hand-to-hand exchange) or constructive. Constructive delivery or transfer occurs when the defendant commits an act that helps or enables another person to come into possession of cocaine. For example, a defendant who leaves several grams of cocaine at a “drop point” for another person to come and pick up can be said to have constructively delivered the cocaine.
Delivery offenses are punished according to the weight of the cocaine the defendant was delivering: for less than one gram, the defendant may face 180 days to 2 years in jail and up to $10,000 in fines. If the defendant was found delivering more than 400 grams of cocaine, he or she can be punished by up to life imprisonment, or imprisonment between 15 and 99 years and/or a $250,000 fine.
Like “possession” and “delivery,” manufacturing is specifically defined by Texas law. “Manufacturing” includes production, preparation, propagation, compounding, conversion, processing, creating, packaging, or labeling a package of cocaine. “Creating” cocaine can refer either to creating cocaine from natural or chemical means.
Manufacturing offenses are also punished according to the weight of the cocaine. The punishments that apply to delivery offenses also apply to manufacturing offenses. That is, manufacturing less than 1 gram of cocaine will result in 180 days to 2 years in jail and up to $10,000 in fines whereas manufacturing more than 400 grams of cocaine can result in imprisonment for life, or between 15 and 99 years and/or a $250,000 fine.
There may be enhanced or additional penalties depending on whether any cocaine-related activity was conducted for money or depending on where the activity took place. Activity that takes place on school property, property being leased or owned by higher education centers, within 1,000 feet of school property, or on a school bus (for example) can result in the elevation of a felony offense from one level to another and the imposition of longer prison sentences and/or higher fines.
Most of the evidence relevant to cocaine offense prosecutions comes as the result of law enforcement searches and surveillance. Law enforcement activities such as these are limited by the U.S. Constitution and Texas state constitutions. Law enforcement activities that violate either constitution, or that otherwise run afoul of state or federal law, may result in the exclusion of any evidence discovered from use in criminal court.
One of the most important limitations on law enforcement activities protects individual citizens from unreasonable searches. This usually requires law enforcement officers to present a judge with evidence establishing probable cause and having that judge issue a search warrant. There are a few exceptions to this requirement (such as where officers have evidence that cocaine or related evidence is in the process of being destroyed), but these apply to only a few narrow circumstances.
The Fourth Amendment to the U.S. Constitution also requires law enforcement officers to have “reasonable suspicion” that you committed, are about to commit, or are in the process of committing a crime before they can pull your car over. That is, they must have more than a “hunch” that criminal activity is afoot before they stop your car. They must be able to articulate evidence giving rise to probable cause before searching your vehicle (unless, of course, you consent to the search).
Under the exclusionary doctrine, cocaine and related evidence that is obtained as a result of law enforcement activity that is illegal or unconstitutional can be excluded from a later criminal proceeding. This is meant to discourage law enforcement officers from violating the law or individuals’ rights in their investigation of crime.
The other major area of defense is how the government ties the defendant to the drugs. For example, in a possession case, there may be a defense if the cocaine is found in a house or car with multiple occupants. The state will have to prove that each defendant exercised joint custody, care, and control of the cocaine.