Many criminal offenses in Texas have to do with “possession” of an item—Unlawful Possession of a Firearm by a Felon, Possession of Controlled Substance, Possession of Marijuana, just to name a few.

In Texas, the Penal Code defines Possession as “actual care, custody, control, or management” (Texas Penal Code Section 1.07(a)(39).  Given that definition, there are many circumstances where a person can be charged with possession of an item of contraband.  Some are straightforward and some are not, depending on the individual facts of a case.  Police Officers and the State will use the facts of the case and any surrounding information gathered during the investigation and arrest to determine who has legal possession of an item or items. But remember—proving possession is not always clear-cut.

Let’s Play the ‘Who Has Legal Possession?’ Game!

A person is pulled over for a traffic offense like speeding, and the Officer can detect the odor of marijuana coming from the vehicle.  The Officer conducts a probable cause search and finds a small amount of marijuana and methamphetamine within the vehicle.

  • Scenario 1 – Both the marijuana and methamphetamine are found in the console cup holder, and there is only one person in the car—the driver.  The driver is the registered owner of the vehicle.
    • In this fact scenario, it appears to be pretty straightforward as to proving who had “possession” of the drugs.  As there is only one person in the car, and that person is the registered owner, proving the driver had “actual care, custody, control or management” of the drugs seems to be fairly simple from the State’s standpoint.
  • Scenario 2 – Now let’s switch it up a bit.  There are four people in the car—the driver, a front seat passenger, and two rear seat passengers.  None of them are the registered owner of the vehicle.  During the search of the car, the Officer finds the marijuana in the center console and the methamphetamine underneath the passenger’s seat.  All of the people in the car deny knowledge of the drugs when they’re located.
    • In this fact scenario, possession gets more difficult to prove.  Does the driver of the vehicle “possess” them, merely as the driver and therefore “in charge” of the vehicle?  Or maybe the passenger possesses the items since the methamphetamine is found below his seat?
    • Cases with fact scenarios similar to this one become much more difficult for the police and the State to determine which person in the vehicle legally possessed the items.

Possession in Texas can be a tricky subject, depending on each individual case.  Even those cases that seem straightforward and clear-cut can have extenuating circumstances.  The attorneys at Gebhardt and Eppes, PLLC have a wealth of experience in dealing with possession cases—from Possession of Marijuana, Dangerous Drugs, Controlled Substances, and Weapons charges.  Never go to Court facing a possession charge without competent legal representation. The attorneys at Gebhardt and Eppes, PLLC are here to assist you in navigating the tricky subject of possession.  We serve clients in Tarrant, Parker, Johnson, Dallas, Denton and the surrounding counties.  Call us today at (817) 502-3600 for a free consultation, and let us help you.