In Texas, Drug offenses span all offense levels, from class C tickets to 1st Degree Felonies. Further, the charge can be either State or Federal or both. Texas criminal attorney Kyle Watkins has the qualifications and experience to effectively defend any type of drug charge; no matter if your case is a first-offender Misdemeanor marijuana case or a Federal drug conspiracy case – Attorney Kyle Watkins is committed to ensuring you have aggressive and effective representation every step of the way, working hard to get you the best possible result. Attorney Kyle Watkins 254-444-9920.
What determines the punishment range in a drug case?
1. Substance type
**note: in some cases, the offense location/ evidence of selling/ etc. will increase the punishment range
What effect does “substance type” have?
In Texas, the legislature has put drugs into “Penalty Groups”. Penalty Groups range from Penalty Group 1 – 4. The “worst” drugs are Penalty Group 1, and flow down the scale to group 4.
How do I find out the substance type?
Texas offenses are determined by the Texas Controlled Substances Act, which lists the classification of an offense (eg: the penalty group in which it falls). Once you know the penalty group, you can then look to the below quantity chart to determine the baseline punishment range.
**note: the punishment range may be greater than the baseline, if there are additional aggravating factors (ex: intent to distribute).
Few situations exist where a person can face tremendous penalties as quickly as in a drug case. By contrast, a person would have to steal more than $200,000 dollars to face a 1st Degree punishment v. possession of $2,000 of Cocaine gets them to the same 1st Degree range.
How do I find the punishment ranges for cocaine, methamphetamine, heroin?
First, all drugs in Texas have been assigned specific “Penalty Groups”. Penalty Groups range from Penalty Group 1 – 4. The “worst” drugs are Penalty Group 1, and flow down the scale to group 4.
What Drugs are in Penalty Group 1?
For a complete list, click here and scroll to “Subchapter D”.
|Penalty Group||Drugs Commonly Charged in Texas|
|1||Cocaine, Heroin, Methamphetamine, GHB, Ketamine, Oxycodone|
|2||Molly,Ectasy, MMDA, PCP, Mescaline, Hash oil, Wax|
|3||Valium, Xanax, Ritalin|
|4||Substances containing Morphine, Dionine, Motofen, Opiates, Buprenorphine or Pryovalerone|
Penalty Group 1
|Less than one gram||State jail felony||180 days to 2 years in a state jail and/or a fine of not more than $10,000|
|1 gram or more, less than 4 grams||Third-degree felony||2-10 years in a state prison and/or a fine of not more than $10,000|
|4 grams or more, but less than 200 grams||Second-degree felony||2 to 20 years in a state prison and/or a fine of not more than $10,000|
|200 grams or more, but less than 400 grams||First-degree felony||5 to 99 years in a state prison and/or a fine of not more than $10,000|
|400 grams or more||Enhanced First-degree felony||10 to 99 years in a state prison and/or a fine of not more than $100,000|
Penalty Group 1A
|Fewer than 20 units||State jail felony||180 days to 2 years in a state jail and/or a fine of not more than $10,000|
|20 or more units, but less than 80 units||Third-degree felony||2-10 years in a state prison and/or a fine of not more than $10,000|
|80 units or more, but less than 4,000 units||Second-degree felony||2 to 20 years in a state prison and/or a fine of not more than $10,000|
|4,000 units or more, but less than 8,000 units||First-degree felony||5 to 99 years in a state prison and/or a fine of not more than $10,000|
|8,000 units or more||Enhanced First-degree felony||10 to 99 years in a state prison and/or a fine of not more than $100,000|
Penalty Group 2
|Less than one gram||State jail felony||180 days to 2 years in a state jail and/or a fine of not more than $10,000|
|More than 1 gram, less than 4 grams||Third-degree felony||2-10 years in a state prison and/or a fine of not more than $10,000|
|More than 4 grams, less than 400 grams||Second-degree felony||2 to 20 years in a state prison and/or a fine of not more than $10,000|
|400 grams or more||First-degree felony||5 to 99 years in a state prison and/or a fine of not more than $10,000|
Penalty Group 3 and 4
|Less than 28 grams||Class A misdemeanor||Not more than 1 year in a county jail and/or a fine of not more than $4,000|
|28 grams or more, but less than 200 grams||Third-degree felony||2-10 years in a state prison and/or a fine of not more than $10,000|
|200 grams or more, but less than 400 grams||Second-degree felony||2 to 20 years in a state prison and/or a fine of not more than $10,000|
|400 grams or more||Enhanced First-degree felony||5 to 99 years in a state prison and/or a fine of not more than $50,000|
Is marijuana treated differently?
Yes. Marijuana has its own punishment ranges. This is a non-exhaustive summary of the ranges that will give you the general idea:
- Class B Misdemeanor: less than 2 ounces
- Class A Misdemeanor: 2 – 4 ounces
- State Jail Felony: 4 ounces – 5 pounds
- 3rd Degree: 5 – 50 pounds
- 2nd Degree: 50 – 2,000 pounds
- 1st Degree: more than 2,000 pounds
How do I fight a drug case?
While every case is different, nearly every case involves challenging the government’s version of the facts. The Police and Prosecutors version of the facts will almost always slant to support a law enforcement bias, eg: the charged crime is the correct crime. Law enforcement in many ways exists in a self-fulfilling cycle of believing that if someone got charged they are probably guilty. The first step is developing and presenting both sides of the story.
Also, we are going to fight the case on the basis of the law. Nearly all drug cases involve a police search and a police seizure. Any search or seizure will require a 4th Amendment analysis. For example, a traffic stop of a car is seizure. If the police get into the car and rummage around, that is a search. In that scenario, first we will address the traffic stop. We must look at what the law requires and then see if the requirements were met. If the legal requirements were not met, the remedy may be suppression of the evidence, suppression of the traffic stop and/ or a dismissal of charges.
An example analysis would go something like this:
(1) The original traffic stop was based on sufficient legal justification.
The Officer’s act of stopping your vehicle must be supported by “Reasonable Suspicion”. Reasonable Suspicion has a very detailed and specific definition. Not all police stops are based on reasonable suspicion. For example, did you know that Reasonable Suspicion for an intoxicated driving case does NOT exist if the only fact given is that a driver was ‘weaving within their lane’? Knowing this, ask yourself, why did the Officer pull you over?
(2) The detention that occurred after the stop was “reasonable”.
An Officer’s actions in detaining a person after a traffic stop must be “reasonable”. Generally, the detention becomes unreasonable when the Officer keeps a person detained for too long, or moves them too far from the original stop location. An unreasonable detention is also referred to by the Courts as an Illegal Detention. The remedy for an illegal detention is a suppression of evidence obtained after the time of the illegal detention or a dismissal of the Prosecutor’s case.
(3) The search was “reasonable”.
The 4th Amendment requires that a search be “reasonable”. A search is unreasonable unless it is conducted pursuant to a search warrant, or with a ‘valid exception to the warrant requirement’. If there was a warrant in your case, learn more about fighting a warrant by clicking here.
(4) What are the most common ‘valid exceptions to the warrant requirement’?
(1) Search incident to arrest
(4) Automobiles, where Officer has developed Probable Cause
(5) Community Caretaking
(6) Plain View
The above list is not exhaustive, but provides the most common exceptions allowing an Officer to conduct a search without a warrant. Each one of these exceptions has generated much, much caselaw and commentary. Each exception has specific requirements that must be followed. For example, #3 Inventory exception, which is a search of a vehicle that is conducted after the driver has been arrested, but before the car is towed. Often, Police Officers arrest a driver for a traffic violation and then will search the vehicle pursuant to an “Inventory” search prior to towing. It is in these inventory searches that any contraband in the car will be found and the occupant(s) charged with the associated crime. However, the law requires that (1) the Police Agency has a departmental inventory policy and (2) the inventory done in the case follows that policy. So, if the search in your case was an “Inventory” search, it is a bad/ inadmissible search unless there is (1) a departmental policy and (2) it was actually followed in your case.
(5) What is “Reasonable Suspicion”?
Reasonable Suspicion is more than a hunch, but less than proof of wrongdoing by a preponderance of the evidence. An Officer may temporarily detain a Citizen on the basis of reasonable suspicion. An Officer stopping a Citizen based on reasonable suspicion must:
(1) provide specific and objective facts for suspecting a Citizen was engaged in criminal activity, and
(2) articulate reasonable inferences from those facts when testifying that show:
(1) some activity out of the ordinary was occurring, and
(2) the Citizen detained is connected with that activity, and
(3) the suspicious activity is related to the crime.
**note: The Court may only rely on the facts known to the Officer at the time of the stop, NOT facts that were learned after or during the stop.
(6) What is “Probable Cause”?
Probable Cause defined: “Probable Cause exists when facts and circumstances within the officer’s knowledge, and about which the officer had reasonable trustworthy information, cause a person of reasonable caution to believe an offense has been or is being committed.” Commonly, the standard applied is: was there evidence that the crime was probably happening?
An example of Probable Cause to search a car without a warrant (eg: pursuant to the “Automobile exception”) would be the presence of marijuana stems in the driver’s lap. If an Officer pulls over a car for speeding, and when talking to the driver sees marijuana stems on the driver’s lap, that Officer can then remove the occupants from the vehicle, put them in handcuffs and search the car for marijuana without getting a warrant. The exception to the warrant requirement in this example is the “Automobile exception” (listed as #4 above).
(7) Evidence gathered by the Officer at the scene is admissible in Court.
Once an Officer has developed “Probable Cause” to make an arrest, there are many, many legal hoops the Officer must jump through in order to ensure the rights of the Citizen accused are not violated. If the Citizen’s rights are violated, some or all of the evidence obtained after that point may not be admissible in Court.
For example, immediately following the time of arrest, the Citizen’s responses to an Officer’s questions are not admissible in Court unless (1) all of the proper warnings were given, and (2) the warnings were video or audio recorded, and (3) the Citizen accused specifically acknowledged and waived those rights. So, if the Officer in your case asked you whether the drugs were yours.. AFTER he put you in handcuffs and told you that you were under arrest, the answer you gave would NOT be admissible before the jury, unless 1-3 above were completed, and completed correctly. To learn more click here.