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Whose drugs are they?

Facing drug charges in Texas can be a very serious matter. Depending on what type of drug officers accuse you of having and the amount thereof, a conviction could put you in jail or prison for a substantial length of time. But remember, before a prosecutor can convict you of any type of drug charge, (s)he must first prove that you owned or controlled the drugs.

Per FindLaw, a prosecutor has two ways of proving the drugs belonged to you: actual possession and constructive possession. The former is far easier to prove than the latter. In an actual possession case, all the prosecutor must prove is that the officers recovered the drugs from your person, such as from one of your pockets. (S)he proves this through direct evidence, i.e., the testimony of the officer who recovered the drugs from you. Should the jury believe the officer’s testimony credible, your conviction is virtually assured.

A prosecutor has far more difficulty proving constructive possession. Why? Because in these cases, there is no direct evidence. Instead, the prosecutor must rely on circumstantial evidence as to your ownership or control of the drugs. The circumstantial evidence must be strong enough that the jury can make a reasonable inference that you owned or controlled the drugs.

Illustrative examples

To help you understand constructive possession, consider two nearly identical fact situations with one crucial difference that makes or breaks the prosecutor’s case against you.

In the first example the officer testifies to the following four facts:

  1. (S)he pulled you over for a traffic violation.
  2. Three passengers were riding in your car with you at the time.
  3. (S)he legally searched your car.
  4. (S)he found drugs hidden in your locked console after you voluntarily gave him or her the key.

In this example, since you had the only key to the drugs’ hiding place, i.e., the locked console, the jury can reasonably infer that the drugs belonged to you.

In the second example, the first three facts stay the same, but the fourth changes. This time the officer finds the drugs hidden in your unlocked console. Now the prosecutor has a real problem. Which of the four people in your car owned the drugs? Since your three passengers had just as much access to your console as you did, and just as much opportunity to put the drugs in it, no jury can reasonably infer that you owned the drugs. In fact, since the jury cannot convict anyone of owning or controlling the drugs, your attorney likely can get your charges dismissed before your case ever goes to trial.

This is educational information only and not legal advice.

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