Possession with the intent to distribute drugs, sometimes called possession with intent to sell or possession for sale, involves two basic elements; possession of the drug itself, and evidence of the intent to sell or distribute the illegal substance.
Constructive possession can be shown simply by incriminating circumstances. It is not necessary for the prosecution to show that the accused had actual knowledge of the presence of the drugs; it is only necessary to show that the defendant should have known that the drugs were present.
The second element to a charge of drug possession with intent to sell, is the actual "intent". This is generally demonstrated by circumstantial evidence, although an attempt to sell to a police officer or evidence obtained from buyers may be used as direct evidence of intent. Circumstantial evidence of intent to sell narcotics or other drugs may include having a quantity of the drug greater than would be reasonable if the drug was for personal use, having possession of paraphernalia used for packaging or distributing drugs such as scales, large amounts of cash, or behaviors such as multiple brief meetings with visitors to your home.
A defendant need not actually have sold anything in order to be charged with possession with intent to sell. The mere fact of intending or planning to sell/distribute the drug - even for free - may be sufficient as long as the prosecutor can show convincingly that you had the intention to do so.
Texas state law does not distinguish between transporting drugs and distributing drugs. If you are charged with delivering drugs, even if they aren't yours, you will be facing the same penalties as someone charged with selling drugs. Depending on the amount of illegal substance involved, you could be charged with the more serious crime of drug trafficking.
The factors influencing which sentence will be imposed are: (1) the amount of the drug being distributed or delivered; and (2) the type of drug and which of the four groups of drugs it is classified under. The smaller the amount of a drug in a certain group, the lighter the sentence may be. The drug distribution and delivery laws can be found in § 481.112-481.114 of the Texas Controlled Substances Act.
Texas has some very heavy penalties for drug trafficking. Sentences involved may range anywhere from 180 days to two years in state jail and/or a fine of no more than $10,000 for a state jail felony, to life in the Texas Department of Criminal Justice or a term of 15 to 99 years in prison and/or a fine of not more than $250,000 for the heaviest first degree felony. The harshness of the sentence imposed depends on how much of the drug is being trafficked. For example, trafficking or distributing less than one gram of a substance in the first grouping of drugs carries a state jail felony charge, whereas trafficking 400 grams or more of any one of the same drugs carries a first degree felony charge that may include a life sentence.
Because the drug distribution statute requires knowledge and intent to constitute an actual offense, your attorney may be able to prove that you had a lack of knowledge or were forced to distribute or deliver the drug. Proving either of these could be enough to get your charges reduced or dismissed outright. There is also the possibility of accepting a plea bargain in your drug delivery case: agreeing to plead guilty to a lighter offense or reduced sentence.
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