Legal Question in Criminal Law in Texas

� 481.121. OFFENSE: POSSESSION OF MARIHUANA. (MARIJUANA)

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.

(b) An offense under Subsection (a) is:

(1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;

(2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

(3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

AND the level of offense goes up with the greater amount of marijuana possessed.

Aggravating factors can increase the punishment range. The general rule of thumb is that an aggravating factor will enhance the punishment by one level. Possession in a drug free zone such as school is an aggravating factor.

So, if the possession is of under 2 oz, then rather than a Class B misdemeanor, it is enhanced to a Class A misdmeanor, and so on.

The punishment level for a Class B misdemeanor is confinement in jail up to 6 months and / or a fine up to $2,000. For a Class A misdemeanor you are looking at confinement in jail up to 1 year and a fine of up to $4,000. For a State Jail Felony, the punishment level is from 6 months in state jail up to 2 years in state jail.

Now - those are the punishments for adults. Adults are considered persons ages 17 or older (OR a juvenile - under 16 - who has been certified to be an adult.)

Being that this is your first offense, the are highly unlikely to try to certify you to be an adult. They will probably prosecute you as a juvenile. The punishment you are likely to receive as a juvenile is different than that of an adult. IF the amount is not a felony (see the chart & explanation above), then they cannot send you to the Texas Youth Commission (TYC - or AKA kiddie prison).

If this had not occurred on school property, I would feel safe in telling you that you would probably be offered a deferred - where you are not adjudicate guilty and in fact do not even enter a plea but are placed on probation. However, given that this is on a school campus, they may push for an adjudicated probation - where you are adjudicated a delinquent but placed on probation.

Juvenile laws can be complicated even when it comes to probation. They may place you with your parents, or in the custody of the Chief Probation Officer.

A lot of what is going to happen depends on the amount, what you were doing with it (if you were going to distribute it whether for free or for sale, then punishments go up further. If you are just charged with possession, then the punishments are as previously stated.) Your punishment also has a lot to do with you - are you a good kid, making good grades and have good behavior or are you a problem kid, with unexcused absences and a problem at home.

See, the prosecutor can make recommendations, and you can agree to them or not. But if you do not like what the prosecutor is recommending (for example, adjudicated probation in the custody of the Chief Probation Officer), you can ask the judge for a better offer - at least in Harris County.

An example is that I had an assault case last week that had some sexual connotations to it. The State initially wanted adjudicated probation in the custody of the CPO - we refused. We wanted a trial but they threatened to raise the charge to an indecency with a child. We did not want to chance that happening so we agreed to plead to an adjudicated probation with custody to the parents. However, when we got up to the judge to do the plea, I informed the judge that while we would agree to that, we really wanted deferred disposition. After the client passed a drug test and we proved that he was an A/B student with great attendance, the judge gave the deferred against the wishes of the prosecutor.

So, the bottom line is that you need to be flying the straight and narrow right now - good grades, no unexecused absences, minding parents, meeting curfew - demonstrating that you are an excellent probation candidate. If you have a drug problem, you should address that issue now, before going to court. Finally, while there is a potential for a tough sentence, you are in control to a great degree, of what will happen, and the range of possibilities is great.

Hope this helps.