Texas Possession of Marihuana (POM)

Range of Punishment (Not including possession of more than 5lbs)

Marihuana is the most commonly abused drug in the United States.  In Texas, it is against the law to be in possession of any usable quantity of marihuana.[1]  If you are arrested for the criminal offense of Possession of Marihuana (POM) you will face either misdemeanor or felony charges depending on the amount of marijuana you are found to be in possession of.[2]

Class B Misdemeanor: A person is found to knowingly or intentionally possess less than two ounces of marijuana. Class B misdemeanors have a maximum range of punishment of 180 days in jail, a $2,000 fine, or a combination of both a fine and confinement in jail.

Class A Misdemeanor: A person is found to knowingly or intentionally possess more than two ounces of marijuana but less than four ounces of marijuana. Class B misdemeanors have a maximum range of punishment of 1 year in jail, a $4,000 fine, or a combination of both a fine and confinement in jail.

State Jail felony: A person is found to knowingly or intentionally possess more than four ounces of marijuana but less than five pounds of marijuana. State Jail Felonies are punishable by confinement in a state jail for any term of not more than two years or less than 180 days, a fine not to exceed $10,000, or a combination of both a fine and confinement in jail.

Possible Defenses to POM:

Before you can be convicted of the charge of POM the State must first prove beyond a reasonable doubt that you were knowingly or intentionally in possession of marihuana.  If the State cannot prove that you knowingly or intentionally possessed the marijuana, then an attorney may be able to get your case dismissed.

The Texas Penal Code explains that a person acts “intentionally”, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.  A person acts “knowingly”, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.  A person acts knowingly when he is aware that his conduct is reasonably certain to cause the result.[3]  Proof of a culpable mental state is often made by circumstantial evidence.  Proof of knowledge is an inference that may be drawn by the fact-finder (i.e. jury) both from direct evidence and from evidence surrounding the act.  A jury may infer intent or knowledge from any facts which tend to prove its existence, including acts, words, conduct of the accused, and the method of committing the crime.  Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or admission occurs.[4]

The distinction between intentional and knowing, as to results, is between desiring the result and being reasonably certain that it will occur.[5]  The mental state ‘knowingly’ does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what his actions are reasonably certain to cause.[6]

Most Likely Outcomes:

The range of punishment, even for a Class B Misdemeanor POM, is very serious.  A $2,000 fine and/or 180 days in jail is not something to be taken lightly.  However, if this is your first POM offense there is a high probability that you will not receive a jail sentence or a very large fine.  Depending on individual circumstances, there are a few likely outcomes.

1. Deferred Adjudication – this is a type of plea bargain a defendant may be able to enter into. A defendant enters a plea of “no contest” or “guilty” and then is placed on probation for a period of time.  If the defendant complies with all the terms of probation the judge will defer finding the defendant guilty (i.e. dismiss the case). At the conclusion of probation the case is effectively dismissed, and then defendant may qualify to petition the court for a nondisclosure and have the records of the case sealed from the public.

2. Pre-Trial Intervention (PTI) – This option is not always available to every defendant. It requires a lot of effort, both from the defendant and the attorney, to get this outcome.  There are certain requirements that must be met before a defendant can get into a PTI program, but if the defendant successfully completes the program the charges will be dismissed. The difference between PTI and deferred adjudication is that a deferred adjudication does not result in a conviction, and a PTI results in an outright dismissal. At the end of a PTI case the defendant may apply to have the case expunged from his record.  This means that the records of the case will be destroyed and no one in the general public will be able to find any records that the defendant was ever charged with the crime in question.

3. Trial – Sometimes attorneys and prosecutors do not reach an agreement on a POM case.  If the State and defense do not reach any type of agreement on how to dispose of a case, then the case will proceed to trial.  Criminal trials are split into two parts. First is the “guilt innocence” phase of the trial. During this initial portion of the trial the facts of the case are heard and the jury will decide whether or not the defendant is guilty.  If the defendant is found not-guilty the case is dismissed.  If the defendant is found to be guilty, then the trial will proceed to the second phase.  The second phase of a criminal trial is the “punishment” phase.  Defendants may elect to have either the jury or the judge assess punishment. During this phase of trial the defendant will share mitigating factors to the crime and punishment will be assessed.

Case Evaluation:

There are many factors to consider when evaluating a POM case, and every case is going to be completely different depending on the circumstances surrounding the case.  When evaluating a case your attorney will obtain the evidence the State intends to use against you. This evidence may include audio recordings; police reports; dash-cam video footage; 911 phone calls; scene photos; probable cause affidavits; search warrants; and much more.

The Law Office of James Tittle handles all types of criminal cases, and would be happy to evaluate your Possession of Marihuana case.  We understand that this is a very frightening experience, and we take the time to fully explain the process to you so you can make an informed decision.  Don’t just hire an attorney that knows the law, hire someone to fight for you.  Call our League City office today at (281) 814-5323 or visit us on the web at www.leaguecitylaw.com to consult with an attorney today.

[1] Texas Code of Criminal Procedure 13.22

[2] Texas Health and Safety Code 481.121

[3] Texas Penal Code 6.03

[4] Louis v. State, 329 S.W.3d 260, 268-69

[5] Koah v. State, 604 S.W.2d 156, 160

[6] Baldwin v. State, 264 S.W.3d 237, 242-43