Evidence of Drug Possession

Guest Post by Lauren Williams, legal writer for Michael J. Brennan, Chicago Criminal Defense Law.

Possession of drug or other contraband is punishable under Texas Criminal Law. “Possession” means actual care, custody, control or management. To prove the possession of a drug or other contraband, the State must prove that: (1) the drug or contraband was under the control of the accused; and (2) the accused knew the substance possessed was drug or contraband. The evidence of the possession can also be inferred from the facts and circumstances. But the evidence must establish, to a required level of confidence, that the accused’s link with the drug or contraband was more than just fortunate.

The law of possession regarding the drug or other contraband is designed to protect the innocent bystanders from conviction based solely upon his fortuitous closeness to someone else’s drugs. The concept behind this law is that a family-member may jointly enjoy possession of the property like a home but not necessarily jointly possess the drug or contraband found in that home.

If the State could provide evidence beyond a reasonable doubt that the accused is in the exclusive possession of the drug or contraband, that evidence is sufficient to get a conviction. But if there is no straight evidence, the State ought to provide evidence from the facts and circumstances to link the drug or the contraband with the accused. The evidence based on facts and circumstances can be:

(1) the appearance of the accused during the search;
(2) the drug or contraband was easily viewable;
(3) the drug was very near and accessible to the accused;
(4) the accused was under the control of the drug;
(5) the accused was possessing the drug or contraband at the time of his arrest;
(6) statements by the accused that strongly imply the guilt;
(7) the attempts of the accused to run away;
(8) secretive gestures of the accused;
(9) smell of drug or contraband;
(10) appearance of other drug or contraband;
(11) accused’s ownership and possession of the place where the drugs were seized;
(12) the enclosed appearance of the place;
(13) availability of large amount of cash with the accused; and
(14) the behavior of the accused that indicates the awareness of the offense.

The State could make an affirmative link with the accused by providing any of the above circumstantial evidence for establishing possession of the drug or the contraband.

In Eldridge v. State, 2011 Tex. App. LEXIS 3315 (2011), the Court of Appeals of Texas, Fourteenth District, Houston held that “the number of possession factors present is not as important as the significance of those factors in establishing the elements of the crime. It is the logical force of the circumstantial evidence, not the number of links, that supports a jury’s verdict.”

Mere presence alone at a place where the drug or contraband is being used or possessed by
others does not justify a finding of joint possession, or constitute one a party to an offense.


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