Drug Manufacture or Delivery in Texas: Things You Need to Know

There are some things, either grown or man-made, that are considered illegal under either state or federal law. In legal lingo, they are called “controlled substances.”

Just having them in your possession can get you arrested. However, if you go the next step and try to make money with them, either in the manufacture of these illegal substances or in delivering them to customers, then the criminal consequences escalate if you are caught.

What punishments you face — as well as the charges that are brought — will be different depending upon who arrests you. Federal authorities will bust people for violation of federal drug crimes. These people will face prosecution under the Comprehensive Drug Abuse Prevention and Control Act of 1970. (For more on the federal drug crimes of manufacturing or distribution, read the detailed history of the act and other information provided by the federal government at Congress.gov.)

In comparison, those here in Texas who are arrested by state or local authorities (think local police or deputy sheriffs, as well as DPS officers or even Texas Rangers) will face charges defined within the Texas criminal statutes.

Specifically, Texas Health & Safety Code Chapter 481 which contains the Texas Controlled Substances Act. This Act defines the charges as well as the penalties for the offenses of manufacturing or delivering a controlled substance under state law.

This article discusses the Texas Act. In the following article, defenses against state law charges of manufacturing or distributing illegal drugs will be detailed.

Key Statutes Within the Texas Controlled Substances Act

There are certain statutes within the Texas Controlled Substances Act that are key in understanding the ramifications of being arrested for its violation. Why?

These contain the elements that the prosecution will have to prove with admissible evidence beyond a reasonable doubt in order to get a conviction. Criminal defense lawyers after any arrest on manufacture or distribution charges will painstakingly compare these statutes to the prosecutor’s file of documents and witness testimony in the specific case. Are there gaps or mistakes that warrant a challenge, or even a motion for dismissal?

They include:

• THSC § 481.112 — Manufacture or Delivery of Substance in Penalty Group 1

• THSC § 481.1121 — Manufacture or Delivery of Substance in Penalty Group 1‑A

• THSC § 481.113 — Manufacture or Delivery of Substance in Penalty Group 2 or 2‑A

• THSC § 481.114 — Manufacture or Delivery of Substance in Penalty Group 3 or 4

• THSC § 481.141 — Manufacture or Delivery Causing Death or Serious Bodily Injury (increases penalty).

There are also specific definitions included by lawmakers within the Act that are to be used in its application. These are the definitions that must be used in the case.

The state district attorney must make sure that the state’s evidence conforms to the definitions as they exist within the Act itself. If they fail to do so, then the defense can refute their work. And there are lots of definitions in the Texas Controlled Substances Act, such as:

• Controlled substance — THSC §481.002(5)

• Controlled substance analogue — THSC §481.002 (6)

• Deliver — THSC §481.002 (8)

• Delivery — THSC §481.002 (9)

• Distribute — THSC §481.002 (14)

• Distributor — THSC §481.002(15)

• Manufacture — THSC §481.002(25).

These are complicated. For instance, “manufacture” covers lots of things. It includes producing, preparing, propagating, compounding, or processing a controlled substance. It may mean things like “cooking” meth; growing marijuana; or repackaging drugs for sale.

And delivery? It means not only actual but constructive transfer of an illegal drug. Maybe it’s a sale. But it may also be giving the drug to someone, or acting as a go-between in a drug deal. No money has to change hands for “delivery” to occur under this definition.

Finally, there is possession with intent to deliver. Under state law, someone can be charged for this even if they were not arrested during any sale. The state can make their case based solely upon proving up an intent to deliver.

What about Intent to Deliver?

Under the Texas Controlled Substances Act, you can be convicted even if no delivery ever happened. The district attorney only has to show that you have the intent to deliver.

Of note, the term “intent” is not defined in the Act’s specific definitions. Instead, a definition of “intent” is found in Texas Penal Code §6.03(a). This law gives the general explanation for what intent involves in a criminal act:

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.

If the case goes to trial, the jury will be given the following jury instruction by the judge, found in the Texas Criminal Pattern Jury Charges:

“A person intends to deliver a controlled substance if it is his conscious objective or desire to transfer the substance to another, actually or constructively.”

As the Texas Court of Criminal Appeals clarifies, everything (all the facts and circumstances) can be taken together by the jury to determine if the accused had the intent necessary for a conviction. Branch v. State, 599 S.W.2d 324 (Tex. Crim. App. 1980).

Intent is a big deal to a criminal defense attorney. If the prosecutor cannot prove up “intent” with authenticated and admissible evidence, then his case falls apart. And this can mean lots of different pieces of evidence must be reviewed and evaluated by the defense team, item after item, to make sure it withstands scrutiny. Because every piece of evidence will be used by the jury to decide if there was intent.

Are there constitutional violations because of an illegal search and seizure? Is there a problem with the chain of custody for an item, violating due process?

• For more here, read: Challenging the Search Warrant in Texas: Illegal Search and Seizure.

Direct and Circumstantial Evidence: The Element of Intent

This can be complicated. In Texas, “intent” can be proven by both direct evidence as well as circumstantial evidence. Direct evidence is stuff like a controlled buy, where a law enforcement officer is undercover and arranges a purchase from the accused. A statement by the defendant given to an officer, or in a text message or social media post, are other examples of direct evidence.

However, most evidence of “intent” will be circumstantial, and more vulnerable to argument by the defense. The accused’s state of mind will be inferred by the prosecution from things like:

• the amount of drugs involved (a huge amount suggests more than personal use)

• packaging found at the scene that hint at selling things (things like lots of baggies, etc.)

• scales for weighing drugs (also hinting at selling product)

• lots of cash at the scene (suggests a business operation)

• lots of cash without any visible means of earning a living (no job)

• lots of cell phones (think burner phones, suggesting business enterprise)

• weapons or firearms (suggesting a need to protect product or cash)

• criminal history of the accused (suggesting a pattern or behavior or past experience).

After reviewing the prosecution’s evidence regarding intent under the Texas Controlled Substances Act, the defense attorney may have found one or more arguments to challenge the state’s case. This is especially true regarding the circumstantial evidence.

Each case is unique and must be evaluated on its own. However, after confirming that the basic evidentiary rules have been met, the defense lawyer may have other arguments to make after his own investigation into the matter.

He may be able to go to the prosecutor (think plea negotiations) or to the judge, and argue things like:

• The cash can be shown by the defense to be from a legitimate source. Maybe it comes from a cash-based business. Maybe it came from parents for school expenses, to buy a car, etc. Especially after the pandemic, lots of people have gigs where they are paid in cash, like lawn mowing services; childcare; food trucks; etc.

• That packaging? It wasn’t there for drugs, it was part of the accused’s hobby or other innocent use. Jewelry making; action figure collectibles; model building; even fishing are all types of hobbies where enthusiasts may use lots of baggies to keep things safe and organized.

• Maybe it was a large amount of illegal drugs. But the accused was scared, and thought that buying a big amount of the drug was safer than going back again and again to a dangerous location or to meet with scary drug dealers. It was all for personal use.

Range of Punishment For Texas Drug Manufacture and Delivery Charges

Punishment for violating the Texas Controlled Substances Act is defined within its statutes. The Act divides illegal drugs into four main penalty groups. The distinctions are based upon the lawmaker’s determination of which drugs have the greatest potential for abuse.

Penalty Groups Defined in the Act

There are four different levels of punishment in the Act, divided by the type of drugs involved. Marijuana gets its own classifications under the Texas Controlled Substances Act; this comes with a distinct set of penalties upon conviction.

1. The drugs that are considered to be the most dangerous for people, the ones with the highest risk of harm, are placed into Penalty Group 1. These are illegal drugs like fentanyl; methamphetamine; and heroin. There are two special sections within Penalty Group 1. One is for LSD; the other is for fentanyl and its derivatives. (Penalty Groups 1-A and 1-B).

2. The next highest ranking goes to hallucinogens and similar substances (think PCP or MDMA). These are found in Penalty Group 2.

3. Penalty Group 3 contains illegal drugs that are either some kind of stimulant, depressant, or narcotic (e.g., Xanax; Valium).

4. The lowest level of punishment is found in Penalty Group 4, where the illegal substances have a lower narcotic content.

Punishments Depend Upon Where the Drug is Found in the Penalty Groups

Most convictions for violation of the Texas Controlled Substances Act involve felony convictions, with incarceration for significant periods of time in either a state jail or a prison. (There may be big monetary fines, too.)

That’s a big distinction right there for those who are facing sentencing: where they will have to serve their time is important. Read, Will You Go to State Jail or Texas Prison? The Importance of Plea Negotiations.

Aggregate Weight

Important from a defense perspective is the correlation between drug weight and punishment. If the weight (or the process of weighing, etc.) can be challenged, then the penalty range may be altered accordingly.

If the amount of the “pure” drug is small and mixed with other things, the prosecution will not divide out the pure drug itself. The total or “aggregate” weight is what counts in the charge. From the Act: The term [controlled substance] includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

For instance, under Penalty Group 1, an aggregate weight of less than 1 gram means a state jail felony with 180 days to 2 years in state jail and a fine of up to $10,000. However, if the aggregate weight is 400 grams or more, then it is an enhanced first-degree felony carrying 15 to 99 years, or life in prison, with a fine of up to $250,000.

Enhancements

There are also circumstances, that if proven by the state, will enhance (increase) the punishment under the Act. Enhancements are things like proof that the criminal act happened in a “drug-free zone,” which is defined as being within 1,000 feet of a school, playground, or youth center. It boosts the charge up one level. Other enhancements may be things like a child being at the scene of the criminal act, or a criminal history of prior felony convictions.

Causing Death or Serious Bodily Injury

Things get very serious for the accused if the prosecution’s case includes evidence that the alleged manufacture or delivery of the illegal drug caused the death or serious bodily injury of someone.

This may mean someone died from using the drug that was provided. It may mean that they were seriously injured by it.

In either situation, the Act provides that the punishment can be increased by one penalty level. That may mean that what would have been a state jail term becomes time spent in a state prison facility.

Felony Charges Under Texas Law for Drug Manufacture or Delivery

In our next article, we will go into more detail about the various defense strategies that may be available to those who have been arrested and charged for Texas drug crimes that include violations of the Texas Controlled Substances Act for drug manufacture and delivery. These can be complex cases with very detailed defense strategies based upon how extensive law enforcement efforts have been. Joint task force endeavors, for instance, may mean multiple defendants and lots of documents, digital data, and witness testimony to be evaluated and considered.

Those accused are facing serious felony criminal charges. Anyone being investigated for violations of the Texas Controlled Substances Act, much less those arrested and charged, is wise to have legal advocates helping them as soon as possible.

The reality here is that your life is at stake. If the prosecution gets its way, your freedom is going to be taken away from you by the government. You may be forced to live in a state jail or worse, in a state prison, for years.

Added to this: your family and friends are also going to get hurt. They are going to have to live days and months or years without you. Birthdays, holidays, vacations: you won’t be there. And you can’t help them get groceries; play with your kids; help your grandpa get to the dentist. These arrests punish loved ones, too.

While federal drug laws often carry harsher penalties with mandatory minimums and no parole, especially for large-scale trafficking or death, Texas drug laws are also fierce. Under the Texas Controlled Substances Act, there may be more sentencing flexibility and parole eligibility to be argued by the defense, but the reality is that the Act has severe punishments (like life behind bars) for major drug offenses.

Criminal defense lawyers have the job of protecting people against government errors or misconduct. The faster they can start defending your rights, the better.

For more, read:

• Overdose Death Investigations: Criminal Defense Considerations – Can the Prosecution Make Their Case?

• Texas Drug Crimes: Criminal Defense Overview

• Xylazine or Tranq: Zombie Drug is New Focus for Drug Arrests in Texas.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Pre-Arrest Criminal Investigations.”