Most marijuana cases in Harris County are diverted or dismissed. The ones that go to trial are the ones the State thinks are strong — and even those have two weak points that a former prosecutor knows how to find. Brian Foley explains in this video.
Weak point 1 — "Knowingly"
Possession of marijuana under Health & Safety Code § 481.121 requires the State to prove you knowingly or intentionally possessed it — actual care, custody, control, or management, with knowledge that it was there and what it was. When the marijuana is not on your person, Texas courts apply the affirmative links doctrine: mere presence near the drug is not enough. The State must show links such as:
- Whether the marijuana was in plain view
- Whether it was found on your side of the car or in a common area
- Whether you owned or had the right to possess the vehicle or residence
- Whether you made incriminating statements or furtive gestures
- Whether the odor was on you or in the vehicle generally
- Whether you had paraphernalia or other contraband on you
- Whether other people had equal access
A bag under a rear seat in a car with three passengers, no admission, and no odor on the defendant is a case juries acquit. This is also why a statement at the scene — "it's mine" or "we were all smoking" — is the difference between a dismissal and a conviction.
Weak point 2 — Is it marijuana?
Since hemp became legal, "marijuana" means cannabis with more than 0.3% delta-9 THC. A field test cannot measure concentration. Many labs cannot either, or did not until recently, and some report only "THC detected." At trial the State must prove the concentration exceeded the threshold through a qualified analyst using a validated method — and the defense cross-examines the method, the instrument, the controls, and the analyst's qualifications under Rule 702.
The trial
Voir dire on knowledge and on the presumption of innocence. Cross-examination of the officer on the affirmative links, using the body-camera video. Cross-examination of the analyst on quantitation. And a closing argument that asks the jury to hold the State to its burden on the one element it usually cannot prove.
Brian Foley and Luis Baez tried possession cases as prosecutors and know where they fail. See our controlled substances page or call or text (713) 703-1718.