Texas Criminal Attorney Blog

Many of you have seen the picture above and read the recent story about Olympic Gold Medalist Michael Phelps. Apparently, Mr. Phelps was photographed smoking what appears to be a marijuana pipe or bong. It is doubtful that Mr. Phelps will be charged with a criminal offense , although his image may take a few hits. It is only under very rare circumstances that a person can be charged based on a photograph of an alleged crime.

However, if you are curious as to what the State of Texas would have to prove to convict Mr. Phelps of possession of marijuana, and his possible defenses to the charge, he is a quick summary of the Texas law regarding possession of marijuana.

The first thing to know about the crime of possession of marijuana in Texas is that the crime is not laid out in the Texas Penal Code, unlike most other crimes. Instead, it is found in Title 6, Section 481.121 of the Texas Health and Safety Code. Under the code, a person commits the offense of possession of marijuana if the person:
a) Knowingly; or
b) Intentionally
c) Possesses a usable amount of marijuana.

Knowingly or Intentionally? What is the Difference?

Knowingly or intentionally describes the mens rea, or mental state, required for a person to commit a certain crime. A person "knowingly" possesses something if he/she is aware that their conduct may reasonably lead to possession. A person "intentionally" possessed and item when he actually has a conscious desire to possesses the item and engaged in conduct to acquire possession. So essentially, the State must prove that you either took acts to obtain possession or you took acts that you new would acquire possession.

What does it mean to "Possess" marijuana?

Possession is defined as care, custody or control of an item. For example, if marijuana is in your pocket, you have care, custody and control. However, if you are riding in someone's car and marijuana is in the trunk, you may not have care custody and control.

What is a "usable" amount of marijuana?

Basically, use your common sense. If you can roll it and/or smoke it in any way, it is a usable amount. However, there are specific rules for how marijuana is weighed for purposes of defining the amount, and thus the range of punishment. The code says the following about how marijuana is weighed:
"Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:
(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
(B) the mature stalks of the plant or fiber produced from the stalks;
(C) oil or cake made from the seeds of the plant;
(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
(E) the sterilized seeds of the plant that are incapable of beginning germination.

What is "Marijuana"

Texas Law has a specific definition for marijuana. Under Texas Law, Marijuana is defined as:
"Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.

How May the Definition of "Marijuana" Help You Case?

Very rarely do law enforcement agencies actually chemically test marijuana to determine if it is Cannabis sativa L. See, there are many Canibi (marijuana) stains and only one, Cannabis sativa L, is illegal. Therefore, if law enforcement agencies do not test the marijuana, it can be argued that the State did not satisfy its burden of proof under the law.

This argument can be, and has been, successful when there are people on the jury panel who think marijuana should not be illegal. Texas case law states that marijuana is common enough that a lay person can identify it, thus alleviating the need for a chemical test. However, with the right jury panel, and without a test showing Cannabis sativa L, you may have a good chance at a not guilty verdict.

So, back to Michael Phelps. He will most likely not be charged with possession of marijuana. But if he is and he happens to read this article, maybe he will have a better understanding of what the State has to prove and his possible defenses. Remember Michael, if all else fails just claim you were smoking oregano.