Skip to Main Content

Actual vs. Constructive Possession in Texas Drug Crimes Cases

When it comes to drug possession charges, the elements that prosecutors must prove are the same in every case. The Texas Controlled Substances Act prohibits the knowing, intentional possession of a controlled substance that is listed on different Schedules and/or Penalties groups. The nature of the charges varies by the type of drug, but the prosecution can only obtain a conviction by establishing guilt beyond a reasonable doubt. In some cases, the facts proving possession are straightforward. A syringe in your pocket, a joint in your hand, or a vial of cocaine in your purse will probably be enough for a conviction.

However, you could also be arrested for drug possession even when the controlled substance is not on your person or even within reach. The issue comes down to what is considered actual versus constructive possession, a concept that is very complicated and fact specific. You should trust a Texas drug crimes defense lawyer to handle the details if you are facing charges, but an overview may also be helpful.

Comparing Actual and Constructive Drug Possession

In addition to defining the crime of drug possession, Texas law also provides a definition of what possession means. You could be arrested for possessing a controlled substance if you exercised actual care over it; the above examples of having a drug in your hand or pocket involve actual possession.

The statute goes on to state that possession also includes “custody, control, or management.” This is where the concepts get tricky because you could still be charged with constructive possession. You could have an item in your custody, but you might have no power to access it – preventing you from exercising control; or, you might be able to manage or control something that is miles away.

Plus, there are complicated scenarios when someone else might have custody, control, or management. That could prevent a finding that you were legally in possession.

Examples of Constructive Possession

From the above description, you can see that the specific facts will mean everything when proving – or disproving – constructive possession. A few examples may provide insight, so compare:

  • A bag of marijuana in the trunk of your own car to the glove box of a car you rented;
  • Drugs on a table and being used by partygoers at a friend’s house versus a get-together at your home; and
  • A joint in a bag that you left at the office to the same drugs in the purse you carry.

The grey areas involved with constructive possession can make things challenging for both sides of a Texas drug possession case, but the advantage is yours because the prosecution has a high burden of proof. You might be able to work out a plea bargain for lesser charges or reduced punishment.

Discuss Your Case with a Skilled Houston Drug Crimes Defense Attorney

If you were arrested for a drug crime based upon circumstances indicating constructive possession, retaining an experienced defense lawyer should be a priority. For more information on how the Law Offices of Tad Nelson & Associates can support your rights, please call (281) 280-0100 or go online to set up a consultation.