The state of Texas views marijuana differently than other controlled substances. Unlike other drugs, Texas wanted to eliminate trace cases involving marijuana possession and consumption. See generally Lejeune v. State, (Cr.App. 1976) 538 S.W.2d 775. If the State of Texas wants to prosecute someone for possessing marijuana, that person must possess a “usable amount”, which is supposedly more than a trace amount. See Tex. Health & Safety Code Ann. § 481.121(a). According to Texas law, “a person commits an offense (of possessing marijuana) if the person knowingly or intentionally possess a usable quantity of marijuana.” Id. The statute then divides up the possession offenses by weight. This article will focus on the first possible offense: possessing two ounces or less of marijuana, which is the Class B misdemeanor. However, it is not just any amount less than two ounces, the range is really between two ounces and a “usable amount”. So then we must ask: what is a usable amount?
The Texas Courts has a list of cases that have discussed this issue. This discussion has produced a few rules of law that should help define what a usable amount really is. First and foremost, the general idea is that a “usable amount” is the amount of marijuana a person needs to consume for the sole purpose of “getting high”. There is a hard number to begin with, which is 7.7 grams. In the case of Lejeune v. State, the Court held that 7.7 grams of marijuana can be transferred into a cigarette or put into a pipe for the purpose of consumption.
Nevertheless, 7.7 grams is still not a concrete number. There have been convictions involving unimaginably small amounts of marijuana. For example, in Parson v. State, the Texas Court of Criminal Appeals upheld a case where a person was arrested and convicted of possessing a usable amount of marijuana and the amount was 1.41 grams.
What does all this mean? In my opinion, even though the Court had the intent to eliminate trace laws involving marijuana possession, it seems to still allow prosecutors to convict people for trace amounts of marijuana because no hard number has been given to the definition of “usable amount” regarding marijuana possession. If you are charged by the State of Texas for marijuana possession, and you possessed less than two ounces, the “usable amount” argument is one that could possibly protect you. However, there is no guaranty that will work. The Texas Court system has left the power to define a “usable amount” in the hands of the judge. Nevertheless, this could be a strong defense in your case and one element of the case to fight.
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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301. www.ggglawfirm.com.
Drug Related Charges may include: Possession of Marijuana, Possession of Controlled Substance, Possession of Dangerous Drug, Manufacturing a Dangerous Drug/Controlled Substance, Delivery or Intent to Deliver Marijuana/Dangerous Drug/Controlled Substance, Possession of Drug Paraphernalia and many other drug related charges.