The unauthorized delivery of a controlled substance violates the Texas Controlled Substances Act if the delivery is made knowingly. A delivery is unauthorized if the person who delivers the drug is not licensed to dispense the drug or if the drug cannot legally be delivered in the State of Texas. This offense can carry serious penalties, making it important that an experienced drug attorney in Lubbock is contacted.
Definition of “Delivery”
“Delivery” means transferring or offering to transfer a controlled substance to another person. Deliveries can be actual or constructive.
An actual delivery occurs when one person transfers possession and control of a drug to another person. A hand-to-hand exchange of a drug is an example of an actual delivery of the drug.
A constructive delivery occurs when a person who owns or controls a drug causes control to be transferred to another person without engaging in an actual delivery. For example, a constructive delivery can occur when a person who has control of drugs causes another person to deliver the drugs. In that situation, the crime of delivery is committed by guiding or directing the delivery of a drug by another person. The person who physically delivers a drug in that situation is called the “agent.”
The person who directs the agent’s actions is called the “principal.” A single delivery can result in criminal charges against both the principal and the agent. The agent will be prosecuted for an actual delivery while the principal will be prosecuted for a constructive delivery. Although constructive deliveries often involve the use of an agent, the prosecution is not required to prove the existence of an agency relationship.
The difference between actual and constructive delivery is not always clear. For instance, if one person leaves a drug in a storage locker and gives the locker key to another person, a constructive delivery has occurred. When the recipient uses the key and picks up the drug, however, the constructive delivery is transformed into an actual delivery.
Delivery By Offer
An offer to sell a controlled substance is treated as a delivery even if the sale is never made. To prove the crime of delivery, however, the offer must be corroborated. The corroboration can come from the testimony of another witness who heard the offer when it was made, or it can be supplied by other evidence.
The corroboration requirement applies only if the charge is based solely on an offer to sell the drug. Evidence of a completed transfer (such as an undercover officer’s testimony that “the defendant handed me this drug”) need not be corroborated.
Possession Versus Possession With Intent to Deliver
The minimum and maximum penalties for “delivery” and “possession with intent to deliver” are the same. Delivery and possession with intent are grouped together in the statutes that criminalize “delivery and manufacturing” of most drugs in Texas.
The crime of “possession” is defined by separate statutes. The maximum sentence for possession of drugs is generally (but not always) less than the maximum sentence for possession with intent to deliver when comparable quantities are involved. It is nearly always better to be convicted of “possession” rather than “possession with intent” if a conviction is inevitable.
The prosecution typically tries to prove “possession with intent” by introducing testimony that the defendant is a drug dealer or has sold drugs in the past. The prosecution might also point to the way a drug is packaged or to the quantity possessed as proof that the defendant intended to sell the drugs that he or she possessed.
Texas judges have discretion to allow evidence of the “street value” of drugs to be introduced as evidence of a defendant’s incentive to sell the drugs. When the evidence is ambiguous, however, a defendant has a chance to persuade a jury that the drug was possessed for personal use, not with intent to deliver it to buyers.
Marijuana crimes are treated differently. One statute defines the crime of delivery and a different statute defines the crime of possession. There is no crime of possession with intent to deliver with regard to marijuana.
Possession With Intent to Deliver Penalties
The potential penalty for possession with intent to deliver depends upon the controlled substance involved in the offense. Nearly all controlled substances other than marijuana are assigned to a penalty group. Consult the list of controlled substances on our Texas Drug Crimes page to find articles that discuss the controlled substances commonly involved in Texas criminal prosecutions.
Each article identifies the penalty group to which that controlled substance belongs. The linked page for the applicable penalty group will explain the potential penalty for possession with intent to deliver.
Contact a Lubbock Drug Attorney Today
The potential penalties for possession with intent to deliver can seem daunting. In order to mitigate the damage caused by these charges, make sure to contact the Lubbock drug attorneys at Hamilton, Hull & Byrd.