top of page

Galveston Marijuana Charges
A Comprehensive Guide 

Brian Foley - Board Certified Criminal Defense Attorney​

 

 

 

 

 

 

 

 

 

 

INTRODUCTION

If you’ve been arrested or are facing charges related to marijuana possession, distribution, or cultivation in Galveston Texas, this page is for you. Marijuana laws in Texas can be complex and confusing, especially with the emergence of various THC products and substances like Delta-8 and Delta-10. This page serves as the ultimate resource for anyone navigating marijuana charges in Texas, whether you are facing a simple possession charge or more serious allegations involving marijuana distribution or cultivation.


In this comprehensive guide, we’ll cover everything you need to know, from the basic legal definitions and penalties, to defenses that can be raised in court, to your rights during an arrest. Additionally, we’ll explore important topics such as the possibility of expungement, how marijuana charges can impact your criminal record, and why it’s you should consult with an experienced defense attorney.

WHAT HAPPENS AFTER A MARIJUANA ARREST?

When you're arrested for marijuana possession, the first step is usually being booked into jail. In Texas, possessing less than two ounces of marijuana is considered a Class B misdemeanor. This offense carries a potential penalty of up to 180 days in jail and a fine of up to $2,000.  Penalties increase as the amount of marijuana increases but most people arrested are arrested for a Misdemeanor.  The police have to have probable cause to make the arrest.  “Probable cause "exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found” Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).

​

Once you're arrested, the authorities will place you in the back of a patrol car and take you to the Galveston County Jail at 5700 Ball St, Galveston, TX 77551.  After arriving at the jail process you by taking personal information, fingerprints, and photos. From there, you'll be placed in jail, and your case will be reviewed by the judge the following morning at an Article 15.17 hearing often referred to as PC court.  PC stands for probable cause, the legal standard that police must meet in order to continue to detain you in the jail.  Being arrested doesn't automatically mean you'll be facing the full penalties.  Incarceration and the bail bond system ensures that you will appear in court for your court date to determine guilt or innocence and to determine any punishment.  A few key factors will determine your case's outcome, including the circumstances of your arrest, any prior criminal history, and whether you can be bonded out of jail.

​

Step 1: Understand the Charges and Bond
When you're arrested and taken to the jail, your charge will be listed in the booking information which can be located at the jail roster website. In the case of marijuana possession, you’ll likely see the offense labeled as “POSS MARIJ <2OZ” with a corresponding bond amount. The bond amount is what you'll need to pay to get out of jail while awaiting trial, and it's set based on various factors, such as the nature of the offense and your prior criminal record.  You may get what is called a PR bond which stands for personal recognizance.  This means that you will not have to pay any money to get out of jail.  

​

You can check the jail’s online database to see if the bond has been set. If you see terms like "hold" or "out-of-county warrant," these terms could mean that even if your bond is paid, you may not be released until the authorities address other pending issues related to your case.

​

If you're facing a high bond, don't panic—there’s still a chance it may be reduced later. The process typically includes an initial court hearing called magistration, where a magistrate will review your bond and potentially lower it depending on the situation.

​

Step 2: What Happens at Magistration or the Article 15.17 hearing?
Magistration, or the Article 15.17 hearing is a formal hearing where a judge or magistrate reviews the charges and bond amount. This is also known as PC Court.  Typically, this occurs on the next morning after the arrest. During this hearing, the magistrate (judge) will set the conditions for your release. If you or your attorney feel the bond is too high or unreasonable, you can have it reconsidered by the trial judge on your first court setting at the court house.  You'll get this court date on documents when you leave the jail after bonding out. 

​

It's important to remember that you have the right to remain silent during this process. Anything you say can be used against you.  Often times the State will record the probable cause hearing.  This means that if you admit to anything or apologize to the judge or prosecutor at this hearing it could be used against you later to help prove the case.

​

Step 3: Bail and Seeking an Attorney
After the article 15.17 hearing you or your family can contact a bail bondsman and pay what is normally set at 10% of the bond amount in order to get out of jail.  This means if your bond is $3,000 you will most likely be able to find a bail bondsman that will bond you out of jail after being pad approximately $300.  You could also pay a cash bond meaning a friend or family member pays the full bond amount to the jail and it is kept by the county or district clerk until the case is over.  The advantage to a cash bond is that you will be refunded almost all of your money minus a service fee from the court.  When you pay 10% of the bail bond amount to a bail bondsmen then they keep that money even if you show up to all your court dates. 

 

At this point you will be released from jail. It’s highly recommended to reach out to an experienced criminal defense attorney now that you're out and have a court date.  A lawyer specializing in marijuana possession cases can assist in determining whether the arresting officers followed the law properly, whether there is a valid defense to the charge, and what your best course of action may be.

​

Attorney-client privilege allows for confidential communication, meaning that anything you discuss with your lawyer will remain protected, unlike the conversations you might have with loved ones, which could be recorded if you're communicating through the jail's phone or video systems.

​

Step 4: Visiting the Jail and Communicating
If you're looking to contact someone who has been arrested, you can do so by visiting the jail or by your loved one using the jail’s phone system. Be aware that all calls and video visits at the jail are recorded. While it may seem comforting to communicate with a loved one during this time, anything discussed in these calls can be used as evidence. This is especially important to keep in mind if you're discussing the case's details.

For example, if you're trying to get more details on what happened during the arrest, it's better to do so in a private meeting with an attorney rather than over the phone or through video. If you need to visit someone in jail, check out the Galveston County Jail Visitation Rules.

​

Step 5: What’s Next in Your Case?
After being released on bond and selecting an attorney, the next phase of the case is preparing for your court date.  Very little happens at an initial court date in a criminal case for Marijuana in Galveston County.  The first court date is called the arraignment.  Years ago when the code of criminal procedure was written this would have been a time for you to enter a plea of guilty or not guilty.  Now your attorney will enter a plea of not guilty on your behalf while awaiting "discovery."  Discovery is all the evidence that the State collected against you.  It is unlikely that an agreement will be reached on your case on your first court date.  In some instances, the charges may be dismissed or reduced, especially if the evidence is weak. An attorney will help you navigate the complexities of criminal defense, looking for weaknesses in the prosecution’s case and determining the best approach to resolve the matter.

DISCOVERY AND GATHERING EVIDENCE

In a marijuana possession case Article 39.14 of the Texas Code of Criminal Procedure ensures that the defense has the right to obtain discovery material for an effective defense. The evidence typically involves body camera footage from law enforcement officers, dash cam recordings if the arrest arose from a traffic stop, and laboratory results verifying the THC content of the suspected marijuana plant. These materials must be thoroughly reviewed to assess the legality of the arrest and whether the substance in question is indeed marijuana rather than industrial hemp.

​

1. Body Camera and Dash Camera Footage

The first line of defense may often rest on challenging the validity of the traffic stop or the conduct of law enforcement during the arrest. Body cameras and dash cameras are key in this regard, as they document interactions between the police and the defendant. Under Article 39.14(a), these materials, including recordings from police body cameras and dash cams, must be made available to the defense upon request. Law enforcement agencies are required to allow the defense to inspect, photograph, copy, or electronically duplicate these materials once the defense has made a timely request for discovery.

​

The footage can be critical in verifying whether the officer had probable cause for the arrest, whether the defendant's rights were violated, or whether there was improper behavior during the encounter. Any deviation from the legal process or failure to follow proper protocols could potentially lead to a suppression of evidence or dismissal of the charges.

​

2. Laboratory Testing Results

In Texas, to charge someone with marijuana possession, the substance must contain more than 0.03% THC to be classified as marijuana under Texas Health and Safety Code § 481.121. The defense should request all laboratory testing results that analyze the suspected substance for its THC content. The Texas Code of Criminal Procedure mandates the production of such evidence, provided that the materials are in the possession or control of the state.

​

Under Article 39.14(a), the state must provide access to any offense reports or tangible evidence that can substantiate the presence of THC above the legal threshold. If the laboratory tests indicate that the substance contains 0.03% THC or less, it would be classified as industrial hemp rather than marijuana, which would lead to a dismissal of the charges in most cases. 

​

3. Ensuring Complete Disclosure and Inspection

As the defense attorney, it is essential to file a timely request for discovery. According to Article 39.14(b), this request must be made no later than 30 days before the scheduled trial. Once the request is made, the prosecution is required to provide all relevant evidence, including body cam footage, dash cam recordings, and laboratory test results, within a reasonable time frame, and must allow the defense to inspect or copy these materials. The law provides that the state may not withhold any documents, objects, or other items that are material to the case, except in situations where there is a privilege or a justified redaction of certain information (e.g., personal identifiers of witnesses or victims).

​

The defense attorney must thoroughly review all materials produced by the prosecution, and if any documents or evidence are redacted or withheld, the attorney can request a hearing in accordance with Article 39.14(c) to determine if the redaction is justified.​

 

 

 

 

 

 

 

 

 

 

PRESERVING EXCULPATORY EVIDENCE

It is also a requirement of Article 39.14(h) that the prosecution must disclose any exculpatory, impeachment, or mitigating evidence that might negate the defendant's guilt or reduce their punishment. This could include evidence of unlawful search or seizure, improper handling of evidence, or laboratory errors in the THC testing process. The defense must remain vigilant for such evidence, as it can significantly alter the direction of the case.

​

Brady v. Maryland
The pivotal case of Brady v. Maryland from 1963 established the "Brady Rule," mandating that prosecutors must disclose evidence that could prove innocence or lessen punishment. In this case, the prosecution's failure to share a co-defendant's confession led to an unfair trial, ultimately resulting in the reversal of Brady's conviction.

 

Texas Law: Article 39.14 and The Michael Morton Act
In Texas, this duty is legally enforced under Article 39.14 of the Code of Criminal Procedure. The Michael Morton Act further strengthened these obligations after Morton was wrongfully convicted due to withheld evidence. This act compels prosecutors to actively seek out and preserve evidence that could exonerate defendants.


Practical Implications for Marijuana Charges in Galveston
Every interaction with witnesses or victims related to a marijuana charge must be documented, especially statements that could undermine the prosecution's case. Prosecutors must proactively look for evidence that might clear the accused or reduce charges. Defense attorneys should always request that all evidence that could help their case is disclosed.  If facing a marijuana charge, consulting with an attorney familiar with local laws can be instrumental.

​

 

 

 

 

 

 

 

 

 

​

INVESTIGATION AND EVIDENCE

​A common question many people have is how these cases typically begin and what steps law enforcement follows to gather evidence. In this post, we’ll explain how marijuana possession cases often start, the role of traffic stops and probable cause, and how recent changes in marijuana laws complicate these investigations.

​

The Investigation Process: Traffic Stops and Reasonable Suspicion
Most marijuana possession cases begin with a routine traffic stop. You might be pulled over for something like speeding, failing to signal a lane change, or even making a “wide right turn.” These stops often occur for minor infractions, but it’s important to remember that law enforcement needs what’s known as reasonable suspicion to stop your vehicle.

Reasonable suspicion means that the officer must have a factual basis for believing a traffic violation or potential criminal activity is happening. In cases involving marijuana possession, the reason for the stop might be something as simple as speeding or drifting into a different lane while making a right turn. Once the officer has stopped the vehicle, they will approach the driver and begin their investigation.

​

Probable Cause: The Role of Marijuana Odor
After stopping your vehicle, if the officer detects the smell of marijuana, this can give them what’s known as probable cause to search your vehicle. However, things have changed since 2019 when new legislation created a distinction between marijuana and industrial hemp. Industrial hemp, which has less than 0.03% THC, smells very similar to marijuana, making it hard for officers to tell the difference without testing the THC content.

This has led to debates over whether the smell of marijuana alone is enough for officers to conduct a search, especially given the legal and practical challenges of distinguishing between marijuana and hemp.

 

Several court decisions have addressed this issue, clarifying when the odor of marijuana can give law enforcement probable cause to search a vehicle.  In Isaac v. State (No. 04-22-00203-CR), the Fourth Court of Appeals reviewed an appeal involving the legality of a car search based on the odor and appearance of marijuana, particularly in light of the legalization of hemp. Larry Isaac, the appellant, challenged the search of his vehicle, arguing that since hemp is now legal and visually similar to marijuana, the distinctive smell and appearance of marijuana should no longer be used to establish probable cause for a search.

​

The case stemmed from an encounter on January 16, 2021, when Patrolman Ramirez stopped Isaac at a truck stop after a store manager reported suspicious behavior. During the stop, the officer noticed what appeared to be marijuana joints in Isaac’s car, recognized them through his training and experience, and proceeded with a search. During the search, methamphetamines were discovered, leading to Isaac's conviction.

​

Isaac argued that the officer lacked probable cause to search the vehicle due to the potential confusion between hemp and marijuana. The court, however, affirmed the trial court’s judgment, ruling that the officer’s actions were justified. The court held that despite the legal status of hemp, the odor and appearance of marijuana, along with other factors such as Isaac’s behavior and the officer’s experience, provided sufficient probable cause for the search.

​

The court referenced other cases where the smell of marijuana, even in states where hemp is legal, was still considered a valid indicator for probable cause. The court concluded that the trial court did not abuse its discretion by denying Isaac’s motion to suppress the evidence obtained from the search. Isaac’s appeal was denied, and his conviction was upheld.

​

Searching Your Vehicle: What Officers Can and Cannot Do
When law enforcement has probable cause to search your vehicle, they’re allowed to search the vehicle and any containers inside that could reasonably hold contraband. This means that, under certain circumstances, officers may search locked containers or other areas within the car if they have reason to believe they’ll find marijuana or other illegal substances.

However, the search must be based on valid probable cause, and law enforcement cannot just search your vehicle without meeting specific legal standards.

​

The Automobile Exception California v. Acevedo

In California v. Acevedo, the U.S. Supreme Court addressed the scope of the "automobile exception" to the Fourth Amendment's warrant requirement for searches and seizures. The case involved a situation where police officers, based on probable cause, searched a car without a warrant and found marijuana inside a bag in the trunk.

​

Background

The case began when police officers in California received information that Acevedo was involved in drug trafficking. Based on surveillance, they developed probable cause to believe that he was transporting marijuana in his car. Officers stopped Acevedo's car, searched it, and found a paper bag in the trunk containing marijuana.

Acevedo challenged the search, arguing that it violated his Fourth Amendment rights, which protect against unreasonable searches and seizures. He contended that police needed a warrant to search his car, even though they had probable cause.

​

The Court’s Ruling

The U.S. Supreme Court, in a 6-3 decision, ruled in favor of the police, upholding the search. The Court clarified the "automobile exception" to the Fourth Amendment, stating that when law enforcement officers have probable cause to believe a vehicle contains evidence of a crime, they can search the vehicle without a warrant. This exception applies because of the inherent mobility of vehicles, which makes it impractical to obtain a warrant before conducting a search.

​

Importantly, the Court concluded that the "automobile exception" allows police to search any part of the vehicle where they have probable cause to believe evidence is located. This ruling was significant because it eliminated the need for officers to obtain a warrant to search a vehicle as long as they have probable cause that the vehicle contains contraband or evidence of a crime, whether in the trunk or other parts of the vehicle.

​

Impact

The Acevedo decision streamlined the process for law enforcement when conducting searches of vehicles based on probable cause. It established that if police have probable cause, they can search the entire vehicle and any containers inside it that could reasonably hold evidence of the crime. The decision solidified the understanding that the mobility of vehicles justifies a more immediate and flexible response from law enforcement without the need for a warrant.

​

In essence, California v. Acevedo confirmed and expanded the application of the "automobile exception," allowing warrantless searches of vehicles under specific circumstances where probable cause exists.

Did you know this about Drug Charges?

Image by Scott Rodgerson
Galveston Drug Lawyer

Possession

Possession doesn't mean ownership.  The government doesn't have to prove that you bought the drugs.  "Possession" means actual care, custody, control, or management.
bottom of page