Houston Criminal Defense Blog

When Does a Drug Charge Become a Felony?

felony drug charges

It would be easy to assume that state and federal laws have become more lenient when it comes to drug charges. After all, media reports about some states legalizing marijuana possession, use and distribution for various purposes could give the impression that the war on drugs is over.

The truth is that drugs like marijuana, cocaine, heroin and methamphetamine are still illegal in Texas. Possession or sale of controlled substances prohibited by the state penal code can be prosecuted as a felony under certain circumstances. Penalties may include prison confinement and substantial fines along with a criminal record that could prevent you from getting or keeping a job.

Felony Drug Charges and Penalties in Houston

Drug laws in Houston are complex and can, quite often, be confusing. Misdemeanor drug charges can become felony drug charges when certain aggravating factors are present. Common aggravating factors may include:

  • Prior convictions for drug offenses
  • Possession of drugs in the vicinity of a school
  • Selling drugs to minors
  • Sale or delivery of drug paraphernalia to a minor
  • Committing a drug offense while in possession of a firearm

In the absence of aggravating factors, the elevation of a charge from a misdemeanor to a felony generally depends upon the type and amount of the drug that you sold or possessed. The penalties courts may impose depend upon which penalty group state law places a particular drug.

For example, penalty group 1 contains drugs such as heroin and cocaine. The charges and penalties include:

  • State jail felony for possession of one gram with up to two years in state jail and fines up to $10,000
  • Second degree felony for possession of one to less than four grams with from two to 20 years in prison and fines up to $10,000
  • First degree felony for possession of from four grams to up to less than 200 grams with from five to 99 years in prison and fines up to $10,000
  • First degree enhanced felony for possession of between 200 grams and less than 400 grams with from 10 to up to 99 years in prison and fines up to $100,000
  • First degree enhanced felony for possession of 400 grams or more with either life in prison or 15 to 99 years in prison and fines up to $250,000

Possession of Drugs for Personal Use

As a general rule, possession of drugs for personal use follows the same rules as possession of drugs for other purposes where the weight and type of drug determines the severity of the charge and of the punishment. Marijuana is a drug where the intended purpose, personal use, could result in a misdemeanor charge instead of a felony.

A large amount of marijuana could justify a felony charge even if you claim that it was for personal use. For example, possession of up to four ounces of marijuana remains in the misdemeanor classification of crimes. Possession of more than four ounces elevates the charge to a state jail felony.

The reason quantity of drugs plays such an important role in determining whether you are charged with a misdemeanor or a felony has to do with intended use. Prosecutors can use the fact that you possessed a large quantity of marijuana as proof that you intended to sell it.

Even an actual sale might not result in your being charged with a felony when it comes to marijuana. Delivery of up to a quarter ounce of marijuana to another person is considered to be a gift instead of a sale. It is a class B misdemeanor punishable by up to six months in jail and a $2,000 fine.

Selling the same quantity of marijuana elevates the charge to a class A misdemeanor punishable by up to a year in jail and a fine up to $4,000. You might try to say it was a gift intended for the persona use of the other person, but the exchange of money makes your intent clear.

Felony Drug Charge Defenses

When larger quantities of drugs raise the charges to felonies, the most common defense strategy is to attack the legality of the search and seizure conducted by the police. The Fourth Amendment to the U.S. Constitution protects you from unreasonable searches and seizures conducted without a warrant or without probable cause.

There are, however, other drug defenses that may be used in appropriate cases. These defenses include:

  • Denying that the drugs belonged to you: Police might charge everyone in a motor vehicle or in an apartment with possession of drugs that are found. Although police are allowed to do this, a Houston felony drug defense attorney might exploit the fact that evidence does not point directly at you.
  • Laboratory reports identifying the drugs: Police laboratories test hundreds of samples that are turned over to them after an arrest is made. Mistakes in identifying the drugs can happen.
  • Missing evidence: The loss of the drugs seized by the police could lead to dismissal of a felony drug charge. Although it does not happen often, evidence has been known to get lost or misplaced while held awaiting trial.

Besides knowing how to identify possible defenses and use them to your benefit, a Houston felony drug attorney knows how to use them to your benefit.


If you’ve been charged with a drug-related felony, trust us to help. Contact the Law Offices of Billy Skinner to preserve your rights. You can also fill out our online case evaluation form.

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Categories: Drug Crimes