Understanding Texas Penal Code § 1.07(a)(39): “Possession” in Texas Criminal Law
In Texas criminal law, the concept of “possession” plays a vital role in prosecuting a range of offenses, from drug crimes to weapons charges. Defined under Texas Penal Code § 1.07(a)(39), “possession” means the actual care, custody, control, or management of an item. This definition is deliberately broad, allowing prosecutors to encompass a wide variety of factual scenarios under its scope.
Legal Definition and Application
Under § 1.07(a)(39), Texas law does not require ownership for possession—mere control over or access to the item is enough. This definition supports the prosecution of individuals who may not own contraband but nonetheless exercise control over it.
This concept splits possession into two primary types:
- Actual Possession: When the item is on the person (e.g., in a pocket or hand).
- Constructive Possession: When the item is not on the person but is within their control or accessible (e.g., in a car’s glove compartment or under a bed in one’s house).
Case Law Interpreting “Possession”
Several Texas appellate decisions have clarified how courts interpret § 1.07(a)(39) in practice:
- Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995): The Court of Criminal Appeals emphasized that multiple people can jointly possess contraband. The court set out “affirmative links”—factors that tie a defendant to the contraband—to establish constructive possession.
- Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006): This case reiterated that the State must show more than mere presence at a location with contraband. The court listed indicators such as the defendant’s proximity to the drugs, whether the drugs were in plain view, and whether the defendant was under the influence at the time.
- Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005): The court held that mere presence at a scene where drugs are found, without more, is insufficient to establish possession. This reaffirms that possession must be knowing and voluntary.
Offenses Where Possession is Key
- Drug Possession (Texas Health & Safety Code § 481.115 – § 481.121): Whether for marijuana or controlled substances, prosecutors must prove the defendant knowingly possessed the drugs. The “affirmative links” test from Evans and Brown is routinely applied here.
- Unlawful Possession of a Firearm (Penal Code § 46.04): A convicted felon found near a firearm may be charged if affirmative links show control over the weapon.
- Theft (Penal Code § 31.03): Possession of stolen property can support a theft charge, especially when combined with evidence showing the defendant knew the property was stolen.
Conclusion
Texas Penal Code § 1.07(a)(39) provides the foundational definition of “possession” that underlies many criminal prosecutions. Understanding the distinction between actual and constructive possession—and the legal requirement of affirmative links—is critical for defense and prosecution alike. Courts carefully analyze each case’s facts to determine whether the statutory definition of possession is satisfied, ensuring that mere proximity or presence is not enough without evidence of control or knowledge.
