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TOP 10 THINGS TO KNOW WHEN DEFENDING TEXAS CHARGES OF

MANUFACTURE OR DELIVERY OF AN ILLEGAL SUBSTANCE
By Michael Lowe, Esq.
As a Texas Board Certified Criminal Defense lawyer who has defended individuals facing drug
crime charges throughout the State of Texas for over 20 years, I have come to believe that both
criminal lawyers and their clients would be better served if they were to be aware of these ten
key components of defending against charges involving manufacture or delivery of an illegal
substance.
In my professional opinion, based upon my perspective and experience, these are the ten things
that anyone facing a manufacture or delivery charge needs to know:
1. What is the charge?
The first thing that happens when someone gets arrested on a larger state drug case is they see
their charge in the jail. Oftentimes that charge is listed as Manufacture or Delivery of a
Substance in penalty Group 1, 1-A, 2, 2-A, 3 or 4.
First, there is no such criminal charge in
Texas. This name is simply the title of article
481 of the Texas Health and Safety Code
applicable to the penalty group containing the
substance for which the police believe you
possessed. For example, section 481.112 of
the Texas Health and Safety Code is Entitled
Manufacture or Delivery of Controlled
Substance in Penalty Group 1.
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This is the most common section since it refers to Methamphetamine, Cocaine and Heroin and
other group 1 substances. However, the official charge will be determined later on before your
case goes to Grand Jury. At that time, the District Attorney will most likely charge you with
Possession with Intent to Deliver, Delivery or Manufacturing a Controlled Substance.
Any of these 3 charges carries the same range of punishment as the others which varies
depending on the total weight. The final weight is usually determined after the lab result
comes back. However, you can challenge the result if you dont believe the lab result is
accurate.
2. Range of Punishment.
This may seem obvious but youd be surprised. I once appealed a large drug case from Collin
County District Court up to the Dallas Court of Appeals. My claim on appeal was for ineffective
assistance of counsel because the Senior Visiting Judge, the Collin County District Attorney and
the veteran criminal defense lawyer and past president of the Dallas Criminal Defense Lawyers
Association didnt know that the Defendant was actually eligible for probation for the charge of
Possession of 400 grams or more of gamma hydroxybutyric (GHB) all the up to right before
punishment.
The jury whom eventually sentenced the Defendant was told the Defendant couldnt get
probation. Just so you dont think I am making this up, Ive included an excerpt from Molly
Francis memorandum opinion in my online digital library.
The range of punishment can get much more complicated in this case when Drug Free Zones,
enhancement paragraphs and even deadly weapons are involved. For example, a 481.134 drug
free zone can increase the level of penalty by one level for most charges and one increased the
minimum on first degree from 5-99 or Life to 10-99 or Life. A drug free zone also requires that
the judge run the sentence consecutively with all other sentences.
This means the sentence on the drug free zone case will be stacked on top of all other cases.
Finally, a drug free zone finding affects the parole rights in a major way. Texas Government
Code 508.1459(e) requires that the first five years served in prison are served as ACTUAL
CALENDAR TIME. If the prison sentence is less than five years, parole is NOT AVAILABLE.
This makes for a pretty big difference when you consider the normal parole rules allow for
parole in drug cases to normally start at only one-quarter of the sentence. You need a lawyer
thats handled a lot of these cases before and really feels comfortable with them. I used to be
an Organized Crime Prosecutor at the Dallas County DAs office, so Ive tried more of these
types of cases than most lawyers have tried in their entire careers.
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3. Dont Snitch!
I have known quite a few local and DPS narcotics detectives both as a former Organized Crime
Prosecutor and as a Defense Lawyer. I know that these detectives are trained in the art of
deception. They are professional liars.
They will tell you whatever they think you want to hear. They will play on your desperation
because they know you just got arrested and you think your life is over if you dont play ball.
Dont do it! First, the detective has no authority to make any deals with the DAs office. It will
be up to the District Attorney assigned to your case to decide what to do with the case. The
detective has a say, of course, but you will never get what you want without the participation of
the District Attorneys Office in your county.
For example, the Dallas County District Attorneys Office will not even recognize any
cooperation youve done unless they have explicitly approved of it and their procedures are
followed. Most other DAs offices are the same.
Does this mean you should never cooperate with the State? No. You need a lawyer to advise
you first. You need to know whether you will get a better outcome fighting your case or
cooperating with the State. You cant know that unless your lawyer has the discovery and has
done their homework.
This takes a lot of time, effort and experience. I have handled many cases where the client
wanted to cooperate and I ended up getting their case dismissed anyway later on at the
courthouse without the need to cooperate. If you dont NEED to cooperate, dont cooperate!
Its that simple.
4. Get the Search Warrant Affidavit.
Your house got raided and the police left a search warrant. You call your friendly attorney and
he reviews the warrant and says its good. Wrong! All search warrants have two parts. The
search warrant and attached to the back of the search warrant is the probable cause affidavit.
Remember, the U.S. and Texas Constitutions both require that all search warrants be supported
by a verified affidavit stating probable causer for the search of things at a particular place. You
cannot evaluate your case without the affidavit.
Search warrant affidavits are generally public records. It is possible for the State of Texas to seal
the affidavit pursuant to Texas Code of Criminal Procedure 18.011, but the State can move the
District Court to seal the affidavit for up to 31 days with only one additional extension for
another 30 days. Thats it.
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Search warrant affidavits are fertile ground for a variety of defenses available on Possession
With Intent to Deliver cases. I have successfully challenged them under a number of different
grounds in State Court.
One common technique I like to use deals with snitches. Police Officers are inherently lazy.
Lets face it; they are government workers. They rely heavily on snitches instead of doing the
hard work themselves. When they rely on informants, they try to keep their information
confidential so they can keep juicin the informant for more and more information until the
juice runs dry. The last thing the Detective wants is for the informant to get found out.
Detectives also NEED to demonstrate at least the informants reliability and credibility. They
typically state that the informant has been previously used on many prior occasions and their
information has ALWAYS proven to be reliable and credible. Good detectives are trained to
conduct credibility buys. This means they have get at least one or two successful controlled
substance buys from the informant under cover to establish that the information is really good.
However, detectives are REALLY lazy. Sometimes they skip this step because it takes too long
and requires too much paperwork. This is where your lawyer can make or break your case. You
NEED to find out who the snitch is.
5. Discover the Informants Identity.
Easier said than done, right? Not really. Most of the time, you know who the snitch is. In these
cases, you NEVER want to tell anyone that you really know who the snitch is. If the State finds
out you know, they wont need to protect the informants identity which can be worth a lot
later on at the courthouse.
Giving up the informant can be the difference between a 1
st
degree felony Possession With
Intent to Deliver Case and a Misdemeanor case. I know because Ive done it many times
before.
What if you dont know who the snitch is? Your lawyer needs to somehow make the snitch a
fact witness to your case. Texas Rule of Evidence 508 permits the court to conduct an in
camera hearing based on testimony or affidavit to determine whether theres a reasonable
probability the informant can give testimony on facts concerning the guilt or innocence of the
defendant.
As you can tell, there is some room for a smart lawyer to fit the informants testimony into this
exception. Of course, the testimony has to bear upon the issue of guilt. This means that the
informant should be able to give some kind of testimony concerning whether or not the
Defendant was actually in possession of the controlled substance, manufactured the controlled
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substance or delivered the controlled substance on the day in question. This will vary from case
to case, but its always worth a look.
6. Know when your case may go Federal.
Texas state court usually affords a defendant many more rights than are typically available in
federal court. I know we hear the media always criticizing Texas criminal courts for railroading
defendants (usually they have court-appointed lawyers). But the truth is different if your
lawyer is aggressive and knows how to work the system.
You will be entitled to an examining trial in Texas state court prior to indictment. The
examining trial is probable cause hearing where your lawyer has the right to cross-examine the
States witness.
Sometimes, the examining trial can be used to subpoena additional state witnesses and get
their testimony on the record very early in an investigation. The DAs office is mostly not
prepared for these hearings. An experienced defense lawyer can ruin their case in about 15
minutes.
Once the testimony is on the record, its pretty hard to change it later at a trial or motion to
suppress in federal court. Even if the case never goes federal, these pre-indictment
proceedings can be very valuable and the testimony can be used in exactly the same way later
on at a motion to suppress or a trial.
7. Fully understand all search, detention and arrest issues.
This is a very complex area of law. So, I am not going to write very much about it. However,
your lawyer needs to be up to date on all relevant detention, search, and arrest case law.
8. Beware of the slow plea!
What is a slow plea? Texas is one of the few states in the United States that give the
defendant the right to be sentenced by his peers.
Jury sentencing can be a huge advantage for the defendant, especially in drug cases. There are
two basic advantages to jury sentencing: (1) Juries can be more sympathetic to drug addiction
problems and (2) the so called spillover effect.
Texas judges hear it every day. A defendant claims hes changed and needs help from the court
to get straight with drugs. Over time, judge becomes hardened to these pleas. The truth is
many judges arent even paying attention when the defendant is addressing the court or worse
they are texting the prosecutor pointers on how to better prosecute their case.
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The bigger reason to avoid the slow plea is the spillover effect. I have tried more than 150 jury
trials. Ive honestly stopped counting. Any experience criminal defense lawyer will tell you that
juries like to make deals so they can go home. We see this happen all of the time.
Here is the situation. Lets say you have 6 jurors voting guilty and 6 voting not guilty. The six
voting guilty decide to make a deal: If you not-guilty voters change your vote, us guilty voters
will agree to give this dude probation in sentencing.
Now this is not supposed to happen, but it DOES happen. It also happens in a variety of other
ways as well. This is the spillover effect and it mostly helps the defendant.
However, sometimes it hurts the defendant if he/she gets on the witness stand and offends the
jury during guilt innocence. I have NEVER defended a case using a slow plea in any way. I
dont expect I ever will.
There is almost always something to fight over no matter how overwhelming the evidence may
seem. Even if its trivial, the smart lawyer knows how to fade the heat from the jury.
Bottom line, dont do a slow plea on a delivery, manufacturing or possession with intent to
deliver case. Its a bad strategy.
As a former prosecutor, one of the games my former colleagues and I used to play is to drop a
Possession With Intent to Deliver Penalty Group I controlled substance 400 grams or more case,
a 15 to Life case, down to a 4 to 200 grams Possession With Intent to Deliver, a 5 to Life case, in
exchange for a plea of guilty to the jury (slow plea).
To the lazy or inexperienced defense lawyer, this may sound like a great deal, especially if the
Defendant is probation eligible. Why? Texas Code of Criminal Procedure article 42.12 only
permits a jury to grant community supervision (aka Probation) when the sentence is 10 years or
less. This means that the deal would make an otherwise ineligible Defendant, eligible for
probation.
However, the spillover effect is now gone. The jury has NO DOUBT that the defendant is really
guilty and can be primed to give out a Life sentence. I have seen more Life sentences handed
out on drug cases after a slow plea than any other type of defense. Watch out for the slow
plea!
9. Find a lawyer that has tried many drugs cases.
This should be obvious but most lawyers have never even tried a higher level drug trafficking
offense. These cases are very different from assaults or other violent crimes. I have tried more
than 50 of these types of cases. I have learned a lot and can usually give my clients the best
advice about how to handle their case.
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10. Dont panic; plan it.
It takes a lot of time to prepare these cases. I can and will answer all of your questions over the
phone but dont ask me to make any miraculous guarantees during a five minute phone call. Ill
leave that up to the amateurs. Just look at my track record, experience, and qualifications. You
have all the answers you need.
About the Author:
Michael Lowe is a Texas trial attorney practicing criminal defense law in the Dallas area for
many years after first serving as a felony prosecutor for the Office of the District Attorney for
Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr. Lowe has
tried to verdict over 150 criminal trials so far in the state and federal systems.