So far when I have written about drug charges, I have largely focused on the most common drug charge—“Possession of a controlled substance.” But, there is a separate offense detailed in the Health and Safety Code that makes it illegal to “knowingly manufacture, deliver, or possess with the intent to deliver” a controlled substance. H&SC 481.112, H&SC 481.1121, H&SC 481.113, and H&SC 481.114. These types of charges are generally referred to as manufacture/delivery charges, or man/del charges, and carry higher levels of punishment than mere possession. As an additional note, if a child younger than 18 years of age is present during the manufacture, punishment is enhanced. H&SC 481.1122.
There is an obvious question at the outset when manufacture/delivery charges are considered: can a person be charged with possession of heroin AND manufacture/delivery for a single quantity of heroin? No, as this would violate the accused’s constitutional right against double jeopardy (i.e. right to be free of being placed in peril for the same offense twice.) Weinn v. State, 326 S.W.3d 189, 191 (Tex.Crim.App. 2010).
What Is Manufacture/Delivery?
What types of acts constitute “manufacture, delivery, or possession with intent to deliver”? The Texas Court of Criminal Appeals has identified at least five ways that the offense can be committed: to knowingly (1) manufacture or make drugs; (2) through an offer to sell drugs; (3) possessing drugs with the intent to deliver; (4) actual delivery or transfer; or (5) constructive transfer or delivery. Lopez v. State, 108 S.W.3d 293, 297 (Tex.Crim.App. 2003). Having a drug transaction interrupted by police is not a defense to a manufacture/delivery charge, nor is the fact that in the transaction one party was an undercover cop or a snitch.
How Is Manufacture/Delivery Substantiated?
“Possession with intent to deliver” can be established, for example, by finding several bagged quantities of a controlled substance in the accused’s pocket. This makes sense: it is tough to say the drugs are for “personal use” when you have eight, 1 gram baggies of a methamphetamine on you. Additionally, a jury might infer that the accused possessed drugs with the intent to deliver based on the quantity of drugs found or recovered from the accused. Lopez, 108 S.W.3d. Other factors—the presence of scales, large amounts of cash, and such—can be used to prove up a manufacture/delivery charge.
Cops Love Your Cellphone, Especially the “Deleted” Materials
More often than not, manufacture/delivery charges can be proved up by cellphone records. Routinely, police will seize the accused’s cellphone or laptop, obtain a warrant to search the phone/computer, and look for texts, lists (of inventory, distribution, accounts receivable, etc.) So naturally, people who sell drugs have resorted to a sort of coded communication. Codes can describe the substance being sold (“fire”, “bars”, “H”, “rock”) or, the amount of the substance being sold (“zip”, “dime”, “teener” or “teenager”, “deck”). Sometimes, the code not only describes what substance is being discussed, but also the amount—for example, a “gate” generally refers to 3.5 grams of heroin, whereas an “eighth” or “eight ball” generally refers to 3.5 grams of cocaine or methamphetamine.
You Can Never Delete Anything Permanently From a Cellphone
A note here about cellphone data. All those texts, images, browsing history, and videos that you deleted six months ago that you think are gone forever? They are not. A “phone dump” (pulling all the data off a cellphone, or requesting the records of all data from the carrier) can, and routinely does, pull deleted material, even after the phone has been reset to factory settings.
The question is only how much deleted information the police can get. The answer to this question doesn’t depend so much on the limitations of technology as it does the generosity of the cellphone service provider. AT&T is the worst provider to have in this regard, as it provides police with cellphone records and deleted materials going back up to 8 months or so.
But this only happens on felony cases, right? Wrong. I once received approximately 700 pages of recovered cell phone data (including deleted materials) on a misdemeanor drug case that AT&T had sent the police. The data went back over six months and included deleted materials.
Talking to Detectives…Just Don’t
It is safe to bet that if the police find several different quantities of a drug, or several different kinds of drugs, on a person, they will want to talk to the person. This is a trap. What they want is to saddle the person with a manufacture/delivery charge, and they want the person to provide them with the information to do it. Do not talk to detectives, the police, or anyone connected with law enforcement to “explain” that the drugs they found in your room or on your person are “not yours.” Do not talk to them for any reason. They are fishing for information to charge you with manufacture/delivery.
Instead, you should be calling a lawyer as soon as the police find any drugs on you, ask you about drugs, or anything that even remotely suggests they think you are connected with criminal behavior. Yes, the police will tell you that they just want to talk to you to get this “sorted out.” This is a lie. Yes, the police will also tell you that if you come in and talk to them, you might not be charged with a drug offense. This is also a lie. Police can, and frequently do, lie to suspects.
The bottom line is this: drug charges tend to snowball: an arrest for possession turns into a felony man/del charge a cellphone search later; the accused goes in to speak to with the detective to explain how the accused is not selling drugs, and suddenly, a warrant for the accused’s house is issued and a search is executed. And so on and so on. You need to talk to a lawyer the minute police become involved.