A teenager in Round Rock, Texas faces a possible life sentence for an alleged marijuana offense because of a technicality in the statute defining the offense. The man is accused of making and selling pot brownies using hash oil under the Texas Health and Safety Code. Prosecutors claim that they can use the weight of the brownies themselves, not just the hash oil, in determining the severity of the charged offense. They charged the man with a first-degree felony, punishable by up to life in prison, even though the alleged controlled substance would likely constitute a tiny percentage of the total weight of the brownies.
During a search of the defendant’s apartment in April 2014, police reportedly found 1.5 pounds of brownies laced with hash oil, one pound of marijuana, drug paraphernalia, cash, and baggies containing additional marijuana and hash oil. The defendant was arrested and later released on a $30,000 bond. Prosecutors charged the defendant with manufacture or delivery of a controlled substance with an aggregate weight of at least four grams but less than 400 grams, a first-degree felony. Four hundred grams is equivalent to about 0.88 pounds.
The hash oil is the main concern in the case. While marijuana has its own category of punishments under Texas law, substances derived from it are included with other, more serious controlled substances. “Resinous extractives of Cannabis,” including hash oil, are included in Penalty Group 2, along with various hallucinogens like mescaline and psilocybin. Tex. Health & Safety Code § 481.103(a)(1).
State law allows the inclusion of “adulterants or dilutants” in the aggregate weight of controlled substances. Tex. Health & Safety Code § 481.113(d). Prosecutors in Williamson County have interpreted this as allowing the inclusion of the other brownie ingredients, such as cocoa powder and sugar, in its “aggregate weight” calculation. They have openly boasted that one gram of hash oil combined with five hundred grams of brownie mix and other ingredients allows them to take “a low-level felony and [make] it into a first degree felony.” It is not clear how much actual hash oil police claim to have found, but it is certainly less than 1.5 pounds.
According to Williamson County court records, the county attorney has charged the defendant with a first-degree felony for an aggregate weight of not more than 400 grams. A first-degree felony is punishable by life imprisonment or a prison sentence of at least five years up to a maximum of 99 years. Tex. Pen. Code § 12.32. It could also result in a fine of up to $10,000.
It is worth noting that the defendant would face a significantly lesser maximum sentence if he were charged with delivery of marijuana instead of hash oil. Delivery of marijuana in an amount greater than one-fourth ounce, up to a maximum of five pounds, or about 2,268 grams, is a state jail felony, punishable by 180 days to two years in state jail. Tex. Health & Safety Code § 481.120(b)(3); Tex. Pen. Code § 12.35.
People facing charges for an alleged criminal offense should consult an experienced criminal defense attorney to help them understand their rights and prepare a strong defense. For over 20 years, criminal defense attorney Michael J. Brown has represented clients in west Texas in criminal matters. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to discuss your case.
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