POSS CS PG 1/1-B 1g to 4g — What Texas Charges and Penalties You Face

Why the 1-to-4 gram tier is the most contested

The 1-gram floor and 4-gram ceiling of this tier are not arbitrary — they reflect a legislative judgment that this is the band where personal use shades into something more. Above 4 grams, prosecutors charge as second-degree felony with a presumption of prison. Below 1 gram, the case is state jail with a presumption of probation. In between — 1 to 4 grams — the prosecutor has discretion, and that discretion is where defense work earns its keep.

The aggregate weight rule (Health & Safety Code §481.002(5)) means the substance plus all "adulterants and dilutants" gets weighed together. A baggie weighing 1.6 grams might contain 0.4 grams of pure cocaine and 1.2 grams of cutting agent — and you are charged with 1.6 grams. Texas case law (Melton v. State, 120 S.W.3d 339) has upheld this approach, but it leaves room for argument on what counts as a true adulterant versus inert packaging.

What punishment realistically looks like

Statutory range: 2 to 10 years TDCJ, up to $10,000 fine.

Realistic outcomes for a first-time defendant in this tier, in approximate order of likelihood:

• Deferred adjudication probation — 4 to 10 years on the term, with the same conditions as a regular probation but no conviction if completed. Eligible for nondisclosure under Government Code §411.0728 after 5 years from discharge.
• Straight probation — 2 to 10 year term with conditions; the conviction is final.
• Reduction to state jail felony — if defense pulls weight under 1 gram on retest, the case shifts to §481.115(b).
• Plea to a lesser charge — sometimes possession of paraphernalia (Class C misdemeanor) or attempted possession in extreme cases.
• TDCJ sentence — reserved for cases with prior felony history, distribution indicia, or aggravating features.

For first-time defendants with employment, family, and no priors, prison is the worst-case scenario, not the default. The defense narrative — presented before the first announcement — is what determines which outcome is realistic.

Where weight challenges win

Pulling weight from above 1 gram down to under 1 gram converts the entire case — from third-degree felony (2-10 TDCJ) to state jail felony (180 days-2 years state jail). The legal universe shifts. Three places the weight argument lives:

Pure-substance weighing. Where the substance is pills (Adderall,), the weight rule is different from powder. Pills are weighed including binders and coatings under Texas law, but if the prescription bottle accounts for some of the pills, those come out of the weighed total. Same for pills that test as something different from what they appear to be.

Container and packaging. Glassine baggies, foil, paper folds — everything has weight. The lab is supposed to weigh substance only, but in field weight reports done at the scene, packaging is sometimes included. The discrepancy can be the difference between tiers.

Drying and degradation. Substances seized wet and weighed wet often weigh substantially less when retested dry. Cocaine "rocks" lose mass over time. A retest 60-90 days post-seizure sometimes shows materially different weight.

The K-9 problem

Most third-degree drug cases in this weight tier come from traffic stops where a K-9 was deployed. The legal analysis under Rodriguez v. United States (2015) is straightforward: the dog sniff itself is permissible during a lawful stop, but extending the stop to wait for the dog without independent reasonable suspicion is not.

The factual fight is over the timeline. Body-cam footage usually shows:

1. Initial stop time (often a turn signal violation or lane infraction)
2. License/registration retrieval
3. Time the citation was completed (or could have been completed)
4. Time the K-9 arrived
5. Time the K-9 alerted

If the gap between citation-complete and K-9-arrival is more than de minimis — without separately developed reasonable suspicion — the stop was unlawfully extended and everything after is inadmissible. Texas appellate courts have suppressed evidence on extensions as short as 4-7 minutes when no independent suspicion was developed. State v. Cortez, 543 S.W.3d 198 (Tex. Crim. App. 2018), is the leading Texas authority.

Reliability of the dog itself is a separate fight. Florida v. Harris (2013) established the federal standard, but Texas courts apply it case-by-case. Public information requests for the dog's training records, deployment logs, and false-positive history are routine in these cases.

The defense package before first announcement

For third-degree felony PG 1 cases, the prosecutor's posture at the first court setting is largely shaped by what the defense puts in front of them in the first 30 days. A "defense package" we typically deliver before the first announcement contains:

• Employment verification — current job, position, length of tenure, supervisor contact (with permission)
• Substance-abuse evaluation — LCDC or LPC evaluation, with treatment plan if recommended
• Family circumstances letter — dependents, caregiving obligations, community ties
• Suppression memo — legal analysis of the stop, search, and any custodial statements
• Mitigation history — military service, education, professional history, certifications

This package does not get filed publicly. It goes directly to the assistant district attorney handling the case as a private memo. The goal is to move the prosecutor's opening offer from "TDCJ" to "deferred adjudication" before any court hearing, and to set up the suppression motion as the alternative if the prosecutor doesn't move.