Answer to Client Question Regarding Bail and the Manufacture or Delivery of a Controlled Substance in Penalty Group 1

controlled substance, bail, jail, indictment

Posted on: February 7, 2014
This is what can happen if you are charged with the manufacture or delivery of a controlled substance in Penalty Group 1.  Penalty Group 1 covers the biggies, like heroin, meth, cocaine, mdma, etc.  This was originally the partial contents of an e-mail about what her husband is charged with and facing.  You should note that if you have ever received a final conviction for a felony, any future felonies can be enhanced.  
 
Sec. 481.112.  OFFENSE: MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1. 

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.
(b)  An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than one gram.
(c)  An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
(d)  An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.
(e)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
(f)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
 
This is the standard punishment with a First Degree Felony:
 

		

Sec. 12.32. FIRST DEGREE FELONY PUNISHMENT. (a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.


		

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.]

 

This is the punishment for a first degree felony when the subject has already been sent to prison and received a final conviction for a felony IN ANY STATE INCLUDING STATES OUTSIDE OF TEXAS. This is why D's bond is so high. He is looking at 15 to life or 99. Without something really ultra compelling the judge will not lower that bond. So far I only have D's story and a brief conversation with the chief prosecutor.  Full discovery is coming soon.


		

 

(c)(1) If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

 
This is the section that allows the state to hold the defendant for 90 days on a felony prior to indictment:
 

		

Art. 17.151. RELEASE BECAUSE OF DELAY.

Sec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within:


		

(1) 90 days from the commencement of his detention if he is accused of a felony;

Below are the requirements for a bail reduction:

 

You can request an examining trial to try and speed up the process but all that usually does in this part of Texas is make the prosecutor immediately take the case to the grand jury.

 

Below is information regarding the bail process in Texas.

 

		

Art. 17.091. NOTICE OF CERTAIN BAIL REDUCTIONS REQUIRED. Before a judge or magistrate reduces the amount of bail set for a defendant charged with an offense listed in Section 3g, Article 42.12, an offense described by Article 62.001(5), or an offense under Section 20A.03, Penal Code, the judge or magistrate shall provide:


		

(1) to the attorney representing the state, reasonable notice of the proposed bail reduction; and


		

(2) on request of the attorney representing the state or the defendant or the defendant's counsel, an opportunity for a hearing concerning the proposed bail reduction.


		
 

			

Art. 17.15. RULES FOR FIXING AMOUNT OF BAIL. The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:


			

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.


			

2. The power to require bail is not to be so used as to make it an instrument of oppression.


			

3. The nature of the offense and the circumstances under which it was committed are to be considered.


			

4. The ability to make bail is to be regarded, and proof may be taken upon this point.


			

5. The future safety of a victim of the alleged offense and the community shall be considered.


			

 

Basically, this means we must show substantial ties to the community, we must show that the nature of the offense is not as serious as it sounds (He has been upgraded to a 15 or life or 99 felony), we have to show he is unlikely commit such an offense while he is released (has a prior drug charge), and finally we have to show that someone has tried to make bail on his behalf and failed because they did not have the funds. You need to contact at least three bondsman, write down their name, contact information, and make sure they are on the Caldwell County Bail Bonds board.


			

 

Until I get more information from the prosecution NOTHING IS GOING TO HAPPEN. I can't argue that it is not as serious as it sounds without seeing his police reports. Moreover, it is questionable as to whether he has sufficient ties to the community or the ability to maintain secure employment while he is released.

 

I generally don't like to give all of this information out to my clients this early in the case because it can make them lose hope. Until I get an official offer from the prosecutor, I TRY TO FIND A WAY AROUND all of this, but this is the law.

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