Texas THC Vape Laws Explained: Delta-8, Delta-9, Hemp, Marijuana & Criminal Charges
Texas THC Vape Laws Explained: Can You Be Arrested for a Delta-8 or THC Vape Pen in Texas?
By Andrew Herreth & Andrew Decker | Andrew & Andrew on Texas Criminal Defense
Can You Really Be Arrested for a THC Vape Purchased at a Smoke Shop?
Imagine walking into a brightly lit smoke shop in Texas.
The products are displayed behind glass cases. Bright signs advertise Delta-8, Delta-9, THC, CBD, and hemp-derived products. Employees assure customers the products are legal. You pay with a credit card, receive a printed receipt, and leave believing you've done nothing illegal.
A few days later, you're stopped for a traffic violation.
An officer discovers the vape cartridge.
It gets sent to a laboratory.
Weeks later, you're charged with Felony Possession of a Controlled Substance.
If that sounds impossible, it isn't.
As Texas criminal defense attorneys, we've represented clients who genuinely believed they were purchasing legal products only to discover that the contents of their vape cartridge subjected them to serious felony charges. Many of these clients had no criminal history. Many were college students. Some were teenagers. Nearly all were shocked to learn that something sold openly in Texas could lead to an arrest.
The intersection between Texas hemp laws, marijuana laws, THC concentrates, and vape products has become one of the most confusing areas of Texas criminal law.
In this article, we'll explain:
Why THC vape cartridges are treated differently than marijuana.
Why products sold legally can still lead to felony charges.
Whether the smell of marijuana still gives police probable cause to search your vehicle.
The difference between Delta-8, Delta-9, CBD, and hemp.
Common defenses that may arise in THC possession cases.
Why many prosecutors are willing to negotiate these cases.
What changes Texas lawmakers may need to make in the future.
If you're facing a THC-related charge—or you're simply trying to understand Texas law—this guide will help explain one of the fastest-changing areas of criminal law.
Why Texas THC Laws Are So Confusing
The confusion surrounding THC products isn't accidental.
It's the result of several different laws evolving at different times without perfectly aligning.
Over the past several years, Texas has seen:
legalization of hemp production,
rapid growth of CBD businesses,
expansion of Delta-8 and Delta-10 products,
changing federal regulations,
evolving court decisions,
inconsistent laboratory testing,
and rapidly changing public attitudes toward marijuana.
Meanwhile, Texas criminal statutes largely remained unchanged.
The result is a legal landscape where consumers often believe they are purchasing legal products while law enforcement agencies may view those same products very differently.
As we discuss in this episode, this area of law continues to evolve and will almost certainly look different after future legislative sessions.
Hemp, Marijuana, Delta-8 and Delta-9: Understanding the Difference
Many people use these terms interchangeably.
Legally, they are not the same.
Hemp
Under both federal and Texas law, hemp generally refers to cannabis containing no more than 0.3% Delta-9 THC by dry weight.
Texas created an extensive regulatory system governing hemp cultivation, processing, and retail sales. Businesses producing compliant hemp products must satisfy numerous regulatory requirements before selling them to consumers.
Marijuana
Marijuana remains illegal for recreational use in Texas.
Possession of marijuana is prosecuted under a completely different statutory scheme than concentrated THC products.
Ironically, this distinction often surprises defendants.
Possessing a small amount of marijuana flower may expose someone to a misdemeanor.
Possessing a tiny THC vape cartridge can expose someone to a felony.
Delta-8 THC
Delta-8 exploded in popularity because many retailers believed it fell outside Texas criminal prohibitions.
The legal status of Delta-8 has been the subject of ongoing litigation.
As discussed in the podcast, the Texas Department of State Health Services attempted to classify Delta-8 as an illegal controlled substance. That effort was challenged in court, resulting in significant litigation over whether the agency possessed authority to criminalize products beyond legislative authorization.
The legal landscape continues evolving, making it essential for attorneys to stay current on recent appellate decisions.
THC Concentrates
THC vape cartridges typically contain concentrated THC oils.
Unlike traditional marijuana flower, these concentrated products are frequently prosecuted as Penalty Group 2 controlled substances.
This means an amount that easily fits inside a pocket may nevertheless constitute a felony offense.
Many consumers simply do not appreciate this distinction until they find themselves under arrest.
Why Someone Can Buy a Product Legally and Still Be Charged with a Felony
This is probably the most frustrating aspect of these cases.
We've seen clients purchase products:
from established retail stores,
using credit cards,
while paying sales tax,
from businesses openly advertising THC products.
Then those same clients later face felony prosecution after laboratory testing.
Naturally, they ask:
"If I bought it legally, how can I be charged with possessing an illegal substance?"
It's a fair question.
Unfortunately, criminal law and retail regulation don't always move together.
A product's presence on a retail shelf does not necessarily determine how prosecutors or crime laboratories classify it later.
That's why these cases frequently involve factual disputes over:
laboratory testing,
THC concentration,
labeling,
manufacturing,
and what the defendant reasonably believed they possessed.
Those issues often become central to plea negotiations—or trial.
Can Police Still Search Your Car Because They Smell Marijuana?
One of the biggest questions defense attorneys have wrestled with since hemp legalization is whether the odor of marijuana still creates probable cause.
After all, if legal hemp and illegal marijuana smell virtually identical, shouldn't the smell alone lose evidentiary value?
Texas courts have generally answered:
Not necessarily.
As discussed in this episode, appellate decisions indicate that the odor of marijuana may still contribute to probable cause when considered alongside the totality of the circumstances.
That means officers frequently point to additional observations such as:
nervous behavior,
inconsistent answers,
admissions of prior marijuana use,
visible paraphernalia,
suspicious packaging,
or other factors supporting probable cause.
For defense attorneys, this means suppression litigation remains highly fact-specific.
A report stating only:
"I smelled marijuana."
may present a different legal issue than a report documenting numerous additional observations.
Every case should be evaluated individually.
The "Knowingly" Requirement May Become the Most Important Issue
Most criminal statutes require more than mere possession.
They require that possession be knowing or intentional.
That distinction becomes particularly important when someone purchases what they genuinely believed was a lawful product from a legitimate Texas retailer.
Consider two hypothetical defendants.
Defendant A
Purchases a vape cartridge from a local smoke shop.
Receives a receipt.
Believes the product complies with Texas law.
Has never before been arrested.
Defendant B
Purchases an unlabeled THC cartridge from an acquaintance in a parking lot.
No packaging.
No receipt.
No explanation of its contents.
Although both defendants possess similar cartridges, their knowledge—and what a jury might reasonably infer—could be very different.
That's why the circumstances surrounding acquisition frequently become one of the most important facts in these cases.
Defense counsel should investigate:
Where was the product purchased?
Was it sold openly?
Was it marketed as legal?
Did the client retain receipts?
Was the product professionally packaged?
What representations were made by the retailer?
Those facts may significantly influence plea negotiations and, in some cases, trial strategy.
Why Are THC Vape Pens Felonies in Texas?
One of the biggest misconceptions we encounter is the belief that THC vape cartridges are treated the same as marijuana.
They are not.
In Texas, marijuana and concentrated THC products are prosecuted under different sections of the law.
That distinction surprises almost every client we meet.
Someone may possess:
a small bag of marijuana flower, or
a tiny vape cartridge containing THC concentrate.
The marijuana might be filed as a misdemeanor.
The vape cartridge—even though it contains only a small amount of liquid—may be filed as a State Jail Felony because concentrated THC is generally classified as a Penalty Group 2 controlled substance.
From a policy standpoint, many defense attorneys question whether this distinction still makes sense.
As discussed during the podcast, the law has changed dramatically regarding hemp and cannabis products, yet the criminal statutes governing THC concentrates have not kept pace. That disconnect leaves prosecutors, judges, defense attorneys, and juries trying to apply older criminal laws to products that are now openly marketed throughout Texas.
Whether the Legislature ultimately changes how THC concentrates are classified remains to be seen, but for now, Texans should understand that vape cartridges often carry significantly greater criminal consequences than they expect.
Why These Cases Often Involve Young Adults
One trend we've noticed over the past several years is the age of the people charged.
Many THC vape cases involve:
High school students
College students
Young adults under twenty-five
Why?
Because this demographic is most likely to purchase vape products, experiment with THC products marketed online, or assume that products sold in retail stores must be legal.
Unfortunately, that assumption can have life-changing consequences.
For minors and college students, these cases may also involve:
Drug-Free Zone enhancements
School disciplinary proceedings
Scholarship concerns
Professional licensing issues
Immigration consequences
Difficulty obtaining employment
A felony conviction can affect someone long after the criminal case ends.
That's one reason prosecutors frequently recognize the importance of finding reasonable resolutions for first-time offenders.
Laboratory Testing Can Become a Major Issue
Another recurring issue involves laboratory analysis.
Simply because an officer believes a cartridge contains illegal THC does not necessarily make it so.
Laboratories still must determine:
What compound is present?
How much THC is present?
Was the testing method appropriate?
Does the testing distinguish between legal hemp products and illegal controlled substances?
On previous episodes of the podcast, forensic experts have discussed concerns regarding laboratory methodology and the challenges involved in accurately measuring THC concentrations.
Those issues can become important in the right case.
Defense attorneys should never assume that laboratory conclusions are beyond challenge.
Instead, counsel should carefully review:
laboratory reports,
testing procedures,
chain of custody,
and whether independent expert review may be appropriate.
Scientific evidence deserves the same scrutiny as every other aspect of a criminal prosecution.
The "I Bought It at a Smoke Shop" Defense
One of the most compelling facts in many THC cases is where the product originated.
Imagine explaining the following to a jury:
Your client:
walked into a retail business,
bought a product displayed openly,
paid sales tax,
received a receipt,
and left believing everything was lawful.
Contrast that with someone who:
bought an unlabeled cartridge,
from a stranger,
in a parking lot,
using cash.
Those are very different factual scenarios.
While purchasing a product from a smoke shop does not automatically create a legal defense, it can become highly relevant when discussing whether the defendant knowingly possessed an illegal controlled substance.
Jurors often evaluate cases through the lens of common sense.
Many people naturally ask:
"If it was being sold openly, how was this person supposed to know it was illegal?"
That question alone may significantly affect plea negotiations.
Why Pretrial Diversion Often Makes Sense
One of the recurring themes throughout this episode is that these cases often present opportunities for practical resolutions.
Many first-time defendants qualify for:
Deferred prosecution
Pretrial diversion
Drug education programs
Community service
Drug testing
Counseling
Successfully completing those programs frequently results in dismissal.
Dismissal often allows the client to pursue an expunction, permanently removing the arrest from public record.
As defense attorneys, our goal is not simply to "win" arguments.
Our goal is to obtain the best possible outcome for the client.
Sometimes that means filing suppression motions.
Sometimes it means preparing for trial.
Other times, the best result is negotiating a dismissal through diversion before trial ever begins.
Every case is different, but clients should never reject diversion simply because they believe accepting responsibility is unfair.
The question should always be:
"What gets my client to the best long-term outcome?"
As discussed during the episode, many prosecutors recognize that first-time THC defendants often deserve a second chance rather than a felony conviction.
Practical Advice if You're Charged with THC Possession
If you're arrested for possessing a THC vape cartridge, avoid making assumptions.
Many people immediately conclude:
"It's legal because I bought it in Texas."
Others conclude:
"I'm definitely going to prison."
Neither assumption is necessarily correct.
Instead:
Preserve receipts if you have them.
Keep photographs of the product and packaging.
Do not destroy evidence.
Avoid discussing the facts with police.
Contact an experienced criminal defense attorney promptly.
Early investigation often provides opportunities that disappear later.
What Should Texas Lawmakers Do?
Whether someone supports marijuana legalization or opposes it entirely, most people agree that the current system creates unnecessary confusion.
Reasonable questions remain:
Should concentrated THC continue to be punished far more severely than marijuana?
Should products openly sold in licensed retail stores expose unsuspecting consumers to felony prosecution?
Should laboratory testing standards be modernized?
Should prosecutors continue handling these cases differently from county to county?
These are ultimately policy decisions for the Texas Legislature.
Until lawmakers provide greater clarity, attorneys and courts will continue navigating a patchwork of statutes, regulations, administrative rules, and appellate decisions.
Final Thoughts
THC law in Texas continues to evolve.
Products that appear perfectly legal on a store shelf can still create serious criminal exposure.
The difference between hemp, Delta-8, Delta-9, marijuana, and concentrated THC is not always obvious to consumers—and, in some cases, has challenged courts and regulators as well.
If you're facing charges involving THC, don't assume the case is hopeless.
Likewise, don't assume purchasing the product from a retail store automatically protects you from prosecution.
Every case deserves careful review.
The circumstances surrounding the stop, search, laboratory testing, product packaging, and purchase history may all affect the outcome.
Because this area of law changes rapidly, working with an attorney who regularly handles THC-related prosecutions can make a meaningful difference.
Key Takeaways
THC vape cartridges are generally prosecuted differently than marijuana in Texas.
Products sold in smoke shops can still result in criminal charges.
The smell of marijuana may still contribute to probable cause under Texas law when combined with other facts.
Whether a defendant knowingly possessed an illegal controlled substance can become an important issue in some cases.
Laboratory testing should not automatically be accepted without careful review.
Many first-time offenders may qualify for diversion programs leading to dismissal.
Every THC case should be evaluated individually.
Cases Discussed
Isaac v. State, No. 04-22-00203-CR (Tex. App.—San Antonio) (odor of marijuana as part of the probable cause analysis).
Texas Department of State Health Services v. Sky Marketing Corp. (Texas Court of Appeals) (administrative authority regarding Delta-8 regulation).
Resources Mentioned
Texas Agriculture Code (Hemp Program)
Texas Controlled Substances Act
Texas Health and Human Services
Texas Criminal Defense Lawyers Association
Previous Andrew & Andrew Podcast Episodes:
Hemp Laws with Tiffany Lashmet
THC Testing with Dr. Shug
Frequently Asked Questions
Is Delta-8 legal in Texas?
The answer is more complicated than many people realize. Court decisions have limited the Texas Department of State Health Services' authority to prohibit Delta-8 through administrative rulemaking alone, but litigation and legislative activity continue. Anyone dealing with Delta-8 products should stay informed about current Texas law.
Can I be arrested for buying a THC vape from a smoke shop?
Yes. Even if a product was purchased from a retail store, laboratory testing may lead law enforcement to allege it contains an illegal controlled substance. Where the product was purchased, however, may become an important fact in your defense.
Is marijuana still illegal in Texas?
Yes. Recreational marijuana remains illegal in Texas, although hemp-derived products meeting statutory requirements may be sold legally.
Can police search my car if they smell marijuana?
Possibly. Current Texas appellate decisions indicate that the odor of marijuana may still contribute to probable cause when considered together with the totality of the circumstances, rather than automatically justifying every search.
Why are THC vape cartridges treated more harshly than marijuana?
Texas generally classifies concentrated THC products differently from marijuana flower. As a result, relatively small vape cartridges may be prosecuted as felony offenses.
Can my case be dismissed?
Many THC possession cases—particularly those involving first-time offenders—are resolved through pretrial diversion or negotiated agreements that may ultimately allow for dismissal and expunction. Every case depends on its own facts and the policies of the prosecuting office.
About the Podcast
This article accompanies an episode of Andrew & Andrew on Texas Criminal Defense, where Texas criminal defense attorneys Andrew Herreth and Andrew Decker discuss emerging legal issues affecting criminal practitioners across Texas. In this episode, they explore the rapidly changing law surrounding hemp, Delta-8, THC vape cartridges, probable cause, and practical defense strategies for attorneys handling these increasingly common cases.
Andrew Herreth 0:05
Hello, defenders. Welcome to another episode of Andrew and Andrew on Texas criminal defense. My name is Andrew Herreth, and as always, joining me is Andrew Decker. Good
Andrew Decker 0:16
afternoon, sir.
Andrew Herreth 0:17
Hello. How are you?
Andrew Decker 0:18
I'm well, thank you.
Andrew Herreth 0:19
Good. Well, thanks for inviting me to your other newer office downtown Fort Worth. We're in a a high rise. It's uh it's pretty fancy.
Andrew Decker 0:29
Do you feel the altitude? Be honest.
Andrew Herreth 0:30
I am. I'm feeling pretty high. Ooh, pretty high.
Andrew Decker 0:34
Oh, that was a good segue. I'm
Andrew Herreth 0:35
definitely not low.
Andrew Decker 0:36
No, we're not. We're not low. And
Andrew Herreth 0:37
it is a good segue, right? Because I'm practicing, trying to get better, right? Sometimes, you know, sometimes
Andrew Decker 0:46
let's not look back on the bad. Let's just keep moving forward with the good.
Andrew Herreth 0:48
So today, what are we talking about?
Andrew Decker 0:51
Well, we're going to talk about marijuana and THC, especially things that are purchased legally, or at least seem to be purchased legally here in the state of Texas, and how those then become criminal cases for our clients.
Andrew Herreth 1:10
So, I mean, we've talked about THC periodically a couple of times, and hemp, and the changing of laws and stuff. How is this episode going to be going to be different from those? Okay, so we talked about listeners stay tuned in,
Andrew Decker 1:24
right? Well, if you've listened to all of our episodes, you'll know that Tiffany Lashmir with the Texas Agriculture Office spoke about hemp laws and what it takes to be certified to grow hemp and growing hemp and retailing hemp as opposed to marijuana in the state of Texas, and that was oh maybe three years ago. It was pretty pretty good ways back. Yeah, still a great
Andrew Herreth 1:48
episode. I mean, very informative about the the change in the agricultural code.
Andrew Decker 1:52
Right, and those rules have not changed.
Andrew Herreth 1:54
Right.
Andrew Decker 1:55
Then, well, people started wanting to sell those products,
Andrew Herreth 2:02
which makes sense.
Andrew Decker 2:03
Makes sense. It's a money maker, and so shops have popped up all over the place, and you can find stores that are labeled. You know, the the apothecary, the hemp apothecary, the vape. You know, the vape store, and it wasn't ever there before, and they're only they're only selling one thing. And then there are what we used to call smoke shops. Everyone remembers the guy for the the the store, and God, I'm blanking on the name of the store, but you know, he looks like he's in 1963, and he's got the long beard, and he's doing a groovy walk. And I remember in high school, like going to the store and like looking at all the stuff, going, "Dude! And it was all it was all bongs, right? That that was the point. Well, first of all, how would you even sell a bong? Because if I had it in my car, what would I be charged with, Mister Herreth? Drug
Andrew Herreth 3:02
possession of drug. Yeah, it
Andrew Decker 3:03
doesn't matter what I'm smoking with it. And just to be clear, Mister Herreth, teetotaler does not drink alcohol, does not use the controlled substances. I
Andrew Herreth 3:14
so much as you know, yeah,
Andrew Decker 3:16
right. No
Andrew Herreth 3:17
alcohol. I do love my heroin every once in a while, though.
Andrew Decker 3:22
I tell people I got to stop using crack.
Andrew Herreth 3:23
Yeah,
Andrew Decker 3:25
but I don't. Y'all know that I drink a little bit, but I I don't do CBD, THC, any of that stuff. I just well, and here's why: people that we know have gone and bought what they thought were legal products at the store, and they end up with a felony.
Andrew Herreth 3:44
Yeah, yeah, and that's amazing to me. So we've had that's
Andrew Decker 3:47
kind of what we're going to talk about a little bit. We're going to get there.
Andrew Herreth 3:49
Well, we've had we've had you know Tiffany talk about like kind of the start of the process, the growing of the hemp, being certified, and all the checkpoints they have to go through with the state, and then you know even even through manufacturing some of those processes and and selling those in stores, you know, on that agricultural or government code side of things, and then we've had Dr. Shug come in, and I said testify earlier with Tiffany, but she she was a guest, and he's a guest on has been a guest on the episode talking about kind of the end of the spectrum on the testing and how that how to do that properly, and how DPS labs are often falling short of their responsibility to test properly. This is kind of like right in the meat, right in the middle of these cases, right? Right. And and it's really interesting because the law is ever changed. This is this is a section or an area of the law that will not be the same next legislative session, or for legislative sessions to come, like 10 years down the line.
Andrew Decker 4:49
Right. So, just to give you an idea, we before we came on the show, we looked at you looked at a case, and I'll tell you about another one that just came down. About something else.
Andrew Herreth 5:00
So, so we, you know, the the one of the biggest questions that I've had with these cases and the and the way the law is changing is how does an odor of marijuana is that still probable cause for an officer to search? And I have never i've I have not been able to get to a suppression hearing on that issue. Usually, like I'll bow up, and the prosecutors will kind of back down, and we'll get a really, really great deal or a dismissal or whatever. So I've not had an in a in a I've not been able to argue that in court. Sorry, I'm tripping over my words today, but there have been cases like that, and thanks to the the local listserv that we're on, TCC DLA's two Cs there, right? TCC Tarrant County, we have a case out of the Fourth Court of Appeals in San Antonio, Isaac v. State. That number is 04 dash two two dash dash 00203 dash cr, and what it says is, hey, look, probable cause is like a totality of the circumstances. So so long as an officer can you know use that that odor as one factor in making his determination to search, then there's no reason why an odor could not still be a factor going forward, right? And so, and that kind of makes sense to me. I mean, it's such a low bar to search when when we're talking about searching for drugs or alcohol,
Andrew Decker 6:36
right? If you if you kind of change the the scenario a little bit, we all get the saw a little bit of white crystallized product, right? Which I believe to be meth, as the
Andrew Herreth 6:50
right.
Andrew Decker 6:50
Well, I think to the average person, salt, sugar, and meth in a very very small amount might look the same. Well, why do they arrest them? Because very seldom does it come back as being just salt,
Andrew Herreth 7:08
right?
Andrew Decker 7:08
Or sugar, right? And it's partly because they look at the way it's bagged, the what it's with. It's not like there's a little bit on the floor, and there's what, and there's a water burger. God bless Waterburger and their salty fries. No, if if it were a Waterburger container, they go. I see a white crystalline substance, which I suspect to be salt,
Andrew Herreth 7:30
and inside the Waterburger. Right, right. Yeah, I got a funny story about that actually, because my dad bought when I was in high school. My dad just bought this car, and the the person that he bought it from smoked, and so he filled the ashtray with baking soda, and I got pulled over to get
Andrew Decker 7:47
rid of the smell.
Andrew Herreth 7:48
To get rid of the smell, okay, absorb the smell. I got pulled over in that vehicle, and we're not going to get. It was your first heroin
Andrew Decker 7:54
arrest.
Andrew Herreth 7:55
It was was one of two MIPs that I've ever gotten in my life. But the officers were searching, right, and they pull out this this ashtray full of this white powder, and they were stumped. They're like, "Oh my god, this just turned into a million dollar bust, or you know, whatever. We found a
Andrew Decker 8:11
kingpin. Yeah,
Andrew Herreth 8:12
I was like, "No, guys, I swear, I swear, it's not drugs. Believe me, trust me. So, anyways, kind of a funny story, but think about it, right? Like, even with alcohol, because there is non-alcoholic beer out there that smells like like beer, beer, like
Andrew Decker 8:27
beer, yeah.
Andrew Herreth 8:28
But the officer can still use the odor of an alcoholic beverage as one factor in determining to pull you out and give you field sobriety tests.
Andrew Decker 8:36
And we love those, don't we, mr. Herreth?
Andrew Herreth 8:37
I love them. I love them when I get them.
Andrew Decker 8:39
So the the the smell of marijuana is still a factor and still used to conduct a search of a vehicle. Now, if you
Andrew Herreth 8:47
get your officer, sorry to interrupt you, but if you get your officer and in the offense report he's like based solely on an odor of marijuana with no other factors, I decided to search this car, and he testifies to that on the stand. You may have something according to this case, but if he's gonna, and they likely will be able to list other factors that led them to probable cause. Right, the the
Andrew Decker 9:11
driver seemed didn't want to make direct eye contact. The you know the car was disheveled and smelly. Yeah, smoke. Right, the guy admitted to smoking marijuana earlier in the day. You know, whatever. Yeah, yeah, love any number of things. Love it, love it. Okay, so, um, there was a question, and this is part of we're going to get into, is that the part of that the change in the hemp law and marijuana law was what the federal government deregulated to have hemp at that point 3% rule, right? Right, Tiffany Lashman.
Andrew Herreth 9:51
Yes,
Andrew Decker 9:53
to decriminalize the Delta Nine product. Or criminalize keeps delta nine at that low level, but decriminalizes delta eight and delta 10. It's the same compound, weighs the same molecular weight. We've talked about this on the show and other places. Really, without doing some major chemistry, you're not going to know what you got.
Andrew Herreth 10:15
Yeah, and from my understanding, is it lacks like the hallucinogenic properties of Delta Nine.
Andrew Decker 10:23
At least that's the theory most people think maybe the Delta Eight is. Again, we can't do enough study on it because it's a controlled substance, and we don't really
Andrew Herreth 10:31
have personal knowledge. I do. I do not have any personal
Andrew Decker 10:35
knowledge. But here's an interesting deal: the Texas Department of Health and Health Services decided that Delta Eight had too much hallucinogenic powers and tried to criminalize that and make it illegal to sell or purchase or own. And so you'll notice on some DPS reports it lists Delta Eight and Delta Nine. Well, Delta Eight's not illegal, but because the Texas Health Services tried to say that it was a civil case went up because it was putting a burden on some of these CBD shops. Well, September 28 of this year, so just a little, just a month ago, came down the Texas Department of Health Services versus Sky Manufacturing Corporation, in which the Texas Court of Appeals Third Circuit in Austin said that the Texas Department of Health Services does not have that authority. They have the authority to amend the Texas Drug Code to fit the the federal drug code without having to go to the legislature, but they do not have that authority to make a crime that does not exist under either the federal law or without legislative authority, and so they had basically tried to say this was illegal without one of those two pieces. So Delta Eight is still legal, at least according to that rule. Gotcha.
Andrew Herreth 11:58
Okay,
Andrew Decker 11:59
so
Andrew Herreth 12:00
legal to sell, right? Because this is a manufacturer,
Andrew Decker 12:03
right? Legal to sell and and and actually possess, possess that. Point three is percent is that delta nine rule.
Andrew Herreth 12:11
So point three specific to delta nine compound, blank on delta eight and delta 10, meaning it's it's not regulated.
Andrew Decker 12:21
Correct.
Andrew Herreth 12:21
Right.
Andrew Decker 12:22
So these are fresh rules, fresh laws, or rulings that you might need to know.
Andrew Herreth 12:30
Yeah.
Andrew Decker 12:30
So marijuana still PC to search the car or the smell of marijuana. Smell.
Andrew Herreth 12:36
Yeah.
Andrew Decker 12:38
Along with other things, but mr. Herreth, have you had some cases where someone we're going to assume? Well, I actually had a discussion. Was in a discussion earlier today on can you now plea a marijuana case without a test back?
Andrew Herreth 12:56
I I have had these cases. I don't feel comfortable with them simply because these shops that are selling CBD and whatever
Andrew Decker 13:09
we're talking straight a straight marijuana they found it green leafy substance
Andrew Herreth 13:14
right but again my lack of understanding and experience with the product, I am under the assumption that green leafy hemp, non you know delta nine THC looks just like
Andrew Decker 13:32
delta nine marijuana
Andrew Herreth 13:34
and smells just like it.
Andrew Decker 13:35
Right.
Andrew Herreth 13:36
So I don't know if I could tell without a.
Andrew Decker 13:39
We've been told by other experts that no human could tell the difference between those two things based on smell and look and feel.
Andrew Herreth 13:47
So, I mean, you know, the feel you get after you smoke it.
Andrew Decker 13:53
No, like like if I touch it with my hands.
Andrew Herreth 13:56
So, so I feel I I would not feel comfortable pleading. Pleading those cases out based just off of whatever the you know offense report says, or field notes, or field weights, or whatever.
Andrew Decker 14:11
Right. I I said it would be one of those things where I would have to know more than just what the charge was. Yeah. Right. So if my client admits to smoking earlier, says yes, there's marijuana in the car. Yes, it's mine, and they tell me you know yeah it's mine, mr. Decker, and I just I just need to plead out and and they've maybe had one in the future, but that could affect their driver's license and some other things. Yes,
Andrew Decker 14:35
so basically most of us were like, well, if we could do a pretrial diversion, you know, 3p in 90 days and a marijuana class or some community service for dismissal. Yeah, we do that.
Andrew Herreth 14:47
We would. I would do that. Right. I would do that even if, like, hey, there's an issue with the stop. I mean, just because one, it's not going to waste my client's time or money. It's a really easy resolution. It opens the door for. An expunction, and you know, I'm always of the opinion. Like, if you get what you want, having to get, you know, having to do just a little bit of work, that's a really great resolution.
Andrew Decker 15:11
Yeah, and it's not like all of our clients can just be clean tomorrow. Sure, but as as a prosecutor in the conversation I had earlier said, "If part of the if part of the if part of the reason to do the three cleans in 90 days is to hope that they can find out what it's like not using or remember what it's not using, and maybe gain some trail of sobriety, well, that might be worth it.
Andrew Herreth 15:41
Yeah, especially for like just a little Class B, right? Yeah, yeah, yeah. So,
Andrew Decker 15:45
so yeah, we're talking Class B. You know, I've got enough for personal use, less than you know under two ounces. Why not? The crazy thing
Andrew Herreth 15:53
is, a lot of my clients who are regular users, you know, I've I've always heard that hey, I just do it for anxiety. Help with anxiety. Help me sleep. And then if I can get them clean for that 90 day period or or something, they find out
Andrew Decker 16:08
their anxiety and sleep gets better.
Andrew Herreth 16:10
Yep.
Andrew Decker 16:10
Yeah. So I have a I have a cousin. I have a cousin who does counseling, and a lot of her clients are veterans, and they'll say, you know, like, hey, I smoke marijuana for my anxiety. And she, they've done enough studies that they can at least say this. They'll say, she'll say, I want you not to smoke for 30 days and come back and tell me about your anxiety, right? Because it does apparently relieve anxiety temporarily, but after four to six weeks, it starts to play with your head and it causes anxiety, so yeah, that's not a good excuse to be. It does.
Speaker 1 16:48
I mean, you
Andrew Herreth 16:48
know, you always hear the anecdotes that you know weed makes people paranoid. I mean, that's that is just a different word for anxiety, right? And it used to be
Andrew Decker 16:57
that they were, you know, they would say, "Well, I was just paranoid I was going to get arrested. No, you're paranoid because you've messed with the chemicals in your head.
Andrew Herreth 17:03
Yeah,
Andrew Decker 17:04
not trying to get off into the. Are we stepping
Andrew Herreth 17:06
off our our our preacher box now or whatever our pulpit?
Andrew Decker 17:09
Yeah, yeah. Sorry. No, but again, we're not talking about somebody who did it once for the week.
Andrew Herreth 17:17
Okay.
Andrew Decker 17:17
Right. We're not we're not talking about somebody who's who's smoking at a party. We're talking about people who are using day to day, yeah, and really are, well, addicted, right? But if the whole idea is get them clean, get them, you know, find out that it's okay to not be smoking and have a dismissal and have an arrest erased, get on down the road, big boy. It's going to be good for you.
Andrew Herreth 17:40
See, and that's that's that's my philosophy on a case. Like I, when people call me, I said we will do anything for a dismissal of this case, you know. And very rarely have I had a client that pushes back on that and is like, I didn't do anything wrong. Why do I have to do anything? I'm like, well, you're going to have to hire an attorney. You're going to have to go to court. So let's make this like let's get to that good resolution, that best case scenario as quick as possible, right?
Andrew Decker 18:06
And and outside of most counties, we'll keep a list of people they've done a diversion class with or a diversion program, so that you don't get one in that county again. But outside of that, nobody really knows.
Andrew Herreth 18:17
Yeah, yeah, and the the expunction agreement says that they're not going to release that information to anybody, just for internal use only. Right.
Andrew Decker 18:26
So let's move on from marijuana.
Andrew Herreth 18:30
Okay.
Andrew Decker 18:31
We then have people caught with electronic cigarettes.
Andrew Herreth 18:35
That's right.
Andrew Decker 18:36
We're going to call those vape pens. Yeah. Because that's what everybody else calls them.
Andrew Herreth 18:40
And I know we both say the same thing. At least when you know juvenile parents are calling us or whatever, like, "Hey, well, he just has a vape pen, and we both say, "Oh,
Andrew Decker 18:48
dude, that's THC.
Andrew Herreth 18:49
Yeah, if they have a vape pen, they've got THC.
Andrew Decker 18:51
I assume anyone smoking a vape pen is is smoking marijuana at that point or THC. Yes, which is that I people ask me that or tell me that they don't feel like I get real paranoid about, you know, like life. Even though I deal with criminal defendants all the time,
Andrew Herreth 19:08
right?
Andrew Decker 19:08
This is the one thing: a vape pen. I just assume you're smoking THC until you prove it. We're pretty
Andrew Herreth 19:13
level-headed until we see somebody smoking a vape pen. We're like, nope, you're not driving. No.
Andrew Decker 19:20
Oh, and somebody vaping in their car, and I'm just like, I slow down or speed up. I do not want to be close to them. Get
Andrew Herreth 19:26
out of the way.
Andrew Decker 19:27
But it's legal to have that Delta nine or CBD. Well, Delta Nine under that point 3% CBD, Delta eight, Delta 10, and these are stores we see all over the place: advertisements, banners, legal. You know, THC Delta eight, Delta nine, Delta 10, legal everywhere
Andrew Herreth 19:51
you look.
Andrew Decker 19:51
Tested, certified.
Andrew Herreth 19:54
Trust us. Always we promise this is legal. Trust us. Convenience store. You know, pharmacies, grocery stores, like little smoke shop. I mean, everywhere you look. But when I rub this
Andrew Decker 20:08
CBD oil on my knees, my arthritis gets better.
Andrew Herreth 20:11
Sure, whatever, lady. Yeah.
Andrew Decker 20:14
Hey, hey,
Andrew Herreth 20:14
hey, hey. I'll, I'll. I'm no
Andrew Decker 20:15
lady.
Andrew Herreth 20:16
Well, you sounded. I thought you were. Anyways, I'll. You know, I'll put CBD over a lotion bottle and sell it at a you know 50% markup. Right, because I have no doubt
Andrew Decker 20:25
that if I rub on my knees for about five minutes each night before I go to bed, my knees would feel better.
Andrew Herreth 20:30
Yeah.
Andrew Decker 20:31
So is it the CBD or is it the rubbing on my knees?
Andrew Herreth 20:35
Who knows, man? I've never I've never tried CBD products, so you know maybe, but you know, maybe it's also just a placebo effect,
Andrew Decker 20:43
right? Again, if I rub on my legs for five minutes, you know, would they feel better?
Andrew Herreth 20:50
Now, five milligrams of THC that will make you feel better.
Andrew Decker 20:54
Well, that's the rumor, right? So, we're going to stick with the pins. We're not going to talk about the edibles. We're definitely not talking about the creams or oils that you. I mean, they come in
Andrew Herreth 21:05
any medium that you can think of. But
Andrew Decker 21:08
we're not. We're not talking. We're especially not talking about things that you would apply externally, like the lotions for your knees or for your arthritis. We are going to kind of specifically talk about that e-cigarette.
Andrew Herreth 21:21
Do you think they have THC or CBD products in the form of like a church wafer, like a communion wafer?
Andrew Decker 21:28
We could make it so number one.
Andrew Herreth 21:30
I mean, that sounds like a million-dollar product. Oh
Andrew Decker 21:32
man,
Andrew Herreth 21:33
would you go? I mean, would you go? Would you attend that church?
Andrew Decker 21:36
Ooh, you know they they said that
Andrew Herreth 21:40
peyote
Andrew Decker 21:40
is legal because for the Navajo Nation because it's because it's it's a religion. I was just thinking
Andrew Herreth 21:47
like Bob Marley was part of the Rossa religion in Jamaica and and they are allowed to smoke marijuana. So instead of a podcast, we have
Andrew Decker 21:55
the Church of Andrew and Andrew, and it would be it'd
Andrew Herreth 21:58
probably make more money be
Andrew Decker 21:59
real wine and CBD laced wafers,
Andrew Herreth 22:04
so very close to the Catholic Church. So now that we've alienated all of our listeners, let's get back on track. Let's get back on track.
Andrew Decker 22:13
So that THC pin, I'm amazed. So one of the things I've noticed: Have any of these clients on a vape pen with THC been over 25 years old?
Andrew Herreth 22:28
No, not no.
Andrew Decker 22:29
How many have you had
Andrew Herreth 22:30
over 25?
Andrew Decker 22:32
No, no, no. How many clients like this have you had?
Andrew Herreth 22:34
Oh, all of my first off, all my possession of penalty group two is a THC case. They're all vape pens, or they're all that oil, and they're all either juvenile cases because they're in high school, and now that's a drug-free zone possession,
Andrew Decker 22:51
right?
Andrew Herreth 22:51
Or they're in college.
Andrew Decker 22:53
Yeah, they're they're all under 20-five.
Andrew Herreth 22:55
Every single one of them,
Andrew Decker 22:56
all of them, and I would say I've had a dozen or more of these.
Andrew Herreth 23:00
Yeah,
Andrew Decker 23:01
and they are all young adults. Well, Mister Herreth, are the only people you see smoking a vape pen under 25
Andrew Herreth 23:09
No, no, no. They're incredibly no. So I
Andrew Decker 23:11
think there's a little bit of a bias.
Andrew Herreth 23:14
Yes.
Andrew Decker 23:15
Um. So we buy the vape pen, and if it's under point 3% it
Andrew Herreth 23:23
is legal.
Andrew Decker 23:23
Legal. How many of them come back at like 1.5% every single 3%
Andrew Herreth 23:31
Every single one of, and that may be because, as Doctor Shug would put it, the testing is done wrong. It's it's you know those numbers are inflated because of the poor testing standards, but
Andrew Decker 23:46
or it could be that the people making it
Andrew Herreth 23:47
exactly
Andrew Decker 23:48
barely passed high school chemistry, and now they're cooking a substance to be sold on the legal market, and they don't know the difference between 3%
Andrew Herreth 23:58
which is which
Andrew Decker 23:59
is point oh three,
Andrew Herreth 24:01
but the interesting part
Andrew Decker 24:02
point 3% which is point oh oh three.
Andrew Herreth 24:05
So, but the yeah, right. Lots of
Andrew Decker 24:07
people don't know how to move a decimal.
Andrew Herreth 24:08
They don't. You're right, but in the interesting thing too is because we've interviewed guests at both ends of the spectrum, right? Tiffany described the testing procedures and the clearance procedures, and they seemed rather robust.
Andrew Decker 24:25
Yeah.
Andrew Herreth 24:26
So I I don't know. I mean, I guess maybe these are just being trucked in from out of state, and they're well. But
Andrew Decker 24:33
if I if I'm testing at the I'm testing at the field,
Andrew Herreth 24:36
right,
Andrew Decker 24:37
right,
Andrew Herreth 24:38
and then it's being distilled into the oil,
Andrew Decker 24:40
right? Is it then being tested on the way out the door?
Andrew Herreth 24:44
I, I would imagine that civil case maybe discusses it. I don't know.
Andrew Decker 24:48
Right. I didn't read that part because that wasn't the part I was interested in.
Andrew Herreth 24:51
Right. Right. No. And why would you be right? But here's but but and you just had a case. We're going to talk about that. I've had cases before where my clients have said. I didn't know this was an illegal substance,
Andrew Decker 25:03
right? So remember, the indictment is to knowingly or intentionally possess a penalty group one. What did you say? Two A
Andrew Herreth 25:11
penalty group two substance two A is synthetic weed,
Andrew Decker 25:15
right? Sorry. Well, if I bought it at the store on the highway here in county, and I paid taxes for
Andrew Herreth 25:26
it, and it's advertised as legal, and
Andrew Decker 25:28
it's on the front door. How would I, as a now here's part of the problem? How would I, as a 20 year old, know that I just bought an illegal substance? What what fact did I just put in there, Mister Herreth, that makes this a problem?
Andrew Herreth 25:41
Knowingly, yeah. I mean, how would you? No, if
Andrew Decker 25:44
I'm under 21, I can't possess any. I can't possess tobacco or
Andrew Herreth 25:48
e-cigarettes. That's right. Well, I I keep forgetting that's the law because when I it was 18 when I was a kid. Anyways,
Andrew Decker 25:56
yeah, me too.
Andrew Herreth 25:56
Yeah, as a 20 year old, right? You, I mean, that's just kind of automatic. Or even a 17-year-old PC, right? And that would be an officer saying, "Hey, man, you can't be having that vape pen. Give it here. And then he sees the cartridge, says, "You know, CBD, pops it, takes it for testing, and it comes back as illegal.
Andrew Decker 26:15
Right, but the same officer could go, "You've got a vape pen. Give it to me. Puts it underfoot, crushes it, hands him back the trash, and goes, "Here's your ticket.
Andrew Herreth 26:26
They're not going to do that because THC is a felony,
Andrew Decker 26:29
right? Of
Andrew Herreth 26:30
any amount, any amount of THC starts out as a stage L felony, which is which is crazy to me because I think, again, not having personal knowledge, but I think it's so much safer than synthetic marijuana, which is under penalty group two A, and that is mirrors the regular possession green leafy substance, you know, weight system, right? So you have two ounces, four ounces, etc.
Andrew Decker 26:56
Right,
Andrew Herreth 26:57
and that's what THC should be filed in. It should be removed from pinnacle group two and put into two A, and that would be an easy legislative fix. Or it should
Andrew Decker 27:04
be listed like marijuana, right? And yeah, and it'd be a slightly different weight deal, but like under a gram is a class B, up to two grams or four grams. Now you want to put it is a class A, and then we start talking about felonies. Well, because now we're talking about a lot of a product,
Andrew Herreth 27:22
but yeah, and and it kind of like makes it easier to prove intentionally and knowingly if you're carrying around 200 grams of vape. Yeah, yeah. If
Andrew Decker 27:32
someone's got one vape pen,
Andrew Herreth 27:35
right?
Andrew Decker 27:35
That they again they bought down the street.
Andrew Herreth 27:38
Yeah,
Andrew Decker 27:39
from a store that everyone knows where it is. So I actually had one of these cases where the the the stop starts, and you see one of these stores in the right there. It has a big sign, and I'm like, huh, that'd be fun to ask. But those are those are assumed light, right? And and those often you and I have both found that most prosecutors are going to do some form of pretrial diversion, especially with a young adult, because they're like, Andrew, we don't want this kid to have a felony.
Andrew Herreth 28:11
Yeah,
Andrew Decker 28:12
and if we go to trial and we lose, even though I feel good about most these cases, still
Andrew Herreth 28:16
a risk. I mean, it's a risk,
Andrew Decker 28:18
right? So how do you not take the the six month or one year pretrial diversion, depending on where you are.
Andrew Herreth 28:25
Well, that or you know the last case I had, you know we we my guy was in custody. He had a ton of history, a ton of these types of possession cases, and we still pled him down to a misdemeanor simply because you know, I mean, he had the time. You know, he wanted to move on down the road. Yeah, I was
Andrew Decker 28:45
able. Kind of, I can be, I can be done.
Andrew Herreth 28:48
Yes, right. Yeah,
Andrew Decker 28:49
yeah. So it becomes difficult. It becomes hard. So a case that that I thought I was going to go to trial on, and I didn't. We ended up getting out of time pretrial diversion agreement.
Andrew Herreth 29:05
What do you mean out of time?
Andrew Decker 29:07
So normally, you know, most most counties they have like a limited time that you can apply to be in a pretrial diversion. Oh, like this was this was an agreement with the DA's office. Yes, we understand it's out of time. We understand your your point.
Andrew Herreth 29:20
The application has not been timely filed. It's that arbitrary number that they give
Andrew Decker 29:24
us, whatever it
Andrew Herreth 29:26
is, whatever.
Andrew Decker 29:26
But but it was a fair agreement, and part of it was as I started referring for trial, right? I saw the video and I was like, "Oh, it'd be fun to ask the officer. Isn't that a store? And show him the picture, and you know it has THC and Delta nine and Delta eight on the door, and you you literally start this stop, and you see it in the video, but it's closed. It's after hours. You haven't ever gone into that store and shut them down for possession of a controlled substance, have you? No.
Andrew Herreth 29:53
Well, the funny thing is, in this county that you are in, Parker County, they they're a bunch of these businesses. Were rated because we, as a defense bar, kept bringing up this defense and showing them proof. Right? Hey, these are being purchased on your streets, and so they-I don't know if any charges stem from it-but they did confiscate a quite a number of of product from from these stores. Yes,
Andrew Decker 30:14
they have. Yeah, and because it becomes a what? What's how do I knowingly possess a controlled substance if I bought it from a store that's open and nefarious. That's out, right? You know, it's not. It's this is this isn't going
Andrew Decker 30:29
right. This isn't going. This is going to the Quiky Mart. This is going to you know open stores, smoke shops, etc. So anyway, the problem was my my young man says when the officer smells marijuana, while I smoked earlier. So we don't have clean hands. This isn't the only way that he's taking in THC, and that was enough for me to move from like a 70% sure we could win to I could see. You know, you get the wrong jury panel going. You're just a pothead, and you're just doing pot a different way.
Andrew Herreth 31:01
I don't feel sorry for you. Yeah,
Andrew Decker 31:03
right. So you knew what
Andrew Herreth 31:04
you were getting. Yeah,
Andrew Decker 31:05
yeah, yeah. And it was one of those things that really came to light as I really started pushing, you know, into the trial prep. And when the DA called me on Friday afternoon and said, "Would you still consider that pre-trial diversion? We understand you've got good arguments. We, you know, they know me, they know you, and they were like, "We don't know which way it's going to go, but if you lose, he has a felony, and none of us can fix that. And I was like, "Let me talk to him.
Andrew Herreth 31:32
Pretrial diversion, though, is such a good result.
Andrew Decker 31:36
Yeah, especially late, especially late, especially late in
Andrew Herreth 31:39
the game. Yeah, but I mean, this is a good result because you know you had some facts that you really you know weren't sure about. They obviously had some facts they weren't sure about. This ensures that you know if it can be expunged. If the state wants their slap on the wrist or their pound of flesh, they're going to get it, right? And and your guys got to do something to earn that dismissal and expungement. I mean, it's it's just a good negotiation, right? Yeah, it was
Andrew Decker 32:03
it was very fair, and I appreciate that the district attorney's office said we understand it's you know normally past time, but we think this is right, and we're we're willing to work with you.
Andrew Herreth 32:13
Most prosecutors too. I mean, misdemeanor prosecutors or felony prosecutors, they don't want to mess with weed and THC. I mean, the the thoughts and feelings surrounding these substances from their just general jury member is ever changing, and they don't want to waste their time. They don't want to waste a jury's time,
Andrew Decker 32:32
right? Yeah. Again, I don't. I'm amazed how many people I know that are like, "Well, I take a little CBD every night to go to bed, and my eyes kind of dilate, and I go, "Oh God,
Andrew Herreth 32:40
yeah,
Andrew Decker 32:41
I'm gonna have to be representing my friends who are exactly,
Andrew Decker 32:44
you know,
Andrew Herreth 32:44
yeah. It's scary out there, man. Yeah,
Andrew Decker 32:45
but those are light. But have you had some pins that came back what I call THC heavy,
Andrew Herreth 32:53
like the very good ones where you're like, okay, very good in those, where you like you're like, okay, this was not bought in Texas. It's definitely a Colorado, California. I had one
Andrew Decker 33:04
guy say it was bought in Dallas, and I'm like,
Andrew Herreth 33:06
oh, maybe, I don't, I don't score, but you may be from yeah, yeah, you may have bought it from Dallas, 75 80% THC. Right, that that is that is some potent stuff, my friend. Right,
Andrew Decker 33:17
I've I've seen them anywhere from like 30% up to about 75 or 80% and those-it's very hard to say. You did not knowingly and intentionally possess a controlled substance, right? You didn't buy it.
Andrew Herreth 33:27
It's a good argument for the 1% pens, but man,
Andrew Decker 33:32
right up up to about 3% because you can truly say that you know
Andrew Herreth 33:37
they just didn't carry that. They they didn't move the decimal the
Andrew Decker 33:40
right way,
Andrew Herreth 33:40
right?
Andrew Decker 33:41
And I think a third of our jurors would go. I didn't know what the difference was,
Andrew Herreth 33:44
right?
Andrew Decker 33:44
And they can you can point to what store they bought it at, etc. But when you either bought it off the street or bought it in from a different state,
Andrew Herreth 33:55
or like can't explain it, yeah, brought in from a different state, can't explain where you got it? It has no markings on it, you know. Like it,
Andrew Decker 34:03
yeah. Like you and I now have seen enough of these that we know some of the brands, or like
Andrew Herreth 34:08
that, yeah, or or even if it does have markings, where you're like, okay, but this this THC vial says heavy hitter on it. I mean, come on, bro. Like it
Andrew Decker 34:17
says guaranteed, guaranteed high. Yeah, you're like, yeah, yeah,
Andrew Herreth 34:23
exactly.
Andrew Decker 34:24
Yeah, those those are different. I don't know that. I don't know that to the average juror they would really be different, but we as defenders and prosecutors see them as this. This is a different product. This is not a mistake. This is not you you you brought it in.
Andrew Herreth 34:45
So are you still finding that you can get really good deals on those cases though?
Andrew Decker 34:51
You got to do them earlier. You can't stretch that out.
Andrew Herreth 34:53
Right. Yeah, that's not something that you would wait till you're on trial list and be offered a pretrial diversion.
Andrew Decker 35:00
Yeah, probably not. But again, I'm gonna I'm gonna ask my my young client, where did you get it? That's the first question I'm gonna ask because that becomes an important factor in that plea negotiation. If I bought it here, and here being locally enough that you could drive 30 minutes and find the store, right? So if you're in if you're in Parker County, you came into Fort Worth, or you're Fort Worth and you went up to Denton, right? Or if you're in Austin and drove to San Marcos, right? We're talking about some place you would normally could go, and you happen to go into a shop and you found something you liked and you bought it. Okay, great. I can point it out. I could I could subpoena that manager if I had to.
Andrew Herreth 35:43
Yes,
Andrew Decker 35:45
if you bought it off the street,
Andrew Herreth 35:47
got it from a friend.
Andrew Decker 35:48
Got it from a friend. Purchased it when I went up to go skiing this winter.
Andrew Herreth 35:55
Yeah,
Andrew Decker 35:56
yeah. The the I my my righteous indignation gets much smaller,
Andrew Herreth 36:05
right? Yeah, and you know it is still THC, but when you get in those high percentages, it it really starts. I mean, that's that's a substance and at at a level of THC distillation that has not really been seen in the natural world, right? I mean, there are some strains of marijuana where you can get really, really potent, but when you distill it down and get that oil, that that is to a whole nother level. Now, you may still have issues with the testing, getting back at that number or the stop, and we're not saying you you know plea these cases out immediately. I mean, as I think as Doctor Shug has told us, which go back and listen to that episode, you know when when labs are using the gas chromatograph to test THC substances, they are they are they are doing it wrong. They're not taking into account some like carboxy effects, whatever he calls it. So definitely look down that down that alley. But it's it is harder to explain the intentionally or knowingly aspect. The other
Andrew Decker 37:15
thing about bringing in that expert to say the gas chromatograph isn't the best way to test it, I worry that on a THC case, the jury's going to glaze over and go, "Yeah. But they're hearing white noise for that hour and a half, and they're going to go, "Did he have the vape pen or not?
Andrew Herreth 37:35
Yeah,
Andrew Decker 37:35
especially if you can't say they bought it here and here's rare, and
Andrew Herreth 37:43
I mean that that may be a good bargaining chip for negotiation, but you know you can still get some really great deals on these cases,
Andrew Decker 37:50
right? Most of the prosecutors I know are not trying to hammer a first time THC pin possessor in in any in any
Andrew Herreth 38:06
regardless of the yeah of the quantity or quality of it
Andrew Decker 38:10
right now if it were a lot if it looked like they were like bringing 200
Andrew Herreth 38:13
grands or something right yeah yeah
Andrew Decker 38:14
um uh but I've had I've had some felony manufacturing possession cases where there's five pounds of marijuana in the in the house, and that doesn't even the marijuana doesn't even get filed. Doesn't get filed anywhere.
Andrew Herreth 38:29
Yeah, they don't really care about it. They
Andrew Decker 38:31
don't care, right? Because that's the state jail felony level of marijuana, and we've got first degree felony manufacturing or sorry levels of of of meth and fentanyl, and they've got money and scales and bags, so they're going to go with manufacturing delivery. They're just going to put the marijuana on as evidence that yeah, this isn't a mistake.
Andrew Herreth 38:54
So I've how often do you get called and say like, man, I'm surprised that police in Texas still care about marijuana. I was. I assumed I would just get maybe a ticket or whatever.
Andrew Decker 39:05
Yeah, I get that all the time.
Andrew Herreth 39:06
And they and in our areas that we practice in North Texas, you're still getting arrested for the most part. Maybe not in Dallas, but I've
Andrew Decker 39:14
but I've even seen a few in in places like Parker County where they go, yeah, they found a little bit, and truly, it's like the the remnant.
Andrew Herreth 39:25
Uh huh.
Andrew Decker 39:26
And the officer go dump out the little baggie, the the that's left, hand it back to him, and give him a ticket for paraphernalia. And I go, and they'll get mad, and I'm like,
Andrew Herreth 39:36
you don't get. He gave you a favor, right? Yeah, yeah. So, and I was representing a client on a drug paraphernalia ticket, and in the and and kind of the same deal, they were upset. You know, like this is crap. This is I can't believe this. And on the video, you see the officer take this little roach and you know rub it into the cement with his foot, and that's it. You just have a ticket for paraphernalia. And I was like, "You, that officer right there, just saved you 1000s and 1000s of dollars. I've seen it once.
Andrew Decker 40:07
I've seen it a few times, and and sometimes it's that the officer, you know, looks and realizes the kid that lives down the street from me, you know, not not all law enforcement's out to ruin your life. They're
Andrew Herreth 40:22
well. Hold on. Let me push back on that a little bit. But they're not out to ruin your life, mr. Herreth. I think they understand. Like remember, because marijuana has a has a threshold amount of usable quantity has to be a usable quantity up to two ounces. And so if they're looking at it like okay, a little roach, like I think that threshold is getting bigger as time goes on. You know, like it's not really enough to like do anything. Whereas before, you're like, I mean, you could roll the world's smallest smallest joint and smoke it with a little paperclip, you know. And now it's like, yeah, that's just shake. We don't really care about that, right? You know, right? But you were saying about how cops are so great to everybody.
Andrew Decker 41:03
It's not what I said.
Andrew Herreth 41:04
Oh, okay.
Andrew Decker 41:05
I got a speeding ticket this weekend, Mister. I got one
Andrew Herreth 41:07
last week, bro. Oh, so bad. I'll represent you.
Andrew Decker 41:10
You represent me.
Andrew Herreth 41:12
I've already got representation. Thank you. Not that I mean I would.
Andrew Decker 41:18
Fine, fine.
Andrew Herreth 41:19
Yeah,
Andrew Decker 41:19
fine. So anyway, the THC thing is is problematic. Part of it is we have legislation that is written poorly, and I've looked at some of the history. The point 3% basically came. One scientist said, "You know, this this is kind of a break point, and no one's done any testing to see if that's a that that's the right break point or not. It's basically an arbitrary number.
Andrew Herreth 41:47
Point 08 BAC is for DWI. It is it is arbitrary. Some states have point 06 Some states have point 10.
Andrew Decker 41:54
This is not a disclaimer by Andrew Decker. I may or may not agree with mr. Herreth
Andrew Herreth 41:59
saying these things that we just take, you know, that we assume under the law, they don't really mean anything. Like, look at the DRE examinations; they mean absolutely no. It's just, it's just witchcraft.
Andrew Decker 42:11
Anyway, so the point three is truly just a a number that a that a chemist used, and it was like in the 70s, and that became the rule for hemp versus marijuana. Do you
Andrew Herreth 42:22
know you're you were born in the 70s, right?
Andrew Decker 42:24
I was
Andrew Herreth 42:25
okay. Do so. Do you are you aware of like the potency of marijuana? How it's changed over time? I
Andrew Decker 42:30
know it's gotten stronger, but again, I've never used the marijuana, so I have no personal knowledge. It
Andrew Herreth 42:35
is. It has gotten significantly stronger,
Andrew Decker 42:39
right?
Andrew Herreth 42:40
So that point three should probably be something some something different, right?
Andrew Decker 42:46
But because of that, and because of kind of this arbitrary rule of whether it's been extracted from the plant or it's still in plant form, and this, do we have enough time to mess with a marijuana charge when fentanyl is, you know, the new big drug of choice. And ironically, I've seen cocaine come back in the last like year.
Andrew Herreth 43:12
So long as that cocaine is laced with fentanyl,
Andrew Decker 43:15
again, I don't know. Here's my point: I we've got to figure out a way to make this much more clear of this is legal and this is illegal, and it's not some, you know, pick a number that that that is large enough that we can understand it and be safe with it.
Andrew Herreth 43:36
And I don't know really where the the problem is. This is it's because this is an ever-changing, you know, ever-changing area of the law. But the legislature does have work to do. It's like they updated the penal code, but they didn't update the, or they updated the agriculture code. They didn't really update any of these other, you know, areas to where yeah, the rules that that affect like the selling of products, the marketing of products, the penal code, etc. So
Andrew Decker 44:05
right, so it's going to be something we have to keep an eye on. Our defenders will have to be be watching. We've got several people who've reached out to the show recently, giving us some some high remarks, some high praise, some possible guests to be on the show. Somebody asked for a transcript. I don't know if they wanted the transcript from trial or from the episode.
Andrew Herreth 44:29
I think they just wanted like your. Let me see if I can find it, and we'll give you a shout out. But it was a public defender brethren, sisterin Yeah, from like in the northeast. Yeah, yeah. One
Andrew Decker 44:43
of my transcript on beyond a reasonable doubt that I've used, and I've gotten several people actually stop me and go, "Now, what army did you? And I'm like, "That's not the point. Well,
Andrew Herreth 44:51
and that, and when I because I sent it to you, I because they were they were asking it was. That you had brought up, and I know that you don't have a script. Like you, this comes out of the thin the thin air for you.
Andrew Decker 45:09
Yeah, I do prepare for trial, but
Andrew Herreth 45:11
that's not what I meant. But like, you don't really have like you just have like bullet points you want to cover.
Andrew Decker 45:16
Yes,
Andrew Herreth 45:16
certain things you want to put a certain way,
Andrew Decker 45:18
and and then I and and then I let the I let the spirit move, my brother. Yeah,
Andrew Herreth 45:23
you you
Andrew Decker 45:24
come on with me, stay with me, watch me now.
Andrew Herreth 45:27
You try to sound, you know, like our like our guests that we've had on the show, you know that that get inspiration.
Andrew Decker 45:37
Yeah, well, honestly, I try to just be open and and listen and draw information out, but we'll we'll. But we do appreciate the context. We've had several comments on the former jailer who's spoken, so we appreciate that letting us know. All right. I think Andy found it.
Andrew Herreth 46:02
This is from Jen Road in Maine, not New Jersey.
Andrew Decker 46:06
Still the Northeast. It is
Andrew Herreth 46:07
in indeed. Yes, very far north northeast of us. Evidently, she listens to the show. Thank you, Jen. Right. That's great. So, if any of our listeners need an attorney in Maine, contact Jen at jen@jjrlaw.org She was wondering. She liked. We should take a field
Andrew Decker 46:26
trip.
Andrew Herreth 46:27
I would love to. Oh man, that bet that would be awesome. Heard the show about beyond a reasonable doubt and hauling the wagon up the hill and loved it. Loved it. I was wondering if you'd be able to send me a copy of your closing argument that you used using this analogy, talk to us about that. Tell it briefly.
Andrew Decker 46:45
Right. So, I first of all had it in my in my jury selection. I actually have a picture of an army dragging stuff up a hill.
Andrew Herreth 46:52
Yeah.
Andrew Decker 46:53
And and it doesn't matter. It could be any army, any hill. Right. The point is, is that the state, especially in a in a in a sexual assault case, it's not he said she said. The state has to haul everything to the top of the hill. And then in closing, I came back and I said it's still not a he said she said. They've both taken the stand. the the the the trueness may be somewhere in the middle, but if the if it doesn't all reach the top of the hill, you can believe her more and him less, or him more and her less. But if you don't think that's all hit the top, it's not guilty.
Andrew Herreth 47:32
Yeah.
Andrew Decker 47:33
Um, and obviously I do that and I pull it out and I play with it. But the women in that jury pool in that jury
Andrew Herreth 47:41
specifically, you pull out these arguments and play with them in your head.
Andrew Decker 47:45
Well,
Andrew Herreth 47:46
just to be clear, wow.
Andrew Decker 47:47
Sorry, mr. Herreth. Didn't mean to. Now, now I'm lost. There's HR
Andrew Herreth 47:51
on this floor. The
Andrew Decker 47:52
women in that jury actually said that that was very effective, and and I don't know that I have a transcript. That case is being expunged, so I don't know if the if the the
Andrew Herreth 48:01
record
Andrew Decker 48:02
if I can keep if I have the record or not
Andrew Herreth 48:06
well if it if the expunction has been granted you can still get it but you know if you want it
Andrew Decker 48:12
yeah interesting
Andrew Herreth 48:14
yeah so there you go Jen that's for you anybody else has any questions please contact us our website is texascrimdefence.com texascrimdefense.com We I assume still have a Twitter page. We
Andrew Decker 48:25
do. We have the Twitter, and that's actually how we found mr. Forrest. He's going to be on the not not for it's not Forrest. Well, it is Forrest.
Andrew Herreth 48:34
Okay,
Andrew Decker 48:34
who's going to be on the show? And he's he's bringing a he has a judge that wants to be on the show. Oh,
Andrew Herreth 48:39
wonderful.
Andrew Decker 48:39
So we we we we do pay attention. We try to get back to it. It sometimes takes a little time to circle back, but thank you, thank you for reaching out. We do appreciate you. Tell a friend. That's really the best way we grow. And
Andrew Herreth 48:56
leave us a review. Yeah. If it's not five stars, then just email us and tell us your thoughts.
Andrew Decker 49:04
Yeah, that'd be great too. It is also fun when Andy and I are somewhere and someone goes, "Are you one of the Andrews? Like they recognize our voice and they're like, and they come up and that's that's awesome. So that is awesome. Please reach out to us. It actually, again, as I said a few episodes back, if we stop doing this, I'm gonna have to take up calligraphy, and I don't have time for that.
Andrew Herreth 49:25
Yeah, I mean, well, yeah, well, it'll still be us having these conversations, just not being recorded, right? Please don't do that to us.
Andrew Decker 49:31
All right. So, for mr. Herreth, I'm Andrew Decker,
Andrew Herreth 49:34
and for mr. Decker, I am Andrew Herreth.
Andrew Decker 49:37
Y'all be good.