”Affirmative Link” to Drugs In Texas

In proving possession of cocaine, the State must show the accused:

(1) exercised care, control, or custody over the contraband

(2) knew the matter was contraband. See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Ortiz v. State, 999 S.W.2d 600, 603 (Tex. App.--Houston [14th Dist.] 1999, no pet.).

The State does not have to prove the accused had exclusive control over the contraband. See Cooper v. State, 852 S.W.2d 678, 681 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd).

However, if the accused is not in exclusive possession, the fact finder cannot find knowledge of and control over the contraband unless other evidence affirmatively links the accused to the contraband. See id.; Chavez v. State, 769 S.W.2d 284, 288 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd).

In determining if the affirmative links are sufficient, we look not to the number of links but rather to the logical force the links have in establishing the offense. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

An affirmative link exists when:

(1) the accused is the driver of a car in which contraband was found;

(2) the contraband is found on the same side of the car as the accused;

(3) the accused makes furtive gestures which appear as if he is trying to conceal something;

(4) the contraband is in close proximity and accessible to the accused;

(5) the contraband was found in an enclosed area.