Affirmative Links In Drugs Possession Cases In Texas

To show possession of a controlled substance, the State must prove two elements: (1) the accused exercised care, control, and management over the contraband; (2) the accused knew the substance was contraband. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Edwards v. State, 813 S.W.2d 572, 583-84 (Tex. App.-Dallas 1991, pet ref'd). Possession is more than being where the action is. Id. at 583. Possession means dominion and control. Id. If the accused does not exclusively possess the place where the authorities find the contraband, the State does not prove the two elements of possession unless additional independent facts affirmatively link the accused to the contraband. Guiton v. State, 679 S.W.2d 66, 69 (Tex. App.-Dallas 1984), aff'd, 742 S.W.2d 5 (Tex. Crim. App.1987). Possible affirmative links include: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed large amounts of cash; (14) whether the defendant was driving a car containing the drugs. See Pettigrew v. State, 908 S.W.2d 563, 571 (Tex. App.-Fort Worth 1995, pet. ref'd); Washington v. State, 902 S.W.2d 649, 652 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd); Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.-Austin 1994, no pet.); Frierson v. State, 839 S.W.2d 841, 849 (Tex. App.-Dallas 1992, pet. ref'd). There is no set formula for determining whether the facts are sufficient to establish an affirmative link sufficient to support a conviction. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). the number of affirmative links is less important than the logical force by which the links, either alone or in combination, establish appellant possessed the contraband. See Martinets, 884 S.W.2d at 188. In evaluating the legal sufficiency of the affirmative links, we view the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). The trial judge, as trier of fact, is the exclusive judge of the credibility of the witnesses and the weight to assign to their testimony. See Joseph, 897 S.W.2d at 376. In Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995), the court of criminal appeals stated the law concerning proof of possession of illegal drugs, as follows: Because, under our law, an accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly. Under our precedents, it does not really matter whether this evidence is direct or circumstantial. In either case it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. This is the whole of the so-called "affirmative links" rule. Id. at 747.