Member
| From CCA in 2002: 92 S.W.3d 531
"Possession need not be exclusive to the accused, but when more than one person exercises control over the contraband, some affirmative link must exist between the accused and the contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). Placing the accused in the vicinity of the contraband [**22] is not enough. Smith v. State, 737 S.W.2d 933, 941 (Tex. App. -- Dallas 1987, pet. ref'd). The affirmative link, consisting of additional facts and circumstances, must establish the essential possession elements of control and knowledge. Smith, 737 S.W.2d at 941. Several Court of Criminal Appeals decisions have listed factors relevant to the determination of whether an affirmative link exists. These include: whether the contraband was in open or plain view, Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987); whether the accused handled the contraband, see McGoldrick, 682 S.W.2d at 580; whether the appellant was in the place searched at the time of the search, see Martin, 753 S.W.2d at 387; whether the contraband was conveniently accessible to the accused, Guiton, 742 S.W.2d at 8; whether the accused owned or controlled the place where the contraband was found, Guiton, 742 S.W.2d at 8; and whether the accused made any incriminating statements at the time of the arrest, Martin, 753 S.W.2d at 387." |
