Oaks v. State , 629 S.W.2d 272 ( 1982 )

ON MOTION FOR REHEARING

ROBERTSON, Justice.

This is an appeal from a conviction for possession of heroin for which the court set a punishment of confinement for three years. Appellant contends the evidence is insufficient to support the verdict. We do not agree and, therefore, we affirm the judgment of the trial court.

The evidence, viewed in the light most favorable to the State, shows that on December 4, 1978, Officer Jerry W. Foster of the Drug Abuse Section of the Vice Control Division of the Dallas Police Department was surveilling a residence in Dallas County. During the morning he saw ten known heroin addicts go to the door of the residence. In each case, appellant came to the front door and talked for a few moments. Each addict gave appellant money in exchange for an unidentified item. Officer Foster could not tell what the item was. In the afternoon, four such exchanges were made.

That afternoon, Officer Foster and another Dallas Police Officer, Officer Burkett, executed a warrant at the residence. There were fifteen people at the residence. Officer Burkett discovered thirteen red capsules in a wastepaper basket approximately six to eight inches from where appellant was standing. Appellant was the only person near the basket. The capsules contained heroin and had a street value of $12.00 each. Officer Burkett testified that he could see the capsules when he was standing over the basket. Appellant had an unspecified amount of money on his person.

In order to establish the unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Dubry v. State, 582 S.W.2d 841 (Tex.Cr.App.1979). It is not necessary to prove that the accused had exclusive possession of the narcotics in question. Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978). When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Wiersing v. State, 571 S.W.2d 188 (Tex.Cr.App.1978).

The affirmative link can be established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband. Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979). Among such additional facts which can establish the affirmative link are: the contraband was in open or plain view, Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); the place where the contraband was found was enclosed, Mendoza v. State, 583 S.W.2d 396 (Tex.Cr.App.1979); when the contraband was found, there was sufficient light for a person to see that contraband, Hernandez v. State, supra; the amount of contraband found, Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); the narcotic was conveniently accessible to the accused, Hahn v. State, 502 S.W.2d 724 (Tex.Cr.App.1973); and the accused’s action toward the contraband may show his intent to violate the statute, Alaniz v. State, 458 S.W.2d 813 (Tex.Cr.App.1970).

An examination of the record in the present case shows that there is sufficient evidence to affirmatively link appellant to the contraband. Appellant was within six inches of the contraband at the time the officers executed the warrant. The contraband was in plain view from appellant’s location and no other person was close to the contraband. Appellant had an unspecified amount of money on his person and had been observed selling something to fourteen known heroin addicts earlier that day.

Our prior opinion is withdrawn. The State’s motion for rehearing is granted and the judgment of the trial court is affirmed.

Affirmed.

GUITTARD, C. J., and CARVER, SPAR-LING, VANCE, ALLEN and GUILLOT, JJ., concur. AKIN, STOREY, STEPHENS and WHITHAM, JJ., join in this opinion.