Williams v. State , 770 S.W.2d 859 ( 1989 )

OPINION

BURGESS, Justice.

A jury convicted appellant of possession of a controlled substance. The jury also found he was an habitual offender and assessed his punishment at thirty-five years’ confinement in the Texas Department of Corrections.

Appellant brings three points challenging the sufficiency of the evidence to support the jury’s verdict that he “possessed” certain cocaine rocks found underneath the seat of a police car in which he was riding. Of course, in reviewing the sufficiency of the evidence, an appellate court, viewing all the evidence in the light most favorable to the jury’s verdict, must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. State, 672 S.W.2d 801, 808 (Tex.Crim.App.1984). Where a conviction is based on circumstantial evidence, the evidence must exclude every other reasonable hypothesis except the guilt of the accused. Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984).

Appellant maintains, in essence, that the state failed to “affirmatively link” him with the cocaine rocks found underneath his seat in the police car. In order to prove a violation of TEX.REV.CIV.STAT. ANN. art. 4476-15, sec. 4-04(a) (Vernon Supp.1989) for possession of a controlled substance, the state must first show that the defendant exercised care, custody or management over the substance and, secondly, that he knew what he possessed was contraband. Humason v. State, 728 S.W.2d 368, 364 (Tex.Crim.App.1987). It is not enough that a defendant was present in the vicinity of a controlled, substance. Id. There must be some independent facts and circumstances affirmatively linking an accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as management or control over it. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985).

The state produced at trial the two police officers who were responsible for arresting appellant. Each officer testified that before their shift, they performed a routine procedure of checking their patrol car, including sliding the back seat out to look for objects caught in or under the seat. Nothing was found in or under the back seat at that time. During the course of the day, the officers stopped the car appellant was driving for an expired inspection sticker. After failing to produce a driver’s license and proof of liability insurance, appellant was arrested. Appellant’s hands were tightly cuffed behind his back, but the cuffs were loosened after he was placed in the right rear passenger seat of the patrol car. The passenger in appellant’s car stood outside the car as Officer Godeaux conducted a cursory inventory of the car which took about five minutes. During that time, Officer Simonson turned his back to appellant several times. Appellant was then driven to the jail which was about two minutes away. Officer Simon-son who was sitting in the back left seat with appellant noticed appellant “fidgeting” during the ride to the jail. When they reached the jail, Officer Simonson removed appellant from the car and once again slid out the back seat, finding four white crystal rocks, which were later identified as cocaine, under the seat in which appellant was sitting.

Both officers testified that appellant was the only person they took into custody that day. Officer Godeaux testified he could not remember if they had any calls before arresting appellant, but that the car would have been left unattended if they had and that the back seat would not have been reinspected after those periods. Officer Simonson testified that they “probably made some traffic stops earlier in the day” at which time the car would have been left unattended. Officer Godeaux also testified that they stopped for something to eat but locked the doors while in the restaurant. He characterized the area they patrolled as a high-crime area where illicit drugs were prevalent. No one actually saw appellant deposit the drugs in the back seat or found any cocaine on his person.

The state argues that the theory that someone sneaked into the car while it was unattended and stashed cocaine rocks in the seat was not a “reasonable hypothesis” which required the state’s rebuttal. However, even accepting this argument, the fact remains that the only evidence connecting appellant to the cocaine was his non-exclusive access to the patrol car. In Humason, 728 S.W.2d 363, the court of criminal appeals determined evidence insufficient to prove possession of cocaine where there was no evidence that the defendant had sole access to the car, that the cocaine was in plain view, that the defendant was intoxicated, or that the substance had an apparent odor. The case before us is almost exactly on point. Other than appellant’s presence in the police car, there were no facts and circumstances affirmatively linking appellant with the contraband. As a result, the evidence is insufficient to sustain appellant’s conviction, and his points of error must be sustained. Martin v. State, 753 S.W.2d 384, 388 (Tex.Crim.App.1988). The judgment of the court below is reversed, and appellant is ordered acquitted. See Humason, 728 S.W.2d 363.

REVERSED.