James Walter Brennan v. The State of Texas--Appeal from 22nd District Court of Hays County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-471-CR
AND
NO. 3-91-502-CR
JAMES WALTER BRENNAN,
NO. 3-91-500-CR
AND
NO. 3-91-501-CR
SHIRLEY BRENNAN,

APPELLANTS

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NOS. CR-90-325; CR-90-326; CR-90-319; & CR-90-320,
HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

These appeals are taken from appellants' convictions for possession of marihuana of more than four ounces but less than five pounds, and for possession of methamphetamine of less than twenty-eight grams. The cases were jointly tried in a bench trial on pleas of not guilty. The trial court found each appellant guilty of the offenses tried and assessed punishment in the possession of marihuana cases at ten years' imprisonment and a thousand dollar fine. In the possession of methamphetamine cases, each appellant was assessed ten years' imprisonment. The imposition of sentences was suspended in each case and the appellants were placed on probation subject to certain conditions. These appeals followed.

In each of the four appeals, the appellants in a single point of error challenge the sufficiency of the evidence to sustain the conviction. On July 12, 1990, Deputy Norman De La Rosa of the Hays County Drug Task Force received an anonymous tip that James Brennan was growing approximately twenty-five marihuana plants behind his residence at 11501 Oak Branch Drive. De La Rosa and Deputy Bill Huddleston went to the address about 5:30 a.m., entered an open field, and travelled down a fence line until they got to the site. When it got "light," they observed a patch approximately eight by twelve feet containing what appeared to be marihuana plants from five to eight feet tall. A search and an arrest warrant was then secured by Officer Penny Dunn.

Upon arriving at 11501 Oak Branch Drive, the law enforcement officers, armed with the warrant, found no one at the residence. Some thirty yards from the rear of the residence and in a clump of trees, the officers discovered approximately twenty-five marihuana plants ranging from three to eight feet tall. A water hose ran from the well at the side of the residence to the growing plants bordered by rocks. A small chair was positioned close by. At the garden site, the officers also found soil and fertilizer in a bag, gardening tools, nylon rope and stakes for the plants.

Officer Dunn testified that she searched the children's room, (1) kitchen, dining room and living room. On a coffee table in the living room she found some narcotic paraphernalia such as pipes, a bong, and a brown paper sack filled with what Dunn described as marihuana. (2)

Lieutenant Don Montague of the Hays County Sheriff's Department testified that he conducted a search of the master bedroom. He related that based on his experience and training he was able to identify marihuana. On a bedside table in the master bedroom, Montague observed what appeared to him to be chopped up marihuana leaves, drying. (3) Montague also observed a tray-looking device which "had what we felt like was residue that was found on the headboards." (4)

The officers opened a large locked closet (5) off the master bedroom and found two bags of marihuana on a shelf next to a set of triple-beam scales, a small clear bottle thought to contain a controlled substance, and three plastic baggies in a tobacco pouch. The officers also found in the closet a gam board with connotations believed to be related to narcotics, and two undated videotapes of individuals engaging in various sexual acts. The videotapes were introduced as State's exhibits nos. 34 and 35. Two separate couples appeared at different portions of each videotape. One couple appeared on both tapes. Officer Dunn identified appellants as the "people" in a portion of State's exhibit no. 34, played for the trial court. Dunn made no mention of the other couple featured on that tape nor did she refer to State's exhibit no. 35. Dunn identified a couch that appeared on one of the undated videotapes as a couch seen in the living room of the search house. She was unable to establish the location where the videotapes were filmed.

A computer found in the house contained a "Garden Maintenance Performance Log" listing the dates of watering and fertilizing. The log made no reference to marihuana or narcotics.

Dennis Ray Ramsey, chemist/toxicologist with the Texas Department of Public Safety, testified that certain substances were submitted for analysis by Deputy Huddleston (who had participated in the search). The chain of custody was completed. Ramsey testified that one substance submitted to him, shown to be the plants taken from the garden, was three pounds and five ounces of marihuana. (6) The two bags of substance taken from the locked closet off the master bedroom was shown by chemical analysis to contain 4.17 ounces of marihuana. The clear bottle found in the locked room was shown to contain seven milligrams of methamphetamine, including adulterants and dilutants. A trace of methamphetamine was found on one of the plastic baggies discovered in the closet. The chemist was unable to determine its weight.

The State introduced into evidence a warranty deed with a vendor's lien showing that lot sixteen (16) and 0.186 acres of land, more or less, out of lot seventeen (17), Oak Run West, a subdivision in Hays and Travis Counties was conveyed to "James W. Brennan, Sr. and wife, Shirley B. Brennan" of Travis County on May 31, 1985. The deed was filed for record on June 12, 1985. The State produced no further evidence to connect the above described premises to 11501 Oak Branch Drive in Hays County. (7) The appellants rested with the State.

The standard for reviewing the sufficiency of the evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the court's judgment in a bench trial, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). The standard for review is the same in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990); Christian v. State, 686 S.W.2d 930, 934 (Tex. Crim. App. 1985).

A conviction based upon circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant's guilt. Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987); Burns v. State, 676 S.W.2d 118, 120 (Tex. Crim. App. 1984). Proof which amounts only to strong suspicion or mere probability of guilt is insufficient to support a conviction. Humason, 728 S.W.2d at 366; Moore v. State, 640 S.W.2d 400, 403 (Tex. Crim. App. 1982). If there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that guilt has been shown beyond a reasonable doubt. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App. 1985). (8)

Where an accused is charged with the unlawful possession of a controlled substance such as marihuana or methamphetamine, the State must prove two elements: (1) that the accused exercised care, control, custody, or management over the contraband, and (2) that the accused knew the matter possessed was contraband. Martin, 753 S.W.2d at 387; Whitworth v. State, 808 S.W.2d 566, 568 (Tex. App.--Austin 1991, pet. ref'd). "Possession" means actual care, custody, control, or management. See Tex. Health & Safety Code Ann. 481.002(38) (West 1992). "Possession" is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. See Tex. Penal Code Ann. 6.01(b) (West 1974). Such definition in the penal code applies to a prosecution under the Controlled Substance Act. Tex. Penal Code Ann. 1.03(b) (West 1974). The mens rea requirement of a possessory offense is knowledge by an accused that his conduct or the circumstances surrounding his conduct constitutes possession of a controlled substance. Tex. Penal Code Ann. 6.03(b) (West 1974); Humason, 728 S.W.2d at 365; Watson v. State, 752 S.W.2d 217, 222 (Tex. App.--San Antonio 1989, pet. ref'd).

Possession of a controlled substance need not be exclusive, and evidence that shows the accused jointly possessed the controlled substance with another is sufficient. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Oaks v. State, 642 S.W.2d 174, 176 (Tex. Crim. App. 1982). Whether the theory of the prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband by a showing that indicates the accused's knowledge and control of the contraband. Waldon v. State, 479 S.W.2d 499, 501 (Tex. Crim. App. 1979). This is particularly true when the accused is not in exclusive possession of the place where the contraband is found. In such cases there must be additional independent facts and circumstances that affirmatively link the accused to the controlled substance in such a manner that it can be concluded that he or she had knowledge of the contraband as well as control over it. Martin, 753 S.W.2d at 387; Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981). The burden of showing an affirmative link or links rests on the State. Damron v. State, 570 S.W.2d 933, 935 (Tex. Crim. App. 1978). Mere presence of an accused at the scene of an offense does not make him a party to joint possession. Oaks, 642 S.W.2d at 177. In Rhyne v. State, 620 S.W.2d 599 (Tex. Crim. App. 1981), the court stated: "The mere presence of a defendant at the scene of an offense or even knowledge of an offense does not make one a party to joint possession." Id. at 601 (emphasis added). Further, the fact that defendant owns or has rented premises upon which narcotics are found, if occupied by others, is not usually sufficient in and of itself to justify a finding of joint possession. Id. Possession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed. Oaks, 642 S.W.2d at 177.

The issue then is whether the State, in the instant case, established such independent facts and circumstances to affirmatively link appellants to the marihuana or methamphetamine by sole or joint possession. In this regard, we have reference only to the marihuana found in the "garden" near a wooded area and the marihuana and methamphetamine found in the locked closet off the master bedroom. These were the only substances shown to have sufficient weight to fall within the prohibited limits.

The State produced evidence that lot 16 and part of lot 17 in the Oak Run West subdivision had been conveyed to "James W. Brennan, Sr. and wife, Shirley B. Brennan," in 1985, some five years prior to the alleged offense. The names in the deed are similar to those of appellants, but the State did not tie the legal description to 11501 Oak Branch Drive, even if it can be argued that both are located in the Oak Run West Subdivision. Deputy Huddleston testified that during the search personal papers were seized, which was standard procedure. When Huddleston was asked if any of the seized items indicated who lived at 11501 Oak Branch Drive, the trial court sustained the hearsay and best-evidence-rule objections, but it offered the prosecutor the opportunity to introduce the papers or items. The prosecutor did not pursue the matter with Huddleston. When Officer Dunn was asked if she saw appellants' names on any piece of property at the location, the trial court sustained the same objections, and the State took no further action. The State did not introduce city or telephone directories, utility records, employment files, tax rolls, or other documents to show that appellants lived at the address in question. There was no showing that men's and women's clothing were found in the master bedroom or elsewhere in the house. Officers did observe photographs of appellants in the house, independent of the videotapes found in the locked closet or room, but these observations were not developed in any detail. Neither appellant was present at the commencement of the search. It appears that during the search the officers summoned Shirley Brennan to the location. Officer Penny Dunn testified that when Shirley Brennan arrived she inquired of this appellant whether she lived there. Appellants' counsel objected that there was no showing Shirley Brennan had been "mirandized" and offered to take Dunn on voir dire examination to establish that the officers had asked appellant to come to the residence--"a kind of custody." The trial court immediately sustained the objection and the prosecutor dropped the subject.

The record is not clear as to the size of the house or to those individuals that might have lived there. One of the officers made a diagram of the house. When the prosecutor sought to offer it into evidence, appellants' counsel objected on the basis that the diagram made reference to the "James Brennan's Resident," a matter which had not yet been established. The objection was sustained. The prosecutor did not offer to eliminate or redact the reference. He did not pursue the matter and the diagram was not admitted into evidence. Officer Dunn testified that there was what appeared to be a children's bedroom, but "they" were not present at the time of the search. (9)

In its brief, the State calls attention to the fact that the appearance bond executed by James Brennan reflects his address as 11501 Oak Branch Drive and that his next of kin was Shirley Brennan. The record does not show that this bond was introduced into evidence or that the trial court took judicial notice of the same. The State cites Langford v. State, 632 S.W.2d 650, 651 (Tex. App.--Houston [14th Dist.] 1982, no pet.) to support its contention that the bond may be considered evidence. In Langford, the bail bond was actually introduced into evidence. In addition, one officer testified from personal knowledge that the defendant lived at the address in question. Another officer observed mail at the house addressed to the defendant. Moreover, the evidence showed that the defendant led the officers to his house. Langford does not support the State's argument. The State's evidence is meager at best to establish appellants owned or lived at the address in question. As noted earlier, the fact that a defendant owns or has rented the premises upon which contraband is found, if occupied by others, is not usually sufficient alone to justify a finding of joint possession. Rhyne, 620 S.W.2d at 601; Williams v. State, 498 S.W.2d 340, 341 (Tex. Crim. App. 1973); Hoss v. State, 735 S.W.2d 899, 902 (Tex. App.--Houston [14th Dist.] 1987, no pet.); Campos v. State, 716 S.W.2d 584, 586 (Tex. App.--Corpus Christi 1986, no pet.).

Moreover, some of the more commonly recognized affirmative links are not present in the instant cases. Appellant Shirley Brennan was taken into custody after she arrived at the premises at the request of the officers. Appellant James Brennan was arrested at his place of employment and taken to the Sheriff's office. There was no showing that they tried to flee, made furtive gestures, made incriminating statements at the time of their arrest, or had contraband on their persons, or were under the influence of any narcotic. If they were searched incident to their arrests, there was no showing that they had keys to the house in question or keys to the locked room off the master bedroom. There was no evidence of clothing, men's or women's, or personal belongings tying them to the master bedroom, and no direct evidence they individually or jointly had access to the locked room where the 4.17 ounces of marihuana and the methamphetamine were discovered. There was no evidence offered showing that either appellant had been seen planting, cultivating, watering or working the rock bordered garden where the growing marihuana plants were found. No fingerprint evidence was offered to establish their connection with the residence, the locked room, or the garden items and tools. A cigarette package was found near the garden and the same brand cigarette package was found in a trash can in the house but neither appellant was shown to smoke that brand.

In Damron, the evidence revealed that while Damron was away from his home, a search warrant was executed at the home. Id. at 934. Damron's wife and child were the only persons in the home when the search commenced. In a bedroom closet authorities found one pound of marihuana in various containers and some large stems of marihuana plants. Damron was arrested away from home, and by the time he was taken to his residence, the search had been completed. Evidence showed that two days prior to the search Damron's brother-in-law, who had previously been convicted of marihuana possession, had been in the house.

In finding the evidence insufficient to support Damron's conviction, the court noted the following:

 

In the instant case the appellant was (1) not at the place searched at the time of the search, and (2) there were other persons present at the time of the search and shown to be living there so appellant was not in exclusive possession, (3) the marihuana was found in a closet in a bedroom without any showing it was appellant's bedroom or the only bedroom in the house and no showing of appellant's personal belongings in the closet or bedroom or even the observation of any men's clothing, etc., and (4) appellant was not found in possession of any contraband at the time of arrest nor (5) was he under the influence of any narcotic and (6) he did not make any incriminating statements at the time of the arrest.

 

Id. at 936.

 

The most damaging evidence for both appellants was the undated videotapes displaying sexual activity which the prosecutor asserted also demonstrated the occasional use or simulated use of a bong by the couple shown on the tapes. Officer Dunn identified appellants in the courtroom as "the people" in one of the videotapes. The difficulty is that there were two separate couples on each tape and Dunn did not distinguish between them. These tapes may support the conclusion that at some time prior to the search in question appellants had used narcotic paraphernalia and were familiar with marihuana but that alone would not establish the necessary knowledge and control of the marihuana in the locked room or the marihuana in the garden. Whoever lived in the house would have been aware of the marihuana and narcotic paraphernalia in plain view, but this alone would not have been sufficient to show the requisite knowledge and control of the contraband in the locked room or garden to establish joint possession where others occupy the premises. See Espinoza v. State, 642 S.W.2d 202, 204 (Tex. App.--Houston [14th Dist.] 1982, no pet.). In a circumstantial evidence case, one inference cannot be founded upon another to sustain a conviction. Id. Moreover, knowledge of the existence of something does not necessarily constitute control of it. See Brady v. State, 771 S.W.2d 734, 736 (Tex. App.--Fort Worth 1989, no pet.). There was no evidence of conduct by appellants which showed that they exercised control over the contraband, the possession of which the State relies upon for conviction. The record is also devoid of evidence showing that appellants aided or encouraged each other or any other person in the possession of the marihuana and methamphetamine. Id., see also Tex. Penal Code Ann. 7.02(a)(2) (West 1974).

In Brady, the court considered a situation where a husband was growing marihuana in a family greenhouse. The State failed to produce any evidence that the defendant-wife knew that the marihuana was in the greenhouse or that she aided or encouraged her husband in the possession of marihuana. The court reversed the conviction citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Brady, 771 S.W.2d at 738. In Marable v. State, 802 S.W.2d 7 (Tex. App.--Texarkana 1990, no pet.), the evidence was insufficient to convict a farmer's wife of possession of marihuana even though there was extensive evidence that the farmer and his daughter cultivated plots of marihuana. The evidence against the wife did not go beyond establishing that she lived on the property.

While every circumstantial evidence case must be judged by its own facts, the presence or absence of various factors often determine whether the requisite affirmative links are sufficient. McGuill v. State, 704 S.W.2d 46, 49 (Tex. App.--Corpus Christi 1985, pet. ref'd). We have examined the cases cited by the State in support of the convictions and find that they are distinguishable. (10)

While the evidence may suggest the guilt of appellants, the proof in these cases amounts to no more than a mere probability or strong suspicion and is insufficient to prove beyond a reasonable doubt that appellants possessed the marihuana and methamphetamine in question, even when the evidence is viewed in the light most favorable to the court's judgment and the "rationality" test of Jackson v. Virginia is applied. Rodriguez v. State, 635 S.W.2d 552, 554 (Tex. Crim. App. 1982). The State simply did not meet its burden of proof. Appellants' points of error are sustained.

When this Court finds that the evidence is insufficient to sustain the convictions, the constitutional guarantee against double jeopardy precludes further prosecution of the causes. Burks v. United States, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).

The judgments are reversed and reformed to reflect an acquittal in each case.

 

John F. Onion, Jr., Justice

[Before Justices Powers, Jones and Onion*]

Reversed and Reformed

Filed:

[Do Not Publish]

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (1988).

1. This room was also described in the record as a "teenager's room."

2. This substance does not appear to have been submitted for chemical analysis and the record does not reveal its weight.

3. Here again, the record does not reveal the amount of the substance observed nor does the record show that this substance was ever submitted for chemical analysis.

4. The "residue" was not further described, and the record does not identify the "residue."

5. The record does not reveal just how the large closet or room was locked or how the officers opened the room.

6. Officer Dunn revealed that the plants were stripped and dried before being submitted for chemical analysis as required by the Texas Department of Public Safety.

7. The search warrant introduced by appellants at the hearing on the motion to suppress reflects 11501 Oak Branch Drive is in the Oak Run Subdivision in Hays County but reflects no legal description. The trial court sustained appellants' objection to introduction of the warrant at the trial on the merits.

8. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), abolished the reasonable hypothesis analytical construct of innocence doctrine formerly used in circumstantial evidence cases. Geesa made clear that it was not to be applied retroactively. The instant case is a pre-Geesa case and Geesa is inapplicable.

9. At the suppression hearing, Deputy Montague testified there were pictures "on the wall of a boy and girl who appeared to attend high school." He did not know if they had obtained the age of seventeen years. He did not know specifically where they lived. He had no prior information on the "son," but knew he had a different last name. None of this testimony was re-offered at the trial.

10. The State notes that in Barry v. State, 629 S.W.2d 84 (Tex. App.--Dallas 1981, pet. ref'd), there was no proof that the defendant was in exclusive possession of the premises or that he owned or rented the premises, yet the evidence was sufficient because the contraband was found in plain view at numerous locations in the apartment, it was accessible to the defendant and there was a showing that he was familiar with contraband. An examination of the Barry opinion shows that the defendant was present at the time of the search, there was an odor of marihuana in the bedroom of the defendant's girlfriend's apartment, and the defendant was standing in the doorway of the bedroom. Men's clothing was found in the bedroom as well as a court arraignment sheet bearing the defendant's name. There was loose marihuana in various places in the apartment conveniently accessible to the defendant who apparently could recognize it on sight as marihuana. Marihuana was also found in his automobile. Without question, the case is distinguishable on the facts.

 

Thomas v. State, 658 S.W.2d 175 (Tex. Crim. App. 1983), relied upon by the State, was reversed because of improper time restrictions on the defendant's voir dire examination of the jury panel. In passing on the sufficiency of evidence, the court merely noted that the defendant and his wife were residents of the home involved and were present when the search was conducted and contraband seized at locations in open view in common areas. The husband's conviction for possession of methamphetamine was upheld. No other facts were disclosed and no authorities were cited. We do not deem Thomas controlling.

 

The State also argues that "possession" can be proved by the "existence of a well-kept and cultivated garden." The State cites Estrada v. State, 643 S.W.2d 753 (Tex. App.--San Antonio 1982, no pet.) where the husband alone was convicted of possession of marihuana over four ounces. Acting on an anonymous tip police officers went to the address given. The defendant's wife was standing in a marihuana patch with freshly picked leaves in her hand. The defendant was standing nearly within reaching distance of the growing plants. Other plants were drying on the clothes line. After a search warrant was obtained, the officers found marihuana cigarettes in the house. While pointing out that the State could have been more diligent in offering evidence of the defendant's nexus to the premises, the court affirmed the conviction of the husband. The facts are a far cry from those in the instant case.

 

There were also gardens in Smith v. State, 722 S.W.2d 205, 209 (Tex. App.--San Antonio 1986, no pet.), cited by the State. Three gardens of marihuana plants were discovered within twenty-five to forty feet from a trailer house. A garden hose running from the trailer house could reach all three gardens. Some marihuana plants were five to six foot tall. They were visible from several parts of the trailer house. Smith and a companion were the only two people on the property. Officer Cogburn, who had talked to Smith previously, testified that the trailer house was Smith's residence. Cogburn saw jewelry, clothing and personal items of Smith's in the trailer and, in plain view, eighteen potted marihuana plants, drug paraphernalia, items used to process marihuana, marihuana being processed, and processed marihuana. Smith's conviction for possession of marihuana over four ounces and less than five pounds was upheld. The opinion does not indicate that the mere presence of the gardens determined the outcome of the appeal.

 

Williams v. State, 524 S.W.2d 705 (Tex. Crim. App. 1975), is a more difficult case to distinguish at least as to the wife's conviction. The defendants, husband and wife, lived at the residence in question. In fact, they told the officer prior to their arrests for possession of marihuana that they lived there. The record was devoid of evidence that anyone else occupied or had access to the house. In the back yard officers observed marihuana plants growing. In the house marihuana seeds and narcotic paraphernalia were found. After arrest, the husband told the officers that the marihuana plants were his and that he grew them and that his wife need not be arrested. Both convictions were upheld. Campos noted in effect that Williams was contrary to a number of cases holding that the State was required to show more than mere presence or residence to establish a link between the accused and the contraband. Id. 716 S.W.2d at 586. See Rhyne, 620 S.W.2d at 601; Williams v. State, 498 S.W.2d 340 (Tex. Crim. App. 1973); Hoss v. State, 735 S.W.2d 899, 902 (Tex. App.--Houston [14th Dist.] 1987, no pet.). Further, factual differences separate the instant case and Williams.

 

The State asserts that appellants were married but does not point to the record where the evidence established their martial status. The deed referred to similar named individuals as "James W. Brennan and wife . . . ," but it was never proven appellants were the same individuals. If appellants were one of the couples on the videotapes, then on some unknown dates they were sexually intimate, but the tapes do not reflect the marital status. The State urges that courts have approved of evidence of a close relationship "as establishing the link between the defendant and the contraband." The State relies upon Ex parte Stowe, 744 S.W.2d 615, 617 (Tex. App.--Houston [1st Dist.] 1987, no pet.). Stowe was convicted of possessing over twenty-eight grams of methamphetamine. His motion for new trial was granted. He then filed a habeas corpus application advancing a former jeopardy claim. The court of appeals upheld the trial court's rejection of that claim. In disposing of Stowe's contention, the court of appeals observed some of the factors to be examined in determining if a sufficient link between the accused and the contraband has been established. Among the factors, the court listed: "11) Whether appellant was closely related to other persons in joint possession of the contraband or to other persons who owned the premises, see Williams v. State, 524 S.W.2d 705, 707 (Tex. Crim. App. 1975); Earvin, 632 S.W.2d 924; [Earvin v. State, 632 S.W.2d 920 (Tex. App.--Dallas 1982, pet. ref'd)]." As noted earlier, Williams is questionable as to the wife's conviction, and the opinion does not discuss the above quoted factor as constituting an affirmative link. Earvin does make a similar statement as Stowe, but the supporting authorities in note 4 at 924 are unpersuasive. Certainly under any circumstances, the factor standing alone does not constitute a sufficient nexus between an accused and the contraband showing his knowledge and control. For the same reasons, we do not find Simpson v. State, 709 S.W.2d 797, 801 (Tex. App.--Fort Worth 1986, pet. ref'd), which cites Earvin, to be controlling. Moreover, Simpson lists the factor as only one of many that may be considered as establishing an affirmative nexus between the accused and the contraband.

 

The State also calls our attention to Davis v. State, 696 S.W.2d 494 (Tex. App.--El Paso 1985, no pet.). Davis was tried alone and convicted of possession of marihuana of more than fifty pounds but less than two hundred pounds. Davis and his female co-defendant lived together in a two bedroom mobile home. They were not present when the officers conducted the search, but both testified at trial. In finding the evidence sufficient, the Court held that affirmative linkage was established by demonstrating control over the premises shared with a co-defendant, familiarity with marihuana by both co-defendant tenants, use of this type of contraband by both, admission of joint ownership of other contraband of the same type and associated paraphernalia in two other locations in the relatively small trailer house, a pervasive aroma of the contraband throughout the premises, and location in plain view of the scales, in proximity to the large cache. On its facts, Davis is also distinguishable from the instant case.