
    Josh STUBBLEFIELD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 06-01-00121-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted March 1, 2002.
    Decided May 22, 2002.
    Discretionary Review Refused July 31, 2002.
    
      Stephen C. Taylor, Humble, for appellant.
    B. Warren Goodson, Jr., Asst. Dist. Atty., Michael J. Guarino, Crim. Dist. Atty., Galveston, for appellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Chief Justice CORNELIUS.

Josh Stubblefield, Jr. appeals his conviction for possession of a controlled substance with intent to deliver, a felony offense. Alleging two prior final felony convictions, the State prosecuted Stubble-field as a habitual offender. The jury found Stubblefield guilty and assessed his punishment at seventy years’ confinement.

Stubblefield contends the evidence is legally and factually insufficient to support his conviction. He also contends the trial court erred in failing to include an accomplice witness instruction in the charge to the jury.

Police officers from a special crimes unit executed a search warrant at a house in Texas City. The police found five persons and various quantities of drugs in the house. One person fled from the house when the officers entered. Stubblefield was lying on a couch next to a coffee table on which a large patty of cocaine was lying in plain view. Other drugs and drug paraphernalia were found in plain view throughout the house. Stubblefield and others were arrested and charged with possession of drugs with intent to deliver.

In his first point of error, Stub-blefield contends the evidence is legally and factually insufficient to support his conviction. In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This requires us to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). In determining the factual sufficiency of the evidence, we review all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

In order to prove unlawful possession of a controlled substance, the state must show that the defendant exercised care, custody, and control of the substance, and that he knew the substance was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988); Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App. [Panel Op.] 1981). It is not enough that the defendant is present at the scene of the offense or even that he has knowledge of the offense; he must exercise, either solely or jointly, some dominion or control over the contraband. Oaks v. State, 642 S.W.2d 174, 177 (Tex.Crim.App.1982); Martin v. State, 753 S.W.2d at 387. One who possesses a substance has control over that substance unless he has divested himself of the right of control by some affirmative act. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp.2002). When the defendant is not in the exclusive control of the place where the contraband is found, there must be independent facts and circumstances indicating that he had knowledge and control of the contraband. Cude v. State, 716 S.W.2d at 47; Oaks v. State, 642 S.W.2d at 177. There must be evidence affirmatively linking the defendant to the contraband, indicating that he possessed it knowingly or intentionally and that the defendant’s connection with the drugs was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).

Circumstances that may link a defendant to the controlled substance are: (1) the defendant’s presence when the search was executed; (2) the contraband was in plain view; (3) the proximity to and accessibility of the contraband; (4) the defendant was under the influence of contraband; (5) the defendant’s possession of other contraband when arrested; (6) incriminating statements by the defendant when arrested; (7) attempted flight by the defendant; (8) furtive gestures by the defendant; (9) there was an odor of the contraband; (10) the presence of other contraband or drug paraphernalia not included in the charge; (11) the defendant’s ownership or right of possession of the place where the controlled substance was found; (12) the drugs were found in an enclosed place; (13) there was a significant amount of drugs; and (14) the defendant possessed weapons or large amounts of cash. De La Garza v. State, 898 S.W.2d 376, 379 (Tex.App.-San Antonio 1995, no pet.); Hernandez v. State, 867 S.W.2d 900, 904 (Tex.App.-Texarkana 1993, no pet.); Castillo v. State, 867 S.W.2d 817, 820 (Tex. App.-Dallas 1993), vacated & remanded on other grounds, 913 S.W.2d 529 (Tex.Crim.App.1995). The number of affirmative links present is not as important as the degree to which they tend to link the defendant to the controlled substance. Williams v. State, 906 S.W.2d 58, 65 (Tex.App.-Tyler 1995, pet. ref d).

The evidence is uncontested that Stubblefield was present when the search was executed. The testimony of officers and a codefendant established that when the officers entered the house, Stubblefield was lying on a couch adjacent to another couch, with a coffee table within Stubble-field’s reach, situated between the couches. Officers and a codefendant testified there was a substantial amount of cocaine in plain view on the coffee table. They further testified they also saw the cocaine on the floor by the coffee table after the table was knocked over by the person initially sitting on the couch adjacent to Stubble-field, Eugene Bookman, as he ran out the back door. Constanza Crisp, the occupant of the house, testified that when she left the room to go upstairs, before the police arrived, Bookman had been “cutting” the cocaine.

There is no evidence that Stubblefield was under the influence of a controlled substance, attempted to flee, or made incriminating statements or furtive gestures during the search. Although officers found marihuana and drug paraphernalia in the house, no contraband, currency, or weapons were found on Stubblefield’s person. The officers found a bag of cocaine on the floor behind the couch where Stub-blefield had been lying. Stubblefield was not a lessor of the house and did not pay for any utilities at the residence, but the possessor of the house testified that Stub-blefield had been living in the house for at least two or three weeks before the search.

We conclude that there are sufficient affirmative links to justify the jury in finding that Stubblefield possessed the contraband. We must remember that proof of joint possession is sufficient to sustain a conviction. Redman v. State, 848 S.W.2d 710 (Tex.App.-Tyler 1992, no pet.); McGoldrick v. State, 682 S.W.2d 573 (Tex.Crim.App.1985).

Of the fourteen affirmative links mentioned earlier, there are at least nine present in this case which, if found by the jury, connect Stubblefield to the contraband: (1) he was present in the house when the search was conducted; (2) the contraband was in plain 'view; (3) he was in close proximity to the contraband, which was on a coffee table less than two feet in front of where he was lying on a couch; and (4) additional cocaine was in a bag behind the couch. One officer testified that narcotics were “all over the place”; (5) there was positive testimony from Crisp, who occupied and paid the utilities on the house that, contrary to Stubblefield’s testimony, he had been living in a bedroom in the house for two to three weeks before the search was executed; (6) there was a large amount of the contraband, and at the time of the search, Eugene Bookman, another resident of the house, was cutting the cocaine preparing it for sale in small portions; (7) other narcotics were located in various places in the house, including marihuana that was packaged for sale; (8) there were crack pipes, a razorblade for cutting cocaine, measuring cups, spoons, and other drug paraphernalia in plain view; and (9) the contraband was in an enclosed place.

Although it is not the number of affirmative links that control but the degree to which they connect the defendant to the contraband, the links present here are more than sufficient to warrant the jury to find that Stubblefield at least jointly possessed the contraband.

Stubblefield also contends he was deprived of a fair trial because the trial court failed to include an instruction on accomplice witness testimony in the jury charge.

A conviction cannot be based on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense, and the corroboration is not sufficient if it merely shows the commission of the offense. Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon Supp.2002). An accomplice witness instruction is required when the evidence clearly shows that the witness is an accomplice as a matter of law. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987). When the witness has been indicted for the same offense as the defendant, the witness is an accomplice as a matter of law. DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App.1990). Crisp testified that she was a code-fendant in Stubblefield’s case and that she had pleaded guilty and agreed to testify for the State. Therefore, Stubblefield was entitled to an accomplice witness instruction in the jury charge. However, Stub-blefield did not request such an instruction and did not object to the trial court’s failure to include one in the charge. Where error in the court’s charge has not been preserved by proper and timely objection, the defendant may obtain a reversal only if the error was so egregious and created such harm that he did not receive a fair trial. Id. at 709, quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g). The actual degree of harm “must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record.” Id.

To test the sufficiency of the corroboration of an accomplice witness, evidence of the accomplice witness must be eliminated from consideration, and the remaining evidence must be examined to ascertain if it tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Gamez v. State, 737 S.W.2d at 323 n. 10. The corroboration testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt.

The corroboration testimony in this case showed more than just the commission of the offense. It established that Stubblefield was on a couch in close proximity to the contraband when the police entered the dwelling. This and the other affirmative links are more than sufficient to convict Stubblefield of the offense absent the accomplice witness’s testimony.

Although Crisp’s testimony went beyond that of the officers, stating that before she went upstairs, Bookman had been “cutting up” the crack cocaine and Stubblefield had been lying on the other couch, there need not be corroboration for each individual piece of an accomplice witness’s testimony. As long as there is independent evidence tending to connect the defendant with the commission of the offense, the entirety of the accomplice witness’s testimony may be considered. Therefore, the jury could have considered Crisp’s testimony that Stubblefield had been living in the house for two to three weeks. Assessing the credibility of such testimony is within the province of the jury.

Any harm caused by the trial court’s error in not submitting an accomplice witness instruction to the jury is not so egregious as to have deprived Stubblefield of a fair trial.

The judgment of the trial court is affirmed.

GRANT, Justice,

concurring in part and dissenting in part.

I agree with the majority that the trial court committed harmless error in failing to include an instruction on accomplice witness testimony in the jury charge. However, I respectfully dissent with the majority’s conclusion that the evidence was sufficient to convict Stubblefield of possession of a controlled substance. The majority concludes that there were sufficient affirmative links to justify the jury in finding that Stubblefield possessed contraband and reminds us that proof of joint possession is sufficient to sustain a conviction. Although proof of joint possession would be sufficient to sustain a conviction, the State failed to meet its burden regarding one of the elements necessary to a finding of sole or joint possession — the element of control.

The “affirmative links” rule has been stated in different ways, which, taken out of context, can appear to relieve the state of its burden to prove the element of control. For example, “the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts,” Waldon v. State, 579 S.W.2d 499, 501 (Tex.Crim.App. [Panel Op.] 1979), “[the evidence] must establish ... that the accused’s connection with the drug was more than just fortuitous,” Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995), and finally, “evidence must affirmatively link the accused to the drug he is alleged to have possessed,” Payne v. State, 480 S.W.2d 732, 734 (Tex.Crim.App.1972).

However, as the court clarified in Brown, “[the ‘affirmative links’ rule] is still, just as it always was, only a shorthand expression of what must be proven to establish that a person possessed some kind of drug ‘knowingly or intentionally.’ ” Brown v. State, 911 S.W.2d at 747. For a finding of possession, whether it be sole possession or joint possession, “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.” McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985), citing Wilkes v. State, 572 S.W.2d 588, 540 (Tex.Crim.App. [Panel Op.] 1978); see also Brown v. State, 911 S.W.2d at 747. Both of these elements may be proved circumstantially, and control may be shown by actual or constructive possession. McGoldrick v. State, 682 S.W.2d at 578. “ ‘Circumstantial evidence’ has been defined as direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.” Watson v. State, 861 S.W.2d 410, 412 (Tex.App.-Beaumont 1993, pet. ref'd). The state must introduce evidence of facts and circumstances which generates a reasonable inference that the accused knew of the contraband’s existence and exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983). This is the “affirmative link.”

Courts have produced a generic list of some of the facts and circumstances that have generated that reasonable inference in different combinations and in particular contexts. Many of these are listed in the majority opinion. While the majority recognizes that the number of factors present is not as important as the logical force the factors have in establishing the elements of the offense, the majority goes on to emphasize that at least nine of the fourteen factors, which the majority erroneously labels affirmative links, are present in this case which, if found by the jury, connect Stubblefield to the contraband, but does not discuss the logical force these nine factors have, in the context of this case, to establish that Stubblefield exercised care, custody, and control of the contraband.

In Earvin, the Dallas Court of Appeals recognized that although the evidence the drugs were both in close proximity and in plain view of the defendant was strong evidence the defendant knew of its presence, it did not necessarily show that the defendant had exercised control over it, since there was no evidence he had used or touched it. Earvin v. State, 632 S.W.2d 920, 925 (Tex.App.-Dallas 1982, pet. refd). The court found the evidence sufficient to convict Earvin, however, because there was also evidence that he exercised control over the money involved in the drug transaction. Id. He snatched the money out of his sister’s hand and gave it back to the undercover officer when he recognized the officer. Id. The court found that the act of snatching the money constituted constructively exercising control over the drugs. Id. The court in Earvin pointed out that it could not find any cases that were reversed for insufficient evidence in which there was evidence the drugs were both in close proximity and in plain view of the defendant. Id. However, no court has found sufficient evidence where there was not some circumstantial evidence generating the reasonable inference that the defendant exercised dominion and control over the contraband. In the cases with the most similar facts where the evidence was found sufficient, there was at least circumstantial evidence the defendant exercised control over the contraband. See Curtis v. State, 519 S.W.2d 883 (Tex.Crim.App.1975) (where defendant found in living room with four others sitting in circle around marihuana, marihuana was also found in a coat pocket in the bedroom where letters addressed to the defendant were also found); Nolen v. State, 872 S.W.2d 807 (Tex.App.-Fort Worth 1994), pet. denied, 897 S.W.2d 789 (Tex.Crim.App.1995) (defendant’s fingerprints were found on contraband); Villegas v. State, 871 S.W.2d 894 (Tex.App.-Houston [1st Dist.] 1994, pet. refd) (where two men were found in house with contraband in plain view, defendant was sole resident and contraband was also found in two closets); Castillo v. State, 867 S.W.2d 817 (Tex.App.-Dallas 1993), vacated & remanded on other grounds, 913 S.W.2d 529 (Tex.Crim.App.1995) (contraband seen falling from defendant’s body); Warmowski v. State, 818 S.W.2d 505 (Tex.App.-San Antonio 1991), aff'd, 853 S.W.2d 575 (Tex.Crim.App.1993), overruled in part on other grounds, 12 S.W.3d 469 (Tex.Crim.App.2000) (defendant made furtive attempt to discard a razor with white substance on it when officers found him and two other men within reach of narcotics and drug paraphernalia, including a snorting mirror).

As in Earvin, there is evidence the drugs on the coffee table were in close proximity and in plain view of where Stub-blefield was lying. There was also evidence there were other narcotics and drug paraphernalia found on the first floor of the house, where the common areas were located. All of this is strong evidence that Stubblefield was aware the drugs were present, but does not necessarily show that Stubblefield exercised control over them. The evidence showing that there was a significant amount of contraband and that another resident of the house was cutting the cocaine preparing it for sale in small portions strongly supports the finding that the drugs were intended for sale and further supports the conclusion that Stubble-field had knowledge the drugs were present, but does not necessarily show that Stubblefield exercised control over them. Additionally, Crisp testified that Stubble-field had been staying in one of the bedrooms for two to three weeks. While this supports an inference that Stubblefield exercised some degree of control over the possessions in the bedroom he occupied, it does not support the inference that he had control over the contraband found in the common areas of the house. Even the testimony regarding the bag of cocaine found behind the couch where Stubblefield was lying is not sufficient to support a reasonable inference that Stubblefield had exercised control over that or any of the contraband in the house.

It is the State’s burden to present sufficient evidence to generate a reasonable inference that Stubblefield not only knew of the contraband’s existence, but exercised control over it. It is one thing for the fact-finder to leap to a conclusion and quite another for the evidence to logically support a fact-finder’s reasonable inference. Although there are at least nine of the “affirmative link” factors present in this case, even in the light most favorable to the prosecution, they do not alone or in combination generate the necessary reasonable inferences.  