Part II: “Linking” and “Reasonable Inferences”


In Part I of this blog, I discussed the issues that arise when more than one person is charged with possession of the same item(s) of contraband—so-called “joint possession” cases. I ended Part I by suggesting that, while this might make for easy police work (i.e. just charge everyone in the car, instead of investigating further), it often enough makes for at least one substantially weaker case. In Part II, I’ll explain why one of the cases ends up being “substantially weaker”—and thus much more defensible.


“Linking” The Accused to the Contraband: mere presence not sufficient


Proving “possession” requires the State to prove two things: (1) actual care, custody, control, or management” of the contraband, and (2) that the Accused knew that the item possessed was contraband. If the State cannot prove “possession,” that’s the end of the case. So, for example, how can the State prove the Accused Passenger knew about the pot underneath the back of passenger seat?


The State must “link” each occupant of the car to the contraband. (“Where an Accused is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must be developed which link the defendant to the contraband in order to raise a reasonable inference of the defendant’s knowledge and control of the contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); Murphy v. State, 200 S.W.3d 753, 761 (Tex.App.—Texarkana 2006)(aff’d, 239 S.W.3d 791 (Tex.Crim.App. 2007)).


Simply being present in the same space as the contraband in such situations is not sufficient to “link” the Accused to the contraband, in and of itself. (“The mere presence of the defendant at the scene of an offense or even knowledge of the offense does not make one a party to possession.” Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App. 1981)(rehearing denied). This makes sense: we don’t want the Law to punish people who just happen to be in the wrong place at the wrong time, and otherwise have no culpability. Put another way, the evidence linking the Accused to the contraband “must establish, to the requisite level of confidence, that the Accused’s connection with the drug was more than just fortuitous.” Poindexter, 153 S.W.3d at 405-6.


Links Creating “Reasonable Inference That Accused Knew of Drugs and Location of Drugs” Required


Convictions based on circumstantial evidence are, as a general proposition, notoriously weak. Towards this, proof amounting only to a strong suspicion or mere probability is insufficient.” Guitton v. State, 742 S.W.2d 5, 10 (Tex.Crim.App. 1987)(en banc)(citing, Dubry v. State, 582 S.W.2d 841 (Tex.Crim.App. 1979)


Thus, to convict the Accused of possession in joint possession cases, the State must prove that the Accused knew there was contraband in the car, and knew that the substance possessed was contraband.


Facts and Circumstances “Linking the Accused” to the Contraband


“In order to support a conviction for possession of marijuana, the evidence must affirmatively link the Accused to the contraband in such a manner and to the extent that a reasonable inference may arise that the Accused knew of the contraband’s existence, and of its whereabouts. [citations omitted]. This affirmative link is established by showing additional facts and circumstances which tend to indicate the Accused’s knowledge and control of the contraband.” Christopher v. State, 639 S.W.2d 932, 935 (Tex.Crim.App. 1982).


But what kind of facts and circumstances are sufficient to indicate the Accused’s knowledge and control of the drugs? The following is a non-exhaustive list of factors that have been found to sufficient, either singly or in combination, to establish a person’s possession of contraband:


(1) the defendant’s presence when a search is conducted (but recall that mere presence, in and of itself, is not sufficient to convict)


(2) whether the contraband was in plain view;


(3) whether the contraband was in close proximity to, or accessible by, the defendant;


(4) whether the place where the contraband was found was enclosed;


(5) whether the defendant was under the influence of narcotics when arrested;


(6) whether the defendant was found to be in possession of other contraband or narcotics when arrested;


(7) whether the defendant made incriminating statements when arrested (regarding the contraband);


(8) whether the defendant attempted to flee;


(9) whether the defendant made furtive gestures;


(10) whether there was an odor of contraband present at the scene;


(11) whether other contraband or drug paraphernalia were present ;


(12) whether the defendant owned, or had a right to possess the place where the contraband was found;


(13) whether the defendant was found with a large amount of cash;


(14) whether the defendant possessed weapons; and


(15) whether the conduct of the defendant indicated a consciousness of guilt.


See Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006); Hargrove v. State, 211 S.W.3d 379, 385-6 (Tex.App.—San Antonio 2006)(pet. ref’d).




Being present with others in a vehicle where drugs are found will almost certainly get you arrested, because the general police approach is to arrest everyone and let the court sort it out later. But, in order to be convicted of possession of the drugs, the State must prove that you (1) had care, custody, control, or management over the contraband, and (2) that you knew the item possessed was contraband. Merely being present with others in the same car as drugs, in and of itself, is not sufficient to convict. The connection between the Accused person and the drugs must be more than just incidental. The State is required to prove more than just a “fortuitous” or incidental connection by “linking” the Accused to the drugs. If the State is unable to do this, a conviction cannot stand.