OPINION
WALKER, Chief Justice.
Marcus Gerard Davis was found guilty by a jury of his peers of the offense of Possession of a Controlled Substance as a repeat felony offender. Appellant elected to have the judge assess punishment and the judge [818]*818indeed assessed punishment at a term of fifteen (16) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant now appeals his judgment of conviction bringing to this Court one point of error which contends that the trial court erred in holding the evidence to be sufficient to sustain the conviction, because the evidence was insufficient to prove “possession” as alleged in the indictment.
The State of Texas called only three witnesses to testify at trial: Trooper John Martin, Trooper Peter Maskunas (certified peace officers with the Texas Department of Public Safety), and forensic analyst, Lori Bates, an employee of the Jefferson County Regional Crime Laboratory. Appellant chose not to testify nor to call any witnesses on his behalf.
Since we are faced with an “insufficiency of the evidence” point of error, a review of certain facts is necessary. On or about the first day of September 1991, Trooper John Martin and Trooper Peter Maskunas were patrolling in the north-end area of the City of Beaumont, Jefferson County, Texas, at approximately 10:00 p.m. These officers were in uniform driving a marked “Texas Department of Public Safety Highway Patrol” vehicle. The troopers were driving slowly down McHale Street when their vehicle was approached by appellant who, according to Trooper Martin, appeared to him to be “attempting to make contact with us in the car.” Trooper Martin further testified that when appellant got within approximately ten feet of the car, appellant turned and fled. Trooper Martin testified that Trooper Maskunas “hollered for the guy to stop,” got out of the car and pursued appellant through residential yards on foot while Trooper Martin paralleled the chase in the patrol vehicle. Following a brief chase, Trooper Martin observed that Trooper Mas-kunas had apprehended the suspect. Trooper Martin took custody of appellant while Trooper Maskunas returned to a particular point covered in the chase and retrieved a white pill bottle which Trooper Maskunas testified that he had seen appellant throw down during the chase. A “field test” by Trooper Martin, indicated that the bottle contained cocaine which was later submitted to the Jefferson County Regional Crime Laboratory.
The thrust of appellant’s contention of error focuses on whether the evidence was sufficient to support the fact that appellant was in exclusive possession of the place where the contraband was found. Appellant contends that the testimony at trial clearly shows that appellant was not in exclusive control of that particular area where Trooper Maskunas retrieved what was later determined to be “cocaine.” Appellant further contends that the mere fact that appellant “threw down” the seized item does not impute knowledge sufficient to prove possession. Appellant informs that “possession” requires that the defendant have knowledge of and exclusive care, custody and control of the contraband. Based upon this premise, appellant contends that there is no evidence that appellant knew that the pill bottle contained a controlled substance or that appellant knew that the item was a controlled substance.
We set forth certain excerpts from Trooper Peter Maskunas’ testimony:
Q. What happened while you were chasing the subject on foot?
A. I followed the subject behind a residence that was just to the north of McHale Street, a little bit north of where we were at. I yelled for the subject to stop, that I was a police officer. As I was following behind him no more than maybe 10 or 15 feet, I observed him drop a white, looked to be some sort of pill bottle or some sort of white small container, threw it down on the ground. As I ran by, I marked where I could see it. I could see it underneath — right beside a picnic table.
Q. Let me stop you for a second. When you say you marked it, did you mark it in your mind?
A. In my mind, yes, sir.
Q. So, then, you marked it in your mind. And did you continue to pursue the person?
A. Yes sir, I continued to pursue the person. As I was closing on him at this time, I was able to catch up to him a few [819]*819feet away from there, a few yards away from there. And I placed him into custody. At that time Trooper Martin immediately came to my assistance and took custody of the subject, and I immediately returned to where I had seen him drop the container and retrieved the container.
Q. What did you notice about that container?
A. It was a white pill bottle type container. I had seen that he dropped it, and I was able to further determine that that was what he had dropped. All the—
MR. HAMM: (Interrupting) Your Honor, I object. This goes beyond the question that’s been asked.
THE COURT: Sustained.
(By Mr. Nelson)
Q. Okay. What was another factor that you noticed when you picked up that pill bottle?
A. That it was dry and the other items that were around the area were wet with a heavy dew. That evening there was very heavy dew, and that item was dry.
Q. What other items were around that pill bottle?
A. Trash, leaves, just different types of debris.
Q. Any other pill bottles?
A. No, sir.
Q. Anything else that looked like what you saw the person you were chasing drop?
A. No sir, it was unique.
Q. Do you see that person that you saw drop that pill bottle in the courtroom today?
A. Yes, sir, I do.
If the evidence indicates that an accused is not in exclusive possession of the premises where contraband 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. Herndon v. State, 787 S.W.2d 408, 409-410 (Tex.Crim.App.1990). Indeed, it is the affirmative link 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); Redman v. State, 848 S.W.2d 710, 714 (Tex.App.—Tyler 1992, no pet.). The burden of showing said affirmative link rests upon the State. Damron v. State, 570 S.W.2d 933, 935 (Tex.Crim.App.1978).
The affirmative link customarily emerges from an orchestration of several of a list of factors and the logical force they have in combination. Trejo v. State,
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
WALKER, Chief Justice.
Marcus Gerard Davis was found guilty by a jury of his peers of the offense of Possession of a Controlled Substance as a repeat felony offender. Appellant elected to have the judge assess punishment and the judge [818]*818indeed assessed punishment at a term of fifteen (16) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant now appeals his judgment of conviction bringing to this Court one point of error which contends that the trial court erred in holding the evidence to be sufficient to sustain the conviction, because the evidence was insufficient to prove “possession” as alleged in the indictment.
The State of Texas called only three witnesses to testify at trial: Trooper John Martin, Trooper Peter Maskunas (certified peace officers with the Texas Department of Public Safety), and forensic analyst, Lori Bates, an employee of the Jefferson County Regional Crime Laboratory. Appellant chose not to testify nor to call any witnesses on his behalf.
Since we are faced with an “insufficiency of the evidence” point of error, a review of certain facts is necessary. On or about the first day of September 1991, Trooper John Martin and Trooper Peter Maskunas were patrolling in the north-end area of the City of Beaumont, Jefferson County, Texas, at approximately 10:00 p.m. These officers were in uniform driving a marked “Texas Department of Public Safety Highway Patrol” vehicle. The troopers were driving slowly down McHale Street when their vehicle was approached by appellant who, according to Trooper Martin, appeared to him to be “attempting to make contact with us in the car.” Trooper Martin further testified that when appellant got within approximately ten feet of the car, appellant turned and fled. Trooper Martin testified that Trooper Maskunas “hollered for the guy to stop,” got out of the car and pursued appellant through residential yards on foot while Trooper Martin paralleled the chase in the patrol vehicle. Following a brief chase, Trooper Martin observed that Trooper Mas-kunas had apprehended the suspect. Trooper Martin took custody of appellant while Trooper Maskunas returned to a particular point covered in the chase and retrieved a white pill bottle which Trooper Maskunas testified that he had seen appellant throw down during the chase. A “field test” by Trooper Martin, indicated that the bottle contained cocaine which was later submitted to the Jefferson County Regional Crime Laboratory.
The thrust of appellant’s contention of error focuses on whether the evidence was sufficient to support the fact that appellant was in exclusive possession of the place where the contraband was found. Appellant contends that the testimony at trial clearly shows that appellant was not in exclusive control of that particular area where Trooper Maskunas retrieved what was later determined to be “cocaine.” Appellant further contends that the mere fact that appellant “threw down” the seized item does not impute knowledge sufficient to prove possession. Appellant informs that “possession” requires that the defendant have knowledge of and exclusive care, custody and control of the contraband. Based upon this premise, appellant contends that there is no evidence that appellant knew that the pill bottle contained a controlled substance or that appellant knew that the item was a controlled substance.
We set forth certain excerpts from Trooper Peter Maskunas’ testimony:
Q. What happened while you were chasing the subject on foot?
A. I followed the subject behind a residence that was just to the north of McHale Street, a little bit north of where we were at. I yelled for the subject to stop, that I was a police officer. As I was following behind him no more than maybe 10 or 15 feet, I observed him drop a white, looked to be some sort of pill bottle or some sort of white small container, threw it down on the ground. As I ran by, I marked where I could see it. I could see it underneath — right beside a picnic table.
Q. Let me stop you for a second. When you say you marked it, did you mark it in your mind?
A. In my mind, yes, sir.
Q. So, then, you marked it in your mind. And did you continue to pursue the person?
A. Yes sir, I continued to pursue the person. As I was closing on him at this time, I was able to catch up to him a few [819]*819feet away from there, a few yards away from there. And I placed him into custody. At that time Trooper Martin immediately came to my assistance and took custody of the subject, and I immediately returned to where I had seen him drop the container and retrieved the container.
Q. What did you notice about that container?
A. It was a white pill bottle type container. I had seen that he dropped it, and I was able to further determine that that was what he had dropped. All the—
MR. HAMM: (Interrupting) Your Honor, I object. This goes beyond the question that’s been asked.
THE COURT: Sustained.
(By Mr. Nelson)
Q. Okay. What was another factor that you noticed when you picked up that pill bottle?
A. That it was dry and the other items that were around the area were wet with a heavy dew. That evening there was very heavy dew, and that item was dry.
Q. What other items were around that pill bottle?
A. Trash, leaves, just different types of debris.
Q. Any other pill bottles?
A. No, sir.
Q. Anything else that looked like what you saw the person you were chasing drop?
A. No sir, it was unique.
Q. Do you see that person that you saw drop that pill bottle in the courtroom today?
A. Yes, sir, I do.
If the evidence indicates that an accused is not in exclusive possession of the premises where contraband 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. Herndon v. State, 787 S.W.2d 408, 409-410 (Tex.Crim.App.1990). Indeed, it is the affirmative link 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); Redman v. State, 848 S.W.2d 710, 714 (Tex.App.—Tyler 1992, no pet.). The burden of showing said affirmative link rests upon the State. Damron v. State, 570 S.W.2d 933, 935 (Tex.Crim.App.1978).
The affirmative link customarily emerges from an orchestration of several of a list of factors and the logical force they have in combination. Trejo v. State, 766 S.W.2d 381, 385 (Tex.App.—Austin 1989, no pet.). Relevant facts and circumstances that provide a sufficient link between a defendant and the contraband have been noted and listed in several opinions, including Whitworth v. State, 808 S.W.2d 566 (Tex.App.—Austin 1991, pet. refd). Although Whitworth involved possession of marijuana in the setting of a motor vehicle, the list of factors indicative of the separate issues of knowledge and care, custody, control, and management are easily translatable to the physical setting that confronts us in the instant case. Two of the Whitworth factors are present with great probity, to-wit: the contraband was conveniently accessible to the accused; and conduct by the accused indicated a consciousness of guilt. The testimony clearly reflects that appellant was in actual physical possession of the pill bottle immediately prior to discarding it in the presence of the trooper. The act of discarding the pill bottle containing the contraband was itself conduct indicating knowledge of the illegal nature of said contraband and thus a clear indication of appellant’s consciousness of guilt. A defendant’s attempt to flee is an additional factor that can also be considered. Herndon, 787 S.W.2d at 410.
Under the specific facts of the instant case as testified to by the troopers, in light of the Whitworth factors discussed above, the evidence was clearly sufficient for any rational trier of fact to have found both knowledge and actual possession of the contraband proven by the State beyond a reasonable doubt. Point of error one is overruled, and the judg[820]*820ment and sentence of the trial court are affirmed.
AFFIRMED.