                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

              _________________________________________

                             No. 91-1301
              _________________________________________

                           RICHARD RAY GILLEY,

                                                      Petitioner-Appellee,

                                  VERSUS


                    JAMES COLLINS, Director, Texas
                   Department of Criminal Justice,
                        Institutional Division,

                                                  Respondent-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
 _______________________________________________________________

                             August 4, 1992


Before GOLDBERG, DUHÉ, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

     Richard Gilley having been granted habeas relief because there

was insufficient evidence to support his state conviction for

possession of marijuana, the sole issue before us "is whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt", as held

in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original).    We AFFIRM.

                                    I.

     Near    Huckabay,   Texas,   on   August   26,    1986,   while   Texas
Department of Public Safety Pilot Billy Peace, Texas Ranger John

Dendy, and Sheriff David Coffee conducted a search by helicopter

for stolen vehicles, Peace noticed a marijuana patch, pointed it

out, and circled the area.   A man later identified as Jessey Gilley

was seen running out of the patch and into the bushes toward two

trailer houses.

     The helicopter followed a pickup truck that left one of the

trailers and landed near it.     It was occupied by Jessey Gilley's

wife and children.   Peace observed smoke coming from the marijuana

patch; and, when he and Dendy took the helicopter back up, they

observed Jessey Gilley standing by the fire.   He was arrested; 461

marijuana plants, seeds, fertilizer, tools, and farming, drip

irrigation and spraying equipment were seized.    Appellant Richard

Gilley, Jessey's brother, was out of state at the time of Jessey's

arrest, but turned himself in.

     That October, Richard Gilley was charged with possession of

more than five but less than 50 pounds of marijuana.   And that next

May, after he waived his right to a jury trial, the trial court

found him guilty and sentenced him, inter alia, to fifteen years'

imprisonment.   A Texas court of appeals affirmed the conviction in

an unpublished opinion.1   Richard Gilley petitioned unsuccessfully

1
     The same court reviewed Richard's and Jessey's convictions.
Jessey was convicted in a trial held separately and before
Richard's, and the Texas appellate court issued two very similar
opinions. For Richard's appeal, the initial opinion stated that
"[t]he jury convicted Richard Ray Gilley". As noted, his trial was
not before a jury. The opinion also quoted the testimony of a
witness who testified at Jessey's, but not Richard's, trial.

     Although these errors were corrected in a substituted opinion,

                                 - 2 -
for discretionary review in the Texas Court of Criminal Appeals.

     A 28 U.S.C. § 2254 federal habeas application was filed in

1989, raising   one   of    the   issues    presented   on   direct   appeal:

insufficient evidence.      Accordingly, the State agreed that he had

exhausted state remedies.         The magistrate-judge recommended that

the application be dismissed for failure to exhaust state remedies,

but in the alternative, that it be granted on the grounds of

insufficient evidence.        Both parties filed objections to that

report.   The district court, after a de novo review of the

magistrate-judge's findings and recommendation and the parties'

objections, adopted the report and dismissed the application for

failure to exhaust.        Both parties moved to amend the judgment,

agreeing that state remedies had been exhausted.             Pursuant to an

amended opinion, the judgment was amended in February 1991 to state

that state remedies had been exhausted, and habeas relief was

granted based on insufficient evidence.2




they reflect the possible confusion over what evidence was
considered in Richard Gilley's trial, as discussed in note 4,
infra. As the federal district court stated, "[t]he trial court
may have found additional facts connecting [Richard Gilley] to the
marijuana in this or [an]other trial, if so, such findings have not
been shared with this court." As discussed in note 4, while there
may have been additional evidence against Richard in Jessey's trial
or elsewhere, such evidence cannot be considered on appeal.
Obviously, we may consider only evidence from Richard Gilley's
trial, as contained in the record on appeal. See, e.g., Fed. R.
App. P. 10 (the record on appeal); Jackson, 443 U.S. at 324; Guzman
v. Lensing, 934 F.2d 80, 82 (5th Cir. 1991).
2
     Throughout the proceedings in state and federal court, Richard
Gilley remained free on bail.

                                    - 3 -
                                      II.

     "Our   standard   of    review     in   a   habeas   action    alleging

insufficient evidence is set out in Jackson ...."3                 Guzman v.

Lensing, 934 F.2d 80, 82 (5th Cir. 1991); see Wright v. West, 60

USLW 4639, 4641 (1992).           The sole issue before us is whether,

pursuant to Jackson, the evidence was sufficient to support Richard

Gilley's conviction.

                                      A.

     As noted, "`the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.'"            Guzman, 934 F.2d at 82

(quoting Jackson, 443 U.S. at 319) (emphasis in Jackson).                 As

discussed in note 1, supra, our consideration of the sufficiency of

the evidence for Richard Gilley's conviction is, of course, limited

to a review of the evidence presented at his trial and contained in

the record on appeal.4      Id.

3
     The Jackson standard applies to both bench and jury trials;
Jackson, like this case, involved review of a bench trial. 443
U.S. at 309, 311 & n.3, 317 n.8 (it "is of no constitutional
significance" whether the trier of fact is a judge or jury).
4
     At oral argument, the State asserted for the first time that
we should consider evidence supposedly discussed at a pretrial
hearing; and it described physical evidence supposedly found in
Richard Gilley's trailer that would link him to the marijuana.
However, the admission of that evidence at his trial does not
appear in the record on appeal; and the alleged evidence is not
mentioned in the briefs, the district court opinion, or the
magistrate-judge's report. At oral argument, the State cited both
a suppression hearing at which the trial court ruled against
Richard Gilley, and the following colloquy from his trial in
support of its claim that the alleged exhibits are a part of the
record before us on appeal:

                                     - 4 -
          MR. CARNEY:    Your Honor, could we go ahead and
          open the ... pretrial exhibits so that I might have
          them already open and available and to use for
          examination?

          THE COURT:     That's fine. For the record, there
          has already been a trial before a jury in this
          court with regard to ... The State of Texas vs.
          Jessey Ray Gilley, and I understand both the State
          and Defendant will be using exhibits from that ...
          proceeding, either the pretrial or trial ....

     No authority need be cited for the rule that we generally
decline to consider issues raised for the first time at oral
argument. But, the State's assertion is not a new issue; the only
issue is the sufficiency vel non of the evidence. Simply put, what
is in the record is in the record.       Obviously, the appellate
process would have been greatly aided by the State making this
assertion in its opening brief, so that Gilley could have responded
in his. (The process was further impeded by the State not filing
a reply brief, even though Gilley's brief repeatedly challenged the
State's reading of the record.)

     Turning to the merits of this most untimely assertion, the
alleged exhibits referenced at oral argument for the first time are
not part of the record on appeal in this case. As discussed in
note 1, supra, this seeming confusion about what was in evidence at
Richard Gilley's trial was the basis for the district court's
stating the following:

               It is hoped the facts upon which this case is
          ultimately decided at the appellate level are the
          facts presented by the parties to the district
          court.

               [The State] urges, and the state courts have
          held, that [Richard Gilley] exercised care,
          custody, control, or management over the marijuana
          by his ownership of, and living on the land (each
          of which was joint with Jessey Gilley), his
          frequent comings and goings to the 118 acre tract,
          and the marijuana tract not being visible from
          either mobile home.

               The trial court may have found additional
          facts connecting [Richard Gilley] to the marijuana
          in this or [an]other trial, if so, such findings
          have not been shared with this court.

               The [Texas] Court of Appeals ... in its second

                              - 5 -
       The   State     maintains       that   the   magistrate-judge        erred      by

engaging in a Texas state law reasonable hypothesis analysis,

e.g., Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987),

and contends correctly that only the Jackson standard should have

been applied.         But, in fact, it appears that Jackson was the

standard applied by both the magistrate-judge and district judge.

In any event, as stated, "[o]nly Jackson need be satisfied, even if

state law      would    impose     a   more   demanding     standard      of   proof."

Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir.), cert. denied,

___ U.S. ___, 111 S. Ct. 265 (1990); see Jackson, 443 U.S. at 326.

"Under Jackson, we may find the evidence sufficient to support a

conviction     even     though   the     facts      also   support    one      or    more

reasonable hypotheses consistent with the defendant's claim of

innocence."     Gibson v. Collins, 947 F.2d 780, 783 (5th Cir. 1991).

Therefore, the question before us is whether any rational trier of

fact   could    have    found    the     essential     elements      of   the       crime




             unpublished opinion at page 4 pithily opines the
             "mother hubbard" type phrase "... as well as the
             other facts and circumstances...." which suggest
             more factual findings but again this court is
             bereft of said other facts and circumstances.

                  [The   State]   ...   offers   no   additional
             affirmative   links[,]    simply   expounding   the
             platitude that the marijuana was not far from where
             he lives; however, a minimum of two hundred yards
             through dense live oaks is twice the length of a
             football field which annually in the fall is found
             to be a long distance in many Texas towns on Friday
             night.

(Emphasis added.)

                                         - 6 -
(possession of more than five but less than 50 pounds of marijuana)

beyond a reasonable doubt.

                                        B.

     Under    Texas   law,     "[i]n   order     to     establish   the   unlawful

possession of a controlled substance the State must prove two

elements:     (1) that the accused exercised care, control and [or]

management over the contraband, and (2) that the accused knew that

the matter possessed was contraband."             Guiton v. State, 742 S.W.2d

5, 8 (Tex. Crim. App. 1987) (citations omitted).                    "`Possession'

means actual care, custody, control or management."                   Tex. Health

& Safety Code Ann. § 481.002(38) (West 1992) (Texas Controlled

Substances Act).      "[P]ossession must be a voluntary act."               Garcia

v. State, 790 S.W.2d 22, 24 (Tex. App.--San Antonio 1990, rev.

granted).     Tex. Penal Code Ann. § 6.01(b) (West 1974) provides:

"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."5

     It is not necessary to prove that the accused had exclusive

possession of the contraband; however, "[w]hen [as here] the

accused is not in exclusive possession of the place where the

substance 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

5
     This definition applies to prosecution under the Texas
Controlled Substances Act. See Tex. Penal Code Ann. § 1.03(B)
(West 1974).

                                       - 7 -
link the accused to the contraband."              Guiton, 742 S.W.2d at 8.

Needless to say, the State must present evidence of such additional

facts    and    circumstances.           Id.    Circumstances    relevant    to

establishing this affirmative link to the contraband include:               (1)

defendant's presence when the search warrant was executed; (2)

contraband in plain view; (3) defendant's proximity to and the

accessibility of the narcotic; (4) defendant under the influence of

narcotics      when    arrested;   (5)    defendant's   possession   of   other

contraband when arrested; (6) defendant's incriminating statements

when arrested; (7) defendant's attempted flight; (8) defendant's

furtive gestures; (9) presence of odor of the contraband; (10)

presence of other contraband or drug paraphernalia, not included in

the charge; (11) defendant's ownership or right to possession of

the place where the controlled substance was found; and (12) place

where drugs found was enclosed.            Chavez v. State, 769 S.W.2d 284,

288-89   (Tex.        App.--Houston   [1st     Dist.]   1989,   review    ref'd)

(citations omitted).

                                          C.

     Factual "findings made by the state court are entitled to a

presumption of correctness in federal habeas proceedings." King v.

Collins, 945 F.2d 867, 868 (5th Cir. 1991); Smith v. Collins, No.

91-2668, slip op. 5451, 5453 (5th Cir. June 30, 1992); 28 U.S.C. §

2254(d).       We are not, however, "necessarily bound by ... [those]

findings."      Sumner v. Mata, 455 U.S. 591, 597-98 (1982).

            Section 2254(d) permits a federal court to conclude
            ... that a state finding was `not fairly supported
            by the record.' But the statute does require the
            federal courts to face up to any disagreement as to

                                      - 8 -
          the facts and to defer to the state court unless
          one of the factors listed in § 2254(d) is found.

Id. at 597-98 (quoting 28 U.S.C. § 2254(d)(8)).     Applying the §

2254 presumption of correctness to the state court's findings of

fact does not conflict with the review mandated by Jackson.

          [A]s a general matter, Jackson follows the basic
          legal standard that in order to preserve the state
          factfinder's role a federal court must review the
          evidence   in   light   most  favorable   to   the
          prosecution. Section 2254(d), on the other hand,
          provides guidance as to the extent a federal court
          should probe a state court's factfinding when
          ruling on habeas petitions.

Chandler v. Richards, 935 F.2d 915, 917 (7th Cir. 1991).

     The State contends that the district court erred in holding

that "a rational trier of fact could not have found beyond a

reasonable doubt that ... [Richard] Gilley knew of the marijuana's

existence, or exercised control over it."   It maintains that the

following factors establish the requisite affirmative link between

Richard Gilley and the marijuana: (1) the proximity of his trailer

to the marijuana patch; (2) "the size and sophistication of the

Gilley marijuana farm"; and (3) his ownership of, and commutes to

and from, the property where the marijuana patch was located.

Consistent with the appropriate standard of review under Jackson

and § 2254, we review the district court's findings of fact under

the Fed. R. Civ. P. 52(a) clearly erroneous standard.   See, e.g.,

Smith, slip op. at 5453; Guzman, 934 F.2d at 82.

                               1.

     Peace testified that a water well was located about 300 to 400

yards from the patch and that the "first trailer house [was] not


                              - 9 -
too awful far from the [well]."   Sheriff Coffee testified that the

closest trailer house was 75 to 100 yards from the patch, and that

the pickup truck in which Jessey Gilley's family fled came from a

second trailer house "a little further down [a dirt] road." Deputy

McWhorter, who prepared the police report, testified that a gate

was located fifty yards from the first trailer, that a metal shed

(barn) was "approximately a hundred yards ... maybe further" beyond

the gate, and that the patch was about 25 or 40 yards beyond the

shed.

     Based upon, inter alia, a review of Peace's testimony and

photocopies of aerial photograph exhibits,6 the district judge

agreed with the finding by the magistrate-judge, and found, as

quoted in note 4, supra, that the marijuana was "a minimum of two

hundred yards through dense live oaks [from where Richard Gilley

lived -- a distance which] is twice the length of a football field

which annually in the fall is found to be a long distance in many

Texas towns on Friday night."

     This finding of fact by the district judge was not clearly

erroneous.   And, although the distance between the marijuana patch

and the trailer is disputed, there is no dispute regarding the

visibility of the patch -- not one person testified that it was

visible from the trailers.       Jerry Gordon, who lived near the

property, testified that the area was "very thickly wooded, many

draws, branches, and creeks running through it, it's a very rough

6
     On appeal, the State has substituted the actual photographs
introduced at trial.    Needless to say, they should have been
provided earlier to the district court instead.

                                - 10 -
pasture."   According to Peace, there was "no way" to see the patch

from either of the trailers and it was not immediately visible

"until you're looking down at it."     Ranger Dendy testified that,

using the dirt road on the property, one could enter the property,

pass both trailers, pass the well house, circle around and exit

without being anywhere near the patch.       And, contrary to the

State's reading of the record, that road did not run to the

marijuana patch. Deputy Jackson testified that "[a]round the patch

there was nothing but brush, you couldn't see very far outside the

patch itself." Regardless of the distance between the trailers and

the patch, the State failed to prove that it was visible from

either of the trailers.

                                2.

     The State asserts next that "the substantial expenditure of

money and time, made in connection with the marijuana patch,

situated close to the mobile home in which Richard Gilley and his

family lived show that he not only knew about the marijuana, he

planned to make a handsome profit from it."      These assertions,

however, are again wholly unsupported by the record.   There was no

evidence of the costs incurred in cultivating the marijuana, no

evidence that Richard Gilley contributed to whatever costs were

incurred, and no evidence that he expected to make a profit.

     To show this sizeable, sophisticated marijuana operation and

link Richard Gilley to it, the State points to the drip irrigation

system; to pipe, supposedly used for it, that was stacked against

both trailer homes; and to the barn, which contained tools and


                              - 11 -
supplies.    There was no evidence, however, linking Richard Gilley

to the barn or the irrigation system.7            For example, along with the

marijuana plants seized from the property, the State seized tools,

valves, and farming, drip irrigation, and spraying equipment.

Richard Gilley's fingerprints were not found on any of these items.

As another example, and as noted, the State contends erroneously

that the above referenced dirt road ran from the trailers to the

patch.

                                       3.

     Richard Gilley was one of the owners of the property where the

marijuana was found; however, as noted, this is not enough to prove

the requisite "exercise of care, custody, control or management"

over it.    See, e.g., United States v. Culpepper, 834 F.2d 879, 882

(10th Cir. 1987) ("[T]he state of legal title to the fields ...

[is] not germane to the question whether [one has] the power and

ability to exercise dominion and control over the marijuana.").

The State also introduced electric and telephone records and

testimony from a neighbor that he observed Richard Gilley coming

and going "on a daily basis" to prove that he lived on the

property.        But, establishing an affirmative link between Richard

Gilley     and     the   property   does    not    establish   the   requisite

affirmative link between him and the marijuana. As noted, the area

7
     Richard Gilley arranged to have the water well drilled; and it
was used, among other uses, to irrigate the marijuana. The well
contractor testified that Gilley "requested a unit that was big
enough to serve two households." There is no evidence that the
well was anything more than "a four inch domestic water well" with
a standard eighty gallon pressure tank. And, there is no evidence
linking the irrigation use to Richard Gilley.

                                     - 12 -
was extremely dense with woods and underbrush.   As also noted, the

State's witness, Ranger Dendy, testified that one could enter the

property, pass both trailers, pass the well house, circle around

and exit without being near the marijuana patch.

                                 III.

      An affirmative link between Richard Gilley and the marijuana

is a requisite element for the charge of possession when, as here,

the accused is not in exclusive possession of the place where the

contraband is found.   On this record, this is the missing link.

And, without this link, no rational trier of fact could have found

possession beyond a reasonable doubt.     In sum, and viewing the

evidence in the light most favorable to the prosecution, the State

has shown that Richard Gilley co-owned property that was extremely

brushy and densely wooded, that he commuted to and from it, that he

contracted to have a well built, and that a marijuana patch existed

on this property which could not be seen from the trailers or the

road leading to and from them.    But, inter alia, the record does

not contain sufficient evidence for any rational trier of fact to

find, beyond a reasonable doubt, that Gilley exercised care,

custody, control or management over that marijuana. Therefore, the

judgment granting habeas relief is

               AFFIRMED.




                              - 13 -
