                                   NO. 07-02-0054-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      JULY 16, 2002

                          ______________________________


                            TYRONE L. LEWIS, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-436428; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       In challenging his conviction for the offense of possession of a controlled substance

and the resulting enhanced sentence of 16 years confinement in the Institutional Division

of the Department of Criminal Justice, appellant Tyrone L. Lewis contends in two issues

that the evidence is legally and factually insufficient to support his conviction. For the

reasons set forth, we affirm the judgment of the trial court.
       At approximately 6:30 a.m. on September 8, 2000, police officers executed a search

warrant at 3501 East Cornell in Lubbock, the residence of appellant’s girlfriend, Sepbrana

Murphy. At the time of entry by the police, the front door was open with appellant’s keys

in the door. Appellant was found asleep in a bedroom, and no one else was present in the

house. Upon searching the residence, officers located cocaine hidden under the mattress

in a child’s bedroom, but no contraband was seized from appellant himself or located in

the bedroom where he was sleeping. The gist of appellant’s complaint is that the evidence

does not link him to either actual or constructive possession of the cocaine.


       The standard by which we review the legal sufficiency of the evidence is whether,

after reviewing 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.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Under a factual sufficiency review, we must review all of the evidence without the prism

of “in the light most favorable to the prosecution” and determine whether the verdict is so

against the weight of the evidence as to be clearly wrong and manifestly unjust. Clewis

v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996).


       Appellant was indicted for possession of a controlled substance in penalty group

one of less than four grams but at least one gram with intent to deliver. However, the jury

found appellant guilty of the lesser-included offense of possession of a controlled

substance. For appellant to be guilty, he must have knowingly or intentionally possessed



                                              2
a controlled substance. Tex. Health & Safety Code Ann. § 481.115(a) (Vernon Supp.

2002).     Possession means actual care, custody, control, or management.              Id. §

481.002(38). Thus, to prove unlawful possession of a controlled substance, the State must

prove that the accused exercised care, custody, control, and management over

contraband, and the accused knew the matter possessed was contraband. Levario v.

State, 964 S.W.2d 290, 294 (Tex.App.--El Paso 1997, no pet.); Mayes v. State, 831

S.W.2d 5, 6 (Tex.App.--Houston [1st Dist.] 1992, no pet.).


         The defendant’s possession of a controlled substance does not have to be

exclusive. Redman v. State, 848 S.W.2d 710, 713 (Tex.App.--Tyler 1992, no pet.); Bass

v. State, 830 S.W.2d 142, 145-46 (Tex.App.--Houston [14th Dist.] 1992, pet. ref’d).

However, when the accused is not in exclusive control of the place where contraband is

found, the State must show additional affirmative links between the accused and the

contraband. Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App. 1983), overruled on

other grounds by Woods v. State, 956 S.W.2d 33 (Tex.Crim.App. 1997); Cooper v. State,

852 S.W.2d 678, 681 (Tex.App.--Houston [14th Dist.] 1993, pet. ref’d). This evidence may

be direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).


         The State initially argues that appellant may not challenge the legal or factual

sufficiency of the evidence because he accepted the benefit of an instruction on a lesser-

included offense for which he was convicted. Appellant asserted objections to the charge,

but did not complain of the instruction on the lesser-included offense. It has been held that



                                             3
a defendant who does not object to an instruction on a lesser-included offense is estopped

from complaining on appeal that the evidence either legally or factually fails to support the

conviction of the lesser offense. State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App. 1991),

disapproved on other grounds by Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998);

Otting v. State, 8 S.W.3d 681, 687 (Tex.App.--Austin 1999, pet. ref’d, untimely filed); Bisco

v. State, 964 S.W.2d 29, 30 (Tex.App.--Tyler 1997, pet. ref’d). Therefore, we agree that

appellant may not raise these issues on appeal.


        However, even if appellant was not prevented from asserting these matters, we

believe the evidence is sufficient to support the conviction.        Factors that may be

considered as affirmative links between a defendant and contraband include whether the

defendant was present at the time of the search, whether other persons were present at

the time of the search, whether the amount of contraband found was large enough to

indicate the defendant knew of its existence, and whether there was evidence establishing

the defendant’s occupancy of the premises. Levario, 964 S.W.2d at 294. Additional

factors include the amount of contraband, the location of the contraband in relationship to

the defendant’s personal belongings, the defendant’s relationship to the other persons with

access to the premises, and the proximity of the defendant to the contraband. Villegas v.

State, 871 S.W.2d 894, 896 (Tex.App.--Houston [1st Dist.] 1994, pet. ref’d). A reviewing

court may also consider whether the accused was under the influence of the substance

when arrested, whether he attempted to flee, whether he made furtive gestures, whether

there was an odor of contraband, whether other contraband or drug paraphernalia was



                                             4
present, whether the location of the drugs was enclosed, and whether the defendant was

familiar with the type of contraband. Kyte v. State, 944 S.W.2d 29, 31 (Tex.App.--

Texarkana 1997, no pet.).


       In this instance, the evidence established that appellant was asleep in the house

alone in the master bedroom at the time of the search with the front door open and keys

in the lock. Male clothing and shoes were found in that bedroom, and there was also an

envelope addressed to appellant at 3501 East Cornell found on the nightstand next to the

bed. The residence was owned by appellant’s girlfriend or common-law wife, but appellant

had been observed there on many occasions. He had also been seen driving his

girlfriend’s car on multiple occasions, and one time he drove it into the garage and closed

the door with an automatic opener.


       Appellant smelled of alcohol and appeared to be intoxicated or under the influence

of some substance at the time of the search. Additionally, the cocaine was found hidden

in a plastic bag under a mattress in the bedroom of a female child estimated to be around

7-10 years of age to which appellant had access, and it was in an amount greater than

typical for personal use. There was testimony that, from the location of the cocaine, it

would have to have been intentionally placed there. Further, a female officer was unable

to lift the mattress by herself to search the bed.


       Appellant proved that he was not the owner of the house, and his mother testified

that appellant lived with her. However, she also stated that appellant, who was 29 years



                                             5
old, did not always spend the night at her home. There was no evidence that appellant

made incriminating statements, furtive gestures, or attempted to flee when arrested. There

was also no evidence of other contraband or drug paraphernalia at the home or that

appellant was familiar with that type of contraband.


       It must be determined from the totality of the circumstances whether a jury could

rationally find that appellant was aware of the contraband and exercised control over it.

There is no evidence that anyone resided or stayed in the home other than appellant, his

girlfriend, and a young child. However, there is evidence from which a jury could rationally

find that appellant had free access to the home and stayed there on at least a part-time

basis. Appellant was in the house alone at the time of the search. There is further

evidence from which a jury could find that the cocaine, in an amount more than is generally

found to be for personal use, was most likely hidden in the child’s bedroom by an adult

strong enough to lift the mattress and box springs, which a female police officer was

unable to do without assistance. Further, there is evidence that appellant was under the

influence of alcohol or some substance evidenced by the fact he left the door open with

his keys in it while sleeping and from his appearance at the time of his arrest. This

evidence could further explain his failure to attempt to flee when the officers raided the

house.


       While the evidence may not be particularly strong, we believe that a jury could have

rationally found that appellant knew of the substance and exercised control over it.

Further, such a finding is not so against the great weight of the evidence as to be clearly


                                             6
wrong. Appellant’s issues are overruled. Finding no reversible error, the judgment of the

trial court is affirmed.


                                               John T. Boyd
                                                Chief Justice

Do not publish.




                                           7
