I respectfully dissent. At the time of the search in question, it is undisputed that Sheila Polk and Sharon Denise King were the only persons present at the place where contraband was found. Appellant was two blocks away. Assuming the State proved Appellant lived at the place where the substance was found, it is clear he was not in exclusive possession of the premises. Therefore, in order to convict Appellant of the offense of possession of hydromorphone, it had to prove that Appellant had knowledge and control of the substance by establishing such independent facts and circumstances as to affirmatively link him to it. Wiersing v. State, 571 S.W.2d 188 (Tex.Cr.App. 1978). Where there is an absence of direct evidence that an accused was in exclusive possession of contraband, then possession, if any, must be proved by circumstantial evidence. Collini v. State, 487 S.W.2d 132 (Tex.Cr.App. 1972).
Any independent facts and circumstances to affirmatively link Appellant to the contraband necessarily had to be proven by the State in the form of circumstantial evidence. A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant's guilt. Bryant v. State, 574 S.W.2d 109 (Tex.Cr.App. 1978). Thus, proof which amounts only to a strong suspicion or mere probability is insufficient. Ford v. State, 571 S.W.2d 924 (Tex.Cr.App. 1978). Viewed in the light most favorable to the court's finding of guilt, the evidence shows: (1) Appellant was at least in joint possession of the premises; (2) a partially dissolved yellow tablet and about $400.00 were found in the pockets of a black leather jacket hanging in a closet where both male and female clothes were kept; (3) Appellant had previously been seen wearing a *Page 69 similar black jacket; (4) Appellant was arrested with $695.00 in his pocket.
I think it material where other tablets were found. Officer Holmes testified he found a plastic jewelry container under a couple of bedspreads in the kitchen and that in the jewelry box were ten yellow tablets. Officer Calloway found four other yellow tablets on top of a trophy case wrapped in tin foil. As previously stated, the partially dissolved tablet was found in a pocket of the black leather jacket. All of the tablets seized were placed in an envelope by Officer Holmes and thus co-mingled. There was no showing that any of the tablets seized were open to plain view.
The chemist who testified for the State stated that of the fifteen yellow tablets provided to him for analysis, he analyzed only a representative sample. This was no proof that the partially dissolved tablet found in the black leather jacket was one of the tablets analyzed.
Even if it could be concluded that Appellant was affirmatively linked by circumstantial evidence to the tablet found in the black leather jacket, there was no showing that the tablet was a controlled substance. Certainly, in the absence of a showing that the other tablets seized were in plain view, Appellant cannot be affirmatively linked to them. Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App. 1975).
While there is a suspicion or probability of Appellant's guilt, I would conclude that the circumstances proven do not exclude the reasonable hypothesis that Appellant was merely in joint possession of a residence where contraband, not open to plain view, was found.
I would hold the evidence insufficient to support Appellant's conviction.