dissenting.
Judge Dally, a commissioner for this Court, submitted an opinion affirming this conviction. Omitting some of the discussion not pertinent to answering the majority, his opinion is adopted in substance as follows:
“While Officer Keesy and Officer Kuhn were questioning the appellant in the police car, Keesy saw the passenger in the appellant’s automobile bend over out of sight ‘as if he was hiding something underneath the front seat.’ Officer Keesy removed the passenger from the automobile and patted him for weapons. After the officer placed the passenger in the police car he searched the automobile and found a pistol underneath the front seat. The officer placed both men under arrest for unlawfully carrying the pistol, then called a wrecker to tow the automobile.
“Officer Kuhn testified that he went back to the automobile to continue the search. Officer Kuhn found two plastic ‘baggies’ of marihuana inside a bank bag which was in the glove compartment of the automobile. Officer Kuhn brought the marihuana back to the police car. Officer Keesy said that ‘[w]e’d already given both defendant’s, both gentlemen their rights and just put a question out, saying, “Whose is it?” ’ Appellant objected that the statement would be hearsay and an inadmissible oral confession. The court overruled his objection stating that the statement was ‘res gestae.’ Thereafter, the officer was *401permitted to testify that the appellant answered, ‘Both of them are mine. My buddy there doesn’t know anything about them.’
“The record does not show that the appellant was properly advised as to his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Article 38.22, V.A.C.C.P. Further, since appellant’s statement did not lead to the discovery of any evidence conducing to establish guilt, it would be admissible under Article 38.22, Section 1(f), V.A.C.C.P. The State made no effort to lay a proper predicate to show that appellant’s statement was a spontaneous utterance. See Article 38.22, Section 1(f), supra. Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974). Cf. Brown v. Beto, 468 F.2d 1284 (5th Cir.1972). Therefore, appellant’s statement may not be used to prove that he knowingly possessed the marihuana.
“To establish unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); 57 A.L.R.3d 1314; Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972).
“Possession need not be exclusive, and evidence which shows that the accused jointly possessed the contraband with another is sufficient. However, proof of mere presence at a place where contraband is being used or possessed does not, standing alone, justify a finding of joint possession. ‘Possession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed.’ Brown v. State, 481 P.2d 475 (Okla.Cr.1971). Whether the case is tried on the theory of joint or sole possession, the evidence must affirmatively link the accused to the drug he is alleged to have possessed. This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control. Hernandez v. State, supra; Payne v. State, supra; Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972); Ochs v. State, 543 S.W.2d 355 (Tex.Cr.App.1976); Annot., 57 A.L.R.3d 1319 (1974).
“Appellant contends that the evidence is insufficient to show that he possessed the marihuana because mere presence at the scene of the crime or at the place where the contraband is found is insufficient to prove he possessed the marihuana. However, appellant was not merely present in the automobile, but was the driver in possession and control of the automobile. * * * [T]he evidence is sufficient to support the conviction. Terill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976); Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1971); Dabbs v. State, 507 S.W.2d 567 (Tex.Cr.App.1974); Hernandez v. State, supra; Duff v. State, [Tex.Cr.App.] [546] S.W.2d [283] (No. 51,681, on motion for rehearing, January 19, 1977); [State v. Wikum ] Wikum v. State, [6 Or.App. 405] 488 P.2d 815 (Or.App.1971); Corrao v. State [154 Ind.App. 525], 290 N.E.2d 484 (Ind.App.1972).”
The judgment should be affirmed.
ODOM, J., joins in this dissent.