Comment

The Texas Penal Code and the Texas Health and Safety Code each contain a brief definition of “possession”: “ ‘Possession’ means actual care, custody, control, or management.” See Tex. Penal Code § 1.07(a)(39); Tex. Health & Safety Code § 481.002(38). In a prosecution for possession of a controlled substance, the jury should be instructed on at least this statutory definition of possession. See Reed v. State, 479 S.W.2d 47, 48 (Tex. Crim. App. 1972). The difficult question is what more, if anything, is permissible and desirable.

The question is difficult because much and perhaps all of the law in appellate discussions appears in a format that makes it inappropriate for incorporation into the instructions.

Links Law. In appellate considerations of the sufficiency of evidence to support convictions for possession of controlled substances, discussion has often been in terms of the “affirmative links” the state must prove between the accused and the substance.

In Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), the court of criminal appeals observed that “the ‘affirmative links’ rule is not an independent test of legal sufficiency.” Rather, it is “a shorthand catch-phrase for a large variety of circumstantial evidence that may establish the knowing ‘possession’ or ‘control, management, or care’ of some item such as contraband.” The court added that the word affirmative lends nothing to the meaning and indicated that discussion would be in terms of only “links.” Evans, 202 S.W.3d at 162 n.9.

Evans summarized what should now be called “links law” as follows:

Evans, 202 S.W.3d at 161–62 (footnotes omitted). See also Allen v. State, 249 S.W.3d 680, 704 (Tex. App.—Austin 2008, no pet.).

Constructive Possession. Some jurisdictions distinguish between “actual” possession and “constructive” possession. The Committee struggled with whether jury instructions in possession cases should communicate to juries that the state may prevail on proof of what many jurisdictions would term “constructive possession.”

Texas criminal law has long recognized the concept of constructive possession in a general sense. E.g., Modica v. State, 251 S.W. 1049, 1051 (Tex. Crim. App. 1923) (jury in theft prosecution instructed that “constructive possession was that possession which the law annexes to the legal title or ownership of property when there is a right to the immediate actual possession”).

The term constructive possession has occasionally been used in appellate discussions of possession of controlled substances. Shortnacy v. State, 474 S.W.2d 713, 716–17 (Tex. Crim. App. 1972) (“The crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance.”) (quoting State v. Carr, 445 P.2d 857, 859 (Ariz. Ct. App. 1968)). In Texas law, however, what other jurisdictions call constructive possession is simply one aspect of links law:

McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985) (quoting Rodriquez v. State, 496 S.W.2d 46 (Tex. Crim. App. 1973)).

There is, however, one mysterious case law reference to jury instructions on the term. In Parasco v. State, 323 S.W.2d 257 (Tex. Crim. App. 1959), the court of criminal appeals reversed on other grounds a conviction for possession of heroin. It then added, “We have concluded that the paragraph in the charge in which the court discusses constructive possession is, under the facts of this case, a charge on the weight of the evidence, and appellant’s objection thereto on such grounds should have been sustained.” Parasco, 323 S.W.2d at 259.

Parasco did not set out or discuss the disapproved instruction. The instruction Parasco disapproved was that “[a] person may be in constructive possession of an article or thing which is not physically present on his person, providing that he is in such juxtaposition of the article that he could exert dominion or control over the article at his will.” Brief for Appellant at 36, Parasco v. State, No. 30491 (Tex. Crim. App. Mar. 4, 1959).

Joint Possession. “Possession of a controlled substance need not be exclusive and evidence which shows that the accused jointly possessed the controlled substance with another is sufficient.” Brooks v. State, 529 S.W.2d 535, 537 (Tex. Crim. App. 1975) (citations omitted). In Beltran De La Torre v. State, 583 S.W.3d 613, 619 (Tex. Crim. App. 2019), the court of criminal appeals held that a jury instruction on joint possession, including the instruction “Two or more people can possess the same controlled substance at the same time,” is an impermissible comment on the weight of the evidence. The court held that while the instruction was “substantively correct,” it was unnecessary to clarify the law. The jury charge in Beltran De La Torre included the statutory definition of “possession”—“Possession means actual care, custody, control, or management”—and this, the court held, adequately covered the applicable law because it encompassed the concept of joint possession and gave the parties a basis for arguing that concept to the jury. See Tex. Health & Safety Code § 481.002(38). Because it was already adequately covered, a nonstatutory instruction on joint possession would only draw the jury’s attention to evidence supporting the state’s argument that the defendant in that case possessed the drugs along with others. It highlighted one particular path to establishing the element of possession, and the state is not entitled to that emphasis. Beltran De La Torre, 583 S.W.3d at 619. The court also concluded that a proposed instruction on mere presence constituted a comment on the weight of the evidence. Beltran De La Torre, 583 S.W.3d at 619. Consequently, neither is included in the instructions that follow. But by agreement on the record, the parties and trial court could decide to include such instructions to clarify the law in a particular case. Instructions for that scenario are set out below.

Mere Presence Instructions and Other Aspects of Links Law. Case law discussions, particularly in more recent cases, characterize links law as inappropriate for jury instructions. E.g., Deener v. State, 214 S.W.3d 522, 530 (Tex. App.—Dallas 2006, pet. ref’d) (“Because the -affirmative-links rule is only a shorthand expression for evaluating the sufficiency of the evidence, instructing the jury on the -affirmative-links rule would be improper.”). A frequently quoted analysis concluded, “Affirmative links, like the reasonable hypothesis theory, is a technical legal standard of review which is not meant for use by the jury and would only lead to confusion and distraction.” Davila v. State, 749 S.W.2d 611, 614 (Tex. App.—Corpus Christi–Edinburg 1988, pet. ref’d).

The Committee was convinced that case law prohibits placing into jury instructions what purports to be a comprehensive summary of links law.

At one time, instructions using limited portions of links law were permitted. In 1975, the court of criminal appeals held that the defendant in a prosecution for possession of marijuana was entitled to a charge on mere presence at the scene. See McShane v. State, 530 S.W.2d 307, 308 (Tex. Crim. App. 1975); see also Musick v. State, 862 S.W.2d 794, 798 (Tex. App.—El Paso 1993, pet. ref’d). But in 2019, the court of criminal appeals recognized that McShane had been undermined by Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998), and was “no longer good law.” Beltran De La Torre, 583 S.W.3d at 623 n.6. Beltran De La Torre held that an instruction on joint possession and an instruction that “Mere presence at a place where narcotics are found is not enough to constitute possession” are both impermissible comments on the weight of the evidence because these concepts are already adequately covered by jury instructions that include the statutory definition of “possession” and would only serve to emphasize one party’s theory. Beltran De La Torre, 583 S.W.3d at 616.

The Committee concluded, of course, that jury instructions should include the statutory definition of possession. It also agreed that under existing law the instructions should neither mention nor attempt to define so-called constructive possession and should neither mention links law nor attempt a summary of it.

In light of Beltran De La Torre’s holding on joint possession and mere presence instructions, the Committee concluded that the court of criminal appeals would also find it an impermissible comment on the weight of the evidence to instruct the jury that mere knowledge of someone else’s possession does not constitute possession. Consequently, none of these statements of law are included in the instructions that follow. That said, the parties and trial court could agree to include such instructions if they believed it would help clarify the law in a given case and if such agreement were made on the record. For those situations, the Committee recommends the following formulations of joint-possession, mere-presence, and knowledge-of-another’s-possession instructions: