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 o f 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 Texas1 The same c ourt reviewed Richard's and Jessey's convictions.

Jessey was convicted in a trial held separately a nd before

Ric hard'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 - Department of Public Safety Pilot Billy Peace, Texas Rang er John

Dendy, and Sheriff David Coff ee conducted a search by helicopter

f or 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 a nd 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 Octo ber, 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 unsuccessfullythey reflect the possible confusion over what e vidence was

considered in Richard Gilley's t rial, 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

o r 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. S ee, 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 - 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 b e granted on the grounds of

insufficient evidence. Both parties filed objections to that

report. The district court, after a d e n o vo review of the

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

objections, adopted the report an d 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. 23 The Jackson standard ap plies to both bench and jury trials;

Jackson

, like this case, involved revie w 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 conside r evidence supposedly discussed at a pretrial

hearing; and it describe d 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 th e 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 - II.

"Our standard of re view in a habeas action alleging

insufficient evidence is set out in Jack son ...." 3 G uzman v.

Lensing

, 934 F.2d 80, 82 (5th Cir. 19 91); s ee 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 r elevant 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.'" G uzman

, 934 F.2d at 82

(quoting Jackson

, 443 U.S. at 319) (emphasis in J ackson ). 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

.MR. CARNEY: Your Ho nor, 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 appe al in this case. As discussed in

note 1, supra

, this seeming confusion about what was in evidence at

Richard G illey'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 prese n ted 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 lan d (each

of which was joint with Jessey Gilley), his

frequent comings and goings to the 118 acre tract,

a n d 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 -unpublished opinion at page 4 pithily opines the

"mother hubbard" type phrase "... as well as the

other facts and circumstances...." which suggest

mor e 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 liv e 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 - 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 J ackson 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 wi th the defendant's claim of

innocence." G ibson 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 th e essential elements of the crime5 This definition applies to prosecution under the Texas

Controlled Substances Act. S ee Tex. Penal Code Ann. § 1.03(B)

(West 1974).

- 7 - (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." G uiton 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 ). T ex. 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 ov er the contraband unless there are

additional independent facts and circumstances which affirmatively- 8 -

link the accu sed to the contraband." G uiton

, 742 S.W.2d at 8.

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

facts and circumstances. I d

. Circumstances relevant to

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

defendant's presence when the search warr ant 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 whe n arrested; (5) defendant's possession of other

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

when arrested; (7) defendant's attempted flight; (8) defendan t'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." K ing 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- 9 - the facts and to defe r 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, Jack son 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 cou rt erred in holding

t hat "a rational trier of fact could not have found b eyond 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 l ocated.

Consistent with the appropriate stand ard of review under J ackson

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] not6 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 - 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 testifie d that it was

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

property, testifi ed that the area was "very thickly wooded, many

draws, branches, and creeks running through it, it's a very rough- 11 -

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 wa s 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 no t 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 t he costs incurred in cultivating the marijuana, no

evidence that Richard Gilley contributed to whatev er 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 and7 Richard Gilley arranged to have the water well drilled; and it

was used, among other uses, to irrigate the marijuana . The well

contractor testified t hat 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 - 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 farmin g

, 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 c ontends erroneously

that the above re ferenced 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 r equisite "exercise of care, custody, control or management"

over it. S ee, e.g., United States v. Culpepper

, 834 F.2d 879, 882

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

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

ability to exercise dominion and control over the mari juana.").

The State als o introduced electric and telephone records and

testimony from a neighbor tha t 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

G illey and the property does not establish the requisite

affirmative link between him and the marijuana. As noted, the area- 13 -

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

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

p roperty, 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, i nter alia

, the reco rd 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

.