¶1dissenting.
¶2The question in this case is whether a defendant may be found guilty beyond a reasonable doubt of intentionally and knowingly possessing cocaine, when the only evidence of possession is that he was a passenger in a car owned by someone else and driven by a third person, and a baggie containing 1.6 grams of cocaine was found toward the back of the seat he occupied.
¶3I would hold that this case is controlled by Humason v. State, 699 S.W.2d 922 (Tex.App.—Houston [1st Dist.] 1985), aff'd, 728 S.W.2d 363 (Tex.Crim.App.1987). In Hu*620mason, the Court of Criminal Appeals declared:
Mere presence in the vicinity of a controlled substance has never been sufficient to establish joint possession.
¶4728 S.W.2d at 366-67 (emphasis added).
¶5There is nothing but mere presence in the vicinity of a controlled substance to support this conviction. This case has many similarities to Humason, including:
(1) there was no evidence that appellant owned the car;
(2) there was no evidence that appellant had exclusive control of the car;
(3) there was no evidence that appellant made furtive gestures;
(4) there was no evidence that appellant tried to escape or resisted arrest;
(5) there was no evidence that appellant was intoxicated or under the influence of drugs;
(6) there was no evidence that appellant made incriminating, false, or inconsistent statements;
(7) there was no evidence of any distinctive odor of contraband;
(8) there was no evidence of drugs on appellant’s person or elsewhere in the car; and
(9) there was no evidence of appellant’s fingerprints on the baggie.
¶6As this Court observed in Humason, these factors, when present, have served to establish an affirmative link, and their absence has frequently led to reversal. 699 S.W.2d at 924.
¶7Moreover, the evidence here is weaker in at least three significant aspects than that declared insufficient in Humason. First, Humason was driving his vehicle, a clear sign of control; appellant was not driving. Second, Humason was the sole occupant of his vehicle; the car here contained two people, appellant and the driver. Third, the evidence in Humason did not show who owned the vehicle; the evidence here showed that appellant did not own the vehicle; his wife did. Appellant admitted he had driven the car on occasion, but that does not distinguish this ease from Huma-son, where the driver’s exclusive control and sole occupancy when arrested were not enough to justify affirmance.
¶8When arrested, appellant had $1,100 in cash in his pocket. He testified, without contradiction, that he had won the cash at horse races in Louisiana. I do not understand the majority opinion to hold that possession of $1,100 in cash is an affirmative link to the cocaine. No case cited in the majority opinion makes such a holding. Indeed, this Court held to the contrary on very similar facts in Thomas v. State, 762 S.W.2d 721, 722 (Tex.App.—Houston [1st Dist.] 1988, no pet.). In Thomas, $1,900 in cash was not a sufficient link to justify affirmance. Chief Justice Evans concurred in the reversal
because there was no proof showing that the vehicle belonged to or had been in appellant’s possession for such a period of time and under circumstances that would affirmatively link him to the contraband. Indeed, the evidence shows that the vehicle was leased to another party.
¶9Id. at 724. The defendant in Thomaswas both the driver and the sole occupant of the car. Thus, Thomaswas arguably a stronger case for affirmance than the instant case.
¶10In Baltazar v. State, 638 S.W.2d 130 (Tex.App.—Corpus Christi 1982, no pet.), the court reversed where the defendant drove a car with a passenger, and cocaine was found on the dashboard. The defendant in Baltazarwas also carrying a “size-able amount” of cash on his person. Id. at 131. The court held:
It is true that the area of the automobile in which the substance was found, i.e., on the dashboard, was convenient to appellant and rendered it easily accessible to him. This one circumstantial link, however, is not sufficient.
¶12In McBride v. State, 780 S.W.2d 823 (Tex.App.—San Antonio 1989, no pet.), the facts were similar to Humason, except that, as here, the defendant was not driving. The court noted this difference and declared:
*621The evidence here is weaker than that declared insufficient in Humason, since there is no evidence in this case that appellant was driving the truck shortly before the cocaine was found.
¶13Id. at 825. The same is true in this case.
¶14When arrested, the defendant in McBridewas the sole occupant of a truck, and cocaine was found on the seat next to him, under some papers. As in this case, the court noted there was no evidence that McBride owned the truck, and the cocaine was not in plain view. There being no other incriminating evidence, the court quoted Humason:
Without some evidence excluding the equally reasonable hypothesis that [defendant] was unaware of the presence of the cocaine, the trier of fact could not conclude beyond a reasonable doubt that [defendant] knowingly possessed the cocaine.
¶15McBride, 780 S.W.2d at 824.
¶16Finally, in Copeland v. State, 747 S.W.2d 14 (Tex.App.—Houston [1st Dist.] 1988, no pet.), this Court unanimously reversed, even though the panel, speaking through Chief Justice Evans, agreed with the State that the marijuana was in plain view, the defendant admitted he knew of it, and it was “easily accessible” due to its location under his seat. Id. at 16. Copelandseems to be a stronger case for affirmance than the present case, but it was reversed.
¶17In my opinion, there is no significant distinction between Humason, McBride, Baltazar, Thomas, Copeland, and this case.
¶18The majority opinion relies on Hahn v. State, 502 S.W.2d 724 (Tex.Crim.App.1978). Hahnis distinguishable because (1) the defendant drove the car, (2) the defendant admitted his exclusive recent possession of the car while driving from South Carolina to Texas, and (8) the defendant admitted the two passengers had no knowledge of the car’s contents. In short, Hahn had much more control over his vehicle than appellant was shown to have over his wife’s vehicle in this case. Orosco v. State, 164 Tex.Crim. 257, 298 S.W.2d 134 (App. 1957), is also distinguishable; in fact, this court distinguished it in Humason. See 699 S.W.2d at 924. Orosco was charged with possession of marijuana, and an expert testified that marijuana was an intoxicant, that Orosco was intoxicated, and that Orosco’s intoxication was caused by marijuana. 298 S.W.2d at 135. Obviously, there is no such evidence in this case.
¶19I would sustain the first point of error, reverse the judgment of conviction, and reform the judgment to reflect an acquittal. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).