Evans, Oliver Eugene Jr. ( 2006 )

                     IN THE COURT OF CRIMINAL APPEALS

                                    OF TEXAS

                                                                      PD-1911-05

                                                  OLIVER EVANS, JR., Appellant

                                                                             v.

                                                         THE STATE OF TEXAS

                               On Discretionary Review of Case 04-04-00249-CR of the

                                                          Fourth Court of Appeals

                                                                   Bexar County

Womack, J., filed a concurring opinion, in which Price and Johnson, JJ. joined.

I join the opinion of the Court and the substance of its reasoning. I would prefer that the Court did not use the term Aaffirmative link.@

This term seems to have been used by the Court for the first time in Haynes v. State, 475 S.W.2d 739, 742 (Tex. Cr. App. 1971):

Finally, appellant contends that the evidence is insufficient to support the verdict [of guilty of possession of marihuana]. He relies on the decisions of this court in Cul­more v. State, Tex. Cr. App., 447 S.W.2d 915; Martinez v. State, 170 Tex. Cr. R. 266, 340 S.W.2d 56; and in Brock v. State, 162 Tex. Cr. R. 339, 285 S.W.2d 745. Such reliance is misplaced. Those cases require only that an affirmative link be shown between the person accused of possession and the narcotic drug.  In the case at bar, such a link was furnished by the envelope found with the marihuana when other circumstances were taken into account.  We conclude that the evidence is sufficient to support the judgment.

The precedents that the Haynes Court cited did not require an affirmative link, and they did not use the term or the concept of Aaffirmative links.@ They analyzed the circum­stantial evidence of possession in the same way that circumstantial evidence of any element of an offense is analyzed. The evidence doesn=t have to be any more affirmative or linking than circumstantial evidence in any other case. The issue is whether there was evidence of circum­stances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance.

Today=s opinion for the Court, and the precedents it discusses, would reach the same result if they were cast in the terms that were used before Haynes. We would be better off if we affirmatively cut the link between our analysis and the term Aaffirmative link.@

Filed September 20, 2006.

Publish.