Brown v. State

• Decision Date: 13 December 1995
• Docket Number: No. 0852-94,0852-94
• Citation: 911 S.W.2d 744
• Parties: Steven Raymond BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 744

911 S.W.2d 744

Steven Raymond BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 0852-94.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 13, 1995.

Robert McCrarey, Fort Worth, for appellant.

Charles M. Mallin, Asst. Dist. Atty., Fort Worth, Robert A. Huttash, State's Atty., Austin, for State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

A tense confrontation with police officers in the parking lot of a Fort Worth motel eventually led to appellant's arrest for aggravated assault. While making an inventory of his automobile and its contents, the police discovered two large burlap bags in the trunk, wrapped in plastic and containing more than eight pounds of usable marihuana. On the strength of this evidence, appellant was later tried and convicted for illegally possessing the marihuana and his punishment assessed at confinement in the penitentiary for a term of 40 years. See Tex.Health & Safety Code Ann. § 481.121(a), (b)(4); Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.

Under our law, a person may not be convicted for possession of a controlled substance unless it is proved that he possessed the substance "intentionally or knowingly." Id. On direct appeal of the instant cause appellant argued that the evidence adduced at trial did not prove this essential element of the offense because it did not "affirmatively link" him with the marihuana found in the trunk of his car. The State responded by urging the Second Court of Appeals not to apply the so-called "affirmative links" test, contending that it had been defunct since this Court's opinion in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). Because the Court of Appeals agreed that Geesa had effectively undermined our "affirmative links" jurisprudence, it refused to be bound by the precedent upon which appellant relied, and affirmed his conviction. Brown v. State, 878 S.W.2d 695 (Tex.App.--Fort Worth 1994). We granted appellant's petition for discretionary review of this holding because there is disagreement among the courts of appeals concerning the current viability of case law requiring proof of an "affirmative link" in drug possession cases. Tex.R.App.Proc. 200(c)(1). Compare, e.g., Eaglin v. State, 872 S.W.2d 332 (Tex.App.--Beaumont 1994) with Villarreal v. State, 865 S.W.2d 501 (Tex.App.--Corpus Christi 1993).

The genesis of our jurisprudence on this subject is often traced to Haynes v. State, 475 S.W.2d 739, 742 (Tex.Crim.App.1971), wherein Judge Odom, writing for a unanimous Court, opined that the only thing required for conviction in drug possession cases is that "an affirmative link be shown between the person accused of possession and the narcotic drug." This perfunctory remark was meant to neutralize, without much ado, Haynes's reliance on several precedents, each of which counselled that drug convictions depending on circumstantial evidence should be reversed unless the evidence is sufficient to exclude all reasonable hypotheses inconsistent with guilt. By claiming that this rule required no more than proof of an "affirmative link" between the accused and the contraband, the Court was able to affirm Haynes's conviction without any detailed analysis under the "outstanding reasonable hypothesis" test.

But holding that the accused must be affirmatively linked to a drug says nothing about how strong that link must be. The Court's "affirmative link" remark in Haynes merely identified what the evidence needed to show in order to prove that Haynes knowingly possessed a controlled substance. It made no attempt to explain why the evidence was persuasive enough in that case to exclude every other reasonable hypothesis. This shortcoming of our opinion in Haynes has encouraged a false belief that the "outstanding reasonable hypothesis" standard can be reduced in drug possession cases to a simple, abbreviated description of the offensive elements. Clearly, this is not true in the abstract and, even following our decision in Haynes, it has not been true in practice.

At the time Haynes was decided, the "outstanding reasonable hypothesis" formula had been a significant feature of evidentiary review in circumstantial cases of all kinds for more than a hundred years. See Perkins v. State, 32 Tex. 110 (1869). Juries were routinely instructed in such cases not to convict unless they believed that the circumstances "exclude[d], to a moral certainty, every other reasonable hypothesis except the defendant's guilt[.]" 1 Branch's Annotated Penal Code § 373.1 (2d. ed. 1956); Thomas v. State, 171 Tex.Crim. 54, 344 S.W.2d 453, 455 (1961). And courts reviewed the sufficiency of evidence on appeal by much the same standard. E.g., Harroll v. State, 135 Tex.Crim. 65, 117 S.W.2d 103 (1938); Kunde v. State, 22 Tex.App. 65, 3 S.W. 325, 331 (1886).

Gradually, however, most American jurisdictions came to believe that circumstantial evidence did not really deserve such special treatment. The United States Supreme Court had long held that no different standard of proof was required in federal prosecutions relying on such evidence, Holland v. State, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and, over the years, many states followed suit. In each instance, the reason given was basically the same. Telling jurors that they should not convict on the basis of circumstantial evidence unless it affirmatively excludes other hypotheses suggests that such evidence is less trustworthy or persuasive than direct evidence, and that a higher standard of proof should therefore apply when the State relies on it. See Griffin v. State, 614 S.W.2d 155, 159 n. 5 (Tex.Crim.App.1981).

But courts increasingly came to realize that, as an empirical matter, circumstantial evidence often has equal or even greater probative value than direct evidence. And because Texas law does not actually require that jurors in criminal cases have any more confidence in their verdicts of guilty when the evidence is circumstantial, a jury instruction to treat such evidence differently is not really necessary to protect any rights of the defendant or to accomplish any other important objectives of the system. Accordingly, in 1981, we stopped requiring it. Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App.1981) (opinion on rehearing).

But we did not immediately stop using the standard as a basis for appellate review of evidentiary sufficiency. For fully another decade we remained open to the argument that a jury verdict may not stand whenever the evidence does not exclude other reasonable hypotheses inconsistent with guilt. Doing so seemed acceptable to us as a means of implementing the federal due process requirement of evidentiary sufficiency, which holds that a conviction is unconstitutional unless "after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). It was our considered view of this standard that, "if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding." Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (opinion on rehearing).

But use of the "outstanding reasonable hypothesis" methodology ultimately also proved confusing and unworkable as an appellate standard. Application of the rule in individual cases was erratic and did not actually differ much in practice from the sufficiency review of cases not relying on circumstantial evidence. Moreover, it was clear that the Supreme Court did not require any such methodology under the Due Process Clause. Jackson, 443 U.S. at 326, 99 S.Ct. at 2792. Although the strength of inculpatory evidence is sometimes best expressed in terms of its power to exclude alternate hypotheses, enforcing a rule that evidence is otherwise never strong enough for conviction misappropriates to appellate judges some of the jury's authority to weigh evidence. This is particularly so when the standard of appellate review is at least superficially different than the standard of proof given in the jury charge. For these reasons, we finally abandoned altogether, in 1991, the "outstanding reasonable hypothesis" construct as a special rule of decision in circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991).

During the twenty-year interval between our first use of the phrase "affirmative links" in Haynes and our interment of the "outstanding reasonable hypothesis" standard in Geesa, we handed down no fewer than eighty opinions inquiring whether the evidence was sufficient to affirmatively link the accused with drugs. Most of these opinions do not even mention that the evidence is circumstantial or that its sufficiency might depend on the exclusion of other hypotheses. E.g., Cude v. State, 716 S.W.2d 46 (Tex.Crim.App.1986); Meeks v. State, 692 S.W.2d 504 (Tex.Crim.App.1985); Marsh v. State, 684 S.W.2d 676 (Tex.Crim.App.1984); Flores v. State, 650 S.W.2d 429 (Tex.Crim.App.1983); Olguin v. State, 601 S.W.2d 941 (Tex.Crim.App.1980); Harrison v. State, 555 S.W.2d 736 (Tex.Crim.App.1977); Williams v. State, 524 S.W.2d 705 (Tex.Crim.App.1974); Payne v. State, 480 S.W.2d 732 (Tex.Crim.App.1972). Instead, the analysis is generally confined to an examination of the record for any evidence which tends to prove that the accused was actually aware of his drug possession. When such evidence is found to exist and when it is considered to be of adequate probative weight, the Court then simply announces that it is sufficient for conviction. Otherwise, the conviction is reversed.

Some of our opinions during this time do, of course, establish a sort of rhetorical connection between the "outstanding reasonable hypothesis" test and the need to affirmatively link the accused with the drugs he is alleged to have...