The opinion
WOODLEY, Presiding Judge
(dissenting).
The opinion reversing this conviction reaches the conclusion that the evidence is insufficient but fails to set out the evidence from the standpoint most favorable to the jury’s verdict. Instead, the opinion sets out testimony of appellant which the jury was not bound to accept as true.
It is a fundamental rule in criminal cases that testimony introduced by the defendant may be used against him. Spears v. State, 103 Tex.Cr.R. 474 , 281 S.W. 555 .
It is equally well settled that the jury is not bound to accept all or any part of the defendant’s testimony as true.
We are not here confronted with a case where the state was bound to prove beyond a reasonable doubt that the defendant had exclusive possession and control of a narcotic drug.
The record reflects that this is a companion case to those of C. D. Bell III, J. P. Rock and J. S. Young, Jr. 1
In his charge, to which there were no objections, the court defined “possession” and instructed the jury that ownership was not necessary to constitute possession, and that more than one person may have possession of a thing at the same time.
The court also charged the jury on the law of principals and submitted the case to the jury as one depending for conviction on circumstantial evidence.
Two rooms of the house were lighted; the bedroom where the marijuana was found and the den where appellant, his co-indictees and a 17 year old girl were sitting when two of the officers executing the search warrant entered the front door. 2
The evidence relating to the marijuana found in the bedroom is shown by the fol *918 lowing testimony of Dallas Police Officer Sam C. Gonsales:
“I found on top of this desk that I pointed out in the bedroom a flour sifter that had traces of marijuana in it. This is the instrument they used to strain their manicured marijuana; also in the second drawer on the left-hand side of this desk I found a small baggie with approximately 100 grains of marijuana and seeds that was rough marijuana.”
To connect appellant with the possession of the bags of marijuana, in addition to his presence in the den with all the other persons who were in the house, are the following facts and circumstances.
Officer Gonsales testified “there was a real strong smell of marijuana smoke when we entered the house. * * * First we searched the people in the den * * *.
“Q. * * * What is State’s Exhibit No. 7?
“A. It’s a package of cigarette papers.
“Q. That’s normally used to do what ?
“A. Roll cigarettes. Most of the places where we find marijuana, this is the most common brand of cigarette papers found.
“Q. You’re telling them you found them in the left shirt pocket of that Defendant, is that correct ?
“A. Yes, sir.
‡ ‡ ‡ ‡ ‡ *
“Q. Did you see ashtrays in there in the bedroom ?
“A. Yes, sir.
“Q. Were they clean?
“A. They were wiped clean.”
It is interesting to note that no tobacco from which cigarettes could be rolled was found in the house and according to the officers’ testimony the only cigarette papers available to roll marijuana cigarettes were those found in appellant’s shirt pocket. Any hypothesis that these cigarette papers were for use in rolling tobacco cigarettes was removed by appellant’s testimony that he did not and had never “rolled his own” but at the time smoked ready rolled cigarettes, a package of which were in his pocket.
Officer Tarver testified that when he and Officer Gonsales went in the front door he immediately noticed a strong odor of marijuana, and that such odor was strong in the den and in the bedroom where he found a pipe as well as a plastic bag containing what he belieyed to be marijuana on top of the desk.
Officer Tarver further testified that he saw Officer Gonsales search appellant in the den and take a package of cigarette papers out of appellant’s pocket.
If appellant’s testimony is true, he was guilty of no offense. In his testimony he gave no explanation of his possession of the package of cigarette papers taken from his shirt pocket and introduced in evidence. His testimony was that he had no cigarette papers, that he was not searched; had never seen the cigarette papers introduced in evidence as those taken from his shirt pocket until produced at the trial; he had not been in the bedroom; he did not know Claude Bell “had all of this stuff in his house — didn’t know Claude Bell that well;” had never seen the package of marijuana, the sifter or the pipe until the officers brought them into the den; that all of the five people in the house remained in the den from about 9 o’clock until the officers arrived about 10 o’clock and none of them went to the bedroom during the time he was in the house, that he had never before or since seen marijuana except in an F.B.I. exhibit, and that he did not smell the odor of marijuana smoke described by the state’s witnesses and could not smell anything because of an allergy.
Without regard to the fact that much of appellant’s testimony was directly contrary to the testimony of the state’s witnesses and the impeachment testimony offered by *919 the state in rebuttal, 3 the jury was not bound to accept this testimony of appellant as true, and it is evident that they did not.
The majority opinion holds that the only probative fact which implicates appellant was the odor of marijuana in both the den and the bedroom. The fact that cigarette papers were found in appellant’s pocket is denied any probative effect because no marijuana cigarette butts were found in the house. Disregarded is the testimony of appellant that he had no cigarette papers and the testimony of Officer Gonsales that the ashtray in the bedroom where the marijuana prepared for smoking was lying on top of the desk “had been wiped clean.”
The question is not whether the evidence is sufficient to support a finding by the jury that appellant alone possessed the marijuana found in the bedroom.
Exclusive possession of such marijuana in appellant is not shown by the evidence.
The question is whether the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient to support a finding by the jury beyond a reasonable doubt that appellant participated in the unlawful possession of said marijuana. See 24 Tex.Jur.2d 393, Evidence — Sec. 724, and cases cited under Note 6.
In Parker v. State, Tex.Cr.App., 432 S.W.2d 526 , we quoted from Mason v. State, 108 Tex.Cr.R. 452 , 1 S.W.2d 283 , as follows:
“ ‘Very wisely the jury has been made the exclusive judges of the facts proven and the weight to be given to the testimony * * * this court does not, and should not, assume to exercise the right to reverse on the facts, unless the evidence, when viewed in its strongest light from the standpoint of the state, fails to make guilt reasonably certain. * *
“While this court has the right to reverse a judgment of conviction on account of the insufficiency of the evidence (Texas Code Crim.Procedure, art. 939) and it becomes its duty to do so ‘if the guilt of the accused is not made to appear with reasonable certainty’ (Mitchell v. State, 33 Tex.Cr.R. 575 , 28 S.W. 475 ), no fixed rule has been devised which will in all cases furnish a certain standard. Necessarily each case must in a measure be tested by its own facts (Mitchell v. State, * * *; Hampton v. State, 1 Tex.App. 652 ; Burrill on Circumstantial Evidence, p. 737; Wills on Circumstantial Evidence, p. 188). However, when a jury, advised of the restrictions which the law places upon them in condemning one on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy *920 its cogency. This, in the instant case, we are unable to do. (Quote from Taylor v. State, 87 Tex.Cr.R. 330 , 221 S.W. 611 , at pages 613 and 614.)”
I would hold that the evidence is sufficient to sustain the jury’s verdict.
. Also, on motion of the state appellant and his counsel were instructed by the court to refrain from referring or alluding to, in the presence of the jury or jury panel, “the amount of punishment received by any of the defendants, Claude Bell III, John Paul Rock and John Simmons Young, Jr.”
. It is not shown how much time elapsed between the time the officers knocked and the time they first saw the persons sitting in the den. Appellant testified they had all been in the den for about an hour, during which time none of them went into the bedroom.
. Police Officer Cole testified that in front of a certain apartment house on November 3, 1967, a man named Keen handed him a hand rolled cigarette -which was burning and emitting the odor of burning marijuana and that at such time appellant was standing “perhaps two feet away” and saw Keen hand him the cigarette. Shortly thereafter, in one of the apartments, one Chuck Deal came from the bedroom area and placed two bags of vegetable matter resembling marijuana on the table. One Erie Dingo picked up both bags, placed one in his pocket and gave the other to the witness Cole. Appellant and one Mark Craft were present when this exchange of marijuana occurred.
Directing his remark to appellant, Oraft said something like “heard a guy gave you a pound?” to which appellant replied “he did, the guy has a closet full but doesn’t have any speed or acid * * *» an(j went on j-o gay ⅛ would “trade a pound of weed for three grams of speed or two good tabs of acid.” (The witness testified that in the vernacular of those engaged in narcotics traffic, the term “weed” designates marijuana; “speed” is methamphetamine, a stimulate-type drug, and “acid” is Lysergic Acid Diethylamide, commonly referred to as LSD.)