¶1dissenting.
¶2I respectfully dissent with the majority’s holding on appellant’s ground of error number three.
¶3The majority concedes that the evidence of both intent and possession is purely circumstantial. I agree.
¶4The majority has decided that the “close juxtaposition” rule is applicable and thus appellant was not entitled to a circumstantial evidence charge. However, examination of the cases dealing with circumstantial evidence of possession leads to the conclusion that the rule is inapplicable in this case.
¶5Cases that have held a circumstantial evidence charge was not required involved facts that resulted in a conclusion that the only person that could have possessed the contraband was the defendant. There was no question as to whether all reasonable alternative hypotheses had been excluded, for there were none to begin with; the only person the evidence pointed to was the defendant. These cases involved direct testimony that the defendant transferred or at one time had on his person an unmarked or unidentified object or package that later proved to be contraband, See Houston v. State, 506 S.W.2d 907, 908 (Tex.Cr.App.1974) (matchbook dropped onto floor during search); Alvarez v. State, 508 S.W.2d 100, 102 (Tex.Cr.App.1974) (bottle found in back of police car matched the one the suspect had tried to sell, police car had been searched before suspect placed inside, and suspect only one in the back seat); Roberts v. State, 489 S.W.2d 893, 895 (Tex.Cr.App.1972) (defendant seen placing object in buyer’s pocket in a closed location); Oltiveros v. State, 474 S.W.2d 221, 222-23 (Tex.Cr.App.1971) (exchange occurred in car that had been searched before the transfer); Cuellar v. State, 169 Tex.Cr.R. 604, 336 S.W.2d 159, 160-61 (1960) (cigarette seen in defendant’s possession before discarded); Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822, 826 (1957). Such cases also have involved situations wherein the person was identified or chosen out of a group by the fact that he was seen with the item and/or he was in such a location that he was the only one who could have possessed the item. See Noah v. State, 495 S.W.2d 260, 266 (Tex.Cr.App.1973) (package thrown from car and defendant only occupant); Fields v. State, 168 Tex.Cr.R. 76, 323 S.W.2d 439, 440 (1959) (person with brown sack that contained marihuana got in back seat and defendant only one in back seat); Pinkston v. State, 161 Tex.Cr.R. 310, 276 S.W.2d 259 (1955) (defendant sitting in right front of the car and object thrown from that window). The fact that the defendant had sole occupation and control of the premises or vehicle was *758held sufficient to justify refusing the charge. See Harris v. State, 486 S.W.2d 88, 92 (Tex.Cr.App.1972); Gonzales v. State, 157 Tex.Cr.R. 8, 246 S.W.2d 199, 200 (1951).
¶6The only case that closely resembles this one is Flores v. State, 625 S.W.2d 91 (Tex.App.—Fort Worth 1981), and I disagree with the reasoning therein. In Flores, the defendant resided in the house with his wife, and claimed that a third party also lived there and it was that person’s marihuana that was found in a drawer. However, in response to a question by police officers as to where his “dope” was, the defendant revealed the marihuana. The court appears to have reasoned that knowledge coupled with occupancy with a spouse alone is sufficient to justify the denial of a circumstantial evidence charge. See Id. at 93. However, what the case in fact involved was an admission which constituted direct evidence and made the charge on circumstantial evidence unnecessary. Cf. Stein v. State, 514 S.W.2d 927, 933-34 (Tex.Cr.App.1974) (defendant told third party he knew marihuana was in his van); Brown v. State, 437 S.W.2d 828, 829-30 (Tex.Cr.App.1968), cert. denied, 393 U.S. 1089, 89 S.Ct. 850, 21 L.Ed.2d 782 (1969) (defendant admitted heroin was his).
¶7The fact that the appellant lived in the house with his wife and the marihuana was growing in plain view goes to the weight and sufficiency of the evidence, but it does not change the fact that the evidence was circumstantial. Closely analogous to the case at bar is Draper v. State, 513 S.W.2d 563 (Tex.Cr.App.1974), which dealt with two individuals who were not related that were found in a car owned by one of them. Even though heroin was found in between the two and the defendant had fresh needle marks on his arm, the court reversed for failure to give the charge and held it was a reasonable hypothesis that the other party may have obtained the heroin when he went to make a phone call and there was not direct evidence that the other party acted with or on behalf of the defendant. Further, as long as the accused is not in sole possession and occupancy of the premises, the fact that the contraband is located therein is not enough to support the refusal of a circumstantial evidence charge. See Rodriguez v. State, 617 S.W.2d 693, 694 (Tex.Cr.App.1981).
¶8I can only conclude therefore that the majority is convinced that intent and possession may be inferred by the mere fact that appellant was married to the person actually in possession and that appellant was at a location on the premises where he had a perfect right to be; this is when the majority and I come to a parting of the ways. The majority wrongfully infers intent and possession because it refuses to accept the changes in our society. Nowadays, it is reasonable to infer that in a majority of households throughout this land what a spouse does or does not do therein is in many instances without the consent and knowledge of the other spouse. Marriage alone does not change joint occupancy into sole occupancy, nor does it automatically create criminal responsibility for the actions of a spouse. It was a reasonable hypothesis that appellant’s wife was growing and using the marihuana, and that appellant was in no way involved.
¶9Under the cases cited and the evidence as presented in the trial of this case, I cannot subject appellant to the “close juxtaposition rule” and thereby deny him a charge on circumstantial evidence. I would sustain appellant’s third ground of error and reverse and remand this case to the trial court for a new trial.