¶1concurring.
¶2This concurrence is written separately to emphasize that in many criminal cases the admissible proof offered by the prosecution is in its nature both direct and circumstantial. Circumstantial evidence is to be weighed as direct evidence. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). Note that the appellant appeals his judgment of conviction on the contention that the trial court erred in holding the evidence to be sufficient. Appellant argues that the evidence was insufficient to prove possession.
¶3The Court’s opinion necessarily analyzed and reviewed the fact situation in the case. The Court correctly pointed out that one trooper pursued the appellant on foot and a second trooper followed the chase in a patrol car. Trooper Martin, after the appellant was apprehended and stopped, took control of the appellant. The second trooper then returned to a particular point that had been traversed in the foot race or chase and recovered a white pill bottle. This was Trooper Masku-nas who testified that he had definitely seen the appellant throw down the bottle or container during the foot race. A field test was performed. The results indicated that the bottle contained a controlled substance.
¶4It must be remembered that a main thrust of the appellant’s argument for reversible error challenges the sufficiency of the evidence to support the fact that the appellant was in exclusive possession of the place where the contraband was found. Thus, the lack on the appellant’s part of such possession of the place where the contraband was found was a major part of his defensive arsenal. Appellant basically argues that the evidence shows that he was not in exclusive control of the place where the trooper retrieved the pill bottle, the contents of which were later determined to be cocaine. Significantly, the appellant further argues that the factual situation wherein the appellant threw down the seized pill bottle or container does not impute knowledge to the appellant sufficient to sustain the conviction.
¶5Here, I think, the appellant contends that any guilty knowledge or the necessary “mens rea ” is simply lacking. Simply stated, appellant maintains that the prosecution failed to demonstrate that he knew that the contents of the pill bottle or container were contraband or any controlled substance.
¶6In view of these defensive theories, I conclude that the circumstantial evidence (as well as the direct evidence) was not only relevant but crucial and compelling.
¶7*821The record clearly reflects that the pursuing-on-foot trooper observed the appellant throw a pill bottle or something that looked like a pill bottle or a white, small container on the ground. The trooper marked mentally where the container fell. It fell right beside a picnic table. But the trooper had to continue to pursue the appellant who was still running ahead of the trooper. After the appellant lost the foot race, the trooper returned immediately to the place and retrieved the white, small container or pill bottle.
¶8At trial, the trooper attempted to answer a question to the effect that the trooper had seen the appellant drop the bottle and the trooper was about to testify that he could definitely determine that the bottle was the same one that the appellant dropped. At that point an objection was made which was sustained. Then the trooper was permitted to testify that there were not any other pill bottles in or around that place and that the pill bottle or container was dry while the other items that were around in that area were wet with a heavy dew. He described these other wet items as trash, leaves, and other types of debris. In view of the sustained objection of the appellant, I think that the circumstantial evidence was crucial as well as significant to the State’s case and to the State’s discharging its burden of proof in a criminal proceeding before the jury.
¶9In view of the arguments and contentions and the general posture of the appellant’s appeal, the circumstantial evidence was important on the issue of possession. Con-cededly, the appellant was not the owner of the place where the contraband, being cocaine, was found. But the white, small pill bottle had been in the immediate possession and hands of the accused and the continuing conduct of the accused indicated a consciousness of guilty knowledge; the accused had a direct and special connection and possession of the bottle; some of these situations and factors have probative force on the issue of possession, custody and control. It is the logical force and deductions of these factors that have in combination probative evaluation in establishing the elements of the indicted offense. It is axiomatic that the State has a heavy burden of proof. The State must make its case by credible evidence beyond a reasonable doubt. The State must prove every element of the offense.
¶10Furthermore, the circumstances of the chase and the flight of the appellant are relevant to the appellant’s argument that there exists a lack of guilty knowledge. Hence, in view of the overall posture of the appellant’s brief, these circumstantial factors in combination are clearly relevant to and supportive of the jury’s conclusion that the appellant had guilty knowledge about the presence and the nature of the contraband, being cocaine in this case.
¶11Even though in the aggregate, the circumstantial evidence and the surrounding factors as reflected in the record need not necessarily exclude every reasonable hypothesis other than the guilt of the accused; nevertheless, the circumstantial evidence in this case has strong probative force and was necessary— and certainly reasonable and prudent — to the prosecution’s discharging of its heavy burden.
¶12The Court’s opinion was therefore correct in citing the well-reasoned case of Whitworth v. State, 808 S.W.2d 566 (Tex.App.—Austin 1991, pet. refd). The other concurring opinion places reliance on Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). The Court’s opinion is harmonious with Geesa, swpra. The Court’s opinion does not base its rationale on the analytical construct doctrine. Geesadoes not denigrate the admissibility or the probative force of circumstantial evidence. The accused persisting in an attempt to flee is a circumstance that can be considered on the element of guilty knowledge or mens rea, which the appellant argues is woefully lacking. I cannot agree that mens rea is absent.
¶13Indeed, logically, circumstantial evidence under Geesaacquires an elevated standing and increased probity in a certain sense because it is no longer subservient to the analytical construct doctrine. But this increase in probity is not to the detriment of direct evidence. In Geesa, the Court decried:
It is this dichotomy in the law which necessitates our abrogation of the “reasonable hypothesis analytical construct”. As
*822we have emphasized on numerous occasions, the sufficiency of the evidence must be measured against the jury charge, (citations omitted). Given the fact that a jury is to be guided by the charge in reaching their verdict, and given the fact that juries are no longer instructed on the law of circumstantial evidence, it no longer makes sense for appellate courts to use the circumstantial evidence “construct” to review the jury’s verdict and to determine, thereby, whether the jurors acted “rationally”.
¶14But Geesadoes not disallow or diminish circumstantial evidence nor does it forbid intermediate appellate courts from analyzing the same when a two-pronged attack on the sufficiency of the evidence is frontally leveled by the accused against the jury’s verdict. Again, the Court’s opinion does not engage in the analytical construct doctrine or the “reasonable hypothesis analytical construct doctrine” or the “reasonable-hypothesis-of-innocence analytical construct”. Rather, the Court assiduously follows the holding of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Court’s opinion does not treat circumstantial and direct evidence as being inherently different; this is correct. The Court’s opinion followed the correct standard of review for testing the sufficiency of the evidence which was whether the jury was properly instructed and to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The paramount question being whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Note that the mandates of Jackson v. Virginia in enunciating the single standard of review do not differentiate between circumstantial and direct evidence. Thus, the writer of the other concurrence’s critique of the Court’s opinion is inadequate and lacking complementarity.