specially concurring:
I agree with my colleague’s excellent opinion. I write separately to point out it is time for this Court to re-examine its outdated standard for reviewing cases composed entirely of circumstantial evidence.
*994If there is direct evidence as to the elements of a crime, the Court uses the Jackson v. Virginia standard adopted in Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985); however, if there is no direct evidence, the Court has used the “reasonable hypothesis” test. Mitchell v. State, 884 P.2d 1186, 1199 (Okl.Cr.1994). This ease presents an excellent example why these separate standards are archaic.
Because there is no direct evidence as to the trafficking count, the Court has used the “reasonable hypothesis” test. Yet because the officer did not see a tax stamp on the bag, there is direct evidence of the crime, and the Spuehler test applies. The opinion’s analysis is precisely correct under existing caselaw; but it seems senseless to apply one standard of review to one crime, yet apply another to the second, even though the exact same parties and parcels are involved.
This dichotomy stems from an antiquated notion on the relative value of certain types evidence that is long past its prime, and which should be allowed to undergo a quiet, well deserved death. There is no basis in logic or the law for differentiating between eases containing entirely circumstantial evidence and cases containing both direct and circumstantial evidence. I would therefore argue for a uniform standard.
This Court used federal caselaw to adopt a standard of review when dealing with cases involving both direct and circumstantial evidence. That standard was enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), as: “... whether, after viewing 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” (emphasis in original). See Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985). Indeed, this Court routinely uses federal rulings on evidence to resolve state questions on the same subject. See e.g., Freeman v. State, 767 P.2d 1354, 1355-56 (Okl.Cr.1988); Robinson v. State, 743 P.2d 1088, 1090 (Okl.Cr.1987).
The reasons for a different standard in a case containing entirely circumstantial evidence were previously based on the misconception that circumstantial evidence was somehow more suspect or less reliable than direct evidence. However, the United States Supreme Court has long since abandoned that idea, holding that there is no intrinsic difference between the two. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127,137-38, 99 L.Ed. 150 (1954). This Court has also come to the conclusion that one kind of evidence is to be given no more weight than the other at trial. See OUJI-CR 803 and cases cited in comments. It logically follows that the standard of review when dealing with the two types should likewise be the same. One federal court reasoned:
It is true that much of the evidence in this case is circumstantial, and that at one time some courts expressed the view that in criminal cases based on circumstantial evidence a special rule required the district court to grant the motion for acquittal unless the circumstantial evidence excluded every reasonable hypothesis other than that of guilt.1 The Supreme Court however, has said that “[c]ircumstantial evidence ... is intrinsically no different from testimonial evidence” and that “where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.” Holland v. United States (1954), 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166. The same test, therefore, for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial. Indeed, that is the prevailing rule in the federal courts today. See 2 C. Wright, Federal Practice and Procedure, § 467, at 258.
United States v. Warner, 441 F.2d 821, 825 (5th Cir.1971), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). That court then reconciled some older Fifth Circuit eases with the Supreme Court’s clear holding *995in Holland, rephrasing the substantial evidence test to “determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence,” concluding that “whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt.” Id. See also United States v. Henderson, 693 F.2d 1028 (11th Cir.1982), in which the court modified the test, concluding that “[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilty, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” Id. at 1030 (emphasis added). Functionally, that is the same test this Court uses in reviewing a conviction based on both direct and circumstantial evidence.2
Therefore, this Court should abandon its old “reasonable hypothesis” test in favor of a unified Spuehler-type approach to conform with its already established view that one type of evidence is as reliable as the other. There is no logical reason to do otherwise.
ORDER DENYING PETITION FOR REHEARING AND DIRECTING ISSUANCE OF MANDATE
John Kennedy White was tried by jury in the District Court of Atoka County, Case No. CRF-92-126. He was convicted of Traffiek-ing in Illegal Drugs in violation of 63 O.S. 1991, § 2-415, and Unlawful Possession of a Controlled Dangerous Substance without a Tax Stamp in violation of 68 O.S.1991, § 450.4, both after former conviction of a felony. In accordance with the jury’s recommendation, the Honorable Doug Gabbard, II, sentenced Mr. White to Life without Parole on the trafficking count and twenty years imprisonment on the possession charge.
This Court affirmed White’s convictions by published opinion on February 23, 1995. White is now before this Court on a Petition for Rehearing, which is governed by Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1993, Ch. 18, App.1 According to Rule 3.14, a Petition for Rehearing shall not be filed as a matter of course, but only for two reasons:
(1) That some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
(2) That the decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.
White bases his petition for rehearing on a United States Supreme Court decision handed down subsequent to the filing of his brief-in-chief. Department of Revenue of Montana v. Kurth Ranch, — U.S.-, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) examined a Montana drug tax stamp statute and decid*996ed it was penal in nature rather than merely a civil penalty. The Supreme Court decided that Montana’s drug tax statute violated the Fifth Amendment’s prohibition against Double Jeopardy since it allowed the commencement of tax collection proceedings after the taxpayer had already been convicted on the drug offense. The fatal aspect of the Montana drug tax was that it constituted a second punishment following the first punishment of a criminal offense. Id. at-, 114 S.Ct. at 1948.
However, where a defendant is punished for both failing to pay a drug tax and committing a drug offense, all in the same proceeding, no Double Jeopardy problem exists. The Court expressly stated in Kurth Ranch that a drug tax “must be imposed during the first prosecution or not at all.” Id. That is exactly the situation we upheld in White’s direct appeal: he was tried and convicted of both the drug offense and the tax stamp violation in the same proceeding. Kurth Ranch changes neither the reasoning nor the result in our opinion.
The sole proposition White raises in his Petition for Rehearing does not meet the criteria set forth in Rule 3.14, as the decision upon which he relies is not controlling of the issues presented in his brief-in-chief.
IT IS THEREFORE THE ORDER OF THIS COURT that White’s Petition for Rehearing be DENIED. The Clerk of the Court is directed to issue the mandate forthwith.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 29th day of March, 1995.
/s/Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge
/s/Charles S. Chapel CHARLES S. CHAPEL, Vice Presiding Judge
/s/Gary L. Lumpkin GARY L. LUMPKIN, Judge
/s/James F. Lane JAMES F. LANE, 'Judge
/s/Reta M. Strubhar RETA M. STRUBHAR, Judge
. [Footnote in original] See, e.g., Riggs v. United States, 5 Cir.1960, 280 F.2d 949, 955; Cuthbert v. United States, 5 Cir.1960, 278 F.2d 220, 224-225; 2 C. Wright, Federal Practice & Procedure § 467, at 257-58.
. The reason for this is best stated in Jones v. State, 568 P.2d 837, 843-44 (Wyo.1977). In response to an appellant's contention the court should reverse his conviction because it did not exclude every reasonable hypothesis other than that of guilt, the court responded:
An instruction explaining circumstantial evidence is for jury consumption. It does not in anywise change the standard of review in a criminal case by this court which remains as stated.... This court will "view the evidence in a light most favorable to the prosecution and determine questions of law as to whether there is substantial evidence, direct circumstantial, or both, which, with the reasonable inferences that may be drawn therefrom, will sustain the verdict".
If we were to adopt the defendant's view of the evidence, this court would not only be in the position of denying the jury’s right to draw inferences from the facts, but would also be weighing the conflicts in the evidence and considering the credibility of the witnesses. This would be an improper exercise of appellate review and a usurpation of the function and authority of the jury. We decline the defendant’s invitation to do so.
(citations omitted).
. Mr. White tendered a pro se Petition for Rehearing which this Court will not consider. Rule 3.14 expressly states that the petition for rehearing shall be made by the attorney of record. Although White contends in his pro se petition that his counsel of record has withdrawn, he is clearly mistaken, as his counsel has filed the petition for rehearing which we now address.