DISSENTING OPINION ON DENYING LEAVE TO FILE STATE’S MOTION FOR REHEARING
DOUGLAS, Judge.The majority overrules the State’s motion for leave to file motion for rehearing without written opinion. The motion filed by the Honorable Steve Simmons, District Attorney, and his Assistant, William J. Ellis, of El Paso County, is adopted as a dissent by this writer.
I
“In its analysis of the cause at bar, this honorable Court summed up the case *124against Appellant as consisting of three points, and then discussed how the strength of each point had been ‘diminished.’ ‘When the sufficiency of the evidence is challenged, this Court is required to view the evidence in the light most favorable to the verdict.’ Resendez v. State, 495 S.W.2d 934, 935 (Tex.Crim.App.1973); Pogue v. State, 474 S.W.2d 492, 494 (Tex.Crim.App.1971). A discussion of how the evidence favorable to the verdict has been ‘diminished’ is not consistent with this rule. See also Jones v. State, 442 S.W.2d 698 (Tex.Crim.App.1969), cert. den. 397 U.S. 958, 90 S.Ct. 967, 25 L.Ed.2d 143; White v. State, 478 S.W.2d 506 (Tex.Crim.App.1972); Cleaver v. State, 498 S.W.2d 945 (Tex.Crim.App.1973); Provost v. State, 514 S.W.2d 269 (Tex.Crim.App. 1974). The rule in the 5th Circuit is not inconsistent with the rule heretofore followed by this honorable Court:
“ ‘A judgment of conviction, which is attacked on the ground of insufficient evidence, will be sustained on appeal if the evidence taken most favorably for the Government supports the verdict. . The Government is entitled to the benefit of all inferences sustaining the conviction that may be reasonably drawn from the evidence.’ United States v. Davis, 443 F.2d 560 (5th Cir. 1971), cert. den. 404 U.S. 945, 92 S.Ct. 298, 30 L.Ed.2d 260. (Emphasis Supplied).
Rua v. United States, 321 F.2d 140 (5th Cir. 1963), cert. den. 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 738.
“Not only does the above discussed rule obtain in Texas, it obtains in a virile form. In Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974) this honorable Court held:
“ ‘In reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict. In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused.’ (Emphasis supplied).
In view of the evidence as developed, infra, there is evidence showing the guilt of Appellant herein, and this Court’s opinion in the above styled and numbered cause would appear to emasculate the rule in Banks, supra, et al.
II
“Another long-standing and well-settled rule seemingly eroded by this honorable Court’s opinion in the case at bar is the rule that the province of the fact finder, in this case a jury, will not be invaded in retrospect on appeal. The State is led to this conclusion by virtue of this honorable Court’s recitation of Appellant’s exculpatory testimony concerning his meeting Watson and the fact that the airplane was left unlocked at the airport. The jury was not obliged, for example, to believe that the plane was unlocked. If this was the case, there would be no merit in this Court’s assumption that others would have had access to the aircraft.
“In Easley v. State, 478 S.W.2d 539, 540 (Tex.Crim.App.1972), the issue was whether or not the appellant had possessed a narcotic drug. The testimony of an agent inculpated him, while the appellant testified in an exculpatory fashion, denying that he had possessed anything:
“ ‘The jury had before it two opposing versions of the events on the day in question and it chose to accept the testimony of Rangel and reject that of appellant. It is the province of the jury to pass on the credibility of the witnesses and the weight to be given their testimony.’ (Emphasis supplied).
Likewise, in Esquivel v. State, 506 S.W.2d 613, 615 (Tex.Crim.App.1974), this Court have an expanded but not novel version of the holding in Easley, supra:
“ ‘The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. . The jury may believe some witnesses and refuse to believe others and it may accept portions of the testimony of a witness and reject other portions.’
For example the jury could accept Appellant’s testimony that Watson had hired Appellant to fly him to California, but it could *125have rejected the testimony that Watson’s purpose in doing so was so that he could better see the country.
“As in the case at bar, in Hines v. State, 495 S.W.2d 252 (Tex.Crim.App.1973), appellant’s defense was one of mere presence and that he was merely in pursuance of some lawful and innocent design. This Court held at page 255 of Hines, ‘The jury did not choose to believe appellant, and it is the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ The effect of this honorable Court’s holding in the case at bar, on the contrary, is to require the State to disprove Appellant’s testimony. This court has previously held that the fact finder’s ability to believe and disbelieve is not affected by an appellant’s offer of exculpatory evidence. Morris v. State, 411 S.W.2d 730 (Tex.Crim.App.1967). In Banks v. State, supra, appellant’s attorney, during cross-examination, managed to cast doubt on an eye-witness’ identification of appellant, however this Court held at page 595:
“ ‘. . . it is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portion thereof as it sees fit.’
Consequently, we have no way of knowing what portions of the Appellant’s testimony the jury believed and what portions it did not, but it is obvious from its verdict that it disbelieved a large part of it. ‘The conflict in the testimony was resolved by the jury who was the trier of facts, the judge of the credibility of the witnesses and weight to be given the testimony.’ Solis v. State, 492 S.W.2d 561 (Tex.Crim.App.1973). In Rodriguez [Rodriquez] v. State, [544 S.W.2d 382 (Tex.Cr.App.)], No. 50,659, handed down on the same day as the opinion in the case at bar, this honorable Court correctly recognized its appellate function:
“ ‘The issue before this Court is not the truth of Appellant’s testimony; that is for the jury.
“ ‘Whether the events actually happened that way in this case was a question for the jury. .
“ ‘We reiterate that the truth of appellant’s testimony is not at issue here and we express no opinion on who was telling the truth.’
Further in Hernandez v. State, [538 S.W.2d 127 (Tex.Cr.App.)], No. 51,952, the trial court was the fact finder. On the same date as its holding in Rodriguez [Rodriquez], supra, this Court held:
“ ‘The defense testimony offered by the appellant was before the court for its consideration. The Court, as trier of the facts, is the sole judge of the credibility of witnesses and the weight to be given their testimony and may accept or reject all or any part of any witness’ testimony.’
Ill
“Realizing the affirmative link which the State must show between appellant and the contraband, the State will review prior decisions of this honorable Court which have demonstrated the link and then compare them with the facts in the case at bar.
“In Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App.1972):
“ ‘Appellant’s third contention [was] that the evidence [was] insufficient to show that appellant knew that the substance found in the pipe and in the cigarette butts was contraband. We call attention to . the smell emanating from within the automobile which was identified as marihuana by the arresting officers.’
See also Aldridge v. State, 482 S.W.2d 171 (Tex.Crim.App.1972). Interestingly, in neither Ross or Aldridge, supra, contrary to this honorable Court’s opinion in the case at bar, was it required or held that an appellant be shown to know the smell of marihuana, or that the smell of marihuana would be known only to an expert.
“In Buntion v. State, 476 S.W.2d 317 (Tex.Crim.App.1972), where marihuana cigarette butts were found in an automobile being driven by appellant, but in which a *126passenger was also riding, this Court found the requisite affirmative link at page 319:
“ ‘It is undisputed that appellant was driving the ear. Appellant testified she was the owner of the car. We deem the evidence sufficient to support the conviction. The unlawful possession of marihuana need not be exclusive to reflect a violation of the law.’
“In Hernandez, supra, the court found an affirmative link under facts far less connecting in nature than any cited cases as well as the case at bar, and more exculpatory than the instant case: the car in which the marihuana was found did not belong to appellant, the marihuana was not in a part of the car to which appellant had access while it was moving, the car had roaches and ashes in an ashtray on the dash, appellant testified denying all knowledge of the marihuana, and appellant’s brother testified saying the marihuana was his not appellant’s, and that appellant had no knowledge of the marihuana. Although Hernandez involved a revocation of probation, this Court held that the burden to show an affirmative link is the same whether the main proceeding be a revocation or a trial on the merits. In Hernandez, the appellant had pointed out the absence of certain links that have been recognized in the past as sufficient (e. g. no evidence of an odor of marihuana in the car). This honorable Court responded to Appellant’s contention:
“However, the absence of the above facts and circumstances is not evidence of appellant’s innocence to be weighed against evidence tending to connect appellant to the marihuana. The issue is whether there is sufficient evidence linking the appellant to the marihuana to support the reasonable reference that he was knowingly in possession of marihuana.”
The Court noted that with marihuana on the dash, it strained credulity to suggest that the driver (appellant) could not see it — in spite of the fact that there was no showing that appellant was familiar with marihuana so as to recognize it on sight.
“At bare mínimums, the case at bar contains two factors linking Appellant to the marihuana: cigarette butts in the ashtray (Buntion, supra), and the smell of marihuana emanating from within the plane which was his and which he was piloting (Ross and Aldridge, supra). The credulity of the State is strained at the thought that Appellant could not smell 127 pounds of marihuana in the same compartment of his airplane in which he was riding. Further, the evidence is far stronger than Hernandez wherein appellant not only denied knowledge but where another witness, against his own penal interest exonerated appellant. Just as the judge was the trier of facts in Hernandez, so was the jury in the case at bar. Consequently, when the evidence is viewed in the light most favorable to support the verdict and when the fact-finding authority of the jury is left unfettered, the evidence is sufficient to support the verdict.
“The fact that the State did not call the unconvicted accomplice, Watson, was, but ought not to have been, charged against it. Under the facts of the case at bar there could be no legal presumption that the testimony would have been exculpatory as to Appellant. Roberts v. State, 489 S.W.2d 893 (Tex.Crim.App.1972). Likewise, in view of Watson’s 5th Amendment rights, there could be no practical presumption that his testimony would exculpate Appellant. Having proven a prima facie case, Appellee was under no duty to call Watson.
IV
“This honorable Court also held, in the case at bar, that the trial court erred in not giving a requested circumstantial evidence charge on knowing possession. The State’s research has revealed that only when the fact of possession must be shown circumstantially is such a charge required. In all events, the jury was affirmatively charged that it must find, beyond a reasonable doubt, that Appellant’s possession was intentional and knowing.
“When the main fact is proved by direct testimony, as it was in the case at bar, and only the question of a defendant’s intent is *127to be inferred from the circumstances, a charge on circumstantial evidence is not required. Littleton v. State, 419 S.W.2d 355 (Tex.Crim.App.1967); cert. den. 389 U.S. 887, 88 S.Ct. 115, 19 L.Ed.2d 188 (1967); reh. den. 389 U.S. 998, 88 S.Ct. 484, 19 L.Ed.2d 507 (1967). Knowledge is no more nor less a subjective state of mind than intent, and if no circumstantial evidence charge is required as to one, it is difficult to see the basis for requiring it as to the other. This is especially true when it is remembered that the jury was charged that, before it could convict, it must believe that Appellant’s possession was knowing. Must a charge on knowledge now always be given?
“WHEREFORE, premises considered, the State prays that its Motion for Rehearing be granted and the judgment in the above styled and numbered cause affirmed.”
The motion should be granted and the conviction should be affirmed.