HANKINS v. STATE

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for the offense of burglary of a building. Punishment was assessed by the jury at 20 years confinement in the Texas Department of Corrections.

Appellant complains of the trial court's failure to submit to the jury his timely requested charge regarding the law of circumstantial evidence at the guilt-innocence phase of the trial. The sufficiency of the evidence to show appellant's guilt for the burglary of a building is not challenged; however, in light of our disposition of this appeal, a detailed statement of the evidence adduced is necessary.

Michael Moore, an officer assigned to the vice division of the Killeen Police Department, testified that on March 20, 1978, he responded to a call at The 439 Pawn Shop located in the East Lake Mall in Killeen. On arrival at the scene, he discovered the back door to the pawnshop open.1 Moore and his partner entered the store and upon closer inspection discovered a number of empty gun boxes strewn on the floor next to a glass display case.2 A search of the exterior of the building revealed a second possible entry point, an opening through the air conditioning system. Moore testified that there was a rope dangling from the roof to inside the building, and that this was probably the means used to gain access into the building. In addition to the rope, Moore also located a saw, a drill, a chisel and a pair of boots on the roof. The boots, on closer inspection, contained a wallet bearing identification belonging to appellant and a pair of car keys.

Don Morgan, manager of The 439 Pawn Shop, testified that he arrived shortly after being called to the scene by the Killeen Police Department. A review of the store's stock and premises revealed that thirty five new handguns with an invoiced wholesale value of $1,338.71 had been removed from display cabinets in the front of the store. Two of the guns stolen were .22 caliber derringers equipped with over-under barrels and white fake pearl handles, and another was a .357 magnum with a long barrel. They were never recovered. The police were unsuccessful in lifting any fingerprints from the pawnshop.

Allan L. Mason was the third witness called by the State to testify. On the evening in question, Mason was standing outside his apartment complex on Bundrant Street when he noticed in the distance a man in a jacket holding a bag from which he took what appeared to be a .357 magnum. Upon noticing this suspicious person, Mason returned inside and called the Killeen Police Department. When Mason returned from the phone, the individual was gone. On direct examination by the State, Mason could only testify that the individual he saw that evening looked similar to the appellant. Mason was not asked to make an incourt identification.

David Fails testified that on March 20, 1978, appellant was a temporary resident at the Fails home at 1116 Robindale. On the prior evening, appellant did not return to the Fails residence, and was not seen there until sometime between 9:15 a.m. and 9:30 a.m. the next morning. Fails stated that it was then that he confronted appellant about a billfold containing appellant's identification which had been found at the scene of a pawnshop burglary. Appellant claimed no involvement with the burglary, stating that he had lost his billfold several days earlier.

Randall Howard Carter, a friend of appellant, who also resided temporarily with the Fails, testified that on Thursday night, March 17, 1978, he and appellant had been at the Silver Spur Club, and while they were driving away from the club the clutch in appellant's car broke. So, they left the car parked in a parking lot of Mickey's Drive-In Grocery and took a cab to a motel. Carter stated that he and appellant were together through midafternoon on March 19, 1978. At that time, Carter and Fails dropped appellant off at the Silver Spur Club. Carter testified that he did not see appellant again until 8:00 or 8:30 a.m. on March 20, 1978.

It was on that morning that Carter says he had a conversation with appellant in which appellant indicated that he would have $1,200 by the end of the day. According to Carter, appellant then displayed two pistols which he claimed to have obtained from breaking into a pawnshop. According to Carter, appellant said he had about 36 guns in a brown case under the hood of his car. Carter related that shortly after his conversation with appellant, Mrs. Fails returned home and asked appellant to leave. After appellant left, Carter told Mrs. Fails what he had learned from appellant.

On the basis of facts related in that conversation, Carter and Mrs. Fails drove to appellant's car. Carter testified that he opened the hood of the vehicle and observed a brown satchel. Both he and Mrs. Fails returned home, deciding not to contact the police about their discovery. Instead, Carter returned to appellant's car with another friend three hours later. Once again the hood of the car was opened and a brown bag was observed. It was not until that night that Carter went to the Killeen Police Department to report what he claimed appellant had told him and also to report the observation of the brown bag under the hood of appellant's car. After Carter related his story to the police, they informed him that he was also under suspicion in connection with the burglary. At the close of his testimony Carter admitted to several prior convictions.

Charlene Connor, a friend of appellant's, testified that on March 20, 1978, she received a phone call from appellant asking her to cover with regard to his whereabouts earlier that day. According to Connor, appellant offered her $100 to say she and appellant had been together to anyone who inquired of his whereabouts.

Donna Fails verified her husband's testimony that on March 20, 1978, appellant did not spend the night at their house. She, too, encountered appellant the following morning at her home, but at a different time than her husband. During appellant's conversation with Mrs. Fails, he told her that the had lost his billfold at the Silver Spur. Mrs. Fails asked appellant to leave the house, and then she and Carter drove to appellant's car to look for a brown bag. Consistent with Carter's testimony, Mrs. Fails claimed to have observed a brown bag under the hood of appellant's car. On the advice of her husband, she decided not to go to the authorities.

Larry Weber, who was employed by Dixon Paving on March 20, 1978, testified that while working near Mickey's Drive-In Grocery he observed an older model black Ford parked nearby. At some point that morning, Weber saw a man, woman and child arrive in a pickup truck and get out and look under the hood of the Ford. About 45 minutes after they left, a young man arrived. Weber observed him go to the car, open the hood and remove a brown case. The man took the case and walked into a wooded area. When the man returned a little while later, Weber noticed that he no longer had the bag. It was 3 hours later that Weber noticed 2 different men arrive in a pickup truck. They got out and looked under the hood of the Ford, and then they drove off.

Dan Smith, an investigator detective with the City of Harker Heights Police Department, said that a billfold he had lost a couple of days earlier. Appellant related that his employer had learned that appellant's billfold had been found in a building that had been burglarized, and his employer was not sure which police department had recovered it.3 Smith testified that he had not yet learned that appellant was under suspicion for any offense, so he let him leave when the billfold could not be located.

Captain Dennis Lewis, commander of the criminal investigation division of the Killeen Police Department, testified that he was responsible for the fingerprint investigation at the pawnshop. He indicated that they were unable to retrieve any readable latent prints from either the scene or the equipment left behind. A thorough metal detector search of the general area was not productive. After appellant was arrested and while he was being checked into jail, Lewis observed what he believed to be numerous grass stains on the bottoms of appellant's socks. Lewis ordered the socks confiscated and tested to confirm the nature of the stains.4

An employee of Mickey's Drive-In Grocery, Otis Hopper, stated that earlier in the week an individual had asked if he could leave his car parked on the grocery's premises. The individual explained that the clutch had gone out on the car, and that he would have the car towed later that day. Hopper testified, however, that as of 7:00 a.m. the morning of March 20, 1978, the man had not yet returned for his car.

Appellant took the stand at the guilt-innocence phase of the trial and maintained that on Thursday his car had broken down and that he had gotten permission to leave it on Mickey's parking lot. On Sunday evening, he stayed at the Silver Spur until it closed around 2:00 a.m. Upon leaving the club, he encountered an individual, whom he knew only as "Joe," and they smoked a "joint" together. Joe asked appellant to hold, or appellant was in the process of buying,5 a "package" of five kilos of marihuana; he placed the brown case under the hood of his disabled car. Appellant then left and went to a mobile home park where he believed a friend of his lived. He located what he thought was his friend's car and fell asleep inside it. The next morning appellant was awakened by two strangers, who claimed to be the owners of the car. They informed appellant that his friend lived in a different mobile home and was out of town for the weekend. The men agreed to give appellant a ride, and dropped him off at a Denny's Restaurant. It was when appellant got ready to pay for his meal at the restaurant that he realized his billfold was missing. At the close of appellant's testimony, both sides rested.

Appellant timely made his request of the trial court to include an instruction on circumstantial evidence. Such request was rejected. Then, appellant timely objected to the trial court's failure to include the circumstantial evidence charge on that aspect of law as is required by Article 36.15, V.A. C.C.P. The trial court overruled appellant's objection.

Appellant now contends that the trial court committed reversible error in failing to submit a circumstantial evidence charge to the jury because there was no direct evidence from any source that appellant burglarized The 429 Pawn Shop, as alleged in the State's indictment. We agree.

Generally, proof that a defendant has admitted or confessed to having burglarized a building is direct and not circumstantial evidence of the main inculpatory fact and a charge on circumstantial evidence is not required. Richardson v. State, 600 S.W.2d 818 (Tex.Cr.App.1980); Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); Corbett v. State, 493 S.W.2d 940 (Tex.Cr. App.1973); Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970). The admission or confession must unequivocally admit the commission of the very same act charged in order to constitute direct evidence. Only in this instance is the trial court relieved of the necessity of instructing the jury on the law of circumstantial evidence where the State is relying on the admission to supply proof of the main inculpatory fact. Ridyolph, supra; Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1973); Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948).

Even if an accused admits to the commission of a crime "it must be shown by the evidence and the confession of the accused that the crime admitted is the same crime for which the defendant is being tried if the circumstantial evidence charge is not given. If it is only by a process of inference from the admission that it can be determined that the accused committed the offense, the court should give the circumstantial evidence charge."6 Ridyolph, supra. See also Casey v. State, 523 S.W.2d 658 (Tex.Cr.App. 1975); Hielscher, supra; and Martinez, supra.

While it is clear in the instant case that appellant's admission is direct evidence that he participated in the commission of an offense, it is equally clear that it does not constitute direct evidence that he was guilty of the burglary of The 439 Pawn Shop. See Casey, supra.

Our next inquiry, then, is to consider whether the evidence in the case falls within a narrow exception to the requirement that a circumstantial evidence charge is mandatory if the main fact to be proved is established only by inferences from other facts, as announced in Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341 (1959).7 The Court held in Chapin that when the facts established, though they be circumstances, stand in such relationship one to another that the only logical conclusion to be drawn therefrom is that the accused inflicted the fatal injury, then failure to charge on the law of circumstantial evidence does not constitute error.8 The rationale of such a rule is obvious; what is less apparent is determining the appropriate application thereof, for circumstances though sufficient to support an inferred jury finding of guilt may nevertheless fall short of excluding every other reasonable hypothesis.9 Indeed, it is in such a case that the accused's right to the submission of a circumstantial evidence instruction is crucial. See Frazier v. State, 576 S.W.2d 617 (Tex.Cr.App.1978); Hielscher, supra.

In perpetuating the correct application of these principles of law, "each case must in a measure be tested by its own facts," Patterson v. State, 416 S.W.2d 816, 819 (Tex.Cr. App.1967), considering the admission in light of all the other evidence. Ales v. State, 587 S.W.2d 686 (Tex.Cr.App.1979); Campbell v. State, 545 S.W.2d 791 (Tex.Cr. App.1977); Ridyolph, supra; Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973).

In the instant case, appellant told another that he had burglarized a pawnshop, possessed thirty six pistols and that he had made arrangements to get rid of the pistols by selling them for "around $1200.00." Other evidence disclosed that The 439 Pawn Shop was burglarized during the early morning hours of March 20, 1978. Entry into the building was made through a hole in the roof, while exit was through the back door of the pawnshop. At the entry site, officers located a pair of boots, a saw, a drill, and a chisel. A number of guns had been removed from glass display cases in the front of the building. The stolen handguns were not found.

Many of the details surrounding the actual burglary of The 439 Pawn Shop are found to be missing from appellant's declaration. Appellant's statement makes no mention of when he committed the offense, nor is a specific time mentioned. Furthermore, appellant does not give the name, location or description of the pawnshop he burglarized. And, finally, the record does not indicate one way or the other whether any other pawnshop in the area had recently lost handguns to a burglar.

No fingerprint evidence linked appellant to the scene of the burglary of The 439 Pawn Shop. Compare Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974). Appellant was neither connected by any witness to the scene of the burglary,10 nor to flight therefrom or any other attempt to cover his participation in the offense.11 The State failed to establish any direct link between appellant and any fruit of the crime12 or that any instrumentality of the crime was ultimately traced to appellant.13

On appeal the State argues that appellant's admissions were sufficient to show appellant's burglary of The 439 Pawn Shop. The State's brief states in relevant part:

While apparently not intended as a confession of error, we are constrained to agree with this statement. See Hielscher, supra. The jury was indeed relegated in resolving the issue of appellant's guilt—that the burglary in which he admitted his participation was in fact the burglary of The 439 Pawn Shop—to a process of inference. We are, therefore, unable to reach the conclusion that the State's case was not one of circumstantial evidence, Martinez, supra, and such degree of doubt clearly dictated the submission of appellant's requested charge. Frazier, supra.

We hold that "where guilt must be inferred from circumstances in evidence, the trial court has the duty to give a charge regarding the law of circumstantial evidence, and it is not relieved of such duty by virtue of the fact that circumstances may strongly point to the accused." Hielscher, supra, at 308. In refusing to submit appellant's requested charge herein, the trial court committed reversible error.14

For the error in this regard, the judgment of conviction is reversed and this cause is remanded.

ODOM, J., dissents.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

ODOM, Judge.

On original submission of this appeal from a conviction for burglary of a building, a panel of this Court held reversal was required for failure to submit appellant's requested charge on circumstantial evidence. On rehearing, we decline to follow the original disposition of the appeal. The arguments in favor of abolishing the requirement of a circumstantial evidence charge are meritorious and we now hold that such a charge is improper. In so holding, we join the growing trend of state courts on this issue.

As noted by Judge Dally in his dissenting opinion in Richardson v. State, 600 S.W.2d 818 (Tex.Cr.App.1980), most federal courts refuse to charge on circumstantial evidence, and the United States Supreme Court has held that a charge similar to the one given in this state is unnecessary. The federal rule was announced in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) in the following language:

See also, United States v. Clements, 588 F.2d 1030 (5th Cir.1979); United States v. Stokes, 471 F.2d 1318 (5th Cir.1973); 2 C. Wright, Federal Practice and Procedure, Sec. 493, p. 319.

The following states have followed Holland in abolishing the requirement of a charge where the jury is properly instructed on the reasonable doubt standard: Alaska, Allen v. State, 420 P.2d 465 (1966); Arizona, State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970); Arkansas, Murray v. State, 249 Ark. 887, 462 S.W.2d 438 (1971); (But see concurring opinion in Simmons v. State, 255 Ark. 82, 498 S.W.2d 870); Colorado, People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1970); Delaware, Henry v. State, 298 A.2d 327 (1972); Hawaii, State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Iowa, State v. O'Connell, 275 N.W.2d 197 (1979); Kansas, State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974); Maine, State v. Jackson, 331 A.2d 361 (1975); Massachusetts, Com. v. Kinney, ___ Mass.App. ___, 423 N.E.2d 1017 (1981); Minnesota, State v. Turnipseed, 297 N.W.2d 308 (1980); Nevada, Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970); New Jersey, State v. Ray, 43 N.J. 19, 202 A.2d 425 (1964); New Mexico, State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977); Oklahoma, Johnson v. State, 632 P.2d 1231 (Okl.Cr.1981); Oregon, State v. Draves, 18 Or.App. 248, 524 P.2d 1225 (1974); Rhode Island, State v. Roddy, 401 A.2d 23 (1979); Utah, State v. Eagle, 611 P.2d 1211 (1980); Vermont, State v. Derouchie, 140 Vt. 437, 440 A.2d 146 (1981); Washington, State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975); Wyoming, Blakely v. State, 542 P.2d 857 (1975). See also, New York, People v. Gonzalez, 54 N.Y.2d 729, 442 N.Y.S.2d 980, 426 N.E.2d 474 (1981) (concurring opinion with three judges joining, citing Holland for proposition that adequate instruction on reasonable doubt dispenses with need for circumstantial evidence charge.); Note, the Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine, 55 Tex.L. Rev. 1255 (1977).

The basis for abolishing the requirement of an instruction is that "[c]ircumstantial evidence is often as strong and conclusive upon the understanding as direct and positive evidence." Law v. State, 33 Tex. 37 (1870). State courts in general have recognized that circumstantial evidence may have equal if not greater weight than direct evidence. 1 Wharton's Criminal Evidence Sec. 6, p. 5. See also Corbett v. People, 153 Colo. 457, 387 P.2d 409, cert. denied 377 U.S. 939, 84 S.Ct. 1346, 12 L.Ed.2d 197; State v. Schonrog, 2 Conn.Cir. 239, 197 A.2d 546; State v. O'Connell, 275 N.W.2d 197; State v. Wood, 190 Kan. 778, 378 P.2d 536; People v. Eckert, 2 N.Y.2d 126, 157 N.Y.S.2d 551, 138 N.E.2d 794. Indeed, the rationale of the decision in Holland focused on this very point:

See Holland, 348 U.S. at 140, 75 S.Ct. at 137. To require the charge on circumstantial evidence disregards this principle by erroneously suggesting "that proof of circumstantial evidence is subject to a more rigorous standard than is proof by direct testimonial evidence." State v. LeClair, 425 A.2d 182 (Maine 1981). This rationale was expressed in several other state and federal court decisions where previous holdings in support of the circumstantial evidence charge were overruled.

In abolishing the charge, the Arizona Supreme Court noted in State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970), that requiring such a charge was "a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial," citing United States v. Becker, 62 F.2d 1007 (2nd Cir.1933). See also, Ex parte Jefferies, 7 Okl.Cr. 544, 124 P. 924 (1912); State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975). This principle was most persuasively expressed by Professor Wigmore:

1 Wigmore on Evidence, Sec. 26, p. 401 (3d ed. 1940). See also Galvan v. State, 598 S.W.2d 624 (Tex.Cr.App.1979) (J. Douglas, dissenting opinion).

Our holding today finds further support in the fact that there is but one standard of proof for criminal convictions and where the jury is properly instructed on that standard, a charge on circumstantial evidence is valueless and invites confusion. See Holland, supra; United States v. Becker, 62 F.2d 1007 (2d Cir.1933); State v. Costa, 228 Kan. 308, 613 P.2d 1359 (Kan. 1980); 9 Wigmore, Evidence Sec. 2497, at 318-20 (3d ed. 1940). The constitutionally required burden of proof of criminal cases "is that the State establish all elements of the offense beyond a reasonable doubt." Crocker v. State, 573 S.W.2d 190 (Tex.Cr. App.1978) (Opinion on Rehearing). See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). By following the federal rule and the modern trend in state courts, this Court is recognizing that for purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative. Rather than aiding jurors in applying the reasonable doubt standard, an additional charge on circumstantial evidence focusing on the "reasonable hypothesis" theory serves only to distract jurors from examining the proper standard of proof as the primary focus of their deliberations. Here, the jury was properly instructed on the state's burden of proof, the presumption of innocence and the requirement that an acquittal be entered if there exists a reasonable doubt as to appellant's guilt.1

The rule should be that circumstantial evidence alone may suffice only if the inferences arising therefrom prove the fact in question beyond a reasonable doubt. That is, the jury should consider the totality of the direct or circumstantial evidence and the reasonable inferences which may be drawn therefrom, in determining whether it was sufficient to establish guilt beyond a reasonable doubt. See, e.g. Comm. v. Cooper, 270 Pa.Super. 365, 411 A.2d 762 (Pa. 1979); Comm. v. Sullivan, 472 Pa. 129, 371 A.2d 468 (Pa.1977); Comm. v. Suggs, 289 Pa.Super. 44, 432 A.2d 1042 (Pa.1981).2 A charge which requires that the circumstances "... must exclude, to a moral certainty, every other reasonable hypothesis except the defendant's guilt ..." is a confusing and improper charge where the jury is properly instructed on the reasonable doubt standard of proof. The trial court properly refused to instruct the jury on the "reasonable hypothesis" theory. Thus, the State's motion for rehearing is granted and appellant's ground of error on this issue is overruled.

It now becomes necessary to address the remaining ground of error. Appellant attacks the admission of prior convictions during the guilt-innocence phase of the trial. It is contended that the procedure by which those convictions were obtained in Virginia were in violation of Texas law and that because there was no evidence before the court regarding Virginia law, it is presumed to be the same as Texas law. Appellant is attempting to collaterally attack the prior out-of-state convictions because he was fifteen at the time of commission and conviction and the record contains no certification from Juvenile Court to Adult Felony Court. He argues the convictions to be void, drawing an analogy to convictions entered where a defendant is without the aid of counsel. Appellant's argument is without merit. In this collateral attack, as with a habeas corpus proceeding, it is his burden to demonstrate that the convictions are void by showing that the procedure was improper in Virginia. In Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977), it was noted:

There being no evidence in support of appellant's contention, no reversible error is presented.

The State's motion for rehearing is granted; the judgment of reversal is set aside; and, the judgment is affirmed.

MILLER, Judge, concurring and dissenting.

Today the majority dispenses with the necessity of instructing the jury on the law of circumstantial evidence, a Texas legal tradition over a hundred years old, and yet continues the prohibition against instructing the jury on a definition of reasonable doubt, a Texas legal tradition over a hundred years old. The logic for the latter is cursorily explained in a footnote purporting to distinguish the Holland decision. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). The majority concludes in that footnote that Holland followed a local practice of giving an elaborate definition of reasonable doubt, a conclusion apparently drawn from an imaginative interpretation of footnote two in State v. Lasley, 583 S.W.2d 511 (Mo.1979). As will be pointed out below, this conclusion is not supported by legal research. The majority further ignores the wording in Holland, "But the better rule is 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, supra, 348 U.S. at 139-140, 75 S.Ct. at 137 (emphasis supplied), and states that the fact that Texas does not define reasonable doubt is insignificant. While I do agree that the circumstantial evidence charge is "confusing and improper"1 and should be abolished, I don't agree with the majority's implied assumption that a jury is not confused by the naked and undefined term "reasonable doubt." In other words, the majority does not go far enough to clear up the confusion of which they complain.

We seem today to apply a Band-Aid approach to the ultimate issue before us; that is, the issue of what do we tell a jury when they ask, "How convinced must we be?" I submit that we should answer the question itself in such a way that a jury will be informed in both the simplest and most complete manner possible, given the inherent limits of the English language.

Presiding Judge Onion's dissent cites a long list of Texas cases that stand for the proposition that reasonable doubt should not be defined in criminal cases. A minority of state jurisdictions agree.2 But the United States Supreme Court, in Holland, supra, seems to, at the very least, sanction as correct a definition which is now contained in Devitt and Blackmar, Federal Jury Practice and Instructions, Section 11.14 (3d Ed. 1977), previously Section 11.01 (2d Ed. 1970). This definition can be substantially worded as the kind of doubt that would make a reasonable person hesitate to act in the conduct of their more serious and important personal affairs. This concept of reasonable doubt as a jury charge has been either sanctioned or mandated in every federal courtroom in every city in forty-seven of our fifty states.3 Perhaps the United States Court of Appeals for the Tenth Circuit (from which Holland, supra, arose) said it best in United States v. Leaphart, 513 F.2d 747 (10th Cir.1975):

Leaphart, supra, at 750.4

In Flores v. State, 487 S.W.2d 122, 126 (Tex.Cr.App.1972), this court reiterated the proposition that "this court is not bound by decisions of lower federal courts." Not bound, to be sure, but how can we be so obstinant as to be not occasionally guided?

The majority's statement that "we join the growing trend of state courts" is misleading. As stated by the Supreme Court of Missouri, in Lasley v. State, 583 S.W.2d 511 (1979), cited in footnote 2 by the majority:

In fact, by abandoning the circumstantial evidence charge and further declining to define reasonable doubt for a jury, we today join a very small minority of states who likewise define neither concept. We also join the Seventh Circuit, which stands alone in the face of the other ten federal circuit courts.

It is further noted that no trend to abolish the practice of defining reasonable doubt to juries is occurring, since in the last ten years not a single state which defines reasonable doubt to juries has abolished the practice.5 Why then are we joining the small minority of jurisdictions that neither charge the jury on circumstantial evidence nor define reasonable doubt to them?

Returning to the ultimate issue before us, which is what do we tell a jury when they ask, "How convinced must we be?", I submit that in both direct and circumstantial evidence cases, when requested by either party or on the court's own motion, we should require a charge on the definition of reasonable doubt in substantial compliance (see examples in footnote three) with the "hesitate to act" standard.6

ONION, Presiding Judge, dissenting.

Lady Macbeth:

Why did you bring these daggers from the place?

They must lie there: go carry them, and smear

The sleepy grooms with blood.

Macbeth:

I'll go no more ....

Lady Macbeth:

Give me the daggers ...

I'll gild the faces of the grooms withal;

For it must seem their guilt.

Shakespeare, Macbeth, Act 2, scene 2.

On original submission a panel of this court reversed this cause for the refusal of the trial court to give a charge on the law of circumstantial evidence. One judge dissented without written opinion. The district attorney, who prosecuted the cause, asked in his motion for leave to file a motion for rehearing only for re-consideration of his earlier argument that such a charge was not required by the evidence in this case. The State Prosecuting Attorney, inter alia, asks this court to "wipe away" the charge from our jurisprudence. This request has recently been rejected by this court. Richardson v. State, 600 S.W.2d 818 (Tex.Cr.App.1980); Galvan v. State, 598 S.W.2d 624 (Tex.Cr.App.1979).

An examination shows the panel opinion in the instant case was in accordance with precedents prevailing for well over a century. Nevertheless, the majority seizes upon this case as a vehicle to abolish the requirement of a cautionary jury on the law of circumstantial evidence for the stated reasons that (1) it is a currently popular thing to do, and (2) the giving of the long approved circumstantial evidence charge is now somehow inherently confusing even when considered with a nondefinitional charge on reasonable doubt.

It is well settled that the distinction between the circumstantial and direct evidence and the Texas practice be first explored.

In Wharton's Criminal Evidence, 13th ed., Vol. I, § 6, p. 4, it is written:

In Crawford v. State, 502 S.W.2d 768, 769 (Tex.Cr.App.1973), it was written:

In Brown v. State, 126 Tex.Cr.R. 449, 453, 72 S.W.2d 269, 271 (1934), this court stated: "[C]ircumstantial evidence is direct evidence as to the facts deposed to but indirect as to the factum probandum." See also Ramos v. State, 478 S.W.2d 102, 105 (Tex. Cr.App.1972).

In State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43 (1948), the Missouri Supreme Court wrote that it had defined direct evidence as "`evidence which if believed proves the existence of the fact in issue without inference or presumption, while circumstantial evidence is evidence, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.'"

In Note: Gaffney, The Circumstantial Evidence Charge in Texas Criminal Cases; A Retrograde Doctrine, Texas Law Review, Vol. 55, 1255, 1262, it is written:

While many courts and writers have agreed that circumstantial and direct evidence have equivalent probative value,1 it has been said the four basic reasons for the distrust of circumstantial evidence are: (1) circumstantial evidence is inherently less accurate in proving a fact; (2) circumstantial evidence has led to gross injustices in the past; (3) people have a psychological propensity to weave theories from circumstantial evidence and then to defend their theories because of vanity or pride; and (4) unpopular or grizzly criminal cases often lead juries to draw rash inferences in order to establish guilt. A fifth possible reason is the general public distrust of convictions by circumstances of possibly innocent individuals. See Note: Gaffney, The Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine, Texas Law Review, Vol. 55, 1255, 1256-57.

Apparently following Lord Hale's lead,2 Chief Justice Shaw of Massachusetts in Commonwealth v. Webster, 59 Mass. (5 Cush) 295 (1850), adopted for the court the requirement of a cautionary jury instruction on the law of circumstantial evidence, which soon became known as the "Webster Charge" and its use spread throughout the mid-nineteenth century United States.

Webster adopted two rules. The first rule related to the sufficiency of the evidence to sustain a conviction based on circumstantial evidence. The second rule logically followed the first for the jury was entitled to be informed of the law applicable to the case.3 The second rule of Webster required that the jury should be specifically instructed as to the first. In 1855 the Texas Supreme Court, which then had criminal jurisdiction, in Henderson v. State, 14 Tex. 503, 514, adopted the first rule of Webster which expressed the legal formula for testing the sufficiency of circumstantial evidence which is still the test today. In Henderson the court quoted with approval the test from Webster,4 which was and is the basis for the cautionary jury instruction on the law of circumstantial evidence. The necessity of such charge was not involved in Henderson and it was not there discussed. Having established the test for determining the sufficiency of circumstantial evidence to sustain a conviction, the court made clear in cases that followed that the jury should be so charged on the subject where applicable.

In Burrell v. State, 18 Tex. 713 (1857), the court reversed as to the co-defendant Burns whose case rested wholly upon circumstantial evidence because the loosely worded cautionary charge on circumstantial evidence given by the court might have given the jury the confused impression that direct evidence existed. The Burrell court did hold the trial court did not err in refusing the requested charges on circumstantial evidence because they were not in proper form. The court made clear, however, that where the case rested wholly on circumstantial evidence the defendant was entitled "to have the law applicable to it given in charge to the jury."

In Brown v. State, 23 Tex. 195 (1859), the Supreme Court held that the defendant's requested charges on circumstantial evidence were taken from the commentaries of elementary authors and would have constituted a comment on the weight of evidence if given. There was no error in the court refusing to give such requested charges.

Following the effect of the earlier cases, the Court of Appeals in Harrison v. State, 6 Tex.App. 42 (1879), held that the trial court reversibly erred in refusing the requested charges on circumstantial evidence.

In the same year the Court of Appeals in Hunt v. State, 7 Tex.App. 212 (1879), reversed the case for the failure of the trial court to charge on the law of circumstantial evidence. In pertinent part the court wrote at pp. 235-236:

"In prosecutions for ordinary felonies, juries are required to be instructed as to the law of reasonable doubt, even when the evidence is of a positive character and can lead to but one legitimate conclusion. It is much more essential, in a prosecution in which nothing is proved by positive testimony save the corpus delicti, that the jury be further instructed as to the conviction which must impress itself upon their minds, drawn by inference from the circumstances in evidence, before they can say that, beyond a reasonable doubt, the prisoner before them perpetrated the act. And it is believed that the adjudged cases in our State furnish no instance of a conviction for a grave felony upon circumstantial testimony alone, unless the charge of the court plainly directed the jury as to the principles of law which should govern them in reaching their conclusion; and we have already held it error to refuse a charge of this character when asked in a proper case. Harrison v. The State, 6 Texas Ct.App. 42." (Emphasis supplied.)

After discussing the cases of Burrell and Brown, supra, as well as Cave v. State, 41 Tex. 182 (1874), and Chester v. State, 1 Tex.App. 702 (1877), the Hunt court continued at pp. 237-238:

Hunt was immediately followed by such cases as Smith v. State, 7 Tex.App. 382 (1879); Heath v. State, 7 Tex.App. 464 (1879); Struckman v. State, 7 Tex.App. 581 (1880); Wallace v. State, 9 Tex.App. 299 (1880); and Early v. State, 9 Tex.App. 476 (1880). In Barr v. State, 10 Tex.App. 507 (1881), the conviction was reversed because the charge on circumstantial evidence was defective and insufficient. There the court wrote, referring the earlier case of Henderson:

The goal in requiring a cautionary instruction on the law of circumstantial evidence was to protect the criminally accused from jury conjecture and speculation.5

The rules discussed above regarding the test for the determination of the sufficiency of the evidence to sustain a conviction based on circumstantial evidence and the necessity of a charge on circumstantial evidence where required have been constantly applied until today. The cases supporting these rules are legion. These rules have prevailed for over 127 years in this state as the Texas Supreme Court, the original Court of Appeals and the Court of Criminal Appeals have been courts of last resort in criminal matters. The practice under these rules have passed the muster of many appellate judges over the years.

Under this practice, the use of the charge is required only when the prosecution's case rests entirely, totally or wholly upon circumstantial evidence or relies on circumstantial evidence to prove the "main facts" of the alleged crime. Ransonette v. State, 550 S.W.2d 36, 43 (Tex.Cr.App.1977), and cases therein cited; Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977).

In a Texas criminal case, the judge must charge the jury on the law of circumstantial evidence if the defendant timely objects or timely requests a charge thereon. See Ellis v. State, 551 S.W.2d 407 (Tex.Cr.App.1977). Compare Mills v. State, 508 S.W.2d 823 (Tex. Cr.App.1974). Failure of the trial judge to so charge where the defendant is entitled to such charge provides a basis for reversal. See, e.g., Ellis v. State, 551 S.W.2d 407 (Tex.Cr.App.1977); Moore v. State, 531 S.W.2d 140 (Tex.Cr.App.1976); Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1973).

In Texas the cautionary jury instruction on circumstantial evidence normally takes the following form:

Normally the above charge is given with instructions on presumption of innocence, burden of proof, and reasonable doubt. See and cf. McClung, Jury Charges for Texas Criminal Practice, pp. 242-243. This charge usually tracks in part V.T.C.A., Penal Code, § 2.01 (1974), and Article 38.03, V.A.C.C.P. [as amended (Acts 1981, 67th Leg., p. 2247, ch. 539)]. These statutes are now identical and read:

The term "reasonable doubt" is not normally defined in a Texas criminal case. A host of cases hold that it should not be defined. See, e.g., Massey v. State, 1 Tex. App. 563, 570 (Ct. of Appeals 1877); Fury v. State, 8 Tex.App. 471 (1880); McPhail v. State, 9 Tex.App. 164 (1880); Cohea v. State, 9 Tex.App. 173 (1880); Schultz v. State, 20 Tex.App. 315 (1886); Johnson v. State, 27 Tex.App. 163, 11 S.W. 106 (1889); Lenert v. State, 63 S.W. 563 (Tex.Cr.App.1901); Holmes v. State, 68 Tex.Cr.R. 17, 150 S.W. 926 (Tex.Cr.App. 1912); Sanchez v. State, 69 Tex.Cr.R. 1134, 153 S.W. 1133 (Tex.Cr.App.1913); Marshall v. State, 76 Tex.Cr.R. 386, 175 S.W. 154 (Tex.Cr.App.1915); Bennett v. State, 91 Tex.Cr.R. 422, 239 S.W. 951 (Tex.Cr.App. 1922); Sagu v. State, 94 Tex.Cr.R. 14, 248 S.W. 390 (Tex.Cr.App.1923); Gallegos v. State, 152 Tex.Cr.R. 508, 215 S.W.2d 344 (Tex.Cr.App.1949); Pierce v. State, 159 Tex. Cr.R. 504, 265 S.W.2d 601 (Tex.Cr.App. 1954); Pigg v. State, 162 Tex.Cr.R. 521, 287 S.W.2d 673 (Tex.Cr.App.1956). Cf. Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973). Thus in Texas only a nondefinitional charge on "reasonable doubt" is normally given in a criminal case.

And early on it was held that the omission to charge on the law of circumstantial evidence is not cured by the ordinary charge on reasonable doubt. Hunt v. State, 7 Tex.App. 212, 235-236 (1879); Wallace v. State, 7 Tex.App. 570, 574 (1880); Struckman v. State, 7 Tex.App. 581, 582 (1880).

Under this practice also, after a conviction, every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Earnhart v. State, 575 S.W.2d 551, 554 (Tex.Cr.App. 1979); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App. 1973). A conviction on circumstantial evidence, however, cannot be sustained if the circumstances proved do not exclude every other reasonable hypothesis except that of the guilt of the accused and proof amounting to only strong suspicion or mere probability is insufficient. Flores v. State, 489 S.W.2d 901 (Tex.Cr.App.1973); Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1972); Culmore v. State, 447 S.W.2d 915 (Tex.Cr. App.1969); Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745 (Tex.Cr.App.1956).6

With this background, a review of the majority's action is in order.

Professing admiration for and embracing the 28-year-old Holland, the members of the majority display by their words they do not understand the object of their affection. They never even explain why this court has never before been lured by Holland's charms.

Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), involved a federal prosecution for income tax evasion. There the Supreme Court wrote:

It is obvious that the holding in Holland was not of federal constitutional dimension and was not binding in any way on the states, which is evidenced by the fact that Texas has for 28 years chosen not to follow such federal holding.

The Holland holding made clear that an additional cautionary charge on the law of circumstantial law (that it must be such as to exclude every reasonable hypothesis other than that of guilt) need not be given "where the jury is properly instructed on the standards for reasonable doubt." The omission of the former is permissible only where the latter is properly given.

In Holland, itself, as earlier observed, the trial court defined "reasonable doubt" as the kind of doubt on which a juror would be willing to act. The Supreme Court did not approve this standard but thought the term should have been defined as the kind of doubt that would make a person hesitate to act. Nevertheless, the Court felt the instructions taken as a whole correctly conveyed the concept of reasonable doubt to the jury. Thus, the court found the standard for reasonable doubt satisfactory under the circumstances.

The presumption underlying the Holland doctrine is that an adequate instruction on the standard for reasonable doubt fulfills the function of the cautionary instruction on the law of circumstantial evidence and results in possibly less jury confusion in evaluating direct and circumstantial evidence. The essence of the Holland doctrine, of course, is that the probative value of direct and circumstantial evidence is not to be distinguished.

In Law and Water Law Review, Vol. XI, pp. 623-632, Note [Evidence—Abrogating The Cautionary Instruction In Criminal Prosecutions, Relying Substantially On Circumstantial Evidence, Blakely v. State, 542 P.2d 857 (Wyo.1975) 1976], it was written:

There are four instructions to be kept in mind with any discussion of the Holland doctrine. They are: (1) the presumption of innocence and burden of proof charge; (2) the reasonable doubt charge; (3) cautionary charge regarding circumstantial evidence; and (4) the Holland instruction discussed above (footnote # 7).

In Land and Water Law Review, supra, at pp. 628-629, it was also stated:

It is interesting to examine some of the state cases cited by the majority as following Holland in abolishing the necessity for a charge on circumstantial evidence "where the jury is properly instructed on the reasonable standard."

In State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (Kan.S.Ct.1974), proof of the defendant's guilt was based almost entirely on circumstantial or indirect evidence. On appeal the defendant complained the trial court refused to give the "reasonable hypothesis" charge on circumstantial evidence. In rejecting the contention, the court noted the charge which was given on presumption of innocence, burden of proof and reasonable doubt as follows:

The Kansas Supreme Court in Wilkins in speaking of the charge said:

In State v. Draves, 18 Or.App. 248, 524 P.2d 1225 (Or.App.1974), the defendant complained of the trial court's failure to give a circumstantial evidence charge using the "any theory of innocence" language. The appellate court rejected the complaint because (1) there was direct evidence and a circumstantial charge was not necessary, and (2) because of the charge on reasonable doubt, etc. The trial court gave the Holland inspired type of instruction8 and in addition gave a charge on the presumption of innocence, burden of proof, and on reasonable doubt as follows:

It is observed that both in Wilkins and Draves the trial court gave full definitional charges on reasonable doubt and, in addition, Draves gave the so-called Holland instruction.

In several other state cases cited by the majority the reasonable doubt charges were not quoted in the opinions but it was indicated that the instructions gave a proper charge on the reasonable doubt standard.

In Commonwealth v. Kinney, ___ Mass. App. ___, 423 N.E.2d 1017 (Mass.App.1981), the court said there was no error in failing to give the circumstantial evidence charge "where the court's charge on reasonable doubt could not be faulted and where court further charged on matter of inferences...." State v. Turnipseed, 297 N.W.2d 308 (Minn.1980), held that where the jury was properly instructed on the standards of reasonable doubt and instructions on circumstantial evidence was otherwise adequate, omission of phrase "all circumstances must be proved consistent with that conclusion and inconsistent with any other rational conclusion" was not error. In Vincze v. State, 86 Nev. 546, 472 P.2d 936 (Nev.1970), it was held that where the jury was properly instructed on the standards of reasonable doubt there was no error in refusing to give charge on circumstantial evidence. See also State v. Roddy, 401 A.2d 23 (R.I.1979). Allen v. State, 420 P.2d 465 (Alaska 1966); State v. Eagle, 611 P.2d 1211 (Utah 1980).

In State v. Ray, 43 N.J. 19, 202 A.2d 425 (N.J.1964), the trial court gave a charge on circumstantial evidence but it did not include a statement that the evidence must exclude every reasonable hypothesis of innocence. The court observed a proper charge on reasonable doubt was given and a Holland instruction that the test in weighing circumstantial and direct evidence is the same was also given. The appellate court found no error in the charge for failure to include the requested statement on circumstantial evidence.

It does not appear that in any of the cases mentioned above that a nondefinitional reasonable doubt instruction was used or considered as giving a proper legal standard on reasonable doubt.

In only Johnson v. State, 632 P.2d 1231 (Okl.Cr.App.1981), and Blakely v. State, 542 P.2d 857 (Wyo.1975), which followed Holland and were cited by the majority does it appear that a nondefinitional reasonable doubt instruction was used or approved.9 Neither court came to grips with the question of how in eliminating a cautionary instruction on circumstantial evidence and utilizing only a nondefinitional reasonable doubt instruction the accused is protected from jury speculation. The Blakely opinion is roundly criticized in Land and Water Law Review, Vol. XI, p. 623, supra, on this score.

As has been seen, one practice under the Holland doctrine allows a full definitional explanation of the reasonable doubt standard. When abrogating the cautionary instruction on circumstantial evidence, most federal and state courts have been very careful to see that the reasonable doubt standard is fully developed within the context of the court's jury charge so as to afford protection of the accused from possible jury conjecture and speculation. This is true because the reasonable doubt instruction must under the practice now serve to fulfill the function of the cautionary instruction on circumstantial evidence.

Another approach is that adopted by California. California Jury Instructions—Criminal, §§ 2.00-2.01 (1970). This approach is simply to hold that the Holland rationale as to the equality of direct and circumstantial evidence in terms of probative value is not inconsistent with giving the cautionary instruction on circumstantial evidence. Four jury instructions are given under this approach: the burden of proof instruction, the nondefinitional reasonable doubt instruction, the cautionary instruction on circumstantial evidence, and the Holland instruction.

Many states have recognized that the Holland decision is a federal holding not constitutionally mandated. They have continued to utilize their cautionary circumstantial evidence in a sense of fairness to avoid jury speculation, without any mention of Holland. This is, of course, what Texas has done for 28 years since Holland until today.

In State v. Lasley, 583 S.W.2d 511 (Mo. 1979), the Missouri Supreme Court came to grips with the question in a burglary case. The issue presented was whether the court erred in giving the MAI-Cr. 3.42 circumstantial evidence charge which includes the "reasonable hypothesis" instruction in a case where the evidence is wholly circumstantial and the defendant properly requests the charge. The State sought to have the court abrogate MAI-Cr. 3.42 and adopt the federal rule of Holland. After discussing the Holland opinion by Mr. Justice Clark, the Missouri court wrote:

Id. at 861. The Wyoming Supreme Court stated that the circumstantial evidence instruction given by the trial court was consistent with prior Wyoming Supreme Court decisions. The court then overruled the prior Wyoming decisions that required the reasonable hypothesis instruction in cases involving circumstantial evidence, criticizing the instruction as `wishy-washy, misleading and constantly raising questions.' Id. at 862.

"We are not persuaded by the approach adopted in Blakely. The Wyoming Supreme Court ignored the suggestion in Holland, also present in the cases from other jurisdictions adopting the rule in Holland, that it is only appropriate to dispense with the reasonable hypothesis instruction in a case involving circumstantial evidence `where the jury is properly instructed on the standards for reasonable doubt.' 348 U.S. at 139, 75 S.Ct. at 137. Where no instruction on the standards for reasonable doubt is permitted, we do not think that it is appropriate to leave the jury without the guidance of a reasonable hypothesis instruction.

"Respondent contends that MAI-Cr 3.42 tends to relegate circumstantial evidence to an inferior status by distinguishing direct evidence from circumstantial evidence. This contention fundamentally misconstrues the purpose and function of MAI-Cr 3.42. We acknowledge, and it is now generally recognized, that circumstantial evidence is not inherently of less probative value than direct evidence. To say the two types of evidence are equal in weight, however, is not to say that they are equal in all respects. The distinction between the two types of evidence remains useful. This court has defined direct evidence as `"evidence which if believed proves the existence of the fact in issue without inference or presumption; while circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist."' State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43 (1948). The distinction is not cast in terms of the weight to be accorded each type of evidence, but in terms of the pattern of logical inference which must be employed in reasoning from circumstantial evidence. We think this difference warrants the continued use of MAI-Cr 3.42. Because circumstantial evidence requires jurors to use an inferential process to determine an ultimate fact, it is appropriate to caution them to make certain that their inferences are reasonable, consistent with the guilt of the defendant and inconsistent with any reasonable theory of his innocence.

"In reasoning from circumstantial evidence to the existence of a fact in issue, a juror is called upon to supply a missing premise from his own experience. In the instant case, for example, the jury is asked to infer, from the facts that a house was burglarized on the morning of May 26, 1976, that the appellant was seen in the driveway of the house that same morning and that shortly afterward the appellant was driving a van in which items taken from the house were found, the conclusion that the appellant himself committed burglary. The jurors must supply from their own experience the major premise of the syllogism: `If a person is found in the vicinity of a burglarized house near the time of the burglary and in possession of items taken in the burglary, then that person has committed burglary.' The prosecution is not required to produce empirical studies demonstrating the reliability of such a generalization. The only protection a criminal defendant has against inferences drawn from a doubtful major premise is the assurance that the jury will subject the suppressed premise to the reasonable doubt standard of proof. Our requirement that an inference of guilt be inconsistent with any reasonable theory of innocence forces the jury to subject the major premise used in drawing the inference to the same reasonable doubt scrutiny to which it subjects all the other evidence presented at trial. We think that the additional guidance offered a jury by MAI-Cr 3.42 is necessary to protect a defendant from juror speculation. This instruction does not conflict with MAI-Cr 2.20, because it does not attempt to define the reasonable doubt standard. Neither does the instruction invoke a different or higher standard of proof for circumstantial evidence than for direct evidence. It merely instructs the jury to apply the reasonable doubt standard to each phase of the inferential process involved in drawing conclusions from circumstantial evidence. Far from being inconsistent with the rule forbidding the futile attempt to define `reasonable doubt,' the circumstantial evidence instruction is needed precisely because Missouri practice forbids defining reasonable doubt. The failure to give MAI-Cr 3.42 in this case constituted error...." (Emphasis supplied.) (Footnotes omitted.)10

The majority in the instant case seeks to justify its position by saying that in Holland the federal district court followed "local practice" in giving a definitional charge on reasonable doubt. Nothing in the Holland opinion or elsewhere supports such assertion and no authority is, of course, cited. It is clear from what has been written earlier that in many state courts, Wharton's Criminal Evidence, 13 ed., Vol. I, § 12, p. 18, and in many federal courts, Wright, Federal Practice and Procedure, Criminal 2nd, Vol. II, § 500, p. 805, that the giving of a definitional reasonable doubt instruction is quite common.11 There is nothing to show that the giving of such charge was only "local" practice in the United States District Court for the District of Colorado where the Holland case was tried over 28 years ago.

The majority faults the Missouri Supreme Court in State v. Lasley, supra, for interpreting Holland as requiring a definitional reasonable doubt charge or standard before dispensing with a circumstantial evidence charge and goes on to say "... we abolish the circumstantial evidence charge not because another part of the charge dispenses with the need for it, but because it is inherently confusing to a jury by suggesting that a different burden of proof than the reasonable doubt standard applies in circumstantial evidence cases."

The majority fails to set out and explain how the conventionally given Texas cautionary charge on circumstantial evidence and the normally given nondefinitional charge on reasonable doubt suggests different burdens of proof or how they are "inherently confusing." Despite the lack of explanation, the majority accuses the Missouri court of overlooking the "inherent confusion."12 It is the majority that is confused. In Holland the Supreme Court talked of the possible confusion between the charge on circumstantial evidence and a definitional charge on reasonable doubt. The Court did not state that a cautionary charge on the law of circumstantial evidence standing alone was confusing, or was confusing when considered with a nondefinitional charge on reasonable doubt. The majority's interpretation of Holland is off base.

Thus 127 years after the basis for the cautionary circumstantial evidence charge was approved, Henderson v. State, 14 Tex. 503, 514 (1855), and 28 years after the federal case upon which the majority relies, it is decided that the circumstantial evidence charge and the instruction on nondefinitional reasonable doubt are inherently confusing. There is no basis for such a holding.

Texas courts have long recognized the need to protect the accused in a criminal prosecution from jury conjecture and speculation. The majority, without hearing arguments or requiring briefs as to the desirability of abolishing the circumstantial evidence rule, of adopting the Holland rule or as to adequate safeguards that should accompany such action, have abolished the requirement of any charge on circumstantial evidence abrogating the controls on jury conjecture that has been previously utilized in Texas to insure fairness in our criminal trials.

In addition to "inherent confusion," the majority seeks support for its decision by urging that it is the currently popular thing to do, that most jurisdictions now have abolished the circumstantial evidence charge. This if, of course, not necessarily so as we have seen, nor should it be the basis for the change the majority seeks to wrought. Should we abolish our community property laws because a majority of the states do not have such laws? Should we change any of our laws or precedents because like the lyrics in the old song "Turkey Trot," "Everybody's doing it"? Texas, of all states, has never considered its rules deficient, faulty, lacking reason, etc., merely because it was not among the majority of the states with regard to the particular rule, nor should it today.

Now that the majority abolishes the requirement for the cautionary charge on the law of circumstantial evidence, what is to be the legal formula for testing the sufficiency of the evidence in a case based wholly on circumstantial evidence? Is it to remain the same test approved by the Supreme Court of Texas in 1855 in Henderson and followed consistently since that time? See footnote # 4. The majority does not tell us, and with a studied stubborness, chooses to ignore the question. If the test is to remain the same, then the jury is entitled to a charge on the law of circumstantial evidence as has been given in the past. See Article 36.14, V.A.C.C.P.13 It would be the height of absurdity to keep the jury in the dark about the requirements of the law regarding the sufficiency of circumstantial evidence and then apply the test required by law to any guilty verdict rendered. If the test is to be changed, now is the time to do it, not later after much confusion as to what test is to be applied. If there is to be a new and different test, it should be clearly delineated, the reasons for its adoption set forth, as well as the reasons for the demise of the former rule. It should be remembered that not only will the appellate courts be dealing with sufficiency questions, but so will the trial courts when passing on motions for instructed verdicts and motions for new trials. Guidelines are needed now in an area which has been churned by today's decision. The majority owes this much to the bench and the bar, and if you, please, the people of Texas.

I join Judge Clinton in expressing concern and indeed alarm at the course which the majority is chartering, particularly in light of Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (Opinion on State's Motion for Rehearing), and Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981).

For the reasons stated, I vigorously dissent.

CLINTON, Judge, dissenting.

More than one hundred years ago judges of the former court of appeals were uniformly holding that an omission to charge on circumstantial evidence is not cured by the ordinary charge on reasonable doubt. Hunt v. State, 7 Tex.App. 212, 235-236 (Ct. App.1879); Wallace v. State, 7 Tex.App. 570, 574 (Ct.App.1880); Struckman v. State, 7 Tex.App. 581, 582 (Ct.App.1880). I am not persuaded that what the majority today sees as a trend of conventional wisdom on the subject proves they were wrong.1 Accordingly, I dissent.

One need read only Jones v. State, 34 Tex.Cr.R. 490, 30 S.W. 1059 (1895) to understand the impact of abolishing a charge on the law of circumstantial evidence. In a case "predicated entirely upon circumstantial evidence,"2 the trial court had charged the jury on a portion of that law.3 Having quoted that portion of the charge set out in the margin, Judge Davidson wrote for the Court:

Now, in another century we are told that such a charge—given countless times over more than a hundred years when an accused pleading not guilty was not permitted to waive trial by jury6— "is a confusing ... charge where the jury is properly instructed on the reasonable doubt standard of proof." The truth of the matter is that the Court is abolishing a significant measure of assurance that a verdict of guilt in a circumstantial evidence case is properly informed and well grounded.7

The majority draws heavily from one feature of the opinion of the Supreme Court in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), but does not mention the other discussion about whether the jury had been "properly instructed on the standards for reasonable doubt." Thus, water is taken but the bucket is tossed aside.

Though the Supreme Court opined that "this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, see Bishop v. United States, 71 App.D.C. 132, 107 F.2d 297, 303, rather than the kind on which he would be willing to act," Holland, supra, at 140, 75 S.Ct. at 138, the majority fails to provide any definition of reasonable doubt to fill the void. The accused is stripped of the benefit of a charge on circumstantial evidence and then loses the protection of a definition of reasonable doubt.

Last May the majority, claiming to be reducing confusion on the part of appellate judges and the trial bench and bar over the Carving Doctrine, abandoned it "for the compelling reason that it encourages crime." Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982). Today the majority purports to remove confusion from the minds of jurors. Together, they mean that fundamental principles in the criminal law jurisprudence of Texas are being systematically renounced by determined minds—and about that there is no confusion.8

To this exercise of judicial will, I dissent.9

TEAGUE, Judge, dissenting.

Sir John Fortescue once wrote, see De Laudibus Legum Angliae, Ch. 27, that he would prefer that twenty guilty persons should escape the punishment of death, than one innocent person be executed. For my part, I would prefer that twenty juries each be "confused" by an instruction on the law of circumstantial evidence than see one innocent accused person imprisoned or executed because of the lack of an instruction on the law of circumstantial evidence.

The importance of giving proper instructions to a jury by a trial court should never be questioned, especially when one considers the obvious purpose the charge serves: "The very purpose of a jury charge is to flag the jurors' attention to concepts that must not be misunderstood ..." Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978). See also Brown v. State, 617 S.W.2d 234 (Tex.Cr. App.1981); Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982). Additionally, a jury charge instructs a jury as to the standards it must use in evaluating the evidence which has been presented to it, and as to what must be proved before it may find the accused guilty of the offense charged against him. It has long been said that circumstantial evidence is as probative as direct evidence. However, that maxim pertains solely to credibility of the evidence and to the actual facts proved. There exists a distinction between direct and circumstantial evidence which requires a different analysis to determine whether a fact has been proved beyond a reasonable doubt, the ultimate test to which evidence must be subjected to determine its sufficiency. The distinction was forcefully presented by Judge Domenick Gabrielli of the New York Court of Appeals in that court's recent decision of People v. Kennedy, 47 N.Y.2d 196, 417 N.Y.S.2d 452, 391 N.E.2d 288 (N.Y.Ct. App.1979), which should be required reading by those persons who favor abolishing a charge on circumstantial evidence, as it might change their minds.

A charge on circumstantial evidence, in a proper case, has been required in Texas for over 100 years. See Hunt v. State, 7 Tex. App. 212 (1879); Ross v. State, 9 Tex.App. 275 (1880). And the majority today has not given any sound reason why it should not be a part of our law for the next 100 years.

I find that the end result of the majority opinion will itself cause much confusion, at the trial court level as well as at the appellate court level. Without guidance, the chances of an unjust jury verdict in the future will become greater and greater because of the simple fact that prosecuting attorneys throughout the State will ask juries to pile inference upon inference in order to find defendants guilty. Past reversals of this Court, because the evidence in a circumstantial evidence case was insufficient, are irrefutable proof that an unelaborated reasonable doubt instruction, standing alone, will be inadequate to protect the innocent accused from unjust conviction based upon evidence of suspicious circumstances.

The majority's reliance on Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), as its authority to abolish the requirement that in a proper case a charge on circumstantial evidence must be given, is dubious to say the least when one carefully reads the opinion and learns that the holding of the Court was prefaced on the fact that if an instruction was not given, nevertheless, the jury would be properly instructed on the standard for reasonable doubt. In Texas, the phrase "reasonable doubt" need not be defined in the charge of the court, and the majority makes no such requirement in its opinion. Hence, in the future, juries not only will be without guidance as to applying the law of circumstantial evidence to a particular case, but in addition will be without guidance as to the real meaning of the phrase "reasonable doubt". I find that none of the reasons stated by the majority in its opinion are sufficient to warrant such a dramatic and unwarranted change in the criminal law of this State. A cursory analysis and examination of the annotations listed under Volume 23A Corpus Juris Secundum, Criminal Law Sections 1250 and 1252, indicates that at least 41 States of the Union have utilized cautionary instructions to the jury on the use of circumstantial evidence at one time or another. At least 12 States of the Union have reaffirmed the instruction's use since 1970. See State v. Lasley, 583 S.W.2d 511 (Mo.1979).

Today's opinion will cause confusion to exist in the appellate courts of this State as the majority has left open the question of what standard of review this Court will apply in future circumstantial evidence cases. Implicitly, the former standard of review still exists.* But if this Court continues to apply the former standard of review, when a jury in a particular case was not instructed to apply that standard, I foresee a sharp increase of needless reversals by the appellate courts of this State. On the other hand, if this Court does not continue to apply the former standard of review, then more defendants will be imprisoned or executed on the basis of a dubious showing of guilt; and the occurrence of the ultimate horror in criminal law, the unjust punishment of an innocent man, can only increase.

When Iago left Desdemona's handkerchief in Cassio's lodgings, see Shakespeare's Othello, Othello could surely have profited from consideration of some cautionary advice as to the unreliability of circumstantial evidence. And we all know what happened to Othello, don't we? Let us, however, hope and pray that the same tragic ending is not in store for accused criminal defendants of this State, who are confronted with beguiling evidence of suspicious circumstances, but who are judged by juries which are not favored with an instruction on the law of circumstantial evidence.

In any event, the mighty circumstantial evidence charge in our law is now consigned by the majority opinion to its death and burial in the refuse heap of Texas law, preceded in death only recently by the doctrine of carving. See Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982).

To the majority decision, I respectfully dissent. To that great warrior of criminal law, who has served us well, I can only say: Mortis momentum est ultimum vitae momentum.