Galvan v. State

GALVAN, Jr., Appellant, Lupe Texas, Appellee.

The STATE

No. 56544. Appeals Criminal Texas.

April

Elsеwhere, that he told showed Teaff, Sanford, Cunningham, the witnesses that Hallmark had cost him a lot and Butler pot. Ricky lot of money, Sanford days maybe, or three testified that “two busted,” he had got he and after after gotten jail, appellant out of “ me, said, he that he had told weed, marijuana and that the some Roberts, Jr., Aubrey Sweetwater, L. get he would his. And he also said appellant. Hallmark, somebody, to shoot James Ginzel, Prank Dist. Atty., City, Colorado bastard, finding his weed.” Hoffmann, Jr., Bill Atty., Asst. Dist. Sweet- trial, Butler, Cynthia aged at the time of water, Huttash, Robert Atty., Aus- State’s told her that he was appellant testified that tin, for the State. turning “going get James Hallmark for Carroll, Russell L. Atty., Asst. Dist. testify did not pot] Appellant in.” [the Sweetwater, Walker, Alfred Asst. State’s written con- upon the trial nor was there a Austin, Atty., rehearing. for the State on fession offered the State. ONION, J., Before P. PHILLIPS and ground of error com second DAVIS, JJ., KEITH, TOM G. Commis- plains of the admission of the results sioner. marihuana, search and seizure of the being

contention that it was the result of an OPINION illegal disagree. search. We As noted ear lier, the shed where the contraband was KEITH, Commissioner. found was abandoned tractor shed on a an Appellant was indicted for intentional being by Hall portion of farm rented possessionof more four ounces of mar- than mark’s father. Hall aрpellant’s mother to ihuana; the jury guilty found him to be belongings personal mark had some of his punishment his was enhanced because of a in the as did his mother. There is no shed prior conviction and fixed at confinement showing appellant any right had to be for fifteen years. in the shed. He was anything or to store Briefly, the record April reflects that on time of search. present not at the 7,1974, James Hallmark discovered sixteen Stiggers It was said in kilos of a substance later shown to be mari- (Tex.Cr.App.1974): huana. The were in bricks marihuana “Here, not under the premises bag, tub, barracks under a in an abandoned appellant control of and he was not shed on his mother’s farm near a house was made. . present when search appellant’s rented to father. question the Appellant standing has no reported Hallmark his discovery Sher- legality premises of the search of not iff Bill County McGuire Mitchell he was not under his control when place went to the where Hallmark had seen search. present at the time of the leafy green procur- substance. Without Schepps v. ing a search permission any- warrant or App.1968).” Hallmark, except one the sheriff entered Ground two is overruled. the building and seized the marihuana. testimony introduced There was no direct apрellant

It was shown that had after appellant to the marihuana been released on bail he cursed Hallmark on which linked “ said, several admis- except found in the shed ‘Why streets of Sweetwater threats) (and didn’t which you go up my there and tell dad that sions arguen- marijuana?’ having Assuming, made. quoted had found this bar, do, no witness saw to raise “In case sufficiency such evidence over ap- any control possession, now to exercise issue we turn was the contraband reading: Nor pellant’s ground third of error contraband. residence, where failing properly “The within trial court erred in found In- sole access it. he would have instruct stead, wаs found at the words the marihuana by omitting from such instruction which was appellant’s property place ‘and person.’ no other (Id.) anyone.” accessible instruction on circum- The trial court’s State, 346, 350 v. 551 S.W.2d See also Oliver was in standard boiler stantial evidence State, (Tex.Cr.App.1977); Williams not- plate language except for the omission (Tex.Cr.App.1975); Scelles S.W.2d objection A timely proper ed above. State, 358 S.W.2d 172 Tex.Cr.R. was to this from the instruc- made omission tion that his convic- contends We

tion cannot stand under the record. uphold the counsel seeks State’s agree now to be stated. for reasons language reliancе quoted of the omission Tex. Odell v. two cases:1 was As said Ramos (1923), Cr.R. (Tex.Cr.App.1972): 123, 126 Grego v. 456 S.W.2d charged with the “Where an accused is point. As case is in App.1970). Neither possession drug, unlawful of a narcotic Odell, supra: noted in (1) be that he proven: two elements must supporting there evidence “When is care, control, management exercised others com- accused and theory contraband; that he over offense, be error it would mitted the object possessed knew that he to instruct against the state for the court contraband.” a rea- they must believe to Ramos, open As in the shed was and had certainty that the ac- and moral sonable Hallmark, no It was shown that lock. person’ committed ‘and other cused no had difficul- probably sheriff and others no (emphasis supplied) the offense.” ty gaining thereto. In Ra- admittance quoted in Odell was language This from mos, it was the Court found that error Grego, supra. court refuse a on lack of trial that oth- makes no contention knowledge presence of the contra- possession of the ers involved in band, error was com- and continued: “This Indeed, theory under its contraband. refused pounded when the trial court also of estab- discharge its burden case could on circumstan- appellant’s requested charge show- lishing (Id. 105) language tial This evidence.” he, pos- person, other had ing that and no likewise Ramos is material: Ramos, supra. session of marihuana. “The distinction between circumstan- words “and no quoted The omission is that tial evidence and direct evidence significantly to the ultimate applies directly the latter rights and constituted appellant’s affected be while circumstantial proven, fact error. reversible of a minor proof the direct re- of the trial court judgment which, inference, by logical demon- fact versed and the cause remanded. proven, to be strates fact [citations en the court bаnc. Before

omitted] cause, not find the Upon that we do State’s cases is so different oral of the submission holding applicable to language be the case found Herrera counsel called our ‍‌​‌​‌‌‌​​‌​​​​​​​​‌‌‌​​​​​‌‌‌‌​‌‌​​​​​​​​​‌​​‌‌​‍attention (Tex. at bar. in Cr.App.1978). Herrera The fact structure of two par- there were other evidence shows OPINION ON STATE’S MOTION FOR REHEARING in the ticipants crime.

CLINTON, Judge. at the outset clearly understood Let it is a circumstantial agree that this that all opin- original panel On submission on a There is no direct evidence case. judgment reversed this ion conviction appellant possessed the ki- whatsoever that possession more than the offense of in a burlap los of marihuana found in a sack four of marihuana because the trial ounces owned property “tractor shed” on rural per- no other court deleted the words “and charge on timely requested son” from a rented it to another panel opinion circumstantial evidence. The the sole father. Thus pointed out State’s charge that to the circumstantial evidence case, only way discharge it could whether, under the facts of given establishing guilt appel- of of its burden case, phrase included the this it should have he, by showing lant was and no other and, therefore, person” “and no other person,2 possession of the marihuana. deleting charging in it in trial court erred particularize In its brief the State did not it jury. To answer any theory party responsibility of rudimentary propositions fitting that some Code, V.T.C.A. Penal 7.01 and 7.02 and §§ evidence be revisited. as to circumstantial suggested charge was only obliquely properly worded under “the evidence admit- nature, of cir very Because its ted,” without out pointing under its coun- evidence, cumstantial like direct just or terpoint what where it is. Conse- only probative weighty must not and quently, panel opinion, reasoned the of enough prove the essential elements omission of per- the words “and no other charged but also it must ex offense son” charge significantly from the affected guilt clude reasonable doubt of the of very appellant’s rights and constituted reversible 560-561, the accused. 23 Criminal C.J.S. error. Law 907b. In a trial the mechanism § granted We to file a State leave determining quality quantity and of the rehearing motion for in view of its reconsti to the evidence is to submit tuted contention that the record evidences that instructs on the law of circumstantial the fact may father of the applies evidence and the facts been possession involved with the case, jury to re thereby authorize the contraband at issue and that the words lights. Manifestly, spond according to “and no person” deliberately other the instruc achieve a reliable determination omitted from the for that reason.3 law and tions must be faithful both to the again would cite us to the tan facts of the case. particular State, 360, dem of Odell v. 95 Tex.Cr.R. Texas, jurisdic- many well as as State, (1923) Grego 254 977 456 S.W. tions,4 as principle substantially the basic (Tex.Cr.App.1970) propo S.W .2d 123 early in Jones v. 34 Tex. stated on sition that the words “and no other 490, (1895): 1059 may be omitted from the if the Cr.R. 30 S.W. “ panel opinion evidence is 1. The was written the Honor- . . .No certain amount of Keith, trial, necessary, any able of the Court in to either con- Commissioner criminal Quentin doubt, vict, Appeals, panel consisting of Criminal for a or to raise a reasonable Presiding Judge Judges cause, instance, Phillips and Onion and therefore in this the first involvement, real, Tom Davis and himself. the evidence shows the Sr., potential, Lupe, apparent, Emphasis original. emphasis sup- All therefore, initially by the the view advanced plied throughout by opinion the writer of this Grego is cor- Odell and ... unless otherwise indicated. rect.” Assembling pieces testimony, bits and 561, 907c. Law § 4.See 23 C.J.S. Criminal argues: State now

“ urged equivalents expansive this functional one Error because statement, 69 Tex.Cr.R. charge5 Manley fails to instruct that such evi- 1138, (Tex.Cr.App.1913); dence must be of so a nature 153 S.W. conclusive 155 S.W. every hypothesis as to McGee Tex.Cr.R. exclude State, 74 (Tex.Cr.App.1913); Brown v. except the accused. essential of an on the Tex.Cr.R. 169 S.W. element instruction provided genesis is that the App.1913) law circumstantial evidence as, regarded today phrase in the necessary facts and to the what is circumstances plate panel opinion, be such as to exclude “standard boiler conviction must ac- except appears generally every hypothesis language,” other reasonable such as 8 Texas Practice guilt. cepted the defendant’s The evidence must form books Forms, ff., Texas Criminal prisoner’s not be consistent with the Willson’s Blackwell, 82.02; Texas Crim- guilt, but it must be inconsistent with Morrison & § Charges (1975) CPJC every Jury inal Pattern other rational conclusion.” 0.01; for Texas McClung, Jury Charges Accord: Smith v. 35 Tex.Cr.R. 221; (Jan. 1979) Criminal Practice rehearing 33 S.W. 339 motion for Ed.) (2nd Penal Code Branch’s Annotated overruled, 395, 373.1. § (Tex.Cr. App.1896).6 however, may be margin, an accused As shown in the Of course charged soon offense permitted variation on same not, himself, commit right although he alone theme when it determined that the did it, responsible for the con protected criminally the he is effectively accused was persons the or more other given. that was Reeseman duct of one See 430, (nee State, 1126, party His is as a responsibility v. 128 did. 59 Tex.Cr.R. S.W. the of principal)9 1129 Powers to the commission of (Tex.Cr.App.1910) and v. State, 214, fense, instructed ordinarily 69 909 and jury 152 S.W.2d Tex.Cr.R. Then, accordingly. is the delineation brusquely almost Illustrative (Tex.Cr.App.1913). State, seems,7 275 as a in v. 477 S.W.2d ‍‌​‌​‌‌‌​​‌​​​​​​​​‌‌‌​​​​​‌‌‌‌​‌‌​​​​​​​​​‌​​‌‌​‍the Court confirmed correct made Lawrence (Tex.Cr.App.1972) instruction with to Sherrad on circumstantial 119, State, 900 318 charged where a accused was with v. 167 Tex.Cr.R. S.W. single alone, (1958). agreed specified to sell a acting one which combined all the Sherrad equiva instructed amounted to its functional 5. The trial had instructed in effеct that in court 266, lent, State, g., 45 order to conviction circumstantial 39 warrant a e. v. Tex.Cr.R. Moore necessary 809, 1898), (Tex.Cr.App. the conclusion each fact v. Ramirez S.W. 810 proved beyond 455, State, (Tex.Cr. must be a doubt and 43 66 S.W. 1101 Tex.Cr.R. with each State, that the facts must be consistent Moseley App.1902) v. 59 Tex.Cr.R. and other and fact and circumstances the main 90, 1910). (Tex.Cr.App. 127 178 together taken be of a nature must conclusive effect, “producing, in a reasonable 377, 317, State, 137 S.W. Diaz v. 62 Tex.Cr.R. certainty moral of the accused.” 1911), may (Tex.Cr.App. as a viewed 378 be harbinger. pronouncement adhering In in Jones v. State, supra, expressed satisfaction the Cоurt verbatim, quoting instruction 8. After opinion with that it was consonant an earlier it, noting rejected criticisms of unstated Court jurisdiction another which frequently given find, has so “the been as told that “must not to a moral certainty, approved unnec- this court it almost seems the accused the of- committed fense, it; person essary but that no other committed authorities cite directly leading thus the mind of the exhausting every other reasonable (Tex. State, 900 S.W.2d 9. See Pitts 569 v. hypothesis might indicate that some other a Cr.App.1978) also therefrom and note person than the accused committed the offense given may parties on the law of chargеd.” That notion was in Crow confirmed though supported by when the evidence State, v. 574 Tex.Cr.R. 39 S.W. pled in responsibility is not manner criminal App.1897); yet, presently when confronted State, indictment; see also LeDuc ap- phrase, with the underscored the Court 1979). (Tex.Cr.App. S.W.2d peared to it or that what was retreat find accepted partial alone committed the offense or amount of marihuana an accused with another others buyer acting together returned the was payment; when becomes however, doing parties the law of next was not day, Sherrad State, applicable. Odell present, approached but one Robson (Tex.Cr.App.1923) type is that 254 S.W. 977 the transaction. In Lawrence completed of case and is relied on negotiated the accused purchase was done here to the standard support what that “my told the officer man” would deliv- evidence instruction. See minutes; er in ten in that time one Lott did State, Traylor 117 Tex.Cr.R. also money. and received the re- Sherrad was versed for failure to charge on the law of evidence; principals and circumstantial State, supra, set are facts Odell Lawrence clearly was affirmed for he was on them opinion. out in full in its Based acting together with Lott. finding was firm Court ac- persons of other with the participation Lately explicated concept posture, cused was raised. responsibility party criminal as a is to bene- held, duty that “it is the of the trial fit protect rather than to an ac- in- give jury appropriate court cused, g., e. Romo v. 568 S.W.2d principals,” law as was structions on the (Tex.Cr.App.1978 opinion on rehear- objections of the accused. done there over ing) and Ellis v. then, with the evidence and Consistently, (Tex.Cr.App.1977). when the trial court theory of the as Equally rudimentary long and as came to the circumstantial evidence instruc- standing charged is that an accused charge by tion it modified the standard acting with another party commis substituting for “and no other sion of an offense is not entitled to the phrase acting “either alone or concert protection of the standard circumstantial person.” with another This modification charge. Boersh v. 62 S.W. because, was correct the Court wrote: In this situation sup- “. . When there is evidence the instruction substitutes for “no other porting theory that the accused and Boersh, phrase “acting a such as in offense, it others committed the would and, person,” though with some other even against an the state for the court to error person the other or others be named in the they must believe instruct that indictment, charge using is sufficient in certainty to a reasonable and moral that an appropriate speci substitute rather than person’ ‘and no other commit- accused names, fying a name or will ted the offense.” others,” “look proof as to the Reid v. Assuming in the case before us “there is 664 (Tex.Cr.App.1900); S.W. supporting theory” appel- a that Serrato v. together lant committed the and his father offense, followed had the court below Odell Then there is the third situation that the standard supra, and modified Odell, actually a combination of the other two: in a charge as did the trial court problem When the state of the evidence is such that not exist. would charge given charge 10. “In on the law of 12.While the is not set out a case where a usually parties applicable, provided enough opinion, apparently it is the State that “ex- charge, clusivity” insists on and is entitled to have such a including Moore v. for the even then outdated facts, application State, supra, of the law to the was sufficient for the Court said jury.” theory. submitted to the The notion to decide the issue on that to, clearly though “joint possession” alluded of supported by 11. Such is “a State’s and does in view of the testi- the evidence protect rights,” patеntly not eliminate the stantial a defendant’s but does not mony appellant, was of wife of necessity for a on circum- “backup” expression. of evi- evidence when that character id., guilt, dence is relied to establish alternatives, tried on the case was suggest theory But that here there neither acting his to- appellant appellant father and no theory single possession gether joint nor evidence of of bag kilos of person possessed Thus, Odell and kilos of marihuana.14 To tractor shed. found in the marihuana Grego, point. are offspring, its lone not “and no other phrase refuse to include judicially apрroved otherwise person” in the again the entire We have reviewed instruc- standard record15 and are satisfied before Court to protection to is to withhold efforts tion notwithstanding defensive 13.Without takes questions using on a appellant. possession called same such a lowing testimony rect “your place,” counsel for That the trial court when the Moreover, rented Pursuing State constant A: A: No. But am entitled Q: “Q: ings? I? record shows first We what ed: MR. GINZEL A: Q: marijuana [sic]? Q: many last A: sessed the do marijuana A: “Q: Q: State whether or not sponsive fee “Your Further, examination with that tractor Wait a minute. I didn’t ask Did Do No, No, No, simple They was ask that counsel bе instructed not protective as a place term part You don’t And way just they n ‡ suggestion you know “his” you know sir. sir.” sir. following emphasizing Honor, as he was repetition He was not to the any —be of the witness’ that did not to instruct the ‘your place,’ witness you paid said it was as to the residence say. [sic] marihuana, of it.” in his final point the State people sjs ^[*] witness. I he doubt the State tried this case (The prosecutor): And I ask stricken. is illustrative: was found. adduced know stance a marihuana. exculpate doesn’t own the at this on anybody occurred: proceeded to anything sfc ^[*] he named terms nothing being redirect shed, alleged that Galvan Senior оbjected: ‘your place’ implicate what as if he Thus, argument responding marijuana time, you He is ^{[*] [*]} and answer, cross examined “your State where lawyer prosecutor to himself. about for the outbuild- ‍‌​‌​‌‌‌​​‌​​​​​​​​‌‌‌​​​​​‌‌‌‌​‌‌​​​​​​​​​‌​​‌‌​‍examination, the State to after had Indeed, could use is the fenced a mere tenant. we move this ^[*] ‡ be a do. assumed the did? disregard the counsel that place, house” —when anything picked it. a series of as not re- ordinarily [sic]—it’s testify father owner in party The fol- he was ^[*] ‡ garden assert- bag bag pos- up? use did di- to On 14. Tex.Cr.R. was found to review in order tor shed in which the marihuana was did others from When the record duced four examination: time To this and drew from tion. ining every to permission is this Court other exhibits shed in outbuildings thought important ord where index indicates found mains in into the record. same is true A: No. Q: A: didn’t wasn’t you? need Q: possibilities, clude, A: No. this pothesis tractor shed Galvan.” stuff, er—whoever—and I A: No. “Q: Q: A To questions designed present rejected I As far as litany Didn’t intend to use exhibit way: Those concerned Didn’t demonstrate the . bears evidentiary And cross examination it, this time took water from well scenario the . it? relation to the residence That did approving be 77, Custody must contain all the evidence No, under the evidence. photographs; to use and It has Galvan Senior There you accоmplice, to the [H]e a notation: expected You admitted need with and landmarks “correct” in you? pay any rent for 199 S.W.2d 160 in, offered yourself, you is not what the sir.” challenges intelligently neighboring didn’t e. got it; no, issues jury know, enough of Court know, the record should g., talking nothing to understand say easy nobody location of the to show that did with Thomas v. this “Original each are raised on sir. be a reasonable that this affirmative each exhibit that was to Phea you? to decide it, access to the to added about anything State. How then sneak, places (1961) the same preparing, exam- part photographs Reporter.” The State other than pаge develop do with it, finds of the case? all of these Exhibit on redirect way, put you just in the rec- should and other or whoev- who from what was did tells found, as answers see counsel he nearby. will be tractor for our appeal before didn’t there, it, intro- ques- Lupe trac- you? This you. way that and had Re- hy- did ex- which an accused is entitled in such a case. that I could sell some for him. And here, all I would have Without it to do was either we are constrained to hold go take some with me and down- was not afforded the full town, wherever, and sell it —or I benefit of a complete charge required just go could downtown and see against find that the evidence go who wanted some and then back him every excluded hy- other reasonable get marijuana to his house and pothesis except guilt. his Baggies, and take to them. is, rehearing The motion for ac- State’s They give money, would me the cordingly, overruled. Lupe, I would take it bake to Jr.” This evidence was sufficient to at least DALLY, J. dissents. raise the issue that someone in addition to DOUGLAS, Judge, dissenting. Galvan, Jr. had access to the marihuana. The evidence did not have to be so strong as majority opinion The overrules to justify parties on the law of rehearing ground State’s motion for on the Code, V.T.C.A., Penal Section 7.02. did theory not raise the Had the requested phrase “and no other else, Galvan, that anyone pos- other than charge, appel been included in the reading sessed the marihuana. A careful lant’s counsel would have been entitled to the record shows otherwise. argue acquittal for an on prove could not re Galvan’s sole stated, As the majority opinion April An sponsibility. acquittal on this basis 7, 1974, James Hallmark discovered sixteen would be legally incorrect. In Harrison v. kilogram “bricks” of marihuana in a duffle State, 555 736 (Tex.Cr.App.1977), bag underneath a washtub in an abandoned prove possession we held that of a con shed on his mother’s property. proper- trolled requires proof substance of two ele ty Galvan, Sr., was rented to Lupe care, ments: the defendant had appellant’s father. evidence con- narcotics, custody, and control over the Galvan, necting Jr. with the marihuana (2) that the defendant knew that the sub came from various witnesses who testified stance was contraband. In Martinez v. about several conversations State, 539 (Tex.Cr.App.1976), S.W.2d 885 where he discussed his arrest. held, cases, we as we have in countless such witness Ricky One Sanford possession of narcotics need not be exclu testified, sive; in addition to the matters noted in jointly evidence that the defendant majority opinion, January that between possessed the contraband with another of 1974 he April sold marihuana for sufficient sustain conviction. twenty Galvan on at least occasions. Thought prove must an affirma Though he was uncertain as to the last tive link between the defendant and the occasion on which he did he described contraband, circumstantial evidence is more procedure the selling as follows: than provide sufficient link. Mar State, supra; tinez v. Damron v. Well, house, to his go “A. like I would S.W.2d 933 weed, and like he would have some know, marijuana, already explains It is this rationale that why it is we bagged up Baggies. And give error to the State to the advo- ice chest in his would have it in the by appellant. Grego cated the In I would bedroom. And whenever (Tex.Cr.App.1970), S.W.2d 123 we held there, start smok- go up we would that where the evidence showed that the while, ing pot. And after a then persons defendant and two other were re- some, which I knew that if he had theft, for the the sponsible was error to In ly to the the true testimonial evidence. both jury instruct defend- instances, jury weigh ant the a is asked to the and “no other committed correctly points no that the evidence offense. There is error here. chances against the possibility to inaccu- if to Even the evidence were insufficient both, In ambiguous or inference. racy possibility raise the someone else’s access its jury experience use the must contraband, was not weighing proba- the people and events by harmed the omission. The jury beyond If convinced jury bilities. is a find, they instructed that a beyond had to doubt, require reasonable we can no doubt, reasonable pos- the defendant at more.” 348 75 S.Ct. U.S. returning sessed marihuana a before unreliability eye- For a discussion of the verdict, and, guilty in view of the nature of Loftus, Eyewitness testimony, witness see evidence, all the facts taken to- Press, (Harvard University Testimony gether produce, had to to a 1979). moral certainty the conclusion Galvan committed the offense. This instruction Harvill, 386, 476 In Ariz. P.2d protect appel- sufficient to certainly (Ariz.1970), Supreme rights. lant’s rule that long-standing overruled their of a on circumstantial evi omission It is time for this Court to re-examine its error. In dence constituted fundamental position on circumstan- requiring following made the ob doing court many Historically, tial evidence in cases. servations: courts have made distinctions between cir- similar was expressed “A view cumstantial and direct evidence because of Honorable Hand in United supposedly less reliable nature of cir- Learned Becker, (2d Cir. 62 F.2d 1007 cumstantial evidence. Four basic reasons States 1933). alleged error suggested supposed Referring have been unre- failing liability: (1) that circumstantial evidence is the trial court in to instruct inherently (2) that, proof; weight less accurate as of circumstantial jury as injustice; (3) led historically, gross it has he said: “ that people psychological tendency have a us a requirement ‘The seems to re- to weave theories from evidence and finement which serves confuse go lengths then to to extreme defend laymen supposing they into should them, cir- horrifying factual evidence otherwise use lead cumstances often to rash inferences All conclusions have than testimonial. Note, juries guilt. to establish See order major drawn from com- implicit premises Charge The Circumstantial Evidence testimony truth of knowledge; mon Retrograde Texas Criminal Cases: A Doc- as these as do infer- depends much trine, 55 Tex.L.Rev. 1255 A tests wit- ences ‍‌​‌​‌‌‌​​‌​​​​​​​​‌‌‌​​​​​‌‌‌‌​‌‌​​​​​​​​​‌​​‌‌​‍events. experi- their credibility using ness’s (cid:127)The vice of circumstantial evi- historical past to similar utterances ence in as coming dence has greater been attack That position. in a like persons year year. after Holland United process mental precisely same States, 121, 139, 348 U.S. S.Ct. what they object has when infer from (1954), Supremе L.Ed. Court of the an event past history, been United held where a States (Emphasis it.’ preceded what must have properly instructed on the reasonable doubt ours). 62 p. F.2d at standard, an instruction on circumstantial “confusing discussing evidence rel- Wigmore and incorrect.” “Professor of direct and cir- probative value ative in this “Circumstantial evidence concluded: cumstantial intrinsically no different from testimo- “ have noth- Admissibility Admittedly, nial evidence. circumstan- ‘The rules of of evi- point say concerning weight tial may ing some cases to a * * * In- wholly equal- incorrect Yet this when once admitted. result. dence 633 deed, Again quoting Wigmore, it can involved. be said that there are no rules, Evidence, system pre- our the court stated: scribing precise effect of simple cau- anything “When more than any general special class of evidence. tion and a brief definition [of us, logic psychology So far as assist matter tends to be- given, doubt] their show conclusions that it is out of the words, and the actual come one of mere general to make a assertion as- being jury, effect instead cribing greater weight to one class or to likely to be rather con- enlightenment, (3d ed.), Wigmore, the other.’ 1 Evidence fusion, or, .a continued incom- 26, p. 401.” P.2d at 844-45. § prehension. practice, In these detailed usual- amplifications of the doctrine have Jefferies, parte from Ex Quoting ly degenerated into a mere tool coun- 544, (1912), Okl.Cr. 124 P. 924 the Arizona judge entrap unwary sel who desire to court stated that all largely “evidence is forgetfulness prece- of some obscure into circumstantial and even when most direct it dent, or to save a cause for a new trial depends upon circumstances for its credibil- quibbling, pro- verbal appeal, on over the ity, weight, setting and effect.” After of a of words uttered or priety form forth several hypothetical situations to il- judge. declined to be uttered view, lustrate this the cоurt concluded that perpetuate develop effort these it was a mistake to distinguish between definitions is a elaborate unserviceable direct and circumstantial evidence. “The one, today chiefly useless and serves truth is that no human testimony superi- of the tactician. It purposes aid the or to doubt even in cases of the most direct Wigmore should be abandoned. 9 on Evi- proof.” 1940).” (3d dence Ed. § v. Gosby, State In 85 Wash.2d authorities, In addition above (Wash.1975), P.2d Washington following jurisdictions adopted the ra Supreme Court also overruled the old re- Allen v. Alaska, tionale of Holland: quirement that a on circumstantial Colorado, Pеo (Alaska 1966); 420 P.2d 465 given. evidence should be doing Bennett, ple v. 183 Colo. 515 P.2d 466 Holland, relied heavily upon supra, and Pro- Henry v. (1973); Delaware, 298 A.2d Wigmore’s fessor treatise on evidence. Wilkins, Kansas, (Del.1972); State Quoting Wigmore, the court stated: Maine, (1974); 215 Kan. 523 P.2d 728 rules, “It can be said that there no are Jackson, (Me.1975); State v. 331 A.2d in our system prescribing Vincze v. Nevada, 86 Nev. the jury precise any general effect of Draves, (1970); Oregon, P.2d 936 or special class of evidence. far as So (1974); Or.App. Wyo 524 P.2d 1225 logic us, psychology assist their ‍‌​‌​‌‌‌​​‌​​​​​​​​‌‌‌​​​​​‌‌‌‌​‌‌​​​​​​​​​‌​​‌‌​‍con- ming, Blakely (Wyo. 542 P.2d 857 clusions show that ques- it is out of the Aurgem Island, 1975); and Rhode tion to make general ascribing assertion ma, 46, 52, fn. 6 116 R.I. 358 A.2d greater weight to one class or to the probative other. The effect of one or join growing jur- list of Texas should more pieces of either sort of evidence isdictions who have abandoned the circum- depends upon complex. considerations too charge. stantial evidence The failure to do can only point Science out that each class nothing so will lead to but obscure and special has its dangers special and its pedantic decisions. Evidence, advantages. Wigmore (3d 1940).” Ed. § judgment should be affirmed. The court observed that the circumstantial one”, giv- ais “convoluted

ing higher rise to the belief that a standard proof than beyond a reasonable doubt is

required when circumstantial evidence is

Case Details

Case Name: Galvan v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 18, 1979

Citation: 598 S.W.2d 624

Docket Number: 56544

Court Abbreviation: Tex. Crim. App.