*2 of the store’s A review TEAGUE, Department. Police ODOM, Before CLINTON thirty five revealed that premises stock and JJ. an invoiced wholesale handguns new removed from $1,338.71 had been value of OPINION store. front of the cabinets in the display CLINTON, Judge. caliber stolen were .22 guns Two barrels with over-under derringers equipped for the from a conviction Appeal is taken handles, and another pearl fake Punish- and white building. burglary offense guns were opinion determined that the It was later his it was the testified that in 1. Moore display case as triggered the locked removed both from opening which of the back door storage area. unlocked burglar the underneath magnetic well as alarm. was a .357 on that magnum long morning says with a barrel. It was that Carter appellant he conversation with They police were never had a recovered. The indicated that he would appellant were finger- unsuccessful in lifting any $1,200 day. have the end of the Accord- prints from the pawnshop. Carter, appellant then displayed two Allan L. Mason was the third witness he have pistols which claimed to obtained called the eve- testify. On *3 breaking into a pawnshop. According from ning in question, Mason was out- standing Carter, appellant to had said he about 36 side his apartment complex on Bundrant guns in a brown case under the hood of his when Street he noticed in the a distance shortly car. related that after his Carter jacket holding bag man from appellant, conversation with Mrs. Fails re- he took appeared mag- what to be a .357 and to appellant turned home asked leave. num. Upon noticing suspicious person, left, told appellant After Carter Mrs. Fails Mason returned and Kil- inside called the appellant. what he had learned from leen Police Department. When re- Mason basis of On the facts related that con- turned from phone, the the was individual versation, Carter and Mrs. Fails drove to gone. On direct examination by the appellant’s car. Carter testified that he testify Mason could that the individual opened hood of the vehicle and observed saw evening he that looked similar to and brown satchel. Both he Mrs. Fails appellant. Mason was not make asked to home, to deciding returned not contact the an incourt identification. police Instead, their discovery. about Car- David 20, Fails testified that on March ter appellant’s returned to car with another 1978, appellant awas at temporary resident again friend three hours later. Once the Fails home at 1116 Robindale. On the opened hood of the car was and a brown prior evening, appellant did not return to bag was observed. It not until the Fails residence, and was not seen there night that Carter went Killeen to the Police until sometime between 9:15 a.m. 9:30 and Department report ap- to what he claimed a.m. the morning. next Fails stated that it pellant had told him to report and also was then that he confronted appellant bag observation of the brown under the about a containing billfold appellant’s iden- hood of car. appellant’s After Carter relat- tification which had been story police, they found at ed his informed him scene of a pawnshop burglary. Appellant that he was also under suspicion connec- claimed no involvement with the tion burglary, burglary. with At close of his stating that he lost had his billfold Carter testimony prior several admitted to several days earlier. convictions. Connor, of appellant’s, Charlene a friend Randall Carter, Howard ap- a friend of 20, 1978, testified that on March she re-

pellant, who also resided with temporarily call phone appellant asking ceived a from Fails, testified that on night, Thursday her regard to cover with to his whereabouts 17, 1978, appellant March he and had been Connor, day. According ap- earlier that to Club, at Spur Silver they while pellant say her offered she and $100 driving were away from the club the clutch appellant been together anyone had who appellant’s So, car broke. they left inquired of his whereabouts. parked parking car in a lot Mickey’s Grocery Drive-In and took a cab to a motel. Donna Fails verified her husband’s testi- Carter stated that he appellant were mony appellant that on March did together through midafternoon on March She, spend night at their house. time, 1978. At that Carter Fails too, appellant following encountered dropped appellant Spur off home, Silver her at a morning at but different Club. Carter testified he did not see During her appellant’s time than husband. appellant again Fails, until 8:00 or 8:30 a.m. he told her conversation Mrs. March his at the he had lost billfold Silver were unable to retrieve readable to leave Spur. appellant Mrs. Fails asked from either the scene or the house, prints drove to latent and then she and Carter thorough A metal appellant’s bag. equipment to look for a brown left behind. ear general Mrs. area was not testimony, Consistent with Carter’s detector search of the bag a brown was arrested productive. appellant Fails claimed to have observed After being jail, under car. On the into appellant’s the hood of and while he was checked husband, go advice of her she decided not nu- observed what he believed to be Lewis ap- the authorities. the bottoms of grass merous stains on socks. Lewis ordered the socks pellant’s Weber, employed by Dix- Larry who was to confirm the na- confiscated and tested testified that Paving on March ture of the stains.4 Drive-In Gro- working Mickey’s while near an model black Ford cery he observed older Mickey’s Drive-In Gro- employee An that morn- parked nearby. point At some earlier in the Hopper, stated that cery, Otis man, and child ing, Weber saw a woman if he could week an individual had asked *4 get truck and out and pickup arrive a parked grocery’s prem- on the leave his car look under the hood of the Ford. About explained that ises. The individual left, a man ar- they young minutes after car, he gone had out on the and that clutch car, go rived. observed him to the Weber day. have the car towed later that would the hood and remove a brown case. open however, testified, that as of 7:00 Hopper The man took the case and walked into a 20, 1978, the morning of March a.m. the the man returned a wooded area. When not returned for his car. yet man had later, little while Weber noticed that he no guilt-in- took the stand at the Appellant longer bag. It was 3 hours later had the maintained phase of the trial and nocence that Weber noticed 2 different men arrive broken down Thursday his car had that out and looked pickup They got in a truck. to leave gotten permission he had and that Ford, they under the hood of the and then Sunday eve- Mickey’s parking lot. On it on drove off. it Spur until ning, stayed he at Silver Smith, investigator Dan an detective Upon leaving around 2:00 a.m. closed Heights Depart- of Harker Police City individual, club, an whom he encountered a ment, that a billfold he had lost said “Joe,” smoked a as he knew Appellant earlier. related couple days appellant Joe asked “joint” together. appel- had that employer that his learned hold, process in the appellant was building in a lant’s billfold had been found mari- of five kilos of buying,5 “package” a burglarized, employer and his that had been huana; under the the brown case placed he department had police was not sure which then Appellant disabled car. hood of his had testified that he recovered it.3 Smith park home where left and to a mobile went was under yet appellant not learned that lived. He locat- he a friend of his believed offense, he let him suspicion any for so car and thought was his friend’s ed what he leave when the billfold could not be located. morning next asleep inside it. The fell strangers, two by was awakened appellant Lewis, of the Captain Dennis commander of the car. to be the owners Kil- who claimed investigation criminal division that his friend appellant informed They testified that he Department, leen Police home, was lived in a different mobile investi- responsible fingerprint was men weekend. The out of town for the He indicated gation pawnshop. Lewis, by not the statement was appears Harker and identified from the record that It adja- appear Heights separate political in our subdivision is a in evidence and does offered cent to Killeen. record. Ironically, appellant to the station- had come given on direct exami- account was 5.The first report his own to that his wallet house on nation; explanation came on cross- further Clearly Captain missing. skeptical, Lewis examination. voluntary appellant state- warned and took Though marked as an exhibit ment from him. agreed ride, law of circumstantial evidence where the give appellant dropped him Denny’s off at a Restaurant. It was relying supply on the admission to when appellant got ready pay for his fact. inculpatory of the main Ri meal at the that he realized restaurant his dyolph, supra; Hielscher missing. appel- billfold was At close of Martinez v. (Tex.Cr.App.1973); lant’s sides rested. testimony, both 151 Tex.Cr.R. S.W.2d 387 (1948).

Appellant request his timely made trial court to include instruction on cir- an Even if an accused admits to the commis cumstantial request evidence. Such was re- of a crime “it be shown sion jected. Then, appellant timely objected to and the confession the accused evidence the trial court’s failure to include the cir- is the same that the crime admitted crime cumstantial aspect being tried if the for which the defendant is 36.15, of law as Article required V.A. given. is not circumstantial evidence appellant’s C.C.P. The trial court overruled it of inference from only by process If objection. the admission that can determined Appellant now -contends that the trial offense, the accused committed the court committed error in failing reversible evi give court should the circumstantial to submit a evidence charge charge.”6 Ridyolph, supra. also dence to the jury because there was no direct Casey (Tex.Cr.App. 523 S.W.2d appellant from source that 1975); Hielscher, Martinez, supra; and su- burglarized The Shop, alleged 429 Pawn pra. agree. State’s indictment. We *5 While it instant case is clear in the a Generally, proof that defendant has ad- appellant’s admission is direct evidence that mitted or having burglarized confessed to a participated he in the commission of an building is not direct and offense, it is clear that it does not equally evidence of the main inculpatory fact and a constitute direct evidence that he was charge on circumstantial evidence is not of The guilty burglary 439 Pawn required. State, v. Richardson 600 S.W.2d Shop. Casey, supra. 818 (Tex.Cr.App.1980); State, v. Ridyolph then, is inquiry, Our next to consider 545 784 (Tex.Cr.App.1977); S.W.2d v. Swift whether the case falls with- evidence in the State, 509 (Tex.Cr.App.1974); S.W.2d 586 exception requirement in a narrow State, Corbett (Tex.Cr. v. 493 S.W.2d 940 a circumstantial evidence State, App.1973); v. 459 649 Steel S.W.2d to mandatory proved if the main fact be (Tex.Cr.App.1970). The admission or con- only by established inferences from other fession must unequivocally admit the com- facts, State, Chapin 167 announced in mission of very charged same act (1959).7 order to constitute Tex.Cr.R. 320 S.W.2d Only direct evidence. Chapin instance is held in that when the facts the trial court relieved of Court circumstances, the necessity instructing established, of on the though they emphasis throughout by responded supplied 6. All with the in “a deceased who low opinion mumbling writer of this unless otherwise indi- his usual voice when voice similar to right cated. intoxicated and said that was all for body go them to home.” The deceased’s was Chapin, supra, autopsy In the evidence illustrated a found five later in his car and an hours longstanding enmity between the accused and of death established that the cause was two night late deceased which ended one when stab The accused admit- wounds to the chest. feeling by ill was reactivated the deceased. angered ted that he was deceased’s say “ought The accused was he names, him, heard calling him deceased hit and after kill” the his deceased “or cut throat.” There- opened he knife two fell into the his and the after, two witnesses observed accused en- However, fighting. automobile the defendant fight ter the where a deceased’s vehicle fist chest, stabbing in the admit- denied deceased ensued; however, saw the no witness accused ting only “might cut the deceased that he have fight, stab the deceased. the accused After on the wrist.” spoke exited the two vehicle and the witnesses morning Entry hours of March one to another relationship stand in such building through to be drawn was made a hole only logical that the conclusion into the inflicted the roof, through therefrom is that the accused exit was the back in the while on the fatal then failure to injury, site, pawnshop. entry door of the At the con- of evidence does not law circumstantial boots, saw, pair located a of a officers a rule The rationale of such stitute error.8 drill, had guns and a chisel. A number obvious; is deter- apparent what is less glass display from cases been removed thereof, application mining appropriate The stolen hand- building. front of the sup- though sufficient circumstances were not found. guns guilt may port jury finding an inferred surrounding actu- of the details Many excluding every nevertheless fall short Shop Pawn are burglary of The 439 al Indeed, it is hypothesis.9 other reasonable missing appellant’s from decla- found to be right to the in such a case that the accused’s no statement makes Appellant’s ration. in- circumstantial evidence submission of a offense, he committed the mention of when State, Frazier v. struction is crucial. See Further- specific time mentioned. nor is Hielsch- (Tex.Cr.App.1978); S.W.2d name, more, give does not' appellant er, supra. he description pawnshop location application the correct perpetuating And, the record does finally, burglarized. law, must in a “each case principles these or the other whether way indicate one facts,” its own Patter measure be tested area had recent- any pawnshop other (Tex.Cr. son v. S.W.2d burglar. to a handguns lost ly the admission App.1967), considering Ales v. the other evidence. light appellant all evidence linked fingerprint No (Tex.Cr.App.1979); 587 S.W.2d burglary of The 439 to the scene of (Tex.Cr. Campbell 545 S.W.2d 791 Shop. Compare Pawn Swift supra; Hogan v. App.1977); Ridyolph, Appellant (Tex.Cr.App.1974). S.W.2d (Tex.Cr.App.1973). by any witness to neither connected flight there- burglary,10 nor to scene of the case, appellant told another In the instant cover his attempt from or other pos- pawnshop, burglarized that he had in the offense.11 participation that he had pistols six thirty sessed *6 link between any direct failed to establish pistols rid of the arrangements get to made of the crime12 any fruit appellant for “around selling them $1200.00.” was of the crime instrumentality Pawn that The 439 evidence disclosed Other appellant.13 early ultimately traced during the Shop burglarized was State, (Tex.Cr.App. many 846 v. restated different 8. This rule has been 1971). ways, ultimately, come to be known but it has rule,” juxtaposition a rule “which as “the close Ales, Ridyolph, supra; supra; Compare Ho 10. necessity basically dispenses for a with the Patterson, Steel, supra; supra; supra; gan, facts instruction where King supra. Compare Chapin, also v. closely proven main fact related to the are so 1979) (Tex.Cr.App. in which the 585 S.W.2d equivalent guilt so as to be the essential connecting appel- testimony of two witnesses testimony.” v. 576 S.W.2d Frazier direct prior to the a few minutes to the scene lant discovery 1978). (Tex.Cr.App. theft, precise of the constituted regard that case and in this between distinction being facts between the “There is a difference 9. the one before us. juxtaposition inference to warrant an in such a being juxtaposition guilt in such a and facts supra; supra; Ridyolph, Compare Campbell, 11. testimony. equivalent The of direct as to (Tex.Cr.App. Knight S.W.2d 101 former, strong they or how how are no matter Corbett, 1975); supra. accused, justi guilt cannot is the of the certain fy charge evi on circumstantial a failure to Corbett, Swift, supra; supra; Pat- Compare of facts will occur dence. The latter set terson, supra. logically it is where the evidence is such thing practically virtual same as direct Ales, supra; Ridyolph, Compare supra; ” Riggins probandum. the factum evidence of (Tex.Cr.App. 515 S.W.2d Sloan was ing, panel of this Court held reversal appel- appeal argues On show appellant’s lant’s admissions were sufficient for failure to submit required appellant’s burglary Shop. of The 439 Pawn evi- charge on circumstantial requested part: in relevant The State’s brief states rehearing, we decline to follow dence. On identity burglary “The of the is suffi- disposition appeal. original shown the admission that a ciently abolishing the re- in favor of arguments when con- pawn shop burglarized of a circumstantial quirement property with the identity sidered hold meritorious and we now charge are bill- finding Appellant’s taken and In so hold- improper. that such a fold, license, keys driver’s car and boots join growing trend of state ing, we at the scene.” courts on this issue. While not intended as a confes- apparently dissenting his by Judge Dally As noted in error, agree sion of we are constrained to in Richardson v. 600 S.W.2d opinion Hielscher, supra. with this statement. See most federal courts (Tex.Cr.App.1980), resolving relegated was indeed evidence, charge on circumstantial refuse to appellant’s guilt the issue of the bur- —that Supreme Court has and the United States he glary participation admitted his given similar the one held that a 439 Pawn burglary was in fact of The The federal unnecessary. in this state is are, Shop process of inference. We —to in Holland v. United rule was announced therefore, unable to reach the conclusion States, 99 L.Ed. 348 U.S. S.Ct. that the case was not one of circum- State’s (1954) following language: evidence, Martinez, stantial and such supra, assail the refusal of degree clearly petitioners of doubt dictated the submis- “The Frazi- appellant’s requested charge. judge sion of to instruct that where the the trial er, supra. evidence is circumstantial government’s every must be such as to exclude reasona-

We hold that “where must be in- guilt. other than that of hypothesis ble ferred from circumstances in type for this support There is some give trial court has the duty to decisions, lower court instruction regarding law of circumstantial evi- rule is that where the dence, but the better duty by and it is not relieved of such instructed on the standards may virtue of the fact that circumstances Hielscher, an additional strongly point to the accused.” for reasonable such 308. In supra, refusing appel- to submit circumstantial evidence is instruction on herein, trial requested charge lant’s incorrect." confusing and court committed reversible error.14 Clements, also, States v. United regard, judg-

For the error (5th Cir.1979); F.2d 1030 United States and this ment of conviction is reversed (5th Cir.1973); 2 Stokes, C. 471 F.2d *7 cause is remanded. Procedure, and Wright, Federal Practice 493, p. 319. Sec. J., ODOM, dissents. Hol- following states have followed court en banc.

Before the of a abolishing requirement land in instructed charge where ON STATE’S MOTION OPINION Alaska, doubt standard: on the reasonable FOR REHEARING Arizona, (1966); State, 420 P.2d 465 Allen v. ODOM, Judge. 386, Harvill, 476 P.2d 841 106 Ariz. v. State State, Arkansas, 249 Ark. Murray v. (1970); appeal original submission of this On (But concur- (1971); 438 see 887, 462 burglary of a build- S.W.2d from a conviction to submit Swift, Chapin, reversal on the failure 1974); supra; Hogan, supra; Court’s obviates evidence supra. a circumstantial need for us to address ground appellant’s other prior regarding convictions. the use of of error 198 State, 126,

ring opinion 551, v. Simmons 255 Ark. 157 N.Y.S.2d 138 N.E.2d 794. In- 82, Colorado, 498 870); People v. deed, the rationale of the decision in Hol- Bennett, 125, (1970); 183 Colo. 515 P.2d 466 very point: land focused on this Delaware, Henry v. 298 A.2d 327 “Circumstantial evidence in this respect (1972); Hawaii, Bush, State v. 58 Hawaii intrinsically no different from testimo- 340, Iowa, 569 (1977); P.2d 349 v. State nial evidence. Admittedly, circumstan- O’Connell, (1979); Kansas, 275 N.W.2d 197 tial may evidence in some cases point to a Wilkins, 145, State v. 215 Kan. 523 P.2d 728 wholly incorrect equal- result. Yet this is (1974); Maine, Jackson, v. 331 State A.2d ly true of testimonial evidence. In both (1975); Massachusetts, 361 Kinney, Com. v. instances, asked to weigh -Mass.App.-, (1981); 423 N.E.2d 1017 correctly points chances that the evidence Minnesota, Turnipseed, State v. 297 N.W.2d against possibility of inaccu- Nevada, (1980); 308 Vincze v. 86 both, racy ambiguous inference. In 546, (1970); Jersey, Nev. 472 P.2d 936 New experience must use its 19, v. Ray, State 43 N.J. 202 A.2d 425 people weighing and events in the proba- (1964); Mexico, Bell, New State v. 90 N.M. bilities. If the jury beyond is convinced 134, (1977); Oklahoma, 560 P.2d 925 John- we can no require (Okl.Cr.1981); son v. 632 P.2d 1231 (citations omitted.) more.” Draves, Oregon, 248, Or.App. State v. 18 (1974); Island, 524 P.2d 1225 Rhode State v. Holland, 140, See 348 U.S. at S.Ct. (1979); Utah, Roddy, 401 A.2d 23 v. State require 137. To on circumstan- Eagle, (1980); Vermont, 611 P.2d 1211 tial evidence disregards principle by Derouchie, 437, v. State 140 Vt. 440 A.2d erroneously suggesting “that of cir- (1981); Washington, v. Gosby, State subject cumstantial evidence is to a more (1975); Wash.2d 539 P.2d 680 Wyo- rigorous proof by standard than is direct ming, Blakely (1975). v. 542 P.2d 857 LeClair, testimonial evidence.” v. State also, York, Gonzalez, People See New v. (Maine 1981). A.2d 182 This rationale was N.Y.2d N.Y.S.2d 426 N.E.2d expressed in several other state federal (1981) (concurring opinion with three previous holdings court decisions where judges joining, Holland for citing proposi- support of the circumstantial tion that adequate instruction on reasonable charge were overruled. dispenses doubt with need for circumstan- abolishing charge, the Arizona Su- Note, tial charge.); the Circum- Harvill, preme Court noted in State Charge stantial Evidence in Texas Criminal (1970), requir- Ariz. 476 P.2d 841 Doctrine, Retrograde Cases: A 55 Tex.L. ing such a was “a refinement (1977). Rev. 1255 laymen suppos- serves to confuse into abolishing require The basis for should use circumstantial evi- ment of an instruction is that “[circum testimonial,” citing dence otherwise than strong stantial evidence is often as Becker, (2nd United 62 F.2d 1007 States conclusive understanding direct Cir.1933). also, Jefferies, parte Ex positive evidence.” Law v. (1912); Okl.Cr. 124 P. 924 (1870). general Tex. State courts in (1975). Gosby, 85 539 P.2d 680 Wash.2d recognized have that circumstantial evi persuasively This was most ex- principle may equal greater weight dence have if not Wigmore: Professor pressed by than direct evidence. 1 Wharton’s Criminal there are no rules *8 “It can be said that 6, p. Evidence also Corbett v. Sec. See for system prescribing in our of 457, 409, People, 153 Colo. 387 P.2d cert. any general the jury precise the effect 939, 1346, denied 377 84 12 U.S. S.Ct. 302; far as special or class of evidence. So v. 2 Schonrog, L.Ed.2d State Conn.Cir. us, 546; logic and assist their con- 239, O'Connell, psychology 197 A.2d v. 275 State 197; Wood, 778, ques- that it is out of the N.W.2d v. 190 Kan. clusions show State 536; Eckert, ascribing v. assertion People general 378 P.2d 2 N.Y.2d tion to make a

199 courts, modern trend in state this Court class as to the the greater weight one of one or for probative recognizing purposes proving other. effect is pieces doubt, more of either sort of evidence a reasonable direct and guilt beyond complex. depends upon considerations too equally proba- evidence are only point can out that each class Science jurors aiding applying tive. Rather than special dangers special has its and its standard, doubt an addition- the reasonable advantages.” on circumstantial evidence focus- charge al theory Evidence, 26, (3d ing hypothesis” on the “reasonable Wigmore p. 1 on 401 Sec. jurors to distract from exam- 1940). only ed. also 598 serves See Galvan (J. (Tex.Cr.App.1979) Douglas, proof 624 standard of as the ining proper S.W.2d the Here, dissenting opinion). their deliberations. primary focus of on the properly the instructed jury further holding today Our finds proof, presumption state’s burden of one support in the fact that there is but that an ac- requirement innocence and the proof standard of for criminal convictions be entered if there exists a reasona- quittal on instructed where appellant’s guilt.1 ble doubt as standard, charge a on circumstantial valueless and invites confusion. The rule should be that circum Holland, v. Beck supra; See United States if may stantial evidence alone suffice er, (2d Cir.1933); 62 F.2d 1007 arising prove the inferences therefrom 308, Costa, (Kan. 228 Kan. 613 P.2d 1359 question beyond fact in a reasonable doubt. 1980); 2497, Wigmore, Evidence Sec. is, totality should consider the That (3d 1940). constitutionally 318-20 ed. direct or circumstantial evidence and required proof burden of of criminal cases inferences which be may the reasonable “is that elements of State establish all therefrom, in determining drawn whether it the offense a reasonable doubt.” beyond guilt beyond was sufficient to establish (Tex.Cr. Crocker v. See, e.g. v. Coo reasonable doubt. Comm. App.1978) (Opinion Rehearing). 365, (Pa. per, Pa.Super. 411 A.2d 762 Wilbur, 684, Mullaney v. U.S. S.Ct. 129, Sullivan, 1979); 472 Pa. Comm. 44 L.Ed.2d 508 In re (1975); Winship, (Pa.1977); Suggs, 289 A.2d 468 Comm. v. 25 L.Ed.2d 368 U.S. S.Ct. (Pa.1981).2 A (1970). Pa.Super. 432 A.2d 1042 By following the federal rule and Holland, part charge prac- charge another 1. In the trial court followed local not because it, by giving dispenses tice an elaborate definition of reason- it is with the need for but because jury charge. Although able this confusing jury by suggesting doubt inherently to a jurisdiction practice, does not follow that the rea- that a burden of than different expansive of such an is not existence necessarily definition applies standard in circumstan- sonable doubt finding precedent condition cases. This inherent confusion tial evidence confus- on circumstantial evidence to be point Missouri court. overlooked potential and incorrect. The conflict be- tween the reasonable doubt standard and the Many have relied this rationale states cre- circumstantial evidence which can sufficiency holding of evidence that the test during jury ate confusion deliberations is the appeal convic- is the same even where the crux of Holland and that confusion arises irre- circumstantial evidence. See tion is based on spective of the inclusion of a definition of rea- O’Connell, 197, and cases 275 N.W.2d State v. sonable doubt. The minor difference between Maryland example, in cited therein. For jurisdiction practice in Holland and the sufficiency is stated in Metz v. test for defining insignificant. reasonable doubt is Md.App. A.2d as follows: Thus, should be the issue of whether justify in law to a convic- “To be sufficient guided by is an a definition of reasonable doubt tion, admissible evidence adduced to our determination that a issue extraneous circumstantially, support directly, or show improper. circumstantial evidence of, proved the facts to a rational inference Although Supreme of Missouri has fairly be the trier of fact could from which require interpreted an elaborate def- Holland beyond a reasonable convinced inition of the reasonable doubt standard before charged.” the offense defendant’s “dispensing” with the circumstantial evidence rejected specifically the contention (Mo. charge, Lasley, The court State v. 583 S.W.2d 511 applied the cir- is whether 1979), the test to be we abolish the circumstantial evidence *9 200 requires that the circumstanc- sel and did not affirmatively waive the exclude,

es . must certainty, right to moral (citations to counsel.” omitted.) every other reasonable hypothesis except being There no evidence in support ap- of defendant’s is a confusing ...” pellant’s contention, no reversible error is and improper charge where the jury is presented. instructed properly on the reasonable doubt The State’s motion for rehearing grant- is standard proof. The trial court properly ed; judgment aside; of reversal is set refused to instruct the on jury the “reason- and, judgment is affirmed. hypothesis” Thus, able theory. the State’s motion for rehearing granted and appel- MILLER, Judge, concurring and dissent- ground lant’s of error on this issue is over- ing. ruled. Today majority dispenses with the It necessary now becomes to address necessity instructing the jury on the law the remaining ground of error. Appellant of circumstantial legal a Texas attacks the admission prior convictions old, tradition over a years hundred yet during guilt-innocence phase of the tri continues the prohibition against instruct- al. It is procedure by contended that jury on a definition of reasonable which those convictions were obtained in doubt, legal a Texas tradition over a hun- Virginia were in violation of Texas law and dred old. The years logic for the latter is that because there was no evidence before cursorily explained in a footnote purporting law, regarding Virginia court it pre distinguish the Holland decision. Hol- sumed to Appel be same as Texas law. States, land v. United 75 U.S. S.Ct. attempting lant is to collaterally attack the (1954). The majority L.Ed. con- prior out-of-state convictions because he cludes in that footnote that Holland fol- was fifteen at the time of commission and practice lowed a local of giving an elaborate conviction and the record contains no certi doubt, definition of reasonable a conclusion fication from Juvenile Court to Adult Felo apparently imaginative drawn from an in- ny Court. He argues the convictions to be terpretation of footnote two in State void, drawing an analogy convictions en Lasley, (Mo.1979). As will tered where a defendant is without the aid below, pointed out this conclusion is not Appellant’s counsel. argument is with supported by legal research. The attack, out merit. In this collateral as with Holland, ignores wording further corpus a habeas proceeding, it is his burden “But the better rule is that where the to demonstrate that the convictions are void instructed on the standards for by showing procedure improp that the was reasonable such an additional in- Rains, er in In Ex Virginia. parte 555 struction on circumstantial evidence is con- S.W.2d 478 (Tex.Cr.App.1977), was noted: ...,” Holland, fusing supra, and incorrect 139-140, at 137 (empha-

“The burden of in a habeas cor- U.S. S.Ct. pus proceeding upon supplied), sis and states that petitioner. It fact petitioner incumbent here Texas does not define reasonable doubt is aby preponderance of the evidence to insignificant. agree While I do show indigent, that he was had no coun- circumstantial evidence is “confus- with, (1978); Maryland, cumstances are consistent or are such as Metz v. 9 Md. every hypothesis App. (1970); Michigan, People to exclude or theo- 262 A.2d 331 ry implicit Nash, Mich.App. of innocence. It seems that in states 313 N.W.2d 307 applying assessing Nebraska, Buchanan, (1981); but one standard eviden- Neb. tiary sufficiency appeal, argument (1981); Pennsylvania, on an 312 N.W.2d 684 submitting varying charge Sullivan, Com. v. 472 Pa. 371 A.2d 468 rejected. (1977). evidence would be Compare Kolsky, United States v. Thus, although we do not reach the (5th Cir.1970) (no jury issue F.2d 1111 instruction review, appellate persuasive these cases are appeal but standard on varies in circumstantial e.g., the issue of instructions. See District cases.) Columbia, States, Byrd v. United 388 A.2d *10 ing improper”1 and and should abol- proposition be reasonable doubt should ished, I agree don’t the majority’s not be defined in criminal cases. A minori- implied assumption that a is not con- jury ty jurisdictions agree.2 of state But fused naked and undefined term Court, Holland, Supreme United States words, “reasonable doubt.” In other to, least, supra, very seems at the sanction go enough does not far up to clear as correct a definition which is now con- the confusion of they complain. which Blackmar, tained in Devitt Federal Instructions, Jury

We Practice and 11.- today seem to Section apply ap- a Band-Aid us; proach to the (3d 1977), ultimate issue before previously Ed. 11.01 Section is, the issue of what do we tell a jury when (2d 1970). Ed. This can be definition sub- ask, “How convinced must I we be?” worded as stantially the kind of doubt that submit that we should answer the question would make a reasonable person hesitate to itself in such a way jury that a will be act in the of their more conduct serious and informed both the simplest and most important personal affairs. This concept complete manner possible, given inher- jury charge reasonable doubt as a has been ent English limits of the language. either sanctioned or mandated in every fed-

Presiding Judge every city eral courtroom in in forty-seven Onion’s dissent cites a long list of Texas cases that stand for the fifty Perhaps our states.3 the United majority opinion, 1. See employ to courts the ‘would not hesitate’ ¶ language in their reasonable doubt instruc- Phrases, pp. 2. See 36 Words & 510-512. tions .... Circuit, Drake, 3. First see United States v. (1st Cir.1982). F.2d 15 “Despite the clear direction from this Court Circuit, [willing Magna- to Second see avoid the form to of reasona- United States v. act] no, (2nd Cir.1976), instruction, 543 F.2d 431 “This court has ble doubt the district court refus- repeatedly expressed desirability Tobin, jury.” of Hol- ed to revise its language suggested land’s ‘hesitate to act’ supra, (Emphasis supplied) at 694 preferable phraseolo- its use as Circuit, alternative Further for the Fifth in United States gies.” Magnano, See, supra, also, at 436. Clayton, (5th Cir.1981), 643 F.2d 1071 Joly, (2nd United States v. 493 F.2d 672 Cir. says: court 1974), “A reasonable doubt means a doubt suf- “This court has held ... that reasonable prudent person ficient to cause a to hesitate to explained doubt is better kind of doubt important act in the most affairs of his or her person that would make a reasonable hesi- Joly, supra, life.” at footnote 10. Clayton, (Cita- supra, tate to act.” at 1075. Circuit, Restaino, Third see United States v. omitted) tions (3rd Cir.1966). 369 F.2d Circuit, Bidlack, Sixth see United States v. Circuit, Burgess, Fourth see United States v. (6th Cir.1980). 627 F.2d 1093 Appeals F.2d 1398 United States Court of Circuit, Eighth see United States v. Wilker- slip opinion curiam, (per number 73-1983 un- son, (8th Cir.1982). 691 F.2d 425 published) (4th Cir.1974), where the Circuit, Miller, Ninth see United States v. charge read: (9th Cir.1982), says: F.2d 652 which upon “A reasonable doubt is a doubt based Robinson, “In Robinson 546 F.2d [U.S. sense, reason and common the kind of doubt denied, (9th Cir.1976), 313-314 cert. person that would make a reasonable hesi- U.S. 97 S.Ct. 51 L.Ed.2d 597 beyond tate to act. Proof a reasonable doubt (1977) ], expressly approved we a definition must, therefore, of such a convinc- of reasonable doubt similar to that used be- you willing character that would be again uphold propriety low. We rely unhesitatingly and act language, ‘hesitate to act’ and rule that the important your most own affairs.” Miller, jury charge adequate.” supra, and the court stated: correctly “We conclude that the trial court portions The relevant are con- instructed the Burgess, supra. on reasonable doubt.” opinion tained in the en, at footnotes six and sev- (Emphasis supplied) Circuit, Breedlove, as follows: Fifth see United States v. jury charge was as (5th Cir.1978); see, also, issue “[6] 576 F.2d 57 United Tobin, (5th Cir.1978), follows: States v. 576 F.2d 687 presumption is suf- which states: ‘The of innocence alone jurors willing acquit “This Court ficient to unless the are satis- criticized the ‘would be instruction, beyond urged form act’ fied the De- district a reasonable doubt of States Court of Appeals charge] for the Tenth dence permit by respondent Cir- cited Holland, (from cuit supra, arose) said instructions phrase define the *11 doubt’, it best in United v. Leaphart, States ‘reasonable most of the cases from (10th jurisdictions F.2d 747 other Cir.1975): cited the respon- dent indicate that some sort of elabora- The time has unquestionably arrived tion on phrase ‘reasonable doubt’ was Holland, Smaldone, after and Pepe made the trial level and hedged the the trial courts to change this [reasonable abrogation of the circumstantial evidence instruction and to couch it in the doubt] qualification instruction with the that terms prescribed by the Supreme Court adequate- is not needed where the jury of the United (Emphasis States.” sup- ly instructed on the standards for reason- plied) able doubt.” Lasley, supra. (Emphasis Leaphart, supra, at 750.4 (Citations supplied) omitted) Flores v. In 487 S.W.2d fact, by abandoning the circumstantial (Tex.Cr.App.1972), this court reiterated the evidence and further declining to proposition that “this court is not bound define reasonable doubt for a jury, we to- decisions of lower federal courts.” Not join day very small minority of states who bound, sure, to be but how can we be so likewise define concept. neither We also obstinant as to occasionally guided? be not join Circuit, the Seventh which stands alone The majority’s join statement that “we in the face of the other ten federal circuit the growing trend of state courts” is mis- courts. leading. As stated by Supreme It is further noted that no trend to abol- Lasley v. Missouri, 583 S.W.2d practice ish the of defining reasonable (1979), majori- cited in footnote 2 by the juries doubt to occurring, since in the last ty: years single ten not a state which defines most Missouri, “Unlike jurisdic- juries reasonable doubt to has abolished the

tions [abolishing the circumstantial evi- practice.5 then Why are we joining the impartial guilt beyond fendant’s after a careful and Defendant’s a reasonable doubt consideration of all the evidence in the from all case. the evidence.’ required ‘It upheld is not “This instruction is similar to Government James, prove guilt beyond (9th possible in U.S. v. all 576 F.2d 227 n. 2 doubt. The 1978)” test is Cir. one of reasonable doubt. Miller, (9th United States v. ‘A 688 F.2d 652 reasonable doubt is a Cir. doubt based on 1982). reason and common sense. It’s the kind of Leaphart, Tenth Circuit see 513 F.2d 747 person doubt that would make a reasonable (10th Cir.1975). hesitate to act. Circuit, Jones, Eleventh see United States v. beyond must, ‘Proof a reasonable doubt (11th Cir.1981). 663 F.2d 567 therefore, convincing be of such a character you willing rely would be and act Holland, supra; Smaldone, U.S. v. 485 F.2d upon unhesitatingly important in the most (10th 1973); Pepe, Cir. U.S. 501 F.2d your own affairs.’ (10th 1974). Cir. “This instruction inis substance that 1at Blackmar, Jury E. Devitt & C. Federal Prac- (Alaska 5. See Rivett v. 578 P.2d 946 Instructions, 11.14, (3d tice and at 310-311 § 1978), prudent “doubt would cause [which] Ed.1977). acting men to hesitate before in matters of pro- The court’s instruction “[7] further ”, importance to themselves’ Laird v. vided: (1972); 251 Ark. 476 S.W.2d 811 Alvarez types ‘There are two of evidence on which (Colo.1982); v. Conner, 653 P.2d 1127 State v. you can base a verdict. One (Iowa 1976); N.W.2d Hocken testimony direct that is the of an bury Kentucky, (Ky.1978) 565 S.W.2d 448 eyewitness. The other is circumstantial evi- Palmore, citing ries, Kentucky Instructions to Ju dence, of a chain of circumstances 11.01; Troiana, § A.2d pointing to the commission of offense. [the] Donovan, (Me.1980); State v. 120 N.H. rule, general ‘As a the law makes no dis- case, (1980) 419 A.2d 1102 “In the instant tinction between direct and circumstantial judge trial instructed the that reasonable simply requires evidence but before convict- doubt is ‘the kind of doubt that would make a a Defendant the be satisfied of the person hesitate to act some- minority jurisdictions daggers small that neither Give me the ...

charge the jury withal; on circumstantial grooms I’ll the faces of the gild nor define reasonable doubt to them? guilt. For it must seem their us, Macbeth,

Returning to the ultimate issue before Act Shakespeare, scene which is what do we tell a when panel submission a of this original On ask, be?”, “How convinced must we I sub- court reversed this cause for the refusal of mit that in both direct and circumstantial law give the trial court cases, when either requested by dis- judge of circumstantial evidence. One motion, party or on the court’s own we The dis- opinion. sented without written require should the definition cause, attorney, prosecuted trict who *12 compliance reasonable doubt in substantial asked in his motion for leave to file a mo- (see examples three) in footnote with the tion for rehearing only re-consideration “hesitate to act” standard.6 argument charge of his earlier that such a in this required by was not the evidence ONION, Presiding Judge, dissenting. in- Prosecuting Attorney, case. The State Lady Macbeth: alia, “wipe away” ter asks this court to Why you did these from bring daggers This re- jurisprudence. from our the place? quest recently rejected by has been this them, They go carry must lie there: and State, court. Richardson v. 818 S.W.2d smear (Tex.Cr.App.1980); Galvan grooms The sleepy with blood. (Tex.Cr.App.1979). S.W.2d 624 Macbeth: I’ll go no more .... panel opinion An examination shows the Lady Macbeth: in in the instant case was accordance with thing great importance party assigned of to him.’ This ‘hesi in decided favor of the who is language widespread tate to act’ proof. Keeping has received of in burden mind approval generally prefera and is deemed to be jury judge credibility is the sole of evi- Donovan, phraseologies,” ble to alternative su weight given dence and of the to be to evidence pra, 407, Naranjo, at 1105. State v. 94 N.M. solely and must base its assuredness evidence, on the (1980); 611 P.2d 1101 Commonwealth v. Gart if the evidence fails to assure the ner, 512, (1977), 475 Pa. 381 A.2d 114 wherein by degree required proof, the burden of read “a reasonable doubt one that question in then the against shall find the issue reasonably would arise and cause a careful and party assigned who is that burden person yourself sensitive such as to hesitate proof. of acting upon importance before your a matter of in recognizes The law three distinct burdens of commented, own affairs.” And the court proof: “appellant contends that sentence should [this] by preponderance Proof of the evidence highest impor- have referred to ‘a matter of the that, degree proof which is defined as that tance’, however, specifically approved we have whole, when taken as a shows that a fact charges virtually the exact words used sought proved probable to be more than not. the trial court here.” convincing Proof clear degree proof which is defined as that 6. We should also do more. jury’s produce will mind a firm belief as doubt, although This definition of reasonable allegation sought to the truth of the to be all, better than no definition at becomes almost standard, established. This is an intermediate crystal put perspective clear when with the falling preponderance between of the evi- proof “preponderance burdens of of the evi- dence standard and the reasonable doubt stan- convincing dence” “clear and evidence.” Addington, already dard. State v. (Tex.1979). 588 S.W.2d 569 juries The latter two are defined to applicable, explaining cases where but all three beyond pro- Proof one voir dire would show the reasonable doubt which natural gression, fact, degree degree in law and in defined as that that will erase juror which a must be convinced before he can in the mind of the the kind of doubt that person decide an issue. would make a hesitate to act in the The law mandates important issues are decided conduct of their more serious and personal according proof.” to “burdens of term affairs. proof’ degree “burden of is used to define that Perspective coupled with definition is the by jury of assuredness that must be reached question. best answer to our ultimate they may before find that an issue is to be

precedents prevailing 449, for well over a centu- Brown v. 126 Tex.Cr.R. ry. Nevertheless, seizes (1934); S.W.2d Ramos v. require- case as a vehicle to abolish the (Tex.Cr.App.1972) (on S.W.2d State’s ment cautionary jury of a on the law of Rehearing).” Motion for circumstantial evidence for the stated rea- 449, 453, In Brown v. 126 Tex.Cr.R. (1) currently popular thing sons that it is a (1934), 72 S.W.2d this court stated: do, (2) giving long ap- evidence is direct evi- “[Circumstantial proved deposed dence as to the facts to but indirect now somehow inherently confusing even probandum.” as to the factum also when considered with a nondefinitional (Tex. Ramos v. 478 S.W.2d charge on reasonable doubt. Cr.App.1972). It is well settled that the distinction be- Famber, 358 Mo. tween the circumstantial and direct evi- (1948), Supreme Missouri dence and the Texas first ex- practice be direct evi- Court wrote it had defined plored. “ dence as ‘evidence which if believed Evidence, ed., In Wharton’s Criminal 13th proves the existence of the fact in issue I, Vol. it is p. written: § presumption, without inference or while cir- “A distinction is drawn between direct cumstantial evidence is without *13 evidence and circumstantial evidence. going directly prove existence of a Evidence is direct when the witness testi- fact, gives logical rise to a inference that ” fies as dispute to the facts in on the basis such does fact exist.’ of his own knowledge of them. Circum- Gaffney, In Note: The Circumstantial stantial evidence assumes a witness who Cases; Charge in Texas Evidence Criminal has no knowledge dispute, of the facts in Review, Doctrine, Retrograde A Texas Law but knows of other facts and circum- 55, 1255, 1262, Vol. it is written: which, evidence, stances when offered in effect, “In evidence constitutes a direct permit may the fact finder to infer that an imme- triggers subset of evidence that dispute facts in existed or did not proposition, diate inference of a while if, exist. The inference will be drawn in a sub- represents circumstantial evidence experience accordance with the common attenuated gives set that rise to more mankind, a reasonable relationship longer inferences in that either a time or may perceived between the known longer necessary chain of elements is facts and circumstances and the facts complete particular the inference to a

sought to be proved.” proposition.” State, In Crawford v. writers have many While courts and

(Tex.Cr.App.1973), it was written: evi- agreed that circumstantial and direct “This court has for some time held value,1 it equivalent probative dence have the distinction between circumstantial ev- has said the four basic reasons for been idence and direct evidence is that (1) evidence are: distrust of circumstantial applies directly latter to the ultimate fact inherently less circumstantial evidence be proved, while circumstantial evi- fact; (2) in circumstan- proving accurate dence is the direct of a minor fact which, injustices in inference, gross tial evidence has led to by logical demonstrates (3) have a proved. past; people psychological fact to be Beason v. (1902); propensity Tex.Cr.R. S.W. 96 to weave theories from circum- recognized convincing long 1. Texas courts have the effica- in a criminal case as direct evi- Evidence, cy Tex.Jur.2d, p. of circumstantial evidence. Law dence.” 24 § (1870); Evidence, (3d 1970), Wigmore Tex. 37 Berrian v. 85 Tex.Cr.R. See also ed. (Tex.Cr.App.1919). pp. 212 S.W. 509 24-25 at 396-401. §§ very “Some circumstantial cases, may properly “In criminal a conviction you strong, a trout in the milk.” as when find be had on In- circumstantial evidence alone. Thoreau, Journal, Henry D. November deed, frequently just circumstantial evidence is stantial Having determining evidence and then to defend their established the test for (4) vanity pride; sufficiency theories because of or of circumstantial evidence to unpopular conviction, criminal cases often grizzly the court sustain a made clear juries lead to draw rash in order inferences that the cases that followed should be to establish A guilt. possible fifth reason is subject applicable. so on the where charged the general public distrust of convictions (1857), In Burrell v. 18 Tex. 713 circumstances of individu- possibly innocent as to the co-defendant Burns court reversed Gaffney, als. See Note: The Circumstan- circumstan- wholly upon whose case rested tial Evidence Charge in Texas Criminal loosely tial because the worded Doctrine, A Retrograde Cases: Texas Law cautionary charge on circumstantial evi- Review, 55, 1255, Yol. 1256-57. given by might given dence the court have Apparently following lead,2 Lord Hale’s impression the confused that direct Chief Justice of Massachusetts Shaw evidence existed. Burrell court did Webster, (5 Commonwealth v. 59 Mass. refusing court did not err in hold the trial Cush) (1850), adopted for the court the evi- requested charges requirement of a cautionary jury instruc- proper dence because were not tion on the law of circumstantial clear, however, The court made form. which soon became known as the “Webster where the case rested on circumstan- wholly Charge” spread and its use throughout “to tial evidence the defendant was entitled mid-nineteenth century United States. applicable given have the law to it adopted

Webster two rules. The first jury.” rule related to sufficiency of the evi- (1859), Brown v. 23 Tex. 195 dence to sustain a conviction based on cir- Supreme held that the defendant’s logi- cumstantial evidence. The second rule evi- requested charges on circumstantial cally followed the first for the were taken dence from commentaries entitled to applica- be informed of the law elementary authors and would have consti- *14 ble to the case.3 The rule second of Web- a of weight tuted comment required ster that the jury specif- should be given. if There was no error in the court ically instructed as to the first. In 1855 the refusing give requested charges. such Supreme Court, Texas which then had crim- cases, the earlier Following effect of jurisdiction, State, inal in Henderson v. State, Appeals of in Harrison v. Court 503, 514, adopted Tex. the first rule of (1879), held that the trial court Tex.App. Webster which expressed legal formula in reversibly refusing requested erred testing the sufficiency of circumstantial evidence. charges on circumstantial evidence which is still the test today. In year Appeals In the same of quoted Henderson the court approval Webster,4 State, (1879), Tex.App. test from which Hunt v. re- was and is the basis for the for the failure of the trial cautionary jury instruction versed case on the law of on the law circumstantial circumstantial evidence. The court to necessity part of such was not involved in the court wrote pertinent evidence. Henderson and it was not there pp. discussed. 235-236: Hale, by competent beyond 2. 2 M. Historia Placitorum Coronal. a reasonable doubt; is, (that the facts neces- all the facts’ 36.14, V.A.C.C.P., conclusion) 3. See and cf. Article sary and its to the ‘must be consistent forerunners. other and with the main fact with each circumstances, sought proved; to be and the respecting 4. “The result of the rules of law together, na- taken must be of a conclusive sufficiency the very of circumstantial evidence is ture, whole, satisfactory leading, to a on the concisely reporter well and stated conclusion, producing in effect a reason- in the case of The Commonwealth v. Web- certainty the accused able and moral ster, cited, before ‘In thus: order to warrant person no other committed the offense ” a conviction of a crime on circumstantial State, charged.’ See also Shultz v. 13 Tex. necessary evidence each fact to the conclu- (1855). sought proved sion to be established must be it already no new in the law of held error to refuse a principle “It is justify this a conviction character when proper asked in a upon State, circumstantial evidence alone case. Harrison v. The 6 Texas absolutely facts relied on must be incom- Ct.App. (Emphasis supplied.) 42.” the evidence is of a tion in which can juries the law of reasonable It is much more tive testimony from the circumstances in the conviction which probability, which will not suffice under and cause them upon their nite rule for their guidance sonable all the other reasonable guilt. Barnes v. The An will serve to testimony 342; part cannot ception of this exaction of the patible likely, many ter should be called to ^[368] verdict the law. Tollett v. The conviction is “In lead to but one ordinary charge upon incapable of the law Black v. The are prosecutions they convey facts, with the upon strong suspicion doubt, pass upon required alone; and without If inference — minds, impress isolated or be further instructed as to nothing this be sought upon informed to their minds a clear con- copied save the instances, innocence of the reach essential, hypothesis applicable explanation upon any Brown, positive to be instructed as to for ordinary legitimate a case of that charac- weigh drawn itself on their must so, their from the connected, 1 Texas proved certainly the law of rea- most carefully corpus —a to found their circumstantial character and in a prosecu- impress the rule as evidence, by conclusion than that of are not un- to the case. even conclusion. rule which some defi- law, inference or mere felonies, by posi- accused, statute, Ct.App. delicti, minds, Texas, Texas, when itself when from be- Tex. 182 ued at Tex.App. 702 give fore supplied.) reversal of the jury, evidence must nary cases. embodying ployed, what fact dence upon the reasonable doubt does in ordi- he cannot be of the law vouchsafes to wholly ing solely to the benefit of the tion is is to be invasion applicable the law was and effect of philosophic trial, of reasonable within the stantial After “The usual rule in relation to circum- prosecution. an instruction pp. they another degree when the evidence supra, alone, discussing circumstantial; and an cannot profession, evidence or sought evidence, (1874), regarded 237-238: can to all cases in which prohibition (1877), general language dissertation and the The failure of the court to error which will application doubt, *15 produce heard to specifically simply convict, just well as Cave v. certainty province and Chester v. judgment.” the cases of Burrell and And when rather as a rule of law which is a familiar one the Hunt court contin- cannot be deemed a materially prejudice giving which the of the Code as an informs the in their minds be- upon complain. of the jury, but against this branch of affect and therefore of which to a prisoners as a given, facts usually the nature instruction defendant, (Emphasis require humanity a convic- doctrine them is charge enur- It em- evi- one a Hunt immediately followed such that, can say beyond fore a reasona- State, 7 Tex.App. cases as Smith v. 382 doubt, ble them prisoner before State, (1879); Tex.App. Heath v. 7 464 perpetrated the act. And it is believed State, (1879); Tex.App. v. 7 581 Struckman adjudged that the cases in our fur- State State, (1880); Tex.App. Wallace v. 9 299 nish no a instance of conviction for a State, (1880); Tex.App. Early grave felony upon circumstantial testimo- State, (1880). Tex.App. In Barr v. alone, ny charge unless the of the court (1881), the conviction was reversed because plainly princi- directed the as to the ples govern charge of law which should on circumstantial evidence was them in conclusion; reaching their There the court we have defective and insufficient. wrote, referring case, judge the earlier case of Hender- In a Texas criminal must son: charge law of objects if the timely defendant “In this case (Henderson) whilst it is Ellis charge a thereon. See timely requests not decided what a charge on circumstan- State, (Tex.Cr.App.1977). 551 S.W.2d tial contain, evidence should appar- it is (Tex. Compare Mills v. 508 S.W.2d ent that in the opinion Supreme to so judge Failure of the trial Cr.App.1974). Court the charge was, in say Webster’s where the charge defendant is entitled to least, an appropriate instruction on such charge provides a basis for reversal. such subject; as was held this Court See, e.g., Ellis v. S.W.2d in Hampton 1 Texas Ct.App. 652 (Tex.Cr.App.1977); Moore v. (Tex.Cr.App.1976); Farris v. S.W.2d “It was not until decision of the case of State, 496 55 (Tex.Cr.App.1973). Hunt v. 7 Tex.Ct.App. that it cautionary jury instruction In Texas the was ever expressly decided in Texas that takes normally on circumstantial

in trials for felony where the following form: guilt depended alone on circumstantial “You instructed that in this case testimony the court are should on that character of on circumstantial evidence part evidence as a the state relies the law ” of the case .... In order to warrant a for a conviction. of a crime on circumstantial conviction goal in requiring cautionary in- evidence, the con- necessary each fact struction on the law of circumstantial evi- must be sought clusion to be established dence protect was to the criminally accused competent beyond a proved by from jury conjecture and speculation.5 is, doubt; (that all the facts reasonable The rules regarding discussed above conclusion) necessary the facts test for the determination sufficiency and, consistent with each other must be of the evidence to sustain a conviction must be of a conclusive together, taken based on circumstantial evidence and the nature, leading on the whole to a satisfac- necessity of a on circumstantial evi- effect, tory producing, conclusion and dence where required have been constantly certainty reasonable and moral applied until today. supporting The cases accused, person, no committed other these legion. rules are These rules have cases it charged. the offense But such prevailed for over 127 years this state as the circumstances not sufficient Supreme Court, Texas the original for, with, and therefore coincide account of Appeals and the Court Criminal of the defend- probable render Appeals have been courts of last resort exclude, to a moral cer- They ant. criminal matters. The practice under these hypothesis tainty, every other passed rules have many ap- the muster of and unless guilt; the defendant’s except pellate judges years. over the so, beyond a reasonable they do guilty.” the defendant not you will find practice, the use of the Under Texas, Pat- Bar of Texas Criminal prosecution’s case *16 required only when (1975). 0.01 Jury Charges, tern See § wholly upon cir- entirely, totally rests Jury Charges for Texas McClung, also evidence or relies on circum- cumstantial 260; 1 (1981), p. Criminal Practice the “main facts” prove stantial evidence 395; ed., 373.1, p. Anno.P.C.2d Branch’s State, § v. alleged of the crime. Ransonette Practice, Blackwell, and Texas 36, Morrison (Tex.Cr.App.1977), 43 550 S.W.2d Ed., Anno., 8, 8th cited; State, Vol. Forms 556 Criminal Shippy cases therein v. (Tex.Cr.App.1977). 246 S.W.2d 82.02, p. § State, Myers (1879); Tex.App. Hunt v. subject v. 6 1 Instructions on the of circumstantial State, supra. guard evidence should be framed as findings upon basing their mere surmises. from 208 State, charge given (Tex.Cr.App.1949); the above Pierce v. 159 Tex.

Normally innocence, 504, presumption instructions on 265 S.W.2d 601 (Tex.Cr.App. Cr.R. burden of doubt. proof, 1954); State, 521, reasonable Pigg v. 162 Tex.Cr.R. 287 McClung, Jury Charges and cf. for Texas (Tex.Cr.App.1956). 673 Cf. Whitson S.W.2d Practice, Criminal 242-243. This pp. State, v. 495 944 (Tex.Cr.App.1973). S.W.2d Code, V.T.C.A., usually part tracks in Penal only Thus in Texas a nondefinitional 38.03, (1974), 2.01 and Article V.A.C.C.P. § normally given on “reasonable doubt” is 1981, 2247, (Acts Leg., p. amended 67th [as a criminal case. 539) ch. These statutes are now identical ]. on it was held that early And omis and read: sion to law of circumstantial persons presumed “All are to be inno- evidence is not cured the ordinary person may cent and no be convicted of State, charge on reasonable doubt. Hunt v. an offense unless each element of the 212, Tex.App. (1879); 7 235-236 Wallace v. proved beyond offense is a reasonable State, 570, (1880); Tex.App. 7 574 Struck The fact doubt. that he has been arrest- State, 581, Tex.App. (1880). man v. 7 582 ed, confined, for, or indicted or otherwise also, practice Under this after a convic with, the offense no charged gives rise to tion, evidence case every guilt inference of at his trial.” necessarily be tested its own facts The term “reasonable doubt” is not nor the evidence sufficiency to determine the mally defined in Texas criminal case. A support the conviction. Earnhart v. host of cases hold that it should not be State, 551, (Tex.Cr.App. 575 554 S.W.2d See, State, e.g., Massey defined. v. 1 Tex. State, 1979); Stogsdill v. 552 481 S.W.2d App. 563, (Ct. 1877); 570 Appeals State, (Tex.Cr.App.1977); Moore v. 532 State, (1880); Fury Tex.App. v. 8 471 (Tex.Cr.App.1976); Higgins v. S.W.2d 333 State, Tex.App. (1880); McPhail v. 9 164 State, (Tex.Cr.App.1974); 515 268 S.W.2d State, (1880); Tex.App. Cohea v. 9 173 State, (Tex.Cr.App. Indo v. 502 S.W.2d 166 State, (1886); v. 20 315 Tex.App. Schultz 1973). A on circumstantial evi conviction State, 163, Johnson 27 11 Tex.App. v. S.W. dence, however, sustained if the cannot be State, (1889); 106 Lenert v. 63 563 S.W. proved every circumstances do not exclude State, 68 (Tex.Cr.App.1901); Holmes v. hypothesis except other reasonable 17, (Tex.Cr.App. 150 926 Tex.Cr.R. S.W. amount guilt of the accused State, 1134, 1912); v. Sanchez 69 Tex.Cr.R. strong suspicion proba or mere (Tex.Cr.App.1913); 153 1133 Marshall S.W. State, v. 489 bility is insufficient. Flores State, v. 76 Tex.Cr.R. 175 S.W. 154 Kinkle v. (Tex.Cr.App.1973); 901 State, S.W.2d (Tex.Cr.App.1915); Bennett v. 91 State, (Tex.Cr.App.1972); 704 S.W.2d (Tex.Cr.App.1922); Tex.Cr.R. S.W. 951 (Tex.Cr. Culmore v. 447 S.W.2d gu Tex.Cr.R. Sa Brock v. 162 Tex.Cr.R. (Tex.Cr.App.1923); Gallegos App.1969); 5.W. (Tex.Cr.App.1956).6 Tex.Cr.R. S.W.2d every appellate reasonable doubt. The 6. As to the matter of review on con- exclusion insufficient to sustain the victions based on circumstantial evidence will be where, although leaving Ysasaga court 444 S.W.2d conviction suspicion guilt, (Tex.Cr.App. 1969), free from it still 308-309 wrote: accused certainty, guilt so fails to show his to a moral “Ordinarily appeal is whether the test on all reasonable doubt. as to exclude jury (ad- there was evidence from which the “ ascertaining ‘In whether places vised of the restrictions which the law a moral cer- accused has been established to condemning them in one on circum- tainty, appellate will review the court evidence) might reasonably stantial conclude light presumption that the evidence in every hypothesis other than pre- will not accused is innocent. guilt was excluded. “ against are sume acts the accused that cases, judgment ‘In criminal of convic- by him. not shown to have been committed *17 tion, appeal, sup- to be sustained on must be Furthermore, a will not be sus- conviction ported by produces evidence that a moral appeal does not tained on if the evidence certainty of the accused to the

209 background, With this respect review of the “Circumstantial evidence in this majority’s is in no intrinsically action order. from is different testimo- Admittedly, nial evidence. circumstan- Professing embracing admiration for and may tial evidence cases to a point some 28-year-old Holland, the the the members of wholly equal- incorrect result. Yet this is majority display by not their words do ly true of testimonial evidence. In both object understand the of their affection. instances, jury weigh is asked to the They explain why never even has this court the correctly points chances that never before been lured Holland’s guilt against possibility of inaccu- charms. ambiguous both, racy or inference. In States, 121, Holland v. United 348 75 U.S. jury experience must use its 127, (1954), S.Ct. 99 L.Ed. 150 involved a and events in people weighing proba- prosecution federal for income tax evasion. bilities. If the is convinced beyond There the Supreme Court wrote: doubt, reasonable we can no require press us, “Petitioners finally, more. contention that the instructions of the “Even more insistent the petitioners’ trial court were so erroneous and mislead attack, below, not made ing as to constitute grounds for reversal. the trial as judge to reasonable doubt. carefully We have reviewed instruc as He defined it ‘the kind of doubt ... tions and agree. cannot But some re you folks the more serious quire comment. petitioners assail important your might affairs of own lives the refusal of the trial judge to instruct willing upon.’ be act We this think that where the Government’s evidence is section of the should have been it such ex as to terms of the kind of doubt that would clude every hypothesis other act, a person Bishop make hesitate see than guilt. that of support There some States, 132, App.D.C. v. United 71 107 type for this of instruction in the lower 297, 303, F.2d rather than the kind on decisions, States, court Garst v. United 4 which he would be to act. But we willing Cir., 339, 343; 180 F. Anderson v. United given believe that the was instruction States, Cir., 485-487; 5 30 F.2d v. Stutz not of the type could mislead States, 1030; 5 1029, United Cir. 47 F.2d finding into no reasonable doubt States, Cir., Hanson v. 6 United F.2d 208 when in fact there was some. A defini- 914, 916, but the better rule is that where something tion of a doubt as the jury instructed act upon would would seem to create standards for reasonable such an misapprehension. confusion than rather additional instruction on circumstantial ‘Attempts explain term “reasona- incorrect, evidence is confusing and Unit ble doubt” result in mak- usually do Cir., Austin-Bagley Corp., ed States v. 2 it any clearer to the minds of 229, 234, denied, 31 F.2d certiorari 279 States, jury,’ Miles v. United 103 U.S. 1002; U.S. 49 S.Ct. 73 304, 312, that, L.Ed. L.Ed. we feel 26 Becker, Cir., v. whole, United States 62 F.2d taken as a the instructions correct- 1007, 1010; Wigmore, (3d ed.), Evidence of reasonable ly conveyed concept 25-26. jury.” (Emphasis supplied.) doubt to the §§ Am.Jur.2d, Error, sufficiently Appeal p. all establish material elements § Tex.Jur.2d, charged.’ the offense dence, Evi- it is written: 742, p. Sec. 422.” “... And has that where a been held State, (Tex.Cr.App. solely v. Suff S.W.2d 814 evi- conviction rests on circumstantial State, 1976); (Tex.Cr. dence, sup- Davis v. S.W.2d and there substantial evidence App.1974); supra; Stogsdill may finding guilt, finding Earnhart v. porting supra; Hollingsworth appellate nevertheless be reviewed (Tex.Cr.App.1967); King S.W.2d 854 evi- as to whether that circumstantial court (Tex.Cr.App.1965); Ramirez v. compatible equally as- with an dence (Tex. 289 S.W.2d 251 Tex.Cr.R. sumption of innocence of the accused.” Cr.App.1956). *18 Prosecutions, Relying Substantially On Cir- holding It obvious that the in Holland Evidence, Blakely v. cumstantial was not of federal constitutional dimension (Wyo.1975) 1976], it was written: P.2d way on the binding any and was not states, the fact that specifically ap- which is evidenced “The Holland Court to follow instructions. The years proved Texas has for 28 chosen not the use of three instruction is proof burden of used such holding. federal promoted same as it policy fulfill the holding made clear that an The Holland Wyoming. the era in The pre-Blakely the law of additional on cautionary doubt in- approved a reasonable such as (that circumstantial law it must be only struction that not set the standard hypothesis oth- every to exclude conviction, purposes of evaluation for of guilt) given er that of need not be than meaning on the but also elaborated “where the instructed term ‘reasonable doubt.’ The function doubt.” The the standards for reasonable guide the of this instruction was both to permissible of the former is omission the evidence and to jury’s evaluation of properly given. where the latter meaning of insight into the provide an observed, Holland, itself, In as earlier standard, goal being to limit “reasonable doubt” as trial court defined speculation. provided the Court Finally, juror of doubt on which a would be the kind specif- groundwork for an instruction The Court did not willing Supreme to act. of di- equating probative value ically thought the term approve this standard but The circumstantial evidence. rect and defined as the kind of should have been Holland instruction function of this new hesitate to person doubt that would make evi- circumstantial was to ensure that Nevertheless, felt the in- act. the Court relegated not to an inferior dence was correctly con- structions taken as a whole status.”7 doubt to veyed concept of reasonable kept instructions be There are four Thus, the stan- the court found jury. of the Holland mind with discussion satisfactory doubt un- dard for reasonable of (1) presumption They doctrine. are: der the circumstances. charge; (2) proof of innocence and burden the Holland underlying The presumption (3) charge; cautionary the reasonable doubt instruction on adequate evidence; is that an doctrine charge regarding circumstantial fulfills reasonable doubt the standard for instruction discussed (4) the Holland instruction cautionary the function of (footnote 7). above # evidence and the law of circumstantial Review, supra, Water Law Land and confusion in less possibly results 628-629, also stated: it was pp. circumstantial evi- evaluating direct and the Holland jurisdiction adopting “A doctrine, of the Holland dence. The essence Supreme heed the ought doctrine of course, probative value is that the unre- expressed concern Court’s is not to circumstantial evidence direct and the Holland rule. application stricted distinguished. dangers recognized The Court XI, founded Review, prosecutions Vol. Law inherent in criminal In Law and Water not evidence are 623-632, Abrogating on circumstantial solely Note pp. [Evidence — sug- The Court considered. lightly to be In Criminal Cautionary Instruction given either direct or to be the Hol- instruction for which 7. The Holland degree greater certain- predicate Nor is a is similar to the evidence. laid the land decision ty evidence than following: required of circumstantial weighing all ... After direct evidence evidence, types of evidence from “There are two guilt you if are not convinced may you find the truth as to the facts beyond a reasonable of the defendant circumstantial evidence a case —direct and guilty.” you him find of a ... Circumstantial Blackmar, Jury Instruc- Federal indicating 1 Devitt facts and circumstances chain of tions, (Supp.1975). 11.02 § or innocence of a defendant. weight no between the law makes distinction *19 the defendant gested safeguard quire prove a number of instruc- his inno- conjunction Accordingly, you tions to be used in with the must assume cence. you Holland instruction as alternatives to the that the defendant is innocent unless cautionary instruction. The of are convinced from all the evidence in the practice jurisdictions other he adopted guilty. that have Hol- case that is essentially land is a function of how these “You should evaluate the evidence ad- safeguards are utilized at the trial level. in this and determine the mitted case practice guilt “One under the Holland stan- of the en- innocence defendant dard explanation tirely allows full definitional in accordance with these instruc- of the you reasonable doubt standard. State tions. The test must use is this: If practicing courts under Holland have ex- have a the you reasonable doubt as to pressed nearly universal concern as to the truth of the any of claims made of adequacy you the reasonable doubt instruc- should find the defendant not tion which is to replace guilty. you used the caution- If have no reasonable doubt them, ary you instruction on circumstantial evi- as to the truth of of should Upon cautionary dence. the defendant A reasonable abrogating guilty. find instruction, both will leave a federal and state courts doubt such doubt that have very juror’s been careful to ensure that the mind in such a condition that one say cannot that he or she has been con- reasonable doubt devel- fully standard certainty to a of the defend- oped vinced moral within the context of instructions. guilt. ant’s This practice, using proof the burden of instruction, instruction, doubt, one, Holland and “A reasonable if there is fully definitional reasonable doubt in- arise after a consideration must careful struction, recog- is consistent with the of all the evidence and it must arise out policy evidence, nized providing under Holland of or lack of ad- protection maximum (Empha- of an accused from mitted in the trial of the case.” potential jury speculation conjecture, supplied.) and sis since the reasonable instruction is doubt Supreme The Kansas Court Wilkins expanded to fulfill the function of the speaking charge said: cautionary (Emphasis sup- instruction.” properly adequately “It and states the plied.) provides jury law and with a correct interesting It is to examine some of the the determination of the standard for state cases cited follow- majority as no mat- guilt or innocence of the accused for a of- abolishing necessity Holland ter class of evidence has been what “where charge on circumstantial evidence fered at trial ... instructed on the rea- prop- “In the instant case the was

sonable standard." erly instructed that if it had a reasonable guilt defendant’s then it doubt as to Wilkins, In 215 Kan. State ‘reasona- guilty. find him not The should (Kan.S.Ct.1974), the de- proof P.2d 728 has ble doubt’ instruction which was used entirely fendant’s was based almost the- meaning as the ‘reasonable same ap- or indirect evidence. On circumstantial which de- of innocence’ instruction ory the trial peal complained the defendant sup- requested.” (Emphasis fendant give hy- court refused to the “reasonable plied.) charge on circumstantial evidence. pothesis” contention, the court noted rejecting In Draves, Or.App. State given charge presumption was (Or.App.1974), the defendant P.2d 1225 innocence, reasona- burden failure to the trial court’s complained of ble doubt as follows: using charge a circumstantial give language. of innocence” “any theory places 2. The law

“Instruction No. complaint rejected the appellate court prove the de- burden State and a (1) there was direct re- because guilty. fendant law does not ” necessary, Turnipseed, .... 297 N.W.2d 308 was (2) (Minn.1980), on reasonable held because that where the the Hol- gave etc. The trial court properly instructed on the standards of rea- type land of instruction8 inspired doubt and instructions on sonable circum- on the gave presumption addition otherwise adequate, stantial evidence was innocence, proof, burden of and on rea- “all circumstances phrase omission *20 sonable as doubt follows: consistent with that conclusion proved any other rational upon prove

“The burden is the state to inconsistent not error. In Vincze guilt beyond the defendant a rea- conclusion” was v. (Nev.1970), sonable doubt. Reasonable doubt means 472 P.2d 936 86 Nev. uncertainty guilt proper- an honest as to the it was held that where the was exists the defendant. A reasonable doubt on the standards of reasonable ly instructed when, impartial give after a careful and con- refusing there was no error in doubt in the sideration of all of the evidence circumstantial evidence. also charge on case, convinced to a moral you (R.I.1979). do not feel Al- 401 A.2d 23 Roddy, v. State certainty guilty. (Alaska 1966); that the defendant len v. 420 P.2d (Utah 1980). Eagle, 611 P.2d 1211 State v. doubt beyond

“Proof a reasonable willing upon to act you such as would be 19, 202 A.2d 425 Ray, In 43 N.J. State important your in own af- the most gave the trial court a (N.J.1964), presumes The law defend- fairs. not in- but it did circumstantial evidence innocent, fol- presumption ant is the evidence clude a statement guilt proved until lows the defendant hypothesis of in- every exclude reasonable (Emphasis beyond a reasonable doubt.” a proper The court observed nocence. supplied.) given doubt was and a charge on reasonable weigh- instruction that the test Holland both in Wilkins and It is observed that direct evidence is the ing circumstantial and full definitional gave Draves the trial court given. appellate The court and, same was also in addi- charges on reasonable doubt charge for failure to found no error in the Holland in- tion, gave Draves the so-called statement on circum- requested include the struction. stantial evidence. In several other state cases cited any appear It does not charges reasonable doubt were majority the above that a nondefinition- but it was indi- cases mentioned quoted opinions not or doubt instruction was used al reasonable gave proper the instructions a cated that legal standard giving proper a doubt standard. considered charge on the reasonable doubt. on reasonable Kinney,-Mass. In Commonwealth State, 632 P.2d 1231 only In Johnson v. (Mass.App.1981), N.E.2d 1017 App.-, Blakely v. (Okl.Cr.App.1981), and failing no error in the court said there was followed Hol- (Wyo.1975), P.2d 857 give the circumstantial does it land and were cited charge on reasonable “where the court’s reasonable that a nondefinitional appear and where court doubt could not be faulted approved.9 was used or inferences doubt instruction on matter of charged further Blakely feloniously misbranding “Now, types In of evidence in this are two there substantially may rely. founded upon One is livestock conviction which the State case evidence, testimony evidence. The trial court as the of an circumstantial direct such cautionary charge gave evi- on circumstantial eyewitness. evi- a is circumstantial The other complained, appeal the defendant proof On of a chain of circum- dence. dence. That is the refusing alia, erred in that the trial court pointing the of- inter to the commission of stances cautionary instruction “to may type in the said a com- to include be either fense. The Wyoming event, may The you of all others.” the exclusion In bination of both. indicat- Supreme the conviction guilty affirmed all the evidence find the defendant unless cautionary consistent instruction was you together leaves satisfied of his taken beyond reasonable doubt.” is, course, Neither with the of Holland. This what Texas grips ques- court came to tion eliminating cautionary of how in years has done for 28 since Holland until instruction on evidence and today. utilizing nondefinitional Lasley, (Mo. State protected doubt instruction the accused is 1979), Supreme the Missouri Court came to from jury speculation. Blakely opinion grips question burglary with the in a case. roundly criticized Land and Water presented The issue was whether the court Review, XI, Law Yol. p. supra, on this giving 3.42 circum- erred MAI-Cr. score. stantial evidence which includes the seen, As practice has been one under the in a hypothesis” “reasonable instruction Holland doctrine allows a full definitional wholly case where the evidence is circum- explanation of the reasonable doubt stan- stantial re- defendant abrogating dard. When in- cautionary charge. quests sought struction on circumstantial most abrogate have the court MAI-Cr. 3.42 and *21 federal and state courts have very been rule adopt the federal of Holland. After careful to see that the reasonable doubt discussing opinion by the Holland Mr. Jus- standard fully developed within the con- Clark, tice the Missouri court wrote: text jury charge of the court’s so as to required “Mr. Justice as a Clark condi- afford protection possi- the accused from tion precedent dispensing to with the rea- jury conjecture ble speculation. This is hypothesis sonable instruction that true because the reasonable doubt instruc- instructed on the stan- tion practice must under the now serve to dards for reasonable doubt. It is this

fulfill the function cautionary of the in- precedent condition which causes the struction on circumstantial evidence. problem for Missouri courts. The law in approach

Another adopted by is that Cali- judge may Missouri is well-settled that a fornia. Jury California Instructions —Crim- not comment the phrase ‘reasonable inal, (1970). 2.00-2.01 This approach §§ doubt’ and the notes on the use of MAI- simply to hold that the Holland rationale as judge giving Cr 2.20 forbid a trial from to the equality of direct and circumstantial on, any other instruction that elaborates evidence in terms of probative value is not define, attempts ‘reasonable doubt.’ inconsistent with giving cautionary in- Amerson, 29, (Mo. State v. 518 32 S.W.2d struction on circumstantial evidence. Four 1975); 239, Taylor, State v. 486 S.W.2d jury instructions given ap- are under this (Mo.1972); 244 v. Lafferty, State 416 proach: instruction, the burden of proof 157, (Mo.1967). 161 nondefinitional reasonable doubt instruc- “Respondent seeks harmonize the re- tion, the cautionary instruction on circum- quirement existing of Holland and Mis- stantial and the Holland instruc- Respondent’s souri law. Supplemental tion. overwhelming Brief at 11 that ‘the states states

Many recognized have jurisdictions when confronted Holland decision is a holding federal with the issue the reasonable [whether constitutionally They mandated. have con- hypothesis’ abrogat- instruction should be tinued to utilize their circum- cautionary have decided to excise the “reasonable ed] stantial evidence in a sense of fairness to hypothesis” instruction.’ Unlike Missou- ri, jury speculation, jurisdictions avoid without mention most of the cited re- further, prior Blakely opinion standards. The went Court the course the court however, State, cautionary (Wyo. and held that a instruction reaffirmed v. 521 P.2d 1345 Cosco regarding 1974), holding evidence is unneces- the term “reasonable sary, jury, self-explanatory any attempt tends to confuse the and is not to be doubt” and that any longer. long Wyoming meaning used A line of to elaborate on the of the term is sanctioning confusion, likely produce jury resulting cases the instruction was over- Bentley ruled. reversible error. See also v. 502 203, 1972). (Wyo. P.2d 206 spondent permit charged instructions with feloniously misbranding define the phrase ‘reasonable doubt.’ livestock and was guilty by found a jury. Most of the cases from jurisdictions other The conviction was based entirely upon cited the respondent indicate that circumstantial evidence. The defendant some sort of phrase elaboration on the alleged that the trial court erred in re- ‘reasonable doubt’ was made at the trial fusing to add phrase ‘to the exclusion level, and hedge abrogation of all others’ to the cautionary instruction circumstantial evidence instruction with on circumstantial evidence. The instruc- the qualification that is not needed tion that given to the jury read as is adequately where instructed follows: on the standards for reasonable doubt. “In this relying case the State sole- 758, State v. Gosby, 85 Wash.2d 589 P.2d ly on circumstantial evidence you 680, 684, (banc 1975); v. State Jack are instructed it is a well-established son, 361, 331 A.2d (Me.1975); State v. that, rule of law where circumstantial Draves, 248, 18 Or.App. 1225, 524 P.2d evidence alone is upon, relied the cir- 1227 n. 1 (1974); Wilkins, cumstances when considered together 145, Kan. 728, 523 P.2d (1974); Mur point clearly and conclusively to ray 249 Ark. 462 S.W.2d the guilt of Howard Blakely and ex- (1971); Harvill, 442-43 State v. every clude hypothesis other Ariz. (banc 1970); P.2d than that of guilt. Allen v. (Alaska 420 P.2d Id. at 861. Wyoming Supreme 1966). Henry See also 298 A.2d stated that the circumstantial evidence (Del.1972); Vincze v. *22 instruction given by the trial court was 546, 936, Nev. 472 (1970); P.2d 938 State prior consistent with Wyoming Supreme Fiorello, 80, 1, v. 36 N.J. 88 n. 174 A.2d Court decisions. The court then over- 900, 904 n. 1 (1961), cert. denied 368 U.S. ruled the prior Wyoming decisions that 967, 439, 82 S.Ct. 7 L.Ed.2d 396 (1962). required the reasonable hypothesis in- states currently use a struction in involving cases circumstantial instruction, in evidence, criticizing the instruction as cluding jurisdictions twelve which, in ‘wishy-washy, misleading constantly decade, within the last the state supreme raising questions.’ Id. at 862. court has reaffirmed its use. State v. “We persuaded are not approach Graven, 114, 54 Ohio St.2d 374 N.E.2d in adopted Blakely. The Wyoming Su- 1370, 1373 (1978); Shank, State v. 88 S.D. preme ignored suggestion in 645, 384, 226 (1975); N.W.2d 386 v. State Holland, present also in the cases from Langston, 74, 875, 265 S.C. 216 S.E.2d 876 jurisdictions other adopting the rule in (1975); Goodrick, 773, State v. 95 Idaho Holland, it is appropriate to 958, 519 (1974); P.2d 961 State Bratch- dispense with the hypothesis reasonable er 918], 408, W.Va. 206 S.E.2d 410 [157 in a involving instruction case circum- (W.Va.1974); Bunch v. 499 S.W.2d stantial evidence ‘where the jury prop- 1, 3 (Tenn.1973); Zdiarstek v. 53 erly instructed on the standards for rea- 420, Wis.2d 833, 192 N.W.2d (1972); 837 139, sonable doubt.’ 348 U.S. 75 S.Ct. v. Champagne, 218, State 198 N.W.2d at 137. Where no instruction on the stan- (N.D.1972); Johnson v. 258 Ind. dards for permitted, reasonable doubt is 683, 517, (1972); N.E.2d State v. we appropriate do not think that it is Anderson, to (Fla.1972); 270 So.2d leave the guidance without the of a Lemieux, State 160 Conn. 280 A.2d hypothesis reasonable instruction. (1971); Barrett v. (Miss.1971). .2d So “Respondent contends that MAI-Cr “Respondent relies 3.42 heavily relegate the case tends to circumstantial evi- of Blakely v. (Wyo. distinguish- P.2d 857 dence to an inferior status by 1975). Blakely, the appellant direct evidence from circumstantial jor person ‘If fundamentally premise syllogism: This contention evidence. burglarized of a vicinity is found purpose misconstrues the and function time of the burglary house near the acknowledge, 3.42. We and it is MAI-Cr bur- possession of items taken in the circum- generally recognized, now has glary, person then that committed inherently stantial evidence is not of less is not re- burglary.’ prosecution value than direct evidence. To probative quired produce empirical to studies dem- equal are say types two gener- of such a onstrating reliability however, weight, say is not to only protection alization. The a criminal equal respects. are in all The distinction against defendant has inferences drawn types between the two of evidence re- major premise is the from a doubtful mains useful. This court has defined di- ‘ subject assurance that will if rect evidence “evidence which be- to reasonable suppressed premise proves lieved the existence of the fact in of proof. require- doubt standard Our presumption; issue without inference or ment that an inference of be incon- while circumstantial evidence is evidence reasonable of in- theory sistent with which, going directly prove without to subject nocence forces the fact, the existence of a gives rise to a major premise drawing used in the infer- logical inference that such fact does ex- ’ to the same doubt scruti- ence Famber, ist.” 358 Mo. subjects to which it all the other evi- ny (1948). The distinction is presented dence at trial. We think that not cast in terms of the to be weight guidance jury by offered a the additional each type accorded but necessary protect MAI-Cr 3.42 is pattern logical terms of the inference This juror speculation. defendant from employed reasoning must be instruction does not conflict with MAI—Cr from circumstantial evidence. think We 2.20, attempt it because does not this difference warrants the continued define the reasonable doubt standard. use of MAI-Cr 3.42. Because circum- invoke a dif- Neither does instruction requires jurors stantial evidence use an higher ferent or standard of inferential process to determine an ulti- than for direct circumstantial evidence fact, mate to caution appropriate *23 It instructs the to merely evidence. them to make certain that their inferenc- the doubt apply reasonable standard reasonable, es are consistent with the process each of the inferential in- phase guilt of the defendant and inconsistent drawing volved in conclusions from cir- any theory reasonable of his inno- being cumstantial evidence. Far from cence. forbidding the inconsistent with the rule reasoning “In from circumstantial evi- attempt futile to define ‘reasonable issue, dence to the existence of a fact in a doubt,’ the circumstantial evidence in- juror upon is called a supply missing precisely struction is needed because Mis- premise from his experience. own the defining forbids reasonable practice souri case, example, instant the is give The failure to MAI-Cr 3.42 doubt. infer, asked to from the facts that a ” (Em- in this case constituted error.... was burglarized morning house on the of (Footnotes omitted.)10 phasis supplied.) 26,1976, that May appellant the was seen driveway in the of the house that same majority The in the instant case seeks to morning shortly justify position by saying and that afterward the its that in Hol- appellant driving was a van in which the district court followed land federal found, giving items taken from the in a definitional practice” house were “local appellant Nothing the conclusion that the himself on reasonable doubt. in charge supports committed or elsewhere burglary. jurors opinion must the Holland is, supply experience authority from their own the ma- such assertion and no 1978). (Fla.App.Dist. 10. See also Newsome v. 355 So.2d course, tionary charge It cited. is clear from what has on circumstantial evidence been normally given written earlier that state the many and nondefinitional courts, ed., Evidence, Wharton’s Criminal charge suggests reasonable doubt differ- I, Vol. p. federal many proof § ent burdens of or how are “in- courts, Wright, Federal Practice and Proce- the herently confusing.” Despite lack of dure, 2nd, II, Criminal p. Vol. explanation, majority § the accuses Mis- that giving of a definitional reasonable court overlooking souri the “inherent doubt There quite instruction is common.11 majority confusion.”12 It to show such nothing giving Supreme confused. In Holland the Court charge only practice was “local” of the possible talked confusion between United District for the States Court District charge on circumstantial evidence and a of Colorado where the Holland was case charge definitional on reasonable doubt. years ago. tried over 28 The Court did not state that a cautionary charge on the law of circumstantial evi- majority faults Missouri Supreme standing confusing, dence was or alone was supra, for inter- Lasley, a confusing when considered with nondefin- preting Holland as a definitional requiring charge itional on reasonable doubt. The reasonable doubt or charge standard before majority’s of Holland is off interpretation with a dispensing circumstantial evidence base. charge goes on say “... we abolish be- evidence not years Thus 127 after the basis for the part cause another dispenses cautionary circumstantial evidence it, with the need for but because it is inher- approved, Henderson v. 14 Tex. confusing ently to a suggesting (1855), years after fed- a than proof different burden of the reason- relies, eral case able applies doubt standard circumstan- is decided that the circumstantial evidence

tial evidence cases.” charge and the instruction nondefinition-

The majority explain inherently fails to out and al reasonable are confus- set doubt how given a conventionally ing. holding. Texas cau- There is no basis for such Instructions, Cases, doubt, Jury say guilty beyond 11. Pattern Criminal reasonable so. If Circuit, Association, Judges convinced, you say U.S. Fifth District are not so.” Innocence, (Presumption Richardson, 3A Bur- Instruction and cf. United States v. Proof, Doubt) den of Reasonable reads: (5th Cir.1974). F.2d charge against “The indictment or formal Evidence, ed., Indeed, guilt. In Wharton’s 13d Criminal Defendant is not I, 18-19, pp. presumed by Vol. it is written: § Defendant to be law require innocent. The law a De- does states, particularly “In some where prove produce fendant his innocence or circumstantial, it has evidence is been at all. The Government has beyond stated that doubt reasonable proving guilty beyond burden rea- him every must exclude rational you sonable and if it fails to do so hypothesis guilt. other than This instruction acquit him. *24 establishing regarded not a stan- should be as “Thus, while the Government’s burden of concept dard more severe than the usual of burden, proof heavy a strict or is not it supplied.) (Emphasis reasonable doubt." necessary that the Defendant’s speaking of a on circumstantial beyond proved possible only all doubt. It is evidence, Appeals the in Hunt v. required proof that the Government’s exclude Tex.App. (1879), stated: any concerning De- ‘reasonable doubt’ the only application “It is another of the doc- guilt. fendant’s doubt, the trine of reasonable humani- doubt, “A ‘reasonable doubt’ is real based trial, ty prisoners of the law to vouchsafes upon and reason common sense after careful wholly against when the evidence them impartial and of all the evi- consideration circumstantial; embody- an instruction dence in the case. simply degree it informs the what beyond “Proof a reasonable there- certainty pro- in the facts the evidence fore, convincing of such a character convict, they can duce in their minds before you willing rely would be to act just upon as a the reasonable doubt impor- it without in the hesitation most (Emphasis sup- ordinary does cases." your you tant of own If con- affairs. are plied.) proved vinced that the accused has been long Texas courts have stantial evidence as recognized given has been need protect accused a criminal 36.14, Article past. See It V.A.C.C.P.13 prosecution from jury conjecture specu- height would be the of absurdity keep lation. The majority, hearing without ar- in the dark about the requirements guments or requiring briefs as to the desir- regarding of the law the sufficiency of cir ability of abolishing the circumstantial evi- cumstantial evidence and then apply the rule, dence of adopting the Holland rule or required by test law to any guilty verdict as to adequate safeguards that ac- should If the changed, rendered. test is to be now action, company such have abolished it, is the time to do not later after much requirement charge on circumstan- applied. confusion to what test is to be tial evidence abrogating the controls on test, If there is to be a new and different jury conjecture previously has been delineated, should be clearly the reasons for utilized in Texas to insure fairness in our forth, adoption its set as well as the reasons criminal trials. for the demise of the former rule. It confusion,” In addition to “inherent should be remembered that not will majority seeks support for its decision by appellate dealing courts be with suffi urging that it is the currently popular thing ciency but questions, so will the trial courts do, jurisdictions most now have when passing on motions for instructed ver abolished dicts and motions new trials. Guide if, charge. course, This necessarily lines are needed now in an area which has seen, so as we have nor should it be the been by today’s churned decision. The ma basis for the change majority seeks to jority owes this much to the bench and the wrought. Should we abolish our communi- bar, you, please, people and if of Texas. ty property laws majority because a join I Judge expressing Clinton in con- states do not have such laws? we Should cern alarm the and indeed course which change any of our laws precedents be- majority chartering, particularly lyrics cause like the song “Turkey the old McWilliams, light parte of Ex 634 S.W.2d Trot,” “Everybody’s Texas, doing it”? (Tex.Cr.App.1982) (Opinion on State’s states, all has never considered its rules Hill, Rehearing), Motion for and Faulder v. deficient, reason, faulty, lacking etc., mere- (Tex.Cr.App.1981). 612 S.W.2d 512 ly because it was not among majority regard the states with particular stated, vigorously For the reasons I dis- rule, nor should it today. sent. Now that majority abolishes the re

quirement for the cautionary charge on the CLINTON, Judge, dissenting. law of circumstantial what is to years ago judges More than one hundred be the legal testing formula for the suffi appeals of the former court of were uni- ciency of the evidence in a case based whol holding that an omission to formly ly circumstantial evidence? Is it to re on circumstantial evidence is not cured main the approved by same test the Su ordinary charge on reasonable doubt. preme Court of Texas in 1855 in Henderson (Ct. Hunt v. 7 Tex.App. 235-236 and followed consistently since that time? App.1879); Tex.App. Wallace v. See footnote # 4. The does not us, (Ct.App.1880); Struckman v. stubborness, tell and with a studied Tex.App. (Ct.App.1880). chooses I am ignore question. If the test *25 same, persuaded majority today is to remain the not that what the jury then the is charge entitled to a on the law of circum sees as a trend of conventional wisdom on 36.14, supra, provides part: jury, except pleas guilty 13. in Article in the where a waived, jury charge has been a written dis- “Subject provisions to the of Article 36.07 tinctly setting applicable forth the law to the felony in each case and in each misdemeanor case; ...(Emphasis supplied.) record, judge case tried in a court of the shall, argument begins, before the deliver to every other rational conclusion.4 subject wrong.1 were Ac- proves they the [Host citations I cordingly, dissent. omitted.]”5 Now, century in another we are told that Jones v. only One need read charge given countless times over such a (1895) under- to Tex.Cr.R. S.W. — a hundred when an ac- years more than on abolishing charge stand a impact pleading guilty permitted cused not was not In a the law of circumstantial evidence. confusing to trial .. . by jury6 waive “predicated entirely upon case circumstan- —“is properly instructed charge where evidence,”2 charged the trial court had tial of proof.” on the reasonable doubt standard portion Having on a of that law.3 of the matter is that the Court The truth that of the set out in quoted portion measure of assur- abolishing significant wrote for the margin, Judge Davidson in a circumstan- guilt ance that a verdict of Court: and case is informed tial evidence charge fails urged “Error because this grounded.7 well jury that such evidence to instruct heavily from one fea- draws a nature as to must be of so conclusive opinion Supreme of the Court ture of hypothesis reasonable ex- every exclude States, Holland v. United 348 U.S. the accused. The essen- cept guilt not (1954), 99 L.Ed. 150 but does 5.Ct. element of an instruction on the law tial discussion about whether mention the other of circumstantial evidence is “properly had been instructed necessary facts and circumstances Thus, the standards for reasonable doubt.” as to ex- sought conviction must be such the bucket is tossed water is taken but hypothesis except every clude aside. The evidence must guilt. the defendant’s Supreme opined prisoner’s Though with the not be consistent been with should have guilt, but it must be inconsistent “this section of hypothesis lawyers the circum- tell us dence “And hence it is that our . .. 1. insufficient, reason, abstract, perfection being, that it that the always is the stances law thereto, every supposition, and that other intends to conform unless exclude inquire is not not law. Not that the what particular reason is with the most scru- it is essential to every hypothesis rule in the law can at pulous reason of other there attention what always precisely as- agree wholly partially this distance of time be may may be which nothing signed; that there be but it is sufficient in evidence.” with the facts reason, contradictory flatly and in the rule Commentary following presume Special Article it to be well found- that the law will 6. 1.13, 70. § ed.” 1 W. Blackstone Commentaries V.A.C.C.P. Judge agree; his dissent is Henderson did not Trejo 74 S.W. 45 Tex.Cr.R. 7. In at 34 31 S.W. 664. Tex.Cr.R. Judge (1903), Presiding cau- Davidson tioned: on circum- “In order to warrant a conviction evidence, necessary fact stantial each in doubt in a case is left “Where an issue sought must be conclusion to be established evidence, always be doubt should evidence, beyond by competent proved a rea- pre- If the accused. solved in favor of the necessary to all the facts sonable and sumption reasonable doubt of innocence with each be consistent such conclusion must peculiar anything, at this of a force mean it is sought to be the main fact other and with proved, point. never be particular The facts should circumstances, together, taken and the against guilt or reasona- in favor of resolved nature, leading in the of a conclusive must be submitting the trial court ble doubt conclusion, satisfactory produc- whole to a true that charge upon While it is the law. certainty effect, ing, and moral a reasonable may and co- be so close the circumstances gent, throwing the accused.” juxtaposi- in such accused may re- fact that with the main tion emphasis indi- mine unless otherwise 4. All charge upon quire a circumstantial cated. upon this yet, in doubt where the facts are ap- Evidence, quoted 863 was theory, rule § 5. Starkie and sounder it is the safer provingly, viz: regard evidence.” being Id., of circumstantial 74 S.W. at 548. “The force nature, the mere coinci- in its exclusive *26 terms TEAGUE, doubt dissenting. kind of that would Judge, person act, make a to Bishop see hesitate see De wrote, John once Sir Fortescue States, United 132, 107 F.2d App.D.C. Legum Angliae, Laudibus 27, Ch. that he 297, 303, rather than the kind on which he prefer twenty guilty would that persons act,” Holland, would be willing supra, to death, punishment should escape the 140, 138, 75 S.Ct. at majority the fails to person than one innocent be executed. For provide definition reasonable doubt my part, prefer juries I would that twenty fill the to void. The is stripped accused by each be an the benefit of a on “confused” instruction on the charge evidence and then the protection loses of a law of circumstantial evidence than see one definition of doubt. reasonable person imprisoned innocent accused or exe- cuted because of lack of an the instruction May

Last the majority, claiming to be reducing part confusion the of appellate on the law of circumstantial evidence. judges and the trial bench bar over the The importance giving proper instruc Carving Doctrine, it “for abandoned the tions jury by to a a trial court should never compelling it encourages reason that questioned, especially when one con parte McWilliams, crime.” Ex 634 S.W.2d purpose siders the the charge obvious (Tex.Cr.App.1982). Today majority the serves: “The of a very purpose jury charge purports remove confusion from the flag jurors’ is to attention to concepts jurors. they minds of Together, mean that that must not be misunderstood principles fundamental in the ...” criminal law jurisprudence of are being systemati- Lakeside Texas Oregon, U.S. 98 S.Ct. cally renounced by determined minds —and (1978). 55 L.Ed.2d 319 also about that there is no confusion.8 Brown v. (Tex.Cr. S.W.2d will,

To this judicial exercise of I dissent.9 App.1981); Doyle S.W.2d 732 Judge charge though juries 8. While still a of this member Court even its are not presented dissenting Roberts views in a properly his on the reasonable instructed doubt opinion, portions excerpt I now duplicity laughable ap- standard. This is adopt my own; viz: palling, depending whether one is more or passing “A majority of the court cynical goal ‘now hold adjudi- less about the of rational charge improper.’ that such a It seems cation. game recognizing little late in the to be I am not such a to stare slave decisis as impropriety. legislature, which has the holdings that are adhere to not reasonable or power prescribe contents certain rational, simply because are old. See charge, court’s has met more than 50 times (Tex.Cr. Butler v. since and it has not acted to correct the J., App.1973) (Roberts, dissenting). But the impropriety. Texas, speaking The State of jurisdictions fact that other have followed a through attorney, its elected district has not make our different rule does not rule unrea- charge improper; claimed that its majority sonable or irrational. The have not merely argues rehearing motion for that such rule, given any abolishing reason for this by required was not by although required the court is statute to Only Prosecuting this case. ney, the State Attor- 44.24(d) so. art. do Crim.Proc. [Tex.Code ].” appointed majority who is of this [Emphasis original] court, ‘wipe away’ has asked it jurisprudence. from our moving along 9. The the Court says text court that it will follow ruefully disquieting course that is to this writer. States, what Holland v. United 348 U.S. 121 opined during ninety Elsewhere I have (1954), [75 S.Ct. 99 L.Ed. called ‘the 150] existence, years of its certain mandated proper- better rule ... that where exceptions, has “the continued to honor ly instructed on the standards reasonable decisis, thereby policy provide of stare doubt, such an additional instruction on cir- justice system having with rules criminal confusing cumstantial evidence is and incor- predictability.” “Trial the value of Common says joins rect.’ growing It text ‘a Monthly Myopic Magazine,” Sense Views of a trend of state courts’ which ‘have 1982) (July-September abolishing require- Vol. No. 1 3 at followed Holland in ment of a That was written before the hundred and five year where standard;’ Carving instructed on the doubt was blunted and old Doctrine McWilliams, supra. it is the footnotes we find out abandoned in abolishing requirement that Texas is *27 Additionally, jury majority's a reliance on Holland v. (Tex.Cr.App.1982). as charge jury instructs a to the standards States, United 348 U.S. 75 S.Ct. evaluating it use in the evidence (1954), as its to authority L.Ed. 150 abolish it, and presented which has been to as to proper in a a requirement the case may be the proved what must before it find on be charge circumstantial evidence must charged accused of the offense guilty given, say to the least one is dubious when against long him. It has been said that opinion and carefully reads the learns that as probative circumstantial evidence is as holding prefaced the of the Court was on However, per- direct evidence. that maxim giv- the fact that if an instruction was not credibility the solely tains to of evidence en, nevertheless, jury would be properly the proved. and to the actual facts There ex- on the standard for reasonable instructed ists distinction between and circum- a direct Texas, phrase the doubt. “reasonable requires stantial evidence which a different need not be defined in the of doubt” a to determine whether fact has analysis court, and makes such majority the the no a the proved beyond been Hence, requirement opinion. in its in the test must be ultimate to evidence future, juries will without guid- not be sufficiency. to its subjected determine to the of applying ance as law circumstan- forcefully presented by distinction was case, particular but tial evidence to New Domenick Gabrielli of the York Judge guidance will be without addition recent Appeals Court of in that court’s deci- meaning the phrase real “reasonable People v. 47 N.Y.2d Kennedy, sion of (N.Y.Ct. 417 N.Y.S.2d 391 N.E.2d I that none of the reasons doubt”. find required should read- App.1979), which be opinion by majority the in its are stated persons abolishing those who favor and sufficient warrant such a dramatic evidence, as it circumstantial criminal law of change unwarranted the change might their minds. A cursory analysis exami- this State. listed under Vol- nation of annotations A on circumstantial in a case, Secundum, required Corpus Juris Criminal proper has been Texas ume 23A State, 7 Tex. years. over 100 See Hunt v. indicates that Law Sections State, Tex.App. Ross v. App. (1879); have utilized at least 41 States of Union today not (1880). majority And the has cautionary instructions not given any why sound reason should at one time evidence use of circumstantial part years. be a of our law for the next of the Union At least States another. use majority end the instruction’s since I find result have reaffirmed confusion, at opinion will itself cause much Lasley, 583 S.W.2d 511 State the appel- trial court level as well as at (Mo.1979). guidance, level. Without late court opinion will cause confusion Today’s unjust of an verdict in the chances courts of this State as appellate exist greater be- greater future will become question open has left fact simple prosecuting cause of review this Court will standard of what ju- will throughout ask attorneys in future apply or- upon inference inference in pile ries to standard Implicitly, the former cases. Past rever- guilty. der to find defendants But if this Court con still exists.* review Court, in a this because the evidence sals of of re former standard apply tinues to was insuffi- circumstantial evidence case view, particular in a case when cient, proof that an unelabo- are irrefutable standard, I apply that instructed to instruction, standing reasonable doubt rated needless rever increase of sharp foresee a alone, inadequate protect will courts of State. appellate sals unjust conviction accused from innocent hand, does not if this Court On the other circum- suspicious based standard of the former to apply continue stances. 63,987, (En Opinion). Banc * E.g., Carlsen v. No. March review, im then more defendants will be or executed on the basis of a dubi

prisoned showing guilt;

ous and the occurrence *28 law, horror criminal ultimate man,

unjust of an innocent can punishment

only increase. lago

When left Desdemona’s handker- Shakespeare’s lodgings,

chief in Cassio’s see

Othello, surely profited Othello could have cautionary

from consideration of some ad-

vice as of circumstantial unreliability happened

evidence. And we all know what us, however, Othello, hope we? don’t Let tragic ending that the same pray

in store for accused criminal defendants beguil- who are confronted with circumstances, suspicious evidence of judged juries

but are which are not who law of

favored with an instruction on the

circumstantial evidence. event, mighty consigned in our law is now majority opinion to its death law, in the refuse of Texas heap

burial

preceded only recently by death the doc- McWilliams, carving.

trine Ex parte (Tex.Cr.App.1982). decision, respectfully

To the I great

dissent. To that warrior of criminal

law, well, only say: who has served us I can est vitae mo-

Mortis momentum ultimum

mentum. WILLIAMS,

Stanley Appellant, Thomas Texas, Appellee.

The STATE of

No. 61662. Texas, Appeals Criminal

Panel No. 2.

Feb. March

Rehearing Denied