Hankins v. State

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

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

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

“The petitioners assail the refusal of the trial judge to instruct that where the government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect."

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

The following states have followed Holland in abolishing the requirement of a charge where the jury is properly instructed on the reasonable doubt standard: Alaska, Allen v. State, 420 P.2d 465 (1966); Arizona, State v. Harvill, 106 Ariz. 386 , 476 P.2d 841 (1970); Arkansas, Murray v. State, 249 Ark. 887 , 462 S.W.2d 438 (1971); (But see concur *198 ring opinion in Simmons v. State, 255 Ark. 82 , 498 S.W.2d 870 ); Colorado, People v. Bennett, 183 Colo. 125 , 515 P.2d 466 (1970); Delaware, Henry v. State, 298 A.2d 327 (1972); Hawaii, State v. Bush, 58 Hawaii 340 , 569 P.2d 349 (1977); Iowa, State v. O’Connell, 275 N.W.2d 197 (1979); Kansas, State v. Wilkins, 215 Kan. 145 , 523 P.2d 728 (1974); Maine, State v. Jackson, 331 A.2d 361 (1975); Massachusetts, Com. v. Kinney, -Mass.App.-, 423 N.E.2d 1017 (1981); Minnesota, State v. Turnipseed, 297 N.W.2d 308 (1980); Nevada, Vincze v. State, 86 Nev. 546 , 472 P.2d 936 (1970); New Jersey, State v. Ray, 43 N.J. 19 , 202 A.2d 425 (1964); New Mexico, State v. Bell, 90 N.M. 134 , 560 P.2d 925 (1977); Oklahoma, Johnson v. State, 632 P.2d 1231 (Okl.Cr.1981); Oregon, State v. Draves, 18 Or.App. 248 , 524 P.2d 1225 (1974); Rhode Island, State v. Roddy, 401 A.2d 23 (1979); Utah, State v. Eagle, 611 P.2d 1211 (1980); Vermont, State v. Derouchie, 140 Vt. 437 , 440 A.2d 146 (1981); Washington, State v. Gosby, 85 Wash.2d 758 , 539 P.2d 680 (1975); Wyoming, Blakely v. State, 542 P.2d 857 (1975). See also, New York, People v. Gonzalez, 54 N.Y.2d 729 , 442 N.Y.S.2d 980 , 426 N.E.2d 474 (1981) (concurring opinion with three judges joining, citing Holland for proposition that adequate instruction on reasonable doubt dispenses with need for circumstantial evidence charge.); Note, the Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine, 55 Tex.L. Rev. 1255 (1977).

The basis for abolishing the requirement of an instruction is that “[circumstantial evidence is often as strong and conclusive upon the understanding as direct and positive evidence.” Law v. State, 33 Tex. 37 (1870). State courts in general have recognized that circumstantial evidence may have equal if not greater weight than direct evidence. 1 Wharton’s Criminal Evidence Sec. 6, p. 5. See also Corbett v. People, 153 Colo. 457 , 387 P.2d 409 , cert. denied 377 U.S. 939 , 84 S.Ct. 1346 , 12 L.Ed.2d 302 ; State v. Schonrog, 2 Conn.Cir. 239, 197 A.2d 546 ; State v. O'Connell, 275 N.W.2d 197 ; State v. Wood, 190 Kan. 778 , 378 P.2d 536 ; People v. Eckert, 2 N.Y.2d 126 , 157 N.Y.S.2d 551 , 138 N.E.2d 794 . Indeed, the rationale of the decision in Holland focused on this very point:

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” (citations omitted.)

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

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

“It can be said that there are no rules in our system of evidence, prescribing for the jury the precise effect of any general or special class of evidence. So far as logic and psychology assist us, their conclusions show that it is out of the question to make a general assertion ascribing *199 greater weight to one class as to the other. The probative effect of one or more pieces of either sort of evidence depends upon considerations too complex. Science can only point out that each class has its special dangers and its special advantages.”

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

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

The rule should be that circumstantial evidence alone may suffice only if the inferences arising therefrom prove the fact in question beyond a reasonable doubt. That is, the jury should consider the totality of the direct or circumstantial evidence and the reasonable inferences which may be drawn therefrom, in determining whether it was sufficient to establish guilt beyond a reasonable doubt. See, e.g. Comm. v. Cooper, 270 Pa.Super. 365 , 411 A.2d 762 (Pa. 1979); Comm. v. Sullivan, 472 Pa. 129 , 371 A.2d 468 (Pa.1977); Comm. v. Suggs, 289 Pa.Super. 44 , 432 A.2d 1042 (Pa.1981). 2 A *200 charge which requires that the circumstances . must exclude, to a moral certainty, every other reasonable hypothesis except the defendant’s guilt ...” is a confusing and improper charge where the jury is properly instructed on the reasonable doubt standard of proof. The trial court properly refused to instruct the jury on the “reasonable hypothesis” theory. Thus, the State’s motion for rehearing is granted and appellant’s ground of error on this issue is overruled.

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

“The burden of proof in a habeas corpus proceeding is upon the petitioner. It was incumbent upon the petitioner here by a preponderance of the evidence to show that he was indigent, had no counsel and did not affirmatively waive the right to counsel.” (citations omitted.)

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

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

. In Holland, the trial court followed local practice by giving an elaborate definition of reasonable doubt in the jury charge. Although this jurisdiction does not follow that practice, the existence of such an expansive definition is not necessarily a condition precedent to finding a charge on circumstantial evidence to be confusing and incorrect. The potential conflict between the reasonable doubt standard and the circumstantial evidence charge which can create confusion during jury deliberations is the crux of Holland and that confusion arises irrespective of the inclusion of a definition of reasonable doubt. The minor difference between Holland and the practice in this jurisdiction of not defining reasonable doubt is insignificant. Thus, the issue of whether the jury should be guided by a definition of reasonable doubt is an issue extraneous to our determination that a circumstantial evidence charge is improper. Although the Supreme Court of Missouri has interpreted Holland to require an elaborate definition of the reasonable doubt standard before “dispensing” with the circumstantial evidence charge, State v. Lasley, 583 S.W.2d 511 (Mo. 1979), we abolish the circumstantial evidence charge not because another part of the charge dispenses with the need for it, but because it is inherently confusing to a jury by suggesting that a different burden of proof than the reasonable doubt standard applies in circumstantial evidence cases. This inherent confusion is the point overlooked by the Missouri court.

. Many states have relied upon this rationale in holding that the test for sufficiency of evidence on appeal is the same even where the conviction is based on circumstantial evidence. See State v. O’Connell, 275 N.W.2d 197 , and cases cited therein. For example, in Maryland the test for sufficiency is stated in Metz v. State, 9 Md.App. 15 , 262 A.2d 331 , as follows:

“To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”

The court specifically rejected the contention that the test to be applied is whether the cir *200 cumstances are consistent with, or are such as to exclude every reasonable hypothesis or theory of innocence. It seems implicit that in states applying but one standard in assessing eviden-tiary sufficiency on appeal, an argument for submitting a varying charge to the jury on circumstantial evidence would be rejected. Thus, although we do not reach the issue of appellate review, these cases are persuasive on the issue of jury instructions. See e.g., District of Columbia, Byrd v. United States, 388 A.2d 1225 (1978); Maryland, Metz v. State, 9 Md. App. 15 , 262 A.2d 331 (1970); Michigan, People v. Nash, 110 Mich.App. 428 , 313 N.W.2d 307 (1981); Nebraska, State v. Buchanan, 210 Neb. 20 , 312 N.W.2d 684 (1981); Pennsylvania, Com. v. Sullivan, 472 Pa. 129 , 371 A.2d 468 (1977). Compare United States v. Kolsky, 423 F.2d 1111 (5th Cir.1970) (no jury instruction but standard on appeal varies in circumstantial evidence cases.)