Hankins v. State

CLINTON, Judge,

dissenting.

More than one hundred years ago judges of the former court of appeals were uniformly holding that an omission to charge on circumstantial evidence is not cured by the ordinary charge on reasonable doubt. Hunt v. State, 7 Tex.App. 212 , 235-236 (Ct. App.1879); Wallace v. State, 7 Tex.App. 570 , 574 (Ct.App.1880); Struckman v. State, 7 Tex.App. 581 , 582 (Ct.App.1880). I am not persuaded that what the majority today sees as a trend of conventional wisdom on *218 the subject proves they were wrong. 1 Accordingly, I dissent.

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

“Error is urged because this charge fails to instruct the jury that such evidence must be of so conclusive a nature as to exclude every reasonable hypothesis except the guilt of the accused. The essential element of an instruction on the law of circumstantial evidence is that the facts and circumstances necessary to the conviction sought must be such as to exclude every reasonable hypothesis except the defendant’s guilt. The evidence must not only be consistent with the prisoner’s guilt, but it must be inconsistent with every other rational conclusion. 4 [Host of citations omitted.]” 5

Now, in another century we are told that such a charge — given countless times over more than a hundred years when an accused pleading not guilty was not permitted to waive trial by jury 6 — “is a confusing .. . charge where the jury is properly instructed on the reasonable doubt standard of proof.” The truth of the matter is that the Court is abolishing a significant measure of assurance that a verdict of guilt in a circumstantial evidence case is properly informed and well grounded. 7

The majority draws heavily from one feature of the opinion of the Supreme Court in Holland v. United States, 348 U.S. 121 , 75 5.Ct. 127, 99 L.Ed. 150 (1954), but does not mention the other discussion about whether the jury had been “properly instructed on the standards for reasonable doubt.” Thus, water is taken but the bucket is tossed aside.

Though the Supreme Court opined that “this section of the charge should have been *219 in terms of the kind of doubt that would make a person hesitate to act, see Bishop v. United States, 71 App.D.C. 132 , 107 F.2d 297, 303 , rather than the kind on which he would be willing to act,” Holland, supra, at 140 , 75 S.Ct. at 138 , the majority fails to provide any definition of reasonable doubt to fill the void. The accused is stripped of the benefit of a charge on circumstantial evidence and then loses the protection of a definition of reasonable doubt.

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

To this exercise of judicial will, I dissent. 9

. “And hence it is that our lawyers . .. tell us that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and that the law will presume it to be well founded.” 1 W. Blackstone Commentaries § 70.

. Judge Henderson did not agree; his dissent is at 34 Tex.Cr.R. 490 , 31 S.W. 664 .

. “In order to warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and with the main fact sought to be proved, and the circumstances, taken together, must be of a conclusive nature, leading in the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty of the guilt of the accused.”

. All emphasis is mine unless otherwise indicated.

. Starkie on Evidence, § 863 was quoted approvingly, viz:

“The force of circumstantial evidence being exclusive in its nature, and the mere coincidence of the hypothesis with the circumstances being, in the abstract, insufficient, unless they exclude every other supposition, it is essential to inquire with the most scrupulous attention what other hypothesis there may be which may agree wholly or partially with the facts in evidence.”

. See Special Commentary following Article 1.13, V.A.C.C.P.

. In Trejo v. State, 45 Tex.Cr.R. 127 , 74 S.W. 546 (1903), Presiding Judge Davidson cautioned:

“Where an issue in a case is left in doubt by the evidence, that doubt should always be solved in favor of the accused. If the presumption of innocence and reasonable doubt mean anything, it is of a peculiar force at this particular point. The facts should never be resolved in favor of guilt or against reasonable doubt by the trial court in submitting a charge upon the law. While it is true that the circumstances may be so close and cogent, throwing the accused in such juxtaposition with the main fact that it may not require a charge upon circumstantial evidence, yet, where the facts are in doubt upon this theory, it is the safer and sounder rule to charge in regard to circumstantial evidence.” Id., 74 S.W. at 548 .

. While still a member of this Court Judge Roberts presented his views in a dissenting opinion, portions of which I now excerpt and adopt as my own; viz:

“A passing majority of the court ‘now hold that such a charge is improper.’ It seems a little late in the game to be recognizing the impropriety. The legislature, which has the power to prescribe certain contents of the court’s charge, has met more than 50 times since 1879, and it has not acted to correct the impropriety. The State of Texas, speaking through its elected district attorney, has not claimed that the charge was improper; its motion for rehearing merely argues that such a charge was not required by the evidence in this case. Only the State Prosecuting Attorney, who is appointed by the majority of this court, has asked it to ‘wipe away’ this charge from our jurisprudence.

The court says in the text that it will follow what Holland v. United States, 348 U.S. 121 [ 75 S.Ct. 127 , 99 L.Ed. 150 ] (1954), called ‘the better rule ... that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.’ It says in the text that it joins ‘a growing trend of state courts’ which ‘have followed Holland in abolishing the requirement of a charge where the jury is properly instructed on the reasonable doubt standard;’ it is only in the footnotes that we find out that Texas is abolishing the requirement of the charge even though its juries are not properly instructed on the reasonable doubt standard. This duplicity is laughable or appalling, depending on whether one is more or less cynical about the goal of rational adjudication.

I am not such a slave to stare decisis as to adhere to holdings that are not reasonable or rational, simply because they are old. See Butler v. State, 493 S.W.2d 190, 198 (Tex.Cr. App.1973) (Roberts, J., dissenting). But the fact that other jurisdictions have followed a different rule does not make our rule unreasonable or irrational. The majority have not given any reason for abolishing this rule, although the court is required by statute to do so. [Tex.Code Crim.Proc. art. 44.24(d) ].” [Emphasis original]

. The majority is moving the Court along a course that is ruefully disquieting to this writer. Elsewhere I have opined that during the ninety years of its existence, with certain mandated exceptions, “the Court has continued to honor the policy of stare decisis, and thereby provide the criminal justice system with rules having the value of predictability.” “Trial by Common Sense Views of a Myopic Monthly Magazine,” Vol. 17, No. 1 (July-September 1982) 3 at 7. That was written before the hundred and five year old Carving Doctrine was blunted and abandoned in McWilliams, supra.