abolishing circumstantial evidence charge and holding that if jury is properly instructed on burden of proof, "charge on circumstantial evidence is valueless and invites confusion"
How later courts described this case
- abolishing circumstantial evidence charge and holding that if jury is properly instructed on burden of proof, "charge on circumstantial evidence is valueless and invites confusion"
- holding that it is confusing and improper to instruct jury on “reasonable hypothesis” theory
- holding that circumstantial evidence charges are valueless and invite confusion
- after noting that at least 22 states and most federal circuits (as of 1983) have abolished the use of the circumstantial evidence charge where the jury is properly instructed on reasonable doubt, the court held that there is but one standard of proofthat the prosecution establish all elements beyond a reasonable doubtand where the jury is properly instructed on that standard, a charge on circumstantial evidence is valueless and invites confusion
Written by the judges who cited it.
Distinguished
Distinguished by Johnson v. State, 1985 Tex. App. LEXIS 7245 (1985)
It is clear that both Hankins and Acosta are distinguishable from the present case.
The opinion
TEAGUE, Judge,
dissenting.
Sir John Fortescue once wrote, see De Laudibus Legum Angliae, Ch. 27, that he would prefer that twenty guilty persons should escape the punishment of death, than one innocent person be executed. For my part, I would prefer that twenty juries each be “confused” by an instruction on the law of circumstantial evidence than see one innocent accused person imprisoned or executed because of the lack of an instruction on the law of circumstantial evidence.
The importance of giving proper instructions to a jury by a trial court should never be questioned, especially when one considers the obvious purpose the charge serves: “The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood ...” Lakeside v. Oregon, 435 U.S. 333 , 98 S.Ct. 1091 , 55 L.Ed.2d 319 (1978). See also Brown v. State, 617 S.W.2d 234 (Tex.Cr.App.1981); Doyle v. State, 631 S.W.2d 732 *220 (Tex.Cr.App.1982). Additionally, a jury charge instructs a jury as to the standards it must use in evaluating the evidence which has been presented to it, and as to what must be proved before it may find the accused guilty of the offense charged against him. It has long been said that circumstantial evidence is as probative as direct evidence. However, that maxim pertains solely to credibility of the evidence and to the actual facts proved. There exists a distinction between direct and circumstantial evidence which requires a different analysis to determine whether a fact has been proved beyond a reasonable doubt, the ultimate test to which evidence must be subjected to determine its sufficiency. The distinction was forcefully presented by Judge Domenick Gabrielli of the New York Court of Appeals in that court’s recent decision of People v. Kennedy, 47 N.Y.2d 196 , 417 N.Y.S.2d 452 , 391 N.E.2d 288 (N.Y.Ct.App.1979), which should be required reading by those persons who favor abolishing a charge on circumstantial evidence, as it might change their minds.
A charge on circumstantial evidence, in a proper case, has been required in Texas for over 100 years. See Hunt v. State, 7 Tex. App. 212 (1879); Ross v. State, 9 Tex.App. 275 (1880). And the majority today has not given any sound reason why it should not be a part of our law for the next 100 years.
I find that the end result of the majority opinion will itself cause much confusion, at the trial court level as well as at the appellate court level. Without guidance, the chances of an unjust jury verdict in the future will become greater and greater because of the simple fact that prosecuting attorneys throughout the State will ask juries to pile inference upon inference in order to find defendants guilty. Past reversals of this Court, because the evidence in a circumstantial evidence case was insufficient, are irrefutable proof that an unelabo-rated reasonable doubt instruction, standing alone, will be inadequate to protect the innocent accused from unjust conviction based upon evidence of suspicious circumstances.
The majority's reliance on Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), as its authority to abolish the requirement that in a proper case a charge on circumstantial evidence must be given, is dubious to say the least when one carefully reads the opinion and learns that the holding of the Court was prefaced on the fact that if an instruction was not given, nevertheless, the jury would be properly instructed on the standard for reasonable doubt. In Texas, the phrase “reasonable doubt” need not be defined in the charge of the court, and the majority makes no such requirement in its opinion. Hence, in the future, juries not only will be without guidance as to applying the law of circumstantial evidence to a particular case, but in addition will be without guidance as to the real meaning of the phrase “reasonable doubt”. I find that none of the reasons stated by the majority in its opinion are sufficient to warrant such a dramatic and unwarranted change in the criminal law of this State. A cursory analysis and examination of the annotations listed under Volume 23A Corpus Juris Secundum, Criminal Law Sections 1250 and 1252, indicates that at least 41 States of the Union have utilized cautionary instructions to the jury on the use of circumstantial evidence at one time or another. At least 12 States of the Union have reaffirmed the instruction’s use since 1970. See State v. Lasley, 583 S.W.2d 511 (Mo.1979).
Today’s opinion will cause confusion to exist in the appellate courts of this State as the majority has left open the question of what standard of review this Court will apply in future circumstantial evidence cases. Implicitly, the former standard of review still exists. * But if this Court continues to apply the former standard of review, when a jury in a particular case was not instructed to apply that standard, I foresee a sharp increase of needless reversals by the appellate courts of this State. On the other hand, if this Court does not continue to apply the former standard of *221 review, then more defendants will be imprisoned or executed on the basis of a dubious showing of guilt; and the occurrence of the ultimate horror in criminal law, the unjust punishment of an innocent man, can only increase.
When lago left Desdemona’s handkerchief in Cassio’s lodgings, see Shakespeare’s Othello, Othello could surely have profited from consideration of some cautionary advice as to the unreliability of circumstantial evidence. And we all know what happened to Othello, don’t we? Let us, however, hope and pray that the same tragic ending is not in store for accused criminal defendants of this State, who are confronted with beguiling evidence of suspicious circumstances, but who are judged by juries which are not favored with an instruction on the law of circumstantial evidence.
In any event, the mighty circumstantial evidence charge in our law is now consigned by the majority opinion to its death and burial in the refuse heap of Texas law, preceded in death only recently by the doctrine of carving. See Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982).
To the majority decision, I respectfully dissent. To that great warrior of criminal law, who has served us well, I can only say: Mortis momentum est ultimum vitae momentum.
E.g., Carlsen v. State, No. 63,987, March 1, 1983 (En Banc Opinion).