Reyes v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of cocaine with intent to deliver and sentenced to thirty years confinement and a fine of $40,000.00. The Court of Appeals affirmed. Reyes v. State, 906 S.W.2d 256 (Tex.App.—Fort Worth 1995). We granted appellant’s petition for discretionary review to determine whether a harm analysis is appropriate when the trial judge fails to instruct the jury on reasonable doubt as required by Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991). We will reverse.

I.

The trial judge failed to instruct the jury on reasonable doubt at the guilt/innocence phase of the trial. Appellant contends he is entitled to a new trial under Geesa. The State concedes the trial judge erred but contends the error was harmless. The courts of appeals have considered this matter on at least four occasions. Because those decisions are in conflict, we take this opportunity to resolve the matter. Tex.RApp.P. 200(a)(1).

II.

Prior to Geesa, we employed the “reasonable-hypothesis-of-innocenee” analytical construct to review the sufficiency of evidence in circumstantial evidence cases. In Geesa, the State contended the analytical construct conflicted with the command of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Specifically, the State argued the construct distorted the meaning of “proof beyond a reasonable doubt,” and continued the distinction between direct and circumstantial evidence which we disavowed in Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981). Geesa, 820 S.W.2d at 155. We accepted the State’s argument and expressly rejected use of the analytical construct as a method of appellate review for evidentiary sufficiency. Id., 820 S.W.2d at 161. But, the opinion did not end there.

The Court continued by noting that Han-kins was based upon the Supreme Court’s opinion, Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), which also held that a jury instruction on circumstantial evidence was not constitutionally required. However, Geesa recognized that both Holland v. United States and Jackson v. Virginia “implicated the requirement of a full definitional instruction to the jury on reasonable doubt.” Geesa, 820 S.W.2d at 161. Therefore, after setting forth a definitional jury instruction on “reasonable doubt,” we stated:

We expressly adopt this instruction on “reasonable doubt” and hold that this instruction shall be submitted to the jury in all criminal cases, even in the absence of an objection or request by the State or the defendant, whether the evidence be circumstantial or direct.

Id., 820 S.W.2d at 162. Finally, we held application of the new rules announced had “limited prospectivity” in that the rules were limited to Geesa, and all cases tried thereafter. Id., 820 S.W.2d at 165.

Therefore, at the State’s requést, the Court abrogated the “reasonable-hypothesis-of-innocence” analytical construct and, in so doing, rejected more than one hundred years of established precedent. See, Elizabeth v. State, 27 Tex. 329 (1863). However, the abrogation of the analytical construct required the adoption of an instruction on reasonable doubt.

III.

On direct appeal, appellant contended the absence of the reasonable doubt instruction required automatic reversal because of the language in Geesa. Reyes, 906 S.W.2d at 258. The Second Court of Appeals acknowledged the error but, relying upon its opinion in Ahmadi v. State, 864 S.W.2d 776 (Tex.App.—Fort Worth 1993), rejected appellant’s contention that the error required automatic reversal. Reyes, 906 S.W.2d at 258. Instead, the Court held the error was subject to a harm analysis. The Court then found the error harmless under either Tex.R.App.P. 81(b)(2) or Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984). Ibid.

However, in Kieschnick v. State, 911 S.W.2d 156, 161 (Tex.App.—Waco 1995) (op’n on reh’g), the Tenth Court of Appeals took a decidedly different tact. The jury charge did not contain the reasonable doubt instruction mandated by Geesa. Moreover, Kieschnik did not object to the omission at trial nor did he raise the issue on appeal. Id., 911 S.W.2d at 162. Nevertheless, the Court of Appeals, on its own motion, considered the omission of the reasonable doubt instruction in light of Marin v. State, 851 S.W.2d 275, 279-280 (Tex.Cr.App.1993). Marin recognized three types of rules in our legal system: 1) absolute requirements and prohibitions which cannot be waived or forfeited; 2) rights which must be implemented unless affirmatively waived; and, 3) rights which are implemented only upon request and can be forfeited by a failure to invoke them. See also, Powell v. State, 897 S.W.2d 307, 316 (Tex.Cr.App.1994); and, Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Cr.App.1993). The Court of Appeals held:

The Court’s choice of language in Geesa mandating the reasonable-doubt instruction precludes the possibility that it is a right to be implemented only on request. That means the right to the instruction is either (a) an absolute right or (b) a right that must be implemented unless expressly waived.

We believe that, although such rights are “relatively few,” the [Geesa ] Court intended to create an absolute systemic requirement that every charge, when the burden of proof required the jury to find guilt beyond a reasonable doubt, contain the definitional instruction on reasonable doubt.

Kieschnick, 911 S.W.2d at 162 (citations omitted). Because the failure to instruct the jury on reasonable doubt violated an absolute systemic requirement, the Court of Appeals held no harm analysis was required. Id., 911 S.W.2d at 163. See also, Lohmuller v. State, 921 S.W.2d 457, 462 (Tex.App.—Waco 1996) (“The right to a definitional instruction on reasonable doubt is an absolute right which [the appellate court] must implement.”).

IV.

We agree with the Tenth Court of Appeals’ treatment of this issue. Our holding in Gee- sa, namely that the reasonable doubt instruction “shall be submitted to the jury in all criminal cases, even in the absence of an objection or request by the State or the defendant, whether the evidence be circumstantial or direct,” created an absolute systemic requirement that cannot be waived or forfeited. Such requirements are not subject to a harm analysis. See, Powell, 897 S.W.2d at 314-318, Stine v. State, 908 S.W.2d 429, 431 (Tex.Cr.App.1995); and, Sodipo v. State, 815 S.W.2d 551, 554 (Tex.Cr.App.1990). And we did not engage in a harm analysis in Geesa.

Our holding in Geesa, which the State requested, was reached only after a great deal of time and careful deliberation. The holding is clear and unambiguous and we will not undermine it today. To that end, we hold Geesa created an absolute systemic requirement that an instruction on reasonable doubt be submitted to the jury in all cases where the burden of proof requires the jury to find guilt beyond a reasonable doubt and the failure to submit such an instruction is automatic reversible error. Accordingly, the judgments of the Court of Appeals and the trial court are reversed and the case is remanded to the trial court.

. We also granted review of appellant’s second ground. However, in light of our disposition of the first ground for review, the second ground is dismissed as moot.

. In a fifth case, The First Court of Appeals in Boozer v. State, 848 S.W.2d 368 (Tex.App.—Houston [1st Dist.] 1993), dealt with an incomplete Geesa instruction where there was no objection. The defendant contended the incomplete instruction established an irrebuttable presumption of harm. The Court disagreed, holding Geesa's requirement that the reasonable doubt instruction be given in all cases even without objection or request, "to mean that omitting the instruction will always be considered properly preserved error, and will therefore require reversal if there is any harm to the accused." Boozer, 848 S.W.2d at 369 (emphasis in original). In other words, the error in failing to give the Geesa instruction is always preserved but the error is subject to a harm analysis. Ibid. The Boozer Court found no harm and affirmed.

. The analytical construct required the appellate court to find that every other reasonable hypothesis raised by the evidence was negated, save and except that establishing the guilt of the defendant, if the conviction was to be affirmed in a circumstantial evidence case. Geesa, 820 S.W.2d at 158.

. That definition provides:

A "reasonable doubt” is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.

Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

In the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit him and say by your verdict “Not guilty”.

Geesa, 820 S.W.2d at 162.

. All emphasis is supplied unless otherwise indicated.

. In Geesa, we stated:

... The rule of this case, however, of adhering to the minimal standard of review enunciated in Jackson v. Virginia, was instituted on petition by the State, not at the defendant’s request.

Geesa, 820 S.W.2d at 165.

. Specifically, the new rules announced in Geesa were to implement the constitutional requirement that a criminal conviction cannot stand "except upon proof beyond a reasonable doubt.” Id.., 820 S.W.2d at 163 (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). This requirement is obviously “considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.” Marin v. State, 851 S.W.2d 275, 278 (Tex.Cr.App.1993).

. The State contends such a holding will conflict with our holding in Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Cr.App.1994). We disagree because Abdnor dealt with requested jury instructions. In Geesa we expressly held the reasonable doubt instruction was required “even in the absence of an objection or request.” Id., 820 S.W.2d at 162.

. In Geesa, we stated:

... Ordinarily, we would remand this cause to that court for reconsideration in light of our holding that circumstantial cases are to be analyzed solely under the standard of Jackson v. Virginia. However, because the jury was not instructed in accordance with the second part of our holding today, requiring a full definitional instruction on reasonable doubt, we must remand the cause to the trial court for a new trial.

Geesa, 820 S.W.2d at 154.

. The State argues that absolute systemic requirements cannot be judicially created but rather can be created only by the Legislature, see Marin, supra, or by the Constitution, see Stine, supra. We disagree. As the Tenth Court of Appeals correctly noted, the Geesa Court intended to create an absolute systemic requirement that every charge, where the burden of proof required the jury to find guilt beyond a reasonable doubt, contain the definitional instruction on reasonable doubt. Kieschnick, 911 S.W.2d at 162. We know of no prohibition of this Court from creating such a right and had there been such a prohibition we could not have ruled as the State requested in Geesa. Moreover, if the charge on reasonable doubt were not an absolute systemic requirement and trial judges were permitted to not charge the jury on reasonable doubt, our holding in Geesa would be seriously undermined and, in those circumstantial evidence cases where no reasonable doubt instruction was given, appellate courts would be back to "square one,” i.e., employing the “reasonable-hypothesis-of-innocence” analytical construct which erroneously continued the distinction between direct and circumstantial cases. Geesa, 820 S.W.2d at 165.

Finally, this case is not controlled by Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984)(Op’n on Reh’g), as the dissent suggests. Post 938 S.W.2d at 723-724. In Almanza, we interpreted Tex.Code Crim.Proc. art. 36.19. Id., 686 S.W.2d at 160. But, our holding in Geesa was not mandated by statute. Therefore, neither art. 36.19 nor Almanza was implicated by Geesa.

.The cases cited in part III supra reflect a casual attitude by some trial judges toward our express holding in Geesa. We cannot accept that the required instruction represents much of a burden on the trial judges of Texas. Therefore, remanding this case to the trial court for compliance with Geesa is not unjustified. See, Morales v. State, 872 S.W.2d 753, 756 (Tex.Cr.App.1994) (Clinton, Overstreet, Maloney and Meyers, JJ., concurring).