Reyes v. StateAnnotate this Case
938 S.W.2d 718 (1996)
Daniel REYES, Jr., Appellant, v. The STATE of Texas, Appellee.
Court of Criminal Appeals of Texas, En Banc.
October 30, 1996.
Terry M. Casey, Fort Worth, for appellant.
Tanya S. Dohoney, Asst. Dist, Atty., Fort Worth, Matthew Paul, Asst. State's Atty., Austin, for State.
Before the court en banc.*719 OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
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.R.App.P. 200(a)(1).II.
Prior to Geesa, we employed the "reasonable-hypothesis-of-innocence" 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 Hankins 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:*720 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 request, 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 Geesa, *721 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.
MEYERS, Judge, concurring.
The majority characterizes the submission of a reasonable doubt instruction as a systemic requirement that can neither be forfeited nor waived. Thus, the implementation of this requirement "cannot be avoided even with partisan consent" and, by necessary implication, a case in which both parties requested that the reasonable doubt instruction not be given must be reversed on appeal. *722 Marin v. State, 851 S.W.2d 275 (Tex.Crim. App.1993). Although somewhat troubling, this result cannot be avoided after our unequivocal language in Geesa v. State, 820 S.W.2d 154, 155(Tex.Crim.App.1991). Such a result may, however, compel a majority of this Court to reexamine Geesa in the future and, were that to happen, I might very well join them in that endeavor.
With these remarks, I join the majority's opinion.
MANSFIELD, Judge, dissenting.
Because I do not agree that failure to instruct the jury on reasonable doubt as required by this Court in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991) is reversible error per se, I must respectfully dissent to the holding of the majority.
After the police, pursuant to a search warrant, seized over 360 grams of cocaine from his residence, appellant was charged with aggravated possession with intent to distribute cocaine. A jury subsequently convicted appellant of this charge and sentenced him to thirty years in state prison and assessed a fine of $40,000. The jury also found appellant used or exhibited a deadly weapon during the commission of the offense and an affirmative finding was included in the judgment of conviction. Appellant's conviction was affirmed by the Second Court of Appeals. Reyes v. State, 906 S.W.2d 256 (Tex. App.-Fort Worth 1995).
This Court granted appellant's petition for discretionary review to consider the following two grounds:1. Did the court of appeals err in ruling the trial court did not commit reversible error by failing to instruct the jury on reasonable doubt as required by this Court in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991)? 2. Did the court of appeals err in holding the evidence was sufficient to show appellant used or exhibited a deadly weapon with intent to deliver cocaine?
The courts of appeals of this State that have had an opportunity to address the issue raised by appellant's first ground have reached conflicting conclusions. The Second Court of Appeals rejected, in the present case, appellant's contention that failure to give the Geesa instruction on reasonable doubt required automatic reversal, relying on its opinion in Ahmadi v. State, 864 S.W.2d 776 (Tex.App.-Ft.Worth 1993) (pet. refused April 24,1994).
In Ahmadi, the trial court's instruction on reasonable doubt lacked the following clause of the Geesa definition: "[U]nless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case." While acknowledging this omission was undoubtedly error, the court of appeals, given the absence of an objection by Ahmadi, held, citing Tex.R.App.Proc. 81(b)(2), the error was not harmful and made no contribution to the conviction or punishment. The court, accordingly, rejected Ahmadi's contention the error required automatic reversal. Ahmadi, supra, at 779. In the present case, the court of appeals found the failure to give the Geesa instruction to be harmless error under Rule 81(b)(2), as well as not egregious error under Almanza. Reyes, supra, at 258.
The First Court of Appeals considered the exact same error that occurred in Ahmadi, i.e., an instruction lacking the clause described above, where there was no objection by the defendant, in Boozer v. State, 848 S.W.2d 368 (Tex.App.-Houston [1st Dist.] 1993). The court found the error was harmless and, in fact, was beneficial to appellant. Boozer, supra, at 369. In other words, failure to give the Geesa instruction (or, presumably, giving an incomplete Geesa instruction) is error that is always preserved but that is subject to a harm analysis.
The Waco Court of Appeals, in Kieschnick v. State, 911 S.W.2d 156 (Tex.App.-Waco 1995) (op. on reh'g.), held that failure to give the Geesa instruction (the jury charge in this case totally omitted the Geesa instruction) was automatic reversible error, even in the absence of any objection by the appellant. Relying on Marin v. State, 851 S.W.2d 275, 279-280 (Tex.Crim.App.1993), the court of appeals held the right to the Geesa instruction on reasonable doubt is an absolute, systemic right not subject to waiver; therefore, every charge must contain it. Citing Stine v. *723 State, 908 S.W.2d 429, 430 (Tex.Crim.App. 1995), the court held that errorfailure to give the Geesa instructionwas not subject to a harm analysis, and, therefore, reversal was mandated. Kieschnick, supra, at 163, 164.
The record, which is not disputed by the parties, demonstrates the trial court failed to give the Geesa instruction on reasonable doubt. Appellant did not object to this failure and, as neither party called this matter to the attention of the trial court, it appears the trial court simply forgot to give the instruction. Jury charge error, whether due to an erroneous or incomplete charge, is generally examined in light of the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (op. on rehearing).
Initially, it should be noted appellant's assertion that an erroneous or incomplete jury charge is error requiring automatic reversal is not correct. In Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App.1994), we held:An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction. Tex.Code Crim. Proc. Art. 36.19 prescribes the manner of appellate review for jury charge error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge; and second, the court must determine whether sufficient harm resulted from the error to require reversal. Id. See also, Gibson v. State, 726 S.W.2d 129, 132 (Tex.Crim.App.1987). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected. Where there has been a timely objection made at trial, an appellate court will search only for "some harm." By contrast, where the error is urged for the first time on appeal, a reviewing court will search for "egregious harm." Almanza, supra at 171; Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986).
Abdnor, supra, at 732.
It is evident to me that failure to include the Geesa instruction in the jury charge is "charging error." Charging error is reviewed according to the standards established by this Court in Almanza and by the Legislature in Tex.Code Crim.Proc. Art. 36.19. As the requirement to give the Geesa charge is not specifically based on statute, Almanza provides the appropriate standard of review.
Under Almanza, where no objection to the charge was made, as in the present case, reversal is not appropriate unless the error claimed is so egregious as to have denied appellant a fair and impartial trial. Almanza, supra, at 172; Arline, supra, at 351-352. The degree of harmfulness of a charging error is determined by reviewing the entire record. Arline, supra, at 352. The record demonstrates that during final argument both parties referred to the State's burden of proof as beyond a reasonable doubt. During both voir dire and final argument, the State told venirepersons and jurors that a "reasonable doubt" is one that would cause a reasonable person to hesitate to act. This definition has met the approval of the Supreme Court, Victor v. Nebraska, 511 U.S. at 20, 114 S. Ct. at 1250, and closely tracks the *724 definition of "reasonable doubt" established by this Court in Geesa: "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." Geesa, supra, at 162. Thus, while the jury did not receive the written Geesa instruction on reasonable doubt, it was correctly informed of same as well as the State's burden of proof by both the State and counsel for appellant. Given this, there simply is no evidence that the error was calculated to injure appellant, much less deprive him of a fair and impartial trial.
An examination of the jury charge also shows the jury was instructed correctly as to the State's burden of proof, even in the absence of the Geesa instruction on reasonable doubt. The charge contains language that permitted the jury to convict appellant only if it found he committed all of the elements of the offense beyond a reasonable doubt. There is nothing in the record to indicate the jury did not understand the concepts of "reasonable doubt" or "burden of proof." Furthermore, the application paragraphs instructed the jury that "no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.... In case you have a reasonable doubt as to the defendant's guilt after considering all of the evidence before you, and these instructions, you will acquit him." These application paragraphs did not mislead the jury so as to deny appellant a fair and impartial trial.
Accordingly, I would hold that failure to give the Geesa instruction on burden of proof and reasonable doubt constitutes "charge error" that, on appeal, is to be reviewed in light of the standards set forth by this Court in Almanza, supra. In the instant case, failure to give the Geesa instruction, while error, did not, in light of the charge given, cause "egregious harm" to appellant and did not deprive him of a fair and impartial trial. Accordingly, I would overrule appellant's first ground for review and affirm the court of appeals' disposition of this ground.,
KELLER, Judge, dissenting.
I join Judge Mansfield's dissenting opinion and add the following:
First, the majority equates non-waivable error with automatic reversible error. The two are not synonymous in spite of Powell, Stine, and Sodipo. The majority admits that in Geesa this Court "created" what it here calls an absolute systemic right, and finds no prohibition against mandating reversal for the neglect of that right. Perhaps there is no prohibition, but it is my opinion that this Court should neither create rights nor declare that our creations are immune from a harm analysis.
Moreover, this is a direct evidence case. Thus, the jury charge that was given is the same as would have been given before Geesa. There cannot be harm in giving the very instruction that was given for years in every direct evidence case tried before Geesa.
I respectfully dissent.
McCORMICK, P.J., and WHITE, J., join.NOTES
 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).
 Appellant does not allege failure to give the Geesa instruction implicated any rights under the federal constitution; therefore, the harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) is not applicable to the present case. Additionally, the Supreme Court recently held the U.S. Constitution does not require state courts to give a jury instruction as to the definition of reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994). Furthermore, Tex.Rule App.Proc. 81(b)(2) is not applicable to charging error as the Legislature enacted Article 36.19 prescribing the standard of review to be used with respect to charge errors that violate Articles 36.14 through 36.18, and Almanza prescribes the standard of review with respect to "non-statutory" charge errors. Finally, we do not agree that failure to give the Geesa instruction in the absence of any objection by the accused violates a constitutional or statutory mandate or other absolute systemic requirement, as contemplated in Marin, supra, at 279, so as to constitute automatic reversible error. This is not to minimize, however, the importance of giving the Geesa instruction: if a timely objection was made at trial to the failure to give it, I would hold that failure would constitute reversible error.
 Compare the instant case to Powell v. State, 897 S.W.2d 307, 316, 317 (Tex.Crim.App.1994). In Powell, appellant requested and received, at the punishment phase, instructions as to the special issues that omitted the statutorily-required "deliberateness" special issue under Art. 37.071 as in effect for offenses committed prior to September 1, 1991. We held that the effective dates of statutes are absolute requirements, nonwaivable, and nonforfeitable; criminal defendants may not in Texas legislate the law to be applied in their case. Powell, supra, at 317, and reversed appellant's death sentence. In Powell, the wrong law was intentionally applied, whereas in the present case, a non-statutorily-mandated jury instruction was inadvertently omitted and there is nothing in the record below that either party requested said omission.
 The majority's disposition of appellant's first ground for review obviates the necessity of addressing his second ground for review as it has been effectively mooted.
 We could have, but did not, hold in Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993), that such errors were never subject to harmless error analyses.