Full opinion text
OPINION CLINTON, Judge. Appeal is taken from a conviction for the offense of burglary of a building. Punishment was assessed by the jury at 20 years confinement in the Texas Department of Corrections. Appellant complains of the trial court’s failure to submit to the jury his timely requested charge regarding the law of circumstantial evidence at the guilt-innocence phase of the trial. The sufficiency of the evidence to show appellant’s guilt for the burglary of a building is not challenged; however, in light of our disposition of this appeal, a detailed statement of the evidence adduced is necessary. Michael Moore, an officer assigned to the vice division of the Killeen Police Department, testified that on March 20, 1978, he responded to a call at The 439 Pawn Shop located in the East Lake Mall in Killeen. On arrival at the scene, he discovered the back door to the pawnshop open. Moore and his partner entered the store and upon closer inspection discovered a number of empty gun boxes strewn on the floor next to a glass display case. A search of the exterior of the building revealed a second possible entry point, an opening through the air conditioning system. Moore testified that there was a rope dangling from the roof to inside the building, and that this was probably the means used to gain access into the building. In addition to the rope, Moore also located a saw, a drill, a chisel and a pair of boots on the roof. The boots, on closer inspection, contained a wallet bearing identification belonging to appellant and a pair of car keys. Don Morgan, manager of The 439 Pawn Shop, testified that he arrived shortly after being called to the scene by the Killeen Police Department. A review of the store’s stock and premises revealed that thirty five new handguns with an invoiced wholesale value of $1,338.71 had been removed from display cabinets in the front of the store. Two of the guns stolen were .22 caliber derringers equipped with over-under barrels and white fake pearl handles, and another was a .357 magnum with a long barrel. They were never recovered. The police were unsuccessful in lifting any fingerprints from the pawnshop. Allan L. Mason was the third witness called by the State to testify. On the evening in question, Mason was standing outside his apartment complex on Bundrant Street when he noticed in the distance a man in a jacket holding a bag from which he took what appeared to be a .357 magnum. Upon noticing this suspicious person, Mason returned inside and called the Kil-leen Police Department. When Mason returned from the phone, the individual was gone. On direct examination by the State, Mason could only testify that the individual he saw that evening looked similar to the appellant. Mason was not asked to make an incourt identification. David Fails testified that on March 20, 1978, appellant was a temporary resident at the Fails home at 1116 Robindale. On the prior evening, appellant did not return to the Fails residence, and was not seen there until sometime between 9:15 a.m. and 9:30 a.m. the next morning. Fails stated that it was then that he confronted appellant about a billfold containing appellant’s identification which had been found at the scene of a pawnshop burglary. Appellant claimed no involvement with the burglary, stating that he had lost his billfold several days earlier. Randall Howard Carter, a friend of appellant, who also resided temporarily with the Fails, testified that on Thursday night, March 17, 1978, he and appellant had been at the Silver Spur Club, and while they were driving away from the club the clutch in appellant’s car broke. So, they left the car parked in a parking lot of Mickey’s Drive-In Grocery and took a cab to a motel. Carter stated that he and appellant were together through midafternoon on March 19, 1978. At that time, Carter and Fails dropped appellant off at the Silver Spur Club. Carter testified that he did not see appellant again until 8:00 or 8:30 a.m. on March 20, 1978. It was on that morning that Carter says he had a conversation with appellant in which appellant indicated that he would have $1,200 by the end of the day. According to Carter, appellant then displayed two pistols which he claimed to have obtained from breaking into a pawnshop. According to Carter, appellant said he had about 36 guns in a brown case under the hood of his car. Carter related that shortly after his conversation with appellant, Mrs. Fails returned home and asked appellant to leave. After appellant left, Carter told Mrs. Fails what he had learned from appellant. On the basis of facts related in that conversation, Carter and Mrs. Fails drove to appellant’s car. Carter testified that he opened the hood of the vehicle and observed a brown satchel. Both he and Mrs. Fails returned home, deciding not to contact the police about their discovery. Instead, Carter returned to appellant’s car with another friend three hours later. Once again the hood of the car was opened and a brown bag was observed. It was not until that night that Carter went to the Killeen Police Department to report what he claimed appellant had told him and also to report the observation of the brown bag under the hood of appellant’s car. After Carter related his story to the police, they informed him that he was also under suspicion in connection with the burglary. At the close of his testimony Carter admitted to several prior convictions. Charlene Connor, a friend of appellant’s, testified that on March 20, 1978, she received a phone call from appellant asking her to cover with regard to his whereabouts earlier that day. According to Connor, appellant offered her $100 to say she and appellant had been together to anyone who inquired of his whereabouts. Donna Fails verified her husband’s testimony that on March 20, 1978, appellant did not spend the night at their house. She, too, encountered appellant the following morning at her home, but at a different time than her husband. During appellant’s conversation with Mrs. Fails, he told her that he had lost his billfold at the Silver Spur. Mrs. Fails asked appellant to leave the house, and then she and Carter drove to appellant’s ear to look for a brown bag. Consistent with Carter’s testimony, Mrs. Fails claimed to have observed a brown bag under the hood of appellant’s car. On the advice of her husband, she decided not to go to the authorities. Larry Weber, who was employed by Dixon Paving on March 20, 1978, testified that while working near Mickey’s Drive-In Grocery he observed an older model black Ford parked nearby. At some point that morning, Weber saw a man, woman and child arrive in a pickup truck and get out and look under the hood of the Ford. About 45 minutes after they left, a young man arrived. Weber observed him go to the car, open the hood and remove a brown case. The man took the case and walked into a wooded area. When the man returned a little while later, Weber noticed that he no longer had the bag. It was 3 hours later that Weber noticed 2 different men arrive in a pickup truck. They got out and looked under the hood of the Ford, and then they drove off. Dan Smith, an investigator detective with the City of Harker Heights Police Department, said that a billfold he had lost a couple of days earlier. Appellant related that his employer had learned that appellant’s billfold had been found in a building that had been burglarized, and his employer was not sure which police department had recovered it. Smith testified that he had not yet learned that appellant was under suspicion for any offense, so he let him leave when the billfold could not be located. Captain Dennis Lewis, commander of the criminal investigation division of the Kil-leen Police Department, testified that he was responsible for the fingerprint investigation at the pawnshop. He indicated that they were unable to retrieve any readable latent prints from either the scene or the equipment left behind. A thorough metal detector search of the general area was not productive. After appellant was arrested and while he was being checked into jail, Lewis observed what he believed to be numerous grass stains on the bottoms of appellant’s socks. Lewis ordered the socks confiscated and tested to confirm the nature of the stains. An employee of Mickey’s Drive-In Grocery, Otis Hopper, stated that earlier in the week an individual had asked if he could leave his car parked on the grocery’s premises. The individual explained that the clutch had gone out on the car, and that he would have the car towed later that day. Hopper testified, however, that as of 7:00 a.m. the morning of March 20, 1978, the man had not yet returned for his car. Appellant took the stand at the guilt-innocence phase of the trial and maintained that on Thursday his car had broken down and that he had gotten permission to leave it on Mickey’s parking lot. On Sunday evening, he stayed at the Silver Spur until it closed around 2:00 a.m. Upon leaving the club, he encountered an individual, whom he knew only as “Joe,” and they smoked a “joint” together. Joe asked appellant to hold, or appellant was in the process of buying, a “package” of five kilos of marihuana; he placed the brown case under the hood of his disabled car. Appellant then left and went to a mobile home park where he believed a friend of his lived. He located what he thought was his friend’s car and fell asleep inside it. The next morning appellant was awakened by two strangers, who claimed to be the owners of the car. They informed appellant that his friend lived in a different mobile home, and was out of town for the weekend. The men agreed to give appellant a ride, and dropped him off at a Denny’s Restaurant. It was when appellant got ready to pay for his meal at the restaurant that he realized his billfold was missing. At the close of appellant’s testimony, both sides rested. Appellant timely made his request of the trial court to include an instruction on circumstantial evidence. Such request was rejected. Then, appellant timely objected to the trial court’s failure to include the circumstantial evidence charge on that aspect of law as is required by Article 36.15, V.A. C.C.P. The trial court overruled appellant’s objection. Appellant now -contends that the trial court committed reversible error in failing to submit a circumstantial evidence charge to the jury because there was no direct evidence from any source that appellant burglarized The 429 Pawn Shop, as alleged in the State’s indictment. We agree. Generally, proof that a defendant has admitted or confessed to having burglarized a building is direct and not circumstantial evidence of the main inculpatory fact and a charge on circumstantial evidence is not required. Richardson v. State, 600 S.W.2d 818 (Tex.Cr.App.1980); Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); Corbett v. State, 493 S.W.2d 940 (Tex.Cr. App.1973); Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970). The admission or confession must unequivocally admit the commission of the very same act charged in order to constitute direct evidence. Only in this instance is the trial court relieved of the necessity of instructing the jury on the law of circumstantial evidence where the State is relying on the admission to supply proof of the main inculpatory fact. Ridyolph, supra; Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1973); Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948). Even if an accused admits to the commission of a crime “it must be shown by the evidence and the confession of the accused that the crime admitted is the same crime for which the defendant is being tried if the circumstantial evidence charge is not given. If it is only by a process of inference from the admission that it can be determined that the accused committed the offense, the court should give the circumstantial evidence charge.” Ridyolph, supra. See also Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975); Hielscher, supra; and Martinez, supra. While it is clear in the instant case that appellant’s admission is direct evidence that he participated in the commission of an offense, it is equally clear that it does not constitute direct evidence that he was guilty of the burglary of The 439 Pawn Shop. See Casey, supra. Our next inquiry, then, is to consider whether the evidence in the case falls within a narrow exception to the requirement that a circumstantial evidence charge is mandatory if the main fact to be proved is established only by inferences from other facts, as announced in Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341 (1959). The Court held in Chapin that when the facts established, though they be circumstances, stand in such relationship one to another that the only logical conclusion to be drawn therefrom is that the accused inflicted the fatal injury, then failure to charge on the law of circumstantial evidence does not constitute error. The rationale of such a rule is obvious; what is less apparent is determining the appropriate application thereof, for circumstances though sufficient to support an inferred jury finding of guilt may nevertheless fall short of excluding every other reasonable hypothesis. Indeed, it is in such a case that the accused’s right to the submission of a circumstantial evidence instruction is crucial. See Frazier v. State, 576 S.W.2d 617 (Tex.Cr.App.1978); Hielscher, supra. In perpetuating the correct application of these principles of law, “each case must in a measure be tested by its own facts,” Patterson v. State, 416 S.W.2d 816, 819 (Tex.Cr.App.1967), considering the admission in light of all the other evidence. Ales v. State, 587 S.W.2d 686 (Tex.Cr.App.1979); Campbell v. State, 545 S.W.2d 791 (Tex.Cr.App.1977); Ridyolph, supra; Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973). In the instant case, appellant told another that he had burglarized a pawnshop, possessed thirty six pistols and that he had made arrangements to get rid of the pistols by selling them for “around $1200.00.” Other evidence disclosed that The 439 Pawn Shop was burglarized during the early morning hours of March 20, 1978. Entry into the building was made through a hole in the roof, while exit was through the back door of the pawnshop. At the entry site, officers located a pair of boots, a saw, a drill, and a chisel. A number of guns had been removed from glass display cases in the front of the building. The stolen handguns were not found. Many of the details surrounding the actual burglary of The 439 Pawn Shop are found to be missing from appellant’s declaration. Appellant’s statement makes no mention of when he committed the offense, nor is a specific time mentioned. Furthermore, appellant does not' give the name, location or description of the pawnshop he burglarized. And, finally, the record does not indicate one way or the other whether any other pawnshop in the area had recently lost handguns to a burglar. No fingerprint evidence linked appellant to the scene of the burglary of The 439 Pawn Shop. Compare Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974). Appellant was neither connected by any witness to the scene of the burglary, nor to flight therefrom or any other attempt to cover his participation in the offense. The State failed to establish any direct link between appellant and any fruit of the crime or that any instrumentality of the crime was ultimately traced to appellant. On appeal the State argues that appellant’s admissions were sufficient to show appellant’s burglary of The 439 Pawn Shop. The State’s brief states in relevant part: “The identity of the burglary is sufficiently shown by the admission that a pawn shop was burglarized when considered with the identity of the property taken and the finding of Appellant’s billfold, driver’s license, car keys and boots at the scene.” While apparently not intended as a confession of error, we are constrained to agree with this statement. See Hielscher, supra. The jury was indeed relegated in resolving the issue of appellant’s guilt — that the burglary in which he admitted his participation was in fact the burglary of The 439 Pawn Shop — to a process of inference. We are, therefore, unable to reach the conclusion that the State’s case was not one of circumstantial evidence, Martinez, supra, and such degree of doubt clearly dictated the submission of appellant’s requested charge. Frazier, supra. We hold that “where guilt must be inferred from circumstances in evidence, the trial court has the duty to give a charge regarding the law of circumstantial evidence, and it is not relieved of such duty by virtue of the fact that circumstances may strongly point to the accused.” Hielscher, supra, at 308. In refusing to submit appellant’s requested charge herein, the trial court committed reversible error. For the error in this regard, the judgment of conviction is reversed and this cause is remanded. ODOM, J., dissents. Before the court en banc. . Moore testified that in his opinion it was the opening of the back door which triggered the magnetic burglar alarm. . It was later determined that the guns were removed both from the locked display case as well as the underneath unlocked storage area. . It appears from the record that Harker Heights is a separate political subdivision adjacent to Killeen. . Ironically, appellant had come to the station-house on his own to report that his wallet was missing. Clearly skeptical, Captain Lewis warned appellant and took a voluntary statement from him. Though marked as an exhibit and identified by Lewis, the statement was not offered in evidence and does not appear in our record. .The first account was given on direct examination; the further explanation came on cross-examination. . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated. . In Chapin, supra, the evidence illustrated a longstanding enmity between the accused and the deceased which ended late one night when the ill feeling was reactivated by the deceased. The accused was heard to say he “ought to kill” the deceased “or cut his throat.” Thereafter, two witnesses observed the accused enter the deceased’s vehicle where a fist fight ensued; however, no witness saw the accused stab the deceased. After the fight, the accused exited the vehicle and the two witnesses spoke with the deceased who responded in “a low mumbling voice similar to his usual voice when intoxicated and said that it was all right for them to go home.” The deceased’s body was found five hours later in his car and an autopsy established that the cause of death was two stab wounds to the chest. The accused admitted that he was angered by the deceased’s calling him names, and after deceased hit him, he opened his knife and the two fell into the automobile fighting. However, the defendant denied stabbing deceased in the chest, admitting only that he “might have cut the deceased on the wrist.” . This rule has been restated many different ways, but ultimately, it has come to be known as “the close juxtaposition rule,” a rule “which basically dispenses with the necessity for a circumstantial evidence instruction where facts proven are so closely related to the main fact essential to guilt so as to be the equivalent of direct testimony.” Frazier v. State, 576 S.W.2d 617, 619 (Tex.Cr.App. 1978). . “There is a difference between the facts being in such a juxtaposition to warrant an inference of guilt and facts being in such a juxtaposition as to be equivalent of direct testimony. The former, no matter how strong they are or how certain is the guilt of the accused, cannot justify a failure to charge on circumstantial evidence. The latter set of facts will occur only where the evidence is such that it is logically and practically the virtual same thing as direct evidence of the factum probandum. ” Riggins v. State, 468 S.W.2d 841, 846 (Tex.Cr.App.1971). . Compare Ales, supra; Ridyolph, supra; Hogan, supra; Steel, supra; Patterson, supra; Chapin, supra. Compare also King v. State, 585 S.W.2d 720 (Tex.Cr.App.1979) in which the testimony of two witnesses connecting appellant to the scene a few minutes prior to the discovery of the theft, constituted the precise distinction in this regard between that case and the one before us. . Compare Campbell, supra; Ridyolph, supra; Knight v. State, 538 S.W.2d 101 (Tex.Cr.App.1975); Corbett, supra. . Compare Swift, supra; Corbett, supra; Patterson, supra. . Compare Ales, supra; Ridyolph, supra; Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App. 1974); Swift, supra; Hogan, supra; Chapin, supra. . The Court’s reversal on the failure to submit a circumstantial evidence charge obviates the need for us to address appellant’s other ground of error regarding the use of prior convictions.
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 concurring 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 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. 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). A 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 circumstances 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.)
MILLER, Judge, concurring and dissenting. Today the majority dispenses with the necessity of instructing the jury on the law of circumstantial evidence, a Texas legal tradition over a hundred years old, and yet continues the prohibition against instructing the jury on a definition of reasonable doubt, a Texas legal tradition over a hundred years old. The logic for the latter is cursorily explained in a footnote purporting to distinguish the Holland decision. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). The majority concludes in that footnote that Holland followed a local practice of giving an elaborate definition of reasonable doubt, a conclusion apparently drawn from an imaginative interpretation of footnote two in State v. Lasley, 583 S.W.2d 511 (Mo.1979). As will be pointed out below, this conclusion is not supported by legal research. The majority further ignores the wording in Holland, “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 ...,” Holland, supra, 348 U.S. at 139-140, 75 S.Ct. at 137 (emphasis supplied), and states that the fact that Texas does not define reasonable doubt is insignificant. While I do agree that the circumstantial evidence charge is “confusing and improper” and should be abolished, I don’t agree with the majority’s implied assumption that a jury is not confused by the naked and undefined term “reasonable doubt.” In other words, the majority does not go far enough to clear up the confusion of which they complain. We seem today to apply a Band-Aid approach to the ultimate issue before us; that is, the issue of what do we tell a jury when they ask, “How convinced must we be?” I submit that we should answer the question itself in such a way that a jury will be informed in both the simplest and most complete manner possible, given the inherent limits of the English language. Presiding Judge Onion’s dissent cites a long list of Texas cases that stand for the proposition that reasonable doubt should not be defined in criminal cases. A minority of state jurisdictions agree. But the United States Supreme Court, in Holland, supra, seems to, at the very least, sanction as correct a definition which is now contained in Devitt and Blackmar, Federal Jury Practice and Instructions, Section 11.-14 (3d Ed. 1977), previously Section 11.01 (2d Ed. 1970). This definition can be substantially worded as the kind of doubt that would make a reasonable person hesitate to act in the conduct of their more serious and important personal affairs. This concept of reasonable doubt as a jury charge has been either sanctioned or mandated in every federal courtroom in every city in forty-seven of our fifty states. Perhaps the United States Court of Appeals for the Tenth Circuit (from which Holland, supra, arose) said it best in United States v. Leaphart, 513 F.2d 747 (10th Cir.1975): The time has unquestionably arrived after Holland, Smaldone, and Pepe for the trial courts to change this [reasonable doubt] instruction and to couch it in the terms prescribed by the Supreme Court of the United States.” (Emphasis supplied) Leaphart, supra, at 750. In Flores v. State, 487 S.W.2d 122, 126 (Tex.Cr.App.1972), this court reiterated the proposition that “this court is not bound by decisions of lower federal courts.” Not bound, to be sure, but how can we be so obstinant as to be not occasionally guided? The majority’s statement that “we join the growing trend of state courts” is misleading. As stated by the Supreme Court of Missouri, in Lasley v. State, 583 S.W.2d 511 (1979), cited in footnote 2 by the majority: “Unlike Missouri, most of the jurisdictions [abolishing the circumstantial evidence charge] cited by respondent permit jury instructions to define the phrase ‘reasonable doubt’, most of the cases from other jurisdictions cited by the respondent indicate that some sort of elaboration on the phrase ‘reasonable doubt’ was made at the trial level and hedged the abrogation of the circumstantial evidence instruction with the qualification that it is not needed where the jury is adequately instructed on the standards for reasonable doubt.” Lasley, supra. (Emphasis supplied) (Citations omitted) In fact, by abandoning the circumstantial evidence charge and further declining to define reasonable doubt for a jury, we today join a very small minority of states who likewise define neither concept. We also join the Seventh Circuit, which stands alone in the face of the other ten federal circuit courts. It is further noted that no trend to abolish the practice of defining reasonable doubt to juries is occurring, since in the last ten years not a single state which defines reasonable doubt to juries has abolished the practice. Why then are we joining the small minority of jurisdictions that neither charge the jury on circumstantial evidence nor define reasonable doubt to them? Returning to the ultimate issue before us, which is what do we tell a jury when they ask, “How convinced must we be?”, I submit that in both direct and circumstantial evidence cases, when requested by either party or on the court’s own motion, we should require a charge on the definition of reasonable doubt in substantial compliance (see examples in footnote three) with the “hesitate to act” standard. ONION, Presiding Judge, dissenting. Lady Macbeth: Why did you bring these daggers from the place? They must lie there: go carry them, and smear The sleepy grooms with blood. Macbeth: I’ll go no more .... Lady Macbeth: Give me the daggers ... I’ll gild the faces of the grooms withal; For it must seem their guilt. Shakespeare, Macbeth, Act 2, scene 2. On original submission a panel of this court reversed this cause for the refusal of the trial court to give a charge on the law of circumstantial evidence. One judge dissented without written opinion. The district attorney, who prosecuted the cause, asked in his motion for leave to file a motion for rehearing only for re-consideration of his earlier argument that such a charge was not required by the evidence in this case. The State Prosecuting Attorney, inter alia, asks this court to “wipe away” the charge from our jurisprudence. This request has recently been rejected by this court. Richardson v. State, 600 S.W.2d 818 (Tex.Cr.App.1980); Galvan v. State, 598 S.W.2d 624 (Tex.Cr.App.1979). An examination shows the panel opinion in the instant case was in accordance with precedents prevailing for well over a century. Nevertheless, the majority seizes upon this case as a vehicle to abolish the requirement of a cautionary jury on the law of circumstantial evidence for the stated reasons that (1) it is a currently popular thing to do, and (2) the giving of the long approved circumstantial evidence charge is now somehow inherently confusing even when considered with a nondefinitional charge on reasonable doubt. It is well settled that the distinction between the circumstantial and direct evidence and the Texas practice be first explored. In Wharton’s Criminal Evidence, 13th ed., Vol. I, § 6, p. 4, it is written: “A distinction is drawn between direct evidence and circumstantial evidence. Evidence is direct when the witness testifies as to the facts in dispute on the basis of his own knowledge of them. Circumstantial evidence assumes a witness who has no knowledge of the facts in dispute, but knows of other facts and circumstances which, when offered in evidence, may permit the fact finder to infer that the facts in dispute existed or did not exist. The inference will be drawn if, in accordance with the common experience of mankind, a reasonable relationship may be perceived between the known facts and circumstances and the facts sought to be proved.” In Crawford v. State, 502 S.W.2d 768, 769 (Tex.Cr.App.1973), it was written: “This court has for some time held that the distinction between circumstantial evidence and direct evidence is that the latter applies directly to the ultimate fact to be proved, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proved. Beason v. State, 43 Tex.Cr.R. 442, 67 S.W. 96 (1902); Brown v. State, 126 Tex.Cr.R. 449, 72 S.W.2d 269 (1934); Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972) (on State’s Motion for Rehearing).” In Brown v. State, 126 Tex.Cr.R. 449, 453, 72 S.W.2d 269, 271 (1934), this court stated: “[Circumstantial evidence is direct evidence as to the facts deposed to but indirect as to the factum probandum.” See also Ramos v. State, 478 S.W.2d 102, 105 (Tex. Cr.App.1972). In State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43 (1948), the Missouri Supreme Court wrote that it had defined direct evidence as “ ‘evidence which if believed proves the existence of the fact in issue without inference or presumption, while circumstantial evidence is evidence, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.’ ” In Note: Gaffney, The Circumstantial Evidence Charge in Texas Criminal Cases; A Retrograde Doctrine, Texas Law Review, Vol. 55, 1255, 1262, it is written: “In effect, direct evidence constitutes a subset of evidence that triggers an immediate inference of a proposition, while circumstantial evidence represents a subset that gives rise to more attenuated inferences in that either a longer time or a longer chain of elements is necessary to complete the inference to a particular proposition.” While many courts and writers have agreed that circumstantial and direct evidence have equivalent probative value, it has been said the four basic reasons for the distrust of circumstantial evidence are: (1) circumstantial evidence is inherently less accurate in proving a fact; (2) circumstantial evidence has led to gross injustices in the past; (3) people have a psychological propensity to weave theories from circumstantial evidence and then to defend their theories because of vanity or pride; and (4) unpopular or grizzly criminal cases often lead juries to draw rash inferences in order to establish guilt. A fifth possible reason is the general public distrust of convictions by circumstances of possibly innocent individuals. See Note: Gaffney, The Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine, Texas Law Review, Yol. 55, 1255, 1256-57. Apparently following Lord Hale’s lead, Chief Justice Shaw of Massachusetts in Commonwealth v. Webster, 59 Mass. (5 Cush) 295 (1850), adopted for the court the requirement of a cautionary jury instruction on the law of circumstantial evidence, which soon became known as the “Webster Charge” and its use spread throughout the mid-nineteenth century United States. Webster adopted two rules. The first rule related to the sufficiency of the evidence to sustain a conviction based on circumstantial evidence. The second rule logically followed the first for the jury was entitled to be informed of the law applicable to the case. The second rule of Webster required that the jury should be specifically instructed as to the first. In 1855 the Texas Supreme Court, which then had criminal jurisdiction, in Henderson v. State, 14 Tex. 503, 514, adopted the first rule of Webster which expressed the legal formula for testing the sufficiency of circumstantial evidence which is still the test today. In Henderson the court quoted with approval the test from Webster, which was and is the basis for the cautionary jury instruction on the law of circumstantial evidence. The necessity of such charge was not involved in Henderson and it was not there discussed. Having established the test for determining the sufficiency of circumstantial evidence to sustain a conviction, the court made clear in cases that followed that the jury should be so charged on the subject where applicable. In Burrell v. State, 18 Tex. 713 (1857), the court reversed as to the co-defendant Burns whose case rested wholly upon circumstantial evidence because the loosely worded cautionary charge on circumstantial evidence given by the court might have given the jury the confused impression that direct evidence existed. The Burrell court did hold the trial court did not err in refusing the requested charges on circumstantial evidence because they were not in proper form. The court made clear, however, that where the case rested wholly on circumstantial evidence the defendant was entitled “to have the law applicable to it given in charge to the jury.” In Brown v. State, 23 Tex. 195 (1859), the Supreme Court held that the defendant’s requested charges on circumstantial evidence were taken from the commentaries of elementary authors and would have constituted a comment on the weight of evidence if given. There was no error in the court refusing to give such requested charges. Following the effect of the earlier cases, the Court of Appeals in Harrison v. State, 6 Tex.App. 42 (1879), held that the trial court reversibly erred in refusing the requested charges on circumstantial evidence. In the same year the Court of Appeals in Hunt v. State, 7 Tex.App. 212 (1879), reversed the case for the failure of the trial court to charge on the law of circumstantial evidence. In pertinent part the court wrote at pp. 235-236: “It is no new principle in the law of this State that to justify a conviction upon circumstantial evidence alone the facts relied on must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. Barnes v. The State, 41 Texas, 342; Black v. The State, 1 Texas Ct.App. [368] 391. If this be so, certainly a jury called to pass upon a case of that character should be informed of the rule as a part of the law applicable to the case. An ordinary charge upon the law of reasonable doubt, copied from the statute, cannot convey to their minds a clear conception of this exaction of the law, when a conviction is sought upon circumstantial testimony alone; and without some definite rule for their guidance — a rule which will serve to impress itself on their minds, and cause them to weigh most carefully all the facts, isolated or connected, from which they must reach their conclusion by reasonable inference — they are not unlikely, in many instances, to found their verdict upon strong suspicion or mere probability, which will not suffice under the law. Tollett v. The State, 44 Texas, 95. “In prosecutions for ordinary felonies, juries are required to be instructed as to the law of reasonable doubt, even when the evidence is of a positive character and can lead to but one legitimate conclusion. It is much more essential, in a prosecution in which nothing is proved by positive testimony save the corpus delicti, that the jury be further instructed as to the conviction which must impress itself upon their minds, drawn by inference from the circumstances in evidence, before they can say that, beyond a reasonable doubt, the prisoner before them perpetrated the act. And it is believed that the adjudged cases in our State furnish no instance of a conviction for a grave felony upon circumstantial testimony alone, unless the charge of the court plainly directed the jury as to the principles of law which should govern them in reaching their conclusion; and we have already held it error to refuse a charge of this character when asked in a proper case. Harrison v. The State, 6 Texas Ct.App. 42.” (Emphasis supplied.) After discussing the cases of Burrell and Brown, supra, as well as Cave v. State, 41 Tex. 182 (1874), and Chester v. State, 1 Tex.App. 702 (1877), the Hunt court continued at pp. 237-238: “The usual rule in relation to circumstantial evidence, which is a familiar one to the profession, cannot be deemed a philosophic dissertation upon the nature and effect of evidence, and therefore within the prohibition of the Code as an invasion of the province of the jury, but is to be regarded rather as a rule of law applicable to all cases in which a conviction is sought upon circumstantial evidence alone, and the giving of which to a jury, in the general language usually employed, cannot specifically affect any one fact in evidence or materially prejudice the prosecution. And when given, enuring solely to the benefit of the defendant, he cannot be heard to complain. It is only another application of the doctrine of reasonable doubt, which the humanity of the law vouchsafes to prisoners on trial, when the evidence against them is wholly circumstantial; and an instruction embodying it simply informs the jury what degree of certainty the facts in the evidence must produce in their minds before they can convict, just as a charge upon the reasonable doubt does in ordinary cases. The failure of the court to give an instruction upon this branch of the law was error which will require a reversal of the judgment.” (Emphasis supplied.) Hunt was immediately followed by such cases as Smith v. State, 7 Tex.App. 382 (1879); Heath v. State, 7 Tex.App. 464 (1879); Struckman v. State, 7 Tex.App. 581 (1880); Wallace v. State, 9 Tex.App. 299 (1880); and Early v. State, 9 Tex.App. 476 (1880). In Barr v. State, 10 Tex.App. 507 (1881), the conviction was reversed because the charge on circumstantial evidence was defective and insufficient. There the court wrote, referring the earlier case of Henderson: “In this case (Henderson) whilst it is not decided what a charge on circumstantial evidence should contain, it is apparent that in the opinion of the Supreme Court the charge in Webster’s was, to say the least, an appropriate instruction on such a subject; as was held by this Court in Hampton v. State, 1 Texas Ct.App. 652 “It was not until decision of the case of Hunt v. State, 7 Tex.Ct.App. 212, that it was ever expressly decided in Texas that in trials for felony where the proof of guilt depended alone on circumstantial testimony the court should charge on that character of evidence as a part of the law of the case .... ” The goal in requiring a cautionary instruction on the law of circumstantial evidence was to protect the criminally accused from jury conjecture and speculation. The rules discussed above regarding the test for the determination of the sufficiency of the evidence to sustain a conviction based on circumstantial evidence and the necessity of a charge on circumstantial evidence where required have been constantly applied until today. The cases supporting these rules are legion. These rules have prevailed for over 127 years in this state as the Texas Supreme Court, the original Court of Appeals and the Court of Criminal Appeals have been courts of last resort in criminal matters. The practice under these rules have passed the muster of many appellate judges over the years. Under this practice, the use of the charge is required only when the prosecution’s case rests entirely, totally or wholly upon circumstantial evidence or relies on circumstantial evidence to prove the “main facts” of the alleged crime. Ransonette v. State, 550 S.W.2d 36, 43 (Tex.Cr.App.1977), and cases therein cited; Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977). In a Texas criminal case, the judge must charge the jury on the law of circumstantial evidence if the defendant timely objects or timely requests a charge thereon. See Ellis v. State, 551 S.W.2d 407 (Tex.Cr.App.1977). Compare Mills v. State, 508 S.W.2d 823 (Tex. Cr.App.1974). Failure of the trial judge to so charge where the defendant is entitled to such charge provides a basis for reversal. See, e.g., Ellis v. State, 551 S.W.2d 407 (Tex.Cr.App.1977); Moore v. State, 531 S.W.2d 140 (Tex.Cr.App.1976); Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1973). In Texas the cautionary jury instruction on circumstantial evidence normally takes the following form: “You are instructed that in this case the state relies on circumstantial evidence for a conviction. In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt; all the facts (that is, the facts necessary to the conclusion) must be consistent with each other and, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. But in such cases it is not sufficient that the circumstances coincide with, account for, and therefore render probable the guilt of the defendant. They must exclude, to a moral certainty, every other reasonable hypothesis except the defendant’s guilt; and unless they do so, beyond a reasonable doubt, you will find the defendant not guilty.” State Bar of Texas, Texas Criminal Pattern Jury Charges, § 0.01 (1975). See also McClung, Jury Charges for Texas Criminal Practice (1981), p. 260; 1 Branch’s Anno.P.C.2d ed., § 373.1, p. 395; Morrison and Blackwell, Texas Practice, Vol. 8, Criminal Forms Anno., 8th Ed., § 82.02, p. 168. Normally the above charge is given with instructions on presumption of innocence, burden of proof, and reasonable doubt. See and cf. McClung, Jury Charges for Texas Criminal Practice, pp. 242-243. This charge usually tracks in part V.T.C.A., Penal Code, § 2.01 (1974), and Article 38.03, V.A.C.C.P. [as amended (Acts 1981, 67th Leg., p. 2247, ch. 539) ]. These statutes are now identical and read: “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.” The term “reasonable doubt” is not normally defined in a Texas criminal case. A host of cases hold that it should not be defined. See, e.g., Massey v. State, 1 Tex. App. 563, 570 (Ct. of Appeals 1877); Fury v. State, 8 Tex.App. 471 (1880); McPhail v. State, 9 Tex.App. 164 (1880); Cohea v. State, 9 Tex.App. 173 (1880); Schultz v. State, 20 Tex.App. 315 (1886); Johnson v. State, 27 Tex.App. 163, 11 S.W. 106 (1889); Lenert v. State, 63 S.W. 563 (Tex.Cr.App.1901); Holmes v. State, 68 Tex.Cr.R. 17, 150 S.W. 926 (Tex.Cr.App. 1912); Sanchez v. State, 69 Tex.Cr.R. 1134, 153 S.W. 1133 (Tex.Cr.App.1913); Marshall v. State, 76 Tex.Cr.R. 386, 175 S.W. 154 (Tex.Cr.App.1915); Bennett v. State, 91 Tex.Cr.R. 422, 239 S.W. 951 (Tex.Cr.App.1922); Sagu v. State, 94 Tex.Cr.R. 14, 248 5.W. 390 (Tex.Cr.App.1923); Gallegos v. State, 152 Tex.Cr.R. 508, 215 S.W.2d 344 (Tex.Cr.App.1949); Pierce v. State, 159 Tex. Cr.R. 504, 265 S.W.2d 601 (Tex.Cr.App.1954); Pigg v. State, 162 Tex.Cr.R. 521, 287 S.W.2d 673 (Tex.Cr.App.1956). Cf. Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973). Thus in Texas only a nondefinitional charge on “reasonable doubt” is normally given in a criminal case. And early on it was held that the omission to charge on the law of circumstantial evidence is not cured by the ordinary charge on reasonable doubt. Hunt v. State, 7 Tex.App. 212, 235-236 (1879); Wallace v. State, 7 Tex.App. 570, 574 (1880); Struckman v. State, 7 Tex.App. 581, 582 (1880). Under this practice also, after a conviction, every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Earnhart v. State, 575 S.W.2d 551, 554 (Tex.Cr.App.1979); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973). A conviction on circumstantial evidence, however, cannot be sustained if the circumstances proved do not exclude every other reasonable hypothesis except that of the guilt of the accused and proof amounting to only strong suspicion or mere probability is insufficient. Flores v. State, 489 S.W.2d 901 (Tex.Cr.App.1973); Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1972); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969); Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745 (Tex.Cr.App.1956). With this background, a review of the majority’s action is in order. Professing admiration for and embracing the 28-year-old Holland, the members of the majority display by their words they do not understand the object of their affection. They never even explain why this court has never before been lured by Holland’s charms. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), involved a federal prosecution for income tax evasion. There the Supreme Court wrote: “Petitioners press upon us, finally, the contention that the instructions of the trial court were so erroneous and misleading as to constitute grounds for reversal. We have carefully reviewed the instructions and cannot agree. But some require comment. 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 hyp