I concur in the majority's decision to overrule the part of Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) that concluded it was necessary to instruct juries on the definition of reasonable doubt. I also concur in the majority's decision to overrule Reyes v. State, 938 S.W.2d 718, 721 (Tex. Crim. App. 1996). I write only to express additional reasons in support of these decisions.

I.

Since this Court handed down its opinion in Geesa, members of this Court have subsequently questioned the wisdom of adopting the reasonable doubt instruction. In his concurring opinion in Reyes, Judge Meyers stated that the result in Reyes could not "be avoided after our unequivocal language in Geesa v. State, . 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." Reyes, 938 S.W.2d at 722 (Meyers, J., concurring). Judge Meyer's opinion in Reyes indicated that the issue of the continued viability of the Geesa instruction was not settled. See Shirley Baccus-Lobel and Gary Alan Udashen, Criminal Procedure: Pretrial, Trial and Appeal, 51 SMU L. Rev. 855, 871 (1998).

Two years later, Judge Womack followed Judge Meyers's suggestion in Reyes and reexamined the Geesa instruction in his concurring opinion in State v. Toney, 979 S.W.2d 642 (Tex. Crim. App.1998)(Womack, J. , with three judges, concurring). He proposed that this Court should overrule the parts of Geesa "that require this misbegotten definition of 'reasonable doubt.'" Id. at 652.

This Court should not frivolously overrule established precedent. We should generally endeavor to follow the doctrine of stare decisis to promote judicial efficiency and consistency, foster reliance on judicial decisions, and contribute to the actual and perceived integrity of the judicial process. See Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998). When this Court, however, comes to the conclusion that one of its prior decisions was poorly reasoned, or has proven to be unworkable in the lower courts, it would not promote or preserve the integrity of the judicial process to leave that prior decision intact. See id. I believe this Court's adoption of an instruction on the definition of reasonable doubt should be overruled in deference to analogous federal decisions, which were more soundly reasoned than our decision in Geesa. See Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex. Crim. App. 1998).

II.

In Geesa, this Court claimed that it was "evident that [Holland v. United States, 348 U.S. 121 (1954) and Jackson v. Virginia, 443 U.S. 337 (1979)] implicated the requirement of a full definitional instruction to the jury on reasonable doubt. 820 S.W.2d at 161. An examination of decisions by the federal courts reveals that there was no explicit support for an instruction on the definition of reasonable doubt before the Geesa decision, regardless of this Court's perceived implications of the holdings in Holland, or Jackson v. Virginia.

Thirteen years before this Court handed down Geesa, and after Holland had become part of the common law, the Fifth Circuit Court of Appeals reviewed a conviction wherein a Federal District Court instructed a jury on a definition of reasonable doubt. ⁽¹⁾ See U.S. v. Rodriguez, 585 F.2d 1234 (5^th Cir. 1978). The Fifth Circuit disapproved of the attempt to define or explain the phrase "beyond a reasonable doubt." "There is no want of jurisprudence with respect to how the reasonable doubt standard may be explained. ... Little new can, or should, be added after 200 years of judicial use of the same term." Id. at 1241. The Fifth Circuit also warned of the pitfalls of attempting to define the term. "We underscore the gravity of misstating this 'bedrock axiomatic and elementary principle' whose enforcement lies at the foundation of our criminal law." Id. at 1241.

Nine years later, and eight years after Jackson v. Virginia had become part of the common law, the Fifth Circuit Court of Appeals revisited the issue when it reviewed a death penalty conviction out of this State. See Thompson v. Lynaugh, 821 F.2d 1054, 1061 (5^th Cir. 1987). The Fifth Circuit concluded that,

although the jury must be instructed that the State bears the burden of proving the defendant's guilt beyond a reasonable doubt, attempts by trial courts to define "reasonable doubt" have been disfavored by this Court. Such attempts often result in using the term itself in the definition and serve only to confuse the concept in the minds of the jurors.

From the Rodriguez and Thompson decisions, it is clear that the Fifth Circuit did not favor the notion that juries should be instructed on the definition of reasonable doubt.

III.

The pre-Geesa decisions of the Fifth Circuit, in addition to the explicit wording of the Supreme Court in Victor v. Nebraska, 511 U.S. 1 (1994) ⁽²⁾, demonstrate that this Court erroneously relied on the "implications" of the decisions in Holland and Jackson v. Virginia when we concluded in Geesa that it was necessary to instruct juries on the definition of beyond a reasonable doubt. Furthermore, when I consider the phrase "beyond a reasonable doubt," I wonder why the phrase would need any explanation or definition at all. The small benefit, if any, which might possibly be gained by defining or explaining the phrase is overwhelmed by the confusion resulting from the attempt to define the phrase. One commentator observed that the phrase had been left without a definition for so many years to avoid confusing the jury.

One must assume the [Court of Criminal Appeal]'s conscious exclusion [of a definition of "beyond a reasonable doubt] was for a valid reason - perhaps inclusion of such a definition would over-complicate a jury's thought process and fail to give jury members credit for some rational thought process.

John J. Lapham, Criminal Law - Reasonable Doubt Definitional Instruction, 23 St. Mary's L.J. 1195, 1201 (1992).

The members of the average jury possess sufficient collective knowledge and common sense to be able to fairly and accurately apply the phrase without the benefit of a court's definition. "The 'reasonable doubt' standard serves to prevent a finding of guilt unless the evidence dispels those doubts that would be entertained by that most useful construct of law - the reasonable person - in this instance, a group of twelve reasonable persons who form a reasonable jury." Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U. L. Rev. 979, 983 (1993).

Moreover, the reasonable doubt instruction is phrased in a way that would only confuse a jury that would otherwise be able to understand and apply the burden of proof. First, the Geesa definition uses the concept of hesitation in order to distinguish a reasonable doubt from all others in an internally contradictory manner. On one hand, the instruction states that a doubt is considered reasonable if it caused a reasonable person to "hesitate to act in the most important of his own affairs." This effectively asks the jury to assess the reasonableness of the doubt by whether it would provoke them to inaction. But, as the Geesa court noted in the next paragraph, the jury is told to assess the reasonableness of the doubt by whether it would be sufficient to provoke them to action. The definition does so by instructing them that proof "beyond a reasonable doubt" must be so convincing that "you" would act upon it without hesitation in those same important personal affairs. This use of the concept of hesitation is dangerously ambiguous. What would a jury do if they encountered a doubt that caused them to hesitate to act? "Should they decline to convict because they have reached a point of hesitation, or should they simply hesitate, then ask themselves whether, in their own private matter, they would simply resolve the doubt in favor of action, and, if so, continue on to convict?" Id. at 983.

Secondly, the references in the Geesa instruction to the personal matters of the jurors in defining whether they would hesitate to act, or act without hesitation, stands the risk of trivializing the constitutional standard as well as the importance of the work which the jury is doing. In U.S. v. Noone, 913 F.2d 20, 28-29 (1^st Cir. 1990), cert. denied 111 S.Ct. 1686 (1991), the First Circuit Court of Appeals criticized an instruction which used the phrase "a matter of importance in his or her personal life." "The momentous decision to acquit or convict a criminal defendant cannot be compared with ordinary decision-making without risking trivialization of the constitutional standard. ... We admonish against the use of any such instruction, as an altogether unnecessary embellishment that risks juror misunderstanding of the reasonable doubt standard." Id. It cannot be predicted what an individual juror might believe was the "most important of his or her own personal affairs," especially when the Geesa instruction mandates that each of them conceive of what he or she believes is an important affair.

Lastly, I believe the wording of the Geesa instruction could confuse jurors into applying a reduced burden of proof on the State to prove its case. In the instruction, jurors are informed that a reasonable doubt is a "doubt based on reason." "A juror hearing the 'doubt based on reason' formulation might think that a generalized unease or skepticism about the prosecution's evidence is not a valid basis to resist entreaties to vote for conviction. This is probably a distortion of the concept the courts are seeking to implement. The standard ought not to mean that a doubt is reasonable only if the juror can articulate to himself or herself some particular reason for it." Newman, supra at 983. The Geesa instruction confuses the concept of "proof beyond a reasonable doubt," and it does not assist the trier of fact in the application of the burden of proof to the evidence at trial.

IV.

The constitutional standard of "proof beyond a reasonable doubt" needs no embellishment. For years, the standard conveyed to jurors the fact that they could not convict a fellow citizen without reaching the subjective state of near certitude of the guilt of that citizen. See id. at 984. The Supreme Court acknowledged in Victor v. Nebraska that a definition of reasonable doubt is not necessary under the Constitution. I believe the Geesa instruction is flawed by its own internal contradictions, confused phrasing and trivialization of the constitutional standard.

For the reasons set out above, I concur in the judgment of the majority.

HOLLAND, J.

Delivered on October 4, 2000.

Published.

1. The trial court instructed the jury:

A reasonable doubt means a doubt that is based on reason and common sense. Such doubt must be substantial rather than speculative.

U.S. v. Rodriguez, 585 F.2d 1234, 1240 (5^th Cir. 1978).

2. See ante at 7-8.