The majority overrules Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), on the ground that it is "poorly reasoned." This is an insufficient basis upon which to overrule precedent. Moreover, the majority's criticism of Geesa is not convincing. I would decline the State's invitation to overrule Geesa, but, in light of the Court's irreconcilable opinion in Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), would overrule Reyes v. State, 938 S.W.2d 718 (Tex. Crim. App. 1996) and disavow some of our language in Toney v. State, 979 S.W.2d 642 (Tex. Crim. App. 1998).

The majority overrules Geesa solely because it views Geesa as having been "poorly reasoned." Majority opinion at 4. The United States Supreme Court recently indicated that disagreement with the reasoning of a prior opinion is not enough to justify overruling it:

Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. While "'stare decisis is not an inexorable command,' " particularly when we are interpreting the Constitution, "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.' "

Dickerson v. United States, No. 99-5525 slip op. (June 26, 2000) (emphasis added) (citations omitted). The "poorly reasoned" test stands in stark contrast to the "series of prudential and pragmatic considerations" the Supreme Court has said ought to be considered in overruling precedent:

whether the rule has proven to be intolerable simply in defying practical workability, . . . whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, . . . whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, . . . or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992). While the Court today makes no attempt to consider anything other than its own disagreement with Geesa's reasoning, this Court has previously viewed consistency in the law as one of the critical considerations on the question of overruling precedent:

Those interests [underlying the rule of stare decisis] have much less force . . . when the precedent itself fails to produce consistency. When older precedent conflicts with a newer decision that is found to be more soundly reasoned, we may resolve the inconsistency in favor of the more soundly reasoned decision. . . . . And, in determining whether to retain or reject a particular rule of law, we may consider whether justifications proffered for the rule have been undercut with the passage of time.

Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex. Crim. App. 1998)(citations omitted); see also Busby v. State, 990 S.W.2d 263, 267 (Tex. Crim. App. 1999)(declining invitation to overrule precedent, court stated, "doctrine of stare decisis indicates a preference for maintaining consistency even if a particular precedent is wrong"), cert. denied, 120 S.Ct. 803 (2000). Serious lack of practical workability of the established precedent, inconsistency with related developments in the law, and diminishing importance or viability in light of developing law are key considerations that ought all be considered in questioning precedent.

The prior court's logic or reasoning should be given little, if any, consideration. Casey does not even mention such factor. The problem with the "poorly reasoned" standard is that it allows for overruling precedent based upon nothing more than a change in the Court's membership. ⁽¹⁾ Restated, the test is really, "would a current majority on the Court have voted for the prior opinion?" If not, it is "poorly reasoned" and may be overruled. This Court long ago recognized the threat to judicial integrity when the viability of precedent depends upon the personal viewpoint of the current court membership:

Where this court has held for a number of years to a given construction of the law, we feel bound thereby, and, if any change is to be made in the rule of decision adhered to for any great length of time, this is to be exercised by the legislative branch of the government, and not this court. We have followed, and are now following, the decisions of this court in many instances where we think it for the best interest of the state that the law was otherwise than as held by this court; yet, as we have heretofore said, the bar and the people of this state are entitled to know what is the law, and that it should not be subject to change by the mere opinion of one who is fortunate enough to be elected to this high position. As said in the Lewis Case, 127 S.W. 808: "For the reasons given here, we feel that at this late date to sweep aside the established rule and unsettle the law still further would be, if not judicial usurpation, at least without sufficient warrant in law and utterly inexcusable, and to proclaim ourselves as unworthy to sit on this high tribunal. It should never be forgotten that this is a land where the law reigns supreme. Uniformity and certainty of decision is of the highest importance. We are not so much to declare our personal views of what the law ought to be, but to lay down with as much definiteness and certainty as may be what it is, and, when so adjudged, to enforce it with inflexible fidelity, without passion, and without weakness. If, coming to this high position of power and responsibility, I may, moved by a mere personal opinion, in my day and time, unsettle and undo the work of the great men who have preceded me, consistent, coherent, and undoubted from the day when I was yet a briefless lawyer, the man who on the morrow takes my place will have the same warrant to undo and unsettle the rules we establish, and so on to the end of time.

Morris v. State, 64 Tex.Cr.R. 498, 142 S.W. 876, 877 (1912) (emphasis added). This type of judicial conservatism is no longer in vogue.

Turning to what have traditionally been appropriate factors for consideration on the question of overruling precedent, Casey, supra; Awadelkariem, supra, none of these considerations weigh in favor of overruling Geesa. The required definition has not "proven to be intolerable simply in defying practical workability." To the contrary, Geesa promotes consistency among the trial courts and circumvents conflict between the parties. Moreover, submission of a proper Geesa instruction precludes the possibility that the case would be reversed due to a constitutionally deficient definition. ⁽²⁾ See Sullivan v. Louisiana, 508 U.S. 275, 282 (1993)(constitutionally deficient reasonable-doubt definition given in jury charge is "structural error" and thus not amenable to harmless error analysis).

Neither does Geesa present an inconsistency with developing law. Thus, absent some indication that Geesa has presented a real problem in terms of practical application or some evidence that developing law is at irreconcilable odds with Geesa, it ought not be overruled.

Some of Geesa's lineage, however, is problematic enough to necessitate reconsideration. Casey, 505 U.S. at 854 ("[t]he obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit"). Geesa itself did not speak to the issue of whether a harm analysis would be appropriate in the event of error thereunder. This issue was expressly addressed in Reyes, supra, which held that failure to comply with Geesa was not subject to a harm analysis. In Reyes, the Court reasoned that Geesa error is immune from a harm analysis because it viewed the Geesa instruction as an "absolute, systemic requirement." We subsequently held in Cain, supra, that even error related to these types of features is not categorically immune from a harm analysis. Cain, 947 S.W.2d at 264 (even jurisdictional errors are not categorically immune from harm analysis). The only type of error categorically immune from a harmless error analysis is federal constitutional error labeled as "structural" by the United States Supreme Court. Id. The Geesa instruction is not constitutionally required, and thus a failure to give such instruction does not by any stretch fall within this narrow class of errors. Reyes and Cain are at irreconcilable odds and cannot both be retained. I would overrule Reyes in light of Cain. ⁽³⁾

Further, Toney's attempt to harmonize Geesa, Reyes and Cain, while a well-intentioned effort to preserve precedent, is not logically defensible. The Court's statement in Toney that a complete failure to give a Geesa instruction is not subject to a harm analysis cannot be harmonized with Cain's directive that no error is immune from a harm analysis. ⁽⁴⁾ I would disavow this statement and hold that Geesa error is charge error and, not being constitutional in nature, is subject to a harmless error analysis under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)(Op. on reh'g), cert. denied, 481 U.S. 1019 (1987).

The majority says Geesa is poorly reasoned because the definitional instruction is (1) "redundant, confusing and logically flawed" and "useless," "ambiguous" and "fallacious" and (2) not constitutionally required. This is harsh criticism considering a good portion of the Geesa instruction is based upon the definitions recommended by at least five federal circuits.

The majority criticizes the following portion of the instruction as "useless": "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." According to the majority, this "is like saying '[a] white horse is a horse that is white.'" Majority opinion at 6. But a number of federal circuits incorporate this instruction into their recommended definitions. 1 Federal Jury Practice and Instructions § 12.10 at 363 (West 1992) (Pattern Jury Instructions of the District Judges Association of the Fifth Circuit, Criminal Cases, Instruction No. 1.06 (1990) stating, "A 'reasonable doubt' is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case"); id. at 365 (Pattern Jury Instructions of the District Judges Association of the Sixth Circuit, Instruction No. 1.03 (1991), stating "A reasonable doubt is a doubt based on reason and common sense"); id. at 369 (Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Instruction No. 3.11 (1992), stating, "A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence"); id. at 372 (Pattern Jury Instructions of the District Judges Association of the Eleventh Circuit, Criminal Cases, Basic Instruction No. 3 (1985), stating, "A 'reasonable doubt' is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence in the case"); 1 Federal Jury Practice and Instructions § 12.10 at 81 (West Supp. 1997)(Manual of Model Criminal Jury Instructions for the Ninth Circuit, Instruction No. 3.3 (1997), stating, "A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation"). Because there are reasonable minds who do not view this instruction as "useless," this is a perfect example of why the "poorly reasoned" test should not carry the day.

The majority dislikes the instruction's following discussion of "hesitation":

[A reasonable doubt] 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.

The first portion of this instruction is similar to the preferred instruction of a number of federal courts. 1 Federal Jury Practice and Instructions § 12.10 at 363 (West 1992) (Pattern Jury Instructions of the District Judges Association of the Fifth Circuit, Criminal Cases, Instruction No. 1.06 (1990) stating, "Proof beyond a reasonable doubt, therefore, is 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"); id. at 365 (Pattern Jury Instructions of the District Judges Association of the Sixth Circuit, Instruction No. 1.03 (1991), stating "Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives"); id. at 369 (Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Instruction No. 3.11 (1992), stating, "A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act"); id. at 372 (Pattern Jury Instructions of the District Judges Association of the Eleventh Circuit, Criminal Cases, Basic Instruction No. 3 (1985), stating, "Proof beyond a reasonable doubt, therefore, is 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").

The majority says the second "hesitation" instruction is a "fallacious application" of the previous "hesitation" instruction. Their only support for this criticism is to say that the instruction "is like saying, 'Pneumonia makes you cough; therefore, if you cough, you have pneumonia." Majority opinion at 6. This illustration does not accurately parallel the definition and is not enough basis upon which to conclude the entire instruction ought to be thrown out. ⁽⁵⁾

Finally, the majority suggests that a Supreme Court holding in 1994 that the Constitution neither requires nor prohibits defining reasonable doubt is inconsistent with Geesa, implying that Geesa rested on constitutional grounds. Majority opinion at 7. But Geesa recognized its rule was "not of constitutional dimension[; rather, it] serve[d] to implement the constitutional requirement that a criminal conviction cannot stand 'except upon proof beyond a reasonable doubt.'" Geesa, 820 S.W.2d at 163.

If I had been on the Court at the time Geesa was decided, I might not have joined it. Or I might have. A judge's personal affinity for precedent ought to be irrelevant. ⁽⁶⁾ Today, personal dislike for precedent has become the standard for overruling it. I would reverse the Court of Appeals and remand to that Court to assess harm under Almanza. The majority reverses the Court of Appeals and affirms the trial court. For these reasons, I dissent.

Delivered Oct. 4, 2000

Publish

1. Although Geesa was decided just nine years ago, only one judge who voted for the opinion remains on the Court today. Geesa, supra (authored by Maloney, J., joined by McCormick, P.J., White, Campbell, Miller, Overstreet, Baird, and Benevides, J.J.. Clinton, J., dissented).

2. ² In the absence of a pattern definition, trial courts, and ultimately appellate courts, will be faced time and again with substantial debate on endless varieties of definitions that may or may not be constitutionally acceptable. This debate carries substantial risk, given that a constitutionally deficient definition is "structural error" and automatically reversible.

3. ² In holding that the Geesa instruction is an absolute, systemic requirement, the Court in Reyes pointed to the language in Geesa directing that the definition "shall" be submitted in "all" criminal cases, "even in the absence of an objection or request" by the parties. Reyes, 938 S.W.2d at 721. We further emphasized that the Geesa definition was fashioned to ensure proper implementation of the constitutional requirement that a conviction cannot stand without proof beyond a reasonable doubt, a requirement which is "so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system." Id. n.7 (quoting Marin, 851 S.W.2d at 278). While the constitutional requirement of proof beyond a reasonable doubt is a systemic and nonwaivable feature of our system, the explanation of what that standard means does not share the same status with the underlying constitutional principle. Admittedly, Geesa's directive that the definition be submitted in "all criminal cases" suggests that the instruction cannot be waived. However, the Court's modification of that directive with the further explanation, "even in the absence of an objection or request" could be read as allowing room for the possibility of an express waiver.

Reyes was undoubtedly wrong in characterizing the Geesa instruction as an absolute, systemic requirement. It is more likely a right that is expressly waivable. A "waivable only" right is one that the trial judge has an independent duty to implement, even without a request.

4. ³ Toney would need not be overruled, as it was decided correctly on its facts, holding that the error in giving a partial Geesa instruction was subject to a harmless error analysis.

5. While the Supreme Court has stated it does not view a definition of reasonable doubt as particularly helpful, it has approved the first "hesitation" explanation given in the Geesa instruction. Holland v. United States, 348 U.S. 121, 138 (1954). But even if one similar to the second "hesitation" explanation is given, it will not invalidate the instruction if the instruction taken as a whole nonetheless conveys the proper notion of reasonable doubt:

[The trial judge defined reasonable doubt] as "the kind of doubt . . . which you folks in the more serious and important of your own lives might be willing to act upon." We think this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, rather than the kind on which he would be willing to act. . . . [W]e feel that, taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.

Id.

6. The majority points out that I have previously indicated a willingness to re-consider the viability of Geesa. Majority opinion at 3. Of course, I assumed that any re-examination of Geesa would take into account the number of considerations appropriate for questioning precedent, as discussed in this opinion. And reconsideration does not necessarily mean overruling. I would also observe that I have become more judicially stodgy during my tenure here, and less inclined to revisit precedent absent compelling justification.