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 “confus*201ing and improper”1 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.2 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.3 Perhaps the United *202States 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 750.4
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.5 Why then are we joining the *203small 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.6
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 *204precedents 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,1 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 circum*205stantial 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,2 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.3 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,4 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:
*206“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 *207wrote, 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.5
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.
*208Normally 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).6
*209With 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 hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, Garst v. United States, 4 Cir., 180 F. 339, 343; Anderson v. United States, 5 Cir., 30 F.2d 485-487; Stutz v. United States, 5 Cir. 47 F.2d 1029, 1030; Hanson v. United States, 6 Cir., 208 F.2d 914, 916, 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, United States v. Austin-Bagley Corp., 2 Cir., 31 F.2d 229, 234, certiorari denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002; United States v. Becker, 2 Cir., 62 F.2d 1007, 1010; 1 Wigmore, Evidence (3d ed.), §§ 25-26.
“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.
“Even more insistent is the petitioners’ attack, not made below, on the charge of the trial judge as to reasonable doubt. He defined it as ‘the kind of doubt ... which you folks in the more serious and important affairs 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, see Bishop v. United States, 71 App.D.C. 132, 107 F.2d 297, 303, rather than the kind on which he would be willing to act. But we believe that the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some. A definition of a doubt as something the jury would act upon would seem to create confusion rather than misapprehension. ‘Attempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury,’ Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481, and we feel that, taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.” (Emphasis supplied.)
*210It is obvious that the holding in Holland was not of federal constitutional dimension and was not binding in any way on the states, which is evidenced by the fact that Texas has for 28 years chosen not to follow such federal holding.
The Holland holding made clear that an additional cautionary charge on the law of circumstantial law (that it must be such as to exclude every reasonable hypothesis other than that of guilt) need not be given “where the jury is properly instructed on the standards for reasonable doubt.” The omission of the former is permissible only where the latter is properly given.
In Holland, itself, as earlier observed, the trial court defined “reasonable doubt” as the kind of doubt on which a juror would be willing to act. The Supreme Court did not approve this standard but thought the term should have been defined as the kind of doubt that would make a person hesitate to act. Nevertheless, the Court felt the instructions taken as a whole correctly conveyed the concept of reasonable doubt to the jury. Thus, the court found the standard for reasonable doubt satisfactory under the circumstances.
The presumption underlying the Holland doctrine is that an adequate instruction on the standard for reasonable doubt fulfills the function of the cautionary instruction on the law of circumstantial evidence and results in possibly less jury confusion in evaluating direct and circumstantial evidence. The essence of the Holland doctrine, of course, is that the probative value of direct and circumstantial evidence is not to be distinguished.
In Law and Water Law Review, Vol. XI, pp. 623-632, Note [Evidence — Abrogating The Cautionary Instruction In Criminal Prosecutions, Relying Substantially On Circumstantial Evidence, Blakely v. State, 542 P.2d 857 (Wyo.1975) 1976], it was written:
“The Holland Court specifically approved the use of three instructions. The burden of proof instruction is used to fulfill the same policy as it promoted in the pre-Blakely era in Wyoming. The Court approved a reasonable doubt instruction that not only set the standard of evaluation for purposes of conviction, but also elaborated on the meaning of the term ‘reasonable doubt.’ The function of this instruction was both to guide the jury’s evaluation of the evidence and to provide an insight into the meaning of the standard, the goal being to limit jury speculation. Finally, the Court provided the groundwork for an instruction specifically equating the probative value of direct and circumstantial evidence. The function of this new Holland instruction was to ensure that circumstantial evidence was not relegated to an inferior status.”7
There are four instructions to be kept in mind with any discussion of the Holland doctrine. They are: (1) the presumption of innocence and burden of proof charge; (2) the reasonable doubt charge; (3) cautionary charge regarding circumstantial evidence; and (4) the Holland instruction discussed above (footnote # 7).
In Land and Water Law Review, supra, at pp. 628-629, it was also stated:
“A jurisdiction adopting the Holland doctrine ought to heed the Supreme Court’s expressed concern for the unrestricted application of the Holland rule. The Court recognized that the dangers inherent in criminal prosecutions founded solely on circumstantial evidence are not to be lightly considered. The Court sug*211gested a number of safeguard instructions to be used in conjunction with the Holland instruction as alternatives to the cautionary instruction. The practice of other jurisdictions that have adopted Holland is essentially a function of how these safeguards are utilized at the trial level.
“One practice under the Holland standard allows full definitional explanation of the reasonable doubt standard. State courts practicing under Holland have expressed nearly universal concern as to the adequacy of the reasonable doubt instruction which is used to replace the cautionary instruction on circumstantial evidence. Upon abrogating the cautionary instruction, both federal and state courts have been very careful to ensure that the reasonable doubt standard is fully developed within the context of instructions. This practice, using the burden of proof instruction, the Holland instruction, and a fully definitional reasonable doubt instruction, is consistent with the recognized policy under Holland of providing maximum protection of an accused from potential jury speculation and conjecture, since the reasonable doubt instruction is expanded to fulfill the function of the cautionary instruction.” (Emphasis supplied.)
It is interesting to examine some of the state cases cited by the majority as following Holland in abolishing the necessity for a charge on circumstantial evidence “where the jury is properly instructed on the reasonable standard."
In State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (Kan.S.Ct.1974), proof of the defendant’s guilt was based almost entirely on circumstantial or indirect evidence. On appeal the defendant complained the trial court refused to give the “reasonable hypothesis” charge on circumstantial evidence. In rejecting the contention, the court noted the charge which was given on presumption of innocence, burden of proof and reasonable doubt as follows:
“Instruction No. 2. The law places the burden upon the State to prove the defendant is guilty. The law does not require the defendant to prove his innocence. Accordingly, you must assume that the defendant is innocent unless you are convinced from all the evidence in the case that he is guilty.
“You should evaluate the evidence admitted in this case and determine the innocence or guilt of the defendant entirely in accordance with these instructions. The test you must use is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty. If you have no reasonable doubt as to the truth of any of them, you should find the defendant guilty. A reasonable doubt is such a doubt that will leave a juror’s mind in such a condition that one cannot say that he or she has been convinced to a moral certainty of the defendant’s guilt.
“A reasonable doubt, if there is one, must arise after a careful consideration of all the evidence and it must arise out of the evidence, or lack of evidence, admitted in the trial of the case.” (Emphasis supplied.)
The Kansas Supreme Court in Wilkins in speaking of the charge said:
“It properly and adequately states the law and provides the jury with a correct standard for the determination of the guilt or innocence of the accused no matter what class of evidence has been offered at trial ...
“In the instant case the jury was properly instructed that if it had a reasonable doubt as to defendant’s guilt then it should find him not guilty. The ‘reasonable doubt’ instruction which was used has the same meaning as the ‘reasonable theory of innocence’ instruction which defendant requested.” (Emphasis supplied.)
In State v. Draves, 18 Or.App. 248, 524 P.2d 1225 (Or.App.1974), the defendant complained of the trial court’s failure to give a circumstantial evidence charge using the “any theory of innocence” language. The appellate court rejected the complaint because (1) there was direct evidence and a *212circumstantial charge was not necessary, and (2) because of the charge on reasonable doubt, etc. The trial court gave the Holland inspired type of instruction8 and in addition gave a charge on the presumption of innocence, burden of proof, and on reasonable doubt as follows:
“The burden is upon the state to prove the guilt of the defendant beyond a reasonable doubt. Reasonable doubt means an honest uncertainty as to the guilt of the defendant. A reasonable doubt exists when, after a careful and impartial consideration of all of the evidence in the case, you do not feel convinced to a moral certainty that the defendant is guilty.
“Proof beyond a reasonable doubt is such as you would be willing to act upon in the most important of your own affairs. The law presumes that the defendant is innocent, and this presumption follows the defendant until guilt is proved beyond a reasonable doubt.” (Emphasis supplied.)
It is observed that both in Wilkins and Draves the trial court gave full definitional charges on reasonable doubt and, in addition, Draves gave the so-called Holland instruction.
In several other state cases cited by the majority the reasonable doubt charges were not quoted in the opinions but it was indicated that the instructions gave a proper charge on the reasonable doubt standard.
In Commonwealth v. Kinney,-Mass. App.-, 423 N.E.2d 1017 (Mass.App.1981), the court said there was no error in failing to give the circumstantial evidence charge “where the court’s charge on reasonable doubt could not be faulted and where court further charged on matter of inferences .... ” State v. Turnipseed, 297 N.W.2d 308 (Minn.1980), held that where the jury was properly instructed on the standards of reasonable doubt and instructions on circumstantial evidence was otherwise adequate, omission of phrase “all circumstances must be proved consistent with that conclusion and inconsistent with any other rational conclusion” was not error. In Vincze v. State, 86 Nev. 546, 472 P.2d 936 (Nev.1970), it was held that where the jury was properly instructed on the standards of reasonable doubt there was no error in refusing to give charge on circumstantial evidence. See also State v. Roddy, 401 A.2d 23 (R.I.1979). Allen v. State, 420 P.2d 465 (Alaska 1966); State v. Eagle, 611 P.2d 1211 (Utah 1980).
In State v. Ray, 43 N.J. 19, 202 A.2d 425 (N.J.1964), the trial court gave a charge on circumstantial evidence but it did not include a statement that the evidence must exclude every reasonable hypothesis of innocence. The court observed a proper charge on reasonable doubt was given and a Holland instruction that the test in weighing circumstantial and direct evidence is the same was also given. The appellate court found no error in the charge for failure to include the requested statement on circumstantial evidence.
It does not appear that in any of the cases mentioned above that a nondefinitional reasonable doubt instruction was used or considered as giving a proper legal standard on reasonable doubt.
In only Johnson v. State, 632 P.2d 1231 (Okl.Cr.App.1981), and Blakely v. State, 542 P.2d 857 (Wyo.1975), which followed Holland and were cited by the majority does it appear that a nondefinitional reasonable doubt instruction was used or approved.9 *213Neither court came to grips with the question of how in eliminating a cautionary instruction on circumstantial evidence and utilizing only a nondefinitional reasonable doubt instruction the accused is protected from jury speculation. The Blakely opinion is roundly criticized in Land and Water Law Review, Yol. XI, p. 623, supra, on this score.
As has been seen, one practice under the Holland doctrine allows a full definitional explanation of the reasonable doubt standard. When abrogating the cautionary instruction on circumstantial evidence, most federal and state courts have been very careful to see that the reasonable doubt standard is fully developed within the context of the court’s jury charge so as to afford protection of the accused from possible jury conjecture and speculation. This is true because the reasonable doubt instruction must under the practice now serve to fulfill the function of the cautionary instruction on circumstantial evidence.
Another approach is that adopted by California. California Jury Instructions — Criminal, §§ 2.00-2.01 (1970). This approach is simply to hold that the Holland rationale as to the equality of direct and circumstantial evidence in terms of probative value is not inconsistent with giving the cautionary instruction on circumstantial evidence. Four jury instructions are given under this approach: the burden of proof instruction, the nondefinitional reasonable doubt instruction, the cautionary instruction on circumstantial evidence, and the Holland instruction.
Many states have recognized that the Holland decision is a federal holding not constitutionally mandated. They have continued to utilize their cautionary circumstantial evidence in a sense of fairness to avoid jury speculation, without any mention of Holland. This is, of course, what Texas has done for 28 years since Holland until today.
In State v. Lasley, 583 S.W.2d 511 (Mo. 1979), the Missouri Supreme Court came to grips with the question in a burglary case. The issue presented was whether the court erred in giving the MAI-Cr. 3.42 circumstantial evidence charge which includes the “reasonable hypothesis” instruction in a case where the evidence is wholly circumstantial and the defendant properly requests the charge. The State sought to have the court abrogate MAI-Cr. 3.42 and adopt the federal rule of Holland. After discussing the Holland opinion by Mr. Justice Clark, the Missouri court wrote:
“Mr. Justice Clark required as a condition precedent to dispensing with the reasonable hypothesis instruction that the jury be properly instructed on the standards for reasonable doubt. It is this condition precedent which causes the problem for Missouri courts. The law in Missouri is well-settled that a judge may not comment upon the phrase ‘reasonable doubt’ and the notes on the use of MAI-Cr 2.20 forbid a trial judge from giving any other instruction that elaborates on, or attempts to define, ‘reasonable doubt.’ State v. Amerson, 518 S.W.2d 29, 32 (Mo. 1975); State v. Taylor, 486 S.W.2d 239, 244 (Mo.1972); State v. Lafferty, 416 S.W.2d 157, 161 (Mo.1967).
“Respondent seeks to harmonize the requirement of Holland and existing Missouri law. Respondent’s Supplemental Brief at 11 states that ‘the overwhelming majority of jurisdictions when confronted with the issue [whether the reasonable hypothesis’ instruction should be abrogated] have decided to excise the “reasonable hypothesis” instruction.’ Unlike Missouri, most of the jurisdictions cited by re*214spondent 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 hedge 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. State v. Gosby, 85 Wash.2d 758, 589 P.2d 680, 684, 686 (banc 1975); State v. Jackson, 331 A.2d 361, 365 (Me.1975); State v. Draves, 18 Or.App. 248, 524 P.2d 1225, 1227 n. 1 (1974); State v. Wilkins, 215 Kan. 145, 523 P.2d 728, 735 (1974); Murray v. State, 249 Ark. 887, 462 S.W.2d 438, 442-43 (1971); State v. Harvill, 106 Ariz. 386, 476 P.2d 841, 846 (banc 1970); Allen v. State, 420 P.2d 465, 468 (Alaska 1966). See also Henry v. State, 298 A.2d 327, 330 (Del.1972); Vincze v. State, 86 Nev. 546, 472 P.2d 936, 938 (1970); State v. Fiorello, 36 N.J. 80, 88 n. 1, 174 A.2d 900, 904 n. 1 (1961), cert. denied 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962). The majority of states currently use a circumstantial evidence instruction, including twelve jurisdictions in which, within the last decade, the state supreme court has reaffirmed its use. State v. Graven, 54 Ohio St.2d 114, 374 N.E.2d 1370, 1373 (1978); State v. Shank, 88 S.D. 645, 226 N.W.2d 384, 386 (1975); State v. Langston, 265 S.C. 74, 216 S.E.2d 875, 876 (1975); State v. Goodrick, 95 Idaho 773, 519 P.2d 958, 961 (1974); State v. Bratcher [157 W.Va. 918], 206 S.E.2d 408, 410 (W.Va.1974); Bunch v. State, 499 S.W.2d 1, 3 (Tenn.1973); Zdiarstek v. State, 53 Wis.2d 420, 192 N.W.2d 833, 837 (1972); State v. Champagne, 198 N.W.2d 218, 229 (N.D.1972); Johnson v. State, 258 Ind. 683, 284 N.E.2d 517, 519 (1972); State v. Anderson, 270 So.2d 353, 357 (Fla.1972); State v. Lemieux, 160 Conn. 519, 280 A.2d 874, 875 (1971); Barrett v. State, 253 So .2d 806, 809 (Miss.1971).
“Respondent relies heavily on the case of Blakely v. State, 542 P.2d 857 (Wyo. 1975). In Blakely, the appellant was charged with feloniously misbranding livestock and was found guilty by a jury. The conviction was based entirely upon circumstantial evidence. The defendant alleged that the trial court erred in refusing to add the phrase ‘to the exclusion of all others’ to the cautionary instruction on circumstantial evidence. The instruction that was given to the jury read as follows:
“In this case the State is relying solely on circumstantial evidence and you are instructed it is a well-established rule of law that, where circumstantial evidence alone is relied upon, the circumstances when considered together must point clearly and conclusively to the guilt of Howard Blakely and exclude every reasonable hypothesis other than that of guilt.
Id. at 861. The Wyoming Supreme Court stated that the circumstantial evidence instruction given by the trial court was consistent with prior Wyoming Supreme Court decisions. The court then overruled the prior Wyoming decisions that required the reasonable hypothesis instruction in cases involving circumstantial evidence, criticizing the instruction as ‘wishy-washy, misleading and constantly raising questions.’ Id. at 862.
“We are not persuaded by the approach adopted in Blakely. The Wyoming Supreme Court ignored the suggestion in Holland, also present in the cases from other jurisdictions adopting the rule in Holland, that it is only appropriate to dispense with the reasonable hypothesis instruction in a case involving circumstantial evidence ‘where the jury is properly instructed on the standards for reasonable doubt.’ 348 U.S. at 139, 75 S.Ct. at 137. Where no instruction on the standards for reasonable doubt is permitted, we do not think that it is appropriate to leave the jury without the guidance of a reasonable hypothesis instruction.
“Respondent contends that MAI-Cr 3.42 tends to relegate circumstantial evidence to an inferior status by distinguishing direct evidence from circumstantial *215evidence. This contention fundamentally misconstrues the purpose and function of MAI-Cr 3.42. We acknowledge, and it is now generally recognized, that circumstantial evidence is not inherently of less probative value than direct evidence. To say the two types of evidence are equal in weight, however, is not to say that they are equal in all respects. The distinction between the two types of evidence remains useful. This court has 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 which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.” ’ State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43 (1948). The distinction is not cast in terms of the weight to be accorded each type of evidence, but in terms of the pattern of logical inference which must be employed in reasoning from circumstantial evidence. We think this difference warrants the continued use of MAI-Cr 3.42. Because circumstantial evidence requires jurors to use an inferential process to determine an ultimate fact, it is appropriate to caution them to make certain that their inferences are reasonable, consistent with the guilt of the defendant and inconsistent with any reasonable theory of his innocence.
“In reasoning from circumstantial evidence to the existence of a fact in issue, a juror is called upon to supply a missing premise from his own experience. In the instant case, for example, the jury is asked to infer, from the facts that a house was burglarized on the morning of May 26,1976, that the appellant was seen in the driveway of the house that same morning and that shortly afterward the appellant was driving a van in which items taken from the house were found, the conclusion that the appellant himself committed burglary. The jurors must supply from their own experience the major premise of the syllogism: ‘If a person is found in the vicinity of a burglarized house near the time of the burglary and in possession of items taken in the burglary, then that person has committed burglary.’ The prosecution is not required to produce empirical studies demonstrating the reliability of such a generalization. The only protection a criminal defendant has against inferences drawn from a doubtful major premise is the assurance that the jury will subject the suppressed premise to the reasonable doubt standard of proof. Our requirement that an inference of guilt be inconsistent with any reasonable theory of innocence forces the jury to subject the major premise used in drawing the inference to the same reasonable doubt scrutiny to which it subjects all the other evidence presented at trial. We think that the additional guidance offered a jury by MAI-Cr 3.42 is necessary to protect a defendant from juror speculation. This instruction does not conflict with MAI — Cr 2.20, because it does not attempt to define the reasonable doubt standard. Neither does the instruction invoke a different or higher standard of proof for circumstantial evidence than for direct evidence. It merely instructs the jury to apply the reasonable doubt standard to each phase of the inferential process involved in drawing conclusions from circumstantial evidence. Far from being inconsistent with the rule forbidding the futile attempt to define ‘reasonable doubt,’ the circumstantial evidence instruction is needed precisely because Missouri practice forbids defining reasonable doubt. The failure to give MAI-Cr 3.42 in this case constituted error.... ” (Emphasis supplied.) (Footnotes omitted.)10
The majority in the instant case seeks to justify its position by saying that in Holland the federal district court followed “local practice” in giving a definitional charge on reasonable doubt. Nothing in the Holland opinion or elsewhere supports such assertion and no authority is, of *216course, cited. It is clear from what has been written earlier that in many state courts, Wharton’s Criminal Evidence, 13 ed., Vol. I, § 12, p. 18, and in many federal courts, Wright, Federal Practice and Procedure, Criminal 2nd, Vol. II, § 500, p. 805, that the giving of a definitional reasonable doubt instruction is quite common.11 There is nothing to show that the giving of such charge was only “local” practice in the United States District Court for the District of Colorado where the Holland case was tried over 28 years ago.
The majority faults the Missouri Supreme Court in State v. Lasley, supra, for interpreting Holland as requiring a definitional reasonable doubt charge or standard before dispensing with a circumstantial evidence charge and goes on to say “... 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.”
The majority fails to set out and explain how the conventionally given Texas cautionary charge on circumstantial evidence and the normally given nondefinitional charge on reasonable doubt suggests different burdens of proof or how they are “inherently confusing.” Despite the lack of explanation, the majority accuses the Missouri court of overlooking the “inherent confusion.”12 It is the majority that is confused. In Holland the Supreme Court talked of the possible confusion between the charge on circumstantial evidence and a definitional charge on reasonable doubt. The Court did not state that a cautionary charge on the law of circumstantial evidence standing alone was confusing, or was confusing when considered with a nondefin-itional charge on reasonable doubt. The majority’s interpretation of Holland is off base.
Thus 127 years after the basis for the cautionary circumstantial evidence charge was approved, Henderson v. State, 14 Tex. 503, 514 (1855), and 28 years after the federal case upon which the majority relies, it is decided that the circumstantial evidence charge and the instruction on nondefinitional reasonable doubt are inherently confusing. There is no basis for such a holding.
*217Texas courts have long recognized the need to protect the accused in a criminal prosecution from jury conjecture and speculation. The majority, without hearing arguments or requiring briefs as to the desirability of abolishing the circumstantial evidence rule, of adopting the Holland rule or as to adequate safeguards that should accompany such action, have abolished the requirement of any charge on circumstantial evidence abrogating the controls on jury conjecture that has been previously utilized in Texas to insure fairness in our criminal trials.
In addition to “inherent confusion,” the majority seeks support for its decision by urging that it is the currently popular thing to do, that most jurisdictions now have abolished the circumstantial evidence charge. This if, of course, not necessarily so as we have seen, nor should it be the basis for the change the majority seeks to wrought. Should we abolish our community property laws because a majority of the states do not have such laws? Should we change any of our laws or precedents because like the lyrics in the old song “Turkey Trot,” “Everybody’s doing it”? Texas, of all states, has never considered its rules deficient, faulty, lacking reason, etc., merely because it was not among the majority of the states with regard to the particular rule, nor should it today.
Now that the majority abolishes the requirement for the cautionary charge on the law of circumstantial evidence, what is to be the legal formula for testing the sufficiency of the evidence in a case based wholly on circumstantial evidence? Is it to remain the same test approved by the Supreme Court of Texas in 1855 in Henderson and followed consistently since that time? See footnote # 4. The majority does not tell us, and with a studied stubborness, chooses to ignore the question. If the test is to remain the same, then the jury is entitled to a charge on the law of circumstantial evidence as has been given in the past. See Article 36.14, V.A.C.C.P.13 It would be the height of absurdity to keep the jury in the dark about the requirements of the law regarding the sufficiency of circumstantial evidence and then apply the test required by law to any guilty verdict rendered. If the test is to be changed, now is the time to do it, not later after much confusion as to what test is to be applied. If there is to be a new and different test, it should be clearly delineated, the reasons for its adoption set forth, as well as the reasons for the demise of the former rule. It should be remembered that not only will the appellate courts be dealing with sufficiency questions, but so will the trial courts when passing on motions for instructed verdicts and motions for new trials. Guidelines are needed now in an area which has been churned by today’s decision. The majority owes this much to the bench and the bar, and if you, please, the people of Texas.
I join Judge Clinton in expressing concern and indeed alarm at the course which the majority is chartering, particularly in light of Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (Opinion on State’s Motion for Rehearing), and Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981).
For the reasons stated, I vigorously dissent.
. See majority opinion, ¶ 7.
. See 36 Words & Phrases, pp. 510-512.
. First Circuit, see United States v. Drake, 673 F.2d 15 (1st Cir.1982).
Second Circuit, see United States v. Magna-no, 543 F.2d 431 (2nd Cir.1976), “This court has repeatedly expressed the desirability of Holland’s ‘hesitate to act’ language and suggested its use as preferable to alternative phraseolo-gies.” Magnano, supra, at 436. See, also, United States v. Joly, 493 F.2d 672 (2nd Cir. 1974), “A reasonable doubt means a doubt sufficient to cause a prudent person to hesitate to act in the most important affairs of his or her life.” Joly, supra, at 677, footnote 10.
Third Circuit, see United States v. Restaino, 369 F.2d 544, 546 (3rd Cir.1966).
Fourth Circuit, see United States v. Burgess, 498 F.2d 1398 United States Court of Appeals slip opinion number 73-1983 (per curiam, unpublished) (4th Cir.1974), where the jury charge read:
“A reasonable doubt is a doubt based upon reason and common sense, the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly in the most important of your own affairs.”
and the court stated:
“We conclude that the trial court correctly instructed the jury on reasonable doubt.” Burgess, supra. (Emphasis supplied)
Fifth Circuit, see United States v. Breedlove, 576 F.2d 57 (5th Cir.1978); see, also, United States v. Tobin, 576 F.2d 687 (5th Cir.1978), which states:
“This Court criticized the ‘would be willing to act’ form of instruction, and urged district courts to employ the ‘would not hesitate’ language in their reasonable doubt instructions ....
“Despite the clear direction from this Court to avoid the form [willing to act] of reasonable doubt instruction, the district court refused to revise its charge to the jury.” Tobin, supra, at 694 (Emphasis supplied)
Further for the Fifth Circuit, in United States v. Clayton, 643 F.2d 1071 (5th Cir.1981), the court says:
“This court has held ... that reasonable doubt is better explained as the kind of doubt that would make a reasonable person hesitate to act.” Clayton, supra, at 1075. (Citations omitted)
Sixth Circuit, see United States v. Bidlack, 627 F.2d 1093 (6th Cir.1980).
Eighth Circuit, see United States v. Wilkerson, 691 F.2d 425 (8th Cir.1982).
Ninth Circuit, see United States v. Miller, 688 F.2d 652 (9th Cir.1982), which says:
“In Robinson [U.S. v. Robinson, 546 F.2d 309, 313-314 (9th Cir.1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1333, 51 L.Ed.2d 597 (1977) ], we expressly approved a definition of reasonable doubt similar to that used below. We again uphold the propriety of the ‘hesitate to act’ language, and rule that the jury charge was adequate.” Miller, supra, at 662.
The relevant portions of the charge are contained in the opinion at footnotes six and seven, as follows:
“[6] The jury charge on this issue was as follows:
‘The presumption of innocence alone is sufficient to acquit unless the jurors are satisfied beyond a reasonable doubt of the De*202fendant’s guilt after a careful and impartial consideration of all the evidence in the case.
‘It is not required that the Government prove guilt beyond all possible doubt. The test is one of reasonable doubt.
‘A reasonable doubt is a doubt based on reason and common sense. It’s the kind of doubt that would make a reasonable person hesitate to act.
‘Proof beyond a reasonable doubt must, therefore, be of such a convincing character that you would be willing to rely and act upon unhesitatingly in the most important of your own affairs.’
“This instruction is in substance that at 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 11.14, at 310-311 (3d Ed.1977).
“[7] The court’s instruction further provided:
‘There are two types of evidence on which you can properly base a verdict. One is direct evidence, that is the testimony of an eyewitness. The other is circumstantial evidence, the proof of a chain of circumstances pointing to the commission of [the] offense.
‘As a general rule, the law makes no distinction between direct and circumstantial evidence but simply requires before convicting a Defendant the jury be satisfied of the Defendant’s guilt beyond a reasonable doubt from all the evidence.’
“This instruction is similar to that upheld in U.S. v. James, 576 F.2d 223, 227 n. 2 (9th Cir. 1978)”
United States v. Miller, 688 F.2d 652 (9th Cir. 1982).
Tenth Circuit see Leaphart, 513 F.2d 747 (10th Cir.1975).
Eleventh Circuit, see United States v. Jones, 663 F.2d 567 (11th Cir.1981).
. Holland, supra; U.S. v. Smaldone, 485 F.2d 1333 (10th Cir.1973); U.S. v. Pepe, 501 F.2d 1142 (10th Cir.1974).
. See Rivett v. State, 578 P.2d 946 (Alaska 1978), “doubt [which] would cause prudent men to hesitate before acting in matters of importance to themselves’ ”, Laird v. State, 251 Ark. 1074, 476 S.W.2d 811 (1972); Alvarez v. State, 653 P.2d 1127 (Colo. 1982); State v. Conner, 241 N.W.2d 447 (Iowa 1976); Hockenbury v. Kentucky, 565 S.W.2d 448 (Ky.1978) citing Palmore, Kentucky Instructions to Juries, § 11.01; State v. Troiana, 421 A.2d 41 (Me. 1980); State v. Donovan, 120 N.H. 603, 419 A.2d 1102 (1980) “In the instant case, the trial judge instructed the jury that reasonable doubt is ‘the kind of doubt that would make a reasonable person hesitate to act upon some*203thing of great importance to him.’ This ‘hesitate to act’ language has received widespread approval and is generally deemed to be preferable to alternative phraseologies,” Donovan, supra, at 1105. State v. Naranjo, 94 N.M. 407, 611 P.2d 1101 (1980); Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977), wherein the charge read “a reasonable doubt is one that would arise and cause a reasonably careful and sensitive person such as yourself to hesitate before acting upon a matter of importance in your own affairs.” And the court commented, “appellant contends that [this] sentence should have referred to ‘a matter of the highest importance’, however, we have specifically approved charges in virtually the exact words used by the trial court here.”
. We should also do more.
This definition of reasonable doubt, although better than no definition at all, becomes almost crystal clear when put in perspective with the burdens of proof of “preponderance of the evidence” and of “clear and convincing evidence.” The latter two are already defined to juries in cases where applicable, but explaining all three in one voir dire would show the natural progression, in law and in fact, of the degree to which a juror must be convinced before he can decide an issue.
The law mandates that issues are decided according to “burdens of proof.” The term “burden of proof’ is used to define that degree of assuredness that must be reached by a jury before they may find that an issue is to be decided in favor of the party who is assigned the burden of proof. Keeping in mind that the jury is the sole judge of the credibility of evidence and of the weight to be given to evidence and must base its assuredness solely on the evidence, if the evidence fails to assure the jury to the degree required by the burden of proof, then the jury shall find the issue in question against the party who is assigned that burden of proof.
The law recognizes three distinct burdens of proof:
Proof by a preponderance of the evidence which is defined as that degree of proof that, when taken as a whole, shows that a fact sought to be proved is more probable than not.
Proof by clear and convincing evidence which is defined as that degree of proof which will produce in the jury’s mind a firm belief as to the truth of the allegation sought to be established. This is an intermediate standard, falling between the preponderance of the evidence standard and the reasonable doubt standard. State v. Addington, 588 S.W.2d 569 (Tex. 1979).
Proof beyond a reasonable doubt which is defined as that degree of proof that will erase in the mind of the jury the kind of doubt that would make a person hesitate to act in the conduct of their more serious and important personal affairs.
Perspective coupled with definition is the best answer to our ultimate question.
. Texas courts have long recognized the efficacy of circumstantial evidence. Law v. State, 33 Tex. 37 (1870); Berrian v. State, 85 Tex.Cr.R. 367, 212 S.W. 509 (Tex.Cr.App.1919).
“In criminal cases, a conviction may properly be had on circumstantial evidence alone. Indeed, circumstantial evidence is frequently just as convincing in a criminal case as direct evidence.” 24 Tex.Jur.2d, Evidence, § 729, p. 403. See also Wigmore (3d ed. 1970), Evidence, §§ 24-25 at pp. 396-401.
“Some circumstantial evidence is very strong, as when you find a trout in the milk.” Henry D. Thoreau, Journal, November 11, 1850.
. 2 M. Hale, Historia Placitorum Coronal.
. See and cf. Article 36.14, V.A.C.C.P., and its forerunners.
. “The result of the rules of law respecting the sufficiency of circumstantial evidence is very well and concisely stated by the reporter in the case of The Commonwealth v. Webster, before cited, thus: ‘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 with the main fact sought to be proved; and the circumstances, 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.’ ” See also Shultz v. State, 13 Tex. 401 (1855).
. Instructions on the subject of circumstantial evidence should be framed as to guard the jury from basing their findings upon mere surmises. Myers v. State, 6 Tex.App. 1 (1879); Hunt v. State, supra.
. As to the matter of appellate review on convictions based on circumstantial evidence, this court in Ysasaga v. State, 444 S.W.2d 305, 308-309 (Tex.Cr.App. 1969), wrote:
“Ordinarily the test on appeal is whether there was evidence from which the jury (advised of the restrictions which the law places upon them in condemning one on circumstantial evidence) might reasonably conclude that every reasonable hypothesis other than guilt was excluded.
“ ‘In criminal cases, a judgment of conviction, to be sustained on appeal, must be supported by evidence that produces a moral certainty of the guilt of the accused to the exclusion of every reasonable doubt. The evidence will be insufficient to sustain the conviction where, although not leaving the accused free from suspicion of guilt, it still fails to show his guilt to a moral certainty, so as to exclude all reasonable doubt.
“ ‘In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in light of the presumption that the accused is innocent. The Court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not *209sufficiently establish all material elements of the offense charged.’ 24 Tex.Jur.2d, Evidence, Sec. 742, p. 422.”
Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976); Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974); Earnhart v. State, supra; Stogsdill v. State, supra; Hollingsworth v. State, 419 S.W.2d 854 (Tex.Cr.App.1967); King v. State, 396 S.W.2d 409 (Tex.Cr.App.1965); Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251 (Tex. Cr.App.1956).
In 5 Am.Jur.2d, Appeal and Error, § 821, p. 262, it is written:
“... And it has been held that where a conviction rests solely on circumstantial evidence, and there is substantial evidence supporting the finding of guilt, this finding may nevertheless be reviewed by the appellate court as to whether that circumstantial evidence was equally compatible with an assumption of innocence of the accused.”
. The Holland instruction for which the Holland decision laid the predicate is similar to the following:
“There are two types of evidence from which you may find the truth as to the facts of a case — direct and circumstantial evidence ... Circumstantial evidence is proof of a chain of facts and circumstances indicating the guilt or innocence of a defendant. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence ... After weighing all the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.”
1 Devitt and Blackmar, Federal Jury Instructions, § 11.02 (Supp.1975).
. “Now, there are two types of evidence in this case upon which the State may rely. One is direct evidence, such as the testimony of an eyewitness. The other is circumstantial evidence. That is the proof of a chain of circumstances pointing to the commission of the offense. The proof may be either type or a combination of both. In any event, you may not find the defendant guilty unless all the evidence taken together leaves you satisfied of his guilt beyond a reasonable doubt.”
. In Blakely the feloniously misbranding of livestock conviction was founded substantially upon circumstantial evidence. The trial court gave a cautionary charge on circumstantial evidence. On appeal the defendant complained, inter alia, that the trial court erred in refusing to include in the said cautionary instruction “to the exclusion of all others.” The Wyoming Supreme Court affirmed the conviction indicating the cautionary instruction was consistent *213with prior standards. The Court went further, however, and held that a cautionary instruction regarding circumstantial evidence is unnecessary, tends to confuse the jury, and is not to be used any longer. A long line of Wyoming cases sanctioning the instruction was overruled.
in the course of the Blakely opinion the court reaffirmed Cosco v. State, 521 P.2d 1345 (Wyo. 1974), holding that the term “reasonable doubt” is self-explanatory and that any attempt to elaborate on the meaning of the term is likely to produce jury confusion, resulting in reversible error. See also Bentley v. State, 502 P.2d 203, 206 (Wyo. 1972).
. See also Newsome v. State, 355 So.2d 483 (Fla.App.Dist. 2 1978).
. Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit, District Judges Association, Instruction 3A (Presumption of Innocence, Burden of Proof, Reasonable Doubt) reads:
“The indictment or formal charge against a Defendant is not evidence of guilt. Indeed, the Defendant is presumed by the law to be innocent. The law does not require a Defendant to prove his innocence or produce any evidence at all. The Government has the burden of proving him guilty beyond a reasonable doubt, and if it fails to do so you must acquit him.
“Thus, while the Government’s burden of proof is a strict or heavy burden, it is not necessary that the Defendant’s guilt be proved beyond all possible doubt. It is only required that the Government’s proof exclude any ‘reasonable doubt’ concerning the Defendant’s guilt.
“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.
“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. If you are convinced that the accused has been proved guilty beyond reasonable doubt, say so. If you are not convinced, say so.”
See and cf. United States v. Richardson, 504 F.2d 357 (5th Cir.1974).
. In Wharton’s Criminal Evidence, 13d ed., Vol. I, § 12, pp. 18-19, it is written:
“In some states, particularly where the only evidence is circumstantial, it has been stated that proof beyond a reasonable doubt must exclude every reasonable or rational hypothesis other than guilt. This instruction should not be regarded as establishing a standard more severe than the usual concept of reasonable doubt." (Emphasis supplied.)
In speaking of a charge on circumstantial evidence, the Court of Appeals in Hunt v. State, 7 Tex.App. 212 (1879), stated:
“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." (Emphasis supplied.)
. Article 36.14, supra, provides in part:
“Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; ...(Emphasis supplied.)