concurring
in which McCORMICK, Presiding Judge and KELLER and HOLLAND, Judges, join.I agree with the Court and with Judge Keller that the omission of this definition, if error, should be analyzed for harm under the Almanza standards.
But I would undertake to “reexamine Gee-sa,” as Judge Meyers suggested two years ago. See Reyes v. State, 938 S.W.2d 718, 721 (Tex.Cr.App.1996) (Meyers, J., concurring). Such a reexamination convinces me that Gee-sa should not be followed. The instruction it required was unnecessary and confusing, the justification it gave for requiring an instruction was fallacious, and it was not a legitimate exercise of the judicial function.
I.
The district court’s instruction in this case should be thought of as a fundamental improvement rather than a fundamental error. It was better than the one required by Gee-sa.
The paragraphs of the Geesa instruction that were omitted in this case combined three definitions of “reasonable doubt.” The first definition said that “reasonable doubt” is “a doubt based on reason and common sense.” Geesa v. State, 820 S.W.2d 154, 162 (1991). The second said that “reasonable doubt” is “the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.” Ibid. The third definition said that “proof beyond a reasonable doubt” 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.” Ibid. The theory of the Geesa opinion seems to be that, if one definition of reasonable doubt would be good, three definitions would be three times as good. It should be obvious that the theory is wrong.
To make things worse, two of the definitions are in opposition to each other. “The ‘willing to act without hesitation’ definition of reasonable doubt suggests action, while the ‘hesitate to act’ definition implies inaction. ... The use of three different formulations is likely to confuse jurors, while the use of two definitions which are in opposition to each other is almost certain to mislead.” Craig Hemmens et al., “Doubt over ‘Reasonable Doubt’ in Texas,” 59 Texas Bar Journal 130, *651135 (1996). No other state or federal appellate court has combined three definitions, or combined the two opposing definitions. Ibid.
It is by no means clear that even one definition of “reasonable doubt” would be an improvement over our former practice. The predecessor of this Court decided in Black v. State, 1 Tex.App. 368 (1876), that the term did not require definition. For at least 115 years, Texas courts were not required to give any definition of reasonable doubt. “We th[ought] such definition was not necessary, same being words of commonly accepted meaning and well understood by everyone.” Gallegos v. State, 152 Tex. Grim. 508, 510, 215 S.W.2d 344, 346 (1948).
The process by which a definition of “reasonable doubt” was elevated from the status of “not necessary” to that of an “absolute systemic requirement”1 was remarkable.
II.
Geesa was convicted on circumstantial evidence. On appeal he argued that the evidence was legally insufficient. The court of appeals agreed because it found that “a rational trier of fact could not have excluded every reasonable hypothesis except Geesa’s guilt.” Geesa v. State, No. 2-88-140-CR (Tex.App. — Fort Worth 1990) (unpublished), reproduced in Geesa v. State, 820 S.W.2d 154, 177 (Tex.Cr.App.1991) (Appendix 1). This Court rejected the use of “the reasonable-hypothesis-of-innocence analytical construct” as a method of appellate review of the legal sufficiency of evidence, and it held that a definition of reasonable doubt should be given juries in the future. Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991). Geesa’s ease was remanded to the district court for new trial because his jury was not given the definition. Id. at 163. There was no further discussion of the sufficiency of the evidence.
As an exercise of the judicial function, the opinion fails.
First, how could the case have been remanded to the trial court with Geesa’s claim of legally insufficient evidence unresolved? No matter what the error in failing to instruct the jury on the definition of “reasonable doubt,” a second trial would be barred by the Double Jeopardy Clause of the Fifth Amendment if the evidence were found legally insufficient on appeal — as the court of appeals had held it was. See Watson v. State, 605 S.W.2d 877,880 (Tex.Cr.App.1979). Accord, e.g., Hooker v. State, 621 S.W.2d 597, 598 (Tex.Cr.App.1981). And if the evidence was legally insufficient under a proper analysis, there would be no occasion to take up the question of whether the jury should have had a different charge.
• Second, no question of a jury charge was before the Court. .The appellant made no claim regarding the jury charge. There is no rational relationship between defining “reasonable doubt” in the jury charge and eliminating the “the reasonable-hypothesis-of-in-noeence analytical construct” to determine the sufficiency of evidence. For this reason, Judge Mansfield’s concern that eliminating the requirement that “reasonable doubt” be defined might bring back the former standard of appellate review (see ante) is unfounded — as far as law and logic go.
Which brings me to the final point.
III.
Law and logic were not the basis of the Geesa Court’s decision to require an instruction on “reasonable doubt.” The Geesa Court was not functioning as a court when it promulgated the instruction; it was engaging in a form of log-rolling that was essentially legislative. A majority of the members of the Court struck a bargain with the State to abandon the “the reasonable-hypothesis-of-innocence analytical construct”in consideration of being allowed to require a definition of “reasonable doubt” in the jury charge.
In the background of this bargain was Hankins v. State, 646 S.W.2d 191 (Tex.Cr. App.1983), in which this Court held that it was improper to instruct a jury that circumstantial evidence must exclude, to a moral certainty, every reasonable hypothesis except the defendant’s guilt. Three members of the Hankins Court pointed out that in other jurisdictions whose courts had made the same holding, “reasonable doubt” was de*652fined for the jury. See id. at 200 (opinion of Miller, J.); id. at 203 (opinion of Onion, P.J.); id. at 217 (opinion of Clinton, J.). These dissenters suggested that the abolition of the circumstantial evidence instruction was not valid without a definition of reasonable doubt in the charge.
Geesa came before this Court with no issue involving the jury charge. After oral arguments, the State filed a brief which proposed, in effect, that Hankins could be rewritten if the Court would agree to abandon “the reasonable-hypothesis-of-innocence analytical construct” on appellate review:
We also acknowledge that dissenting judges in Hankins felt that the absence of the instruction [on circumstantial evidence] left the jurors rudderless as they sought to apply the basic reasonable-doubt standard in a circumstantial case. In light of the concerns expressed in that ease, it has occurred to the State that the absence of an explanatory instruction on reasonable doubt in Texas jury charges conceivably colors the thinking of some judges regarding the State’s argument here. Should that be the case, we have no objection to the Court’s announcing, if the Court believes it can and should, that trial judges are henceforth, on request, to give juries the standard federal instruction describing a reasonable doubt as the kind of doubt that would make a persons hesitate to act in the most important affairs of his everyday life.
State’s Post-submission Brief at 5, n. 3. The State acknowledged, “Frankly, we don’t see the logical relationship between this issue and the appellate test.” State’s Reply to the Brief of Amicus Curiae, The Texas Criminal Defense Lawyers Association, at 15.
The State offered, not an argument of law or logic, but a quid for a quo: if the Court agreed to change the method of appellate review, an unrelated change could be made in the jury charge to answer a question that the Hankins dissents raised. Although there was no issue in the Geesa case about the jury charge, the Court accepted the bargain. It used Geesa to effectively rehear Hankins, revisiting the unrelated issue of what the jury should be told about the evidence.
Such an opinion has little claim to the respect ordinarily given to obiter dictum, much less to that accorded the reasoned resolution of the legal issues presented in an appeal.
IV.
I would overrule the parts of Geesa that require this misbegotten definition of “reasonable doubt.” I would hold that the omission of the definition was not error in this case. I would remand the case to the Court of Appeals for the resolution of the appellant’s other points of error.
. Reyes v. State, 938 S.W.2d 718, 720 (Tex.Cr. App.1996).