Lead Opinion
OPINION
announced the judgment of the Court and delivered an opinion
We granted discretionary review in this case to address, among other things, whether there is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia
The record reflects that, in cause number 10-07-00309-CR, a jury convicted appellant of possessing with intent to deliver more than four but less than 200 grams of crack cocaine and sentenced him to 25 years in prison. Appellant claimed on direct appeal that the evidence is legally and factually insufficient to support the intent-to-deliver element of this offense.
The evidence shows that two police officers went into a bar to investigate a report that someone matching appellant’s description was there with a gun. When the officers asked appellant to step outside, appellant ran and threw two baggies towards a pool table just before one of the officers tased him. One of the baggies contained a small amount (about 3 grams) of marijuana. The other baggie contained one baggie holding 4.72 grams of crack cocaine and another baggie holding six ecstasy tablets that weighed 1.29 grams.
An experienced Waco Police Department drug-enforcement investigator (Thompson) testified that the bag containing the 4.72 grams of crack cocaine contained “two larger size rocks and then maybe a smaller one” and a useable amount of “crumbs.” He testified that each of the two large rocks weighed at least two grams and the other one weighed “a gram and a half or something like that.” Thompson testified that “he would say” that 4.72 grams was a “dealer amount,” which could have been cut up into 23 or 24 rocks. He testified that 4.72 grams of crack cocaine is worth about $470.
Thompson stated that a “typical quantity” that a dealer would have would be more than two rocks and that he “would think” that someone with more than a gram would be a dealer. Thompson testified that it is not “typical” for drug users to be in possession of a large amount of drugs and that he has “not run across many people that are [crack cocaine] users that have more than one to two rocks” because they are going to “smoke it as soon as [they] can get it.” He also testified that “most” crack cocaine users “typi
Q. [STATE]: Okay. So if somebody had approximately 4.72 grams and about three or four rocks and some crumbs, is that a dealer amount or user amount?
A. [THOMPSON]: I would say that’s dealer amount.
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Q. So if he’s got 4.72 grams— '
A. I would think they were a dealer.
Q. Okay. I’m going to go — oh, you said that there are some other things that you would look for to see if somebody was dealing as opposed to using the drugs. What are some of those things that you would look for?
A. In my experience, and we’ve come across people that are just possessing crack to use it. They usually have what is called a crack pipe or some type of heating element to heat the crack up with. Most of the people that we’ve come across out in the field that smoke crack have a crack pipe somewhere or have some brillo which you use inside of your crack pipe as a filter to keep from inhaling the whole piece of crack up when you’re smoking it. Typically dealers don’t have crack pipes because it’s not really common for them to use their product that they are selling. You can’t make any money if you’re hooked on your own product. So typically a user is going to have some type of instrument to smoke the crack with, and, like I said before, they normally don’t have more than one or two because they are smoking. You don’t save crack. It’s not like a rainy day type of deal. You want to smoke it as soon as possible.9
On cross-examination, Thompson described other factors, none of which are present in the record in this case, indicating that a person could be a dealer: (1) possession of five, ten, or twenty dollar bills; (2) names in the person’s cell phone; (3) possession of some document identifying who owes what; (4) possession of a weapon; or (5) others observed the person trying to sell drugs. Thompson also acknowledged that a person could possess 4.72 grams of crack cocaine for personal use.
Appellant testified that he possessed only the baggie containing the small amount of marijuana. He denied possessing the baggies containing the crack cocaine and the ecstasy pills. Appellant also admitted that he has two prior convictions for possession of cocaine and another prior conviction for possession with intent to deliver cocaine. The jury was instructed in the charge that it could have considered these extraneous offenses “in determining the intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident by the Defendant, if any, in connection with the offenses, if any, alleged against him in the indictment in this case, and for no other purpose.”
During closing jury arguments, the State relied primarily on Thompson’s testimony to argue that appellant possessed the crack cocaine with the intent to deliver it:
[STATE]: There is no evidence at all, none, that he was a user. What does that tell you? What does that tell the reasonable person? I’m going to go to*897 Investigator Thompson right now because he kind of ties in with that. The dealer level back on the crack, and I’m bouncing back and forth because it’s basically the same charge. Just with crack we have added the element of intent to deliver. But Investigator Thompson testified that a typical user, one, two rocks, max, because what do they do when they get it? They want to smoke it because they are craving this drug, because they have to use it. They don’t hold it for a rainy day. They don’t keep it for later. They use it then. And when they use it, they have paraphernalia on them. They don’t carry a couple of rocks and then go home and find their stuff. They have it all on their person. No drug paraphernalia, no brillo pad, no push pipe, no push rod, no crack pipe, nothing. Again, because he’s not a user. There is no evidence of that. In fact, the amount that he had is dealer amount. This is 23 to 25 crack rocks. It’s way more than one or two for a user. 4.72 grams doesn’t really seem like a lot in here. It’s a lot on the street. He had $500, $600 worth of drugs on him that night.
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About him being a user and not a dealer, he got on the stand. Did he tell you, “I’m a user, not a dealer”? He didn’t say that. That would have been the perfect chance for him to say that. Does he look like a user? You know we had somebody in voir dire say, “I’ve seen crack users, and I can tell when I see them.” Did he have a pipe on him? No. What else did he not have? You know, no pipe. He had some money on him, not a lot because he hadn’t started selling yet. He still had his whole 25-rock stash. He hadn’t started selling yet. He had the cell phone. Yeah, it would have been nice to get the names out of the cell phone and see if they match up with other drug dealers, you know, that we know. The police, they were being nice. They gave the phone to his sister and let her take it home. So are we going to blame the cops for being a little too nice that night, even after he had cussed at them and resisted, swung at them, kicked them? That’s not reasonable either.
During its closing jury arguments, the defense relied on other factors to argue that the evidence did not show appellant’s intent to deliver.
[DEFENSE]: I know Mr. Brooks has a past. He came up here and he testified that he has a juvenile conviction, that he has two possession convictions, he has a delivery conviction. And when you look at all that, it would be easy for you to go back there and say, “You know what? Because of all this, you know, he’s not telling the truth and we shouldn’t believe him.” But I don’t think that’s what you’re going to do. Yeah, he has had run-ins with the law, and as he stated, he panicked. He panicked because he had the marijuana on him. But as he testified to you, he didn’t know anything about that cocaine, didn’t know anything about that [ecstasy]. There was no evidence presented to you other than Officer Thompson who came up here yesterday and said, “Oh, it’s four grams to 200 grams, but that 4.72, oh, yeah, easy, that’s a delivery. Oh, yeah. It’s worth $500, $600.” But listen to his testimony carefully. He also said that he looks for other things, too, and they should have looked for other things too. They should have looked to determine whether or not Mr. Brooks was carrying a large amount of money, whether or not he had a gun, and we know that there was no gun found in that place now, whether or not he had*898 any documents with him that would indicate, “These people owe me money” or “This is who I sold to.” They should have gotten a cell phone to see if there were any callers in there that were potential buyers or users or anything of that nature. They should have asked people in the bar whether or not Mr. Brooks when he went in there, did anybody ever come up to him and say, “Do you have anything I can get from you tonight” or “Can you sell me something?” There was no testimony whatsoever on that. All you have is, ladies and gentlemen, as far as the delivery is what Allen Thompson said, but most importantly, as I indicated to you, you have to show that he was in possession of those items, and it’s just not there.
The court of appeals decided that “[standing alone, 4.72 grams is insufficient evidence of intent [to deliver because this amount is also consistent with personal use], additional evidence is required.” See Brooks v. State, No. 10-07-00309-CR, slip op. at 8,
We granted review on both the appellant’s and the State’s petitions for discretionary review. Appellant’s petition for discretionary review presents the following ground for review:
(1) The Court of Appeals erred in holding the evidence was legally sufficient to establish appellant had the intent to distribute cocaine, where the court found the same evidence was factually insufficient to establish the necessary intent.10
The State’s petition for discretionary review presents the following grounds for review:
(1) Is there any meaningful distinction between legal sufficiency review under Jackson v. Virginia and factually [sic] sufficiency review when that review is limited to the weakness of the evidence in the abstract and, if so, does it escape review in this Court?
(2) Did the Tenth Court of Appeals ignore its duty to adequately explain why the evidence, though legally sufficient, is so weak as to render the jury’s verdict clearly wrong and manifestly unjust?
I. Is There Any Meaningful Distinction Between Jackson v. Virginia Legal-Sufficiency Review and Clewis Factual-Sufficiency Review
We begin the discussion by noting that in Watson this Court recognized that a factual-sufficiency standard is “barely distinguishable” from a legal-sufficiency standard and that “the only apparent differ
Considering all of the evidence in the light most favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.11
Compare this to the Clewis factual-sufficiency standard which may fairly be characterized as:
Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt.12
Viewing the evidence “in the light most favorable to the verdict” under a legal-sufficiency standard means that the reviewing court is required to defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
It is significant that Clewis purported to treat the evidentiary-weight standard described in Tibbs as a component of the Clewis factual-sufficiency standard that views the evidence in a “neutral light.” See Clewis,
Therefore, if a reviewing court is required to defer in any manner to a jury’s credibility and weight determinations, then it is not viewing the evidence in a “neutral light” and not applying the type of factual-sufficiency standard described in Tibbs and purportedly adopted in Clewis. And it is very clear that this Court’s factual-sufficiency decisions have always required a reviewing court in a factual-sufficiency review to afford a great amount of deference (though this Court has never said precisely how much deference) to a jury’s credibility and weight determinations. See Clewis,
It is in the very nature of a factual-sufficiency review that it authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called “thirteenth juror.”
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An appellate court judge cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. Nor can an appellate judge declare that a conflict in the evidence justifies a new trial simply because he disagrees with the jury’s resolution of that conflict.
See Watson,
This, however, is inconsistent with the evidentiary-weight standard described in Tibbs (and purportedly adopted in Clewis) and with viewing the evidence in a “neutral light,” which permit the reviewing court to show no deference at all to a jury’s credibility and weight determinations and to sit as a “thirteenth juror” without any limitation and to declare that a conflict in the evidence justifies a new trial simply because the reviewing court disagrees with the jury’s resolution of conflicting evidence. See Tibbs,
The final nail in the coffin that made a legal-sufficiency standard “indistinguishable” from a factual-sufficiency standard came in this Court’s decision in Lancon v. State.
This may be illustrated by considering the following formulation of the factual-sufficiency standard that Watson approved: “Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt.” See Watson,
II. Double-Jeopardy Considerations
The Clewis factual-sufficiency standard being “barely distinguishable” (and now indistinguishable) from a legal-sufficiency standard also raises some troubling double-jeopardy questions under the United States Supreme Court’s decision in Tibbs. First, we find it necessary to discuss the proceedings involving Mr. Tibbs in the Florida courts.
In 1976, the Florida Supreme Court reversed Tibbs’ convictions for rape of one person and first-degree murder of another person because of the “weakness and inadequacy” of the rape victim’s testimony, which was the only testimony that directly connected Tibbs to these crimes. See
Before Tibbs could be retried, the United States Supreme Court decided that double-jeopardy principles prohibit the states from retrying a defendant whose conviction has been reversed on appeal on evidentiary-sufficiency (i.e., legal-sufficiency) grounds essentially because this has the same effect as an acquittal by a jury.
In 1981, the Florida Supreme Court reviewed this decision noting at the outset “that the distinction between an appellate reversal based on evidentiary weight and one based on evidentiary sufficiency was never of any consequence until [the United State’s Supreme Court’s decision in] Burks,” apparently because the remedy provided in both situations was a remand for a new trial. See Tibbs,
The Florida Supreme Court, therefore, concluded that the Florida Court of Appeals’ distinction between reversals based on evidentiary weight and reversals based on evidentiary sufficiency had a “questionable historical foundation.” See Tibbs,
As we suggested just last Term, these policies do not have the same force when a judge disagrees with a jury’s resolution of conflicting evidence and concludes that a guilty verdict is against the great weight of the evidence.... A reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that an acquittal was the only proper verdict. Instead, the appellate court sits as a “thirteenth juror” and disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.
See Tibbs,
The United States Supreme Court also examined the Florida Supreme Court’s 1976 decision reversing Tibbs’ convictions and concluded that a “close reading” of that decision suggested “that the Florida Supreme Court overturned Tibbs’ convictions because the evidence, although sufficient to support the jury’s verdict, did not fully persuade the court of Tibbs’ guilt.” See Tibbs,
We believe that the Clewis factual-sufficiency standard with its remedy of a new trial could very well violate double-jeopardy principles under Tibbs if factual-sufficiency review is “barely distinguishable” from legal-sufficiency review.
We also note that, were we to decide that reviewing courts must continue to apply a factual-sufficiency standard with its remedy of a new trial in criminal cases, then we must also be prepared to decide that they should apply this standard as “thirteenth jurors” with no deference at all to a jury’s credibility and weight determinations in order to avoid these potential federal constitutional double-jeopardy issues. See also Tibbs,
We believe that these and the reasons given by the Florida Supreme Court for abandoning its factual-sufficiency standard are good reasons for discarding the confusing and contradictory Clewis factual-sufficiency standard. We agree with the Florida Supreme Court that:
Considerations of policy support, if not dictate, this result. Elimination of [reversals based on evidentiary weight] accords Florida appellate courts their proper role in examining the sufficiency of the evidence, while leaving questions of weight for resolution only before the trier of fact. Eliminating reversals for evidentiary weight will avoid disparate appellate results, or alternatively our having to review appellate reversals based on evidentiary shortcomings to*906 determine whether they were based on sufficiency or on weight. Finally, it will eliminate any temptation appellate tribunals might have to direct a retrial merely by styling reversals as based on “weight” when in fact there is a lack of competent substantial evidence to support the verdict or judgment and the double jeopardy clause should operate to bar retrial.
See Tibbs,
III. Is Clewis Necessary to Address Some Widespread Criminal Justice Problem That Jackson v. Virginia Is Inadequate To Address
We agree with the discussion in Judge Cochran’s dissenting opinion in Watson that there are no jurisprudential systemic problems for which the Jackson v. Virginia legal-sufficiency standard is inadequate or that can be resolved more satisfactorily in other ways besides retaining Clewis ’ “internally inconsistent” factual-sufficiency standard. See Watson,
The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape of the event clearly shows that B committed the robbery. But, the jury convicts A. It was within the jury’s prerogative to believe the convenience store clerk and disregard the video. But based on all the evidence the jury’s finding of guilt is not a rational finding.
See Johnson, 28 S.W.Bd at 15 (McCormick, P.J., dissenting).
IY. Texas Constitution, Texas Statutes And Case Law Revisited
Case law makes it fairly clear that, from the time that Texas was a republic in the 1880s and 1840s until the United States Supreme Court decided Jackson v. Virginia in 1979, this Court and its predecessors, under what are essentially the same constitutional and statutory provisions that currently exist and existed when Clewis was decided in 1996, applied a single and deferential evidentiary-sufficiency standard in criminal cases that essentially was the same standard as the Jackson v. Virginia standard.
There is very little to add to what this Court has already extensively written on a direct-appeal court’s constitutional and statutory authority to apply this factual-
The dissenters in this Court’s factual-sufficiency cases took the position that, even though direct-appeal courts may have the authority to apply this factual-sufficiency standard under their grant of general appellate jurisdiction, when the courts of appeals acquired criminal jurisdiction in 1981, the Legislature, pursuant to its constitutional authority in Article V, Sections 5(a) and 6(a), to regulate appellate jurisdiction, made significant changes to Article 44.25 that were carefully designed to ensure that direct-appeal courts defer to a jury’s credibility and weight determinations.
Our decision in Clewis to adopt a civil factual-sufficiency standard was meant to “harmonize[ ] the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual suffi
Thus, when this Court decided Clewis in 1996, direct-appeal courts were already harmoniously applying essentially the same standard of factual sufficiency in civil and criminal cases.
We also note that Watson and Clewis relied on several cases, most notably the 1883 case of Walker v. State,
As the Court with final appellate jurisdiction in this State,
V. Disposition of This Case
We must now decide how to dispose of this case. In light of our disposition of the State’s first ground for review, it is unnecessary to address the State’s second ground for review. And having decided that there is no meaningful distinction between a Clewis factual-sufficiency standard and a Jackson v. Virginia legal-sufficiency standard, we could decide that the court of appeals necessarily found that the evidence is legally insufficient to support appellant’s conviction when it decided that the evidence is factually insufficient to support appellant’s conviction. However, primarily because the “confusing” factual-sufficiency standard may have skewed a rigorous application of the Jackson v. Virginia standard by the court of appeals, we believe that it is appropriate to dispose of this case by sending it back to the court of appeals to reconsider the sufficiency of the evidence to support appellant’s conviction under a proper application of the Jackson v. Virginia standard. Cf. Tibbs,
The judgment of the court of appeals is vacated, and the case is remanded there for further proceedings not inconsistent with this opinion.
WOMACK, J., concurred.
Notes
.
.
. See Jackson,
. See Clewis,
. See id.
.See Rollerson v. State,
. Appellant was also charged with and convicted of possessing more than one but less than four grams of ecstasy and sentenced to 10 years in prison in cause number 10-07-00310-CR. That conviction is not at issue in this proceeding.
. Appellant testified at trial that he had "like $30 or $40” on him.
. We note that appellant was charged with just possessing the six ecstasy pills that weighed 1.29 grams. The record contains no testimony on how many pills a typical user would take or a typical seller would possess with intent to deliver.
. The question presented in this ground is whether a jury could rationally find beyond a reasonable doubt that appellant possessed with intent to deliver 4.72 grams of crack cocaine because appellant fit a profile of "most” or "typical” drug dealers.
. See Jackson,
. Our decision in Watson approved of this formulation of the Clewis standard. See Watson,
. See Jackson,
.The Supreme Court in Tibbs explained the difference between reversals based on eviden-tiary sufficiency (i.e., Jackson v. Virginia ) and reversals based on evidentiary weight (i.e., factual-sufficiency) which “draws the appellate court into questions of credibility." See Tibbs,
. The lead majority opinion in Clewis seems to have cited Tibbs for the proposition that “when conducting a factual sufficiency review, an appellate court cannot substitute its judgment for that of the factfinder since this would violate the defendant's right to trial by jury.” See Clewis,
. This requirement that the reviewing court afford "appropriate deference” to a jury's credibility and weight determinations in a factual-sufficiency review is motivated by a con-
. See Watson,
.
. A dissenting opinion in Lancon stated that the majority opinion "seems to say that from now on, the level of deference due a jury's decision will be total deference when the decision is based on an evaluation of credibility." See Lancon,
. See Jackson,
. See Burks v. United States,
. For example, in Watson, in which we recognized that factual-sufficiency review is "barely distinguishable” from legal-sufficiency review, we stated that the first ground rule for factual-sufficiency review is that "the appellate court should be mindful that a jury has already passed on the facts, and convicted, and that the court should never order a new trial simply because it disagrees with the verdict, but only where it seems to the court to
. See Watson,
. We also note that the Florida Supreme Court's 1981 decision in Tibbs examined its 1976 decision in Tibbs, other Florida state-court decisions, and the Florida Court of Appeals' decision in determining whether its 1976 decision reversing Tibbs’ conviction was a reversal based on evidentiary weight or a reversal based on evidentiary sufficiency. See Tibbs,
. In addition, having two evidentiary standards instead of one rigorously and properly applied standard may actually be detrimental. See Amanda Peters, Symposium: Treaties and Domestic Law After Medellin v. Texas: Article: The Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark L.Rev. 233, 255-56 note 3 (Spring 2009) (having two standards of sufficiency review promotes the "boilerplate" recitation of both standards and the rigorous application of neither).
.See Watson,
.See Watson,
. See Watson,
. Clewis decided that a direct-appeal court's constitutional and statutory jurisdiction to review "questions of fact” in criminal cases require a direct-appeal court to apply a factual-sufficiency standard to the elements of the offense when properly requested to do so by a convicted defendant. See Clewis, 922 S.W.2d at 129 ("Jackson standard of review does not satisfy a noncapital defendant’s right to an appellate review of fact questions”) and at 129-31 ("When their jurisdiction to review fact questions is properly invoked, the courts of appeals cannot ignore constitutional and statutory mandates."); Stone v. State,
. See Watson,
. See Tex. Const. Article V, § 5(a) (providing Texas Court of Criminal Appeals with final appellate jurisdiction "with such exceptions and under such regulation as may be provided in this Constitution or as prescribed by law”); Tex. Const Article V, § 6(a) (providing Courts of Appeals with appellate jurisdiction "under such restrictions and regulations as may be prescribed by law” and also providing that “the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error”); Bigby v. State,
. See Watson,
. See Article 36.13 (providing that "[u]nless otherwise provided in this Code, the jury is the exclusive judge of the facts”); Article 38.04 (providing that "jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given the testimony” subject to such exceptions not applicable here).
.This is arguably inconsistent with Tex. R.App. Proc. 21.3(h), which permits a trial court to grant a new trial "when the verdict is contrary to the law and the evidence.” Compare Tibbs,
.It should be noted that this Court has decided that its review of a direct-appeal court's factual-sufficiency decision is limited by the factual-conclusivity clause to determining only whether the direct-appeal court properly applied “rules of law.” See Roberts,
. See Watson,
. See Watson,
. See Bigby,
. See Watson,
. See also Jacobs-Cathey Co. v. Cockrum,
. We further note that, since our 1996 decision in Clewis, the Texas Supreme Court, expressly relying on Jackson v. Virginia, modified its traditional appellate standards of "legal” and "factual” sufficiency in civil cases with a clear-and-convincing-evidence heightened burden of proof while also noting that the parameters of these standards "differ to some degree from those adopted by the Texas Court of Criminal Appeals.” See In re J.F.C.,
.See Clewis,
. It is, therefore, unnecessary in this case to revisit the issue of whether legislative activity in 1981 was meant to insure that direct-appeal courts would defer to the jury's credibility and weight determinations and not sit as "thirteenth jurors.” See Watson,
. 14 Tex.Ct.App. 609 (1883).
. See Watson,
. Another case cited in Watson apparently for the proposition that Article 44.25 and its statutoiy predecessors require a factual-sufficiency review that permits direct-appeal courts to sit as "thirteenth jurors” is Green v. State,
.To the extent that Walker can be read to support this proposition, we note that Walker was relying on that portion of the statutory predecessor to Article 44.25 that permitted a reversal “for the reason that the verdict is contrary to the weight of the evidence.” See Walker, 14 Tex.Ct.App. at 629 (emphasis sup
. See Article V, § 5(a) (Court of Criminal Appeals “shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade”); Interpretive Commentary to Article V, § 5(a) ("In defining the jurisdiction of the court of criminal appeals, this section confines its powers to the exercise of appellate jurisdiction in criminal matters exclusively. It thus has no civil jurisdiction, but it is the court of final jurisdiction in criminal matters.”).
Concurrence Opinion
concurring in which WOMACK, J., joined.
I adhere to my view that the 1996 judicial creation of the “Clewis
A. The Evidence in This Case Either Is or Is Not Legally Sufficient to Support a Conviction.
The evidence in this case is either sufficient to support appellant’s conviction under the constitutionally-mandated Jackson,
Appellant was charged with possession of cocaine with the intent to distribute it. At trial, he denied that the baggie containing 4.72 grams of cocaine and five ecstacy pills found in the pool table pocket return was his, although he admitted ownership of the baggie of marijuana that he tossed under that pool table. On appeal, he argued that the evidence was both legally and factually insufficient to prove that he possessed the cocaine with the intent to distribute it. The court of appeals found that the evidence was legally sufficient to support a finding, beyond a reasonable doubt, that appellant possessed the cocaine with the intent to distribute it. In doing so, it relied on a list of seven facts, beyond the mere amount of cocaine, that supported the jury’s guilty verdict.
I agree that this is a close call on legal sufficiency, but I do not see how “missing” facts can transform the purportedly legally sufficient evidence into factually insufficient evidence. There is no higher standard than “proof beyond a reasonable doubt.” If the evidence meets that standard, how can it fall short using a lower standard? Indeed, the Waco Court of Appeals may have had second thoughts itself about this question because it held, in a subsequent (but almost identical) case,
B. Both Parties Agree That the Proper Issue Is Legal Sufficiency of the Evidence.
Fittingly, both appellant and the State agree that the proper issue in cases such as this is whether the evidence is legally sufficient. The State argues in its Petition for Discretionary Review, “Evidence that is factually insufficient due to its inherent weakness should always be legally insufficient; either the evidence is such that a rational juror could convict upon it or it is not, regardless of the light in which it is viewed.”
II.
A. Logic Requires a Single Standard of Sufficiency Review in Criminal Cases.
I have already set out my concerns about the intellectual legitimacy, historical authenticity, and appropriateness of the Clewis factual sufficiency review in Texas.
The attempt to impose Texas civil standards of a second-round factual sufficiency review is logically incompatible with the constitutionally mandated legal sufficiency review of criminal convictions that requires the State to prove all elements of a crime
The Clewis doctrine of re-reviewing the sufficiency of the evidence after the appellate court has already held that the evidence satisfies the highest standard of proof possible — beyond a reasonable doubt — to decide if it is nonetheless factually sufficient is internally inconsistent. If the evidence suffices to prove guilt beyond a reasonable doubt, and it supports a rational, reasonable verdict, as required under Jackson, that evidence cannot logically be so lacking in probative value as to make the jury’s verdict “manifestly unjust” under the vague and subjective civil-law factual-sufficiency standard. To declare the evidence factually insufficient necessarily turns an appellate judge, viewing only the cold written record, into a self-appointed thirteenth juror with absolute veto power over the twelve citizens who actually saw the witnesses, heard the evidence, and reached a rational, reasonable verdict. The United States Supreme Court recognized this in Tibbs v. Florida,
B. Legally Sufficient Evidence in a Criminal Trial.
For more than 150 years, Texas appellate courts reviewed the sufficiency of the evidence in Texas criminal cases under a single standard (although the precise wording varied), taking into account both the facts that were proven at trial and the law applicable to the particular offense.
In 1979, the United States Supreme Court delivered its opinion in Jackson v. Virginia,
In Jackson, the Court explained that the Thompson “no evidence” review “secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty!,]”
A reasonable doubt might arise because the verdict is manifestly against the great weight and preponderance of the credible evidence or because there is nothing more than a mere scintilla of evidence to support some element of the offense. But, of course, the reviewing court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”
Therefore, after 1979, Texas courts were prohibited from applying a “no evidence”
2. Legal sufficiency in criminal cases is judged by the quality, not the quantity, of evidence supporting the accuracy of the verdict.
Legal sufficiency of the evidence is a test of adequacy, not mere quantity. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.”
Indeed, the Supreme Court explicitly held in In re Winship,
As Justice Harlan explained in his Win-ship concurrence, although “the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.”
Legal sufficiency of the evidence in a criminal proceeding may be divided into two zones: evidence of such sufficient strength, character, and credibility to engender certainty beyond a reasonable doubt in the reasonable factfinder’s mind and evidence that lacks that strength.
C. Texas Civil Standards of Review.
Texas is considered a “hold-out” state by having a two-tiered standard of appellate review for civil cases, although commentators state that “recent decisions hint that there is support for assimilation into the single standard of review used in most jurisdictions.”
1. The “five zone” review for legal and factual sufficiency.
Traditionally, Texas appellate courts have employed a five-zone review of civil verdicts when the burden of proof at trial is that of “preponderance of the evidence.”
Zone 1 is the “no evidence” zone, similar to the old legal sufficiency standard rejected by the Supreme Court in Jackson for criminal cases. A “no evidence” challenge by the party "without the burden of proof in a civil case may be sustained only when:
• There is a complete lack of evidence of some element of a claim or defense;
• The evidence offered at trial is inadmissible under the rules of law or of evidence and thus cannot be given any evidentiary value on appeal;
• There is no more than a “mere scintilla” of evidence to prove some essential fact of either the claim or defense;39 or
• The evidence conclusively demonstrates the opposite of the essential fact.40
If the appellate court finds “no evidence” to support the verdict, the evidence is legally insufficient, and the opponent is entitled to a judgment in his favor as a matter of law.
3. Zone 2■ — “factually insufficient evidence. ”
In zone 2, the party with the burden of proof has offered some evidence in support of his claim or defense and the case is allowed to go to the jury for a verdict. But the evidence supporting the jury’s verdict, while more than a “mere scintilla,” is slim indeed.
⅛. Zone 3■ — “zone of reasonable disagreement. ”
Zone 3, the zone of reasonable disagreement, is the great middle ground, in which a verdict will be upheld for either the party with the burden of proof or the opposing party as there is conflicting evidence or inferences on either side of the vital fact issue or issues, but the jury’s verdict is reasonable and does not “shock the conscience,” nor it is not so “clearly unjust” to indicate obvious bias.
5. Zone U — “great weight and preponderance:”
In zone 4, the party with the burden of proof has offered significant evidence to support the claim or defense; the great weight and preponderance of the credible evidence supports his position.
6. Zone 5 — “conclusive evidence. ”
At the opposite end of the spectrum from zone 1 is zone 5 — “conclusive evidence” — in which the party with the burden of proof has established conclusively, or as a matter of law, that he is entitled to a judgment in his favor because the opponent has offered no evidence in opposition and the proponent has offered sufficient evidence of the vital fact or claim.
7. The Texas Supreme Court’s Reformulation of Legal Sufficiency.
Although this five-zone theory has been the traditional formulation of civil legal and factual sufficiency standards in civil cases, in 2005, the Texas Supreme Court articulated a new formulation of the test for legal sufficiency review in City of Kel
The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Whether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.52
Thus, when reasonable jurors could resolve conflicting evidence either way, an appellate court must assume that jurors resolved all such conflicts in accord with their verdict, and when the evidence supports conflicting inferences, the court must assume that jurors made all inferences in favor of the verdict and disregard other possible inferences.
Some commentators have noted that this new formulation of legal sufficiency has virtually merged the Texas legal sufficiency standard with that of factual sufficiency in civil cases.
D. The Criminal Legal Sufficiency Standard Cannot Be Harmonized with the Civil Factual Sufficiency Standard.
1. Clewis is a chimera.
In Clewis, this Court attempted to superimpose the five-zone civil standard of review, predicated upon trials in which the burden of proof is by a preponderance of the evidence upon the two-zone criminal standard of review that requires proof beyond a reasonable doubt.
In a civil case, if the jury returns a verdict in favor of the party that did not have the burden of proof (usually the defendant), but that verdict is determined by the appellate court to be against the great weight and preponderance of the evidence offered by the party that did have the
Similarly, if the party with the burden of proof in a civil trial (usually the plaintiff) obtains a jury verdict in its favor, but an appellate court determines that there is insufficient evidence, even when viewed in the light most favorable to the verdict,
What this Court did in Clewis was adopt the language of Texas civil factual sufficiency review without first determining whether there was a proper fit between those civil standards of review and the differing evidentiary standards of proof in civil and criminal cases. This mistake was quite understandable when Clewis. was decided in 1996 because this Court had recently and properly adopted the Texas civil standards of legal and factual sufficiency for those few instances in criminal cases in which the burden of proof is a preponderance of the evidence, as occurs with affirmative defenses.
In Watson v. State,
should view the evidence in a neutral light, rather than in the light most favorable to the verdict.
In sum, we have never been successful in our attempts to superimpose the five-zone civil standards for sufficiency review on top of the constitutionally mandated legal sufficiency review of a criminal conviction. These two standards of review depend upon their distinctly different burdens of proof. Like oil and water, they do not mix. They are not logically consistent, and they promote only confusion and conflation of two distinct concepts. We are required to follow the heightened Jackson legal sufficiency formulation; we cannot follow a lesser factual sufficiency formulation.
I agree that it is time to consign the civil-law concept of factual sufficiency review in criminal cases to the dustbin of history.
. Clewis v. State,
. Watson v. State,
. Jackson v. Virginia,
. Brooks v. State, No. 10-07-00309-CR,
(1) both the bag of marihuana and the bag of cocaine were packaged in the same manner;
(2) [appellant] was not in possession of any drug paraphernalia for either use or sale;
(3) [the State’s DEA expert] testified that users typically carry some type of heating element, such as a crack pipe, but dealers do not;
(4) at the time of his arrest, [appellant] was not under the influence of a narcotic;
(5) [appellant] has a previous conviction for possession with intent to deliver;
(6) [appellant] attempted to evade capture and discarded contraband in the process; and
(7) [appellant] was found in possession of three different types of drugs.
Id. The majority did not analyze the probative value of these facts to establish appellant's intent or discuss what legitimate inferences, if any, might be drawn from them. It did not explain why the evidence was legally sufficient when it announced its conclusion.
.Id. at *5, 2008 Tex.App. LEXIS 7364, at *13. Chief Justice Gray dissented, noting that the majority failed to acknowledge that there was “more evidence of intent to deliver than merely the amount of cocaine.” Id. at *7, 2008 Tex.App. LEXIS 7364, at *19 (Gray, C.J., dissenting). He also noted that the majority did not "detail the evidence and clearly state why the evidence that is legally sufficient is nevertheless factually insufficient." Id. at *7, 2008 Tex.App. LEXIS 7364, at *20.
. Guyton v. State, No. 10-07-00070-CR,
. See Watson,
. State’s Petition for Discretionary Review at 9.
. Appellant’s Petition for Discretionary Review at 6. Appellant relies on several analogous federal cases in which the courts held that the evidence was legally insufficient to support a finding of "intent to distribute” a controlled substance that the defendant admittedly possessed. In these cases, the inference of intent to distribute was not a reasonable one given the paucity of circumstantial evidence.
As appellant notes, the legal sufficiency standard of review is that required by the United States Constitution as set out in Jackson v. Virginia. That same standard is applied in every state and federal jurisdiction in America. It applies to all criminal convictions regardless of the type or degree of crime. This application of a single, constitutionally-mandated standard has led to the creation of an enormous body of "sufficiency of evidence” law and precedent across America that any judge or lawyer may easily access and apply to any given conviction here in Texas. It is a coherent body of law. It is objective and intellectually rigorous. It sets out appellate presumptions, permissible inferences, and specific criteria to use when assessing the legal sufficiency of the evidence. It does not rely upon subjective notions of "shocking the conscience” of individual appellate judges, striking them as "manifestly unjust," or seeming just plain "wrong.”
.See Watson,
.
. Tibbs v. State,
. See Watson,
. Id.
. Id. at 426 (collecting and discussing Texas criminal cases from 1841 forward and con-
.
. Id. at 312-13,
.
. Jackson,
. Id. The Supreme Court explained that a "no evidence” standard does not "protect against misapplications of the constitutional standard of reasonable doubt” because a "no evidence” standard is satisfied by a "mere modicum” of evidence. "But it could not seriously be argued that such a 'modicum' of evidence could by itself rationally support a conviction beyond a reasonable doubt.” Id. at 320,
. Id. at 318 n. 9,
. Id. at 318-19,
. Id. at 319,
. Id.
. Gollihar v. State,
. Butler v. State,
. Black’s Law Dictionary 1285 (5th ed.1979).
.
. Id. at 368,
. Id. at 367-68,
. Id. at 370,
. Id. at 371 n. 3,
.That does not mean, of course, that every factfinder or every appellate judge need agree that the evidence in a particular case is legally sufficient. As the Supreme Court explained in Johnson v. Louisiana,
In our view disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters’ views, remains convinced of guilt. That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard. Jury verdicts finding guilt beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt, even though the trial judge might not have reached the same conclusion as the jury, and even though appellate judges are closely divided on the issue whether there was sufficient evidence to support a conviction.
Id. at 362-63,
. W. Wendall Hall & Mark Emery, The Texas Hold Out: Trends in the Review of Civil and Criminal Jury Verdicts, 49 S. Tex. L.Rev. 539, 540 (2008).
. William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence” and “Insufficient Evidence,” 69 Tex. L.Rev. 515, 516 (1991).
. Id. at 525.
. See id. at 517-18 (discussing and using the concept of “a five zoned spectrum, with the strength of the proponent's evidence increasing in each successive zone”).
. One might visualize these five zones as laid out on an imaginary football field, starting from the left-hand goal line of the party with the burden of proof. Zone 1, the "no evidence” zone, starts at this goal line and, as
.Robert W. Calvert, “No Evidence” and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 363 (1960). Justice Calvert explained the scintilla rule as follows:
[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is, in legal effect, no evidence, and will not support a verdict or judgment. The scintilla rule cannot apply when there is direct evidence of a vital fact; it applies only when the vital fact must be inferred from other relevant facts and circumstances which are proved. If the inference is not a reasonable one a “no evidence” point should be sustained. It follows that "no evidence” points based on the scintilla rule require a careful analysis of the facts proved for the purpose of determining whether the vital fact may be reasonably inferred.
Id. (footnotes omitted).
. Id. at 362-63; see also Merrell Dow Pharmaceuticals, Inc. v. Havner,
. Havner,
. According to Justice Calvert, "if the evidence supporting the finding is so uncertain, inconsistent, improbable, or unbelievable that, although constituting some evidence of probative force when considered in its most favorable light in support of the finding, it would nevertheless be clearly unjust to permit the judgment to stand.” Calvert, 38 Tex. L.Rev. at 367. Justice Calvert appropriately viewed the evidence "in its most favorable light in support of the finding” in assessing factual sufficiency; he did not view it in a "neutral light.” I have found no Texas Supreme Court case that has viewed the evidence "in a neutral light” when addressing factual sufficiency claims.
. Justice Calvert explains that, in this zone 2 scenario, the appellate court may not find that the evidence is "against the great weight and preponderance of the evidence because there is no evidence of the nonexistence of the fact." Calvert, 38 Tex. L.Rbv at 366. That is, when reviewing an "insufficient evidence" point, the appellate court looks only to the evidence that supports the vital fact and determines that this evidence is simply too meager to support a finding of its existence by a preponderance of the evidence. Id.
. See note 49 infra.
. Id. at 370.
. Id. ("By producing the evidence on retrial the party has fair assurance that a finding of the existence of the vital fact will be permitted to stand.”). Strangely, this same rule does not apply for legally insufficient evidence because "[plresumptively, at least, all of the evidence available to the appellee has been introduced.” Id. Justice Calvert did not explain why a party who produced no evidence of a vital fact at the first trial is not entitled to a second bite at the apple, while a party who offered some, but factually insufficient, evidence would be able to produce more evidence and thus is entitled to a second bite at the apple.
. Id.
. Texas courts usually use the short-hand term "great weight of the evidence,” but the Texas Supreme Court occasionally reiterates that it is, in reality, the great weight of the credible evidence that it is referring to. Quality, not mere quantity, has been its historical determining factor. See, e.g., Dawson v. St. Louis Expanded Metal Fireproofing Co.,
. See William Powers, Jr. & Jack Ratliff, 69 Tex. L.Rev. at 518-19 ("When the evidence falls into zone 2, the proper terminology is that there is ‘insufficient evidence’ or ‘factually insufficient evidence' to support an affirmative finding. In zone 4, the clearest terminology is that a finding contrary to the evidence is against the ‘great weight and preponderance of the evidence,' although this terminology is occasionally (and we think confusingly) used to refer to evidence in zone 2. Despite the differences between zones 2 and 4, attacks on jury findings in these zones are usually called ‘factual sufficiency’ points. The preferred terminology has the proponent [the party with the burden of proof] claim that an unfavorable (negative) finding should be set aside because it is ‘contrary to the great weight and preponderance of the evidence,' and has the opponent [the party without the burden of proof] claim that an unfavorable (affirmative) finding was based on 'insufficient evidence.’") (footnotes omitted); see also Dorsaneo, Texas Litigation Guide § 146.03[6][e][ii][C] ("A party who attacks the factual sufficiency of an adverse finding on an issue on which the party has the burden of proof must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.”).
. See Pool v. Ford Motor Co.,
. 168 S.W.3d 802 (Tex.2005).
. Id. at 827.
. See id. at 818-21.
. Id. at 822 (footnote omitted). In City of Keller, the Supreme Court also described three kinds of evidence that must be disregarded when conducting a legal sufficiency analysis: (1) credibility evidence; (2) conflicting evidence; and (3) conflicting inferences. Id. at 819-22. Thus, witness credibility in civil cases, as in criminal cases, is solely the prerogative of the factfinder. An appellate court may not discount a witness's testimony as being, in its view, less credible than another witness's. Furthermore, the appellate court may not choose between two conflicting inferences if the evidence would reasonably support either one. "It is widely recognized that one of the most important attributes of the right to jury trial is the ability of juries to draw, from circumstantial evidence, inferences that cannot be set aside or second-guessed by reviewing courts merely because the reviewers would have reached a different factual conclusion.” William V. Dorsaneo, III, Changing the Balance of Power: Juries, the Courts, and the Legislature, Practice Before the Supreme Court 5 (State Bar of Texas 2004).
. City of Keller,
. See City of Keller,
. See W. Wendall Hall & Mark Emery, 49 S.Tex. L.Rev. at 559 ("Some may conclude that City of Keller only addresses legal sufficiency challenges, but the reasonable juror standard seems to make the distinction between legal and factual sufficiency mean little.”); id. at 562 (noting that under the City of Keller "reasonable and fair-minded juror” standard, the Supreme Court may avoid the "yo-yo effect” of reversing and remanding
. Id. at 556.
. Id. at 600.
. Lonny S. Hoffman, Harmar and the Ever-Expanding Scope of Legal Sufficiency Review, 49 S. Tex. L.Rev. 611, 614 (2008).
. Id.
. See W. Wendall Hall & Mark Emery, 49 S. Tex. L.Rev. at 610.
. See Watson,
. See Clewis,
. This situation does arise in those instances in which the defendant bears the burden of production and persuasion for affirmative defenses. See note 67 infra.
. See note 42 supra.
. See, e.g., Meraz v. State,
.See Jones v. State,
.
. Id. at 415.
. I am unable to find any Texas Supreme Court case that even mentions the word "neutral” in relation to a factual sufficiency review. In In re King’s Estate,
.
When the court of appeals conducts a factual-sufficiency review, the court does not ask if any rational jury, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Factual-sufficiency review begins with the presumption that the evidence supporting the jury's verdict was legally sufficient, i.e., constitutionally sufficient for the purposes of the Due Process Clause of the*926 Fourteenth Amendment. Rather, the court views all the evidence without the prism of "in the light most favorable to the prosecution.” Because the court is not bound to view the evidence in the light most favorable to the prosecution, it may consider the testimony of defense witnesses and the existence of alternative hypotheses. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Id. The court of appeals then cited Cain v. Bain, 709 S.W.2d 175, 176 (1986), and In re King's Estate,
.
. Id. at 705 (noting that factual insufficiency claim cannot be based on contradictory and inconsistent witness testimony because "the jury is the sole judge of what weight to give such testimony.... Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility.”).
. Id. at 8.
Dissenting Opinion
dissenting in which MEYERS, JOHNSON, and HOLCOMB, JJ., joined.
By dint of persistence, a plurality of the Court purports to overrule Clewis.
I.
The plurality’s primary justification for overruling Clewis is that, because the standards for factual sufficiency and legal sufficiency have essentially melded into one, there is no longer any “meaningful distinction between them that would justify retaining them both.”
A holding of legally insufficient evidence — that is, that the evidence is so lacking that federal due process will not tolerate a conviction — has double jeopardy implications.
The deference required of the appellate court in a factual sufficiency review is of a different kind than that required by legal sufficiency. It is not, as with legal sufficiency analysis, total deference to the jury’s prerogative to resolve all conflicts and ambiguities in the record against the defendant. Instead, it is a qualified deference to the jury’s apparent assessment of the weight, credibility, or reliability of the (admittedly legally sufficient) evidence. This deference is important because it respects the jury’s fact-finding role at the trial court level.
The plurality asserts that this is not a true factual sufficiency review because it:
*929 is inconsistent with the evidentiary-weight standard described in Tibbs (and purportedly adopted in Cleivis) and with viewing the evidence in a “neutral light,” which permit the reviewing court to show no deference at all to a jury’s credibility and weight determinations and to sit as a “thirteenth juror” without any limitation and to declare that a conflict in the evidence justifies a new trial simply because the reviewing court disagrees with the jury’s resolution of conflicting evidence. See Tibbs,457 U.S. at 42 ,102 S.Ct. 2211 .16
This passage represents a distorted view of factual sufficiency review. I agree that the citation to Tibbs supports the proposition that when a reviewing court does overturn a jury verdict as too tenuous or against the great weight and preponderance of the evidence, it acts as a thirteenth juror and does not, ultimately, defer to the jury’s resolution of weight and credibility.
As for the plurality’s claim that a factual sufficiency review that pays any deference at all to the jury’s verdict is not really a review of the evidence in a “neutral light,”
II.
Having declared the standards for legal and factual sufficiency review to be indistinguishable, the plurality finds it necessary to eliminate the latter because a finding of factual insufficiency might necessitate an appellate acquittal.
III.
Next the plurality cites various policy considerations for dispensing with factual sufficiency review. First, the plurality quotes with approval a number of reasons that the Florida Supreme Court listed to explain why it would no longer entertain evidentiary-weight grounds on appellate review.
IV.
Any argument to undermine the basis for that constitutional and statutory authority, the plurality has saved for last— perhaps because it can only muster dissenting opinions to support it. The plurality in fact acknowledges that “[tjhere is very little to add to what this Court has already extensively written on a direct-appeal court’s constitutional and statutory authority to apply this factual sufficiency standard in criminal cases.”
And yet overrule Clewis the plurality purports to do. Along the way, the plurality fails even to pay lip service to the doctrine of stare decisis. Stare decisis dictates that “we keep in mind the strong preference for adhering to past decisions[.]”
To purporting to overrule Clewis (and the century of case law that preceded it that exercised fact review jurisdiction to reverse convictions that were built on too tenuous a foundation or were against the great weight of the evidence),
. Clewis v. State,
. Plurality opinion, at 894.
. Watson v. State,
. Plurality opinion, at 894-95.
. Zuniga v. State,
. Jackson v. Virginia,
. Watson v. State, supra, at 415.
. Burks v. United States,
. Jackson v. Virginia, supra, at 326,
. See Watson v. State, supra, at 416 (“The fact is that rational people can disagree whether legally sufficient evidence is persuasive to a level of confidence beyond a reasonable doubt. 'That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable doubt standard. Jury verdicts finding guilt beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt.’ "(quoting
."A reversal based on the weight of the evidence ... can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment.” Tibbs v. Florida,
. None of the cases the plurality cites today, not even Lancon v. State,
. Watson v. State, supra, at 417.
. Id.
. Plurality opinion, at 901.
. “A reversal on [the ground that the verdict is against the weight of the evidence], unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a ‘thirteenth juror’ and disagrees with the jury's resolution of the conflicting testimony.” Tibbs v. Florida, supra, at 42,
. There is no suggestion that Florida law leading up to the Supreme Court's decision in Tibbs authorized appellate courts, "without any limitation,” to reverse convictions and remand for new trials any time they happened to disagree with a jury’s verdict. Tibbs v. State,
.Plurality opinion, at 900 (“if a reviewing court is required to defer in any manner to a jury's credibility and weight determinations, then it is not viewing the evidence in a 'neutral light[.]' ”).
. Id. at 18 (“We believe that the Clewis factual-sufficiency standard with its remedy of a new trial could very well violate double jeopardy principles under Tibbs if factual-sufficiency is 'barely distinguishable' from legal-sufficiency review.”).
. Id. at 20.
. Id. at 20-22 (citing Watson v. State, supra, at 450 (Cochran, J., dissenting)).
. Watson v. State, supra, at 406-12.
. Plurality opinion, at 907-08.
.See Id. at 28 ("The issue thus becomes whether direct-appeal courts' constitutional jurisdiction to review ‘questions of fact,' as also codified in Article 44.25 [of the Code of Criminal Procedure] authorizing direct-appeal courts to reverse a judgment ‘upon the facts,' should now be construed for the first time to mandate direct-appeal courts to sit as 'thirteenth jurors' in criminal cases contrary to 150 years of practice in civil and criminal cases. We decline to question over 150 years of criminal and civil jurisprudence in this State and construe constitutional and statutory mandates to review 'questions of fact’ to also require direct-appeal courts to sit as
. Ex parte Lewis,
. Id.; Roberts v. State,
. Ex parte Lewis, supra.
. E.g., Paulson v. State,
. It is sometimes argued that factual sufficiency review is inefficient because it results in so few reversals anyway. See, e.g., Watson v. State, supra, at 448 (Cochran, J., dissenting). But factual sufficiency review operates like a fail-safe mechanism, and one would hope that in any reasonable system of criminal justice it would be rare that ordinary procedural mechanisms would fail to ensure just results. It is also argued that the very existence of factual sufficiency review puts a certain psychological pressure on first-tier appellate courts to find evidence that is legally sufficient nevertheless to be legally insufficient in order to avoid jeopardy consequences; after all, the appellate court can always hold the evidence factually insufficient instead. Id. at 449. The notion is, as I gather, that without factual sufficiency review, first-tier appellate courts would actually acquit more appellants as a matter of appellate review. Id. But I find it difficult to understand why it is better to encourage more appellate acquittals than it is to encourage more appellate reversal-and-remands in which a second juiy would be given an opportunity to acquit. See n. 12, ante. If the Court is genuinely concerned about the sanctity of the jury’s role as arbiter of the facts, should it not prefer that acquittals come from juries rather than appellate judges?
.See Watson v. State, supra, at 409-12 (discussing cases from this Court between 1891 and 1940 that reversed on the basis of factual insufficiency).