Brooks v. State

appropriate We conclude that the unit of

prosecution “materially is the or mis- false statement,”

leading not the loan applica- “materially

tion. Each false or misleading separate

statement” constitutes a offense. judgment appeals the court of

reversed, and the case is remanded proceedings

further consistent

opinion.

MEYERS, JOHNSON, JJ,

dissented. BROOKS, Appellant,

Kelvin Kianta

The STATE of Texas.

No. PD-0210-09.

Court of Appeals Criminal of Texas.

6,Oct.

Rehearing Denied Nov. statement, asset, publishes any knowing willfully security, any the same or overvalues false, alters, income, forges, to be or or counterfeits or shall be fined not more than instrument, document, $5,000 any paper, imprisoned or or ut- or not more than two ters, publishes, passes years, or as true instru- or both. ment, document, Moeller, paper, knowing (quoting or it to n. 1 378 F.2d altered, counterfeited, 1010). forged, § have been U.S.C.A. Reaves, Jr., West, Appel- M.

Walter lant. D.A., Messinger, R. Asst. Crim.

John Horn, Waco, State’s Attor- Jeffrey L. Van Austin, ney, for State.

OPINION HERVEY, J., judgment announced the opinion delivered an of the Court and KEASLER, KELLER, P.J., which COCHRAN, JJ., joined. granted discretionary review

We address, among things, other this case any meaningful distinc whether there is legal-sufficiency tion between a factual- Virginia1 under v. Jackson sufficiency standard under Clewis v. State a need to retain both and whether there is Virgi the Jackson v. standards.2 Under standard, a legal-sufficiency reviewing nia required court is to defer to a cred ibility determinations.3 Clewis, adopted a factual-suffi this Court standard, ciency supposed which is to be Virginia from a distinguished Jackson primarily by legal-sufficiency to a requiring reviewing court to defer credibility weight determinat contradicted itself ions.4 But then Clewis requiring ap court to also standard with deference to these ply this to avoid an jury determinations “so as substituting judgment appellate court’s jury.”5 having After made for that of “clarify” attempts several Clewis to resolve this fundamental contra part diction, eventually we came to realize that factual-sufficiency standard is the Clewis from the “barely distinguishable” Clewis, 922 S.W.2d at 133. S.Ct. 61 L.Ed.2d 560 4. See 1. 443 U.S. (1979). 5. See id. (Tex.Cr.App.1996).

2. 922 S.W.2d Jackson, 443 U.S. at 99 S.Ct. 2781. officers, Virginia legal-sufficiency cording standard.6 “a couple one the next step We now take small dollars.”8 Appellant appear did not to be progression recognize narcotics, that these two under the influence of and he essentially standards have become the was not in possession any drug of para- same and that phernalia there no mean- that could have been used for ingful distinction between them smoking crack cocaine. police The did not We, justify retaining would them both. find a gun. police The gave appellant’s therefore, overrule Clewis and decide that cell phone money acquaintance to an Virginia legal-sufficiency appellant’s of they appellant before took to jail. standard is the that a re- viewing court should apply determining An experienced Depart- Waco Police

whether the evidence sup- is sufficient to ment drug-enforcement investigator port each element of a criminal offense (Thompson) bag testified that the contain- is required prove beyond the State ing the 4.72 grams of crack cocaine con- a reasonable doubt. larger tained “two size rocks and then that, maybe

The record reflects in cause num- a smaller one” useable 10-07-00309-CR, ber convicted amount ap- of “crumbs.” He testified that pellant possessing with intent deliver each of large weighed the two rocks grams more than but four less than least two grams and the other one weighed crack cocaine and him gram sentenced to 25 “a something and a half or like that.” years in prison. Appellant Thompson claimed on di- testified that say” “he would appeal rect legally evidence is and that 4.72 grams amount,” was a “dealer factually insufficient to which intent- could have been up cut into 23 or 24 to-deliver element of this offense. grams rocks. He testified that 4.72 crack cocaine is worth about $470. police evidence shows that two offi- cers went a bar investigate report into Thompson quanti- stated that a “typical that someone matching appellant’s descrip- ty” that a dealer would have would be tion gun. was there When more than rocks he two and that “would outside, appellant step officers asked think” that someone with more than a appellant baggies ran and threw gram Thompson two to- would a dealer. testi- wards a pool just table before one of “typical” drug fied that it is not users officers him. the baggies possession tased One of to be in large of a amount of (about grams) contained a small amount drugs and he has run “not across marijuana. The other baggie many people contained that are users [crack cocaine] one baggie holding 4.72 grams crack that have more than one two rocks” cocaine another baggie holding six ec- because they going are to “smoke it as stasy that weighed grams.7 get tablets 1.29 as can [they] soon it.” He also testi- and, Appellant had a phone also cell ac- fied that crack users “typi- “most” cocaine State, Appellant charged 6.See Rollerson was also with and con- possessing victed of more than one but (Tex.Cr.App.2007) (factual-sufficiency less grams ecstasy than four and sentenced to "barely distinguishable” legal-suffi- years prison in cause number 10-07- review); ciency Watson v. 00310-CR. That conviction is not issue in (Cochran, J., (Tex.Cr.App.2006) 442-48 proceeding. this dissenting) (discussing attempts this Court's Clewis). "clarify” Appellant he had testified at trial that "like $30 him. $40” or save It’s not like ing. You don’t crack. type parapher- would have some cally” want to rainy day type of deal. You with” the crack nalia “to smoke possible.9 smoke it as soon pipes crack dealers don’t “Mypically for them to really common it’s because cross-examination, de- Thompson On are they selling.” product their use factors, are scribed none of which other Thompson testified: example, For case, present in the record indicat- somebody if Okay. So Q. [STATE]: (1) could ing person that a be a dealer: grams about 4.72 approximately had five, ten, twenty dollar possession of crumbs, and some or four rocks three bills; (2) person’s phone; names in the cell or user amount? a dealer amount that (3) identify- possession of some document (4) say what; I would that’s A. [THOMPSON]: of a ing possession who owes (5) amount. dealer weapon; person others observed the or ac- trying drugs. also Thompson to sell person possess knowledged that could ' Q. grams— if he’s 4.72 got So grams personal 4.72 crack cocaine for they were a dealer. A. I would think use. go oh, Q. Okay. going you I’m to — Appellant possessed testified that he things other that there are some said the small baggie containing the you look for to see if some- that would marijuana. possess- amount He denied opposed using body dealing was to crack co- ing baggies containing the the drugs. are some of those the What ecstasy pills. Appellant caine also for? you that would look things he has convictions prior admitted that two my come experience, A. we’ve possession prior for of cocaine and another just possessing people that are across intent to possession conviction for with usually They to use have what crack it. The jury deliver cocaine. was instructed pipe type is called crack some in the it charge that could have considered heating up element to heat crack determining these “in extraneous offenses that people with. Most we’ve come motive, intent, opportunity, prepara- across out the field that smoke crack tion, plan, knowledge, identity, or absence have a crack or have pipe somewhere Defendant, if of mistake or accident you your brillo which use inside of some offenses, any, any, with if in connection keep inhal- pipe crack as a filter to him in alleged against the indictment up of crack when ing piece whole case, purpose.” this no other and for Typically you’re smoking it. dealers During closing arguments, have not pipes don’t crack because it’s Thompson’s testi- primarily State relied for them to use really their common mony argue possessed that appellant to selling. they are You can’t product the crack cocaine with the intent to deliver if money you’re make hooked on it: product. typically own So a user is your all, There is type to some instrument no evidence

going [STATE]: have and, with, none, he was a What does to smoke crack like I said user. before, What that tell the they normally you? don’t have more tell does they person? going go I’m than one or because are smok- reasonable two many testimony pills typical user charged with on how appellant 9. We note that typical possess ecstasy would just possessing pills would take or seller six weighed grams. with deliver. 1.29 The record contains no intent to be- Investigator Thompson right now out of the phone cell if they and see kind of in with up dealers, cause he ties that. match with drug you other crack, know, dealer back on I’m level that we know. they The police, back and forth ba- bouncing because it’s being were They gave phone nice. sically charge. the same Just to his sister and let her it take home. crack have we added element So are we going to cops blame the intent Investigator to deliver. But being a little too nice night, even user, Thompson a typical testified that after he had cussed them and resist- one, rocks, max, ed, them, two do because what swung at kicked them? That’s they they get They do when it? want not reasonable either. smoke it because are they craving During closing jury arguments, drug, they They because it. use defense relied on other argue factors day. don’t hold for a rainy They don’t that the evidence appellant’s did show keep it for later. use They it then. And intent deliver. it,

when use have they they parapherna- I know [DEFENSE]: Mr. Brooks has a They lia on carry couple them. don’t He past. up came here and he testified of and then go rocks home and find their conviction, he a juvenile that has that he They stuff. have on their person. it all convictions, two possession has he has a drug paraphernalia, No no brillo no pad, delivery you conviction. And when look rod, push push no no pipe, pipe, crack that, easy you all it would be go for to Again, nothing. because he’s not a user. say, back there and “You know what? fact, There no evidence that. this, know, you Because of all he’s not the amount that he had is dealer telling the truth and we shouldn’t be- amount. This is 23 to 25 crack rocks. lieve him.” IBut don’t think that’s way It’s more or than one two for a you’re Yeah, going what to do. he has grams user. really 4.72 doesn’t seem like law, had run-ins with the and as he a lot in here. It’s a lot on the street. stated, panicked. he panicked He be- $500, He drugs had worth of on $600 marijuana cause he had the on him. him night. But as he you, testified to he didn’t cocaine,

know anything about that didn’t dealer, being About him a user and not a anything [ecstasy]. know about got you, he on the Did he stand. tell There was no presented you user, “I’m a not a dealer”? He didn’t other than who Thompson Officer came say That said, “Oh, that. would have been the up yesterday here and it’s perfect 4.72, chance for him to say grams grams, that. four to 200 but oh, Does like yeah, Oh, he look a user? You know we easy, delivery. that’s a somebody $500, had say, yeah. voir dire “I’ve It’s worth But lis- $600.” users, seen crack and I can tell when I testimony ten his He carefully. also see them.” Did a pipe too, he have on him? that he for things, said looks other No. What else did not You they he have? have for should looked other know, pipe. money things no He had some too. They should have looked to him, lot not a he hadn’t because started determine whether or not Brooks Mr. selling yet. He still 25- carrying large money, had his whole amount of was rock selling stash. He hadn’t started or not he had a gun, whether we Yeah, yet. phone. had He the cell was gun know there no found now, would been get place have nice to the names whether not he had or drug possession any parapherna- was in with him that would indi- any documents lia Brooks cate, money” purpose dealing, me or for the or people owe “These Ac- They large should possessed I sold to.” amount cash.... “This who if phone to see there to be gotten cordingly, proof guilt a cell we have find po- that were callers there so as to verdict were weak render anything or buyers manifestly or users clearly wrong unjust.”). tential They have asked should that nature. granted appel- We on both the Mr. bar whether people petitions and the State’s for discre- lant’s there, any- he did Brooks went when for petition review. tionary Appellant’s say, “Do body up him ever come following discretionary presents you I anything get have can you ground for review: you me sell some- tonight” or “Can (1) Appeals The in hold- Court of erred testimony was no what- thing?” There legally ing the evidence was sufficient is, you All have ladies soever on that. appellant had the intent to dis- establish delivery as far as the gentlemen, cocaine, where court found tribute said, but Thompson what Allen factually was insuffi- the same evidence you, you I importantly, as indicated intent.10 necessary cient to establish the possession that he show re- petition discretionary for State’s items, just not there. of those it’s following presents grounds view appeals decided that The court review: alone, “[standing grams 4.72 is insufficient (1) any meaningful Is there distinction intent deliver because this [to evidence of legal sufficiency under between review personal with amount is also consistent factually v. Virginia Jackson [sic] use], required.” See additional evidence is review when that is 10-07-00309-CR, slip No. Brooks to the evidence limited weakness (Tex.App.- op. at 2008 WL so, and, escape if it in the abstract does (memo- 2008) Waco, October delivered in this Court? opinion publica- designated randum not (2) ig- Appeals Did the Tenth Court of tion). The appeals court decided why duty adequately explain nore legally sufficient the additional evidence is sufficient, though legally is intent possession “to establish with to de- the jury’s so weak as render verdict liver,” the evidence in a “viewing but that wrong unjust? clearly manifestly light, factually not neutral it is sufficient.” Brooks, slip op. (“Viewing 9-10 Any Meaningful I. There Distinction Is light evidence in the most favorable to the Legal- Virginia Between verdict, is legally the evidence sufficient Sufficiency Fac- Review and Clewis possession with intent to deliver. establish tual-Sufficiency Review However, in a viewing the evidence neutral noting factually begin it is sufficient. The discussion light, We that a recognized not reflect that Brooks was record does Watson area, “barely dis- high high drug factual-sufficiency crime or standard is arrested a tinguishable” legal-sufficiency a from a stan- drugs packaged way in such were dealer, that “the differ- apparent Brooks a Brooks dard and suggest that is grams question ground intent 4.72 of crack presented in this deliver appellant profile a jury rationally beyond find cocaine because fit whether could "typical” drug possessed dealers. appellant "most” reasonable doubt ence” between these two standards is that evidence in a light” “neutral under a factu court views the evidence al-sufficiency standard supposed light” factual-sufficiency “neutral under a mean that the reviewing court is not re “in light standard and most favorable quired to defer to jury’s credibility and legal-sufficiency to the verdict” under a weight determinations and that the review Watson, 204 standard. See S.W.3d at 415 ing sit as “thirteenth juror” (emphasis It fair supplied). to charac- and “disagree[ with a ] resolution of terize the Virginia legal-suffi- Jackson v. conflicting evidence” and with a ciency standard as: “weighing of the evidence.” See Tibbs v. all Considering of the evidence in the Florida, 31, 42, 457 U.S. 102 S.Ct. verdict, light most favorable was a (1982) (internal L.Ed.2d quotes omit

jury rationally justified finding guilt ted) (describing appellate reversals of con beyond a reasonable doubt.11 victions based on evidentiary weight); Compare this to the Clewis factual-suffi- Watson, (Cochran, J., at 447 ciency may fairly standard which be char- dissenting) (factual-sufficiency standard acterized as: “explicitly makes the court a

Considering all evidence a neu- juror’ ‘thirteenth who indepen makes an light, jury rationally justified tral was a dent, de novo determination of credibility finding beyond guilt reasonable and the weight given to be the testimony doubt.12 and the inferences to be drawn from the facts”).14 Therefore, base the difference

Viewing the “in between a factual-sufficiency standard and favorable to the verdict” under a a legal-sufficiency standard is that the re legal-sufficiency standard means that the viewing court is required to defer to the reviewing court is required to defer to the jury’s credibility weight jury’s credibility determina determina (i.e., tions judge tions because the is the sole must view the evidence in verdict) credibility light the witnesses’ and the most favorable to the weight to under a given testimony.13 Viewing their legal-sufficiency standard it while is not Jackson, 319, charged, 11. See 443 U.S. at 99 S.Ct. the crime role as factfinder's weigher preserved through of the evidence is legal upon judicial a conclusion that all of the evidence is to be considered in the approved 12. Our decision in Watson of this light prosecution.”) most favorable to the formulation of the Clewis standard. See Wat- son, (emphasis original) and at S.Ct. 99 way, 204 S.W.3d at 415. Stated another (a 2781 "court faced with a record of histori- question under the Clewis factual-suffi- whether, supports conflicting cal facts that inferences ciency viewing standard is after all presume if must it does not affirmative- light," jury’s of the evidence in a "neutral —even ly appear in the record—that the trier of fact "clearly wrong verdict either and manifest- any ly resolved such conflicts in favor of the unjust” "against great weight and prosecution, and defer to that preponderance [conflicting] must resolu- evidence." 414-15; tion”). See 204 at S.W.3d see also Clewis, (reviewing 922 S.W.2d at 129 court light views the a neutral and sets explained 14.The Court in Tibbs jury’s contrary "if aside verdict it is so difference reversals based eviden- between overwhelming weight of the evidence as (i.e., ) tiary sufficiency Virginia Jackson v. and clearly wrong unjust”). to be (i.e., evidentiary weight reversals based on factual-sufficiency) appel- which “draws the Jackson, questions credibility." 13. See 443 U.S. at 99 S.Ct. 2781 late court into See ("Once Tibbs, n.ll, guilty a defendant has been found 457 U.S. at 38 102 S.Ct. 2211. 900 evidentiary-weight standard described jury’s credibility a

required to defer to (i.e., anything it must view not mention about the determinations Tibbs does weight light”) “neutral under being required the evidence in a to afford reviewing court id.; See factual-sufficiency standard. jury’s cred- “appropriate deference” (Tex.Cr. State, 23 S.W.3d 13 Johnson ibility weight determinations. But see P.J., (McCormick, dissenting) App.2000) Clewis, (reviewing at 133 court S.W.2d (“To defer, not to is the defer or apply factual-sufficiency must question.”). manner). “appropriately in an deferential” significant purported It that Clewis Therefore, if a court is re- reviewing evidentiary-weight standard de- treat quired to defer manner to a of the component in Tibbs as a scribed determinations, credibility weight then factual-sufficiency standard that Clewis viewing it is not the evidence a “neutral light.” in a “neutral views the evidence light” applying type and not of factual- Clewis, (Clinton, J., at 149 S.W.2d sufficiency standard described in Tibbs (“The long- no concurring) reviewing court purportedly adopted in And it Clewis. in the er ‘views the evidence very clear that this Court’s factual-suffi- rather prosecution;’ favorable to the ciency always required decisions have weigh consider and the evidence to must factual-sufficiency court in a re- determine whether resolution great amount of deference view afford manifestly un- conflicting testimony was (though precisely this Court has never said Tibbs, just” (citing U.S. deference) jury’s credibility how much 2211)).15 decision in S.Ct. This Court’s Clewis, determinations. See recognized ap- also that “there Johnson (reviewing at 133 S.W.2d differences” pears to be no substantive jury’s weighing with a the evi- disagree factual-sufficiency between Clewis “appropriately dence in an deferential” but evidentiary-weight and the stan- manner as to avoid an court’s “so Johnson, dard described Tibbs. See substituting judgment its for that of the (“Elsewhere, equiva- n. 8 Johnson, jury”); see also 23 S.W.3d at 7 determining legal sufficiency lent of is of- (factual-sufficiency employ review “must examining ten referred to as the ‘sufficien- prevent appel- deference to an appropriate evidence,’ cy companion and the substituting judgment court from late term to factual is referenced as finder, any for that of the fact and evalua- ‘weight of the evidence.’ reviewing substantially upon However, tion should not intrude appears there to be no substan- terms, judge the fact finder’s role as the sole these tive differences between credibility given to witness interchange- weight treated them this Court has noteworthy testimony”).16 ably.”). It is also Tibbs, majority opinion factual-sufficiency review. 15. The lead in Clewis seems See (reviewing proposition U.S. at 102 S.Ct. court to have cited Tibbs for the juror” disagree conducting can sit as “thirteenth a factual re- “when view, jury's conflicting "with the resolution testi- appellate court cannot substitute its an mony” jurors' weighing and "the of the evi- judgment for that of the factfinder since this dence”). right by would violate the defendant's to trial Clewis, (citing jury.” 922 S.W.2d at 133 See Tibbs, Tibbs, 2211). requirement reviewing court 457 U.S. at 102 S.Ct. 16. This however, jury's opposite proposition- "appropriate afford deference” to stands for the credibility weight reviewing determinations in a fac- court can substitute its conducting tual-sufficiency a con- judgment review is motivated for the factfinder’s And in bility Watson this Court reiterated and weight determinations and to sit tolerated, that it had never in the “even juror” “thirteenth without limita context,” sufficiency’ ‘factual an “appellate tion and to declare that a conflict in the simply opting ‘disagree’ court with the justifies a new trial simply be Watson, jury’s verdict.” See 204 S.W.3d cause the reviewing court disagrees with at 416. further This Court stated Wat- the jury’s resolution of evi conflicting son: Tibbs, 42, 102 dence. See 457 U.S. at S.Ct.

It is in the nature very of a factual- 2211. This is what is supposed to distin sufficiency review that it an authorizes guish the factual-sufficiency standard from court, very albeit to a limited the legal-sufficiency standard. See id. degree, to act in capacity of a so- Thus the Clewis factual-sufficiency stan juror.” called “thirteenth requirement dard’s the reviewing

court view evidence with “appropriate deference” to a jury’s credibility and An appellate judge cannot con- determinations is not contra clude that a “clearly wrong” conviction is dictory and inconsistent with the evidentia- because, or “manifestly unjust” simply ry-weight Tibbs, standard described admitted, quantum on the of evidence he also makes the factual-sufficiency Clewis have acquit would voted to had he been standard even more “barely distinguish jury. on the Nor can an judge able” from a v. Virginia legal- declare a conflict in the evidence sufficiency standard.17 justifies a simply new trial because he disagrees resolution of The final nail in the coffin that made a that conflict. legal-sufficiency standard “indistinguish (empha- S.W.3d at 416-17 able” factual-sufficiency from a supplied). sis came in this Court’s decision Lancon v. This, however, is inconsistent with the State.18 There this Court decided that the evidentiary-weight standard in reviewing described court cannot decide that the evi (and Clewis) purportedly adopted Tibbs factually dence is “solely insufficient be and with viewing the evidence in a “neutral cause [it] would resolved the conflict light,” permit which ing court to way” evidence in a different since “the show no deference at all to a credi is the judge sole of a witness’s credi (one requiring cem that might such deference present who was not even to see and right by jury violate the to trial witnesses) set out in the disagree hear the Clewis, Texas Constitution. See determination, fact-finder's but to be deferen- (discussing at 134-36 "factfinder deference judgment tial to the fact-finder's as it did so. right by jury”); to trial see also Roberts ambiguous This and contradic- (Tex.Cr. 661-62 n. 7 (one tory beginning.”) and at 445 (in App.2007) safeguard order to Texas' con- "cannot view the evidence in a neutral right by jury, stitutional to trial the Texas giving while at the same time deference to the Supreme imposed requirements Court several weight factfinder’s determinations of upon reviewing the court when it reverses on Johnson, credibility”); 23 S.W.3d at 13-14 factual-sufficiency grounds requiring as such P.J., (McCormick, (also dissenting) discussing reviewing the court to exercise its factual- ques- “Clewis’ internal contradictions on the sufficiency jurisdiction with "deferential stan- tion of deference to the credi- review”). dards of determinations”). bility weight Watson, (Cochran, 17. See 204 S.W.3d at 441 J., ("Thus, dissenting) empowered Clewis (Tex.Cr.App.2008). 18. 253 S.W.3d 699 appeals juror’ courts of a to act as 'thirteenth testimony,”20 the given weight given the to be the testi the bility, weight Lancon, 253 S.W.3d at 707. mony.” factual-sufficiency See standard from Wat- formulation of a factual-suffi Our current may be reformulated as follows: son “Con- Lancon, recognizing ciency standard light all in the sidering of the evidence jury judge is “the sole of a wit verdict, jury most favorable to the was a weight to be credibility, ness’s rationally justified guilt beyond in finding entirely testimony,” their eliminates given a reasonable doubt.” This is the Jackson viewing the evidence in a “neutral Virginia legal-sufficiency v. standard. factual-sufficiency of a light” component is, therefore, meaningful There no distinc- the current factual- standard and makes Virginia tion between the v. Jackson le- sufficiency indistinguishable standard from gal-sufficiency standard and the Clewis Virginia legal-sufficiency v. standard, factual-sufficiency and these two Johnson, 23 at standard. See also S.W.3d indistinguishable. standards have become (also recognizing reviewing if “a court was to accord absolute deference to Double-Jeopardy II. Considerations determinations, the fact a finder’s then factual-sufficiency The Clewis would, determination no (and “barely being distinguishable” now doubt, equivalent become the functional indistinguishable) legal-sufficiency review”).19 legal sufficiency troubling standard also raises some dou- by considering This be illustrated ble-jeopardy questions under the United following formulation of the factual- Supreme States Court’s decision Tibbs. ap- standard that Watson First, we it necessary find to discuss the all proved: “Considering proceedings involving Mr. Tibbs light, jury rationally justi- a neutral was a Florida courts. finding guilt beyond fied in a reasonable Watson, the Florida re- doubt.” See rape versed Tibbs’ convictions for of one Substituting light “in the most favorable to person first-degree verdict” for the “a neutral murder of another light” component person because of the this formulation of the stan- “weakness and inad- dard, equacy” rape testimony, as our victim’s cases such Lancon by recognizing jury only testimony done that “the the which was the that directly judge credibility, sole of a witness’s connected Tibbs to these crimes. See dissenting opinion reviewing “any A19. in Lancon stated that court to determine whether majority opinion say "seems to that from rational trier of fact could have found the on, jury's now the level of deference due beyond essential the crime a rea- elements of decision will be total deference when the deci- Jackson, sonable doubt.” See 443 U.S. at credibility." sion is based on an evaluation of original); (emphasis 99 S.Ct. Lancon, J., (Johnson, 253 S.W.3d at 708 J., (Hervey, n. dissenting). disagree. We Our decision in dissenting). portion This is the of the Jackson merely recognizes jury Lancon is the essentially Virginia incorpo- v. standard that judge credibility, "sole of a witness’s and the factual-sufficiency rates review. See Clewis given testimony” requir- to be thus (Tex.App.- 438-39 ing defer court to 1994) (Jackson Virginia Dallas (i.e., these determinations view the evidence necessarily encompasses factual-sufficiency verdict). light in the favorable vacated, review), 922 S.W.2d at 136. Viewing the evidence in the most favor- verdict, however, begins able the Jack- Jackson, 20. See 443 U.S. 99 S.Ct. Virginia legal-sufficiency analysis. son v. The Virginia requires v. standard still

903 1120, Florida, 1126 Supreme v. 397 So.2d 1122. The Florida exam- Tibbs Court (several (Fla.1981) aspects rape of the vic- prior of its ined several decisions that the testimony “cast on her serious doubt tim’s Appeals upon Florida had Court relied Florida, believability”); Tibbs 887 So.2d for that there deciding was a distinction (Fla.1976) J., 788, (Boyd, 791 and at 792 between Florida law convictions reversed concurring). The Florida Su- specially evidentiary weight (proper remedy preme Court remanded the case trial) new remand for re- convictions trial, for a new at the trial court which evidentiary versed for sufficiency (proper remedy provided by Florida time was an remedy appellate acquittal). See upon finding law that the evidence did Tibbs, (Florida 397 So.2d 1122-23 Court not defendant’s conviction. See Appeals “distinguished by placing Burks id. [evidentiary Tibbs’ reversal in weight] cat- retried, the Before Tibbs could be Unit egory; appellate reversals evi- where the Supreme that ed States Court decided technically dence is sufficient but principles double-jeopardy prohibit weight so tenuous or insubstantial retrying states from a defendant whose ordered”). new trial is The Su- Florida has on appeal conviction been reversed on Court, however, preme am- viewed “these (i.e., evidentiary-sufficiency legal-sufficien biguous decisions as were reversals which cy) essentially this has grounds because is, [evidentiary] sufficiency; based on effect an acquittal by jury.21 the same as prove in which the state cases failed to After the United States Court Supreme guilt beyond the defendant’s a reasonable decisions, down handed these the Florida Tibbs, doubt.” See 397 So.2d at 1124-25. granted trial court Tibbs’ to dis motion Court, therefore, Supreme The Florida indictment grounds miss his on the Ap- concluded that Florida Court his double-jeopardy principles prohibited peals’ Tibbs, distinction between reversals based See 1121. A retrial. 397 So.2d at evidentiary weight on based Appeals Florida Court reversed this reversals evidentiary sufficiency “question- order and reinstated Tibbs’ indictment on had a Tibbs, deciding upon Supreme able foundation.” 397 Florida historical See 1976 con reversing decision Tibbs’ Despite questionable Court’s So.2d at 1125. “was based rather weight, foundation, victions on the Supreme historical Florida legal sufficiency, evidence.” than the of the re- Court decided its 1976 decision id.; Tibbs, 386, State v. 370 388-89 See So.2d versing Tibbs’ convictions was “one (F la.Dist.Ct.App.1979). in which was those rare instances reversal evidentiary weight” and Flor- based on 1981, the re- Supreme Florida weighing Supreme “improper ida Court’s this decision outset noting viewed at the double-jeopardy and that evidence” distinction “that the between an prohibit retrial. principles did Tibb’s based on evidentiary reversal Tibbs, See 397 So.2d at 1126-27. evidentiary sufficiency on one based Florida Court also decided Supreme any consequence until United never of [the evidentiary appellate reversals based in] State’s Court’s decision Florida, ... Burks,” weight, “if valid in should apparently remedy ever because the from Florida law.” See both a remand be eliminated provided situations was Tibbs, Tibbs, trial. So.2d at at 1125. for a new 397 So.2d States, Massey, U.S. 98 S.Ct. Burks v. United 437 U.S. 21. See (1978). (1978); Greene L.Ed.2d S.Ct. L.Ed.2d among than Supreme disagreement tal does of the Florida On jury, A double-jeopardy jurors themselves. deadlocked 1981 decision Court’s retrial, Tibbs’ consistently recognized, not bar does principles did we Supreme Court decided States retrial acquittal barring United result in an not not bar a principles do double-jeopardy Jeopardy under the Double Clause. an court “sits as retrial when disagree- Similarly, an court’s ” “disagrees with the juror’ ‘thirteenth jurors’ weighing ment with the conflicting of the testimo- jury’s resolution require special does not Tibbs, 32, 42^13, at ny.” See 457 U.S. acquittal. deference accorded verdicts decision, reaching S.Ct. Tibbs, at See 457 U.S. S.Ct. noted that a Supreme States Court United (citation authority and footnote omit- “insufficiency on of the evi- reversal based ted). jury effect ac- has the same dence” Supreme also The United States Court it means that no rational quittal “because Supreme examined the Florida Court’s have voted to convict the factfinder could reversing Tibbs’ convictions 1976 decision prosecution that “the has defendant” reading” concluded that a “close produce failed to sufficient evidence “that the Florida suggested that decision Tibbs, prove its case.” See U.S. Supreme Court overturned Tibbs’ convic- 2211. The States Su- 102 S.Ct. United evidence, although tions because the suffi- an appel- further stated that preme Court verdict, not jury’s cient to did evidentiary weight reversal based on late fully guilt.” persuade the of Tibbs’ signifies acquittal more than does a “no Tibbs, See 457 U.S. at 102 S.Ct. 2211. them- disagreement among jurors further Supreme The States Court United “appellate that an court’s dis- selves” and Flor- any ambiguity noted that this 1976 weighing with the agreement jurors’ decision was resolved Supreme ida Court require special evidence does def- in its 1981 when the Florida Su- decision acquittal.” erence accorded verdicts preme “unequivocally Court held” its Supreme The Court wrote: reversing Tibbs’ convictions 1976 decision Term, just these suggested As we last in which was “one of those rare instances not have the force when policies do same evidentiary weight.” reversal based on disagrees with a resolu- judge Tibbs, 457 U.S. 102 S.Ct. conflicting evidence and con- tion States con- United against the guilty cludes that a verdict is circumstances, cluded that under “these of the evidence.... A re- great weight Jeopardy not bar [did] the Double Clause ground, unlike a versal on this reversal retrial.” See id. on insufficient does not based We believe that the Clewis factual-suffi- acquittal only mean an was the remedy a new Instead, ciency standard proper verdict. very double-jeopar- well trial could violate juror” a “thirteenth court sits as dy under Tibbs if factual-suffi- principles disagrees with the resolution of ciency “barely distinguishable” review is conflicting testimony. This differ- review.22 our opinion signifies acquit- legal-sufficiency ence of no more from With example, pellate court be mindful that a has 22. For in which we rec- should convicted, facts, factual-sufficiency already passed ognized that review is new "barely distinguishable” legal-sufficien- that the court should never order a review, simply disagrees ver- cy ground trial because it we stated that the first rule dict, court to factual-sufficiency ap- but where seems to the review is that "the would, therefore, requiring great amount of cases prior decisions still make it neces jury’s credibility to a appellate deference sary for this Court to overrule Clewis and and not weight permit- determinations requirement, abandon its carried on our ting appellate courts to sit as “thirteenth subsequent “clarify” decisions meant to jurors” except perhaps very to “a limited Clewis, that reviewing “ap courts must be ap- degree,”23 questionable it is whether propriately deferential” to a credibil in Texas such a pellate reversals under ity weight determinations. See Cle factual-sufficiency really re- standard are wis, Thus, only at 133. (they evidentiary weight versals based on way factual-sufficiency to retain a stan may actually eviden- be reversals based on dard, meaningfully which would be distinct tiary in Part sufficiency). Having decided legal-sufficien from a Jackson v. Virginia I opinion of this the current Clewis standard, cy would be to allow reviewing factual-sufficiency standard is indistin- sit as jurors.” courts to “thirteenth How guishable from a Jackson v. le- Virginia ever, our factual-sufficiency decisions have standard, gal-sufficiency remedy of a consistently See, declined to e.g., do this. factual-sufficiency new trial under Watson, (this 204 S.W.3d at 416 Court has double-jeopardy standard would violate never tolerated “even in the ‘factual suffi principles. context,” ciency’ an “appellate court simply that, also note were we to decide We opting ‘disagree’ to with the ver ap courts must continue dict”). ply factual-sufficiency with its standard cases, remedy trial in of a new criminal We believe these and the reasons then we decide prepared must also given by Florida Supreme Court for they apply should this standard abandoning factual-sufficiency standard jurors” “thirteenth with no deference at all good discarding are reasons for the confus- jury’s credibility to a weight determi ing contradictory factual-suffi- Clewis potential nations in order avoid these ciency agree standard. We Flori- federal is double-jeopardy constitutional da Court that: Tibbs, sues. See also 457 U.S. at support, if policy Considerations keep S.Ct. 2211. must also in mind We dictate, this result. Elimination of [re- that such a nondeferential standard could evidentiary weight] based on ac- versals right by jury violate the to trial under the Florida courts their cords Roberts, Texas See Constitution. role in proper examining 7; Clewis, n. S.W.3d at 661-62 leaving questions while retaining attempting at 133. Simply only before for resolution “clarify” to once factual- again Clewis Eliminating fact. trier of reversals for currently standard that is indis evidentiary weight disparate will avoid tinguishable Virginia from Jackson results, alternatively our not seem legal-sufficiency would to review reversals having Retaining any to be an kind of option. factual-sufficiency evidentiary shortcomings standard in criminal based 41-42, described, represent injustice....” 102 S.Cl. 2211. our a manifest See Wat- Thus

son, however, This, factual-sufficiency remedy argu- with its 204 S.W.3d at 414. double-jeopardy trial could a new violate ably prosecu- describes a situation where "the principles. See id. produce tion failed sufficient evidence has prove acquittal was the its case” and "an Tibbs, 416-17. proper U.S. at 23. See 204 S.W.3d at verdict.” is inade- legal-sufficiency standard on nia they were based whether determine Finally, it will weight. more satis- sufficiency or on or that can be resolved quate appellate tribu- any temptation eliminate retaining ways besides factorily other ’ retrial mere- to direct a might have nals “internally factual- inconsistent” Clewis as based on reversals ly by styling Watson, 204 sufficiency standard. See lack of in fact there is a “weight” when (Cochran, J., dissenting) at 448-50 sup- competent substantial (Clewis not contributed to and at 450 “has judgment and the verdict or port pro- integrity of the operate clause should jeopardy double results; cess; inconsistent it has led to retrial. bar futile, numerous, required it but and has Tibbs, at 1125-26.24 397 So.2d See clarify applica- content and attempts its tion”).25 rig- that a emphasizing It bears Necessary Address Is Clewis III. of the Jack- proper application orous and Widespread Criminal Justice Some Virginia v. standard Virginia legal-sufficiency Jackson son v. That Problem Inadequate To Address factual- Is exacting is as a standard sufficiency (especially one standard Judge discussion in agree with the We indistinguish- “barely distinguishable” or dissenting opinion Watson Cochran’s legal- Virginia v. able from a Jackson systemic jurisprudential are no that there standard).26 sufficiency hypothetical A Virgi- v. for which the Jackson problems Review, Supreme 13 Lewis & Clark L.Rev. dards We note that the Florida also 2009) (having (Spring examined its two decision in Tibbs 255-56 note 3 Court's 1981 Tibbs, promotes Florida state- decision in other standards of decisions, Ap- the Florida Court of and "boilerplate" both and recitation of standards determining whether its peals' neither). decision in rigorous application of reversing Tibbs’ conviction was 1976 decision evidentiary weight or a based on a reversal (Cochran, at 449 26.See sufficiency. evidentiary See on reversal based Tibbs, J., ("reviewing apply dissenting) courts must 1125-27. The United 397 So.2d at legal robust the Jackson standard the Florida Supreme Court examined States ly, taking into account all of reversing Supreme Court's 1976 decision although favorable to viewed in the Supreme and the Florida Tibbs’ conviction supports a verdict. If that evidence that Tibbs' retrial did 1981 decision Court’s finding guilt be rational and reasonable principles double-jeopardy in de- not violate doubt, yond a it cannot be said reasonable termining Supreme Court's that the Florida manifestly unjust jury's or verdict is reversing Tibbs' conviction was 1976 decision of the court. shocks the conscience evidentiary weight and on a reversal based and reasonable The verdict is either rational evidentiary based on sufficien- not a reversal not; and it is it cannot be 'semi-rational' 46-47, Tibbs, S.Ct. cy. 457 U.S. at There is no still meet the Jackson standard. single Virginia legal-suffi- A v. Jackson rational, reversing jurisprudential value in ciency probably would avoided forcing parties reasonable verdict Tibbs, 397 So.2d at 1125-26 all of this. See (footnotes go again.”) omitted back and do evidentiary (eliminating reversals based Johnson, original); emphasis in “having to review weight will avoid P.J., (a (McCormick, dissenting) S.W.3d at 15 evidentiary shortcomings based on reversals Virginia legal-suf- properly applied Jackson they were based on to determine whether exacting Eciency than standard is much more weight”). sufficiency or on and when the evidence is suffi Clewis claims applied v. Vir properly Jackson cient under addition, evidentiary having stan- two standard, never ginia legal-sufficiency it can rigorously properly of one dards instead insufficient) ("when the factually and at 16 may actually be applied detrimental. Peters, courts determine intermediate Symposium: Treaties and See Amanda Jackson v. evidence is sufficient under v. Texas: Article: Medellin Domestic Law After Measure, 'factually under Cle- Virginia insufficient’ but Meaning, and Misuse Stan- application proper that illustrates Court decided Jackson v. Virgi- nia Virginia legal-sufficiency predeces- stan- sors, essentially under what are robbery-at-a-convenience-store same dard statutory constitutional provisions case: currently exist and existed when Clewis The store clerk at trial identifies A as 1996, applied was decided in single properly the robber. A authenticated evidentiary-sufficiency deferential stan- the event videotape surveillance clear- dard in criminal essentially cases that ly robbery. that B committed the shows the same standard as the Virgi- Jackson v. But, convicts A. It was within And, nia standard.27 until this Court de- jury’s prerogative to believe the con- cided Clewis in applied this Court disregard clerk and venience store Virginia evidentiary- the Jackson v. all the video. But based on evidence sufficiency standard after the United jury’s finding guilt is not a ration- States Court decided finding. al 1996, however, Virginia in 1979.28 In Cle- wis decided that a civil factual-sufficiency Johnson, (McCormick, at 15 S.W.Bd constitutionally standard is also and statu- P.J., dissenting). torily mandated in criminal cases under Constitution, Texas Texas IY. Statutes state law.29 And Case Law Revisited very There is little to add to what this that, fairly law makes it clear Case already extensively Court has written on a republic the time that Texas was a in the direct-appeal court’s constitutional and statutory authority apply 1880s and 1840s until the United States this factual- conviction, 412-14; Watson, wis to and remand a 28. See 204 S.W.3d at Wat- trial, son, they (Cochran, J., case for a new either will have 204 S.W.3d at 432-33 dis- (in misapplied Clewis which case the convic senting) (noting quickly this Court affirmed) they will tion should have been adopted Virginia the Jackson v. standard “and appreciate have failed to that the evidence is single, constitutionally adhered to that man- (in Virginia also insufficient under Jackson v. years”). dated standard for seventeen which case the defendant should have re (footnotes omitted)). acquittal.”) ceived an direct-appeal 29. Clewis decided that a court's statutory jurisdiction to re- constitutional Watson, (ac- at 406-07 27.See S.W.3d "questions view of fact” in criminal cases knowledging early case law never “ex- require direct-appeal apply court to a factu- pressly factual-sufficiency declared that re- al-sufficiency standard to the elements of the view, se, per in was authorized criminal properly requested offense when to do so cases”) (also acknowledging and at 412-14 Clewis, convicted defendant. See hiding went that “factual into ("Jackson at 129 standard of review does not early the late Forties and Fifties” and did not satisfy noncapital right defendant’s to an begin again to reveal itself until 1994 culmi- appellate questions”) review of fact and at decision); nating in the 1996 Clewis ("When jurisdiction their to review 129-31 J., (Cochran, 204 S.W.3d at 424-32 dissent- invoked, questions properly fact the courts ing) (discussing origins of Texas re- ignore appeals cannot constitutional and evidentiary sufficiency view of and conclud- mandates."); statutory Stone v. ing, "Until Clewis this Court had (Tex.App.-Austin pet. consistently single (although used a filed) varied) untimely (stating that ref'd as precise wording and reviewed the "duty-bound the full extent of the to exercise in the most favorable to the factfinder, grant appellate jurisdiction giving great constitutional deference to the determinations.”). litigants”). credibility requested by when fact-finding function to in criminal cases.30 serve sufficiency standard coexisted with jury,”33 “peacefully decided that factual-sufficiency cases Our courts, authority a hun for at least which would direct-appeal Texas twenty-three years” and were in its role as a direct- dred and include this Court cases, “merely fact-finding allocate the death-penalty are meant appeal pur factual-sufficiency function at the trial level and do apply a civil required review.” See grant port to affect Wat standard under their constitutional son, Also, according to review 409.34 appellate jurisdiction of general decisions, fact,”31 factual-sufficiency to our as also codified “questions V, 44.25, conclusivity PROC., in Article which “factual clause” Article Tex.Code Crim. 6(a), Section makes “the resolution of fac currently direct-appeal courts states by direct-appeal courts conclu “may judgment reverse the tual issues” and this Court action, upon nondeath-penalty the law sive on this criminal as well presuppose also to that facts.”32 Our factual-suffi cases and “seems upon as the already possesses direct-appeal] that Articles ciency [a cases further noted 38.04, [sufficiency] Proc., power the to conduct factual 36.13 and Tex.Code Crim. Watson, 412, “re review.” See 204 S.W.3d at statutory predecessors, their which 406-414; Watson, facts”); judge Cle the exclusive Article 30. See 204 S.W.3d cases, 129-31; Clewis, wis, (providing "jury, 38.04 that in all is the 922 S.W.2d at 922 J., (Clinton, judge proved, concurring); of the facts and of the S.W.2d at 136-49 exclusive State, (Tex.Cr. weight given testimony” subject Bigby 892 at 870-75 to be the to S.W.2d here). Watson, exceptions applicable not App.1994); 204 S.W.3d at 417-20 such Watson, J., dissenting); (Hervey, Clewis, (Cochran, J., dissenting); at 424-40 arguably 34.This is inconsistent with Tex. P.J., (McCormick, 21.3(h), 922 S.W.2d at 151-55 dis permits R.App. Proc. which a trial senting). grant court to a new trial "when the verdict is contrary to the law and the evidence.” Com- V, 5(a) Tibbs, § (providing (discussing 31. See Tex. Const. Article pare at 1123 397 So.2d Appeals of Criminal with final Texas Court criminal-procedural permitting rule Florida appellate jurisdiction exceptions "with such grant new when verdict trial court to trial regulation may provid- and under such as be "contrary weight the evi- is to law or the of addition, prescribed by dence”). ed in this Constitution or as in several decisions law”); V, 6(a) Clewis, (providing § Const Article "clarify” this Court has not meant to Tex. jurisdiction Appeals Courts of been consistent on whether Articles 36.13 and regulations "under restrictions and as such apply appellate process. See 38.04 Watson, to by providing J., prescribed be law” and also (Hervey, n. 12 Clewis, that, courts shall con- (noting that “the decision of said dissenting) in in brought questions all of fact before clusive on provisions do this Court stated that these not error”); 1997, appeal Bigby v. them on apply appellate process, to the but in in (grant general appellate case, S.W.2d at 871-72 of they another this Court stated that do jurisdiction "questions authorizes appellate process, in apply to the and in Clewis, law”); Watson, "questions of fact” and they do this Court stated that ("general grant [appellate] S.W.2d at 430 appellate process). apply to the We note that jurisdiction power ques- to recognized includes the that these our decision in Lancon ") (emphasis original). tions of law and provisions apply appellate process do to the fact proposition when Lancon cited them for the 413-14; jury factual-sufficiency 32. See 204 S.W.3d at is that in a review "the J., Clewis, (Clinton, judge weight” give 922 S.W.2d at 136-149 the sole of what to Lancon, concurring); Bigby, testimony. 892 S.W.2d at 870-75. witness ("jury judge and at 707 is the sole of a at 705 credibility, weight and the to be (providing 33. See Article 36.13 witness’s "[u]nless Code, given testimony”). provided otherwise in this is 413-14, Bigby, contrary 892 S.W.2d at 872-73.35 and also “because verdict this, to the Before evidence.”37 the statu- factual- The dissenters this Court’s tory predecessor to Article provided 44.25 that, position cases took the that a case could be reversed “upon though may have direct-appeal even courts law the facts” upon and also because authority apply this factual-suffi- contrary “the verdict weight ciency gen- grant standard under their jurisdiction, the courts The eral when evidence.”38 dissenters believed acquired jurisdiction criminal appeals legislative changes to Article Legislature, pursuant to its con- a legislative 44.25 indicated intent di- V, Sections authority stitutional Article rect-appeal courts should defer to a 5(a) 6(a), jurisdic- regulate credibility and weight determinations tion, significant made to Article changes (that expressly withdrawing the authority to en- carefully designed were 44.25 1981) arguably had existed di- before to a direct-appeal courts defer sure rect-appeal courts to reverse a judgment credibility determina- contrary because the verdict it sig- dissenters tions.36 considered weight of evidence.39 44.25 nificant when Article Clewis adopt Our decision a civil changed per- current version — factual-sufficiency standard was meant mitting “upon a case to be reversed the criminal and civil juris- “harmonize[ upon statutory ] law as facts” —its prudence regard ap- of this State with provided that a could be predecessor case the “upon upon pellate questions the law as facts” review of reversed factual suffi- appeals juris should be Court has court 35.It noted that this of criminal the same fact direct-appeal that decided its of a given appeals” diction courts of but factual-sufficiency limited court's decision is declining power "attribute the court factual-conclusivity to determin clause appeals expressly criminal that it has disa only direct-appeal ing whether Watson, vowed”); (Coch 204 S.W.3d at 437 Roberts, applied properly See “rules of law.” ran, J., (“It that, dissenting) appear would 662-63; Bigby, 221 S.W.3d at 892 S.W.2d at (and predecessor 44.25 all of under article however, Court, n. 3. This has never 872 statutes), appeals the courts of both factual-conclusivity clause decided Appeals ju co-equal Court of Criminal jurisdiction to review a limits Court's as risdiction to reverse 'on the facts' as well direct-appeal "ques court's other decision on law.”) ap at 439 118. It n. would direct-appeal of fact” or tions that it makes a Legislature pear did not intend for “questions decision of fact” court’s on these "question direct-appeal court's decision on a See, e.g., on conclusive this Court. Car of fact” in cases to be criminal conclusive 323, (Tex. v. 331-33 10 S.W.3d mouche id.; Watson, See but see 204 this Court. (this Cr.App.2000) direct- Court overturned 412; Bigby, 892 S.W.2d at 872 n. S.W.3d at appeal "question court's of fact” decision on regarding under which factual circumstances Watson, (Her 204 S.W.3d at See 419-20 police claimed consent that the defendant J., Clewis, vey, dissenting); at 922 S.W.2d videotape which ed to be searched based on a P.J., (McCormick, dissenting). 153-54 police the critical contradicted version of This, events). course, is consistent 407; Watson, Bigby, 204 892 37. See S.W.3d 44.25, language which plain of Article states n. S.W.2d at 874 appeals may this Court and the courts of judgment upon "upon the law as reverse Bigby, 892 S.W.2d at 874 n. 5. 38. See facts,” 22.225(a), and with Section Tex. Gov't direct-appeal which court's makes Code, Watson, (Her- 204 at 419-20 39. See S.W.3d judgment facts” "conclusive on the Clewis, J., Clewis, dissenting); vey, 922 S.W.2d at 430 n. cases. See 876 S.W.2d civil (McCormick, P.J., dissenting). (noting "upon that Article 44.25 confers 153-54 essentially Clewis, harmoniously applying at 129. 922 S.W.2d ciency.” See in civil However, decided same standard of factual when Clewis was ’ and criminal cases.41 Clewis 1996, had decid- main accom- Supreme Court the Texas required therefore, adopt courts were for direct-appeal was plishment, ed factual-sufficiency standard evidentiary-suffi- to exercise a criminal cases another of review.” standards essentially with “deferential that was ciency standard Roberts, 7; Crop- at 664 n. See Virginia v. and that di- Jackson Co., Tractor per Caterpillar v. applying courts had been rect-appeal (Tex.1988).40 require- With its This, ex- large part, years. about 150 evidence must be that all of the ment two why it was inevitable these plains to de- standards under deferential viewed eventually recognized standards would verdict is “mani- whether a termine See Part I of this indistinguishable. wrong,” this civil unjust clearly festly Virginia v. Jackson stan- Opinion. Clewis factual-sufficiency standard is consistent with well-settled eviden- dard essentially adopted for criminal cases tiary-sufficiency in this State and practice Virginia standard. the court’s constitutional direct-appeal with a statutory “ques- mandates to review decided Clewis Thus, when this fact.”42 already “questions tions of law” and courts were direct-appeal Cockrum, moving gal" sufficiency are Jacobs-Cathey and "factual” Co. v. 40. See also essentially Virgi (Tex.App.-Waco writ the direction of a Jackson denied) (when proof at trial reviewing court reviews factual nia standard as burden cases, 204 S.W.3d at 445- the evidence in civil "the increases. (Cochran, J., dissenting). neither interfere with 46 n.152 court shall of conflicts in the evi- resolution (dis- Clewis, 876 S.W.2d at n. 42.See credibility pass dence nor on the "factually cussing evidence” and the the "no because, testimony" among of the witnesses’ evidence” civil stan- insufficient oppor- things, fact has "the other the trier of of review and the confusion that can dards tunity the wit- the demeanor of to observe ‘legal "attempting refer to suf- occur when testimony”). weigh and to their nesses cases”) ficiency' and at 438-39 in criminal that, ("Although 'legal characterized as a sufficien- since our 1996 de 41. We further note law,’ Court, Clewis, cy' ‘question review the Jackson Texas cision in the necessarily encompasses a relying Virginia, standard expressly on Jackson reviewing sufficiency the evi- appellate review. If after modified its traditional standards dence, i.e., facts, the in the most favor- "legal” "factual” in civil verdict, clear-and-convincing-evidence rational trier of fact able to the with a cases elements of heightened proof while not could not have found the essential burden of also doubt, the beyond the crime a reasonable then ing parameters of these standards sufficiency challenge degree adopted must be sustained to some from those "differ (emphasis origi- Appeals.” acquitted.”) defendant of Criminal the Texas Court Watson, J.F.C., (Tex. nal); 204 S.W.3d at 437 264-67 see also See In re course, J., ("And, Watson, (Cochran, 2002); dissenting) at 445- see also (Cochran, J., appeals have dissenting) (setting both this Court and the courts of 46 n. 152 authority noting review ‘the facts’ as well as out verbatim these two standards every barely light” the law. If ‘the facts’ do not establish that "there visible between doubt, beyond wondering element a reasonable those two "if this these standards acquit the long require appellate an court to review will endure in civil ‘facts’ two-tier Jackson.”); Clewis, height proof defendant under where the burden of cases P.J., (McCormick, ened”). dissenting) basically standards are S.W.2d These two Jackson, (when under it Virginia ac conviction is reversed Jackson v. standard modified to upon clear-and-convincing-evidence "upon law as the facts” is reversed count for the It, therefore, examined all the heightened proof. after the court has burden of evidence, i.e., facts). appears that civil standards of "le State,44 issue thus whether of Walker v. apparently becomes case juris statutory courts’ constitutional for the direct-appeal proposition pre- fact,” “questions to review as required diction decessors to Article 44.25 factual- authorizing in Article also codified 44.25 permits direct-ap- review that judgment courts to direct-appeal reverse a peal courts sit as “thirteenth jurors.” facts,” should now be construed “upon cited in both Walker is Clewis and Watson time direct-appeal the first to mandate purportedly recogniz- as watershed case jurors” sit as “thirteenth crim courts to ing statutory predecessors to Arti- contrary years practice inal to 150 cases cle required 44.25 such a It review.45 criminal decline to civil and cases. We not clear that cases such as Walker were years over 150 of criminal and question applying factual-sufficiency review that and con jurisprudence civil this State permits direct-appeal court to sit as a statutory man strue constitutional and juror” “thirteenth in criminal since cases “questions review to also dates to of fact” fully Walker “was consistent with direct-appeal courts as “thir require to sit Watson, Jackson standard alone.” See jurors” teenth criminal cases. See also (Cochran, J., at 428 dissenting) Clewis, S.W.2d at 431 fact (“Appellate (Walker fully “was consistent with ... jurisdiction should not be confused though alone” even review re standard of “could be read to support proposition quired jurisdiction. to exercise that fact that the appellate court felt that it had the constitution, most, says The state authority to reverse a even verdict an intermediate court has conclu ”).46 though the evidence was ‘sufficient.’ jurisdiction civil sive fact both doWe not believe that cases such as Walk- criminal cases. It does not to set purport clearly support er Ar- proposition that required out statutory predecessors ticle 44.25 and its jurisdiction.”) (emphasis fact exercise direct-appeal sit mandate courts to as in original).43 jurors” “thirteenth in criminal cases. See (Coch- note that We also Watson and Clewis also S.W.3d at 424-32 cases, ran, J., notably addition, several dissenting).47 reading relied on is, therefore, direct-appeal unnecessary ciency permits case It in this legislative activity jurors” revisit the issue of whether courts to sit "thirteenth is Green (1924). direct-ap- in 1981 was meant to insure that 97 Tex.Crim. 260 S.W. 195 Watson, Green, peal jury's would defer credibili- courts 204 S.W.3d at how See ever, weight ty that, Walker, not sit as determinations and is am is another case like Watson, jurors.” S.W.3d "thirteenth 204 really biguous point appears this on to be J., Clewis, (Hervey, dissenting); at 419-20 Virginia applying a Jackson v. standard. See P.J., (McCormick, Green, 153-156 dis- ("Though S.W. at 196 the verdict senting). duty lightly be annulled it is to should not our and order another trial when the set it aside (1883). Tex.Ct.App. 44. 14 strongest light in evidence viewed its state, guilt standpoint of the fails to make Watson, 407-09; Clewis, 204 S.W.3d at 45. See certain.”) (emphasis reasonably supplied). J., (Clinton, at 138-39 concur- (Coch- ring); 204 S.W.3d at 426-28 can read to 47.To the extent that Walker ran, J., ("most dissenting) important case dis- support proposition, we note Walker that cussing sufficiency of the evidence was statutory relying portion on of the Walker"). appeals's court of 1883 decision in predecessor permitted a to Article 44.25 that apparently the reason that the verdict is reversal “for 46. Another case cited Watson weight contrary the evidence.” See proposition to for the that Article 44.25 Walker, sup- predecessors Tex.Ct.App. (emphasis statutoiy require a factual-suffi it direct-appeal appeals, appropriate we is mandate courts believe Walker to incon- jurors” dispose by sending “thirteenth would be sit as this case back to overwhelming weight sistent with appeals the court of to reconsider the suffi- authority that direct- criminal civil and ciency of support appel- the evidence to ver- should review a appeal courts application proper lant’s conviction under a deferential standards. dict under Virginia of the Jackson v. standard. Cf. Tibbs, 397 So.2d at 1125-26 (abandoning juris- with final appellate As the Court State,48 reversals on we based in this decide that the diction “[cjases now stating pending standard Virginia is the appeal court should which a court has standard characterized determining whether the evidence apply in on evidentiary the reversal as based reconsidered”). each element of a support is sufficient weight should be required that the State criminal offense appeals of the court of judgment prove a reasonable All beyond doubt. vacated, the case is remanded there contrary, including other cases to Cle- proceedings for further not inconsistent wis, are overruled. with this opinion. Disposition V. of This Case J., concurring COCHRAN filed must now decide how to dis

We WOMACK, J., opinion joined. which pose disposi of our of this case. review, ground tion the State’s first for PRICE, J., dissenting opinion filed a unnecessary it is to address the State’s JOHNSON, MEYERS, which having review. ground second And Holcomb, JJ., joined. meaningful there is no dis decided that tinction between Clewis factual-sufficien WOMACK, J., concurred. cy Virginia and a Jackson v. standard standard, legal-sufficiency we could decide COCHRAN, J., concurring which appeals necessarily found WOMACK, J., joined. legally that the evidence is insufficient to I my judi adhere to view that support conviction appellant’s when it de cial creation of the “Clewis1 factual-suffi is factually cided that the evidence insuffi ciency review was well-intentioned but appellant’s cient conviction. ultimately effort to incorpo unworkable However, primarily because the “confus rate civil of review on standards elements ing” factual-sufficiency may have proven beyond of a crime that must be rigorous application skewed a of the Jack son reasonable Virginia the court doubt.”2 This, however, defining plied). language jurisdiction court of crimi- Legislature deleted 1981 when the appeals, powers nal this section confines its jurisdic- appeals acquired courts of criminal jurisdiction the exercise of crimi- Bigby, tion. See 892 S.W.2d at 874 n. 5 exclusively. It has nal thus no civil matters (discussing history of Article 44.25 and its jurisdiction, juris- it is the court of but final statutory predecessors). matters.”). diction criminal (Court V, 5(a) § Article of Criminal State, (1996). 126 1. Clewis v. Appeals appellate jurisdic- “shall have final state, tion coextensive limits 404, State, (Tex. 2. Watson v. 421 final, shall all and its determinations J., (Cochran, Crim.App.2006) dissenting). grade”); Interpre- whatever criminal cases of V, 5(a) ("In Commentary § to Article tive

913 I. supported guilty verdict.4 But then, finding factually evidence in- A. The in This Is Evidence Case Either to support sufficient finding of intent to Legally Sup- or Is Not Sufficient distribute, set majority out a totally port a Conviction. different list of facts that the record did The evidence in this case is suffi- either (1) not show: There was no evidence that un- support appellant’s cient conviction (2) appellant area; was in high crime Jackson,3 constitutionally-mandated der sale; was packaged especially cocaine or it It is not. cannot be “semi- (3) large he was carrying a amount of sufficient.” cash; (4) or he had drug-dealing para- Appellant charged was with possession phernalia on him.5 The court posi- used of cocaine with the intent to it. distribute (what tive inferences for legal sufficiency trial, baggie At he denied that the contain- show) the evidence did and then negative 4.72 grams ecstacy of cocaine ing and five (what inferences for factual sufficiency found in table pills pool pocket return show). did not evidence his, was he although ownership admitted I that agree call legal is a close marijuana the baggie that tossed he sufficiency, but I do not see how “missing” under that pool appeal, table. On he ar- facts can transform purportedly legally gued legally was both sufficient evidence factually into insuffi- factually prove insufficient to he cient evidence. There no higher stan- possessed the with cocaine the intent “proof dard than beyond a reasonable distribute it. court of appeals found doubt.” If the evidence meets that stan- legally evidence was sufficient to dard, can using how it fall beyond short a lower finding, a reasonable Indeed, doubt, standard? appellant possessed Ap- co- the Waco Court of peals caine thoughts intent distribute it. had second itself so, doing facts, question held, a list of about this relied on seven because it in a cocaine, (but beyond identical) the mere amount of subsequent case, almost 307, (6) Virginia, [appellant] 3. Jackson v. S.Ct. U.S. attempted capture to evade 2781, (1979). process; and discarded in the L.Ed.2d 560 contraband (7) [appellant] possession was found 10-07-00309-CR, 4. Brooks v. No. types drugs. three different *4, WL Tex.App. at LEXIS majority analyze proba- Id. The did not 2008). (Tex.App.-Waco at *12 The ma- appel- tive value of these to establish facts jority opinion appeals in the court of noted legitimate lant's intent what discuss infer- these additional facts: ences, any, might if be drawn them. It (1) bag bag explain both the why of marihuana and the did legally not the evidence was packaged sufficient when it announced its cocaine were same conclusion. manner; *5, Tex.App. 5.Id. LEXIS (2) [appellant] possession was not in dissented, Gray noting *13. Justice Chief sale; drug paraphernalia for either use or majority acknowledge failed to that there (3) expert] [the State’s DEA testified that was “more evidence of intent to deliver than carry typically type heating users some *7, merely the amount of cocaine.” Id. at element, pipe, such a crack but dealers Tex.App. (Gray, LEXIS at *19 not; do C.J., dissenting). noted He also that the ma- (4) arrest, [appellant] at the time of his jority clearly did "detail the evidence and narcotic; not under influence of a why legally state the evidence is sufficient (5) [appellant] previous ahas conviction for factually is nevertheless insufficient." Id. at deliver; *7, possession Tex.App. with intent to 2008 LEXIS at *20. (i.e. intent), of if the legally factually question was and situation that the evidence else, factually is it must nothing these two evidence insufficient If sufficient.6 They are legally that the factual also be insufficient.”9 cases demonstrate Clewis random, led in- correct: There is no “semi-sufficient” sufficiency has both review results, “the of primarily based review. consistent This is luck of draw.”7 doctrine or foun- II. logical on a historical

based sound dation, only to muddle crimi- it serves Logic Single Requires A. of Standard It be overturned. nal law. should Sufficiency Review in Criminal Cases. Proper Agree Both That the B. Parties already my I have set out concerns Sufficiency Legal of the Issue Is legitimacy, about the historical intellectual Evidence. authenticity, appropriateness of Fittingly, appellant and the State both sufficiency in Tex- Clewis such agree proper that the issue in cases I the most upon as.10 now focus legally the evidence is as this whether Log- important reason overrule Clewis: argues sufficient. The State in its Petition ic. Review, Discretionary “Evidence that for factually attempt impose insufficient due to its inherent Texas civil stan- always sufficiency insuffi- legally weakness should dards of second-round factual cient; incompatible either the evidence that a logically is such sufficiency it is juror upon constitutionally legal rational could convict it or mandated not, requires it is of regardless of in which review criminal convictions that “suggests in this all a crime Appellant prove viewed.”8 the State elements of 10-07-00070-CR, given Guyton paucity No. able one of circumstantial (Tex. Tex.App. WL LEXIS evidence. (not pet.ref'd) desig App.-Waco, Feb. notes, appellant legal As publication). Guyton, nated for the court required review is appeals originally reversed the conviction United in Jack- States Constitution as set out but, insufficiency, due to factual once ap- Virginia. That son v. same standard is PDR, it held State filed a reconsidered and every plied jurisdiction state federal legally that the evidence was both and factual applies to all convic- America. It criminal ly support the convic sufficient to defendant’s regardless degree type tions or possession grams tion for of .40 of cocaine application single, of a crime. This constitu- *3-4, to distribute it. Id. at intent tionally-mandated the cre- standard has led to 839, at Tex.App. LEXIS *9-13. body "sufficiency of an ation enormous precedent America evidence” law and across J., Watson, (Cochran, at 7. See any judge lawyer may easily or access dissenting). given apply here conviction body It It is Texas. is a coherent of law. Discretionary 8. State’s Petition for Review intellectually objective rigorous. It sets appellate presumptions, permissible infer- out ences, Discretionary specific criteria when as- Appellant’s Re- to use Petition sessing legal at 6. evidence. Appellant view relies on several analo- gous subjective held rely upon federal cases in which the courts It does not notions legally ap- was "shocking insufficient the conscience” of individual finding "manifestly of "intent to distribute” judges, striking pellate them as ad- controlled substance the defendant seeming plain "wrong.” unjust," just cases, mittedly possessed. infer- In these 421-26. ence of intent to distribute not a reason- 10.See beyond Piling witnesses, a reasonable doubt. a factu- evidence, heard the sufficiency al standard of review rational, that was reached a reasonable verdict. developed employing pre- for civil trials a United States Court recog- ponderanee-of-the-evidence Florida,11 nized in Tibbs v. as did the proof a atop legal sufficiency standard of Florida Supreme Court when it judicially developed review that was for criminal tri- jettisoned factual-sufficiency review in that employing beyond-a-reasonable-doubt als same case.12 standard of proof does not work. That is Legally B. Sufficient Evidence in a

why this frequently Court has so tinkered Criminal Trial. formulation, with the why Clewis we always been unsuccessful. For more years, than 150 Texas appel- late courts reviewed the sufficiency of the The Clewis doctrine of re-reviewing the evidence Texas criminal cases under a sufficiency of the evidence after appel- single (although precise late court already has held that the evi- varied), wording taking dence into highest satisfies the account both standard of the facts that proven were proof possible beyond at trial and the reasonable — law applicable particular to the doubt—to decide if it is nonetheless factu- offense.13 (and This Court ally sufficient is intermediate courts of internally inconsistent. If appeals once they were given jurisdiction the evidence to prove guilt beyond suffices doubt, over the direct appeal a reasonable supports and it criminal cases in ra- 1981) tional, verdict, reviewed the proven reasonable facts required as un- Jackson, verdict, der favorable to the giving that evidence logically cannot great so deference lacking probative be value credibility as to make “manifestly unjust” verdict determinations. un- But we did vague der the not hesitate to subjective civil-law reverse a fac- conviction if the tual-sufficiency standard. evidence failed to prove To declare the guilt defendant’s evidence factually insufficient “with reasonable necessarily certainty,” “beyond turns an appellate judge, reasonable viewing only the doubt.”14 There were never record, cold written self-appointed into a “sufficiency two distinct of the evidence” juror thirteenth with absolute veto power hurdles Texas criminal appellate re- over the twelve citizens actually who saw view.15 31, 42, whether,

11. 457 U.S. 102 S.Ct. after all conflicts in the evidence (1982) (stating L.Ed.2d 652 appellate that an and all reasonable inferences therefrom have factually insufficiency, reversal for “unlike a been ap resolved favor of the verdict on substantial, peal, reversal based on competent insufficient there is does acquittal not mean proper judgment. Legal was the the verdict and Instead, alone, sufficiency opposed evidentiary verdict. court sits as a weight, juror’ appropriate is the disagrees jury's ap 'thirteenth concern of an with the tribunal.”) (footnote omitted). pellate conflicting testimony. resolution of the This opinion signifies acquit- difference of no more disagreement tal among ju- (Coch- than does a 13. See 204 S.W.3d at 424-26 ran, J., rors dissenting) (discussing history themselves.... [A]n court’s disagreement jurors' weighing review of of the evidence Texas). require special evidence does not defer- ence acquittal.”). accorded verdicts of 14. Id. (Fla. 12. Tibbs v. 397 So.2d 1981) (rejecting (collecting discussing former factual 15. Id. at 426 Texas appeal "the because concern on must criminal cases from 1841 forward and con- 916 often constitutionally required

1. Jackson doubt’ has been described one The ‘based on reason which arises from the standard. ”21 or lack of evidence evidence.’ 1979, Supreme the States In United opinion might v. A reasonable doubt arise because Court delivered manifestly against great and set the national standard the verdict is the Virginia,16 weight preponderance of evidence of the for review of credible the fed nothing Due Process evidence or under the Clause because there is more trials, In criminal all than a mere scintilla of evidence to eral constitution. federal, But, must element of government state and some the offense. course, produce justify a reviewing “sufficient evidence court does not “ask guilt of the facts to find whether it rational trier itself believes that the evidence a reasonable doubt.”17 The Court at the a beyond guilt beyond trial established rea- Rather, stan explicitly rejected give “no evidence” sonable doubt.”22 it must that it nineteen applied play of review had “full to the of the responsibility dard trier years fairly Thompson earlier Louisville.18 of fact resolve conflicts testimony, weigh and to Jackson, explained Court draw reasonable inferences from basic Thompson “no evidence” review “secures Thus, facts to ultimate “all facts.”23 elemental of due to an accused most light is to be in the evidence considered process wholly ar- rights: freedom from a favorable to prosecution” because deprivation liberty!,]”19 but that bitrary reviewing may impinge upon inadequate question for “a standard “ ”20 ‘jury5 discretion to the extent neces- Instead, evidentiary ‘sufficiency.’ sary guarantee protec- the fundamental incorporate the correct standard must process tion of due of law.”24 prosecution’s proof-beyond burden of Therefore, 1979, a due-process reasonable doubt-in review. after Texas courts were “ prohibited noted that a ‘reasonable “no applying Court evidence” 1996, eluding, Clewis explained "Until this Court had 20. Id. The that a consistently single (although "protect used "no evidence” standard does not varied) phrasing against misapplications precise and reviewed the of the constitutional of reasonable doubt” because a in the "no evidence most favorable factfinder, by a giving great jury's evidence” standard is satisfied "mere deference to the determinations.”). modicum” evidence. "But it could not credibility and argued seriously be that such a 'modicum' of rationally support could evidence itself 307, 2781, 99 L.Ed.2d 16. 443 U.S. S.Ct. beyond conviction a reasonable doubt.” Id. (1979). 320, at 99 S.Ct. Under a "no 2781. evi- standard, dence” court would 312-13, 99 17. Id. at S.Ct. 2781. judgment supported affirm the if the conviction. See Gollihar 199, 199, 624, 18. 362 4 L.Ed.2d U.S. 80 S.Ct. 243, (Tex.Crim.App.2001) 3n. (1960) (stating question that the "ultimate Thompson, (citing 362 U.S. at 80 S.Ct. charges against presented to us is whether the 624). petitioner totally were so devoid of evidentia- ry support as to uncon- render his conviction 21. Id. 318 n. 99 S.Ct. 2781. under the Clause of stitutional Due Process the Fourteenth Amendment. Decision of this 318-19, (citation 22. Id. at 99 S.Ct. 2781 omit- question not on turns ted). evidence, but on rests whether this conviction all."). upon any evidence at Id. at 2781. S.Ct. Jackson, 443 U.S. 99 S.Ct. 2781. Id. of review are legal-sufficiency to a lesser than standard standards challenge by that that because standard affords mandated Jackson. potential

“inadequate protection against Indeed, the Court explicitly of the misapplication reasonable-doubt Winship,28 held in In re that juvenile 1989, in criminal In we cases.25 standard” constitutionally could not be adjudicated explained, “Adherence to the no evidence (or ap- under the civil standards of proof now, is for the standard and has been last review) pellate of preponderance the of “ decade, expressly by forbidden Jackson. evidence.29 Court noted ‘the that longer permissible merely quote no It is preponderance test is susceptible to the turn the standard and then to misinterpretation that it trier calls on the no evi- apply Thompson around merely of perform fact an abstract historically dence standard as we have weighing of evidence in order to deter- done.”26 mine side produced which has the greater Legal sufficiency quantum, 2. in criminal cases regard without its effect judged by quality, quantity, of convincing is his mind the truth of ”30 supporting accuracy proposition evidence asserted.’ of of verdict. As Harlan explained Justice in Win- his concurrence, ship of the evidence is a

Legal although phrases “the adequacy, quantity. ‘preponderance test of not mere Suf- of the evidence’ ‘proof evidence in char- beyond ficient is “such a reasonable doubt’ quantita- are amount, acter, weight, will legally tively they or do imprecise, communicate judicial action fact justify or official de- finder of different notions concern- 27 cases, only ing degree manded.” criminal that of confidence he expected is character, which is sufficient in to have in the evidence correctness of his factual and amount to Justice weight, justify factfinder conclusions.”31 Harlan noted concluding every criti- preponderance “[t]he element test has been cized, view, proven my has been a reason- it beyond justifiably offense when is is adequate support asking weigh able doubt convic- read as the trier of fact to higher proof objective quantity tion. There no burden of in some sense the evi- trial, civil, criminal there by or is no dence submitted each side rather than higher asking standard of review than him decide what he most believes Indeed, by probably happened.”32 mandated All Jackson. why proof precisely proof civil burdens and standards standard of 243, 367-68, State, (quoting 246 n. 4 30. Id. at 90 S.Ct. Dor- 25. Gollihar 1068 Resneck, (Tex.Crim.App.2001). In Re Gault sen & and the Future of Law, 4, Quarterly 1 26- Juvenile Fam. L. No. State, 234, (Tex. 239 26. Butler (1967)) (rejecting sugges- 27 the lower court's “ overruled, (en banc), Crim.App.1989) on other tion differ- there 'tenuous ” by grounds Geesa v. S.W.2d 154 ence’ the reasonable-doubt between 1991). (Tex.Crim.App. standards). preponderance (5th Dictionary Law 27. Black’s 370, (Harlan, J., 90 S.Ct. 1068 con- Id. at ed.1979). curring). U.S. 25 L.Ed.2d 28. 397 S.Ct. (citing n. J. Id. at 371 S.Ct. 1068 (1970). Maguire, Evidence, Common Sense and Common (1947)). 90 S.Ct. 1068. Id. Law ex- hint that has been tors state that “recent decisions in criminal cases by quantity there is for assimilation into the pressed, not might weighed when produced or how review used single quality neutrally, long but rather viewed It has been ac- jurisdictions.”34 certainty it and the of the evidence level knowledged issues Texas law “[f]ew engenders in the mind. spawned factfinder’s have created more confusion appellate more than the treat- litigation in a sufficiency of the evidence Legal of ‘no and ‘insufficient evi- ment evidence’ into may be divided proceeding criminal of in points dence’ error” civil cases.35 The sufficient two zones: evidence of such difficulty distinguishing types these two character, credibility to en- strength, and dramatically require of claims —which dif- gender certainty beyond a reasonable appellate ferent courts results —is mind in the reasonable factfinder’s doubt guidance except have little their own intu- and evidence that lacks that strength.33 guide ition to Appellate review of verdict of them.36 solely criminal conviction focuses legal 1. The zone” “five for evidentiary character of suffi- “either-or” sufficiency. is entitled to ciency because defendant an if the lacks that acquittal Traditionally, evidence Texas courts strength. employed a five-zone review of civil at proof verdicts when burden of trial C. of Review. Texas Civil Standards “preponderance is that of of the evi- by considered a state In his cited law Texas is “hold-out” much dence.”37 article, distinguished a two-tiered of Justice Calvert having those cases, civil commenta- although review for five zones and defined them.38 mean, course, every though justices, 33.That does not of those same the individual tri- agree every appellate judge may judge, appellate judges closely factfinder or need al be particular legal- in a they that the evidence case is divided on the whether issue of believe ly Supreme explained sufficient. As the Court support there was sufficient evidence to 356, Louisiana, 406 U.S. 92 Johnson conviction. 1620, (1972): L.Ed.2d S.Ct. Emery, Wendall The 34. W. Hall & Mark Texas disagreement jurors In our view of three Hold Out: Trends Civil in the Review doubt, alone of does not establish reasonable Verdicts, Jury Criminal S. heavy majority Tex. particularly when L.Rev. such a (2008). having jury, after the dissen- considered views, guilt. remains ters’ convinced Powers, Ratliff, William Jr. & Jack Another disagree men in itself That rational is not at "No Evi- Look Evidence” by equivalent proof to a failure “Insufficient dence,” (1991). 69 Tex. infidelity nor does it indicate to the reason- L.Rev. finding Jury verdicts able-doubt standard. Id. at 525. regu- guilt beyond a are reasonable doubt larly though sustained even the evidence (discussing using 37. See id. 517-18 such that the would have been doubt, concept spectrum, of “a five zoned justified having with even reasonable strength proponent's evidence increas- though might judge the trial not have zone”). ing in each jury, successive reached the same as the conclusion though appellate judges even are close- might ly five zones laid divided on the whether there was One visualize these as issue field, starting imaginary an support evidence to a conviction. out on football sufficient 362-63, (citations party goal Id. at 92 S.Ct. omit- the left-hand line of the ted). proof. Supreme The States Court trusts evi- United the burden Zone "no zone, and, juries they goal when reach a verdict even line as rational dence” starts at this ” (cid:127) 2. Zone 1—“no evidence. conclusively evidence demon- strates the opposite the essential zone, Zone 1 the “no similar evidence” fact.40 legal reject- to the old If the court finds “no evidence” by ed verdict, the evidence is le- challenge criminal cases. A “no evidence” insufficient, gally the opponent is enti- party proof "without the burden of judgment tled to a his favor matter a civil case sustained when: of law.41 (cid:127) a complete There is lack of 2 n — “factually 3. Zone evi- insufficient defense; some element of a claim or ” dence. (cid:127) The evidence offered trial is inad- In zone party with the burden of missible under the rules of law or proof has offered some evidence in support given any evidence and thus cannot be of claim his or defense and the case is evidentiary appeal; value on to go allowed for a verdict. (cid:127) no There is more than a “mere scintil- But the evidence supporting the ver- la” of evidence to some prove essential dict, scintilla,” while more than a “mere is defense;39 fact of either or the claim scenario, slim indeed.42 In this appel- the or may late find it is “factually (footnotes omitted). supporting the evidence vital fact or claim Id. increases, steadily the march down the zones 362-63; at Id. see also Merrell Dow Phar 5, evidence,” field zone until "conclusive maceuticals, Havner, Inc. v. party's goal which the opposing is at line. (Tex. 1997); III, V. et Dorsaneo, yard roughly correspond The line William would to al., Litigation § 146.03[6][e][ii][A] Texas by the line Guide party which must be crossed the (2007). by proof “preponder- of burden the evidence,” leaving ance of the a "zone of Havner, 953 S.W.2d at 730. Justice Cal- disagreement” reasonable on either of side that, explained deciding vert evidence” "no the midline. points, the court views the evidence light in the most favorable to the verdict and Calvert, W. 39.Robert “No Evidence” and "In- only evidence considers and inferences Error, Evidence" Points 38 Tex. sufficient of support ignoring the while verdict all (1960). Justice ex- Calvert L.Rev. contrary evidence and that are inferences to plained the scintilla rule as follows: Calvert, the verdict. L.Rev. at 364. Tex prove [W]hen the evidence offered to a vital weak fact is so as to do no more than create Calvert, According the to Justice "if evi- existence, suspicion a mere or of surmise its uncertain, supporting finding dence the so is, effect, legal the evidence no inconsistent, improbable, or unbelievable not support judgment. and will a verdict or that, although constituting some evidence of apply The scintilla rule cannot when there probative force when considered in its most fact; applies is direct evidence of a vital it light support finding, it favorable of the the when vital fact must be inferred clearly unjust permit would nevertheless be Calvert, other relevant facts circumstances judgment the to stand.” 38 Tex. L.Rev. proved. which are inference If the is not appropriately at 367. Justice Calvert viewed point reasonable one a “no evidence” the evidence "in most favorable should "no be sustained. It follows that finding” assessing support of the factual points evidence” on the sufficiency; based scintilla rule he view in "neutral did not require analysis a careful light.” facts I have no found Texas proved purpose determining for the "in case that has the evidence a neu- viewed reasonably light” addressing whether the vital fact tral when inferred. claims. Zone 3 n —“zone n . disagree- insufficient,” out reasonable carefully it must set but ”ment. the verdict supporting evidence all of the the evidence is nonethe- explain why disagree- the zone of reasonable Zone al- challenge This insufficient.43 less ment, ground, the in which great middle party without the brought by ways upheld a verdict will be for either The allow- proof.44 rationale for burden proof with the burden of or the party (who trial but party prevailed ing conflicting there is evi- opposing party as court to was found dence or inferences on either side evidence) try insufficient produced issues, vital fact or but issue trial is “that there is in a second again not “shock verdict is reasonable does appellee other evidence conscience,” “clearly available it is nor not so finding will support vital fact which unjust” obvious indicate bias.47 injustice an favor and it would work in his preponder- “great 5. Zone U— produce off his it.”45 right to cut ance:” party court assumes who proof who had burden In zone with the burden party prevailed may pro- significant be able to has originally proof offered trial, defense; great additional evidence a second claim duce that to at the first and the credible weight preponderance evidence he failed offer of However, position.48 his supports evidence trial.46 that, explains 2 Id. Calvert in this zone 43. Justice scenario, may that the not find usually 48. Texas courts use the short-hand "against great weight and evidence the the is evidence,” "great weight of the but term the there preponderance of the evidence because Supreme occasionally Texas Court reiterates the the of is no evidence of nonexistence is, reality, great weight the of the is, Calvert, fact." 38 Tex. L.Rbv at 366. That Qual referring it is credible evidence that to. when an "insufficient evidence" ity, quantity, not mere has been its historical the point, the court looks See, determining e.g., factor. Dawson St. supports the fact and de- evidence vital Co., Expanded Fireproofing Metal 94 Louis simply evidence is mea- termines this too 118, 424, ("It (1901) Tex. 61 S.W. 119 was by ger support finding of a its existence power ap the civil [the within of court of preponderance of the Id. evidence. disregard finding by peals] to of fact the great jury contrary weight if the of the 49 44. See note infra. testimony, and in set credible effect to aside cause, finding and the and to remand the we at 370. Id. the understand them to mean that under facts evidence, ("By producing retrial found them under the there 46. Id. the evidence on finding negligence."); no v. New York party has fair assurance that a was McDonald the Co., 545, permitted Mut. existence the vital fact will be Cent. Fire Ins. 548 the 1964) stand.”). (Tex. ("[T]he Strangely, this rule does insured does not raise in same Appeals point apply legally for be- the Court of Civil the of ‘insuffi not insufficient evidence least, jury findings "[plresumptively, at the cient the cause all of evidence’ or findings point against appellee to the has been the that the are 'the evidence available great weight preponderance’ ex- and of the credi introduced.” Id. Justice Calvert did not Co., evidence”); Darryl why party produced plain who no evidence ble Ford Motor 1969) 630, (Tex. ("Nowhere trial in the a vital fact at the first not entitled S.W.2d respon new the apple, party bite the who amended motion for trial did a second while insufficient, dent, some, Company, factually evi- Ford the but Motor state offered produce jury supporting evi- evidence the answers to dence would be able to more special specific was either insufficient and entitled to a bite issue dence thus is second weight against great the of the credible evi apple. has in favor of returned verdict dence” —in which the party with the bur- opposing party party without the proof den of conclusively, has established —the scenario, proof. burden In this law, or as a matter of that he is entitled to party proof with the burden of chal- a judgment oppo- his favor because the result, lenge claiming the verdict nent has offered no evidence in opposition “against great weight prepon- and and the proponent has offered sufficient derance evidence.”49 this evidence of the vital fact or claim. great “against weight preponder- scenario, of the ance” all both Supreme The Texas Court’s Reformu- con, out,

pro is set Legal lation Sufficiency. explain why court must verdict Although against great weight preponder- theory five-zone has been ance of the evidence.50 the traditional formulation of legal civil standards in civil ” 6. Zone evidence. 5—“conclusive cases, Texas opposite spectrum At end of a new articulated formulation of the test legal from zone is zone 5—“conclusive evi- sufficiency review in City Kel G.A.T., dence”); see ‘contrary great also In Re aside because it is to the (Tex.App.-Houston evidence,' Dist.] [14th preponderance (“The denied) pet. shows opponent party and has the without the [the contrary great weight verdict proof] burden of claim that an unfavorable evidence.”); Country of the credible Town & (affirmative) finding was based on 'insuffi- Homes, Bilyeu, Mobile Inc. v. evidence.’") (footnotes omitted); cient see 1985, writ) ("In (Tex.App.-Fort Worth no Litigation also Dorsaneo, Texas Guide considering point, an ‘insufficient evidence' ("A § party who attacks the 146.03[6][e][ii][C] cognizant we must remain of the fact that it is sufficiency finding of an adverse on an fact, jury, judge for the as the of the trier party issue on which the has the of burden witnesses, credibility assign of the proof appeal must demonstrate on that weight given testimony, to be their and to finding against great weight adverse is or resolve conflicts inconsistencies in the evidence.”). preponderance and of the testimony. This not Court substitute its judgment challenged for that of the if the Co., 50. See Pool Ford Motor finding supported pro is some evidence of (Tex. 1986) ("In order that this court against great value bative and not is may in future if a evidence.”) determine correct stan weight preponderance and (citation omitted). points insufficiency dard of review of factual utilized, appeals, has been of when courts Powers, Ratliff, William Jr. & Jack should, reversing grounds, insufficiency on in ("When 518-19 the evidence Tex. L.Rev. their opinions, detail the evidence relevant to terminology proper falls into zone is clearly the issue in consideration and state is or there ‘insufficient evidence’ ‘factual- why factually jury's finding is insufficient ly support an insufficient evidence' to affirma- against great or is prepon so finding. tive In zone clearest terminol- manifestly unjust; why derance as to be it ogy finding contrary is that to the evidence conscience; clearly shocks the or demon ‘great weight against preponder- Further, courts, their strates bias. those in evidence,' although ance of the this terminol- opinions, regard what should state in the con (and ogy occasionally confusingly) we think trary outweighs greatly evidence the evidence Despite used to refer to evidence in zone It in the verdict. this the differences between zones 2 and attacks way will if the that we be able to determine jury findings usually in these zones are requirements King’s [244 of In Re Estate sufficiency’ points. pre- called ‘factual The (Tex. 1951)], have satis S.W.2d 660 been terminology proponent ferred has the [the fied.”). party proof] with the burden of claim that an (negative) finding unfavorable should be set reviewing A court cannot substitute so. ler Wilson.51 trier-of-fact, for that of the so judgment sufficiency must legal final test for The within this zone long trial as the evidence falls the evidence at always be whether disagreement.”54 ap and fair-mind- enable reasonable would reasonable the verdict under people reach ed the evidence in pellate court does view court be- Whether review. light but “in the light, a neutral rather all the evidence by considering gins verdict,”55 just as is done favorable verdict, supporting only the evidence criminal cases under Jackson proper in the legal-sufficiency under factual sufficien Texas civil cases if evidence must credit favorable formulation, zone cy this review. Under could, disregard jurors reasonable (the disagreement”) zone of “reasonable ju- unless reasonable contrary evidence considerably have would seem to increased not.52 could rors (those size, zones 2 and 4 while Thus, jurors could re when reasonable insufficiency” “against “factual conflicting way, either an evidence solve great weight preponderance”) di jurors court must assume a verdict outside the minished as that is such conflicts accord with all resolved disagreement zone reasonable would verdict, sup the evidence and when their legally seem to be within zone of insuf inferences, the must conflicting ports ficient evidence.56 jurors made all inferences assume Some commentators have noted disregard other of the verdict and favor legal new has formulation “If the inferences.53 possible virtually merged legal the Texas sufficien- reasonable and fair- trial would enable cy standard with of factual in their people differ conclu minded sions, brought in civil And has Texas jurors then must be allowed to do cases.57 Dorsaneo, (Tex.2005). William V. S.W.3d 802 factual conclusion.” III, 51. 168 Juries, Changing the Balance Power: 52. Id. at 827. Courts, Legislature, Practice and the Be- (State Bar of Texas fore the 53. See id. at 818-21. 2004). (footnote omitted). City 54. Id. at 822 Keller, City 55. 807. Keller, of Supreme also the Court described kinds of evidence that must be disre- three Keller, City 56. at 827-28 See legal sufficiency conducting a garded when of (“ generally if evidence; rule as stated is that rea- ‘The (1) (2) analysis: credibility conflict- minds cannot differ from the conclu- evidence; sonable (3) conflicting ing inferences. probative force sion the evidence lacks that Thus, credibility in 819-22. witness Id. at legal equivalent will to be the of no cases, cases, be held solely as in criminal is the civil Calvert, ”) (quoting evidence.' An prerogative appellate of the factfinder. Tex. L.Rev. 364). testimony may not a witness's court discount view, being, in its less credible than anoth- as Furthermore, Emery, appellate the W. Wendall Hall & Mark er witness's. ("Some may conflicting conclude may two L.Rev. at 559 court not choose between S.Tex. legal reasonably City that Keller addresses suffi- if the would inferences evidence of juror widely ciency challenges, but recognized the reasonable support either one. "It is to make the distinction be- important the of standard seems that one of attributes ability legal mean lit- right jury juries to tween and factual the trial is the of tle.”); draw, (noting City the infer- at 562 that under from circumstantial id. juror” fair-minded aside or Keller "reasonable and ences that cannot be set second- standard, merely avoid the by reviewing the Court guessed courts because remanding "yo-yo reversing effect” of have reached a different the reviewers would review, closely upon in line predicated standards “more with trials in civil the which legal sufficiency standards for re- federal by burden of proof preponderance argue These commentators that view.” the evidence the upon two-zone criminal language juror” of the “reasonable the standard of that requires proof be- for the “provides a cloak reason- standard yond a reasonable doubt.64 Visualizing precision than ing judges, rather (“no evidénce,” five-zone civil “in- reasoning.”59 They City contend evidence,” sufficient “zone of reasonable Keller standard “leaves considerable disagreement,” great weight “the pre- leeway for an intercept evidence,” ponderance of the and “conclu- jury’s verdict when it feels motivated to do evidence”) sive as a football field complain These commentators so.”60 “no evidence” at one zone end and with juror” “reasonable is too flex- each zone of an comprised greater ever subjective,61 apparently preferring ible quantum of by evidence offered the party purportedly objective more standard of with the burden until proof the “conclu- or “manifestly “shocks conscience” un- end, sive evidence” zone at the other re- just.” certainly agree One can with their however, conclusion viewing required ultimate courts uphold are courts should make “a firm rededication to factually sufficient verdict favor of jurisprudence of restraint and standards the party burden of proof recognize of review that fundamental zone, at least within the third that of rea- by to trial right jury and concomitant disagreement. sonable assessing But in application hard-minded of standards of legal evidence in a crimi- Texas, Particularly review.”62 the most case, nal per- State’s must be nation,63 in the jury-deferential ap- state suasive enough almost make a touch- to a pellate courts must defer “reasonable” down; reaching the midfield is never jury verdict in both civil criminal enough “beyond to meet the a reasonable cases. doubt” standard. Legal Sufficiency D. Criminal case, In if a civil returns Standard Be Cannot Harmonized party verdict in favor of the that did not Sufficiency with the Civil Factual proof (usually the burden of the de- Standard. fendant), by but that verdict determined is a Clewis chimera. against court to be great Clewis, preponderance of the evidence attempted su- perimpose civil standard offered party five-zone did have the insufficiency Emery, cases and in- See W. Wendall Hall & Mark S. judgment render the stead because verdict is Tex.L.Rev.at 610. unreasonable and therefore the evidence is insufficient). legally 63. 47 204 S.W.3d at 429 n. (Cochran, J., dissenting); see also William 58. Id. 556. Powers, Jr., Judge Jury and in the Texas Su- Court, preme L.Rev. n.3 75 Tex. at 600. 59. Id. (1997) ("A body of of [the] hallmark entire [regarding sufficiency legal law and factual Hoffman, Lonny S. Harmar and the Ever- however, cases] claims in civil is extraordi- Review, Sufficiency Expanding Scope Legal nary juries.”). deference to (2008). S. Tex. L.Rev. Clewis, 64. See at 129. Id. insufficient, merely factually (usually plaintiff), support the then is not proof

burden insufficient, may judg- court reverse the appellate legally the it is and the defendant a new trial. This ment and remand for required undergo cannot second plaintiff opportunity the a second gives trial. prove jury, case before a new after the his did adopt What this Court in Clewis was rejected although had his claim jury first of Texas civil factual suffi- language originally produced great had “the he ciency determining review without first preponderance evidence” there was a fit proper whether between its claim. That scenario would those civil standards of review and the in criminal generally not arise65 cases be- evidentiary proof in differing standards jury favoring if the returns a verdict

cause civil cases. mistake and criminal This was (the proof party without the burden quite understandable when was de- defendant), appeal there will be no because Clewis. cided 1996 because had this Court re- may an appeal acquittal. the State not cently properly the Texas civil adopted Similarly, if the party with burden of legal and sufficiency standards of factual proof (usually plaintiff) in a civil trial for cases those few instances in criminal favor, jury obtains a verdict but an which of proof preponder- the burden is a court determines there evidence, ance of the as occurs with affir- evidence, even when insufficient viewed mative But defenses.67 courts verdict,66 most favorable attempted to reconcile five-zone civil zone disagree reach “the of reasonable factual-sufficiency standards ment,” the appellate then court re heightened of proof burden in criminal verse the verdict and for a remand required cases in which the State is That also new trial. scenario would not prove every beyond element a reasonable because arise criminal cases if the doubt, began to realize that this civil we in strength, State’s evidence is so weak review did align standard of not character, credibility does not proof. criminal burden of And we tink- the level of “the zone of reach reasonable ered tinkered with various reformula- then it disagreement,” assuredly does “factual “beyond sufficiency” tions of this not meet the a reasonable doubt” legal in criminal in a vain sufficiency required standard of in all of review cases at- evidentiary tempt criminal cases. Such a lack of harmonize them.68 pro- 65. This situation does arise in those cause had both the instances defendant burden persuasion which the defendant bears burden of duction for his affirmative persuasion production and de- insanity). affirmative defense of fenses. See note 67 infra. State, 68.See Jones 647-49 supra. 66. See note (Tex. 1996) Crim.App. (deciding that a factual- requires See, e.g., Meraz just to review all of (applying (Tex.Crim.App.1990) the civil verdict; supports rejecting evidence that "against standards of factual review of capital murder defendant's great weight preponderance of the evi- conflicting there claim because ap- dence” in a case in which the defendant he intended the murder whether to shoot pealed jury's rejection plea of his of in- State, 404, victim); Cain v. 407-09 958 S.W.2d competence because the defendant had the ( 1997) (reversing Tex.Crim.App. lower prove incompetence by prepon- burden to a State, insufficiency evidence); holding of court's factual be Bigby v. derance of the 864, jury's failed (Tex.Crim.App.1994) cause that court to defer to the (apply- S.W.2d credibility); ing factual of witness the civil standards of review be- determination Johnson upon relied 2. and Watson should view in light, the evidence a neutral Clewis false light rather than in the most favorable that evidence should be premise the verdict.70 But is a strange distinc light when viewed a neutral con- tion ignores quality credibility the or ducting review. factual of is one and it that has never State,69 v. In Watson stated that we the part been a Texas factual-sufficiency only difference between a factual-sufficien Instead, review in civil cases.71 it was cy legal-sufficiency and a review created the Appeals Austin Court State,72 Stone that, former, under the an court and simply imported, State, 1, 660, (1951), (Tex.Crim.App. 23 S.W.3d 5-8 244 S.W.2d Supreme the 2000) (upholding finding applicable court’s of fac Court set lower out the standard for re- viewing "great weight insufficiency express preponderance” tual based on witness’s and reminding complaints. certainty, appeals The court of "con- lack but must that, weigh sider and of the all evidence in case ”[u]nless the available record the clearly to set aside the verdict and the appropri reveals a result is remand different trial, ate, cause for if a new it thus jury’s an defer to the concludes court must great the against weight verdict weight give is so concerning what determination preponderance of the evidence contradictory be mani- testimonial evidence because festly unjust-this, regardless of whether the often an resolution turns on evaluation of demeanor, probative record contains 'evidence credibility jurors some and those force' in verdict. The evidence testimony were attendance when was State, delivered.”); supporting weighed along the verdict is to be Goodman v. 66 S.W.3d case, 283, (at including with the other evidence in the (Tex.Crim.App.2001) & 285-86 n. 5 contrary that which is tempting the verdict.” Id. to follow Calvert’s Justice five-zone (citation omitted). nothing 664-65 analysis insufficiency There is in civil cases case, any that, Supreme other stating only evidentiary Texas when the case, suggests Court that all evi- tip ’’radically” negative scales toward find "neutrally,” dence must be viewed as if ing reviewing on an essential element quantity only sheer of evidence were the crite- any juror” court exercise “thirteenth role and sufficiency. rion for factual How extraordi- "clearly conclude verdict is nary if the State, verdict should be held to be 89, wrong”); Swearingen v. "against great weight preponderance (reiterating (Tex.Crim.App.2003) im gang of the evidence” if seven testi- members giving portance of to the deference factfin- gang-member fied that their fellow defendant determinations); credibility der's night was with them the of the murder while (Tex. Zuniga v. 483-84 they two de- nuns testified saw the Crim.App.2004) (recognizing that the differ Anyjury enti- fendant commit the murder. proof civil ent and criminal are standards gang tled to disbelieve seven members important any an source of confusion at and credit the two nuns. tempt to review criminal convictions for fac sufficiency; again, preponder tual "Once (Tex.App.-Austin 72.823 language creeps ance-of-the-evidence into a Stone, ref'd). ap- pet. the court of factual-sufficiency review where the burden of peals stated: proof beyond at trial reasonable doubt. And, tire Court’s statement appeals When the court of conducts a factu- confusing.”). court must use both standards review, al-sufficiency the court ask does not any jury, viewing if evi- rational after (Tex.Crim.App.2006). S.W.3d 404 pros- dence in the ecution, favorable ele- could have found the essential at 415. Id. beyond ments of the crime reasonable begins Factual-sufficiency doubt. sup- I am unable to find Texas presumption that the evidence porting jury's legally case that even the word mentions "neu- verdict was suffi- cient, i.e., constitutionally tral” relation to a factual re- sufficient for Estate, King’s purposes In In view. re 150 Tex. of the Due Process Clause of required heightened analysis, into to follow without further this Court’s Indeed, formulation; in we cannot legal sufficiency in Lancon v. decision Clewis. State,73 2008, in we post-Watson sufficiency decision follow a factual formula- lesser rejected light analysis “neutral” again tion. sole preroga held that it is the agree consign I it is time credibility Appel

tive to make decisions. sufficiency civil-law of factual re- concept credibility courts defer to those late must view criminal cases the dustbin assessments; may not view all con they history. flicting testimony equally as credib witness PRICE, J., fungible, dissenting which are some le.74 Witnesses JOHNSON, HOLCOMB, MEYERS, credible are not. Neither are and some JJ., joined. appellate tally up nor courts must juries “neutrally” the number of witnesses By plurality of the persistence, dint of sufficiency decision then base on purports to overrule Clewis.1 number. greater plurality question policy frames the as a choice, sum, we asserting granted we never been discre- successful tionary attempts superimpose the five- order to determine our whether a need to retain” factual sufficiency zone civil standards for “there is opinion But top constitutionally of the mandated review.2 as our years ago less than demon- legal sufficiency review of criminal con- four Watson strated, authority to a convic- viction. These two standards of review reverse upon distinctly insufficiency tion on basis of factual depend their different bur- water, proof. they recognized beginning Like oil and do has been from the dens consistent, They logically jurisdiction not mix. are not be inherent they promote courts in Texas.3 We only confusion and con- first-tier concepts. of two are cannot it not be “re- simply flation distinct We decide need Rather, in the Fourteenth Amendment. the court amination of all of but light to the verdict be- prism views all the evidence without the most favorable court, light jury, cause the not the prosecu- "in the to the most favorable factfinder. tion.” the court is not bound to chosen Because light view evidence in the most favor- (Tex.Crim.App.2008). 73. 253 S.W.3d prosecution, able to the consider testimony exis- of defense witnesses and the (noting insufficiency 74. Id. at 705 hypotheses. tence alternative The court contradictory and claim cannot be based on only set the verdict if it is so should aside testimony witness because "the inconsistent contrary overwhelming weight weight give judge of what the sole clearly wrong unjust. to be testimony.... Appellate such courts should appeals Id. The then cited Cain v. court of complete jury's afford deference to a almost Bain, (1986), and In re upon decision an decision when that is based Estate, King's Tex. credibility.”). evaluation of (1951), these but neither of cases said anything viewing the evidence "in a about State, (Tex.Crim. 1. 922 S.W.2d 126 Clewis v. light” prism neutral "without the of 'in the ” App.1996). party favorable’ proof. They spoke burden of of review- Plurality opinion, at ing determining all of when the evidence "against great whether the verdict was preponderance evidence.” 406-14 Watson Clewis, required supra, precisely (Tex.Crim.App.2006). And that what is under also J., (Clinton, concurring); Bigby legal the Jackson review: an ex- 137-44 any longer tained” change absent I Watson —as still do—-that “the distinc statutory provisions constitutional tion is a real one[.]”8 jurisdiction confer else a change —or holding A of legally insufficient evi- long-standing in our own construction of is, dence—that the evidence is so sure, provisions. those To the plurality lacking that federal due process will not today undoubtedly change would those tolerate a conviction—has jeopardy double too, constructions if only it could invoke implications.9 Under the standard estab- something more substantial than dissent- lished Jackson v. Virginia for deciding ing opinions to justify it. whether the evidence satisfies due process,

I. reviewing court “faced with a record of historical facts that supports conflicting in- plurality’s primary justification ferences presume must if that, it overruling Clewis is does because the stan —even not affirmatively appear in the dards for factual record— legal suf the trier ficiency one, of fact resolved essentially have such melded into conflicts in prosecution.”10 favor of the longer any there is no “meaningful distinc But this of categorical tion between them that kind justify would re deference is required not taining them both.”4 But of a plurality’s court in Texas premise is when plurality begins conducting non-due-process flawed. The analysis with the claim for factual sufficiency. that Watson itself For a reviewing “recognized” that the two standards were to view the evidence in a “neutral” “barely distinguishable.”5 light What Watson means that it need resolve every actually recognized was that the conflict in the or draw every for factual sufficiency, partially as refor inference ambiguous evidence, from in fa- in Zuniga,6 mulated which Watson over vor of the guilt just defendant’s because a in part, barely ruled “seems distinguish jury rational juries could have. Rational legal able” from the sufficiency standard can also acquit choose to a defendant even Virginia.7 Jackson v. The only dif presented when with legally sufficient evi- ference is that the former all views dence.11 Factual recog- than, evidence in a light “neutral” rather nizes there be rare cases in latter, which, “in most favor though convict, jury might some to the able verdict.” But we insisted in and would not be irrational for it to do State, 864, 19, 2151, (Tex.Crim.App. 874-75 437 U.S. 98 S.Ct. 57 L.Ed.2d 15 1994). (1978). 326, Virginia, 10. Jackson v. supra, at 99 S.Ct. Plurality opinion, 4. at 894-95. 2781. 5. Id. at 8. State, (“The supra, 11. See Watson v. at 416 people disagree fact is that rational can State, (Tex.Crim. Zuniga v. 144 S.W.3d 477 legally persua- whether sufficient evidence is App.2004). beyond sive to a level of confidence a reason- disagree able doubt. 'That rational men Virginia, v. 443 U.S. 99 S.Ct. equivalent not in proof by itself to a failure of (1979). 61 L.Ed.2d State, infidelity nor does it indicate Jury reasonable doubt standard. verdicts supra, 8. Watson at 415. finding guilt beyond a reasonable doubt are regularly though sustained even the evidence States, Burks United 437 U.S. justi- 98 S.Ct. was such that the would been (1978); Massey, having 57 L.Ed.2d 1 "(quoting Greene v. fied in a reasonable doubt.’ certainly har- trial court level.13 But it is not the abso- so, would almost juries the tenuous- given legal sufficiency a reasonable doubt lute deference that bor weight or the of the State’s evidence ness jury’s to the resolution of conflicts affords reliability credibility apparent and that, and/or ambiguities. It before and demands evidence. Under these exculpatory of the appellate first-tier court reverse a circumstances, sufficiency review in factual based upon factually conviction insufficient appellate a first-tier court permits Texas evidence, it say, must be able to with some for a a conviction and remand to reverse record, objective basis in the trial, justice, in the interest of to new verdict, sufficient, jury’s legally while is a second chance to grant the defendant against great weight nevertheless jury acquittal.12 obtain a preponderance of the and there- 14 of the required appellate The deference “manifestly unjust.” fore does This sufficiency review of a court in a factual an grant appellate judge license to declare required by legal than that different kind factually the evidence to be insufficient not, sufficiency. legal It as with suffi- because, “simply quantum on the of evi- analysis, ciency total deference admitted, dence he would have voted to prerogative to resolve all conflicts jury’s acquit had he been on the can jury. Nor against in the record ambiguities judge an court declare that a Instead, qualified it is a defer- defendant. justifies conflict the evidence a new trial jury’s apparent ence to the assessment of simply disagrees because he credibility, reliability of the weight, of that resolution conflict.”15 sufficient) (admittedly legally evidence. plurality because it re- asserts that this is not a important This deference is jury’s fact-finding role at the true factual it: spects because Louisiana, 356, 362, (internal quotation v. 406 U.S. 102 S.Ct 2211 marks and Johnson (1972))). omitted). S.Ct. L.Ed.2d citation weight 12."A reversal based on the plurality today, 13. None of the cases the cites ... can after the State occur State, not even Lancon v. 253 S.W.3d 699 sup- presented both evidence to has sufficient (Tex.Crim.App.2008), has held that the statu- jury port persuaded conviction has to tory provisions assigning fact-finding simply convict. The reversal affords the de- at the trial function level to the demands opportunity fendant a second to seek a favor- reviewing absolute deference from a court. Florida, judgment.” v. U.S. able 31, Tibbs Tex Code Crim. Proc arts. 36.13 & 38.04. As 42-43, 72 L.Ed.2d 652 S.Ct. pointed provisions we out these (1982). This one of the reasons that rever- "peacefully co-existed” with insufficiency carry for factual does not sal authority factual review "for at least hun- jeopardy implications. Even when a double twenty-three years.” dred and Watson v. juiy rational could resolve all conflicts and State, supra, qualifiers at 409. We have used way ambiguities in the evidence such a (Marshall State, such as “due” conviction, justify if the court (Tex.Crim.App.2006)) "appro- not, (as juries perceives that most would (Clewis 136) priate” supra, Texas) authority has tire to act on that 705) complete’'(Lancon, supra, “almost perception, place the defendant does not describe the deference in the factual sufficien- to, jeopardy instigation, twice in at his own context, signify cy use of grant opportunity him "a second to seek review to reverse a convic- judgment.” "Giving favorable the defendant a rare occurrence. tion should be opportunity, this second when the evidence is verdict, hardly sufficient first State, supra, 14. Watson v. at 417. governmental oppression amounts to against Jeopardy which the sort Double protect.” Clause was intended to Id. at 15. Id. case, evidentiary- reviewing is inconsistent with is the court must (and in Tibbs decline to jurisdiction standard described exercise its fact Cleivis) purportedly and with reverse adopted and remand for a new trial. But viewing light,” the evidence a “neutral this limitation does not mean that when a permit reviewing which court does exercise its preroga- tive to jury’s show no at all to a reverse and a deference remand conviction for credibility weight and determinations factual either insufficiency, because the juror” and to sit as a “thirteenth without State’s intolerably evidence is tenuous or any limitation declare that a con- because the against and to verdict is the great evidence, justifies weight flict in the evidence a new trial has not acted as a simply reviewing juror.18 because the court dis- thirteenth Obviously, it has. agrees jury’s with the resolution of con- And that precisely why is Tibbs holds that Tibbs, such a flicting evidence. See 457 U.S. at reversal no jeopardy carries double 42,102 consequences. S.Ct. 2211.16 a passage represents This distorted view As for the claim plurality’s that a factual factual I sufficiency agree sufficiency pays review. any review that deference supports proposi- the citation to Tibbs all to the jury’s verdict is not a really reviewing that when tion a does review of the in a evidence “neutral jury light,”19 a as too tenuous overturn verdict this is inaccurate. simply Defer- against great preponder- and ence is an weight all-or-nothing proposition. not evidence, A ance it acts as a thirteenth reviewing court look to the record not, ultimately, juror requirement and does defer to the without the of resolving con- resolution of flicts jury’s weight credibility.17 ambiguities the light most But jury’s Tibbs does not assertion favorable to the verdict and still factual is not limit sufficiency genuinely power the exercise of its to reverse sufficiency factual reviewing unless remand for a new trial in the interest juror justice, court sits as a “without of jury’s thirteenth out of deference to the any verdict, limitation.” It true that we in which insist those cases the State’s a simple disagreement evidence is or the weight most tenuous conflicting evidence will greatly preponderates against resolution support a a factual conviction. qualified reversal under suffi- deference that ciency every appellate appellate review. Not dis- we have said first-tier courts agreement with verdict should signifies pay jury verdicts does not some- the jury “manifestly sufficiency verdict un- how convert factual review into fact, legal sufficiency just” not. And when review. do —in courts, Plurality opinion, Tibbs authorized "without at 901. limitation,” any to reverse convictions and ground 17. “A reversal on that the verdict [the any they happened remand new time for trials evidence], against weight unlike a disagree with a verdict. Tibbs reversal based on does insufficient (Fla.1981). 397 So.2d 1120 acquittal only proper not mean that was the Instead, verdict. court sits as a (“if 19.Plurality opinion, at 900 disagrees juror’ jury's ‘thirteenth required conflicting testimony.” court is to defer manner to resolution of Florida, determinations, supra, jury's Tibbs v. 102 S.Ct. credibility viewing then the evidence in a 'neu- it is not suggestion There is no Florida law ”). light[.]' tral leading up Court's decision in Next, the Therefore, agreed purely policy grounds. plu- if I that we even rality today argument re- endorses an sufficiency simply jettison could policy, dissenting opinions I would not one of the as a matter view analysis primary justification sort of that concludes accept plurality’s cost/benefit doing simply that factual review is for so. policy not worth the candle.22 Such con- II. siderations cannot themselves serve to trump statutory au- constitutional legal Having declared the standards thority of first-tier in Tex- courts sufficiency review to be indis- and factual review, as to conduct factual plurality it neces- tinguishable, the finds recognized long in our case law before sary to eliminate the latter because Clewis was decided.23 ne- insufficiency might of factual finding acquittal.20 Because cessitate an IV. accept premise

I do not that the stan- indistinguishable, are I do not share dards Any argument to undermine the basis concern. plurality’s statutory for that constitutional and au- thority, plurality has for saved last—

III. it can perhaps only because muster dis- policy senting plural- cites to it. The plurality opinions Next the various “[tjhere ity acknowledges factual in fact that dispensing considerations for with First, very little to what sufficiency plurality review. to add this Court has already extensively of reasons written quotes approval number on direct- Supreme appeal statutory listed to court’s the Florida Court constitutional authority sufficiency explain why longer apply it would no entertain to this factual Indeed, evidentiary-weight grounds standard in criminal cases.”24 tell, however, arguments rejected review.21 Insofar as I can have been aired and argument many years. no in the this times in recent there was be made so, plurality today criminal courts of Florida that Even somehow manages inher- question factual review was considered to be characterize jurisdiction first-tier criminal appellate jurisdiction, appel- ent in their as we reason, have said it is in ours. For late courts in Texas to conduct factual sufficiency impres- free to as the Florida Court was one first reject any attempt to raise such a claim sion.25 But of course this is not an issue of (“We ("The fac- 20. Id. at 18 believe that the Clewis 25.See Id. issue thus becomes tual-sufficiency remedy direct-appeal standard with its whether courts' constitutional fact,' very jeop- new trial could well violate double jurisdiction ‘questions to review ardy principles under Tibbs if factual-suffi- [of also codified Article 44.25 the Code of distinguishable' ciency 'barely legal- from authorizing direct-ap- Procedure] Criminal review.”). judgment peal ‘upon courts to reverse facts,' should now be construed the first for 21. Id. at 20. direct-appeal sit as time to mandate courts to contrary jurors' in criminal 'thirteenth cases State, supra, (citing Id. at 20-22 Watson v. years practice to 150 in civil and criminal (Cochran, J., dissenting)). at 450 question years cases. We decline to over 150 jurisprudence civil in this criminal and State, supra, Watson 406-12. State and construe constitutional and statuto- ry 'questions mandates to review of fact’ to Plurality opinion, require direct-appeal courts to sit as at 907-08. also were, argue if it there would be because the standard for re- impression; first Watson) (or, matter, viewing the evidence for no for Clewis indistinguishable is now overrule. the standard reviewing legal sufficiency, for and because yet plurality overrule Clewis the And might this lack of distinction jeopar- create way, Along plural- to do. purports dy problems, we must not construe the service to the ity pay lip fails even jurisdiction fact of first-tier appel- criminal Stare decisis doctrine of stare decisis. late courts to include a review for factual keep strong that “we in mind the dictates I sufficiency. reject prem- Because these adhering past for deci- preference ises, reject any I would argument that the better, said, we have often It is sions[.]”26 presumption that consistent-is-better-than- right (although than to be to be consistent right has been rebutted.30 thing The a rebuttable regard presump- I this as arguably makes Clewis seem unwork- tion).27 Still, acknowledged we have able is this propensity Court’s lamentable for over- legitimate justifications there are grant petition discretionary State’s ruling precedent, and we do established every years three or four to revisit “if the ... not hesitate to do so reasons question whether is unworkable. that, I weighty enough.”28 suppose are arguments themselves are not new. on, question it to address the head were (and today might argue (judging purporting To plurality to overrule Clewis abandoning century policy arguments preceded its case law that it sufficiency jurisdiction factual review—all of which we that exercised fact review suf- rejected past) reverse convictions that were built on too ficiency against review has become “unwork- tenuous foundation or were evidence),31 keeping overarching great weight re- able.” opinion, plurality might manding appeals theme of its the cause to the court of (em- cases.”) jurors' sufficiency puts ‘thirteenth criminal existence of factual psychological pressure ap- certain on first-tier phasis supplied). pellate legally courts to find evidence that is legally sufficient nevertheless to be Lewis, (Tex. parte 26. Ex 219 S.W.3d insuffi- jeopardy cient in order to avoid conse- Crim.App.2007). all, quences; appellate can after factually always hold insufficient Id.; State, 27. Roberts is, gath- I instead. Id. at 449. The notion (Price, J., (Tex.Crim.App.2008) n. 11 concur- er, review, that without factual ring). actually ac- first-tier courts would quit appellants more as matter Lewis, parte supra. Ex I it Id. But find difficult to under- review. encourage why it more stand is better State, E.g., Paulson v. 571- encourage appellate acquittals it than is to (Tex.Crim.App.2000). reversal-and-remands more juiy given oppor- an which a second would be argued It is that factual suffi- sometimes tunity acquit. If See n. ante. the Court ciency review inefficient because it results genuinely sanctity of concerned about the See, anyway. e.g., few Watson so reversals facts, role as arbiter of the should J., State, (Cochran, supra, at 448 dissent- juries prefer acquittals come from ing). operates But factual appellate judges? rather than mechanism, like a fail-safe and one would (dis- hope system supra, that in reasonable of crimi- Watson v. at 409-12 31.See justice ordinary cussing nal it would be rare that this Court between 1891 cases from procedural fail to ensure on the basis of factual mechanisms would and 1940 that reversed insufficiency). just argued very results. It is also analysis, I legal sufficiency to revisit

dissent.

Case Details

Case Name: Brooks v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 6, 2010

Citation: 323 S.W.3d 893

Docket Number: PD-0210-09

Court Abbreviation: Tex. Crim. App.