Roy Wayne CRINER, Appellant, v. The STATE of Texas, Appellee.
No. 1212-91.
Court of Criminal Appeals of Texas, En Banc.
Dec. 16, 1992.
Motion for Rehearing on Petition for Discretionary Review Denied June 9, 1993.
860 S.W.2d 116
Opinion by Judge Clinton Dissenting to Denial of Motion for Rehearing June 9, 1993.
The issue in this case is whether filing an identical lawsuit in another state, when the original suit in this state is dismissed on the basis of forum non conveniens, renders the appeal of the Texas dismissal moot. We conclude that it does not and remand this cause to the court of appeals.
In a Texas state court, VE Corporation (“VE“) sued Ernst & Young for accounting malpractice in connection with work performed in California. Ernst & Young moved to dismiss the suit based on forum non conveniens, and its motion was granted. VE appealed the trial court‘s order. While the case was pending on appeal, VE filed an identical suit in California.
The court of appeals issued an opinion on the merits; however, Ernst & Young moved on rehearing to dismiss the appeal. Ernst & Young argued that the filing of the California suit rendered the appeal moot because the filing indicated VE‘s acquiescence that California was the forum of convenience and it mooted any controversy before the court of appeals. The court of appeals agreed, withdrawing its opinion and dismissing the appeal as moot. 860 S.W.2d 116.
Generally, an appeal is moot when the court‘s action on the merits cannot affect the rights of the parties. See Hornblower, Weeks, Noyes & Trask, Inc. v. Reedy, 587 S.W.2d 433, 435 (Tex.Civ.App.-Dallas 1979, writ ref‘d n.r.e.). The court‘s action in this case does affect the rights of the parties.
Identical suits may be pending in different states. See Project Engineering USA v. Gator Hawk, 833 S.W.2d 716, 724 (Tex.App.-Houston [1st Dist.] 1992, no writ); Quiroz v. McNamara, 585 S.W.2d 859, 864 (Tex.Civ.App.-Tyler 1979, no writ). In such a situation, the principle of comity generally requires the later-filed suit to be abated. See Project Engineering USA, 833 S.W.2d at 724. Merely filing suit in California does not affect moot the issue of whether Texas is a proper forum for VE‘s suit against Ernst & Young, nor does it, without more, indicate VE‘s agreement that California is the forum of convenience. The court of appeals erred in dismissing the appeal as moot.
Without hearing oral argument and pursuant to
Peter C. Speers, III, Dist. Atty., and Kathleen A. Hamilton, Asst. Dist. Atty., Conroe, Robert Huttash, State‘s Atty., Austin, for State.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
WHITE, Judge.
Appellant pled not guilty to the offense of aggravated sexual assault. On May 1, 1990, a jury convicted him of that offense. The jury then set appellant‘s punishment at ninety-nine years confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. On direct appeal, the Court of Appeals reversed appellant‘s conviction and ordered that appellant be acquitted. Criner v. State, 816 S.W.2d 137 (Tex.App.-Beaumont, 1991). This Court granted the State‘s petition on three grounds for review, which all essentially allege the Court of Appeals’ majority opinion erred when it found that the evidence at trial was insufficient to prove the aggravating element of the instant offense.1
The Court of Appeals held the evidence was insufficient to sustain appellant‘s conviction. Because the instant prosecution used circumstantial evidence to prove the aggravating element of the instant offense, the Court of Appeals relied upon the principle that the State must present evidence which excluded every other reasonable hypothesis except that of appellant‘s guilt. Criner v. State, 816 S.W.2d, at 140.
The Court of Appeals then focused their analysis on whether they could find “any evidence that appellant caused serious bodily injury to Deanna Ogg “by striking the said Deanna Ogg in the head with a blunt instrument ...,” as charged in the indictment.” They reviewed the fact that appellant‘s extrajudicial statements contained no language “even reasonably related to appellant having struck or beaten ‘the girl’ that he picked up hitchhiking, in the head or anywhere else on
On the basis of these observations of the record, the Court of Appeals concluded, “there was no evidence for a rational trier of fact to latch onto in order to find that the aggravating element of the offense had indeed been proven beyond a reasonable doubt.” Criner v. State, 816 S.W.2d, at 143.
This decision by the panel of the Court of Appeals to acquit appellant was not unanimous.
In his dissent,2 Justice Brookshire attacked the majority‘s decision because it disposed of this appeal on the sole basis of appellant‘s second point of error. The dissent argued that this “lethally defective, inadequate” point was “clearly erroneous,” because it “grossly misstates the law as well as the standard of appellate review.” Criner v. State, dissenting opinion, at 153.
The dissent assailed the majority‘s application of the “reasonable-hypothesis-of-innocence analytical construct,”3 in support of its holding on the second point of error. The dissent believed that the majority‘s hypothesis that this offense was committed by someone other than appellant was “out of harmony with the evidence” at trial. Criner v. State, id. Justice Brookshire maintained, in light of all the surrounding facts and circumstances proven in the record, no outstanding “reasonable hypothesis exits before us.” The dissent stated that the record fails to demonstrate the hypothesis that a third person could have committed the offense. Criner v. State, id. The dissent contended that the “reasonable-hypothesis-of-innocence analytical construct” could not support the majority‘s conclusion that the evidence at trial was insufficient to support the aggravating element of the instant offense.
After his own review of the record, the dissent explained that “a rational trier of fact could have found beyond a reasonable doubt (as did the trial jury) that the appellant, from both the direct evidence, the exhibits, and the circumstantial evidence, inflicted serious bodily injury on Deanna, the 16 year-old dead girl.” Criner v. State, dissenting opinion at 152. Justice Brookshire concluded that “this record and the evidence contained therein meets all the requisite criteria for sustaining the verdict of guilt of this accused.” Criner v. State, 816 S.W.2d, at 154.
We agree with the dissent that the majority erred in the method by which it applied the law to the facts in the instant case. We find that even though the majority opinion of the Court of Appeals cited the “outstanding-reasonable-hypothesis-of-innocence analytical construct“, they never presented an alternative hypothesis in their opinion. This was the error in the reasoning of the majority opinion: that they failed to explain how the record raised the issue of the existence of an outstanding reasonable hypothesis to support an inference other than the guilt of appellant. For an outstanding hypothesis to be reasonable, it must be supported by some credible evidence. Nilsson v. State, 477 S.W.2d 592, 597 (Tex.Cr.App. 1972). They never presented or discussed an outstanding reasonable hypothesis. Carlsen v. State, 654 S.W.2d 444, at 449-450 (Tex.Cr. App.1983).
The majority opinion also erred when, in the course of their analysis, they disregarded the circumstantial evidence in the record. A reviewing court should examine all of the evidence in the record in order to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, at 319, 99 S.Ct. 2781, at 2789, 61 L.Ed.2d 560 (1979); and Butler v. State, 769 S.W.2d 234, at 238 (Tex. Cr.App.1989). The majority opinion merely states that the record before them contained no direct evidence to show how appellant inflicted serious bodily injury upon the victim. In doing so, they overlooked the circumstantial evidence which could lead a rational trier of fact to believe beyond a reasonable doubt that appellant struck the said Deanna Ogg in the head with an unknown blunt instrument, as alleged in the indictment, resulting in her serious bodily injury and, ultimately, her death. We are in agreement with Justice Brookshire‘s analysis of the record and conclusion at law: that a rational trier of fact could find, based upon this evidence, that appellant caused the victim‘s serious bodily injuries.
We sustain the State‘s three grounds for review, and reverse the judgment of the Court of Appeals. We remand this cause to the Court of Appeals for disposition of the point of error not dealt with on original submission.
CLINTON, J., dissents.
ON MOTION FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW
Appellant‘s motion for rehearing on petition for discretionary review denied June 9, 1993.
OPINION DISSENTING TO DENIAL OF APPELLANT‘S MOTION FOR REHEARING ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
The indictment in this cause alleged that appellant caused serious bodily injury “by striking” his victim “in the head with a blunt instrument the nature of which is unknown* to the Grand Jury.” The jury charge tracked the indictment in this respect. In his argument in the court of appeals that the evidence was insufficient to support the jury‘s verdict, appellant urged, inter alia, that although there was evidence the victim suffered blunt trauma injury to the head, there is no indication in the record that the injury was caused when the victim was struck in the head with a blunt instrument—never mind by whom—as alleged in the indictment. Although it could be clearer, the majority opinion in the court of appeals held that it is in this respect that the evidence is insufficient. See Criner v. State, 816 S.W.2d 137, at 143 (Tex.App.-Beaumont 1991).
On original submission on State‘s petition for discretionary review, this Court reversed, holding that the court of appeals misconceived the correct legal test for gauging sufficiency of the evidence. In conducting its “outstanding-reasonable-hypothesis” analysis, contended the majority, the court of appeals failed to require that there be some evidence to support the alternative hypothesis. The court of appeals “merely argued, somewhat unpersuasively, that the record before them contained no direct evidence to show how appellant inflicted serious bodily injury upon the victim.” Majority op. at 87. But this Court on original submission conducted no independent analysis to demonstrate that the evidence is not insufficient to show the particular manner and means of inflicting serious bodily injury alleged in the indictment—which is, after all, what appellant contended, and the court of appeals held below. Instead, the Court was content to endorse the frantic dissenting opinion of Justice Brookshire, an opinion that, for all of its ten pages in the Southwestern Reporter, still manages to ignore the actual basis for the majority‘s decision in the court of appeals. Criner v. State, supra, at 144-154 (Brookshire, J., dissenting).*
Therefore I cannot agree that the court of appeals majority in any way distorted the “reasonable alternative hypothesis” analysis to conclude the circumstantial evidence was insufficient. Judge White recently opined that “[i]n applying the ‘reasonable alternative hypothesis’ analysis, ‘[t]he correct procedure involves accepting the inculpatory circumstances ... and then asking if there is a reasonable hypothesis other than guilt which would also account for such circumstances.’ Girard v. State, 631 S.W.2d 162, at 164 (Tex. Cr.App.1982).” Gunter v. State, 858 S.W.2d 430, 439 (Tex.Cr.App.1993) (rehearing denied May 12, 1993). In this case all of the circumstances taken together do not coalesce to exclude the hypothesis that the victim‘s head was struck against a hard object, as opposed to the hypothesis her head was struck with a blunt instrument. The evidence here lends precisely as much support to either theory. Stated another way, that the victim‘s head was struck against a hard object is just as much “supported by ... credible evidence” as the allegation that appellant struck her head with a blunt instrument. Majority op. at 86. “This is no more than to say that as to [the alleged manner and means of inflicting serious bodily injury], the State has failed to carry its burden of production.” Nelson v. State, supra.
It might be argued that there is no semantic difference between an allegation that the victim‘s head was struck with a blunt instrument and proof that her head was struck against a hard object. Such an argument avoids the unpalatable remedy of acquittal. But it was neither broached by the State in its petition for discretionary review, nor does it form any part of this Court‘s analysis, such as it is, on original submission.
In the landmark decision in Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1992), we opined:
“Like this Court, the courts of appeals are duty-bound to uphold the constitution and laws of this State and of the United States. So long as it appears that they have discharged that duty conscientiously by impartial application of pertinent legal doctrine and fair consideration of the evidence, it is our duty in turn to respect their judgments. Our principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications.”
Id., at 360. Particularly in the last several years the Court has noticeably improved in practicing what Arcila preached. Nevertheless, there is one context in which the Court has lacked that laudable restraint. We seem to grant a disproportionately high number of State‘s petitions for discretionary review to review decisions of the courts of appeals holding the evidence to be legally insufficient, and for no other reason than that we disagree with the lower court‘s particular application of the law to the facts. For all the Court‘s gloss in its opinion on original submission, the instant cause is but an example. Given that in our discretionary review capacity our “principal role as a court of last resort is the caretaker of Texas law,” one wonders why the court would go out of its way to rectify some flaw, real or invented, in the application of an “analytical construct” we have in any event jettisoned. Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991).
I dissent.