Kenneth Shaye ERVIN, Appellant, v. The STATE of Texas, Appellee.
No. 01-10-00054-CR
Court of Appeals of Texas, Houston (1st Dist.).
Nov. 10, 2010.
Discretionary Review Refused Feb. 16, 2011.
C. Ad Litem Fees for Present Appeal
Finally, appellants request attorney‘s fees for the рresent appeal. To be entitled to appellate attorney‘s fees, the ad litem must represent the interests of his client on appeal—not solely his own interests. See Harris County Children‘s Protective Servs. v. Olvera, 77 S.W.3d 336, 342 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
Slaughter argues that Mahoney is not entitled to appellate ad litem fees because he does not represent his client‘s interests on appeal. Mahoney responds that this appeal concerns appellants’ interests because (1) they will be responsible for paying the difference between the amount of reasonable attorney‘s fees found by the trial court and the amount actually incurred by Mahoney and (2) he is seeking assessment of ad litem fees against Slaughter instead of appellants. Mahoney cites no source supporting his contention that appellants (who had no contract with Mahoney or input relative to services he rendered) will be responsible for paying the $7500 in ad litem fees determined by the trial court and taxed as costs or the difference between the $7500 assessed and the $11,454.91 Mahoney requested should they ever be located. Mahoney‘s efforts on appeal to increase the amount of attorney‘s fees and to persuade this court to assess fees as costs to be paid by Slaughter do not constitute representation of appellants’ interests. In addition, in its judgment, the trial court did not tax any costs against appellants. Accordingly, we deny Mahoney‘s request for appellate attorney ad litem fees.
III. CONCLUSION
We modify the trial court‘s judgment to reflect that Slaughter must pay $7500 ad litem‘s fees assessed as costs, and affirm the judgment as modified.
David C. Newell, Assistant District Attorney, Patricia R. Lykos, Harris County District Attorney, Houston, TX, for Appellee.
Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
OPINION
ELSA ALCALA, Justice.
Appellant, Kenneth Shaye Ervin, appeals from a judgment sentencing him to life in prison for the murder of Quincy Sheppard. See
Background
Ronald and Quincy Sheppard lived at their father‘s apartment in southeast Houston. At the time, Ronald was making a lot of money selling illegal drugs around the apartment complex, and appellant‘s cousin did not want Ronald around. One evening in April 2008, the Sheppard brothers walked on the street outside their apartment complex when appellant and appellant‘s cousin directed vulgar words at them. Appellant then pulled out a black, semiautomatic gun and fired approximаtely six bullets towards the Sheppard brothers as they ran away.
About two days later, the Sheppard brothers went outside their apartment complex to deliver illegal drugs to a customer. Appellant and his cousin ran up to them. Appellant pointed the same gun at them and demanded, “Give me the money and the marijuana.” Ronald complied. As the Sheppard brothers were leaving, appellant fired approximately five bullets at them. The brothers again escaped uninjured.
Approximately two days after the theft, as the Sheppard brothers walked back to their apartment at night, Ronald looked back and saw appellant holding the same gun at his side. Appellant said, “Don‘t run now.” Ronald tapped on Quincy‘s shoulder, instructing him to run away. Ronald then ran inside his father‘s apartment, where he heard the sound of two gunshots fired outside.
At the same time, Walter Dixon was outside the apartment complex and heard the gunshots. Dixon saw appellant quickly walking away from where the sound of the
After hearing the gunfire, Rоnald went to Quincy and stood nearby screaming, yelling, and crying hysterically. Ronald told the police officers who arrived at the scene that appellant shot Quincy. The police found Quincy lying unconscious on the ground; he had been shot in the arm and the chest and was pronounced dead at the scene. The police recovered two fired .40 caliber cartridge casings from the crime scene. In the subsequent investigation, police officers recovered two .40 caliber bullets from appellant‘s girlfriend‘s apartment. This was the same caliber as the casings found at the scene of the shooting and the bullet fragments later recovered from Quincy‘s body.
The day after Quincy‘s death, Dixon saw appellant. Appellant, who was with a couple of his friends, called Dixon to come over. Appellant instructed one of his friends to “[a]sk [Dixon] about it.” By “it,” Dixon understood appellant to be referring to the prior night‘s shooting. Dixon offered, “I don‘t know nothing, and you shouldn‘t be talking about it.”
In the days shortly after the shooting, Dixon was interviewed by the police, but he did not mention either seeing appellant on the night of the shooting or the conversation that occurred the day after. Earning a reward for the tip, Dixon later contacted Crime Stoppers to rеport that he saw appellant on the night of the shooting. Approximately two years later, in the week before trial, Dixon met with the prosecutor and disclosed for the first time the conversation with appellant that occurred the day after the shooting.
At trial, Dixon identified appellant as the man he saw leaving the crime scene on the night of the shooting. Dixon testified that he knew appellant as “Teardrop.” Appellant has a tattoo of teardrops near his left eye. At trial, Ronald also identified appellant as the shooter. He testified that he knew appellant as “Ken Ken.” Appellant, whose first name is Kenneth, has a tattoo on his left bicep that states, “Ken Ken hearts Arneshia.”
Appellant pleaded not guilty. The jury found him guilty, found true a felony enhancement paragraph, and assessed his sentence. Appellant filed a motion for new trial, which was overruled by operation of law.
Sufficiency of the Evidence
In two issues, appellant contends that the circumstantial evidence is legally and factually insufficient to support his conviction for murder. In his combined argument concerning both issues, appellant points out that there was no direct evidence, such as an eyewitness‘s testimony, that he fired the two bullets that killed Quincy. Appellant does not separately argue his legal- and factual-sufficiency challenges.
A. Standard of Review
In light of the recent court of criminal appeals decision in Brooks v. State, we must determine what standard of review we will apply to an evidentiary-sufficiency challenge styled as a factual-sufficiency challenge. See Brooks v. State, 323 S.W.3d 893, 894-913 (Hervey, J., joined by Keller, P.J., and Keasler and Cochran, JJ., plurality opinion), 323 S.W.3d at 912-26 (Cochran, J., joined by Womack, J., concurring), 323 S.W.3d at 926-32 (Price, J., joined by Meyers, Johnson, and Holcomb, JJ., dissenting) (Tex.Crim.App. Oct. 6, 2010). Of the three opinions issued in
In Brooks, the plurality and the concurrence both agreed to overrule the court of criminal appeals’ prior holding in Clewis v. State that had applied separate standards of review for legal and factual sufficiency of the evidence challenges. Brooks, 323 S.W.3d at 894-95, 913-15. In Clewis, the court held that legal-sufficiency challenges are to be reviewed in the light most favorable to the verdict under the standard of reviеw established by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), but that factual-sufficiency challenges are to be reviewed under a different, neutral, standard. Clewis v. State, 922 S.W.2d 126, 132, 134 (Tex.Crim.App.1996), overruled by Brooks, 323 S.W.3d 893.1 The plurality and concurring opinions in Brooks agree that the Jackson standard of review is the sole standard to be used for challenges concerning the sufficiency of the evidence to support each element of the offense and that a finding of insufficiency results in an order acquitting the appellant. See Brooks, 323 S.W.3d at 912-13, 917-18, 922-24, 926-28;2 see also Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982). This majority holding is the precedent of the court of criminal appeals. See Haynes, 273 S.W.3d at 186.
As an intermediate court of appeals, we are bound to follow the precedent of the court of criminal appeals. Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.-Houston [1st Dist.] 2002, pet. ref‘d); See
Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319; In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009); Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320 (“That the Thompson [v. Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654 (1960)] ‘no evidence’ rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent. A mere modicum of evidence may satisfy a ‘no evidence’ standard.... But it could not seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt.“) (citations omitted); Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. A hypothetical example of this second circumstance was described in Brooks:
The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape of the event clearly shows that B committed the robbery. But, the jury convicts A. It was within the jury‘s prerogative to believe the convenience store clerk and disregard the video. But based on all the evidence the jury‘s finding of guilt is not a rational finding.
Brooks, 323 S.W.3d at 907 (quoting Johnson v. State, 23 S.W.3d 1, 15 (Tex.Crim.App.2000) (McCormick, P.J., dissenting) (emphasis in original)).
If an appellate court finds the evidence insufficient under the Jackson standard, it must reverse the judgment and enter an order of acquittal. See Tibbs, 457 U.S. at 41. An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). In viewing the record, “[d]irect and circumstantial evidence are treated equally: ‘circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.‘” Id. (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007)). An appellate court presumes that the factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. An appellate court also defers to the factfinder‘s evaluation of the credibility of the evidence and weight to give the evidence. See Williams, 235 S.W.3d at 750.
B. Applicable Law to Establish Murder
A person commits murder if (1) he commits an act that causes the death of another, and (2) he intended or knew that death would result from the act, or he intended that serious bodily injury would result from the act and the act is clearly dangerous to human life.
C. Analysis
As emphasized by the Brooks plurality, we conduct “a rigorous and proper application” of the Jackson standard of review to determine whether the facts in the record are sufficient to establish murder beyond a reasonable doubt. See
Immediately before Quincy was shot, Ronald saw appellant holding the same gun that appellant had previously used to shoot at him and Quincy. Appellant told the Sheppard brothers not to run. When Ronald escaped into the safety of his father‘s apartment, he heard two gunshots fire outside. Ronald quickly went outside where he saw Quincy, who had been shot twice.
A second witness, Dixon, also provides circumstantial evidence that appellant shot Quincy. Dixon heard the gunshots and saw appellant walking from where the sound originated. Dixon thought appellant looked panicked as he attempted to conceal what Dixon believed to be a firearm. The day after the shooting, appellant spoke with Dixon in the presence of appellant‘s friend. Appellant told his friend to ask Dixon about “it,” which Dixon believed referred to the shooting. Furthermore, Quincy was killed with a firearm that used .40 caliber ammunition, and that type of ammunition was found in appellant‘s girlfriend‘s apartment.
Although appellant contends that the record does not show that he had a motive to murder Quincy, that is an inaccurate portrayal of the circumstances. The jury could have rationally found that appellant had a motive to kill Quincy from the evidence that he fired at Quincy on two occasions during the week before Quincy was shot to death. See Foy v. State, 593 S.W.2d 707, 709 (Tex.Crim.App.1980) (evidence of prior offense committed against victim indicates existence of ill will or hostility towards victim and is circumstantial evidence of existence of motive for committing charged offense); Burton v. State, 762 S.W.2d 724, 727 (Tex.App.-Houston [1st Dist.] 1988, no pet.).
Viewing the totality of the circumstances in the light most favorable to the verdict, we conclude that the jury could have rationally found each element of murder was proven beyond a reasonable doubt. See Clayton, 235 S.W.3d at 779-81 (although insufficient standing alone, considered together circumstantial evidence that appellant was at crime scene moments after murder occurred, fled the crime scene, and had motive was sufficient under Jackson standard to establish guilt beyond reasonable doubt). Having applied the Jackson evidentiary-sufficiency standard of review to address appellant‘s legal- and factual-sufficiency challenges, we hold the evidence is sufficient to establish murder. See Jackson, 443 U.S. at 319; Williams, 235 S.W.3d at 750.
Conclusion
We affirm the judgment.
Justice JENNINGS, concurring.
TERRY JENNINGS, Justice, concurring.
[T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or errоr.
As noted by the majority, five judges on the Texas Court of Criminal Appeals, in two separate opinions, have now concluded that in criminal cases “a legal-sufficiency
The five judges purport to substitute a legal-sufficiency appellate standard of review in place of a factual-sufficiency appellate standard of review.1 Brooks, 323 S.W.3d at 894-95 (holding that legal-sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) is “only standard” reviewing court should apply in determining whether evidence is sufficient to support each element of criminal offense). Asserting that the “two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both,” the five judges purport to eliminate from Texas‘s criminal jurisprudence the
This, respectfully, the Texas Court of Criminal Appeals has neither the jurisdiction nor any lawful authority to do. In fact, three years prior to issuing its opinion in Clewis, the court itself acknowledged that it simply may not order Texas courts of appeals to use a legal-sufficiency appellate standard of review to decide the questions of fact brought before them on appeal. Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex.Crim.App.1993). Recognizing that it may not “interfere[] with the fact jurisdiction of the intermediate appellate courts,” the court emphasized that it is “not constitutionally authorized to adopt a standard of review for the court[s] of appeals ... inconsistent with Art. V, § 6 of [the Texas] Constitution.” id. at 853 (emphasis added) (quoting Meraz v. State, 785 S.W.2d 146, 153 (Tex.Crim.App.1990)). Any such action taken by the court of criminal appeals is, in its own words, “void ab initio,” i.e., from its inception. Ex parte Schuessler, 846 S.W.2d at 852-53. In granting a post-conviction application for writ of habeas corpus, the court explained:
In the instant case, this Court erroneously held that a legal sufficiency standard of review, rather than a factual sufficiency review, was the proper appellate standard for determining the sufficiency of the evidence.... Ordinarily, such a holding, even though subsequently held to be erroneous, would not be subject to review. [ ] However, our holding was not just erroneous; it was made without jurisdiction.
. . . .
The Court of Appeals applied the appropriate standard and reversed applicant‘s conviction. This Court lacked jurisdiction to hold otherwise.... Because this Court was without jurisdiction to reverse the judgment of the Court of Appeals, our judgment in this case is void ab initio, and therefore properly challenged in this collateral attack. See Ex Parte Kirby, 626 S.W.2d 533, 534 (Tex.Crim.App.1981) (“judicial action without jurisdiction is void and challengable [sic] by way of a post-conviction application for writ of habeas corpus“).
Id. (emphasis added).
According to the court, the only way to preclude a Texas court of appeals from “determin[ing] if а jury finding is against the great weight and preponderance of the evidence,” i.e., determining a question of fact, is for “the people of the State of Texas to amend the Constitution.” Meraz, 785 S.W.2d at 154. Of course, neither the Texas Court of Criminal Appeals, nor the Texas Supreme Court, nor this Court has the power to amend the Texas Constitution.
In Texas, “[t]he right to trial by jury shall remain inviolate.”
Trial by jury as guaranteed by the Constitution of the United States and of the several states presupposes a jury under proper guidance of a disinterested and competent trial judge.... It is an important element of trial by jury which puts upon the judge the exacting duty of determining whether there is solid evidence on which a jury‘s verdict could be fairly based.... Only an incompetent or a wil[l]ful judge would take a case from the jury when the issue should be left to the jury.... The easy but timid way out for a trial judge is to leave all cases tried to a jury for jury determination, but in doing so he fails in his duty to take a case away from the jury when the evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge.
Wilkerson v. McCarthy, 336 U.S. 53, 64-65, 69 S.Ct. 413, 419, 93 L.Ed. 497 (1949) (Frankfurter, J., concurring) (citations omitted).
Although the right to trial by jury is indeed the bulwark of our liberties, no one
As early as 1841, the Supreme Court of the Republic of Texas recognized that “the defendant in a criminal prosecution in the district court has the right of appeal to this court from the judgment, or sentence of the court below, and to have the facts as well as the law, at his own election, opened for re-examination.” Republic v. Smith, Dallam 407, 410-11 (Tex.1841) (emphasis added). Texas has always recognized that a party on appeal may challenge as erroneous a fact finding on the grounds that, (1) as a question of law, the issue should not have been submitted to the jury at all, i.e., the evidence is legally insufficient to support the finding, or, (2) as a question of fact, although the issue was properly submitted to the jury with legally-sufficient evidence, the jury erred in weighing the evidence, i.e., the evidence is factually insufficient to support the finding. See Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898).
[T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.
In Choate, the court noted that in concluding that the then court of civil appeals had erred in holding that there was no evidence to support a jury verdict in favor of the plaintiff and in instructing the trial court to direct a verdict for the defendant, the supreme court had “neither exceeded [its] powers nor intrenched upon the jurisdiction of the [then] court of civil appeals....” Choate, 44 S.W. at 69. The court explained:
[I]t is elementary that whether there be any evidence or not to support an issue is a question of law, and not of fact, and it follows that the decision of the [then]
court of civil appeals upon such a question is subject to review by this court.
Id. In contrast, although it is the province of the jury to determine questions of fact, “it is in thе power of the trial judge to set aside the finding, and to award a new trial.” Id. A court of appeals “has the same power upon appeal.” Id. Thus, if a verdict is “against such a preponderance of the evidence as to justify such action,” a court of appeals may “set it aside, and remand the cause for a new trial.” Id. at 70. And the court of appeals’ “action upon such questions is made final, and not subject to be reviewed by [the supreme] court.” Id. (emphasis added). As recently recognized by the court of criminal appeals, “The Factual Conclusivity Clause gives final appellate jurisdiction to the court of appeals on questions of fact brought before the court.” Laster v. State, 275 S.W.3d 512, 518-19 (Tex.Crim.App.2009) (emphasis added).
Thus, “a review of the evidence for factual sufficiency is a power committed exclusively to the court[s] of appeals.” Regal Fin. Co. v. Tex. Star Motors, — S.W.3d —, (Tex.2010) (emphasis added). Accordingly, in regard to the questions of fact presented to a Texas court of appeals, the supreme court and court of criminal appeals have jurisdiction only to determine the purely legal question of whether the court of appeals did its job in addressing a question of fact by actually considering and weighing all of the evidence in the record and, if it judges the evidence factually insufficient to support a finding of fact, stating its reasons for doing so. Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex.1986); In re King‘s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In other wоrds, did the court of appeals apply the correct standard of appellate review by considering “all the relevant evidence” in addressing
In Meraz, the Texas Court of Criminal Appeals, six years before issuing its opinion in Clewis, expressly recognized that Texas courts of appeals have “conclusive fact jurisdiction.” Meraz, 785 S.W.2d at 154. The court “join[ed] ... the Texas Supreme Court and conclude[d] that the ‘factual conclusivity clause,’ within
Any reading of the quoted language [from White] mаkes it obvious that this Court has expressly recognized that the then courts of civil appeals had the jurisdiction to consider the great weight
and preponderance of evidence questions. Moreover, the Court expressly recognized that such jurisdiction was exclusively with the courts of civil appeals to the exclusion of the Supreme Court. In addition, it endorsed the Supreme Court‘s opinions which interpreted Art. V, § 6 , in that manner.Obviously White v. State ... preceded the constitutional amendment that conferred criminal jurisdiction upon the courts of civil appeals and made them courts of appeals.... However, considering that the constitutional amendment did not in any manner affect that portion of
Art. V, § 6 , which grants the authority to conduct a factual review of the evidence, it is apparent that the Court‘s observations and conclusions cannot and should not be altered and thus constitute stare decisis.[2]
Meraz, 785 S.W.2d at 155 (citations omitted) (emphasis added).
Thus, when a Texas court of appeals, pursuant to its constitutionally-delineated duty under the factual-conclusivity clause, and its statutorily-delineated duty under Code of Criminal Procedure article 44.25, entitled “Cases Remanded,” decides a question of fact brought before it on appeal, it necessarily must, at the very least in its scope of review, neutrally consider and weigh all the evidence in the record to determine whether the challenged fact finding is erroneous. See In re King‘s Estate, 244 S.W.2d at 661. The court of criminal appeals has specifically recognized that “the phrase ‘question of fact,‘” as used in the factual-conclusivity clause, is “a legal term of art signifying ‘questions of weight and preponderance of the evidence.‘” Cain, 958 S.W.2d at 408. This is
The question requires the [court of appeals], in the exercise of its peculiar powers under the constitution ... to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial [if appropriate] ... regardless of whether the record contains some ‘evidence of probative force’ in support of the verdict.... The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.
In re King‘s Estate, 244 S.W.2d at 661 (emphasis added). Indeed, it is reversible error for a Texas court of appeals to “treat[] [a factual sufficiency challenge] as a question of law” and not to consider and weigh all the evidence when deciding a question of fact. Id. How could a court of appeals ever decide a question of fact and remand a case fоr a new trial pursuant to its duties under the Texas Constitution and article 44.25 if it is limited to reviewing the legal sufficiency of the evidence?
A legal-sufficiency analysis, which limits the scope of review to the evidence in the record in the light most favorable to the finding and stands in stark contrast to a factual-sufficiency analysis, does not require such a consideration and weighing of all the evidence, including that which is contrary to the verdict. As revealed in the following chart, which is based on the scholarly work of W. Wendall Hall and former First Court of Appeals Justice Michol O‘Connor, the two different analyses serve two different functions, answer two separate sets of questions, and lead to two dramatically different results:
STANDARDS OF REVIEW
We have stated “that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards.“[] Courts and litigants should not combine their legal and factual sufficiency analyses. So while we recognize that any analyses of the facts in a given case will naturally overlap, a separate review under the applicable standard is necessary to ensure that the law was properly applied.
Laster, 275 S.W.3d at 519 (quoting Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000))(emphasis added).
The legal-sufficiency standard of review as articulated by the United States Supreme Court in Jackson v. Virginia, which provides the minimum protection against wrongful conviction required by the Due Process Clause of the United States Constitution, is articulated differently than the Texas legal-sufficiency standard outlined above. Under the Jackson standard, a court is to examine “the evidence in the light most favorable to the prosecution” and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”3 443 U.S. at 318-19, 99 S.Ct. at
The consequences surrounding the prosecution of an accused based on legally-insufficient evidence have been clearly explained by the United States Supreme Court:
[T]he Double Jeopardy Clause precludes retrial [of an accused] “once the reviewing court has found the evidence legally insufficient” to support conviction.... This standard, we explained, “means that the government‘s case was so lacking that it should not have even been submitted to the jury.” ... A conviction will survive review ... whenever “the evidence and inferences therefrom most favorable to the prosecution would warrant the jury‘s finding the defendant guilty beyond a reasonable doubt.” ... In sum, we noted that the rule barring retrial would be “confined to cases where the prosecution‘s failure is clear.” ...
[T]he Double Jeopardy Clause attaches special weight to judgments of acquittal.... A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial.... A reversal based
on the [legal] insufficiency of the evidence has the same effect because it means thаt no rational factfinder could have voted to convict the defendant.
Tibbs, 457 U.S. at 40-41 (citations omitted) (emphasis added). In short, evidence is legally insufficient where the “only proper verdict” is acquittal. Id. at 42. On the other hand,
A reversal on [a factual-sufficiency] ground, unlike a reversal based on [legally-] insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a “thirteenth juror” and disagrees with the jury‘s resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause.... Similarly, an appellate court‘s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.
. . . .
A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented [legally-] sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment ... An appellate court‘s decision to give the defendant this second chance does not create “an unacceptably high risk that the Government, with its superior resources, [will] wear down [the] defendant” and obtain conviction solely through its persistence....
Id. at 42-43 (emphasis added). Thus, the United States Su-
Our decisions also make clear that disagreements among jurors or judges do not themselves create a reasonable doubt of guilt. As Justice WHITE, ... explained, “[t]hat rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard.”
Id. at 42 n. 17 (quoting Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (1972)).
The question of law and question of fact presented in the instant case well illustrate the Supreme Court‘s point. Here, in his first issue, appellant, Kenneth Shaye Ervin, contends that the evidence is legally insufficient to support his conviction, i.e., the case should not have been submitted to the jury as the only proper verdict was acquittal. The majority, applying the Jackson legal-sufficiency standard, viewing the evidence in the light most favorable to the State, holds that the evidence is sufficient to support appellant‘s conviction, and I join this holding. However, in his second issue, appellant, alternatively, presents a question of fact to this Court, essentially arguing that although perhaps legally sufficient, the evidence is factually insufficient to support his conviction because it “is so weak that the verdict is clearly wrong and manifestly unjust,” and in support of his
Nevertheless, a distinct and neutral consideration and weighing of all the evidence in the record reveals that it is not so weak that the jury‘s verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006). Viewing the evidence contrary to the verdict, it is true, as emphasized by appellant, that there were no eyewitnesses to the shooting of the complainant, there is no “direct evidence” regarding the murder, and his “connection with the murder was based entirely on circumstantial evidence.” On the other hand, viewing the evidence in support of the verdict, the State presented evidence that appellant had fired gunshots at the complainant on two occasions during the week preceding his murder; immediately before the murder, the complainant‘s brother saw appellant holding the same gun that appellant had used in the prior shootings; after the complainant‘s brother saw appellant with the gun, he left the complainant, ran inside an apartment, and then heard two gunshots; after hearing the gunshots, the complainant‘s brother returned to the complainant and found him dying of gunshot wounds. The State also introduced evidence that a witness at the scene saw appellant quickly walking away from the area where the sound of a gunshot originated. This witness also saw appellant attempting to conceal something that the witness believed to be a gun. Based upon this consideration and weighing of all the
As this case illustrates, distinguishing between and implementing the separate and distinct appellate standards of review for legal- and factual-sufficiency challenges is relatively simple. There is no need to substitute a legal-sufficiency appellate standard of review for the factual-sufficiency standard.
Moreover, the substitution of a legal-sufficiency appellate standard of review, which can be reviewed and applied, respectively, by either the Texas Supreme Court or Texas Court of Criminal Appeals, for a factual-sufficiency appellate standard of review, which constitutionally may not be reviewed and applied by the higher courts, would render the factual-conclusivity clause of the Texas Constitution a dead letter. See Ex parte Schuessler, 846 S.W.2d at 852. As explained by the Texas Supreme Court:
[The factual-conclusivity clause] requires the [c]ourt of [a]ppeals, upon proper assignment, to consider the fact question of weight and preponderance of all the evidence and to order or deny a new trial accordingly as to the verdict may thus appear to it clearly unjust or otherwise. This is the meaning given the constitutional phrase ‘all questions of fact brought before them on appeal or error‘.... But for that interpretation there would be no ‘questions of fact’ for
the [c]ourt of ... [a]ppeals to determine ....
In re King‘s Estate, 244 S.W.2d at 662 (emphasis added). Thus, in the words of the Texas Court of Criminal Appeals:
It [is] not appropriate for this Court to create a standard of review which is in conflict with the language of our State Constitution.
Respectfully, this is precisely what a majority of the Texas Court of Criminal Appeals purports to do in its plurality and concurring opinions in Brooks. As noted by the dissenting judges, the majority, without at all considering and addressing the express language of the factual-conclusivity clause and article 44.25, “purports” to overrule Clewis, deciding that the authority to reverse criminal judgments and remand the cases on the basis of factual insufficiency, which “has been recognized from the beginning to be inherent in the appellate jurisdiction of first-tier appellate courts in Texas,” “need not be ‘retained.‘” Brooks, 323 S.W.3d at 926 (Price, J., dissenting). Significantly, only four of the five justices who would substitute the Jackson legal-sufficiency standard for a factual-sufficiency appellate standard of review would do so under
In fact, the Texas Supreme Court has previously rejected a challenge to the courts of appeals’ constitutional prerogative to review and decide the questions of fact brought before them on appeal. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex.1988). In doing so, it explained that “[t]he right of trial by jury and appellate court review of fact questions have peacefully co-existed for almost one hundred and fifty years, and are thoroughly rooted in our constitution and judicial system.” Id. at 652.
The supreme court emphasized that in regard to appellate review of fact questions, the right to trial by jury is protected by Texas‘s “deferential [appellate] standards of review.” Id. at 651. That a court of appeals is to defer tо a jury‘s determination of credibility and not merely substitute its judgment for that of a jury, i.e., by stating “[t]he jury evidently believed Appellee‘s argument, we do not,” is not inconsistent with a court of appeals’ duty to actually weigh evidence in deciding the questions of fact presented to it. Pool, 715 S.W.2d at 635. Thus, there is no conflict
Thus, the Texas Supreme Court concluded that the factual-conclusivity clause does not “violate the right of trial by jury.” Id. at 647. And it reсognized the “inescapable fact” that it could not amend the Texas Constitution to eliminate the courts of appeals’ prerogative to decide fact questions and, if appropriate, remand cases for new trials. The court emphasized that even if it could, it was “not prepared to sacrifice either” the constitutional right to trial by jury or the constitutional prerogative of the courts of appeals to decide the questions of fact presented to them “for the benefit of the other.” Id.
But it is not enough that the Texas Supreme Court and the Texas Court of Criminal Appeals merely recognize the prerogative of Texas courts of appeals to conclusively decide all questions of fact brought before them on appeal. In the words of Texas Supreme Court Justice Nathan Hecht, the high courts should not use their very limited jurisdiction to ascer-
In sum, the Texas Constitution expressly recognizes that Texas courts of appeal have “conclusive” jurisdiction to decide the questions of fact presented to them on appeal; this “conclusive fact jurisdiction,” this constitutional “prerogative,” by its very nature requires that a court of appeals consider and weigh all the evidence in a case when a question of fact is presented to it on appeal and, if appropriate, to remand the case for a new trial; and neither the Texas Supreme Court nor the Texas Court of Criminal Appeals may lawfully amend the Texas Constitution to usurp the constitutional prerogative of the Texas courts of appeals to properly review and decide thе questions of fact presented to them on appeal. Accordingly, a Texas court of appeals is duty bound under the Texas Constitution to exercise the full extent of its appellate powers on the questions of fact brought before it on appeal, and neither the Texas Supreme Court nor the Texas Court of Criminal Appeals has the lawful authority to interfere with or relieve the courts of appeals of this constitutional duty. Any attempt by either court to do so is void ab initio. Ex parte Schuessler, 846 S.W.2d at 852.
Here, appellant has squarely presented a question of fact to this Court, contending that the evidence in support of his conviction is so weak that the jury‘s verdict is clearly wrong and manifestly unjust. Although awkward under the circumstances, this Court still has a constitutionally-delineated right and duty, with which no other court may lawfully interfere, to properly address appellant‘s question of fact by considering and weighing all the evidence in record. A proper consideration and
Furthermore, I respectfully request that the Texas Court of Criminal Appeals reconsider its opinions in Brooks in light of the factual-conclusivity clause of the Texas Constitution, Code of Criminal Procedure article 44.25, the court‘s own well-established prior precedent concerning the serious constitutional conflict that is now presented by its holding in Brooks, and the well-established precedent of the Texas Supreme Court with which Brooks collides.
Absent reconsideration by the court of criminal appeals, I respectfully request that the Texas Legislature review the issue surrounding the conclusive jurisdiction of Texas courts of appeals to decide the questions of fact presented to them and the problem of interference with that conclusive jurisdiction. I further request that the Texas Legislature take whatever action that it deems appropriate under the circumstances, including, but not limited to, the resolution of any conflict between the court of criminal appeals’ holding in Brooks and both the factual-conclusivity clause of the Texas Constitution and Code of Criminal Procedure article 44.25, with any legislation that it deems necessary and appropriate to protect the conclusive fact jurisdiction of the Texas courts of appeals so that they may meaningfully perform their constitutional right and duty to decide questions of fact.
The People of the State of Texas have the exclusive authority to amend the Texas Constitution. Until they do so, “The right of [Texas] courts of appeals to review for factual insufficiency must continue undis-
In re TEXAS MUTUAL INSURANCE COMPANY et al.
No. 11-10-00245-CV.
Court of Appeals of Texas, Eastland.
Nov. 12, 2010.
Rehearing Overruled Jan. 13, 2011.
Notes
It must be stressed, however, that the use of a standard of review does not reduce the art and craft of judging into a mathematical-type formula. In discussing a “formula” for judicial review of administrative actions, Justice Felix Frankfurter wrote:
Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too оften repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work.... There are no talismanic words that can avoid the process of judgment. The difficulty is that we cannot escape, in relation to this problem, the use of undefined defining terms.
Universal Camera Corp. v. Nat‘l Lab. Relations Bd., 340 U.S. 474, 489, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951) (emphasis added). This admonition applies to the use of appellate standards of review. As courts work to discern the meaning of certain “undefined defining terms,” they must exercise sound judgment in the application of these terms. The appropriate standard of review, therefore, is not “the end of the inquiry but rather a frame and limit on the substantive law.” 1 Steven Alan Childress & Martha S. Davis, Standards of Review: Federal Civil Cases and Review Process § 1.3, at 21 (1986).
Even though a standard of review is not an outcome-determinative formula, the bottom line is that the appropriate standard of review, and an appellate court‘s intellectually honest adherence to it, can generally determine the outcome of an appeal.
Brooks, 323 S.W.3d at 911 (quoting Clewis, 922 S.W.2d at 431). We express no opinion concerning the viability of a challenge on the basis that the use of the Jackson sufficiency standard to conduct a factual-sufficiency review violates the Texas Constitution‘s requirement that the decision by intermediate courts of appeal “shall be conclusive on all questions of fact brought before them on appeal or error.” SeeAppellate fact jurisdiction ... should not be confused with the appellate standard of review required to exercise that fact jurisdiction. The state constitution, at most, says that an intermediate appellate court has conclusive fact jurisdiction in both civil and criminal cases. It does not purport to set out the standard of review required to exercise that fact jurisdiction.