Lead Opinion
PLURALITY OPINION
A jury found appellant, Gregory Carl Green, guilty of the first degree felony offense of failure to comply with sex offender registration requirements. See Code Crim. Proc. Ann. arts. 62.102(b)(3), 62.102(c) (West 2006). The jury assessed punishment at eight years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. We previously considered this case, and reversed appellant’s conviction and remanded for a new trial. The Court of Criminal Appeals vacated our judgment and remanded for reconsideration in light of new precedent.
Factual and Procedural Background
Sergeant Rodney Guthrie of the Wax-ahachie Police Department, who supervis
After this meeting, Sergeant Guthrie contacted Billy Graham, the property manager for the landlord at 602 Highland Avenue. Graham told Guthrie that appellant and his wife had moved out of 602 Highland Avenue on or around April 15, 2007. Furthermore, Graham informed Sergeant Guthrie that a new tenant moved into the Highland Avenue residence on April 20, 2007. Sergeant Guthrie also testified he was aware appellant worked intermittently in Arizona for long periods of time and had recommended that appellant register in Arizona. Appellant complied. The Arizona records, entered into evidence, indicate appellant registered in Arizona for employment purposes on April 18, 2007. The Arizona records did not indicate appellant was permanently moving to or living in Arizona.
Billy Graham, the property manager for 602 Highland Avenue, explained to the jury that he never actually saw appellant or his wife move out of the house. Graham testified that he went to the house on or about April 15, 2007, to collect the rent and found the house abandoned, aside from some trash and items of furniture left outside. Graham assumed appellant and his wife had moved and Graham rented the house to a new tenant on April 20, 2007. Graham testified appellant had done yard-work on the Highland Avenue property sometime in March or April of 2007. Graham explained that all of the rent checks he received for 602 Highland during the time appellant and his wife lived at that address came either from appellant or appellant’s parents.
The defense called Catherine Hunt, appellant’s wife, as its only witness. Hunt testified she and appellant moved into 602 Highland Avenue the week before Thanksgiving 2006. Hunt explained appellant spent long periods of time working in Arizona. At some point, while they were living at 602 Highland Avenue, Hunt became pregnant. Hunt testified she was thinking about moving from the property, but appellant did not want to move because he liked their home at 602 Highland Avenue. Hunt said that while appellant was out of town working, he would send her money to pay the bills. Hunt told the
A jury found appellant guilty of failing to report his intended move not later than the seventh day before the anticipated move date. The jury found the enhancement paragraph in the indictment true and sentenced appellant to eight years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.
On appeal, we determined the evidence was factually insufficient to support conviction. After issuing our opinion, the Court of Criminal Appeals issued Brooks v. State,
Discussion
I. Is the evidence sufficient to support appellant’s conviction?
In appellant’s first issue, he challenges the factual sufficiency of the evidence. Specifically, appellant contends the evidence is factually insufficient to show he intentionally, knowingly, or recklessly failed to comply with the sex-offender reporting requirements.
A. Standard of Review
Five judges on the Texas Court of Criminal Appeals have determined that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks,
In a sufficiency review, we view all evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Salinas v. State,
B. Analysis — April 2007 Address Change
A person commits the offense of failure to comply with registration requirements if the person “is required to register and fails to comply with any requirement” of Chapter 62. Code Crim. Proc. Ann. art. 62.102 (West 2006). Under article 62.055(a), “[i]f a person required to register under this chapter intends to change address, ... the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person’s primary registration authority by the department and to the ... officer supervising the person and provide the authority and the officer with the person’s anticipated move date and new address.” Tex.Crim. Proc.Code Ann. art. 62.055(a) (West Supp. 2010). Under the indictment, appellant was charged with failing to comply with this registration requirement (“Requirement”). Under article 62.055(a), appellant was also required to provide proof of his new address to the applicable local law enforcement authority for his new address within seven days after changing the address or on the first date that the applicable authority allows appellant to report. See id. However, appellant was not charged with violating this registration requirement. Appellant was only charged with violating the Requirement.
There is no dispute concerning whether appellant was required to register or whether appellant failed to comply with a registration requirement. The only issue is whether the State proved appellant intentionally, knowingly, or recklessly failed to register his intended address change. See Reyes v. State,
Because appellant did not stipulate to any of his prior convictions for indecency with a child, the State called Officer Robert Allwardt as its first witness. Officer Allwardt gave expert fingerprint identification testimony to show that appellant is the same person convicted three times for indecency with a child in the judgments that the State introduced into evidence. The State had to prove at least two such convictions as part of its burden of proof under the indictment in this case. The State then called Sergeant Guthrie to the stand. In addition to the testimony described above, Sergeant Guthrie testified as follows:
• He is a police officer with the Waxaha-chie Police Department, who supervises and manages the sex offender registration unit.
• When sex offenders living in Waxaha-chie first come in to register, they fill out some documentation, and the sex offender registration unit reviews the registration requirements with the offenders so they understand them.
• After his initial registration appellant had a duty to come in person to the unit every 90 days to verify his registration.
• In addition to such periodic verifications, registered sex offenders are also required to come in person to Guthrie’s office to give notice of any change in their residence address, employment status, telephone numbers, or emergency contacts.
• As to changes in the residence addresses of registered sex offenders, “[p]rior to any address change that [they] have, [they] must notify the registering agency seven days prior to any change that [they are] going to make.”
• Registered sex offenders cannot move whenever they want to do so; rather they “have seven days notification that [they] must give the agency.”
• When appellant first registered in Waxahachie in September 2005, Guthrie reviewed several forms with appellant, including a form that specifies the registration requirements that the sex offender must follow (“Form”). Guthrie reviewed all of these requirements with appellant, as shown by appellant initialing each requirement on the form and signing the form, which was admitted into evidence.
• The Form’s main reason is to spell out each requirement that the registered sex offender must follow. The Form “specifically says that [appellant] must give seven days prior notice of his move or intended move before making that move.”
• Appellant “had to provide the seven days [notice] prior to any move.”
• Appellant did not provide seven days prior notice of his move from 602 Highland Avenue to 1570 Holder Road.
In sum, Sergeant Guthrie’s testimony covered four topics: (1) appellant’s knowledge of the reporting requirements; (2) appellant’s prior conformity with all reporting requirements; (3) appellant’s visit on May 3 regarding the change in address and Sergeant Guthrie’s discovery that appellant had not given notice before this address change; and (4) Guthrie’s discussion with Billy Graham. Sergeant Guthrie’s testimony shed no light on whether appellant had an intention to move from the Highland Avenue address. The State’s final witness was Billy Graham, the property manager at 602 Highland Avenue. Graham testified: (1) he observed appellant landscaping and planting flowers
The testimony at trial shows that Guthrie and the prosecuting attorney both believed that registered sex offenders have to give at least seven days advance notice before any address change. Guthrie testified that appellant was told he had to give seven days prior notice of all address changes. However, the Requirement 1 is triggered only “[i]f a person required to register under this chapter intends to change address.” Tex.Crim. Proc.Code Ann. Art. 62.055(a). In addition, the deadline for reporting this intended address change is not seven days before the date on which the move actually occurs; rather, the deadline is seven days “before the intended change.” Id. There are various situations in which a registered sex offender’s address may change without the offender having any intent to change address prior to the actual change of address. The offender may be barred from his current residence without warning or someone else may move the offender’s property out of the residence and to another address without the offender’s knowledge.
After reviewing the record in this case, we conclude there was no evidence that appellant intentionally, knowingly or recklessly failed to comply with his reporting requirements. Consequently, upon review of the entire record we determine no rational jury could have determined the evidence was sufficient to support a conviction. See Brooks,
C. Analysis — November 2006 Address Change
The State also contends the jury could have found appellant committed the offense as charged because there was some testimony indicating appellant may have violated the reporting requirements when he initially moved to the Highland Avenue address. Sergeant Guthrie testified appellant reported his change of address on November 16, 2006. However, Graham stated appellant moved into 602 Highland Avenue on November 12, 2006. According to the State’s argument, such testimony allows the jury to convict appellant of the alleged violation because the jury charge included “on or about” language. Regardless, for the same reasons the State’s evidence is insufficient to show that appellant intended to move from the Highland Avenue address, the evidence is also insufficient to show appellant intentionally, knowingly, or recklessly failed to report an intended move to the Highland Avenue address. However, Guthrie indicated in his testimony that appellant complied with the reporting requirements when he moved to the Highland Avenue address in November 2006. In addition, for the same reasons stated above as to the April 2007 change of address, the evidence was insufficient to prove that appellant failed to report an intended address change in November 2006.
The majority of the testimony, evidence and arguments made during trial concern the failure to report the move that occurred in April 2007. The witnesses only briefly discussed the November move and the State merely mentioned it in passing during its closing argument. Sergeant
Accordingly, we sustain appellant’s first issue. If, under the review set forth in Jackson v. Virginia, we determine a reasonable factfinder would necessarily entertain reasonable doubt about the defendant’s guilt, due process requires us to reverse and order a judgment of acquittal. Id.; Swearingen v. State,
Because we have resolved the appeal with consideration of the first issue, we do not reach appellant’s second issue. See Drichas v. State,
Conclusion
Having sustained appellant’s first issue, we reverse and render a judgment of acquittal of appellant.
FROST, J., and SEYMORE, J., Concurring.
Notes
. Nonetheless, this does not alter the constitutional authority of the intermediate courts of appeals to evaluate and rule on questions of fact. See Tex. Const, art. V, § 6(a) ("[T]he decision of [courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.”). Amendment of the Texas Constitution may occur only after the Legislature has proposed amendments and Texas voters have had the opportunity to vote on them. Tex. Const, art. XVII, § 1. Therefore, while we acknowledge the Texas Court of Criminal Appeals’ general authority to instruct lower courts regarding the standards of appellate review, we respectfully note that it does not have jurisdiction or au
Concurrence Opinion
concurring.
I respectfully disagree with my esteemed colleagues’ descriptions of the Court of Criminal Appeals’s decision in Brooks v. State. See
I. Abolition of Factual-SuffiCiency Review of Conviction Findings
The Brooks decision marked a turning point in Texas jurisprudence regarding sufficiency-of-the-evidence review of criminal convictions. A historical overview is appropriate to put the Brooks decision in context.
A. Historical Overview
For nine decades, from 1891 until September 1, 1981, the Court of Criminal Appeals had exclusive appellate jurisdiction over criminal cases, and the intermediate courts of appeals did not have criminal jurisdiction. See Tex. Const, art. V, § 5 (amended 1981, 2001); id. art. V, § 6 (amended 1978, 1981, 1985, 2001). During this period, the Texas Constitution provided that “the decision of [courts of civil appeals] shall be conclusive on all questions of fact brought before them on appeal or error” (hereinafter, “Factual Con-clusivity Clause”). Id. Therefore, until September 1981, the Factual Conclusivity Clause could not possibly have limited the jurisdiction of the Court of Criminal Appeals because that provision served only as
There is disagreement as to whether, during this period, the Court of Criminal Appeals reversed any criminal convictions because the finding of guilt was so against the great weight and preponderance of the evidence as to be manifestly unjust.
The opinions in Burks and Greene did not address what legal standard should be used to determine whether the evidence is legally insufficient for the purposes of the United States Constitution. See Burks,
While these legal developments were unfolding, the Texas Legislature proposed and the people of Texas adopted amendments to the Texas Constitution to give the then-existing courts of civil appeals criminal appellate jurisdiction. See Tex. Const, art. v., § 5 (amended 2001); id. art. V, § 6 (amended 1985, 2001). The constitutional amendments, which took effect three decades ago, on September 1, 1981, made the Factual Conclusivity Clause applicable to criminal appeals for the first time. In pertinent part, the amended portions of the Texas Constitution read as follows:
The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatsoever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law.
Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error.
Tex. Const, art. V, §§ 5(a), 6(a). At the same time that these amendments became effective, a revision of article 44.25 of the Code of Criminal Procedure, entitled “Cases remanded,” took effect. In revising this article, the Texas Legislature deleted the statutory language that referred to reversals because the verdict is contrary to the evidence. See Clewis v. State,
In 1990, the Court of Criminal Appeals in Meraz concluded that, under article V, section 6 of the Texas Constitution, intermediate courts of appeals have the power to review the factual sufficiency of the evidence regarding a matter that the defendant has the burden of proving by a preponderance of the evidence. See Meraz v. State,
• If an intermediate court of appeals concludes that the evidence is factually insufficient under this legal standard, then the proper remedy is to reverse the trial court’s judgment and remand for a new trial.
• Though the Court of Criminal Appeals has the power to set the standard of review for this type of factual-sufficiency review, the Factual Conclusivity Clause precludes the Court of Criminal Appeals from reviewing whether a finding on a matter that the defendant must prove is so against the great weight and preponderance of the evidence so as to be manifestly unjust.
• Several prior cases were overruled because in those cases the court incorrectly determined that courts of appeals did not have conclusive jurisdiction regarding “questions of fact” concerning the proof of an issue on which the defendant has the burden of proof and the burden of persuasion.
• The Court of Criminal Appeals was not constitutionally authorized to adopt a standard of review for the court of appeals concerning an eviden-tiary review of the insanity defense that was inconsistent with article V, section 6 of the Texas Constitution.
See Meraz,
Six years later, the Court of Criminal Appeals concluded that intermediate courts of appeals do have this power. See Clewis v. State,
B. The Brooks Decision
After the Court of Criminal Appeals modified the legal standard for factual sufficiency of the evidence to support a conviction at various times between 1996 and 2010, a majority of the judges on the Court of Criminal Appeals determined in Brooks that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks,
C. The Constitutional Basis of the Brooks Decision
The Brooks plurality made the following conclusions:
• The Clewis factual-sufficiency standard is essentially the Jackson v. Virginia legal-sufficiency standard; therefore, the Clewis standard violates double-jeopardy principles. See Brooks,323 S.W.3d at 904-05 .
• The Jackson v. Virginia legal-sufficiency standard is consistent with an intermediate court of appeals’s constitutional grant of jurisdiction to review “questions of law” and “questions of fact” under article V, section 6(a) of*629 the Texas Constitution and with article 44.25 of the Code of Criminal Procedure, authorizing reversal of criminal convictions “as well upon the law as upon the facts.” See id. at 908-10 & n. 42.
• Neither the constitutional grant of jurisdiction to courts of appeals to review “questions of fact” nor article 44.25 requires the courts of appeals to use a legal standard other than legal sufficiency under Jackson v. Virginia to review the sufficiency of the evidence supporting Conviction Findings. See id. at 911.
The Brooks plurality indicated that the Jackson v. Virginia legal-sufficiency standard involved “questions of law” and “questions of fact” and that reversing a conviction for legal insufficiency would be a reversal upon the law and upon the facts. See id. at 908-10. Nonetheless, the Brooks plurality indicated that a court of appeals’s legal-sufficiency review is not a question of fact conclusive upon the high court under the Factual Conclusivity Clause.
D. Vertical Stare Decisis under the Texas Constitution
The Texas Constitution grants intermediate courts of appeals “appellate jurisdiction” in criminal cases in which the trial court has not assessed the death penalty. Tex. Const, art. V, §§ 5(b), 6(a). In the Texas Constitution, the people of Texas do not expressly state that intermediate appellate courts have any power to reverse a criminal conviction determined to be so against the great weight and preponderance of the evidence so as to be manifestly unjust or under any other specific standard.
Under the principles of vertical stare decisis contained in the Texas Constitution, this court must follow the Brooks decision, even if individual justices on this intermediate court disagree with the decision. See Tex. Const, art. V, § 5(a); Clawson,
II. Sufficiency of the Evidence Supporting Appellant’s Conviction
In its opinion, the plurality refers at various times to the “offense of failure to comply with sex offender registration requirements.” See ante at pp. 618, 620, 621. By doing so, the plurality conflicts with Young v. State, in which the Court of Criminal Appeals held that article 62.102 of the Code of Criminal Procedure, entitled “Failure to Comply With Registration Requirements,” is an umbrella statute that creates numerous criminal offenses rather than a single offense. See Tex.Codb Crim.
In his first issue, appellant challenges the factual sufficiency of the evidence supporting his conviction. Appellant filed his appellate brief before a majority of the judges on the Court of Criminal Appeals abolished factual-sufficiency review as to Conviction Findings and held that legal-sufficiency is the only type of evidentiary review available as to these findings. See Howard,
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State,
A. Analysis — April 2007 Address Change
“If a person required to register under [chapter 62] intends to change address, ... the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person’s primary registration authority by the department and to the ... officer supervising the person and provide the authority and the officer with the person’s anticipated move date and new address.” Tex.Code Crim. Proc. Ann. art. 62.055(a) (Vernon 2006). If a person required to register under chapter 62 fails to comply with this registration requirement (“Requirement”), he commits a criminal offense. See id. arts. 62.055(a) 62.102 (Vernon 2006). The only offense charged in the indictment was failure to comply with the Requirement. Under article 62.055(a), appellant was also required to provide proof of his new address to the applicable local law enforcement authority for his new address within seven days after changing the address or on the first date that the applicable authority allows appellant to report. See id. art. 62.055(a). But, appellant was not charged with violating this registration requirement. Appellant was only charged with violating the Requirement. There is no dispute that appellant was required to register; the issue
Because appellant did not stipulate to any of his prior convictions for indecency with a child, the State called Officer Robert Allwardt as its first witness. Allwardt gave expert fingerprint identification testimony to show that appellant is the same person convicted three times for indecency with a child in the judgments that the State introduced into evidence. The State had to prove at least two such convictions as part of its burden of proof under the indictment in this case. The State then called Sergeant Rodney Guthrie to the stand. Guthrie testified as follows:
• He is a police officer with the Waxaha-chie Police Department, who supervises and manages the sex offender registration unit.
• When sex offenders living in Waxaha-chie first come in to register, they fill out some documentation, and the sex offender registration unit reviews the registration requirements with the offenders so they understand them.
• After his initial registration appellant had a duty to come in person to the unit every 90 days to verify his registration.
• In addition to such periodic verifications, registered sex offenders are also required to come in person to Guthrie’s office to give notice of any change in their residence address, employment status, telephone numbers, or emergency contacts.
• As to changes in the residence addresses of registered sex offenders, “[pjrior to any address change that [they] have, [they] must notify the registering agency seven days prior to any change that [they are] going to make.”
• Registered sex offenders cannot move whenever they want to do so; rather they “have seven days notification that [they] must give the agency.”
• When appellant first registered in Waxahachie in September 2005, Guthrie reviewed several forms with appellant, including a form that specifies the registration requirements that the sex offender must follow (“Form”). Guthrie reviewed all of these requirements with appellant, as shown by appellant initialing each requirement on the form and signing the form, which was admitted into evidence.
• The Form’s main reason is to spell out each requirement that the registered sex offender must follow. The Form “specifically says that [appellant] must give seven days prior notice of his move or intended move before making that move.”
• Appellant “had to provide the seven days [notice] prior to any move.”
• Appellant did not provide seven days prior notice of his move from 602 Highland Avenue to 1570 Holder Road.
In sum, Guthrie’s testimony covered four topics: (1) appellant’s knowledge of the reporting requirements; (2) appellant’s prior conformity with all reporting requirements; (3) appellant’s visit on May 3, 2007, regarding the change in address and Guthrie’s discovery that appellant had not given notice before this address change; and (4) Guthrie’s discussion with the property manager for appellant’s residence. Guthrie’s testimony shed no light on whether appellant had an intention to move from the Highland Avenue address. The State’s final witness was Billy Graham, the property manager at 602 Highland Avenue. Graham testified: (1) he observed appellant landscaping and planting flowers around the house in March or
The defense called one witness, Catherine Hunt, appellant’s wife. Hunt testified she moved from the Highland Avenue address without telling appellant until he returned from Arizona. Under the legal-sufficiency standard of review, we presume that the jury did not believe Hunt’s testimony indicating that appellant had no intent to change his address that would trigger the Requirement. Nonetheless, reviewing all of the evidence at trial in the light most favorable to the jury’s verdict, we find no evidence that appellant ever had an intent to change his address that he failed to report not later than the seventh day before the date of the intended change of address. There are various ways that a person’s belongings can be moved out of a residence in the absence of that person intending to move. The testimony of Guthrie and Graham that appellant had moved out of the 602 Highland Avenue residence on or about April 15, 2007, is not evidence that appellant had an intent to move out during this time that he failed to report at least seven days before the date of the intended move.
The testimony at trial shows that Guthrie and the prosecuting attorney both believed that registered sex offenders have to give at least seven days’ advance notice before any address change, regardless of whether the registered sex offender has any intent to move. Guthrie testified that appellant was told he had to give seven days’ prior notice of all address changes. But, the Requirement is triggered only “[i]f a person required to register under this chapter intends to change address.” Tex.Crim. Proc.Code Ann. Art. 62.055(a). In addition, the deadline for reporting this intended address change is not seven days before the date on which the move actually occurs; rather, the deadline is seven days “before the intended change.” Id. There are various situations in which a registered sex offender’s address may change without the offender having any intent to change address prior to the actual change of address. The offender may be barred from his current residence without warning or someone else may move the offender’s property out of the residence and to another address without the offender’s knowledge. Viewing all the evidence in the light most favorable to the verdict, we conclude that, based on that evidence and reasonable inferences therefrom, no rational fact finder could have found beyond a reasonable doubt that appellant ever had an intent to change his address in April 2007 that he failed to report not later than the seventh day before the date of the intended address change. See Simpkins v. State,
B. Analysis — November 2006 Address Change
Most of the testimony and other evidence as well as the arguments of counsel during trial concern the failure to report an intended move in April 2007. The witnesses only briefly discussed the November move and the State merely mentioned it in passing during its closing argument. Guthrie only discussed November briefly and testified appellant had complied with the registration requirements. The first time the jury heard mention of any dates regarding the November move was in the context of appellant following the registration requirements. Graham testified appellant moved into the Highland Avenue address on November 12, 2006, but based that testimony on a receipt for the rent paid by appellant’s parents. Graham did not testify to seeing appellant living at the house on November 12, 2006. Hunt stated she moved into the house the week before Thanksgiving. Viewing all the evidence in the light most favorable to the verdict, we conclude that, based on that evidence and reasonable inferences therefrom, no rational fact finder could have found beyond a reasonable doubt that appellant ever had an intent to change his address in November 2006 that he failed to report not later than the seventh day before the date of the intended address change. See Simpkins,
Under the applicable standard of review, the evidence is legally insufficient to support appellant’s conviction. See Simpkins,
III. Conclusion
The Court of Criminal Appeals is vested with the jurisdiction and authority to abolish factual-sufficiency review of Conviction Findings, and it did so in Brooks. In the case under review, the plurality opinion is not faithful to this court’s analysis on original submission, and contrary to precedent from the Court of Criminal Appeals, the plurality states that article 62.102 contains a single offense. See Tex.Code Crim. Proc. Ann. art 62.055(a) (West Supp. 2010); Young,
SEYMORE, J., concurring.
. Though the Texas Legislature deleted other language from the relevant statute, the Legislature allowed this language to remain during the period from 1981 though the present. See Tex.Code Crim. Proc. Ann. art 44.25 (West 2006).
. Compare Clewis v. State,
.In this opinion, "legally insufficient” means that, viewing all the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
. It is not necessary to address all of the reasons given by the Clewis majority or to address the analysis in the concurring and dissenting opinions in Clewis. See Clewis,
. It is not necessary to address all of the analysis contained in the plurality and concurring opinions in Brooks. See Brooks,
. Likewise, the current version of article 44.25 simply provides that “the courts of appeals or the Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts.” Tex. Code Crim. Proc. Ann. art 44.25.
. Because Justice Seymore joins Part II of this opinion, this portion is a majority and constitutes the opinion of the court. See post at p. 635.
. Because the court sustains appellant’s first issue, the court need not and does not address appellant's second issue.
Concurrence Opinion
concurring.
I concur with the plurality’s judgment. I write separately to address any confusion about this court’s constitutionally mandated conclusive jurisdiction over appellate review for factual sufficiency of the evidence.
In her concurring opinion
Recently, I called for en banc review of this court’s decision to follow, -without question, the Court of Criminal Appeals’s decision to “abolish” factual-sufficiency review in criminal cases. See Temple v. State,
The Brooks plurality’s stated reasons for discarding factual-sufficiency review are unsupportable.
Clewis represented a compromise between long-standing deference to the
First, relative to double jeopardy, a court may set aside a conviction for any unspecified reason and order a new trial because initial jeopardy continues and the case is restored to its position before the former trial. See Lofton v. State, 777 S.W.2d 96, 97 (Tex.Crim.App.1989). The risks of double jeopardy following reversal based on factual insufficiency were fully clarified by the United States Supreme Court in Tibbs v. Florida,
Second, there is persistent irony relative to the Brooks plurality’s concern that application of “a non-deferential standard could violate the right to trial by jury under the Texas Constitution.” Id. at 905 (plurality op.). The Brooks plurality placed unnecessary emphasis on the statutory language establishing the jury as the exclusive judge of the facts and weight to be given evidence. Id. at 908 (plurality op.) (citing Tex.Code Crim. Proc. Ann. arts. 36.13 (West 2007), 38.04 (West 1979); Watson v. State,
In justification of its landmark decision, the Brooks plurality opined that the Court of Criminal Appeals had never tolerated the suggestion that an appellate court could simply disagree with the jury’s verdict. The plurality remonstrated, “Thus, the only way to retain a factual-sufficiency standard ... would be to allow reviewing courts to sit as ‘thirteenth jurors.’ However, our factual-sufficiency decisions have consistently declined to do this.” Brooks,
The Jackson v. Virginia standard of review for legal sufficiency does not fulfill a Texan’s constitutional right to appellate review of his questions of fact.
In an effort to explain their unquestioning acquiescence to Brooks, some of my
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.
Id. at 42-43,
It is also obvious that the United States Supreme Court expressly rejected the contention (accepted as true by the Brooks plurality) that a “distinction between the weight [ (factual sufficiency) ] and [legal] sufficiency of the evidence is unworkable,” noting that “trial and appellate judges commonly distinguish between the weight [ (factual sufficiency) ] and [legal] sufficiency of the evidence” and the Due Process Clause “sets a lower limit on an appellate court’s definition of evidentiary sufficiency.” Id. at 44-45,
My colleagues should question why the Brooks plurality would fully embrace the admonition and instruction from the United States Supreme Court in Jackson but ignore clear definitions and instructions from that same court in Tibbs when responding to a request for constitutionally guaranteed appellate review of the evidence for factual sufficiency. Obviously, there is no factual-sufficiency component in the standard of review for legal sufficiency prescribed by the United States Supreme Court in Jackson. Again, I posit to my colleagues that the conclusion is
Apparently concerned about my vociferous opposition to the Court of Criminal Appeals’s decision to “abolish” appellate review of questions of fact guaranteed by the Texas Constitution, Justice Frost suggests intermediate appellate court judges “honor their oaths of office” by following the dictates or pronouncements of the Court of Criminal Appeals. I respectfully respond that the highest duty under the judicial oath of office is to protect and defend the Texas Constitution.
[I]t [is] not appropriate for this Court to create a standard of review which is in conflict with the language of our State Constitution.
Meraz v. State,
Finally, some of my colleagues have expressed concern that we risk anarchy if intermediate appellate courts do not adhere to all decisions by the Court of Criminal Appeals. However, I respectfully suggest that greater risk for anarchy ensues when the two highest courts in Texas review the same provision in the Texas Constitution and reach diametrically opposed interpretations. Compare Howard,
ANDERSON, J., plurality and FROST, J., concurring and SEYMORE, J., concurring.
. "[T]he decision of [Texas courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.” Tex. Const, art. V, § 6(a).
. I join in Part II of Justice Frost's concurring opinion.
. As Justice Frankfurter succinctly expressed, "A timid judge, like a biased judge, is intrinsically a lawless judge.” Wilkerson v. McCarthy,