*1 1990); vacating employ, Cropper similar to we without (Tex.1989); v. Ew Cedillo reference to the merits its Enter., Inc., len Although petition publication applica This action was taken because overruled, nothing ability peti- bars granted in the tion should never have been to tioners seek reconsideration court place. suggestion, first dissent’s practice light this court’s argument de we at least hear oral before vacating concerning opinions. improvident, gain would nying writ 90(c) Tex.R.App.P. (permitting reconsidera- nothing. petitioners Since the constitu publication time tion of clearly that the result tion so foreordains prior ruling by Supreme appli- on same, remain the oral would error). cation writ needlessly petitioners hope false give parties and cause the to incur additional HIGHTOWER, attorney’s fees. SPECTOR, JJ., join concurring again jurisdiction To take of this case second-guess appeals’ the court of re- sufficiency evi- view the require would us to continue dence. This case to the court of to send the back i.e., they “get right,” until the until reaches a result accord court This with our view of the evidence. do, so not and cannot for to do would must HAVNER, al., Roger petitioner, et appeals’ constitutional usurp the court of role. its court STORES, INC., respondent. E-Z MART per our instructions. 825 S.W.2d No. D-2771. It of the factual conducted a review 462. evidence, sufficiency defi- found of Texas. cient, for a new trial. 832 and remanded Feb. sought 374. Havner court and the dissent would
again
once
remand this
of the evidence.
appeals for a third review
our
to what the
For
court
do
Schwartz,
Johnson,
Tyler, Coy
Robert R.
justices
require
us to would
us
want
do
Sulphur Springs,
petitioner.
ignore
limitations on our own
constitutional
jurisdiction: “the decision
said
[of
Harrel, Texarkana,
D.
A.
Alan
Michael
questions
conclusive
all
appeals] shall be
Hatchell,
Smith,
Gregory
Tyler,
D.
for re-
appeal or
them on
before
spondent.
V,
error.” Tex. Const. art.
§
must
mere-
Just
a court
Denied, February
Writ
Error
for that
substitute
second-guess the
must not
jury,
GONZALEZ, Justice, concurring on
As
review.
of Error.
Application
Writ
denial
shortly after Pool
we observed
(Tex.1986):
Co.,
287
DOGGETT, Justice, dissenting
to Order
ly wrong decisions. It is no different
denying Application for Writ of Error as
suggest that
should or could restrict
granted.
improvidently
appeals' constitu-
or abolish the courts of
authority
questions,
to review fact
move,1
extraordinary
majority
opin-
merely because there are occasional
order of December
our recent
withdraws
little deference to
ions that reflect too
improvi-
16,
application,
1992
Pool,
judgment
jury.
of the
715
See
dently granting a cause even before
(discussing
S.W.2d at 635
such “occasion-
opportunity
present
parties have had
opinions).
al”
the full court. This ac-
once,
appellate
ques-
three
and
review
tion is undertaken
times,
recently granted applica-
regarding
peacefully co-existed for al-
tions have
Finlay
Deposit
tions. See also
v. Federal
fifty years,
one hundred and
(Tex.1993) (or-
344
Corp.,
Ins.
849 S.W.2d
thoroughly
are
rooted in our constitution
31,
granting applica-
der
1992
of December
judicial system. Aside from the in-
“improvident”);
tion withdrawn
Cabre-
escapable fact
this court cannot
Inc.,
247
Cedarapids,
ra
847 S.W.2d
v.
constitution,
pre-
we are not
amend the
31,
(Tex.1993) (order of
1992
December
pared to sacrifice either for the benefit
“improv-
granting application withdrawn
of the other.
ident”).
time,
During
the law did not
Co.,
754
Cropper v.
change,
nor did the
of the
(Tex.1988).
646,
S.W.2d
652
issues at stake diminish.
duty
As to our
to ensure that
lower
be,
surely
as this
Remarkable
standard of re
surprise
have
comes as no
to those who
view,
However,
accept
duty.
I fully
closely
opinions
recent
observed
growing tendency of the
reflecting
applying
standard of
un
majority
past decisional law.2
to overrule
King’s
der In re
244
Supreme
rely
Those
on Texas
who
S.W.2d 660
Pool v. Ford
increasingly at
precedent
do so
decisions
Kerr,
715
629
See,
S.W.2d
What we
1992
peril.
e.g., Boyles
their
(Tex.1992)
jury
(reversing
ver-
yo-yo
should avoid is the
effect when WL 353277
surreptitiously
of woman
dict
favor
majority
keeps reversing
of the court
videotaped during sexual intercourse
of the court of
until it
Supreme
overruling landmark Texas
majority approves.
reaches a result that the
relied).
she
upon
which
Corp.
v. Texas Brine
720
Lofton
(Tex.1986)
curiam) (remand
(per
804
S.W.2d
under-
history
particular
review);
for second
Lof
reversing
the De-
scores the unfairness
Corp.,
ton v. Texas Brine
application
that the
cember determination
(Tex.1989) (remand for third factual suffi
granted.
be
Diana Havner was
review).
ciency
Powers &
See also William
by E-Z
overnight
at a store owned
clerk
Ratliff,
Jack
Another Look
“No Evi
Stores,
Sulphur Springs.
Inc.
at.
Evidence,"
Mart,
acquisition
69
dence” and
its recent
“Insufficient
existing
(1991).
shop,
dismantled all of the
533
Tex.L.Rev.
precedent,” encompassing
more
"a dozen or
None of the cases cited
Justice Gonzalez in
action,
wholly unjustified
deci-
defending today's
Court cases and countless
84
Texas
6
286-287, provides
parallel prece
appeals”);
Carrollton-
sions of the courts
writing provide
slightest
Edgewood
Indep.
his
dent. Nor does
Sch. Dist. v.
Farmers Branch
grants
Dist.,
(Tex.1992)
rationale for the
in Cabrera
Indep.
826 S.W.2d
Sch.
J.,
Cedarapids
Finlay
Deposit
dissenting) (discussing rejection
v. Federal
Ins.
(Doggett,
Corp.
issued less than one
of its own decision
year previously);
Guaranty Co.
Stewart Title
(Tex.1991)
(Doggett,
Packer,
Sterling,
Walker v.
J.,
J.,
disregards
prece-
(Tex.1992,
dissenting) (majority
orig. proceeding) (Doggett,
dis-
case).
dent, looking
senting) (noting majority's
instead to overruled
"mass execution
the trial court’s
systems3 nor
secu-
did
initiate
Grant,
rity
measures at that location.4 One morn-
reviewing
the store
ing,
carefully
officer discovered
dissent
an articulate
unlocked,
empty,
cash
record,
pointed
all of the evidence
missing,
although
her car was
Havner
conflicts between
out numerous
*3
later, her
parked
days
out
front.
Four
writing and our
badly
body
mutilated
was found.
decision, particularly in the manner
earlier
Id.
at
expert
testimony.
considering
daughters,
parents
her
Havner’s two
against E-Z
her estate
suit
375-79.
a
of her
damages
suffered as
result
the
fami-
After careful consideration
The trial court rendered
death.
error,
in Decem-
ly’s application for writ
finding
the
jury’s
the
that
em-
based
eight points, all of
granted
ber this court
provide
place
ployer’s failure to
safe
legal
to the
stan-
objections
which raise
abduction,
work was a cause of Havner’s
appeals.5
employed by
court of
the
dards
the
rape and murder. After
(Tex.App.1992).
judgment, held there this court suddenly hear- is not worth their cause deed, the failure some evidence that I ing. adequate security precautions Mart to take the was a cause of death. SPECTOR, JJ., join in remanded We for its further consid- points relating insufficiency eration of By holding the
the evidence. evidence failing negate
causation insufficient death, possible causes of Havner’s
other previously S.W.2d at 459. stated: 3. As this court store, Sulphur Springs owner the reluctantly recognizing to en 5.While security Shop-a-Minute, had installed two the lower courts sure the alarm, (1) “panic set button” mechanisms: review, Gonzalez would standard register, just below the cash under counter jurisdic responsibility here: “To take shirk that alarm, (2) which could be a necklace announces, again,” "is to he tion second-guess employ- around the neck and under worn appeals' review of Designed company to be activat- ee’s smock. sufficiency of evidence." 846 S.W.2d factual silently unobtrusively, devices could ed these King's at 286. re signal to alarm unit in the back transmit a that this court established would, turn, relay of the store which notwithstanding jurisdiction, the final take Upon help station. call for judgments ity of the courts sys- acquisition, E-Z Mart disconnected this legal if questions, to a correct fact determine tem, been maintained for which could have applied intermediate had been standard a month. §8.00 In Pool courts. Additionally, at the evidence S.W.2d at 459. 1986), (Tex. how courts of delineated “installfed] revealed that E-Z Mart trial insufficiency perform re incoming telephone permitted man- determination whether to facilitate our views emergen- precluded outgoing agement calls but just had not been standard cy Id. calls.” recited, applied. In Justice Gonzalez’s but also view, however, announce a standard these cases disregard for trial of E-Z Mart's 4. Evidence at will not enforce—here result safety employee included: foreordained,” "constitutionally quest justice reasonably priced and the Havners’ mecha- two more At least available, nothing hopes.” including “false commercially is dismissed nisms were Nothing "foreordained" triggered by Id. constitution “clip," removal mon- wrong; only today’s action ey placed the cash within from alarm, hopes justice of the Havner fami located be- dashes a foot-activated “toebar” Further, Alarm, feigned security ly. register. Justice Gonzalez's concern neath the cash effect," "yo-yo avoiding con testifying id. at experts at trial enforcement law today’s abrupt sys- types tradicted retraction of these stresses the family argu robbery to be heard in deterring and in avoid- tems both in ing employee injury. ment.