*1 KING, Appellant, Earnest Texas, Appellee. STATE
No. 900-93. Texas, Appeals Criminal
En Banc.
March Crawford, Wice, Houston,
Danise Brian W. appellant. Jr., Holmes, Atty. B. John Dist. & Kimber- Yates, Terry ly Aperauch & Asst. Stelter Houston, Huttash, Attys., Dist. Robert Austin, Atty., State’s for the State. APPELLANT’S PETITION OPINION ON FOR DISCRETIONARY REVIEW OVERSTREET, Judge.
I. PROCEDURAL HISTORY charged by indictment with Appellant was knowingly possessing intentionally and co- *2 appellant re- weighing grams by aggre caine less intoxication. A search of than lic gate weight, including any and pipe,” adulterants a an instrument used to vealed “crack dilutants, 29,1991, cocaine, July on or in Harris appellant’s right about smoke crack 17, 1991, County. appellant On December pants The then pocket. front officer admin- by jury was a in the District convicted 178th by scraping test for cocaine istered field County, possession as Court of Hands pipe,” placing and the from the “crack slivers indictment, alleged pun and thereafter in a into a solution which would result slivers thirty-five years ishment was assessed for negative positive or reaction cocaine. Department confinement the Texas positive appellant The test concluded Criminal Justice-Institutional Division. On knowingly and charged later with inten- was appeal, Appeals re the Fourteenth Court tionally possessing cocaine. judgment of versed conviction and ordered judgment acquit the to trial court enter III. King
tal. 1992). COURT OF APPEALS HOLDING App. This [14th Dist.] — Houston the court of Court vacated the Court, from the court of After remand appeals, cause further and remanded the was sufficient appeals held that evidence consideration other evidence noted prove appellant knew that the sub- to knowledge State’s brief demonstrated possession a controlled stance his was of the character of the contraband when because cocaine was visible substance weighed. to substance itself was unable appellant’s pipe” “crack from recovered King (Tex.Cr.App. right pants pocket, pipe” front the “crack 1993). Upon further examination of such damp when recovered. was still with saliva appeals the court of affirmed King v. S.W.2d at 720. King conviction and sentence. (Tex.App. Dist.] S.W.2d 718 [14th IV. 1993). APPELLANT’S CLAIM appellant’s petition granted
We for discre- tionary ground for review review. His sole Appellant claims that because State states, “There was insufficient evidence unweighable amount of co- relied an knowingly appellant possessed a controlled knowingly possessed prove that he caine substance.” substance, controlled and because prove required mens rea failed to State
II. beyond a reasonable element of the offense PERTINENT FACTS SUMMARY OF doubt, was insufficient to con- the evidence knowingly possessed the con- clude p.m. July approximately At 12:05 on He therefore avers that trolled substance. regarding a nar- receiving a call after court of erred in Depart- complaint, cotics the Houston Police presented by was the State suffi- evidence apart- dispatched an local ment officer possession knowing cient Upon complex. arrival officer ob- ment cocaine. approaching him from a dis- appellant served staggering, to be Appellant appeared tance. other, they to each V.
and as
moved closer
strong
of alco-
began
officer
to detect a
odor
STATE’S CONTENTION
trial,
that not
hol. At
the officer testified
was
also
contends that there
indeed
appellant
staggering, he
was
forth,
the conviction
evidence to
swayed
speech
his
sufficient
back
no minimum
re-
slurred,
eyes
glazed
Af-
there is
and his
were
over.
because
a conviction for
determining
quired
“obvious-
sustain
appellant
ter
substance, and even if the
a controlled
ly”
point where he could be
intoxicated
others,
or
is too minute to be measured
appellant
himself
danger
seen,
prove that the de-
pub-
other
can
placed handcuffed and
arrest
testified,
eye.”
the naked
The chemist also
fendant knew the substance in his
present
... was
amount of cocaine
“[T]he
was a controlled substance.
not determine
enough where we could
small
of cocaine
Because the amount
the amount.”
VI.
measured, this Court’s
was too small to be
ANALYSIS
State, supra, is control-
language in Shults v.
*3
ling.
holds that “when
Shults
As with all elements of a criminal
it
small that
possessed
a
is so
substance
offense,
prove the mens rea
the State must
measured, there must be evidence
cannot be
beyond
element
a
doubt. Huma
possession
prove
that
other than mere
(Tex.Cr.
State,
363,
son v.
728 S.W.2d
posses-
in his
knew the substance
defendant
reviewing
App.1987).
appellant’s
claim of
a
substance.” Shults
sion was
controlled
evidence,
insufficient
we must determine
Therefore,
at 30.
appellant
possession of the
whether
had
prove, through other
State must
substance,
appel
controlled
but also whether
knowledge that the sub-
appellant
had
knowledge
possession.
lant had
Men
cocaine.
possession
stance in his
was
(Tex.Cr.
198,
doza v.
29,
App.1982);
Shults
that because cocaine
The State contends
(Tex.Cr.App.1979). The
of review
standard
pipe,”
in the “crack
and because
was visible
appeal
on
for both direct and
same
damp with “saliva”
pipe”
the “crack
was
recovered,
circumstantial
evidence. McGoldrick
proof
when
such was sufficient
573,
(Tex.Cr.App.1985).
knowingly possessed cocaine.
appellant
whether,
inquiry
viewing
The critical
after
the cocaine in
in the instant cause
Since
body
light
the entire
of evidence in the
most
unweighable
microscopic and
is of a
prosecution, any rational
amount,
favorable to the
required
at other
we are
to look
trier of fact could have found the essential
a reasonable trier
facts to determine whether
beyond
elements of the crime
a reasonable
beyond
of fact could have found
a reasonable
Virginia,
doubt.
Jackson v.
443 U.S.
appellant knowingly possessed co-
doubt that
560, 573
record,
99 S.Ct.
61 L.Ed.2d
reviewing
find
caine. After
(1979); Dickey v.
support the
that there is evidence to
State’s
(Tex.Cr.App.1984). In order for the State to
appeals’ finding.
the court of
assertion and
burden,
meet
that the evi
its
establish
appel-
arresting
testified as to
The
officer
support a
dence was sufficient to
verdict
day of
of mind and behavior the
lant’s state
guilt,
evidentiary require
meet two
must
officer,
According
“His
the arrest.
first,
prove
ap
ments:
State must
slurred,
very
speech
he was
incoherent
care,
pellant
actual
control and
exercised
going on
really know what was
that he didn’t
contraband;
management over the
and sec
like he was
going
on....
He was
ond,
knowledge
appellant
had
that the
eyes,
Glazed
he was
another world....
possession
substance in his
was contraband.
swaying
Believ-
staggering,
back and forth.”
(Tex.Cr.
Martin v.
degree
ing appellant
intoxicated to a
App.1988); Herrera v.
himself,
officer
possibly
harm
could
(Tex.Cr.App.1978).
During
placed him
arrest.
a routine
appellant,
the officer testified
search
arrest,
pipe”
After the
the “crack
pipe”
front
he found the “crack
appellant’s person
found on
was submitted to
inside
pants pocket and that it had residue
Department’s narcotics
the Houston Police
appeared to be
damp with what
of it and was
trial,
laboratory for further tests. At
house,
did a
At the station
the officer
saliva.
tests,
chemist,
police
who administered
pipe which indicated
field test on the
analyses
types
that four
of chemical
testified
by police
Later tests
presence of cocaine.
performed on the residue found
were
result.
confirmed this
chemist
pipe,”
“crack
and that these tests revealed
State, supra,
must
facts of Shults
positive presence
of cocaine
The
that there was
testified,
distinguished from the case at hand.
The chemist
within
residue.
posses-
was arrested for
pipe
defendant
Shults
a visible residue
“There was
and, in the
something
the influence
arrest-
sion of a controlled substance after a balloon
amount of heroin
in ing
opinion,
with a trace
was found
officer’s
that he was intoxicated
proved only
her
The State
that she
mouth.
degree
have been harmful
that he could
heroin,
knowingly
not that she
did
Taking
to himself.
all of these factors into
so. This Court held that
must
the State
account,
evidence is suffi-
we find that the
present
than
evidence other
mere
cient
sustain the conviction.
defendant
that the
knew the sub-
stance in her
was contraband.
VII.
State, 575
Shults v.
S.W.2d at 30. There
surrounding
circumstances
her
were no other
CONCLUSION
knowledge
have shown
arrest which could
light
After
the evidence
Therefore,
possession.
this Court reversed
prosecution, we are
most favorable to the
insufficiency
her
because of the
*4
any
trier of
able to
that
rational
fact
conclude
the evidence.
proved
the
could
found that the State
cause,
in
In the instant
the rule of law
beyond
of the offense
essential elements
However,
controlling.
is
Shults v. State
doubt,
is,
appellant
that
that
is other evidence here
shows
there
knowingly possessed
Accordingly,
cocaine.
knowingly possessed
appellant
that
a con-
appeals
of
is af-
the
of the court
pipe
The fact
trolled substance.
that
the
firmed.
body
had
con-
found on
a residue
it
taining cocaine inside of
that
shows
CLINTON,
concurring.
Judge,
pipe
used to smoke
had been
cocaine
question lurking
A
is whether as a
about
past.
pipe
The fact that the stem of
was
itself must
matter
law the substance
be
appeared
still moist with what
to be saliva
of
eye
for a factfinder to
visible to
naked
in
pipe-smoking
probably
shows that the
“knew”
sub-
conclude that an accused
Although
very
past.
recent
the amount
alleged.
unmeasurable,
possessed
is
stance
is that which
unweighable,
of cocaine was
cause,
invisible,
in
must the State
Stated
terms of this
containing
the residue
the co-
and
powdery
that
or other form
establish
visible
pipe.”
visible on the “crack
Addi-
caine was
on, mingled
residue
of cocaine
with
of
tionally, appellant’s behavior at the time of
in,
pipe?.1
obviously
that he was
burned material
a crack
the arrest shows
under
on,
finding
possessing
to
of
Early
the Court seems to
sufficient
sustain
co-
have resolved
basis,
caine).
"knowing possession” on
issue of
a factual
guided
Later,
Act,
case-by-case,
at first
that the
notion
the Controlled Substances
must be a
substance seized
"useable amount."
while a minimal amount
discerned that
State,
See,
377,
e.g.,
quantity,
Greer v.
163 Tex.Cr.R.
292
of marihuana must be a usable
(1956) (former
quantity
S.W.2d 122
narcotic act does not
minimum
of
other controlled sub
possessing
piece
specified.
authorize conviction
small
to
is not
stance
sustain a conviction
127,
heroin);
State,
(Tex.Cr.
containing trace
Pel
128
of wet cotton
Daniels v.
574 S.W.2d
State,
226,
171,
v. State,
623,
App.1978);
Tex.Cr.R.
658 S.W.2d
ham v.
164
298
Johnson
(amount
(1957)
marijuana
capa
(Tex.Cr.App.1993).
the Court continued
be
627
And
173
must
acknowledge
recognize
being applied
usage;
to
amount
to common
conclu
ble of
Greer,
quantita
large enough
supra;
measured
in
must be
to be
consistent with
sion
rule,
knowing
tively
charge appellant
in
that an accused
that would
order to show
“harsh
indeed
alleged.
required
ly possessed
knowingly possessing
the substance
Ibid.
that which it
with
held,
State,
Building
Court soon
microscope
identify)”;
on that basis the
to
Tomlin
(1960) (evi
possessed
"When the
of a substance
Tex.Cr.R.
measured,
spoon,
by qualitatively
eye-dropper
so small that it cannot
residue on
dence of visible
needle,
pos
than its mere
particles
power on
there must be evidence other
as well as
prove
aggregating
micrograms
defendant knew the
paper,
session to
cellophane
capsule
in
was a controlled sub
equivalent
substance
his
to one
3% heroin not insuf
State,
(Tex.Cr.
Greer,
supra);
and
831,
stance.” Shults v.
under Pelham
Coleman
ficient
v.
State,
(Tex.Cr.App.1977)
App.1979).
unweigh
(declining
adopt
This Court never resolved
"visi-
"harsh rule” where
to
bility”
qua
versus "residue”
"ash”
estimated
to
"residue”
able trace of cocaine
from &ooo
ounce);
determining
qua
sufficient evi-
"substance” in
Kent v.
of an
¾28000
cocaine,
(3.2
"knowing possession."
milligrams
finding
dence for
See
(Tex.Cr.App.1978)
627;
Tomlin,
State, supra,
Tomlin
supra,
cf.
in
Johnson v.
twice
of heroin
about
of thumb”
the “rule
instant cause
may
law re
not assume the
The Court
ante,
below,
applica
n.
developed
see
prove
an accused
quires the
to
because,
acknowledge, the
to
as all seem
remaining
pipe
in
ble
the residue
his
“knows
pipe could not
cocaine;”
only weight of the substance
requires
prove
to
the State
King v.
measured.
quantitatively
“knowingly possessed co
the accused
(Tex.App.
As is
charged in the indictment.
caine” as
— Houston
1933).3 Thus,
must be some
there
cases, “knowing possession”
[14th]
true
most
than mere
other
circumstantially, e.g.,
relevant evidence
usually be shown
must
appellant
pipe”
“crack
Arnott v.
pipe
was cocaine.
circum
knew the substánce
(Tex.Cr.App.1973),
and here all the facts and
both
and Daniels
opinions
Shults v. State
stances outlined
the various
factu
supra,
1 ante. The court
permit
factfinder
n.
sufficient
a rational
evidence, i.e.,
just
co
ally
such other
leading to the
found
draw reasonable inferences
pipe
and was still
visible
a crack
appellant knew the “crack
caine was
conclusion that
saliva;
sup
damp
is sufficient
pipe”
cocaine and its
with
contained
appellant
conclusion that
port
its ultimate
“residue.”2
substance.” See
supra,
knew it was a controlled
visible dissenting. Judge, “unmeasurable, unweigh- actual cocaine was Believing it to be contravention Maj. opinion, at 704. able and invisible.’’ statutory proscription to sustain intended implicit- my satisfaction the Court is Thus con- knowing possession of a conviction for ly concluding as a matter of law that so quantity is trolled substance where its n Stateneed “visibility” pow- not establish even impossible to measure small that it is dery cocaine itself to enable or other form of de- sophisticated of scientific with the most jury “knowing possession” find of that that the sub- and there is no evidence vices and, therefore, to con- controlled substance eye, I the naked could be seen with stance proved the essential clude that *6 dissent. alleged beyond a of the offense elements knowing Appellant was convicted for reasonable doubt. grams of twenty-eight possession of less than understanding, join judg- I With that pipe a crack which cocaine found inside ment of the Court. pocket. is an front There removed from his cocaine was of evidence absence MANSFIELD, McCORMICK, P.J., and repeated testimony pipe. The visible J., join opinion. in this pipe that “resi- as to the contents Yet, only explanation was visible. due” BAIRD, Judge, concurring. by any is that it is given witness of “residue” State, v. 574 S.W.2d Under Daniels spit and stuff like of “like a combination v. (Tex.Cr.App.1978), Shults specif- chemist was asked that.” The State’s (Tex.Cr.App.1979), inside the ically cocaine was visible whether of the controlled substance when the amount pipe: quantitatively small that it cannot be is so pipe residue A. There was a visible eye, naked seen with the measured or say. eye. That’s all I can the naked producing other bears the burden demonstrate, explanation as to what a “visible gave no beyond a He will evidence which visibly cocaine was doubt, knowingly residue” was or whether the defendant residue.” of the “visible Additionally, identifiable element evi possessed the substance. co- that the further testified is He possession of the substance of mere dence so small that Shults, the residue was insufficient, caine within at as 575 S.W.2d impossible to- measure.1 container which simple possession of the spec- attorney]. [the Does ultraviolet testimony [Defense the amount at trial revealed that 1. The give you or the trophotometry contents, test] even with too small to measure of cocaine was maybe of contents the amount testing to de- sophisticated mechanisms used present? that was coke content of the substance: termine the chemical may a narcotic such containing a trace of case presented in the instant The scenario following an needle wiped from a forty years this have been nearly is not new. For Greer, In injection.” possession cases has addressed Court was the controlled nor Greer neither Pelham substance was too which the amount of the eye. After naked substance visible measured. See Pelham small to be seen or has consistent this Court (Tex.Crim.App. Pelham and Greer possession was shown knowing 1957); ly held that Greer v. 163 Tex.Crim. and mea (1956). Pelham, could be seen the substance we held that where be seen sured, it could neither but not where possessed must be the amount of substance Compare Coleman use, measured. enough see with nor enough for or at least (declin (Tex.Crim.App.1977) There, eye. with the aid of the naked knowing posses ing uphold microscope, was able to deter the chemist only be identified could sion where substance scrapings taken from the defen mine Pelham) with John microscope, citing particles pants pocket contained of with dant’s (Tex.Crim. however, to ex son v. marijuana; he was unable posses (upholding conviction weight App.1983) press any opinion as to the amount or Pelham, where substance methamphetamine marijuana present. 298 S.W.2d sion of measured” uphold “quantitatively at 172. This Court refused to could be a micro the aid of possession, unlawful seen without conviction for “could be “suffi 170 Tex.Crim. scope”) the amount must be and Tomlin (1960) commonly (upholding convic applied to the use cient to be Id. at 173.2 further heroin col made thereof.” We circumstances where tion under ap micrograms stated lected measured pow or “white peared as “a white substance” taken of the fact that it was Note is der”). chem- microscope of a that the use presence ist was able to determine however, that a con- recognized, We have marijuana dustings were possession of a minute knowing viction for lining appellant’s pock- scraped from the may be controlled substance amount of a indeed, rule et. It would he harsh admitted he the defendant sustained where knowingly charge appellant with would possessed a controlled sub- knew that required a micro- possessing that which it stance. Cantu scope identify. held the (Tex.Crim.App.1977), added). knowing posses- sufficient show holding in Pel- (emphasis Id. Our *7 where the defen- a “trace” of heroin previous opinion sion of ham was consistent with our guilty knowing pos- Greer, voluntarily pled uphold dant in this Court refused to where session, and admit- stipulated to the evidence possession of heroin for unlawful allegations in the indictment were piece of cotton ted of “a small wet on the basis you telling juiy you're Q. that under- many And we can determine In cases [Chemist]. test, get spectrophotometry weight that we from from the numbers stand the ultraviolet spectrophotometer. numbering grams, possible the ultraviolet milli- there is no you Q. that were remember the numbers Do micrograms you grams, could tell us produced you that test? when ran pipe? in that was contained A. Yes. No, possible not to determine A. it was jury. you Q. tell the Could weight. actually absorbant num- These are sorry. A. Sure. possible also testified that it was not The chemist myself. In Let me correct I’m bers. types other from the two to determine not able to determine case I was this weight. were conducted. tests that in amount. So such a small It was actually aren’t case the actual absorbants away subsequently did with the “usable We 2. recorded. standard. Cantu amount” by you not deter- you Q. could What do mean ("usable (Tex.Crim.App.1977) amount” weight? mine the conviction for shown to sustain a need not be encounter sometimes cases that we A. In Act). possession Controlled Substances under sample amount or is such a small there prevents us- us from contains adulterants ing weight. that test to determine reasoning analysis true and correct. Id. Similar revealed that the balloon contained applied delivery marijuana and In sale context. “a small amount of and a trace of Reyes v. Id. at The defendant was heroin.” Crim.App.1972), stipu- we held that where the de charged possession with of heroin and represented selling fendant that he was nar testify that a chemist if called to would lated selling cotics and the substance he was testify that he determined that the substance narcotics, subsequently found contain heroin, found inside the balloon was and knowledge evidence was sufficient to show it was an amount too small to be measured. purposes of an unlawful sale conviction. knowing While the defendant admitted to possession marijuana, she she claimed my erroneously In view we relied on Can- had not known the balloon also contained Reyes tu in Daniels v. Citing heroin. the rule announced in Dan- (Tex.Crim.App.1978), in holding for the pos- iels that when controlled substance might first time other evidence be used quantitatively too to be mea- sessed is small prove knowledge purposes posses- sured, prove other evidence to there must be quantity sion where the of the substance was knowing possession, that al- we concluded Daniels, too small to be measured. though proven that the defen- State had by substance at issue was identified chemical heroin, possessed proven dant had cocaine; however, analysis as it was “neither possessed that she knew she it. Id. quantity quantitatively that could be mea- quantity pharmaco- sured nor a for which a upon by the Given that the cases relied logical effect could be obtained.” Id. at 128. in Daniels did not' the rule We stated that therein, given rule announced that the pos- when the of a substance by has not been utilized this Court to sustain quanti- sessed is so small that it cannot be knowing possession a conviction for tatively measured there must be evidence an statement or con- absence of affirmative prove other than its mere by indicating knowl- fession the defendant that the defendant knew the substance in edge, I reexamine the believe we should his controlled substance. apply- soundness of the Daniels rule before Id. reversed and remanded for a new We ing affirm a conviction. it for the first time to trial since the State had relied circum- knowing posses- Greer, evidence to show stantial The rules set forth Pelham sion,3 and under the circumstantial evidence Cantu, as modified make sense and jury law then but not now existence minimum amount need the. solid law. While no have been had not been instructed should but the Controlled Sub- pertaining on the law to circumstantial evi- Act, stances the State must dence.4 “knowingly intentionally” pos- defendant Daniels, the substance.5 view the evi- however, sessed
This rule announced dence that the amount of the substance was was cited Shults v. measured, minute to be and absent evi- too (Tex.Crim.App.1979), upon by the ma- relied *8 Shults, pipe, dence that cocaine visible inside the jority in the instant case. bal- in and Pelham the rules set forth Greer found in the defendant’s mouth loon was apply. I there is no evidence to during would hold a search conducted while she jail. knowing visiting county support in a friend the Chemical by Considering the the fact that the law of circumstan- 3. The circumstantial evidence relied longer knowing possession protections is no tial evidence with its State in an effort to show viable, substances, open in is to narcotic the rule announced Daniels included "other controlled question methapyriline, on that score alone. paraphernalia, which is an agent to 'cut' cocaine” found on sometimes used premises. Id. at 129. such, deciding it seems to 5.Without the merits of prudent have been more me that the State would possession charged appellant of prior with the abolition of to have 4. Daniels was decided charge drug paraphernalia. Safety in Hankins v. the circumstantial evidence & Code Tex Health 1992). (Vernon § (Tex.Crim.App.1981). 481.125 Ann.
709 circumstances, usually it was clear 28 such weighing of cocaine less than legal suffi employed was one of grams. standard ciency, and not a factual or no MEYERS, Judge, dissenting. review, sufficiency as was common such v. appeals. of civil See Gold courts fundamental, jurisdiction appel is Because 685, (Tex.Crim.App.1987) 697 obliged they late courts are to assure J., (Teague, dissenting). jurisdiction proceeding have of a case before it, adjudicate prompted by whether only perspective simplified not This parties appears or not. If it to the do so wholly consistent appellate process, but was jurisdiction, court that it does not then requirements process of due with the may appeal, not it consider merits of Louisville, Thompson v. 362 criminal cases. but must dismiss the case without further (1960). 199, 624, 4 U.S. 80 S.Ct. L.Ed.2d 654 Primrose v. 725 elaboration. S.W.2d however, Supreme 1979, the United States (Tex.Crim.App.1987); v. 254 Jacolos is rule that the “no evidence Court decided (Tex.Crim.App.1985); 724 against misap- inadequate protect simply 750 Thompson 626 S.W.2d of plications of the standard constitutional Crim.App.1981); McDougal v. doubt,” expressly reasonable abandoned (Tex.Crim.App.1981); Welch v. S.W.2d that criminal convic- favor of rule 218, McDougal, (Tex.App.— sup- process of law unless tions violate due Lee, 1994); Fandey Amarillo justify a ported by evidence to “sufficient 1994); (Tex.App. Paso H.E. — El beyond guilt of the facts to find rational trier Inc., Bay, Grocery Butt Co. Virginia, doubt.” Jackson v. 1991). (Tex.App. Corpus Christi — 2785-86, 307, 312-13, 99 S.Ct. U.S. (internal jurisdiction quotation We do not have of this case.* marks 61 L.Ed.2d omitted). It in this of “deeision[s] is law State that appeals] courts of shall be conclusive on [the Jackson, many years spite after For brought all fact before them on of contrary, clear its Const, V, § appeal or Tex. art. error.” insist that Court continued Before this so-called “factual conelusivi if there conviction should be “sustained jurisdiction ty” clause irrelevant to the believed, which, if shows evidence Court, not review of this since did deci State, 643 guilt of the accused.” Combs Rather, at all. sions courts (Tex.Crim.App.1982), quot evidentiary only di
we addressed issues on ing Banks v. from and, appeal criminal at rect convictions added). (Tex.Crim.App.1974) (emphasis years immediately preceding least Eventually, that this method was we realized discretionary review, generally advent set expressly repudiated it. mistaken and factfinding judge jury aside a of the trial probative if no to the no evidence standard there was evidence of Adherence decade, now, Although this and has last value to it. been no expressly It is insufficient under forbidden Jackson. often described * evidently "there was Judge recognizes this case to decide whether that there is a review in Clinton Consequently, jurisdictional problem he is appellant possessed here. evidence that sufficient opinion "implicit- eager to claim that the Court’s substance[,]” Op. Court's controlled ly matter as a of law the State concludes] "visibility” whether is an element to debate powdery "visibility” co- need not establish Sub- the Controlled cocaine “knowing jury caine enable to find itself to actually argument If an were stances Act. such Op. possession” substance[.]” controlled here, Judge opin- join I Clinton's involved ion, would matter, Certainly, empirical as an visibil- at 706. *9 contended, no one has ever of course. But prove knowing ity need be established to not contend, "visibility” anyone nor would ever Judge possession. I do not what But understand According- statutory a of the offense. element says Clinton means when Court by appel- ly, presented questions of are law no a matter of law” reached this conclusion "as and, contrary Judge petition Clinton to the lant's factfindings position unless it is his become by notwithstanding, have been resolved none makes matters of law whenever a court them. discretionary granted petition appellant's Court. We longer permissible merely quote depends essentially upon view whether the Jackson standard and then to turn around issue is one of fact or of law. apply Thompson no evidence stan- itWhen comes to the review of evidence on historically dard as we have done. There- appeal, long by it has been held the Texas
fore, expressly part we overrule that of Supreme Court evidence is insufficient Combs, upon that relied the no evidence support as a matter of law to an affirmative language quoted from [.] Banks finding of an issue when the record tending contains no evidence whatsoever Butler v. short, legal insufficiency In Crim.App.1989). issue. by solely application is determined of the no- Nowadays, when upon we are called evidence standard. determine whether evidence adduced at trial Ablon, Express Baggage Electric & v.Co. support is sufficient to a conviction under the (1920), 110 Tex. is an S.W. by test enunciated the United States Su- early opinion illustrating proposition. Jackson, this preme longer Court in we no affirm Supreme There the Texas Court was called upon finding the conviction a that there is upon to review the decision of a court of any support in the record to it. appeals reversing judgment short, of a district officially accept we now that the kind remanding court and a trial for new because appellate of routinely per- review which we support the evidence was insufficient to evaluating sufficiency form in of evidence jury’s finding upon contributory an issue of governed by is not a no-evidence standard. negligence. Although urged to hold that the It follows from this that a court question sufficiency by of had been waived assessing cannot avoid appellant’s acquiescence in the submission of trial, credibility of evidence adduced at trial, jury Supreme issue at Court subjective judgment impli- reach a of its nevertheless declined to disturb' the lower cations, but to determine whether a known appellate explanation, court’s decision. Its subjective judgment of the institutional upon propositions based of law which were factfinder rational. This constitutes considered well-settled even sets out appellate review of the facts. rudimentary principles evidentiary review Gold, J., (Teague, at 693 dissent- appellate which are fundamental to the now ing). relationship between this and the Tex- Court realization, spite appeals. as courts of of this belated yet appreciate upon failed to its effect sup- Whether there is evidence in appellate relationship between this Court and is, port finding jury of a or verdict of the appeals. particularly the courts of This is But, purely simply, question law. given surprising acknowledge- our recent support where there is some evidence to ment, resistance, years after of irrational jury, finding question or verdict of the conclusivity” applies that the “factual clause sufficient, in whether it is the estimation of appellate review of criminal convic- Ap- or trial court the Court Civil just appellate tions as it does to the review of verdict, finding peals, such a judgments. civil Meraz v. fact, is a and not one of law. (Tex.Crim.App.1990). In both contexts [citations omitted] precisely the distinction between law and fact questions upon defines those which decisions Moreover, when, case, appellate final. intermediate courts are decision and of the Court of Civil fact, Questions by if reviewable the courts Appeals upon the facts no not turn [sic] all, only by at are reviewable those law, question purely they are Questions ultimately courts. re- law final, they subject in the sense that are not by Supreme in civil viewable the Texas by to review this Court. cases and this Court criminal cases. Ablon, Accordingly, (emphasis whether this Court has authori- 213 S.W. ty discretionary original). to address an issue on re-
711 ... so weak the “evidence is but whether distinguishing method of between This unjust” wrong and clearly be] fact for it questions [would and of questions of law Supreme verdict. As the firmly uphold the appellate is so purposes of review Jackson, emphasized it jurisprudence Texas that Court of settled subject satisfy debate may has not been to serious a of modicum evidence A mere least nearly years. a At courts for hundred Any evidence standard. no evidence 1898, our estab early Supreme tendency as Court any has relevant —that is any appellate of evi- evaluation lished existence of an element make the dentiary sufficiency employing the no- than it would slightly probable more crime presents of fact question evidence standard be deemed the evidence—could be without v. San the Texas Constitution. Choate not serious- mere modicum. But it could Co., Ry. A.P. 44 S.W. Antonio & 91 Tex. of evi- argued that such a modicum ly be (1898). The Court adhered to support 69 has a con- rationally could itself dence since, has been position although ever there beyond a doubt. viction years disagreement in recent considerable (internal 320, 99 at 2789 S.Ct. 443 U.S. process of the itself. about nuances review marks, citations, ellipses omit- and quotation Estate, 244 King’s E.g., In re 150 Tex. ted). (1951); Goulding, 497 Traylor 660 S.W.2d clearly recognizes law case most Our own (Tex.1973); Caterpil Cropper v. S.W.2d applications when it comes to this distinction Co., (Tex.1988); Tractor lar routinely relief, corpus we for habeas where Corp., Brine v. Texas Lofton sufficiency will entertain claims but refuse to (Tex.1989). Calvert, also Evidence’ See ‘No com cognizance no-evidence ingly take Error, Points and Evidence’ ‘Insufficient McLain, parte plaints. Ex (1960). Nevertheless, ap Tex.L.Rev. 361 Williams, (Tex.Crim.App.1994); parte Ex plication precepts of these has been basic Yet it (Tex.Crim.App.1986). remarkably ap courts of consistent in the virtually ignore this difference our habit is peals. recently one such wrote: As court day-to-day exercise of our discretion reviewing sufficiency legal chal- When simply it is not ary review function. And and lenge, only we consider the evidence Every yet issue. no one has raised the challenged supported inferences that obligation on its own has an to notice court contrary jury finding, disregard all juris pending within its whether a case falls any If evidence and inferences. there do not. and to dismiss those which diction probative support evidence force so, at least clear if this were not it is Even finding, point of be over- error must problem was case law that from our finding upheld. ruled and the recently as 1990 by this Court as recognized for factual suffi- record 2n. in Arcila v. all the ciency, this Court examine must specifi (Tex.Crim.App.1992), opinion evidence, and, having considered had cally reserved the whether weighed all of the should set the interme authority review decisions of is so the verdict if the evidence aside involving questions courts appellate on diate great finding against weak or so sufficiency of evidence. preponderance evidence weight and have past should the time we It is well clearly unjust. wrong The sufficien- squarely. this issue addressed Syal, 836 Virani is, as the support cy evidence to (citations 1992) App. [1st Dist.] Supreme Court and courts Texas omitted). held, question of always a repeatedly law. constitutional analogous purposes Texas strikingly fact for The latter standard is true the standard same is whether prescribed States Su The to that the United required by Due Process Virginia, 443 U.S. review is preme Jackson v. (1979). Constitution of the United States Clause 99 S.Ct. L.Ed.2d by the decision- instances, analogous imposed model an is not whether both issue appli- verdict, long as the courts. So al law of Texas can be found to *11 legal sufficiency, eagerness cable criterion is not or no- their obvious to have the last word the courts are final subject, they again on this overlooked evidentiary sufficiency arbiters of they power fact that have no lawful State Texas. Appeals review the Court of on a misdirection, years fact. After thirteen By ignoring jurisdictional impediment finally put right. we should the matter Per- discharge discretionary of our review haps it that too late to confess function, imperil indefinitely finality we clothes, though Emperor has no even he has of convictions which we have reversed the parading very long been about naked for appellate decision of an intermediate court time. holding the evidence insufficient to sustain conviction. We should have learned this les- discretionary Appellant’s petition for re- Schuessler, recently parte son in Ex jurisdic- view should be dismissed for want of where, (Tex.Crim.App.1993), S.W.2d 850 in a tion. post-conviction corpus proceeding, habeas were constrained to declare one of our own just judgments
final void be such considerations, course,
basis. Like attend
our review of lower court decisions guilt constitutionally
the evidence of to be
sufficient for conviction. good example.
The instant cause is a Appeals Fourteenth Court of in Houston af OFFICE OF UTILITY PUBLIC firmed the of conviction because COUNSEL, Appellant, constitutionally found the evidence suf appellant ficient for a rational conclusion knew the substance he was co OF PUBLIC UTILITY COMMISSION King caine. Lighting TEXAS Houston & 1993). usual, App. [14th Dist.] As Company, Appellees. Power pausing without to consider whether the Tex No. 3-92-518-CV. permits appellate further re Constitution conclusion, una view such a this Court Texas, Appeals Court of bashedly granted appel declares that “[w]e Austin. petition discretionary review [to lant’s ... [t]here determine was insuffi whether] Aug. appellant knowingly pos cient evidence that Maj. Op. sessed a controlled substance.” proceeds
702. The Court then to review the
evidence, concluding “any rational trier fact found that could have
proved the essential elements of the offense doubt, is,
beyond appel Maj. knowingly possessed Op.
lant cocaine.”
at 704. respect my
With all due learned col- apparent they
leagues, it is are not Ap- the decision of the Court of Instead,
peals upon any point of law. it is they simply redoing sufficiency
plain
analysis already done the lower court appellant’s guilty knowledge evidence of strong enough persuasive enough
justify a criminal conviction. Because of