Delair WATSON, Appellant, v. The STATE of Texas.
No. PD-469-05.
Court of Criminal Appeals of Texas.
Oct. 18, 2006.
In the present case, counsel did talk to applicant and members of the family, and the interviews afforded the opportunity to talk about the abuse applicant now alleges he suffered. I respectfully disagree with the Court‘s claim that reasonably competent counsel would have known, at the time he represented applicant in this case (1994-1997), that he had a duty to specifically raise the topic of abuse in the absence of any indication whatsoever that any abuse had occurred.
Betty Marshall, Asst. State Prosecuting Attorney, Austin, for State.
OPINION
PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON and HOLCOMB, JJ., joined.
We granted the State‘s petition for discretionary review in this cause to address the question whether the court of appeals can reverse a conviction on the basis of factual insufficiency of the evidence even when it believes that the evidence preponderates in favor of guilt, consistent with our opinion in Zuniga v. State.1 Moreover, we granted discretionary review on our own motion to address the further question whether we should undertake further clarification of the Clewis2 standard for factual-sufficiency review as articulated in Zuniga. We now recognize that the Zuniga re-articulation of the Clewis standard represents an inadvertent distortion of factual-sufficiency review as historically conducted by this Court and its predecessors, and to that extent we overrule it.
I. FACTS AND PROCEDURAL POSTURE
The appellant was prosecuted for the burglary of a habitation during which he allegedly attempted to commit sexual assault. The jury convicted him of this offense and assessed his punishment at thirteen years’ confinement in the penitentiary. On appeal he challenged both the legal and factual sufficiency of the evidence. The Tenth Court of Appeals found the evidence legally sufficient.3 However, finding the evidence factually insufficient, the court of appeals reversed the conviction and remanded the cause for a new trial.4 On the authority of our opinion in Zuniga, the court of appeals held that, even though the evidence preponderated in favor of finding an intent to commit sexual assault, it was nevertheless factually insufficient to support a finding of such an intent to a level of confidence beyond a reasonable doubt.5 We granted the State‘s petition for discretionary review to determine whether Zuniga does 3
II. FACTUAL-SUFFICIENCY REVIEW BEFORE CLEWIS
The authority of criminal appellate courts in Texas to reverse criminal convictions on the basis of factually insufficient evidence did not begin with our opinion in Clewis. Criminal appellate courts in Texas have always had, within their constitutional “appellate jurisdiction,” the authority to review criminal convictions for what we now call “factual sufficiency” of the evidence. This includes the authority to reverse cases we would now regard as supported by “legally sufficient” evidence when the verdict nevertheless seems to be against the great weight and preponderance of the evidence. That authority has been codified in all former incarnations of what is now
A. Bailey, Smith and Bishop
The authority of criminal appellate courts in Texas to review factual sufficiency derives from the Texas Constitution. Both Bigby, and later Clewis, cite a trio of very old Texas Supreme Court cases for the proposition that criminal appellate courts in Texas have the authority, within their constitutionally endowed “appellate jurisdiction,” to conduct a factual review. None of these cases, Bailey v. Haddy,9 Republic of Texas v. Smith,10 and Bishop v. State,11 purports to hold that such a factual review embraces what we now call a “factual sufficiency” analysis. But each confirms that, first under the 1836 Constitution of the Republic, and then under succeeding state constitutions, the Supreme Court‘s appellate jurisdiction over criminal cases included the power to revise the case “upon the law as upon the facts.”12 This is precisely how a majority of this Court would come to construe these cases in Bigby.13
B. Tollett and Loza
Among the very earliest cases to address sufficiency of the evidence were Tollett v. State15 and Loza v. State.16 In each of these cases, the respective courts conducted an analysis that, to the contemporary ear, sounds much like what we would now call a “legal sufficiency” analysis. Neither Tollett nor Loza explicitly holds that the factual jurisdiction of criminal appellate courts in Texas includes the power to conduct a factual-sufficiency review, per se. But they do not rule it out either, and, like the earliest Texas Supreme Court cases, they do confirm the general factual jurisdiction of criminal appellate courts. Nevertheless, other cases from this period from the Texas Court of Appeals, the direct predecessor of this Court, demonstrate that the Court well “understood the nature and extent of its power to review jury verdicts for evidentiary sufficiency, albeit not then labelled ‘legal sufficiency’ and ‘factual sufficiency.’ ”17 Some of those cases utilize language that sounds distinctly as though it belongs in the latter category.18
C. Walker
In Walker v. State, the Texas Court of Appeals (the direct predecessor of this Court) undertook a detailed analysis of the prior case law touching on the question of evidentiary sufficiency.19 From that analysis the Court distilled the following “rules of practice“:
From a careful consideration of the cases in which this subject has been discussed, we deduce the following rules of practice governing this court, viz:
First. Where the evidence is conflicting, and there is sufficient, if believed, to prove the case of the State, the jury being the exclusive judges of the credibility of the testimony, their verdict will not be set aside unless it clearly appears to be wrong. Second. Where there is no testimony to support it, the verdict will be set aside.
Third. Where the evidence is insufficient to rebut the presumption of innocence, the verdict will be set aside.
Fourth. Where the verdict is contrary to the weight of the evidence, it will be set aside.20
The discussion that the Texas Court of Appeals undertook in Walker just before it set out these “rules of practice” seems manifestly to contemplate multiple and variable standards of sufficiency review, not variations on a single standard. The Walker rules even include a standard whereby the Court was authorized to reverse a conviction “though there was evidence sufficient to support it.”21 In its entirety, omitting string citations, the Walker discussion reads as follows:
With reference to the authority of this court to set aside a verdict when that verdict is, in our judgment, against the weight of the evidence, or not supported by it, we think the statute confers it.
Article 870 of the [1879] Code of Criminal Procedure provides: “The Court of Appeals may revise the judgment in a criminal action, as well upon the law as upon the facts; but when a cause is reversed for the reason that the verdict is contrary to the weight of evidence, the same shall, in all cases, be remanded for a new trial.”With reference to trials by jury it is provided: “The jury are the exclusive judges of the facts in every criminal cause.” (
[1879] Code Crim. Proc., Art. 676 ) And again it is provided: “The jury in all cases are the exclusive judges of the facts proved, and of the weight to be given to the testimony, except,” etc. ([1879] Code Crim. Proc., Art. 728 .)While Article 870, above quoted, expressly confers the authority to revise the facts, and to reverse the judgment for the reason that the verdict is contrary to the weight of evidence, it has been the general practice of this court to refuse to set aside a verdict where the evidence was conflicting, but where there was sufficient, if believed, to support the finding.
But even in such case, where it was manifest that the verdict was wrong, and it was clear that injustice had been done the defendant, it has been set aside, though there was evidence sufficient to support it.
And it has never been doubted, but has always been considered by this court, not only that it had the authority, but that it was its duty to set aside a verdict where that verdict was contrary to the evidence, or unsupported by it, though it is with reluctance that the court will disturb a verdict where there is any evidence to sustain it.22
It could not be more clear from this discussion that the Texas Court of Appeals deemed itself authorized to reverse convictions under a number of distinct scenarios, 202122
It is also imperative to note the Texas Court of Appeals‘s reference to the predecessors of present-day
After Walker, in cases of conflicting testimony or evidence, the Texas Court of Appeals continued to measure sufficiency of the evidence by inquiring, inter alia, whether the verdict was against the great weight of the evidence.25 In several of those cases the Court reversed the convictions, expressly finding the evidence to be, indeed, against the weight of the evidence.26
D. Factual-Sufficiency in the Texas Court of Criminal Appeals
When the Texas Court of Appeals became the Texas Court of Criminal Appeals in 1891, we continued to exercise our constitutionally endowed factual review authority to review cases for factual suffi-
We believe that the verdict of the jury is against the great weight of the testimony; that every apparent inculpatory fact has been met by the testimony for the defendant and made to consist with his innocence, except Ellard‘s testimony that he saw defendant in the pasture. This we believe to be a mistake, and a very reasonable and common one.28
Nothing about this reversal is consistent with what we today regard as a “legal sufficiency” analysis. It was a reversal on factual insufficiency, pure and simple.
Again, in 1912, we reversed a conviction for the crime of seduction on account of insufficiency, in Murphy v. State.29 Although the complainant, a teenage girl, testified that Murphy promised to marry her before she submitted to have intercourse with him, the corroborating testimony placed any promise of marriage at a time after the intercourse occurred. For his part, Murphy denied the sexual inter-2728293031course even occurred, and the circumstances tended to bear out his denial. We observed that:
While the jury is the judge of the credibility of the witnesses and the weight to be given the testimony, yet we are authorized to look to see if there is any testimony, or that it is so slight as not to authorize a finding therein against the great preponderance of the testimony.30
Although it is arguable that the case could have been reversed on legal insufficiency, i.e., the failure of proof of corroboration statutorily required to convict, the Court nevertheless clearly resorted to the language of factual sufficiency.
In both Rochetszky v. State,31 and Green v. State,32 the prosecution presented eyewitness testimony of dubious reliability. In the former, a prosecution for sale of intoxicating liquor, the defendant “presented unusually strong testimony of alibi.”33 In the latter, a rape case, the complainant had made no outcry until it was discovered that she was pregnant, and her account struck the Court as, “to say the least, slightly out of line.”34 While reversing both cases, we did not resort specifically to language with respect to the weight of the evidence. But both cases invoked then-Article 939 of the Code of Criminal Procedure (now Article 44.25) as authority for reversing a conviction “as well upon the law as upon the facts.” Indeed, in Green we expressly acknowledged that, under the statute, “this court may reverse a judgment upon the facts; we hesitate to interfere with the verdict of the jury in any case, but it is our duty to do so when there
In Villareal v. State,38 the defendant was convicted of murder and sentenced to death. The evidence was circumstantial as to exactly how the homicide occurred, the witnesses having only heard the offense, but not seen it. The defendant testified that he killed the deceased in self defense, while the deceased was on top of him and choking him. A physician testified for the State that the fatal wound had come from behind the deceased, thus contradicting the defendant‘s account, and supporting the State‘s case of murder with malice, a capital offense. Nevertheless, this Court reversed the conviction. Invoking Article 848 of the 1925 Code of Criminal Procedure,39 now Article 44.25, we observed:
[W]e are not to be understood as saying that the evidence may not be strong enough to support a conviction for murder, but that the mind of this court upon an examination of this record is left in such a condition that we are desirous that the evidence should be passed upon again by another jury.
* * *
In reaching our conclusion in this case we have not overlooked the general rule, frequently announced, that the credibility of witnesses and the weight to be given their testimony exclusively rests with the jury and the lower court. Further, that this court will not pass on the sufficiency of the evidence unless there is an entire failure of proof; and that the amount of punishment is the jury‘s special province. However, we do find that this court has upon occasion applied such rules with a degree of laxity where, under the facts of such cases, it appeared that the conviction was unjust or that the punishment was harsh or unreasonable.40
It is hard to imagine a more starkly candid exercise of criminal appellate factual juris-383940
E. The Ascendancy of Legal Sufficiency
In 1979, the United States Supreme Court recognized for the first time, in Jackson v. Virginia,42 a minimum federal due process standard for sufficiency of the evidence below which a state court conviction cannot be sustained.43 The Supreme Court also held that this legal standard for evidentiary sufficiency could be vindicated by the federal courts in federal habeas corpus proceedings.44 But while Jackson v. Virginia does impose upon the states a constitutionally minimum legal sufficiency standard,45 it does not (and could not, consistent with principles of federalism) prevent the states from applying sufficiency standards that are more solicitous of defendants’ rights.46 Thus, nothing about Jackson impacts the legitimacy or fate of factual-sufficiency review in criminal cases in Texas.
Nonetheless, within six months after Jackson was decided, this Court announced in White v. State,47 apparently for the first time, that we lack factual-review authority, and therefore “we do not have jurisdiction to pass upon the great weight and preponderance of the evidence[.]”48 The Court predicated this holding on the so-called “factual conclusivity clause” in
Three years later we mistakenly relied upon White to support the observation, in Combs v. State,52 that we lack the authority to make “determinations of sufficiency of the evidence ... passing upon the weight and preponderance of the evidence.”53 Following that observation, we immediately dropped a footnote in which we globally (and equally mistakenly) de-42434445464748
F. Factual Sufficiency Makes a Comeback
In 1994, in Bigby, we expressly overruled White, and reinvigorated our own appellate jurisdiction to review facts and make factual-sufficiency determinations.57 The question in Bigby was whether this Court had authority to conduct a factual review of a jury‘s determination of an affirmative defense. In addressing this question, we corrected the mistakes of White and Combs to hold that criminal appellate courts in Texas have always had factual review jurisdiction, conferred by both the Texas Constitution and by
Clewis simply continued the restoration of appellate factual jurisdiction in
III. FACTUAL-SUFFICIENCY REVIEW SINCE CLEWIS
The basic ground rules for post-Clewis factual-sufficiency review were well articulated in Cain v. State.62 First, the appel-
The only substantive adjustments to these basic ground rules have come in two cases, Johnson v. State,66 and Zuniga v. State.67 In Johnson, the Court broke down factual-sufficiency analysis into two prongs. The first prong asks whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless “so weak” that the jury‘s verdict seems “clearly wrong and manifestly unjust[.]”68 The second prong asks whether, considering conflicting evidence, the jury‘s verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence.69 This adjustment simply brings the Clewis standard in line with civil practice, and with factual-sufficiency review in criminal cases from the earliest days in Texas. After all, the Johnson adjustment, in its essentials, merely reflects the first and fourth “rules of practice” set out more than a hundred and twenty years ago in Walker.
IV. ZUNIGA
The far more radical adjustment was made in Zuniga. Zuniga represents an attempt, not to alter the factual-sufficiency standard of previous cases, but to re-articulate it in terms specific to the particular level of confidence that due process requires in criminal cases, viz: proof beyond a reasonable doubt. Our express intention was to eschew any formulation of the standard that would incorporate language of “preponderance of the evidence,” since that is a lesser burden of proof, not applicable in criminal cases. Thus we said:
There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?70
Thus articulated, the standard for factual sufficiency seems barely distinguishable from a Jackson v. Virginia legal sufficiency analysis. The only apparent difference is that the appellate court, using the Zuniga standard, is to measure the rationality of the jury‘s verdict by viewing all of the evidence from a “neutral” standpoint, rather than “in the light most favorable to the verdict.” That is to say, it need not indulge the presumption that is built-in to a legal sufficiency analysis that the jury, “faced with a record of historical facts that supports conflicting inferences ... resolved such conflicts in favor of prosecution[.]”71
Nevertheless, the distinction is a real one, and might have served as an acceptable reformulation of the factual-sufficiency standard, standing alone. But we apparently created a problem when we elaborated on our reformulation, first in the following vein:
However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.72
This reformulation of the standard begins to make sense only when one remembers that it is not a legal sufficiency standard. In other words, we are not now asking whether the jury could rationally have found the defendant guilty beyond a reasonable doubt, having presumably resolved all conflicts or ambiguities in the evidence in favor of the prosecution. (Presumably 72
Thus, when the Court in Zuniga referred to evidence that is factually insufficient because it is “too weak to support a finding of guilt beyond a reasonable doubt[,]” we must have meant that the evidence would not satisfy the appellate court‘s own threshold of proof beyond a reasonable doubt. And when the Court said that “the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met,” we must have meant that the weight and credibility of the exculpating evidence is so great that the appellate court itself feels compelled to harbor a reasonable doubt as to the defendant‘s guilt. This understanding is problematic, however, because it smacks of an appellate court simply opting to “disagree” with the jury‘s verdict—something we have never before tolerated even in the “factual sufficiency” context. That an appellate court would have acquitted a defendant on the same facts that convinced a rational jury to convict has not ever, by itself, met our criteria of a “manifest injustice.”
The problem is exacerbated by what our Zuniga opinion says next:
This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can ‘outweigh’ the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.74
This re-re-articulation of the standard is particularly troublesome. The first sentence (upon which the court of appeals relied in the instant case) suggests that evidence legally sufficient to convict may still be factually insufficient if it merely “preponderates” in favor of guilt, rather than establishing guilt beyond a reasonable doubt. Thus, even if, viewing all of the evidence in the light most favorable to the verdict, the appellate court concludes that a rational jury could find guilt to the requisite level of confidence beyond-a-reasonable-doubt, that same appellate court should order a new trial if, viewing that same evidence neutrally, it is subjectively convinced by no more than a preponderance of the evidence. The second sentence suggests that even when the State‘s evidence of guilt is more weighty and more credible than the defendant‘s contrary evidence, and therefore “preponderates” in favor of guilt, an appellate court could find that it does not meet its own threshold level of confidence beyond a reasonable doubt, and reverse and remand on that basis.
It is in the very nature of a factual-sufficiency review that it authorizes an ap-74
We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An appellate court judge cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. Nor can an appellate court judge declare that a conflict in the evidence justifies a new trial simply because he disagrees with the jury‘s resolution of that conflict. We have always held that an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury‘s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial. We have never, at least until Zuniga, interpreted the factual review jurisdiction of criminal appellate courts to include the ability to overturn a jury verdict and remand for a new trial when the greater weight and preponderance of the evidence actually favors conviction! To the extent that Zuniga may be to read to allow such a reversal, it was flawed at the outset and has a clear potential to cause far more reversals for factual insufficiency than was ever contemplated by either Clewis or the many cases within the last 125 years that have inquired into factual sufficiency.76 It is therefore, to that extent, overruled.
CONCLUSION
Accordingly, we reverse the judgment of the court of appeals and remand the cause to that court for a reconsideration of the appellant‘s factual-sufficiency claim in light of this opinion.
HERVEY, J., filed a dissenting opinion, in which KELLER, P.J., and KEASLER and COCHRAN, JJ., joined.
COCHRAN, J., filed a dissenting opinion in which KELLER, P.J., and KEASLER and HERVEY, JJ., joined.
HERVEY, J., dissenting in which KELLER, PJ., KEASLER and COCHRAN, JJ., joined.
In another decision meant to “clarify” Clewis,1 the Court overrules a less than three year-old, 7-judge majority opinion in Zuniga,2 which was also meant to “clarify” Clewis. The reader should notice that, in addition to overruling Zuniga, the Court‘s opinion also overrules a significant portion
The Court‘s opinion disavows that part of Clewis stating that Texas courts apply the Jackson v. Virginia legal sufficiency standard “in such a way that the only evidence a reviewing court considers is the evidence that supports the verdict.”5 See Watson v. State, 204 S.W.3d at 414 (Jackson v. Virginia legal sufficiency standard requires a review of “all the evidence“) (emphasis in original). This misstatement of the Jackson v. Virginia standard by Clewis formed a very significant portion of Clewis’ rationale that a factual sufficiency standard was needed to overturn convictions that are “unjust” under Jackson v. Virginia with Clewis’ 40-nun hypothetical6 used to illustrate such an “unjust” conviction. This, of course, requires the reader to accept that a verdict that is rational under the beyond a reasonable doubt standard under Jackson v. Virginia can at the same time be “clearly wrong” or “manifestly unjust.” See Watson, Op. at 417.7
The Court‘s opinion also disavows a significant portion of Cain. With the Court recognizing that the Jackson v. Virginia standard requires an appellate court to consider all the evidence, this means that the only difference between a Jackson v. Virginia legal sufficiency review and a Clewis factual sufficiency review is that the former requires the appellate court to defer to the jury‘s credibility and weight determinations8 while the latter permits the appellate court to disagree with the jury‘s credibility and weight determina-45678tions.9
Notwithstanding the foregoing, the issue of whether Texas appellate courts have factual sufficiency jurisdiction in criminal cases is a matter of legislative intent subject to a Boykin analysis. This requires an interpretation of
Prior to 1981,
It, therefore, seems clear that the Legislature very carefully insured that there would be no factual sufficiency jurisdiction in criminal cases when it amended
Finally, while purporting to retain a [factual] sufficiency standard that is “more solicitous of defendants’ rights,”18 the Court‘s retention of this standard is actual-
With these comments, I join Judge Cochran‘s dissent.
COCHRAN, J., dissenting in which KELLER, P.J., and KEASLER and HERVEY, JJ., joined.
I respectfully dissent. For the reasons set out below, I believe that further efforts to clarify, refine, or revise the Clewis standard are as unlikely to succeed as our previous attempts. The Clewis factual-sufficiency review was a well-intentioned but ultimately unworkable effort to incorporate civil standards of review on elements of a crime that must be proven beyond a reasonable doubt. I would overrule Clewis and return to the single standard of review for sufficiency of the evidence in a criminal case as set out by the United States Supreme Court in Jackson v. Virginia.1 Therefore, I would reverse the court of appeals and uphold the trial court‘s judgment because the evidence supporting appellant‘s conviction was legally sufficient under the Jackson standard.
I.
Appellant was charged with burglary by entering Jennifer Romo‘s home without consent and attempting to commit or committing sexual assault. The evidence at trial showed that, on a warm June afternoon, Jennifer Romo was at her kitchen screen door, watching her two pre-school children play in the yard outside her Waco apartment, when she noticed appellant jogging across the parking lot toward her. Jennifer turned around and went back into her kitchen. When she turned around again, appellant was standing at her screen door. He stuck his head and body halfway through the door and put his foot in the doorway. Appellant tried to have a conversation with Jennifer and kept saying that he knew her. Appellant was wearing gym shorts, and Jennifer could see that he had an erection. Finally she told him to leave, and he did.
Jennifer went into her living room, but a few seconds later she heard the screen door open again. She turned around and saw appellant standing inside her kitchen. She was “extremely” angry and a little bit scared. She started forward, screaming at him to get out of her house, but he didn‘t move. “He just stood there, and he looked at me, and he just dropped his shorts, and they just fell.” His penis was sticking out. Jennifer turned around and grabbed a butcher knife. She testified, “I pointed it at him, and I told him that he better leave my house, that he better get out.... He just looked at me, and he grabbed the end of my knife.” Jennifer twisted the knife to get it out of his hands. Finally, he let go of it. Jennifer said, “I guess he thought I meant business because he picked his shorts up and he walked out of the house.” Jennifer thought that the reason appellant
Jennifer watched as he walked back across the parking lot and sat down on a porch. Jennifer called her father, who told her to call the police. When Officer Arnold arrived a few minutes later, appellant was still sitting on the porch. After talking with Jennifer and taking her statement, Officer Arnold arrested appellant, who gave him a false name. Officer Arnold formed the opinion that appellant was trying to cover up his culpability.
The defense presented no evidence, but appellant made a motion for instructed verdict. He argued that the State failed to offer sufficient evidence to prove appellant “attempted to commit or actually committed a sexual assault[.]” The State conceded that there was no evidence that appellant actually committed sexual assault, but argued that
there are plenty of things that he did that go to his attempt to commit a sexual assault. He pulled down his pants. He exposed his erect penis, and, critically, he grabbed for a knife when she had grabbed a knife to protect herself. He didn‘t turn and run away. He put his hand out, and he grabbed that knife, and that tells me that his intent was something more than just to expose himself to her.... There was a reason why he came into her house. He pulled his pants down. He was ready to do something to her. You heard her testify that she had one second—in one second, she had that knife in her hand. Just because he never got the opportunity to grab her or pull her clothes off, attempt to sexually assault her any further, doesn‘t mean that the pulling the pants down and the grabbing of the knife were not an attempt to sexually assault her. And that is some evidence. It‘s enough evidence that the jury could find beyond a reasonable doubt that he did attempt that offense.
The trial judge denied the motion for instructed verdict, and the jury convicted appellant of burglary and sentenced him to thirteen years’ imprisonment.
On appeal, appellant argued that the evidence was both legally and factually insufficient. In a published opinion, a majority of the court of appeals held that, although the evidence was legally sufficient, it was factually insufficient because “the evidence which tends to support the verdict ‘preponderates’ in favor of conviction but still [is] insufficient to prove the elements of the crime beyond a reasonable doubt.”2 Chief Justice Gray dissented, setting out the inculpatory evidence and concluding, “I guess my response to the majority opinion—‘You have got to be kidding‘—makes me irrational, along with 124 jurors and the trial court.”3
II.
Should a Texas jury‘s “guilty” verdict be subjected to two distinct “sufficiency of the evidence” hurdles on appellate review? The first hurdle, Jackson, is the constitutionally required review for legal sufficiency of the evidence.4 The second hurdle was created by this Court in Clewis and draws from Texas civil standards of review. Since Clewis was decided ten years ago, we have made frequent, but largely futile, attempts to clarify the differences between these two theoretically distinct sufficiency hurdles in criminal cases. It is 4
In Jackson v. Virginia, the Supreme Court of the United States held that constitutional due process requires reviewing courts to “determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”7 In assessing the sufficiency of evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”8 The Supreme Court explained:
This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder‘s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.9
Under Jackson, appellate courts review a claim attacking the sufficiency of evidence in a criminal case to determine whether the State produced enough evidence to support a “rational” factfinder‘s guilty verdict beyond a reasonable doubt. A “rational” verdict is one that is “based on reason“; it is “not foolish or silly“; it is “sensible.”10 It is a verdict “based on, or guided by reason, principle, fairness, [and] logic[.]”11 To ensure that the original factfinder‘s weight and credibility decisions are given sufficient deference, the Supreme Court requires reviewing courts to view all of the evidence in the light most favorable to the prosecution.12
In conducting a factual sufficiency review, the court of appeals “views all the evidence without the prism of ‘in the light most favorable to the prosecution’ . . . [and] sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”13
On its face, this test differs from the Jackson standard in two ways: (1) the evidence is not viewed in the light most favorable to the State (which is simply a proxy for deference to the factfinder, either judge or jury); and (2) the verdict, even if rational and reasonable under Jackson, is examined to see if it is so contrary to the overwhelming weight of the evidence, that it is manifestly wrong and unjust. The issues that have bedeviled this Court and the courts of appeals for the past ten years include: (1) what, precisely, do those two prongs mean; (2) how does the Clewis standard differ from the Jackson standard; and (3) to what extent is the court of appeals statutorily or constitutionally empowered to act as a thirteenth (and in absentia) juror? More broadly, do these standards differ sufficiently to require such a dramatic difference in result—acquittal versus retrial? And finally, as a matter of public policy, what is the injustice or legal problem that a factual-sufficiency review is intended to solve? Does it do so satisfactorily? I do not think so.
To adequately address these issues, however, one must examine the historical development of both Texas and federal appellate review standards for the sufficiency of evidence in criminal cases.
A. Origins of Texas Appellate Review of the Sufficiency of the Evidence.
Even in the days of the Texas Republic, the Texas Supreme Court could review the sufficiency of evidence to support a criminal conviction. The earliest known case is Republic of Texas v. Smith,14 an 1841 decision, in which the Supreme Court of Texas addressed the threshold question of whether a criminal defendant had a right to appeal “the facts” as well as “the law.”15 Finding that it had jurisdiction “to have the facts as well as the law, at [the defendant‘s] election, opened for re-examination,”16 the supreme court reviewed the defendant‘s claim that, although he was charged with dealing faro17 in Austin, venue was improper in Travis County because, at the time of the offense, Austin was in the territorial jurisdiction of Bastrop County.18 The supreme court said that it would “consider the decision of the district judge, with an eye both to the law and the facts as shown by the record.”19 It rejected the defendant‘s venue claim.20
The next important decision dealing with “the facts” in a criminal case, was Bishop v. State,21 decided in 1875. A jury convicted Bishop of stealing a cow from Mrs. Lizzie Hill. There was conflicting evidence on whether he “appropriated” the cow in good faith by purchasing it from a man named Keel, or he fraudulently took it from Mrs. Hill.22 The jury charge, however, omitted the statutory word “appropriation”23 and its definition. Given the conflicting evidence on the sole disputed fact issue, this was a material error.24 The trial judge committed a second material error when he told the jury that, in civil cases, “the jury must believe all evidence given before them until the same is impeached, and in a criminal case they may discard from their consideration any part of the whole of the testimony that they may regard as improbable.”25 The supreme court condemned that statement as infringing upon the jury‘s right to make its own credibility decisions, and it noted that “many improbable things actually do occur, and when detailed in evidence as part of any matter under investigation they are not to be discarded from the consideration of the jury because they are improbable.”26 It is the jury, not the trial judge (and not the appellate court), that makes credibility decisions.27
These two cases have been cited as supporting the view that Texas appellate courts are authorized to conduct a review of the factual sufficiency of evidence in criminal cases.28 They provide no such support. Instead, Smith explained that the Texas Supreme Court had jurisdiction over an “appeal” from a criminal case, including both the facts and the law, not merely over a “writ of error” which, under the early English common law, was a for-
In 1875, the supreme court did review the sufficiency of evidence in Tollett v. State,30 and, in 1877, the newly created court of appeals did so in Loza v. State.31 In both cases, the reviewing court held that there was not “legal and competent evidence” establishing an element of the offense: in Tollett, the prosecution failed to prove that the defendant participated in a theft from a storehouse;32 in Loza, the prosecution failed to prove that the defendant had the intent to permanently deprive the owner of his gelding.33 The courts used a single sufficiency-of-the-evidence standard:
whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence as would render it safe to allow the verdict to stand and become a precedent in the adjudication of offenses under the law. The performance of this duty on the part of the court is the exercise of a legal discretion and judgment as to what facts should be sufficient to rebut the legal presumption of innocence to which every one is entitled who is put upon his trial for an offense.34
This sounds very much like the Jackson standard appellate courts now use for assessing legal sufficiency of the evidence. And it was the only standard used. There were not two distinct “sufficiency of the evidence” hurdles in the early Texas years. But, like Smith and Bishop, both Tollett and Loza have been cited as supporting the view that early Texas courts were authorized to consider “factual” as well as “legal” sufficiency of the evidence in a criminal case.35 In fact, Smith, Bishop, Tollett, and Loza were all properly decided under a Jackson-like standard alone; a separate factual-sufficiency analysis was neither made nor necessary to their resolution.
The most important case discussing sufficiency of the evidence was the court of appeals‘s 1883 decision in Walker v. State,36 in which the court set out four categories or zones to use in analyzing the
First. Where the evidence is conflicting, and there is sufficient [evidence], if believed, to prove the case of the State, the jury being the exclusive judges of the credibility of the testimony, their verdict will not be set aside unless it clearly appears to be wrong.
Second. Where there is no testimony to support it, the verdict will be set aside.
Third. Where the evidence is insufficient to rebut the presumption of innocence, the verdict will be set aside.
Fourth. Where the verdict is contrary to the weight of the evidence, it will be set aside.37
Walker was apparently the first Texas case to specifically set out the “zone” theory of sufficiency analysis, one that has historically been used to determine whether a party has shouldered his burden of proof by a preponderance of the evidence.38 In zone one, under Walker, the appellate court upholds a criminal conviction when there is sufficient evidence to prove the State‘s case (even though the evidence may be conflicting), unless “it clearly appears to be wrong.”39 Walker‘s zone two is a “no evidence” standard, and that means no evidence or a mere modicum or scintilla. Zone three is “insufficient evidence,” more than a mere scintilla but not enough to “rebut the presumption of innocence,” i.e., not enough to meet Jackson‘s “beyond a reasonable doubt” standard. Zone four is a verdict contrary to the “weight” of the evidence; this zone translates to the modern Texas civil standard of “against the great weight and preponderance” of the evidence.40 Missing is zone 5—the modern civil standard of “conclusive evidence“—because the State is
In Walker, the court held that the evidence was “insufficient” (zone 3) to prove that the murder victim had actually died because the State failed to show that the body retrieved 600-900 miles down the Brazos River was actually that of the missing man—W.B. Mathis.41 Thus, the court reversed the defendant‘s murder conviction and remanded the case for another trial, giving the State hefty hints on how to produce sufficient evidence in the retrial.42 Walker has been cited as supporting both a legal and factual sufficiency of the evidence review,43 even though the court‘s decision was fully consistent with the Jackson standard alone.44
In sum, case law before the creation of the Texas Court of Criminal Appeals held that the evidence in a criminal case was required to be “sufficient” to support a conviction and that evidence was measured against one single standard, but there were various ways of expressing that standard. When the evidence was insufficient, the case was remanded for a second trial.
B. Texas Appellate Review of Sufficiency of the Evidence from 1891-1976.
The 1876 Texas Constitution stripped the Texas Supreme Court of jurisdiction over criminal cases and created the Texas Court of Appeals that had jurisdiction over all criminal, county court, and probate appeals.45 A majority of the delegates to the Constitutional Convention of 1875 were progressives and largely anti-government; they were not particularly interested in the judiciary or the structure of state courts, but they had great faith in juries—their fellow citizens.46 Indeed, every Texas constitution had enshrined the right to a trial by jury in both civil and criminal cases, and, under the 1876 Constitution, that right to a jury trial “shall remain inviolate.”47
In 1891, the Texas Constitution was amended in two important respects. First, because the overburdened supreme court was so far behind on its docket, the legislature created three courts of civil appeals which had intermediate appellate jurisdiction.48 “The theory in creating the courts of civil appeals apparently was that their decisions would be final in most civil cases.”49 To help ensure that goal, the constitutional provision creating the courts of civil appeals also stated that “the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error.”50 This “factual conclusivity” provision did not grant any new, implicit factfinding authority to the courts of civil appeals; instead, it limited the jurisdiction of the supreme court.51 The supreme court was to confine itself to weighty legal principles and conflicts in the law.52 The courts of civil appeals could then consistently apply those enduring legal principles to varying facts, but whenever the law otherwise permits or requires a determination of “the facts” for some purpose in an appeal, the decision by a court of civil appeals on those questions of fact was conclusive.53 The “factual conclusivity” provision applies only to those factual questions which a statute or other law requires or permits.54
A second 1891 constitutional amendment created the Texas Court of Criminal Appeals that had exclusive appellate jurisdiction over criminal cases.55 The court of criminal appeals reviewed issues concerning the sufficiency of the evidence exactly as the Texas Supreme Court and the Texas Court of Appeals had done before it: one single standard of review, but many different ways of articulating that standard. Here are some examples:
- “If the guilt of appellant is not made to appear to a reasonable certainty, it is the duty of this court to reverse the judgment“; and [every element] “must be proven beyond a reasonable doubt; proved by facts and circumstances which lead with reason-
able certainty to the conclusion sought, and not left to speculation and surmises[.]”56 - “This court will not reverse unless there is such a manifest lack of evidence as to make it apparent that the verdict was the result of prejudice or that such verdict is against the great weight of the evidence.”57
- “The sanctity of the verdict of the jury is such that it must not lightly be annulled in any case, but the law does not contemplate that one shall suffer because of the verdict when the evidence, viewed in its strongest light from the standpoint of the state, fails to make his guilt reasonably certain.”58
- “[T]his court will reverse a case on the insufficiency of the evidence only when the testimony, viewed in its strongest light from the standpoint of the State, fails to make guilt of the accused reasonably certain.”59
- “Ordinarily if facts be proved from any source which, if believed, would warrant the conclusion of guilt, the evidence is sufficient to support the conviction.”60
- “The jury is not bound to accept all or any of the testimony of a witness, even though uncontradicted. It is not the prerogative of the appellate court to interfere with the jury‘s finding on questions of fact where there is evidence authorizing their verdict.”61
- “[T]he jury has been made the exclusive judges of the facts proven and the weight to be given to the testimony . . . this court does not, and should not, assume to exercise the right to reverse on the facts, unless the evidence, when viewed in its strongest light from the standpoint of the State, fails to make guilt reasonably certain.”62
“In reviewing the sufficiency of the evidence to support the conviction,
Until Clewis in 1996, this Court had consistently used a single standard (although the precise phrasing varied) and reviewed the evidence in the light most favorable to the factfinder, giving great deference to the jury‘s credibility and weight determinations. But it did not hesitate to reverse a conviction if the evidence failed to prove a defendant‘s guilt “with reasonable certainty,” or “beyond a reasonable doubt.” Until Jackson in 1979, the result of a finding of insufficient evidence in Texas was always the same: remand and retrial. There was no acquittal on appeal when the evidence was insufficient. So matters stood until the United States Supreme Court mandated a constitutional, due process review of sufficiency of the evidence for all courts.
C. The United States Supreme Court Announces Constitutional Standards of Review and Double Jeopardy Consequences of Insufficient Evidence.
In 1979, the Supreme Court, in Jackson v. Virginia,64 held that the Due Process Clause of the federal constitution requires the government to produce “sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.”65 The Court explicitly rejected a “no evidence” standard of review that it had applied nineteen years earlier in Thompson v. Louisville.66 In Thompson, the Supreme Court had concluded that “we find no evidence whatever in the record to support these convictions. Just as ‘Conviction upon a charge not made would be sheer denial of due process,’ so is it a violation of due process to convict and punish a man without evidence of his guilt.”67 In Jackson, the Court explained that the “no evidence” doctrine “secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty[,]”68 but that standard is inadequate for “a question of evidentiary ‘sufficiency.‘”69 Instead, the correct standard must incorporate the prosecution‘s burden of proof—beyond a reasonable doubt—in a due-process review. The Court noted that a “reasonable doubt’ has often been described as one ‘based on reason which arises from the evidence or lack of evidence.‘”70 For example, a reasonable doubt might arise because the verdict is manifestly against the great weight and
In sum, due process does not permit legal sufficiency of the evidence to be measured by a “no evidence” (zone 1) standard; it must be measured in terms of the prosecution‘s constitutionally-mandated “beyond a reasonable doubt” burden of proof (which does not correlate to any of the “zones” in civil review standards fashioned on the “by a preponderance of the evidence” burden of proof), but giving great deference to the jury‘s role in assessing credibility, weight, and reasonable inferences.74
The Jackson “legal sufficiency” standard is the one required by the United States Constitution, and every state and federal court must comply with that standard.75 It is the only standard required for reviewing sufficiency of the evidence. While noting that “states are free to set higher standards of review[,]” this Court quickly adopted the Jackson standard for the review of sufficiency of the evidence.76 We adhered to that single, constitutionally mandated standard for seventeen years.77
Similarly, the Texas Legislature declined hints in Griffin that it could set a higher
The legal consequence of a finding of insufficient evidence under the Jackson standard is an acquittal on appeal; any retrial is barred by double jeopardy principles.78 However, in its 1982 decision in Tibbs v. Florida,79 the Supreme Court held that, if a state chooses to conduct a factual, as well as legal, sufficiency review, double jeopardy does not bar a retrial.80 The Supreme Court explained,
A reversal on this ground, unlike a reversal based on 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. . . . Similarly, an appellate court‘s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.81
Thus, an appellate reversal based on the weight of the testimony “simply affords the defendant a second opportunity to seek a favorable judgment” because such a reversal can occur only after the State has produced sufficient evidence to convict and has persuaded the jury to convict.82
Ironically, the Florida Supreme Court had, in the Tibbs case itself, jettisoned its judicially created “factual sufficiency” review because it was conceptually flawed and unworkable in practice.83 Although it noted that a state rule of criminal procedure allowed a trial judge to grant a motion for new trial if the jury verdict is “contrary to the law or weight of the evidence,” the Florida Supreme Court concluded that “an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact.”84 “Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.”85 The court recognized that the language in some earlier opinions was ambiguous and could be interpreted as calling for a review of factual sufficiency, but the notion of factual-sufficiency review had “a questionable historical foundation.”86 Furthermore, the court concluded that “[c]onsiderations of policy
D. Texas Standards for Reviewing the Sufficiency of Evidence to Reject an Affirmative Defense.
The first time that this Court directly addressed the concept of factual-sufficiency review was in Schuessler v. State,91 a 1986 case in which the court of appeals had held that the jury‘s rejection of his affirmative defense of insanity was against the great weight and preponderance of the evidence.92 This Court rejected that standard, even for affirmative defenses in which the defendant bears the burden of proof by a preponderance of the evidence—a civil law standard—because there can be “no reweighing or reclassifying of the evidence by the appellate court.”93 This Court then applied—to the rejection of an affirmative defense—the same Jackson standard of legal sufficiency that it routinely applied to the elements of the criminal offense.94
Judge Clinton dissented because the issue of insanity is not an element of the criminal offense and thus is not governed by the due process standard set out in Jackson.95 He explained,
When an affirmative defense is not an element of an offense charged and Winship is not implicated by allocation of burden of proving an affirmative defense, it follows that “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction” prescribed by Jackson v. Virginia is irrelevant to a review of sufficiency of evidence relating to an affirmative defense. The trier of fact was not called on to view the evidence in the light most favorable to the prosecution in order to find “the essential elements of the crime beyond a reasonable doubt.” Rather, its
function was to determine whether an accused has proved an affirmative defense “by a preponderance of the evi- dence.”96
Judge Clinton‘s position was adopted four years later in Meraz v. State,97 a case in which the defendant appealed the jury‘s rejection of his plea of incompetence. In Meraz, this Court applied the civil law factual-sufficiency standard when the party who bears the burden of persuasion by a preponderance of the evidence complains that the rejection of his issue is “against the great weight and preponderance of the evidence.”98 This Court reasoned that
the utilization of the standard of review constitutionally reserved for the courts of appeals and required by the Texas Supreme Court to be applied in situations where the burden of proof was on the individual claiming factual insufficiency does not impede a defendant from seeking a factual review relevant to his affirmative defense nor does it preclude him from a sufficiency review as to whether there was sufficient evidence to warrant a conviction. The two reviews are mutually exclusive.99
Indeed, this Court was exactly correct: the two different types of review are mutually exclusive. Review for legal sufficiency under the Jackson “beyond a reasonable doubt” standard is required for every element that supports a conviction, but a sufficiency-of-the-evidence review under civil standards is appropriate when reviewing affirmative defenses in which the defendant bears a burden of “preponderance of the evidence.”100 In Meraz, this Court held that the “factual conclusivity clause” of the Texas Constitution applies when the defendant bears the burden of proof by a preponderance of the evidence.101
And this Court followed Meraz in Bigby v. State,102 by reviewing the sufficiency of the evidence that supported the jury‘s rejection of the defendant‘s affirmative defense of insanity in a capital murder trial. In Bigby, as in Meraz, the burden of proof was on the defendant to establish his defense by a preponderance of the evidence.103 In that context, use of the civil
The real issue is not whether “factual sufficiency” review exists in Texas law. The issue is whether “factual sufficiency” review applies to the elements of a criminal offense that the State must prove beyond a reasonable doubt. And, of course, both this Court and the courts of appeals have the authority to review “the facts” as well as the law.107 If “the facts” do not establish every element beyond a reasonable doubt, those “facts” require an appellate court to acquit the defendant under Jackson.
But two years after this Court delivered Meraz, one court of appeals, in Stone v. State,108 applied the Meraz reasoning to a factual-sufficiency review of the elements of the offense, even though those elements must be proven beyond a reasonable doubt and are subject to a constitutional sufficiency review under Jackson.109 The court of appeals stated that, under the “factual conclusivity clause,” it had the power to review the factual sufficiency of the evidence to support a conviction as well as the power to review the factual sufficiency to support affirmative defenses:
.[T]he Jackson test does not logically preclude factual-sufficiency review. Jackson requires the appellate court to view the evidence in the light most favorable to the prosecution. Jackson permits the states to devise tests for factual-sufficiency review that do not indulge in presumptions in favor of either side. Because Jackson does not preclude factual-sufficiency review and because we see nothing in the Meraz opinion that limits the pre-existing factual-sufficiency review power of the courts of appeals to matters the defendant must prove, we conclude that a criminal defendant is entitled to a factual-sufficiency review as a matter of state constitu-
tional law.110
Jackson does not, of course, preclude a state from enacting a factual-sufficiency review, but neither does it suggest that such review is necessary, appropriate, or useful. Until the court of appeals‘s decision in Stone, no Texas court had found a constitutional right to a factual-sufficiency review of the elements of a criminal offense.111 There is nothing in the “factual conclusivity” clause of the Texas Constitution that grants authority to the courts of appeals to create a factual-sufficiency review of criminal convictions absent some statutory enactment or other law. Because that provision does not grant any new authority to the courts of appeals, a defendant does not have a constitutional “right” to a factual-sufficiency review of his conviction based solely upon the “factual conclusivity” clause. Any right to a factual-sufficiency review of the elements of a criminal offense must exist elsewhere in the law, if at all. Although the Texarkana Court of Appeals adopted the Stone reasoning and result,112 other courts of appeals rejected it.113
The reasoning and result in Stone were premised upon the proposition that the intermediate courts of appeals are vested with the authority to review factual sufficiency in criminal cases under
In 1979, this Court had held, in White v. State, that we have “no fact jurisdiction as do the Courts of Civil Appeals, and cannot ‘unfind’ a vital fact finding by a jury. Since we do not have the jurisdiction to pass upon the great weight and preponderance of the evidence,”116 the defendant‘s contention that his court could review factual sufficiency was rejected.117 If this Court, in 1979, did not have jurisdiction to conduct a factual-sufficiency review, the courts of appeals could not gain any “factual conclusivity” power from us when, two years later, they were authorized to review criminal cases.
This conclusion was reiterated by the Texas Legislature in 1981 when it amended what is now
It is well settled that our Court does not have jurisdiction to pass upon the weight and preponderance of the evidence or “unfind” a vital fact. More specifically, our determinations of sufficiency of the evidence have never involved passing upon the weight and preponderance of the evidence.... In deciding sufficiency of the evidence questions this Court views the evidence in the light most favorable to the verdict.... Sufficiency of the evidence as determined by this Court is a question of law. It is irrelevant whether we as a court believe the evidence, or believe that defense evidence “outweighs” the State‘s Evidence. If there is any evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds.120
Furthermore, the Code of Criminal Procedure contains two provisions that explicitly state that the jurors are the exclusive judges of facts in jury trials.121
E. Clewis.
In 1996, this Court resolved the split in the courts of appeals on the issue of factual-sufficiency review. In a fractured 5-4 opinion in Clewis v. State,123 this Court
The prosecution‘s sole witness, a paid informant, testifies that he saw the defendant commit a crime. Twenty nuns testify that the defendant was with them at the time, far from the scene of the crime. Twenty more nuns testify that they saw the informant commit the crime. If the defendant is convicted, he has no remedy under Jackson because the informant‘s testimony, however incredible, is legally sufficient evidence.126
Of course, this was a law-school hypothetical; no one had heard of such a bizarre jury which would reject the eyewitness testimony of forty nuns and believe a single paid informant instead. Would such a result be the product of a “rational” or “reasonable” jury under Jackson? Would the United States Supreme Court (or this Court) uphold such a verdict under its carefully crafted language that, given this evidence, any “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt?” Under the hypothetical as presented, it would appear to be an irrational verdict. But suppose that the defendant were a priest? Or that the defendant had just donated a million dollars to the local convent? Or that the nuns were inconsistent and contradictory on all of the underlying details of their testimony? We defer to the jury‘s credibility and weight determinations because they have seen and assessed the witnesses in person, and they have heard all of the evidence, not just the bare-bone facts of a hypothetical.
Nonetheless, in Clewis, this Court judicially created a new appellate standard for reviewing the factual sufficiency of evidence on top of the legal sufficiency review which had, under various phrasing, existed in Texas for 150 years. Under that newly minted standard,
an appellate court reviews the factfinder‘s weighing of the evidence and is authorized to disagree with the factfinder‘s determination. This review, however, must be appropriately deferential so as to avoid an appellate court‘s substituting its judgment for that of the jury.127
Thus, Clewis empowered the courts of appeals to act as a “thirteenth juror” (one who was not even present to see and hear the witnesses) and disagree with the factfinder‘s determination, but to be deferential to the factfinder‘s judgment as it did so. This standard was ambiguous and contradictory from the beginning.
F. Attempts to Clarify Clewis.
The first clarification came in the same year that Clewis was decided. In Jones v. State,129 a capital murder case, this Court stated that a factual-sufficiency review requires the appellate court to review all of the evidence, not just the evidence which supports the verdict.130 “The appellate court reviews the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compares it to the evidence which tends to disprove that fact.”131 But the reviewing court must be appropriately deferential to the factfinder,
finding fault only when “the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust.” Examples of such a wrong and unjust verdict include instances in which the jury‘s finding is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.”132
This Court‘s conscience was not shocked by the jury‘s verdict in Jones. We rejected the defendant‘s factual-sufficiency claim because there was conflicting evidence of whether he intended to shoot the murder victim.133
In 1997, the year after Clewis was decided, this Court held, in Cain v. State,134 that the courts of appeals must continue to give considerable deference to the original factfinder under a factual-sufficiency review.135 In that case we reversed the court of appeals because “it was not deferential to the jury‘s determination of witness credi-
Our next major foray into an explication of Clewis was in Johnson v. State139 in 2000. There we found that the court of appeals had correctly found the evidence factually insufficient to support the aggravated sexual assault victim‘s identification of the defendant because she was not “a hundred percent positive” that he was her assailant and DNA tests showed that the defendant and assailant were both members of a group consisting of 8.5% (according to the State‘s expert) to 26% (according to the defense expert) of the black population.140 We stated:
The degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record. A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. Such an approach occasionally permits some credibility assessment but usually requires deference to the jury‘s conclusion based on matters beyond the scope of the appellate court‘s legitimate concern. Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury‘s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.141
After discussing both Cain and Johnson, Professor Dix, for one, concluded that “it is arguable that little meaningful difference exists between Clewis factual-sufficiency review and traditional review of the evidence for legal sufficiency.”142
In 2001, we took another stab at clarify-
Under Clewis, the reviewing court views all of the evidence in a neutral or impartial light, not in the light most favorable to the prosecution (or the jury‘s verdict).149 This “neutral light” review seems to be the driving force behind Clewis: it circumvents Jackson‘s “in the light most favorable to the prosecution” requirement. While this phrase might sound like pro-prosecution rhetoric, in fact it defers only to the factfinder‘s verdict, because the only criminal trials reviewed for sufficiency of the evidence on appeal are those in which the factfinder (whether judge or jury) agreed with the prosecution. The prosecution can never appeal the sufficiency of evidence when a judge or jury acquits a defendant, regardless of how “manifestly wrong,” “unjust,” or irrational the factfinder‘s verdict may appear to be.
In our 2003 Swearingen v. State150 decision, we reiterated the importance of giving deference to the factfinder‘s credibility and weight determinations, i.e., the review-
Although authorized to disagree with the jury‘s determination even if probative evidence exists which supports the verdict, a reviewing court must give due deference to the fact finder‘s determinations concerning the weight and credibility of the evidence and will reverse the fact finder‘s determination only to arrest the occurrence of a manifest injustice. In assessing the factual sufficiency of the evidence to support a conviction we consider all the evidence in a neutral light.151
These two sentences are internally inconsistent. One cannot view the evidence in a neutral light while at the same time giving deference to the factfinder‘s determinations of weight and credibility.
In our 2004 decision in Zuniga v. State,152 we again marched into the field of factual insufficiency, once more acknowledging that the evolution of factual-sufficiency review “has been somewhat confusing.”153 In Zuniga, we further refined the zone four “against the great weight of the evidence” prong of factual insufficiency, and stated:
We will attempt to resolve some of the confusion created by the standard that has developed since Clewis by: 1) linking the burden of proof at trial to the standard of review and 2) avoiding language suggestive of a preponderance-of-the-evidence burden of proof.... There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.154
But incorporating the “beyond a reasonable doubt” standard into factual-sufficiency review returned us to the Jackson legal sufficiency standard. Compare the wording of the two standards:
- “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”155 (legal sufficiency);
- “Considering all of the evidence in a neutral light, was a jury rationally
justified in finding guilt beyond a reasonable doubt?”156 (factual sufficiency).
One is hard-pressed to adequately explain the distinction between these two standards of review, yet a finding of legal insufficiency leads to an acquittal, while factual insufficiency leads to a retrial. The only way that these two standards can be distinguished is by viewing—in a factual-sufficiency review—all of the evidence with divine neutrality and refusing to give any deference to the jury‘s assessment of weight and credibility. This type of review explicitly makes the reviewing court a “thirteenth juror” who makes an independent, de novo determination of credibility and the weight to be given the testimony and the inferences to be drawn from the base facts. Such a review violates
But I would go further. I, like the Florida Supreme Court did in Tibbs, would conclude that there is little historical basis in Texas for creating a factual-sufficiency review as an addition to the constitutionally mandated legal-sufficiency standard. I would further conclude that neither Clewis nor its progeny adequately explain the dynamics of a factual-sufficiency review or how appellate courts are to view the evidence both “neutrally” and with deference to the factfinder.
Ironically, at the very time we were attempting to devise a workable structure by which to review the elements of a criminal offense under a civil-law standard that depended upon a preponderance-of-the-evidence burden of proof, our brethren on the Supreme Court of Texas were attempting to devise a workable standard for reviewing the sufficiency of evidence when a party has a heightened burden of proof—i.e., when the burden of proof was “clear and convincing.” They, like us, had a difficult time trying to force a square peg into a round hole of factual sufficiency review. In Southwestern Bell Telephone Co. v. Garza,158 that court seemingly came to the same conclusion that I would reach: the factual conclusivity clause applies only to “questions of fact” for determining the sufficiency of evidence when the proponent bears a burden of proof by a preponderance of the evidence.159 And, after City of Keller, even that proposition may be doubtful.
I turn now to the question of whether the creation and application of a factual-sufficiency review by appellate judges is nonetheless good public policy that should
III.
The creation of a factual-sufficiency review in Texas criminal cases has come at an enormous jurisprudential price. As noted above, Clewis has been cited, discussed, or applied in almost 6,000 Texas criminal cases since 1996. This Court has spent considerable time and energy in its attempts to clarify Clewis. Litigants and the courts of appeals have expended enormous resources in attempting to understand Clewis and apply the factual-sufficiency construct to the cases before them. However, as Professor Dix has noted, the courts of appeals have found the evidence factually insufficient in a minuscule number of cases.160
Nonetheless, such an enormous expenditure of judicial time and resources might be a worthwhile investment if a factual-sufficiency review were directed toward a widely acknowledged “evil” in the Texas criminal justice system, and if it solved that serious problem effectively and efficiently. Unfortunately, there is nothing in Clewis (or its progeny) that points to any systemic criminal justice problem that a factual-sufficiency review might have been designed to resolve. Although this Court set out the “forty nuns” hypothetical in Clewis to show how a Jackson legal-sufficiency review might uphold such a conviction whereas a factual-sufficiency review would presumably reverse such a conviction, I am unable to find any “forty nun” type cases. Professor Dix has cited only twelve published cases in which the courts of appeals have reversed on factual insufficiency grounds,161 and most of these were split decisions, while others were vacated by this Court because the lower court used the “wrong” Clewis analysis.
Furthermore, the “forty nuns” scenario does not pose a serious threat to the integrity of the criminal-justice system in the rest of the United States. I am aware of only two other jurisdictions, New York and the United States military courts, that currently employ a factual-sufficiency review. In each of those jurisdictions, a statute explicitly authorizes such a review.162 There is no such statute in Texas.
The jurisprudential evil to which a factual-sufficiency review might legitimately be
One of the practical problems that the Florida Supreme Court noted when it rejected its factual-sufficiency doctrine was the “temptation appellate tribunals might have to direct a retrial merely by styling reversals as based on ‘weight’ when in fact there is a lack of competent substantial evidence to support the verdict or judgment and the double jeopardy clause should operate to bar retrial.”163 Although I am confident that an appellate court would not knowingly reject a valid complaint of legal insufficiency and instead grant a factual-insufficiency claim to avoid a double jeopardy bar, there may be a natural disinclination to award an appellate acquittal to a defendant who has been convicted by a jury of twelve citizens. Given the barely visible distinction between these two standards of review, a defendant who should be entitled to a complete acquittal may be forced, because of a “compromise” appellate factual-sufficiency review, to spend the time, money, and mental anguish to undergo another trial and perhaps another jury conviction.
To the extent that Clewis addresses a problem in the Texas criminal-justice system—manifestly unjust convictions that shock the conscience of the appellate courts—that problem can be resolved more satisfactorily in other ways.
First, reviewing courts must apply the Jackson legal sufficiency standard robustly, taking into account all of the evidence, although viewed in the light most favorable to the jury‘s verdict.164 If that evidence supports a rational and reasonable finding of guilt beyond a reasonable doubt, it cannot be said that the jury‘s verdict is manifestly unjust or shocks the conscience of the reviewing court. The verdict is either rational and reasonable or it is not; it cannot be “semi-rational” and still meet the Jackson standard. There is no jurisprudential value in reversing a rational, reasonable verdict and forcing the parties to go back and do it again.
Second, if the legislature is concerned by potential “runaway” juries that render guilty verdicts which are simultaneously rational and reasonable, yet biased and manifestly unjust, it may enact a statute mandating “factual sufficiency” review. The most appropriate “thirteenth juror“—the person authorized to second guess the jury‘s credibility and weight decisions—would be the trial judge who has at least seen all of the witnesses first-hand, and judged their demeanor and credibility on a personal basis. He, much more than the distant appellate courts relying solely upon the cold written record, can take the pulse
Third, in the very same year that this Court created “factual sufficiency” review in Clewis, it also recognized “actual innocence” claims in post-conviction writs of habeas corpus.165 Although such claims depend upon newly discovered evidence that was unavailable at the time of trial, this is certainly one mechanism to exonerate those whom a jury should not have convicted.166
Last (and least), as Judge White pointed out in his Clewis dissent, “[i]f a defendant‘s verdict of guilt confining him to prison were manifestly unjust due to a failure of the sufficiency of the evidence, would not this qualify as a ground of innocence to warrant a grant of executive clemency?”167
In sum, there are alternate methods by which the criminal justice system can address the “40 nuns” hypothetical—the problem of a rational jury which reaches a unanimous guilty verdict, based on evidence that proves every element of the offense beyond a reasonable doubt, which is, nevertheless, “clearly wrong and unjust.”
I think that the Clewis “factual sufficiency” review is internally inconsistent and denigrates the role of juries in the state of Texas by requiring a “neutral” review of the evidence, while simultaneously espousing deference to the jury‘s exclusive role in assessing credibility and the weight to be given to the evidence. It has not contributed to the integrity of the appellate review process; it has led to inconsistent results; and it has required numerous, but futile, attempts to clarify its content and application. Furthermore, the dual legal-and factual-sufficiency review mandated by Clewis upended over 150 years of Texas case law that had employed a single standard for the review of sufficiency of the evidence in a criminal case.
IV.
The present case exemplifies the problems created by the Clewis factual-sufficiency review because it deals with conflicting inferences that might reasonably be drawn from the same basic facts. Twelve jurors, one trial judge, and the Chief Justice of the Waco Court of Appeals all concluded that it was a reasonable inference that appellant attempted to commit sexual assault upon Jennifer Romo after he entered her home without consent, dropped his shorts to expose his erect penis, came toward her as she grabbed a butcher knife to defend herself, and attempted to pull it out of her hands.
Two justices of the Waco Court of Appeals concluded that an even more reasonable inference was that appellant did not attempt to commit sexual assault because (1) he “did not say anything threatening or anything to indicate he intended to sexually assault [Jennifer] Romo“; (2) “his conduct in grabbing the knife could also be viewed as an effort to defend himself“; (3) “he did not flee the apartment complex“; and (4) Jennifer‘s father “testified that her emotional state at the time was one primarily of anger and confusion rather than
The issue of whether appellant attempted to sexually assault Jennifer Romo was well presented by both the State and defense in this case. Both advocates cogently argued their respective positions that the evidence did or did not support a finding, beyond a reasonable doubt, that appellant intended to sexually assault Jennifer Romo and had attempted to do so. Appellant emphasized that Jennifer Romo was “mad,” not “scared” by appellant‘s actions, and she “had no idea what [appellant‘s] intent was.” He noted that appellant never touched Jennifer or her clothes. The jury rejected the inferences that appellant asked it to draw. It chose to agree with the inferences drawn from this evidence that support the conclusion that appellant did, in fact, attempt to sexually assault Jennifer Romo. Two members of the court of appeals agreed with appellant‘s argument. But that agreement does not render the evidence either factually or legally insufficient, nor does it mean that the jury‘s verdict was the product of bias or the result was manifestly unfair. Factual disagreements and disputes lie at the heart of our jury system.
We are most likely to invoke the collective wisdom of a jury when the basic facts are in dispute or when the logical inferences to be drawn from base facts conflict. Trials are generally unnecessary in the “easy” cases, the “whale in a barrel” cases; they generally result in a plea bargain. It is when the direct testimony conflicts or the logical inferences that may be drawn from the circumstantial evidence differ, that a jury is needed to resolve those conflicts. However, it is precisely in those cases that an appellate court is most likely to second guess a jury, but it does so without considering whether the jury‘s credibility and weight decisions were made on the basis of irrational bias and prejudice as opposed to rational deduction or induction. The fact that a jury chose one rational alternative as opposed to another rational alternative is not a basis for reversal, but that is precisely what the Clewis standard permits. It permits a fortuitous “lightning strikes” reversal based on whether an appellate court (without personally seeing or hearing the witnesses) differs with a jury on its choice of what inference should be drawn or what weight should be given to certain direct testimony. Although reversals under Clewis are rare, they are also random, inconsistent, and based primarily on “the luck of the draw.”
I would therefore overrule Clewis and all of its progeny, including Zuniga. Because the majority lops off only the most recent branch of Clewis and does not address the root of the problem, I most respectfully dissent.
Notes
Id. at 397 (citations omitted).“the jury are the exclusive judges of the facts in every criminal cause.” . . . Being made the exclusive judges of the facts, the jurors, in contemplation of the law, are deemed to have the capacity to exercise those processes of thought and powers of combination which are sufficient to understand, without the aid of the judge, their relations and relative importance in arriving at a conclusion.
Id. at 410. The supreme court dismissed that contention, noting that the Texas Constitution and Legislature had granted many rights to criminal defendants that were denied them under the common law. Id. The court concluded that it had jurisdiction to “consider this decision of the district judge, with an eye both to the law and the facts as shown by the record.” Id. at 411.by writ of error, the errors of law alone could be examined in the supreme court, and that the usual effect of an appeal from an inferior tribunal, being one that opened the facts as well as the law for reexamination, could not be admitted as a right to the defendant in the district court in a criminal prosecution, because no such right was ever known to the common law of England.
Given recent decisions by the Supreme Court of Texas, however, this entire “zone” theory of evidentiary sufficiency has been thrown into some doubt. See generally, William V. Dorsaneo, III, Judge & Jury Symposium: Evolving Standards of Evidentiary Review: Revising the Scope of Review, 47 S. TEX. L. REV. 225, 226-27 (Winter 2005) (noting that “the Texas Supreme Court has embraced an important recapitulation of the scope of evidentiary review in cases governed by the preponderance of evidence standard of review. A similar approach has been applied by the court to cases controlled by the clear and convincing evidence standard of review“) (footnote omitted).
In one most peculiar case, Green v. State, 97 Tex. Crim. 52, 260 S.W. 195 (1924), this Court began its opinion with the statement that “[t]he parties are all negroes,” and then stated that the rape victim‘s uncorroborated testimony that her stepfather raped her was simply unbelievable because she did not report the rape until she discovered that she was pregnant, even though she explained that she did not do so because she was afraid of the defendant. This Court quoted Horatio in Hamlet, “commenting on an incident he did not understand, ‘But this is wondrous strange,’ and Hamlet‘s reply: ‘There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.‘” 97 Tex. Crim. at 53, 260 S.W. 195. This Court forthrightly concluded that it simply did not believe the woman‘s testimony that she had been raped, even though the jury had. This case is a perfect example of why appellate courts should not sit as a thirteenth juror reviewing the credibility of the witnesses (regardless of their race) and rejecting their testimony out-of-hand. This case, clearly one based solely on rejecting the credibility of the victim, stands as “a derelict upon the waters” of Texas law. I would consign it to the trash barrel where it belongs.
Id. (internal citations omitted).While this court has the right to reverse a judgment of conviction on account of the insufficiency of the evidence (
Texas Code Crim. Procedure, art. 44.25 ) and it becomes its duty to do so “if the guilt of the accused is not made to appear with reasonable certainty” no fixed rule has been devised which will in all cases furnish a certain standard. Necessarily each case must in a measure be tested by its own facts.... However, when a jury, advised of the restrictions which the law places upon them in condemning one on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own, unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency.
Id. at 154-55. Of course, as the Texas Supreme Court refines its sufficiency-of-the-evidence standards of review, see, e.g., City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), this Court may choose to follow suit as a matter of comity and consistency.We now join our brethren on the Texas Supreme Court and conclude that the “factual conclusivity clause,” within
Art. V, § 6 , operates to limit our jurisdiction and confers conclusive jurisdiction on the courts of appeals to resolve questions of weight and preponderance of the evidence adequate to prove a matter that the defendant must prove. Moreover, when the courts of appeals are called upon to exercise their fact jurisdiction, that is, examine whether the appellant proved his affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.
Id. at 601.With respect to Crouch‘s claim that the jury‘s finding was against the great weight and preponderance of the evidence, we hold that there is no such thing as a factual sufficiency of the evidence review in criminal cases. If there is sufficient evidence from which a rational trier of fact could determine beyond a reasonable doubt that the defendant used a firearm in the com-
mission of or flight from the commission of an offense, then the jury‘s finding to that effect would never be beyond the great weight and preponderance of the evidence. While there may be some justification for such a review in a civil case where the only requirement is that there be merely more than a scintilla of evidence to support the jury‘s finding, the jury is most often required to find a fact by a preponderance of the evidence; however, there is no similar justification for such a review in a criminal case where the legal sufficiency test more closely approximates the burden that the State must meet.
Id. at 322.we hold that criminal cases are not within the provision of
article 5, section 6 , that the decisions of the Courts of Appeals “shall be conclusive on all questions of fact brought before them on appeal or writ of error.” This holding is also supported by a legislative interpretation ofsection 6 in the implementing legislation, article 1820 of the Texas Revised Civil Statutes (Vernon Supp. 1982). As amended in 1981, this statute provides: “The judgments of the Courts of Appeals in civil cases shall be conclusive in all cases on the facts of the cases.” (Emphasis added). Evidently the legislature was careful to limit the fact jurisdiction of the Courts of Appeals to civil cases.
Id. at 484. True enough, but the entire civil-law factual-sufficiency review incorporating five zones is built upon an implicit assumption that the burden of persuasion is “by a preponderance of the evidence.” This is precisely what the Texas Supreme Court recognized in its recent decision in In re C.H., 89 S.W.3d 17 (Tex. 2002) when it statedOnce again, the preponderance-of-the-evidence language creeps into a factual-sufficiency review where the burden of proof at trial was beyond a reasonable doubt. And, the Court‘s statement that the reviewing court must use both standards is confusing.
Id. at 25 (citations and footnote omitted). That is, the entire five zone factual sufficiency construct, developed for cases in which the burden of proof is “by a preponderance of the evidence” must be modified when either party bears a greater burden of persuasion, such as “clear and convincing” or “beyond a reasonable doubt.” Jackson incorporated the State‘s burden of proof; Meraz incorporated the defendant‘s burden of proof; Clewis did not.We conclude that the burden of proof at trial necessarily affects appellate review of the evidence. Under traditional factual sufficiency standards, a court determines if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. But that standard is inadequate when evidence is more than a preponderance (more likely than not) but is not clear and convincing. As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.
In In re J.F.C., 96 S.W.3d 256 (Tex. 2002), the Texas Supreme Court realized that there was a problem in distinguishing between the civil standards for legal and factual sufficiency review when the burden of proof is heightened. That court turned to the Supreme Court‘s decision in Jackson and used it for its legal sufficiency review:
Id. at 265-66. But the supreme court also explained its factual sufficiency standard:The reasoning in Jackson reinforces our conclusion that to apply our traditional no evidence standard of review in a parental termination case would not afford the protections inherent in the clear and convincing standard of proof. As the example in Jackson highlights, a parent‘s rights could be terminated based on “but one slender bit of evidence” as long as the jury was properly instructed on the clear and convincing evidence burden of proof. Our legal sufficiency review, therefore, must take into
consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof.
Id. at 266-67 (footnotes omitted). In this case, as in our Clewis cases, there is barely visible light between the legal and factual sufficiency standards of review. One wonders if this two-tier review will long endure in civil cases where the burden of proof is heightened. See, e.g., In the Interest of A.M.W., No. 10-05-00123-CV, 2006 WL 408636 *14, 2006 Tex. App. LEXIS 4528 *48 (Tex. App.—Waco, February 22, 2006) (“Do we need a factual sufficiency review in addition to a legal sufficiency review” in parental termination cases when the standard of proof is heightened) (Gray, C.J., dissenting).In a factual sufficiency review, as we explained in In re C.H., a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. We also explained in that opinion that the inquiry must be “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State‘s allegations.” A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. A court of appeals should detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.
Id. at 621, 626-27 (footnote omitted). The supreme court went on to explain thatWhile the “factual conclusivity clause” requires that a distinction be made between questions of fact and questions of law, it does not prescribe where the line is to be drawn, leaving that matter for this Court. Over the years, we have concluded that no evidence means not only a complete absence of evidence but also evidence which cannot be given legal effect, either because the law does not permit it or because the evidence is too weak.... The rule works in tandem with the preponderance of the evidence standard of proof; any evidence that does not merely create surmise or suspicion can be used to show that something is more likely than not. But when proof of an allegation must be clear and convincing, even evidence that does more than raise surmise and suspicion will not suffice unless it is capable of producing a firm belief or conviction that the allegation is true. Evidence of lesser quality is, in legal effect, no evidence. Whether evidence is of such quality is thus a question of law in a case with that elevated standard of proof, just as whether evidence is more than a scintilla is a question of law in a case proved by a preponderance of the evidence.
Id. at 621, 626-27 (footnote omitted).the “factual conclusivity clause” does not define the “questions of fact” on which the courts of appeals’ decisions are conclusive. We held, shortly after the clause was adopted, that “whether there be any evidence or not to support an issue is a question of law, and not of fact.” Evidence that does not produce a firm belief or conviction does not support an issue that must be proved by clear and convincing evidence. Whether evidence supports an issue is no less a question of law simply because the standard of proof is heightened.