Wilson v. State

The rehearing State’s motions for are

overruled. WILSON, Randolph Appellant,

ONION, P.J., concurs in result. Texas, Appellee. STATE No. 072-82. CAMPBELL, JJ., MILLER par- ticipating. Texas, Court Criminal En Banc.

McCORMICK, Judge, concurring. March 1983. agree I the standard for review in July Denied Rehearing any any case is whether rational trier of fact could have found the essential ele-

ments of the crime beyond

doubt. 1 write to emphasize applica-

tion of the “exclusion of rea- outstanding is, hypotheses” analysis

sonable as stated one majority, may criteria which be arriving at the answer result,

ultimate but it should not be

sidered an element of that ultimate stan-

dard. And as the majority emphasizes, the analysis

method of change does not

standard of review.

Logic dictates that if there is a “reasona- hypotheses”

ble than the

accused, then it cannot be said that

guilt has been shown “beyond a reasonable

doubt.” Hankins v.

191 (Tex.Cr.App.1983), we recognized that

direct and circumstantial evidence were to

be equal dignity. treated with

effort to weave into the standard of

late any exception or difference or

special treatment for one type of evidence

or the other will logic. fail for lack of

Lastly, this standard to the us,

cases before the final outcome is the Therefore,

same. overruling concur in the rehearing ‍​‌‌​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌​​‌‌‌‌‌‌​‌​‌‌‌‌​‌​​​‍States’ motions for in each

case. DAVIS,

TOM G. W.C. DAVIS and

TEAGUE, JJ., join in this concurrence. County Atty.

Michael J. Westergrеn, and Factor, Atty., Abe County Corpus Asst. Christi, Huttash, Atty. Robert and State’s Austin, Walker, Atty., Alfred Asst. State’s for the State.

OPINION ON APPELLANT’S PETITION

FOR REVIEW DISCRETIONARY McCORMICK, Judge. discretionary This is a for petition Appeals. from the Court Corpus Christi Appellant of the affirmance complaining of his for theft over but $20.00 conviction than Punishment was less assessed $200.00. sixty days. appellant challenges Since evidence, a summary Appellant was required. facts is Appellant charged stealing rings. two with is no specifically alleges that there rings. to connect with the him that she a Hеlen Hause testified was Etc., Accents, gift and co-owner of ceram- County. May On shop ics in Nueces woman came appellant and a into to pur- store. The asked companion woman Mrs. Hause testified paint. chase some woman, waiting that while on she was appellant walking around interior was related that appel- of the store. Hause also as to argued lant and whether the woman paint jars should or two buy she one jars. two up purchasing the woman ended Hause, out a receipt made practice, her kept Hause paint. for sale of original copy and handed receipt Appellant woman. and the receipt store. Hause was woman then left and checked the suspicious couple Her check revealed store’s merchandise. missing. inventory An ring that one was Monday following revealed conducted the missing. ring second was that she was em- Elaine testified Rice Etc., she Accents, although was ployed by the theft. Hоw- day working not on following ever, she at the store about rang at 7:00 Monday phone when the himself on Christi, identify Banales, p.m. caller did Corpus J. Manuel what time the caller asked phone. The appellant. addition, store closed and then said he rings had two the evidence shows that several he had purchased and would like to return. days appellant later returned store Rice told him he would have to attempted rings have to return two which he receipt. The caller stated longеr purchased he no had maintained he had from the a receipt hung up. Appellant Again, nothing arrived store. there is in the record at the store one Appellant rings hour later. to that these were the same two show presented jars rings two of the store on 31. The paint, rings May two and a stolen from receipt sales and said were into evidence. We money he wanted his never introduced evidence insufficient Appellant’s back. of the find the circumstantial copy recеipt sales reasonable ex every hypothesis had been altered to to exclude reflect the sale of two the of the Moore v. rings cept appellant. in addition to paint. the Rice discov- State, (Tex.Cr.App.1982). 640 300 ered the S.W.2d discrepancy by comparing the copy opinion the of the Court of of the sales receipt original with the store’s must be reversed and reformed to show an sales receipt. Rice refused to refund the States, acquittal. Burks v. 437 United U.S. price rings, of the but she did refund the 1, 2141, (1978); 98 57 L.Ed.2d 1 S.Ct. price paint. of the Rice did not take custo- 19, 98 2151, Massey, Greene v. 437 U.S. S.Ct. dy appellant’s copy of receipt the sales or (1978). 57 15 L.Ed.2d rings. Appellant was later arrested in regard to the theft of the rings. argues The State in determin ing

In his first ground appel of error evidence an appellant argues that the late court must view the evidence in the evidence is wholly insuffi- light prosecution. cient to show that the most favorable to the rings appellant had State, The pоssession in his State relies on Girard v. 631 when he returned to the store 162 (Tex.Cr.App.1982), were the same S.W.2d and Griffin rings stolen from the State, (Tex.Cr.App.1981). store on v. 614 155 May 1980. The Court of S.W.2d Ap- peals However, point found that under the we would out that footnote facts of the case State, supra, recognizes 5 in Griffin v. reasonably could infer that different standard of review in circumstan rings presented to Elaine Rice were the State, tial cases. In v. 578 rings same described Sewell missing by the own- this er. S.W.2d 131 Court cases stated that in circumstantial evidence The jury provided with an the evidence is insufficient if the circum instruction on circumstantial evidence. As every stances not exclude other reasona do noted by the Court of circumstan Appeals, ble that of the hypothesis tial evidence will be sufficient support the accused. This is the standard that must conviction if the facts ‍​‌‌​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌​​‌‌‌‌‌‌​‌​‌‌‌‌​‌​​​‍proved support a appellate be used review of circum reasonable inference that the defendant stantial evidеnce cases. committed the crime and exclude to a moral case, we standard to the instant find certainty any inference consistent with his evidence adduced at trial insufficient. State, innocence. Galvan v. grounds has raised four other Appellant However, 627 (Tex.Cr.App.1979). a convic However, disposition due to error. our tion based on circumstantial evidence can case, it unnecessary we find not be if sustained the circumstances do not judgments sider them. The Court exclude every hypothesis reversed, Appeals and the trial court are except that of the guilt. defendant’s Moore the case (Tex.App.1981), 626 840 S.W.2d with instruc- is remanded to the trial court Autry v. 626 758 (Tex.Cr.App. S.W.2d be entered. acquittal tions that an order of 1982). merely The evidence before us appellant shows that sometime after was in ONION, Judge, concurring. Presiding rings the store two were discovered miss concur in the ing. wholeheartedly agree There is no saw testimony anyone reversing appellant rings. by majority or his result companion take reached 468 upon making explanation

the conviction based circumstantial of this adequate evidence, standard since there exists some confusion using the test for the suffi- about such standard. ciency of circumstantial sustain evidence to conviction, law of this has been the review of general appellate rule as to least, Hender- state since the decision of question of the evi (1855). son v. 14 Tex. dence to sustain a conviction is that viewed must be test, evi- Under this every jury’s court in verdict or the necessarily dence case must be tested its court’s whom the judgment depending upon sufficiency of own facts to determine the trier happens of the facts to be. See Bow the evidence the conviction. support (Tex.Cr. ers v. S.W.2d (Tex. Earnhart S.W.2d App.1978); Ransonette v. S.W.2d State, 552 Cr.App.1979); Stogsdill v. 36, 42 (Tex.Cr.App.1976). Darring See also State, 532 Moore v. State, (Tex.Cr.App. ton v. 623 414 S.W.2d v. (Tex.Cr.App.1976); Higgins 333 S.W.2d State, 1981); 607 914 Vaughn v. S.W.2d State, (Tex.Cr.App.1974); 515 268 S.W.2d State, (Tex.Cr.App.1980); Ahearn v. 588 Statе, (Tex.Cr.App. Indo v. 166 502 S.W.2d v. (Tex.Cr.App.1979); S.W.2d 327 Nixon 1973). circumstantial evi A conviction on State, 572 699 S.W.2d dence, however, if the cannot be sustained Key 1144.13(2). Tex.Digest, 13A Crim.Law proved every circumstances do not exclude in general applied This rule is not to be hypothesis except other reasonable that of sufficiency the of cir- reviewing appeal proof amount guilt the of the accused a convic- evidence to sustain cumstantial ing strong suspicion proba or mere only Nevertheless, published opinions tion. forcefully is insufficient. This was bility can be this court and the Courts of State, out in v. 620 pointed Flanagan general the erroneously apply found which 591, (Tex.Cr.App.1981), opin- 593 S.W.2d This evidence cases. rule in circumstantial Tom Davis. See by Judge ion for the court confusion should be avoided. State, (Tex.Cr. 901 also Flores v. 489 S.W.2d State, of this supra, panel In v. Sewell State, v. 474 704 App.1973); Kinkle S.W.2d court wrote: State, 447 (Tex.Cr.App.1972); Culmore v. reviewing rule for general “The v. 915 Brock S.W.2d of evidence is that it will be State, 745 162 285 Tex.Cr.R. S.W.2d favorable to light viewed in the most (Tex.Cr .App.1956). State, 570 Bowers v. jury verdict. court, Davis, Judge for the speaking W.C. How (Tex.Cr.App.1978). 932 S.W.2d (Tex. State, 533 in Bonds v. 573 S.W.2d different ever, has this court Cr.App.1978), wrote: based on circum when the verdict is test insuring “This duty court has a evidence; the evidence is insuffi stantial except no one is convicted of a crime not ex do cient if the the circumstances doubt reasonable upon proof beyond a hypothesis every clude case, and, in a circumstantial the accusеd. except that of hypotheses upon proof excluding all other State, (Tex. 481 552 Stogsdill v. S.W.2d State, v. Easley appellant’s guilt. in Culmore As was stated Cr.App.1977). (Tex.Cr.App.1975).” 529 522 S.W.2d (Tex.Cr.App. State, 915 447 S.W.2d v. long-standing Having 1969): re-affirmed “ evidence, the test for the ascertaining whether ‘In relied the cases majority correctly rejects a moral has been established accused Attorney in Prosecuting review upon by the State court will appellate certainty, State, v. properly presumption his cites Sewell brief evidence in will The Court is innocent. 578 131 the accused S.W.2d the accused against acts presume the standard of recognizes commit- to have been not shown cases. The ma- that are in Furthermore, conviction however, ted him. short of falls jority, my opinion, in

469 will not be appeal approved sustained on if the Is it to remain the same test Supreme evidence does not all Court of Texas 1855 sufficiently establish consistently followed material elements Henderson and offensе ” that time? footnote # 4. since See charged.’ us, tell and with a majority does not The rule stated in well Sewell is estab stubbornness, ignore chooses to studied See, State, e.g., lished. Earnhart v. If the test is to remain question. 551 (Tex.Cr.App.1979); Stogsdill S.W.2d v. same, charge to a jury then the is entitled State, 552 481 (Tex.Cr.App.1977); S.W.2d circumstantial evidence on the law of State, Suff v. 814 (Tex.Cr.App. S.W.2d Article given past. been See has 1976); Davis (Tex. S.W.2d 36.14, It would be the V.A.C.C.P.13 Cr.App.1974); Ysasaga v. absurdity keep height 305, 308-309 (Tex.Cr.App.1969); Hollings requirements about the dark worth v. 419 S.W.2d 854 the sufficiеncy of circum- regarding law 1967); King (Tex. and then apply stantial evidence the test Cr.App.1965); Ramirez v. 163 Tex. law to verdict required by any guilty Cr.R. 251 (Tex.Cr.App. test be changed, If the is to rendered. 1956). Tex.Jur.2d, Evidence, also 24 See it, time to. do not later after now is the 422; 742, p. Am.Jur.2d, Appeal and § as to what test is to be much confusion Error, p. § there is to a new and applied. If be general rule to the in- test, clearly it should be deline- different stant case and citing Ysasaga v. ated, adoption set the reasons its in sup- forth, аs the the de- as well reasons for thereof, port the Court of was in be mise of the former rule. It should Ysasaga gives error. a more detailed de- only that not will the remembered scription of the standard to be in sufficiency dealing late court be with circumstantial evidence than does Sewell. will the trial courts questions, but so the majority Since reiterates the long-es- for instructed ‍​‌‌​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌​​‌‌‌‌‌‌​‌​‌‌‌‌​‌​​​‍passing when on motions tablished test for the evi- for new trials. verdicts and motions dence in circumstantial evidencе cases and in an area Guidelines are needed now the proper appellant standard for review in today’s deci- by which has been churned cases, such I again call to the majority’s this much to majority sion. The owes attention my recent dissent in Hankins bar, you, please, and if bench and the State, 646 S.W.2d 191 (Tex.Cr.App.1983). people of Texas. In majority Hankins the abolished the 127- 36.14, supra, provides part: Article year-old requiring cautionary jury rule ‘Subject provisions of Article 36.07 to the instruction on the law of circumstantial felony each misdemeanor case and in each shall, judge where the case record wholly upon rests in a court of case tried jury, begins, deliver to the argument before the circumstantial evidence. cautionary Such jury guilty except pleas has been where instruction recognized the need to pro- distinctly setting charge waived, a written ’ tect case; the accused in a prosecu- criminal applicable .... forth the law (Emphasis suрplied.)” tion jury conjecture from specula- and tion, determining the suffi- designed and was the test for guard Since remain the the evidence is to basing upon ciency from their verdict mere sur- let same, may wish to (1879). majority mises. Myers v. Tex.Cr.R. 1 guilty their by the law jurors know writer, alia, dissenting this inter not- verdict will be tested. ed: stated, in the I concur the reasons For majority “Now that abolishes in the instant case. result reached requirement cautionary charge for the on evidence, the law what of circumstantial CLINTON, dissenting. Judge, legal testing is to be the formula for considering appellant’s peti sufficiency of the evidence in a case When first about I was more concerned wholly based on circumstantial evidence? tion for review see Combs v. disposition of Ms grounds 302(c); other of error Tex.Cr.App. Rule than with 714-717 sufficiency of evidence adduced 1982). to show his in a being that guilt my view — case, though petition called on to do so in a reviewing a circumstantial evidence case it review, are not re discretiоnary for we is appropriate judges of this Court of evidentia- quired to reexamine the record grant appreciable an measure of deference for reasonable ry facts circumstances to a reasoned determination a court of by guilt especially than hypotheses appeals that circumstantial evidence is suf — the court of has undertaken appeals when Now, ficient. however, the majority assays rationally rejected task and has thе same evidence against substantially the suggested by ones appellant.3 same tests utilized by appeals1 the court of —and finds it wanting, majority in that the these reasons I would not disturb For says the evidence is “insufficient to exclude findings and of the intermediate conclusions every hypothesis of the cir- respect with court appellant.” 467.)2 the verdict (Opinion p. support cumstantial evidence to charged properly rendered then, Essentially my Brothers on jury. majority judg- reverses Since simply Court are substituting their collec- evidence, my other ment for insufficient judgment tive that of three members concerns are mooted. appeals the court of on matter about Therefore, which reasonable judges sometimes differ. dissent. My perception own discre- of the role of ODOM, J., joins.

tionary review assigned to this Court recent constitutional amendments and ON MOTIONS OPINION STATE’S vis vis a legislation comitant implementing REHEARING FOR it is appeals the fourteen courts of is that CLINTON, Judge. more a “law court” arbi- than competing parties rehearing ter over contentions Leave to file motion for 44.45, they appeal. in these causes granted direct Article Y.A.C.C.P. the State bought (Tex.App.— 3.Appellant’s companion the 1. Wilson v. 626 840 female S.W.2d Corpus 1981). Though paint Saturday, allud Christi the court she re- on a and water color “general appellate to and slip. Suspi- ed the rule” of yellow copy a of the sales ceived Ysasaga 444 in that connection cited v. conduct, by a store owner ciоns aroused their 305, 1969), (Tex.Cr.App. S.W.2d 308 its overall gone; immediately ring one was determined analysis comports suffi with our traditional later, inventory days Monday, re- two on an ciency appeal on evi tests of a circumstantial ring a second could not be accounted vealed dence case. rings missing when for. two were Monday evening with the altered lant came in opinion panel 2. As the author of the in Sewell copy, jars paint slip and two the sales two (Tex.Cr.App.1979)— v. 578 S.W.2d 131 pur- asserting rings, pаint had his wife by concurring opin majority discussed and and, according right color chased was not panel ions—and a member that decided opinion, claiming majority “he also that Girard v. rings] purchased the store.” from had two 1982), fully [the agree of law of with statements permissible infer- that a rational opinions seems to me It circumstantial evidence other cause, logically necessary that application not a one—is and in the cases ence—if appellant presеnted their Indeed, applica sought to for the cited. attention is invited a refund principles presence su only rings missing tion of those pra, Girard in the his two after procedure involves at 164: “The correct just color the water on when Saturday store accepting inculpatory ... circumstances particularly bought, it is undis- paint since was hypoth asking if a reasonable and then there is Saturday he puted while in the store on that account esis other than which also would any Similarly, purchаse rings. his own not did I understand the for such circumstances.” As right rings to possession his claim of Appeals, opinion Corpus Court of Christi them, representations, along with his precisely appellant’s con is that tention that “the how it treated any hypothesis his rule would seem to out fails to exclude participation, companion, or without his aid appellant’s companion possibility that female stolen them. had rings,” 626 at 842. took S.W.2d due of law. process tection of consolidated in order fоr us to deter- [Footnotes were emphasis omitted added.]” mine whether the “standard for evi- the same for circumstantial 318-319, review” is at 2788-2789. 99 S.Ct. 443 U.S. at evidence cases. dence cases and direct setting a standard was Although Jackson federal convictions of state for review of evi question that it courts, requirements process due criminal conviction dence to sustain a state on the expressly were based announced Amendment. implicates the Fourteenth binding are They Fourteеnth Amendment. 12, 307, Virginia, 443 319 n. Jackson v. U.S. a minimum constitute on the states and 2781, 12, 2789 n. 61 L.Ed.2d sustaining S.Ct. a conviction. our standard for 358, 90 U.S. (1979), Winship, “announced ... the constitutional “Under [397 [In re] (1970),] 25 L.Ed.2d proc enforce the due S.Ct. required minimum to doubt a reasonable beyond proof established be free from conviction right” ess Amendment of Fourteenth as an essential doubt. The beyond a reasonable proof when such due it follows process, reasoned: Court then even when no obtained was conviction [that on review of inquiry critical “[T]he have found could trier of fact rational support of the evidence to in a state occurs a reasonable beyond doubt] simply criminal conviction must be stand.” 443 trial, constitutionally it cannot properly whether the determine 317-318, at 2788. 99 S.Ct. U.S. at “[S]tate instructed, whether but determine undoubtedly will serve appellate review reasonably support could record evidence to vindicate majority of cases the vast a reasonable finding guilt beyond that follows from procеss protection due require But this does not inquiry doubt. at at 99 S.Ct. 443 U.S. Winship....” it believes a court to ‘ask itself whether at the trial established that the evidence evi that circumstantial It follows a reasonable doubt.’ Wood- guilt beyond ultimate tested not be dence should INS, [, [276,] at 282 87 S.Ct. by v. U.S. from direct different “standard for review” 486, 17 Instead, L.Ed.2d at 362]. evidence; both kinds standard in whether, view after question relevant of fact rational trier “any cases is whether favor evidence in the most ing the elements of the essential have found could trier prosecution, any rational able to the Ac doubt.” a reasonable beyond the crime have found the essential of fact could (Tex. cord Griffin reasona beyond elements of the crime Cr.App.1981). Louisiana, 406 ble doubt. Johnson v. See or dis Still, to devise we are unable [356,] [, at 362 92 S.Ct. U.S. otherwise, reason, or compelling cover standard This familiar 32 L.Ed.2d 152]. “exclusion utilitarian abandoning of the play responsibility full to the gives analy hypotheses” outstanding conflicts in fairly of fact to resolve trier for “standard the abovе applying sis for evidence, and weigh to testimony, cases. evidence circumstantial review” in inferences from basic to draw reasonable evidence, in circumstantial By the nature a defend to ultimate facts. Once facts rationally establishes it order to determine of the crime guilty found ant has been doubt, process a reasonable guilt beyond weigher as the fact-finder’s role charged, Illustrative used. must be of elimination through a preserved evidence is of the (Tex.Cr. Statе, 653 S.W.2d Taylor review upon judicial that legal conclusion Jackson there cited We App.1983). in be considered of the evidence is to review;” assessing all actually in for “standard prosecu proc light most favorable other than evidence, no method under upon of others impinges guilt thus eliminating The criterion tion. ess of effec fashioned neces could be the extent the evidence only to ‘jury’ discretion es- rationally the evidence pro- tively conclude fundamental sаry guarantee tablished ‍​‌‌​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌​​‌‌‌‌‌‌​‌​‌‌‌‌​‌​​​‍Taylor’s guilt beyond ONION, P.J., a reasonable concurs in result. doubt. See also Girard v. 631 S.W.2d CAMPBELL, JJ., par- MILLER and 162 (Tex.Cr.App.1982). in the Stated ticipating. verse, if the supports an inference McCORMICK, Judge, concurring. other than the guilt appellant, of the in agree that the standard for review finding guilt beyond a reasonable doubt rational trier of any any case is whether is not a rational finding. fact the essential ele- could have found Moreover, scrutiny analysis sug- beyond ments of the crime a reasоnable gested in (that the motions for rehearing emphasize applica- doubt. I write to that the focus of our inquiry “any should be on outstanding rea- tion of the “exclusion of evidence which could rationally support the is, as stated hypotheses” analysis sonable verdict”) reveals it to be functionally indis- may be majority, one criteria which tinguishable from specifically rejected that arriving at the answer to the Supreme Jackson, supra, Court in result, ultimate it should not be con- but violative of the Fourteenth stan- Amendment. sidered an element of that ultimate majority emphasizes,

dard. And as the Finally, rehearing as the motions for change does not analysis method of persuasively argue, opinions this Court’s standard of review. have never held the dictates that if there is a “reasona- Logic analysis constitutes a different standard for of the hypotheses” ble other than the ultimately applied from that to be accused, be said that then it cannot

direct evidence casеs.* If the evi State’s “beyond has shown a reasonable been dence supports an inference other than a doubt.” In Hankins v. 646 S.W.2d finding recognized of the essential elements of the we that crime, direct and circumstantial evidence were rationally then no trier of fact could equal dignity. be treated with find the guilty beyond accused a reasonable effort to weave into the standard irrespective doubt —and this is true difference or any exception late review or character of the evidence. of evidence special type treatment for one sum, we are convinced there are no logic. or the will fail for lack of assaying analytical guidelines better for this standard to the Lastly, whether a trier of fact could have rational us, outcome is the cases before the final found the elements of the crime essential Therefore, overruling in the same. I concur beyond any given reasonable doubt rehearing in each States’ motions upon conviction had circumstantial evidence case. than those we currently employ. DAVIS, are rehearing The State’s motions for TOM G. W.C. DAVIS TEAGUE, JJ., in this concurrence. join overruled. * (Tex.Cr.App.1931); Castro opinions have It is true that some of the Court (Tex. quoted language apparently originating from 115 Tex.Cr.R. Juris- Jones v. pen Cr.App.1930); an author or editor of Texas 111 Tex.Cr.R. prudence (Tex.Cr.App.1928) (Opinion to the effect in circumstantial Rehearing); Jack- “review evidence cases an court will Motion for on State’s Second presumption son v. the evidence in 274 S.W. 585 101 Tex.Cr.R. innocent,” 309, p. the accused is Mathis v. § Tex.Jur. 100 Tex. 272 S.W. 204 Cr.R. 146, 264 Fitts v. S.W. 98 Tex.Cr.R. inaccurate, technically Literally 1924); 86 Tex. Wales v. attempt statement is revealed as a writer’s 217 S.W. 384 Cr.R. convey State’s burden of the notion that 203 S.W. Wilkie v. Tex.Cr.R. adducing proof beyond doubt a reasonable Hampton corollary presumption conceptual but a (1877), Tex.Ct.App. are cited ‍​‌‌​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌​​‌‌‌‌‌‌​‌​‌‌‌‌​‌​​​‍for the innocence, produce and a failure to proposition Tex. evidentiary quantum operates mentioned inaccurate to absolve the Jur.2d, (1961).] p. appellant. n. Hill v. § 118 Tex.Cr.R. [See

Case Details

Case Name: Wilson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 23, 1983

Citation: 654 S.W.2d 465

Docket Number: 072-82

Court Abbreviation: Tex. Crim. App.