*1 Inc., Group, petitioned Plains Overseas 670 S.W.2d into an He order. for writ (Tex.App.—Houston corpus contempt [1st Dist.] no after he was in habeas held writ) (determining pay arrearage. that who obtained to creditor for failure firstWe judgment against person may individual was entitled observed in Hall that a not be corporation I, turnover against imprisoned to order until for debt under article section successfully pierced corporate creditor veil in Texas Constitution and that separate proceeding); obligation provide support Steenland Texas contractual Ass’n, beyond Commerce Bank required Nat’l that above and under the (Tex.App.—Tyler Family 390-91 writ refd Code is debt. Id. at 658. n.r.e.) (concluding temporary solely turnover statute does order was issued appointment not authorize receiver agreement. to sell on the contractual We held that non-exempt homestead to obtain contempt by excess the order of was not authorized value until substantive issues are established statute therefore was not enforceable separate proceeding brought pur- in contempt. Id. at 659. Thus Hall demon- pose). may general a court strates that have sub- jurisdiction ject-matter yet to issue an order A turnover order is not a substitute for authority by contempt. lack enforce it allowing established remedies a creditor to Wallace, (hold- See also property judgment reach owned debt- ing pay attorney that a court order to fees in or claimed to possession of a subject trial advance of at- collateral stranger may to the lawsuit. A creditor seek tack mandamus because the order was garnishment against join parties or third issue). beyond power of the trial court to and, against a suit them the debtor successful, against obtain a order power turnover A court does not have haul a However, party. may the third jail a creditor court citizen into and order her to until not seek a par- turnover order third empties she confesses her without proceedings. purse. may require ties other initial It not be as efficient to plead plaintiff prove why has a she challenge by A corpus habeas collater- however, person’s money; our to a contempt judgment, al attack on the which system jurisprudence demands it. I would generally will be if the unsuccessful court has discharged order court Cox because the trial jurisdiction parties subject over the and the did not turn- have issue the Johnson, matter. at 419. How- order, and over therefore could not enforce it ever, jurisdiction a court over the by contempt. subject matter, general yet power lack particular judgment render a or order Indep.
case. Austin Sch. Dist. Sierra Club, (Tex.1973). Such “only situations occur where the error very quite power serious and strikes at the judgment.” to render Id. at CLEWIS, Appellant, Elbert view, my the trial defect court’s turnover than a order more mere error the manner it turnover exercises Texas, Appellee. STATE jurisdiction. Rather, goes very au- thority of the court to order issue a turnover No. 0450-94. place. first There are some actions Texas, Appeals of Criminal beyond are so a court that En Banc. they by contempt are not enforceable even
though
the court
otherwise
Jan.
parte
the ease. For
in Ex
example,
over
Hall,
(Tex.1993),
contractually agreed pay temporary spous- support, incorporated al child which was *3 Ashford, III, Dallas,
George appel- E. for lant. Dallas,
April Smith, Atty., E. Asst. Dist. Huttash, Austin, Atty., Robert A. State’s for the State.
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW MALONEY, Judge.
Appellant
burglary
was convicted
building,
Fifth
Appeals
and the
Court of
affirmed his
Clewis v.
conviction.
1994).
S.W.2d
(Tex.App.—Dallas
In his
review,
ground
appellant
sole
contends
appeals
refusing
that the
erred in
court of
review the evidence
determine whether
factually
sufficient
sustain his convic
tion. See Stone v.
appeals The court of held that Texas con statutory provisions grant
stitutional and
“ap
authorize
courts of
exercise
pellate jurisdiction
questions.”
to review fact
Clewis, 876
at 430.
The courts
possess “fact-finding
do not
authori
“
ty,”
but
‘unfind’ a fact determination
that the
has found or failed to
Id.
find.”
at 430-31. The court of
held
further
that the correct
of review for
standard
factu
sufficiency
al
of the elements of the offense
noncapital
Virgi
cases
the Jackson v.
nia,
443 U.S.
99 S.Ct.
61 L.Ed.2d
(1979),
“whether,
viewing
standard:
after
evidence
most favorable
...
prosecution.’
favorable to
light most
any
trier of fact
rational
prosecution,
only if it is so
verdict
elements
aside the
set[s]
found the essential
[and]
could have
overwhelming weight
doubt.”
Id.
beyond a reasonable
the crime
unj
Clewis,
2789;
clearly wrong
99 S.Ct.
as to be
crimi
holding harmonizes the
This
ust.”1
jurisprudence of this State
nal and civil
ap
agree that courts of
we
While
questions of
review of
regard
authority to review
with the
peals are vested
State, 43 Tex.
sufficiency.2 Bishop v.
factual
cases,
part
in criminal
we
questions
fact
Clewis,
(1875);
also
see
appeals’ holding that
ways
court of
with the
Florida, 457 U.S.
(citing Tibbs
for factual
standard of review
the correct
2220 n.
45 n.
102 S.Ct.
the elements of the offense
(1982);
Caterpillar
Cropper
Rather,
endorse
L.Ed.2d
standard.
we
the Jackson
*4
(Tex.1988);
Co.,
646,
McGarry’s analysis in
con
652
Tractor
754 S.W.2d
Chief Justice
his
Clewis,
(Tex.
349,
State,
curring opinion in
and conclude
354
653 S.W.2d
Minor v.
not
1983) (Cadena, C.J.,
of review does
the Jackson standard
con
App.—San Antonio
right
noncapital
to an
satisfy a
defendant’s
curring)).
Clewis,
questions.
appellate review of fact
C.J.,
(McGarry,
concur
876 S.W.2d
Appellate
of
Courts
Fact Jurisdiction
1.
ring).
proper
that the
standard of
We hold
question of Texas
are faced with a
We
sufficiency of the elements
for factual
review
The
appeals.3
of
regarding
law
the courts
by the
is the one articulated
of the offense
jurisdic
appellate
confers
State,
Texas Constitution
Appeals in
v.
823
Third Court of
Stone
Const,
appeals,
courts of
Tex.
upon
tion
The court of
“views
S.W.2d at 381:
6,4
V,
power
§§ 5
that includes
prism of ‘in the
art.
&
all
evidence without the
sufficiency
tively adopt
reject
stan-
or
the factual
split
in the courts of
1.There
is a
of
State,
211,
sufficiency
Rodriguez
215
v.
888 S.W.2d
as to the Stone
stan
dard.
factual
State,
1994);
(Tex.App.—Corpus
Harris v.
to adhere to
Christi
dard. The Austin court continued
1993,
State,
(Tex.App.—San Antonio
standard in Orona v.
836 S.W.2d
review a case
facts
well
law).
Acknowledging
that “state
re
undoubtedly
view
will serve
the vast ma
While this Court has not determined
jority
process
of cases to vindicate the due
proper
sufficiency
standard for a factual
protection
Winship
from [In
]
follows
re
review of the elements of the offense
[397 U.S.
90 S.Ct.
133
Clewis,
jury.11
at 429 Texas
or the Texas Code
ted to the
876 S.W.2d
Constitution
Schuessler,
ap-
limits the courts of
(citing
parte
1
Ex
846
Criminal Procedure
n.
S.W.2d
5).
Bigby, 892
peals to a Jackson review. See
at
n.
852
Jackson,
874-75;
ly
2218;
(McGarry,
conducted Jackson review when a defen
C.J.,
Choate,
dant attacks the
concurring);
the evidence of
see also
S.W.
offense,14nothing
an element of the
Accordingly,
courts of
should
Combs,
C.J.,
Clewis,
juris-
(McGarry,
we held that this Court had
new trial. correctly imports Stone standard [T]he beyond-a-reasonable-doubt burden sum, In the Jackson standard does not proof. Implicit analysis in the Stone sufficiency incorporate a factual review of the higher that court’s consideration of the appellate court evidence because the does not proof required for burden of a criminal weighing of the evi- review the factfinder’s interpret conviction. We Stone (McGar- Clewis, at 443 dence.15 876 S.W.2d attempt apply as an the civil factual C.J., ry, concurring). comprises The test sufficiency standard of review to the evi- comporting minimum standard for with fed- dence of the elements of a criminal offense process; due eral this Court never held by adapting it for the burden of different sufficiency that Jackson constitutes a factual proof Accordingly, trial. the Stone review. “impar- all standard assesses
tially”
factually
if it is
suffi-
determine
appel-
for a factfinder to have found
cient
D. Stone standard
guilty beyond
lant
doubt.
reasonable
Appellant urges us to hold that
when
(citations
Cleuñs,
sufficiency
factual
of an element of the of-
omitted).
*9
great weight
preponderance
and
of the evidence
Thus,
very
We
our review is a
limited one.
do
manifestly unjust.”
agree
We
as to be
re-evaluating
juror
not act as a thirteenth
Judge
concurring opinion and the court
Clinton's
Rather,
weight
credibility
of the evidence.
factually
these standards of
below that
final,
only
process safeguard
due
we act
"as
review,
applied,
Cle
are identical.
rationality
ensuring ...
of the factfinder.”
Clewis,
wis,
(Clinton, J., concurring);
866,
(Tex.
at 148
755 S.W.2d
Moreno
Crim.App.1988).
S.W.2d at 433 n. 10.
only
ciency point. Appellate courts should
judge
of the facts. Tex.Code Crim.Proc.
Notably, Chap-
jurisdiction
prevent a
Ann. art. 36.1317 & 38.04.18
their fact
exercise
Chapter
Jury,”
“Trial Before the
result;
ter
manifestly unjust
...
those courts
Actions,”
not
“Evidence in Criminal
do
reweigh
and set
“are not free to
the evidence
appellate process,
reference the
and no simi-
jury
merely because the
aside a
verdict
provision appears
Appel-
Rules of
lar
is more
judges feel that a different result
import
provisions
of the
late Procedure. The
Pool,
634, quot-
reasonable.”
S.W.2d
is,
part,
distinguish
in the Code
the role
ing Dyson
Corp.,
Olin
jury
judge
of the
at trial.
from
role of the
(Tex.1985) (Robertson, J., concurring).
In-
Further,
appeals’ interpretation
the court
judg-
rendering
substituting
or
stead of
statutory provisions
overly
of these
broad
factfinder,
reviewing
ment for that of the
essentially
any
preclude
appellate
and would
the case to trial before a differ-
court returns
jury’s
review of the
determination of the
Tibbs,
jury.
ent
2. Double
appeals
the court of
and remand the instant
proceedings
cause to that court for further
Neither the federal nor the Tex
opinion.
with this
consistent
prohibition against
jeopardy,
double
U.S.
Const,
Const,
V.;
I,
§
amend.
Tex.
art.
CLINTON, Judge, concurring.
preclude
seeking
acquit
defendants from
Florida,
through
squarely presented
tal
a new trial. Tibbs v.
The Court is
with the
2220;
compelling questions
at
at
a court of
U.S.
whether
Lofton
(Tex.Crim.App.
empowered
appeals
777 S.W.2d
is
to determine “factual
1989).
sufficiency”
As the United States
of the evidence of one or more
held,
Jeopardy
does not
elements of an
to sustain a conviction
Double
Clause
offense
prohibit
capital
if
a retrial
the reversal is based on
a criminal case less than
with the
Tibbs,
so,
assessed;
insufficiency
penalty
factual
is the
of the evidence.
death
what
(cited
proper
at
at
Clewis v.
457 U.S.
102 S.Ct.
2216-17
standard
review. See
(Tex.
Meraz,
156).
However,
at
at 430-431
785 S.W.2d
retrial
876 S.W.2d
1994).1
prohibited
App.—Dallas
Holding
is
where the
court de
with Trench
present
only intelligible
insufficient un
“[t]he
termines
the evidence is
is,
matter,
practical
past,”
propose
der Jackson. That
as a
to track evolution of
judicial
jurisdiction,
only
opportunity
present
one
in this
State
intelligible
legally
apply
evidence
sufficient to convict a defen
and then
that which is made
Meraz,
present.2
dant.
156.
to the
opinion
attorney
20. The dissent states that our
"increases
The local district
and the State Prose-
formulation;
Attorney
the likelihood”
will
victims of
cuting
ever,
citizens
become
how-
exchange
protecting
crimes in
a defendant
of other
the latter introduces consideration
unjust
pg.
from an
conviction. Dissent
matters,
alia,
perception
inter
his
of this Court’s
holding simply
Our
restates what the Texas Con-
understanding
“historical
of what it means to
provides
stitution
as to the
Brief,
'upon
Supplemental
the facts.'"
reverse
Appeals, insuring
Courts of
that the verdict is not
at 2 ff.
overwhelming weight of the evi-
to the
(Emphasis
appeals;
court of
all
above
already requires,
dence. The Texas Constitution
emphasis
supplied throughout by
other
satisfy
put on
ie. that the State
its burden to
otherwise indicat-
writer of this
unless
evidence of the elements of an offense in order to
ed.)
prove guilt sufficiently,
factually
legally.
both
outset, defining
terminology,
2. At the
1. The court of
did conclude that certain
court of
stated that in Texas criminal
statutory provisions
constitutional and
establish
“historically,
'insuffi
cases
there
been
“appellate jurisdiction
questions.”
to review fact
”
challenges
legal
or fac
cient evidence'
without
However,
apply
as to the "standard
review to
Id.,
Actually,
tual distinction.”
n. 1.
resolving
sufficiency challenges
factual
evidentiary challenges
constitutionally
invoked
charged
supporting
an element of the
judicial power
premises,
based
in the
settled ear
offense,
"when
the court of
decided that
ly
appellate jurisprudence of this State.
on in the
proof
"beyond a reasonable
the burden of
doubt,’
2A, post,
All
See Part I and Part
at 137-140.
such a factual
review is neces-
decisions
that caselaw later went unnoticed in
general sufficiency
sarily
re-
included within a
Virginia
such as White
performed
view
under the Jackson v.
(Tex.Cr.App.1979),
Combs v.
adopted
in this state.” Id.
standard of review as
IIIA,
1982).
43CM131,
(Tex.Cr.App.
See Part
S.W.2d 709
*11
Co.,
646,
Caterpillar
Tractor
(Tex.1988).
648-649
The court summarized
A
power
duty to do so in
the nature of its
and
Republic
The
of
Constitution
of Texas
Somers,
Ry.
Missouri Pac.
Co.
78 Tex.
judicial powers
government” in
vested “the
of
(1890),
viz:
439, 14
S.W. 779
Supreme
Court and such “inferior courts”
“...
power
Although
this court has the
Congress may
as the
establish.
The Su-
facts,
upon
and to set
review case
“appellate
preme
empowered
Court was
with
sup-
aside a verdict which has evidence to
jurisdiction only, which shall be
conclusive,
it,
reluctantly
port
power
that
has been
Id.,
Republic[.]”
within the limits of the
right
duty
exercised. But it is the
of
IV,
8;
§§ 1
Article
3 Vernon’s Ann.Tex.
verdict,
when it is
the court to set aside a
(1993).
482,
Const.
at 486
preponderance
such a
the evi-
of
Supreme
The
soon
that
Court
determined
dence,
clearly wrong,
that it is
[citations
functioning
as a court
under a constitutional
omitted].”
grant
general “appellate jurisdiction”
it
Ibid. When
in
turn the Constitution vested
power
questions
had the
to review both
“appellate jurisdiction”
this Court with
in
law, subject only
fact and of
to the restriction
cases,
see,
criminal
as we shall
it adhered to
right
by jury
to trial
remain inviolate.
previously
the doctrinal foundation
laid down
Bailey Haddy,
Dallam
at 378
Supreme
Court.
Smith,
Republic
Texas v.
Dallam
(1841),
Supreme
de-
Court
B
prosecutions
clared that
in criminal
it could
Meanwhile, the Constitution of 1876 divest-
judgment upon
revise the
facts as well as
law,
jurisdiction
Supreme
ed the
over
option
appellant.3
Court
Accord:
cases,
Bishop v.
The
criminal
court of
43 Tex.
at 400
created
former
(1875) (as
Bigby,
appeals,
granted
quoted
power
it the same
taken
(Tex.Cr.App.1994).
Supreme
at 872
“appel-
Until
the 1891 from the
Court to exercise
cases,
constitutional
amendments the court contin-
late
...
all criminal
Id.,
V,
6;
ued to
grade.”
§
reaffirm and exercise its
to whatever
Tex.
(State
1879)
review and
Printing
reverse
verdicts on factual Rev.Stat.
Office
Cropper
v. The
issues. See
Legislature redundantly
cases collected in
declared verba-
post,
8;
imbroglio
§§
at 144-146. The current
recurs
1 &
2 Gammel’s Laws of Texas
more than a decade since the issue was raised
1636-1639.
upon
germane
the 1981 amendments to
constitu
years
Legislature
Some ten
later the Sixth
co-
provisions divesting
tional
this Court of its direct
penal
procedural
dified
statutes in criminal
appeal jurisdiction
ap
in favor of the courts of
appeals by
matters. Title VII in the latter treats
peals
except capital
in all cases
murder where
and, building
the State and defendant
on the
penally
imposed.
the death
Several corut of
Court,
Supreme
foundation laid down
question
up
addressed the
but came with
procedural
structured the
formulation for all
"open”
mixed answers. We left similar issues
subsequent appellate dispositions, viz:
(Tex.Cr.
Minor v.
judgment
"Art. 742.
criminal ac-
App.1983), partially “closed” some in
Meraz
tion, upon appeal, may wholly
be
reversed and
1990),
(Tex.Cr.App.
“[Yet], the State failed general practice it has been the prove corpus delicti in this murder case. of this court to refuse to set aside a verdict Id., conflicting, where the evidence was but sufficient, believed, where there was Thereafter, the Court continued to follow (citations omitted) finding, Judge the lead of Willson Walker v. ordinal). (emphasis in See, supra. e.g., Grimmett v. Tex. case, But even such where it was *13 (1886) 631, (Willson, App. 2 S.W. at 634 that the verdict wrong, and it manifest J.) (where support evidence is sufficient to injustice was clear that had been done the verdict, against great and verdict is not defendant, aside, though has been set evidence, weight of court will not set aside there was support it. sufficient conviction); State, Dickey Tex.App. 21 (citations omitted). (1886) P.J.) (from (White, 2 S.W. at 810 doubted, And it has never been but has evidence, conflicting review of court not satis always court, by been considered not sufficiency; fied with “conviction such only authority, that it has the but that it testimony permitted prece not to stand as duty
was its
to set aside a verdict where
cases”);
State,
dent in such
Wilkerson v.
contrary
verdict was
to the
(1886)
P.J.)
(White,
Tex.App.
Second. Where testimony wholly there is no dence insufficient to warrant convic it, the verdict tion, will be set aside. against great and verdict preponderance evidence, judgment Third. reversed and Where the cause evidence is insuffi- remanded); (Tex. cient to presumption Lasky rebut of inno- S.W. cence, J.) the verdict (Davidson, (since will be set aside. Ct.App.1892) verdict judgment supported by the evidence
Fourth. Where the
verdict is
same,”
weight
“clearly against
to the
but
the evidence it will
be set
re
remanded).6
aside.”
versed and cause
explanation,
In context of his
First and Fourth
beTo
noticed is that all cases but the last two
sufficiency”
rules are but variations
a on "factual
paragraph
cited in the
above were delivered in
evidence,”
"conflicting
theme. First
involves
1886, roughly midway in the life of the
some of which is sufficient to sustain the State’s
appeals. Montgomery, handed down in June
burden,
that the
so
verdict will not be set aside
(near
Lasky,
February
end of
clearly ap-
unless in
of all the evidence it
term)
its final
are cited to demonstrate a fair
pears
wrong
to be
and makes manifest that an
consistency
understanding
measure of
in its
injustice has be done
”
defendant. Fourth involves
‘upon
"what it means to reverse
the facts.’
simpler
situation where the verdict
is so
plainly contrary
of evidence that it
must be set aside.
remanded.”). Compare: Foresythe v.
II
cause
(Tex.Cr.App.1892), viz:
Accordingly, the Court also continued
Attorney,
it
that
Prosecuting
would have
appellate
to deter
exercise its
thirty years
turn of the
sufficiency”
weigh
around the
“legal
as well as to
some
mine
(1891-1920)
century
was “a rather chaotic
sufficiency.”
opin
and decide “factual
See
term,
sufficiency jurisprudence”
period
all
of our
dur-
of its new
ions
the first month
ing
court of
and the
by Presiding Judge
which both the
written for the Court
State,
clear nor consistent”
20 Court were “neither
Hurt without dissent: Rollins
(‘We
meaning of
opin
understanding the true
(Tex.Cr.App.1892)
are of
their
S.W.
”
facts;’
‘upon
failing
sufficient,
“power to reverse
the
amply
is
[the evidence]
ion that
affirmed.”)
recognize
for con-
and
“two different standards
judgment
the
is
and hence
(Tex.
review,” they “always
State,
358,
ducting
at 359
Anderson v.
20 S.W.
(We
applied single (though ambiguous and fluc-
opinion that
Cr.App.1892)
are of
finding
tuating)
...
standard of review
evidence
not establish with reasonable
does
charged];
the evidence
State Prosecut-
certainty
insufficient.]”
fact
the offense
[of
Brief,
reversed,
wherefore,
ing Attorney’s Supplemental
at 10.8
judgment
is
and
is,
appellate
conflicting
accord-
Subsequently, confronting
8. That “chaotic”
condition
State,
opinions,
ing
name-
reflected in four
analysis under
the Court conducted a First rule
State,
P.J.);
(White,
supra
ly, Montgomery v.
Walker, supra,
"a careful examination of
State,
575,
order
trial
other-
58
another
would show
Coleman
(1910) (testi
451,
573,
no
for the
Judge
wise
Morrow cites
126
at 574
Cr.R.
S.W.
State,
believed,
proposition
justified conviction);
claimed
nor need mony,
Smith
if
during
period
81,
313,
he. Also observe that
State,
at
60
131
Tex.Cr.R.
S.W.
(evidence
from
to 1920
(1910)
1876
decisions
support
ver
314
sufficient
never
declared that in
discussed ante
once
dict,
testimony
be be
witnesses to
if
determining sufficiency of the evidence
State,
29,
lieved);
Martinez v.
Tex.Cr.R.
support
judgment, former
articles
(1911)
(testimony,
at
S.W.
if
(1895); 939,
(1879); 905,
C.C.P.
C.C.P.
C.C.P.
believed, justifies jury
guilty);
verdict of
(1911), required
court to view
S.W.
Oates v.
Tex.Cr.R.
light
evidence in terms of “the
most favor-
(1912)
(“if
evidence is
State’s
(or
state).”
able to the verdict
Those
believed, jury justified
guilt,”
in finding
be
made,
quibble
observations are
not to
about
ad
to Banks
infinitum
jargon
accepted
in this
what has become
(Court
(Tex.CrApp.1974)
Court,
suggest
origin and
but to
intend-
light
must view the evidence in
most favor
phrase
ment of that more
in this
modern
verdict;
so,
doing
able to
verdict will
jurisdiction.
which,
be
if there is “evidence
sustained
if
Jolly
supra,
accused”).
In
221 S.W. at
lieved,
guilt
shows
entering
quoted
before
into the discussion
short,
say
prosecution presented
wrote,
Judge
above
Morrow
“The State’s evi
which,
testimony
“if be-
such
evidence
true,
dence,
it as
accepting
which must be
lieved,”
supports
the verdict
to view
short_”
done,
In context
falls
favorable,” and
“the
most
thus sufficient
way
conveying
phrase
another
is but
support
with “reasonable cer-
verdict
commonly
meaning
same
as the one more
Jolly
merely used a
tainty.” The
court
courts,
longer
used
our
viz: “suffi
meaning
phrase equivalent in
to that which
believed,
[evidence],
cient
if
traditionally
assaying
utilized
courts
finding
guilt].” Walker v. The
su
[of
“legal sufficiency.”10
See,
pra,
e.g., Speer
But,
explained
again, as
Walk-
Tex.Cr.R.
S.W.
cases,
believed,
verdict);
other
(evidence,
er v. The State and iterated
sustain
*16
State,
308, 125
in that
does
rule out
engaging
58
exercise
not
Thurston v.
Tex.Cr.R.
S.W.
Id.,
note,
(1923)—all
incidentally, appel-
also
&e State Prose-
at
We
so
232
discussed
281.
Brief,
any
Attorney
present
cuting
Supplemental
at 10-11.
lant
evidence. The Court thus
did not
prose-
"upon
reversed
the facts” adduced
the
P.J.,
State,
Morrow,
Rochetszky
supra,
v.
pursuant
cution
remanded
to former articles
original
that
article
wrote on
submission
under
is,
939,
the Court did
938 and
C.C.P. 1911. That
may
judgment upon
a
the
"this court
reverse
939
sufficiency,”
not conduct a review for "factual
upon
explained:
law as well
the facts.” He
being
competing
no
there
no
evidence
thus
done,
done,
rarely
While it is
and is never
"...
"contrary
weight
claim
was
the verdict
reasons, yet
except
strongest
court
for the
(evidence
Compare:
rule
the evidence.”
Third
many
necessary
it
occasions found
has
innocence)
presumption
to rebut
insufficient
judgment, where the verdict was
set aside the
formulated
&e
with First and Fourth rules
manifestly wrong,
an
and it is made clear that
State, supra, at 630.
court in Walkerv. The
injustice
accused.
Walker
was done to the
See
State,
609,
Tex.App.
and offier cases listed
v.
State,
52, 260 S.W.
In Green v.
97 Tex.Cr.R.
689,
2, p.
Crim.Stat. vol.
in Vernon's Texas
(1924),
evidentiary
the Court reviewed
suffi-
939,
note 14.”
ciency
rape
article
case under former
Id.,
is a
S.W. at
That formulation
1911,
judgment “upon
to reverse the
the
C.C.P.
Judge
Willson distilled
facts,”
restatement
First rule
duty to do
"it is our
so when
because
Walker,
629-630,
at
the
the cases in
from
viz:
support
there
sufficient evidence to
it”—
is not
sufficient,
conflicting
some
is
but
evidence
strongest light
the evidence viewed in its
“when
case,
believed,
state,
prove
still
be
the
verdict
standpoint
fails to make
from the
wrong
Id.,
196,
that it
where it manifest
set aside
guilt reasonably
260 S.W. at
certain.”
State,
injustice
State,
On re-
an
has been done.
clear that
citing Jolly
supra;
v.
v.
Pierson
242,
(1923);
Judge
pointed
the
hearing
out that
Hawkins
McCollum
suaded
convict. The reversal
Brief,
simply
Supplemental
But
op-
affords
defendant a second
12-13.
since the
portunity
“legal sufficiency”
judgment.”
to seek a
conducted
review
favorable
1925,
pursuant
848,
to former article
C.C.P.
Florida,
31,
42-43,
Tibbs v.
U.S.
Walker, supra,
Third rule
under
2218,
case,
possessed
which it then
exclusive
over
A
“appellate jurisdiction”
appeal.
on direct
jurisprudence
Then
civil
on the
(Tex.Cr.
In White v.
145
sanity
proceedings involving a
As
internal construction and
con-
issue which
caselaw
Id.,
clear,
struing the
first sen-
the trial court alone
fact
at
statute make
the
finder.
findings
“legal suffi-
tence embraces both
of
261.
sufficiency,”
they
ciency” and “factual
as
cursory
Thus without so much as a
exami
known;
merely
be
second
came to
the
ad-
germane
pronounce
nation of
determinative
judgment
that when
is reversed for
monishes
contrary,
ments
this Court to
Part
see
latter,
must be
cause
remanded.14
B, ante,
B,
by ipse
dixit
Part II A &
as if
State, supra,
In Combs v.
the Court was
purported
deny
appellate
the Court
“jurisdiction
deciding
question
of its own
jurisdiction, power
previous
sufficiency questions
they
to review
once
ly found, delineated, confirmed and exercised
passed
Ap-
on
of
have been
Courts
Ibid. Ex
in appropriate
eases.
also
Id.,
Upon
peals.”
reviewing
Article
Watson,
parte
902,
606
at 905-906
S.W.2d
V,
6,§
before and after the 1981 amend-
(Court
(Tex.Cr.App.1980)
constrained
fol
ment,
1820,
amended,
Article
VAC.S.
as
White);
Combs v.
709,
low
relevant,
and civil cases
Court
deemed
(White
(Tex.Cr.App.1982)
and Watson
alluded White and Martin and stated—
settled that
this Court
lacks
erroneously—“our
albeit
determinations
of
pass
weight
upon
preponderance
evi
sufficiency of the evidence
have never
in-
dence).
weight
passing
preponder-
volved
Furthermore,
the White court
surely
failed
Id.,
ance of
evidence.”
at
Just as
716.
to consider the
Old
provision
venerable
Code
erroneously
said,
the Combs
per-
“We
through all
pro-
continued
codes
criminal
may
ceive no other standard
be utilized
including
cedure to and
Article 44.25. C.C.P.
Appeals
in reviewing
the Court
criminal
1965, viz:
other
convictions
than
of the evi-
Id.,
“The Court of
Appeals
Criminal
dence to
conviction.”
n. 1.
judgment
action,
reverse the
ain
wrong
Both statements
flat
are
upon
as
upon
well
law as
A
inherent
in successive constitutional
facts.
cause reversed
grants
“appellate
because
verdict
is con-
jurisdiction”
in criminal
trary
Court,
evidence
e.g., Republic
shall be remanded
cases to
Smith,
for
new trial.”
supra;
appeals,
the former court of
States,
14. With the advent of
Burks United
437
"to the extent of conflict" with Burks-Greene.
1,
2141,
(1978),
U.S.
S.Ct.
98
57
jeopardy
L.Ed.2d 1
There is no
or other known constitu-
19,
2151,
Massey,
Greene v.
437
problem
U.S.
S.Ct.
tional
where the court of
or this
”
(1978), mandating
acquittal
L.Ed.2d
insufficiency
an
when
Court reverses for
under
“factual
„
44.25,
Florida,
court has determined the
Article
as amended. Tibbs v.
31,
2211,
"legally insufficient,"
be
U.S.
(reversal
72 L.Ed.2d
noted that the
44.25, ante,
"against
second sentence in
conviction because
“to
opposed
extent of conflict
evidence”
to "insuffi-
with the federal constitutional
retrial).
ciency of the
requirements
evidence” will not bar
jeopardy protection expressed
(In
above,
dissenting opinion
his
note
153-154 and
[those] decisions cited
unconstitutional."
Presiding
Judge
foregoing
our
reviews
inci-
(Tex.Cr.
Johnson v.
n. 2
comments,
my
dental observations and
to find
App.1978);
parte Colunga,
accord: Ex
"position [today]
posi-
is inconsistent with the
(Tex.Cr.App.1979).
n. 2
"apparently”
my
tion” he
believes I
dis-
took in
Legislature revamped
When the
affected stat-
senting
Bigley
supra,
at 32-
provisions
appellate
utes and code
to restructure
precis
position,
But
latter is more
than
jurisdiction pertaining
courts and
to criminal
decided,
uncritically reporting what Johnson
appeals,
by inserting
it revised Article 44.25
part
predicate making point going
“courts of
or” in the first
sentence
larger issue then under consideration. The first
deleting entirely the second sentence. Acts
paragraph
reprise
above is a
recitation
Leg.,
p.
§
67th
Ch.
re-
extension,
It thus
Bigley;
essentially
the second is
but
legislative
moved the
direction to
for
remand
surmising
legislative
a basis for
action in
trial,
presumably
new
44.25,
amended,
with Johnson v.
su-
opining
that Article
as thus
mind,
pra,
believing
it to
poses
problem
unconstitutional
no constitutional
to an
Bigley
under
Burks-Greene. See
finding
insufficiency,"
remand
of "factual
(Clinton, J.,
(Tex.Cr.App.1993)
S.W.2d 26
reforming
dis-
acquittal
or to
to an
”
32-33).
however,
court,
senting,
Indeed,
*19
"legal insufficiency
The Johnson
inas
Johnson.
it
pronounced
only
Article
dispositions.)
44.25 unconstitutional
confirms both
(“factual
State,
Court,
suffi-
e.g.,
(Tex.Cr.App.1986)
e.g.,
supra;
v.
Walker
review;
State,
lately
ciency” wrong
of
evidence
Foresythe
supra; and
standard
v.
defense);
rejection of
support
of
sufficient to
appeals.
courts
reconstituted
compare
to
of
349,
The Court went on
rule
at 351
v.
653 S.W.2d
Minor
decisions, e.g.,
1983) (viewed
prior
Banks
most
(Tex.App.—San Antonio
(verdict
592,
(Tex.Cr.App.1974
at 595
favorably,
support
con-
evidence sufficient to
any
there is
evi
must be sustained where
aggravated
deadly
viction for
assault with
believed,
which,
guilt
of defen
C.J.,
dence
shows
(Cadena,
nature of
weapon)
concurring:
dant),
in
with the test formulated
Jackson
by
appeals
court of
in
judgment rendered
318-309,
Virginia, 443 U.S.
99 S.Ct.
justifiable
grant
Combs creates
concern
2788-2789,
B Virginia standard for Jackson v. innovative defense, viz: court of review of affirmative opinions of the Court White most appeals to consider evidence also under critical especially came Combs implicit finding by jury, then favorable which, some examination courts from evidence whether determine all related all, routinely long have and are after been any of fact could have found rational trier “legal sufficiency” determining and “fac- both by prepon prove failed defense defendant Chronologically sufficiency.” tual the cases evidence; may reweigh or derance of dispositions this Court are: with ultimate evidence). reclassify the (Tex. Sckuessler v. (Tex. 1983) 13.83-050-CR (jury rejecting Arnold v. No. App.—El Paso verdict Christi, January insanity great weight App.—Corpus delivered defense 1984) evidence), (jury competency to stand preponderance finding of reversed 719 signifi- independent on two Both focused what is These clauses 'White Combs cance, consequences quite conclusivity and have known as the “factual clause” different jurisdiction upon between this V, the allocation of grant § as if it was a somehow appellate courts. court and intermediate power. appellate jurisdiction That is not ‘ap- operates general grant aas clearly explained by former jurisdiction,’ pellate and is fact the Cropper Caterpillar Company, Tractor judi- purports vest V which clause Article (Tex.1988), S.W.2d 646 viz: authority cial in the intermediate upon the latter, "The Constitution confers Texas to as which will courts. The referred clause,’ appeals 'appellate ... courts of conclusivity not as a 'factual functions regulations may under restrictions and grant such to the courts of but law,’ provides judicial authority prescribed by further as a limitation Ry. con- v. San Antonio & A.P. decision said courts shall be this court. Choate Co., 'the (1898).’’ brought S.W. 69 questions to them 91 Tex. clusive all of fact on Id., appeal omitted]. [citation or writ error.’ *20 great weight jury finding against great against preponder trial so of is manifestly unjust), ance of evidence as to be and if preponderance and evidence (Tex.Cr.App at reversed 719 S.W.2d up of improper people this is it is .1986)(under viewing Van Guilder evidence of amend the State Texas to the Constitu- most favorable to verdict a rational tion.” easily trier of fact could have found evidence Id., confessing at 154. After error in Van insufficient); incompetency of Guilder, accordingly proceeded the Court State, Hill v. See also 718 S.W.2d further to conclude: (trial 1985) (Tex.App.—Tyler court abused clause,’ conclusivity [T]he “... ‘factual revoking probation discretion where find Art, V, 6, operates § our within to limit ing ability pay con fees and cost so of jurisdiction jurisdic- and confers conclusive trary manifestly wrong to evidence as to be of tion on the courts to resolve unjust), reversed and remanded questions weight preponderance of of (since (Tex.Cr.App.1986) S.W.2d 199 Van adequate prove the evidence a matter disapproved Guilder appellate use of “factual Moreover, prove. that the defendant must standard, sufficiency” cause remanded for rec the courts of when are called onsideration).16 jurisdiction, to exercise their fact We need dwell on Van Guilder and appellant proved whether the his affirma- however; progeny, the Court overruled them tive defense or fact other issue where disavowed footnote 1 Combs. Meraz designated law has that the defendant has State, v. (Tex.Cr.App at 154 by proof preponderance of the burden .1990). the correct standard of re- Judge Duncan, writing The late for a unan- considering view whether after all the (three imous judges concurring in re- hand, relevant evidence issue at sult), why enumerated reasons Van Guilder great weight is so id., decided, 152-153, wrongly was at preponderance as to be conclusivity demonstrated that the “factual Therefore, manifestly unjust. Van Guider V, § clause” in Article has remained a State, supra; supra; v. v. Schuessler provision nearly constitutional for one hun- supra; progeny Arnold and their years, approved dred by through voters four Furthermore, 1 in are overruled. footnote id., 153-154, years, elections over those at supra, Combs is disavowed.” conclude: Id., “The court important therefore consti- at 155.17 It is notice tutionally given authority pointedly “expressed] to determine court Meraz no formally 16. Van reported, supra, (given applica- Before Guilder was rash awkward presumably publisher awaiting among judges, because the was Van tions of Guilder and division certiorari, application outcome of Pre former Court must formulate workable standard of re- Judge siding urged Onion and two others in vain view for affirmative defenses and matters similar evidence). requiring proof by be reconsidered. See preponderance Baker (Tex.Cr.App. at ff Id., 1986). Certiorari was June Judge opine denied 1986. Duncan went on to ulti- that the at holdings “actually by 178. Schuessler delivered in October was mate were dictated stare " 1986; again judges the same "properly three advanced decisis in that while the Court con- analysis opin perspective from different in an did not [all cluded it have the to review writer, ff; ion late sufficiency,]” the evidence for factual certain Judge Teague opinion. dissented without Ibid. “observations” made in White case are "com- harbinger turned out pelling” latter to be and "dictate the result we Guilder, Id., unlamented demise of Van et al. reached.” post. deference, Judge With Duncan and thus the State, supra, See also dissents in Hill v. Court did not take account that into White (Due prohibits affirming Clause appeal Process convic- decided direct in 1979—some two satisfied; V, Virginia years granted § tion Jackson unless neither before Jeopardy appel- ap- it nor Double Clause bars state in criminal cases to courts reversing peals. possessed late from conviction if verdict or Thus the White court the same guilty finding against great weight pre- jurisdiction” "appellate vested the Constitu- evidence), ponderance and Arnold v. 1876 and tion of amendments in 1891. And *21 intentionally knowingly opinion appellant in or entered of the role of the court of Id., building.” 440. reviewing sufficiency the at of the evidence relative proof of elements of the offense.” Id. opinion separate In a the Chief Justice (Tex. at Bigby 156. v. problem that the characterized treatment of in Cr.App.1994) capital a murder case which analysis,” he In- “a flawed and is correct. insanity rejected the defense was and deed, by the review devised the standard of assessed, penalty thus not death was does strongly of of the one smacks appeals at implicate the role of the court of supra. v. concocted in Van Guilder Of course, ah. rejected was in Mer- that formulation
az, supra. IV proper sufficiency A “factual review” can- practically “necessarily logically and not A Virginia included” within the Jackson v. latter in- standard of review because the is perfectly regardless “... It of is clear that solely designed determine suf- tended and party proof, had of and which the burden ficiency finding of the evidence prevailed regardless party of which before doubt, guilt beyond a the reasonable from jury, right to the the verdict loser had the viewpoint inquiry of the State. critical jury’s appeal assert on that the verdict was is the under Jackson not whether supported by the evidence or either court itself believes the evidence establishes against great weight prepon- the and whether, rather, guilt; viewing it all is after appropriate.” derance of the light “in the most the evidence favorable Co., Caterpillar supra, at Cropper Tractor prosecution, any trier of fact the rational elements of could have found the essential beyond crime a reasonable doubt.” cause, a In the instant conviction bur- U.S., S.Ct., 2789, L.Ed.2d, at at at glary building, appellant di- claimed on (last emphasis original). in “the Thus appeal “factually rect that the evidence is weigher is role as of the evidence factfinder’s knowingly show insufficient” to he inten- preserved through legal conclusion that tionally building. Clewis v. entered judicial review all the evidence is (Tex.App.—Dallas in favorable to be considered most 1994). origi- in prosecution.” (emphasis Ibid Appeals held that The Dallas Court of both nal). conflicting supports Where record statutory provisions grant- constitutional and must, inferences, reviewing court there- “appellate and authorized it to exercise ed fore, “presume—even if it does not affirma- Id., questions.” at to review fact appear tively in the record—that trier original). (emphasis any conflicts favor fact resolved such must to that reso- prosecution, and defer however, Believing, that when burden S.Ct., L.Ed.2d, Id., lution.” at “beyond is doubt” proof a reasonable such “necessarily a factual review is general sufficiency Conversely, inquiry included within for “factual suffi- performed Virginia ciency” pursuant under the Jackson to the test the conducted id., state,” adopted in standard of review this one used Dallas Court eschewed—the same standard, cases, applying the Dal- courts in civil as well other Court, Appeals previously the evidence used las Court of concluded this “a of fact to former court of Court sufficient for rational trier cases, any phrasing differences beyond found reasonable doubt that ante, recently Court so determined relative to ever since then as demonstrated insanity capital very power in a murder case defense of confirmed and exercised White, death, adding sufficiency” is- sentence to and overruled to determine "factual any years September was "mis reliance on White all until Meraz sues those wrong, placed." Bigby Ergo, respect opinion is the White Indeed, 1994). part just (Tex.Cr.App. as is the related of Meraz. MEYERS, “merely Judge, concurring. being semantical.” Clewis supra, Essentially, n. 10. lead the issue Our characterizes inquiry is “so whether verdict Appeals this case as whether the Court great weight preponderance a “factual suffi- properly refused conduct unjust.” manifestly as to be Ibid. jury’s Specifi- ciency” review of verdict. cally, appellant’s complaint is that the Court *22 weight “A reversal on the of the based weigh exculpatory evi- Appeals of refused only ... can evidence occur after the State evaluating in dence the balance when presented both has sufficient evidence rationality jury’s Although of the verdict. support persuaded conviction and has complaint generically this kind of has been Florida, jury to convict.” Tibbs v. 457 U.S. classified, com- together with other factual 31, 42-43, at 102 S.Ct. at 72 plaints sufficiency as appeal, a “factual (1982). examining L.Ed.2d When misleading point,” the is a little classification sufficiency,” therefore, the record for “factual my encourages in men- view and some of the reviewing may court determined or as tal associated resolution of difficulties legally “sufficient,” sume the evidence is oth problem presented generally here. See acquittal, erwise there would have an been Calvert, ‘No Evidence’ and Evi- ‘Insufficient leaving no cause to test the evidence for Error, dence’ Points 38 Tex.L.Rev. of sufficiency.” Having “factual thus met been satisfied, “legal the Jackson for test Clearly, appellant’s complaint is about the sufficiency” subsequent has no role in the jury’s factfinding, presents and therefore a inquiry for sufficiency.” “factual The review factual, legal, argument. Appellant not a ing longer no court “views the evidence contending, example, not for that was there prosecution;” most favorable to the (legal no evidence to the verdict weigh rather it must consider and the evi insufficiency) conclusively or that was he jury’s dence to determine whether the reso (innocence guilty shown be not as a matter conflicting manifestly lution of testimony was law), argument pres- of which either of would Florida, Id., unjust. Tibbs v. at factual, But, legal, question. ent a a S.Ct., 2218, L.Ed.2d, 661; at Cropper at although demanding plainly he is a factual Co., Caterpillar 648-649; supra, Tractor at verdict, jury’s of he specifi- review the is not 628-630; supra, Walker v. at Rochetsz cally contending supporting that the evidence ky supra, at 233. prove conviction was insufficient in itself to guilt. only claiming
his
He is
that the con-
trary
great
evidence was so
that
it over-
B
guilt.
whelmed the
of
evidence
Under such
Thus,
Appeals
the Dallas Court of
circumstances,
argues,
guilty
he
a
verdict
right
jurisdiction,
about its
power and au-
unjust,
clearly wrong, manifestly
or irration-
thority to review the
for
evidence
“factual
al.
sufficiency”
case,
in a
wrong
but
This distinction
between
contention
requisite
about the
proper
of
standard
prove
that evidence is insufficient to
fact
a
appellate
review
court must conduct and
and the somewhat different contention that
apply to the facts.18
overwhelmingly disproves
other evidence
Accordingly, joining
present
important
that fact is
in the
context
Court,
agree
judg-
I
evidentiary
per-
we should
vacate
because the kind
ment of
court
appellate
and remand the
formed
courts under the rubric
proceedings.
cause for further
by the
established
United States
Presiding Judge
right?
ventures "reservations"
Whose constitutional
The obvious an-
confirming today
right, power
about
a
swer: In
criminal case
accused
I,
judg-
right.
§
courts
to reverse a
such
constitutional
convicted,
insufficiency,”
ment of conviction for
"factual
Once
defendant is entitled to an
acquittal through
so
opportunity
to do
violate "the constitutional
to seek
a new trial.
Florida,
by jury”
S.Ct.,
Dissenting opinion
supra,
to trial
Texas.
Tibbs
L.Ed.2d,
naturally
question:
prompts
That
157-158.
at 663.
Virginia,
parties,
but rather the cause
443 U.S.
one
Jackson v.
(1979),
plainly
jury
ques-
wants a
by weighing
probative
criminal cases
believes,
Accordingly, even if
review.
one
favoring
particular fact-
of evidence
force
do,
actually requires
rule
Jackson
*23
probative
finding against
of evi
the
force
sufficiency,”
an
“factual
the
assessment of
Bigby
it.
disfavoring
dence
way
phrase
that
in
long
we have
understood
(Tex.Crim.App.1994);
Texas,
adequate
not
the
it is
an
substitute for
(Tex.Crim.
Meraz
by appellant.
kind of review demanded
really
only
that is
the
App.1990). Because
(Tex.Crim.
King v.
The instant cause
ultimately
years,
apply
itself
be
single
continue to
stan-
proof
the
of this fact. My
cursory
own
ex-
Virginia,
dard—the one
set out
Jackson v.
amination
of
as described in the
443 U.S.
99 S.Ct.
ate as
limitation
Burks-Greene,
sufficiency”
Legislature
in criminal
has not un-
“factual
standard
Clewis, 922
139-143
majority
cases. See
S.W.2d at
give
to
what
dertaken
back
(Clinton, J.,
However,
concurring).
these
away
it
it
have taken
in 1981 when
fears
eases were decided under the earlier versions
circum-
Article 44.25. Under these
amended
statutory changes
The
of Article 44.25.
stances,
appropriate
I would find it
decide
to Article 44.25 render these cases irrelevant
did not do
“useless” act
they
supporting
can
to the extent
be read
Legislature
and neither did the
Johnson
sufficiency”
“factual
application
Article 44.25
1981.4 See
when it amended
majority adopts.
standard the
Trahan,
parte
155
quire
reviewing
jury
Supreme
the
for
civil
the
court
defer to
reaffirmed
the
questions
credibility
on
weight
sufficiency”
side that
the “factual
standard
See,
e.g.,
evidence.
Bowden v.
628
deny
by jury
right
not
to trial
does
(Tex.Cr.App.1982);
784
Frank-
I,
15, of
guaranteed
Section
lin v.
147 Tex.Cr.R.
Cropper,
Texas
754
Constitution.
See
(App.1944);
Mason v.
at 648-53. The
Court said
(App.1927)
Tex.Cr.R.
sufficiency”
the “factual
standard
not
does
(op.
reh’g);
on
Jolly
see also
right
by jury
violate this
to trial
because
(App.1920)
Tex.Cr.R.
S.W.
reviewing
allows the
court to “unfind”
(the reviewing court sets aside the verdict
facts and
for
trial
remand the cause
a new
when
strongest
viewed in its
jury.
before a different
See id. That the
standpoint,
State’s
fails to
from
reviewing
weigh
court could
certain).
guilt reasonably
pre-
make
These
disagree
jury’s
with the
resolution of conflict-
cedents
disap-
are unaffected
this Court’s
ing testimony was irrelevant.
As
See id.
proval of
out in
the cases set
footnote three
long
reviewing
as the
court does not render
opinion.
appealing party,
for the
civil
majority
application
The
avoids the
sev-
right
side
find a
does not
violation of the
enty-five years
precedent by
of well-settled
by jury.
trial
See id.
its
on an
reliance
1883 “seminal
for a
court” in
unanimous
Walker
Tex.
Cropper
support
proposition
could
(1883).5
App.
Clewis,
See
922 S.W.2d at
adopting
sufficiency”
a “factual
standard in
(Clinton, J., concurring).
According to
criminal
does not violate
cases
the Texas
majority,
seventy-five years
the last
by jury.
constitutional
to trial
But see
precedents
this Court’s
construing Article
Cropper,
(Robertson,
bility exclusively. review, conducting sufficiency when a factual
However, judgment forward, “cannot substitute its for that of day from this the deci- the majority sion factfinder.” Clewis v. at 133. The permit will on some Florida, majority cites to Tibbs v. judges occasions as few as 457 U.S. three of a mid- 42, 102 at at appellate level court to L.Ed.2d substitute their own However, personal judgment of its notion. of the evidence for the majority’s decision of citation to Tibbs is no more the twelve citizens of a who ball;” than an effort to observed the “hide the which witnesses and determined their case, truthfulness, instant credibility and ball is no less than an personally lis- presentation attempt jury’s to subvert testimony tened to the role as the exhibits, physical ultimate finder of fact in weight assessed criminal eases. credibility evidence, of all the and rendered a appellate The Court in Tibbs discusses the beyond verdict a reasonable doubt based review of factual in terms that upon all of this under the direction of the appellate performing indicate an that instructions experienced of an trial court.4 doing substituting function is no less than This usurpation decision is no less than an jurors, of the facts for that of the jury’s role as the finder of fact in crimi- though substituting even is not a new nal cases. originally verdict for the one rendered (Tex.
In Abdnor v.
Lastly, if a defendant is
The framers of the United
and Tex-
able
show
States
against
great
incorpo-
the verdict rendered
him at trial is so
as Constitutions took
care to
overwhelming weight
provisions
safeguard
rights
of the
rate
crimes,
clearly wrong
unjust,
evidence as to be
in part
citizens accused of
at least
eligible
pursue
prevent persons
being
then he or she would be
from
convicted for
Collins,
they
federal habeas relief.
Herrera
crimes
did not commit. The Fourth
protects
U.S.
113 S.Ct.
S.Ct.
al
(1960),
confessions,
corpus under Article
upon the
court,
corpus
if it is found that
may file an
relief
in state
he
unsuccessful
trial no
adduced at the
corpus in
record evidence
application for a writ of habeas
proof
found
trier of fact could have
rational
court.
federal
however,
may,
find
beyond
This
has held
guilt
a reasonable doubt.” Jack
Court
318-19, 324,
Virginia,
persons accused or con
protection
son v.
Conclusion my opinion, taking into account the statutory provisions constitutional and place protect rights per- of accused sons, post-conviction as well as the several HUTCH, Appellant, J.C.
methods which convicted individuals can innocence, pursue bona fide claims of actual Texas, Appellee. The STATE of Virginia Jackson standard sufficiency claims related to of the evidence No. 1231-94. appeal adequate protect on the citizens Texas, Appeals of Court of Criminal unjust of Texas from affirmances convic- En Banc. tions. I believe the Due Course of Law provision provides of the Texas Constitution April protection respect the same level of with meaningful appellate review of sufficiency claims of of the evidence as the
Due Process Clause of the federal constitu- agree tion. I cannot therefore that the Tex- requires as Constitution a different standard respect sufficiency review with of the evidence claims than that formulated Virginia Court in Jackson v. respect to such claims under the federal constitution.
Accordingly, single I hold would standard, legal sufficiency standard of Virginia, apply Jackson v. should to all insufficiency claims of the evidence raised Furthermore, appeal in criminal I cases. Legislature in- would hold that the did not for courts of tend Texas conduct separate factual review3 of the doing infiinge on
evidence as
so would
jury assigned
role of the
to it under Article
identical,
essentially
Virginia
I
believe Ae Jackson v.
standard should
3. Because the claims are
applied by
respect
believe that one standard of review should be
Ais Court wiA
to sufficien-
legal insufficiency
used to address claims of
cy of Ae evidence claims raised in Arect
insufficiency
well as claims of factual
(2)A).
to this Court under Article 37.071
standard,
course,
is that of
evidence. That
imagine
Virginia.
Jackson v.
I find it difficult
my opinion
any
reject any suggestion
5.I
Aat
where,
factually
a case
if the evidence is
insuffi-
way
disrespect
for Ae courts of
shows
support
guilty,
verdict of
that it
cient to
position
merely express my
Aat Ae
Texas.
I
legally
insufficient to
would not be also
promulgated by Ae ma-
new standard of review
guilty jury
said
verdict.
jority
necessary
is not
for Ae reasons ouAned in
my opinion.
Although
majority
or in
not addressed
review,
appellant's petition
discretionary
notes
challenged,
fense is
courts of
should
Although
the court of
indicated
review,
apply the
standard of
Stone
articulat-
“correctly” imports
that the
standard
Stone
Stone,
Appeals.
ed
the Third
beyond-a-reasonable-doubt
burden
In
Notes
notes taken. The entire line of cases reviewed 4-6. ante beginning that demonstrate from the theory To bolster advances State “appellate jurisdiction” included proposition that “a central tenet of suffi- and, further, sufficiency,” examine “factual Jolly v. State ciency review was solidified” in every juris- appellate court with criminal (1920)]. 288, 221 [87 Tex.Cr.R. recognized, diction S.W. acknowledged utilized exercised,” Brief, power, “reluctantly Supplemental albeit at 10.9 The statute and great preponderance support "The the evidence shows evidence a case of seduc- insufficient conclusively again that the animal branded at Murphy represents was tion.” Ibid. an in- [another]," request appellant instance and determining stance both "factual himself,” "did not brand the animal that his sufficiency” “legal sufficiency” adverse testimony is corroborated other witnesses. State. Cf. 149 Tex.Cr.R. Ramirez Accordingly, only court not found (1945) (evidence suffi- “wholly the evidence was insufficient warrant guilt beyond cient to establish of seduction rea- conviction,” but also concluded the verdict doubt). sonable "against great preponderance was dence; the evi- case, burglary Smith is this one another of a ” " thus, it would have for either discrete ‘great store. About it State notes reason, and the reversed cause weight’ language.” The circumstan- powers, remanded. That an exercise of both tial, and the sole contention is that "the evidence "ambiguous fluctuating.” but not insufficient the verdict.” For the Mitchell, alleged ‘burgla- is a common case of Court, Judge Lattimore reviews all the evidence ry with rape,” intent commit in which the why explains predicate it was sufficient "to prosecution proved burglarious entry but sim- guilty.” the verdict his Then in inimitable ply failed to show was made with intent to adds, style Judge gratuitously Lattimore “This i.e., rape, gra- commit that accused "intended to