Watson, Delair

IN THE COURT OF

CRIMINAL APPEALS

OF

TEXAS

NO.

PD-0469-05

DELAIR WATSON, Appellant

v.

THE

STATE OF TEXAS

ON

STATE = S

PETITION FOR DISCRETIONARY REVIEW

FROM

THE TENTH COURT OF APPEALS

MCLENNAN COUNTY

Cochran, J.,

filed a dissenting opinion, in which Keller,

P.J., and Keasler and Hervey, JJ., joined.

DISSENTING

O P I N I O N

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 A extremely @ angry and a little bit scared. She

started forward, screaming at him to get out of her house, but he didn = t move. A 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, A 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, A 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 left was because he thought she was going to stab him.

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 A 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 B 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 A 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, A I guess my response to the majority

opinion B > You have got to be kidding = B makes me irrational, along with 12

jurors and the trial court. @ [3]

II.

Should a Texas jury = s A guilty @ verdict be subjected to two distinct

A 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

crucial to distinguish clearly the constitutionally mandated hurdle of legal

sufficiency from the judicially created hurdle of factual sufficiency. The

result of finding one rather than the other insufficient is dramatically

different. If the evidence is legally insufficient, the defendant is entitled

to an acquittal by the appellate court, and he cannot be retried. If the

evidence is factually insufficient, he is entitled only to a second trial in

which the State may produce additional evidence to satisfy whatever gaps or

conflicts a court of appeals found in the first trial. [5]

It is essential that evidentiary hurdles like Jackson and Clewis

be easily distinguishable. If they are not easily and logically

distinguishable, allowing both to apply muddles the law and violates the cardinal

principle of appellate justice B the A uniform and coherent enunciation and application of the law. @ [6]

In Jackson v. Virginia, the

Supreme Court of the United States held that constitutional due process

requires reviewing courts to A determine whether the record evidence could reasonably

support a finding of guilt beyond a reasonable doubt. @ [7] In assessing the sufficiency of

evidence, A 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 A rational @ factfinder = s guilty verdict beyond a reasonable

doubt. A A rational @ verdict is one that is A based on reason @ ; it is A not foolish or silly @ ; it is A sensible. @ [10] It is a verdict A 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 Clewis , this Court

authorized Texas courts of appeals to conduct a second review of the evidence:

a factual -sufficiency review under the following test:

In conducting a factual sufficiency review, the court

of appeals A 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 B 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 A the facts @ as well as A the law. @ [15] Finding that it had jurisdiction A 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 faro [17]

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 A 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 A 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 A 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 A 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, A 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 A 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 A appeal @ from a criminal case, including both

the facts and the law, not merely over a A writ of error @ which, under the early English

common law, was a formal point of law that accepted the A facts @ uncritically. [29]

And Bishop emphasized the importance of the jury = s factfinding role once it has been

properly instructed on the applicable law. These cases hold that appellate

courts may re-examine the facts B the evidence in the trial record B in addressing the legal issues.

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 A 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 A 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 A factual @ as well as A legal @ sufficiency of the evidence in a criminal case. [35]

In fact, Smith, Bishop, Tollet, 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 question, A Does the evidence support the verdict

of the jury? @

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 A 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 A it clearly appears to be wrong. @ [39] Walker = s zone two is a A no evidence @ standard, and that means no

evidence or a mere modicum or scintilla. Zone three is A insufficient evidence, @ more than a mere scintilla but not

enough to A rebut the presumption of innocence, @ i.e. , not enough to meet Jackson = s A beyond a reasonable doubt @ standard. Zone four is a verdict

contrary to the A weight @ of the evidence; this zone translates to the modern Texas

civil standard of A against the great weight and preponderance @ of the evidence. [40]

Missing is zone 5 B the modern civil standard of A conclusive evidence @ B because the State is never entitled

to a directed verdict of guilty. The Walker court explained that its

duty was to determine which zone the evidence fell into.

In Walker , the court held that

the evidence was A 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 B 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 A 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 B 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 A 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]

A 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 A the decision of said courts shall be

conclusive on all questions of fact brought before them on appeal or error. @ [50] This A 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 A 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 A 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:

* A 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] A must be proven beyond a reasonable doubt; proved by facts and

circumstances which lead with reasonable certainty to the conclusion sought,

and not left to speculation and surmises[.] @ [56]

* A 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]

* A 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]

* A [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]

* A 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]

* A 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]

* A [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]

* A In reviewing the sufficiency of the evidence to support the conviction,

we must view the evidence in the light most favorable to the verdict. In doing

so, the verdict will be sustained if there is any evidence which, if believed,

shows the guilt of the accused. @ [63]

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 A with reasonable certainty, @ or A 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 , held that the Due Process Clause of the federal constitution

requires the government to produce A sufficient evidence to justify a

rational trier of the facts to find guilt beyond a reasonable doubt. @ [64] The Court explicitly rejected a A no evidence @ standard of review that it had

applied nineteen years earlier in Thompson v. Louisville . [65]

In Thompson , the Supreme Court had concluded that A 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. @ [66] In Jackson , the Court

explained that the A no evidence @ doctrine A secures to an accused the most elemental of due process

rights: freedom from a wholly arbitrary deprivation of liberty[,] @ [67] but that standard is inadequate for A a question of evidentiary > sufficiency. = @ [68] Instead, the correct standard must

incorporate the prosecution = s burden of proof B beyond a reasonable doubt B in a due-process review. The Court

noted that a A > reasonable doubt = has often been described as one > based on reason which arises from the

evidence or lack of evidence. = @ [69] For example, a reasonable doubt

might arise because the verdict is manifestly against the great weight and

preponderance of the evidence or because there is nothing more than a mere

scintilla of evidence to support some element of the offense. But, of course,

the reviewing court does not A > ask itself whether it believes

that the evidence at the trial established guilt beyond a reasonable doubt. @ [70] Rather, it A 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. @ [71] Thus, A all of the evidence is to be considered in the light

most favorable to the prosecution @ because the reviewing court may

impinge upon A > jury = discretion only to the extent necessary to guarantee the

fundamental protection of due process of law. @ [72]

In sum, due process does not permit

legal sufficiency of the evidence to be measured by a A no evidence @ (zone 1) standard; it must be

measured in terms of the prosecution = s constitutionally-mandated A beyond a reasonable doubt @ burden of proof (which does not

correlate to any of the A zones @ in civil review standards fashioned on the A 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. [73]

The Jackson A legal sufficiency @ standard is the one required by the

United States Constitution, and every state and federal court must comply with

that standard. [74] It is the

only standard required for reviewing sufficiency of the evidence. While noting

that A states are free to set higher

standards of review[,] @ this Court quickly adopted the Jackson standard for

the review of sufficiency of the evidence. [75]

We adhered to that single, constitutionally mandated standard for seventeen

years. [76] Similarly,

the Texas Legislature declined hints in Griffin that it could set a

higher standard of review; it did not enact any statutes to heighten the Jackson

sufficiency review.

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. [77]

However, in its 1982 decision in Tibbs v. Florida , [78]

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. [79]

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 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. [80]

Thus, an appellate reversal based on

the weight of the testimony A 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. [81]

Ironically, the Florida Supreme Court

had, in the Tibbs case itself, jettisoned its judicially created A factual sufficiency @ review because it was conceptually

flawed and unworkable in practice. [82] 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 A contrary to the law or weight of the

evidence, @ the Florida Supreme Court concluded that A an appellate court should not retry a

case or reweigh conflicting evidence submitted to a jury or other trier of

fact. @ [83] A Legal sufficiency alone, as opposed

to evidentiary weight, is the appropriate concern of an appellate tribunal. @ [84] 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 a questionable historical foundation. @ [85] Furthermore, the court concluded

that A [c]onsiderations of policy support,

if not dictate @ elimination of factual-sufficiency review on appeal. [86]

First, the court noted that the proper role of appellate courts in Florida

criminal cases was to leave questions of the weight of the evidence to the

trier of fact. [87] Second,

eliminating factual-sufficiency review A will avoid disparate appellate

results @ or further review to determine

whether a reversal is based on legally or factually insufficient evidence. [88]

Third, abolishing a factual-sufficiency review will A eliminate any temptation appellate

tribunals might have @ to reverse for factual insufficiency to avoid the

double-jeopardy bar on retrials for legal insufficiency. [89]

The Florida Supreme Court concluded that twelve ordinary citizens sitting as

jurors are better able to determine the credibility of the witnesses and the

weight of the testimony than are appellate judges reading the written record.

A factual-sufficiency review on appeal contradicts that fundamental fact.

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 , [90] 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. [91]

This Court rejected that standard, even for affirmative defenses in which the

defendant bears the burden of proof by a preponderance of the evidence B a civil law standard B because there can be A no reweighing or reclassifying of the

evidence by the appellate court. @ [92] This Court then applied B to the rejection of an affirmative

defense B the same Jackson standard of

legal sufficiency that it routinely applied to the elements of the criminal

offense. [93]

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 . [94]

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 A 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 A the essential elements of the crime beyond a

reasonable doubt. @ Rather, its function was to determine whether an

accused has proved an affirmative defense A by

a preponderance of the evidence. @ [95]

Judge Clinton = s position was adopted four years

later in Meraz v. State, [96] 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

A against the great weight and

preponderance of the evidence. @ [97] 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. [98]

Indeed, this Court was exactly

correct: the two different types of review are mutually exclusive. Review for

legal sufficiency under the Jackson A 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 A preponderance of the evidence. @ [99] In Meraz , this Court held

that the A factual conclusivity clause @ of the Texas Constitution applies

when the defendant bears the burden of proof by a preponderance of the

evidence. [100]

And this Court followed Meraz

in Bigby v. State, [101] 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. [102] In that

context, use of the civil standards adopted by the Texas Supreme Court is

entirely appropriate. In these cases, Texas courts have the power and

authority to conduct a sufficiency review of the evidence under controlling

supreme court precedent because: (1) both the burden of production and

persuasion is on the defendant; and (2) that burden is the civil standard of

proof A by a preponderance of the evidence. @ [103] Both Meraz and Bigby

are in line with the historical and jurisprudential underpinning of Texas civil

law and the Texas Constitution. We followed our brethren on the Texas Supreme

Court in applying the factual conclusivity clause to those A questions of fact @ for which the proponent bears the

burden of proof by a preponderance of the evidence. [104]

And we should continue to follow that court = s development of

sufficiency-of-the-evidence review when the proponent bears the burden of proof

by a preponderance of the evidence. [105]

The real issue is not whether A factual sufficiency @ review exists in Texas law. The

issue is whether A 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 A the facts @ as well as the law. [106]

If A the facts @ do not establish every element

beyond a reasonable doubt, those A 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 , [107]

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. [108]

The court of appeals stated that, under the A 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 constitutional law. [109]

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. [110] There is

nothing in the A 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 A right @ to a factual-sufficiency review of

his conviction based solely upon the A 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, [111]

other courts of appeals rejected it. [112]

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

Article V, section 6 of the Texas Constitution (the factual conclusivity

clause). [113] However,

the constitutional provision says nothing about any Texas court = s authority to conduct a

factual-sufficiency review of the evidence in a criminal case. As discussed

above, it is only when the law otherwise allows or requires the review of a

factual question that the conclusivity clause applies. [114]

In 1979, this Court had held, in White

v. State, that we have A 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, @ [115] the defendant = s contention that his court could

review factual sufficiency was rejected. [116]

If this Court, in 1979, did not have jurisdiction to conduct a

factual-sufficiency review, the courts of appeals could not gain any A 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 section 22.225 of the

Texas Government Code. That provision states, A A judgment of a court of appeals is

conclusive on the facts of the case in all civil cases . @ [117] This section says nothing about the

conclusivity of factual findings in criminal cases. [118]

Furthermore, this Court had, until Clewis , always held that neither we

nor the courts of appeals had any jurisdiction to assess the factual

sufficiency of evidence in a criminal case:

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. [119]

Furthermore, the Code of Criminal

Procedure contains two provisions that explicitly state that the jurors are the

exclusive judges of facts in jury trials. [120]

Articles 36.13 and 38.04 are clear statutory mandates which cannot be

reconciled with a judicially created doctrine that authorizes the courts of

appeals to redetermine the facts and the weight of the testimony or A unfind @ facts that the jury has found.

There are no analogous mandatory provisions like these articles for civil

cases. [121] Thus,

trial courts and courts of appeals may have implicit authority to redetermine

or A unfind @ facts and to reweigh evidence in

civil cases, but they do not have similar authority in criminal cases because

articles 36.13 and 38.04 clearly forbid any such reweighing or A unfinding. @

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 , [122]

this Court rejected Justice LaGarde = s thorough explanation in the court

of appeals of why factual-sufficiency review in criminal cases was neither

authorized nor appropriate. [123] Instead,

the Court adopted the reasoning and result in Stone . [124]

This Court cited an example to explain why factual-sufficiency review was an

important safeguard against runaway juries:

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. [125]

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 A rational @ or A 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 A 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. [126]

Thus, Clewis empowered the

courts of appeals to act as a 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.

In the past ten years Texas courts

have seen how it works in practice. Our decision in Clewis has been

cited, distinguished, explained, criticized, limited, clarified, or applied in

more than 5,000 cases, eleven law review articles, and nine treatise sections. [127]

It has kept lawyers, judges, and paper mills busy. We have A clarified @ or A refined @ Clewis in at least six cases

ourselves because we did not initially explain precisely how a

factual-sufficiency review differs from a legal sufficiency review. It is to

those cases I now turn.

F. Attempts

to Clarify Clewis .

The first clarification came in the

same year that Clewis was decided. In Jones v. State , [128]

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. [129]

A 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. @ [130] But the reviewing court must be

appropriately deferential to the factfinder,

finding fault only when A 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 A manifestly unjust, @ A shocks the conscience, @ or A clearly demonstrates bias. @ [131]

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. [132]

In 1997, the year after Clewis

was decided, this Court held, in Cain v. State , [133]

that the courts of appeals must continue to give considerable deference to the

original factfinder under a factual-sufficiency review. [134]

In that case we reversed the court of appeals because A it was not deferential to the jury = s determination of witness

credibility. @ [135] Thus, the weight to be given to A contradictory testimonial evidence is

within the sole province of the jury, because it turns on an evaluation of

credibility and demeanor. @ [136] Under this deferential standard,

however, the testimony of the forty nuns in the Clewis hypothetical

could well be rejected because acceptance of their testimony turns on an

evaluation of credibility. [137]

Our next major foray into an explication

of Clewis was in Johnson v. State [138]

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 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. [139]

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. [140]

After discussing both Cain and

Johnson , Professor Dix, for one, concluded that A it is arguable that little meaningful

difference exists between Clewis factual-sufficiency review and

traditional review of the evidence for legal sufficiency. @ [141]

In 2001, we took another stab at

clarifying Clewis in Goodman v. State . [142]

In that case, we acknowledged that A [p]erhaps the problem is that this

Court has not always been crystal clear in explaining how the courts of appeals

should analyze factual-sufficiency questions in a criminal case. @ [143] We relied heavily upon Chief

Justice Calvert = s 1960 law review article explaining A no evidence @ and A insufficient evidence @ standards in civil cases [144]

and distinguished the two types of civil factual-insufficiency zones. In zone

two, A the evidence in support of the

existence of a vital fact, considered standing alone, is factually too weak to

support it. @ [145] In zone four, there is conflicting

evidence, A [s]ome evidence supports a positive inference, and some evidence supports

a negative inference. @ [146] When the conflicting evidence is in

A fair equipose, @ a reviewing court may not conclude

that it is against the great weight and preponderance of the evidence or that

it is manifestly unjust. Only when the evidentiary scales tip A radically @ toward a negative finding on an

essential element may the reviewing court exercise any A thirteenth juror @ role and conclude that the jury = s verdict is A clearly wrong. @ [147] The problem with Goodman ,

like that of all of our Texas factual-insufficiency cases, is that it attempted

to force a square peg into a round hole. That is, the Jackson

legal-sufficiency test already incorporates the State = s burden of proof and persuasion B beyond a reasonable doubt B into its analysis while the civil

standard uses a zone theory of analysis to inferentially incorporate a A preponderance of the evidence @ burden of proof. The zone theory

may be useful for analyzing sufficiency issues for a defendant = s affirmative defense because those

defenses must be proven by a preponderance of the evidence B the same standard as in Texas civil

law. But it does not translate into a second-tier sufficiency review when the

State must prove every element beyond a reasonable doubt and the reviewing

court must ensure that there is sufficient evidence to support a reasonable,

rational verdict with proof beyond a reasonable doubt.

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). [148]

This A neutral light @ review seems to be the driving force

behind Clewis : it circumvents Jackson = s A 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 A manifestly wrong, @ A unjust, @ or irrational the factfinder = s verdict may appear to be.

In our 2003 Swearingen v. State [149]

decision, we reiterated the importance of giving deference to the factfinder = s credibility and weight

determinations, i.e. , the reviewing court must look at the evidence in

the light most favorable to the jury = s assessment of credibility and

weight.

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. [150]

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 , [151] we again

marched into the field of factual insufficiency, once more acknowledging that

the evolution of factual-sufficiency review A has been somewhat confusing. @ [152] In Zuniga , we further

refined the zone four A 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 A 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 A outweigh @ the contrary proof and still be

factually insufficient under a beyond-a-reasonable-doubt standard. [153]

But incorporating the A beyond a reasonable doubt @ standard into factual-sufficiency

review returned us to the Jackson legal sufficiency standard. Compare

the wording of the two standards:

* A 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 @ [154] (legal sufficiency);

* A Considering all of the evidence in a neutral light, was a jury

rationally justified in finding guilt beyond a reasonable doubt? @ [155] (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 B in a factual-sufficiency review B 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 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 articles

36.13 and 38.04 of the Code of Criminal Procedure because the legislature has

explicitly decreed that the jury is A the exclusive judge of the facts

proved, and of the weight to be given to the testimony. @ [156] Therefore, I certainly agree with

the Court = s decision today to overrule, or at least modify, Zuniga .

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 A 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 B i.e. , when the burden of proof was A 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 , [157]

that court seemingly came to the same conclusion that I would reach: the

factual conclusivity clause applies only to A questions of fact @ for determining the sufficiency of

evidence when the proponent bears a burden of proof by a preponderance of the

evidence. [158] 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 be maintained despite its

manifold problems.

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. [159]

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 A 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 A 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 A forty nun @ type cases. Professor Dix has cited

only twelve published cases in which the courts of appeals have reversed on

factual insufficiency grounds, [160] and most of

these were split decisions, while others were vacated by this Court because the

lower court used the A wrong @ Clewis analysis.

Furthermore, the A 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. [161] There is

no such statute in Texas.

The jurisprudential evil to which a

factual-sufficiency review might legitimately be a solution is the conviction of

an innocent person by a biased, irrational jury. But that is precisely what

the Jackson legal sufficiency review is designed to prevent. I am

unaware of any evidence that this standard is insufficient protection of a

defendant = s right to legally sufficient proof of every element beyond a reasonable

doubt.

One of the practical problems that

the Florida Supreme Court noted when it rejected its factual-sufficiency

doctrine was the A 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. @ [162] 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 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 B manifestly unjust convictions that

shock the conscience of the appellate courts B 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. [163]

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 A 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 A runaway @ juries that render guilty verdicts which are simultaneously

rational and reasonable, yet biased and manifestly unjust, it may enact a

statute mandating A factual sufficiency @ review. The most appropriate A thirteenth juror @ B the person authorized to second guess

the jury = s credibility and weight decisions B 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 of the

jury, the advocates, the witnesses, and the defendant. Further, he would be

privy to in-chamber or side-bar discussions not available to the jurors. If

there is to be a factual-sufficiency review, it ought to be pursued in a motion

for new trial under legislatively enacted statutes and standards.

Third, in the very same year that

this Court created A factual sufficiency @ review in Clewis , it also recognized

A actual innocence @ claims in post-conviction writs of

habeas corpus. [164] 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. [165]

Last (and least), as Judge White

pointed out in his Clewis dissent, A [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? @ [166]

In sum, there are alternate methods

by which the criminal justice system can address the A 40 nuns @ hypothetical B 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, A clearly wrong and unjust. @

I think that the Clewis A factual sufficiency @ review is internally inconsistent

and denigrates the role of juries in the state of Texas by requiring a 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 A did not say anything threatening or

anything to indicate he intended to sexually assault [Jennifer] Romo @ ; (2) A his conduct in grabbing the knife

could also be viewed as an effort to defend himself @ ; (3) A he did not flee the apartment complex @ ; and (4) Jennifer = s father A testified that her emotional state at

the time was one primarily of anger and confusion rather than fear. @ [167] All of these basic facts are true.

A rational trier of fact might well conclude from these facts that appellant

was not guilty of attempting to sexually assault Jennifer Romo. This jury did

not do so. It rejected this inference and instead concluded, from the totality

of the basic facts proven, that appellant did attempt to commit sexual

assault. Drawing inferences from basic facts to the elements of the offense is

the jury = s job as long as those inferences are

rational and reasonable. The mistake that Clewis invites is the

appellate court = s substitution of what it considers A a more reasonable @ inference from the basic facts than

the reasonable inference that the jury did, in fact, draw.

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 A mad, @ not A scared @ by appellant = s actions, and she A 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 A easy @ cases, the A 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 A 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 A 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.

Filed: October 18, 2006

Publish

[1]

443 U.S. 307 (1979).

[2]

Watson v. State , 160 S.W.3d 627, 630 (Tex. App. B Waco 2005) (quoting Zuniga v. State ,

144 S.W.3d 477, 485 (Tex. Crim. App. 2004)) (internal quotations omitted).

[3] Id. at 631 (Gray,

C.J., dissenting).

[4]

See Jackson , 443 U.S. at 318 .

[5]

As a practical matter, an appellate reversal for factually insufficient

evidence may result in the State offering a particularly advantageous plea

bargain or dismissing the case because, after years in the appellate orbit, the

witnesses are unavailable, judicial resources are limited, and trial dockets

are crowded. Whether either of these results serves the public interest is

doubtful.

[6]

Paul D. Carrington et al., Justice on

Appeal 11 (1976).

[7]

Jackson , 443 U.S. at 318 .

[8]

Id. at 319 (emphasis in original; citations omitted).

[9]

Id. (emphasis in original).

[10]

Webster = s New Twentieth Century Dictionary Unabridged

1496 (2d ed. 1983).

[11]

Merriam-Webster = s Dictionary of Law (1996)

(http://dictionary.lp.findlaw.com/scripts/search.pl?co=dictionary.lp.findlaw.com&s=rational).

[12]

Jackson , 443 U.S. at 319 (noting that this criterion A impinges upon > jury = discretion only to the

extent necessary to guarantee the fundamental protection of due process of law @ ).

[13]

922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (quoting Stone v. State , 823

S.W.2d 375, 381 (Tex. App. B Austin

1992, pet. ref = d)).

[14]

Dallam 407 (1841).

[15]

Id . at 407-10 (concluding that A We

believe that such a right is in accordance with the genius and spirit of our

institutions, and secured to him by the constitution and laws of this country @ ).

[16]

Id. at 411 .

[17]

The card game faro A enjoyed

great popularity during the . . . 19 th Century in the United States

. . . where it was practiced by > Faro

dealers = such as the

infamous Doc Holliday. @

Wikipedia, The Free Encyclopedia ,

Faro, at http://en.wikipedia.org/wiki/faro_%28card-game%29 (last visited September

1, 2006).

[18]

Smith, Dallam at 407, 411.

[19]

Id. at 411.

[20]

The court reasoned that, if the defendant = s

argument were accepted, it A would

protect from just punishment any offender, however flagrant his offense, if

committed before the passage of the act dividing the county @ because almost all former

counties in Texas were re-divided and renamed after the Republic of Texas was

created. Id.

But what, we will ask, was the

intention of the legislature in passing the act creating the county of Travis?

Was it to protect the guilty from punishment? Was it to open the prison doors

to them that were bound, without making any compensation to an injured

community and the violated laws? Was it to encourage crime and insult the

majesty of the constitution? No! It had other motives and other intentions in

view. Of this we are certain. And what they intended is binding upon us in

expounding the law.

Id. at 411-12. So,

although the supreme court considered A the

facts @ of the case,

the issue was decided upon a legal principle B a

defendant may be tried in a newly-created county in which he had committed the

offense, regardless of what that county was called at the time of the offense.

[21]

43 Tex. 390 (1875).

[22]

Id . at 391-92.

[23]

The charge simply said that the defendant was charged A > with

the theft of a certain cow, the property of Mrs. Lizzie Hill . . . @ Id . at 392-93,

402-03.

[24]

Id. at 398-403 .

[25]

Id . at 394.

[26]

Id.

[27]

Indeed, in Bishop , the supreme court was explicit:

A 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 397 (citations

omitted).

[28]

See Clewis , 922 S.W.2d at 130 (citing Smith and Bishop ); Bigby

v. State , 892 S.W.2d 864, 872 (Tex. Crim. App. 1994) (quoting Smith

and Bishop ).

[29]

Smith , Dallam at 409-10. The prosecutor = s

position was that, in criminal cases, the supreme court could exercise its

jurisdiction A only by

writ of error, and not by appeal. @

Thus,

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.

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 A 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.

[30]

44 Tex. 95 (1875).

[31]

1 Tex. Ct. App. 488 (1877).

[32]

Tollett , 44 Tex. at 97-98 .

[33]

Loza , 1 Tex. Ct. App. at 491-92 .

[34]

Tollett, 44 Tex. at 98 ; Loza , 1 Tex. Ct. App. at 490 (quoting Tollett ).

[35]

See Clewis , 922 S.W.2d at 131 n.6 (citing Tollett and Loza );

Bigby , 892 S.W.2d at 874 (same).

[36]

14 Tex. Ct. App. 609 (1883).

[37]

Id. at 630 . Under Walker , only the jury can assess credibility,

resolve conflicts in the testimony, or decide the weight that should be given

to the testimony. Id .; see also Lane v. State , 19 Tex.

Ct. App. 54, 70 (1885) (quoting Walker and stating, A This court does not

determine the credibility of the witnesses who testify in the trial court, or

the weight to be given to the testimony. It is the exclusive province of the

jury to decide these matters @ ).

[38]

For a discussion of the modern A zone @ theory, applicable in

Texas civil cases, see William Powers, Jr. & Jack Ratliff, Another Look

at A No Evidence @ and A Insufficient Evidence ,

69 Tex. L. Rev . 515, 517-20

(1991). The authors categorize zone 1 as A no

evidence, @ zone 2 as A insufficient evidence, @ zone 3 as A enough evidence to support

a jury verdict, but not so much that a court would be justified in interfering

with a contrary finding, @

zone 4 as against the A great

weight and preponderance of the evidence, @

and zone 5 as A conclusive

evidence. @ Thus, zone

1 in Walker would correspond to the modern zone 3, zone 2 in Walker

corresponds to modern zone 1, zone 3 in Walker corresponds to modern

zone 2, and zone 4 is the same in both Walker and the modern system.

Given recent

decisions by the Supreme Court of Texas, however, this entire A 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 A 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).

[39]

The phrase A clearly

appears to be wrong @

might well translate to A irrational, @ A unreasonable, @

or A not sensible @ under the Jackson

formulation.

[40]

At the time Walker was decided, the United States Supreme Court had not

yet held that the prosecution must prove all elements of a crime A beyond a reasonable doubt @ in all state and federal

criminal trials. See In re Winship , 397 U.S. 358, 364 (1970) ( A Lest there remain any doubt

about the constitutional stature of the reasonable-doubt standard, we

explicitly hold that the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged @ ).

Thus, zone four has no applicability to the elements that the prosecution must

prove beyond a reasonable doubt, but it is applicable to the elements that the

defendant must prove in establishing an affirmative defense by a preponderance

of the evidence.

[41]

Walker , 14 Tex. Ct. App. at 637 . Today, of course, the failure to prove

that the missing W.B. Mathis was dead would make the evidence legally

insufficient to support a murder conviction under Jackson.

[42]

Id. at 636 (noting, inter alia , that the State could have offered

evidence of the height, size, and weight of W.B. Mathis and of the height,

size, and probable weight to the person whose skeleton had been found).

[43]

Clewis , 922 S.W.2d at 138-39 (Clinton, J., concurring); but see id.

at 155 (McCormick, P.J., dissenting) (arguing that Walker was A wrong @ ).

[44]

Some language in Walker could be read to support the proposition that

the appellate court felt that it had the authority to reverse a jury verdict

even though the evidence was A sufficient. @ In Walker , the

court stated that A where

it was manifest that the verdict was wrong, and it was clear that injustice had

been done the defendant, [the verdict] has been set aside, though there was

evidence sufficient to support it. @

14 Tex. Ct. App. at 629 . But the conceptual problem is that the Walker

court did not have the current Jackson standard which requires proof

beyond a reasonable doubt, such that the jury = s

verdict will be upheld only if it is A reasonable, @ and A rational. @ There is nothing in Walker

that suggests that the Texas Court of Appeals would have found a verdict A manifestly wrong @ or that an A injustice @ had been done to the

defendant while at the same time finding it legally sufficient under this Jackson

standard. This same A language

gap @ problem occurs in

many other early cases in which A against

the great weight of the evidence @

appears to be a proxy for a verdict which, although supported by some evidence,

is nonetheless A irrational @ or A unreasonable @

even when viewed in the light most favorable to the factfinder = s verdict. See, e.g.,

Wilkerson v. State , 21 Tex. Ct. App. 501, 504-05 , 2 S.W. 857, 857-58 (1886)

(evidence at trial showed that defendant was an innocent bona fide

purchaser of cow, and when cattle seller admitted in post-verdict affidavit

that the blame for selling the true owner = s

cattle was entirely his, A the

verdict and judgment in this case are against the weight of the evidence @ ); McLaren v. State ,

21 Tex. Ct. App. 513, 516 , 2 S.W. 858, 858 (1886) (when all of the evidence

showed that the defendant innocently found the stolen property on the road,

never claimed to own it, and returned what he could to its true owner, court

found that A [t]his

conviction is not only not supported by, but is against the evidence and the

law @ ); Foresythe v.

State , 20 S.W. 371 (Tex. Crim. App. 1892) (when no evidence showed that the

defendant stole the horse, he had a bill of sale for it, he had an alibi, and

the only inculpatory evidence was that one witness saw defendant in the pasture

where the horse had been, A the

testimony [did not] establish the guilt of defendant to a reasonable certainty @ ); Murphy v. State ,

65 Tex. Crim. 55, 62 , 143 S.W. 616, 620 (1912) (reversing conviction for

seduction for insufficient evidence; A Taking

the record as a whole, and that prior to date that prosecutrix says an

engagement to marry took place, and the first act of intercourse, defendant is

not shown to have ever paid her attentions, or conducted himself in a way as to

win the love and affection of a woman, we deem the evidence insufficient to

support a case of seduction @ );

Rochetszky v. State, 94 Tex. Crim. 423, 426 , 251 S.W. 232, 233 (1923)

(when A [t]he only

witness upon whom the State relied reveals such doubt and uncertainty that, in

our judgment, his testimony does not support the finding by the jury, beyond a

reasonable doubt, that the appellant was the offender @ evidence was insufficient to support

conviction); Villareal v. State , 140 Tex. Crim. 675, 680 , 146 S.W.2d

406, 409 (1940) (in capital murder prosecution, reversing conviction because

physician = s testimony

contradicted that of other witnesses; A [o]rdinarily

the jury may so decide, but we doubt that the conclusion of the physician as to

the position of the parties is sufficient to prove the existence of the facts

beyond a reasonable doubt in this particular case, and in view of all of the

facts and circumstances which are without dispute @ ).

I do not think that this Court would be proud to say that the evidence in these

cases was legally sufficient under the Jackson standard.

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 A [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 , A 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 .

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 a

derelict upon the waters @

of Texas law. I would consign it to the trash barrel where it belongs.

In sum, any

review of historical precedent must focus upon the particular facts and the

state of the evidence in the specific case before the reviewing court, not upon

selective verbiage that the court may have used to describe the sufficiency of

the evidence before a single, coherent standard was announced in Jackson.

[45]

Alicia L. Locheed, The Development of the Court of Criminal Appeals , 55 Tex. B.J. 1052, 1054-55 (November,

1992).

[46]

See id. at 1053.

[47]

See 1 George D. Braden, The Constitution

of the State of Texas: An Annotated and Comparative Analysis 53-57

(discussing the historical importance of trial by jury in Texas and noting that

A [t]he oddest thing

about > shall remain

inviolate = is that

Texas requires a jury trial under circumstances that are not considered worthy

of a jury trial in most states @ ).

Texas is still one of the most jury-deferential states in the United States.

We allow jury trials under situations virtually no other state permits; our

constitution holds that trial by jury is an A inviolate

right @ which cannot be

abridged; we permit jury sentencing in all criminal cases; we forbid a trial

judge from commenting on the weight of the evidence, to name but a few of our

state = s unusually

jury-deferential laws and policies.

[48]

Tex. Const . art. V, ' 6; see 1 Braden at 399 (noting that the A [c]reation of the courts of

civil appeals was one of a series of attempts to reduce the caseload of the

supreme court @ ).

[49]

1 Braden at 399.

[50]

Tex. Const . art. V, ' 6; see also Tex. Gov = t

Code ' 22.225(a) ( A [a]

judgment of a court of appeals is conclusive on the facts of the case in all

civil cases @ )

(emphasis added).

[51]

Choate v. San Antonio & A.P. Ry. Co. , 91 Tex. 406, 410 , 44 S.W. 69,

69 (1898); see also Cropper v. Caterpillar Tractor Co ., 754 S.W.2d 646,

648 (Tex. 1988); Pool v. Ford Motor Co , 715 S.W.2d 629, 633 (Tex. 1986);

In re King = s

Estate , 150 Tex. 662, 665 , 244 S.W.2d 660, 661 (1951).

[52]

1 Braden at 399 ( A The supreme court = s primary function was to

be the resolution of conflicts @ ).

[53]

See Choate , 91 Tex. at 410 , 44 S.W. at 69-70 (stating that the 1891

constitutional amendment conferred upon the courts of civil appeals the same

power over fact questions that the supreme court exercised prior to that

amendment).

[54]

See 1 Braden at 400-01

(stating that A courts

of civil appeals have no general fact-finding power @ ).

[55]

Tex. Const. art. V, ' 5 ( A The Court of Criminal Appeals shall have final

appellate jurisdiction . . . in all criminal cases of whatever grade, with such

exceptions and under such regulations as may be provided in this Constitution

or as prescribed by law @ ).

[56]

Mitchell v. State , 33 Tex. Crim. 575, 577 , 28 S.W. 475 (1894) (because

evidence A utterly

failed @ to show

defendant = s specific

intent to ravish homeowner, conviction reversed). The Mitchell standard

reads much like the constitutionally mandated Jackson standard of

review.

[57]

Smith v. State , 85 Tex. Crim. 355, 357 , 212 S.W. 660, 661 (1919)

(evidence was sufficient to support burglary conviction).

[58]

Jolly v. State , 87 Tex. Crim. 288, 293 , 221 S.W. 279, 282 (1920).

[59]

Franklin v. State , 147 Tex. Crim. 636, 638 , 183 S.W.2d 573, 574 (1944)

(citations omitted).

[60]

Everitt v. State , 156 Tex. Crim. 332, 335 , 242 S.W.2d 398, 399 (Tex.

Crim. App. 1951) (op. on reh = g).

[61]

Hall v. State , 158 Tex. Crim. 243, 246 , 254 S.W.2d 523 , 526 (Tex. Crim.

App. 1953) (op. on reh = g).

[62]

Parker v. State , 432 S.W.2d 526, 531 (Tex. Crim. App. 1968) (quoting Mason v. State , 108 Tex. Crim. 452, 455 , 1 S.W. 2d 283, 284 (1928) (op. on reh = g) . In Parker , we stated,

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. 939) and it becomes its duty to do so A 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. (internal citations

omitted).

[63]

Banks v. State , 510 S.W.2d 592, 595 (Tex. Crim. App. 1974).

[64]

Jackson v. Virginia, 443 U.S. 307, 312-13 (1979).

[65]

362 U.S. 199, 199 (1960) (stating that the A ultimate

question presented to us is whether the charges against petitioner were so

totally devoid of evidentiary support as to render his conviction

unconstitutional under the Due Process Clause of the Fourteenth Amendment.

Decision of this question turns not on the sufficiency of the evidence, but on

whether this conviction rests upon any evidence at all @ ).

[66]

Id. at 206 (footnotes omitted).

[67]

Jackson , 443 U.S. at 314 .

[68]

Id. The Supreme Court explained that a A no

evidence @ standard

does not A protect

against misapplications of the constitutional standard of reasonable doubt @ because a A no evidence @ standard is satisfied by a

A mere modicum @ of evidence. A But it could not seriously

be argued that such a > modicum = of evidence could by

itself rationally support a conviction beyond a reasonable doubt. @ Id. at 320 .

[69]

Id. at 318 n.9.

[70]

Id. at 318-19 (citation omitted).

[71]

Id. at 319 .

[72]

Id. (emphasis in original).

[73]

Applying that standard in Jackson , the Supreme Court upheld the

conviction, stating that A faced

with a record of historical facts that supports conflicting inferences [we]

must presume B even if

it does not affirmatively appear in the record B that

the trier of fact resolved any such conflicts in favor of the prosecution, and

[we] must defer to that resolution. @

Id. at 326.

[74]

See Butler v. State , 769 S.W.2d 234, 239 (Tex. Crim. App. 1989)

(rejecting language that evidence is sufficient A if

there is any evidence which, if believed, shows the guilt of the accused @ as inconsistent with Jackson

and constitutionally impermissable).

[75]

Griffin v. State , 614 S.W.2d 155 , 158-59 & n.5 (Tex. Crim. App.

1981).

[76]

See, e.g., Johnson v. State , 803 S.W.2d 272, 279 (Tex. Crim. App. 1990)

( A The standard of

review for sufficiency of the evidence in a criminal case is > whether, after reviewing

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 = @ ); Dunn v. State ,

721 S.W.2d 325, 327 (Tex. Crim. App. 1986) ( A The

Federal Constitutional test, which this Court has adopted, is whether, after

viewing all of the evidence in the light most favorable to the verdict, any

rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt @ );

Ibanez v. State , 749 S.W.2d 804, 806 (Tex. Crim. App. 1986) ( A When reviewing sufficiency

of the evidence this Court is bound to review the evidence in the light most

favorable to the jury = s

verdict. We must determine 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 @ ); Burks v. State ,

693 S.W.2d 932, 937 (Tex. Crim. App. 1985) ( A in

reviewing the sufficiency of the evidence in either a direct or circumstantial

evidence case, the reviewing court must view the evidence in the light most

favorable to a jury = s

verdict and consider whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt @ ); Taylor v. State ,

684 S.W.2d 682, 684 (Tex. Crim. App. 1984) ( A The

due process standard for appellate review enunciated in Jackson v. Virginia

. . . is applicable in Texas to both direct and circumstantial evidence cases @ ) (citations omitted).

[77]

Burks v. United States , 437 U.S. 1, 17-18 (1978) ( A we hold today that the

Double Jeopardy Clause precludes a second trial once the reviewing court has

found the evidence legally insufficient[;] the only A just @

remedy available for that court is the direction of a judgment of acquittal @ ); Greene v. Massey ,

437 U.S. 19, 24 (1978) (double jeopardy principles announced in Burks

apply equally to state convictions based on legally insufficient evidence).

[78]

457 U.S. 31 (1982).

[79]

Id. at 47 .

[80]

Id. at 42 .

[81]

Id. at 42-43 .

[82]

Tibbs v. State , 397 So.2d 1120, 1125-26 (Fla. 1981).

[83]

Id. at 1123 .

[84]

Id.

[85]

Id. at 1125 .

[86]

Id.

[87]

Id.

[88]

Id.

[89]

Id.

[90]

719 S.W.2d 320 (Tex. Crim. App. 1986).

[91]

Schuessler v. State , 647 S.W.2d 742, 748-49 (Tex. App. B El Paso 1983) (applying the

civil standard of A against

the great weight and preponderance of the evidence @ because the defendant bore the burden of

proving, by a preponderance of the evidence, his affirmative defense).

[92] Schuessler ,

719 S.W.2d at 328 (quoting Van Guilder v. State , 709 S.W.2d 178, 181

(Tex. Crim. App. 1985)).

[93]

Id. (stating that A we

must determine whether the evidence, when viewed most favorably to the jury = s verdict, is sufficient to

support the jury = s

implicit rejection of appellant = s

affirmative defense of insanity @ ).

[94]

Id. at 332 (Clinton, J., dissenting).

[95]

Id.

[96]

785 S.W.2d 146 (Tex. Crim. App. 1990).

[97]

Meraz , 785 S.W.2d at 155 . As this Court explained, the issue in such a

case is not the sufficiency of the evidence to support a conviction, but the

adequacy of proof for an affirmative defense in which the defendant statutorily

has both the burden of production and the burden of persuasion. Id. at

151 .

[98]

Id. at 153 .

[99]

Id. at 153-55 .

[100]

Id. at 153-54 . This Court held,

We now join our brethren on the Texas

Supreme Court and conclude that the A 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 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.

[101]

892 S.W.2d 864 (Tex. Crim. App. 1994).

[102]

Id. at 875 ( A At

trial appellant had both the burden of production of evidence and the burden of

persuasion for his affirmative defense of insanity @ ).

[103]

In those few instances in which the State has a burden of proof measured by the

civil standard of A preponderance

of the evidence @ ( e.g.,

in a motion to revoke probation), the same civil-standard sufficiency review

would apply.

[104]

See In re King = s

Estate , 150 Tex. 662, 664-65 , 244 S.W.2d 660, 661 (Tex. 1951).

[105]

See, e.g., City of Keller v. Wilson , 168 S.W.3d 802 (Tex. 2005).

[106]

Tex. Code Crim. Proc . art. 44.25

( A The courts of

appeals or the Court of Criminal Appeals may reverse the judgment in a criminal

action, as well upon the law as upon the facts @ ).

It would appear that, under article 44.25 (and all of its predecessor

statutes), both the courts of appeals and the Court of Criminal Appeals have

co-equal jurisdiction to reverse A on

the facts @ as well as

the law.

[107]

823 S.W.2d 375 (Tex. App. B Austin

1992, pet. ref = d).

[108]

Id. at 377 .

[109]

Id. at 379-80 .

[110]

This Court had explicitly rejected such A factual

sufficiency @ claims. See

Minor v. State , 657 S.W.2d 811 , 812 n.5 (Tex. Crim. App. 1983) ( per

curiam ); Combs v. State , 643 S.W.2d 709 , 716 n.1 (Tex. Crim. App.

1982); White v. State , 591 S.W.2d 851, 855 (Tex. Crim. App. 1979).

[111]

See White v. State, 890 S.W.2d 131, 134 (Tex. App. B Texarkana 1994, pet. ref = d) ( A Our exclusive fact jurisdiction under the

constitution also both permits and requires us to review for the factual

sufficiency when the sufficiency of the evidence is challenged on appeal @ ).

[112]

See Wilson v. State , 879 S.W.2d 309, 311 (Tex. App. B Amarillo 1994, no pet.) ( A we do not, as appellant

requests us to, sit as a thirteenth juror reweighing the evidence to decide

whether we believe the evidence established that he caused the penetration, nor

act as a superjury reweighing the evidence; rather, we act only as a due

process safeguard insuring rationality of the fact finder. In doing so, we

test the evidence to ascertain if it is at least conclusive enough for a

reasonable fact finder to believe the questioned element is established beyond

a reasonable doubt @ )

(citations omitted); House v. State , 880 S.W.2d 512, 514 (Tex. App. B Eastland 1994, no pet.)

(collecting cases and stating that A [a]ll

of these courts agree that > factual

sufficiency =

challenges in criminal cases are limited to affirmative defenses and other

issues where the defendant has the burden of proof; consequently, a challenge

to the sufficiency of the evidence to support the elements of the conviction is

reviewed under the [ Jackson standard] @ );

Clewis v. State , 876 S.W.2d 428, 439

(Tex. App. B Dallas

1994), vacated by 922 S.W.2d 126 (Tex. Crim. App. 1996); Pender v.

State , 850 S.W.2d 201, 203 (Tex. App. B Fort

Worth 1993, no pet.) ( A We

disagree with the Austin court [in Stone ], and decline to follow the

rationale expressed in its opinion. The Court of Criminal Appeals in Meraz

was only addressing appellate review of affirmative defenses; the opinion did

not change the standard of review concerning the sufficiency of the evidence to

prove the elements of the State = s

case @ ); Smith v.

State , 874 S.W.2d 269, 272 (Tex. App. B

Houston [14 th Dist.] 1994, pet. ref = d)(noting

its disagreement with Stone and holding A that the standard set out in Meraz applies

only to cases in which the defendant has the burden of proof and that

the only standard to be applied when reviewing the sufficiency of the evidence

is the standard set out in Jackson @ );

Lopez v. State , 824 S.W.2d 298, 303-04 (Tex. App. B Houston [1st Dist.] 1992, no pet.) (declining

to make a factual sufficiency review); Crouch v. State , 858 S.W.2d 599,

601 (Tex. App. B Fort

Worth 1993, pet. ref = d).

The position of these courts of appeals is summarized in Crouch as

follows:

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

commission 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 601 .

[113]

Stone , 823 S.W.2d at 377-78 .

[114]

See Cropper v. Caterpillar Tractor Co. , 754 S.W.2d 646, 649 (Tex. 1988)

( A By creating the

courts of appeals and vesting them with > appellate

jurisdiction, = the

1891 amendment to the constitution conferred upon those courts the same power

over fact questions that this court exercised prior to that amendment @ ).

[115]

White v. State , 591 S.W.2d 851, 855-56 (Tex. Crim. App. 1979).

[116]

Id. at 856 .

[117]

Tex. Gov = t Code '

22.225(a) (emphasis added). Although this statute has been amended numerous

times since the courts of civil appeals were renamed the courts of appeals in

1981 and given appellate jurisdiction over criminal matters, the legislature

has not seen fit to grant A factual

conclusivity @

statutory authority to the courts of appeals in criminal cases.

[118]

I agree with the reasoning in Arvay v. State , 646 S.W.2d 320 (Tex. App. B Dallas 1983, pet. ref = d), on the legislative

purpose of this statute which was formerly article 1820: we hold that

criminal cases are not within the provision of article 5, section 6, that the

decisions of the Courts of Appeals A 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 of section 6 in the

implementing legislation, article 1820 of the Texas Revised Civil Statutes

(Vernon Supp. 1982). As amended in 1981, this statute provides: A 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 322 .

[119]

Combs v. State , 643 S.W.2d 709, 716 (Tex. Crim. App. 1982) (citations

omitted; emphasis in original). We further noted, A no other standard may be utilized by the

Courts of Appeals in reviewing criminal convictions other than sufficiency of

the evidence to support the conviction. @

Id . n.1.

[120]

Tex. Code Crim. Proc . art. 36.13

( A Unless otherwise

provided in this Code, the jury is the exclusive judge of the facts @ ) and art. 38.04 ( A The jury, in all cases, is

the exclusive judge of the facts proved, and of the weight to be given to the

testimony @ ). In bench

trials, of course, it is the trial judge who is the sole factfinder, and his

credibility and weight determinations are entitled to the same deference as

that given to a jury.

[121]

Nonetheless, the Supreme Court invokes the Texas Constitution = s provision on the

inviolable right to a jury trial when reversing a court of appeals = s factual sufficiency

decision which treads upon a jury = s

credibility and weight determinations. See, e.g., Herbert v. Herbert ,

754 S.W.2d 141, 143-44 (Tex. 1988) (reversing court of appeals = s decision on factual

sufficiency and noting that A [t]he

admission by the court of appeals that reasonable minds could differ about the

conclusions to be drawn from the evidence makes it abundantly clear that a

substitution of court findings for jury findings has occurred. This is clearly

error @ ); see id.

at 147 (Mauzy, J., dissenting) (noting that factual sufficiency review allows

appellate court judges A to

usurp the jury function. It is allowing them to substitute their own thought

processes for those of the jury. Any distinction between appellate judges

weighing the evidence and appellate judges determining fact questions as would

a jury is a distinction that exists in semantics only and not in reality @ ).

[122]

922 S.W.2d 126 (Tex. Crim. App. 1996). Judge Maloney wrote the majority

opinion; Judge Clinton joined that opinion, but also wrote a concurring

opinion, as did Judge Meyers. Presiding Judge McCormick wrote a dissenting

opinion, joined by Judge Keller. Judge White wrote a separate dissenting

opinion as did Judge Mansfield.

[123]

Clewis v. State , 876 S.W.2d 428, 429-40 (Tex. App. B Dallas 1994), vacated

by 922 S.W.2d 126 (Tex. Crim. App. 1996). In that opinion, the court of

appeals noted that, even if the courts of appeals have fact jurisdiction in

criminal cases under the Texas Constitution, the factual conclusivity clause A [d]oes not purport to set

out the standard of review required to exercise that fact jurisdiction.

The question before us in this case, therefore, is what standard of review

we are required to apply[.] @

Id. at 431.

[124]

Clewis , 922 S.W.2d. at 129 ( A We

hold that the proper standard of review for factual sufficiency of the elements

of the offense is the one articulated by the Third Court of Appeals in Stone @ ).

[125]

Id. at 133 n.12 (quoting Clewis , 876 S.W.2d at 444 n.2 (McGarry, C.J.,

concurring)).

[126]

Clewis , 922 S.W.2d at 133 .

[127]

The total number of Shepard = s

citations to Clewis listed on Lexis as of September 25, 2006, was 5,786,

including eleven law review articles and nine treatise sections. One law

review article begins with the statement A Citizens

convicted of crimes in Texas may have a chance at a new trial thanks to Clewis

v. State . @ Mark

Bankston, Forty Nuns Can = t

Be Wrong: Reviewing Factual Sufficiency of Evidence Without the Light Most

Favorable to the Prosecution , Clewis v. State , 922 S.W.2d 126 (Tex.

Crim. App. 1996), 38 S. Tex. L. Rev. 263 , 263 (March 1997). But as

Professor Dix notes, reversals under Clewis are supposed to be (and are)

exceedingly rare. 43 George E. Dix

& Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 31.133 at 65 (2d ed. 2001

& Supp. 2005) (collecting and discussing twelve cases reversed by the

courts of appeals for factual insufficiency and stating that A [w]hatever the criterion

[for factual sufficiency review under Clewis ], the Court of Criminal

Appeals clearly regards factual sufficiency review as seldom leading to a

conclusion that a conviction is unsupported. @ ).

[128]

944 S.W.2d 642 (Tex. Crim. App. 1996)

[129]

Id. at 647 . The Jackson legal sufficiency test requires the

reviewing court to examine all of the evidence as well, but to make that

examination in the light most favorable to the State because the State was the

prevailing party at trial. See Jackson , 443 U.S. at 319 .

[130]

Id. at 647 (citations omitted)

[131]

Id. at 648 (emphasis in original; citations omitted).

[132]

Id. at 649.

[133]

958 S.W.2d 404 (Tex. Crim. App. 1997).

[134]

Id. at 407 .

[135]

Id. at 408 .

[136]

Id. at 408-09 .

[137]

See Dix , supra , ' 31.135 at 68-69 (noting that,

in the forty nuns hypothetical, under a Clewis analysis, A an appellate court may be

permitted to take into account that the State = s

witness = s credibility

has been impeached by his status and evidence of a motive to falsify, while

each nun = s credibility

has been bolstered by her status and by the direct corroboration of nineteen

others of similar character and by indirect corroboration by the testimony of

twenty other similar witnesses. On the other hand, the need to avoid

substantial intrusion upon [the] jury = s

role certainly means that the appellate court is not to speculate regarding the

demeanor of the witnesses on the stand or other matters that the jurors may

have considered in evaluating the credibility of each witness @ ).

[138]

23 S.W.3d 1 (Tex. Crim. App. 2000).

[139]

Id. at 5 .

[140]

Id. at 8 (citation omitted).

[141]

Dix , supra , ' 31.135 at 71. Indeed, the

same problem has been noted by commentators concerning the current civil-law

legal/factual sufficiency standard of review in City of Keller . See

W. Wendell Hall & Lynne Liberato, Standards of Review of

Sufficiency of the Evidence in Texas After City of Keller v. Wilson, 17

(State Bar of Texas, 2006 Annual Judicial Section Conference) ( A Given the standard of

review articulated in legal sufficiency cases, it is questionable whether there

is a distinction between legal and factual sufficiency standards of review as

it appear that Texas follows the federal Boeing v. Shipman [ 411 F.2d 365

(5 th Cir. 1969) ( en banc )] standard for reviewing sufficiency

of the evidence challenges @ ).

[142]

66 S.W.3d 283 (Tex. Crim. App. 2001).

[143]

Id. at 285 .

[144]

Id. (citing Calvert, "No Evidence" and "Insufficient

Evidence" Points of Error , 38 Tex.L.Rev .

361 (1960)).

[145]

Id.

[146]

Id.

[147]

Id . at 286 n.5.

[148]

Clewis , 922 S.W.2d at 134 ; see also Johnson , 23 S.W.3d at 7 .

[149]

101 S.W.3d 89 (Tex. Crim. App. 2003).

[150]

Id. at 97 (citations omitted).

[151]

144 S.W.3d 477 (Tex. Crim. App. 2004).

[152]

Id. at 483 . As we noted in Zuniga , the different civil and

criminal law standards of proof are an important source of confusion. The

Court criticized the previous year = s

discussion in Zuliani v. State , 97 S.W.3d 589, 593-94 (Tex. Crim. App.

2003), in which we had stated that A the

reviewing court reviews all of the evidence in a neutral light and asks whether

the State = s evidence

taken alone is too weak to support the finding and whether the proof of guilt,

although adequate if taken alone, is against the great weight and preponderance

of the evidence. @ Id.

In Zuniga we noted that

Once 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.

144 S.W.3d 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 A 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 stated

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.

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 A by

a preponderance of the evidence @

must be modified when either party bears a greater burden of persuasion, such

as A clear and

convincing @ or A beyond a reasonable doubt. @ Jackson

incorporated the State = s

burden of proof; Meraz incorporated the defendant = s burden of proof; Clewis did not.

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:

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 265-66. But the supreme court also explained

its factual sufficiency standard:

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 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 Tex. App. LEXIS 4528 *48 (Tex. App. B Waco, February 22, 2006) ( A 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).

[153]

Zuniga , 144 S.W.3d at 484-85 (footnote omited).

[154]

Jackson , 443 U.S. at 319 .

[155]

Zuniga , 144 S.W.3d at 484 .

[156]

Tex. Code Crim. Proc . arts. 36.13

& 38.06.

[157]

164 S.W.3d 607 (Tex. 2004).

[158]

See id at 621-22, noting that the factual conclusivity clause applies to

factual insufficiency questions, but

While 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 (footnote omitted). The supreme court

went on to explain that

the "factual conclusivity

clause" does not define the A questions

of fact @ on which the

courts of appeals' decisions are conclusive. We held, shortly after the clause

was adopted, that A 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.

Id. at 626-27 (footnote

omitted).

[159]

See Dix , supra , at ' 31.131 at 22 (Supp. 2005)

( A Although the courts

of appeals conduct factual sufficiency review in many cases, they seldom find

the evidence factually insufficient @ ).

[160]

Dix , supra at ' 31.133 at 65-66 n.7 (2d

ed. 2001) & 23-24 n.7 (2005 Supp.).

[161]

NY CLS CPL '

470.15(5); see People v. Bleakley , 69 N.Y.2d 490 , 492 N.E.2d 672 , 673

(Ct. App. 1987) (court of appeals erred in failing to conduct statutorily

required factual-sufficiency review when defendant claimed evidence was

insufficient); 10 U.S.C.S. '

866 (c) ( A the

[Military] Court of Criminal Appeals may act only with respect to the findings

and sentence as approved by the convening authority. . .as it finds correct in

law and facts . . . . In considering the record, it may weigh the evidence,

judge the credibility of witnesses, and determine controverted questions of

fact, recognizing that the trial court saw and heard the witnesses @ ).

[162]

Tibbs, 397 So.2d at 1125-26 .

[163]

This review does not second guess the jury = s

credibility and weight assessment because the Jackson standard requires

review in the light most favorable to the jury = s

credibility and weight determinations. See Zimmerman v. State , 860

S.W.2d 89, 92 (Tex. Crim. App. 1993) ( A Our

purpose [under Jackson ] is not to reevaluate the weight and credibility

of the evidence, but to ensure that the jury reached a rational decision @ ).

[164]

Ex parte Elizondo , 947 S.W.2d 202 , 206 (Tex. Crim. App. 1996).

[165]

Id.

[166]

Clewis , 922 S.W.2d at 163 (White, J., dissenting).

[167] Watson ,

160 S.W.3d at 630 .