Nick N.Feizy v. State

ACCEPTED

06-14-00230-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

4/30/2015 12:32:06 PM

DEBBIE AUTREY

CLERK

No. 06-14-00230-CR

_______________________________________________________

FILED IN

6th COURT OF APPEALS

In the Texas Court of Appeals TEXARKANA, TEXAS

Sixth Judicial District at Texarkana 4/30/2015 12:32:06 PM

__________________________________________DEBBIE AUTREY

Clerk

Nick Nima Feizy,

Appellant,

v.

The State of Texas,

Appellee.

_________________________________________

On Appeal from County Court at Law No. 4

Collin County, Texas

Cause No. 004-80265-2014

_______________________________________________________

APPELLANT’S BRIEF AND APPENDIX

_______________________________________________________

Charles “Chad” Baruch Jim Burnham

Texas Bar Number 01864300 Texas Bar Number 03441000

THE LAW OFFICE OF CHAD BARUCH JIM BURNHAM, ATTORNEY AT LAW

3201 Main Street 6116 N. Central Expy., Ste. 515

Rowlett, Texas 75088 Dallas, Texas 75206

Telephone: (972) 412-7192 Telephone: (214) 750-6616

Facsimile: (972) 412-4028 Facsimile: (214) 750-6649

Email: baruchesq@aol.com Email: jim@jburnhamlaw.com

Counsel for Appellant

Identity of Parties and Counsel

Appellant Nick Nima Feizy

Appellate Counsel

Charles “Chad” Baruch

Texas Bar Number 01864300

THE LAW OFFICE OF CHAD BARUCH

3201 Main Street

Rowlett, Texas 75088

Trial and Appellate Counsel

Jim Burnham

Texas Bar Number 03441000

JIM BURNHAM, ATTORNEY AT LAW

6116 N. Central Expressway, Suite 515

Dallas, Texas 75206

Appellee The State of Texas

Appellate Counsel

John Rolater

Texas Bar Number 00791565

Assistant Criminal District Attorney

COLLIN COUNTY DISTRICT ATTORNEY

2100 Bloomdale Road, Suite 200

McKinney, Texas 75071

Trial Counsel

Rachel Tran

Texas Bar Number 24079478

Assistant Criminal District Attorney

COLLIN COUNTY DISTRICT ATTORNEY

2100 Bloomdale Road, Suite 200

McKinney, Texas 75071

i

Table of Contents

Identity of Parties and Counsel .................................................................................. i

Table of Contents...................................................................................................... ii

Index of Authorities ................................................................................................. iii

Statement of the Case ................................................................................................1

Statement Regarding Oral Argument ........................................................................1

Statement of Issues ....................................................................................................1

Statement of Facts .....................................................................................................1

Summary of the Argument ........................................................................................4

Argument: The Conviction Lacks Legally Sufficient Supporting Evidence .............5

Prayer .......................................................................................................................10

Certificate of Compliance ........................................................................................10

Certificate of Service ...............................................................................................11

Appendix

Tab 1: Judgment

Tab 2: Charge of the Court

Tab 3: Certification of Defendant’s Right of Appeal

ii

Index of Authorities

Cases

Benson v. State,

No. 12-06-00051-CR, 2008 WL 82225 (Tex. App.—Tyler Jan. 9, 2008, no

pet.) (not designated for publication) ................................................................. 8-9

Breaux v. State,

16 S.W.3d 854 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) ..................... 6

Brooks v. State,

323 S.W.3d 893 (Tex. Crim. App. 2010) .......................................................... 8, 9

Cano v. State,

614 S.W.2d 578 (Tex. Crim. App. 1981) (en banc) .............................................. 8

Davis v. State,

No. 03-07-00085-CR, 2007 WL 1853361 (Tex. App.—Austin 2007, pet.

ref’d) (mem. op., not designated for publication) ................................................. 9

Jackson v. Virginia,

443 U.S. 307 (1979) .......................................................................................... 8, 9

In re M.C.L.,

110 S.W.3d 591, 600 (Tex. App. —Austin 2003, no pet.) .................................... 7

Lewis v. State,

530 S.W.2d 117 (Tex. Crim. App. 1975) .............................................................. 8

Marathon Corp. v. Pitzner,

106 S.W.3d 724 (Tex. 2003) ................................................................................. 8

Randolph v. State,

152 S.W.3d 764 (Tex. App.—Dallas 2004, no pet.) ............................................. 9

Salley v. State,

25 S.W.3d 878 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ........................ 6

iii

Statutes and Rules

TEX. PEN. CODE ANN. § 1.07 (West 2011) ................................................................6

TEX. PEN. CODE ANN. § 22.01 (West 2011) ...............................................................6

iv

Statement of the Case

The State of Texas charged Nick Feizy with the misdemeanor offense

of assault causing bodily injury to a family member.1 A Collin County jury

found Feizy guilty.2 The trial court sentenced Feizy to 180 days of

confinement in the county jail and a fine of $250, but suspended the

confinement under a 12-month period of probation.3 Feizy now appeals.4

Statement Regarding Oral Argument

Appellant does not believe that oral argument would assist the Court.

The issues are straightforward and can be decided based on the briefs.

Statement of Issues

1. Is the trial court’s judgment supported by legally sufficient

evidence of bodily injury?

Statement of Facts

Nick and Lauren Feizy are the married parents of one child.5 The State

of Texas charged Nick with the misdemeanor offense of assault causing

bodily injury to a family member.6

1

C.R. 19.

2

App. 2; C.R. 390-93.

3

App. 1; C.R. 394-96.

4

C.R. 408-09.

5

5 R.R. 59.

6

C.R. 19.

1

At the time of trial, Nick and Lauren were in the midst of a divorce

proceeding disputing the terms of custody over their son.7 Lauren first

contacted her divorce attorneys, The Parker Firm, on November 12, 2013—

six days before the alleged assault.8

In the divorce proceeding, Lauren sought sole managing

conservatorship to enable her to move the couple’s child out of Texas

without Nick’s agreement.9 A finding of family violence would prevent Nick

from being named a joint managing conservator.10 The Parker Firm’s

website contains what amounts to a “how-to” manual on using a finding of

family violence to gain sole managing conservatorship in a custody battle.11

On November 18, 2013, a week after calling The Parker Firm, Lauren

alleged that Nick assaulted her. According to Lauren’s trial testimony, the

assault consisted of Nick “pinching her” on her “stomach and side, [and]

back.”12 When asked what Nick used to pinch her, Lauren replied: “His

hands.”13 She also said that Nick poked her with the “blunt end” of “a dental

tool.”14 The responding police officers testified that Lauren told them Nick

7

5 R.R. 60; 6 R.R. 55-56.

8

5 R.R. 86.

9

6 R.R. 14, 55.

10

6 R.R. 17, 56.

11

6 R.R. 60.

12

5 R.R. 66.

13

5 R.R. 67.

14

5 R.R. 66.

2

had been “probing her” in the side with the dental tool and pinching her with

his fingers.15

Lauren did not seek medical treatment as a result of the alleged

assault. Lauren admitted that the only visible marks on her body when police

arrived were on her neck.16 The officers testified that in addition to seeing

this “light redness” on Lauren’s neck, they also observed scratches on her

right side and the right side of her back.17 The State introduced photographs

of these purported injuries.18 The police never found any dental tool at the

scene.19

Neither Lauren nor the officers testified about anything Nick did to

Lauren’s neck. In her opening statement, the prosecutor claimed Lauren

would testify that Nick “grabs her neck and holds on to it until she finally

lets go of their son.20 But Lauren said nothing about Nick grabbing her neck.

Indeed, the only time she even used the word “neck” was in referring to the

redness on her neck—which she never explained.21 Nick testified that he

15

5 R.R. 26-27.

16

5 R.R. 69.

17

5 R.R. 48, 54.

18

8 R.R. 5-11.

19

5 R.R. 45.

20

5 R.R. 19.

21

5 R.R. 69.

3

never touched Lauren’s neck, but that their child had been “yanking” on

Lauren’s necklace during their argument.22

Finally, the sum total of Lauren’s testimony concerning pain is as

follows:

Q: When he pinched you and he used the dental

tool, did that cause you pain?

A: Yes.23

The jury found Feizy guilty.24 The trial court sentenced Feizy to 180

days of confinement in the county jail and a fine of $250, but suspended the

confinement under a 12-month period of probation.25

Feizy filed a motion for new trial based on legal sufficiency of the

evidence, which the trial court denied.26 After the trial court provided

certification of his right to appeal,27 Feizy filed notice of this appeal.28

Summary of the Argument

The judgment lacks legally sufficient supporting evidence. An assault

conviction requires evidence of bodily injury. The principal bodily injury

presented by the State was redness on Lauren’s neck. This was the only

22

6 R.R. 70-71, 83.

23

5 R.R. 68.

24

App. 1; C.R. 393.

25

App. 1; C.R. 394-96.

26

C.R. 397-400.

27

App. 3; C.R. 410.

28

C.R. 408-09.

4

bodily injury supported by the testimony of all the State’s witnesses. But no

one testified that Nick did anything to Lauren’s neck; the uncontroverted

testimony was that he did not. Similarly, no one testified to anything Nick

did that would account for the only other injury (the scratches on Lauren’s

back) observed by the officers. Neither pinching nor poking would explain

the scratches. That leaves Lauren’s unexplained, one-word answer that she

suffered pain as the sole evidence supporting conviction. And it is not

adequate to overcome the presumption of innocence.

Argument:

The Conviction Lacks Legally Sufficient Supporting Evidence.

Nick challenges the legal sufficiency of the evidence supporting his

conviction. In evaluating legal sufficiency, “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);

see also Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010).

Jackson replaces what formerly were separate legal and factual

sufficiency standards with what now is the highest standard of review for

sufficiency in our legal system:

Legal sufficiency of the evidence is a test of adequacy,

not mere quantity. Sufficient evidence is such evidence,

in character, weight, or amount, as will legally justify the

5

judicial or official action demanded. In criminal cases,

only that evidence which is sufficient in character,

weight, and amount to justify a factfinder in concluding

that every element of the offense has been proven beyond

a reasonable doubt is adequate to support a conviction.

There is no higher burden of proof in any trial, criminal

or civil, and there is no higher standard of appellate

review than the standard mandated by Jackson. All civil

burdens of proof and standards of appellate review are

lesser standards than that mandated by Jackson.

Brooks, 323 S.W.3d at 917 (Cochran, J., concurring, in which Womack, J.,

joined) (internal quotation marks and citations omitted).

The jury found Fiezy guilty of the misdemeanor offense of assault

causing bodily injury to a family member See TEX. PEN. CODE ANN. §

22.01(a)(1) (West 2011). “Causation of bodily injury to another is an

essential element of assault.” Breaux v. State, 16 S.W.3d 854, 857 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d) (citations omitted).

“Bodily injury” means physical pain, illness, or any impairment of

physical condition. See TEX. PEN. CODE ANN.§ 1.07(a)(8) (West 2011). The

definition of “bodily injury” is purposefully broad, encompassing even

relatively minor physical contacts “so long as they constitute more than mere

offensive touching.” Salley v. State, 25 S.W.3d 878, 881 (Tex. App.—

Houston [14th Dist.] 2000, no pet.) (citations omitted).

The evidence in this case was insufficient to support the assault

judgment due to absence of evidence establishing “bodily injury.” Initially,

6

no testimony links the physical injuries testified to by the officers and

Lauren, and depicted in the photographs, to any act by Nick. Lauren testified

that the only injury she sustained was to her neck. The officers also testified

that they observed redness on Lauren’s neck. But neither Lauren nor anyone

else testified that Nick ever did anything to Lauren’s neck. Indeed, the

uncontroverted evidence is that Nick never touched Lauren’s neck, but that

their child had been “yanking” on Lauren’s necklace.29

Similarly, no testimony links any act by Nick to the other injuries the

officers claimed to have seen—injuries that Lauren never even mentioned.

The officers said they saw scratches on Lauren’s right side and the right side

of her back.30 Again, though, neither Lauren nor anyone else testified about

Nick scratching her. The sum total of the trial testimony was that Nick

pinched Lauren with his fingers and poked he with the “blunt end” of a

dental tool.31 Neither act, even if true, would account for the injuries the

officers saw—injuries Lauren neither mentioned nor attributed to Nick.

The Austin Court of Appeals held the evidence insufficient to support

the element of bodily injury under similar circumstances in In re M.C.L.,

110 S.W.3d 591, 600 (Tex. App.—Austin 2003, no pet.). In that case, the

29

6 R.R. 70-71, 83.

30

5 R.R. 48, 54.

31

5 R.R. 26-27, 66-67.

7

court reversed a conviction where the evidence left uncertainty as to whether

injuries actually were caused by the accused or were attributable to some

other cause. Id. Of course, In re M.C.L. was decided under the now

discarded theory of factual sufficiency. But its analysis concerning the

linkage between injuries and acts by the accused applies to equal force under

the Jackson standard requiring analysis of the adequacy and quality of the

evidence supporting conviction.

The State’s principal evidence of bodily injury—indeed, the only

instance of bodily injury agreed upon by Lauren and the officers, and

supported by the photographs—was the redness on Lauren’s neck. And,

inarguably, no evidence—literally none—links Nick to those injuries.

That leaves Lauren’s testimony about pain as the sole evidence of

bodily injury. But that evidence is so weak and conclusory that it cannot

overcome the presumption of innocence. Her one-word answer, “yes,” lacks

any detail or explanation. Moreover, the statute requires “physical pain” for

bodily injury. TEX. PEN. CODE ANN.§ 1.07(a)(8) (West 2011). And Lauren

did not say that Nick caused her physical pain. The “pain” Lauren

mentioned could just as easily, and just as likely (indeed, given the paucity

of evidence of violence, perhaps more likely), referred to the emotional pain

of being humiliated by her husband in front of their child.

8

Lauren’s one-word answer, unexplained and open to multiple

interpretations, is the essence of the type of “mere scintilla” held legally

insufficient in civil cases. See generally Marathon Corp. v. Pitzner, 106

S.W.3d 724, 727 (Tex. 2003). And Jackson demands an even higher

standard for reviewing evidence in criminal cases. See Brooks, 323 S.W.3d

at 917 (Cochran, J., concurring in which Womack, J., joined).

This is not a case where circumstances surrounding the incident or

other details would explain why Lauren suffered pain. Cf. Lewis v. State, 530

S.W.2d 117, 118 (Tex. Crim. App. 1975) (arm twisted); Cano v. State, 614

S.W.2d 578, 579 (Tex. Crim. App. 1981) (fall to pavement resulting in cut

mouth); Benson v. State, No. 12-06-00051-CR, 2008 WL 82225, at *5-6

(Tex. App.—Tyler Jan. 9, 2008, no pet.) (not designated for publication)

(lens popping out, breaking the skin, and necessitating stitches). Lauren’s

one-word answer provides no hint about why the probing and pinching

would cause pain.

Of course, a jury may infer from the circumstances that a victim

suffered physical pain. Randolph v. State, 152 S.W.3d 764, 774 (Tex.

App.—Dallas 2004, no pet.). For example, a jury can reasonably infer that

striking a woman with enough force to knock her to the ground would cause

her pain. Davis v. State, No. 03-07-00085-CR, 2007 WL 1853361, at *2-3

9

(Tex. App.—Austin 2007, pet. ref’d) (mem. op., not designated for

publication). But nothing in the record supports such an inference in this

case. Lauren said nothing that would permit an inference that Nick’s

“probing” with the blunt end of a tool or his pinching with fingers would

cause pain. She certainly said nothing that would make an inference of

physical pain more likely than an inference of emotional pain.

Jackson requires sufficiency review of the “character, weight, and

amount” of evidence supporting a criminal conviction. Brooks, 323 S.W.3d

at 917 (Cochran, J., concurring in which Womack, J., joined) (internal

quotation marks and citations omitted). Here, the evidence of bodily injury is

so lacking in character, weight, and amount as to render the evidence

insufficient and the conviction improper.

Prayer

Because the conviction rests on legally insufficient supporting

evidence, this Court should reverse the trial court’s judgment and render a

judgment of acquittal.

10

Respectfully submitted,

/s/Charles “Chad” Baruch

Texas Bar Number 01864300

THE LAW OFFICE OF CHAD BARUCH

3201 Main Street

Rowlett, Texas 75088

Telephone: (972) 412-7192

Facsimile: (972) 412-4028

Email: baruchesq@aol.com

Counsel for Appellant

Certificate of Compliance

This brief was prepared using Microsoft Word for Mac. Relying on

the word count function in that software, I certify that this brief contains

2,034 words (excluding the cover, tables, signature block, and certificates).

/s/Charles “Chad” Baruch

Certificate of Service

The undersigned certifies that a true and correct copy of this

instrument was served this 30th day of April, 2015, by efiling and email,

upon the following counsel of record for appellees:

John Rolater

Texas Bar Number 00791565

Assistant Criminal District Attorney

OFFICE OF THE COLLIN COUNTY DISTRICT ATTORNEY

2100 Bloomdale Road, Suite 200

McKinney, Texas 75071

jrolater@co.collin.tx.us

/s/Charles “Chad” Baruch

11

1

Case No. 004-80265-2014

THE STATE OF TEXAS I'll TilE COli 'iT\' COllin

\S. AT I.AW # ~

"-jiCK N FEIZ\' COLLI 'I/ COLI'iTY. TEXAS

.JIJIJ(;I\1ENT- I'LEA OF NOT (;tiii.TY BEFORE .JLIRY- FOIINI) (;tiiLT\'

I' liN ISHI\1 F. 'liT 8\' COLIIU- COI\11\llJN IT\' SUPER\' IS ION

Thl:' dcft:ndanl ha~ been charged h~ informJtion '"'ith the mi:-.dcmt'<tnor offt:nsL' of ,\~sault ('a usc\

Rodil~· ln.iury Famil~' r\1t•mher. This casl' was ~.:Jikd lOr trial: the Statc of l~..:\as appc:Jrt:d: ~tnd the

defendant appeared ;.md t:ithcr had cmm..,cJ or \'vJivL'd counsd, an) \\;.tiH-r ha,ing 11L·cn \olunt~Hil~,

"-no\vingl~. and intt:lligcntly made. B(Jth parti~:s aniHJlllli..'t:d ready for trial. ·rhc <.h.·kndcttll ,,,, ... <tiTai!!lh.'il

or \\aivcd arraignmcnl and pleaded Not Guilty. Ajur) \\'tls duly sclet:tcd. impaneled ;md 'i\\Orn

After hearing the Information read, thl.' (.kk1H.tanfs pka. and the L"\ idt.·nt.:L' suhmitt\._·d, till· _iur: \\as

th.:n dul:- charged according to the law to det.:rminc the guilt or innot:l'IH.:c of the ddl·tHhmt. '\tier

hearin~ arguments of counseL th~: jur: retired in l'hargc of tht: proper officer to consllkr it-. \l.'rdil't. lhl'

jur~ n:turncd ~1 verdict of'"<Juilt~ ...

It is thcrcli>rc ORDERED. i\D.IlJI><it-:1> and Dt-:CRHoll thai the dcknd:lllt is guilt' ol" the

misdemeanor offense of Assault (,auses Bodil~· lnjur~· Famil~- Memher committl'd nn thi' tht.· HUh

da~- uf November. 201.1. a-. charged in till? lnfnnnation.

The th.:fcndant elected that the Co uri a . . ..,cs~ th~.: punishment. ;\ lh:r hearin~ thl' l'' idenu.: and

argument of counsel. the ( 'ourt asscssc:tl a lim: of $250.00~ costs of tht: ( ·ourt. and 180 da~' l'nnlinement

in the< 'nun!)- .Jail.

It is furthcrORDFRED that the amount paid to the dcfctHhmt'~ <~ppointl'd ~.:ounscl r-. taxed a~·.1in-.t

the ddl'ndant a" ~..:o~ts (onl: iftht.• Counma)..c:-. the determination that the tkfcndant ~,..,no longer 111digcntJ

in an amount ddnminetl hy the ( 'ourt as \\dl as <.1 one $~5.00 Time PaynK·nt Fcc. if appl1c~1hk. To

\,:orrect a t:osl hill. the County Ch:rk is grantt>d leave to amend it witlwul furthl..:'r \\ritk'n order that an:

proper hut omitted nmount is due, C\'l'll in cases \\·hen: cosls h;nc bl.!~n rri..:'Yiously paid

It is rurther ORDI RED. AD.IlJI)(;!cll ;md IHTREFD the! oil \Hits. rruce"c's. <c>mmilmcnh.

ami capiases may issue for enl(.>rcem~?nt of <Ill)' tine. cost, and tcnn-and-clmdititm 1ncarccratlllll IH'tk'rl·d as

a l.'omJititlll of supervision.

It is thcrcli>rc ORDERED. i\ll.llJD<iED. and DECRITIJ that the dclencbnt he rcm:mdcd tn the·

Cllstod~ nl'tht: Sheriffof('ollin ('ounty. Tc'..as, to hl.' l.:Ontined until all such cnsts ;md tilll''t arc paHL and

until the term of confinement has expin:d, \\'ith 2 da~·s credit l(lr time ~1lrcady Sl'l'\cd incustod:.

It is l'urlher ORl>LRED that the confinement be suspcnJcd and that the dl:ll:ntbnt bl' placnl on

community supl.:'n isinn fnr a period of 12 months l'rom the do.1te of this ordL·r. tlw L·nnditiPth ot'

sup('rvision hcing contained in tl1~: Court's ~ep;mttl.:' order m:.ak a p<trt of lhi:-; judgml'nt.

SIGN Ell on this th• 30th day of Sc11tcmh•r, 2014.

-------- . .

8\

llaLd R1ppel

.Judgl' Presidin~

,/ .

received this judgment

CO!'RT COST: ~.,88.4;<

FIN I·: ~2511.1111

and sentence assessed

FINE ~Nil COST lll'E JO d;~~·'

on this date

nnv

SCA!'.NED

394

Case No. 004-80265-2014

THE STATE OF TEXAS l"i THF: Ull'"iTY COURT

vs. AT I.AW # -1

NICK 'i HIZY COLLII'i ('OlJI'iTL TEXAS

ORI>ER I'I.ACI!'i(; [)f:FENilANT ON CO!\I~Illl'iiTY SIII'EIH I Sill"

I--I a\ ing suspended the imposition of punishment or h~l\ ing ddt:rrcd Jdjudi~ation or a linding in this

io:asc ~md having pla~:cd the (k•fcnJant 011 conm1unity supervision in tht..· abon>cntitk·d and lllllllhl:t\.'d GHtse

on the on this the Jflth da~ of Scptcmhcr. 2014 l(>r a period nl' 12 months l(>r the ol'kn'e or Assault

Causes 1-Jodil)' lnjur~· Family Member the- Court makt..·s tht..• li.lllowing ordrrs cotH:crning: thL' 11..·rm" ;.md

o;,:onditi1ms ()f supervision. Till.' defendant shall:

<;~neral:

I. (·om mit no offCnse against the laws of this or <.111) State. or the lJJlitt'd StalL'...,:

Report to a Supcr\r is ion Oflicl'r as scheduled bj the Supcn is ion Oflkn:

3. Permit the Supervision OfficL'r to \'isit you at home or clscwherL';

4. Keport any change in address. change of ~.:mplnymcnt. or arrest to the Supcn i ... Hlll < lrlicL'I "itlw1

4X hours;

5. Kcmain within the supcn·ising. count~ unless pcnnittcd tn tlt·part hy tile SupL'I"\ i:-.IPil ( )I'Jicer:

6. PL-rform 40 hours of L·ommunity sen· ice \Hlll at the rat~..· of 10 hours per month nwn:1gcd and

f~tcilitated by sud1 ag.cncie~ as lilt: Slipnvision Ofliccr directs ~md pa) all L'll'\h JssociJtcd

therewith, a:-. dirccll:d hy the Supcn·ision Onicer:

Emplo,·mcni/Education:

7 \Vork t~Jitl1fully at suitable cmplo)lllcnt insot~tr as pn:-.siblc:

Substance Abuse:

?1. Not usc rnariju;:tna. dangerous drugs. or an~ suhst:mcl: prohibited h~ the IL'\<t'> ( ·ontrolkd

SubstarH.:cs A.:t;

9. Submit a non-dilute rundom urin..: sampk l~n testing ~mdior other appro\cd llll'diL"<tl lL':-.t ;p.,

din..·ctcd h~ your supcnision ol'lkcr and pay ror :;uch testing. If din.'L'IL'd h: lhL· SupLT\ l'>ion

Oflicl'L call a designated number daily to tkh.:rmim.· the days tll~11 ) ou shall ...,uhm1t :1 -.,ampk tn

dctcnninc the use of illil'it drugs or aknhol:

Special progrnms:

10. Participat~: in and sucn·ssfully ..:ompktc a llattcring lllll'ncntilm prtlgranJ ~111d p~l) :til L'tl:-.ls a"

directed h~ the Supcrvi~ion Officer:

II. Nn nmt:KI with rh~..· victim except l~lr diHlrL·e and mailers or till' children:

\Vaiver:

12. Wai\c the right to a post scnt.:ncL· ill\Cstigation n:pon:

Financial:

1~. Support his or her dependents~

14. Pa~ the 1~liiO\\ ing amounts ns described hclo\\ tmtil the total amount is paid:

a. Pay court co:-;t of$.JHH.45 "ithin 30 days to the- ( 'ounty ( 'lerJ... of( 'ullin ( ·uun\). ·1 L:"\a ....

h. Pay restitution of$-0- within]() tlt) s to the Dircl.'tor oft he Communi!~ Supcn i:-.ion and

Correction:-. Department of Collin County. T L'\as:

c. l'~t) the line assesse-d in the amount of$250.00 within _3_(] d:tys to the ( ·ount~ Ckr!... nl

Collin (. 'ounty, T c:\as:

d. To the I)ircctor or tile (. 'omnmn i ty SupcrYision and <.. 'urrcct ions DcpartlllL'lll (l r (·,II] ill

111

County. Tc.xas. ;Jnd hy the 1:" Uay or~ach month hcginning the next month llllllmin~

ht:ing placed on super\ision. pay a supervision teL· o!'S50.00 per month and an additinnnl

S5.00 per 111onth for oft\..~nsc~ listed in tht:' Penal ("(ldl' to \\hil'11 till..' addition:ll ~5.00 kc i:-..

applicable. (Fees arc inapplicable while.: the Ud'cndant is in jail or <1 rt.•sid..:ntial lrL·atmcnt

Cl:llter. or\\ hiJc the dcfi:ndant is being Sllj1l'l"\ i:-.cd OUt or Stat c.):

395

Case No. 004-80265-2014

If you contend that ~ou an.· indigent and request permission to discharge supt.•n·ision ll'L'" h; pcrfnrmin!!

community s.:rviL'l', the (·,,mmunil) Supcr\isinn :md ('orn:t:tion~ fk•pa111lll'lll (('S('f)) j..., autht>rJ/\.."d to

assess t:n:dit per the appr<n cd CS( '()community scrvit:c policy or if you rt:LJUC:-,1 pernl!s...,ion to di...,chargL'

tines and cost h)' p~o:rforming ~.:ommunity sen icc, the Court ( 'nlkctions Unit (( ·( ·l .1) 1..., authoritcd to

assess ~..·n:dit per thl' appn)vcd CCU Sl'f\'icc polit:y.

The dciCndant is hl'n:h)' given nntit:c that under the l;n.vs of this Shill.'. til~..· { 'tlurt has dctcrminL·d and

imposed the aho\c term..., omd conditions nf l'Oilllllllllity supcn is ion, and may at an~ time during. thi...,

~xriod of supcni'>ion <liter or modi!}' tl1c111. The Court also has the authorit), :11 an: tinll' Juring th~o.:

period of t.:OI11!11UI1it) SllpCrvi.-.iOll to revoke COJlllllllllil)- •.;,upt:rvi~IOil for an: \ IOiatillll of thL' Ullldllioll~ of

sup~.·n·J~ion 'id out ahoH·.

SI(;N Ell on this the 30th day of September, 2014.

llavid Rippel

.Judge Presiding

I

WI I'NLSS:

396

2

IN THE COUNTY COURT AT LAW NO. 4

[J ORIGINAL

OF COLLIN COUNTY, TEXAS

Honorable David D. Rippel, Presiding

Criminal Cause No.004-80265-2014

STATE OF TEXAS

vs.

NICK N. FEIZY

CHARGEOFTHECOURT

LADIES AND GENTLEMEN OF THE JURY:

The defendant, Nick N. Feizy, stands charged by information with the misdemeanor offense

of assault, family violence. The offense is alleged to have occurred in Collin County, Texas on or

about November 18,2013. The defendant has pleaded not guilty.

Our law provides that a person commits the offense of assault if the person intentionally.

knowingly, or recklessly causes bodily injury to another.

The term "bodily injury;' as used here, means physical pain, illness or any impairment of

physical condition.

A person acts intentionally. or with intent, with respect to the result of his conduct when it is

his conscious objective or desire to cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his conduct when

he is aware that his conduct is reasonably certain to cause the result.

A person acts recklessly, or is reckless, with respect to the result of his conduct when he is

aware of but consciously disregards a substantial and unjustifiable risk that the result will occur.

The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the

standard of care that an ordinary person would exercise under all the circumstances as viewed !rom

the actor's standpoint.

Now, if you find and believe from the evidence beyond a reasonable doubt that on or about

November 18, 2013 in Collin County, Texas, Nick N, Feizy, did intentionally, knowingly or

recklessly cause bodily injury to Lauren Feizy by grabbing, scratching or pinching Lauren Feizy

with the defendant's hand, then you will find the defendant guilty.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereot:

you will find the defendant not guilty.

All persons are presumed to be innocent and no person may be convicted of an oiTense

unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has

been arrested, confined, or charged with an offense gives rise to no inference of guilt at his trial.

390

ullY

SCANNED

The law does not require a defendant to prove his innocence or produce any evidence at all. The

presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied

beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all of

the evidence in the case.

The prosecution has the burden of proving the defendant guilty, and it must do so by

proving each and every element of the otfense charged beyond a reasonable doubt, and if they fail

to do so, you must acquit the defendant.

You are instructed that you are not to allow yourselves to be influenced in any degree

whatsoever by what you may think or surmise the opinion of the Court to be. The Court has no

right by any word or any act to indicate any opinion respecting any matter of fact involved in this

case. nor to indicate any desire respecting its outcome. The Court has not intended to express any

opinion upon any matter of fact in this case, and if you have observed anything which you have or

may interpret as the Court's opinion upon any matter of fact in this case, you must wholly disregard

it.

You are instructed that any statements of counsel made during the course of the trial or

during argument not supported by the evidence, or statements of law made by counsel not in

harmony with the law as stated to you by the Court in these instructions. are to be wholly

disregarded.

You are further instructed that you should not question the Bailitr concerning the testimony

or the law of the case, nor should you discuss the case in his presence. If you have any questions.

you should reduce them to writing, to be signed by the presiding juror, and present them to the

Court.

If the Jurors disagree as to the statement of any witness, they may, upon applying to the

Court, have read to them from the Court Reporter's notes that portion of such witness' testimony,

and only that portion. on the point in dispute.

You are instructed that the Information is the means whereby a defendant is brought to trial

in a misdemeanor prosecution. It is not evidence. nor can it be considered as such when passing

upon whether the defendant is guilty or not guilty.

You are further instructed not to let bias. sympathy or prejudice play any part m your

deliberation.

During your deliberations in this case. you must not consider, discuss, nor relate any matters

not in evidence before you. You should not consider nor mention any personal knowledge or

information you may have about any fact or person connected with this case which is not shown by

the evidence.

After you retire to the jury room, you shall select one of your members as your presiding

juror. lt is their duty to preside at your deliberations and vote with you. Your verdict must be

unanimous and signed by the presiding juror.

391

You are the exclusive judges of the facts proved, of the credibility of the witnesses, and the

weight to be given their testimony, but you must be governed by the law you receive in these

written instructions.

Suitable forms for your verdict are attached hereto. Your verdict must be in writing and

signed by your presiding juror. Your sole duty at this time is to determine whether the defendant is

guilty or not guilty under the information in this cause and you are to restrict your deliberations to

that issue.

Signed this the 30th day of September, 2014.

392

VERDICT

We. the Jury. find the defendant Not Guilty.

(signature)

(printed name)

PRESIDING JUROR

Or.

393

3

The State of Texas In the County Court at Law

ofo 11·tn

C c'-1- ·r·

ounty, exas

Trial Court's Certification of Defendant's Right of Appeal*

/1. JUdge of the trial court, certify this criminal case:

F;l/

'¥ is not a plea-bargain case, and the defendant has the right of appeaL [or[

0 is a plea-bargain case. but matters were raised by written mo!Jon filed and ruled on betorc trial and not

withdrawn or waived, and the defendant has the right of appeal. [or]

0 is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right

of appeal. [or]

0 ts a plea-bargain case, and the defendant has NO ri!,>ht of appeal. [or]

0 the defemlanl has waived the right of appeal.

Signed the 20dayof-.t:J.(P\J i(!y\b~J~.

,,:d)_---===--

:Jfj~''""" -m~: ~~.

dant's Counsel

. ·····~ . --

Matlmg ad ess: Bar number:[) 3...1-f. Lf / V 0 0

Telephnne number: Mailing address: ·

Fax number (if any): Telephone number:

Fax number (if any):

*A defendant in a criminal rnsc has the right of appeal under these rules. The trial court shall enter a

certification ofthedctendant's right to appeal in every case in which it enters ajudb'Tl1cnt nf guilt or

othc'T appealable order. In a rlea bargain case- that is, a case in which a defendant's plea was guilty or

nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and

agreed to by the defendant- a defendant may appeal only: (A) those matters that were rat sed by written

motion filed and ruled on before trial, or (B) afier getting the trial court's pem1ission to appeaL

(Texas Rule of Appellate Procedure :Z5.l(a)(2))

ODY

~~

410

§ 1.07. Definitions.

Texas Statutes

Penal Code

Title 1. Introductory Provisions

Chapter 1. General Provisions

Current through the 2013 Regular and Special Sessions

§ 1.07. Definitions

(a) In this code:

(1) "Act" means a bodily movement, whether voluntary or involuntary, and includes

speech.

(2) "Actor" means a person whose criminal responsibility is in issue in a criminal

action. Whenever the term "suspect" is used in this code, it means "actor."

(3) "Agency" includes authority, board, bureau, commission, committee, council,

department, district, division, and office.

(4) "Alcoholic beverage" has the meaning assigned by Section 1.04 , Alcoholic

Beverage Code.

(5) "Another" means a person other than the actor.

(6) "Association" means a government or governmental subdivision or agency, trust,

partnership, or two or more persons having a joint or common economic interest.

(7) "Benefit" means anything reasonably regarded as economic gain or advantage,

including benefit to any other person in whose welfare the beneficiary is interested.

(8) "Bodily injury" means physical pain, illness, or any impairment of physical

condition.

(9) "Coercion" means a threat, however communicated:

(A) to commit an offense;

(B) to inflict bodily injury in the future on the person threatened or another;

(C) to accuse a person of any offense;

(D) to expose a person to hatred, contempt, or ridicule;

(E) to harm the credit or business repute of any person; or

(F) to take or withhold action as a public servant, or to cause a public servant to

take or withhold action.

(10) "Conduct" means an act or omission and its accompanying mental state.

(11) "Consent" means assent in fact, whether express or apparent.

(12) "Controlled substance" has the meaning assigned by Section 481.002 , Health and

Safety Code.

(13) "Corporation" includes nonprofit corporations, professional associations created

pursuant to statute, and joint stock companies.

(14) "Correctional facility" means a place designated by law for the confinement of a

person arrested for, charged with, or convicted of a criminal offense. The term

includes:

(A) a municipal or county jail;

(B) a confinement facility operated by the Texas Department of Criminal

Justice;

(C) a confinement facility operated under contract with any division of the Texas

Department of Criminal Justice; and

(D) a community corrections facility operated by a community supervision and

corrections department.

(15) "Criminal negligence" is defined in Section 6.03 (Culpable Mental States).

(16) "Dangerous drug" has the meaning assigned by Section 483.001 , Health and

Safety Code.

(17) "Deadly weapon" means:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose

of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury.

(18) "Drug" has the meaning assigned by Section 481.002 , Health and Safety Code.

(19) "Effective consent" includes consent by a person legally authorized to act for the

owner. Consent is not effective if:

(A) induced by force, threat, or fraud;

(B) given by a person the actor knows is not legally authorized to act for the

owner;

(C) given by a person who by reason of youth, mental disease or defect, or

intoxication is known by the actor to be unable to make reasonable

decisions; or

(D) given solely to detect the commission of an offense.

(20) "Electric generating plant" means a facility that generates electric energy for

distribution to the public.

(21) "Electric utility substation" means a facility used to switch or change voltage in

connection with the transmission of electric energy for distribution to the public.

(22) "Element of offense" means:

(A) the forbidden conduct;

(B) the required culpability;

(C) any required result; and

(D) the negation of any exception to the offense.

(23) "Felony" means an offense so designated by law or punishable by death or

confinement in a penitentiary.

(24) "Government" means:

(A) the state;

(B) a county, municipality, or political subdivision of the state; or

(C) any branch or agency of the state, a county, municipality, or political

subdivision.

(25) "Harm" means anything reasonably regarded as loss, disadvantage, or injury,

including harm to another person in whose welfare the person affected is

interested.

(26) "Individual" means a human being who is alive, including an unborn child at every

stage of gestation from fertilization until birth.

(27) Repealed by Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.144, eff. September 1,

2009.

(28) "Intentional" is defined in Section 6.03 (Culpable Mental States).

(29) "Knowing" is defined in Section 6.03 (Culpable Mental States).

(30) "Law" means the constitution or a statute of this state or of the United States, a

written opinion of a court of record, a municipal ordinance, an order of a county

commissioners court, or a rule authorized by and lawfully adopted under a statute.

(31) "Misdemeanor" means an offense so designated by law or punishable by fine, by

confinement in jail, or by both fine and confinement in jail.

(32) "Oath" includes affirmation.

(33) "Official proceeding" means any type of administrative, executive, legislative, or

judicial proceeding that may be conducted before a public servant.

(34) "Omission" means failure to act.

(35) "Owner" means a person who:

(A) has title to the property, possession of the property, whether lawful or not, or

a greater right to possession of the property than the actor; or

(B) is a holder in due course of a negotiable instrument.

(36) "Peace officer" means a person elected, employed, or appointed as a peace officer

under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214 ,

Education Code, or other law.

(37) "Penal institution" means a place designated by law for confinement of persons

arrested for, charged with, or convicted of an offense.

(38) "Person" means an individual, corporation, or association.

(39) "Possession" means actual care, custody, control, or management.

(40) "Public place" means any place to which the public or a substantial group of the

public has access and includes, but is not limited to, streets, highways, and the

common areas of schools, hospitals, apartment houses, office buildings, transport

facilities, and shops.

(41) "Public servant" means a person elected, selected, appointed, employed, or

otherwise designated as one of the following, even if he has not yet qualified for

office or assumed his duties:

(A) an officer, employee, or agent of government;

(B) a juror or grand juror; or

(C) an arbitrator, referee, or other person who is authorized by law or private

written agreement to hear or determine a cause or controversy; or

(D) an attorney at law or notary public when participating in the performance of

a governmental function; or

(E) a candidate for nomination or election to public office; or

(F) a person who is performing a governmental function under a claim of right

although he is not legally qualified to do so.

(42) "Reasonable belief" means a belief that would be held by an ordinary and prudent

man in the same circumstances as the actor.

(43) "Reckless" is defined in Section 6.03 (Culpable Mental States).

(44) "Rule" includes regulation.

(45) "Secure correctional facility" means:

(A) a municipal or county jail; or

(B) a confinement facility operated by or under a contract with any division of

the Texas Department of Criminal Justice.

(46) "Serious bodily injury" means bodily injury that creates a substantial risk of death

or that causes death, serious permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.

(46- "Sight order" means a written or electronic instruction to pay money that is

a) authorized by the person giving the instruction and that is payable on demand or at

a definite time by the person being instructed to pay. The term includes a check,

an electronic debit, or an automatic bank draft.

(46- "Federal special investigator" means a person described by Article 2.122, Code of

b) Criminal Procedure.

(47) "Swear" includes affirm.

(48) "Unlawful" means criminal or tortious or both and includes what would be criminal

or tortious but for a defense not amounting to justification or privilege.

(49) "Death" includes, for an individual who is an unborn child, the failure to be born

alive.

(b) The definition of a term in this code applies to each grammatical variation of the term.

Cite as Tex. Pen. Code § 1.07

History. Amended By Acts 2011, 82nd Leg., R.S., Ch. 839, Sec. 1, eff. September 1, 2011.

Amended By Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.144, eff. September 1, 2009.

Amended By Acts 2009, 81st Leg., R.S., Ch. 421, Sec. 1, eff. September 1, 2009.

Amended By Acts 2003, 78th Leg., ch. 822, Sec. 2.01, eff. Sept. 1, 2003.

Amended By Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994

Amended By Acts 1991, 72nd Leg., ch. 543, Sec. 1, eff. Sept. 1, 1991

Amended By Acts 1989, 71st Leg., ch. 997, Sec. 1, eff. Aug. 28, 1989

Amended By Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(43), eff. Sept. 1, 1987

Amended By Acts 1979, 66th Leg., p. 1520, ch. 655, Sec. 1, eff. Sept. 1, 1979

Amended By Acts 1979, 66th Leg., p. 1113, ch. 530, Sec. 1, eff. Aug. 27, 1979

Amended By Acts 1977, 65th Leg., p. 2123, ch. 848, Sec. 1, eff. Aug. 29, 1977

Amended by Acts 1975, 64th Leg., p. 912, ch. 342, Sec. 1, eff. Sept. 1, 1975

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

§ 22.01. Assault.

Texas Statutes

Penal Code

Title 5. Offenses Against The Person

Chapter 22. Assaultive Offenses

Current through the 2013 Regular and Special Sessions

§ 22.01. Assault

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the

person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including

the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person

knows or should reasonably believe that the other will regard the contact as

offensive or provocative.

(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a

felony of the third degree if the offense is committed against:

(1) a person the actor knows is a public servant while the public servant is lawfully

discharging an official duty, or in retaliation or on account of an exercise of official

power or performance of an official duty as a public servant;

(2) a person whose relationship to or association with the defendant is described by

Section 71.0021(b), 71.003, or 71.005, Family Code, if:

(A) it is shown on the trial of the offense that the defendant has been previously

convicted of an offense under this chapter, Chapter 19, or Section 20.03,

20.04, 21.11, or 25.11 against a person whose relationship to or association

with the defendant is described by Section 71.0021(b), 71.003, or 71.005,

Family Code; or

(B) the offense is committed by intentionally, knowingly, or recklessly impeding

the normal breathing or circulation of the blood of the person by applying

pressure to the person's throat or neck or by blocking the person's nose or

mouth;

(3) a person who contracts with government to perform a service in a facility as

defined by Section 1.07(a)(14) , Penal Code, or Section 51.02(13) or (14) , Family

Code, or an employee of that person:

(A) while the person or employee is engaged in performing a service within the

scope of the contract, if the actor knows the person or employee is

authorized by government to provide the service; or

(B) in retaliation for or on account of the person's or employee's performance of

a service within the scope of the contract;

(4) a person the actor knows is a security officer while the officer is performing a duty

as a security officer; or

(5) a person the actor knows is emergency services personnel while the person is

providing emergency services.

(b-1) Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the

second degree if:

(1) the offense is committed against a person whose relationship to or association with

the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;

(2) it is shown on the trial of the offense that the defendant has been previously

convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or

21.11 against a person whose relationship to or association with the defendant is

described by Section 71.0021(b), 71.003, or 71.005, Family Code; and

(3) the offense is committed by intentionally, knowingly, or recklessly impeding the

normal breathing or circulation of the blood of the person by applying pressure to

the person's throat or neck or by blocking the person's nose or mouth.

(c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the

offense is:

(1) a Class A misdemeanor if the offense is committed under Subsection (a)(3)

against an elderly individual or disabled individual, as those terms are defined by

Section 22.04; or

(2) a Class B misdemeanor if the offense is committed by a person who is not a sports

participant against a person the actor knows is a sports participant either:

(A) while the participant is performing duties or responsibilities in the

participant's capacity as a sports participant; or

(B) in retaliation for or on account of the participant's performance of a duty or

responsibility within the participant's capacity as a sports participant.

(d) For purposes of Subsection (b), the actor is presumed to have known the person

assaulted was a public servant, a security officer, or emergency services personnel if the

person was wearing a distinctive uniform or badge indicating the person's employment as

a public servant or status as a security officer or emergency services personnel.

(e) In this section:

(1) "Emergency services personnel" includes firefighters, emergency medical services

personnel as defined by Section 773.003, Health and Safety Code, emergency

room personnel, and other individuals who, in the course and scope of

employment or as a volunteer, provide services for the benefit of the general public

during emergency situations.

(2) Expired.

(3) "Security officer" means a commissioned security officer as defined by Section

1702.002 , Occupations Code, or a noncommissioned security officer registered

under Section 1702.221 , Occupations Code.

(4) "Sports participant" means a person who participates in any official capacity with

respect to an interscholastic, intercollegiate, or other organized amateur or

professional athletic competition and includes an athlete, referee, umpire,

linesman, coach, instructor, administrator, or staff member.

(f) For the purposes of Subsections (b)(2)(A) and (b-1)(2):

(1) a defendant has been previously convicted of an offense listed in those

subsections committed against a person whose relationship to or association with

the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code,

if the defendant was adjudged guilty of the offense or entered a plea of guilty or

nolo contendere in return for a grant of deferred adjudication, regardless of

whether the sentence for the offense was ever imposed or whether the sentence

was probated and the defendant was subsequently discharged from community

supervision; and

(2) a conviction under the laws of another state for an offense containing elements

that are substantially similar to the elements of an offense listed in those

subsections is a conviction of the offense listed.

(g) If conduct constituting an offense under this section also constitutes an offense under

another section of this code, the actor may be prosecuted under either section or both

sections.

Cite as Tex. Pen. Code § 22.01

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 875, Sec. 1, eff. 9/1/2013.

Amended By Acts 2009, 81st Leg., R.S., Ch. 427, Sec. 1, eff. September 1, 2009.

Amended By Acts 2009, 81st Leg., R.S., Ch. 665, Sec. 2, eff. September 1, 2009.

Amended By Acts 2007, 80th Leg., R.S., Ch. 623, Sec. 1, eff. September 1, 2007.

Amended By Acts 2007, 80th Leg., R.S., Ch. 623, Sec. 2, eff. September 1, 2007.

Amended By Acts 2005, 79th Leg., Ch. 728, Sec. 16.002, eff. September 1, 2005.

Amended By Acts 2005, 79th Leg., Ch. 788, Sec. 1, eff. September 1, 2005.

Amended By Acts 2005, 79th Leg., Ch. 788, Sec. 2, eff. September 1, 2005.

Amended By Acts 2005, 79th Leg., Ch. 788, Sec. 6, eff. September 1, 2005.

Amended By Acts 2003, 78th Leg., ch. 294, Sec. 1, eff. Sept. 1, 2003

Amended By Acts 2003, 78th Leg., ch. 1019, Sec. 1, 2, eff. Sept. 1, 2003

Amended By Acts 2003, 78th Leg., ch. 1028, Sec. 1, eff. Sept. 1, 2003.

Amended By Acts 1999, 76th Leg., ch. 62, Sec. 15.02(a), eff. Sept. 1, 1999

Amended By Acts 1999, 76th Leg., ch. 1158, Sec. 1, eff. Sept. 1, 1999

Amended By Acts 1997, 75th Leg., ch. 165, Sec. 27.01, eff. Sept. 1, 1997

Amended By Acts 1997, 75th Leg., ch. 165, Sec. 27.01, 31.01(68), eff. Sept. 1, 1997

Amended By Acts 1995, 74th Leg., ch. 318, Sec. 5, eff. Sept. 1, 1995

Amended By Acts 1995, 74th Leg., ch. 659, Sec. 1, eff. Sept. 1, 1995

Amended By Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994

Amended By Acts 1991, 72nd Leg., ch. 14, Sec. 284(23) to (26), eff. Sept. 1, 1991

Amended By Acts 1991, 72nd Leg., ch. 334, Sec. 1, eff. Sept. 1, 1991

Amended By Acts 1991, 72nd Leg., ch. 366, Sec. 1, eff. Sept. 1, 1991

Amended By Acts 1989, 71st Leg., ch. 739, Sec. 1 to 3, eff. Sept. 1, 1989

Amended By Acts 1987, 70th Leg., ch. 1052, Sec. 2.08, eff. Sept. 1, 1987

Amended By Acts 1983, 68th Leg., p. 5311, ch. 977, Sec. 1, eff. Sept. 1, 1983

Amended By Acts 1979, 66th Leg., p. 367, ch. 164, Sec. 2, eff. Sept. 1, 1979

Amended By Acts 1979, 66th Leg., p. 260, ch. 135, Sec. 1, 2, eff. Aug. 27, 1979

Amended by Acts 1977, 65th Leg., 1st C.S., p. 55, ch. 2, Sec. 12, 13, eff. July 22, 1977

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Beason v. State, 010908 TXCA12, 12-06-00051

DONALD CARL BEASON, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

No. 12-06-00051-CR

Court of Appeals of Texas, Twelfth District, Tyler

January 9, 2008

DO NOT PUBLISH

APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

OPINION

JAMES T. WORTHEN, Chief Justice

Donald Carl Beason appeals his conviction for robbery, for which he was sentenced to

community supervision for two years. Appellant raises five issues on appeal. We affirm.

Background

Appellant was admitted to East Texas Medical Center (“E'C”) in Carthage, Texas (“E'C

Carthage”) for an apparent heart attack. Appellant was treated for a clot and was transferred by

ambulance to E'C in Tyler, Texas (“E'C Tyler”). There, Appellant underwent a heart catheterization

procedure and was subsequently told that he needed immediate open heart surgery.

Appellant later learned that the same doctor who performed the catheterization was also

scheduled to perform Appellant’s surgery the next morning. Upon receiving this information,

Appellant requested a copy of his medical records.[1]

Appellant’s request was denied at that time because the records department was not open

and would not be open until the next morning. Appellant asked for his chart containing the original

records. Thereafter, Appellant left the hospital with his original records to seek a second opinion

elsewhere.

As Appellant and his wife made their way to the exit, Marilyn Renee Rolling, a hospital

security guard, attempted to stop them and seize the bag Appellant was carrying. A scuffle ensued

between Appellant and Rolling. Appellant and his wife left in their car, but were stopped by police.

Appellant’s wife told the police officer who stopped them that Appellant was having a heart attack.

The officer directed Appellant’s wife to drive to Trinity Mother Frances Hospital (“Trinity Mother

Frances”). Appellant was examined at Trinity Mother Frances. Following Appellant’s examination,

the medical records that Appellant’s wife gave to the Trinity Mother Frances staff were returned to

Appellant’s wife. Appellant’s wife then turned over the records to law enforcement. Following his

examination at Trinity Mother Frances, Appellant learned that he did not immediately require heart

surgery.

Appellant was charged by indictment with robbery. Specifically, the indictment alleged that

Appellant, while in the course of committing theft of property and with intent to obtain or maintain

control of said property, intentionally, knowingly, or recklessly caused bodily injury to Rolling, by

striking her with his hand. Appellant pleaded “not guilty,” and the matter proceeded to jury trial.

Rolling testified as the State’s first witness. Rolling stated that at around 2:00 am. on January

12, 2004, she received a call from a nurse who told her that a patient was leaving the hospital with

some charts. Rolling further stated that she encountered Appellant, and reached unsuccessfully

for his bag as Appellant continued walking. Rolling testified that she told Appellant, who still had

an IV in his arm that he had not yet been released from the hospital and would need to return so

he could have the IV removed and be discharged against medical advice. Rolling further testified

that she stood in front of Appellant, grabbed Appellant, grabbed Appellant’s shirt, and grabbed

Appellant’s arm, all in an attempt to thwart Appellant’s exit, but Appellant continued his egress

unabated. Rolling stated that when she reached the exit, Appellant struck her in the face, causing

a lens to pop out of her glasses. Rolling further stated that she noticed she was bleeding after

Appellant struck her. Rolling admitted to striking Appellant multiple times, including hitting

Appellant in the chest. Rolling testified that eventually she and another security guard, Sam

Wagner, realized they would not be able to physically restrain Appellant so they let him leave, but

continued to verbally instruct Appellant not to leave. Rolling further testified that she received two

stitches for the injury caused by Appellant’s blow to her face.

Former E'C floor technician Jerry Jones testified as the State’s next witness. Jones testified

that on the night in question, he observed Appellant walking quickly past the cafeteria with a

security guard pursuing him. Jones further testified that the two were talking back and forth to one

another as they approached the exit. Jones stated that once Appellant was outside, the security

guard reached for his bag and Appellant hit her, breaking her glasses. Jones further stated that

the security guard then lunged at Appellant and hit him as the two scuffled. Jones testified that

Appellant and his wife left following the altercation.

Sam Wagner testified next on the State’s behalf. Wagner testified that he was also a security

Guard for E'C and that he grabbed hold of Appellant during Appellant’s attempt to leave the

hospital. Wagner’s testimony was largely consistent with Rolling’s account. Wagner further

testified that if, in fact, Appellant were suffering a heart attack, it would have been in his best

interest to stay in the hospital. Wagner stated that patient safety was the “number one duty” and

described his efforts to prevent Appellant’s exit as “encouraging him not to leave.”

ETM'C Release of Information Clerk Cynthia Woods testified as the State’s next witness.

Woods testified that the medical records department had care and control of the records at issue

while ETM'C had custody of such records. Woods further testified that the value of the pages in

Appellant’s medical chart, based on the copy fee per page, was $38.31.

Tyler Police Department Officer Richard Strother testified next on the State’s behalf. Strother

testified that he arrived on the scene to find a fellow officer, whom he identified as Officer

Leigeber, stopped behind a vehicle with its emergency flashers activated. Strother stated that he

followed Leigeber to Trinity Mother Frances because one of the passengers in the stopped vehicle

was complaining of chest pains. Strother further stated that once inside Trinity Mother Frances, he

learned of the disturbance that had occurred at ETM'C Tyler and began to investigate. Strother

testified that he spoke with Appellant’s wife and a Tyler police sergeant spoke to Appellant.

Strother further testified that he overheard Appellant say “he had knocked the hell out of two

security guards.” Strother stated that he noted a small scratch on the top of Appellant’s right hand

that had some blood on it. Strother further stated that he spoke to Appellant’s wife, and asked her

if she had any documents belonging to ETM'C. Strother testified that Appellant’s wife then turned

over Appellant’s medical records to him. Strother further testified that he encountered the two

security guards who were earlier involved in the scuffle with Appellant and stated that they were

still wearing their uniforms. Following Strother’s testimony, the State rested. Appellant made a

motion for instructed verdict, which was denied.

Appellant’s wife, Mary Beason, testified first on Appellant’s behalf. Beason testified that on

January 8, 2004, she and Appellant were at their home when Appellant began complaining of

chest pains and pains in his arm. Beason stated that she called 9-1-1 and that Appellant was

taken to ETM'C Carthage by ambulance. Beason further stated that following treatment at ETM'C

Carthage, Appellant was transferred to ETM'C Tyler for a heart catheterization, a procedure they

were told would be performed by a specialist. Beason testified that though she met the physician

who performed the heart catheterization, a surgeon never came by to meet with them, despite

multiple requests. Beason further testified that she and her husband ultimately lost faith in the

process at ETM'C and decided to leave. Beason stated that she and her husband requested

copies of his medical records several times before leaving. Beason further stated that they were

given a copy of Appellant’s medical records to review, which she ultimately took with them.

Beason also stated that as she and Appellant searched for the exit, a female security guard

addressed Appellant, exclaiming, “Are the papers in the bag?” According to Beason, when

Appellant responded “No,” the security guard grabbed his arm, which still had an IV in it, and took

the bag from him. Beason continued, stating that the security guard passed them and blocked

their exit. Beason testified that as Appellant attempted to exit, the security guard again grabbed

Appellant’s arm in spite of Beason’s pleas, “Don’t touch him. He’s a heart patient.” Beason further

testified that, once outside, Appellant continued in his attempt to break free from the security guard

and fell into the flower bed.

Beason stated that she and her husband made their way to their car and left ETM'C Tyler for

the University of Texas Health Center. Beason further stated that en route, they were stopped by a

police officer. Beason testified that she told the officer her husband was having a heart attack and

that the officer told her she had just passed Trinity Mother Frances. Beason further testified that

she and Appellant drove to Trinity Mother Frances. Beason stated that she gave the medical

records to Trinity Mother Frances personnel and later, after getting the records back, she gave

them to a police officer. Beason further stated that during his conversation with a police officer,

Appellant stated, “How would I take time out of having a heart attack to beat the hell out of two

security guards.” Beason testified that Appellant ultimately had open heart surgery in Arkansas.

On cross examination, Beason further testified that she did not know whether Appellant struck the

female security guard as they left ETM'C Tyler that night. Beason denied being told that she could

not leave the hospital with Appellant’s original medical records or that the records were the

hospital’s property. Rather, Beason stated that she was told by the nursing supervisor on the

phone that “she would not take the medical records away from a heart patient.” Beason further

stated that she was not aware of federal law as it pertained to Appellant’s medical records.

Appellant testified next on his own behalf. Appellant recounted the same events as had his

wife, relating to his decision to leave ETM'C Tyler on the night in question. Appellant stated that he

was told he needed to have bypass surgery immediately. Appellant testified that he requested

copies of his medical records several times, but was not given the copies he requested. Appellant

testified that he believed the records were his. Appellant further testified regarding his struggle

with the two security guards. Appellant stated that he was suffering chest pains during the

struggle. Specifically, Appellant stated that he “felt like an elephant [was] sitting on [his] chest,”

and that this pain continued even following their arrival at Trinity Mother Frances. Appellant

confirmed the accuracy of his wife’s testimony that he stated to a police officer, “How would I take

time out of having a heart attack to beat the hell out of two security guards.” Appellant stated that

he still believed the records to be his and that he thought it was necessary to take them for his

personal health and welfare. On cross examination, Appellant denied telling a doctor at Trinity

Mother Frances that he punched a security guard who had grabbed his arm. Appellant later

testified that he did not have any knowledge of intentionally striking Rolling, and further denied

striking Rolling or Wagner. Appellant stated that no one told him he could not take his medical

records from ETM'C Tyler. Appellant further stated that he had bypass surgery at a Veterans

Administration hospital in Little Rock, Arkansas approximately three weeks following the incident.

Kevin Jones, criminal investigator for the Panola County District Attorney, testified as

Appellant’s next witness. Jones testified that Appellant had a good reputation in his community for

being a peaceable and law abiding citizen. Jones further testified that Appellant had a good

reputation in his community for being a truthful person. Jones also stated that Beason had a good

reputation in her community for being a truthful person.

Barry Washington testified next on Appellant’s behalf. Washington testified that he spent

twenty-three years in Panola County, Texas as a state trooper and was currently employed by

Panola County at the adult district probation office. Washington testified that he had known

Appellant for twenty-four years and that Appellant had a reputation in his community for being a

peaceable, law abiding, and truthful person. Washington also stated that Beason had a reputation

in the community for being a truthful person. Following Washington’s testimony, Appellant rested.

In rebuttal, the State called ETM'C Tyler registered nurse Amber Moore. Moore testified that

she was currently working in the cardiovascular intensive care unit. Moore further testified that at

the time in question, she was working in the intermediate cardiac unit at ETM'C Tyler. Moore

identified Appellant as a patient who was in her unit on the night in question. Moore recalled

speaking to Appellant concerning his review of his medical records. Moore testified that when

Appellant requested to take his medical records, she called Dianne Ohmes, the house supervisor,

because she was not familiar with hospital policy in this regard. Moore further testified that after

speaking to Ohmes, she informed Appellant that he would need to have someone in the medical

records department make copies of the medical records. Moore stated that she informed him of

this fact at least five times and further stated that she informed Appellant that the medical records

department would not be able to make copies until it opened in the morning. Moore testified that

Appellant took the records to his room while discussing a matter with the nursing supervisor.

Moore further testified that Appellant spoke to the vice president of the hospital. Moore stated that

Appellant and his wife subsequently left the room and that Appellant left an empty binder in which

the medical records are ordinarily kept at the nurses’ station. On cross examination, Moore

discussed the notes she had made on Appellant’s chart.

ETM'C Tyler Administrative Chief Executive Officer Robert Evans testified as the State’s

next rebuttal witness. Evans testified that he recalled speaking to a patient on the phone in the

early morning hours of January 12, 2004, but did not remember the patient’s name. Evans further

testified that the original medical records are the property of the hospital. Evans stated that in his

twenty-five years of experience, he had never allowed a person to take any original records from

the hospital. Evans was permitted to read the following passage from the ETM'C Tyler

Administrative Manual:

...The patient’s right of access in no way abrogates the hospital’s property rights in its record and

its right to establish reasonable procedures for access to the patient’s record. East Texas Medical

Center recognizes the patient or his authorized representative’s right of access to his medical

record for review and to request correction or amendment to the record, providing the following

requirements are met. However, if a physician determines that access to the information could be

harmful to the physical, mental, or emotional health of the patient, the physician may recommend

that the medical record information not be disclosed to the patient ....Procedure, number one, the

patient must complete an authorization and request form. Number two, the attending physicians

may be notified that the patient has requested access to his medical record. Number three, a

designated hospital employee will be present at all times during the review. Number four,

prepayment of reasonable approved fees for copies, if requested, will be assessed. Number five, a

reasonable period of time is required between request and review. The review will take place

during regular working hours, Monday through Friday, 8:00 am. through 4:30 pm.

Evans testified that, to the best of his knowledge, what he read was the policy in effect on the date

in question. On cross examination, Evans stated that in an emergency situation, if a hospital or

another clinical practitioner wanted a copy of a record, the record would be sent to them

immediately.

Ohmes testified as the State’s next rebuttal witness. Ohmes testified that, on the night in

question, she was employed by ETM'C Tyler as “House Supervisor.” Ohmes further testified that

she told Appellant he could not take any medical records, but that copies would be made available

to him between 8:00 am. and 4:00 p.m. the next day. Ohmes stated that if another hospital or

emergency room contacted them wanting medical records on a patient at 3:00 am., she would

have gotten the records to them. Ohmes further stated that she, at no time, gave Appellant

permission to leave the hospital with the medical records. At the conclusion of Ohmes’s testimony,

both the State and Appellant rested and closed.

Ultimately, the jury found Appellant guilty as charged. Following a trial on punishment, the

jury assessed Appellant’s punishment at confinement for two years, but recommended that

Appellant’s sentence be probated for two years. The trial court sentenced Appellant accordingly,

and this appeal followed.

Evidentiary Sufficiency

In his first issue, Appellant contends that the evidence was legally insufficient to support his

conviction. In his fifth issue, Appellant contends that the evidence was factually insufficient to

support his conviction.

Legal Sufficiency

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the

Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307,

315–16, 99 S.Ct. 2781, 2786–87, 61 L.Ed.2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1,

6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency

challenge is whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789; see also

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the

light most favorable to the jury’s verdict. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789; Johnson

, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal

by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S.Ct. 2211, 2217–18, 72

L.Ed.2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a

hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Such a charge would include one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant is tried.” Id.

To support a conviction for robbery, the evidence must support that the accused, in the

course of committing theft and with intent to obtain or maintain control of the property,

intentionally, knowingly, or recklessly caused bodily injury to another or intentionally or knowingly

threatened or placed another in fear of imminent bodily injury or death. See Tex. Penal Code Ann.

§ 29.02(a) (Vernon 2003). Theft consists of the unlawful appropriation of property, i.e., without the

owner’s effective consent, with the intent to deprive the owner of the property. See Tex. Penal

Code Ann. § 31.03(a) (Vernon Supp. 2007).

Ownership

An “owner” of property includes a person who has possession of the property, whether lawful

or not or a greater right to possession of the property than the actor. See Tex. Penal Code Ann.

§1.07(a)(35)(A) (Vernon Supp. 2007). Appellant first argues that he had a superior right to

possession of the records he took and, therefore, was the owner of those records. Appellant’s

contention is based on his interpretation of portions of the Health Insurance Portability and

Accessibility Act of 1996 (“HIPAA”). Specifically, Appellant notes that (1) an entity covered by

HIPPA is required to disclose health information to an individual when requested,[2] (2) an

individual has a right of access to inspect and obtain a copy of protected health information about

the individual in a designated record set,[3] and (3) the covered entity must, among other things,

provide the access requested.[4] However, each of the code sections to which Appellant cites

presupposes that the covered entity has a right to possess such health records. While the code

sections speak to an individual’s rights of disclosure and access, they do not make reference or

otherwise create any superior right of possession such as is claimed by Appellant.

In the instant case, Woods testified that E'C had custody, care, and control of Appellant’s

original medical records. Furthermore, Evans testified that the original medical records are the

property of the hospital. Ohmes testified that she told Appellant he could not take any medical

records, but that copies would be made available to him between 8:00 a.m. and 4:00 p.m. the next

day. Ohmes also stated that she, at no time, gave Appellant permission to leave the hospital with

the medical records. From the foregoing, we conclude that there was legally sufficient evidence

that the hospital was the legal owner of the records. See Tex. Penal Code Ann. §1.07(a)(35)(A).

Value

Appellant next argues that the sole evidence regarding the value of the records was Woods’s

testimony that the value of the pages in Appellant’s medical chart, based on the copy fee per

page, was $38.31 and that there was no evidence of the actual value of the sheets of paper, which

could not be separated from the information on them.

The value of property taken is either (1) the fair market value of the property at the time and

place of the offense or (2) the cost of replacing the property within a reasonable time after the

offense if its fair market value cannot be ascertained. See Tex. Penal Code Ann. § 31.08(a)

(Vernon 2003). “Market value” as it relates to stolen property means the amount of money that the

property would sell for in cash, giving a reasonable time for selling it. See Johnson v. State, 903

S.W.2d 496, 498 (Tex. App.–Fort Worth 1995, no pet.). The owner of property is competent to

testify about the value of his own property in general and commonly understood terms. Id. When

an owner testifies, the presumption must be that the owner is testifying to an estimation of the fair

market value. Id. (citing Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986)).

Testimony of this nature is an offer of the witness’s best knowledge of the value of his property

and constitutes sufficient evidence for the trier of fact to make a determination about value based

on the witness’s credibility. Id. This is true even absent a specific statement about “market value.”

Id. If the defendant wishes to rebut the owner’s opinion, he must offer controverting evidence

about the value of the property.

In the case at hand, Woods testified that she worked at E'C Tyler as a release of information

clerk. Woods testified that the medical records department in which she worked had care and

control of the records at issue while E'C had custody of such records. Woods further testified that

the value of the pages in Appellant’s medical chart, based on the copy fee per page, was $38.31.

We conclude that the aforementioned evidence adequately supports that the records at issue had

a fair market value of $38.31 because they could be sold as copies for that amount. Therefore, we

hold that there was legally sufficient evidence as to the records’ fair market value.

Use of Force[5]

Appellant next argues that there was no evidence that the documents were obtained by

force. Rather, Appellant argues that the evidence of force occurred after Appellant had taken the

documents. However, the State was not required to prove that Appellant obtained the documents

by use of force. Rather, to prove the offense of robbery, the State need only prove that the

person’s actions were committed in the course of committing a theft. See Tex. Penal Code Ann. §

29.02(a). The term “in the course of committing a theft” means conduct that occurs in an attempt

to commit, during the commission, or in the immediate flight after an attempt or commission of a

theft. See Tex. Penal Code Ann. § 29.01(1) (Vernon 2003).

In the case at hand, Rolling testified that when she reached the exit, Appellant struck her in

the face, causing a lens to pop out of her glasses. Jones also testified that when Appellant was

outside, the security guard reached for his bag and Appellant hit her, breaking her glasses. Thus,

we hold that there was legally sufficient evidence that Appellant, in the course of committing a

theft, caused bodily injury[6] to another. Appellant’s first issue is overruled.

Factual Sufficiency

Turning to Appellant’s contention that the evidence is not factually sufficient to support his

conviction, we must first assume that the evidence is legally sufficient under the Jackson standard.

See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the

evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and

compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d

155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s

determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d

at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the

weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is

conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See

Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must

ask whether a neutral review of all the evidence, both for and against the finding, demonstrates

that the proof of guilt is so obviously weak as to undermine our confidence in the jury's

determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by

contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v.

State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient only when

reviewing court objectively concludes that the great weight and preponderance of the evidence

contradicts the jury’s verdict).

Appellant limits his factual sufficiency contention to the proof of value of the records at issue.

We have reviewed the record in its entirety. We iterate that our evaluation should not substantially

intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see

Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such

matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. Woods’s

testimony was the sole testimony related to the records’ value. Appellant elected not to cross

examine Woods. Our review of the record as a whole, with consideration given to all of the

evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes

us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by

contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we

hold that the evidence is factually sufficient to support the jury’s verdict. Appellant’s fifth issue is

overruled.

Charge Instruction on Necessity

In his second issue, Appellant argues that the trial court erred in refusing to instruct the jury

in its charge regarding the justification of necessity. Upon a timely request, a defendant has the

right to an instruction on any defensive issue raised by the evidence, whether such evidence is

strong or weak, unimpeached or contradicted, regardless of what the trial court may or may not

think about the credibility of this evidence. McGarity v. State, 5 S.W.3d 223, 226 (Tex. App.–San

Antonio 1999, no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991)). A

charge on a defensive issue is required if the accused presents affirmative evidence that would

constitute a defense to the crime charged and a jury charge is properly requested. See id. If the

issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion.

McGarity, 5 S.W.3d at 226. When the evidence fails to raise a defensive issue, the trial court

commits no error in refusing a requested instruction. See id. at 227.

For the evidence to support submission of the necessity defense to the jury, the defendant

must admit to the offense. Id.; see Allen v. State, 971 S.W.2d 715, 720 (Tex. App.–Houston [14th

Dist.] 1998, no pet.). The necessity instruction is not required unless there was evidence from the

accused admitting the offense, and henceforth claiming justification for having committed the

offense because of other facts. See Maldano v. State, 902 S.W.2d 708, 712 (Tex. App.–El Paso

1995, no pet.). One cannot establish that an act is justified without first identifying or admitting to

the commission of the act. Id.

In the case at hand, Appellant did not admit to committing robbery. Rather, Appellant sought

to challenge the hospital’s ownership of the records he took and declined to admit that he struck

Rolling. Therefore, we hold that the trial court did not err in refusing to instruct the jury on the

defense of necessity in its charge. Appellant’s second issue is overruled.

Charge Instruction on Duress

In his third issue, Appellant argues that the trial court erred in refusing to instruct the jury in

its charge on the defense of duress. “When raised by the evidence and timely requested, a

defendant is entitled to a jury instruction on the affirmative defense of duress if he engaged in the

proscribed conduct because he was compelled to do so by threat of imminent death or serious

bodily injury to himself or another.” Shaw v. State, 874 S.W.2d 115, 119 (Tex. App.–Austin 1994,

no pet.) (emphasis added). Thus, similar to the justification of necessity, the affirmative defense of

duress requires that the accused admit to having engaged in the proscribed conduct. See, e.g.,

Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.–Dallas 1983, no pet.) (appellant’s denial of

having had sexual intercourse with complainant did not raise issue of his having “engaged in the

proscribed conduct”). As set forth above, Appellant did not admit to committing robbery in the

instant case. Therefore, we hold that the trial court did not err in refusing to instruct the jury on the

defense of duress in its charge. Appellant’s third issue is overruled.

Charge Instruction Regarding Definition of “Owner”

In his fourth issue, Appellant argues that the trial court erred in failing to properly instruct the

jury regarding the definition of “owner” for purposes of the theft and robbery statutes. Specifically,

Appellant argues that the jury should have been instructed that an owner includes a person who

has a greater right to possession of the property than the actor at the time of the alleged

commission of the offense. When reviewing charge error, we employ a two step analysis.

Washington v. State, 930 S.W.2d 695, 698 (Tex. App.–El Paso 1996, no pet.). We must first

determine whether error actually exists in the charge. See Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984); Washington, 930 S.W.2d at 698. In making this determination, we view

the charge as a whole and our review should not be limited to a series of isolated statements or

parts of the charge standing alone. Washington, 930 S.W.2d at 698; see Holley v. State, 766

S.W.2d 254, 256 (Tex. Crim. App. 1989). Second, we must determine whether sufficient harm

resulted from the error to require reversal. Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d

at 698. Which harmless error standard applies depends upon whether the defendant objected.

Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Washington, 930 S.W.2d at

698. In a case where the defendant failed to object, he must show that he suffered actual

egregious harm. See Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698.

In the case at hand, Appellant argues that the temporal addition to the definition of “owner”

was necessary to allow the jury to consider whether Appellant had gained a superior right to

possession by the time he and his wife left the hospital inasmuch as they had requested copies

and been told that copies would not be available until morning. However, the trial court defined the

word “owner” in accordance with Texas Penal Code, section 1.07(a)(35)(A). Moreover, in the

application paragraph, the jury was charged that it could find Appellant guilty of robbery if it found

that on or about January 12, 2004, in Smith County, Texas, Appellant did then and there

unlawfully appropriate, by acquiring or exercising control over property from the person of the

owner with intent to deprive the owner of the property. The term “then and there,” as used in the

application paragraph, means at the time and place last previously mentioned or charged. See

Black’s Law Dictionary 1478 (6th ed. 1990). Thus, the jury was given a temporal framework within

which to consider the evidence and make its finding. Further still, as set forth above, the rights of

disclosure and access in HIPPA do not serve to create a superior right of possession in Appellant

to the medical records either before or after he requested copies of the documents. Having

reviewed the charge as a whole in light of the entirety of the record, we hold that the trial court did

not err in declining to submit Appellant’s temporal element to its definition of the word “owner.”

Appellant’s fourth issue is overruled.

Disposition

Having overruled Appellant’s first, second, third, fourth, and fifth issues, we affirm the trial

court’s judgment.

---------

Notes:

[1] Ownership of these medical records is a contested issue in this case. Our reference to these

records as “Appellant’s medical records” is made solely for ease of reference and should be

interpreted as “medical records pertaining to Appellant.”

[2] See 45 C.F.R. § 164.502(a)(1), (2) (2007).

[3] See 45 C.F.R. § 164.524 (2007).

[4] See 45 C.F.R. § 164.524(c) (2007).

[5] Appellant raises this issue under his factual sufficiency argument. We presume that Appellant

intended to raise this “no evidence” issue as a legal sufficiency contention.

[6] Appellant has not argued that the evidence is insufficient to support the element of bodily injury.

Bodily injury is defined as physical pain, illness, or any impairment of physical condition. Tex.

Penal Code Ann. § 1.07(a)(8) (Vernon 2007). The definition is broad and encompasses even

relatively minor physical contacts as long as they constitute more than mere offensive touching.

Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989); In re M.C.L., 110 S.W.3d 591, 600

(Tex. App.–Austin 2003, no pet.). The evidence in the instant case supports contact amounting to

more than offensive touching inasmuch as it was enough to cause the lens to pop out of Rolling’s

glasses and break the skin ultimately requiring two stitches.

---------

16 S.W.3d 854 (Tex.App. —Houston [14 Dist.] 2000) 2000), 14-99-00215, Breaux v. State

Page 854

16 S.W.3d 854 (Tex.App. —Houston [14 Dist.] 2000) 2000)

Avery Gustavius BREAUX, Jr., Appellant,

v.

The STATE of Texas, Appellee.

Nos. 14-99-00215-CR, 14-99-00216-CR.

Court of Appeals of Texas, Fourteenth District, Houston

April 13, 2000

Page 855

Frances M. Northcutt, Houston, for appellant.

Calvin A. Hartmann, Houston, for appellee.

Panel consists of Justices YATES, FOWLER, and EDELMAN.

OPINION

LESLIE BROCK YATES, Justice.

Appellant, Avery Gustavius Breaux, Jr., was certified to stand trial as an adult and pleaded

guilty to the offenses of aggravated assault and aggravated robbery without an agreement as to

punishment. Finding his judicial confession sufficient evidence to substantiate guilt, the trial court

found appellant guilty of both offenses and sentenced him to twenty-five years' imprisonment in

the Texas Department of Criminal Justice--Institutional Division. On appeal, appellant raises two

points of error challenging the sufficiency of the evidence to support his plea of guilty. We affirm in

part and reverse and remand in part.

In his first point of error, appellant complains the evidence is insufficient in both the

aggravated assault and aggravated robbery cases because his judicial confessions were not

voluntary. Appellant challenges the voluntariness of his judicial confessions based on his negative

answer to the judge's query of whether he had "looked over the papers."

When a defendant pleads guilty, article 1.15 of the Code of Criminal Procedure requires the

State to "introduce evidence into the record showing the guilt of the defendant ... and in no event

shall a person charged be convicted upon his plea without sufficient evidence to support the

Page 856

same." TEX.CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp.2000); Palacios v. State, 942

S.W.2d 748, 749 (Tex.App.--Houston [14 th Dist.] 1997, pet. ref'd). A judicial confession alone is

sufficient to support a guilty plea. See Dinnery v. State, 592 S.W.2d 343, 353

(Tex.Crim.App.1980)(op. on reh'g). However, to constitute a judicial confession, the statement of

the accused must have been voluntarily given before a magistrate, or court, in the due course of

legal proceedings. See Franco v. State, 552 S.W.2d 142, 144 (Tex.Crim.App.1977); Rice v. State,

22 Tex.App. 654, 3 S.W. 791, 792 (1887).

The record reveals that, prior to entering his plea of guilty, appellant signed the following

plea papers: Waivers of Constitutional Rights, Agreements to Stipulate, Judicial Confessions, and

Written Plea Admonishments. [1] The reporter's record of the plea proceedings indicates that after

explaining the range of punishment, the judge, referring to the plea papers, asked appellant,

"Have you looked over these papers?" Appellant answered, "No."

After appellant gave his negative answer, the judge made a substantial effort to ensure that

the defendant understood the proceedings. The judge questioned appellant concerning the

contents of the documents to determine whether he had signed the papers voluntarily. She

inquired of appellant whether: (1) he wished to give up the right to a jury trial, (2) he understood

his attorney's explanation of the papers he signed, (3) he understood the English language, (4) he

understood he was subject to the full range of punishment, (5) he understood that if given deferred

adjudication, it could be revoked and he could be sentenced to as much as life in prison, (6) he

understood that he was giving up the right to confront and cross-examine witnesses, (7) he

understood his rights and wanted to give them up, (8) he was satisfied with his attorney's

representation, and (9) he realized the papers he signed would be used as evidence against him.

To each of these inquiries appellant answered in the affirmative. Further, appellant indicated that

no one had promised him anything in exchange for entering his plea.

Once the judge was satisfied that appellant had voluntarily signed the papers, she accepted

his pleas of guilty. The Waivers of Constitutional Rights, Agreements to Stipulate, and Judicial

Confessions were then offered and admitted into evidence. The judge found the evidence was

sufficient to substantiate appellant's guilt.

Appellant claims that while the trial judge specifically inquired about some of his rights, she

made no specific inquiry about whether he understood that the plea papers contained a judicial

confession or waived his right against self-incrimination. Therefore, appellant claims, because his

judicial confession was not voluntary, it was inadmissible. To the contrary, the trial judge asked

appellant if his attorney had explained the papers he had signed and if, by signing the papers, he

understood his rights and wanted to give them up. Due process does not require a trial judge to

enumerate, laundry-list style, every Constitutional right that a defendant possesses and demand

that the defendant note for the record his separate waiver of each. See Lyles v. State, 745 S.W.2d

567, 568 (Tex.App.--Houston [1 st Dist.] 1988, pet. ref'd).

We find that the judge's inquiries and appellant's affirmative answers indicate that appellant

was made aware of the content and effect of the plea papers, including the judicial confessions,

and that the documents were voluntarily executed. Therefore, we overrule appellant's first point of

error.

In his second point of error, appellant complains that the evidence is insufficient

Page 857.

in the aggravated assault case to support his conviction. Appellant bases his complaint upon the

omission of the element of "injury" from his judicial confession.

As noted above, the State is required to introduce evidence showing the defendant's guilt.

See TEX.CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp.2000). The evidence is sufficient

under article 1.15 if it embraces every essential element of the offense charged and establishes

the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App.1996). Thus, while

a judicial confession alone is usually sufficient to satisfy the requirements of article 1.15, a judicial

confession that omits an element of the offense is insufficient to support a guilty plea. [2] See

York v. State, 566 S.W.2d 936, 939 (Tex.Crim.App.1978); Massey v. State, 777 S.W.2d 739, 740

(Tex.App.--Beaumont 1989, no pet.). Causation of bodily injury to another is an essential element

of assault. See TEX. PEN.CODE ANN. § 22.01, 22.02 (Vernon 1994 & Supp.2000); Burkholder v.

State, 660 S.W.2d 540, 541 (Tex.Crim.App.1983).

Appellant's judicial confession for aggravated assault stated in pertinent part:

The charges against me allege that in Harris County, Texas, AVERY GUSTAVIUS BREAUX, JR.,

hereafter styled the Defendant, on or about FEBRUARY 23, 1998, did then and there unlawfully,

intentionally, knowingly and recklessly, by driving a motor vehicle in the direction of JOHN

UPTON, cause bodily [sic] to JOHN UPTON, hereafter called the Complainant, by striking the

Complainant with a deadly weapon, namely, a motor vehicle, while the Complainant was lawfully

discharging an official duty, knowing the Complainant was a public servant.

*****

I understand the above allegations and I confess that they are true and that the acts alleged above

were committed on February 23, 1998.

(emphasis added).

Appellant's judicial confession, the only evidence contained in the record to support his

conviction, omitted an essential element of the offense of aggravated assault--injury. This case is

remarkably similar to the facts in York. See York, 566 S.W.2d at 938-39. In York, part of the clause

"without the effective consent of the owner" was omitted from the judicial confession. See id. The

court found the evidence was insufficient to support the conviction because a necessary element

of the offense of burglary of a habitation was not established by the confession and no other

evidence was offered in support of the plea. See id. Here, there being no evidence of injury to the

complainant, as necessitated by article 1.15 of the Code of Criminal Procedure and section 22.02

of the penal code, we find the evidence insufficient to support appellant's conviction. Appellant's

second point of error is sustained.

The trial court's judgment in trial cause number 784,223 (the aggravated robbery case) is

affirmed; and the judgment in cause number 795,625 (the aggravated assault case) is reversed

and remanded to the trial court. [3]

---------

Notes:

[1] These forms were signed in duplicate--one set for the aggravated assault, and the other for the

aggravated robbery.

[2] An exception to this rule provides that if the judicial confession contains a "catch-all" phrase

that the defendant is guilty "as charged in the indictment," the confession is sufficient evidence to

support the conviction even where an element of the offense has been omitted. See Snyder v.

State, 629 S.W.2d 930, 932 (Tex.Crim.App.1982). This exception seems also to apply to sworn

oral statements made by the defendant during the course of the plea proceedings that the

indictment is "true and correct." See Dinnery, 592 S.W.2d at 353. Here, however, neither

appellant's written judicial confession, nor any oral statements made during the course of the plea

proceedings contained such an admission.

[3] Because appellant voluntarily entered a plea of guilty, the Double Jeopardy Clause of the Fifth

amendment to the United States Constitution does not preclude a second trial. See Bender v.

State, 758 S.W.2d 278, 280-81 (Tex.Crim.App.1988); Ex parte Martin, 747 S.W.2d 789, 792-93

(Tex.Crim.App.1988).

---------

323 S.W.3d 893 (Tex.Crim.App. 2010), PD-0210-09, Brooks v. State

Page 893

323 S.W.3d 893 (Tex.Crim.App. 2010)

Kelvin Kianta BROOKS, Appellant,

v.

The STATE of Texas.

No. PD-0210-09.

Court of Criminal Appeals of Texas.

October 6, 2010

Rehearing Denied Nov. 17, 2010.

Page 894

Walter M. Reaves, Jr., West, for Appellant.

John R. Messinger, Asst. Crim. D.A., Waco, Jeffrey L. Van Horn, State's Attorney, Austin,

for State.

HERVEY, J., announced the judgment of the Court and delivered an opinion in which KELLER,

P.J., KEASLER, and COCHRAN, JJ., joined.

OPINION

HARVEY, J.

We granted discretionary review in this case to address, among other things, whether there

is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia [1]

and a factual-sufficiency standard under Clewis v. State and whether there is a need to retain both

standards.[2] Under the Jackson v. Virginia legal-sufficiency standard, a reviewing court is

required to defer to a jury's credibility and weight determinations.[3] In Clewis, this Court adopted a

factual-sufficiency standard, which is supposed to be distinguished from a Jackson v. Virginia

legal-sufficiency standard primarily by not requiring a reviewing court to defer to a jury's credibility

and weight determinations.[4] But then Clewis contradicted itself by also requiring a reviewing

court to apply this standard with deference to these jury determinations " so as to avoid an

appellate court's substituting its judgment for that of the jury." [5] After having made several

attempts to " clarify" Clewis in part to resolve this fundamental contradiction, we eventually came

to realize that the Clewis factual-sufficiency standard is " barely distinguishable" from the

Page 895

Jackson v. Virginia legal-sufficiency standard.[6] We now take the next small step in this

progression and recognize that these two standards have become essentially the same standard

and that there is no meaningful distinction between them that would justify retaining them both.

We, therefore, overrule Clewis and decide that the Jackson v. Virginia legal-sufficiency standard is

the only standard that a reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is required to prove beyond

a reasonable doubt.

The record reflects that, in cause number 10-07-00309-CR, a jury convicted appellant of

possessing with intent to deliver more than four but less than 200 grams of crack cocaine and

sentenced him to 25 years in prison. Appellant claimed on direct appeal that the evidence is

legally and factually insufficient to support the intent-to-deliver element of this offense.

The evidence shows that two police officers went into a bar to investigate a report that

someone matching appellant's description was there with a gun. When the officers asked

appellant to step outside, appellant ran and threw two baggies towards a pool table just before one

of the officers tased him. One of the baggies contained a small amount (about 3 grams) of

marijuana. The other baggie contained one baggie holding 4.72 grams of crack cocaine and

another baggie holding six ecstasy tablets that weighed 1.29 grams.[7] Appellant also had a cell

phone and, according to one of the officers, " a couple of dollars." [8] Appellant did not appear to

be under the influence of narcotics, and he was not in possession of any drug paraphernalia that

could have been used for smoking crack cocaine. The police did not find a gun. The police gave

appellant's cell phone and money to an acquaintance of appellant's before they took appellant to

jail.

An experienced Waco Police Department drug-enforcement investigator (Thompson)

testified that the bag containing the 4.72 grams of crack cocaine contained " two larger size rocks

and then maybe a smaller one" and a useable amount of " crumbs." He testified that each of the

two large rocks weighed at least two grams and the other one weighed " a gram and a half or

something like that." Thompson testified that " he would say" that 4.72 grams was a " dealer

amount," which could have been cut up into 23 or 24 rocks. He testified that 4.72 grams of crack

cocaine is worth about $470.

Thompson stated that a " typical quantity" that a dealer would have would be more than two

rocks and that he " would think" that someone with more than a gram would be a dealer.

Thompson testified that it is not " typical" for drug users to be in possession of a large amount of

drugs and that he has " not run across many people that are [crack cocaine] users that have more

than one to two rocks" because they are going to " smoke it as soon as [they] can get it." He also

testified that " most" crack cocaine users " typically"

Page 896

would have some type of paraphernalia " to smoke the crack with" and that " [t]ypically dealers

don't have crack pipes because it's not really common for them to use their product that they are

selling." For example, Thompson testified:

Q. [STATE]: Okay. So if somebody had approximately 4.72 grams and about three or four rocks

and some crumbs, is that a dealer amount or user amount?A. [THOMPSON]: I would say that's

dealer amount.

***

Q. So if he's got 4.72 grams-A. I would think they were a dealer.Q. Okay. I'm going to go-oh, you

said that there are some other things that you would look for to see if somebody was dealing as

opposed to using the drugs. What are some of those things that you would look for?A. In my

experience, and we've come across people that are just possessing crack to use it. They usually

have what is called a crack pipe or some type of heating element to heat the crack up with. Most

of the people that we've come across out in the field that smoke crack have a crack pipe

somewhere or have some brillo which you use inside of your crack pipe as a filter to keep from

inhaling the whole piece of crack up when you're smoking it. Typically dealers don't have crack

pipes because it's not really common for them to use their product that they are selling. You can't

make any money if you're hooked on your own product. So typically a user is going to have some

type of instrument to smoke the crack with, and, like I said before, they normally don't have more

than one or two because they are smoking. You don't save crack. It's not like a rainy day type of

deal. You want to smoke it as soon as possible.[9]

On cross-examination, Thompson described other factors, none of which are present in the

record in this case, indicating that a person could be a dealer: (1) possession of five, ten, or twenty

dollar bills; (2) names in the person's cell phone; (3) possession of some document identifying who

owes what; (4) possession of a weapon; or (5) others observed the person trying to sell drugs.

Thompson also acknowledged that a person could possess 4.72 grams of crack cocaine for

personal use.

Appellant testified that he possessed only the baggie containing the small amount of

marijuana. He denied possessing the baggies containing the crack cocaine and the ecstasy pills.

Appellant also admitted that he has two prior convictions for possession of cocaine and another

prior conviction for possession with intent to deliver cocaine. The jury was instructed in the charge

that it could have considered these extraneous offenses " in determining the intent, motive,

opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident by the

Defendant, if any, in connection with the offenses, if any, alleged against him in the indictment in

this case, and for no other purpose."

During closing jury arguments, the State relied primarily on Thompson's testimony to argue

that appellant possessed the crack cocaine with the intent to deliver it:

[STATE]: There is no evidence at all, none, that he was a user. What does that tell you? What

does that tell the reasonable person? I'm going to go to

Page 897

Investigator Thompson right now because he kind of ties in with that. The dealer level back on the

crack, and I'm bouncing back and forth because it's basically the same charge. Just with crack we

have added the element of intent to deliver. But Investigator Thompson testified that a typical user,

one, two rocks, max, because what do they do when they get it? They want to smoke it because

they are craving this drug, because they have to use it. They don't hold it for a rainy day. They

don't keep it for later. They use it then. And when they use it, they have paraphernalia on them.

They don't carry a couple of rocks and then go home and find their stuff. They have it all on their

person. No drug paraphernalia, no brillo pad, no push pipe, no push rod, no crack pipe, nothing.

Again, because he's not a user. There is no evidence of that. In fact, the amount that he had is

dealer amount. This is 23 to 25 crack rocks. It's way more than one or two for a user. 4.72 grams

doesn't really seem like a lot in here. It's a lot on the street. He had $500, $600 worth of drugs on

him that night.

***

About him being a user and not a dealer, he got on the stand. Did he tell you, " I'm a user, not a

dealer" ? He didn't say that. That would have been the perfect chance for him to say that. Does he

look like a user? You know we had somebody in voir dire say, " I've seen crack users, and I can

tell when I see them." Did he have a pipe on him? No. What else did he not have? You know, no

pipe. He had some money on him, not a lot because he hadn't started selling yet. He still had his

whole 25-rock stash. He hadn't started selling yet. He had the cell phone. Yeah, it would have

been nice to get the names out of the cell phone and see if they match up with other drug dealers,

you know, that we know. The police, they were being nice. They gave the phone to his sister and

let her take it home. So are we going to blame the cops for being a little too nice that night, even

after he had cussed at them and resisted, swung at them, kicked them? That's not reasonable

either.

During its closing jury arguments, the defense relied on other factors to argue that the

evidence did not show appellant's intent to deliver.

[DEFENSE]: I know Mr. Brooks has a past. He came up here and he testified that he has a

juvenile conviction, that he has two possession convictions, he has a delivery conviction. And

when you look at all that, it would be easy for you to go back there and say, " You know what?

Because of all this, you know, he's not telling the truth and we shouldn't believe him." But I don't

think that's what you're going to do. Yeah, he has had run-ins with the law, and as he stated, he

panicked. He panicked because he had the marijuana on him. But as he testified to you, he didn't

know anything about that cocaine, didn't know anything about that [ecstasy]. There was no

evidence presented to you other than Officer Thompson who came up here yesterday and said, "

Oh, it's four grams to 200 grams, but that 4.72, oh, yeah, easy, that's a delivery. Oh, yeah. It's

worth $500, $600." But listen to his testimony carefully. He also said that he looks for other things,

too, and they should have looked for other things too. They should have looked to determine

whether or not Mr. Brooks was carrying a large amount of money, whether or not he had a gun,

and we know that there was no gun found in that place now, whether or not he had

Page 898

any documents with him that would indicate, " These people owe me money" or " This is who I

sold to." They should have gotten a cell phone to see if there were any callers in there that were

potential buyers or users or anything of that nature. They should have asked people in the bar

whether or not Mr. Brooks when he went in there, did anybody ever come up to him and say, " Do

you have anything I can get from you tonight" or " Can you sell me something?" There was no

testimony whatsoever on that. All you have is, ladies and gentlemen, as far as the delivery is what

Allen Thompson said, but most importantly, as I indicated to you, you have to show that he was in

possession of those items, and it's just not there.

The court of appeals decided that " [s]tanding alone, 4.72 grams is insufficient evidence of

intent [to deliver because this amount is also consistent with personal use], additional evidence is

required." See Brooks v. State, No. 10-07-00309-CR, slip op. at 8, 2008 WL 4427266 (Tex.App.-

Waco, delivered October 1, 2008) (memorandum opinion not designated for publication). The

court of appeals decided that the additional evidence is legally sufficient " to establish possession

with intent to deliver," but that " viewing the evidence in a neutral light, it is not factually sufficient."

See Brooks, slip op. at 9-10 (" Viewing the evidence in the light most favorable to the verdict, the

evidence is legally sufficient to establish possession with intent to deliver. However, viewing the

evidence in a neutral light, it is not factually sufficient. The record does not reflect that Brooks was

arrested in a high crime or high drug area, the drugs were packaged in such a way to suggest that

Brooks is a dealer, Brooks was in possession of any drug paraphernalia for the purpose of

dealing, or Brooks possessed a large amount of cash.... Accordingly, we find the proof of guilt to

be so weak as to render the jury's verdict clearly wrong and manifestly unjust." ).

We granted review on both the appellant's and the State's petitions for discretionary review.

Appellant's petition for discretionary review presents the following ground for review:

(1) The Court of Appeals erred in holding the evidence was legally sufficient to establish appellant

had the intent to distribute cocaine, where the court found the same evidence was factually

insufficient to establish the necessary intent.[10]

The State's petition for discretionary review presents the following grounds for review:

(1) Is there any meaningful distinction between legal sufficiency review under Jackson v. Virginia

and factually [sic] sufficiency review when that review is limited to the weakness of the evidence in

the abstract and, if so, does it escape review in this Court?(2) Did the Tenth Court of Appeals

ignore its duty to adequately explain why the evidence, though legally sufficient, is so weak as to

render the jury's verdict clearly wrong and manifestly unjust?

I. Is There Any Meaningful Distinction Between Jackson v. Virginia Legal-Sufficiency

Review and Clewis Factual-Sufficiency Review

We begin the discussion by noting that in Watson this Court recognized that a factual-

sufficiency standard is " barely distinguishable" from a legal-sufficiency standard and that " the

only apparent difference"

Page 899

between these two standards is that the appellate court views the evidence in a " neutral light"

under a factual-sufficiency standard and " in the light most favorable to the verdict" under a legal-

sufficiency standard. See Watson, 204 S.W.3d at 415 (emphasis supplied). It is fair to characterize

the Jackson v. Virginia legal-sufficiency standard as:

Considering all of the evidence in the light most favorable to the verdict, was a jury rationally

justified in finding guilt beyond a reasonable doubt. [11]

Compare this to the Clewis factual-sufficiency standard which may fairly be characterized as:

Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt

beyond a reasonable doubt.[12]

Viewing the evidence " in the light most favorable to the verdict" under a legal-sufficiency

standard means that the reviewing court is required to defer to the jury's credibility and weight

determinations because the jury is the sole judge of the witnesses' credibility and the weight to be

given their testimony.[13] Viewing the evidence in a " neutral light" under a factual-sufficiency

standard is supposed to mean that the reviewing court is not required to defer to the jury's

credibility and weight determinations and that the reviewing court may sit as a " thirteenth juror"

and " disagree[ ] with a jury's resolution of conflicting evidence" and with a jury's " weighing of the

evidence." See Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (internal

quotes omitted) (describing appellate reversals of convictions based on evidentiary weight);

Watson, 204 S.W.3d at 447 (Cochran, J., dissenting) (factual-sufficiency standard " explicitly

makes the reviewing court a ‘ thirteenth juror’ who makes an independent, de novo determination

of credibility and the weight to be given the testimony and the inferences to be drawn from the

base facts" ).[14] Therefore, the difference between a factual-sufficiency standard and a legal-

sufficiency standard is that the reviewing court is required to defer to the jury's credibility and

weight determinations (i.e., it must view the evidence in the light most favorable to the verdict)

under a legal-sufficiency standard while it is not

Page 900

required to defer to a jury's credibility and weight determinations (i.e., it must view the evidence in

a " neutral light" ) under a factual-sufficiency standard. See id.; Johnson v. State, 23 S.W.3d 1, 13

(Tex.Cr.App.2000) (McCormick, P.J., dissenting) (" To defer or not to defer, that is the question." ).

It is significant that Clewis purported to treat the evidentiary-weight standard described in

Tibbs as a component of the Clewis factual-sufficiency standard that views the evidence in a "

neutral light." See Clewis, 922 S.W.2d at 149 (Clinton, J., concurring) (" The reviewing court no

longer ‘ views the evidence in the light most favorable to the prosecution; ’ rather it must consider

and weigh the evidence to determine whether the jury's resolution of conflicting testimony was

manifestly unjust" (citing Tibbs, 457 U.S. at 42, 102 S.Ct. 2211)).[15] This Court's decision in

Johnson also recognized that " there appears to be no substantive differences" between the

Clewis factual-sufficiency standard and the evidentiary-weight standard described in Tibbs. See

Johnson, 23 S.W.3d at 8 n. 8 (" Elsewhere, the equivalent of determining legal sufficiency is often

referred to as examining the ‘ sufficiency of the evidence,’ and the companion term to factual

sufficiency is referenced as reviewing the ‘ weight of the evidence.’ However, there appears to be

no substantive differences between these terms, and this Court has treated them

interchangeably." ). It is also noteworthy that the evidentiary-weight standard described in Tibbs

does not mention anything about the reviewing court being required to afford " appropriate

deference" to the jury's credibility and weight determinations. But see Clewis, 922 S.W.2d at 133

(reviewing court must apply a factual-sufficiency standard in an " appropriately deferential"

manner).

Therefore, if a reviewing court is required to defer in any manner to a jury's credibility and

weight determinations, then it is not viewing the evidence in a " neutral light" and not applying the

type of factual-sufficiency standard described in Tibbs and purportedly adopted in Clewis. And it is

very clear that this Court's factual-sufficiency decisions have always required a reviewing court in

a factual-sufficiency review to afford a great amount of deference (though this Court has never

said precisely how much deference) to a jury's credibility and weight determinations. See Clewis,

922 S.W.2d at 133 (reviewing court may disagree with a jury's weighing of the evidence but in an "

appropriately deferential" manner " so as to avoid an appellate court's substituting its judgment for

that of the jury" ); see also Johnson, 23 S.W.3d at 7 (factual-sufficiency review " must employ

appropriate deference to prevent an appellate court from substituting its judgment for that of the

fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the

sole judge of the weight and credibility given to witness testimony" ).[16]

Page 901

And in Watson this Court reiterated that it had never tolerated, " even in the ‘ factual

sufficiency’ context," an " appellate court simply opting to ‘ disagree’ with the jury's verdict." See

Watson, 204 S.W.3d at 416. This Court further stated in Watson:

It is in the very nature of a factual-sufficiency review that it authorizes an appellate court, albeit to

a very limited degree, to act in the capacity of a so-called " thirteenth juror."

***

An appellate court judge cannot conclude that a conviction is " clearly wrong" or " manifestly

unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had

he been on the jury. Nor can an appellate judge declare that a conflict in the evidence justifies a

new trial simply because he disagrees with the jury's resolution of that conflict.

See Watson, 204 S.W.3d at 416-17 (emphasis supplied).

This, however, is inconsistent with the evidentiary-weight standard described in Tibbs (and

purportedly adopted in Clewis ) and with viewing the evidence in a " neutral light," which permit the

reviewing court to show no deference at all to a jury's credibility and weight determinations and to

sit as a " thirteenth juror" without any limitation and to declare that a conflict in the evidence

justifies a new trial simply because the reviewing court disagrees with the jury's resolution of

conflicting evidence. See Tibbs, 457 U.S. at 42, 102 S.Ct. 2211. This is what is supposed to

distinguish the factual-sufficiency standard from the legal-sufficiency standard. See id. Thus the

Clewis factual-sufficiency standard's requirement that the reviewing court view the evidence with "

appropriate deference" to a jury's credibility and weight determinations is not only contradictory

and inconsistent with the evidentiary-weight standard described in Tibbs, it also makes the Clewis

factual-sufficiency standard even more " barely distinguishable" from a Jackson v. Virginia legal-

sufficiency standard. [17]

The final nail in the coffin that made a legal-sufficiency standard " indistinguishable" from a

factual-sufficiency standard came in this Court's decision in Lancon v. State. [18] There this Court

decided that the reviewing court cannot decide that the evidence is factually insufficient " solely

because [it] would have resolved the conflicting evidence in a different way" since " the jury is the

sole judge of a witness's credibility,

Page 902

and the weight to be given the testimony." See Lancon, 253 S.W.3d at 707. Our current

formulation of a factual-sufficiency standard in Lancon, recognizing that the jury is " the sole judge

of a witness's credibility, and the weight to be given their testimony," entirely eliminates the

viewing the evidence in a " neutral light" component of a factual-sufficiency standard and makes

the current factual-sufficiency standard indistinguishable from the Jackson v. Virginia legal-

sufficiency standard. See also Johnson, 23 S.W.3d at 8 (also recognizing that if " a reviewing court

was to accord absolute deference to the fact finder's determinations, then a factual sufficiency

determination would, no doubt, become the functional equivalent of a legal sufficiency review" ).

[19]

This may be illustrated by considering the following formulation of the factual-sufficiency

standard that Watson approved: " Considering all of the evidence in a neutral light, was a jury

rationally justified in finding guilt beyond a reasonable doubt." See Watson, 204 S.W.3d at 415.

Substituting " in the light most favorable to the jury's verdict" for the " a neutral light" component of

this formulation of the standard, as our cases such as Lancon have done by recognizing that " the

jury is the sole judge of a witness's credibility, and the weight to be given the testimony," [20] the

factual-sufficiency standard from Watson may be reformulated as follows: " Considering all of the

evidence in the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt." This is the Jackson v. Virginia legal-sufficiency standard. There is,

therefore, no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and

the Clewis factual-sufficiency standard, and these two standards have become indistinguishable.

II. Double-Jeopardy Considerations

The Clewis factual-sufficiency standard being " barely distinguishable" (and now

indistinguishable) from a legal-sufficiency standard also raises some troubling double-jeopardy

questions under the United States Supreme Court's decision in Tibbs. First, we find it necessary to

discuss the proceedings involving Mr. Tibbs in the Florida courts.

In 1976, the Florida Supreme Court reversed Tibbs' convictions for rape of one person and

first-degree murder of another person because of the " weakness and inadequacy" of the rape

victim's testimony, which was the only testimony that directly connected Tibbs to these crimes.

See

Page 903

Tibbs v. Florida, 397 So.2d 1120, 1126 (Fla.1981) (several aspects of the rape victim's testimony "

cast serious doubt on her believability" ); Tibbs v. Florida, 337 So.2d 788, 791 (Fla.1976) and at

792 (Boyd, J., specially concurring). The Florida Supreme Court remanded the case to the trial

court for a new trial, which at the time was the remedy provided by Florida law upon a finding that

the evidence did not support a defendant's conviction. See id.

Before Tibbs could be retried, the United States Supreme Court decided that double-

jeopardy principles prohibit the states from retrying a defendant whose conviction has been

reversed on appeal on evidentiary-sufficiency (i.e., legal-sufficiency) grounds essentially because

this has the same effect as an acquittal by a jury.[21] After the United States Supreme Court

handed down these decisions, the Florida trial court granted Tibbs' motion to dismiss his

indictment on the grounds that double-jeopardy principles prohibited his retrial. See Tibbs, 397

So.2d at 1121. A Florida Court of Appeals reversed this order and reinstated Tibbs' indictment

upon deciding that the Florida Supreme Court's 1976 decision reversing Tibbs' convictions " was

based on the weight, rather than the legal sufficiency, of the evidence." See id.; State v. Tibbs,

370 So.2d 386, 388-89 (Fla.Dist.Ct.App.1979).

In 1981, the Florida Supreme Court reviewed this decision noting at the outset " that the

distinction between an appellate reversal based on evidentiary weight and one based on

evidentiary sufficiency was never of any consequence until [the United State's Supreme Court's

decision in] Burks, " apparently because the remedy provided in both situations was a remand for

a new trial. See Tibbs, 397 So.2d at 1122. The Florida Supreme Court examined several of its

prior decisions that the Florida Court of Appeals had relied upon for deciding that there was a

distinction in Florida law between convictions reversed for evidentiary weight (proper remedy is

remand for new trial) and convictions reversed for evidentiary sufficiency (proper remedy is an

appellate acquittal). See Tibbs, 397 So.2d at 1122-23 (Florida Court of Appeals " distinguished

Burks by placing Tibbs' reversal in [evidentiary weight] category; appellate reversals where the

evidence is technically sufficient but its weight so tenuous or insubstantial that a new trial is

ordered" ). The Florida Supreme Court, however, viewed " these ambiguous decisions as

reversals which were based on [evidentiary] sufficiency; that is, as cases in which the state failed

to prove the defendant's guilt beyond a reasonable doubt." See Tibbs, 397 So.2d at 1124-25.

The Florida Supreme Court, therefore, concluded that the Florida Court of Appeals'

distinction between reversals based on evidentiary weight and reversals based on evidentiary

sufficiency had a " questionable historical foundation." See Tibbs, 397 So.2d at 1125. Despite this

questionable historical foundation, the Florida Supreme Court decided that its 1976 decision

reversing Tibbs' convictions was " one of those rare instances in which reversal was based on

evidentiary weight" and the Florida Supreme Court's " improper weighing of the evidence" and that

double-jeopardy principles did not prohibit Tibb's retrial. See Tibbs, 397 So.2d at 1126-27. The

Florida Supreme Court also decided that appellate reversals based on evidentiary weight, " if ever

valid in Florida, should ... be eliminated from Florida law." See Tibbs, 397 So.2d at 1125.

Page 904

On review of the Florida Supreme Court's 1981 decision that double-jeopardy principles did

not bar Tibbs' retrial, the United States Supreme Court decided that double-jeopardy principles do

not bar a retrial when an appellate court " sits as a ‘ thirteenth juror’ " and " disagrees with the

jury's resolution of the conflicting testimony." See Tibbs, 457 U.S. at 32, 42-43, 102 S.Ct. 2211. In

reaching this decision, the United States Supreme Court noted that a reversal based on "

insufficiency of the evidence" has the same effect as a jury acquittal " because it means that no

rational factfinder could have voted to convict the defendant" and that " the prosecution has failed

to produce sufficient evidence to prove its case." See Tibbs, 457 U.S. at 41, 102 S.Ct. 2211. The

United States Supreme Court further stated that an appellate reversal based on evidentiary weight

" no more signifies acquittal than does a disagreement among the jurors themselves" and that an "

appellate court's disagreement with the jurors' weighing of the evidence does not require the

special deference accorded verdicts of acquittal." The Supreme Court wrote:

As we suggested just last Term, these policies do not have the same force when a judge

disagrees with a jury's resolution of conflicting evidence and concludes that a guilty verdict is

against the great weight of the evidence.... A reversal on this ground, unlike a reversal based on

insufficient evidence, does not mean that an acquittal was the only proper verdict. Instead, the

appellate court sits as a " thirteenth juror" and disagrees with the jury's resolution of the conflicting

testimony. This difference of opinion no more signifies acquittal than does a disagreement among

the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an

acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court's

disagreement with the jurors' weighing of the evidence does not require the special deference

accorded verdicts of acquittal.

See Tibbs, 457 U.S. at 42, 102 S.Ct. 2211 (citation to authority and footnote omitted).

The United States Supreme Court also examined the Florida Supreme Court's 1976 decision

reversing Tibbs' convictions and concluded that a " close reading" of that decision suggested " that

the Florida Supreme Court overturned Tibbs' convictions because the evidence, although

sufficient to support the jury's verdict, did not fully persuade the court of Tibbs' guilt." See Tibbs,

457 U.S. at 46, 102 S.Ct. 2211. The United States Supreme Court further noted that any ambiguity

in this 1976 Florida Supreme Court decision was resolved in its 1981 decision when the Florida

Supreme Court " unequivocally held" that its 1976 decision reversing Tibbs' convictions was " one

of those rare instances in which reversal was based on evidentiary weight." See Tibbs, 457 U.S. at

47, 102 S.Ct. 2211. The United States Supreme Court concluded that under " these

circumstances, the Double Jeopardy Clause [did] not bar retrial." See id.

We believe that the Clewis factual-sufficiency standard with its remedy of a new trial could

very well violate double-jeopardy principles under Tibbs if factual-sufficiency review is " barely

distinguishable" from legal-sufficiency review.[22] With our

Page 905

prior decisions requiring a great amount of appellate deference to a jury's credibility and weight

determinations and not permitting appellate courts to sit as " thirteenth jurors" except perhaps to "

a very limited degree," [23] it is questionable whether appellate reversals in Texas under such a

factual-sufficiency standard are really reversals based on evidentiary weight (they may actually be

reversals based on evidentiary sufficiency). Having decided in Part I of this opinion that the current

Clewis factual-sufficiency standard is indistinguishable from a Jackson v. Virginia legal-sufficiency

standard, the remedy of a new trial under this factual-sufficiency standard would violate double-

jeopardy principles.

We also note that, were we to decide that reviewing courts must continue to apply a factual-

sufficiency standard with its remedy of a new trial in criminal cases, then we must also be

prepared to decide that they should apply this standard as " thirteenth jurors" with no deference at

all to a jury's credibility and weight determinations in order to avoid these potential federal

constitutional double-jeopardy issues. See also Tibbs, 457 U.S. at 42, 102 S.Ct. 2211. We must

also keep in mind that such a nondeferential standard could violate the right to trial by jury under

the Texas Constitution. See Roberts, 221 S.W.3d at 661-62 n. 7; Clewis, 922 S.W.2d at 133.

Simply retaining and attempting to once again " clarify" the Clewis factual-sufficiency standard that

is currently indistinguishable from a Jackson v. Virginia legal-sufficiency standard would not seem

to be an option. Retaining any kind of factual-sufficiency standard in criminal cases would,

therefore, still make it necessary for this Court to overrule Clewis and abandon its requirement,

carried on by our subsequent decisions meant to " clarify" Clewis, that reviewing courts must be "

appropriately deferential" to a jury's credibility and weight determinations. See Clewis, 922 S.W.2d

at 133. Thus, the only way to retain a factual-sufficiency standard, which would be meaningfully

distinct from a Jackson v. Virginia legal-sufficiency standard, would be to allow reviewing courts to

sit as " thirteenth jurors." However, our factual-sufficiency decisions have consistently declined to

do this. See, e.g., Watson, 204 S.W.3d at 416 (this Court has never tolerated " even in the ‘ factual

sufficiency’ context," an " appellate court simply opting to ‘ disagree’ with the jury's verdict" ).

We believe that these and the reasons given by the Florida Supreme Court for abandoning

its factual-sufficiency standard are good reasons for discarding the confusing and contradictory

Clewis factual-sufficiency standard. We agree with the Florida Supreme Court that:

Considerations of policy support, if not dictate, this result. Elimination of [reversals based on

evidentiary weight] accords Florida appellate courts their proper role in examining the sufficiency

of the evidence, while leaving questions of weight for resolution only before the trier of fact.

Eliminating reversals for evidentiary weight will avoid disparate appellate results, or alternatively

our having to review appellate reversals based on evidentiary shortcomings to

Page 906

determine whether they were based on sufficiency or on weight. Finally, it will eliminate any

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.

See Tibbs, 397 So.2d at 1125-26.[24]

III. Is Clewis Necessary to Address Some Widespread Criminal Justice Problem That

Jackson v. Virginia Is Inadequate To Address

We agree with the discussion in Judge Cochran's dissenting opinion in Watson that there

are no jurisprudential systemic problems for which the Jackson v. Virginia legal-sufficiency

standard is inadequate or that can be resolved more satisfactorily in other ways besides retaining

Clewis ' " internally inconsistent" factual-sufficiency standard. See Watson, 204 S.W.3d at 448-50

(Cochran, J., dissenting) and at 450( Clewis " 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" ).[25] It bears emphasizing that a rigorous and proper

application of the Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any

factual-sufficiency standard (especially one that is " barely distinguishable" or indistinguishable

from a Jackson v. Virginia legal-sufficiency standard).[26] A hypothetical

Page 907

that illustrates a proper application of the Jackson v. Virginia legal-sufficiency standard is robbery-

at-a-convenience-store case:

The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape

of the event clearly shows that B committed the robbery. But, the jury convicts A. It was within the

jury's prerogative to believe the convenience store clerk and disregard the video. But based on all

the evidence the jury's finding of guilt is not a rational finding.See Johnson, 23 S.W.3d at 15

(McCormick, P.J., dissenting).

IV. Texas Constitution, Texas Statutes And Case Law Revisited

Case law makes it fairly clear that, from the time that Texas was a republic in the 1830s and

1840s until the United States Supreme Court decided Jackson v. Virginia in 1979, this Court and

its predecessors, under what are essentially the same constitutional and statutory provisions that

currently exist and existed when Clewis was decided in 1996, applied a single and deferential

evidentiary-sufficiency standard in criminal cases that essentially was the same standard as the

Jackson v. Virginia standard.[27] And, until this Court decided Clewis in 1996, this Court applied

only the Jackson v. Virginia evidentiary-sufficiency standard after the United States Supreme

Court decided Jackson v. Virginia in 1979.[28] In 1996, however, Clewis decided that a civil

factual-sufficiency standard is also constitutionally and statutorily mandated in criminal cases

under state law. [29]

There is very little to add to what this Court has already extensively written on a direct-

appeal court's constitutional and statutory authority to apply this factual-

Page 908

sufficiency standard in criminal cases.[30] Our factual-sufficiency cases decided that Texas direct-

appeal courts, which would include this Court in its role as a direct-appeal court in death-penalty

cases, are required to apply a civil factual-sufficiency standard under their constitutional grant of

general appellate jurisdiction to review " questions of fact," [31] as also codified in Article 44.25,

TEX.CODE CRIM. PROC., which currently states that direct-appeal courts and this Court " may

reverse the judgment in a criminal action, as well upon the law as upon the facts." [32] Our factual-

sufficiency cases further noted that Articles 36.13 and 38.04, TEX.CODE CRIM. PROC., and their

statutory predecessors, which " reserve the fact-finding function to the jury," [33] have " peacefully

coexisted with that appellate authority for at least a hundred and twenty-three years" and were

meant " merely to allocate the fact-finding function at the trial level and do not purport to affect

appellate review." See Watson, 204 S.W.3d at 409.[34] Also, according to our factual-sufficiency

decisions, the " factual conclusivity clause" in Article V, Section 6(a), makes " the resolution of

factual issues" by direct-appeal courts conclusive on this Court in nondeath-penalty cases and

also " seems to presuppose that [a direct-appeal] court already possesses the power to conduct

factual [sufficiency] review." See

Page 909

Watson, 204 S.W.3d at 412, 413-14, Bigby, 892 S.W.2d at 872-73.[35]

The dissenters in this Court's factual-sufficiency cases took the position that, even though

direct-appeal courts may have the authority to apply this factual-sufficiency standard under their

grant of general appellate jurisdiction, when the courts of appeals acquired criminal jurisdiction in

1981, the Legislature, pursuant to its constitutional authority in Article V, Sections 5(a) and 6(a), to

regulate appellate jurisdiction, made significant changes to Article 44.25 that were carefully

designed to ensure that direct-appeal courts defer to a jury's credibility and weight determinations.

[36] The dissenters considered it significant that in 1981, when Article 44.25 was changed to its

current version-permitting a case to be reversed only " upon the law as upon the facts" -its

statutory predecessor provided that a case could be reversed " upon the law as upon the facts"

and also " because the verdict is contrary to the evidence." [37] Before this, the statutory

predecessor to Article 44.25 provided that a case could be reversed " upon the law as upon the

facts" and also because " the verdict is contrary to the weight of the evidence." [38] The dissenters

believed that the 1981 legislative changes to Article 44.25 indicated a legislative intent that direct-

appeal courts should defer to a jury's credibility and weight determinations by expressly

withdrawing the authority (that arguably had existed before 1981) of direct-appeal courts to

reverse a judgment because the verdict is contrary to the weight of the evidence. [39]

Our decision in Clewis to adopt a civil factual-sufficiency standard was meant to "

harmonize[ ] the criminal and civil jurisprudence of this State with regard to appellate review of

questions of factual sufficiency."

Page 910

See Clewis, 922 S.W.2d at 129. However, when Clewis was decided in 1996, the Texas Supreme

Court had decided that direct-appeal courts were required to exercise a factual-sufficiency

standard with " deferential standards of review." See Roberts, 221 S.W.3d at 664 n. 7; Cropper v.

Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).[40] With its requirement that all of the

evidence must be viewed under deferential standards to determine whether a jury's verdict is "

manifestly unjust and clearly wrong," this civil factual-sufficiency standard that Clewis adopted for

criminal cases was essentially the Jackson v. Virginia standard.

Thus, when this Court decided Clewis in 1996, direct-appeal courts were already

harmoniously applying essentially the same standard of factual sufficiency in civil and criminal

cases.[41] Clewis ' main accomplishment, therefore, was to adopt for criminal cases another

evidentiary-sufficiency standard that was essentially the Jackson v. Virginia standard and that

direct-appeal courts had been applying for about 150 years. This, in large part, explains why it was

inevitable that these two standards would eventually be recognized as indistinguishable. See Part

I of this Opinion. The Jackson v. Virginia standard is consistent with well-settled evidentiary-

sufficiency practice in this State and with a direct-appeal court's constitutional and statutory

mandates to review " questions of law" and " questions of fact." [42]

Page 911

The issue thus becomes whether direct-appeal courts' constitutional jurisdiction to review "

questions of fact," as also codified in Article 44.25 authorizing direct-appeal courts to reverse a

judgment " upon the facts," should now be construed for the first time to mandate direct-appeal

courts to sit as " thirteenth jurors" in criminal cases contrary to 150 years of practice in civil and

criminal cases. We decline to question over 150 years of criminal and civil jurisprudence in this

State and construe constitutional and statutory mandates to review " questions of fact" to also

require direct-appeal courts to sit as " thirteenth jurors" in criminal cases. See also Clewis, 876

S.W.2d at 431 (" Appellate fact jurisdiction ... should not be confused with the appellate standard

of review required to exercise that fact jurisdiction. The state constitution, at most, says that an

intermediate appellate court has conclusive fact jurisdiction in both civil and criminal cases. It does

not purport to set out the standard of review required to exercise that fact jurisdiction." ) (emphasis

in original).[43]

We also note that Watson and Clewis relied on several cases, most notably the 1883 case

of Walker v. State, [44] apparently for the proposition that the statutory predecessors to Article

44.25 required factual-sufficiency review that permits direct-appeal courts to sit as " thirteenth

jurors." Walker is cited in both Clewis and Watson as a watershed case purportedly recognizing

that the statutory predecessors to Article 44.25 required such a review.[45] It is not clear that

cases such as Walker were applying factual-sufficiency review that permits a direct-appeal court to

sit as a " thirteenth juror" in criminal cases since Walker " was fully consistent with the Jackson

standard alone." See Watson, 204 S.W.3d at 428 (Cochran, J., dissenting) ( Walker " was fully

consistent with the Jackson standard alone" even though it " 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 ‘ sufficient.’ " ). [46] We do not believe that cases such as Walker clearly

support the proposition that Article 44.25 and its statutory predecessors mandate direct-appeal

courts to sit as " thirteenth jurors" in criminal cases. See also Watson, 204 S.W.3d at 424-32

(Cochran, J., dissenting).[47] In addition, reading

Page 912

Walker to mandate direct-appeal courts to sit as " thirteenth jurors" would be inconsistent with the

overwhelming weight of civil and criminal authority that direct-appeal courts should review a jury's

verdict under deferential standards.

As the Court with final appellate jurisdiction in this State,[48] we decide that the Jackson v.

Virginia standard is the only standard that a reviewing court should apply in determining whether

the evidence is sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt. All other cases to the contrary, including Clewis, are overruled.

V. Disposition of This Case

We must now decide how to dispose of this case. In light of our disposition of the State's

first ground for review, it is unnecessary to address the State's second ground for review. And

having decided that there is no meaningful distinction between a Clewis factual-sufficiency

standard and a Jackson v. Virginia legal-sufficiency standard, we could decide that the court of

appeals necessarily found that the evidence is legally insufficient to support appellant's conviction

when it decided that the evidence is factually insufficient to support appellant's conviction.

However, primarily because the " confusing" factual-sufficiency standard may have skewed a

rigorous application of the Jackson v. Virginia standard by the court of appeals, we believe that it

is appropriate to dispose of this case by sending it back to the court of appeals to reconsider the

sufficiency of the evidence to support appellant's conviction under a proper application of the

Jackson v. Virginia standard. Cf. Tibbs, 397 So.2d at 1125-26 (abandoning reversals based on

weight of the evidence and stating that " [c]ases now pending on appeal in which a court has

characterized the reversal as based on evidentiary weight should be reconsidered" ).

The judgment of the court of appeals is vacated, and the case is remanded there for further

proceedings not inconsistent with this opinion.

COCHRAN J., filed a concurring opinion in which WOMACK, J., joined.

PRICE, J., filed a dissenting opinion in which MEYERS, JOHNSON, and Holcomb, JJ., joined.

WOMACK, J., concurred.

COCHRAN, J., concurring in which WOMACK, J., joined.

I adhere to my view that the 1996 judicial creation of the " Clewis [1] 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." [2]

Page 913

I.

A. The Evidence in This Case Either Is or Is Not Legally Sufficient to Support a Conviction.

The evidence in this case is either sufficient to support appellant's conviction under the

constitutionally-mandated Jackson [3] standard or it is not. It cannot be " semi-sufficient."

Appellant was charged with possession of cocaine with the intent to distribute it. At trial, he

denied that the baggie containing 4.72 grams of cocaine and five ecstacy pills found in the pool

table pocket return was his, although he admitted ownership of the baggie of marijuana that he

tossed under that pool table. On appeal, he argued that the evidence was both legally and

factually insufficient to prove that he possessed the cocaine with the intent to distribute it. The

court of appeals found that the evidence was legally sufficient to support a finding, beyond a

reasonable doubt, that appellant possessed the cocaine with the intent to distribute it. In doing so,

it relied on a list of seven facts, beyond the mere amount of cocaine, that supported the jury's

guilty verdict.[4] But then, in finding the evidence factually insufficient to support a finding of intent

to distribute, the majority set out a totally different list of facts that the record did not show: There

was no evidence that (1) appellant was in a high crime area; (2) the cocaine was packaged

especially for sale; (3) he was carrying a large amount of cash; or (4) he had drug-dealing

paraphernalia on him.[5] The court used positive inferences for legal sufficiency (what the

evidence did show) and then negative inferences for factual sufficiency (what the evidence did not

show).

I agree that this is a close call on legal sufficiency, but I do not see how " missing" facts can

transform the purportedly legally sufficient evidence into factually insufficient evidence. There is no

higher standard than " proof beyond a reasonable doubt." If the evidence meets that standard,

how can it fall short using a lower standard? Indeed, the Waco Court of Appeals may have had

second thoughts itself about this question because it held, in a subsequent (but almost identical)

case,

Page 914

that the evidence was factually and legally sufficient.[6] If nothing else, these two cases

demonstrate that the Clewis factual sufficiency review has led to random, inconsistent results,

based primarily on " the lu

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