in the Matter of B. D. S.

ACCEPTED

01-14-00762-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/20/2015 8:35:26 PM

CHRISTOPHER PRINE

CLERK

N0. 01-14-00762-CV st

FILED IN

1 COURT OF APPEALS

HOUSTON, TX

April 20, 2015

IN THE COURT OF APPEALS CHRISTOPHER A. PRINE,

CLERK

FOR THE FIRST DISTRICT

OF TEXAS AT HOUSTON, TEXAS

IN THE MATTER OF B.D.S., RESPONDENT

B.D.S., APPELLANT

v.

STATE OF TEXAS, APPELLEE

ON APPEAL FROM

THE 313TH DISTRICT COURT OF

HARRIS COUNTY, TEXAS

TRIAL COURT CAUSE NO. 2013-06337J

ORIGINAL APPELLANT’S BRIEF

DONALD M. CRANE

DONALD M. CRANE (SBN 05005900)

Attorney at Law

810 South Mason Road, #350

Katy, Texas 77450

Telephone: (281) 392-6611

Facsimile: (281) 392-5383

donmcrane@gmail.com

ATTORNEY FOR APPELLANT B.D.S.

NO ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellant: Trial Counsel:

B.D.S Joseph Wade Prasifka

P.O. Box 658

Houston, Texas 77001-0658

Fax: (281) 392-5383

Appellate Counsel:

Donald M. Crane

810 South Mason Road, Suite 350

Katy, Texas 77450

Telephone: (281) 392-6611

Fax: (281) 392-5383

Petitioner/Appellee: Trial Counsel:

State of Texas Courtney Rosen

Assistant District Attorney

1201 Franklin Street, Suite 600

Houston, Texas 77002

Telephone: (713) 755-5874

Appellate Counsel:

Jessica Caird/Dan McCrory

Harris County District Attorney

Attn.: Appellate Division

1201 Franklin Street, 5th Floor

Houston, Texas 77002

Telephone: (713) 755-5800

1

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 1

TABLE OF CONTENTS 2

INDEX OF AUTHORITIES (Cases) 3

INDEX OF AUTHORITIES (Statutes and Rules) 3

NO ORAL ARGUMENT REQUESTED 4

RECORD REFERENCES 4

PARTY/PARTICIPANT REFERENCES 5

STATEMENT OF THE CASE 6

ISSUE PRESENTED 7

APPELLANT’S BRIEF 8

STATEMENT OF FACTS 9

APPLICABLE LEGAL STANDARD 18

APPLICABLE STATUTE 20

ANALYSIS 21

CONCLUSION AND PRAYER 24

CERTIFICATE OF COMPLIANCE 25

CERTIFICATE OF SERVICE 26

2

INDEX OF AUTHORITIES

CASES PAGE

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 18

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) 19

In re M.S., 373 S.W.3d 730

(Tex. App. – Ft. Worth

[2nd Dist.], 2012, pet. filed) 18

In re R.R., 373 S.W.3d 730 (Tex. App. – Houston

[14th Dist.], 2012, pet. filed) 18

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) 18

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) 18

STATUTES AND RULES PAGE

Tex. Penal Code Ann. § 28.08 (West 2011) 20

3

NO ORAL ARGUMENT REQUESTED

Appellant, B.D.S., does not request oral argument.

RECORD REFERENCES

TRANSCRIPT

The pleading record consists of the Transcript (Clerk’s Record) and

the Supplemental Clerk’s Record. The Transcript is referenced to

herein as [CR ] or [SUPPCR ] followed by a page

and line reference.

Both the Transcript and the Statement of Facts (Reporter’s Record)

may contain copies of the Exhibits and, if so, will be referenced

accordingly.

STATEMENT OF FACTS

The Statement of Facts (Reporter’s Record) consists of three (3)

volumes (including Exhibits) prepared by Ms. Rachel L. Gamez,

CSR, Texas CSR 9222, Deputy Court Reporter, 313th District Court,

1200 Congress, 5th Floor, Houston, Texas 77002, (832) 373-6772,

and is referred to herein as [RR Vol. , at p. ,

at l. ].

Ms. Gamez’s Reporter’s Record, Volume 1 of 3, is entitled “Master

Index,” and references the 14th day of August, 2014.

Ms. Gamez’s Reporter’s Record, Volume 2 of 3, is entitled “Trial,”

and references the 14th day of August, 2014.

Ms. Gamez’s Reporter’s Record, Volume 3 of 3, is entitled “Trial,”

and references the 14th day of August, 2014.

4

PARTY/PARTICIPANT REFERENCES

Appellant, B.D.S., may be referred to as: “Appellant,” “juvenile,” or

the “respondent.”

Further, Appellee refers to the State of Texas and may be referred to

as: “Petitioner,” “the State,” or the “Appellee.”

5

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF

APPEALS:

Appellant, B.D.S., respectfully submits her brief in the above styled

and numbered appeal.

STATEMENT OF THE CASE

On November 15, 2013, the State of Texas (“State”) filed a petition

alleging B.D.S. committed the offence of graffiti at an educational

institute. CR 3; RR. Vol. 1, p. 6, l. 5-7. After a bench trial on August 14,

2014, she was found to have engaged in delinquent conduct. RR. Vol. 1,

p. 67, l. 10-14. The court placed B.D.S. on probation for one year and in

the custody of her mother. CR 5-7; RR. Vol 1, p. 67, l. 12-13.

A motion for new trial was filed September 11, 2014.1 The court

denied this motion September 25, 2014.2

A request for findings of fact and conclusions of law also was filed

September 11, 2014.3

B.D.S timely filed her notice of appeal on September 11, 2014. CR

11-12.

6

1 Not included in Clerk’s Record.

2 Order denying motion for new trial also not included in Clerk’s Record.

3 Not included in Clerk’s Record; further, the request was never fulfilled.

ISSUE PRESENTED

Issue Presented: The evidence was insufficient to support

the trial court’s judgment that Appellant engaged in delinquent

conduct constituting a penal offense.

7

N0. 01-14-00762-CV

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT

OF TEXAS AT HOUSTON, TEXAS

IN THE MATTER OF B.D.S., RESPONDENT

B.D.S., APPELLANT

v.

STATE OF TEXAS, APPELLEE

ON APPEAL FROM

THE 313TH DISTRICT COURT OF

HARRIS COUNTY, TEXAS

TRIAL COURT CAUSE NO. 2013-06337J

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

COMES NOW DONALD M. CRANE (“appellate counsel”),

appointed attorney ad litem on appeal for Appellant, B.D.S., juvenile

respondent, and respectfully submits this Appellant’s Brief.

Appellant, B.D.S., may be referred to as: “Appellant,” “juvenile,” or

the “respondent.”

8

STATEMENT OF FACTS

On August 14th, 2014, a bench trial was held to determine whether

B.D.S. engaged in delinquent conduct. The following witnesses spoke

during the trial: J.E., S.Y., A.R., and Officer Jennifer Richards.

J.E.

(Direct Examination of J.E. by Prosecution)

J.E. testified that she is 13 years old and going into 9th grade. RR

Vol. 1, p. 8, l. 14-17. She testified that she attended Kahla Middle School

on November 11th, 2013. RR Vol. 1, p. 8-9, l. 22-23. She testified that

she, B.D.S., and S.Y. went to the restroom to fix their makeup. RR Vol. 1,

p. 10, l. 2-3. When they entered the bathroom, B.D.S. brought up the idea

to write on the wall. RR Vol. 1, p. 10, l. 6-7. She testified that B.D.S.

wrote on the wall first and then S.Y. wrote on the wall. RR Vol. 1, p. 10,

l. 8-9. The court admitted a depiction of the writing on the bathroom wall,

which is classified as Petitioner’s Exhibit No. 2 (“P2”.) RR Vol. 1, p. 10, l.

24-25; Vol. 3, p. 5-6. J.E. testified that B.D.S. wrote the writing on the

right and the writing at the center on P2. RR Vol. 1, p. 11, l. 7. J.E.

testified that S.Y. wrote the writing on left side of P2. RR. Vol. 1, p. 12, l.

9

15-17.

J.E. testified that she did not write anything and was not asked to

write anything. RR Vol. 1, p. 12, l. 23-25 – p. 13, l. 1. She further stated

that B.D.S. and S.Y. used a sharpie. RR Vol. 1, p. 13, l. 2-4. After they

were done they tossed the sharpie. RR Vol. 1, p. 5-6. J.E. testified that

the sharpie was provided by A.R. RR Vol. 1, p. 13, l. 12. Once the girls

were done writing on the wall, a teacher walked in and called the girls out

of the restroom. RR Vol. 1, p. 13, l. 13-15. The girls were sent to the

principal’s office, separated into separate rooms, and made statements.

RR Vol. 1, p. 13, l. 17-25 – p. 14, 1-6.

J.E. received her statement to refresh her memory. RR Vol. 1, p.

14, l. 9-11. She testified, “We went upstairs to the restroom to fix our

makeup and Ashley had a sharpie and Brianna came up with the idea that

we should write on the wall. So, Ashley gave her the Sharpie, she wrote on

the wall, and then Staphany wrote on the wall. And some girls in the

restroom left and I heard a girl say that the teacher was coming. So, we

tried to get out really fast but the teacher told us to stay outside and she

10

was going to call the principal.” RR Vol. 1, p. 14, l. 18-25 – p. 15, l. 1.

J.E. testified that she did not have a falling out with B.D.S. RR Vol.

1, p. 15, l. 2-3. She also testified that she has no reason to dislike B.D.S.

RR Vol. 1, p. 15, l. 4-5.

J.E. testified that an officer and Ms. Dilworth were in the room when

she wrote the statement. RR Vol. 1, p. 15, l. 21-23. They told her to write

down what happened and she did not feel threatened. RR Vol. 1, p. 16, l.

5-6.

(Direct Examination of J.E. by Defendant)

J.E. testified to the court that she put in her written statement S.Y.

wrote on the wall. RR Vol. 1, p. 58, l. 1. But when asked to review her

statement in court, she testified that she did not mention S.Y. writing

anything. RR Vol. 1, p. 58, l. 6-8.4

S.Y.

S.Y. testified that she is 14 years old and going into the 9th grade. RR

11

4The Defendant caught J.E. in a conundrum. The Court asked J.E. if she was lying to

protect her friend. RR Vol. 1, p. 58, l. 20-21. J.E. testified that she did not know and

that she forgot. RR Vol. 1, p. 58, l. 24-25. The Court continues by stating that J.E.

pointed the finger at B.D.S. when, in fact, J.E. knew that S.Y also wrote on the wall

because J.E. witnessed S.Y write on the wall. RR Vol. 1, p. 61, l. 24-25 – p. 62, l. 1-3. The

Vol. 1, p. 19, l. 11-14. S.Y. testified that she attended school at Kahla

Middle School on November 11th, 2013. RR Vol. 1, p. 20, l. 11-15.

On the day of the incident, she testified that she went into the restroom

with J.E. RR Vol. 1, p. 20, l. 23-25. S.Y. testified that B.D.S. was never

in the restroom with her. RR Vol. 1, p. 21, l. 2-4. She testified that

B.D.S, J.E., A.R., and she were all sent to the principal’s office. RR Vol. 1,

p. 22, l. 10-12.

S.Y. admitted to writing on the wall. RR Vol. 1, p. 22, l. 16-23. She

wrote, “Flacah estaba aqui and F y’all hoes.” RR Vol. 1, p. 23, l. 9. She

testified that she did not write the top right in the center on P2. RR Vol.

1, p. 23, l. 21-23. S.Y. stated that she could not say whether B.D.S. did or

did not write the other writings on the wall because she was not there

when they were written. RR Vol. 1, p. 24, l. 19-22. She testified that she

did see the other writings when she came back into the restroom. RR Vol.

1, p. 24, l. 23-25.

At the principal’s office, everyone was separated in separate rooms.

RR Vol. 1, p. 25, l. 6-7. In the room, she made a written statement. RR

12

Court stated that J.E. decided to finger B.D.S. but not finger S.Y. RR Vol. 1, p. 62, l. 4-

7.The Court stated that J.E. lied in her statement. RR Vol. 1, p. 64, l. 5-6.

Vol. 1, p. 25, l. 8-9. She testified, “I had to put that I came into the

restroom. I had wrote on the wall and then when I was about to leave, she

stopped every girl that was in there. She didn’t ask where we was coming

from or anything like that and she told us we was all going to get

suspended because she was tired of all this. And she took us all down to

the thing and the only ones that she kept in the office was me and B.D.S.

and she let the rest go.” RR Vol. 1, p. 26, l. 4-11.

In regards to her written statement, S.Y. testified that at first she did

not know who else wrote on the wall, but after turning in her statement

the principal told S.Y. that she knew, she was wrong and kept nodding to

S.Y. RR Vol. 1, p. 27, l. 2-4. S.Y. further testifies that after the encounter

with the principal, S.Y. added that B.D.S had written on the wall. RR Vol.

1, p. 28, l. 5-10. S.Y. testified that she added the statement after being

alone for 30-45 minutes, while the principal was speaking with another

girl. RR Vol. 1, p. 29, l. 7-20. S.Y. stated that the principal came in and

“told me.” RR Vol. 1, p. 29, l. 9.

She testified that she was thinking that she had already got in

trouble for something else and thought she was going to get in trouble for

13

this. RR Vol. 1, p. 29, l. 22-24. S.Y. testified that she felt threatened by

the principal. RR Vol. 1, p. 30, l. 6-7. She agreed that she felt pressure

to say something because she might get more in trouble. RR Vol. 1, p.

30, l. 11-13.

S.Y. testified that she was charged with a felony for the graffiti and

she was given probation for six months. RR Vol. 1, p. 31, l. 7-15.

A.R.

A.R. testified that she is 14 years old and going into the 9th grade.

RR Vol. 1, p. 33, l. 16-19. She testified that she attended Kahla Middle

School on November 11th, 2013. RR Vol. 1, p. 33-34, l. 24-1. She

testified that all the girls were together in the restroom doing makeup,

hair, going to the mirrors, and talking. RR Vol. 1, p. 36, l. 1-2. She

testified that she brought the sharpie that she received from her teacher

and accidentally placed it on the bathroom sink. RR Vol. 1, p. 36, l. 5-

22; RR Vol. 1, p. 37, l. 14-15.

A.R. testified that she saw P2 but did not know who drew it. RR

Vol. 1, p. 36, l. 25. She stated that the teacher had stopped all the girls

and told them to go back into the bathroom and questioned the girls as to

who created the writing on the wall. RR Vol. 1, p. 37, l. 8-11. She testify

14

that she did not see B.D.S. write on the wall. RR Vol. 1, p. 37, l. 18-20.

A.R. testified that J.E., S.Y., B.D.S., she and a few other girls were

sent to the principal’s office. RR Vol. 1, p. 39, l. 7-10. She was placed in

a separate room and gave her statement. She testified, “I wrote down that

we were in the restroom just minding our own business and then we had

came out of the restroom and that’s when the teacher told us to write

down our names and everything.” RR Vol. 1, p. 40, l. 4-7.

A.R. then testified that, “And then she made us add who wrote it and

who did it because she had told me…” RR Vol. 1, p. 40, l. 9-10. A.R.

further testified that her statement stated that B.D.S., J.E., and S.Y wrote

on the wall. RR Vol. 1, p. 40, l. 24-25. She testified that Ms. Dilworth

was coming back and forth in her room when she was writing here

statement. RR Vol. 1, p. 42, l. 18-20. She testified that Ms. Dilworth

made her feel scared and that something bad was going to happen to her if

she didn’t say something. RR Vol. 1, p. 42, l. 21-25 - p.43, l. 1-6. A.R.

testifies later that Ms. Dilworth threatened her. RR Vol. 1, p. 45, l. 10-

11.

A.R. testified that she had to name names and the names she named

15

were the only ones she saw in the office. RR Vol. 1, p. 43, l. 12-13. A.R.

testified that she did not write anything. RR Vol. 1, p. 43, l. 14-15.

Officer Jennifer Richards

Officer Jennifer Richards (“Richards”) testified that she works for

Cypress Fairbanks ISD Police Department and assigned to the Kahla

Middle School. RR Vol. 1, p. 47, l. 1-6. She testified that she was at

school on November 11th, 2013. RR Vol. 1, p. 47, l. 23-25 – p. 48, l. 1-

2.

Richards testified that she received a call that day to the principal’s

office for graffiti in the upstairs girl’s restroom. RR Vol. 1, p. 48, l. 19-

24. She testified that four girls were in separate rooms and writing their

statements. RR Vol. 1, p. 49, l. 2-17.

Richards testified that the cleanup of the graffiti took approximately

15 to 20 minutes and was completed by the custodian. RR Vol. 1, p. 51, l.

16-18. Richards testified that there was no permanent damage. RR Vol.

1, p. 51, l. 19-20.

Richards testified that the District Attorney’s office accepted charges

for B.D.S. and S.Y. RR Vol. 1, p. 50, l. 4-8. She testified that she

16

explained the situation and every statement to the office. RR Vol. 1, p.

52, l. 4-6.

Richards testified that she did not see the principal threaten or force

the girls to write their statements. RR Vol. 1, p. 52, l. 4-9. She further

testified that while these statements were being written she was in the

common area or walking around the campus. RR Vol. 1, p. 53, l. 18-22.

Richards waited outside until the statements were written. RR Vol. 1, p.

54, l. 15-17.

Court’s Findings:

The Court found that B.D.S. did engage in delinquent conduct. RR

Vol. 1, p. 67, l. 10-12.

Court’s Ruling:

The court ruled in favor of the State of Texas and gave B.D.S. one

year of probation and placed B.D.S. in the custody of her mother. CR 5;

RR Vol. 1, p. 67, l. 12-13.

17

APPLICABLE LEGAL STANDARD

Although juvenile proceedings are civil in nature, intermediate

appellate courts have applied the criminal sufficiency standard to juvenile

adjudication proceedings. In re R.R., 373 S.W.3d 730, 734 (Tex. App. –

Houston [14th Dist.], 2012, pet. filed)

The sole standard to be used to assess the sufficiency in criminal

cases is that legal sufficiency standard articulated in Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), according to the Court of

Criminal Appeals in Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim.

App. 2010). In re M.S., S.W.3d , (Tex. App. -

, 2012)

In a due process review of the sufficiency of the evidence to support

a conviction, the reviewing court considers all of the evidence in the light

most favorable to the verdict to determine whether any rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012)

The fact finder is the exclusive judge of the credibility of the

18

witnesses and the weight to be given to the evidence. It is permissible to

draw multiple reasonable inferences from the facts as long as each finds

support in the evidence presented at trial. Courts of appeals should

determine whether the necessary inferences are reasonable based upon

the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict. Therefore (“under the Jackson test”),

triers of fact are not permitted to draw conclusions based on speculation

because doing so is not sufficiently based on facts or evidence to support a

finding beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 16-17

(Tex. Crim. App. 2007)

19

APPLICABLE STATUTE

Texas Penal Code Section 28.08 states in part as follows:

“A person commits as offense under penal code section 28.08(a)(2)

if, without the effective consent of the owner, the person intentionally or

knowingly makes markings, including inscriptions, slogans, drawings, or

paintings, on the tangible property of the owner with an indelible marker.”

Tex. Penal Code Ann. § 28.08(a)(2) (West 2011)

Further, an “indelible marker means a device that makes a mark

with a paint or ink product that is specifically formulated to be more

difficult to erase, wash out, or remove than ordinary paint or ink

products.” Id. § 28.08(e)(3)

Also, “an offense under this section is a state jail felony if the

marking is made on a school, … .” Id. § 28.08(d)(1)

Finally, “(i)n this section, …school means a private or public

elementary or secondary school.” Id. § 28.08(e)(5)

20

ANALYSIS

The legal sufficiency standard was not met in this case. B.D.S. was

wrongly adjudicated and used as a scape goat for delinquent conduct that

could have been conducted by any of the teen witnesses. The court took

the written, coerced statement of J.E. and her partially perjured trial court

testimony as the evidence used to adjudicate B.D.S.

J.E.’s story is consistently false with the story of the other testifying

witnesses. For example, J.E. testified that an officer and Ms. Dilworth

were in the room when she wrote the statement. RR Vol. 1, p. 15, l. 21-

23. This statement does not coincide with Officer Jennifer Richards

testimony because Richards testimony is that while the girls were writing

their statements she was in the common area or walking around the

campus and Richards waited outside until the statements were written.

RR Vol. 1, p. 53, l. 18-22; RR Vol. 1, p. 54, l. 15-17.

Also, the story does not coincide with the stories of A.R. and S.Y. J.E.

testified that she did not write anything on the wall, she was not asked to

write anything on the wall and that B.D.S. and S.Y. used the sharpie. RR

Vol. 1, p. 12, l. 23-25 – p. 13, l. 1; RR Vol. 1, p. 13, l. 2-4. Contrast

21

this with the statements of S.Y. who claimed that she could not say

whether B.D.S. did or did not write the other writings on the wall because

she was not there when they were written. RR Vol. 1, p. 24, l. 19-22.

Also, A.R. testified that her written statement stated that B.D.S., J.E., and

S.Y wrote on the wall. RR Vol. 1, p. 40, l. 24-25.

Lastly, there is a strong possibility that J.E.’s statement is coerced.

J.E. testified that they told her to write down what happened and she did

not feel threatened. RR Vol. 1, p. 16, l. 5-6. Even though J.E. did not

“feel” threatened, a majority of the girls who testified felt differently. For

example, A.R. testified that Ms. Dilworth made her feel scared and that

something bad was going to happen to her if she didn’t say something. RR

Vol. 1, p. 42, l. 21-25 - p.43, l. 1-6. A.R. also testified that Ms. Dilworth

threatened her. RR Vol. 1, p. 45, l. 10-11. As to S.Y., she testified that

she felt threatened by the principal and felt pressure to say something

because she might get more in trouble. RR Vol. 1, p. 30, l. 6-7; RR Vol.

1, p. 30, l. 11-13. Also, S.Y. originally did not include B.D.S. in her written

22

statement until after the principal’s coercion.5

The trial court’s decision to adjudicate B.D.S was overwhelmingly

based on inconsistent and inaccurate evidence. J.E.’s written statement

and trial court testimony are the prime example of this inconsistency and

inaccuracy. Due to the coercion, partial perjury, written and re-written

statements, the trial court did not meet the legal sufficiency standard.

23

5 In regards to her written statement, S.Y. testified that at first she did not know who

else wrote on the wall, but after turning in her statement the principal told S.Y. that she

knew, she was wrong and kept nodding to S.Y. RR Vol. 1, p. 27, l. 2-4. S.Y. further

testifies that after the encounter with the principal, S.Y. added that B.D.S had written

on the wall. RR Vol. 1, p. 28, l. 5-10. S.Y. testified that she added the statement after

being alone for 30-45 minutes, while the principal was speaking with another girl. RR

Vol. 1, p. 29, l. 7-20. S.Y. stated that the principal came in and “told me.” RR Vol. 1,

p. 29, l. 9.

CONCLUSION AND PRAYER

Appellant prays that this Honorable Court of Appeals reverse the

trial court’s judgment finding that she engaged in delinquent conduct and

render a judgment finding that the evidence is insufficient to support an

adjudication that she committed the offense of graffiti. Alternatively,

B.D.S. requests that this Court reverse the judgment of the trial court and

remand the case for a new trial.

Appellant prays for general relief.

Respectfully submitted,

/s/ Donald M. Crane

Donald M. Crane

TBA 05005900

Attorney at Law

810 South Mason Road, #350

Katy, Texas 77450

Telephone: (281) 392-6611

Facsimile: (281) 392-5383

donmcrane@gmail.com

ATTORNEY ON APPEAL FOR

B.D.S.

24

CERTIFICATE OF COMPLIANCE

I certify that the foregoing computer generated brief complies with

word limit requirements of TRAP 9.4 (3). Relying on the word count of

the computer program used to prepare this document, the number of

words is 3,947 excluding the caption, identity of parties and counsel, table

of contents, index of authorities, statement of the case, statement of issues

presented, statement of procedural history, signature, proof of service,

certificate of compliance and appendix.

/s/ Donald M. Crane

Donald M. Crane

25

CERTIFICATE OF SERVICE

I hereby certify that on April 20, 2015, that a true and correct copy of the

foregoing Original Appellant’s Brief, was served in accordance with the

TRAP to Jessica Caird/Dan McCrory, Assistant Harris County District

Attorney, by electronically delivery through prodoc efiling, E-mail and fax.

Jessica Caird/Dan McCrory,

Harris County District Attorney

Attn.: Appellate Division

1201 Franklin Street, 5th Floor

Houston, Texas 77002

(713) 755-5800

(713) 755-5809 fax

/s/ Donald M. Crane

Donald M. Crane

26

323 S.W.3d 893

Kelvin Kianta BROOKS, Appellant,

v.

The STATE of Texas.

No. PD-0210-09.

Court of Criminal Appeals of Texas.

Oct. 6, 2010.

Rehearing Denied Nov. 17, 2010.

[323 S.W.3d 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.

OPINION

HERVEY, J., announced the judgment of the Court and delivered an opinion in which KELLER, P.J.,

KEASLER, and COCHRAN, JJ., joined.

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

[323 S.W.3d 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”

[323 S.W.3d 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

[323 S.W.3d 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 0,

0 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 0, 0.” 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

[323 S.W.3d 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”

[323 S.W.3d 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

[323 S.W.3d 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

[323 S.W.3d 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,

[323 S.W.3d 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

[323 S.W.3d 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.

[323 S.W.3d 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

[323 S.W.3d 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

[323 S.W.3d 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

[323 S.W.3d 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-

[323 S.W.3d 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

[323 S.W.3d 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.”

[323 S.W.3d 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

[323 S.W.3d 911]

[3] 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

[323 S.W.3d 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

[323 S.W.3d 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,

[323 S.W.3d 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

luck of the draw.” 7 This doctrine is not based on a sound logical or historical foundation, and it serves

only to muddle criminal law. It should be overturned.

B. Both Parties Agree That the Proper Issue Is Legal Sufficiency of the Evidence.

Fittingly, both appellant and the State agree that the proper issue in cases such as this is whether

the evidence is legally sufficient. The State argues in its Petition for Discretionary Review, “Evidence that

is factually insufficient due to its inherent weakness should always be legally insufficient; either the

evidence is such that a rational juror could convict upon it or it is not, regardless of the light in which it is

viewed.” 8 Appellant “suggests that in this situation (i.e. a question of intent), if the evidence is factually

insufficient it must also be legally insufficient.” 9 They are both correct: There is no “semi-sufficient”

standard of review.

II.

A. Logic Requires a Single Standard of Sufficiency Review in Criminal Cases.

I have already set out my concerns about the intellectual legitimacy, historical authenticity, and

appropriateness of the Clewis factual sufficiency review in Texas. 10 I now focus only upon the most

important reason to overrule Clewis: Logic.

The attempt to impose Texas civil standards of a second-round factual sufficiency review is logically

incompatible with the constitutionally mandated legal sufficiency review of criminal convictions that

requires the State to prove all elements of a crime

[323 S.W.3d 915]

beyond a reasonable doubt. Piling a factual sufficiency standard of review that was developed for civil

trials employing a preponderance-of-the-evidence standard of proof atop a legal sufficiency standard of

review that was developed for criminal trials employing a beyond-a-reasonable-doubt standard of proof

does not work. That is why this Court has so frequently tinkered with the Clewis formulation, and why

we have always been unsuccessful.

The Clewis doctrine of re-reviewing the sufficiency of the evidence after the appellate court has

already held that the evidence satisfies the highest standard of proof possible-beyond a reasonable

doubt-to decide if it is nonetheless factually sufficient is internally inconsistent. If the evidence suffices

to prove guilt beyond a reasonable doubt, and it supports a rational, reasonable verdict, as required

under Jackson, that evidence cannot logically be so lacking in probative value as to make the jury's

verdict “manifestly unjust” under the vague and subjective civil-law factual-sufficiency standard. To

declare the evidence factually insufficient necessarily turns an appellate judge, viewing only the cold

written record, into a self-appointed thirteenth juror with absolute veto power over the twelve citizens

who actually saw the witnesses, heard the evidence, and reached a rational, reasonable verdict. The

United States Supreme Court recognized this in Tibbs v. Florida, 11 as did the Florida Supreme Court

when it judicially jettisoned factual-sufficiency review in that same case. 12

B. Legally Sufficient Evidence in a Criminal Trial.

For more than 150 years, Texas appellate courts reviewed the sufficiency of the evidence in Texas

criminal cases under a single standard (although the precise wording varied), taking into account both

the facts that were proven at trial and the law applicable to the particular offense. 13 This Court (and

the intermediate courts of appeals once they were given jurisdiction over the direct appeal of criminal

cases in 1981) reviewed the facts proven in the light most favorable to the verdict, giving great

deference to the jury's credibility and weight determinations. But we did not hesitate to reverse a

conviction if the evidence failed to prove a defendant's guilt “with reasonable certainty,” or “beyond a

reasonable doubt.” 14 There were never two distinct “sufficiency of the evidence” hurdles in Texas

criminal appellate review. 15

[323 S.W.3d 916]

1. The constitutionally required Jackson standard.

In 1979, the United States Supreme Court delivered its opinion in Jackson v. Virginia, 16 and set the

national standard for review of the sufficiency of evidence under the Due Process Clause of the federal

constitution. In all criminal trials, state and federal, the government must produce “sufficient evidence

to justify a rational trier of the facts to find guilt beyond a reasonable doubt.” 17 The Court explicitly

rejected the “no evidence” standard of review that it had applied nineteen years earlier in Thompson v.

Louisville. 18

In Jackson, the Court explained that the Thompson “no evidence” review “secures to an accused the

most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty[,]” 19 but

that standard is inadequate for “a question of evidentiary ‘sufficiency.’ ” 20 Instead, the correct

standard must incorporate the prosecution's burden of proof-beyond a reasonable doubt-in a due-

process review. The Court noted that a “ ‘reasonable doubt’ has often been described as one ‘based on

reason which arises from the evidence or lack of evidence.’ ” 21

A reasonable doubt might arise because the verdict is manifestly against the great weight and

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

evidence to support some element of the offense. But, of course, the reviewing court does not “ask

itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” 22

Rather, it must give “full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

23 Thus, “ all of the evidence is to be considered in the light most favorable to the prosecution” because

the reviewing court may impinge upon “ ‘jury’ discretion only to the extent necessary to guarantee the

fundamental protection of due process of law.” 24

Therefore, after 1979, Texas courts were prohibited from applying a “no evidence”

[323 S.W.3d 917]

standard of review to a legal-sufficiency challenge because that standard affords “inadequate

protection against potential misapplication of the reasonable-doubt standard” in criminal cases. 25 In

1989, we explained, “Adherence to the no evidence standard is now, and has been for the last decade,

expressly forbidden by Jackson. It is no longer permissible to merely quote the Jackson standard and

then to turn around and apply the Thompson no evidence standard as we have historically done.” 26

2. Legal sufficiency in criminal cases is judged by the quality, not the quantity, of evidence

supporting the accuracy of the verdict.

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 judicial or official action

demanded.” 27 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.

Indeed, the Supreme Court explicitly held in In re Winship, 28 that a juvenile could not

constitutionally be adjudicated under the civil standards of proof (or appellate review) of

preponderance of the evidence. 29 The Court noted that “ ‘the preponderance test is susceptible to the

misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence

in order to determine which side has produced the greater quantum, without regard to its effect in

convincing his mind of the truth of the proposition asserted.’ ” 30

As Justice Harlan explained in his Winship concurrence, although “the phrases ‘preponderance of

the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate

to the finder of fact different notions concerning the degree of confidence he is expected to have in the

correctness of his factual conclusions.” 31 Justice Harlan noted that “[t]he preponderance test has been

criticized, justifiably in my view, when it is read as asking the trier of fact to weigh in some objective

sense the quantity of evidence submitted by each side rather than asking him to decide what he

believes most probably happened.” 32 Indeed, that is precisely why the standard of proof and

[323 S.W.3d 918]

review in criminal cases has been expressed, not by the quantity of evidence produced or how it might

be weighed when viewed neutrally, but rather by the quality of the evidence and the level of certainty it

engenders in the factfinder's mind.

Legal sufficiency of the evidence in a criminal proceeding may be divided into two zones: evidence

of such sufficient strength, character, and credibility to engender certainty beyond a reasonable doubt

in the reasonable factfinder's mind and evidence that lacks that strength. 33 Appellate review of a jury's

verdict of criminal conviction focuses solely on that “either-or” character of evidentiary sufficiency

because a defendant is entitled to an acquittal if the evidence lacks that strength.

C. Texas Civil Standards of Review.

Texas is considered a “hold-out” state by having a two-tiered standard of appellate review for civil

cases, although commentators state that “recent decisions hint that there is support for assimilation

into the single standard of review used in most jurisdictions.” 34 It has long been acknowledged that

“[f]ew issues of Texas law have created more confusion or spawned more appellate litigation than the

treatment of ‘no evidence’ and ‘insufficient evidence’ points of error” in civil cases. 35 The difficulty in

distinguishing these two types of claims-which require dramatically different results-is that appellate

courts have little guidance except their own intuition to guide them. 36

1. The “five zone” review for legal and factual sufficiency.

Traditionally, Texas appellate courts have employed a five-zone review of civil verdicts when the

burden of proof at trial is that of “preponderance of the evidence.” 37 In his much cited law review

article, Justice Calvert distinguished those five zones and defined them. 38

[323 S.W.3d 919]

2. Zone 1-“no evidence.”

Zone 1 is the “no evidence” zone, similar to the old legal sufficiency standard rejected by the

Supreme Court in Jackson for criminal cases. A “no evidence” challenge by the party without the burden

of proof in a civil case may be sustained only when:

• There is a complete lack of evidence of some element of a claim or defense;• The evidence offered at

trial is inadmissible under the rules of law or of evidence and thus cannot be given any evidentiary value

on appeal;• There is no more than a “mere scintilla” of evidence to prove some essential fact of either

the claim or defense; 39 or• The evidence conclusively demonstrates the opposite of the essential fact.

40

If the appellate court finds “no evidence” to support the verdict, the evidence is legally insufficient, and

the opponent is entitled to a judgment in his favor as a matter of law. 41

3. Zone 2-“factually insufficient evidence.”

In zone 2, the party with the burden of proof has offered some evidence in support of his claim or

defense and the case is allowed to go to the jury for a verdict. But the evidence supporting the jury's

verdict, while more than a “mere scintilla,” is slim indeed. 42 In this scenario, the appellate court may

find that it is “factually

[323 S.W.3d 920]

insufficient,” but it must carefully set out all of the evidence supporting the verdict and explain why the

evidence is nonetheless insufficient. 43 This challenge is always brought by the party without the burden

of proof. 44 The rationale for allowing the party (who prevailed at trial but was found by the appellate

court to have produced insufficient evidence) to try again in a second trial is “that there is available to

the appellee other evidence of the vital fact which will support a finding in his favor and it would work

an injustice to cut off his right to produce it.” 45 The appellate court assumes that the party who had the

burden of proof and who originally prevailed may be able to produce additional evidence at a second

trial, evidence that he failed to offer at the first trial. 46

4. Zone 3-“zone of reasonable disagreement.”

Zone 3, the zone of reasonable disagreement, is the great middle ground, in which a verdict will be

upheld for either the party with the burden of proof or the opposing party as there is conflicting

evidence or inferences on either side of the vital fact issue or issues, but the jury's verdict is reasonable

and does not “shock the conscience,” nor it is not so “clearly unjust” to indicate obvious bias. 47

5. Zone 4-“great weight and preponderance.”

In zone 4, the party with the burden of proof has offered significant evidence to support the claim

or defense; the great weight and preponderance of the credible evidence supports his position. 48

However,

[323 S.W.3d 921]

the jury has returned a verdict in favor of the opposing party-the party without the burden of proof. In

this scenario, the party with the burden of proof may challenge the result, claiming that the verdict is

“against the great weight and preponderance of the evidence.” 49 In this “against the great weight and

preponderance” scenario, all of the evidence, both pro and con, is set out, and the appellate court must

explain why the verdict is against the great weight and preponderance of the evidence. 50

6. Zone 5-“conclusive evidence.”

At the opposite end of the spectrum from zone 1 is zone 5-“conclusive evidence”-in which the party

with the burden of proof has established conclusively, or as a matter of law, that he is entitled to a

judgment in his favor because the opponent has offered no evidence in opposition and the proponent

has offered sufficient evidence of the vital fact or claim.

7. The Texas Supreme Court's Reformulation of Legal Sufficiency.

Although this five-zone theory has been the traditional formulation of civil legal and factual

sufficiency standards in civil cases, in 2005, the Texas Supreme Court articulated a new formulation of

the test for legal sufficiency review in

[323 S.W.3d 922]

City of Keller v. Wilson: 51

The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable

and fair-minded people to reach the verdict under review. Whether a reviewing court begins by

considering all the evidence or only the evidence supporting the verdict, legal-sufficiency review in the

proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence

unless reasonable jurors could not. 52

Thus, when reasonable jurors could resolve conflicting evidence either way, an appellate court must

assume that jurors resolved all such conflicts in accord with their verdict, and when the evidence

supports conflicting inferences, the court must assume that jurors made all inferences in favor of the

verdict and disregard other possible inferences. 53 “If the evidence at trial would enable reasonable and

fair-minded people to differ in their conclusions, then jurors must be allowed to do so. A reviewing court

cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone

of reasonable disagreement.” 54 The appellate court does not view the evidence in a neutral light, but

rather “in the light favorable to the verdict,” 55 just as is done in criminal cases under Jackson and in

Texas civil cases under a factual sufficiency review. Under this formulation, zone 3 (the zone of

“reasonable disagreement”) would seem to have increased considerably in size, while zones 2 and 4

(those of “factual insufficiency” and “against the great weight and preponderance”) have diminished as

a verdict that is outside the zone of reasonable disagreement would seem to be within the zone of

legally insufficient evidence. 56

Some commentators have noted that this new formulation of legal sufficiency has virtually merged

the Texas legal sufficiency standard with that of factual sufficiency in civil cases. 57 And it has brought

Texas

[323 S.W.3d 923]

civil standards “more closely in line with federal standards for legal sufficiency review.” 58 These

commentators argue that the language of the “reasonable juror” standard “provides a cloak for the

reasoning of judges, rather than precision in reasoning.” 59 They contend that the City of Keller standard

“leaves considerable leeway for an appellate court to intercept a jury's verdict when it feels motivated

to do so.” 60 These commentators complain that the “reasonable juror” standard is too flexible and

subjective, 61 apparently preferring the purportedly more objective standard of “shocks the conscience”

or “manifestly unjust.” One can certainly agree with their ultimate conclusion however, that appellate

courts should make “a firm rededication to a jurisprudence of restraint and standards of review that

recognize the fundamental right to trial by jury and a concomitant hard-minded application of standards

of review.” 62 Particularly in Texas, the most jury-deferential state in the nation, 63 appellate courts

must defer to a “reasonable” jury verdict in both civil and criminal cases.

D. The Criminal Legal Sufficiency Standard Cannot Be Harmonized with the Civil Factual Sufficiency

Standard. 1. Clewis is a chimera.

In Clewis, this Court attempted to superimpose the five-zone civil standard of review, predicated

upon trials in which the burden of proof is by a preponderance of the evidence upon the two-zone

criminal standard of review that requires proof beyond a reasonable doubt. 64 Visualizing the five-zone

civil standard (“no evidence,” “insufficient evidence,” “zone of reasonable disagreement,” “the great

weight and preponderance of the evidence,” and “conclusive evidence”) as a football field with the “no

evidence” zone at one end and with each zone comprised of an ever greater quantum of evidence

offered by the party with the burden of proof until the “conclusive evidence” zone at the other end,

reviewing courts are required to uphold as factually sufficient any verdict in favor of the party with the

burden of proof that is at least within the third zone, that of reasonable disagreement. But in assessing

the legal sufficiency of evidence in a criminal case, the State's evidence must be persuasive enough to

almost make a touchdown; reaching the midfield is never enough to meet the “beyond a reasonable

doubt” standard.

In a civil case, if the jury returns a verdict in favor of the party that did not have the burden of proof

(usually the defendant), but that verdict is determined by the appellate court to be against the great

weight and preponderance of the evidence offered by the party that did have the

[323 S.W.3d 924]

burden of proof (usually the plaintiff), then the appellate court may reverse the judgment and remand

for a new trial. This gives the plaintiff a second opportunity to prove his case before a new jury, after the

first jury had rejected his claim although he had originally produced “the great weight and

preponderance of the evidence” to support its claim. That scenario would not generally arise 65 in

criminal cases because if the jury returns a verdict favoring the party without the burden of proof (the

defendant), there will be no appeal because the State may not appeal an acquittal.

Similarly, if the party with the burden of proof in a civil trial (usually the plaintiff) obtains a jury

verdict in its favor, but an appellate court determines that there is insufficient evidence, even when

viewed in the light most favorable to the verdict, 66 to reach “the zone of reasonable disagreement,”

then the appellate court may reverse the jury verdict and remand for a new trial. That scenario also

would not arise in criminal cases because if the State's evidence is so weak in strength, character, and

credibility that it does not reach the level of “the zone of reasonable disagreement,” then it most

assuredly does not meet the “beyond a reasonable doubt” standard of legal sufficiency required in all

criminal cases. Such a lack of evidentiary support is not merely factually insufficient, it is legally

insufficient, and the defendant cannot be required to undergo a second trial.

What this Court did in Clewis was adopt the language of Texas civil factual sufficiency review

without first determining whether there was a proper fit between those civil standards of review and

the differing evidentiary standards of proof in civil and criminal cases. This mistake was quite

understandable when Clewis was decided in 1996 because this Court had recently and properly adopted

the Texas civil standards of legal and factual sufficiency for those few instances in criminal cases in

which the burden of proof is a preponderance of the evidence, as occurs with affirmative defenses. 67

But as appellate courts attempted to reconcile the five-zone civil factual-sufficiency standards with the

heightened burden of proof in criminal cases in which the State is required to prove every element

beyond a reasonable doubt, we began to realize that this civil standard of review did not align with the

criminal burden of proof. And we tinkered and tinkered with various reformulations of this “factual

sufficiency” standard of review in criminal cases in a vain attempt to harmonize them. 68

[323 S.W.3d 925]

2. Clewis and Watson relied upon a false premise that evidence should be viewed in a neutral light when

conducting a factual sufficiency review.

In Watson v. State, 69 we stated that the only difference between a factual-sufficiency review and a

legal-sufficiency review is that, under the former, an appellate court should view the evidence in a

neutral light, rather than in the light most favorable to the verdict. 70 But it is a strange distinction that

ignores the quality or credibility of evidence, and it is one that has never been a part of Texas factual-

sufficiency review in civil cases. 71 Instead, it was created by the Austin Court of Appeals in Stone v.

State, 72 and simply imported,

[323 S.W.3d 926]

without further analysis, into this Court's decision in Clewis. Indeed, in Lancon v. State, 73 a post-

Watson decision in 2008, we again rejected the “neutral” light analysis and held that it is the jury's sole

prerogative to make credibility decisions. Appellate courts must defer to those credibility assessments;

they may not view all conflicting witness testimony as equally credible. 74 Witnesses are not fungible,

some are credible and some are not. Neither juries nor appellate courts must tally up the number of

witnesses “neutrally” and then base a sufficiency decision on the greater number.

In sum, we have never been successful in our attempts to superimpose the five-zone civil standards

for sufficiency review on top of the constitutionally mandated legal sufficiency review of a criminal

conviction. These two standards of review depend upon their distinctly different burdens of proof. Like

oil and water, they do not mix. They are not logically consistent, and they promote only confusion and

conflation of two distinct concepts. We are required to follow the heightened Jackson legal sufficiency

formulation; we cannot follow a lesser factual sufficiency formulation.

I agree that it is time to consign the civil-law concept of factual sufficiency review in criminal cases

to the dustbin of history.

PRICE, J., dissenting in which MEYERS, JOHNSON, and HOLCOMB, JJ., joined.

By dint of persistence, a plurality of the Court purports to overrule Clewis. 1 The plurality frames the

question as a policy choice, asserting that we granted discretionary review in order to determine

whether “there is a need to retain” factual sufficiency review. 2 But as our opinion less than four years

ago in Watson demonstrated, the authority to reverse a conviction on the basis of factual insufficiency

has been recognized from the beginning to be inherent in the appellate jurisdiction of first-tier appellate

courts in Texas. 3 We cannot simply decide it need not be “retained”

[323 S.W.3d 927]

any longer absent a change in the constitutional and statutory provisions that confer that

jurisdiction-or else a change in our own long-standing construction of those provisions. To be sure, the

plurality today would undoubtedly change those constructions too, if only it could invoke something

more substantial than dissenting opinions to justify it.

I.

The plurality's primary justification for overruling Clewis is that, because the standards for factual

sufficiency and legal sufficiency have essentially melded into one, there is no longer any “meaningful

distinction between them that would justify retaining them both.” 4 But the plurality's premise is

flawed. The plurality begins its analysis with the claim that Watson itself “recognized” that the two

standards were “barely distinguishable.” 5 What Watson actually recognized was that the standard for

factual sufficiency, as partially reformulated in Zuniga, 6 which Watson overruled in part, “seems barely

distinguishable” from the legal sufficiency standard from Jackson v. Virginia. 7 The only difference is that

the former views all of the evidence in a “neutral” light rather than, as in the latter, “in the light most

favorable to the verdict.” But we insisted in Watson-as I still do-that “the distinction is a real one[.]” 8

A holding of legally insufficient evidence-that is, that the evidence is so lacking that federal due

process will not tolerate a conviction-has double jeopardy implications. 9 Under the standard

established by Jackson v. Virginia for deciding whether the evidence satisfies due process, a reviewing

court “faced with a record of historical facts that supports conflicting inferences must presume-even if it

does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of

the prosecution.” 10 But this kind of categorical deference is not required of a reviewing court in Texas

when conducting a non-due-process review for factual sufficiency. For a reviewing court to view the

evidence in a “neutral” light means that it need not resolve every conflict in the evidence, or draw every

inference from ambiguous evidence, in favor of the defendant's guilt just because a rational jury could

have. Rational juries can also choose to acquit a defendant even when presented with legally sufficient

evidence. 11 Factual sufficiency review recognizes that there may be rare cases in which, though some

jury might convict, and it would not be irrational for it to do

[323 S.W.3d 928]

so, most juries would almost certainly harbor a reasonable doubt given the tenuousness of the State's

evidence or the weight and apparent credibility and/or reliability of the exculpatory evidence. Under

these circumstances, factual sufficiency review in Texas permits a first-tier appellate court to reverse a

conviction and remand for a new trial, in the interest of justice, to grant the defendant a second chance

to obtain a jury acquittal. 12

The deference required of the appellate court in a factual sufficiency review is of a different kind

than that required by legal sufficiency. It is not, as with legal sufficiency analysis, total deference to the

jury's prerogative to resolve all conflicts and ambiguities in the record against the defendant. Instead, it

is a qualified deference to the jury's apparent assessment of the weight, credibility, or reliability of the

(admittedly legally sufficient) evidence. This deference is important because it respects the jury's fact-

finding role at the trial court level. 13 But it is not the absolute deference that legal sufficiency review

affords to the jury's resolution of conflicts and ambiguities. It demands that, before a first-tier appellate

court may reverse a conviction based upon factually insufficient evidence, it must be able to say, with

some objective basis in the record, that the jury's verdict, while legally sufficient, is nevertheless against

the great weight and preponderance of the evidence, and therefore “manifestly unjust.” 14 This does

not grant an appellate judge license to declare the evidence to be factually insufficient “simply because,

on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. Nor can

an appellate court judge declare that a conflict in the evidence justifies a new trial simply because he

disagrees with the jury's resolution of that conflict.” 15

The plurality asserts that this is not a true factual sufficiency review because it:

[323 S.W.3d 929]

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. 16

This passage represents a distorted view of factual sufficiency review. I agree that the citation to

Tibbs supports the proposition that when a reviewing court does overturn a jury verdict as too tenuous

or against the great weight and preponderance of the evidence, it acts as a thirteenth juror and does

not, ultimately, defer to the jury's resolution of weight and credibility. 17 But Tibbs does not support the

assertion that factual sufficiency is not genuinely factual sufficiency unless the reviewing court sits as a

thirteenth juror “without any limitation.” It is true that we insist that a simple disagreement with the

jury's resolution of conflicting evidence will not support a reversal under a factual sufficiency review.

Not every appellate disagreement with a jury verdict signifies that the jury verdict is “manifestly unjust”-

in fact, most do not. And when that is the case, a reviewing court must decline to exercise its fact

jurisdiction to reverse and remand for a new trial. But this limitation does not mean that when a

reviewing court does exercise its prerogative to reverse and remand a conviction for factual

insufficiency, either because the State's evidence is intolerably tenuous or because the verdict is against

the great weight of the evidence, it has not acted as a thirteenth juror. 18 Obviously, it has. And that is

precisely why Tibbs holds that such a reversal carries no double jeopardy consequences.

As for the plurality's claim that a factual sufficiency review that pays any deference at all to the

jury's verdict is not really a review of the evidence in a “neutral light,” 19 this is simply inaccurate.

Deference is not an all-or-nothing proposition. A reviewing court may look to the record without the

requirement of resolving conflicts and ambiguities in the light most favorable to the jury's verdict and

still limit the exercise of its power to reverse and remand for a new trial in the interest of justice, out of

deference to the jury's verdict, to those cases in which the State's evidence is most tenuous or the

weight of the evidence greatly preponderates against conviction. The qualified deference that we have

said first-tier appellate courts should pay to jury verdicts does not somehow convert factual sufficiency

review into legal sufficiency review.

[323 S.W.3d 930]

Therefore, even if I agreed that we could simply jettison factual sufficiency review as a matter of

policy, I would not accept the plurality's primary justification for doing so.

II.

Having declared the standards for legal and factual sufficiency review to be indistinguishable, the

plurality finds it necessary to eliminate the latter because a finding of factual insufficiency might

necessitate an appellate acquittal. 20 Because I do not accept the premise that the standards are

indistinguishable, I do not share the plurality's concern.

III.

Next the plurality cites various policy considerations for dispensing with factual sufficiency review.

First, the plurality quotes with approval a number of reasons that the Florida Supreme Court listed to

explain why it would no longer entertain evidentiary-weight grounds on appellate review. 21 Insofar as I

can tell, however, there was no argument to be made in the criminal appellate courts of Florida that

factual review was considered to be inherent in their appellate jurisdiction, as we have said it is in ours.

For this reason, the Florida Supreme Court was free to reject any attempt to raise such a claim purely on

policy grounds. Next, the plurality today endorses an argument from one of the dissenting opinions in

Watson, a sort of cost/benefit analysis that concludes that factual sufficiency review is simply not worth

the candle. 22 Such policy considerations cannot by themselves serve to trump the constitutional and

statutory authority of first-tier appellate courts in Texas to conduct factual sufficiency review,

recognized in our case law long before Clewis was decided. 23

IV.

Any argument to undermine the basis for that constitutional and statutory authority, the plurality

has saved for last-perhaps because it can only muster dissenting opinions to support it. The plurality in

fact acknowledges that “[t]here 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 sufficiency standard in

criminal cases.” 24 Indeed, the arguments have been aired and rejected in this Court many times in

recent years. Even so, the plurality today somehow manages to characterize the question of the

jurisdiction of first-tier criminal appellate courts in Texas to conduct factual sufficiency review as one of

first impression. 25 But of course this is not an issue of

[323 S.W.3d 931]

first impression; if it were, there would be no Clewis (or, for that matter, Watson ) to overrule.

And yet overrule Clewis the plurality purports to do. Along the way, the plurality fails even to pay lip

service to the doctrine of stare decisis. Stare decisis dictates that “we keep in mind the strong

preference for adhering to past decisions[.]” 26 It is better, we have often said, to be consistent than to

be right (although I regard this as a rebuttable presumption). 27 Still, we have acknowledged that there

are legitimate justifications for overruling established precedent, and we do not hesitate to do so “if the

reasons ... are weighty enough.” 28 I suppose that, were it to address the question head on, the plurality

today might argue (judging by its policy arguments for abandoning factual sufficiency review-all of which

we have rejected in the past) that factual sufficiency review has become “unworkable.” 29 In keeping

with the overarching theme of its opinion, the plurality might argue that because the standard for

reviewing the evidence for factual sufficiency is now indistinguishable from the standard for reviewing

legal sufficiency, and because this lack of distinction might create jeopardy problems, we must not

construe the fact jurisdiction of first-tier criminal appellate courts to include a review for factual

sufficiency. Because I reject these premises, I would reject any argument that the presumption that

consistent-is-better-than-right has been rebutted. 30 The only thing that arguably makes Clewis seem

unworkable is this Court's lamentable propensity to grant a State's petition for discretionary review

every three or four years to revisit the question whether it is unworkable. The arguments themselves

are not new.

To purporting to overrule Clewis (and the century of case law that preceded it that exercised fact

review jurisdiction to reverse convictions that were built on too tenuous a foundation or were against

the great weight of the evidence), 31 and remanding the cause to the court of appeals

[323 S.W.3d 932]

to revisit its legal sufficiency analysis, I dissent.

--------

Notes:

1 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2 922 S.W.2d 126 (Tex.Cr.App.1996).

3 See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

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

5 See id.

6 See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Cr.App.2007) (factual-sufficiency review is

“barely distinguishable” from legal-sufficiency review); Watson v. State, 204 S.W.3d 404, 442-48

(Tex.Cr.App.2006) (Cochran, J., dissenting) (discussing this Court's attempts to “clarify” Clewis ).

7 Appellant was also charged with and convicted of possessing more than one but less than four

grams of ecstasy and sentenced to 10 years in prison in cause number 10-07-00310-CR. That conviction

is not at issue in this proceeding.

8 Appellant testified at trial that he had “like $30 or $40” on him.

9 We note that appellant was charged with just possessing the six ecstasy pills that weighed 1.29

grams. The record contains no testimony on how many pills a typical user would take or a typical seller

would possess with intent to deliver.

10 The question presented in this ground is whether a jury could rationally find beyond a

reasonable doubt that appellant possessed with intent to deliver 4.72 grams of crack cocaine because

appellant fit a profile of “most” or “typical” drug dealers.

11 See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

12 Our decision in Watson approved of this formulation of the Clewis standard. See Watson, 204

S.W.3d at 415. Stated another way, the question under the Clewis factual-sufficiency standard is

whether, after viewing all of the evidence in a “neutral light,” the jury's verdict is either “clearly wrong

and manifestly unjust” or “against the great weight and preponderance of the [conflicting] evidence.”

See Watson, 204 S.W.3d at 414-15; see also Clewis, 922 S.W.2d at 129 (reviewing court views the

evidence in a neutral light and sets aside the jury's verdict “if it is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust”).

13 See Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (“Once a defendant has been found guilty of the

crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion

that upon judicial review all of the evidence is to be considered in the light most favorable to the

prosecution.”) (emphasis in original) and at 326, 99 S.Ct. 2781 (a “court faced with a record of historical

facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the

record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to

that resolution”).

14 The Supreme Court in Tibbs explained the difference between reversals based on evidentiary

sufficiency (i.e., Jackson v. Virginia ) and reversals based on evidentiary weight (i.e., factual-sufficiency)

which “draws the appellate court into questions of credibility.” See Tibbs, 457 U.S. at 38 n.11, 102 S.Ct.

2211.

15 The lead majority opinion in Clewis seems to have cited Tibbs for the proposition that “when

conducting a factual sufficiency review, an appellate court cannot substitute its judgment for that of the

factfinder since this would violate the defendant's right to trial by jury.” See Clewis, 922 S.W.2d at 133

(citing Tibbs, 457 U.S. at 42, 102 S.Ct. 2211). Tibbs, however, stands for the opposite proposition-that

the reviewing court can substitute its judgment for the factfinder's in conducting a factual-sufficiency

review. See Tibbs, 457 U.S. at 42, 102 S.Ct. 2211 (reviewing court can sit as “thirteenth juror” and

disagree “with the jury's resolution of conflicting testimony” and “the jurors' weighing of the evidence”).

16 This requirement that the reviewing court afford “appropriate deference” to a jury's credibility

and weight determinations in a factual-sufficiency review is motivated by a concern that not requiring

such deference might violate the right to trial by jury set out in the Texas Constitution. See Clewis, 922

S.W.2d at 134-36 (discussing “factfinder deference and right to trial by jury”); see also Roberts v. State,

221 S.W.3d 659, 661-62 n. 7 (Tex.Cr.App.2007) (in order to safeguard Texas' constitutional right to trial

by jury, the Texas Supreme Court imposed several requirements upon the reviewing court when it

reverses on factual-sufficiency grounds such as requiring the reviewing court to exercise its factual-

sufficiency jurisdiction with “deferential standards of review”).

17 See Watson, 204 S.W.3d at 441 (Cochran, J., dissenting) (“Thus, Clewis empowered courts of

appeals to act as a ‘thirteenth juror’ (one who was not even present to see and hear the witnesses) and

disagree with the fact-finder's determination, but to be deferential to the fact-finder's judgment as it did

so. This standard was ambiguous and contradictory from the beginning.”) and at 445 (one “cannot view

the evidence in a neutral light while at the same time giving deference to the factfinder's determinations

of weight and credibility”); Johnson, 23 S.W.3d at 13-14 (McCormick, P.J., dissenting) (also discussing “

Clewis' internal contradictions on the question of appellate deference to the jury's credibility and weight

determinations”).

18 253 S.W.3d 699 (Tex.Cr.App.2008).

19 A dissenting opinion in Lancon stated that the majority opinion “seems to say that from now on,

the level of deference due a jury's decision will be total deference when the decision is based on an

evaluation of credibility.” See Lancon, 253 S.W.3d at 708 (Johnson, J., dissenting). We disagree. Our

decision in Lancon merely recognizes that the jury is the “sole judge of a witness's credibility, and the

weight to be given the testimony” thus requiring the reviewing court to defer to the jury on these

determinations (i.e., view the evidence in the light most favorable to the verdict). Viewing the evidence

in the light most favorable to the verdict, however, begins the Jackson v. Virginia legal-sufficiency

analysis. The Jackson v. Virginia standard still requires the reviewing court to determine whether “ any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

See Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original); Watson, 204 S.W.3d at 418 n. 7

(Hervey, J., dissenting). This is the portion of the Jackson v. Virginia standard that essentially

incorporates a factual-sufficiency review. See Clewis v. State, 876 S.W.2d 428, 438-39 (Tex.App.-Dallas

1994) ( Jackson v. Virginia standard necessarily encompasses a factual-sufficiency review), vacated, 922

S.W.2d at 136.

20 See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

21 See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437

U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

22 For example, in Watson, in which we recognized that factual-sufficiency review is “barely

distinguishable” from legal-sufficiency review, we stated that the first ground rule for factual-sufficiency

review is that “the appellate court should be mindful that a jury has already passed on the facts, and

convicted, and that the court should never order a new trial simply because it disagrees with the verdict,

but only where it seems to the court to represent a manifest injustice....” See Watson, 204 S.W.3d at

414. This, however, arguably describes a situation where “the prosecution has failed to produce

sufficient evidence to prove its case” and “an acquittal was the only proper verdict.” See Tibbs, 457 U.S.

at 41-42, 102 S.Ct. 2211. Thus described, our factual-sufficiency standard with its remedy of a new trial

could violate double-jeopardy principles. See id.

23 See Watson, 204 S.W.3d at 416-17.

24 We also note that the Florida Supreme Court's 1981 decision in Tibbs examined its 1976 decision

in Tibbs, other Florida state-court decisions, and the Florida Court of Appeals' decision in determining

whether its 1976 decision reversing Tibbs' conviction was a reversal based on evidentiary weight or a

reversal based on evidentiary sufficiency. See Tibbs, 397 So.2d at 1125-27. The United States Supreme

Court examined the Florida Supreme Court's 1976 decision reversing Tibbs' conviction and the Florida

Supreme Court's 1981 decision that Tibbs' retrial did not violate double-jeopardy principles in

determining that the Florida Supreme Court's 1976 decision reversing Tibbs' conviction was a reversal

based on evidentiary weight and not a reversal based on evidentiary sufficiency. See Tibbs, 457 U.S. at

46-47, 102 S.Ct. 2211. A single Jackson v. Virginia legal-sufficiency standard probably would have

avoided all of this. See Tibbs, 397 So.2d at 1125-26 (eliminating reversals based on evidentiary weight

will avoid “having to review appellate reversals based on evidentiary shortcomings to determine

whether they were based on sufficiency or on weight”).

25 In addition, having two evidentiary standards instead of one rigorously and properly applied

standard may actually be detrimental. See Amanda Peters, Symposium: Treaties and Domestic Law After

Medellin v. Texas: Article: The Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark

L.Rev. 233, 255-56 note 3 (Spring 2009) (having two standards of sufficiency review promotes the

“boilerplate” recitation of both standards and the rigorous application of neither).

26 See Watson, 204 S.W.3d at 449 (Cochran, J., dissenting) (“reviewing courts must apply the

Jackson legal sufficiency standard robustly, taking into account all of the evidence, although viewed in

the light most favorable to the jury's verdict. If that evidence supports a rational and reasonable finding

of guilt beyond a reasonable doubt, it cannot be said that the jury's verdict is manifestly unjust or shocks

the conscience of the reviewing court. The verdict is either rational and reasonable or it is not; it cannot

be ‘semi-rational’ and still meet the Jackson standard. There is no jurisprudential value in reversing a

rational, reasonable verdict and forcing the parties to go back and do it again.”) (footnotes omitted and

emphasis in original); Johnson, 23 S.W.3d at 15 (McCormick, P.J., dissenting) (a properly applied Jackson

v. Virginia legal-sufficiency standard is much more exacting than Clewis claims and when the evidence is

sufficient under a properly applied Jackson v. Virginia legal-sufficiency standard, it can never be factually

insufficient) and at 16 (“when the intermediate appellate courts determine that the evidence is

sufficient under Jackson v. Virginia but ‘factually insufficient’ under Clewis to support a conviction, and

remand a case for a new trial, they either will have misapplied Clewis (in which case the conviction

should have been affirmed) or they will have failed to appreciate that the evidence is also insufficient

under Jackson v. Virginia (in which case the defendant should have received an acquittal.”) (footnotes

omitted)).

27 See Watson, 204 S.W.3d at 406-07 (acknowledging that early case law never “expressly declared

that factual-sufficiency review, per se, was authorized in criminal cases”) and at 412-14 (also

acknowledging that “factual sufficiency went into hiding in the late Forties and early Fifties” and did not

begin to reveal itself again until 1994 culminating in the 1996 Clewis decision); Watson, 204 S.W.3d at

424-32 (Cochran, J., dissenting) (discussing origins of Texas appellate review of evidentiary sufficiency

and concluding, “Until Clewis in 1996, this Court had consistently used a single standard (although the

precise wording varied) and reviewed the evidence in the light most favorable to the factfinder, giving

great deference to the jury's credibility and weight determinations.”).

28 See Watson, 204 S.W.3d at 412-14; Watson, 204 S.W.3d at 432-33 (Cochran, J., dissenting)

(noting that this Court quickly adopted the Jackson v. Virginia standard “and adhered to that single,

constitutionally mandated standard for seventeen years”).

29 Clewis decided that a direct-appeal court's constitutional and statutory jurisdiction to review

“questions of fact” in criminal cases require a direct-appeal court to apply a factual-sufficiency standard

to the elements of the offense when properly requested to do so by a convicted defendant. See Clewis,

922 S.W.2d at 129 (“ Jackson standard of review does not satisfy a noncapital defendant's right to an

appellate review of fact questions”) and at 129-31 (“When their jurisdiction to review fact questions is

properly invoked, the courts of appeals cannot ignore constitutional and statutory mandates.”); Stone v.

State, 823 S.W.2d 375, 381 (Tex.App.-Austin 1992, pet. ref'd as untimely filed) (stating that it is “duty-

bound to exercise the full extent of the constitutional grant of appellate jurisdiction when requested by

the litigants”).

30 See Watson, 204 S.W.3d at 406-414; Clewis, 922 S.W.2d at 129-31; Clewis, 922 S.W.2d at 136-49

(Clinton, J., concurring); Bigby v. State, 892 S.W.2d at 870-75 (Tex.Cr.App.1994); Watson, 204 S.W.3d at

417-20 (Hervey, J., dissenting); Watson, 204 S.W.3d at 424-40 (Cochran, J., dissenting); Clewis, 922

S.W.2d at 151-55 (McCormick, P.J., dissenting).

31 See Tex. Const. Article V, § 5(a) (providing Texas Court of Criminal Appeals with final appellate

jurisdiction “with such exceptions and under such regulation as may be provided in this Constitution or

as prescribed by law”); Tex. Const. Article V, § 6(a) (providing Courts of Appeals with appellate

jurisdiction “under such restrictions and regulations as may be prescribed by law” and also providing

that “the decision of said courts shall be conclusive on all questions of fact brought before them on

appeal or error”); Bigby v. State, 892 S.W.2d at 871-72 (grant of general appellate jurisdiction authorizes

review of “questions of fact” and “questions of law”); Clewis, 876 S.W.2d at 430 (“general grant of

[appellate] jurisdiction includes the power to review questions of law and fact ”) (emphasis in original).

32 See Watson, 204 S.W.3d at 407, 413-14; Clewis, 922 S.W.2d at 136-149 (Clinton, J., concurring);

Bigby, 892 S.W.2d at 870-75.

33 See Article 36.13 (providing that “[u]nless otherwise provided in this Code, the jury is the

exclusive judge of the facts”); Article 38.04 (providing that “jury, in all cases, is the exclusive judge of the

facts proved, and of the weight to be given the testimony” subject to such exceptions not applicable

here).

34 This is arguably inconsistent with Tex.R.App. Proc. 21.3(h), which permits a trial court to grant a

new trial “when the verdict is contrary to the law and the evidence.” Compare Tibbs, 397 So.2d at 1123

(discussing Florida criminal-procedural rule permitting trial court to grant new trial when the verdict is

“contrary to law or the weight of the evidence”). In addition, in several decisions meant to “clarify”

Clewis, this Court has not been consistent on whether Articles 36.13 and 38.04 apply to the appellate

process. See Watson, 204 S.W.3d at 419 n. 12 (Hervey, J., dissenting) (noting that, in 1996 in Clewis, this

Court stated that these provisions do not apply to the appellate process, but in 1997, in another case,

this Court stated that they do apply to the appellate process, and in 2006, in Watson, this Court stated

that they do not apply to the appellate process). We note that our decision in Lancon recognized that

these provisions do apply to the appellate process when Lancon cited them for the proposition that in a

factual-sufficiency review “the jury is the sole judge of what weight” to give the witness testimony. See

Lancon, 253 S.W.3d at 705 and at 707 (“jury is the sole judge of a witness's credibility, and the weight to

be given the testimony”).

35 It should be noted that this Court has decided that its review of a direct-appeal court's factual-

sufficiency decision is limited by the factual-conclusivity clause to determining only whether the direct-

appeal court properly applied “rules of law.” See Roberts, 221 S.W.3d at 662-63; Bigby, 892 S.W.2d at

872 n. 3. This Court, however, has never decided that the factual-conclusivity clause limits this Court's

jurisdiction to review a direct-appeal court's decision on other “questions of fact” or that it makes a

direct-appeal court's decision on these “questions of fact” conclusive on this Court. See, e.g., Carmouche

v. State, 10 S.W.3d 323, 331-33 (Tex.Cr.App.2000) (this Court overturned direct-appeal court's decision

on “question of fact” regarding factual circumstances under which the police claimed that the defendant

consented to be searched based on a videotape which contradicted the police version of the critical

events). This, of course, is consistent with the plain language of Article 44.25, which states that this

Court and the courts of appeals may reverse a judgment “upon the law as upon the facts,” and with

Section 22.225(a), Tex. Gov't Code, which makes a direct-appeal court's judgment “conclusive on the

facts” only in civil cases. See Clewis, 876 S.W.2d at 430 n. 4 (noting that Article 44.25 confers “upon the

court of criminal appeals the same fact jurisdiction given to the courts of appeals” but declining to

“attribute power to the court of criminal appeals that it has expressly disavowed”); Watson, 204 S.W.3d

at 437 (Cochran, J., dissenting) (“It would appear that, under article 44.25 (and all of its predecessor

statutes), both the courts of appeals and the Court of Criminal Appeals have co-equal jurisdiction to

reverse ‘on the facts' as well as the law.”) and at 439 n. 118. It would appear that the Legislature did not

intend for a direct-appeal court's decision on a “question of fact” in criminal cases to be conclusive on

this Court. See id.; but see Watson, 204 S.W.3d at 412; Bigby, 892 S.W.2d at 872 n. 3.

36 See Watson, 204 S.W.3d at 419-20 (Hervey, J., dissenting); Clewis, 922 S.W.2d at 153-54

(McCormick, P.J., dissenting).

37 See Watson, 204 S.W.3d at 407; Bigby, 892 S.W.2d at 874 n. 5.

38 See Bigby, 892 S.W.2d at 874 n. 5.

39 See Watson, 204 S.W.3d at 419-20 (Hervey, J., dissenting); Clewis, 922 S.W.2d at 153-54

(McCormick, P.J., dissenting).

40 See also Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 295 (Tex.App.-Waco 1997, writ denied)

(when reviewing court reviews factual sufficiency of the evidence in civil cases, “the reviewing court

shall neither interfere with the jury's resolution of conflicts in the evidence nor pass on the weight and

credibility of the witnesses' testimony” because, among other things, the trier of fact has “the

opportunity to observe the demeanor of the witnesses and to weigh their testimony”).

41 We further note that, since our 1996 decision in Clewis, the Texas Supreme Court, expressly

relying on Jackson v. Virginia, modified its traditional appellate standards of “legal” and “factual”

sufficiency in civil cases with a clear-and-convincing-evidence heightened burden of proof while also

noting that the parameters of these standards “differ to some degree from those adopted by the Texas

Court of Criminal Appeals.” See In re J.F.C., 96 S.W.3d 256, 264-67 (Tex.2002); see also Watson, 204

S.W.3d at 445-46 n. 152 (Cochran, J., dissenting) (setting out verbatim these two standards and noting

that “there is barely visible light” between these two standards and wondering “if this two-tier review

will long endure in civil cases where the burden of proof is heightened”). These two standards are

basically a Jackson v. Virginia standard modified to account for the clear-and-convincing-evidence

heightened burden of proof. It, therefore, appears that civil appellate standards of “legal” and “factual”

sufficiency are moving in the direction of essentially a Jackson v. Virginia standard as the burden of

proof at trial increases. See Watson, 204 S.W.3d at 445-46 n.152 (Cochran, J., dissenting).

42 See Clewis, 876 S.W.2d at 429 n. 1 (discussing the “no evidence” and the “factually insufficient

evidence” civil appellate standards of review and the confusion that can occur when “attempting to

refer to ‘legal sufficiency’ in criminal cases”) and at 438-39 (“Although characterized as a ‘legal

sufficiency’ review and a ‘question of law,’ the Jackson standard necessarily encompasses a factual

sufficiency review. If after reviewing the evidence, i.e., the facts, in the light most favorable to the

verdict, a rational trier of fact could not have found the essential elements of the crime beyond a

reasonable doubt, then the sufficiency challenge must be sustained and the defendant acquitted.”)

(emphasis in original); see also Watson, 204 S.W.3d at 437 (Cochran, J., dissenting) (“And, of course,

both this Court and the courts of appeals have the authority to review ‘the facts' as well as the law. If

‘the facts' do not establish every element beyond a reasonable doubt, those ‘facts' require an appellate

court to acquit the defendant under Jackson.”); Clewis, 922 S.W.2d at 157 (McCormick, P.J., dissenting)

(when conviction is reversed under Jackson, it is reversed “upon the law as upon the facts” after the

reviewing court has examined all the evidence, i.e., the facts).

43 It is, therefore, unnecessary in this case to revisit the issue of whether legislative activity in 1981

was meant to insure that direct-appeal courts would defer to the jury's credibility and weight

determinations and not sit as “thirteenth jurors.” See Watson, 204 S.W.3d at 419-20 (Hervey, J.,

dissenting); Clewis, 922 S.W.2d at 153-156 (McCormick, P.J., dissenting).

44 14 Tex.Ct.App. 609 (1883).

45 See Watson, 204 S.W.3d at 407-09; Clewis, 922 S.W.2d at 138-39 (Clinton, J., concurring);

Watson, 204 S.W.3d at 426-28 (Cochran, J., dissenting) (“most important case discussing sufficiency of

the evidence was the court of appeals's 1883 decision in Walker ”).

46 Another case cited in Watson apparently for the proposition that Article 44.25 and its statutory

predecessors require a factual-sufficiency review that permits direct-appeal courts to sit as “thirteenth

jurors” is Green v. State, 97 Tex.Crim. 52, 260 S.W. 195 (1924). See Watson, 204 S.W.3d at 410. Green,

however, is another case that, like Walker, is ambiguous on this point and appears to be really applying

a Jackson v. Virginia standard. See Green, 260 S.W. at 196 (“Though the verdict should not be lightly

annulled it is our duty to set it aside and order another trial when the evidence viewed in its strongest

light from the standpoint of the state, fails to make guilt reasonably certain.”) (emphasis supplied).

47 To the extent that Walker can be read to support this proposition, we note that Walker was

relying on that portion of the statutory predecessor to Article 44.25 that permitted a reversal “for the

reason that the verdict is contrary to the weight of the evidence.” See Walker, 14 Tex.Ct.App. at 629

(emphasis supplied). This, however, is the language that the Legislature deleted in 1981 when the courts

of appeals acquired criminal jurisdiction. See Bigby, 892 S.W.2d at 874 n. 5 (discussing history of Article

44.25 and its statutory predecessors).

48 See Article V, § 5(a) (Court of Criminal Appeals “shall have final appellate jurisdiction coextensive

with the limits of the state, and its determinations shall be final, in all criminal cases of whatever

grade”); Interpretive Commentary to Article V, § 5(a) (“In defining the jurisdiction of the court of

criminal appeals, this section confines its powers to the exercise of appellate jurisdiction in criminal

matters exclusively. It thus has no civil jurisdiction, but it is the court of final jurisdiction in criminal

matters.”).

1 Clewis v. State, 922 S.W.2d 126 (1996).

2 Watson v. State, 204 S.W.3d 404, 421 (Tex.Crim.App.2006) (Cochran, J., dissenting).

3 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

4 Brooks v. State, No. 10-07-00309-CR, 2008 WL 4427266, at *4, 2008 Tex.App. LEXIS 7364, at *12

(Tex.App.-Waco 2008). The majority opinion in the court of appeals noted these additional facts:

(1) both the bag of marihuana and the bag of cocaine were packaged in the same manner; (2)

[appellant] was not in possession of any drug paraphernalia for either use or sale; (3) [the State's DEA

expert] testified that users typically carry some type of heating element, such as a crack pipe, but

dealers do not; (4) at the time of his arrest, [appellant] was not under the influence of a narcotic; (5)

[appellant] has a previous conviction for possession with intent to deliver; (6) [appellant] attempted to

evade capture and discarded contraband in the process; and (7) [appellant] was found in possession of

three different types of drugs. Id. The majority did not analyze the probative value of these facts to

establish appellant's intent or discuss what legitimate inferences, if any, might be drawn from them. It

did not explain why the evidence was legally sufficient when it announced its conclusion.

5 Id. at *5, 2008 Tex.App. LEXIS 7364, at *13. Chief Justice Gray dissented, noting that the majority

failed to acknowledge that there was “more evidence of intent to deliver than merely the amount of

cocaine.” Id. at *7, 2008 Tex.App. LEXIS 7364, at *19 (Gray, C.J., dissenting). He also noted that the

majority did not “detail the evidence and clearly state why the evidence that is legally sufficient is

nevertheless factually insufficient.” Id. at *7, 2008 Tex.App. LEXIS 7364, at *20.

6 Guyton v. State, No. 10-07-00070-CR, 2009 WL 290935, 2009 Tex.App. LEXIS 839 (Tex.App.-Waco,

Feb. 6, 2009, pet.ref'd) (not designated for publication). In Guyton, the court of appeals originally

reversed the conviction due to factual insufficiency, but, once the State filed a PDR, it reconsidered and

held that the evidence was both legally and factually sufficient to support the defendant's conviction for

possession of .40 grams of cocaine with the intent to distribute it. Id. at *3-4, 2009 Tex.App. LEXIS 839,

at *9-13.

7 See Watson, 204 S.W.3d at 426 (Cochran, J., dissenting).

8 State's Petition for Discretionary Review at 9.

9 Appellant's Petition for Discretionary Review at 6. Appellant relies on several analogous federal

cases in which the courts held that the evidence was legally insufficient to support a finding of “intent to

distribute” a controlled substance that the defendant admittedly possessed. In these cases, the

inference of intent to distribute was not a reasonable one given the paucity of circumstantial evidence.

As appellant notes, the legal sufficiency standard of review is that required by the United States

Constitution as set out in Jackson v. Virginia. That same standard is applied in every state and federal

jurisdiction in America. It applies to all criminal convictions regardless of the type or degree of crime.

This application of a single, constitutionally-mandated standard has led to the creation of an enormous

body of “sufficiency of evidence” law and precedent across America that any judge or lawyer may easily

access and apply to any given conviction here in Texas. It is a coherent body of law. It is objective and

intellectually rigorous. It sets out appellate presumptions, permissible inferences, and specific criteria to

use when assessing the legal sufficiency of the evidence. It does not rely upon subjective notions of

“shocking the conscience” of individual appellate judges, striking them as “manifestly unjust,” or

seeming just plain “wrong.”

10 See Watson, 204 S.W.3d at 421-26.

11 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (stating that an appellate reversal for

factually insufficiency, “unlike a reversal based on insufficient evidence, does not mean that acquittal

was the only proper verdict. Instead, the appellate court sits as a ‘thirteenth juror’ and disagrees with

the jury's resolution of the conflicting testimony. This difference of opinion no more signifies acquittal

than does a disagreement among the jurors themselves.... [A]n appellate court's disagreement with the

jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal.”).

12 Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (rejecting its former factual sufficiency review

because “the concern on appeal must be whether, after all conflicts in the evidence and all reasonable

inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial,

competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to

evidentiary weight, is the appropriate concern of an appellate tribunal.”) (footnote omitted).

13 See Watson, 204 S.W.3d at 424-26 (Cochran, J., dissenting) (discussing the history of appellate

review of sufficiency of the evidence in Texas).

14 Id.

15 Id. at 426 (collecting and discussing Texas criminal cases from 1841 forward and concluding,

“Until Clewis in 1996, this Court had consistently used a single standard (although the precise phrasing

varied) and reviewed the evidence in the light most favorable to the factfinder, giving great deference to

the jury's credibility and weight determinations.”).

16 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

17 Id. at 312-13, 99 S.Ct. 2781.

18 362 U.S. 199, 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) (stating that the “ultimate question

presented to us is whether the charges against petitioner were so totally devoid of evidentiary support

as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth

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

conviction rests upon any evidence at all.”).

19 Jackson, 443 U.S. at 314, 99 S.Ct. 2781.

20 Id. The Supreme Court explained that a “no evidence” standard does not “protect against

misapplications of the constitutional standard of reasonable doubt” because a “no evidence” standard is

satisfied by a “mere modicum” of evidence. “But it could not seriously be argued that such a ‘modicum’

of evidence could by itself rationally support a conviction beyond a reasonable doubt.” Id. at 320, 99

S.Ct. 2781. Under a “no evidence” standard, a reviewing court would affirm the judgment if any

evidence supported the conviction. See Gollihar v. State, 46 S.W.3d 243, 246 n. 3 (Tex.Crim.App.2001)

(citing Thompson, 362 U.S. at 199, 80 S.Ct. 624).

21 Id. at 318 n. 9, 99 S.Ct. 2781.

22 Id. at 318-19, 99 S.Ct. 2781 (citation omitted).

23 Id. at 319, 99 S.Ct. 2781.

24 Id.

25 Gollihar v. State, 46 S.W.3d 243, 246 n. 4 (Tex.Crim.App.2001).

26 Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989) (en banc), overruled on other grounds

by Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991).

27 Black's Law Dictionary 1285 (5th ed.1979).

28 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

29 Id. at 368, 90 S.Ct. 1068.

30 Id. at 367-68, 90 S.Ct. 1068 (quoting Dorsen & Resneck, In Re Gault and the Future of Juvenile

Law, 1 Fam. L. Quarterly No. 4, 26-27 (1967)) (rejecting the lower court's suggestion that there is only a “

‘tenuous difference’ ” between the reasonable-doubt and preponderance standards).

31 Id. at 370, 90 S.Ct. 1068 (Harlan, J., concurring).

32 Id. at 371 n. 3, 90 S.Ct. 1068 (citing J. Maguire, Evidence, Common Sense and Common Law 180

(1947)).

33 That does not mean, of course, that every factfinder or every appellate judge need agree that

the evidence in a particular case is legally sufficient. As the Supreme Court explained in Johnson v.

Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972):

In our view disagreement of three jurors does not alone establish reasonable doubt, particularly when

such a heavy majority of the jury, after having considered the dissenters' views, remains convinced of

guilt. That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it

indicate infidelity to the reasonable-doubt standard. Jury verdicts finding guilt beyond a reasonable

doubt are regularly sustained even though the evidence was such that the jury would have been

justified in having a reasonable doubt, even though the trial judge might not have reached the same

conclusion as the jury, and even though appellate judges are closely divided on the issue whether there

was sufficient evidence to support a conviction. Id. at 362-63, 92 S.Ct. 1620 (citations omitted). The

United States Supreme Court trusts juries when they reach a rational verdict even though those same

justices, the individual trial judge, or appellate judges may be closely divided on the issue of whether

they believe there was sufficient evidence to support a conviction.

34 W. Wendall Hall & Mark Emery, The Texas Hold Out: Trends in the Review of Civil and Criminal

Jury Verdicts, 49 S. Tex. L.Rev. 539, 540 (2008).

35 William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69

Tex. L.Rev. 515, 516 (1991).

36 Id. at 525.

37 See id. at 517-18 (discussing and using the concept of “a five zoned spectrum, with the strength

of the proponent's evidence increasing in each successive zone”).

38 One might visualize these five zones as laid out on an imaginary football field, starting from the

left-hand goal line of the party with the burden of proof. Zone 1, the “no evidence” zone, starts at this

goal line and, as the evidence supporting a vital fact or claim steadily increases, the zones march down

the field until zone 5, “conclusive evidence,” which is at the opposing party's goal line. The 50 yard line

would roughly correspond to the line which must be crossed by the party with the burden of proof by

the “preponderance of the evidence,” leaving a “zone of reasonable disagreement” on either side of the

midline.

39 Robert W. Calvert, “ No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361,

363 (1960). Justice Calvert explained the scintilla rule as follows:

[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere

surmise or suspicion of its existence, the evidence is, in legal effect, no evidence, and will not support a

verdict or judgment. The scintilla rule cannot apply when there is direct evidence of a vital fact; it applies

only when the vital fact must be inferred from other relevant facts and circumstances which are proved.

If the inference is not a reasonable one a “no evidence” point should be sustained. It follows that “no

evidence” points based on the scintilla rule require a careful analysis of the facts proved for the purpose

of determining whether the vital fact may be reasonably inferred. Id. (footnotes omitted).

40 Id. at 362-63; see also Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711

(Tex.1997); William V. Dorsaneo, III, et al., Texas Litigation Guide § 146.03[6][e][ii][A] (2007).

41 Havner, 953 S.W.2d at 730. Justice Calvert explained that, in deciding “no evidence” points, the

appellate court views the evidence in the light most favorable to the verdict and considers only that

evidence and inferences that support the verdict while ignoring all evidence and inferences that are

contrary to the verdict. Calvert, 38 Tex. L.Rev. at 364.

42 According to Justice Calvert, “if the evidence supporting the finding is so uncertain, inconsistent,

improbable, or unbelievable that, although constituting some evidence of probative force when

considered in its most favorable light in support of the finding, it would nevertheless be clearly unjust to

permit the judgment to stand.” Calvert, 38 Tex. L.Rev. at 367. Justice Calvert appropriately viewed the

evidence “in its most favorable light in support of the finding” in assessing factual sufficiency; he did not

view it in a “neutral light.” I have found no Texas Supreme Court case that has viewed the evidence “in a

neutral light” when addressing factual sufficiency claims.

43 Justice Calvert explains that, in this zone 2 scenario, the appellate court may not find that the

evidence is “against the great weight and preponderance of the evidence because there is no evidence

of the nonexistence of the fact.” Calvert, 38 Tex. L.Rev. at 366. That is, when reviewing an “insufficient

evidence” point, the appellate court looks only to the evidence that supports the vital fact and

determines that this evidence is simply too meager to support a finding of its existence by a

preponderance of the evidence. Id.

44 See note 49 infra.

45 Id. at 370.

46 Id. (“By producing the evidence on retrial the party has fair assurance that a finding of the

existence of the vital fact will be permitted to stand.”). Strangely, this same rule does not apply for

legally insufficient evidence because “[p]resumptively, at least, all of the evidence available to the

appellee has been introduced.” Id. Justice Calvert did not explain why a party who produced no

evidence of a vital fact at the first trial is not entitled to a second bite at the apple, while a party who

offered some, but factually insufficient, evidence would be able to produce more evidence and thus is

entitled to a second bite at the apple.

47 Id.

48 Texas courts usually use the short-hand term “great weight of the evidence,” but the Texas

Supreme Court occasionally reiterates that it is, in reality, the great weight of the credible evidence that

it is referring to. Quality, not mere quantity, has been its historical determining factor. See, e.g., Dawson

v. St. Louis Expanded Metal Fireproofing Co., 94 Tex. 424, 61 S.W. 118, 119 (1901) (“It was within the

power of [the court of civil appeals] to disregard a finding of fact by the jury if contrary to the great

weight of the credible testimony, and in effect to set aside the finding and to remand the cause, and we

understand them to mean that under the facts as found by them under the evidence, there was no

negligence.”); McDonald v. New York Cent. Mut. Fire Ins. Co., 380 S.W.2d 545, 548 (Tex.1964) (“[T]he

insured does not raise in the Court of Civil Appeals the point of ‘insufficient evidence’ to support the jury

findings or the point that the findings are against ‘the great weight and preponderance’ of the credible

evidence”); Darryl v. Ford Motor Co., 440 S.W.2d 630, 633 (Tex.1969) (“Nowhere in the amended

motion for new trial did the respondent, Ford Motor Company, state that the evidence supporting the

jury answers to any specific special issue was either insufficient or against the great weight of the

credible evidence”); see also In Re G.A.T., 16 S.W.3d 818, 829 (Tex.App.-Houston [14th Dist.] 2000, pet.

denied) (“The evidence shows that the verdict was not contrary to the great weight of the credible

evidence.”); Town & Country Mobile Homes, Inc. v. Bilyeu, 694 S.W.2d 651, 656 (Tex.App.-Fort Worth

1985, no writ) (“In considering an ‘insufficient evidence’ point, we must remain cognizant of the fact

that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to

be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. This Court may

not substitute its judgment for that of the jury if the challenged finding is supported by some evidence

of probative value and is not against the great weight and preponderance of the evidence.”) (citation

omitted).

49 See William Powers, Jr. & Jack Ratliff, 69 Tex. L.Rev. at 518-19 (“When the evidence falls into

zone 2, the proper terminology is that there is ‘insufficient evidence’ or ‘factually insufficient evidence’

to support an affirmative finding. In zone 4, the clearest terminology is that a finding contrary to the

evidence is against the ‘great weight and preponderance of the evidence,’ although this terminology is

occasionally (and we think confusingly) used to refer to evidence in zone 2. Despite the differences

between zones 2 and 4, attacks on jury findings in these zones are usually called ‘factual sufficiency’

points. The preferred terminology has the proponent [the party with the burden of proof] claim that an

unfavorable (negative) finding should be set aside because it is ‘contrary to the great weight and

preponderance of the evidence,’ and has the opponent [the party without the burden of proof] claim

that an unfavorable (affirmative) finding was based on ‘insufficient evidence.’ ”) (footnotes omitted);

see also Dorsaneo, Texas Litigation Guide § 146.03[6][e][ii][C] (“A party who attacks the factual

sufficiency of an adverse finding on an issue on which the party has the burden of proof must

demonstrate on appeal that the adverse finding is against the great weight and preponderance of the

evidence.”).

50 See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) ( “In order that this court may in the

future determine if a correct standard of review of factual insufficiency points has been utilized, courts

of appeals, when reversing on insufficiency grounds, should, in their opinions, detail the evidence

relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient or is

so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience;

or clearly demonstrates bias. Further, those courts, in their opinions, should state in what regard the

contrary evidence greatly outweighs the evidence in support of the verdict. It is only in this way that we

will be able to determine if the requirements of In Re King's Estate [244 S.W.2d 660 (Tex.1951)], have

been satisfied.”).

51 168 S.W.3d 802 (Tex.2005).

52 Id. at 827.

53 See id. at 818-21.

54 Id. at 822 (footnote omitted). In City of Keller, the Supreme Court also described three kinds of

evidence that must be disregarded when conducting a legal sufficiency analysis: (1) credibility evidence;

(2) conflicting evidence; and (3) conflicting inferences. Id. at 819-22. Thus, witness credibility in civil

cases, as in criminal cases, is solely the prerogative of the factfinder. An appellate court may not

discount a witness's testimony as being, in its view, less credible than another witness's. Furthermore,

the appellate court may not choose between two conflicting inferences if the evidence would

reasonably support either one. “It is widely recognized that one of the most important attributes of the

right to jury trial is the ability of juries to draw, from circumstantial evidence, inferences that cannot be

set aside or second-guessed by reviewing courts merely because the reviewers would have reached a

different factual conclusion.” William V. Dorsaneo, III, Changing the Balance of Power: Juries, the Courts,

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