Butler v. State

CLINTON, Justice,

concurring.

In the opinion of the Court Judge Miller reprises the “critical inquiry” the Supreme Court held a federal habeas court has a duty to make on reviewing sufficiency of evidence to support a criminal conviction obtained in a state court. Opinion, at 237 - 239. That is, of course, the standard of review it pronounced as “the constitutional minimum” in Jackson v. Virginia, 443 U.S. 307, at 318-319 , 99 S.Ct. 2781, at 2788-2789 , 61 L.Ed.2d 560 (1979). Without being compelled by the supremacy doctrine to do so, this Court chose to adopt that standard for state appellate courts in reviewing sufficiency of circumstantial as well as direct evidence on appeal. 1

That we deliberately adhered to a traditional analytical formulation for examining one kind of evidence in applying a newly adopted standard of review — one the Court was not obliged to accept in the first place —was to recognize there are no better guidelines than “those we currently employ” for that purpose, e.g., Carisen, at 450, and Wilson, at 472. We were not then and are not now being “disturbingly selective;” rather, the Court retained a large body of law, well known to bench and bar, to guide appellate review by fourteen courts of appeals. If not its duty, such is its patent prerogative. 2

*243 We need not reject what the Supreme Court “denounces” for its own reasons of practice. Federal courts instruct the jury on meaning of reasonable doubt. Holland v. United States, 348 U.S. 121, 139-141 , 75 S.Ct. 127, 137-138 , 99 L.Ed. 150 (1954). The law of this State does not mandate that jurors be given a definition of reasonable doubt.

A majority of this Court abolished the requirement of a circumstantial evidence charge but refused to require trial courts to define reasonable doubt. Hankins v. State, 646 S.W.2d 191 , 197ff (Tex.Cr.App.1981) (Opinions on State’s Motion for Rehearing delivered March 1, 1983). Thereafter, while agreeing with the State’s suggestion that the “standard for appellate review” is the same for direct and circumstantial evidence cases, with Hankins in mind this Court maintained the “reasonable hypothesis” analysis for applying that standard. We agreed that “if there is a ‘reasonable hypotheses’ other than guilt of the accused, then it cannot be said that the guilt has been shown ‘beyond a reasonable doubt.’” McCormick, J., concurring in Carlsen, et al., supra, delivered July 20, 1983.

Therefore, if Moreno “decided that any amount of evidence constituting more than a ‘mere modicum’ to support the jury’s verdict will suffice,” White, J., concurring herein, at 244, then it is Moreno rather than the opinion of the Court in this cause that “sees fit to selectively adhere to certain convenient aspects of Jackson [v. Virginia], supra ...,” id., at 244.

With those observations, I join the opinion of the Court.

. Pointedly we made the decision in a quartet of cases in which conviction depended on circumstantial evidence, viz: Carlsen v. State, 654 S.W. 2d 444 , 448ff; Freeman v. State, 654 S.W.2d 450 , at 455ff; Denby v. State, 654 S.W.2d 457 , at 463ff; Wilson v. State, 654 S.W.2d 465 , at 470ff (Tex.Cr.App.1983) (Opinions on Rehearing).

Forever the Court has tested sufficiency of circumstantial evidence under a rubric of "the utilitarian 'exclusion of outstanding hypotheses’ analysis,” and we found no reason to abandon it for "applying" the Jackson v. Virginia standard of review in such a case. Carisen, at 449; Freeman, at 456; Denby, at 464; Wilson, at 471; each concurring opinion agreed, 654 S.W.2d at 450, at 457, at 465 and at 472 (all emphasis is mine throughout this opinion unless otherwise indicated).

. As Judge White sees the opinion of the Court, it "ignores the most important aspect of Moreno [v. State, 755 S.W.2d 866 (Tex.Cr.App.1988) viz: "the discussion of the actual degree of evidence necessary to support the jury’s verdict." Concurring opinion, at 244. The problem in Moreno is its admonition that “a verdict must stand unless it is found to be irrational or unsupported by a more than a 'mere modicum’ of evidence....” Id., at 867 .

First of all, read literally the statement means "unless the verdict is either irrational or unsupported by more than a mere modicum of evidence." On that account alone the discussion hardly describes an “actual degree of evidence."

More importantly, the "mere modicum” term was used by the Supreme Court to point out that its "no evidence" doctrine failed to provide “a workable or even predictable standard." Jackson v. Virginia, supra, 443 U.S. at 320 , 99 S.Ct., at 2789-2790 . In making its point the Supreme Court did not there suggest that the inquiry it mandated is complete when slightly "more than a mere modicum" is found in the record evi *243 dence. To the contrary, in note 12 it had already alluded to degrees of more substantial evidence. See, e.g., Moreno, supra, at 871 (Clinton, J., concurring; Nevarez v. State, 767 S.W.2d 766 (Tex.Cr.App.1989). (Clinton, J., dissenting).

Indeed, when it came to apply the "rational factfinder" standard of review to the contested issue of specific intent to kill, without in any way indicating its quest was for “more than a mere modicum" the Supreme Court first examined all germane evidence presented by the prosecution, and concluded:

"... From these uncontradicted circumstances, a rational factfinder readily could have inferred beyond a reasonable doubt that the petitioner, notwithstanding evidence that he had been drinking on the day of the killing, did have the capacity to form and had in fact formed an intent to kill the victim."

Id., 443 U.S. at 325 , 99 S.Ct., at 2792 . Concerning his claim of selfdefense, the Supreme Court said it was evident from the record "that the trial judge found this story, including the petitioner’s belated contention that he had been so intoxicated as to be incapable of premeditation, incredible.” Ibid. That ended its analysis of evidence, and after again rejecting a reasonable hypothesis theory the Supreme Court held a rational trier of fact could have reasonably found petitioner committed murder as alleged. Id., at 326 , 99 S.Ct., at 2792-2793 .