explaining that in conducting factual-sufficiency review, appellate court’s admission “that reasonable minds could differ about the conclusion to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury findings has occurred. This was clearly error.”
How later courts described this case
- explaining that in conducting factual-sufficiency review, appellate court’s admission “that reasonable minds could differ about the conclusion to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury findings has occurred. This was clearly error.”
- noting that factual sufficiency review allows appellate court judges "to usurp the jury function. It is allowing them to substitute their own thought processes for those of the jury. Any distinction between appellate judges weighing the evidence and appellate judges determining fact questions as would a jury is a distinction that exists in semantics only and not in reality”
- noting that factual sufficiency review allows appellate court judges Ato usurp the jury function. It is allowing them to substitute their own thought processes for those of the jury. Any distinction between appellate judges weighing the evidence and appellate judges determining fact questions as would a jury is a distinction that exists in semantics only and not in reality@
- reversing court of appeals=s decision on factual sufficiency and noting that A[t]he admission by the court of appeals that reasonable minds could differ about the conclusions to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury findings has occurred. This is clearly error@
Written by the judges who cited it.
The opinion
MAUZY, Justice,
dissenting.
The parties in this case had a jury trial with only one issue submitted. In its answer to the issue, the jury refused to find from a preponderance of the evidence that Dorothy Herbert substantially complied with the duties and obligations required of her in a property settlement agreement. Accordingly, the trial judge followed the jury verdict and rendered a take-nothing judgment against Dorothy Herbert. The court of appeals reversed, essentially holding that the jury “finding” was against the great weight and preponderance of the evidence. The court stated its conclusion as follows:
While there clearly was some evidence that [Dorothy] did not substantially comply with the duties and responsibilities incumbent upon her under the divorce decree, sufficient to warrant the submission of the issue to the jury, we find that the evidence does not establish that appellant failed to substantially comply with the duties and obligations required of her under the property settlement agreement/judgment. Although reasonable minds could differ about the conclusion to be drawn from the evidence, we find that the elements of substantial compliance ... were established by the evidence. (Emphasis added.)
This type of reasoning pushes the power of the courts of appeals too far and usurps the jury’s function. The court of appeals recognized that reasonable minds may dif *147 fer, but nevertheless concluded that the jury was wrong. This is a clear instance of a court of appeals simply substituting its own thought processes for those of the jury.
Article V, section 6 of the Texas Constitution provides that the decision of the courts of appeals “shall be conclusive on all questions of fact brought before them on appeal or error.” This court has long grappled with this provision as we have tried to construe it so as to avoid any abridgement of the right of trial by jury. See, e.g., Choate v. San Antonio & A.P. Railway Co., 91 Tex. 406 , 44 S.W. 69 (1898); In Re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986).
We have tried hard and the reality is that we have simply failed. This constitutional provision cannot be harmonized with the constitutional guarantee that the right of trial by jury “shall remain inviolate.” TEX. CONST, art. I, § 15. To continue to try and reconcile these two provisions is to spout mere semantics.
Historically, we have attached labels such as “factual sufficiency” and “great weight and preponderance” to the court of appeals’ review of the evidence. These long-used labels have lulled us into accepting this power as legitimate. However, we have been nagged by doubt about the process of appellate factual review; and in recent years we have more and more frequently wrestled with the question of how to confine this power to its proper parameters. See, e.g. Garwood, “The Question of Insufficient Evidence on Appeal,” 30 Tex.L. Rev. 803, 812 (1952); Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985) (Robertson, J., concurring); Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex.1986).
Sooner or later, we must simply admit that permitting appellate judges to engage in a process of weighing all the evidence is in reality allowing those judges to usurp the jury function. It is allowing them to substitute their own thought processes for those of the jury. Any distinction between appellate judges weighing the evidence and appellate judges determining fact questions as would a jury is a distinction that exists in semantics only and not in reality. See Dyson, 692 S.W.2d at 459 (Robertson, J., concurring).
This case, in particular, makes all too apparent the extent to which the right of trial by jury can be violated under the rubric of factual sufficiency review. If the evidence in a case is such that reasonable minds could differ, then the jury is the proper body to decide what facts are or are not proved. Part of the proof in a case includes the witnesses themselves, their demeanor, their voice modulation, and the gut feeling they project to the jurors. These are aspects of a case to which an appellate judge has no access.
The right of trial by jury is fundamental to our entire system of jurisprudence. 1 The language of article I, section 15 is particularly clear and unambiguous: “the right of trial by jury shall remain inviolate.” By contrast, the language of article V, section 6 is nebulous and indeterminate. We have struggled long enough to read some meaning into it. Our own repeated attempts at interpretation have led to nothing less than an unconstitutional practice.
“Inviolate” is a strong word. Webster’s New International Dictionary (2d ed. 1960) defines “inviolate” as “unimpaired” or “un-profaned.” Other dictionaries define it as “sacred” or “pure.” Less than three months ago, this court expressly recognized the inherent sanctity of the right of trial by jury as guaranteed under the Texas Constitution. Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601 (Tex.1988). Now, however, the court merely pays lip service to this sacred right. Talk is cheap. It is time for the court to show courage and restore the right of trial by jury to its proper constitutionally established role in the Texas legal system.
Our long practice of permitting courts of appeals to reweigh the evidence has rendered idle and nugatory the word “inviolate” in article I, section 15. I now conclude that we are simply unable to construe article V, section 6 in any reasonable manner that, when put into practice, does not do violence to the right of trial by jury.
We have not succeeded in harmonizing these two constitutional provisions; we have never succeeded in harmonizing them. Instead, we have for years resolved the conflict by effectively striking the word *148 “inviolate” from article I, section 15. I would now choose to acknowledge the conflict between these two provisions and to give effect to the one whose language is strong and clear. The sanctity of the right to jury trial should be restored. The intended meaning of article V, section 6 is unknown; our own repeated efforts to give it meaning have resulted in an unconstitutional practice. I would let the troublesome provision of article Y, section 6 sit shrouded in mystery and would now abolish the practice perpetuated by this court of letting courts of appeals reweigh the evidence. I would reverse the judgment of the court of appeals and affirm that of the trial court.
RAY, J., joins in this dissent.
. The right of trial by jury is not only set forth in article I, section 15 of the Texas Constitution, but also in article V, section 10.