Mireles v. State

BAIRD, Judge,

concurring.

The narrow issue presented is whether the evidence is sufficient to establish that the charged offense occurred on or about December 15, 1990. Because the jury was not given the legal definition of “on or about,” the Court of Appeals reviewed the evidence using the ordinary, commonly understood meaning of that phrase. In that light, the Court of Appeals reviewed the record and found the evidence insufficient. Mireles v. State, 878 S.W.2d 245, 247 (Tex.App.—Corpus Christi 1994). The plurality disagrees. Ante, pg. 460. While I agree the evidence is sufficient, I write separately to address the larger and more troubling practice that a majority of this Court routinely undertakes, namely, reviewing factual determinations when asked to do so by the State but refusing to do so when asked by defendants. This practice is patently unfair and in direct conflict with Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1992).

I.

In Arcila , the defendant contended his consent to search his home was involuntary. 1 The Court of Appeals disagreed. Arcila v. State, 788 S.W.2d 587 (Tex.App.—Dallas 1990). Without considering the correctness of that decision, we announced a broad policy *462 of deference to the courts of appeals. Arcila, 834 S.W.2d at 360 . We held all factual questions should be answered by the Courts of Appeals:

... [T]he question for this Court on discretionary review is not whether the Court of Appeals was correct, as an empirical matter, but whether it fairly evaluated the voluntariness of appellant’s consent, using the correct legal standard, considering all relevant evidence in the record, and affording proper deference to the trial judge as primary factfinder.

Id, 834 S.W.2d at 360 . We did so because, as the majority declared, “[o]ur principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications.” Ibid. This broad policy of deference was to be followed even when a majority of the Court disagreed with the lower court’s resolution of a factual question. 2 Ibid.

While the Arcila policy of deference works well in theory, its practical application is another matter. Whether we adhere to the policy depends on whose ox is being gored; we ignore Arcila when the State seeks relief and we utilize it to deny relief to defendants. See e.g., Delrio v. State, 840 S.W.2d 443 (Tex.Cr.App.1992) (Court re-examined the Court of Appeal’s determination that trial counsel was ineffective). As one member of this Court observed:

... We seem to grant a disproportionately high number of State’s petitions for discretionary review to review decisions of the courts of appeals holding the evidence to be legally insufficient, and for no other reason than that we disagree with the lower court’s particular application of the law to the facts.

Criner v. State, 860 S.W.2d 84, 88 (Tex.Cr.App.1992) (Clinton, J., dissenting).

Our inconsistent treatment of parties has not gone unnoticed in our courts of appeals; Justice Burgess opined:

... [T]he court of criminal appeals is simply playing lip service to its opinions in Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992) and Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App.1990). Either the courts of appeals are the final arbiters of fact questions or they are not; Arcila and Meraz say they are; Criner erodes that position.... Under the majority opinion in Criner , when the court of criminal appeals agrees with the court of appeals, [the courts of appeals are the final arbiters of fact questions]; when the court of criminal appeals disagrees "with the lower court, [the courts of appeals are not].

Wawrykow v. State, 866 S.W.2d 87, 91 (Tex.App.—Beaumont 1993) (Burgess, J., dissenting). It is clear from the foregoing eases that, in application, Arcila has become nothing more than a disingenuous attempt by a majority of this Court to provide one-sided relief to the State.

II.

In the instant case the plurality rushes to rescue the State, once again employing the now famous Arcila sidestep. The plurality holds the Court of Appeals’ analysis “cannot be said to be ‘thorough,’ ” because it failed to cite Abston v. State, 158 Tex.Crim. 88 , 253 S.W.2d 41 (App.1952); Ellis v. State, 318 S.W.2d 655 (Tex.Cr.App.1958); and, Scates v. State, 161 Tex.Crim. 114 , 274 S.W.2d 833 (App.1955). Ante, 901 S.W.2d at 459, 460. However, those cases are not controlling; they do not involve a sufficiency review. 3 *463 Moreover, if the plurality truly believed Ab-ston, Ellis, and Scales were controlling, this case should be remanded to the Court of Appeals for re-consideration in light of those cases. Thomason v. State, 892 S.W.2d 8 (Tex.Cr.App.1994); and, State v. Mayorga, 901 S.W.2d 948 (Tex.Cr.App.1995).

Realizing that remanding the case would not accomplish the desired result of ruling for the State, the plurality conducts a de novo factual review and holds the evidence sufficient to show appellant committed this offense on December 25, 1990. 4 Ante, 901 S.W.2d at 460. This factual recitation conflicts with the Court of Appeals’ factual determination 5 and sub silentio overrules Arci-la. The plurality rejects the Court of Appeals’ factual recitation, not because that Court’s review was incomplete, but because the Court of Appeals did not reach the result desired by the majority.

III.

I dissented in Arcila because I believe we hold a greater responsibility than being mere “caretakers” of the law. Arcila, 834 S.W.2d at 363 (Baird, J., dissenting). We have a duty to reverse a decision of the court of appeals when we find either a factual misrepresentation or a misrepresentation of legal precedent. Delrio, 840 S.W.2d at 449 (Baird, J., dissenting). In these rare situations, our review of factual determinations should be limited to cases where the decision of the court of appeals was clearly erroneous; we should not undertake a review simply to ensure a State’s victory. In the instant case, the Court of Appeals’ factual determination was clearly erroneous because the only date mentioned in the entire statement of facts is December 15, 1990, the date alleged in the indictment. Consequently, it would be irrational to conclude that the evidence is insufficient to support the conviction.

IV.

The plurality opinion dramatically illustrates that this Court routinely fails to discharge its duty to fairly and impartially resolve the issues before us. I refuse to join the sophistry of the plurality opinion, and join only the judgment of the Court.

. The evidence indicated Arcila's consent was obtained as his home was surrounded by a dozen policemen and six patrol vehicles, while a police helicopter hovered overhead.

. The majority stated, "[W]e would not be at all surprised to find that appellant's consent was actually involuntary in this case ...” Arcila, 834 S.W.2d at 360 .

. These cases only mention "on or about” and in doing so, state the legal definition. As noted earlier, the jury was not instructed on the legal definition. Consequently, the Court of Appeals was correct not to cite or rely on these in the instant case. For the plurality to do so now is an admission that they have not bothered to read them. Scates dealt with the presumption of regularity when there is no statement of facts. 274 S.W.2d at 834 . Ellis dealt with a plea of former jeopardy. 318 S.W.2d at 656 . Abston dealt with whether a conviction for possession of whiskey was precluded when the defendant had been convicted of selling the whiskey. 253 S.W.2d at 43 . Indeed, the issue for which the plurality relies upon Abston for was not even preserved for appellate review. Ibid.

In its final attempt to bolster its position, the plurality resorts to statements made by the State during voir dire and final argument. Ante, at *463 460. However, the United States Supreme Court has held, "arguments of counsel cannot substitute for instructions by the court.” Taylor v. Kentucky, 436 U.S. 478, 488-489 , 98 S.Ct. 1930, 1936 , 56 L.Ed.2d 468 (1978).

. The majority holds:

... A rational jury could conclude ... that December 25, 1990, is 'on or about’ December 15, 1990, and thus there was sufficient evidence for a rational jury to convict appellant for Ae commission of Ae offense charged ‘on or about' December 15, 1990.

Ante, 901 S.W.2d at 460.

. The Court of Appeals held:

... Apart from stating Aat Ae abuse began when she was seven and continued for five years, Ae child never indicated when Ae various specific sexual contacts occurred.

Mireles, 878 S.W.2d at 247 .