King v. State

MEYERS, Judge,

dissenting.

Because jurisdiction is fundamental, appellate courts are obliged to assure that they have jurisdiction of a case before proceeding to adjudicate it, whether prompted by the parties to do so or not. If it appears to the court that it does not have jurisdiction, then it may not consider the merits of the appeal, but must dismiss the case without further elaboration. Primrose v. State, 725 S.W.2d 254 (Tex.Crim.App.1987); Jacolos v. State, 692 S.W.2d 724 (Tex.Crim.App.1985); Thompson v. State, 626 S.W.2d 750 (Tex.Crim.App.1981); McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981); Welch v. McDougal, 876 S.W.2d 218, 220 (Tex.App.—Amarillo 1994); Fandey v. Lee, 876 S.W.2d 458, 459 (Tex.App.—El Paso 1994); H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 679 (Tex.App.—Corpus Christi 1991).

We do not have jurisdiction of this case. * It is the law in this State that “deeision[s] of [the courts of appeals] shall be conclusive on all question of fact brought before them on appeal or error.” Tex. Const, art. V, § 6. Before 1981, this so-called “factual conelusivity” clause was irrelevant to the jurisdiction of this Court, since we did not review decisions of the courts of appeals at all. Rather, we addressed evidentiary issues only on direct appeal of criminal convictions and, at least in the years immediately preceding the advent of discretionary review, generally set aside a factfinding of the trial judge or jury only if there was no evidence of probative value to support it. Although this Court often described evidence as insufficient under such circumstances, it was usually clear that the standard employed was one of legal sufficiency, or no evidence, and not a factual sufficiency review, such as was common in the courts of civil appeals. See Gold v. State, 736 S.W.2d 685, 697 (Tex.Crim.App.1987) (Teague, J., dissenting).

This perspective not only simplified the appellate process, but was wholly consistent with the requirements of due process in criminal cases. Thompson v. Louisville, 362 U.S. 199 , 80 S.Ct. 624 , 4 L.Ed.2d 654 (1960). In 1979, however, the United States Supreme Court decided that the “no evidence rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt,” and expressly abandoned it in favor of the rule that criminal convictions violate due process of law unless supported by “sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 312-13 , 99 S.Ct. 2781, 2785-86 , 61 L.Ed.2d 560 (internal quotation marks omitted).

For many years after Jackson , and in spite of its clear holding to the contrary, this Court continued to insist that a judgment of conviction should be “sustained if there is any evidence which, if believed, shows the guilt of the accused.” Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982), quoting from Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974) (emphasis added). Eventually, we realized that this method was mistaken and expressly repudiated it.

Adherence to the no evidence standard is now, and has been for the last decade, expressly forbidden by Jackson . It is no *710 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. Therefore, we expressly overrule that part of Combs , that relied upon the no evidence language quoted from Banks [.]

Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).

Nowadays, when we are called upon to determine whether evidence adduced at trial is sufficient to support a conviction under the test enunciated by the United States Supreme Court in Jackson , we no longer affirm the conviction upon a finding that there is any evidence in the record to support it. In short, we now officially accept that the kind of appellate review which we routinely perform in evaluating the sufficiency of evidence is not governed by a no-evidence standard.

It follows from this that a reviewing court cannot avoid assessing the weight and credibility of evidence adduced at trial, not to reach a subjective judgment of its implications, but to determine whether a known subjective judgment of the institutional factfinder was rational. This constitutes appellate review of the facts.

Gold, 736 S.W.2d at 693 (Teague, J., dissenting).

In spite of this belated realization, we have yet failed to appreciate its effect upon the appellate relationship between this Court and the courts of appeals. This is particularly surprising given our recent acknowledgement, after years of irrational resistance, that the “factual conclusivity” clause applies to the appellate review of criminal convictions just as it does to the appellate review of civil judgments. Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App.1990). In both contexts the distinction between law and fact precisely defines those questions upon which decisions of the intermediate appellate courts are final. Questions of fact, if reviewable by the courts of appeals at all, are reviewable only by those courts. Questions of law are ultimately reviewable by the Texas Supreme Court in civil cases and by this Court in criminal cases. Accordingly, whether this Court has authority to address an issue on discretionary review depends essentially upon whether the issue is one of fact or of law.

When it comes to the review of evidence on appeal, it has long been held by the Texas Supreme Court that evidence is insufficient as a matter of law to support an affirmative finding of an issue only when the record contains no evidence whatsoever tending to prove that issue. In short, legal insufficiency is determined solely by application of the no-evidence standard.

Electric Express & Baggage Co. v. Ablon, 110 Tex. 235 , 218 S.W. 1030 (1920), is an early opinion illustrating this proposition. There the Texas Supreme Court was called upon to review the decision of a court of appeals reversing the judgment of a district court and remanding for a new trial because the evidence was insufficient to support the jury’s finding upon an issue of contributory negligence. Although urged to hold that the question of sufficiency had been waived by appellant’s acquiescence in the submission of a jury issue at trial, the Supreme Court nevertheless declined to disturb' the lower appellate court’s decision. Its explanation, based upon propositions of law which were considered well-settled even in 1920, sets out rudimentary principles of evidentiary review which are now fundamental to the appellate relationship between this Court and the Texas courts of appeals.

Whether there is any evidence in support of a finding or verdict of the jury is, purely and simply, a question of law. But, where there is some evidence to support a finding or verdict of the jury, the question whether it is sufficient, in the estimation of the trial court or the Court of Civil Appeals, to support such a finding or verdict, is a question of fact, and not one of law. [citations omitted]

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Moreover, when, as in this case, the decision and judgment of the Court of Civil Appeals upon the facts no [sic] not turn upon a question purely of law, they are final, in the sense that they are not subject to review by this Court.

Ablon, 213 S.W. at 1031-32 (emphasis in original).

*711 This method of distinguishing between questions of law and questions of fact for purposes of appellate review is so firmly settled in the jurisprudence of Texas that it has not been subject to serious debate in the courts for nearly a hundred years. At least as early as 1898, our Supreme Court established that any appellate evaluation of evi-dentiary sufficiency not employing the no-evidence standard presents a question of fact under the Texas Constitution. Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406 , 44 S.W. 69 (1898). The Court has adhered to this position ever since, although there has been considerable disagreement in recent years about nuances of the review process itself. E.g., In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660 (1951); Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646 (Tex.1988); Lofton v. Texas Brine Corp., 777 S.W.2d 384 (Tex.1989). See also Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Tex.L.Rev. 361 (1960). Nevertheless, application of these basic precepts has been remarkably consistent in the courts of appeals. As one such court recently wrote:

When reviewing a legal sufficiency challenge, we consider only the evidence and inferences that supported the challenged jury finding, and disregard all contrary evidence and inferences. If there is any evidence of probative force to support the finding, the point of error must be overruled and the finding upheld.

In reviewing the record for factual sufficiency, this Court must examine all the evidence, and, having considered and weighed all of the evidence, should set aside the verdict only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

Virani v. Syal, 836 S.W.2d 749, 750-51 (Tex.App.—Houston [1st Dist.] 1992) (citations omitted).

The latter standard is strikingly analogous to that prescribed by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). In both instances, the issue is not whether any evidence can be found to support the verdict, but whether the “evidence is so weak ... that it [would be] clearly wrong and unjust” to uphold the verdict. As the Supreme Court emphasized in Jackson ,

A mere modicum of evidence may satisfy a no evidence standard. Any evidence that is relevant — that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence — could be deemed a mere modicum. But it could not seriously be argued that such a modicum of evidence could itself rationally support a conviction beyond a reasonable doubt.

443 U.S. at 320 , 99 S.Ct. at 2789 (internal quotation marks, citations, and ellipses omitted).

Our own case law most clearly recognizes this distinction when it comes to applications for habeas corpus relief, where we routinely refuse to entertain sufficiency claims but willingly take cognizance of no-evidence complaints. Ex parte McLain, 869 S.W.2d 349 (Tex.Crim.App.1994); Ex parte Williams, 703 S.W.2d 674 (Tex.Crim.App.1986). Yet it is our habit virtually to ignore this difference in the day-to-day exercise of our discretionary review function. And it is not simply that no one has yet raised the issue. Every court has an obligation to notice on its own whether a pending case falls within its jurisdiction and to dismiss those which do not. Even if this were not so, it is at least clear from our case law that the problem was recognized by this Court as recently as 1990 in Arcila v. State, 834 S.W.2d 357 , 360 n. 2 (Tex.Crim.App.1992), which opinion specifically reserved the question whether we had authority to review decisions of the intermediate appellate courts on questions involving the sufficiency of evidence.

It is well past the time we should have addressed this issue squarely. The sufficiency of evidence to support conviction is, as the Texas Supreme Court and courts of appeals have repeatedly held, always a question of fact for purposes of Texas constitutional law. The same is true whether the standard of review is that required by the Due Process Clause of the United States Constitution or an analogous model imposed by the decisional law of Texas courts. So long as the appli *712 cable criterion is not legal sufficiency, or no-evidence, the courts of appeals are the final arbiters of evidentiary sufficiency in the State of Texas.

By ignoring this jurisdictional impediment in the discharge of our discretionary review function, we imperil indefinitely the finality of convictions in which we have reversed the decision of an intermediate appellate court holding the evidence insufficient to sustain conviction. We should have learned this lesson recently in Ex parte Schuessler, 846 S.W.2d 850 (Tex.Crim.App.1993), where, in a post-conviction habeas corpus proceeding, we were constrained to declare one of our own final judgments to be void upon just such a basis. Like considerations, of course, attend our review of lower court decisions holding the evidence of guilt to be constitutionally sufficient for conviction.

The instant cause is a good example. The Fourteenth Court of Appeals in Houston affirmed the judgment of conviction because it found the evidence to be constitutionally sufficient for a rational conclusion that appellant knew the substance he possessed was cocaine. King v. State, 857 S.W.2d 718 (Tex.App.—Houston [14th Dist.] 1993). As usual, without pausing to consider whether the Texas Constitution permits further appellate review of such a conclusion, this Court unabashedly declares that “[w]e granted appellant’s petition for discretionary review [to determine whether] ... [t]here was insufficient evidence that appellant knowingly possessed a controlled substance.” Maj. Op. at 702. The Court then proceeds to review the evidence, concluding that “any rational trier of fact could have found that the State proved the essential elements of the offense beyond reasonable doubt, that is, that appellant knowingly possessed cocaine.” Maj. Op. at 704.

With all due respect to my learned colleagues, it is apparent that they are not reviewing the decision of the Court of Appeals upon any point of law. Instead, it is plain they are simply redoing a sufficiency analysis already done by the lower court that the evidence of appellant’s guilty knowledge was strong enough or persuasive enough to justify a criminal conviction. Because of their obvious eagerness to have the last word on this subject, they have again overlooked the fact that they have no lawful power to review the Court of Appeals on a question of fact. After thirteen years of misdirection, we should finally put the matter right. Perhaps it is not too late to confess that the Emperor has no clothes, even though he has been parading about naked for a very long time.

Appellant’s petition for discretionary review should be dismissed for want of jurisdiction.

Judge Clinton evidently recognizes that there is a jurisdictional problem here. Consequently, he is eager to claim that the Court’s opinion "implicitly concludes] as a matter of law that the State need not establish "visibility” of powdery cocaine itself to enable the jury to find “knowing possession” of that controlled substance[.]” Op. at 706. Certainly, as an empirical matter, visibility need not be established to prove knowing possession. But I do not understand what Judge Clinton means when he says that the Court reached this conclusion "as a matter of law” unless it is his position that factfindings become matters of law whenever a court makes them. We granted appellant's petition for discretionary review in this case to decide whether "there was sufficient evidence that appellant possessed a controlled substance[,]” Court's Op. at 702, not to debate whether "visibility” is an element of cocaine possession under the Controlled Substances Act. If such an argument were actually involved here, I would join Judge Clinton's opinion, of course. But no one has ever contended, nor would anyone ever contend, that "visibility” is a statutory element of the offense. Accordingly, no questions of law are presented by appellant's petition and, Judge Clinton to the contrary notwithstanding, none have been resolved by the Court.