Clewis v. State

CLINTON, Judge,

concurring.

The Court is squarely presented with the compelling questions of whether a court of appeals is empowered to determine “factual sufficiency” of the evidence of one or more elements of an offense to sustain a conviction in a criminal case less than capital with the death penalty assessed; if so, what is the proper standard of review. See Clewis v. State, 876 S.W.2d 428, at 430-431 (Tex.App.—Dallas 1994). 1 Holding with Trench that “[t]he present is only intelligible in light of the past,” I propose to track evolution of appellate judicial power in this jurisdiction, and then apply that which is made intelligible to the present. 2

*137 I

A

The Constitution of Republic of Texas vested “the judicial powers of government” in a Supreme Court and such “inferior courts” as the Congress may establish. The Supreme Court was empowered with “appellate jurisdiction only, which shall be conclusive, within the limits of the Republic[.]” Id., Article IV, §§ 1 and 8; 3 Vernon’s Ann.Tex. Const. 482, at 486 (1993).

The Supreme Court soon determined that as a court functioning under a constitutional grant of general “appellate jurisdiction” it had the power to review both questions of fact and of law, subject only to the restriction that right to trial by jury remain inviolate. Bailey v. Haddy, Dallam 376, at 378 (1841). In Republic of Texas v. Smith, Dallam 407, at 410-411 (1841), the Supreme Court declared that in criminal prosecutions it could revise the judgment upon facts as well as law, at the option of appellant. 3 Accord: Bishop v. The State, 43 Tex. 390, at 400 (1875) (as quoted in Bigby, 892 S.W.2d 864, at 872 (Tex.Cr.App.1994). Until the 1891 constitutional amendments the court continued to reaffirm and exercise its power to review and reverse jury verdicts on factual issues. See cases collected in Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, at 648-649 (Tex.1988). The court summarized the nature of its power and duty to do so in Missouri Pac. Ry. Co. v. Somers, 78 Tex. 439 , 14 S.W. 779 (1890), viz:

“... Although this court has the power to review a case upon the facts, and to set aside a verdict which has evidence to support it, that power has been reluctantly exercised. But it is the right and duty of the court to set aside a verdict, when it is against such a preponderance of the evidence, that it is clearly wrong, [citations omitted].”

Ibid. When in turn the Constitution vested this Court with “appellate jurisdiction” in criminal cases, as we shall see, it adhered to the doctrinal foundation previously laid down by the Supreme Court.

B

Meanwhile, the Constitution of 1876 divested the Supreme Court of jurisdiction over criminal cases, created the former court of appeals, and granted it the same power taken from the Supreme Court to exercise “appellate jurisdiction ... in all criminal cases, of whatever grade.” Id., Article V, § 6; Tex. Rev.Stat. (State Printing Office 1879) at 29. The Legislature redundantly declared verba *138 tim the same jurisdiction, and for good measure added “as is provided in the Code of Criminal Procedure.” Article 1068, id., at 175. Article 66, C.C.P. 1879, merely sustained its “appellate jurisdiction ... in all criminal cases of whatever grade.”

More specifically, the Legislature recognized that, among other dispositions, the court of appeals may reverse the judgment of the court below and remand for a new trial. Article 869, id. Bringing forward provisions in O.C. 744, the Legislature iterated that same constitutional power the Supreme Court initially found declared and exercised, viz:

“The court of appeals may revise the judgment in a criminal case, as well upon the law as upon the facts; but when a cause is reversed for the reason that the verdict is contrary to the weight of the evidence, the same shall, in all cases, be remanded for a new trial.”

Article 870, id.

Contemporaneously with the Supreme Court in civil cases and having inherited as it were the “appellate jurisdiction” of the Supreme Court in criminal cases, see ante, the court of appeals did not hesitate to exercise its constitutional power and right to discharge its duty in the premises. Its decisions under former articles 869 and 870, ante, demonstrate a resolve to examine and weigh all the evidence, meticulously if need be, to determine sufficiency questions—certain of its authority and usually, but not always, articulating the legal basis for its evidentiary decision.

In its first year, for example, confronting testimony tending to contradict statements by the main prosecuting witness, the court reviewed and evaluated the “whole testimony and the charge of the court” to conclude: “We are not fully satisfied” that “the evidence is sufficient to support the verdict and judgment of conviction [and] we think the [trial] court erred in refusing a new trial [on appellant’s motion contending] ‘the verdict of the jury is contrary to the law and the evidence.’” Henderson v. The State, 1 Tex.App. 432 , at 437 (1876). Compare: Loza v. The State, 1 Tex.App. 488, at 489-490 (1877) (applying rules of law to undisputed eviden-tiary facts, court weighs evidence to find it “insufficient” to prove felonious intent to steal—notwithstanding legislative admonition that jury is exclusive judge of facts proved and weight given to testimony). See also Gay v. The State, 2 Tex.App. 127 , at 133-134 (1877) (evaluating and weighing testimony, finding it insufficient to support verdict).

Later cases also make clear that the court of appeals, like the Supreme Court before it, see ante, at 140, understood the nature and extent of its power to review jury verdicts for evidentiary sufficiency, albeit not then la-belled “legal sufficiency” and “factual sufficiency.” 4

In Walker v. The State, 14 Tex.App. 609 (1883), the State insisted that because “it was the peculiar province of the jury to determine the facts,” the court lacked authority to set aside the verdict “where there is any evidence to sustain it[.].” Id., at 628 (emphasis in original). Scholarly Judge Willson in a seminal opinion for a unanimous court responded. Alluding to former articles 676 and 728, C.C.P. 1879 (jury is the exclusive judge of the facts proved and the weight to be given to testimony), Judge Willson first countered that the court of appeals had authority to revise the facts, and to reverse the judgment for the reason that the verdict is con *139 trary to the weight of evidence. But he explained:

“[Yet], it has been the general practice of this court to refuse to set aside a verdict where the evidence was conflicting, but where there was sufficient, if believed, to support the finding, (citations omitted) (emphasis in ordinal).

But even in such case, where it was manifest that the verdict was wrong, and it was clear that injustice had been done the defendant, it has been set aside, though there was evidence sufficient to support it. (citations omitted).

And it has never been doubted, but has always been considered by this court, not only that it has the authority, but that it was its duty to set aside a verdict where that verdict was contrary to the evidence, or unsupported by it, though it was with reluctance that the court will disturb a verdict where there is any evidence to sustain it. (citations omitted).”

Id., at 628-629. Thus, from a careful consideration of numerous cited cases, Judge Will-son deduced the following “rules of practice governing this Court,” viz:

“First. Where the evidence is conflicting, and there is sufficient, if believed, to prove the case of the State, the jury being the exclusive judges of the credibility of the testimony, their verdict will not be set aside unless it is clearly appears to be wrong.

Second. Where there is no testimony to support it, the verdict will be set aside.

Third. Where the evidence is insufficient to rebut the presumption of innocence, the verdict will be set aside.

Fourth. Where the verdict is contrary to the weight of the evidence it will be set aside.”

Id., at 630. 5 Under applicable law the court conducted a thorough analysis of detailed facts, concluding that the State failed to prove the corpus delicti in this murder case. Id., at 637.

Thereafter, the Court continued to follow the lead of Judge Willson in Walker v. State, supra. See, e.g., Grimmett v. State, 22 Tex.App. 36 , 2 S.W. 631, at 634 (1886) (Willson, J.) (where evidence is sufficient to support verdict, and verdict is not against great weight of evidence, court will not set aside conviction); Dickey v. State, 21 Tex.App. 430 , 2 S.W. 809, at 810 (1886) (White, P.J.) (from review of conflicting evidence, court not satisfied with sufficiency; “conviction upon such testimony not permitted to stand as precedent in such cases”); Wilkerson v. State, 21 Tex.App. 501 , 2 S.W. 857 (1886) (White, P.J.) (considered in light of testimony, verdict and judgment against weight of evidence); McLaren v. State, 21 Tex.App. 513 , 2 S.W. 858 (1886) (Willson, J.) (conviction not only not supported by, but is against evidence and law, where explanation by accused not shown to be false, all evidence tends strongly to establish its truth, and is corroborated by his witness); Phipps v. State, 22 Tex.App. 621 , 3 S.W. 761, at 763 (1886) (White, P.J.) (detailed review of all testimony reveals judgment “is wholly by [sic], and contrary to, the evidence”); Montgomery v. State, 16 S.W. 342 (Tex.Ct.App.1891) (White, P.J.) (because evidence wholly insufficient to warrant conviction, and verdict against great preponderance of evidence, judgment reversed and cause remanded); Lasky v. State, 18 S.W. 465 (Tex.Ct.App.1892) (Davidson, J.) (since verdict and judgment not supported by the evidence but “clearly against the same,” judgment reversed and cause remanded). 6

*140 II

A

The former court of appeals became the Court of Criminal Appeals by virtue of the 1891 constitutional amendments and implementing legislation revamping the judicial appellate system. Essentially stripped of its limited civil jurisdiction and merely renamed, the Court convened its 1892-1893 term with the same “appellate jurisdiction” in criminal cases as before, viz:

“The court of criminal appeals shall have appellate jurisdiction ... in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.”

Article V, § 5. The legislation tracks predecessor statute. See Act 1892, 22nd Leg., 1st C.S., Ch. 16, p. 34, §§ 5, 24, 10 Ganunel’s General Laws 398 ff; Article 905, C.C.P. 1895 (when cause remanded).

Accordingly, the Court also continued to exercise its appellate jurisdiction to determine “legal sufficiency” as well as to weigh and decide “factual sufficiency.” See opinions in the first month of its new term, all written for the Court by Presiding Judge Hurt without dissent: Rollins v. State, 20 S.W. 358 (Tex.Cr.App.1892) (‘We are of opinion that [the evidence] is amply sufficient, and hence the judgment is affirmed.”) and Anderson v. State, 20 S.W. 358 , at 359 (Tex.Cr.App.1892) (We are of opinion that the evidence does not establish with reasonable certainty the fact [of the offense charged]; wherefore, the judgment is reversed, and the cause remanded.”). Compare: Foresythe v. State, 20 S.W. 371 (Tex.Cr.App.1892), viz:

“Under the above state of facts, does the testimony establish the guilt of defendant to a reasonable certainty? We think not. We believe that the verdict is against the great weight of the testimony; that every inculpatory fact has been met by the testimony for the defendant and made to consist with his innocence, except [certain testimony] ... we believe to be a mistake, and a very reasonable and common one. Judgment is reversed.”

Id., at 373. The fortuitous juxtaposition of those three opinions demonstrate beyond a reasonable doubt that the Court well understood separate concepts of “legal sufficiency” and “factual sufficiency,” and that it was capable of properly applying each, or both, as deemed appropriate in a given case. 7

B

Nonetheless, the State, through its State Prosecuting Attorney, would have it that some thirty years around the turn of the century (1891-1920) was “a rather chaotic period of our sufficiency jurisprudence” during which both the court of appeals and the Court were “neither clear nor consistent” in their understanding the true meaning of “power to reverse ‘upon the facts;’ ” failing to recognize “two different standards for conducting a sufficiency review,” they “always applied a single (though ambiguous and fluctuating) standard of review ... upon finding the evidence insufficient.]” State Prosecuting Attorney’s Supplemental Brief, at 10. 8 *141 Having examined in the margin the cases submitted to support those notions and comments, one must conclude the State is mistaken. The entire line of cases reviewed ante demonstrate that from the beginning “appellate jurisdiction” included the power to examine “factual sufficiency,” and, further, that every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power, albeit “reluctantly exercised,” or without identifying it as such, or along with a determination of “legal sufficiency” as well. See ante, at 137, 137-138, 138-140 and notes 4-6.

To bolster its theory the State advances the proposition that “a central tenet of sufficiency review was solidified” in Jolly v. State [ 87 Tex.Cr.R. 288 , 221 S.W. 279 (1920)]. Supplemental Brief, at 10. 9 The statute and *142 ease cited by the Court go to its duty to order another trial in the premises; otherwise Judge Morrow cites no authority for the proposition claimed by the State, nor need he. Also observe that during the period from 1876 to 1920 decisions of the Court discussed ante never once declared that in determining sufficiency of the evidence to support the judgment, former articles 870, C.C.P. (1879); 905, C.C.P. (1895); 939, C.C.P. (1911), required an appellate court to view evidence in terms of “the light most favorable to the verdict (or the state).” Those observations are made, not to quibble about what has become accepted jargon in this Court, but to suggest the origin and intendment of that more modern phrase in this jurisdiction.

In Jolly v. State, supra, 221 S.W. at 281 , before entering into the discussion quoted above Judge Morrow wrote, “The State’s evidence, accepting it as true, which must be done, falls short_” In context that phrase is but another way of conveying the same meaning as the one more commonly and longer used by our courts, viz: “sufficient [evidence], if believed, to support the finding [of guilt].” Walker v. The State, supra, at 629. See, e.g., Speer v. State, 57 Tex.Cr.R. 297 , 123 S.W. 415, at 417 (1909) (evidence, if believed, to sustain jury verdict); Thurston v. State, 58 Tex.Cr.R. 308 , 125 S.W. 31, at 32 (1910) (evidence which, if believed, would show guilt; Coleman v. State, 58 Tex.Cr.R. 451 , 126 S.W. 573, at 574 (1910) (testimony, if believed, justified conviction); Smith v. State, 60 Tex.Cr.R. 81 , 131 S.W. 313, at 314 (1910) (evidence sufficient to support verdict, if testimony of witnesses to be believed); Martinez v. State, 61 Tex.Cr.R. 29 , 133 S.W. 881, at 882 (1911) (testimony, if believed, justifies jury verdict of guilty); Oates v. State, 67 Tex.Cr.R. 488 , 149 S.W. 1194, at 1198 (1912) (“if State’s evidence is to be believed, jury justified in finding guilt,” and on ad infinitum to Banks v. State, 510 S.W.2d 592, at 595 (Tex.CrApp.1974) (Court must view the evidence in light most favorable to verdict; in doing so, verdict will be sustained if there is “evidence which, if believed, shows the guilt of the accused”).

In short, to say the prosecution presented such testimony and evidence which, “if believed,” supports the verdict is to view it in “the light most favorable,” and thus sufficient to support the verdict with “reasonable certainty.” The Jolly court merely used a phrase equivalent in meaning to that which courts traditionally utilized in assaying the evidence for “legal sufficiency.” 10

But, again, as the court explained in Walker v. The State and iterated in other cases, engaging in that exercise does not rule out *143 also reviewing the evidence for “factual sufficiency” as well. See 138-140, ante. Indeed, it is now axiomatic:

“A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment.”

Tibbs v. Florida, 457 U.S. 31, at 42-43 , 102 S.Ct. 2211, at 2218 , 72 L.Ed.2d 652 (1982).

C

The State cannot accept that, having found “legal sufficiency” to support the verdict, an appellate court still has power to proceed further to review “factual sufficiency” where appropriate. It discusses more cases during the ensuing period to conclude that while there was “the occasional inconsistency along the way,” this Court resolved “those apparent contradictions” in Franklin v. State, 147 Tex.Cr.R. 636 , 183 S.W.2d 573 (Tex.Cr.App.1944) (Commissioner Davidson). Supplemental Brief, at 12-13. But since the Court conducted a “legal sufficiency” review pursuant to former article 848, C.C.P. 1925, a Third rule review under Walker, supra, it “resolved” nothing about determining “factual sufficiency.” 11 Moreover, in then declaring globally that the Court “never reversed a judgment of conviction upon the facts of the case where the testimony of the State showed *144 the guilt of the accused,” Judge Davidson apparently was less than thorough in his research. 12 Moreover, the list of twelve followings in Shepard’s Texas Citations is not all that impressive: seven mention, in whole or in part, the proposition in headnote [3], but three of those seven are in dissents by former Presiding Judge Woodley, generally admonishing the majority for failing to adhere to it; the remaining five cites pertain to treatment of other matters in Franklin not at all germane to the issue here. 13

Convinced that Franklin cannot be read to rule out a “factual sufficiency” review by an appellate court, and believing that its constitutional power to conduct such a review is not lost through pretermission, let us now move fast-forward to examine and consider more recent developments.

Ill

A

In White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979), the Court was exercising its appellate jurisdiction on direct appeal in a capital murder case with punishment assessed at life in which an ancillary determination of competency to stand trial was implicated. See Jackson v. State, 548 S.W.2d 685, at 690 (Tex.Cr.App.1977) (court will review pretrial hearing on competency when raised and presented in appeal from trial on merits). Defendant contended, inter alia, the verdict of competency was contrary to the great weight and preponderance of evidence, and manifestly wrong—in other words, “factually insufficient.” White v. State, supra, at 852.

Writing for a unanimous Court, former Presiding Judge Onion perceived that in effect defendant would have the Court “consider this ground as a fact issue question rather than a law issue question,” and to that he immediately responded, viz:

"... This Court has no jurisdiction to do what appellant requests as would a Court of Civil Appeals because of a somewhat peculiar constitutional provision applicable to Courts of Civil Appeals. Article V, § 6 (Court of Appeals) states in part:

‘Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error ... ’ See also Article 1820, V.AC.S., Texas Rules of Civil Procedure 451, 453, 455.”

Id., at 855. That is to say, the mere fact that courts of appeals are empowered to make findings as to “factual sufficiency” somehow precluded this Court from doing so in a 1979 case, over which it then possessed exclusive “appellate jurisdiction” on direct appeal.

Then reviewing civil jurisprudence on the matter and contrasting it with unidentified criminal law provisions, the Court summarily concluded:

“[T]his court has no fact jurisdiction as do the Courts of Civil Appeals, and cannot ‘unfind’ a vital fact finding by a jury. Since we do not have the jurisdiction to pass upon the great weight and preponderance of the evidence, appellant’s contention is overruled.”

Id., at 856. And in Martin v. State, 605 S.W.2d 259 (Tex.Cr.App.1980), writing for the Court on motion for rehearing, former Presiding Judge Onion extended White to *145 proceedings involving a sanity issue in which the trial court alone is fact finder. Id., at 261.

Thus without so much as a cursory examination of germane determinative pronouncements by this Court to the contrary, see Part I B, Part II A & B, ante, as if by ipse dixit the Court purported to deny the appellate jurisdiction, power and authority it previously found, delineated, confirmed and exercised in appropriate eases. Ibid. See also Ex parte Watson, 606 S.W.2d 902, at 905-906 (Tex.Cr.App.1980) (Court constrained to follow White); Combs v. State, 643 S.W.2d 709, at 716 (Tex.Cr.App.1982) (White and Watson settled that this Court lacks jurisdiction to pass upon weight and preponderance of evidence).

Furthermore, the White court surely failed to consider the venerable Old Code provision continued through all codes of criminal procedure to and including Article 44.25. C.C.P. 1965, viz:

“The Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts. A cause reversed because the verdict is contrary to the evidence shall be remanded for new trial.”

As its internal construction and caselaw construing the statute make clear, the first sentence embraces both findings of “legal sufficiency” and “factual sufficiency,” as they came to be known; the second merely admonishes that when judgment is reversed for the latter, the cause must be remanded. 14

In Combs v. State, supra, the Court was deciding the question of its own “jurisdiction to review sufficiency questions once they have been passed on by the Courts of Appeals.” Id., at 714. Upon reviewing Article V, § 6, before and after the 1981 amendment, Article 1820, VAC.S. as amended, and civil cases deemed relevant, the Court alluded to White and Martin and stated— albeit erroneously—“our determinations of sufficiency of the evidence have never involved passing on the weight and preponderance of the evidence.” Id., at 716. Just as erroneously the Combs court said, “We perceive no other standard may be utilized by the Court of Appeals in reviewing criminal convictions other than sufficiency of the evidence to support the conviction.” Id., n. 1. Both statements are flat wrong in light of power inherent in successive constitutional grants of “appellate jurisdiction” in criminal cases to the Supreme Court, e.g., Republic v. Smith, supra; the former court of appeals, *146 e.g., Walker v. State, supra; this Court, e.g., Foresythe v. State, supra; and lately to the reconstituted courts of appeals.

The Court went on to compare the rule of prior decisions, e.g., Banks v. State, 510 S.W.2d 592, at 595 (Tex.Cr.App.1974 (verdict must be sustained where there is any evidence which, if believed, shows guilt of defendant), with the test formulated in Jackson v. Virginia, 443 U.S. 307, 318-309 , 99 S.Ct. 2781, at 2788-2789 , 61 L.Ed.2d 560 . The Court summed up, viz:

“Thus, sufficiency of the evidence to sustain criminal convictions as determined by this Court is a question of law under both state and federal standards. It is not a ‘question of fact’ under Art. 5, Sec. 6, of the Texas Constitution. We conclude that this Court has jurisdiction to review the sufficiency of the evidence to support a conviction even though that question has been addressed by the Courts of Appeals.”

Id., at 717. The State Prosecuting Attorney accurately characterizes Combs as a “now-discredited” source of “considerable confusion.” Supplemental Brief, at 19. 15

B

The opinions of the Court in White and especially Combs also came under critical examination by some courts of appeals which, after all, long have been and are routinely determining both “legal sufficiency” and “factual sufficiency.” Chronologically the cases with ultimate dispositions by this Court are:

Sckuessler v. State, 647 S.W.2d 742 (Tex.App.—El Paso 1983) (jury verdict rejecting insanity defense contrary to great weight and preponderance of evidence), reversed 719 S.W.2d 320 (Tex.Cr.App.1986) (“factual sufficiency” wrong standard of review; evidence sufficient to support rejection of defense);

Minor v. State, 653 S.W.2d 349, at 351 (Tex.App.—San Antonio 1983) (viewed most favorably, evidence sufficient to support conviction for aggravated assault with deadly weapon) (Cadena, C.J., concurring: nature of judgment rendered by court of appeals in Combs creates justifiable concern that grant of its jurisdiction conclusively to determine “factual sufficiency” may be subject to restriction), PDR refused with per curiam opinion, 657 S.W.2d 811, at 812 (Tex.Cr.App.1983) (effect of certain constitutional and legislative changes effective in 1981 never construed by this Court still open question);

Van Guilder v. State, 674 S.W.2d 915 (Tex.App.—San Antonio 1984) (White is authority that courts of appeals have jurisdiction of fact questions in criminal cases; left open in Minor is eonclusiveness of decisions on such questions; no evidence to support implied finding of sanity, and verdict so contrary to great weight and preponderance of evidence as to be clearly wrong), affirmed 709 S.W.2d 178 (Tex.Cr.App.1985) (but devising from Jackson v. Virginia innovative standard for review of affirmative defense, viz: court of appeals to consider evidence in light most favorable to implicit finding by jury, and then determine from all related evidence whether any rational trier of fact could have found defendant failed to prove defense by preponderance of evidence; may not reweigh or reclassify the evidence).

Arnold v. State, No. 13.83-050-CR (Tex.App.—Corpus Christi, delivered January 31, 1984) (jury finding of competency to stand *147 trial so against great weight of preponderance of evidence as to be manifestly unjust), reversed 719 S.W.2d 590, at 593 (Tex.Cr.App.1986) (under Van Guilder viewing evidence in light most favorable to verdict a rational trier of fact could easily have found evidence of incompetency insufficient);

See also Hill v. State, 718 S.W.2d 751 (Tex.App.—Tyler 1985) (trial court abused discretion in revoking probation where finding of ability to pay fees and cost so contrary to evidence as to be manifestly wrong and unjust), reversed and remanded 719 S.W.2d 199 (Tex.Cr.App.1986) (since Van Guilder disapproved appellate use of “factual sufficiency” standard, cause remanded for reconsideration). 16

We need not dwell on Van Guilder and progeny, however; the Court overruled them and disavowed footnote 1 in Combs. Meraz v. State, 785 S.W.2d 146, at 154 (Tex.Cr.App.1990).

The late Judge Duncan, writing for a unanimous Court (three judges concurring in result), enumerated reasons why Van Guilder was wrongly decided, id., at 152-153, and demonstrated that the “factual conclusivity clause” in Article V, § 6, has remained a constitutional provision for nearly one hundred years, approved by voters through four elections over those years, id., at 153-154, to conclude:

“The court of appeals is therefore constitutionally given the authority to determine if a jury finding is against the great weight and preponderance of the evidence and if this is improper it is up to the people of the State of Texas to amend the Constitution.”

Id., at 154. After confessing error in Van Guilder , the Court accordingly proceeded further to conclude:

“... [T]he ‘factual conclusivity clause,’ within Art, V, § 6, operates to limit our jurisdiction and confers conclusive jurisdiction on the courts of appeals to resolve questions of weight and preponderance of the evidence adequate to prove a matter that the defendant must prove. Moreover, when the courts of appeals are called upon to exercise their fact jurisdiction, that is whether the appellant proved his affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of the evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Therefore, Van Guider v. State, supra; Schuessler v. State, supra; Arnold v. State, supra; and their progeny are overruled. Furthermore, footnote 1 in Combs v. State, supra, is disavowed.”

Id., at 155. 17 It is important to notice that the Meraz court pointedly “expressed] no *148 opinion of the role of the court of appeals in reviewing sufficiency of the evidence relative to the proof of elements of the offense.” Id. at 156. Bigby v. State, 892 S.W.2d 864 (Tex.Cr.App.1994) a capital murder case in which an insanity defense was rejected and the death penalty was assessed, thus does not implicate the role of the court of appeals at ah.

IV

A

“... It is perfectly clear that regardless of which party had the burden of proof, and regardless of which party prevailed before the jury, the verdict loser had the right to assert on appeal that the jury’s verdict was either not supported by the evidence or was against the great weight and preponderance of the evidence, as appropriate.”

Cropper v. Caterpillar Tractor Co., supra, at 650.

In the instant cause, a conviction for burglary of a building, appellant claimed on direct appeal that the evidence is “factually insufficient” to show he knowingly or intentionally entered the building. Clewis v. State, 876 S.W.2d 428 (Tex.App.—Dallas 1994).

The Dallas Court of Appeals held that both constitutional and statutory provisions granted and authorized it to exercise “appellate jurisdiction to review fact questions.” Id., at 430 (emphasis in original).

Believing, however, that when the burden of proof is “beyond a reasonable doubt” such a factual sufficiency review is “necessarily included within a general sufficiency review performed under the Jackson v. Virginia standard of review adopted in this state,” id., at 439 , and applying that standard, the Dallas Court of Appeals concluded the evidence is sufficient for “a rational trier of fact to have found beyond a reasonable doubt that appellant knowingly or intentionally entered the building.” Id., at 440 .

In a separate opinion the Chief Justice characterized that treatment of the problem “a flawed analysis,” and he is correct. Indeed, the standard of review devised by the court of appeals smacks strongly of the one concocted in Van Guilder v. State, supra. Of course, that formulation was rejected in Mer-az, supra.

A proper “factual sufficiency review” cannot logically and practically be “necessarily included” within the Jackson v. Virginia standard of review because the latter is intended and designed solely to determine sufficiency of the evidence to support a finding of guilt beyond a reasonable doubt, from the viewpoint of the State. The critical inquiry under Jackson is not whether the reviewing court itself believes the evidence establishes guilt; rather, it is whether, after viewing all the evidence “in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S., at 319 , 99 S.Ct., at 2789 , 61 L.Ed.2d, at 573 (last emphasis in original). Thus “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.” Ibid (emphasis in original). Where the record supports conflicting inferences, the reviewing court must, therefore, “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.” Id., at 326 , S.Ct., at 2793, L.Ed.2d, at 578.

Conversely, the inquiry for “factual sufficiency” is conducted pursuant to the test the Dallas Court eschewed—the same one used by it and other courts in civil cases, as well as previously used by the Supreme Court, the former court of appeals and this Court in criminal cases, any differences in phrasing *149 being “merely semantical.” Clewis v. State, supra, at 432, and n. 10. Essentially, that inquiry is whether the verdict is “so against the great weight and preponderance of the evidence as to be manifestly unjust.” Ibid.

“A reversal based on the weight of the evidence ... can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict.” Tibbs v. Florida, 457 U.S. 31, at 42-43 , 102 S.Ct. 2211, at 2218 , 72 L.Ed.2d 652, at 662 (1982). When examining the record for “factual sufficiency,” therefore, the reviewing court determined or may assume the evidence is legally “sufficient,” otherwise there would have been an acquittal, leaving no cause to test the evidence for “factual sufficiency.” Having thus been met and satisfied, the Jackson test for “legal sufficiency” has no role in the subsequent inquiry for “factual sufficiency.” 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. Tibbs v. Florida, Id., at 42, 102 S.Ct., at 2218 , 72 L.Ed.2d, at 661 ; Cropper v. Caterpillar Tractor Co., supra, at 648-649; Walker v. State, supra, at 628-630; Rochetszky v. State, supra, at 233.

B

Thus, the Dallas Court of Appeals was right about its jurisdiction, power and authority to review the evidence for “factual sufficiency” in a criminal case, but wrong about the requisite and proper standard of review an appellate court must conduct and apply to the facts. 18

Accordingly, joining the opinion of the Court, I agree we should vacate the judgment of the court of appeals and remand the cause for further proceedings.

. The court of appeals did conclude that certain constitutional and statutory provisions establish “appellate jurisdiction to review fact questions.” However, as to the "standard of review ” to apply in resolving factual sufficiency challenges to the evidence supporting an element of the charged offense, the court of appeals decided that "when the burden of proof is "beyond a reasonable doubt,’ such a factual sufficiency review is necessarily included within a general sufficiency review performed under the Jackson v. Virginia standard of review as adopted in this state.” Id. at 43CM131, 439.

The local district attorney and the State Prosecuting Attorney support that formulation; however, the latter introduces consideration of other matters, inter alia, his perception of this Court’s “historical understanding of what it means to reverse 'upon the facts.'" Supplemental Brief, at 2 ff.

(Emphasis above by the court of appeals; all other emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

. At the outset, defining its terminology, the court of appeals stated that in Texas criminal cases “historically, there have only been 'insufficient evidence' challenges without a legal or factual distinction.” Id., at 429, n. 1. Actually, evidentiary challenges invoked constitutionally based judicial power in the premises, settled early on in the appellate jurisprudence of this State. See Part I and Part 2A, post, at 137-140. All that caselaw later went unnoticed in decisions such as White v. State, 591 S.W.2d 851, 855-856 (Tex.Cr.App.1979), and Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982). See Part IIIA, *137 post, at 144-146. The current imbroglio recurs more than a decade since the issue was raised upon the 1981 amendments to germane constitutional provisions divesting this Court of its direct appeal jurisdiction in favor of the courts of appeals in all cases except capital murder where the death penally is imposed. Several corut of appeals addressed the question but came up with mixed answers. We left similar issues "open” in Minor v. State, 657 S.W.2d 811, at 812 (Tex.Cr.App.1983), partially “closed” some in Meraz v. State, 785 S.W.2d 146 (Tex.Cr.App.1990), but have yet finally to resolve this one. See Meraz v. State, supra, at 156.

. Shortly after achieving statehood the Legislature dealt expressly with appeals to the Supreme Court in criminal cases. Acknowledging that defendant had the right of appeal (except in contempt matters), it provided that “upon an examination and revision of any criminal cases, the supreme court shall proceed to render such judgment as the law of the case may require, confirming the judgment of the district court, if there be no errors upon the record, revising the same in case of error, and remanding the cause at their discretion for a new trial." Act of May 13, 1846, §§ 1 & 8; 2 Gammel’s Laws of Texas 1636-1639.

Some ten years later the Sixth Legislature codified penal and procedural statutes in criminal matters. Title VII in the latter treats appeals by the State and defendant and, building on the foundation laid down by the Supreme Court, structured the procedural formulation for all subsequent appellate dispositions, viz:

"Art. 742. The judgment in a criminal action, upon appeal, may be wholly reversed and dismissed when brought by the defendant ...; the judgment may be reformed and corrected, or the cause may be remanded for further proceedings in the District Court, as the law and the nature of the case may require.

⅜ ‡ ‡ ‡ % ⅜

Art. 744. The Supreme Court may revise the judgment in a criminal case, as well upon the law as upon the facts; but when a case is reversed for the reason that the verdict is contrary to the weight of the evidence, the same shall in all cases be remanded for a new trial."

The Code of Criminal Procedure ("Old Code” 1856), 6th Leg., Title VII, p. 137, at 141-142 (Galveston 1857).

. See, e.g., King v. The State, 4 Tex.App. 256 , at 258 (1878) (White, J.); Jones v. The State, 4 Tex.App. 436, at 443-444 (1878) (White, J.); Jones v. The State, 5 Tex.App. 86 , at 88 (1878) (Winkler, J.); Barnell v. The State, 5 Tex.App. 113 , at 115-116 (1878) (Winkler, J.). In each case the Court determined "legal sufficiency ” according the "general rule” laid down in Tollett v. The State, 44 Tex. 95, at 97-98 (1875), (whether sufficient amount of legal and competent evidence safely to allow verdict and judgment to become precedent in adjudication of offenses under the law; Court duty bound to exercise legal discretion and judgment as to facts sufficient to rebut legal presumption of innocence).

Compare: March v. The State, 3 Tex.App. 335 , at 336 (1877) (White, J.); Lockhart v. The State, 3 Tex.App. 567 , at 570 (1878) (Ector, P.J.); Blake v. The State, 3 Tex.App. 581 , at 587 (1878) (Ector, P.J.); Gamble v. The State, 5 Tex.App. 421 , at 422 (1879) (White, J.). In each case the Court determined "factual sufficiency ” on conflicting evidence according to whether, as variously phrased, the verdict or judgment works an "injustice” to defendant; is "clearly and manifestly wrong;” or is "manifestly wrong.”

. In context of his explanation, First and Fourth rules are but variations on a "factual sufficiency” theme. First involves "conflicting evidence,” some of which is sufficient to sustain the State’s burden, so that the verdict will not be set aside unless in light of all the evidence it clearly appears to be wrong and makes manifest that an injustice has be done defendant. Fourth involves the simpler situation where the verdict is so plainly contrary to the weight of evidence that it must be set aside.

. To be noticed is that all cases but the last two cited in the paragraph above were delivered in 1886, roughly midway in the life of the court of appeals. Montgomery , handed down in June 1891, and Lasky , in February 1892 (near end of its final term) are cited to demonstrate a fair measure of consistency in its understanding of "what it means to reverse ‘upon the facts.’ ”

. Subsequently, confronting conflicting evidence, the Court conducted a First rule analysis under Walker, supra, "a careful examination of the whole case, in light of the record, considering the facts as they appear in the statement of facts,” but "would not feel authorized to set aside the verdict of the jury and reverse the case[.]” Jackson v. State, 56 Tex.Cr.R. 28 , 117 S.W. 990, at 992 (1909) (Ramsey, J.). Compare: Gay v. State, 56 Tex.Cr.R. 12 , 118 S.W. 534 (1909) (Ramsey, J.) (Court opted to reverse under Third rule, "we do not believe, on full reflection, that we would be justified in sustaining this conviction and establishing the precedent of sustaining a conviction on such inconclusive and vague testimony [by State’s only witness]”); see n. 4, ante (cases following Tollett, supra).

. That “chaotic” appellate condition is, according to the State, reflected in four opinions, namely, Montgomery v. State, supra (White, P.J.); Mitchell v. State, 33 Tex.Cr.R. 575 , 28 S.W. 475 (1891) (Hurt, P.J.); Murphy v. State, 65 Tex.Cr.R. 55 , 143 S.W. 616 (1912) (Harper, J.); Smith v. State, 85 Tex.Cr. 355 , 212 S.W. 660 (1919). We examine them seriatim, keeping in mind the legislative confirmation that constitutional "appellate jurisdiction” empowers the court to "revise the judgment in a criminal case ... upon the facts,” and also to reverse the judgment when "the verdict is contrary to the weight of the evidence.” See ante, at 137-140.

Montgomery is a simple case of alleged "unlawfully branding a horse,” in which the assistant district attorney “ingeniously confesses that ‘the evidence is weak,’ ” and the court responds, *141 "The great preponderance of the evidence shows conclusively that the animal was branded at the instance and request of [another]," that appellant "did not brand the animal himself,” and that his testimony is corroborated by other witnesses. Accordingly, the appellate court not only found the evidence was “wholly insufficient to warrant the conviction,” but also concluded the verdict was "against the great preponderance of the evidence; ” thus, as it would have for either discrete reason, the judgment was reversed and the cause remanded. That is an exercise of both powers, but not "ambiguous and fluctuating.”

Mitchell , is a common case of alleged ‘burglary with intent to commit rape,” in which the prosecution proved a burglarious entry but simply failed to show it was made with intent to commit rape, i.e., that accused "intended to gratify his lust by force.” The court is not bound by the law elsewhere to affirm the judgment "if there is any evidence to support it;” if guilt not proved to "a reasonable certainty, it is the duty of this court to reverse the judgment.” Id., 28 S.W. at 476 . There was no competing evidence for the court to consider and weigh; thus "factual sufficiency” was not an issue.

Murphy is a touchy case of alleged seduction, in which accused raised in his motion for new trial, inter alia, “sufficiency of the evidence to sustain the conviction.” Id., 143 S.W. at 619 . After carefully reviewing all relevant evidence pro and con, Judge Harper writing for the court in his fashion, made an enigmatic statement the State characterizes as "employing ‘great preponderance' formulation,” viz:

"While the jury is the judge of credibility of the witnesses and the weight to be given the testimony, yet we are authorized to look to see if there is any testimony, or that it is so slight as not to authorize a finding therein against the great preponderance of the testimony.”

Id., 143 S.W. at 620 . Apparently the State is correct, for Judge Harper then proceeds to contrast certain perceived weaknesses in the prosecution against strengths in the defense, to conclude that “we do not feel that the evidence justifies us in permitting this verdict to stand,” in that "it would seem that perhaps an injustice has been done.” Ibid.

We do not agree, however, with its assertion that the court "held" it may reverse "upon finding either.'no evidence' or ‘slight evidence.”' Thereafter, Judge Harper wrote, "Taking the record as a whole, and [that the testimony failed to show certain germane matters], we deem the evidence insufficient to support a case of seduction.” Ibid. Murphy represents again an instance of the Court determining both "factual sufficiency” and “legal sufficiency” adverse to the State. Cf. Ramirez v. State, 149 Tex.Cr.R. 13 , 191 S.W.2d 34, at 36 (1945) (evidence not sufficient to establish guilt of seduction beyond reasonable doubt).

Smith is another burglary case, this one of a store. About it the State notes only " ‘great weight’ language.” The evidence is circumstantial, and the sole contention is that "the evidence is insufficient to support the verdict.” For the Court, Judge Lattimore reviews all the evidence and explains why it was sufficient "to predicate the verdict of guilty.” Then in his inimitable style Judge Lattimore gratuitously adds, “This court will not reverse unless there is such a manifest lack of evidence as to make it apparent that the verdict was the result of prejudice, or that such verdict is against the great weight of the evidence." Id., 212 S.W. at 661 . At least in 1919 the Court again acknowledged that indeed it does have the power to determine and to reverse for "factual insufficiency.”

In sum both "sufficiency” standards were, as former Presiding Judge Onion was wont to put it, “alive and well” during the three decades of cases surveyed by the State.

. The State alludes to phrases underscored in the first paragraph of a passage in the opinion, viz:

"On the whole, the facts are not such as would warrant us in giving sanction to the verdict which condemns the appellant.... His punishment, in the absence of proof which, tested by the legal measure, establishes his guilt beyond a reasonable doubt, is not to be sanctioned. The sanctity of the verdict of the jury is such that it must not lightly be annulled in any case, but Ae law does not contemplate that one shall suffer because of the verdict when the evidence, viewed in its strongest light from the standpoint of the state, fails to make his guilt reasonably certain. In such a case, both by statute and precedent, it is incumbent upon this court in the performance of its duty to order another trial. C.C.P. art. 939; Mitchell v. State, 33 Tex.Cr.R. 575 , 28 S.W. 475 .”

Accordingly, the court concluded:

“Because the evidence does not establish the guilt of appellant with reasonable certainty, the judgment is reversed and the cause remanded.”

*142 Id., at 281. We note, not so incidentally, appellant did not present any evidence. The Court thus reversed "upon the facts” adduced by the prosecution and remanded pursuant to former articles 938 and 939, C.C.P. 1911. That is, the Court did not conduct a review for "factual sufficiency,” there being no competing evidence and thus no claim the verdict was "contrary to the weight of the evidence.” Compare: Third rule (evidence insufficient to rebut presumption of innocence) with First and Fourth rules formulated by &e court in Walker v. The State, supra, at 630.

. In Green v. State, 97 Tex.Cr.R. 52 , 260 S.W. 195 (1924), the Court reviewed evidentiary sufficiency in rape case under former article 939, C.C.P. 1911, to reverse the judgment “upon the facts,” because "it is our duty to do so when there is not sufficient evidence to support it”— “when the evidence viewed in its strongest light from the standpoint of the state, fails to make guilt reasonably certain.” Id., 260 S.W. at 196 , citing Jolly v. State, supra; Pierson v. State, 93 Tex.Cr.R. 242 , 246 S.W. 1041 (1923); McCollum v. State, 93 Tex.Cr.R. 235 , 247 S.W. 283 (1923); Rochetszky v. State, 94 Tex.Cr.R. 423 , 251 S.W. 232 (1923)—all also discussed by &e State Prosecuting Attorney in Supplemental Brief, at 10-11.

In Rochetszky v. State, supra, Morrow, P.J., wrote on original submission that under article 939 "this court may reverse a judgment upon the law as well as upon the facts.” He explained:

"... While it is rarely done, and is never done, except for the strongest reasons, yet this court has on many occasions found it necessary to set aside the judgment, where the verdict was manifestly wrong, and it is made clear that an injustice was done to the accused. See Walker v. State, 14 Tex.App. 609 , and offier cases listed in Vernon's Texas Crim.Stat. vol. 2, p. 689, note 14.”

Id., 251 S.W. at 233 . That formulation is a restatement of First rule Judge Willson distilled from the cases in Walker, at 629-630, viz: the evidence is conflicting but some sufficient, if believed, to prove the case, still verdict may be set aside where it is manifest that it is wrong and clear that an injustice has been done. On rehearing Judge Hawkins pointed out that the court did not announce a new rule “but applied an old one,” as indeed it did.

. The Court made clear it was construing former article 706, C.C.P.1925 (juiy exclusive judge of facts and weight of testimony), and article 848, id. (revision upon law as well as facts). Franklin v. State, supra, 183 S.W.2d at 574 .

First, under headnote [3] it alluded to the “consistent holding” that the Court will reverse “only when the testimony, viewed in its strongest light from the standpoint of the State, fails to make the guilt of the accused reasonably certain." For that holding the Court relies on Mason v. State, 108 Tex.Cr.R. 452 , 1 S.W.2d 283 (1928), and cites 18 Tex.Jur., 420, § 299. Ibid.

Mason v. State, supra, cites only the ubiquitous Jolly v. State, supra, and Taylor v. State, 87 Tex.Cr.R. 330 , 221 S.W. 611 (1919). Jolly , it will be recalled, reviewed undisputed testimony for "reasonable certainty,” concluding under former article 939, C.C.P.1911, Third rule of Walker, supra, the verdict must be set aside in that the State’s evidence was found insufficient to rebut the presumption of innocence. See note 8, ante. Taylor v. State, supra, however, dealt with uncon-troverted evidence, conflicting evidence and claimed impeached testimony; Judge Morrow pointed out that under former article 939, C.C.P. 1911, where a properly charged juiy finds accused guilty, a reviewing court should not supplant a juiy finding with its own, “unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency;” he opined the court was unable to do so in that case. Id., 221 S.W. at 613-614. That is also essentially a Third rule review under Walker , the Court concluding in effect the evidence was insufficient to rebut the presumption of innocence.

Therefore, neither Jolly nor Taylor treated article 939 under aspects of its First or Fourth rule, i.e., "factual sufficiency.” Walker, at 630.

It follows that Mason did not address rules First or Fourth either; indeed it does not even purport to do so. See 1 S.W.2d at 284 (Hawkins, J., on motion for rehearing) ("there is testimony here sufficient to support [jury’s] verdict").

In Franklin the Court was concerned with asserted insufficiency of evidence to convict; the State proved the offense of carrying a pistol, and appellant in effect admitted the alleged act, producing uncontroverted evidence supporting a legal defense (putative peace officer or game warden). Franklin thus presents a problem the Mason court did not confront in that accused there simply denied committing an alleged rape. The real question in Franklin is whether the State rebutted the defense beyond a reasonable doubt. See V.T.C.A. Penal Code, §§ 2.03 & 46.03 (articles 483 & 484, P.C.1925). (To the extent such is a matter defendant is required to prove, under Meraz v. State, 785 S.W.2d 146 (Tex.Cr.App.1990), the result might well be different; see 144-147, post.)

In headnote [4], the Court acknowledged having reversed causes because "unwilling to let the judgment of conviction stand under the facts," pointing out that the action taken was "based upon the weakness of the State’s testimony as showing the guilt of the accused.” Id., at 574. The Court cited Lozano v. State, 138 Tex.Cr.R. 549 , 137 S.W.2d 1031 (1940) (Hawkins, P.J.) (because evidence insufficient to show intent to kill in alleged assault with intent to murder, Court's duty to reverse); Villareal v. State, 140 Tex.Cr.R. 675 , 146 S.W.2d 406 , & 409 (1941) (Beauchamp, J.) (Court doubts conclusion of physician, in conflict with testimony, sufficient to prove essential facts, and in view of all undisputed facts and circumstances in capital murder case; quotes extensively and follows Taylor v. State, supra: "weaknesses,” "omissions" and “inconsistencies”). Thus, Villareal is yet another decision under former article 848, C.C.P.1925, Third rule in Walker, supra.

In sum, Franklin decides only “legal sufficiency” in a context of a rejected defense, and nothing written or cited under headnotes [3] & [4] denies or denigrates the constitutional power and authority of the Court to conduct a review for "factual sufficiency.”

, For example, he did not mention a relatively recent reversal in Pittman v. State, 140 Tex.Cr.R. 264 , 144 S.W.2d 569 (1940) (Commissioner Krueger) (evidence supported verdict finding accused guilty of assault with intent to murder; yet the Court approved an opinion holding verdict was "against the uncontroverted testimony ” showing self-defense). Id., at 569 & 560. Also see and compare Ammann v. State, 145 Tex.Cr.R. 34 , 165 S.W.2d 744 (1942) (Commissioner Davidson) (conviction for assault with intent to murder reversed where accused made strong case for self-defense); opinion couched holding in terms of “the facts are insufficient to authorize the conviction,” adding that while Court was always “hesitant to disturb the verdict of the jury ..., where evidence fails to measure up to that required by law ... it becomes our duty to say so.” Id., 165 S.W.2d at 746 .

. During the late Forties and early Fifties, the Court may well have been influenced politically by, and reacted pragmatically with sensitivity to, the contemporaneous storm of criticism over reversals for perceived "technicalities” exemplified by, e.g., Gragg v. State, 148 Tex.Cr.R. 267 , 186 S.W.2d 243 (1945), and Ex parte Gragg, 149 Tex.Cr.R. 10 , 191 S.W.2d 32 (1945); Northern v. State, 150 Tex.Cr.R. 511 , 203 S.W.2d 206 (1947). See Vaughn v. State, 607 S.W.2d 914, at 916 , nn. 1 & 2 (Tex.Cr.App.1980).

. With the advent of Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978), mandating an acquittal when „ a reviewing court has determined the evidence to be "legally insufficient," this Court noted that the second sentence in Article 44.25, ante, is “to the extent of conflict with the federal constitutional requirements of jeopardy protection expressed in [those] decisions cited above, unconstitutional." Johnson v. State, 571 S.W.2d 4, at 6, n. 2 (Tex.Cr. App.1978); accord: Ex parte Colunga, 587 S.W.2d 426, at 427, n. 2 (Tex.Cr.App.1979).

When the Legislature revamped affected statutes and code provisions to restructure appellate courts and jurisdiction pertaining to criminal appeals, it revised Article 44.25 by inserting “courts of appeals or” in the first sentence and deleting entirely the second sentence. Acts 1981, 67th Leg., Ch. 291, p. 817, § 134. It thus removed the legislative direction to remand for new trial, presumably with Johnson v. State, supra, in mind, believing it to be unconstitutional under Burks-Greene. See Bigley v. State, 865 S.W.2d 26 (Tex.Cr.App.1993) (Clinton, J., dissenting, at 32-33). The Johnson court, however, pronounced Article 44.25 unconstitutional only "to the extent of conflict" with Burks-Greene. There is no jeopardy or other known constitutional problem where the court of appeals or this Court reverses for “factual insufficiency ” under Article 44.25, as amended. Tibbs v. Florida, 457 U.S. 31 , 102 S.Ct. 2211 , 72 L.Ed.2d 652 (1982) (reversal of conviction because "against the weight of the evidence” as opposed to "insufficiency of the evidence” will not bar retrial).

(In his dissenting opinion at 153-154 and note 4 our Presiding Judge reviews the foregoing incidental observations and comments, to find my "position [today] is inconsistent with the position” he "apparently” believes I took in my dissenting opinion in Bigley v. State, supra, at 32-33. But the latter is more precis than position, uncritically reporting what Johnson decided, as part of predicate to making a point going to the larger issue then under consideration. The first paragraph above is a reprise of the recitation in Bigley ; the second is but an extension, essentially surmising a basis for legislative action in 1981, and opining that Article 44.25, as thus amended, poses no constitutional problem to an appellate remand upon a finding of "factual insufficiency," or to reforming the judgment to an acquittal for "legal insufficiency ” as in Johnson . Indeed, it confirms both dispositions.)

. Both 'White and Combs focused on what is known as the “factual conclusivity clause” in Article V, § 6, as if it somehow was a grant of appellate jurisdiction and power. That it is not was clearly explained by the Supreme Court in Cropper v. Caterpillar Tractor Company, 754 S.W.2d 646 (Tex.1988), viz:

"The Texas Constitution confers upon the courts of appeals 'appellate jurisdiction ... under such restrictions and regulations as may be prescribed by law,’ and further provides that 'the decision of said courts shall be conclusive on all questions of fact brought to them on appeal or writ of error.’ [citation omitted]. These two clauses have independent significance, and have quite different consequences upon the allocation of jurisdiction between this court and the intermediate appellate courts. The former operates as a general grant of ‘appellate jurisdiction,’ and is in fact the only clause in Article V which purports to vest judicial authority in the intermediate appellate courts. The latter, which will referred to as the 'factual conclusivity clause,’ functions not as a grant of authority to the courts of appeals but as a limitation upon the judicial authority of this court. Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406 , 44 S.W. 69 (1898).’’

Id., at 648.

. Before Van Guilder was formally reported, presumably because the publisher was awaiting outcome of application for certiorari, former Presiding Judge Onion and two others urged in vain that the opinion be reconsidered. See Baker v. State, 707 S.W.2d 893 , at 895 ff (Tex.Cr.App.1986). Certiorari was denied June 9, 1986. Id., at 178. Schuessler was delivered in October 1986; again the same three judges advanced an analysis from a different perspective in an opinion by this writer, 719 S.W.2d at 330 ff; the late Judge Teague dissented without opinion. Ibid. The latter turned out to be a harbinger of the unlamented demise of Van Guilder , et al. See post.

See also dissents in Hill v. State, supra, at 204 (Due Process Clause prohibits affirming conviction unless Jackson v. Virginia satisfied; neither it nor Double Jeopardy Clause bars state appellate court from reversing conviction if verdict or finding of guilty against great weight and preponderance of evidence), and Arnold v. State, supra, at 594 (given rash of awkward applications of Van Guilder and division among judges, Court must formulate workable standard of review for affirmative defenses and similar matters requiring proof by preponderance of evidence).

. Judge Duncan went on to opine that the ultimate holdings were “actually dictated by stare decisis " in that while the Court "properly concluded it did not have the authority to review [all the evidence for factual sufficiency,]” certain “observations” made in the White case are "compelling” and "dictate the result we have reached.” Id., at 155.

With deference, Judge Duncan and thus the Court did not take into account that White was decided on direct appeal in 1979—some two years before Article V, § 6, granted appellate jurisdiction in criminal cases to courts of appeals. Thus the White court possessed the same "appellate jurisdiction” vested by the Constitution of 1876 and by amendments in 1891. And *148 as demonstrated ante, ever since then the Court confirmed and exercised the very power and authority to determine "factual sufficiency” issues all those years until September 1, 1981. Ergo, in this respect the White opinion is wrong, as is the related part of Meraz . Indeed, just recently the Court so determined relative to the defense of insanity in a capital murder case with sentence to death, and overruled White , adding that any reliance on White by Meraz was "misplaced." Bigby v. State, 892 S.W.2d 864, at 875 (Tex.Cr.App.1994).

. The Presiding Judge ventures "reservations" about confirming today the right, power and authority of appellate courts to reverse a judgment of conviction for "factual insufficiency,” in that to do so may violate "the constitutional right to trial by jury” in Texas. Dissenting opinion at 157-158. That naturally prompts the question: Whose constitutional right? The obvious answer: In a criminal case only the accused has such a constitutional right. Article I, § 10. Once convicted, a defendant is entitled to an opportunity to seek acquittal through a new trial. Tibbs v. Florida, supra, at 45 , 102 S.Ct., at 2220 , 72 L.Ed.2d, at 663 .