Clewis v. State

MEYERS, Judge,

concurring.

Our lead opinion characterizes the issue in this case as whether the Court of Appeals properly refused to conduct a “factual sufficiency” review of the jury’s verdict. Specifically, appellant’s complaint is that the Court of Appeals refused to weigh exculpatory evidence in the balance when evaluating the rationality of the jury’s verdict. Although this kind of complaint has been generically classified, together with other factual complaints on appeal, as a “factual sufficiency point,” the classification is a little misleading in my view and encourages some of the mental difficulties associated with resolution of the problem presented here. See generally Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Tex.L.Rev. 361 (1960).

Clearly, appellant’s complaint is about the jury’s factfinding, and therefore presents a factual, not a legal, argument. Appellant is not contending, for example, that there was no evidence to support the verdict (legal insufficiency) or that he was conclusively shown to be not guilty (innocence as a matter of law), either of which argument would present a legal, not a factual, question. But, although he is plainly demanding a factual review of the jury’s verdict, he is not specifically contending that the evidence supporting conviction was insufficient in itself to prove his guilt. He is only claiming that the contrary evidence was so great that it overwhelmed the evidence of guilt. Under such circumstances, he argues, a guilty verdict is clearly wrong, manifestly unjust, or irrational.

This distinction between the contention that evidence is insufficient to prove a fact and the somewhat different contention that other evidence overwhelmingly disproves that fact is important in the present context because the kind of evidentiary review performed by appellate courts under the rubric established by the United States Supreme *150 Court in Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), plainly does not contemplate that a reviewing court consider the probative weight of exculpatory evidence when evaluating the sufficiency of inculpatory evidence to sustain a criminal conviction. It is thus perfectly clear that the methodology prescribed by Jackson v. Virginia to satisfy constitutional requirements of due process is not what appellant wants. He wants a comparative weight of the evidence review. Accordingly, even if one believes, as I do, that the Jackson rule actually requires an assessment of “factual sufficiency,” the way we have long understood that phrase in Texas, it is not an adequate substitute for the kind of review demanded by appellant. See King v. State, 895 S.W.2d 701 (Tex.Crim.App.1995) (Meyers, J., dissenting).

Of course, appellant does not get the kind of review he wants just because he demands it. As a threshold matter, an appellate court must have the power to review evidence in the manner appellant suggests and to grant the kind of relief he wants. "Whether it is a good idea for appellate courts to engage in this kind of factual review is a serious question, and one which has sparked intense debate from time to time in the Texas Supreme Court. Kg., Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646 (Tex.1988). That debate invariably focuses on the question whether such review effectively denies one or more of the litigants his constitutional right to a jury trial. But, it has been well-established in our civil jurisprudence for many years that the Texas courts of appeals do have the constitutional authority to perform such a review and to reverse judgments upon the facts either because the evidence was factually insufficient to support an affirmative factfinding or because the evidence militating against such factfinding was overwhelmingly greater. Id. It is generally thought that such reversals do not violate the right to a jury trial so long as the appellate court does not render judgment for one of the parties, but rather the cause for another jury determination of the question. Thus, in such circumstances, the appellate court is said not to find facts, as a jury does, but merely to unfind them. Calvert, 38 Tex.L.Rev. at 368.

Our own recent precedents clearly establish that Texas appellate courts have the same constitutional authority to resolve questions about the rationality of a jury’s verdict in criminal cases by weighing the probative force of evidence favoring a particular fact-finding against the probative force of evidence disfavoring it. Bigby v. State, 892 S.W.2d 864, 870-77 (Tex.Crim.App.1994); Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App.1990). Because that is really the only question presented in this case, appellant necessarily wins the argument on discretionary review unless we are prepared to abandon those precedents. 1 But it does not mean that appellant’s conviction will be reversed. On the contrary, we are remanding this cause to the Court of Appeals for a decision whether the jury’s verdict of guilty was actually so against the weight of the evidence as to be manifestly unjust. We do not imply at all that the lower court should answer this question in the affirmative. Indeed, unless the Dallas Court of Appeals decides that the evidence greatly preponderates in favor of appellant’s innocence, his conviction will be affirmed and the entire matter will be ended, since our constitutional authority does not include the power to review the lower court’s decision in this regard. Tex. Const, art. I, § 6.

Nevertheless, our lead opinion is likely to be controversial. For that reason alone, many lawyers and laypeople will misunderstand its essential holding or find it alarming. I hope that anyone so inclined will take a second look. In the final analysis, our opinion today only validates a long-standing truth of Texas constitutional law, that the courts of *151 appeals in this state have authority to require a new trial whenever a verdict of guilty is so clearly against the evidence as to be manifestly unjust. The public can be assured that the reversal of criminal convictions on this basis will be most uncommon in practice and that, with few exceptions, there will be no good reason to resent the ones that do occur.

That is why the dissenters’ position in this case is so disappointing. Their main complaint seems to be that well-founded convictions will routinely be set aside by appellate judges who are more interested in coddling criminals than in seeing justice done. 2 This attitude toward the courts of appeals is not only unjustified, but it is disrespectful as well. The appellate courts of Texas are generally careful, competent, and well-practiced in the business of evidentiary review. They understand perfectly that their job is not to serve as jurors themselves, but to uphold the verdicts of jurors unless so clearly against the weight of the evidence as to be manifestly unjust. Accordingly, the dissenters have no reason whatsoever to believe that our intermediate appellate courts will not perform evidentiary review in a cautious, responsible, and deferential way, just as the law requires. 3 Their suggestion to the contrary can only be expected to generate hysteria where none is really justified.

The instant cause itself may ultimately be the proof of this fact. My own cursory examination of the evidence, as described in the pleadings of the parties and the opinions of the lower court, convinces me that the evidence, if indeed there is any, which militates affirmatively in favor of appellant’s innocence is so extraordinarily weak that no reasonable appellate court could conceivably find it to be overwhelming. Just because we acknowledge the authority of appellate courts to review jury verdicts on their facts does not mean, therefore, that those courts will perform factual evaluations in an unreasonable, insensitive, or unjust manner. Those who are inclined to be alarmed by our lead opinion should withhold judgment at least until they see how it actually works in practice.

With these few additional comments, I join the opinion of the Court.

. In this regard, I would note that Judge Mansfield feels that some kind of Heitman analysis would be required before we could embrace what he calls a "different” factual sufficiency review. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). This is a misperception of the issue before us. We are not called upon to decide whether our constitutional due-course-of-law clause requires a more exacting examination of the evidence on appeal than does the due process clause of the United States Constitution. We are only asked to decide whether the Texas Constitution actually confers upon appellate courts the authority to conduct such an examination.

. See op. at 157-158 (McCormick, J., dissenting).

. See op. at 158-159 (White, J., dissenting).