Clewis v. State

MANSFIELD, Judge,

dissenting.

Let me acknowledge at the beginning that the opinion of the majority is well-written and is based on generally sound reasoning. However, for the reasons given herein, I cannot agree with its ultimate holding, that is, the standard for reviewing sufficiency of the evidence, established in Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), is inadequate to ensure that individuals will have their claims of insufficiency of the evidence properly reviewed on appeal. Furthermore, I do not agree that a different standard should be used to review “factual” sufficiency claims as opposed to “legal” sufficiency claims.

The framers of the United States and Texas Constitutions took great care to incorporate provisions to safeguard the rights of citizens accused of crimes, at least in part to prevent persons from being convicted for crimes they did not commit. The Fourth Amendment protects citizens from unreasonable searches and seizures, requiring that a warrant be obtained before a person may be arrested or his property searched or seized. The Fifth Amendment also protects us from self-incrimination, double jeopardy and denial of due process of law. The Sixth Amendment provides an accused with the right to a speedy and public trial, the right to an impartial jury, the right to call witnesses in his favor and to confront witnesses against him, and the right to assistance of counsel for his defense. The Eighth Amendment prohibits excessive bail, excessive fines, and the imposition of cruel and unusual punishments. 1

Most of the provisions of the United States Constitution’s Bill of Rights have been extended to protect citizens from actions of state and local governments through various U.S. Supreme Court decisions. See, for example, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969) (Double Jeopardy); Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964) (self-incrimination); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) (Exclusionary Rule); Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965) (Confrontation Clause); Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949).

The Texas Legislature, through the Code of Criminal Procedure, has enacted addition *164 al safeguards to protect the rights of Texans accused of crimes. For example, confessions, to be admissible, must comply with Article 38.22. An arrest warrant must comply with Chapter 15, and a search warrant must comply with Chapter 18. Article 38.23 bars the admission of any evidence against the accused obtained in violation of the laws or Constitution of the United States or of Texas, the statutory equivalent of the U.S. Supreme Court’s Exclusionary Rule.

Texas Rule of Appellate Procedure 81(b)(2) requires this Court, as well as the courts of appeals, to reverse a judgment under review where the appellate record reveals error in the proceedings below, unless the reviewing court determines beyond a reasonable doubt the error made no contribution to the conviction or the punishment.

The Supreme Court of the United States and this Court, in interpreting, respectively, the United States Constitution and the Texas Constitution and the laws of Texas (including the Code of Criminal Procedure) have, by case law, developed additional rules to protect Texans from being unjustly accused and convicted of crimes. To prevent the admission of illegally-obtained evidence at trial, the Exclusionary Rule was established by the Supreme Court in Mapp v. Ohio, supra. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), prohibits racial discrimination in the selection of jurors in criminal cases. A person accused of a crime must be informed as to his rights to remain silent, that anything he says may be used against him and his right to counsel, including his right to appointed counsel if he cannot afford retained counsel. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 (1964); Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).

Finally, a person, after having unsuccessfully appealed his conviction, may contest its validity by applying for a writ of habeas corpus under Article 11.07, and, should he be unsuccessful in state court, he may file an application for a writ of habeas corpus in federal court.

In Thompson v. Louisville, 362 U.S. 199 , 80 S.Ct. 624 , 4 L.Ed.2d 654 (1960), the Supreme Court held that a conviction based on a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. In effect, the Court found that a conviction based on “no evidence” deprives the accused of his due process rights. In In Re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), the Court held the Fourteenth Amendment’s Due Process Clause protects an accused from a criminal conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In Re Winship, 397 U.S. at 364 , 90 S.Ct. at 1073 .

In Jackson v. Virginia, supra, the Supreme Court was faced with the dilemma of giving proper deference to the jury’s power to render its verdict in a criminal case while at the same time exercising its supervisory role as an appellate court to reverse jury verdicts that are arbitrary, capricious and not based on the evidence presented at trial. The Supreme Court in Jackson rejected the “no evidence” standard of Thompson v. Louisville, supra. It held:

After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Woodby v. INS, 385 U.S. 276, 282 , 87 S.Ct. 483, 486 [ 17 L.Ed.2d 362 ] (1966). Instead, the relevant question is whether, after viewing 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.

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“... the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof *165 of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 318-19, 324 , 99 S.Ct. at 2788-89, 2791-92 .

The Supreme Court’s standard gives proper deference to the role of the jury in our criminal justice system. As indicated in the above citation, the Court states clearly that it refuses to substitute its judgment for that of the jury and that it will only overturn a jury’s verdict where “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

As Judge White emphasizes—correctly—in his dissenting opinion, an appellate court, unlike the jury, does not observe the witnesses and is unable to take into account their demeanor in determining their truthfulness or the accuracy of their testimony. An appellate court does not see the accused and is unable to observe his demeanor. All it sees is the record, which is not the same as “being there.” Furthermore, Texas Constitution, Article I, Section 15 has been interpreted by this Court to provide “the jurors are the exclusive judges of the facts and of the issues of the facts.” Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). See also Tex.Code Crim.Proc. Art. 37.13 (“Unless otherwise provided in this Code, the jury is the exclusive judge of the facts....”) and Art. 38.04.

The majority opinion, I believe, does not give deference to the intent of the Legislature as expressed in Article 36.13 and Article 38.04, that is, the appellate courts of Texas are not to second-guess jury verdicts by substituting their own judgment for that of twelve citizens who “were there.” Jackson v. Virginia, supra, established a standard of legal sufficiency review under the federal due process clause applicable to Texas under the Fourteenth Amendment and we have not, to date, gone beyond that standard. Jackson v. Virginia does not conflict with Article 36.13 or Article 38.04; a jury that does not act rationally in arriving at its verdict has failed to fulfill the role assigned to it by the Legislature and its verdict should not be given deference.

This Court has held it may, however, find more protection for persons accused or convicted of crimes under the Texas Constitution than under similar provisions of the United States Constitution. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). Appellant fails, in my opinion, to provide persuasive authority to move this Court to find that a different evidentiary sufficiency review on appeal of jury verdicts is required under the due course of law provision (Art. I, Section 19) of the Texas Constitution than the “any rational trier of fact” standard found by the U.S. Supreme Court to meet the federal constitution’s due process clause requirements in Jackson v. Virginia, supra.

The majority, in my opinion, also does not provide compelling reasons why we should abandon the Jackson v. Virginia standard. Little evidence that the current standard is unworkable or has resulted in the affirmance of unjust convictions is presented in the brief of appellant or in the amicus brief. Second, the Legislature has already established a procedure by which an individual with a legitimate claim of innocence may pursue this claim by filing a post-conviction writ of habe-as corpus under Article 11.07. In State ex rel Holmes v. Third District Court of Appeals, 885 S.W.2d 389 (Tex.Crim.App.1994), we established a procedure by which an individual could present a claim of actual innocence by filing an application for a writ of habeas corpus under Article 11.07. We also established the standard of proof the individual must meet in order to be entitled to a review of his claim of actual innocence as well as the standard of review to be applied by the court in reviewing such a claim. Holmes, supra, at 396-399 . 2

It also should be noted an individual with a valid claim of actual innocence, if unsuccessful at the state level, may pursue federal habeas corpus relief. Jackson v. Virginia and In re Winship are both federal habeas corpus cases, demonstrating clearly that federal habeas corpus is a truly meaningful remedy for pursuing claims of actual innocence. See also, Herrera v. Collins, 506 U.S. 390 , *166 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993), which indicates federal habeas corpus relief would be available to an individual with a meritorious actual innocence claim.

Conclusion

In my opinion, taking into account the constitutional and statutory provisions in place to protect the rights of accused persons, as well as the several post-conviction methods by which convicted individuals can pursue bona fide claims of actual innocence, the Jackson v. Virginia standard of review of claims related to sufficiency of the evidence on appeal is adequate to protect the citizens of Texas from affirmances of unjust convictions. I believe the Due Course of Law provision of the Texas Constitution provides the same level of protection with respect to the right to meaningful appellate review of claims of sufficiency of the evidence as the Due Process Clause of the federal constitution. I therefore cannot agree that the Texas Constitution requires a different standard of appellate review with respect to sufficiency of the evidence claims than that formulated by the Supreme Court in Jackson v. Virginia with respect to such claims under the federal constitution.

Accordingly, I would hold that a single standard, the legal sufficiency standard of Jackson v. Virginia, should apply to all claims of insufficiency of the evidence raised on appeal in criminal cases. Furthermore, I would hold that the Legislature did not intend for Texas courts of appeals to conduct a separate factual sufficiency review 3 of the evidence as doing so would infiinge on the role of the jury assigned to it under Article 36.13 and Article 38.04 as the exclusive judge of the facts. 4 , 5

I respectfully dissent.

. The corresponding provisions of the Texas Constitution are: Article I, Section 9; Article I, Section 10; Article I Sections 11-1 la; Article I, Section 13; Article I, Section 14, Article I, Section 15; and Article I, Section 19.

. Although executive clemency is rarely granted, an individual with a meritorious claim of actual innocence can pursue such a claim through the executive clemency process. See Tex.Code Crim.Proc., art. 48.01; Tex. Const., art. I, section 11.

. Because the claims are essentially identical, I believe that one standard of review should be used to address claims of legal insufficiency as well as claims of factual insufficiency of the evidence. That standard, of course, is that of Jackson v. Virginia. I find it difficult to imagine a case where, if the evidence is factually insufficient to support a jury verdict of guilty, that it would not be also legally insufficient to support said guilty jury verdict.

. Although not addressed by the majority or in appellant's petition for discretionary review, I believe Ae Jackson v. Virginia standard should be applied by Ais Court wiA respect to sufficiency of Ae evidence claims raised in Arect appeals to this Court under Article 37.071 (2) A).

.I reject any suggestion Aat my opinion in any way shows disrespect for Ae courts of appeals of Texas. I merely express my position Aat Ae new standard of review promulgated by Ae majority is not necessary for Ae reasons ouAned in my opinion.