i i i i i i
CONCURRING OPINION
No. 04-05-00164-CR
Fernando LANCON,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2004-CRN-000281-D1
Honorable Manuel R. Flores, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Concurring opinion by: Phylis J. Speedlin, Justice
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: November 12, 2008
I concur in the result reached in the majority opinion because it correctly applies the factual
sufficiency standard of review – as that standard was recently set forth by the Court of Criminal
Appeals in Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008). However, I write separately
to express my deep concern that the Court of Criminal Appeals’s opinion in Lancon restrains
intermediate appellate courts from conducting any meaningful factual sufficiency review in cases
that involve witness credibility, which, for all practical purposes, is the majority of criminal cases.
Concurring Opinion 04-05-00164-CR
See id. at 708 (Johnson, J., dissenting) (characterizing the majority opinion as “eviscerat[ing] our
case law for reviewing the factual sufficiency of evidence and effectively preclud[ing] any
sufficiency review when the jury’s decision is based upon an evaluation of credibility, which
virtually each and every jury verdict is to some extent”). Without expressly acknowledging its intent
to do so, the majority opinion in Lancon modifies prior factual sufficiency case law by effectively
imposing the duty on appellate courts to give “complete or total deference” to jury determinations
of credibility. See id. In doing so, the Court has blurred the line between legal and factual
sufficiency review, and has moved closer to merging the two standards into one. See id. at 708-09.
Phylis J. Speedlin, Justice
PUBLISH
-2-