Watson, Delair

                                                             

 

 

 

 

 

 

 

      IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

 

                                                                             

                                                               NO. PD-0469-05

 

 

                                                   DELAIR WATSON, Appellant

 

                                                                             v.

 

                                                        THE STATE OF TEXAS

 

                         ON STATE=S PETITION FOR DISCRETIONARY REVIEW

                                      FROM THE TENTH COURT OF APPEALS

                                                        MCLENNAN  COUNTY

 

Cochran, J., filed a dissenting opinion, in which Keller, P.J., and Keasler and Hervey, JJ., joined.

 

 

                                                     DISSENTING O P I N I O N

 

I respectfully dissent.  For the reasons set out below, I believe that further efforts to clarify, refine, or revise the Clewis standard are as unlikely to succeed as our previous attempts.  The Clewis factual-sufficiency review was a well-intentioned but ultimately unworkable effort to incorporate civil standards of review on elements of a crime that must be proven beyond a reasonable doubt.  I would overrule Clewis and return to the single standard of review for sufficiency of the evidence in a criminal case as set out by the United States Supreme Court in Jackson v. Virginia.^[1]  Therefore, I would reverse the court of appeals and uphold the trial court=s judgment because the evidence supporting appellant=s conviction was legally sufficient under the Jackson standard.

                                                                 I.

Appellant was charged with burglary by entering Jennifer Romo=s home without consent and attempting to commit or committing sexual assault.  The evidence at trial showed that, on a warm June afternoon, Jennifer Romo was at her kitchen screen door, watching her two pre-school children play in the yard outside her Waco apartment, when she noticed appellant jogging across the parking lot toward her.  Jennifer turned around and went back into her kitchen.  When she turned around again, appellant was standing at her screen door.  He stuck his head and body halfway through the door and put his foot in the doorway.  Appellant tried to have a conversation with Jennifer and kept saying that he knew her.  Appellant was wearing gym shorts, and Jennifer could see that he had an erection.  Finally she told him to leave, and he did. 

Jennifer went into her living room, but a few seconds later she heard the screen door open again.  She turned around and saw appellant standing inside her kitchen.  She was Aextremely@ angry and a little bit scared.  She started forward, screaming at him to get out of her house, but he didn=t move.  AHe just stood there, and he looked at me, and he just dropped his shorts, and they just fell.@  His penis was sticking out.  Jennifer turned around and grabbed a butcher knife.  She testified, AI pointed it at him, and I told him that he better leave my house, that he better get out. . . . He just looked at me, and he grabbed the end of my knife.@  Jennifer twisted the knife to get it out of his hands.  Finally, he let go of it.  Jennifer said, AI guess he thought I meant business because he picked his shorts up and he walked out of the house.@  Jennifer thought that the reason appellant left was because he thought she was going to stab him. 

Jennifer watched as he walked back across the parking lot and sat down on a porch.  Jennifer called her father, who told her to call the police.  When Officer Arnold arrived a few minutes later, appellant was still sitting on the porch.  After talking with Jennifer and taking her statement, Officer Arnold arrested appellant, who gave him a false name.  Officer Arnold formed the opinion that appellant was trying to cover up his culpability. 

The defense presented no evidence, but appellant made a motion for instructed verdict.  He argued that the State failed to offer sufficient evidence to prove appellant Aattempted to commit or actually committed a sexual assault[.]@  The State conceded that there was no evidence that appellant actually committed sexual assault, but argued that

there are plenty of things that he did that go to his attempt to commit a sexual assault.  He pulled down his pants.  He exposed his erect penis, and, critically, he grabbed for a knife when she had grabbed a knife to protect herself.  He didn=t turn and run away.  He put his hand out, and he grabbed that knife, and that tells me that his intent was something more than just to expose himself to her. . . . There was a reason why he came into her house.  He pulled his pants down.  He was ready to do something to her.  You heard her testify that she had one secondBin one second, she had that knife in her hand.  Just because he never got the opportunity to grab her or pull her clothes off, attempt to sexually assault her any further, doesn=t mean that the pulling the pants down and the grabbing of the knife were not an attempt to sexually assault her.  And that is some evidence.  It=s enough evidence that the jury could find beyond a reasonable doubt that he did attempt that offense.

 

The trial judge denied the motion for instructed verdict, and the jury convicted appellant of burglary and sentenced him to thirteen years= imprisonment.

On appeal, appellant argued that the evidence was both legally and factually insufficient.  In a published opinion, a majority of the court of appeals held that, although the evidence was legally sufficient, it was factually insufficient because Athe evidence which tends to support the verdict >preponderates= in favor of conviction but still [is] insufficient to prove the elements of the crime beyond a reasonable doubt.@^[2]  Chief Justice Gray dissented, setting out the inculpatory evidence and concluding, AI guess my response to the majority opinionB>You have got to be kidding=Bmakes me irrational, along with 12 jurors and the trial court.@^[3]          

                                                                II.

Should a Texas jury=s Aguilty@ verdict be subjected to two distinct Asufficiency of the evidence@ hurdles on appellate review?  The first hurdle, Jackson, is the constitutionally required review for legal sufficiency of the evidence.^[4]  The second hurdle was created by this Court in Clewis and draws from Texas civil standards of review.  Since Clewis was decided ten years ago, we have made frequent, but largely futile, attempts to clarify the differences  between these two theoretically distinct sufficiency hurdles in criminal cases.  It is crucial to distinguish clearly the constitutionally mandated hurdle of legal sufficiency from the judicially created hurdle of factual sufficiency.  The result of finding one rather than the other insufficient is dramatically different.  If the evidence is legally insufficient, the defendant is entitled to an acquittal by the appellate court, and he cannot be retried.  If the evidence is factually insufficient, he is entitled only to a second trial in which the State may produce additional evidence to satisfy whatever gaps or conflicts a court of appeals found in the first trial.^[5]  It is essential that evidentiary hurdles like Jackson and Clewis be easily distinguishable.  If they are not easily and logically distinguishable, allowing both to apply muddles the law and violates the cardinal principle of appellate justiceBthe Auniform and coherent enunciation and application of the law.@^[6]

In Jackson v. Virginia, the Supreme Court of the United States held that constitutional due process requires reviewing courts to Adetermine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.@^[7]  In assessing the sufficiency of evidence, Athe 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.@^[8]  The Supreme Court explained:

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Once a defendant has been found guilty of the crime charged, 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.^[9]

 

Under Jackson, appellate courts review a claim attacking the sufficiency of evidence in a criminal case to determine whether the State produced enough evidence to support a Arational@ factfinder=s guilty verdict beyond a reasonable doubt.  A Arational@ verdict is one that is Abased on reason@; it is Anot foolish or silly@; it is Asensible.@^[10]  It is a verdict Abased on, or guided by reason, principle, fairness, [and] logic[.]@^[11]  To ensure that the original factfinder=s weight and credibility decisions are given sufficient deference, the Supreme Court requires reviewing courts to view all of the evidence in the light most favorable to the prosecution.^[12]  

In Clewis, this Court authorized Texas courts of appeals to conduct a second review of the evidence:  a factual-sufficiency review under the following test:

In conducting a factual sufficiency review, the court of appeals Aviews all the evidence without the prism of >in the light most favorable to the prosecution= . . . [and] sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@^[13]

 

On its face, this test differs from the Jackson standard in two ways:  (1) the evidence is not viewed in the light most favorable to the State (which is simply a proxy for deference to the factfinder, either judge or jury); and (2) the verdict, even if rational and reasonable under Jackson, is examined to see if it is so contrary to the overwhelming weight of the evidence, that it is manifestly wrong and unjust.  The issues that have bedeviled this Court and the courts of appeals for the past ten years include:  (1) what, precisely, do those two prongs mean; (2) how does the Clewis standard differ from the Jackson standard; and (3) to what extent is the court of appeals statutorily or constitutionally empowered to act as a thirteenth (and in absentia) juror?  More broadly, do these standards differ sufficiently to require such a dramatic difference in resultBacquittal versus retrial?  And finally, as a matter of public policy, what is the injustice or legal problem that a factual-sufficiency review is intended to solve?  Does it do so satisfactorily?  I do not think so.

To adequately address these issues, however, one must examine the historical development of both Texas and federal appellate review standards for the sufficiency of evidence in criminal cases.

A.        Origins of Texas Appellate Review of the Sufficiency of the Evidence.

Even in the days of the Texas Republic, the Texas Supreme Court could review the sufficiency of evidence to support a criminal conviction.  The earliest known case is Republic of Texas v. Smith,^[14] an 1841 decision, in which the Supreme Court of Texas addressed the threshold question of whether a criminal defendant had a right to appeal Athe facts@ as well as Athe law.@^[15]  Finding that it had jurisdiction Ato have the facts as well as the law, at [the defendant=s] election, opened for re-examination,@^[16] the supreme court reviewed the defendant=s claim that, although he was charged with dealing faro^[17] in Austin, venue was improper in Travis County because, at the time of the offense, Austin was in the territorial jurisdiction of Bastrop County.^[18]  The supreme court said that it would Aconsider the decision of the district judge, with an eye both to the law and the facts as shown by the record.@^[19]  It rejected the defendant=s venue claim.^[20]

The next important decision dealing with Athe facts@ in a criminal case, was Bishop v. State,^[21] decided in 1875.  A jury convicted Bishop of stealing a cow from Mrs. Lizzie Hill.  There was conflicting evidence on whether he Aappropriated@ the cow in good faith by purchasing it from a man named Keel, or he fraudulently took it from Mrs. Hill.^[22]  The jury charge, however, omitted the statutory word Aappropriation@^[23] and its definition.  Given the conflicting evidence on the sole disputed fact issue, this was a material error.^[24]  The trial judge committed a second material error when he told the jury that, in civil cases, Athe jury must believe all evidence given before them until the same is impeached, and in a criminal case they may discard from their consideration any part of the whole of the testimony that they may regard as improbable.@^[25]  The supreme court condemned that statement as infringing upon the jury=s right to make its own credibility decisions, and it noted that Amany improbable things actually do occur, and when detailed in evidence as part of any matter under investigation they are not to be discarded from the consideration of the jury because they are improbable.@^[26]  It is the jury, not the trial judge (and not the appellate court), that makes credibility decisions. ^[27]

These two cases have been cited as supporting the view that Texas appellate courts are authorized to conduct a review of the factual sufficiency of evidence in criminal cases.^[28]  They provide no such support.  Instead, Smith explained that the Texas Supreme Court had jurisdiction over an Aappeal@ from a criminal case, including both the facts and the law, not merely over a Awrit of error@ which, under the early English common law, was a formal point of law that accepted the Afacts@ uncritically.^[29]  And Bishop emphasized the importance of the jury=s factfinding role once it has been properly instructed on the applicable law.  These cases hold that appellate courts may re-examine the factsBthe evidence in the trial recordBin addressing the legal issues. 

In 1875, the supreme court did review the sufficiency of evidence in Tollett v. State,^[30] and, in 1877, the newly created court of appeals did so in Loza v. State.^[31]  In both cases, the reviewing court held that there was not Alegal and competent evidence@ establishing an element of the offense:  in Tollett, the prosecution failed to prove that the defendant  participated in a theft from a storehouse;^[32] in Loza, the prosecution failed to prove that the defendant had the intent to permanently deprive the owner of his gelding.^[33]  The courts used a single sufficiency-of-the-evidence standard:

            whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence as would render it safe to allow the verdict to stand and become a precedent in the adjudication of offenses under the law. The performance of this duty on the part of the court is the exercise of a legal discretion and judgment as to what facts should be sufficient to rebut the legal presumption of innocence to which every one is entitled who is put upon his trial for an offense.^[34]

 

This sounds very much like the Jackson standard appellate courts now use for assessing legal sufficiency of the evidence.  And it was the only standard used.  There were not two distinct Asufficiency of the evidence@ hurdles in the early Texas years.  But, like Smith and Bishop, both Tollett and Loza have been cited as supporting the view that early Texas courts were authorized to consider Afactual@ as well as Alegal@ sufficiency of the evidence in a criminal case.^[35]  In fact, Smith, Bishop, Tollet, and Loza were all properly decided under a Jackson-like standard alone; a separate factual-sufficiency analysis was neither made nor necessary to their resolution.

The most important case discussing sufficiency of the evidence was the court of appeals=s 1883 decision in Walker v. State,^[36] in which the court set out four categories or zones to use in analyzing the question, ADoes the evidence support the verdict of the jury?@

First.  Where the evidence is conflicting, and there is sufficient [evidence], 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 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.^[37]

 

Walker was apparently the first Texas case to specifically set out the Azone@ theory of sufficiency analysis, one that has historically been used to determine whether a party has shouldered his burden of proof by a preponderance of the evidence.^[38]  In zone one, under Walker, the appellate court upholds a criminal conviction when there is sufficient evidence to prove the State=s case (even though the evidence may be conflicting), unless Ait clearly appears to be wrong.@^[39]  Walker=s zone two is a Ano evidence@ standard, and that means no evidence or a mere modicum or scintilla.  Zone three is Ainsufficient evidence,@ more than a mere scintilla but not enough to Arebut the presumption of innocence,@ i.e., not enough to meet Jackson=s Abeyond a reasonable doubt@ standard.  Zone four is a verdict contrary to the Aweight@ of the evidence; this zone translates to the modern Texas civil standard of Aagainst the great weight and preponderance@ of the evidence.^[40]  Missing is zone 5B the modern civil standard of Aconclusive evidence@Bbecause the State is never entitled to a directed verdict of guilty.  The Walker court explained that its duty was to determine which zone the evidence fell into. 

In Walker, the court held that the evidence was Ainsufficient@ (zone 3) to prove that the murder victim had actually died because the State failed to show that the body retrieved 600-900 miles down the Brazos River was actually that of the missing manBW.B. Mathis.^[41]  Thus, the court reversed the defendant=s murder conviction and remanded the case for another trial, giving the State hefty hints on how to produce sufficient evidence in the retrial.^[42]  Walker has been cited as supporting both a legal and factual sufficiency of the evidence review,^[43] even though the court=s decision was fully consistent with the Jackson standard alone.^[44]

In sum, case law before the creation of the Texas Court of Criminal Appeals held that the evidence in a criminal case was required to be Asufficient@ to support a conviction and that evidence was measured against one single standard, but there were various ways of expressing that standard.  When the evidence was insufficient, the case was remanded for a second trial.

B.        Texas Appellate Review of Sufficiency of the Evidence from 1891-1976.

The 1876 Texas Constitution stripped the Texas Supreme Court of jurisdiction over criminal cases and created the Texas Court of Appeals that had jurisdiction over all criminal, county court, and probate appeals.^[45]  A majority of the delegates to the Constitutional Convention of 1875 were progressives and largely anti-government; they were not particularly interested in the judiciary or the structure of state courts, but they had great faith in juriesBtheir fellow citizens.^[46]  Indeed, every Texas constitution had enshrined the right to a trial by jury in both civil and criminal cases, and, under the 1876 Constitution, that right to a jury trial Ashall remain inviolate.@^[47]

In 1891, the Texas Constitution was amended in two important respects.  First, because the overburdened supreme court was so far behind on its docket, the legislature created three courts of civil appeals which had intermediate appellate jurisdiction.^[48]  AThe theory in creating the courts of civil appeals apparently was that their decisions would be final in most civil cases.@^[49]  To help ensure that goal, the constitutional provision creating the courts of civil appeals also stated that Athe decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error.@^[50]  This Afactual conclusivity@ provision did not grant any new, implicit factfinding authority to the courts of civil appeals; instead, it limited the jurisdiction of the supreme court.^[51]  The supreme court was to confine itself to weighty legal principles and conflicts in the law.^[52]  The courts of civil appeals could then consistently apply those enduring legal principles to varying facts, but whenever the law otherwise permits or requires a determination of Athe facts@ for some purpose in an appeal, the decision by a court of civil appeals on those questions of fact was conclusive.^[53]  The Afactual conclusivity@ provision applies only to those factual questions which a statute or other law requires or permits.^[54]

A second 1891 constitutional amendment created the Texas Court of Criminal Appeals that had exclusive appellate jurisdiction over criminal cases.^[55]  The court of criminal appeals reviewed issues concerning the sufficiency of the evidence exactly as the Texas Supreme Court and the Texas Court of Appeals had done before it:  one single standard of review, but many different ways of articulating that standard.  Here are some examples:

*          AIf the guilt of appellant is not made to appear to a reasonable certainty, it is the duty of this court to reverse the judgment@; and [every element] Amust be proven beyond a reasonable doubt; proved by facts and circumstances which lead with reasonable certainty to the conclusion sought, and not left to speculation and surmises[.]@^[56]

 

*          AThis 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.@^[57]

 

*          AThe sanctity of the verdict of the jury is such that it must not lightly be annulled in any case, but the 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.@^[58]

 

*          A[T]his court will reverse a case on the insufficiency of the evidence only when the testimony, viewed in its strongest light from the standpoint of the State, fails to make guilt of the accused reasonably certain.@^[59]

 

*          AOrdinarily if facts be proved from any source which, if believed, would warrant the conclusion of guilt, the evidence is sufficient to support the conviction.@^[60]

 

*          AThe jury is not bound to accept all or any of the testimony of a witness, even though uncontradicted. It is not the prerogative of the appellate court to interfere with the jury's finding on questions of fact where there is evidence authorizing their verdict.@^[61]

 

*          A[T]he jury has been made the exclusive judges of the facts proven and the weight to be given to the testimony . . . this court does not, and should not, assume to exercise the right to reverse on the facts, unless the evidence, when viewed in its strongest light from the standpoint of the State, fails to make guilt reasonably certain.@^[62]

*          AIn reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict.  In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused.@^[63]

Until Clewis in 1996, this Court had consistently used a single standard (although the precise phrasing varied) and reviewed the evidence in the light most favorable to the factfinder, giving great deference to the jury=s credibility and weight determinations.  But it did not hesitate to reverse a conviction if the evidence failed to prove a defendant=s guilt Awith reasonable certainty,@ or Abeyond a reasonable doubt.@  Until Jackson in 1979, the result of a finding of insufficient evidence in Texas was always the same:  remand and retrial.  There was no acquittal on appeal when the evidence was insufficient.  So matters stood until the United States Supreme Court mandated a constitutional, due process review of sufficiency of the evidence for all courts.

C.        The United States Supreme Court Announces Constitutional Standards of Review and Double Jeopardy Consequences of Insufficient Evidence.

 

In 1979, the Supreme Court, in Jackson v. Virginia, held that the Due Process Clause of the federal constitution requires the government to produce Asufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.@^[64]  The Court explicitly rejected a Ano evidence@ standard of review that it had applied nineteen years earlier in Thompson v. Louisville.^[65]  In Thompson, the Supreme Court had concluded that Awe find no evidence whatever in the record to support these convictions.  Just as >Conviction upon a charge not made would be sheer denial of due process,= so is it a violation of due process to convict and punish a man without evidence of his guilt.@^[66]  In Jackson, the Court explained that the Ano evidence@ doctrine Asecures to an accused the most elemental of due process rights:  freedom from a wholly arbitrary deprivation of liberty[,]@^[67] but that standard is inadequate for Aa question of evidentiary >sufficiency.=@^[68]  Instead, the correct standard must incorporate the prosecution=s burden of proofBbeyond a reasonable doubtBin a due-process review.  The Court noted that a A>reasonable doubt= has often been described as one >based on reason which arises from the evidence or lack of evidence.=@^[69]  For example, a reasonable doubt might arise because the verdict is manifestly against the great weight and preponderance of the evidence or because there is nothing more than a mere scintilla of evidence to support some element of the offense.  But, of course, the reviewing court does not A>ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.@^[70]  Rather, it Agives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@^[71]  Thus, Aall of the evidence is to be considered in the light most favorable to the prosecution@ because the reviewing court may impinge upon A>jury= discretion only to the extent necessary to guarantee the fundamental protection of due process of law.@^[72] 

In sum, due process does not permit legal sufficiency of the evidence to be measured by a Ano evidence@ (zone 1) standard; it must be measured in terms of the prosecution=s constitutionally-mandated Abeyond a reasonable doubt@ burden of proof (which does not correlate to any of the Azones@ in civil review standards fashioned on the Aby a preponderance of the evidence@ burden of proof), but giving great deference to the jury=s role in assessing credibility, weight, and reasonable inferences.^[73]

The Jackson Alegal sufficiency@ standard is the one required by the United States Constitution, and every state and federal court must comply with that standard.^[74]  It is the only standard required for reviewing sufficiency of the evidence.  While noting that Astates are free to set higher standards of review[,]@ this Court quickly adopted the Jackson standard for the review of sufficiency of the evidence.^[75]  We adhered to that single, constitutionally mandated standard for seventeen years.^[76]  Similarly, the Texas Legislature declined hints in Griffin that it could set a higher standard of review; it did not enact any statutes to heighten the Jackson sufficiency review.

The legal consequence of a finding of insufficient evidence under the Jackson standard is an acquittal on appeal; any retrial is barred by double jeopardy principles.^[77] However, in its 1982 decision in Tibbs v. Florida,^[78] the Supreme Court held that, if a state chooses to conduct a factual, as well as legal, sufficiency review, double jeopardy does not bar a retrial.^[79]  The Supreme Court explained,

A reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.  Instead, the appellate court sits as a Athirteenth juror@ and disagrees with the jury=s resolution of the conflicting testimony.  This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. . . . Similarly, an appellate court=s disagreement with the jurors= weighing of the evidence does not require the special deference accorded verdicts of acquittal.^[80]

 

Thus, an appellate reversal based on the weight of the testimony Asimply affords the defendant a second opportunity to seek a favorable judgment@ because such a reversal can occur only after the State has produced sufficient evidence to convict and has persuaded the  jury to convict.^[81]

Ironically, the Florida Supreme Court had, in the Tibbs case itself, jettisoned its judicially created Afactual sufficiency@ review because it was conceptually flawed and  unworkable in practice.^[82]  Although it noted that a state rule of criminal procedure allowed a trial judge to grant a motion for new trial if the jury verdict is Acontrary to the law or weight of the evidence,@ the Florida Supreme Court concluded that Aan appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact.@^[83]  ALegal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.@^[84]  The court recognized that the language in some earlier opinions was ambiguous and could be interpreted as calling for a review of factual sufficiency, but the notion of factual-sufficiency review had Aa questionable historical foundation.@^[85]  Furthermore, the court concluded that A[c]onsiderations of policy support, if not dictate@ elimination of factual-sufficiency review on appeal.^[86]  First, the court noted that the proper role of appellate courts in Florida criminal cases was to leave questions of the weight of the evidence to the trier of fact.^[87]  Second, eliminating factual-sufficiency review Awill avoid disparate appellate results@ or further review to determine whether a reversal is based on legally or factually insufficient evidence.^[88]  Third, abolishing a factual-sufficiency review will Aeliminate any temptation appellate tribunals might have@ to reverse for factual insufficiency to avoid the double-jeopardy bar on retrials for legal insufficiency.^[89]  The Florida Supreme Court concluded that twelve ordinary citizens sitting as jurors are better able to determine the credibility of the witnesses and the weight of the testimony than are appellate judges reading the written record.  A factual-sufficiency review on appeal contradicts that fundamental fact.

D.        Texas Standards for Reviewing the Sufficiency of Evidence to Reject an Affirmative Defense.

 

The first time that this Court directly addressed the concept of factual-sufficiency review was in Schuessler v. State,^[90] a 1986 case in which the court of appeals had held that the jury=s rejection of his affirmative defense of insanity was against the great weight and preponderance of the evidence.^[91]  This Court rejected that standard, even for affirmative defenses in which the defendant bears the burden of proof by a preponderance of the evidenceBa civil law standardBbecause there can be Ano reweighing or reclassifying of the evidence by the appellate court.@^[92]  This Court then appliedBto the rejection of an affirmative defenseBthe same Jackson standard of legal sufficiency that it routinely applied to the elements of the criminal offense.^[93]

Judge Clinton dissented because the issue of insanity is not an element of the criminal offense and thus is not governed by the due process standard set out in Jackson.^[94]  He explained,

          When an affirmative defense is not an element of an offense charged and Winship is not implicated by allocation of burden of proving an affirmative defense, it follows that Athe critical inquiry on review of the sufficiency of the evidence to support a criminal conviction@ prescribed by Jackson v. Virginia is irrelevant to a review of sufficiency of evidence relating to an affirmative defense.  The trier of fact was not called on to view the evidence in the light most favorable to the prosecution in order to find Athe essential elements of the crime beyond a reasonable doubt.@  Rather, its function was to determine whether an accused has proved an affirmative defense Aby a preponderance of the evidence.@^[95]  

 

Judge Clinton=s position was adopted four years later in Meraz v. State,^[96] a case in which the defendant appealed the jury=s rejection of his plea of incompetence.  In Meraz, this Court applied the civil law factual-sufficiency standard when the party who bears the burden of persuasion by a preponderance of the evidence complains that the rejection of his issue is Aagainst the great weight and preponderance of the evidence.@^[97]  This Court reasoned that

the utilization of the standard of review constitutionally reserved for the courts of appeals and required by the Texas Supreme Court to be applied in situations where the burden of proof was on the individual claiming factual insufficiency does not impede a defendant from seeking a factual review relevant to his affirmative defense nor does it preclude him from a sufficiency review as to whether there was sufficient evidence to warrant a conviction.  The two reviews are mutually exclusive.^[98]

 

Indeed, this Court was exactly correct:  the two different types of review are mutually exclusive.  Review for legal sufficiency under the Jackson Abeyond a reasonable doubt@ standard is required for every element that supports a conviction, but a sufficiency-of-the-evidence review under civil standards is appropriate when reviewing affirmative defenses in which the defendant bears a burden of Apreponderance of the evidence.@^[99]  In Meraz, this Court held that the Afactual conclusivity clause@ of the Texas Constitution applies when the defendant bears the burden of proof by a preponderance of the evidence.^[100]              

And this Court followed Meraz in Bigby v. State,^[101] by reviewing the sufficiency of the evidence that supported the jury=s rejection of the defendant=s affirmative defense of insanity in a capital murder trial.  In Bigby, as in Meraz, the burden of proof was on the defendant to establish his defense by a preponderance of the evidence.^[102]  In that context, use of the civil standards adopted by the Texas Supreme Court is entirely appropriate.   In these cases, Texas courts have the power and authority to conduct a sufficiency review of the evidence under controlling supreme court precedent because:  (1) both the burden of production and persuasion is on the defendant; and (2) that burden is the civil standard of proof Aby a preponderance of the evidence.@^[103]  Both Meraz and Bigby are in line with the historical and jurisprudential underpinning of Texas civil law and the Texas Constitution.  We followed our brethren on the Texas Supreme Court in applying the factual conclusivity clause to those Aquestions of fact@ for which the proponent bears the burden of proof by a preponderance of the evidence.^[104]  And we should continue to follow that court=s development of sufficiency-of-the-evidence review when the proponent bears the burden of proof by a preponderance of the evidence.^[105]

The real issue is not whether Afactual sufficiency@ review exists in Texas law.  The issue is whether Afactual sufficiency@ review applies to the elements of a criminal offense that the State must prove beyond a reasonable doubt.  And, of course, both this Court and the courts of appeals have the authority to review Athe facts@ as well as the law.^[106]  If Athe facts@ do not establish every element beyond a reasonable doubt, those Afacts@ require an appellate court to acquit the defendant under Jackson. 

But two years after this Court delivered Meraz, one court of appeals, in Stone v. State,^[107] applied the Meraz reasoning to a factual-sufficiency review of the elements of the offense, even though those elements must be proven beyond a reasonable doubt and are subject to a constitutional sufficiency review under Jackson.^[108]  The court of appeals stated that, under the Afactual conclusivity clause,@ it had the power to review the factual sufficiency of the evidence to support a conviction as well as the power to review the factual sufficiency to support affirmative defenses:

[T]he Jackson test does not logically preclude factual-sufficiency review. Jackson requires the appellate court to view the evidence in the light most favorable to the prosecution.  Jackson permits the states to devise tests for factual-sufficiency review that do not indulge in presumptions in favor of either side.  Because Jackson does not preclude factual-sufficiency review and because we see nothing in the Meraz opinion that limits the pre-existing factual-sufficiency review power of the courts of appeals to matters the defendant must prove, we conclude that a criminal defendant is entitled to a factual-sufficiency review as a matter of state constitutional law.^[109]

 

Jackson does not, of course, preclude a state from enacting a factual-sufficiency review, but neither does it suggest that such review is necessary, appropriate, or useful.  Until the court of appeals=s decision in Stone, no Texas court had found a constitutional right to a factual-sufficiency review of the elements of a criminal offense.^[110]  There is nothing in the Afactual conclusivity@ clause of the Texas Constitution that grants authority to the courts of appeals to create a factual-sufficiency review of criminal convictions absent some statutory enactment or other law.  Because that provision does not grant any new authority to the courts of appeals, a defendant does not have a constitutional Aright@ to a factual-sufficiency review of his conviction based solely upon the Afactual conclusivity@ clause.  Any right to a factual-sufficiency review of the elements of a criminal offense must exist elsewhere in the law, if at all.  Although the Texarkana Court of Appeals adopted the Stone reasoning and result,^[111] other courts of appeals rejected it.^[112] 

The reasoning and result in Stone were premised upon the proposition that the intermediate courts of appeals are vested with the authority to review factual sufficiency in criminal cases under Article V, section 6 of the Texas Constitution (the factual conclusivity clause).^[113]  However, the constitutional provision says nothing about any Texas court=s authority to conduct a factual-sufficiency review of the evidence in a criminal case.  As discussed above, it is only when the law otherwise allows or requires the review of a factual question that the conclusivity clause applies.^[114] 

In 1979, this Court had held, in White v. State, that we have Ano 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,@^[115] the defendant=s contention that his court could review factual sufficiency was rejected.^[116]  If this Court, in 1979, did not have jurisdiction to conduct a factual-sufficiency review, the courts of appeals could not gain any Afactual conclusivity@ power from us when, two years later, they were authorized to review criminal cases. 

This conclusion was reiterated by the Texas Legislature in 1981 when it amended what is now section 22.225 of the Texas Government Code.  That provision states, AA judgment of a court of appeals is conclusive on the facts of the case in all civil cases.@^[117]  This section says nothing about the conclusivity of factual findings in criminal cases.^[118]  Furthermore, this Court had, until Clewis, always held that neither we nor the courts of appeals had any jurisdiction to assess the factual sufficiency of evidence in a criminal case:

It is well settled that our Court does not have jurisdiction to pass upon the weight and preponderance of the evidence or "unfind" a vital fact.  More specifically, our determinations of sufficiency of the evidence have never involved passing upon the weight and preponderance of the evidence. . . . In deciding sufficiency of the evidence questions this Court views the evidence in the light most favorable to the verdict. . . . Sufficiency of the evidence as determined by this Court is a question of law.  It is irrelevant whether we as a court believe the evidence, or believe that defense evidence "outweighs" the State's Evidence.  If there is any evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds.^[119]

 

Furthermore, the Code of Criminal Procedure contains two provisions that explicitly state that the jurors are the exclusive judges of facts in jury trials.^[120]  Articles 36.13 and 38.04 are clear statutory mandates which cannot be reconciled with a judicially created doctrine that authorizes the courts of appeals to redetermine the facts and the weight of the testimony or Aunfind@ facts that the jury has found.  There are no analogous mandatory provisions like these articles for civil cases.^[121]  Thus, trial courts and courts of appeals may have implicit authority to redetermine or Aunfind@ facts and to reweigh evidence in civil cases, but they do not have similar authority in criminal cases because articles 36.13 and 38.04 clearly forbid any such reweighing or Aunfinding.@            

E.        Clewis.

In 1996, this Court resolved the split in the courts of appeals on the issue of factual- sufficiency review.  In a fractured 5-4 opinion in Clewis v. State,^[122] this Court rejected Justice LaGarde=s thorough explanation in the court of appeals of why factual-sufficiency review in criminal cases was neither authorized nor appropriate.^[123]  Instead, the Court adopted the reasoning and result in Stone.^[124]  This Court cited an example to explain why factual-sufficiency review was an important safeguard against runaway juries:

The prosecution=s sole witness, a paid informant, testifies that he saw the defendant commit a crime.  Twenty nuns testify that the defendant was with them at the time, far from the scene of the crime. Twenty more nuns testify that they saw the informant commit the crime.  If the defendant is convicted, he has no remedy under Jackson because the informant=s testimony, however incredible, is legally sufficient evidence.^[125]

 

Of course, this was a law-school hypothetical;  no one had heard of such a bizarre jury which would reject the eyewitness testimony of forty nuns and believe a single paid informant instead.  Would such a result be the product of a Arational@ or Areasonable@ jury under Jackson?  Would the United States Supreme Court (or this Court) uphold such a verdict under its carefully crafted language that, given this evidence, any Arational trier of fact could have found the essential elements of the crime beyond a reasonable doubt?@  Under the hypothetical as presented, it would appear to be an irrational verdict.  But suppose that the defendant were a priest?  Or that the defendant had just donated a million dollars to the local convent?  Or that the nuns were inconsistent and contradictory on all of the underlying details of their testimony?  We defer to the jury=s credibility and weight determinations because they have seen and assessed the witnesses in person, and they have heard all of the evidence, not just the bare-bone facts of a hypothetical.

Nonetheless, in Clewis, this Court judicially created a new appellate standard for reviewing the factual sufficiency of evidence on top of the legal sufficiency review which had, under various phrasing, existed in Texas for 150 years.  Under that newly minted standard,

an appellate court reviews the factfinder=s weighing of the evidence and is authorized to disagree with the factfinder=s determination.  This review, however, must be appropriately deferential so as to avoid an appellate court=s substituting its judgment for that of the jury.^[126]

 

Thus, Clewis empowered the courts of appeals to act as a Athirteenth juror@ (one who was not even present to see and hear the witnesses) and disagree with the factfinder=s determination, but to be deferential to the factfinder=s judgment as it did so.  This standard was ambiguous and contradictory from the beginning.

In the past ten years Texas courts have seen how it works in practice.  Our decision in Clewis has been cited, distinguished, explained, criticized, limited, clarified, or applied in more than 5,000 cases, eleven law review articles, and nine treatise sections.^[127]  It has kept lawyers, judges, and paper mills busy.  We have Aclarified@ or Arefined@ Clewis in at least six cases ourselves because we did not initially explain precisely how a factual-sufficiency review differs from a legal sufficiency review.  It is to those cases I now turn.

F.        Attempts to Clarify Clewis.

The first clarification came in the same year that Clewis was decided.  In Jones v. State,^[128] a capital murder case, this Court stated that a factual-sufficiency review requires the appellate court to review all of the evidence, not just the evidence which supports the verdict.^[129]  AThe appellate court reviews the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compares it to the evidence which tends to disprove that fact.@^[130]  But the reviewing court must be appropriately deferential to the factfinder,

finding fault only when Athe verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust.@  Examples of such a wrong and unjust verdict include instances in which the jury=s finding is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@^[131]

 

This Court=s conscience was not shocked by the jury=s verdict in Jones.  We rejected the defendant=s factual-sufficiency claim because there was conflicting evidence of whether he

intended to shoot the murder victim.^[132]

In 1997, the year after Clewis was decided, this Court held, in Cain v. State,^[133] that the courts of appeals must continue to give considerable deference to the original factfinder under a factual-sufficiency review.^[134]  In that case we reversed the court of appeals because Ait was not deferential to the jury=s determination of witness credibility.@^[135]  Thus, the weight to be given to Acontradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor.@^[136]  Under this deferential standard, however, the testimony of the forty nuns in the Clewis hypothetical could well be rejected because acceptance of their testimony turns on an evaluation of credibility.^[137]

Our next major foray into an explication of Clewis was in  Johnson v. State^[138] in 2000.  There we found that the court of appeals had correctly found the evidence factually insufficient to support the aggravated sexual assault victim=s identification of the defendant because she was not Aa hundred percent positive@ that he was her assailant and DNA tests showed that the defendant and assailant were both members of a group consisting of 8.5% (according to the State=s expert) to 26% (according to the defense expert) of the black population.^[139]  We stated:

The degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record.  A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record.  Such an approach occasionally permits some credibility assessment but usually requires deference to the jury=s conclusion based on matters beyond the scope of the appellate court=s legitimate concern.  Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.^[140]

 

After discussing both Cain and Johnson, Professor Dix, for one, concluded that Ait is arguable that little meaningful difference exists between Clewis factual-sufficiency review and traditional review of the evidence for legal sufficiency.@^[141]

In 2001, we took another stab at clarifying Clewis in Goodman v. State.^[142]  In that case, we acknowledged that A[p]erhaps the problem is that this Court has not always been crystal clear in explaining how the courts of appeals should analyze factual-sufficiency questions in a criminal case.@^[143]  We relied heavily upon Chief Justice Calvert=s 1960 law review article explaining Ano evidence@ and Ainsufficient evidence@ standards in civil cases^[144] and distinguished the two types of civil factual-insufficiency zones.  In zone two, Athe evidence in support of the existence of a vital fact, considered standing alone, is factually too weak to support it.@^[145]  In zone four, there is conflicting evidence, A[s]ome evidence supports a positive inference, and some evidence supports a negative inference.@^[146]  When the conflicting evidence is in Afair equipose,@ a reviewing court may not conclude that it is against the great weight and preponderance of the evidence or that it is manifestly unjust.  Only when the evidentiary scales tip Aradically@ toward a negative finding on an essential element may the reviewing court exercise any Athirteenth juror@ role and conclude that the jury=s verdict is Aclearly wrong.@^[147]  The problem with Goodman, like that of all of our Texas factual-insufficiency cases, is that it attempted to force a square peg into a round hole.  That is, the Jackson legal-sufficiency test already incorporates the State=s burden of proof and persuasionBbeyond a reasonable doubtBinto its analysis while the civil standard uses a zone theory of analysis to inferentially incorporate a Apreponderance of the evidence@ burden of proof.  The zone theory may be useful for analyzing sufficiency issues for a defendant=s affirmative defense because those defenses must be proven by a preponderance of the evidenceBthe same standard as in Texas civil law.  But it does not translate into a second-tier sufficiency review when the State must prove every element beyond a reasonable doubt and the reviewing court must ensure that there is sufficient evidence to support a reasonable, rational verdict with proof beyond a reasonable doubt. 

Under Clewis, the reviewing court views all of the evidence in a neutral or impartial light, not in the light most favorable to the prosecution (or the jury=s verdict).^[148]  This Aneutral light@ review seems to be the driving force behind Clewis: it circumvents Jackson=s Ain the light most favorable to the prosecution@ requirement.  While this phrase might sound like pro-prosecution rhetoric, in fact it defers only to the factfinder=s verdict, because the only criminal trials reviewed for sufficiency of the evidence on appeal are those in which the factfinder (whether judge or jury) agreed with the prosecution. The prosecution can never appeal the sufficiency of evidence when a judge or jury acquits a defendant, regardless of how Amanifestly wrong,@ Aunjust,@ or irrational the factfinder=s verdict  may appear to be.

In our 2003 Swearingen v. State^[149] decision, we reiterated the importance of giving deference to the factfinder=s credibility and weight determinations, i.e., the reviewing court must look at the evidence in the light most favorable to the jury=s assessment of credibility and weight.

Although authorized to disagree with the jury=s determination even if probative evidence exists which supports the verdict, a reviewing court must give due deference to the fact finder=s determinations concerning the weight and credibility of the evidence and will reverse the fact finder=s determination only to arrest the occurrence of a manifest injustice.  In assessing the factual sufficiency of the evidence to support a conviction we consider all the evidence in a neutral light.^[150]

 

These two sentences are internally inconsistent.  One cannot view the evidence in a neutral light while at the same time giving deference to the factfinder=s determinations of weight and credibility. 

In our 2004 decision in Zuniga v. State,^[151] we again marched into the field of factual insufficiency, once more acknowledging that the evolution of factual-sufficiency review Ahas been somewhat confusing.@^[152]  In Zuniga, we further refined the zone four  Aagainst the great weight  of the evidence@ prong of factual insufficiency, and stated:

We will attempt to resolve some of the confusion created by the standard that has developed since Clewis by:  1) linking the burden of proof at trial to the standard of review and 2) avoiding language suggestive of a preponderance-of-the-evidence burden of proof. . . . There is only one question to be answered in a factual-sufficiency review:  Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?  However, there are two ways in which the evidence may be insufficient.  First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Second, there may be both evidence supporting the verdict and evidence contrary to the verdict.  Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.  This standard acknowledges that evidence of guilt can Apreponderate@ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.  Stated another way, evidence supporting guilt can Aoutweigh@ the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.^[153]

But incorporating the Abeyond a reasonable doubt@ standard into factual-sufficiency review returned us to the Jackson legal sufficiency standard.  Compare the wording of the two standards:

*          Athe 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@^[154] (legal sufficiency);

 

*          AConsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?@^[155] (factual sufficiency).

 

One is hard-pressed to adequately explain the distinction between these two standards of review, yet a finding of legal insufficiency leads to an acquittal, while factual insufficiency leads to a retrial.  The only way that these two standards can be distinguished is by viewingBin a factual-sufficiency reviewBall of the evidence with divine neutrality and refusing to give any deference to the jury=s assessment of weight and credibility.  This type of review explicitly makes the reviewing court a Athirteenth juror@ who makes an independent, de novo determination of credibility and the weight to be given the testimony and the inferences to be drawn from the base facts.  Such a review violates articles 36.13 and 38.04 of the Code of Criminal Procedure because the legislature has explicitly decreed that the jury is Athe exclusive judge of the facts proved, and of the weight to be given to the testimony.@^[156]  Therefore, I certainly agree with the Court=s decision today to overrule, or at least modify, Zuniga.

But I would go further.  I, like the Florida Supreme Court did in Tibbs, would conclude that there is little historical basis in Texas for creating a factual-sufficiency review as an addition to the constitutionally mandated legal-sufficiency standard.  I would further conclude that neither Clewis nor its progeny adequately explain the dynamics of a factual-sufficiency review or how appellate courts are to view the evidence both Aneutrally@ and with deference to the factfinder. 

Ironically, at the very time we were attempting to devise a workable structure by which to review the elements of a criminal offense under a civil-law standard that depended upon a preponderance-of-the-evidence burden of proof, our brethren on the Supreme Court of Texas were attempting to devise a workable standard for reviewing the sufficiency of evidence when a party has a heightened burden of proofBi.e., when the burden of proof was Aclear and convincing.@  They, like us, had a difficult time trying to force a square peg into a round hole of factual sufficiency review.  In Southwestern Bell Telephone Co. v. Garza,^[157] that court seemingly came to the same conclusion that I would reach: the factual conclusivity clause applies only to Aquestions of fact@ for determining the sufficiency of evidence when the proponent bears a burden of proof by a preponderance of the evidence.^[158]  And, after City of Keller, even that proposition may be doubtful. 

I turn now to the question of whether the creation and application of a factual- sufficiency review by appellate judges is nonetheless good public policy that should be maintained despite its manifold problems.

                                                                            III.

The creation of a factual-sufficiency review in Texas criminal cases has come at an enormous jurisprudential price.  As noted above, Clewis has been cited, discussed, or applied in almost 6,000 Texas criminal cases since 1996.  This Court has spent considerable time and energy in its attempts to clarify Clewis.  Litigants and the courts of appeals have expended enormous resources in attempting to understand Clewis and apply the factual-sufficiency construct to the cases before them.  However, as Professor Dix has noted, the courts of appeals have found the evidence factually insufficient in a minuscule number of cases.^[159]

Nonetheless, such an enormous expenditure of judicial time and resources might be a worthwhile investment if a factual-sufficiency review were directed toward a widely acknowledged Aevil@ in the Texas criminal justice system, and if it solved that serious problem effectively and efficiently.  Unfortunately, there is nothing in Clewis (or its  progeny) that points to any systemic criminal justice problem that a factual-sufficiency review might have been designed to resolve.  Although this Court set out the Aforty nuns@ hypothetical in Clewis to show how a Jackson legal-sufficiency review might uphold such a conviction whereas a factual-sufficiency review would presumably reverse such a conviction, I am unable to find any Aforty nun@ type cases.  Professor Dix has cited only twelve published cases in which the courts of appeals have reversed on factual insufficiency grounds,^[160] and most of these were split decisions, while others were vacated by this Court because the lower court used the Awrong@ Clewis analysis.

Furthermore, the Aforty nuns@ scenario does not pose a serious threat to the integrity of the criminal-justice system in the rest of the United States.  I am aware of only two other jurisdictions, New York and the United States military courts, that currently employ a factual-sufficiency review.  In each of those jurisdictions, a statute explicitly authorizes such a review.^[161]  There is no such statute in Texas. 

The jurisprudential evil to which a factual-sufficiency review might legitimately be a solution is the conviction of an innocent person by a biased, irrational jury.   But that is precisely what the Jackson legal sufficiency review is designed to prevent.  I am unaware of any evidence that this standard is insufficient protection of a defendant=s right to legally sufficient proof of every element beyond a reasonable doubt.

One of the practical problems that the Florida Supreme Court noted when it rejected its factual-sufficiency doctrine was the Atemptation appellate tribunals might have to direct a retrial merely by styling reversals as based on >weight= when in fact there is a lack of competent substantial evidence to support the verdict or judgment and the double jeopardy clause should operate to bar retrial.@^[162]  Although I am confident that an appellate court would not knowingly reject a valid complaint of legal insufficiency and instead grant a factual-insufficiency claim to avoid a double jeopardy bar, there may be a natural disinclination to award an appellate acquittal to a defendant who has been convicted by a jury of twelve citizens.  Given the barely visible distinction between these two standards of review, a defendant who should be entitled to a complete acquittal may be forced, because of a Acompromise@ appellate factual-sufficiency review, to spend the time, money, and mental anguish to undergo another trial and perhaps another jury conviction. 

To the extent that Clewis addresses a problem in the Texas criminal-justice systemB manifestly unjust convictions that shock the conscience of the appellate courtsBthat problem can be resolved more satisfactorily in other ways. 

First, reviewing courts must apply the Jackson legal sufficiency standard robustly, taking into account all of the evidence, although viewed in the light most favorable to the jury=s verdict.^[163]  If that evidence supports a rational and reasonable finding of guilt beyond a reasonable doubt, it cannot be said that the jury=s verdict is manifestly unjust or shocks the conscience of the reviewing court.  The verdict is either rational and reasonable or it is not; it cannot be Asemi-rational@ and still meet the Jackson standard.  There is no jurisprudential value in reversing a rational, reasonable verdict and forcing the parties to go back and do it again. 

Second, if the legislature is concerned by potential Arunaway@ juries that render guilty verdicts which are simultaneously rational and reasonable, yet biased and manifestly unjust, it may enact a statute mandating Afactual sufficiency@ review.  The most appropriate Athirteenth juror@Bthe person authorized to second guess the jury=s credibility and weight decisionsBwould be the trial judge who has at least seen all of the witnesses first-hand, and judged their demeanor and credibility on a personal basis.  He, much more than the distant appellate courts relying solely upon the cold written record, can take the pulse of the jury, the advocates, the witnesses, and the defendant.  Further, he would be privy to in-chamber or side-bar discussions not available to the jurors.  If there is to be a factual-sufficiency review, it ought to be pursued in a motion for new trial under legislatively enacted statutes and standards. 

Third, in the very same year that this Court created Afactual sufficiency@ review in Clewis, it also recognized Aactual innocence@ claims in post-conviction writs of habeas corpus.^[164]  Although such claims depend upon newly discovered evidence that was unavailable at the time of trial, this is certainly one mechanism to exonerate those whom a jury should not have convicted.^[165]

Last (and least), as Judge White pointed out in his Clewis dissent, A[i]f a defendant=s verdict of guilt confining him to prison were manifestly unjust due to a failure of the sufficiency of the evidence, would not this qualify as a ground of innocence to warrant a grant of executive clemency?@^[166]

In sum, there are alternate methods by which the criminal justice system can address the A40 nuns@ hypotheticalBthe problem of a rational jury which reaches a unanimous guilty verdict, based on evidence that proves every element of the offense beyond a reasonable doubt, which is, nevertheless, Aclearly wrong and unjust.@

I think that the Clewis Afactual sufficiency@ review is internally inconsistent and denigrates the role of juries in the state of Texas by requiring a Aneutral@ review of the evidence, while simultaneously espousing deference to the jury=s exclusive role in assessing credibility and the weight to be given to the evidence.  It has not contributed to the integrity of the appellate review process; it has led to inconsistent results; and it has required numerous, but futile, attempts to clarify its content and application.  Furthermore, the dual legal- and factual-sufficiency review mandated by Clewis upended over 150 years of Texas case law that had employed a single standard for the review of sufficiency of the evidence in a criminal case.

                                                                            IV.

The present case exemplifies the problems created by the Clewis factual-sufficiency review because it deals with conflicting inferences that might reasonably be drawn from the same basic facts.  Twelve jurors, one trial judge, and the Chief Justice of the Waco Court of Appeals all concluded that it was a reasonable inference that appellant attempted to commit sexual assault upon Jennifer Romo after he entered her home without consent, dropped his shorts to expose his erect penis, came toward her as she grabbed a butcher knife to defend herself, and attempted to pull it out of her hands. 

Two justices of the Waco Court of Appeals concluded that an even more reasonable inference was that appellant did not attempt to commit sexual assault because (1) he Adid not say anything threatening or anything to indicate he intended to sexually assault [Jennifer] Romo@; (2) Ahis conduct in grabbing the knife could also be viewed as an effort to defend himself@; (3) Ahe did not flee the apartment complex@; and (4) Jennifer=s father Atestified that her emotional state at the time was one primarily of anger and confusion rather than fear.@^[167]  All of these basic facts are true.  A rational trier of fact might well conclude from these facts that appellant was not guilty of attempting to sexually assault Jennifer Romo.  This jury did not do so.  It rejected this inference and instead concluded, from the totality of the basic facts proven, that appellant did attempt to commit sexual assault.  Drawing inferences from basic facts to the elements of the offense is the jury=s job as long as those inferences are rational and reasonable.  The mistake that Clewis invites is the appellate court=s substitution of what it considers Aa more reasonable@ inference from the basic facts than the reasonable inference that the jury did, in fact, draw.

The issue of whether appellant attempted to sexually assault Jennifer Romo was well presented by both the State and defense in this case.  Both advocates cogently argued their respective positions that the evidence did or did not support a finding, beyond a reasonable doubt, that appellant intended to sexually assault Jennifer Romo and had attempted to do so.  Appellant emphasized that Jennifer Romo was Amad,@ not Ascared@ by appellant=s actions, and she Ahad no idea what [appellant=s] intent was.@  He noted that appellant never touched Jennifer or her clothes.  The jury rejected the inferences that appellant asked it to draw.  It chose to agree with the inferences drawn from this evidence that support the conclusion that appellant did, in fact, attempt to sexually assault Jennifer Romo.  Two members of the court of appeals agreed with appellant=s argument.  But that agreement does not render the evidence either factually or legally insufficient, nor does it mean that the jury=s verdict was the product of bias or the result was manifestly unfair.  Factual disagreements and disputes lie at the heart of our jury system.

We are most likely to invoke the collective wisdom of a jury when the basic facts are in dispute or when the logical inferences to be drawn from base facts conflict.  Trials are generally unnecessary in the Aeasy@ cases, the Awhale in a barrel@ cases; they generally result in a plea bargain.  It is when the direct testimony conflicts or the logical inferences that may be drawn from the circumstantial evidence differ, that a jury is needed to resolve those conflicts.  However, it is precisely in those cases that an appellate court is most likely to second guess a jury, but it does so without considering whether the jury=s credibility and weight decisions were made on the basis of irrational bias and prejudice as opposed to rational deduction or induction.  The fact that a jury chose one rational alternative as opposed to another rational alternative is not a basis for reversal, but that is precisely what the Clewis standard permits.  It permits a fortuitous Alightning strikes@ reversal based on whether an appellate court (without personally seeing or hearing the witnesses) differs with a jury on its choice of what inference should be drawn or what weight should be given to certain direct testimony.  Although reversals under Clewis are rare, they are also random, inconsistent, and based primarily on Athe luck of the draw.@

I would therefore overrule Clewis and all of its progeny, including Zuniga.  Because the majority lops off only the most recent branch of Clewis and does not address the root of the problem, I most respectfully dissent.

 

Filed:  October 18, 2006

Publish

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^[1] 443 U.S. 307 (1979).

^[2] Watson v. State, 160 S.W.3d 627, 630 (Tex. App.BWaco 2005) (quoting Zuniga v. State, 144 S.W.3d 477, 485 (Tex. Crim. App. 2004)) (internal quotations omitted). 

^[3] Id. at 631 (Gray, C.J., dissenting).

^[4] See Jackson, 443 U.S. at 318.

^[5] As a practical matter, an appellate reversal for factually insufficient evidence may result in the State offering a particularly advantageous plea bargain or dismissing the case because, after years in the appellate orbit, the witnesses are unavailable, judicial resources are limited, and trial dockets are crowded.  Whether either of these results serves the public interest is doubtful.

^[6] Paul D. Carrington et al., Justice on Appeal 11 (1976).

^[7] Jackson, 443 U.S. at 318.

^[8] Id. at 319 (emphasis in original; citations omitted).

^[9] Id. (emphasis in original).

^[10] Webster=s New Twentieth Century Dictionary Unabridged 1496 (2d ed. 1983).

^[11] Merriam-Webster=s Dictionary of Law (1996) (http://dictionary.lp.findlaw.com/scripts/search.pl?co=dictionary.lp.findlaw.com&s=rational).

^[12] Jackson, 443 U.S. at 319 (noting that this criterion Aimpinges upon >jury= discretion only to the extent necessary to guarantee the fundamental protection of due process of law@).

^[13] 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.BAustin 1992, pet. ref=d)).

^[14] Dallam 407 (1841).

^[15] Id. at 407-10 (concluding that AWe believe that such a right is in accordance with the genius and spirit of our institutions, and secured to him by the constitution and laws of this country@).

^[16] Id. at 411.

^[17] The card game faro Aenjoyed great popularity during the . . . 19^th Century in the United States . . . where it was practiced by >Faro dealers= such as the infamous Doc Holliday.@  Wikipedia, The Free Encyclopedia, Faro, at http://en.wikipedia.org/wiki/faro_%28card-game%29 (last visited September 1, 2006).

^[18] Smith, Dallam at 407, 411.

^[19] Id. at 411.

^[20] The court reasoned that, if the defendant=s argument were accepted, it Awould protect from just punishment any offender, however flagrant his offense, if committed before the passage of the act dividing the county@ because almost all former counties in Texas were re-divided and renamed after the Republic of Texas was created.  Id.

But what, we will ask, was the intention of the legislature in passing the act creating the county of Travis?  Was it to protect the guilty from punishment?  Was it to open the prison doors to them that were bound, without making any compensation to an injured community and the violated laws?  Was it to encourage crime and insult the majesty of the constitution?  No!  It had other motives and other intentions in view.  Of this we are certain.  And what they intended is binding upon us in expounding the law.

Id. at 411-12.  So, although the supreme court considered Athe facts@ of the case, the issue was decided upon a legal principleBa defendant may be tried in a newly-created county in which he had committed the offense, regardless of what that county was called at the time of the offense.

^[21] 43 Tex. 390 (1875).

^[22] Id. at 391-92.

^[23] The charge simply said that the defendant was charged A>with the theft of a certain cow, the property of Mrs. Lizzie Hill . . .@  Id. at 392-93, 402-03.

^[24] Id. at 398-403.

^[25] Id. at 394.

^[26] Id.

^[27] Indeed, in Bishop, the supreme court was explicit:

Athe jury are the exclusive judges of the facts in every criminal cause.@ . . . Being made the exclusive judges of the facts, the jurors, in contemplation of the law, are deemed to have the capacity to exercise those processes of thought and powers of combination which are sufficient to understand, without the aid of the judge, their relations and relative importance in arriving at a conclusion.

Id. at 397 (citations omitted).

^[28] See Clewis, 922 S.W.2d at 130 (citing Smith and Bishop); Bigby v. State, 892 S.W.2d 864, 872 (Tex. Crim. App. 1994) (quoting Smith and Bishop).

^[29] Smith, Dallam at 409-10.  The prosecutor=s position was that, in criminal cases, the supreme court could exercise its jurisdiction Aonly by writ of error, and not by appeal.@  Thus,

by writ of error, the errors of law alone could be examined in the supreme court, and that the usual effect of an appeal from an inferior tribunal, being one that opened the facts as well as the law for reexamination, could not be admitted as a right to the defendant in the district court in a criminal prosecution, because no such right was ever known to the common law of England.

Id. at 410.  The supreme court dismissed that contention, noting that the Texas Constitution and Legislature had granted many rights to criminal defendants that were denied them under the common law.  Id.  The court concluded that it had jurisdiction to Aconsider this decision of the district judge, with an eye both to the law and the facts as shown by the record.@  Id. at 411.

^[30] 44 Tex. 95 (1875).

^[31] 1 Tex. Ct. App. 488 (1877).

^[32] Tollett, 44 Tex. at 97-98.

^[33] Loza, 1 Tex. Ct. App. at 491-92.

^[34] Tollett, 44 Tex. at 98; Loza, 1 Tex. Ct. App. at 490 (quoting Tollett).

^[35] See Clewis, 922 S.W.2d at 131 n.6 (citing Tollett and Loza); Bigby, 892 S.W.2d at 874 (same).

^[36] 14 Tex. Ct. App. 609 (1883).

^[37] Id. at 630.  Under Walker, only the jury can assess credibility, resolve conflicts in the testimony, or decide the weight that should be given to the testimony.  Id.; see also Lane v. State, 19 Tex. Ct. App. 54, 70 (1885) (quoting Walker and stating, AThis court does not determine the credibility of the witnesses who testify in the trial court, or the weight to be given to the testimony.  It is the exclusive province of the jury to decide these matters@).

^[38] For a discussion of the modern Azone@ theory, applicable in Texas civil cases, see William Powers, Jr. & Jack Ratliff, Another Look at ANo Evidence@ and AInsufficient Evidence, 69 Tex. L. Rev. 515, 517-20 (1991).  The authors categorize zone 1 as Ano evidence,@ zone 2 as Ainsufficient evidence,@ zone 3 as Aenough evidence to support a jury verdict, but not so much that a court would be justified in interfering with a contrary finding,@ zone 4 as against the Agreat weight and preponderance of the evidence,@ and zone 5 as Aconclusive evidence.@  Thus, zone 1 in Walker would correspond to the modern zone 3, zone 2 in Walker corresponds to modern zone 1, zone 3 in Walker corresponds to modern zone 2, and zone 4 is the same in both Walker and the modern system. 

Given recent decisions by the Supreme Court of Texas, however, this entire Azone@ theory of evidentiary sufficiency has been thrown into some doubt.  See generally, William V. Dorsaneo, III, Judge & Jury Symposium: Evolving Standards of Evidentiary Review: Revising the Scope of Review, 47 S. Tex. L. Rev. 225, 226-27 (Winter 2005) (noting that Athe Texas Supreme Court has embraced an important recapitulation of the scope of evidentiary review in cases governed by the preponderance of evidence standard of review.  A similar approach has been applied by the court to cases controlled by the clear and convincing evidence standard of review@) (footnote omitted).

^[39] The phrase Aclearly appears to be wrong@ might well translate to Airrational,@ Aunreasonable,@ or Anot sensible@ under the Jackson formulation. 

^[40] At the time Walker was decided, the United States Supreme Court had not yet held that the prosecution must prove all elements of a crime Abeyond a reasonable doubt@ in all state and federal criminal trials.  See In re Winship, 397 U.S. 358, 364 (1970) (ALest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged@). Thus, zone four has no applicability to the elements that the prosecution must prove beyond a reasonable doubt, but it is applicable to the elements that the defendant must prove in establishing an affirmative defense by a preponderance of the evidence.

^[41] Walker, 14 Tex. Ct. App. at 637.  Today, of course, the failure to prove that the missing W.B. Mathis was dead would make the evidence legally insufficient to support a murder conviction under Jackson.                  

^[42] Id. at 636 (noting, inter alia, that the State could have offered evidence of the height, size, and weight of W.B. Mathis and of the height, size, and probable weight to the person whose skeleton had been found).

^[43] Clewis, 922 S.W.2d at 138-39 (Clinton, J., concurring); but see id. at 155 (McCormick, P.J., dissenting) (arguing that Walker was Awrong@).

^[44] Some language in Walker could be read to support the proposition that the appellate court felt that it had the authority to reverse a jury verdict even though the evidence was Asufficient.@  In Walker, the court stated that Awhere it was manifest that the verdict was wrong, and it was clear that injustice had been done the defendant, [the verdict] has been set aside, though there was evidence sufficient to support it.@  14 Tex. Ct. App. at 629.   But the conceptual problem is that the Walker court did not have the current Jackson standard which requires proof beyond a reasonable doubt, such that the jury=s verdict will be upheld only if it is Areasonable,@ and Arational.@  There is nothing in Walker that suggests that the Texas Court of Appeals would have found a verdict Amanifestly wrong@ or that an Ainjustice@ had been done to the defendant while at the same time finding it legally sufficient under this Jackson standard.  This same Alanguage gap@ problem occurs in many other early cases in which Aagainst the great weight of the evidence@ appears to be a proxy for a verdict which, although supported by some evidence, is nonetheless Airrational@ or Aunreasonable@ even when viewed in the light most favorable to the factfinder=s verdict.  See, e.g., Wilkerson v. State, 21 Tex. Ct. App. 501, 504-05, 2 S.W. 857, 857-58 (1886) (evidence at trial showed that defendant was an innocent bona fide purchaser of cow, and when cattle seller admitted in post-verdict affidavit that the blame for selling the true owner=s cattle was entirely his, Athe verdict and judgment in this case are against the weight of the evidence@); McLaren v. State, 21 Tex. Ct. App. 513, 516, 2 S.W. 858, 858 (1886) (when all of the evidence showed that the defendant innocently found the stolen property on the road, never claimed to own it, and returned what he could to its true owner, court found that A[t]his conviction is not only not supported by, but is against the evidence and the law@); Foresythe v. State, 20 S.W. 371 (Tex. Crim. App. 1892) (when no evidence showed that the defendant stole the horse, he had a bill of sale for it, he had an alibi, and the only inculpatory evidence was that one witness saw defendant in the pasture where the horse had been, Athe testimony [did not] establish the guilt of defendant to a reasonable certainty@); Murphy v. State, 65 Tex. Crim. 55, 62, 143 S.W. 616, 620 (1912) (reversing conviction for seduction for insufficient evidence; ATaking the record as a whole, and that prior to date that prosecutrix says an engagement to marry took place, and the first act of intercourse, defendant is not shown to have ever paid her attentions, or conducted himself in a way as to win the love and affection of a woman, we deem the evidence insufficient to support a case of seduction@); Rochetszky v. State, 94 Tex. Crim. 423, 426, 251 S.W. 232, 233 (1923) (when A[t]he only witness upon whom the State relied reveals such doubt and uncertainty that, in our judgment, his testimony does not support the finding by the jury, beyond a reasonable doubt, that the appellant was the offender@ evidence was insufficient to support conviction); Villareal v. State, 140 Tex. Crim. 675, 680, 146 S.W.2d 406, 409 (1940) (in capital murder prosecution, reversing conviction because physician=s testimony contradicted that of other witnesses; A[o]rdinarily the jury may so decide, but we doubt that the conclusion of the physician as to the position of the parties is sufficient to prove the existence of the facts beyond a reasonable doubt in this particular case, and in view of all of the facts and circumstances which are without dispute@).  I do not think that this Court would be proud to say that the evidence in these cases was legally sufficient under the Jackson standard.

In one most peculiar case, Green v. State, 97 Tex. Crim. 52, 260 S.W. 195 (1924), this Court began its opinion with the statement that A[t]he parties are all negroes,@ and then stated that the rape victim=s uncorroborated testimony that her stepfather raped her was simply unbelievable because she did not report the rape until she discovered that she was pregnant, even though she explained that she did not do so because she was afraid of the defendant.  This Court quoted Horatio in Hamlet, Acommenting on an incident he did not understand, >But this is wondrous strange,= and Hamlet's reply:  >There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.=@  97 Tex. Crim. at 53.  This Court forthrightly concluded that it simply did not believe the woman=s testimony that she had been raped, even though the jury had.  This case is a perfect example of why appellate courts should not sit as a thirteenth juror reviewing the credibility of the witnesses (regardless of their race) and rejecting their testimony out-of-hand.  This case, clearly one based solely on rejecting the credibility of the victim, stands as Aa derelict upon the waters@ of Texas law.   I would consign it to the trash barrel where it belongs.

In sum, any review of historical precedent must focus upon the particular facts and the state of the evidence in the specific case before the reviewing court, not upon selective verbiage that the court may have used to describe the sufficiency of the evidence before a single, coherent standard was announced in Jackson. 

^[45] Alicia L. Locheed, The Development of the Court of Criminal Appeals, 55 Tex. B.J. 1052, 1054-55 (November, 1992).

^[46] See id. at 1053.

^[47] See 1 George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 53-57 (discussing the historical importance of trial by jury in Texas and noting that A[t]he oddest thing about >shall remain inviolate= is that Texas requires a jury trial under circumstances that are not considered worthy of a jury trial in most states@).  Texas is still one of the most jury-deferential states in the United States.  We allow jury trials under situations virtually no other state permits; our constitution holds that trial by jury is an Ainviolate right@ which cannot be abridged; we permit jury sentencing in all criminal cases; we forbid a trial judge from commenting on the weight of the evidence, to name but a few of our state=s unusually jury-deferential laws and policies.

^[48] Tex. Const. art. V, ' 6; see 1 Braden at 399 (noting that the A[c]reation of the courts of civil appeals was one of a series of attempts to reduce the caseload of the supreme court@).

^[49] 1 Braden at 399.

^[50] Tex. Const. art. V, ' 6; see also Tex. Gov=t Code ' 22.225(a) (A[a] judgment of a court of appeals is conclusive on the facts of the case in all civil cases@) (emphasis added).

^[51] Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 410, 44 S.W. 69, 69 (1898); see also Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex. 1988); Pool v. Ford Motor Co, 715 S.W.2d 629, 633 (Tex. 1986); In re King=s Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951).

^[52] 1 Braden at 399 (AThe supreme court=s primary function was to be the resolution of conflicts@).

^[53] See Choate, 91 Tex. at 410, 44 S.W. at 69-70 (stating that the 1891 constitutional amendment conferred upon the courts of civil appeals the same power over fact questions that the supreme court exercised prior to that amendment).

^[54] See 1 Braden at 400-01 (stating that Acourts of civil appeals have no general fact-finding power@).

^[55] Tex. Const. art. V, ' 5 (AThe Court of Criminal Appeals shall have final appellate jurisdiction . . . in all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law@).

^[56] Mitchell v. State, 33 Tex. Crim. 575, 577, 28 S.W. 475 (1894) (because evidence Autterly failed@ to show defendant=s specific intent to ravish homeowner, conviction reversed).  The Mitchell standard reads much like the constitutionally mandated Jackson standard of review.

^[57] Smith v. State, 85 Tex. Crim. 355, 357, 212 S.W. 660, 661 (1919) (evidence was sufficient to support burglary conviction).

^[58] Jolly v. State, 87 Tex. Crim. 288, 293, 221 S.W. 279, 282 (1920).

^[59] Franklin v. State, 147 Tex. Crim. 636, 638, 183 S.W.2d 573, 574 (1944) (citations omitted).

^[60] Everitt v. State, 156 Tex. Crim. 332, 335, 242 S.W.2d 398, 399 (Tex. Crim. App. 1951) (op. on reh=g).

^[61] Hall v. State, 158 Tex. Crim. 243, 246, 254 S.W.2d 523, 526 (Tex. Crim. App. 1953) (op. on reh=g).

^[62] Parker v. State, 432 S.W.2d 526, 531 (Tex. Crim. App. 1968) (quoting Mason v. State, 108 Tex. Crim. 452, 455,1 S.W. 2d 283, 284 (1928) (op. on reh=g).  In Parker, we stated,

While this court has the right to reverse a judgment of conviction on account of the insufficiency of the evidence (Texas Code Crim. Procedure, art. 939) and it becomes its duty to do so Aif the guilt of the accused is not made to appear with reasonable certainty@ . . . no fixed rule has been devised which will in all cases furnish a certain standard.  Necessarily each case must in a measure be tested by its own facts . . . . However, when a jury, advised of the restrictions which the law places upon them in condemning one on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own, unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency.

Id. (internal citations omitted).

^[63] Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim. App. 1974).

^[64] Jackson v. Virginia, 443 U.S. 307, 312-13 (1979).

^[65] 362 U.S. 199, 199 (1960) (stating that the Aultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.  Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all@).

^[66] Id. at 206 (footnotes omitted).

^[67] Jackson, 443 U.S. at 314.

^[68] Id.  The Supreme Court explained that a Ano evidence@ standard does not Aprotect against misapplications of the constitutional standard of reasonable doubt@ because a Ano evidence@ standard is satisfied by a Amere modicum@ of evidence.  ABut it could not seriously be argued that such a >modicum= of evidence could by itself rationally support a conviction beyond a reasonable doubt.@  Id. at 320.

^[69] Id. at 318 n.9.

^[70] Id. at 318-19 (citation omitted).

^[71] Id. at 319.

^[72] Id. (emphasis in original).

^[73] Applying that standard in Jackson, the Supreme Court upheld the conviction, stating that Afaced with a record of historical facts that supports conflicting inferences [we] must presumeBeven if it does not affirmatively appear in the recordBthat the trier of fact resolved any such conflicts in favor of the prosecution, and [we] must defer to that resolution.@  Id. at 326.

^[74] See Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989) (rejecting language that evidence is sufficient Aif there is any evidence which, if believed, shows the guilt of the accused@ as inconsistent with Jackson and constitutionally impermissable).

^[75] Griffin v. State, 614 S.W.2d 155, 158-59 & n.5 (Tex. Crim. App. 1981).

^[76] See, e.g., Johnson v. State, 803 S.W.2d 272, 279 (Tex. Crim. App. 1990) (AThe standard of review for sufficiency of the evidence in a criminal case is >whether, after reviewing 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=@); Dunn v. State, 721 S.W.2d 325, 327 (Tex. Crim. App. 1986) (AThe Federal Constitutional test, which this Court has adopted, is whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt@); Ibanez v. State, 749 S.W.2d 804, 806 (Tex. Crim. App. 1986) (AWhen reviewing sufficiency of the evidence this Court is bound to review the evidence in the light most favorable to the jury=s verdict.  We must determine 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@); Burks v. State, 693 S.W.2d 932, 937 (Tex. Crim. App. 1985) (Ain reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, the reviewing court must view the evidence in the light most favorable to a jury=s verdict and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt@); Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984) (AThe due process standard for appellate review enunciated in Jackson v. Virginia . . . is applicable in Texas to both direct and circumstantial evidence cases@) (citations omitted).

^[77] Burks v. United States, 437 U.S. 1, 17-18 (1978) (Awe hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient[;] the only Ajust@ remedy available for that court is the direction of a judgment of acquittal@); Greene v. Massey, 437 U.S. 19, 24 (1978) (double jeopardy principles announced in Burks apply equally to state convictions based on legally insufficient evidence).

^[78] 457 U.S. 31 (1982).

^[79] Id. at 47.

^[80] Id. at 42.

^[81] Id. at 42-43.

^[82] Tibbs v. State, 397 So. 2d 1120, 1125-26 (Fla. 1981).

^[83] Id. at 1123.

^[84] Id.

^[85] Id. at 1125.

^[86] Id.

^[87] Id.

^[88] Id.

^[89] Id.

^[90]  719 S.W.2d 320 (Tex. Crim. App. 1986). 

^[91] Schuessler v. State, 647 S.W.2d 742, 748-49 (Tex. App.BEl Paso 1983) (applying the civil standard of Aagainst the great weight and preponderance of the evidence@ because the defendant bore the burden of proving, by a preponderance of the evidence, his affirmative defense).

^[92]Schuessler, 719 S.W.2d at 328 (quoting Van Guilder v. State, 709 S.W.2d 178, 181 (Tex. Crim. App. 1985)).

^[93] Id. (stating that Awe must determine whether the evidence, when viewed most favorably to the jury=s verdict, is sufficient to support the jury=s implicit rejection of appellant=s affirmative defense of insanity@).

^[94] Id. at 332 (Clinton, J., dissenting).

^[95] Id.

^[96] 785 S.W.2d 146 (Tex. Crim. App. 1990).

^[97] Meraz, 785 S.W.2d at 155.  As this Court explained, the issue in such a case is not the sufficiency of the evidence to support a conviction, but the adequacy of proof for an affirmative defense in which the defendant statutorily has both the burden of production and the burden of persuasion.  Id. at 151. 

^[98] Id. at 153.

^[99] Id. at 153-55.

^[100] Id. at 153-54.  This Court held,

We now join our brethren on the Texas Supreme Court and conclude that the Afactual 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, examine 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 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 so as to be manifestly unjust.

Id. at 154-55.  Of course, as the Texas Supreme Court refines its sufficiency-of-the-evidence standards of review, see, e.g., City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), this Court may choose to follow suit as a matter of comity and consistency.

^[101] 892 S.W.2d 864 (Tex. Crim. App. 1994).

^[102] Id. at 875 (AAt trial appellant had both the burden of production of evidence and the burden of persuasion for his affirmative defense of insanity@).

^[103] In those few instances in which the State has a burden of proof measured by the civil standard of Apreponderance of the evidence@ (e.g., in a motion to revoke probation), the same civil-standard sufficiency review would apply.

^[104] See In re King=s Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (Tex. 1951).

^[105]  See, e.g., City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

^[106] Tex. Code Crim. Proc. art. 44.25 (AThe courts of appeals or the Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts@).  It would appear that, under article 44.25 (and all of its predecessor statutes), both the courts of appeals and the Court of Criminal Appeals have co-equal jurisdiction to reverse Aon the facts@ as well as the law.

^[107] 823 S.W.2d 375 (Tex. App.BAustin 1992, pet. ref=d).

^[108] Id. at 377.

^[109] Id. at 379-80.

^[110] This Court had explicitly rejected such Afactual sufficiency@ claims.  See Minor v. State, 657 S.W.2d 811, 812 n.5 (Tex. Crim. App. 1983) (per curiam); Combs v. State, 643 S.W.2d 709, 716 n.1 (Tex. Crim. App. 1982); White v. State, 591 S.W.2d 851, 855 (Tex. Crim. App. 1979).

^[111] See White v. State, 890 S.W.2d 131, 134 (Tex. App.BTexarkana 1994, pet. ref=d) (AOur exclusive fact jurisdiction under the constitution also both permits and requires us to review for the factual sufficiency when the sufficiency of the evidence is challenged on appeal@).

^[112] See Wilson v. State, 879 S.W.2d 309, 311 (Tex. App.BAmarillo 1994, no pet.) (Awe do not, as appellant requests us to, sit as a thirteenth juror reweighing the evidence to decide whether we believe the evidence established that he caused the penetration, nor act as a superjury reweighing the evidence; rather, we act only as a due process safeguard insuring rationality of the fact finder.  In doing so, we test the evidence to ascertain if it is at least conclusive enough for a reasonable fact finder to believe the questioned element is established beyond a reasonable doubt@) (citations omitted); House v. State, 880 S.W.2d 512, 514 (Tex. App.B Eastland 1994, no pet.) (collecting cases and stating that A[a]ll of these courts agree that >factual sufficiency= challenges in criminal cases are limited to affirmative defenses and other issues where the defendant has the burden of proof; consequently, a challenge to the sufficiency of the evidence to support the elements of the conviction is reviewed under the [Jackson standard]@); Clewis v. State, 876 S.W.2d 428, 439 (Tex. App.BDallas 1994), vacated by 922 S.W.2d 126 (Tex. Crim. App. 1996); Pender v. State, 850 S.W.2d 201, 203 (Tex. App.BFort Worth 1993, no pet.) (AWe disagree with the Austin court [in Stone], and decline to follow the rationale expressed in its opinion.  The Court of Criminal Appeals in Meraz was only addressing appellate review of affirmative defenses; the opinion did not change the standard of review concerning the sufficiency of the evidence to prove the elements of the State=s case@); Smith v. State, 874 S.W.2d 269, 272 (Tex. App.B Houston [14^th Dist.] 1994, pet. ref=d)(noting its disagreement with Stone and holding Athat the standard set out in Meraz applies only to cases in which the defendant has the burden of proof and that the only standard to be applied when reviewing the sufficiency of the evidence is the standard set out in Jackson@);  Lopez v. State, 824 S.W.2d 298, 303-04 (Tex. App.BHouston [1st Dist.] 1992, no pet.) (declining to make a factual sufficiency review); Crouch v. State, 858 S.W.2d 599, 601 (Tex. App.BFort Worth 1993, pet. ref=d).  The position of these courts of appeals is summarized in Crouch as follows:

With respect to Crouch=s claim that the jury=s finding was against the great weight and preponderance of the evidence, we hold that there is no such thing as a factual sufficiency of the evidence review in criminal cases.  If there is sufficient evidence from which a rational trier of fact could determine beyond a reasonable doubt that the defendant used a firearm in the commission of or flight from the commission of an offense, then the jury=s finding to that effect would never be beyond the great weight and preponderance of the evidence.  While there may be some justification for such a review in a civil case where the only requirement is that there be merely more than a scintilla of evidence to support the jury=s finding, the jury is most often required to find a fact by a preponderance of the evidence; however, there is no similar justification for such a review in a criminal case where the legal sufficiency test more closely approximates the burden that the State must meet.

Id. at 601.

^[113] Stone, 823 S.W.2d at 377-78.

^[114] See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 649 (Tex. 1988) (ABy creating the courts of appeals and vesting them with >appellate jurisdiction,= the 1891 amendment to the constitution conferred upon those courts the same power over fact questions that this court exercised prior to that amendment@).

^[115] White v. State, 591 S.W.2d 851, 855-56 (Tex. Crim. App. 1979).

^[116] Id. at 856.

^[117] Tex. Gov=t Code ' 22.225(a) (emphasis added).  Although this statute has been amended numerous times since the courts of civil appeals were renamed the courts of appeals in 1981 and given appellate jurisdiction over criminal matters, the legislature has not seen fit to grant Afactual conclusivity@ statutory authority to the courts of appeals in criminal cases.

^[118]  I agree with the reasoning in Arvay v. State, 646 S.W.2d 320 (Tex. App. B Dallas 1983, pet. ref=d), on the legislative purpose of this statute which was formerly article 1820:    we hold that criminal cases are not within the provision of article 5, section 6, that the decisions of the Courts of Appeals Ashall be conclusive on all questions of fact brought before them on appeal or writ of error.@ This holding is also supported by a legislative interpretation of section 6 in the implementing legislation, article 1820 of the Texas Revised Civil Statutes (Vernon Supp. 1982). As amended in 1981, this statute provides:  AThe judgments of the Courts of Appeals in civil cases shall be conclusive in all cases on the facts of the cases.@ (Emphasis added). Evidently the legislature was careful to limit the fact jurisdiction of the Courts of Appeals to civil cases.

Id. at 322.

^[119] Combs v. State, 643 S.W.2d 709, 716 (Tex. Crim. App. 1982) (citations omitted; emphasis in original).  We further noted, Ano other standard may be utilized by the Courts of Appeals in reviewing criminal convictions other than sufficiency of the evidence to support the conviction.@  Id. n.1.

^[120] Tex. Code Crim. Proc. art. 36.13 (AUnless otherwise provided in this Code, the jury is the exclusive judge of the facts@) and art. 38.04 (AThe jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony@).  In bench trials, of course, it is the trial judge who is the sole factfinder, and his credibility and weight determinations are entitled to the same deference as that given to a jury.

^[121] Nonetheless, the Supreme Court invokes the Texas Constitution=s provision on the inviolable right to a jury trial when reversing a court of appeals=s factual sufficiency decision which treads upon a jury=s credibility and weight determinations.  See, e.g., Herbert v. Herbert, 754 S.W.2d 141, 143-44 (Tex. 1988) (reversing court of appeals=s decision on factual sufficiency and noting that A[t]he admission by the court of appeals that reasonable minds could differ about the conclusions to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury findings has occurred.  This is clearly error@); see id. at 147 (Mauzy, J., dissenting) (noting that factual sufficiency review allows appellate court judges Ato usurp the jury function.  It is allowing them to substitute their own thought processes for those of the jury.  Any distinction between appellate judges weighing the evidence and appellate judges determining fact questions as would a jury is a distinction that exists in semantics only and not in reality@).

^[122] 922 S.W.2d 126 (Tex. Crim. App. 1996).  Judge Maloney wrote the majority opinion; Judge Clinton joined that opinion, but also wrote a concurring opinion, as did Judge Meyers.  Presiding Judge McCormick wrote a dissenting opinion, joined by Judge Keller.  Judge White wrote a separate dissenting opinion as did Judge Mansfield. 

^[123] Clewis v. State, 876 S.W.2d 428, 429-40 (Tex. App. B Dallas 1994), vacated by 922 S.W.2d 126 (Tex. Crim. App. 1996).  In that opinion, the court of appeals noted that, even if the courts of appeals have fact jurisdiction in criminal cases under the Texas Constitution, the factual conclusivity clause A[d]oes not purport to set out the standard of review required to exercise that fact jurisdiction.  The question before us in this case, therefore, is what standard of review we are required to apply[.]@ Id. at 431.

^[124] Clewis, 922 S.W.2d. at 129 (AWe hold that the proper standard of review for factual sufficiency of the elements of the offense is the one articulated by the Third Court of Appeals in Stone@).

^[125] Id. at 133 n.12 (quoting Clewis, 876 S.W.2d at 444 n.2 (McGarry, C.J., concurring)).

^[126] Clewis, 922 S.W.2d at 133.

^[127] The total number of Shepard=s citations to Clewis listed on Lexis as of September 25, 2006, was 5,786, including eleven law review articles and nine treatise sections.   One law review article begins with the statement ACitizens convicted of crimes in Texas may have a chance at a new trial thanks to Clewis v. State.@ Mark Bankston, Forty Nuns Can=t Be Wrong: Reviewing Factual Sufficiency of Evidence Without the Light Most Favorable to the Prosecution, Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), 38 S. Tex. L. Rev. 263, 263 (March 1997).  But as Professor Dix notes, reversals under Clewis are supposed to be (and are) exceedingly rare.  43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 31.133 at 65 (2d ed. 2001 & Supp. 2005) (collecting and discussing twelve cases reversed by the courts of appeals for factual insufficiency and stating that A[w]hatever the criterion [for factual sufficiency review under Clewis], the Court of Criminal Appeals clearly regards factual sufficiency review as seldom leading to a conclusion that a conviction is unsupported.@).  

^[128] 944 S.W.2d 642 (Tex. Crim. App. 1996)

^[129] Id. at 647.  The Jackson legal sufficiency test requires the reviewing court to examine all of the evidence as well, but to make that examination in the light most favorable to the State because the State was the prevailing party at trial.  See Jackson, 443 U.S. at 319.

^[130] Id. at 647 (citations omitted)

^[131] Id. at 648 (emphasis in original; citations omitted).

^[132] Id. at 649.

^[133] 958 S.W.2d 404 (Tex. Crim. App. 1997).

^[134] Id. at 407.

^[135] Id. at 408.

^[136] Id. at 408-09. 

^[137] See Dix, supra, ' 31.135 at 68-69 (noting that, in the forty nuns hypothetical, under a Clewis analysis, Aan appellate court may be permitted to take into account that the State=s witness=s credibility has been impeached by his status and evidence of a motive to falsify, while each nun=s credibility has been bolstered by her status and by the direct corroboration of nineteen others of similar character and by indirect corroboration by the testimony of twenty other similar witnesses.  On the other hand, the need to avoid substantial intrusion upon [the] jury=s role certainly means that the appellate court is not to speculate regarding the demeanor of the witnesses on the stand or other matters that the jurors may have considered in evaluating the credibility of each witness@).

^[138] 23 S.W.3d 1 (Tex. Crim. App. 2000).

^[139] Id. at 5.

^[140] Id. at 8 (citation omitted).

^[141] Dix, supra, ' 31.135 at 71.  Indeed, the same problem has been noted by commentators concerning the current civil-law legal/factual sufficiency standard of review in City of Keller.  See W. Wendell Hall & Lynne Liberato, Standards of Review of Sufficiency of the Evidence in Texas After City of Keller v. Wilson, 17 (State Bar of Texas, 2006 Annual Judicial Section Conference) (AGiven the standard of review articulated in legal sufficiency cases, it is questionable whether there is a distinction between legal and factual sufficiency standards of review as it appear that Texas follows the federal Boeing v. Shipman [411 F.2d 365 (5^th Cir. 1969) (en banc)] standard for reviewing sufficiency of the evidence challenges@).

^[142] 66 S.W.3d 283 (Tex. Crim. App. 2001).

^[143] Id. at 285.

^[144] Id. (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 361 (1960)).

^[145] Id.

^[146] Id.

^[147] Id. at 286 n.5.

^[148]  Clewis, 922 S.W.2d at 134; see also Johnson, 23 S.W.3d at 7. 

^[149] 101 S.W.3d 89 (Tex. Crim. App. 2003).

^[150] Id. at 97 (citations omitted).

^[151] 144 S.W.3d 477 (Tex. Crim. App. 2004).

^[152] Id. at 483.  As we noted in Zuniga, the different civil and criminal law standards of proof are an important source of confusion.  The Court criticized the previous year=s discussion in Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003), in which we had stated that Athe reviewing court reviews all of the evidence in a neutral light and asks whether the State=s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.@  Id.  In Zuniga we noted that

Once again, the preponderance-of-the-evidence language creeps into a factual-sufficiency review where the burden of proof at trial was beyond a reasonable doubt.  And, the Court=s statement that the reviewing court must use both standards is confusing.

144 S.W.3d at 484.  True enough, but the entire civil-law factual-sufficiency review incorporating five zones is built upon an implicit assumption that the burden of persuasion is Aby a preponderance of the evidence.@  This is precisely what the Texas Supreme Court recognized in its recent decision in In re C.H., 89 S.W.3d 17 (Tex. 2002) when it stated

We conclude that the burden of proof at trial necessarily affects appellate review of the evidence. Under traditional factual sufficiency standards, a court determines if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. But that standard is inadequate when evidence is more than a preponderance (more likely than not) but is not clear and convincing. As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.

Id. at 25 (citations and footnote omitted).  That is, the entire five zone factual sufficiency construct, developed for cases in which the burden of proof is Aby a preponderance of the evidence@  must be modified when either party bears a greater burden of persuasion, such as Aclear and convincing@ or Abeyond a reasonable doubt.@  Jackson incorporated the State=s burden of proof; Meraz incorporated the defendant=s burden of proof; Clewis did not.

In In re J.F.C., 96 S.W.3d 256 (Tex. 2002), the Texas Supreme Court realized that there was a problem in distinguishing between the civil standards for legal and factual sufficiency review when the burden of proof is heightened.  That court turned to the Supreme Court=s decision in Jackson and used it for its legal sufficiency review:

The reasoning in Jackson reinforces our conclusion that to apply our traditional no evidence standard of review in a parental termination case would not afford the protections inherent in the clear and convincing standard of proof. As the example in Jackson highlights, a parent's rights could be terminated based on "but one slender bit of evidence" as long as the jury was properly instructed on the clear and convincing evidence burden of proof. Our legal sufficiency review, therefore, must  take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof.

Id. at 265-66.  But the supreme court also explained its factual sufficiency standard:

In a factual sufficiency review, as we explained in In re C.H., a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.  We also explained in that opinion that the inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.  A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. A court of appeals should  detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.

Id. at 266-67 (footnotes omitted).  In this case, as in our Clewis cases, there is barely visible light between the legal and factual sufficiency standards of review.  One wonders if this two-tier review will long endure in civil cases where the burden of proof is heightened. See, e.g., In the Interest of A.M.W., No. 10-05-00123-CV, 2006 Tex. App. LEXIS 4528 *48 (Tex. App. B Waco, February 22, 2006) (ADo we need a factual sufficiency review in addition to a legal sufficiency review@ in parental termination cases when the standard of proof is heightened) (Gray, C.J., dissenting).

^[153] Zuniga, 144 S.W.3d at 484-85 (footnote omited).

^[154] Jackson, 443 U.S. at 319.

^[155] Zuniga, 144 S.W.3d at 484.

^[156] Tex. Code Crim. Proc. arts. 36.13 & 38.06.

^[157] 164 S.W.3d 607 (Tex. 2004).

^[158] See id at 621-22, noting that the factual conclusivity clause applies to factual insufficiency questions, but

 

While the "factual conclusivity clause" requires that a distinction be made between questions of fact and questions of law, it does not prescribe where the line is to be drawn, leaving that matter for this Court. Over the years, we have concluded that no evidence means not only a complete absence of evidence but also evidence which cannot be given legal effect, either because the law does not permit it or because the evidence is too weak . . . .

The rule works in tandem with the preponderance of the evidence standard of proof; any evidence that does not merely create surmise or suspicion can be used to show that something is more likely than not. But when proof of an allegation must be clear and convincing, even evidence that does more than raise surmise and suspicion will not suffice unless it is capable of producing a firm belief or conviction that the allegation is true. Evidence of lesser quality is, in legal effect, no evidence. Whether evidence is of such quality is thus a question of law in a case with that elevated standard of proof, just as whether evidence is more than a scintilla is a question of law in a case proved by a preponderance of the evidence.

Id. at 621 (footnote omitted).  The supreme court went on to explain that

the "factual conclusivity clause" does not define  the Aquestions of fact@ on which the courts of appeals' decisions are conclusive. We held, shortly after the clause was adopted, that Awhether there be any evidence or not to support an issue is a question of law, and not of fact.@  Evidence that does not produce a firm belief or conviction does not support an issue that must be proved by clear and convincing evidence. Whether evidence supports an issue is no less a question of law simply because the standard of proof is heightened.

Id. at 626-27 (footnote omitted).

^[159] See Dix, supra, at ' 31.131 at 22 (Supp. 2005) (AAlthough the courts of appeals conduct factual sufficiency review in many cases, they seldom find the evidence factually insufficient@).

^[160] Dix, supra at ' 31.133 at 65-66 n.7 (2d ed. 2001) & 23-24 n.7 (2005 Supp.).

^[161] NY CLS CPL ' 470.15(5); see People v. Bleakley, 69 N.Y.2d 490, 492 N.E.2d 672, 673 (Ct. App. 1987) (court of appeals erred in failing to conduct statutorily required factual-sufficiency review when defendant claimed evidence was insufficient); 10 U.S.C.S. ' 866 (c) (Athe [Military] Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. . .as it finds correct in law and facts . . . . In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses@).

^[162] Tibbs, 397 So.2d at 1125-26.

^[163] This review does not second guess the jury=s credibility and weight assessment because the Jackson standard requires review in the light most favorable to the jury=s credibility and weight determinations.  See Zimmerman v. State, 860 S.W.2d 89, 92 (Tex. Crim. App. 1993) (AOur purpose [under Jackson] is not to reevaluate the weight and credibility of the evidence, but to ensure that the jury reached a rational decision@).

^[164] Ex parte Elizondo, 947 S.W.2d 202, 206 (Tex. Crim. App. 1996).

^[165] Id.

^[166] Clewis, 922 S.W.2d at 163 (White, J., dissenting).

^[167]Watson, 160 S.W.3d at 630.