Affirmed and Majority and Concurring Opinions filed December 21, 2010.
In The
Fourteenth Court of Appeals
NO. 14-09-08-00074-CR
David Mark Temple, Appellant
V.
The State of Texas, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1008763
CONCURRING OPINION
I have serious concern that this Court has deprived appellant of the protection afforded under Article V, section 6 of the Texas Constitution by failing to review his factual-sufficiency challenges as questions of fact.
[T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.
Tex. Const. art. V, § 6(a).
In previous opinions,[1] this Court has acceded to a recent pronouncement of the law by five judges on the Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893, 894–912 (Tex. Crim. App. 2010) (Hervey, J., joined by Keller, Keasler, & Cochran, JJ., plurality op.) & id. at 913–26 (Cochran, J., joined by Womack, J., concurring) (discarding the factual-sufficiency standard of review in criminal cases which had been consistent with Texas Supreme Court precedent and articulated in Clewis v. State, 922 S.W.2d 126, 134–36 (Tex. Crim. App. 1996)). After acknowledging that its review of a court of appeals’ factual-sufficiency decision is limited to determining whether the courts properly applied “rules of law,” the five judges effectively abolished factual-sufficiency review when “determining whether the evidence is sufficient to support each element of a criminal offense . . . beyond a reasonable doubt.” Brooks, 323 S.W.3d at 909 n.35, 912.
I first expressed disagreement with this Court’s reticence to assert its exclusive jurisdictional prerogatives relative to factual sufficiency of the evidence in Romero, No. 14-09-01035-CR, at *3–5 (Seymore, J., concurring). If this Court had not followed Brooks in previous opinions, I would employ the traditional factual-sufficiency review and weigh all of the evidence in a neutral light to determine whether the circumstantial evidence supporting conviction is so against the great weight and preponderance of the evidence that the jury’s verdict is clearly wrong and manifestly unjust. See Clewis, 922 S.W.2d at 134–36 & n.16. The Brooks plurality and concurring opinions purport to require this Court, when reviewing evidence for factual sufficiency, to employ the Jackson v. Virginia standard of review for legal sufficiency and review all the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894 (plurality op.); id. at 913, 914–15 (Cochran, J., concurring) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
This Court’s previous decisions adopting the Brooks standard of review for factual-sufficiency of the evidence renders any effort to conduct a traditional factual-sufficiency review of the evidence moot. See Caddell v. State, 123 S.W.3d 722, 726–27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (explaining this Court is bound to follow its own precedent). However, as the author of the majority opinion in this case, I take the unusual step of writing separately because of my concern that the plurality and concurring opinions in Brooks are derogative of this Court’s conclusive jurisdiction relative to all questions of fact. I am also reminded that intermediate appellate courts have no inherent power to ignore an express constitutional mandate. Queen v. State, 842 S.W.2d 708, 711 (Tex. App.—Houston [1st Dist.] 1992, no pet.). Notwithstanding the imperatives of vertical stare decisis and whatever extent the plurality and concurring opinions in Brooks are binding on this Court, it is my considered opinion that this Court is duty-bound to contravene disgorgement of its exclusive jurisdiction to determine questions of fact. It is true that the Court of Criminal Appeals has final appellate jurisdiction relative to questions of law in criminal cases. Tex. Const. art. V, § 5. However, only the four judges of the Brooks plurality expressed that they would eliminate the factual-sufficiency standard pursuant to Article V, section 5 of the Texas Constitution. Brooks, 323 S.W.3d at 907–12 (plurality op.). The concurring opinion did not mention Article V, sections 5 and 6 or article 44.25 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.25 (entitled “Cases remanded,” and expressing, “The 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.”). Hence, a majority of judges in Brooks did not agree that eliminating factual-sufficiency review passed constitutional muster under Article V, section 5.
Considering the fundamental question of whether a court has subject-matter jurisdiction, it is surprising that the Brooks plurality and concurring opinions do not adhere to several Court of Criminal Appeals opinions wherein more than a plurality acknowledged the constitutional imperative that intermediate courts of appeals have conclusive jurisdiction over factual-sufficiency issues. See Laster v. State, 275 S.W.3d 512, 518–19 (Tex. Crim. App. 2009); Bigby v. State, 892 S.W.2d 864, 872–75 & n.3 (Tex. Crim. App. 1994); Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex. Crim. App. 1993); Meraz v. State, 785 S.W.2d 146, 153 (Tex. Crim. App. 1990); see also Brooks, 323 S.W.3d at 931 (Price, J., joined by Meyers, Johnson, & Holcomb, JJ., dissenting) (expressing that the plurality ignored stare decisis).
The Supreme Court of the Republic of Texas recognized “the defendant in a criminal prosecution in the district court has the right of appeal to this court from the judgment, or sentence of the court below, and to have the facts as well as the law, at his own election, opened for re-examination.” Republic v. Smith, Dallam 407, 410–11 (Tex. 1841) (emphasis added). Texas courts have long recognized that a party on appeal may challenge as erroneous a fact finding on the grounds the jury’s verdict was against the preponderance of the evidence, i.e., the evidence was factually insufficient. See, e.g., Choate v. San Antonio & A.P. Ry. Co., 44 S.W. 69 (Tex. 1898). This exclusive jurisdiction was recently acknowledged by the Texas Supreme Court: “[A] review of the evidence for factual sufficiency is a power committed exclusively to the court[s] of appeals.” Regal Fin. Co. v. Tex. Star Motors, No. 08-0148, --- S.W.3d ---, 2010 WL 3277132, at *7 (Tex. Aug. 20, 2010) (emphasis added). Pursuant to its constitutionally delineated duty under the factual-conclusivity clause, and its statutorily delineated duty under the Texas Code of Criminal Procedure article 44.25, this Court should neutrally consider and weigh all the evidence in the record to determine whether a rational jury was justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414–17 (Tex. Crim. App. 2006). Query, how could a court of appeals ever decide a question of fact and remand a case for a new trial pursuant to the Texas Constitution and Code of Criminal Procedure article 44.25 if it is limited to reviewing legal sufficiency of the evidence? Actually, the Court of Criminal Appeals previously cautioned against what happened in Brooks:
[I]t [is] not appropriate for this Court to create a standard of review which is in conflict with the language of our State Constitution.
Meraz, 785 S.W.2d at 152.
The Court of Criminal Appeals previously opined that the only way to preclude a Texas court of appeals from “determin[ing] if a jury finding is against the great weight and preponderance of the evidence,” i.e., determining a question of fact, is for “the people of the State of Texas to amend the Constitution.” Id. at 154. I agree. However, in contravention of this correct statement of the role of courts relative to the constitution, the Brooks plurality concludes: “As the Court with final appellate jurisdiction in this State, we decide that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks, 323 S.W.3d at 912 (plurality op.). Consequently, the Brooks plurality and concurring opinions did not simply refine or edit the standard of review for factual sufficiency; a criminal defendant’s constitutional right to factual-sufficiency review of the evidence supporting elements of the offense has been abolished.
In reaching its decision, the Brooks plurality expressed deep concern[2] that the Court of Criminal Appeals’ evolved articulation of the standard of review for factual sufficiency in Texas is indistinguishable from the standard of review for legal sufficiency prescribed by the United States Supreme Court in Jackson v. Virginia. Brooks, 323 S.W.3d at 901–02 (plurality op.); see also id. at 913–15 (Cochran, J., concurring) (expressing that legal-sufficiency review is the only “logical” sufficiency-of-the-evidence review). Under Jackson, all the evidence is viewed “in the light most favorable to the prosecution,” and a reviewing court is required to defer to a jury’s determination of credibility and weight. 444 U.S. at 319. The Brooks plurality referred to its decision in Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008), as the final nail in the coffin for factual-sufficiency review. Brooks, 323 S.W.3d at 901–02 (plurality op.); see also id. at 925–26 (Cochran, J., concurring). The plurality opined that requisite deference to the jury as the sole judge of a witness’s credibility and the weight to be given their testimony eliminates viewing the evidence in a “neutral light.” Brooks, 323 S.W.3d at 902 (plurality op.). After reaching this conclusion, the plurality warned that a criminal defendant might be in position to claim double jeopardy if a court reversed due to factual insufficiency of the evidence and remanded for a new trial. Id. at 902–06. For reasons outlined below, I respectfully suggest that the Brooks plurality and concurring opinions purport to resolve their conundrum by eliminating a criminal defendant’s constitutional right to appellate review of questions of fact.
I agree with the dissent in Brooks and acknowledge that the deference contemplated in a factual-sufficiency review is not absolute but a qualified deference to the jury’s apparent assessment of the weight, credibility, or reliability of the admittedly legally-sufficient evidence. Brooks, 323 S.W.3d at 928 (Price, J., dissenting). When viewing the evidence in a neutral light, an appellate court need not resolve every conflict in the evidence, or draw every inference from ambiguous evidence in favor of the defendant’s guilt just because a rational jury could have drawn such an inference; qualified deference does not convert factual-sufficiency review into legal-sufficiency review. See id. at 929. Accordingly, there is no conflict in the factual-sufficiency standard of review when an appellate court is “deferential” to the jury’s verdict while neutrally considering and weighing all of the evidence in the record; such a standard actually serves to “harmonize” the right to trial by jury with the courts of appeals’ constitutional duty to conclusively resolve the questions of fact presented to it on appeal. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634–35 (Tex. 1986). Moreover, “the fact that the court of appeals might engage in ‘thought processes’ akin to the jury’s . . . does not establish a violation of the right of trial by jury.” Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988). This is true because a court of appeals is not substituting its judgment for that of the jury by sustaining a challenge to a question of fact, but is simply remanding the case for a new trial. Id. at 651–52 (quoting Hopson v. Gulf Oil Corp., 237 S.W.2d 352, 358 (Tex. 1951)).
I also submit that the Brooks plurality is unnecessarily concerned about risks of double jeopardy. First, the Jackson standard does not incorporate the constitutional duty of an intermediate courts of appeals to decide questions of fact by considering and weighing all the evidence because the Jackson standard “impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Jackson, 443 U.S. at 319. Under the Jackson standard, the evidence is not weighed, and a successful challenge to legal sufficiency of the evidence results in acquittal, not a new trial. See Tibbs v. Florida, 457 U.S. 31, 41–42 (1982). Whether the evidence is legally sufficient under Jackson “is of course wholly unrelated to the question of how rationally the verdict was actually reached. . . . [T]he standard announced today . . . does not require scrutiny of the reasoning process” used by the fact-finder. Id. at 319 n.13 (emphasis added). Second, the risks for double jeopardy after reversal based on factual insufficiency of the evidence were fully clarified by the United States Supreme Court:
[T]he Double Jeopardy Clause precludes retrial [of an accused] “once the reviewing court has found the evidence legally insufficient” to support conviction. This standard, we explained, “means that the government’s case was so lacking that it should not have even been submitted to the jury.” A conviction will survive review . . . whenever “the evidence and inferences therefrom most favorable to the prosecution would warrant the jury’s finding the defendant guilty beyond a reasonable doubt.” In sum, we noted that the rule barring retrial would be “confined to cases where the prosecution’s failure is clear.”
. . . . [T]he Double Jeopardy Clause attaches special weight to judgments of acquittal. A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial. A reversal based on the [legal] insufficiency of the evidence has the same effect because it means that no rational factfinder could have voted to convict the defendant.
Tibbs, 457 U.S. at 40–41 (citations and footnotes omitted) (emphasis added). Succinctly, evidence is legally insufficient where the “only proper verdict” is acquittal. Id. at 42. Conversely,
A reversal on [a factual-sufficiency] ground, unlike a reversal based on [legally-]insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a “thirteenth 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. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.
A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented [legally-]sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment. An appellate court’s decision to give the defendant this second chance does not create “an unacceptably high risk that the Government, with its superior resources, [will] wear down [the] defendant” and obtain conviction solely through its persistence.
Id. at 42–43 (citations and footnotes omitted) (emphasis added). Thus, the United States Supreme Court expressly rejected the argument posited by the plurality and concurring opinions in Brooks that a “distinction between the weight [(factual sufficiency)] and [legal] sufficiency of the evidence is unworkable,” noting that “trial and appellate judges commonly distinguish between the weight [(factual sufficiency)] and [legal] sufficiency of the evidence” and the Due Process Clause “sets a lower limit on an appellate court’s definition of evidentiary sufficiency.” Id. at 44–45 (emphasis added). In Tibbs, the United States Supreme Court provided ample support for the appellate judiciary in Texas to protect and defend Article V, section 6 the Texas Constitution. The Texas appellate judiciary should fashion legal doctrines, including standards of appellate review, that serve to “protect, and defend the Constitution and laws of the United States and of this State.”[3]
In conclusion, I write separately to express my frustration with our Court’s unnecessary acquiescence to the Brooks plurality and concurring opinions.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Yates, Seymore, and Brown (Seymore, J., majority).
Publish — Tex. R. App. P. 47.2(b).
[1] See, e.g., Romero v. State, --- S.W. 3d ---, No. 14-09-01035-CR, at *1–2 (Tex. App.―Houston [14th Dist.] Dec. 1, 2010, no pet. h.); Shaw v. State, --- S.W.3d ---, 2010 WL 4467456, at *8 (Tex. App.—Houston [14th Dist.] Nov. 9, 2010, no pet. h.); Pomier v. State, --- S.W.3d ---, 2010 WL 4132209, at *2 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, no pet. h.); see also Nwosoucha v. State, --- S.W.3d ---, 2010 WL 4380290, at *8 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet. h.) (noting that legal-sufficiency standard of review remains after Brooks).
[2] However, in a direct appeal that involved capital murder of law enforcement officers, the court recognized and invoked the two different standards of review. Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005). After concluding that the evidence was legally sufficient to uphold the conviction, the court reversed the conviction and remanded for further proceedings, concluding the largely circumstantial evidence was factually insufficient. Id. at 508–11.
[3] Quote excerpted from the oath of office for Texas judges.