dissenting.
The majority opinion has concluded that “Were we to sit as a ‘thirteenth juror’ in this cause, and pass upon the weight and preponderance of the evidence to show absence of sudden passion, we might be inclined to reverse and remand for a new trial ... It is clear, however, that this Court does not have such jurisdiction. Combs v. State, 643 S.W.2d 709 (Tex.Cr. App.1982).” (Page 690 of opinion.) However, whether or not this Court has such jurisdiction is irrelevant. The issue is whether the court of appeals has jurisdiction to pass upon the weight and preponderance of the evidence to show absence of sudden passion, and how binding that decision might be.
Just recently, Justice Colley of the Tyler Court of Appeals, in Hill v. State, 721 S.W.2d 953 (12th-1986, P.D.R.refused), made the following observation: “The historical fact that the Court of Criminal Appeals has never had ‘fact’ jurisdiction certainly should not be a consideration in the determination of whether the courts of appeal, since September 1, 1981, have had jurisdiction under section 6 to reverse any findings made by a judge or jury in criminal cases when that finding is so contrary to the weight and preponderance of the evidence as to be manifestly wrong and unjust.”
In Hill, supra, Justice Colley, at least implicitly, opined to the world in print, respectfully of course, that this Court did not know what it was talking about when it interpreted Art. Y, § 6, Texas Constitution, in Combs v. State, 643 S.W.2d 709 (Tex.Cr. App.1982).
Three members of this Court, Judges Roberts, Clinton, and myself did not join the opinion of Combs, supra, only concurring in the result that was reached in that cause. I now find myself in agreement with what Justice Colley stated in Hill, supra, and also find that where this Court probably went astray in Combs, supra, lies in the fact that this Court did not fully and completely understand at that time how factual decisions made by the courts of appeals should be treated by this Court, such obviously occurring because it had not been too long since this Court had lost its virginity on the subject of petitions for discretionary review from decisions by the courts of appeals.
I find that this cause presents an ideal opportunity for this Court to revisit Combs, supra, and Art. V, § 6, supra, and to reconsider the question, whether the Court of Criminal Appeals has jurisdiction to review sufficiency questions once they have been passed on by the Courts of Appeals pursuant to Art. 5, § 6, supra, which provides that decisions of the Courts of Appeals “shall be conclusive on all questions of fact brought before them on appeal or error.” Because the majority declines to reconsider the question, I respectfully dissent.
The biggest flaw in the majority opinion lies in what Justice Colley pointed out in Hill, “the High Court may establish definitions of evidentiary sufficiency to be applied in appellate review agreeable to the state constitution, but not one which flies in the face of the plain, strong words of section 6 or one which operates to strip away a convicted defendant’s state constitutional right to seek a new trial in the intermediate appellate courts of this State on the ground that the finding of guilt is against the great weight and preponderance of the evidence.” Hill, supra, at pages 955-956.
It appears that the controversy is not limited to the Great State of Texas. Just recently, it became necessary for the New York Court of Appeals, which is the “High Court” in the State of New York, in People v. Bleakley and Anesi, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 (Ct.App. 1987), to address the issue of what function an intermediate court plays in deciding sufficiency of the evidence questions in criminal cases. There, the distinction between *688legal sufficiency and weight of evidence was pointed out. The New York Court of Appeals pointed out that though related, they require “a discrete analysis.” “For [an intermediate court] to conclude ... that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial ... and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis. To determine whether a verdict is supported by the weight of the evidence, however, the appellate court’s dis-positive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ... If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict ... Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury. Great deference is accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor. Without question the differences between what the jury does and what the appellate court does in weighing evidence are delicately nuanced, but differences there are.” (515 N.Y.S.2d at 763, 508 N.E.2d at 674-75). As the Senator from Wyoming might put it, “That’s powerful stuff for members of this Court to grasp and understand, isn’t it?”
In Combs v. State, 643 S.W.2d 709, 716 (Tex.Cr.App.1982), we observed that the proper standard for reviewing sufficiency claims in this Court is that enunciated in Banks v. State, 510 S.W.2d 592, 595 (Tex. Cr.App.1974) (emphasis added):
In 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.
This standard is unquestionably a “no evidence” rule, and differs not at all from the standard approved by the United States Supreme Court in Thompson v. Louisville, 362 U.S. 199, 199, 80 S.Ct. 624, 625, 4 L.Ed.2d 654, 655 (1960) (emphasis added):
The ultimate 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 on any evidence at all.
The problem, of course, is that the Thompson “no evidence” criterion was expressly abandoned by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 312-313, 320, 99 S.Ct. 2781, 2785-2786, 61 L.Ed.2d 560, 569, 574 (1979) (emphasis in original):
We granted certiorari to consider the petitioner’s claim that under In re Winship, [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)], a federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.
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That the Thompson “no evidence” rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent. “[A] mere modicum of evidence may satisfy a ‘no evidence’ standard ...” Jacobellis v. Ohio, 378 US 184, 202, 12 L Ed 2d 793, 84 S Ct 1676 [1686], 28 Ohio Ops 2d 101 (Warren, C.J., dissenting). Any evidence that is relevant — that has *689any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence, cf. Fed Rui Evid 401 — could be deemed a “mere modicum.” But it could not seriously be argued that such a “modicum” of evidence could by itself rationally support a conviction beyond a reasonable doubt. The Thompson doctrine simply fails to supply a workable or even a predictable standard for determing whether the due process command of Winship has been honored.
Nevertheless, in Combs, supra at 716-717 (emphasis in original), this Court read Jackson to be in accord with the “no evidence” standard of Banks, supra, which is identical to the doctrine of Thompson, overruled by the Supreme Court in Jackson:
Clearly, the federal constitutional standard is also a question of law and does not involve any weighing of the evidence ... Thus, the sufficiency of the evidence to sustain criminal convictions as determined by this Court is a question of law under both state and federal standards.
The anomaly is striking. If the standards of both Jackson and Banks are, indeed, “questions] of law,” the only thing that is clear is that they are dramatically different “question[s] of law.” Moreover, the federal standard plainly does require a certain “weighing of the evidence”:
A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. For example, on direct review of a state court conviction, where the claim is made that an involuntary confession was used against the defendant, [the Supreme Court] reviews the facts to determine whether the confession was wrongly admitted in evidence. [Citations omitted] The same duty obtains in federal habeas corpus proceedings. [Citations omitted]
Jackson, supra at 443 U.S. 318, 99 S.Ct. 2788, 61 L.Ed.2d 573 (emphasis added).
And this is precisely what the Court then proceeded to do in Jackson, after first determining the proper constitutional standard for reviewing evidentiary sufficiency. Surely, the result would have been the same even under the rule of Thompson. Yet the standard applied to reach that result is undoubtedly not the Thompson standard. Had there been no more than a modicum of evidence supporting conviction, even absent any exculpatory testimony, the result would certainly have been very different than that required by Thompson.
It follows from this that a reviewing court cannot avoid assessing the weight and credibility of evidence adduced at trial, not to reach a subjective judgment of its implications, but to determine whether a known subjective judgment of the institutional factfinder was rational. This constitutes appellate review of the facts.
Having said that, there is some authority for the proposition that the Texas Constitution does not confer upon this Court the authority to review findings of fact. As we also observed in Combs, supra at 716 (emphasis in original):
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. Martin v. State, 605 S.W.2d 259 (Tex.Cr.App.1980); White v. State, [591 S.W.2d 851 (Tex.Cr. App.1979) ]. More specifically, our determinations of sufficiency of the evidence have never involved passing upon the weight and preponderance of the evidence.1
Of particular interest here is the claim that we may not “unfind” a fact. No one seriously contends that this or any other appellate court in Texas may constitutionally try a case de novo on appeal. It is simply not within our power or authority to redo a job already done by a factfinder in the trial court, regardless of how well or poorly that job was done. But it is ordinarily within the power of an appellate tribunal to require that a poor or inadequate job be redone by a duly empowered *690factfinder at the trial court level. It is, therefore, perplexing at best to say that a fact has not been “unfound” whenever a cause is reversed for insufficient evidence. Surely we do not mean to say that the unsupported or inadequately supported findings of fact are to be let stand.
All of this would be of semantical interest only were it not for the fact that our opinion in Combs plainly intended the word “unfind” to have the meaning attached to it by Justice Calvert in his article, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX.L.REV. 361 (1960). Consider the following brief course in elementary civil procedure for appellate review of evidentiary questions, excerpted from Justice Calvert’s article at page 372:
1. If reversal of a trial court’s judgment and rendition of judgment for appellant is sought and a proper procedural predicate is laid for that result, the point should be that there is no evidence of probative force to support the finding of the vital fact. If through carelessness or otherwise counsel states the point in terms of “insufficient” evidence, courts should interpret the language as meaning legally insufficient.
2. If reversal of a trial court’s judgment and a remand of the cause for retrial is sought on the ground that the only evidence adduced is that offered to prove the existence of a vital fact and that it is factually too weak to support the finding, the point should be that the evidence is insufficient to support the finding of the vital fact. In ruling on the point the courts should speak of the sufficiency or insufficiency of the evidence to support the finding.
3. If evidence has been adduced to prove the existence of the vital fact and to disprove its existence and a reversal of the trial court’s judgment and remand of the cause for retrial is sought, the point of error should be that the finding of the vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. In deciding the point the courts should speak in the same terms.
4. If the language of a point of error leaves the Court of Civil Appeals in doubt as to whether it is a “no evidence” point, an “insufficient evidence” point, or a “preponderance of the evidence” point, the Court should resolve the doubt by looking to the procedural predicate for the point, the argument under the point, and the prayer for relief.
5. Courts of Civil Appeals should carefully avoid the use of “no evidence” rules of decision in deciding “insufficient evidence” and “preponderance of the evidence” points of error. While their use may be harmless if the point is sustained, they are not proper rules for that purpose.
Until 1978 this Court routinely remanded cases for retrial after finding the evidence insufficient to support conviction. Now, of course, we order that a judgment of acquittal be entered instead so as to avoid offending the Double Jeopardy Clause of our federal constitution. Those double jeopardy cases which impinge somehow on the rule of Jackson begin with Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The first most important thing to remember is that these cases were decided before Jackson. Consequently, the Due Process Clause did not yet require a reversal of criminal convictions founded upon “insufficient evidence,” as that term later came to be used in Jackson. Instead, due process required reversal only when the prosecution had adduced “no evidence” to prove one or more essential elements of the crime. See, Thompson, supra.
Nevertheless, Burks presaged Jackson in a few subtle ways. First, throughout the opinion the Chief Justice repeatedly spoke of “evidentiary insufficiency” without much elaboration. Since the case arose in the federal system, one might suppose that the term had a common, well-understood significance in that context.
Fed.Rule Crim.Proc. 29(a), with emphasis added, provides in part that the:
[tjrial court on motion of a defendant or of its own motion shall order the entry of *691judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
The rules do not further define the meaning of “insufficient evidence.”
The District Court denied Burks’ motion to this effect, but the Court of Appeals reversed, holding that the government had not met its burden, since the prosecutor’s evidence with respect to Burks’ mental condition, even when viewed in the light most favorable to the government, did not “ ‘effectively rebut[ ]’ petitioner’s proof with respect to insanity and criminal responsibility.” Burks, supra at 437 U.S. 4, 98 S.Ct. 2143, 57 L.Ed.2d 5. The case was remanded to the trial court for determination of whether Burks should be retried. Burks thought this action violated the Double Jeopardy Clause, and took his claim to the Supreme Court, which
granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.
Initially, it was noted that the Court of Appeals had made a determination of factual insufficiency:
It is unquestionably true that the Court of Appeals’ decision “represent[ed] a resolution, correct or not, of some or all of the factual elements of the offense charged.”
Next, it was observed that the Court of Appeals’ holding was that the evidence should have been held insufficient by the trial court on Burks’s motion for acquittal:
If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense.
In this procedural context, it is obvious that no constitutional standard of evidentia-ry sufficiency was even in question. Since the federal rules require that an acquittal is necessary when evidence of guilt is “insufficient,” and since the Court of Appeals had held the evidence “insufficient” within the meaning of these rules, and .since the Supreme Court was not called upon to decide whether the Court of Appeals had applied the correct standard of evidentiary sufficiency under the rules, the double jeopardy question could be, and was in fact, resolved by the Supreme Court without passing at all upon the proper constitutional or statutory rule of evidentiary sufficiency. The importance of this fact cannot be stressed too strongly.
Still, the Court indicated in footnote 10 that
[i]n holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt.
Of course, even this much can be said whether the appellate court uses a Thompson standard or a Jackson standard. It tells us nothing about which standard is required by due process, let alone which standard was used by the Court of Appeals in Burks.
Yet, there are other clues. Consider the following:
Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.
Oddly enough, neither Burks nor Greene bars retrial after a finding of “insufficient evidence,” as that phrase is understood in Jackson. Both cases, and especially Greene, presuppose a “no evidence” standard for reversal. That a retrial under such conditions should be prohibited is a very different thing than that a retrial after reversal for “insufficient evidence” under Jackson should be prohibited.
*692Much of the problem, in retrospect, turns upon the notion of insufficiency “as a matter of law.” It is difficult not to think of the “no evidence” rule when this language is used, in spite of the fact that the standard of review was not an issue in Burks and that Greene was remanded for consideration in light of Burks partly because the Florida standard of review was unclear.
Subsequent cases have simply assumed that reversal under Jackson prevents retrial under Burks and Greene. But there is really no authoritative holding to this effect, setting out the constitutional argument for such a result. Indeed, given the recent holding in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), that the Double Jeopardy Clause does not bar retrial after a conviction is reversed on appeal as against the weight and preponderance of the evidence, the proposition itself is subject to considerable doubt. In short, it may be the case that double jeopardy prevents retrial only when the appellate court reverses for “no evidence,” not when it reverses for “insufficient evidence,” as that term was understood by the Jackson Court.
Throughout the opinion in Tibbs, “legal insufficiency” and “insufficiency as a matter of law” are used to describe a standard like that articulated in Jackson. The Supreme Court, moreover, quotes with approval language from an Eighth Circuit opinion which seems to apply the Jackson rule. Part of that language is: “The evidence need not exclude every reasonable hypothesis except that of guilt ...” Tibbs, supra at 457 U.S. 38, n. 11, 102 S.Ct. 2216, n. 11, 72 L.Ed.2d 658-659, n. 11, quoting United States v. Lincoln, 630 F.2d 1313 (8th Cir.1980).
Tibbs characterizes Burks and Greene as carving a narrow exception for “legal insufficiency” to the general proposition that double jeopardy will not bar retrial of an accused who successfully reverses his conviction on appeal. A good deal of selected quotation from Burks then follows, presumably intended to elaborate upon the meaning of “legal insufficiency.” It concludes with the statement:
A reversal based on the insufficiency of the evidence has the same effect [as an acquittal] because it means that no rational factfinder could have voted to convict the defendant.... That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard.
Tibbs, supra at 457 U.S. 41-42, 102 S.Ct. 2217-18, 72 L.Ed.2d 661.
Finally, almost as an afterthought, a brief discussion of Jackson appears:
[O]ur decision in Jackson v. Virginia, 443 US 307, 61 L Ed 2d 560, 99 S Ct 2781 (1979), places some restraints on the power of appellate courts to mask reversals based on legally insufficient evidence as reversals grounded on the weight of the evidence. We held in Jackson that the Due Process Clause forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt. The Due Process Clause, in other words, sets a lower limit on an appellate court's definition of evidentiary insufficiency.
The first sentence of this passage was evidently meant to caution against mischar-acterization of a “modicum” of evidence as being “legally sufficient.” Since even a modicum weighs more than nothing, reversal when there exists a modicum of inculpa-tory evidence might be characterized as a reversal for lack of evidentiary weight, as indeed it is. But it is not a reversal based on conviction against “the weight of the [exculpatory] evidence.”
The former method, prescribed by Jackson, requires more than a “mere modicum” of inculpatory evidence. One need not look to the exculpatory evidence to apply this criterion. In the latter method, it is clear the Supreme Court has in mind a weighing of inculpatory against exculpatory evidence. This is a method not prescribed by Jackson, and reversal grounded upon it does not bar retrial.
The clear implication is that reversal for what the Court now calls “legal insufficiency” under the rule of Jackson does bar retrial. But it is hard to see what is meant *693by a “lower limit on ... [the] definition of evidentiary sufficiency,” unless it is meant that there is a lower limit below which the quantity or weight of inculpatory evidence may not fall and still be “legally sufficient” to support a conviction. If this is a correct reading of the Court’s meaning, it is consistent with Jackson. The only analytical problem is the use of the phrase “legal insufficiency” to describe the Jackson standard. Henceforth, in this opinion, I will use the term “constitutional insufficiency” or simply “insufficiency of the evidence” to distinguish the Jackson rule from the “no evidence” rule, which is often called the standard of “legal insufficiency” in Texas.
Historically, the Texas Court of Criminal Appeals has always used the “no evidence” standard to review evidentiary sufficiency. The fact that we continue to do so after Jackson is puzzling. Since, in the past, the only sufficiency standard against which this Court ever evaluated evidence on appeal was that of “legal insufficiency,” it was natural after a time for the Court to drop the word “legal” from its written opinions in many cases.
The Courts of Civil Appeals, on the other hand, were long empowered to assess both “legal insufficiency” and “factual insufficiency” of evidence adduced at trial. The former, however, is and has been for some time routinely and almost exclusively denominated “no evidence” in the opinions of the Texas Supreme Court and intermediate appellate courts. Accordingly, the word “factual” is nearly always dropped from the latter, since it no longer marks a distinction of any importance in civil cases.
The result has been that the Texas Supreme Court and Courts of Civil Appeals always meant something very different by the phrase “sufficiency of the evidence” than did the Texas Court of Criminal Appeals. Indeed, the divergence of definition is evidently of such antiquity that almost no one on either side now realizes that he means something different by the phrase than does everyone on the other side.
This would long since have produced disastrous consequences except that neither side has had much occasion until recently to talk officially with the other. The Court of Criminal Appeals has always had exclusively criminal jurisdiction. The Supreme Court and, until a few years ago, the Courts of Civil Appeals always had jurisdiction which was exclusively civil. Consequently, neither side was ever called upon to review a decision of the other. Since it was not necessary that the civil courts read and understand what was said by the criminal court, or vice versa, no misunderstanding of legal terminology ever arose. In fact, either side might have conducted all its business in French for all the effect it would have had upon the other.
This is no longer the case, however. The Courts of Civil Appeals were renamed “Courts of Appeals” and given intermediate appellate jurisdiction in criminal as well as civil cases. An official dialogue instantly arose between these courts and the Court of Criminal Appeals, since the latter now reviews the decisions of the former in criminal cases. And, as might have been expected, the two sides now misunderstand one another perfectly.
In its capacity as final arbiter of the criminal law in Texas, the Court of Criminal Appeals might soon have made it clear to the intermediate courts that the sufficiency of evidence in criminal cases is to be judged by what is known in civil courts as the “no evidence” standard. Indeed, the standard was quickly impressed upon the Courts of Appeals, although the Court of Criminal Appeals has yet to realize that what it calls “insufficient evidence” is a thing very different from “insufficient evidence” in civil practice. By and large, the intermediate appellate courts have been able to follow the rule, although one might easily sympathize with their inability to understand its epithet.
This would have been well enough had not the United States Supreme Court, at about the same time, decided to reinterpret due process such that the quantum of evidence necessary to sustain a criminal conviction was increased. No longer were state convictions to be evaluated against the “no evidence” standard, but rather against an “insufficiency of the evidence” *694standard. There is, of course, no special reason for believing that this decision was anything but coincidental. Still, happening as it did very nearly when the Courts of Appeals acquired their new and unfamiliar jurisdiction in criminal cases, its effect was to exacerbate the problem of legal terminology in Texas criminal jurisprudence.
Naturally, the Courts of Appeals read Jackson to require a review for “factual insufficiency,” a thing they were well practiced at. The Court of Criminal Appeals, however, was quick to reveal that it had no idea what this meant, confusing it at once with “against the great weight and preponderance of the evidence,” another standard of evidentiary review well known to the civil courts and which differs in significant substantive and procedural ways both from the “no evidence” standard and from the “insufficiency of evidence” standard.
Nevertheless, as we have seen, the Court of Criminal Appeals asserted that the Jackson rule was a “sufficiency of the evidence” standard, just like the one it had been applying all along. But the United States Supreme Court was not speaking this language at all. Rather, it was speaking the language of the Texas Supreme Court and Courts of Appeals, and it meant by “sufficiency of the evidence” not “legal sufficiency” but “factual sufficiency.” That this is so is evident from a straightforward reading of the majority and concurring opinions in Jackson. The failure of the Court of Criminal Appeals to perceive it can only be attributed to its ignorance of the fact that “sufficiency of the evidence” has long meant “factual sufficiency” everywhere but in the criminal courts of Texas.
Thus, in point of federal constitutional law, the Due Process Clause prohibits the conviction of an accused person upon evidence which is “factually insufficient” to persuade any rational factfinder beyond reasonable doubt that the accused is guilty. This is not to say that the U.S. Constitution also prohibits conviction “against the great weight and preponderance of the evidence.” Indeed, as should be clear by now, the recent case of Tibbs, supra, strongly suggests that it does not, for while a “factual insufficiency” prevents retrial, a conviction which is merely “against the great weight and preponderance of the evidence” does not. The distinction may at first seem to elude common sense, but once again I find it to be a familiar and satisfactory basis for different results in Texas civil practice, and Justice Calvert explains it quite clearly.
A “sufficiency of the evidence” standard requires a weighing of the inculpatory evidence alone. If this evidence is not heavy enough, the conviction must be reversed. A “weight and preponderance of the evidence” standard requires a weighing of the inculpatory evidence against the exculpatory evidence. If the latter greatly outweighs the former, those states which apply this standard to criminal cases as a matter of state law may, but are not required by due process, to reverse the conviction.
In this connection, another aberration of Texas criminal practice appears. Consider the proposition of Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App. 1983) (on State’s motion for rehearing), that
... if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.
And again at pp. 449-450 (emphasis in original):
If the State’s evidence supports an inference other than a finding of the essential elements of the crime, then no trier of fact could rationally find the accused guilty beyond a reasonable doubt —and this is true irrespective of the character of the evidence.
Without more, this holding accomplishes two extrapolations from Jackson, only one of which is plainly required by the Due Process Clause: (1) it seems to focus only on evidence adduced by the State, which under most but not all conceivable circumstances could be fairly described as inculpa-tory evidence; and (2) it mandates reversal when the evidence under consideration gives rise to multiple inferences, all of which may be reasonable but not all of which establish guilt.
*695The second of these propositions is almost certainly not required by Jackson:
Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 US 121, 140, 99 L Ed 150, 75 S Ct 127 [138]. We decline to adopt it today. Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.
Jackson, supra at 443 U.S. 326, 99 S.Ct. 2792-2793, 61 L.Ed.2d 578.
One might attempt to square Carlsen with this language from Jackson by maintaining two positions. First, it might be surmised that, while the Due Process Clause does not require the exclusion of every hypothesis inconsistent with guilt, it does require exclusion of every reasonable hypothesis inconsistent with guilt. Carl-sen, however, does not speak of reasonable hypotheses, but only of “an inference other than guilt.” Furthermore, the United States Supreme Court, prior to the Carlsen decision, quoted with approval the following language from United States v. Lincoln, 630 F.2d 1313, 1316 (8th Cir.1980): “The evidence need not exclude every reasonable hypothesis except that of guilt.” Tibbs, supra at 457 U.S. 31, 38, n. 11, 102 S.Ct. 2211, 2216, n. 11. It is, therefore, unlikely that any significance should be attached to the failure of the Jackson Court to use the word “reasonable.”
Second, it might be thought that Carlsen did not mean “conflicting inference” when it said “an inference other than guilt.” By this reckoning, there is no conflict when an internally consistent body of evidence is simply ambiguous. Such evidence merely gives rise to more than one reasonable inference. But clearly under these circumstances, even if it can be intelligently maintained that the evidence does not conflict, it would stretch credulity to insist that the inferences do not conflict. One warrants a conclusion of guilt; the other a conclusion of innocence. What could be more conflicting than that?
Ironically, the “exculpatory inference” analysis transcends the “no evidence” review of Banks/Combs and the constitutional sufficiency review of Jackson to require a criminal law equivalent of the “weight and preponderance” review often encountered in Texas civil practice. In effect, it obliges the reviewing court to compare the inculpatory evidence and inferences with the exculpatory evidence and inferences to determine, not whether the latter greatly outweighs the former, but whether a reasonable exculpatory inference remains. This task differs from a “weight and preponderance” review only insofar as it takes account of the higher standard of proof in criminal cases. But both procedures clearly contemplate a review of the record not required by Jackson.
Accordingly, the holding of Carlsen is in error to the extent that it relies upon Jackson. On the other hand, if there is an independent state ground for the holding, there is nothing in Jackson disapproving it. Otherwise, it must be overruled. What remains is to determine whether the Texas Constitution authorizes either the Court of Criminal Appeals or the Courts of Appeals even to perform the “factual sufficiency” review which is required by Jackson, let alone the “exculpatory inference” review of Carlsen. Although this question has already been answered in the negative, it should by now be apparent that the holding of Combs in this regard was based upon a flawed premise.
For the above and foregoing reasons, it is now time for this Court to revisit Combs and Carlsen, supra, in light of Art. V., § 6 of the Texas Constitution. To the majority’s failure to do so, I respectfully dissent.
We perceive no other standard may be utilized by the Court of Appeals in reviewing criminal convictions other than sufficiency of the evidence to support conviction.