concurring on denial of Application for Writ of Error.
I write to answer the dissent. There is nothing “extraordinary” about today’s order. The court has in the past withdrawn orders granting writ of error prior to oral argument. See, e.g., Williams v. City of Fort Worth, 34 Tex.Sup.Ct.J. 8 (Oct. 10, 1990); Cropper v. Caterpillar Tractor Co., 777 S.W.2d 709 (Tex.1989); Cedillo v. Ewlen Enter., Inc., 756 S.W.2d 724 (Tex.1988). This action was taken because the application should never have been granted in the first place. The dissent’s suggestion, that we at least hear oral argument before denying the writ as improvident, would gain the petitioners nothing. Since the constitution so clearly foreordains that the result remain the same, oral argument would needlessly give the petitioners false hope and cause the parties to incur additional attorney’s fees.
To take jurisdiction of this case again is to second-guess the court of appeals’ review of the factual sufficiency of the evidence. This would require us to continue to send the case back to the court of appeals until they “get it right,” i.e., until the court of appeals reaches a result in accord with our view of the evidence. This we must not and cannot do, for to do so would usurp the court of appeals’ constitutional role.
The court of appeals discharged its duty as per our instructions. 825 S.W.2d 456, 462. It conducted a review of the factual sufficiency of the evidence, found it deficient, and remanded for a new trial. 832 S.W.2d 368, 374. Havner sought review again in this court and the dissent would once again remand this case to the court of appeals for a third review of the evidence.
For our court to do what the dissenting justices want us to do would require us to ignore constitutional limitations on our own jurisdiction: “the decision of said courts [of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.” Tex. Const. art. V, § 6.
Just as a court of appeals must not merely substitute its judgment for that of the jury, our court must not second-guess the court of appeals’ sufficiency review. As we observed shortly after Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986):
No one would argue that the constitutional right of trial by jury should or could be abrogated by this court, merely because the court reached the conclusion that too many juries were reaching clear*287ly wrong decisions. It is no different to suggest that we should or could restrict or abolish the courts of appeals' constitutional authority to review fact questions, merely because there are occasional opinions that reflect too little deference to the judgment of the jury. See Pool, 715 S.W.2d at 635 (discussing such “occasional” opinions). The right of trial by jury and appellate court review of fact questions have peacefully co-existed for almost one hundred and fifty years, and are thoroughly rooted in our constitution and judicial system. Aside from the inescapable fact that this court cannot amend the constitution, we are not prepared to sacrifice either for the benefit of the other.
Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex.1988).
As to our duty to ensure that the lower courts employ the proper standard of review, I fully accept this duty. However, the court of appeals discharged its duty applying the proper standard of review under In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), and Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986). What we should avoid is the yo-yo effect when a majority of the court keeps reversing the judgment of the court of appeals until it reaches a result that the majority approves. See Lofton v. Texas Brine Corp. 720 S.W.2d 804 (Tex.1986) (per curiam) (remand for second factual sufficiency review); Lofton v. Texas Brine Corp., 777 S.W.2d 384 (Tex.1989) (remand for third factual sufficiency review). See also William Powers & Jack Ratliff, Another Look at. “No Evidence” and “Insufficient Evidence," 69 Tex.L.Rev. 515, 533 (1991).