concurring.
I concur with the court’s opinion except that portion which deals with In Re King’s Estate. The majority acknowledges that:
Our continuing review of courts of appeals decisions in which factual insufficiency points are discussed convinces us that the overwhelming majority of those opinions represent honest efforts by the scriveners to adhere to the guidelines of In Re King’s Estate. However, there occasionally appears an opinion in which is seems that the court of appeals has merely substituted its judgment for that of the jury.
715 S.W.2d p. 635 (emphasis added). So, if the system “ain’t broke, don’t fix it.”
I believe the majority’s discussion in regard to In Re King’s Estate is unwarranted. The rule is well established that to raise a point of error before this court, the complaining party must have raised the point on motion for rehearing in the court of appeals. Albright v. City of Houston, 677 S.W.2d 487, 488 (Tex.1984); Smith v. Baldwin, 611 S.W.2d 611, 618 (Tex.1980). Further, the rule is equally well established that this court will not rule on a constitutional argument when other points are dis-positive of the case. San Antonio General Drivers, Helpers Local No. 657 v. Thornton, 156 Tex. 641, 647, 299 S.W.2d 911, 915 (1977). Neither party raised the constitutional issue regarding the court of appeals’ exercise of its fact jurisdiction.
Although the court’s discussion does not directly violate the well established rules of In Re King’s Estate, the court is implicitly trying to prevent the court of appeals from second guessing the jury. I am fearful that this opinion may in turn be used to allow this court to second guess the courts of appeal. We cannot interfere with the fact jurisdiction of the court of appeals in contravention of our constitution. TEX. CONST. art. V, §§ 3, 6.
For the above reasons, I disagree with that portion of the majority opinion.