dissenting.
The Court rightly finds that ability to pay is an affirmative defense which this probationer had to prove by a preponderance of evidence. On rehearing in Stanfield v. State, 718 S.W.2d 734 (Tex.Cr.App.1986) the Court held that when failure to pay probation fees, court costs and the like is an issue in a revocation hearing, § 8(e) is applicable “regardless of whether a violation of another condition is alleged.” 1
Turning to “the relevant standard for review” of evidence pertaining to an affirmative defense, the majority looks to Van Guilder v. State, 709 S.W.2d 178 (Tex.Cr.App.1985), and finds that it established two propositions: first, “that the Texas Constitution and the Code of Criminal Procedure did not confer jurisdiction on the Courts of Appeals to consider great weight and preponderance of the evidence fact questions in cases involving the affirmative defense of insanity;” second, that the ultimate determination of sufficiency of evidence to support any affirmative defense is whether “any rational trier of fact could have found that the defendant failed to prove his defense by a preponderance of the evidence.”
Regarding the second proposition, my dissenting opinion in Schuessler v. State, 719 S.W.2d 320 (Tex.Cr.App.1986), demonstrates to the satisfaction of some of us that with respect to an affirmative defense “the standard of review” pronounced by Van Guilder is “based on a faulty premise and is, therefore, erroneous,” in that “whatever standard governs appellate review of that determination is not controlled by the Due Process Clause nor required by Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)].” Adhering to those conclusions, I pretermit further discussion of the second proposition advanced by the majority.
Returning to the first, Van Guilder similarly chooses inapposite decisions to bolster its analysis, including Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982). There the Court found it “must decide whether our Court has jurisdiction to review sufficiency questions once they have been passed on by the Courts of Appeals.” Id. at 714. Reviewing first authorities explaining Texas doctrines of “no evidence” and “insufficient evidence” in civil practice, id., at 714-716, and then authorities on the criminal side, including Jackson v. Virginia, supra, providing standards for reviewing “sufficiency of the evidence” to support a verdict of guilty, id., at 716-717, the majority concluded:
“Thus, sufficiency of the evidence to sustain criminal convictions as determined by this Court is a question of law under both state and federal standards. It is not a ‘question of fact’ under Art. 5, Sec. 6, of the Texas Constitution. We conclude that this Court has jurisdiction to review the sufficiency of the evidence *203to support a conviction even though that question has been addressed by the Courts of Appeals.”
Id., at 717.
That Van Guilder did misread Combs is shown by the pains this Court took in Minor v. State, 657 S.W.2d 811 (Tex.Cr.App.1983), to point out the “statutory scheme of things devised in 1981” made changes in former law that were not considered in Combs, and then purposefully and expressly to declare that Combs did not decide that which Van Guilder says it did, viz:
“The opinion of this Court noted that ‘[i]f sufficiency of the evidence is a “question of fact,” then the decisions of the Court of Appeals would be binding on our Court,’ Combs, id., 643 S.W.2d at 714. The majority alluded to Article 1820, as amended, but did not pause to consider its impact on judgments of courts of appeals in criminal cases, when combined with other changes made by Senate Bill 265 in 1981, collated ante. Thus, they still have not been construed by this Court, and the legislative effect in this respect remains an open question — one not raised in the instant case.”
Therefore, Van Guilder does indeed wrongly attribute to Combs a holding that “the due process standard reviewing proof beyond a reasonable doubt, created in Jackson, supra, must be used by the court of appeals in reviewing criminal cases.” As shown above, Combs decided that this Court has jurisdiction to review “evidentia-ry sufficiency” to support a conviction, without delineating a standard of review that “must be used” by courts of appeals on direct appeal.
Focusing as it did on Jackson v. Virginia, Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983) and Combs, the Van Guilder majority did not notice Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Much like we stated in Wilson, supra, at 471, that “due process requirements [are] based expressly on the Fourteenth Amendment[,] are binding on the states and constitute a minimum standard for our sustaining a conviction,” the Tibbs majority viewed Jackson v. Virginia as “setting a lower limit on an appellate court’s definition of evidentiary sufficiency,” id., 457 U.S. at 45, 102 S.Ct. at 2220. Therefore, permitting a reversal on a finding that a guilty verdict is against the great weight and preponderance of evidence “will not undermine Burks [v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)].” Ibid. Since an appellant seeks review on that basis, it follows that appellate assay of great weight and preponderance of evidence is not violative of the Due Process Clause.
Furthermore, Combs involved sufficiency of evidence to prove an element of the offense, namely, cause of death. Id., at 714. Neither Combs nor Minor v. State, 653 S.W.2d 349 (Tex.App.—San Antonio 1983), PDR refused, 657 S.W.2d 811 (Tex.Cr.App.1983) (sufficiency to show accused shot deceased), are concerned with sufficiency of evidence relating to an affirmative defense.
Van Guilder also opines, “There appears to be substantial confusion in the Courts of Appeals over the proper standard for review in criminal cases.” Id., at 180.2 Instead, I suggest respectfully that the source of confusion is a failure to understand and appreciate that Jackson v. Virginia lays down a due process standard of review which must be applied in order to sustain a verdict of guilty, whereas Tibbs v. Florida finds federal constitutional constraints are not implicated in and, therefore, approves a state standard of review
*204which authorizes a state appellate court to reverse a conviction and remand the cause. Put another way, the Due Process Clause prohibits affirming a conviction unless the standard of Jackson v. Virginia is satisfied, but neither it nor the Double Jeopardy Clause bars a state appellate court from reversing a conviction if the verdict or finding of guilty is found to be against the great weight and preponderance of evidence.
All of which is to make the point that Van Guilder rests on unsound grounds and before remanding another cause for reconsideration in light of Van Guilder, as in Baker, we should remove its underpinnings in order to “formulate a proper test,” especially for appellate review of sufficiency of evidence pertaining to an affirmative defense. Schuessler, supra (Dissenting opinion).
To make matters worse, in the instant revocation case, the burden of proving intentional nonpayment by a preponderance of evidence rather than beyond a reasonable doubt is on the State, Stanfield v. State, 718 S.W.2d 734 (Tex.Cr.App.1986); inability to pay does not necessarily mean unintentional failure to pay, so to remand the cause for a determination of whether “any rational trier of fact could have found that he failed to prove his defense [of inability to pay] by a preponderance of the evidence” without first determining whether the State carried its burden of proof in any event serves only to demonstrate how vacuous Van Guilder truly is.
Because the majority persists in compounding the errors of Van Guilder, I respectfully dissent.
ONION, P.J., and McCORMICK, J„ join.. All emphasis throughout is mine unless otherwise indicated.
. From a near unanimity of recent opinions coming to our attention, however, those courts are reading the proviso in Article V, § 6 as they always have in civil cases and applying it to criminal cases as well, particularly to affirmative defenses. See, e.g., Combs v. State, 631 S.W.2d 534, 537-538 (Tex.App.—Houston [1st] 1982); Minor v. State, supra (Concurring opinion); Schuessler v. State, 647 S.W.2d 742 (Tex. App.—El Paso 1983); Arnold v. State, (Tex.App.—Corpus Christi 1984, unpublished); Van Guilder v. State, 61A S.W.2d 915 (Tex.App.—San Antonio 1984); Baker v. State, 682 S.W.2d 701 (Tex.App.—Houston [1st] 1984); Hill v. State, 718 S.W.2d 751 (Tex.App.—Tyler 1985), the instant cause.