concurring.
Elbert Clewis asserts in his only point of error that the evidence is factually insufficient to show that he knowingly and intentionally entered the building. This ease therefore requires us to determine whether evidence of the elements of a criminal offense is subject to a factual sufficiency review. The majority correctly assumes that this Court has mandatory and conclusive appellate jurisdiction to conduct such a review. However, the majority then somehow concludes that the standard of review to be used in assessing the factual sufficiency of the evidence should be the same standard used in determining the legal sufficiency of the evidence. I do not believe that the Texas Constitution permits this Court to use the same standard of review for both questions of law and questions of fact. Nor do I believe that anything in the Federal Constitution compels such a conclusion. I would adopt the standard of review used in Stone v. State, 823 S.W.2d 375 (Tex.App.—Austin 1992, pet. refd, untimely filed). I concur in the result because the evidence is factually sufficient to support the conviction even under Stone.
Legal Sufficiency is a Question of Law
To determine the legal sufficiency of the evidence in support of a conviction, the standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). This standard is the minimum standard required to enforce the defendant’s constitutional rights. Jackson, 443 U.S. at 319 n. 12, 99 S.Ct. at 2789 n. 12. The standard leaves it to the trier of fact to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 319, 99 S.Ct. at 2789. To say that the evidence is legally insufficient means that the case should never have been submitted to the jury. It is a question of law. Ex parte Schuessler, 846 S.W.2d 850, 852 n. 5 (Tex.Crim.App.1993).
Factual Sufficiency is a Question of Fact
A significantly different standard of review applies when considering whether a criminal defendant has proved an affirmative defense. In such instances, the correct standard of review is whether, after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App.1990). This is a factual sufficiency standard analogous to that employed in reviewing civil cases. The issue of factual sufficiency is a question of fact. Schuessler, 846 S.W.2d at 852 n. 5.
This Court Must Review Questions of Fact
The Texas Constitution confers upon the courts of appeals “appellate jurisdiction ... *441under such restrictions and regulations as may be prescribed by law.” Tex. Const. art. V, § 6. This provision operates as a general grant of appellate jurisdiction, and includes the power to review fact questions. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex.1988); Bailey v. Haddy, Dallam 376, 378 (Tex.1841); Republic v. Smith, Dallam 407, 410-11 (Tex.1841). The legislature has expressly authorized the courts of appeals to review fact questions in criminal cases. Tex.Code Crim.Proc.Ann. art. 44.25 (Vernon Supp.1994); Stone, 823 S.W.2d at 378-79 n. 7.
The appellate courts of Texas 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.). This is especially true in reviewing questions of fact, where the decision of the court of appeals is conclusive. Tex. Const. art. V, § 6. As this constitutional provision has been interpreted to give the intermediate appellate courts the final word on factual sufficiency issues in civil eases, I see no reason to interpret the same constitutional provision differently in criminal eases. See Bleil and Bleil, The Court of Criminal Appeals Versus the Constitution: The Conclusivity Question, 23 St. Mary’s L.J. 423, 424 (1991). If a court of appeals refused to review the factual sufficiency of the evidence in support of a criminal conviction, the defendant would be deprived of any appellate review of this vitally important question of fact. Such a deprivation would deny the defendant due process of law. Meraz v. State, 714 S.W.2d 108, 112 (Tex.App.—El Paso 1986), aff'd, 785 S.W.2d 146 (Tex.Crim.App.1990). It follows, therefore, that this Court must review the factual sufficiency of the evidence — a question of fact — in addition to reviewing the legal sufficiency of the evidence, which is a question of law. It remains only to determine the appropriate standard for reviewing the factual sufficiency of the evidence of the elements of a criminal offense.
The Same Standard of Review Cannot be Applied to Both Questions of Law and Questions of Fact
The majority concludes that the Jackson standard must be used to review the factual sufficiency of the evidence whenever the burden of proof at trial is “beyond a reasonable doubt.” I cannot agree. The only remedy afforded by the Jackson standard of review is the rendition of a judgment of acquittal. To render a judgment of acquittal is to literally substitute the judgment of the reviewing court for that of the jury. If the appellate court is truly reviewing the factual sufficiency of the evidence — a question of fact — then it cannot substitute its judgment for that of the factfinder. See Tompkins v. State, 774 S.W.2d 195, 202 (Tex.Crim.App.1987), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989).
The majority blurs this crucial distinction by contending that the Jackson standard, although “characterized” as a question of law, actually “encompasses” or has “built-in” a factual sufficiency component. The majority would thus treat the legal sufficiency of the evidence under Jackson as a mixed question of law and fact, contrary to the Texas Court of Criminal Appeals’ conclusion that it is purely a question of law. See Schuessler, 846 S.W.2d at 852 n. 5. In my opinion, this is a flawed analysis.
A mixed question of law and fact is one that requires the factfinder to first resolve a fact question by weighing the evidence, so that the court may then apply the facts found to the applicable law. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); see also Higbie v. State, 780 S.W.2d 228, 231 (Tex.Crim.App.1989), overruled on other grounds, 800 S.W.2d 528 (Tex.Crim.App.1990). The Jackson standard, in contrast, does not first require the factfinder to determine the weight and credibility of the evidence. It is a test to determine whether the case should have been submitted to the fact-finder in the first place. Schuessler, 846 S.W.2d at 852 n. 5. Under Jackson, “viewing the evidence in the light most favorable to the prosecution” is not a standard for reviewing the jury’s factual determinations, it is merely an analytical tool used to determine if there is a fact issue at all. Jackson leaves it to “the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and *442to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. It does not purport to provide appellate review of these fact issues.
The Prohibition Against Double Jeopardy Does Not Preclude a Remand on Questions of Fact
The majority’s decision to apply the Jackson standard when reviewing the factual sufficiency of the evidence is premised on the view that the remedy of remand is precluded by the constitutional prohibition against double jeopardy. See U.S. Const. amend. V. However, this premise does not withstand close scrutiny.
“The Double Jeopardy Clause does not prevent an appellate court from granting a convicted defendant an opportunity to seek acquittal through a new trial.”1 Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652 (1982). The only exception to this rule is when the reversal is based on legally insufficient evidence under Jackson. Id. at 42, 45, 102 S.Ct. at 2218, 2220. Hence, the majority’s argument that the Jackson standard applies because Double Jeopardy prohibits a new trial constitutes circular reasoning. Jackson must first be applied before it can be determined whether Double Jeopardy prohibits a new trial.
The majority attempts to escape this vicious circle by erroneously interpreting Tibbs to mean that a new trial is permitted only when the reviewing court disagrees with the jury’s weighing of the evidence. Such an interpretation is clearly erroneous because it ignores, for example, new trials granted as a result of prosecutorial error. However, it is helpful to assume the correctness of this interpretation in order to expose the more pervasive flaw in the majority’s argument.
Appellate Review of Fact Questions Necessarily Requires the Reweighing of Evidence
The majority’s argument may be fairly summarized as follows: Tibbs permits a new trial only when the court disagrees with the jurors’ weighing of the evidence. However, under Texas law, the jury is the exclusive judge of the facts and of the weight to be given the evidence. Citing Tex.Code Crim. Proc.Ann. arts. 36.13, 38.04 (Vernon 1981 & 1979). Hence, Texas courts may not disagree with the jurors’ weighing of the evidence, and the conditions for granting a new trial under Tibbs cannot be satisfied. Since remand for new trial is not an available remedy, insufficient evidence requires an acquittal. Consequently, Jackson is the appropriate standard because it is the established standard for acquitting the defendant on insufficient evidence.
The flaw in this analysis, I believe, is an overbroad interpretation of the statutory provisions establishing the jury as the “exclusive judge of the facts and of the weight to be given the evidence.” The majority has interpreted this language so broadly as to preclude any appellate review of the jury’s determination of the facts and of the weight to be given the evidence. This is contrary to the statutory provision authorizing this Court to reverse a criminal conviction “as well upon the law as upon the facts.” Tex.Code Crim. Proc.Ann. art. 44.25 (Vernon Supp.1994). Plainly, this Court must balance the jury’s role as the exclusive judge of the facts against the reviewing court’s jurisdiction to review and reverse the jury’s decision on the facts, just as we must balance our constitutional duty to review fact questions with the defendant’s constitutional right to trial by jury.
The same balance is required in civil cases, where it is also true that the jury is the exclusive judge of the facts and of the weight to be given the evidence. See Leyva v. Pacheco, 163 Tex. 638, 641, 358 S.W.2d 547, 549 (1962). In civil cases, as in criminal cases, the appellate court must review fact questions, but does not have the authority to substitute its fact findings for those of the jury. See Hopson v. Gulf Oil Corp., 150 Tex. 1, 11, 237 S.W.2d 352, 358 (1951). Thus, it is *443accurate to say that the appellate court does not determine the weight or credibility of the evidence, and so does not sit as a “thirteenth juror.” See Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). However, it is not accurate to conclude that an appellate court may not disagree with the jurors’ weighing of the evidence.
The very essence of a fact question is the weighing of evidence to resolve a factual dispute. See Combs v. State, 643 S.W.2d 709, 715 (Tex.Crim.App.1982), overruled on other grounds, 769 S.W.2d 234 (Tex.Crim.App.1989); see also Black’s Law Dictionary 1246 (6th ed. 1990). Since this Court is constitutionally required to review fact questions, and statutorily authorized to reverse criminal convictions on the facts, it follows that we must review the factfinder’s weighing of evidence and are authorized to disagree with the factfinder’s determination. When doing so, it is necessary for the courts of appeals to “engage in thought processes akin to the jury’s.” Cropper, 754 S.W.2d at 646, (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986)). This means that this Court may reweigh the evidence without violating the right of trial by jury. Cropper, 754 S.W.2d at 651. In fact, the supreme court has required the courts of appeals to consider and weigh all the evidence when conducting a factual sufficiency review. In re King’s Estate, 150 Tex. 662, 666, 244 S.W.2d 660, 662 (1951). All that is required are these safeguards: (1) a deferential standard of review; (2) a prohibition against rendition of judgment; and (3) a requirement that the court of appeals set out in detail the evidence in the case along with its reasons for concluding that the jury’s verdict was contrary to the evidence. Cropper, 754 S.W.2d at 651.
Thus, the majority is in error when it concludes that Texas courts may not disagree with the jurors’ weighing of the evidence. It is not possible for appellate courts to reverse a criminal conviction “upon the facts” without doing so. The appellate court is prohibited only from substituting its judgment on the weight of the evidence for that of the jury. The appellate court does not substitute its judgment when it merely remands the case to a new jury. Thus, remand for new trial is permitted under Tibbs and required under Cropper.
There Can Be More Than One “Deferential” Standard of Review
The defendant’s constitutional right to trial by jury requires the appellate court to review the jury’s findings under a deferential standard. Cropper, 754 S.W.2d at 651. The majority contends that the jury’s verdict in a criminal case must be viewed “in the light most favorable to the prosecution” in order to be deferential, and that any “neutral” review of the facts is constitutionally fatal. However, this argument fails to recognize that there can be varying degrees of deference, and that this is the key to having more than one standard of review. If the jury’s determination of weight and credibility is given absolute deference, then the defendant is denied his constitutional right to an appellate review of these important questions of fact. On the other hand, if the jury’s findings are accorded no deference, then the appellate court is substituting its judgment for the jury’s, and the defendant is denied his constitutional right to trial by jury. Clearly, degrees of deference must be distinguished if these competing constitutional principles are to be balanced.
The standard of review adopted by the Third Court of Appeals requires an appellate court to review and weigh all of the evidence, and to set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone, 823 S.W.2d at 381. This is the same factual sufficiency standard approved for use in civil cases by the Texas Supreme Court. See, e.g., Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The majority says that this standard of review fails to show deference to the jury and amounts to a substitution of the appellate court’s judgment for the jury’s on issues of weight and credibility. However, the supreme court has consistently rejected this argument for nearly 100 years, holding that an appellate court does not substitute its judgment for that of the jury when it merely awards a new trial. See, e.g., Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 419, 44 *444S.W. 69, 70 (1898); see also, e.g., Pool, 715 S.W.2d at 633-34. The supreme court has also expressly approved the “contrary to the overwhelming weight of the evidence” standard of review as adequately deferential. Cropper, 754 S.W.2d at 651.
As the majority acknowledges, the standard of review adopted in Stone places a burden on the appellant that is greater than the burden of proof on a civil plaintiff. It is this burden on appeal that is the true measure by which to judge the deference accorded the jury’s verdict.
The Jackson standard, in contrast, requires complete and total deference to the jury’s weight and credibility determinations. The reviewing court may not reweigh evidence or scrutinize the jury’s reasoning in any way. Jackson, 443 U.S. at 320 n. 13, 99 S.Ct. at 2789-90 n. 13; Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). Such complete deference denies the defendant his right to an appellate review of these fact questions.
The Higher Burden of Proof at Trial Does Not Preclude an Intermediate Standard for Reviewing Factual Sufficiency
Finally, the majority suggests that the much higher “beyond a reasonable doubt” burden of proof in criminal cases precludes adoption of a separate standard for reviewing the factual sufficiency of the evidence. How, the majority asks, can a legally sufficient verdict of guilt beyond a reasonable doubt be manifestly unjust and clearly wrong?
For the answer to this question, one need look no further than the United States Supreme Court’s decision in Tibbs, which considered and rejected this very argument. Tibbs is a prime example of a case in which the defendant’s conviction is supported by legally sufficient evidence, but reversed on evidentiary weight.2 Said the Court: “trial and appellate judges commonly distinguish between the weight and the sufficiency of the evidence. We have no reason to believe that today’s decision will erode the demonstrated ability of judges to distinguish legally sufficient evidence from evidence that rationally supports a verdict.” Tibbs, 457 U.S. at 44-45, 102 S.Ct. at 2219-20.
Theoretically, the higher the burden of proof at trial, the easier it is for an appellate court to decide that the evidence is factually insufficient to meet that burden. See Williams v. Knott, 690 S.W.2d 605, 610 (Tex.App.—Austin 1985, no writ). Many courts, including this one, have done this in civil cases by changing the standard of review to track the burden of proof at trial. See, e.g., Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.—Dallas 1982, no writ) (where burden of proof is clear and convincing evidence, standard of review is whether jury could reasonably conclude that existence of fact is “highly probable”). Stone rejects this approach, instead adopting a single “contrary to the overwhelming weight of the evidence” standard of review that places the greatest burden on the appellant consistent with the right to appellate review of the facts.
It is incongruous, to say the least, for the majority to complain both that Stone would be difficult to apply and that it fails to accord any deference to the jury. It is the great deference accorded by Stone thát makes the standard more difficult to meet. The mere fact that the line between factually sufficient and factually insufficient evidence may be difficult to draw does not mean that we may forsake our constitutional duty to provide an appellate review of this fact question.
Other Decisions Rejecting Stone are Poorly Reasoned
I recognize that other courts have also rejected Stone for reasons similar to those given by the majority. Some have said that a factual sufficiency review is available only for issues on which the defendant had the *445burden of proof. See, e.g., Pender v. State, 850 S.W.2d 201, 203 (Tex.App.—Fort Worth 1993, no pet. h.). However, there is nothing in the Texas Constitution that places such a restriction on our appellate jurisdiction over questions of fact. Tex.Const. art. art. V, § 6. In civil cases, the same constitutional provision has long been interpreted to authorize a factual sufficiency review of any fact issue, regardless of which party had the burden of proof. Compare Cain, 709 S.W.2d at 176 (there may be insufficient evidence to support finding on issue on which appellant did not have burden of proof) with Cropper, 754 S.W.2d at 650-51 (failure of jury to find for appellant on issue on which he had burden of proof may be against great weight and preponderance of the evidence).
Another court has held that a factual sufficiency review is available in criminal cases only on issues where the burden of proof is by a preponderance of the evidence. Richard v. State, 830 S.W.2d 208, 213 (Tex.App.—Houston [14th Dist.] 1992, pet. ref'd). That court suggested that allowing appellate courts to review the proof of the elements of an offense on a great weight and preponderance of the evidence standard rather than on the beyond a reasonable doubt standard would actually lessen the State’s burden. Id.
To the contrary, a factual sufficiency review of criminal convictions is actually a higher standard of review than the minimum standard set forth in Jackson. Stone, 823 S.W.2d at 379; Minor v. State, 653 S.W.2d 349, 354 (Tex.App.—San Antonio) (Cadena, C.J., concurring), pet. ref'd, 657 S.W.2d 811 (Tex.Crim.App.1983). A factual sufficiency review theoretically allows convictions to be reversed even if the evidence is legally sufficient to have permitted a rational finder of fact to have found the elements of the offense beyond a reasonable doubt. See supra note 2.
Conclusion
This Court has a constitutional and statutory duty to provide appellate review of all questions of fact in a criminal case, including the factual sufficiency of the evidence of the elements of the offense. This duty must be balanced against the defendant’s right to trial by jury, which makes the jury the exclusive judge of the weight and credibility of the evidence. Our duty to review fact questions should not be completely sacrificed by according total deference to the jury’s resolution of these questions.
The Jackson standard of review is a test to determine if fact questions exist; it assumes that the jury has accorded the proper weight to the evidence and so cannot serve as a standard for reviewing the weight of the evidence. Jackson is the minimum standard for protecting the defendant’s due process rights; there is nothing in the Federal Constitution that prevents our State from creating an additional higher standard. It is ironic that the Court relies on the Double Jeopardy Clause to “protect” a defendant from the new trial he desires.
I would adopt the Stone standard for reviewing the factual sufficiency of the evidence of the elements of a criminal offense. It is a standard that has already been approved for use in civil cases by the Texas Supreme Court because it is a fair balance between the right to appellate review of fact questions and the right to have those fact questions ultimately decided in a trial by jury.
By passing a 1977 amendment to the Texas Constitution provision regarding appellate review of fact questions, the public in essence confirmed the authority of the courts of appeals to review evidence based upon the standards previously established by the supreme court. Meraz, 785 S.W.2d at 153. Stone wisely adopts such a previously established standard.
It is important to remember that the goal of our criminal justice system is to convict the guilty and exonerate the innocent. Herrera v. Collins, — U.S. -, -, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993); United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975). An innocent person convicted on the basis of false testimony has no remedy under Jackson. A “corrupt, biased or silly verdict” is as possible in criminal cases as in civil cases, and the stakes are much higher. A factual sufficiency review is the only check against these *446admittedly rare occurrences. See Cropper, 754 S.W.2d at 652; see also Tibbs, 457 U.S. at 44 n. 22, 102 S.Ct. at 2219-20 n. 22 (factual sufficiency review helps shield defendants from “unjust convictions”); see also Minor, 653 S.W.2d at 354 (Cadena, C.J., concurring) (factual sufficiency review protects against “a serious miscarriage of justice”).
I concur in the judgment of the Court because the evidence in this case is factually sufficient to support the conviction under Stone.
. The same is true under our state constitution. Tex. Const. art. I, § 14. A court may set aside a conviction for any unspecified reason and order a new trial without violating the Double Jeopardy Clause, because the case has been restored to its position before the former trial, and initial jeopardy continues. Lofton v. State, 777 S.W.2d 96, 97 (Tex.Crim.App.1989).
. One might also consider this variation on the classic hypothetical: The prosecution’s sole witness, a paid informant, testifies that he saw the defendant commit a crime. Twenty nuns testify that the defendant was with them at the time, far from the scene of the crime. Twenty more nuns testify that they saw the informant commit the crime. If the defendant is convicted, he has no remedy under Jackson because the informant’s testimony, however incredible, is legally sufficient evidence.