Clewis v. State

WHITE, Judge,

dissenting.

Law-abiding Texans, hold on to your hats. We have another “run-away train” and it is again driven by a reckless, careless, and mischievous driver, Judge Maloney.1

After reviewing the decision of the Dallas Court of Appeals in the instant case, I find myself in agreement with the reasoning and analysis of Justice Lagarde. See Clewis v. State, 876 S.W.2d 428 (Tex.Cr.App.1994). The majority has not provided this Court with a sufficient reason to abandon Jackson v. Virginia’s standard for reviewing eviden-tiary sufficiency as the sole standard for reviewing sufficiency of the evidence and, instead, add the civil standard for reviewing factual sufficiency of the evidence to the review of the appeals in criminal cases.

In its opinion, the majority alters the landscape upon which this State’s appellate courts will review sufficiency of the evidence in criminal eases. From this day forward, the evidence supporting a criminal conviction will be reviewed twice for sufficiency on appeal: once, to determine if that evidence is legally sufficient, pursuant to the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Whether the evidence, when viewed in a light most favorable to the verdict, would lead any rational trier of fact to conclude beyond a reasonable doubt that the substantive elements of a criminal offense are true.); and second, to determine if that same evidence is factually sufficient, pursuant to the standard set out by the majority today (Whether the evidence, while not being viewed through the prism of the light most favorable to the verdict, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust). Under this decision, a reviewing court not only has the responsibility to decide if the evidence at trial was legally sufficient to support the decision of the trier of fact, a task which carries the inherent burden of respecting the province of the finder of fact to assess the credibility of the evidence and determine the weight to be assigned to that evidence, but the reviewing court now also possesses the duty to review the weight and credibility of that same evidence for itself, far removed from the courtroom where the evidence was presented and the demeanor of the witnesses observed by the trier of fact2, in order to determine if it, the reviewing court, would have reached the same conclusion. I respectfully dissent to this decision.

This holding by the majority represents more than a decision to usurp the role of the jury in our criminal courts;3 it is no less *159than a breach of faith by a majority of this Court by which it has abrogated its traditional duty of respecting the abilities of the juries and trial courts of this State to fulfill their responsibility to evaluate and assess the weight and credibility of the evidence presented to them. The citizens of this State are entitled to juries who enjoy this responsibility exclusively.

However, from this day forward, the decision by the majority will permit on some occasions as few as three judges of a mid-level appellate court to substitute their own personal judgment of the evidence for the decision of the twelve citizens of a jury who observed the witnesses and determined their credibility and truthfulness, personally listened to the presentation of testimony and physical exhibits, assessed the weight and credibility of all the evidence, and rendered a verdict beyond a reasonable doubt based upon all of this under the direction of the instructions of an experienced trial court.4 This decision is no less than an usurpation of the jury’s role as the finder of fact in criminal cases.

In Abdnor v. State, 871 S.W.2d 726 (Tex.Cr.App.1994), this Court explained the role of the jury.

“Texas has followed the common law in assigning a fact-finding purpose to the jury. Tex. Const, art. I, § 15 interp. commentary (Vernon 1984). We have consistently held, and our Code of Criminal Procedure explicitly provides, that ‘the juror’s are the exclusive judges of the facts ... [and] of the issues of the facts.’ ”

Abdnor v. State, 871 S.W.2d, at 731; and cases cited therein. In its decision, the majority has granted to the appellate courts of this State the power to sit as thirteenth jurors in each criminal case that comes up for direct appellate review.

The majority attempts to subtly dispute this notion by asserting an appellate court, when conducting a factual sufficiency review, “cannot substitute its judgment for that of the factfinder.” Clewis v. State, at 133. The majority cites to Tibbs v. Florida, 457 U.S. 31, at 42, 102 S.Ct. 2211, at 2218, 72 L.Ed.2d 652 (1982) in support of its notion. However, the majority’s citation to Tibbs is no more than an effort to “hide the ball;” which in the instant case, the ball is no less than an attempt to subvert the jury’s role as the ultimate finder of fact in criminal eases.

The Court in Tibbs discusses the appellate review of factual sufficiency in terms that indicate an appellate court performing that function is doing no less than substituting its judgment of the facts for that of the jurors, even though it is not substituting a new verdict for the one originally rendered by the trier of fact.

“A reversal on this ground [that a guilty verdict is against the weight of the evidence], unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a “thirteenth juror” and disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement *160among the jurors themselves.” (emphasis added)

Tibbs v. Florida, 457 U.S., at 42, 102 S.Ct., at 2218. In its decision, the aggressive and assertive majority is judicially legislating the status of appellate courts as “thirteenth jurors.”

By virtue of its decision to bestow upon appellate courts the responsibility of being the ultimate finder of fact, the majority has chosen to circumvent the will of the people of this State, as manifested in the statutes adopted by their elected representatives. See Tex.Code Crim.Proc.Ann. art. 36.13. This type of judicial activism by this Court is, unfortunately, not new to this Court. Neither is the reaction of our State’s legislators and citizens to such judicial activism.

It is not unusual for the Legislature to adopt statutes designed to reverse decisions of this Court. This author offers three examples. First, this Court ran afoul of the will of the Legislature on the issue of the admission of unadjudicated extraneous offenses during the punishment phase of non-capital trials. In Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1988), on rehearing, this Court concluded that Tex.Code Crim. Proe.Ann. art 37.07 § 3(a) “precludes evidence of specific acts of conduct” at the punishment stage to show the circumstances of the offender. Murphy, 111 S.W.2d, at 64; see also J. White dissenting, at 50-53, and 73. After Murphy was handed down, the Legislature amended Art. 37.07, § 3(a) to allow evidence to be introduced during sentencing on “any matter the Court deems relevant to sentencing.” TEX.GEN. & SPEC.LAWS, 71st Leg., ch. 785, § 4.04 (1989). This amendment passed by a vote of 144 to 0 in the House and by a vote of 28 to 0 in the Senate. See TEX.GEN. & SPEC.LAWS, 71st Leg., ch. 785, § 4.04 (1989) (historical notes).

Three years later, this Court was asked to determine whether extraneous unadjudicated conduct was to be admitted into evidence during the punishment stage of a non-capital trial under the amendments to § 3(a). In Grunsfeld v. State, 843 S.W.2d 521, authored by Judge Maloney, a plurality of this Court concluded that the Legislature had not altered § 3(a) in a manner that would call for a reversal of Murphy. Grunsfeld v. State, at 524-525. Therefore, a plurality of this Court concluded under the amended statute, the trial courts erred “in admitting evidence of unadjudicated extraneous offenses under Art. 37.07 § 3(a).” Grunsfeld v. State, at 526. In a dissenting opinion, this author decried the efforts of the Grunsfeld plurality to judicially legislate changes to the 1988 amendment of § 3(a). See Grunsfeld, J. White, dissenting, at 564-565.

The legislature acted quickly to wipe off the books the Grunsfeld decision regarding the 1989 amendment to § 3(a). The Legislature appeared to specifically address the opinion in Grunsfeld when it again revised § 3(a). This 1993 amendment to § 3(a) authorized the admission of “any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant.” See TEX.GEN. & SPEC.LAWS, 73rd Leg., ch. 900, § 5.05 (1993). This amendment passed by a viva voce vote in the Senate and by a non-record vote in the House. See TEX.GEN. & SPEC.LAWS, 73rd Leg., ch. 900, § 5.05 (1993) (historical notes). In this way, the Legislature acted quickly to strike down the efforts by a judicially activist plurality of this Court.5

Secondly, a similar chain of events occurred when this Court handed down its opinion in Green v. State, 706 S.W.2d 653 (Tex.Cr.App.1986).6 In Green, this Court was called upon to decide whether TEX. CODE CRIM.PROC.ANN. art. 42.08(a) permitted trial courts to stack, or cumulate, probationary sentences onto prison sentences. This Court decided the only punish*161ment that art. 42.08(a) permitted a trial court to cumulate upon a second or subsequent conviction when the preceding conviction ceases to operate is punishment by confinement in a prison or a jail. Green, at 657. This court’s approach to interpreting Art. 42.08(a), which restricted the discretion of a trial court to assess punishment, provoked a response from the Legislature.

In the next legislative session the Legislature acted to correct the activist approach taken by the Court in its interpretation of Art. 42.08(a). The Legislature specifically provided for such sentence cumulation during the following year:

“When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided in Sections (b) and (e) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or casés....”

This amendment to art. 42.08 passed by a vote of 134 to 3 in the House and by a vote of 30 to 0 in the Senate. See TEX.GEN. & SPEC.LAWS, 70th Leg., ch. 513, § 1 (1987) (historical notes).

Lastly, this Court attempted to strike down the Legislature’s decision to permit trial courts to instruct juries on the parole eligibility of defendants. In Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987), this Court concluded that the statute, and the written parole law instruction which it mandated, violated the separation of powers provision of the state constitution. See TEX.CODE CRIM.PROC.ANN. art. 37.07, § 4(a), and TEX. CONST., article II, § 1; see, also, Rose v. State, at 535 (on original submission). This Court also concluded that art. 37.07, § 4(a) and the instruction it mandated violated the due course of law provisions of the state constitution. See TEX. CONST., Article 1, §§ 13,19; and Rose v. State, at 537 (on original submission).

The dissenting opinion in Rose, authored by Presiding Judge McCormick (who also has a dissent in this case), criticized the majority’s effort to judicially legislate a change to a statute.

“There is so much wrong with the majority opinion that to dissent in full would require the writing of at least a two volume treatise entitled “Judicial Legislation: A Means To An End.” Ignoring a constitutional amendment approved by the people of the State of Texas, the majority, without logic, rationale or conscience, strikes down a statute which passes judicial muster in every jurisdiction that has addressed comparable law.”

Rose v. State, 752 S.W.2d, at 545, J. McCormick, dissenting (on original submission). After the decision in Rose v. State was handed down, the Legislature and the voters of the State quickly moved to recodify their intent to permit juries in this State to be instructed on the law of parole eligibility.

The Texas Legislature passed into effect a statutory parole law instruction as an addition to the Code of Criminal Procedure. See now, TEX.CODE CRIM.PROC.ANN. art. 37.07 § 4. The Senate passed this provision on a viva voce vote, while the House passed it by a non-record vote. See TEX.GEN. & SPEC.LAWS, 71st Leg., ch. 103, § 1 (1989) (historical notes). The Texas Legislature expressly conditioned the validity of the new art. 37.07 § 4, upon the passage of a simultaneously drafted constitutional amendment. The Legislature passed a joint resolution proposing the constitutional amendment to the people of Texas for ratification by a vote of 26 to 5 in the Senate and by a vote of 133 to 10 in the House. See Senate Joint Res. 4: Third reading, TEX.SENATE J., 71st Leg., v. I (1989); and Senate Joint Res. 4: Second Reading, TEX.HOUSE J., 71st Leg., v. II (1989). The Legislature also passed a provision, which made the revised version of art. 37.07, § 4 conditional on the passage of the Constitutional Amendment, by a viva voce vote in the Senate and by a non-record vote in the House. See TEX.GEN. & SPEC. LAWS, 71st Leg., ch. 103, § 1 (1989) (histori*162cal notes). The proposed constitutional amendment to TEX. CONST. Article IV, § 11 allowing parole instructions to be issued to criminal juries was approved by the voters of this State by a margin of 901,297 to 239,-714. See Proposition No. 10, Canvass Rept. (Election of Nov. 7,1989).

Each of these three examples show that when this Court has attempted to re-write the laws of this State, the elected representatives of the people have stepped in and rebuked these acts of judicial legislation.

In the instant case, this Court should not take it on itself to “fill in the blanks” of our State Constitution and write a new provision allowing the Courts of Appeals to review all criminal cases for factual sufficiency of the evidence by using a civil standard.7 That should only become the law of this State if it is the carefully considered and publicly debated decision of our Legislature to make that change, and if it is the will of the people to ratify that change.8

The majority feels this bit of judicial legislation is justified by their implied perception that there is an overwhelming need to correct manifestly unjust verdicts. I do not agree because there are mechanisms within place in our criminal justice system which already serve more than adequately to correct manifestly unjust verdicts. Contrary to the belief of the majority, as set out in note 19, supra, “due process protection and the administration of justice” are sufficiently furthered by these mechanisms and do not require the additional tinkering proposed by the majority’s adoption of a factual sufficiency of the evidence review.

First, a defendant can pursue relief from an unjust verdict under the authority of TEX.CODE CRIM.PROCANN. art. 11.07. In Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App.1989), this Court granted relief to the defendant pursuant to his art. 11.07 writ on the grounds that the state’s investigative procedures led to a denial of the defendant’s rights to due process and fundamental fairness at his trial. Brandley, 781 S.W.2d, at 891-895. In Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App.1989), this Court granted relief to the defendant pursuant to his art. 11.07 writ on the ground that he was denied a fair trial because the State suppressed a witness’ prior inconsistent statements and failed to correct a witness’ perjurious testimony. Adams, 768 S.W.2d, at 290-294. As shown by these two cases, a defendant can obtain relief from a fundamentally unfair trial under the authority of art. 11.07.

Art. 11.07 also provides an avenue for relief for a defendant who is asserting a claim of factual innocence. In State ex rel. Holmes v. Third District Court of Appeals, 885 S.W.2d 389 (Tex.Cr.App.1994), this Court decided that state habeas corpus under Art. 11.07 was the appropriate remedy for a defendant who contends that he or she has newly discovered evidence demonstrating his or her innocence. This Court then crafted a threshold standard for a defendant to meet in presenting an 11.07 claim of factual innocence, and for a reviewing court to apply in assessing such a claim. Holmes, 885 S.W.2d, at 396-399.

Art. 11.07 is not the only avenue open to a defendant who seeks relief from a manifestly unjust verdict. A defendant can also pursue relief through the executive clemency process. In Texas, in all criminal cases “except treason and impeachment,” the Governor has the power upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency to an inmate on the *163grounds of innocence. See TEX. CONST, art. IV, § 11; and TEX.CODE CRIM.PROC. ANN. art. 48.01. If a defendant’s verdict of guilt confining him to prison were manifestly unjust due to a failure of the sufficiency of the evidence, would not this qualify as a ground of innocence to warrant a grant of executive clemency?

Lastly, if a defendant is able to show that the verdict rendered against him at trial is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, then he or she would be eligible to pursue federal habeas relief. In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the Court decided that “a truly persuasive demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional.” Herrera, at 417,113 S.Ct. at 869. The Court relied on the protections of the Due Process Clause of the Fourteenth Amendment in reaching this conclusion. Federal habeas relief would also provide another avenue of relief from a verdict that was clearly wrong and unjust.

Because I disagree with the judicially activist approach of the majority in its desire to add a second opportunity for convicted felons to seek a review of the sufficiency of the evidence supporting the convictions against them, and because I believe there are other avenues open for any defendant to pursue in a quest for relief from a verdict that was so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust, I respectfully dissent to the majority’s decision.9

. Also see discussion of Grunsfeld v. State, 843 S.W.2d 521 (Tex.Cr.App.1992), infra.

. What can an appeals court do to accurately review the testimony of a witness for the defense who had his fingers crossed, rolled his eyes, sweated nervously or gave other non-verbal indicators to the trier of fact that indicated the witness was not relating the facts all that correctly? The answer is that the appeals court cannot accurately assess that testimony.

. Judge Meyers is disappointed in my dissent (see page 151 of his concurring opinion) because he says it is disrespectful to the Courts of Appeals. Does this guy blow smoke or what? Contrary to Judge Meyers’ way of thinking, we should affirm a well-reasoned decision of &e Dallas Court of Appeals which Judge Meyers and the aggressive and assertive majority have gone to great lengths to reverse. Who is disrespectful? In this case the opinion of the Court of Appeals was written by Justice Sue Lagarde, a well respected, very competent, outstanding jurist in this State. Who’s knocking the Court of Appeals? See footnote 4 of my dissent. I for one am not taking the Courts of Appeals to task. I fully agree with the decision of the Dallas Court of Appeals. It is Judge Meyers who castigates the Dallas Court and casts the deciding vote to reverse it.

In his concurring opinion, Judge Meyers goes to great lengths to cover his fanny in this case, *159but the Austin Tent and Awning Company does not have a large enough cover in stock. His concurring opinion should be carried in the funny paper section of every newspaper in this State. Judge Meyers suggests that my dissent will "generate hysteria.” As I stated in my opening sentence, “Law-abiding Texans, hold on to your hats.” The hysteria, if any, of course, will be with the victims of crime and the law-abiding Texans. After this opinion is handed down, the celebration by the dope dealers, robbers, rapists, murderers and Judge Meyers will overshadow that of the Dallas Cowboys’ victoiy in Super Bowl XXX.

Judge Meyers closes his opinion with more smoke by stating that the defendant should probably lose when the case goes back to the Court of Appeals. He covers up the fact that his decision will have far reaching results in EVERY criminal case from this day forward. He certainly invites hysteria on a grand scale.

. As Justice Lagarde pointed out in the majority opinion of the Dallas Court of Appeals:

"This conclusion [that the Courts of Appeals have been provided with appellate jurisdiction to review fact questions] does not mean that we have jurisdiction to act as a factfinder and assess the credibility of witnesses and re-weigh evidence. To the contrary, Texas law is clear that we do not.”

Clewis v. State, 876 S.W.2d, at 430; and authorities cited therein.

. The infamous Grunsfeld decision was authored by Judge Maloney who now submits this even more bizarre opinion. In my dissent to Gruns-feld, I tried to point out the absurd interpretations put forth in that decision and what the aftermath of their publication would be. I was correct then. Time will tell if I will be correct again in the instant case.

. I point out that I joined the majority in this case and it was a unanimous opinion (there was one concurrence).

. The majority’s proposal stands in contrast to reviewing the factual sufficiency of the evidence in those criminal cases wherein the courts of appeals, or this Court on direct appeal, are called upon to resolve questions of the weight and preponderance of the evidence adequate to prove a matter that the defendant must prove. See Tex. Const. Art. V, § 6; Meraz v. State, 785 S.W.2d 146, at 154-155 (Tex.Cr.App.1990); and Bigby v. State, 892 S.W.2d 864, at 874-875 (Tex.Cr.App.1994).

. In his majority opinion, Judge Maloney states that "nothing in the Texas Constitution or the Texas Code of Criminal Procedure limits the courts of appeals to a Jackson review.” Clewis v. State, at 133.

If it is true that there is nothing in the Constitution or the laws of this State to specifically prevent the judicial activism of the majority opinion, then that is a good reason for the Legislature to step forward and make it clear that the appellate courts of this State are limited in reviews of the sufficiency of the evidence in criminal cases to application of the Jackson standard of review.

. The ruhng by the majority in the instant case has benefits only for criminals. This is just another effort by the majority to coddle criminals. If the evidence is legally sufficient in a criminal case, why does there need to be another factual review using civil law standards?