                                                                             31 OFAPPEALS
                                                                             "ocesJs District
                                                                                          1




                                                                                 1   \    Lf


            IN THE COURT OF CRIMINAL APPE
                        OF TEXAS

                                        NO. PD-0308-12




                      MARCUS DEWAYNE MATLOCK, Appellant

                                                 v.




                                     THE STATE OF TEXAS


             ON STATE'S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE TWELFTH COURT OF APPEALS
                                       SMITH COUNTY


      Cochran, J., delivered the opinion of the Court in which Keller, P.J., and
Womack, Johnson, Keasler, Hervey, and Alcala, JJ., joined. Price, J.,
concurred. MEYERS, J., did not participate.

                                          OPINION


       We granted review in this case to determine whether the legal and factual sufficiency

standards that govern Texas civil proceedings still apply to the rejection of an affirmative

defense after this Court's decision in Brooks v. State.1 We conclude that they do. Because


       1323 S.W.3d 893 (Tex. Crim. App. 2010). The State Prosecuting Attorney's two
grounds for review are as follows:
1.     Did the court of appeals err in holding that the jury's rejection of the affirmative defense
       of inability to pay child support was against the great weight and preponderance of the
                                                                                                        .




                                                                                  Matlock     Page 2

the court of appeals mistakenly conflated those two distinct standards in this criminal

nonsupport case,2 we will remand the case to that court to again review the legal (and, if
necessary, factual) sufficiency ofthe evidence supporting the jury's rejection ofappellant's

"inability to pay" affirmative defense.

                                                 I.


       In 1999, appellant was judicially determined to be the father ofafive-year-old girl and

ordered to pay child support. From the very beginning, appellant frequently failed to pay the

$191.40 monthly child support.3 Instead, he was "doing drugs ... crystal meth, heroin, and

everything else you could think of." Appellant introduced into evidence his "book-in book-
out" Smith County jail sheet that showed his numerous criminal charges and arrest dates

between February 16,1995, and June 4, 2009. These charges included harassment, DWLS,

misdemeanor theft, two DWIs, family-violence assault, several charges of nonpayment of

child support, trespass, interference with an emergency call, and burglary.

        evidence when the majority of Texas appellate courts, including the Tyler court, apply the
        civil legal sufficiency standard ofreview announced by the Texas Supreme Court in
        Sterner v. Marathon Oil Company, 767 S.W.2d [686] (Tex. 1989), andthe factual
        sufficiency standard inMeraz v. State, [785] S.W.2d 146 (Tex. Crim. App. 1990), has
        been severely undercut by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)?
 2.     Applying the Sterner legal sufficiency standard, does the fact ofincarceration alone
        satisfy the appellant's burden on the affirmative defense ofinability to pay child support
        by a preponderance of the evidence?

        2Matlock v. State, No. 12-09-00358-CR, 2012 WL 426613, at *8-l1 (Tex. App.-Tyler
 Feb. 8,2012).

        3Appellant testified that he was also ordered to pay child support for two other children,
 and that he and his wife have three children, for a total of six children that appellant is supposed
 to support.
                                                                                 Matlock     Page 3

        Most recently, appellant was charged with sixteen counts of nonsupport for failing to

pay child support on the first of each month from February 2006 through November 2006,

in January 2008, in June 2008, and from September 2008 through December 2008.4 The

evidence was undisputed that appellant did not pay the required child support during those

sixteen months. The onlyquestion was whether he hadthe ability to make thosepayments.5

        ChiefDeputy Pinkerton ofthe Smith County Sheriff s Office testified thatjail inmates

cannot receive any money for the jobs that they may do in the jail, although a trusty may

receive good-time credits. Chief Pinkerton also agreed that those who had money before

they went to jail would still have that money, and "they can pay whoever they want to pay."

       An appointed lawyer who had represented appellant between 2005 and 2007 testified

that appellant was jailed on previous nonsupport charges for more than a year. He was then

conditionally released on probation to stay and work at the Family Prayer Counseling Center,

a residential drug-treatment program.        The Center paid appellant $50.00 a week and

forwarded the rest ofhis paycheck for child support payments. But appellant's probation was

revoked in 2008, and he was ordered to serve 180 days in jail. His probation officer said that




        4See Tex. Penal Code § 25.05(a) ("An individual commits an offense if the individual
intentionally or knowingly fails to provide support for the individual's child younger than 18
years of age, or for the individual's child who is the subject of a court order requiring the
individual to support the child.").

       5See id, § 25.05(d) ("It is an affirmative defense to prosecution under this section that
the actor could not provide support for the actor's child."). The defendant must prove an
affirmative defense by a preponderance of the evidence, the same standard of proof as that
employed in civil cases.
                                                                            Matlock    Page 4

appellant was not a good probationer; she assumed "it was his drug addiction that kept him

from paying his child support as ordered." Appellant was continuously in jail on previous

nonsupport charges from March 6,2005, through March 24,2006, as well as at various times

in 2007 and 2008.


       Appellant testified that he has a college degree in electronics, but that he can't find

work in electronics. "They're not hiring." He had looked all the way from Houston to Tyler.

He had worked in fast-food restaurants, but sometimes they wouldn't hire him because he

was "over-qualified." He worked at the Family Care Center for almost a year after he was

released from jail in March, 2006. His salary was automatically sent off for child-support

payments for his daughter and another son. After about six months working at the Center,

appellant obtained a commercial driver's license and got a job with Basic Energies, a

trucking company, where he made $13.00 an hour. But he lost that job after a month because

he wasn't "ready to be around other people." He later got a job with Shell Tanker. Appellant

testified that he didn't make any child support payments for either his daughter or son while

he was in jail because "I didn't have no money. Nobody would give me money." During

those periods of time, he was not "able to provide any funding or sources of income to pay

any support toward" his daughter.

       When asked by the prosecutor ifhe had "any money whatsoever in savings," appellant

said that he did not. He said that he had asked his uncle, a dentist in Marshall, for help in

paying his child support, but his uncle gave him "Zero." There was no suggestion that
                                                                             Matlock    Page 5

appellant owned a car, a house, or a bank account. There was evidence that he was estranged

from his wife and that he had been staying with various relatives when he was not in jail or

at the rehabilitation center.


       Based upon this evidence, the jury found appellant guilty on all sixteen counts of

nonsupport and sentenced him to confinement in a state jail facility for two years with a fine

of $10,000 on each count.

       On direct appeal, appellant claimed that the evidence was legally and factually

insufficient to support the jury's rejection of his "inability to pay" affirmative defense. The

court of appeals focused on Count I-the failure to pay child support on February 1, 2006-

and the undisputed evidence that appellant had been in the Smith County jail for the eleven

months preceding that date. The court noted that there was no evidence to suggest that

appellant had money to pay his child support obligation that month or that he "had a source

from which he could borrow or obtain the money to pay that child support obligation."6

Therefore, the court of appeals held that, "after considering all of the evidence relevant to

Appellant's affirmative defense of inability to pay child support, . . . the jury's finding of

guilt as to Count I of the indictment is so against the great weight and preponderance of the

evidence as to be manifestly unjust."7 It entered a judgmentof acquittal on Count I.8



       6 Matlock, 2012 WL 426613, at *10.

       7 Id.

       8Mat*12.
                                                                            Matlock    Page 6

       As to the other counts, the evidence was in conflict because appellant admitted that

he had a college degree in electronics and had worked during much of that time, sometimes

as a truck driver making $13.00 an hour. As to those counts, appellant's testimony was

"equivocal, conflicting, and unclear[,]" and thus the jury's finding against the affirmative

defense was "not so against the great weight and preponderance of the evidence as to be

manifestly unjust."9 It upheld those fifteen convictions.

                                             II.


       The State petitioned this Court, arguing that the court of appeals erred by applying a

factual-sufficiency standard ofreview in deciding whether the evidence was legally sufficient

to satisfy appellant's burden to prove his affirmative defense. We agree, but first we briefly

examine how the standard of proof is related to the standards of review in criminal cases.

A.     Burden of Proof/Standard of Review for Elements of Offense (Jackson/Brooks)

       Under Brooks v. State,™ we review the sufficiency of the evidence establishing the

elements of a criminal offense for which the State has the burden of proof under the single

sufficiency standard set out in Jackson v. Virginia}1 Under that standard, we view the

evidence in the light most favorable to the verdict and determine whether any rational trier




       9Id. at*U.

       10 323 S.W.3d 893 (Tex. Crim. App. 2010).
       ii
            443 U.S. 307(1979).
                                                                                  Matlock     Page 7

of fact could have found the essential elements of the offense beyond a reasonable doubt.12

The Jackson standard ofreview is that required for criminal cases when the standard ofproof

is that of "beyond a reasonable doubt."

        That constitutional standard of review applies to the elements of an offense that the

State must prove beyond a reasonable doubt, but it does not apply to elements of an

affirmative defense that the defendant must prove by a preponderance of the evidence.13

Prior to Brooks, we used the traditional Texas civil burdens ofproofand standards ofreview

in the context of affirmative defenses where the rejection of an affirmative defense is

established by a "preponderance of the evidence."14 Our decision in Brooks did not affect


       12 Id. at 319; see Brooks, 323 S.W.3d at 895 ("the Jackson v. Virginia legal-sufficiency
standard is the only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt.").

       13 See Brooks, 323 S.W.3d at 924 n.67 (Cochran, J., concurring) (noting that this Court
had "properly adopted the Texas civil standards of legal and factual sufficiency for those few
instances in criminal cases in which the burden of proof is a preponderance of the evidence, as
occurs with affirmative defenses.").

        14 See Van Guilder v. State, 709 S.W.2d 178, 181 (Tex. Crim. App. 1985) (defendant who
had proven her affirmative defense of insanity as a matter of law was entitled to acquittal;
recognizing that there was no evidence to rebut defendant's insanity defense and concluding that
"no rational trier of fact could have found that [defendant] failed to prove her affirmative defense
by a preponderance of the evidence"); Meraz v. State, 785 S.W.2d 146, 153-56 (Tex. Crim. App.
1990) (holding that Texas civil standards of review apply in assessing factual sufficiency of the
evidence of jury's verdict rejecting a defendant's affirmative defense of insanity or
incompetency); Cleveland v. State, 177 S.W.3d 374, 386-91 (Tex. App.-Houston [lstDist]
2005, pet. refd) (setting out and applying civil standards of review to claims of legal and factual
insufficiency of the evidence to reject defendant's punishment "sudden passion" claim that he
had the burden to prove by a preponderance of the evidence); Howard v. State, 145 S.W.3d 327,
329-36 (Tex. App.-Fort Worth 2004, no pet.) (setting out and applying civil standards of review
for assessing both the legal and factual sufficiency of the evidence to reject defendant's
affirmative defense of "inability to pay" in prosecution for criminal nonsupport).
                                                                                 Matlock     Page 8

that line of cases. We continue to use those civil standards in reviewing ajury's rejection of

an affirmative defense in a criminal case.


B.     Standard of Review on Legal Sufficiency Concerning Affirmative Defense
       (Modified Sterner)

       In Sterner v. Marathon Oil Co.,15 the Texas Supreme Court set out the standard of

review that applies when an appellant claims that there was "no evidence" (legally
                                                                                 -




insufficient evidence) to support an adverse finding on which that party had the burden of

proof by a preponderance of the evidence:

               A party attempting to overcome an adverse fact finding as a matter of
       law must surmount two hurdles.          First, the record must be examined for
       evidence that supports the jury's finding, while ignoring all evidence to the
       contrary. Second, if there is no evidence to support the fact finder's answer,
       then, the entire record must be examined to see if the contrary proposition is
       established as a matter of law.16

       The majority ofcourts ofappeals that have addressed the issue ofthe legal sufficiency

ofthe evidence to support ajury's rejection of an affirmative defense in a criminal case have

followed the Sterner standard.17 That standard has, however, been modified by the Texas


       15 767 S.W.2d 686 (Tex. 1989).

       16 Id. at 690; see also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per
curiam) ("When a party attacks the legal sufficiency of an adverse finding on an issue on which
she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a
matter of law, all vital facts in support of the issue."); see generally, W. Wendell Hall, Standards
ofReview in Texas, 29 St. Mary's L.J. 351, 481-82 (1998).

      17 See, e.g., Cleveland, 177 S.W.3d at 387-88; Howard, 145 S.W.3d at 333-35;see also
Rodriguez-Flores v. State, 351 S.W.3d 612, 636-37 (Tex. App.-Austin 2011, no pet); Perez v.
State, 323 S.W.3d 298, 304-05 (Tex. App.-Amarillo 2010, pet. ref d); Bradshaw v. State, 244
S.W.3d 490, 502 (Tex. App.-Texarkana 2007, pet. ref d); Nolan v. State, 102 S.W.3d 231, 238
(Tex. App.-Houston [14th Dist] 2003, pet. ref d).
                                                                                  Matlock    Page 9

Supreme Court's 2005 decision in City ofKeller v. Wilson,n whichrefined the test for legal-

sufficiency claims in civil cases.19 Thus, we adopt the modified standard of review of the


         A minority of the courts of appeals have used the Merazfactual-sufficiency standard to
review all sufficiency-of-the-evidence claims concerning an affirmative defense. See, e.g.,
Patterson v. State, 121 S.W.3d 22, 24 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd) (stating
that courts of the appeals do not have jurisdiction to review the legal sufficiency of the evidence
rejecting an affirmative defense, and concluding that when a defendant seeks appellate review of
 an adverse finding on an affirmative defense, he invokes only the appellate court's factual
 sufficiency review); Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.-Dallas 1998, pet. ref d)
("When a defendant seeks appellate review of a jury's failure to make a finding on which the
defendant has the burden of proof, such as on an affirmative defense, the defendant invokes our
factual review jurisdiction.").
         The Texarkana Court of Appeals discussed these two divergent lines in Ballard v. State,
161 S.W.3d 269, 271-72 (Tex. App.-Texarkana 2005), affd,\93 S.W.3d 916 (Tex. Crim. App.
2006), and it concluded that our decision in Meraz did not exclude a legal sufficiency review of
the evidence. Id. at 271. The Texarkana court reasoned that this Court simply did not address
the legal sufficiency of the evidence to support ajury's rejection of an affirmative defense in
Meraz. We were concerned only with the factual sufficiency of the evidence to reject the
defendant's claim of incompetence. See Meraz, 785 S.W.2d at 147 (noting that the issue to be
resolved was defendant's "assertion that the adverse resolution of his incompetency plea was
against the great weight and preponderance of the evidence" and thus was factually insufficient
to support the jury's adverse finding on incompetency). On discretionary review of Ballard, we
agreed with the Texarkana court's discussion of the two separate standards for legal and factual
sufficiency of the evidence to support the adverse finding on defendant's claim that he had
voluntarily released the kidnap victim in a safe place. 193 S.W.3d at 918 ("On appeal, appellant
claimedthat the evidence was legally and factually insufficient to support a first-degree
aggravated kidnapping conviction. . . .because no rational trier of fact could have found that the
complainant had not been voluntarily released in a safe place, whether reviewed in the light most
favorable to the verdict or in a neutral light. The court of appeals disagreed and held the evidence
sufficient, saying that 'legally and factually sufficient evidence supported the trial court's
conclusion that [defendant's] actions did not constitute "voluntary release" to trigger mitigation
of [defendant's] punishment for aggravated kidnapping.'"). We would not have discussed both
the legal and factual sufficiency of the evidence in Ballardhad we not agreed that both standards
could apply to an affirmative defense or other claim that the defendant must prove by a
preponderance of the evidence.

       18 168 S.W.3d 802 (Tex. 2005).

       19 See id. at 827. The Texas Supreme Court explained that
       [t]he final test for legal sufficiency must always be whether the evidence at trial
       would enable reasonable and fair-minded people to reach the verdict under
                                                                               Matlock       Page 10

legal sufficiency of the evidence to support an adverse finding on an affirmative defense:

       When an appellant asserts that there is no evidence to support an adverse
       finding on which she had the burden of proof, we construe the issue as an
       assertion that the contrary was established as a matter of law. We first search
       the record for evidence favorable to the finding, disregarding all contrary
       evidence unless a reasonable factfinder could not. If we find no evidence
       supporting the finding, we then determine whether the contrary was
       established as a matter of law.20

       In reviewing the legal sufficiency ofthe evidence to support an adverse finding on the

affirmative defense of an inability to pay in a nonsupport prosecution, we first look for

evidence ("more than a mere scintilla"21) that supports the jury's implied finding that the

defendant could pay child support,22 and we disregard all evidence of the defendant's




       review. Whether a reviewing court begins by considering all the evidence or only
       the evidence supporting the verdict, legal-sufficiency review in the proper light
       must credit favorable evidence if reasonable jurors could, and disregard contrary
       evidence unless reasonable jurors could not.
Id.


        20 One Ford Mustang VIN1FAFP40471F207859 v. State, 231 S.W.3d 445, 449 (Tex.
App.-Waco 2007, no pet.); see also RMCrowe Property Services Co., L.P. v. Strategic Energy,
L.L.C., 348 S.W.3d 444, 448 (Tex. App.-Dallas 2011, no pet.); Dallas County Constable v.
Garden City Boxing Club, Inc., 219 S.W.3d 613, 616 (Tex. App.-Dallas 2007, no pet.); Sellers v.
Foster, 199 S.W.3d 385, 392 (Tex. App.-Fort Worth 2006, no pet.).

       21 "Evidence does not exceed a scintilla if it is 'so weak as to do no more than create a
mere surmise or suspicion' that the fact exists." In re Estate ofCampbell, 343 S.W.3d 899, 904
n.6 (Tex. App.-Amarillo 2011, no pet.) (quoting FordMotor Co. v. Ridgway, 135 S.W.3d 598,
601 (Tex. 2004)).

       22 See Howard v. State, 145 S.W.3d 327, 330-36 (Tex. App.-Fort Worth 2004, no pet.)
(reviewing the legal and factual sufficiency of the evidence to supportjury's rejection of
defendant's affirmative defense of inability to pay in criminal nonsupport prosecution).
                                                                                    Matlock     Page 11

inability to pay unless a reasonable factfinder could not disregard that evidence.23 If no

evidence supports the jury's finding that the defendant could pay child support, then we

search the record to see if the defendant had established, as a matter of law, that he did not

have the ability to pay his child support.24 If the record reveals evidence supporting the

defendant's position that he did not have the ability to pay, but that evidence was subject to

a credibility assessment and was evidence that a reasonable jury was entitled to disbelieve,

we will not consider that evidence in our matter-of-law assessment.25

        Only if the appealing party establishes that the evidence conclusively proves his




        23 See City ofKeller, 168 S.W.3d at 827 (holding that, in legal-sufficiency review, courts
view the evidence in the light most favorable to the verdict, credit supporting evidence if
reasonable jurors could do so, and disregard contrary evidence unless reasonable jurors could
not); Burns v. Rochon, 190 S.W.3d 263, 267 (Tex. App.-Houston [1st Dist.] 2006, no pet.)
("More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for
differing conclusions by reasonable minds about a vital fact's existence.").

        24 See Sterner, 767 S.W.2d at 690.

        25 See Grider v. Mike O'Brien, P.C., 260 S.W.3d 49, 56 (Tex. App.-Houston [1st Dist.]
2008, pet. ref d) ("Thejury's failure to find a particular fact need not be supported by any
evidence, because the jury acts as the ultimate decision maker on the credibility of the
proponent's case and is free to disbelieve the evidence presented by the party with the burden of
proof."); Yap v. ANR Freight Systems, Inc., 789 S.W.2d 424, 425-26 (Tex. App.-Houston [1st
Dist.] 1990, no pet.) (party asserting that he had established his claim "as a matter of law" even
though jury made adverse finding must show that reasonable minds could not differ on that
element); see also W. Wendell Hall, Standards ofReview in Texas, 34 St. Mary's L.J., 1, 165-
66 (2002) (noting that some cases hold that "undisputed" evidence cannot be ignored in legal
sufficiency review while other cases hold that jurymay disbelieve even uncontradicted testimony
offered by party with the burden of proof; concluding that "[g]iven the scope of review, which
requires the court to disregard all evidence contrary to the verdict, the latter line of cases is
clearly correct when the appellant raises an 'as a matter of law' challenge").
                                                                                Matlock     Page 12

affirmative defense and "that no reasonable jury was free to think otherwise,"26 may the

reviewing court conclude that the evidence is legally insufficient to support the jury's

rejection of the defendant's affirmative defense.27 Applyingthat standardto criminalcases,

we conclude that the defendant is entitled to an acquittal on appeal despite the jury's adverse

finding on his affirmative defense only if the evidence conclusively establishes his

affirmative defense under the modified two-step Sterner test.28

C.     Standard of Review on Factual Sufficiency Concerning Affirmative Defense
       {Meraz)

       A criminal defendant might also raise a factual-sufficiency challenge to the jury's

adverse finding on his affirmative defense.29 In that event, we turn to Meraz, our seminal


       26 Tanner v. Nationwide Mut. FireIns. Co., 289 S.W.3d 828, 830 (Tex. 2009); see City of
Keller, 168 S.W.3d at 823 ("Judgment without or against a jury verdict is proper at any course of
the proceedings only when the law does not allow reasonable jurors to decide otherwise.").
       27
            See Van Guilder v. State, 709 S.W.2d 178, 181 (Tex. Crim. App. 1985).

       28 See Cleveland, 177 S.W.3d at 390 (concluding that evidence concerning jury's negative
finding on defendant's claim of "sudden passion" was legally sufficient as a matter of law); see
also Champagne v. State, No. 13-11-00657-CR, 2012 WL 2469677, at *3 (Tex. App.-Corpus
Christi June 28, 2012) (not designated for publication) (following Cleveland and concluding that
evidence was legally sufficient to support jury's implied negative finding on defendant's
affirmative defense of inability to pay in criminal nonsupport prosecution); Woods v. State, No.
06-05-00150-CR, 2006 WL 1389581, at *l-2 (Tex. App.-Texarkana May 23,2006, no pet.)
(not designated for publication) (evidence that defendant, who was able to work and eligible for
rehire by a previous employer, but did not seek rehire, was legally sufficient to support jury's
rejection of inability-to-pay defense in criminal nonsupport prosecution).

       29 Technically, a defendant's claim is not one of "factual insufficiency." He is really
arguing that he had offered so much evidence in support of his affirmative-defense claim and the
State offered so little evidence rebutting his defense, that the jury's rejection of his affirmative
defense is against the great weight and preponderance of the evidence. See Stone v. State, 823
S.W.2d 375, 380-81 (Tex. App.-Austin 1992, pet. ref d). The defendant is claiming that his
evidence is more than sufficient to support his affirmative defense, while the State's evidence is
                                                                                 Matlock       Page 13

case on factual sufficiency, in which the defendant claimed that the jury's rejection of his

incompetency plea-a plea that he had the burden to prove and thus is similar to an affirmative

defense-was against the great weight of the evidence.30 In Meraz, we adopted the civil

standards offactual-sufficiency review because the burden ofproofis that of"preponderance

of the evidence," the same burden as in civilproceedings.31 In making a factual-sufficiency

claim, the defendant is asserting that, considering the entire body of evidence, the jury's

adverse finding on his affirmative defense was so "against the great weight and

preponderance" of that evidence to be manifestly unjust.32


insufficient to rebut it.


       30 Meraz, 785 S.W.2d at 147. In Meraz, we overruled Van Guilder to the extent that it
had held that the courts of appeal did not have the authority to determine if a jury finding on an
affirmative defense was against the great weight of the evidence. Id. at 154-55. We did not
overrule the basic holding of Van Guilderthat a defendant may establish an affirmative defense
as a matter of law. In Van Guilder, however, we used a legal standard of review that was tied to
criminal burdens of proof, so we overruled that criminal standard in Meraz when we adopted
civil standards for both legal and factual sufficiency review for affirmative defenses. See Van
Guilder, 709 S.W.2d at 181 ("[W]e hold that in reviewing a case involving an affirmative
defense, the court of appeals must review the evidence on the affirmative defense by looking at
the evidence in the light most favorable to the implicit finding by the jury with respect to such
affirmative defense and then determine, by examining all the evidence concerning the affirmative
defense, if any rational trier of fact could have found that the defendant failed to prove his
defense by a preponderance of the evidence.... The test evaluates the legal sufficiency of the
evidence using a legal standard."); Meraz, 785 S.W.2d at 152-54 (finding that a modified
Jackson standard is not appropriate for reviewing the legal or factual sufficiency of the evidence
to reject an affirmative defense and adopting civil standards of review).

        31 Meraz, 785 S.W.2d at 149, 153-55.

        32 Id, at 154-55 ("when the courts of appeals are called upon to exercise their fact
jurisdiction, that is, examine whether the appellant proved his affirmative defense or other fact
issue where the law has designated that the defendant has the burden of proof by a preponderance
of evidence, 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
                                                                              Matlock     Page 14

       In the factual-sufficiency review of a rejected affirmative defense, an appellate court

views the entirety of the evidence in a neutral light, but it may not usurp the function of the

jury by substituting its judgment in place of the jury's assessment of the weight and

credibility of the witnesses' testimony.33 Therefore, an appellate court may sustain a

defendant's factual-sufficiency claim only if, after setting out the relevant evidence and

explaining precisely how the contrary evidence greatly outweighs the evidence supporting

the verdict, the court clearly states why the verdict is so much against the great weight ofthe

evidence as to be manifestly unjust, conscience-shocking, or clearly biased.34

       If an appellate court conducting a factual-sufficiency review finds that the evidence

supporting the affirmative defense so greatly outweighs the State's contrary evidence that the

verdict is manifestly unjust, then the appellate court may reverse the trial court's judgment

and remand the case for a new trial. The remedy in both civil and criminal cases for an

appellate reversal based upon a factual-sufficiency claim that the jury's verdict is against the




evidence so as to be manifestly unjust."); see also Cleveland, 111 S.W.3d at 387 (following
Meraz in assessing factual sufficiency of the evidence to reject defendant's claim of sudden
passion); Howard, 145 S.W.3d at 335-36 (following Meraz in assessing factual sufficiency of the
evidence to reject defendant's claim of inability to pay child support).

       33 Meraz, 785 S.W.2d at 154; see also Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.
2000) (factual-sufficiency review requires appellate court to afford "due deference" to ajury's
determination); Cleveland, 177 S.W.3d at 390-91.

       34 Meraz, 785 S.W.2d at 154 n.2 (quoting Pool v. FordMotor Co., 715 S.W.2d629, 635
(Tex. 1986)).
                                                                                 Matlock    Page 15

great weight of the evidence is a new trial, not an acquittal.35

          With that general background, we turn to the present case.

                                                   III.


          In this case, appellant claimed on direct appeal that the evidence was "legally and

factually insufficient to support the jury's rejection of appellant's affirmative defense of

inability to pay."36 The court of appeals set out appellant's argument concerning Counts I

and II:


          [H]e was in jail the entire two months in which it was alleged that he failed to
          pay child support. Further, Appellant contends that, even when he was not in
          jail, he was in a rehabilitation center that limited his ability to earn extra
          income to pay child support.37

The court of appeals then stated that, in Meraz, this Court "discussed the standard of review

for a criminal case involving an affirmative defense in which the defendant has the burden

of proof."38 That is true, but whatwe did not make particularly clear in Meraz was that we

were discussing only factual sufficiency and whether the "the adverse resolution of [the



          35 See id. at 156 (affirming judgment of court of appeals remanding the case for a new
competency trial based on the defendant's factual sufficiency challenge); Cropper v. Caterpillar
Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988) (court of appeals may reverse and remand a case
for new trial if it concludes that the jury's "failure to find" is against the great weight and
preponderance of the evidence); see, e.g., Cleveland, 177 S.W.3d at 388 n.9 ("an appellate court
holding that factual insufficiency of the evidence to support the jury's negative finding on the
issue of sudden passionwould result in a remand for a new punishment trial").

          36 Appellant's Briefon Direct Appeal at iii.

          37 Matlock, 2012 WL 426613, at *8.

          38 Id. at *9.
                                                                             Matlock     Page 16

defendant's] incompetency plea was against the great weight and preponderance of the

evidence."39 Thus, the court of appeals in Meraz, having found that the jury's finding of

competency was against the great weight of the evidence, remanded the case for a new

competency trial based on Meraz's factual-sufficiency claim.40              We affirmed that

disposition.41

       In the present case, the court of appeals conflated the distinct legal and factual

sufficiency standards in stating that

       when courts of appeals examine whether an appellant proved his affirmative
       defense by a preponderance of the evidence, the correct standard of review is
       whether after considering all of the evidence relevant to the issue, the
       judgment is so against the great weight and preponderance of the evidence as
       to be manifestly unjust.42

That is the factual-sufficiency standard of review for affirmative defenses. And if the

defendant's factual-sufficiency claim is sustained, then he is entitled to a new trial in which

he may once again raise his affirmative defense. In this case, the court of appeals applied the

standard of review fox factual sufficiency and sustained appellant's claim on Count I.



        39 Meraz, 785 S.W.2d at 147-48. The court of appeals had already rejected Meraz's claim
that the evidence was legally insufficient to support an adverse finding on his incompetency
claim because there was "some evidence"-more than a mere scintilla-of competency. Meraz v.
State, 714 S.W.2d 108, 115 (Tex. App.-El Paso 1986) (rejecting defendant's claim that "the
jury's verdict [on competency] was contrary to the evidence as a matter of law"), affd, 785
S.W.2d 146 (Tex. Crim. App. 1990).

       40Matl09.

       41 Meraz II, 785 S.W.2d at 156 (affirming court of appeals's judgment).

       42 Matlock, 2012 WL 426613, at *9.
                                                                              Matlock     Page 17

However, it rendered a judgment of acquittal as if it had granted his legal sufficiency claim.

       The State Prosecuting Attorney (SPA) argues that the court ofappeals erred by failing

to apply the modified Sterner v. Marathon Oil Company legal-sufficiency standard to

appellant's claim. We agree. The court of appeals was required to first decide if there was

"some" evidence to support a reasonable jury's finding that appellant had the ability to pay

his child support on February 1,2006. Ifthere was some evidence, then the court must reject

appellant's legal sufficiency claim.43 If there was no such evidence, then the court must

examine the entire record to see if appellant established his inability to pay as a matter of

law.44 His legal sufficiency claim "should be sustained only if the contrary proposition is

conclusively established."45

       The SPA also argues that the court of appeals erroneously held that "the fact of

incarceration alone" satisfied either the legal-sufficiency or factual-sufficiency standard. We


       43 Sterner, 767 S.W.2d at 690.

       44 Id.

       45 Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). After setting out its
standard of review in this case, the court of appeals stated that "[e]ven if the only evidence
offered on the question of the affirmative defense is produced by the defendant, 'the jury may
accept or reject any or all of the testimony of any witness.'" Matlock, 2012 WL 426613, at *10
(quoting Madrid v. State, 595 S.W.2d 106, 118 (Tex. Crim. App. 1979)). In the context of civil
legal-sufficiency review involving a preponderance-of-the-evidence standard, that statement must
be modified slightly after City ofKeller to read: "The jury may accept or reject any or all of the
testimony of any witness if a reasonable juror could do so" or, more generally, "Evidence can be
disregarded whenever reasonable jurors could do so." City ofKeller v. Wilson, 168 S.W.3d 802,
811 (Tex. 2005). Conversely, "an appellate court conducting a legal sufficiency review cannot
'disregard undisputed evidence that allows of only one logical inference.' By definition, such
evidence can be viewed in only one light, and reasonable jurors can reach only one conclusion
from it. Jurors are not free to reach a verdict contrary to such evidence[.]" Id. at 814.
                                                                            Matlock     Page 18

agree with the State's position in the abstract. But we do not read the lower court's opinion

as holding (and the record does not reflect) that appellant established his "inability to pay"

affirmative defense based solely upon the evidence that he had been incarcerated for the

eleven months preceding the child support payment due on February 1, 2006. Appellant

testified that he had no savings and no other sources of income during at least some of that

time. However, we note that, ifthe court ofappeals intended to reverse ajury's verdict using

a factual-sufficiency review under Meraz, it must "detail [all of] the evidence relevant to the

issue" and "state in what regard the contrary evidence greatly outweighs the evidence in

support of the verdict."46

       Because the court ofappeals conflated the standards for legal and factual sufficiency

review, we are uncertain if it found that appellant had conclusively established his "inability

to pay" affirmative defense as a matter of law. Given its analysis, the court of appeals may

have thought that the evidence supporting the jury's implicit rejection of appellant's

affirmative defense was against the great weight of the evidence under a Meraz factual

sufficiency claim. Ifthe court thought that the jury's failure to find that appellant was unable

to pay child support on February 1,2006, was against the great weight of the evidence, then

it should reverse the conviction on Count I and remand the case for a new trial on that count.


Or the court of appeals might reach an entirely new conclusion based upon the standards of

review that we have set out above.


       46
            Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
                                                                        Matlock   Page 19

       We therefore reverse the judgment ofthe court ofappeals and remand the case to that

court for further proceedings consistent with this opinion.

Delivered: February 27, 2013
Publish
                                                                                  Matlock    Page 20


                                           Appendix



       CLAIM                       BASIS                       PROOF REQ'D                  REMEDY

                                                    Viewing the evidence in the light
                        Federal Constitution        most favorable to the verdict
    SUFFICIENCY
                                                    whether any rational trier of fact      Acquittal
to support conviction
                                                    could find the essential elements
                        Jackson v. Virginia         beyond a reasonable doubt.

                                                    2-step modified Sterner test:

                        no evidence; legally       1. Search for evidence supporting
                        insufficient evidence as a finding; ignoring contrary evidence
                        matter of law               unless unreasonable to do so. If
 LEGAL SUFFICIENCY
                                                    more than a scintilla, evidence is
to reject defendant's                                                                       Acquittal
                                                    legally sufficient. If not,
 affirmative defense
                                                    2. Determine if evidence is so
                                                    conclusive that the defendant's
                        Sterner v. Marathon Oil
                                                    claim was established as matter of
                                                    law.

                        finding against the great   1. Set out all relevant evidence,
                        weight and                  viewing it in a neutral light, but
                        preponderance of the        deferring to the jury's weight and
                        evidence                    credibility choices.
FACTUAL SUFFICIENCY
to reject defendant's   (bias, manifestly unjust,   2. Explain precisely how the            New Trial
 affirmative defense    conscience-shocking)        contrary evidence outweighs.

                                                    3. Document why the verdict is so
                        Pool v. Ford Motor Co.      much against the great weight of
                                                    the evidence.
