Opinion issued December 22, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00894-CR
                           ———————————
                   JUAN CERDA ALVARADO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 240th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 11-DCR-058831


                          CONCURRING OPINION

      I write separately to further explain why, although this Court has a duty to

address the factual-sufficiency challenge of appellant, Juan Cerda Alvarado, in
accord with the Factual-Conclusivity Clause of the Texas Constitution,1 I agree that

we must, at this time, overrule his challenge in light of this Court’s precedent in

Ervin v. State, 331 S.W.3d 49 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

      In his second issue, appellant argues that the evidence is factually insufficient

to support his conviction for the offense of aggravated sexual assault of a child,

younger than fourteen years old,2 because the complainant did not testify that he

contacted or penetrated her anus, she did not testify that she ever saw his penis, she

did not identify him as the perpetrator in court, there is no evidence that he is black,

and there is no direct witness testimony, DNA evidence, or other physical evidence

to support his conviction. He asserts that Texas intermediate appellate courts are

“empowered with authority to conduct a factual[-]sufficiency review of the elements

of an offense.”

      Indeed, the failure to conduct appellant’s requested factual-sufficiency

review, as required by the Texas Constitution, results in the denial of due process of

law. See U.S. CONST. amends. V (“No person shall be . . . deprived of life, liberty,

or property, without due process of law . . . .”),            XIV, § 1 (“No State

shall . . . deprive any person of life, liberty, or property, without due process of

law . . . .”); TEX. CONST. art. I, § 19 (“No citizen of this State shall be deprived of


1
      TEX. CONST. art. V, § 6(a).
2
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2016).


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life, liberty, property, privileges or immunities, or in any manner disfranchised,

except by the due course of the law of the land.”); id. art. V, § 6(a) (“[T]he decision

of [the Texas Courts of Appeals] shall be conclusive on all questions of fact brought

before them on appeal or error.”).

      Not only does this Court’s failure to address appellant’s factual-sufficiency

challenge in accord with the Factual-Conclusivity Clause violate his right to due

process, but it also violates his right to equal protection of law. See U.S. CONST.

amend. XIV, § 1 (“No State shall . . . deny to any person . . . the equal protections

of the laws.”); TEX. CONST. art. I, § 3; Edwards v. State, 497 S.W.3d 147, 165–68

(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (Jennings, J., concurring); Bearnth

v. State, 361 S.W.3d 135, 146–47 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)

(Jennings, J., concurring); Kiffe v. State, 361 S.W.3d 104, 110–19 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d) (Jennings, J., concurring); Mosley v. State, 355

S.W.3d 59, 73–77 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (Jennings, J.,

concurring); Kibble v. State, 340 S.W.3d 14, 24–27 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d) (Jennings, J., concurring); Ervin, 331 S.W.3d at 56–70 (Jennings,

J., concurring); see also Ibe v. State, No. 01-12-00422-CR, 2014 WL 1058129, at *3

n.1 (Tex. App.—Houston [1st Dist.] Mar. 18, 2014, no pet.) (mem. op., not

designated for publication) (panel acknowledging failure to address defendant’s

question of fact violated United States Constitution’s guarantees of due process of



                                          3
law and equal protection of laws); Fisher v. State, No. 01-11-00516-CR, 2013 WL

4680226, at *4–5 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, pet. ref’d) (mem.

op., not designated for publication) (same).

      As the Texas Court of Criminal Appeals clearly explained, as recently as

2009, in addition to being supported by legally-sufficient evidence, under Texas law,

      A verdict must also be supported by factually sufficient evidence. But
      unlike a legal sufficiency review, which is a federal due process
      requirement, a factual sufficiency review is a creature of state law. On
      direct appeal, a court must begin its factual sufficiency review with the
      assumption that the evidence is legally sufficient under Jackson.[3]
      Evidence that is legally sufficient, however, can be deemed factually
      insufficient in two ways: (1) the evidence supporting the conviction
      is “too weak” to support the factfinder’s verdict, or (2) considering
      conflicting evidence, the factfinder’s verdict is “against the great
      weight and preponderance of the evidence.” When a court of appeals
      conducts a factual sufficiency review, it must defer to the jury’s
      findings. We have set out three “basic ground rules” implementing this
      standard. First, the court of appeals must consider all of the evidence
      in a neutral light, as opposed to in a light most favorable to the verdict.
      Second, the court of appeals may only find the evidence factually
      insufficient when necessary to “prevent manifest injustice.” Although
      the verdict is afforded less deference during a factual sufficiency
      review, the court of appeals is not free to override the verdict simply
      because it disagrees with it. Third, the court of appeals must explain
      why the evidence is too weak to support the verdict or why the
      conflicting evidence greatly weighs against the verdict. This
      requirement serves two related purposes. First, it supports the court of
      appeals’s judgment that a manifest injustice has occurred. And second,
      it assists us in ensuring that the standard of review was properly applied.




3
      See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979).


                                           4
Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (Keasler, J., joined by

Keller, P.J., Meyers, Womack & Hervey, JJ.) (emphasis added) (internal citations

omitted).

      In regard to appellate challenges based on the factual insufficiency of the

evidence in Texas courts of appeals, the Factual-Conclusivity Clause provides in no

uncertain terms that:

      [T]he decision of [the Texas Courts of Appeals] shall be conclusive on
      all questions of fact brought before them on appeal or error.

TEX. CONST. art. V, § 6(a) (emphasis added). The original intent of the drafters of

the clause is clear. The clause “requires” that Texas courts make a “distinction”

between questions of law and questions of fact. Sw. Bell Tel. Co. v. Garza, 164

S.W.3d 607, 621 (Tex. 2004). As clearly explained, again by the Texas Court of

Criminal Appeals, in Laster:

      Unlike our jurisdiction over legal sufficiency decisions, our jurisdiction
      over the court of appeals’s factual sufficiency decisions is limited. The
      Factual Conclusivity Clause gives final appellate jurisdiction to the
      court of appeals on questions of fact brought before the court. We
      review the court of appeals’s factual sufficiency analysis to ensure that
      the court applied the correct legal standard and considered all of the
      relevant evidence. We do not conduct a de novo factual sufficiency
      review. If we determine that the court of appeals applied the wrong
      standard or misapplied the correct standard, the case must be remanded
      to the court of appeals to conduct a proper factual sufficiency review.

275 S.W.3d at 518–19 (emphasis added) (internal citations omitted).




                                          5
      Thus, under the Factual-Conclusivity Clause, this Court has a duty to address

appellant’s question of fact as a question of fact, i.e., by neutrally considering and

weighing all the evidence in the record, including that which is contrary to the jury’s

verdict. Id.; Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Ex parte

Schuessler, 846 S.W.2d 850, 852 (Tex. Crim. App. 1993); Meraz v. State, 785

S.W.2d 146, 153 (Tex. Crim. App. 1990); see also Pool v. Ford Motor Co., 715

S.W.2d 629, 633–35 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661–62 (Tex.

1951). Moreover, the Texas Legislature has expressly directed, consistent with the

Factual-Conclusivity Clause, that Texas Courts of Appeals “may reverse the

judgment in a criminal action . . . upon the facts.” TEX. CODE CRIM. PROC. ANN. art.

44.25 (Vernon 2006). Indeed, it is well-settled that it is reversible error for a court

of appeals to address a question of fact as a question of law. In re King’s Estate,

244 S.W.2d at 661–62; see also Ex parte Schuessler, 846 S.W.2d at 852; Meraz, 785

S.W.2d at 153.

      However, the Texas Court of Criminal Appeals, disregarding the plain

language of Article V, Section 6 of the Texas Constitution, the plain language of

Article 44.25 of the Texas Code of Criminal Procedure, decades-old precedent of

the Texas Supreme Court, and its own well-established precedent, has purported to

“abolish[]” factual-sufficiency review in criminal cases in Texas. Howard v. State,

333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011). In two separate opinions, the



                                          6
court concluded that in criminal cases, “a legal-sufficiency [appellate] standard [of

review is] ‘indistinguishable’ from a factual-sufficiency [appellate] standard” of

review. Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. App. 2010) (Hervey, J.,

joined by Keller, P.J., Keasler & Cochran, JJ.); see id. at 912–26 (Cochran, J., joined

by Womack, J., concurring) (overruling use in criminal cases of factual-sufficiency

appellate standard of review, which was consistent with Texas Supreme Court

precedent and articulated in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App.

1996)).

      Subsequently, this Court, in light of the Texas Court of Criminal Appeal’s

plurality opinions in Brooks, decided to answer questions of fact in criminal appeals

as pure questions of law by applying the legal-sufficiency appellate standard of

review to fact questions and viewing the evidence in the light most favorable to the

prosecution, not neutrally reweighing it. See Ervin, 331 S.W.3d at 52–56. Although

the majority in Ervin erred in doing so, this Court did have jurisdiction to so err, and,

until this Court or a higher court overrules Ervin, we must accept it as binding

precedent. See Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964).

      Given the express language of Article V, Section 6 of the Texas Constitution

and Article 44.25 of the Texas Code of Criminal Procedure, it is readily apparent

that answering appellant’s question of fact as a purely legal question violates the

United States Constitution’s guarantee of due process of law, as well as its guarantee



                                           7
of the equal protection of the laws, because it, in fact, deprives him of his

well-established Texas appellate remedy of a new trial, recognized in the Texas

Constitution and by the Texas Legislature in Article 44.25. See U.S. CONST. amends.

V, XIV; Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590 (1956) (concluding in

states providing for appellate review, criminal defendant entitled to protections

afforded under Due Process and Equal Protection Clauses of United States

Constitution); see also M.L.B. v. S.L.J., 519 U.S. 102, 111, 117 S. Ct. 555, 561

(1996) (“This Court has never held that the States are required to establish avenues

of appellate review, but it is now fundamental that, once established, these avenues

must be kept free of unreasoned distinctions that can only impede open and equal

access to the courts.” (internal quotations omitted)).

      Moreover, given that the Texas Supreme Court, in reading Article V, Section

6 of the Texas Constitution, clearly recognizes the right of civil litigants to present

intermediate courts of appeals with questions of fact and the remedy of a remand for

a new trial, the denial of that right, given that Article V, Section 6 is not in any way

limited to civil cases, amounts to a denial of the equal protection of the law. See

U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, § 3. “There is no sound basis for

the disparate interpretations of a single constitutional provision based on whether

the matter on appeal is civil or criminal in nature.” Susan Bleil & Charles Bleil, The




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Court of Criminal Appeals Versus the Constitution: The Conclusivity Question, 23

ST. MARY’S L.J. 423, 424 (1991).

      Although Texas Courts of Appeals have only rarely found evidence factually

insufficient to support criminal convictions or findings in civil cases, the right of a

defendant in a criminal case or a litigant in a civil case to assert a question of fact on

appeal and request a remand for a new trial is critical and in no way interferes with

the right to trial by jury. As explained by former Texas Supreme Court Chief Justice

Thomas Phillips:

      Appellate courts have the authority to review the sufficiency of
      evidence in support of the fact finder’s determinations for one
      reason: to undo the effect of an unjust trial. This traditional judicial
      function, now exercised only by our intermediate appellate courts,
      neither conflicts with nor infringes upon the right of trial by jury. No
      appeals court in Texas has ever been given, or has ever exercised, the
      authority to find any fact. The extent of an appellate court’s power is,
      as it has always been, to remand for new trial if more than a scintilla
      of probative evidence exists to support the result reached by the jury.

      This authority exists regardless of whether the court of appeals is
      reviewing a jury’s finding or its “non-finding,” that is, the failure of a
      jury to find a fact. In either case, the court is not substituting its own
      finding for the jury’s; it is merely ordering a new trial before another
      jury for a new determination.

      The court of appeals must have this authority in order to do justice.
      Trials may be just as unfair when the party with the burden of proof
      unjustly loses as when the party with the burden of proof unjustly wins.
      To fulfill its constitutional responsibilities, the court of appeals must
      have authority to review both findings and non-findings.




                                            9
Herbert v. Herbert, 754 S.W.2d 141, 145 (Tex. 1988) (Phillips, C.J., concurring)

(emphasis added) (internal citations omitted).

      In sum, the Factual-Conclusivity Clause of the Texas Constitution provides a

much-needed and critical fail-safe against manifestly unjust convictions that are

based on evidence that is factually insufficient, although legally sufficient. And,

respectfully, neither this Court, nor the Texas Court of Criminal Appeals has the

legitimate power to “abolish” this constitutionally guaranteed right. See Ex parte

Schuessler, 846 S.W.2d at 852–53 (court of criminal appeals does not have authority

to “create[] a standard of review for the courts of appeals that contravene[s] the

Texas Constitution”); see also M.L.B., 519 U.S. at 111, 117 S. Ct. at 561 (“This

Court has never held that the States are required to establish avenues of appellate

review, but it is now fundamental that, once established, these avenues must be kept

free of unreasoned distinctions that can only impede open and equal access to the

courts.” (internal quotations omitted)). As previously explained by the court of

criminal appeals:

      The court of appeals is . . . constitutionally given the authority to
      determine if a jury finding is against the great weight and
      preponderance of the evidence and if this is improper it is up to the
      people of the State of Texas to amend the Constitution.

Meraz, 785 S.W.2d at 154.




                                         10
                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Keyes, and Brown.

Jennings, J., concurring.

Do not publish. TEX. R. APP. P. 47.2(b).




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