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                                    CONCURRING OPINION

                                          No. 04-05-00164-CR

                                          Fernando LANCON,
                                               Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the 49th Judicial District Court, Webb County, Texas
                               Trial Court No. 2004-CRN-000281-D1
                            Honorable Manuel R. Flores, Judge Presiding

Opinion by:                       Steven C. Hilbig, Justice
Concurring opinion by:            Phylis J. Speedlin, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: November 12, 2008

           I concur in the result reached in the majority opinion because it correctly applies the factual

sufficiency standard of review – as that standard was recently set forth by the Court of Criminal

Appeals in Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008). However, I write separately

to express my deep concern that the Court of Criminal Appeals’s opinion in Lancon restrains

intermediate appellate courts from conducting any meaningful factual sufficiency review in cases

that involve witness credibility, which, for all practical purposes, is the majority of criminal cases.
Concurring Opinion                                                                    04-05-00164-CR



See id. at 708 (Johnson, J., dissenting) (characterizing the majority opinion as “eviscerat[ing] our

case law for reviewing the factual sufficiency of evidence and effectively preclud[ing] any

sufficiency review when the jury’s decision is based upon an evaluation of credibility, which

virtually each and every jury verdict is to some extent”). Without expressly acknowledging its intent

to do so, the majority opinion in Lancon modifies prior factual sufficiency case law by effectively

imposing the duty on appellate courts to give “complete or total deference” to jury determinations

of credibility. See id. In doing so, the Court has blurred the line between legal and factual

sufficiency review, and has moved closer to merging the two standards into one. See id. at 708-09.



                                                       Phylis J. Speedlin, Justice



PUBLISH




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