            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0182-07



                             FERNANDO LANCON, Appellant

                                                 v.

                                   THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FOURTH COURT OF APPEALS
                              WEBB COUNTY

       JOHNSON , J., filed a dissenting opinion in which PRICE and HOLCOMB, JJ., joined.

                               DISSENTING OPINION

       The court of appeals, after thoroughly reviewing all of the evidence in a neutral light,

concluded that the jury’s determination of guilt was “against the great weight and preponderance of

the evidence,” and therefore reversed the trial court’s judgment and remanded the cause for a new

trial. Lancon v. State, 220 S.W.3d 57 (Tex. App.–San Antonio 2006). Because I believe that the

court of appeals correctly stated and properly applied the standard of review, I dissent.

       “The factual-conclusivity clause in Article V, § 6, of the Texas Constitution, makes a direct-
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appeal court’s factual-sufficiency decision final and conclusive upon this Court. Watson, at 439.[1]

This Court’s review of a direct-appeal court’s factual-sufficiency decision is limited by the factual-

conclusivity clause to determining only whether the direct-appeal court properly applied ‘rules of

law.’” Roberts v. State, 221 S.W.3d 659, 662-63 (Tex. Crim. App. 2007). Our disagreement with

the court of appeals’ factual-sufficiency decision is simply not a basis for reversing that decision.

         Although review of factual sufficiency has been, and continues to be, subject to much

dispute, in Watson a majority of this Court reiterated that, in order for an appellate court to reverse

for factually insufficiency, it must be able to say, with some objective basis in the record, that the

great weight and preponderance of the evidence contradicts the jury’s guilty verdict. In this case,

that is precisely what the court of appeals did. In its section entitled “Evidence Contrary to the

Verdict,” it detailed a great deal of evidence, which adequately provides that objective basis for

overturning the jury’s verdict. Lancon, 220 S.W.3d at 63-66.2

         The majority opinion asserts that, because the court of appeals determined that the testimony

of two of the state’s witnesses was objectively unreliable, it had “concluded that it was not

unreasonable to distrust their eyewitness testimony given the circumstances surrounding the



         1
          Watson v. State, 204 S.W .3d 404 (Tex. Crim. App. 2006). See also Marshall v. State, 210 S.W .3d 618,
625 (Tex. Crim. App. 2006).

         2
            “These weaknesses and inconsistencies in Dominguez’s and Diaz’s testimony certainly detract from its
reliability. But, standing alone, these factors would not convince us that the evidence is factually insufficient to
support the jury’s implicit finding that Fernando, rather than [his brother] Eduardo, was the shooter. . . . But what
does convince us that the evidence is factually insufficient to support the jury’s verdict is viewing the eyewitnesses’
testimony–complete with the weaknesses, inconsistencies, and equivocations outlined above–in light of the
consistent, detailed testimony set forth above from the defense witnesses, including two of the three participants who
admitted their complicity in the shooting . . . and identified Eduardo Lancon as the shooter, and the aunts of both
Eduardo and Fernando . . ., each of whom testified that she heard Eduardo admit to having been the shooter moments
after the shooting took place. Both factors, taken together, convince us that reversing the judgment against Fernando
Lancon and ordering a new trial is ‘necessary to arrest the occurrence of a manifest injustice.’(Cite omitted.)” Other
testimony indicated that the shooter, like Eduardo, was right-handed, while Fernando is left-handed.
                                                                                                                           3

shooting.” Lancon v. State, No. PD-0182-07 (Tex. Crim. App. delivered ___________, 2008, slip

op. at 12). The court of appeals’s opinion did not articulate any particular “distrust” of those

witnesses, but rather determined, after reviewing all of the evidence in the requisite neutral light, that

the jury’s implicit finding in its guilty verdicts that appellant, rather than his brother Eduardo, was

the shooter, was greatly outweighed by the contrary evidence. It therefore concluded that the

evidence of appellant’s guilt was factually insufficient. Lancon, 220 S.W.3d at 66-67. It reached this

conclusion after viewing the state’s eyewitness testimony, complete with weaknesses,

inconsistencies, and equivocations, which it detailed in its opinion, in light of the consistent, detailed

testimony from the defense witnesses, which it also detailed in its opinion. Id. at 68. It concluded

“that reversing the judgment against [appellant] and ordering a new trial is ‘necessary to arrest the

occurrence of a manifest injustice.’” Id., quoting Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.

2000).

         As the majority opinion concedes, “the court of appeals accurately stated the standard of

review and addressed all of the evidence” and “included a detailed description of the undisputed

facts, as well as the evidence supporting and contrary to the conviction.” Lancon v. State, No. PD-

0182-07, slip op. at 11). The majority also notes that “[a]ppellate courts should afford almost

complete deference to a jury’s decision when that decision is based upon an evaluation of

credibility.”3 Id. But “almost complete” is not “complete” or “total,” even when the jury’s decision

is based upon a credibility evaluation. The majority opinion seems to say that, from now on, the

level of deference due a jury’s decision will be total deference when the decision is based on an


         3
             The majority opinion asserts that “it is equally plausible that [two of the state’s witnesses] were telling the
truth as it is that they were lying when they testified[,]” and that “it is for the jury to determine if they [sic] believe
that [those two witnesses] are lying or telling the truth.” Id., slip op. at 14.
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evaluation of credibility. This eviscerates our case law for reviewing the factual sufficiency of

evidence and effectively precludes 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. “The legal

and factual sufficiency standards both require the reviewing court to consider all of the evidence.

. . . The difference between the two standards is that the former requires the reviewing court to defer

to the jury’s credibility and weight determinations while the latter permits the reviewing court to

substitute its judgment for the jury’s on these questions ‘albeit to a very limited degree.’” Marshall

v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)(quoting Watson at 417)(emphasis in original).

        The analysis by the court of appeals is very much in line with our prior factual-sufficiency

case law, and we should respect its decision, especially in light of the fact that its factual-sufficiency

decision is final and conclusive upon this Court pursuant our constitution’s factual-conclusivity

clause. Because the court of appeals properly applied our rules of law and because this Court has

no jurisdiction to re-evaluate factual sufficiency, I respectfully dissent.



Filed: May 14, 2008
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