                             IN THE COURT OF CRIMINAL APPEALS
                                         OF TEXAS

                                                   PD-134-07



                                    LYDIA H. GROTTI, Appellant

                                                         v.

                                        THE STATE OF TEXAS

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SECOND COURT OF APPEALS
                              TARRANT COUNTY

             J OHNSON, J., delivered the opinion of the Court in which M EYERS,
P RICE, W OMACK, K EASLER, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined.
K ELLER, P.J., dissented.

                                                OPINION

        On October 13, 2003, the state indicted appellant, Lydia Grotti, a former physician at John

Peter Smith Hospital (JPS) in Fort Worth, for murder.1 The indictment alleged that appellant caused

the death of her patient, Lettie McGhee (McGhee) by occluding McGhee’s endotracheal tube (ET

tube) with her finger. The jury acquitted Grotti of murder, but convicted her of the lesser-included




         1
           Appellant was one of two attending physicians in the JPS Intensive Care Unit on the night in question. At
the time of the event, appellant was board certified in both internal medicine and critical care.
                                                                                                                     2

offense of criminally negligent homicide, a state-jail felony.2 The jury also found that appellant used

her finger as a deadly weapon. The trial court assessed punishment to two years’ imprisonment.

         Appellant timely filed a notice of appeal to the Second Court of Appeals. On appeal,

appellant argued that the evidence was insufficient to demonstrate that McGhee was alive at the time

appellant occluded McGhee’s ET tube and that appellant thereby caused McGhee’s death. The court

of appeals agreed with appellant, reversed the trial court’s judgment, and remanded the case for a

new trial. Grotti v. State, 209 S.W.3d 747 (Tex. App.—Fort Worth 2006). The court held that,

because the meaning of death was not sufficiently defined under the Texas Penal Code,3 it was

required to interpret the meaning of death as it would appear in a hypothetically correct jury charge,

i.e. as defined under section 671.001 of the Health and Safety Code.4 Id. at 759-62. It stated that

the technical meaning of death was critical in deciding whether McGhee was dead or alive when

appellant occluded the ET tube. After its analysis, the court concluded that the evidence was legally

sufficient, but factually insufficient, to adequately prove that McGhee was alive when appellant

occluded McGhee’s ET tube.

         We granted the state’s petition for discretionary review. The state asserts in three grounds

that: (1) “the court of appeals erred in its sufficiency analysis by applying a definition from outside

the penal code to an element of the offense, which was not defined within the penal code and not

included in the jury charge”; (2) “the court of appeals applied an incorrect standard of review to its



         2
           A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal
negligence causes the death of an individual. T EX . P EN AL C O D E § 19.01(a). A person commits an offense if he
causes the death of an individual by criminal negligence. T EX . P EN AL C O D E § 19.05(a), (b).

         3   T EX . P EN AL C O D E § 1.07(a)(49).

         4
             T EX . H EALTH & S AFETY C O D E § 671.001(a).
                                                                                                                     3

factual sufficiency review, by affording no deference to the jury’s credibility determination”; and (3)

“this case illustrates that the dissenting opinions in Watson v. State, 204 S.W.3d 404 (Tex. Crim.

App. 2006), were correct: Clewis should be abandoned.” See Watson 204 S.W.3d at 421 (Cochran,

J., dissenting) (noting that factual-sufficiency analysis should be abandoned, thereby returning to a

single standard of review for sufficiency of evidence in a criminal case, as set out in Jackson v.

Virginia, 443 U.S. 307 (1979).

                                                       Facts

         For approximately two weeks McGhee, a sixty-four-year-old woman, had complained of

having constant abdominal and urinary pains, coughing, and nausea. She first went to JPS’s

emergency room (the ER) on December 24, 2000, and remained there into the next day. Based on

the radiology report and various exams, physicians diagnosed McGhee as having advanced

metastatic ovarian cancer that had spread to her liver, lungs, and, bones. JPS, however, discharged

McGhee on December 25, 2000.

         The following day, McGhee returned to the ER with breathing problems. After waiting in

the ER for approximately two hours, McGhee lost consciousness. Her daughter immediately notified

Leigh Taylor, the emergency medical technician (EMT) on duty, that she needed help because

something was wrong with her mother. Taylor looked into the waiting room and observed McGhee

slumped over in the wheelchair. Taylor then checked McGhee’s wrist, but found no pulse. Taylor,

the triage nurse, and a male tech transported McGhee to trauma room 1 to begin a “code.”5

         The code team began full Advanced Cardiac Life Support (ACLS) at 19:48. They attached


         5
           A definition of “code” was offered by the state’s medical expert, Janice Zimmerman, M.D.; “[I]n
simplified terms you have a patient who has a condition that if you don’t do something they probably are likely to
die. But you have an opportunity to intervene and reverse that process or treat it effectively.”
                                                                                                                         4

McGhee to an electrocardiogram monitor to determine her heart rhythm, which was noted at that

time as ventricular fibrillation (V-fib).6 The code team administered at least fifteen defibrillations

over the course of the entire code. Dr. Eli, the first doctor to respond to the code, intubated McGhee

at 19:57. At this point, McGhee had no detectable blood pressure or pulse and took no spontaneous

respirations. She was given multiple doses of drugs that stimulate heart function. At 20:08, the code

sheet showed that McGhee’s rhythm was “asystole,” indicating an absence of any electrical activity

in the heart. At 20:16, the code team detected a pulse and a heart rate of ninety beats per minute.

McGhee’s heart established a sinus rhythm7 at 20:18, and she was put on a ventilator.

         Once McGhee exhibited a sinus rhythm, Dr. McGraw8 called appellant regarding McGhee’s

admission into the Intensive Care Unit (ICU). Shortly thereafter, appellant arrived at the ER. At

about that time, McGhee lost both a sinus rhythm and a pulse. According to Dr. McGraw and other

witnesses, appellant stood at the foot of the bed without making a physical assessment of McGhee’s

condition and asked how long the code had been running. Dr. McGraw responded that they had been

running the code for approximately forty-five minutes. Appellant then stated that McGhee had “lost

any chance at recovery” and that she was “either brain dead or that she would probably be

pronouncing McGhee brain dead the next morning or within twenty-four hours.” Appellant

determined that McGhee was not stable enough for transfer to the ICU and instructed McGraw to

call her if McGhee became stable. Appellant went back to the ICU.



         6
           According to Doctor Zimmerman, ventricular fibrillation is “an irregular rhythm of the heart[;]it just sits
there and basically quivers.”

         7
           A sinus rhythm is a normal heart rhythm. According to Dr. Cox, although a sinus rhythm suggests a pulse
and a heartbeat, it does not demonstrate that the heart is effectively pumping blood to the body.

         8
             Dr. McGraw, a state witness, assumed care of McGhee upon his arrival in the trauma room.
                                                                                                                      5

          Dr. McGraw continued the code. McGhee regained a sinus rhythm, a pulse, and a heart rate.

The code team performed an EKG test on McGhee and confirmed the heart beat and sinus rhythm.

Shortly before 20:50, Dr. McGraw called appellant back to the ER to reassess McGhee’s condition,

and upon her return, appellant assumed care of McGhee. Dr. McGraw left the trauma room to attend

to other patients.

          According to appellant’s testimony, she assessed McGhee and concluded that McGhee lacked

a blood pressure and both radial and femoral pulse. Appellant did, however, detect a carotid pulse,

but described it as “thready,” which she defined as meaning “weak.” She stated that the pulse had

“gone away” prior to her reporting this detection to the code team. At 20:50, appellant called the

code,9 discontinued the IV and ventilator, and pronounced McGhee dead. Appellant testified that

McGhee had no pulse, no spontaneous respirations, and no blood pressure. Nevertheless, appellant

wrote on the code sheet that at 20:50 that McGhee had a “brady”10 rhythm, a palpable pulse, and a

heart rate in the sixties. Appellant explained that she wrote “brady” because McGhee’s heart rate

was “bradying down” or “slowing down.”

          Nurse Lovins, however, testified that she saw McGhee still breathing moments after appellant

called the code. She observed McGhee’s “chest rising and falling, and saw condensation in the ET

tube.” EMT Taylor also testified that she saw McGhee taking normal breaths, condensation in the

ET tube, and heart activity on the EKG monitor. EMT Short also believed that McGhee was

breathing. After appellant called the code, Short saw McGhee’s chest “rising and falling” for



          9
         “Calling the code” means stopping all attempts to resuscitate the patient; the code had lasted for
approximately one hour.

          10
               “Brady” is short for “bradycardia,” which means a slow heart rate, usually less than sixty beats per
minute.
                                                                                                                        6

approximately an hour, and she detected a palpable pulse in McGhee’s wrist and neck. She also

testified that she commented aloud about McGhee having a pulse. She could not, however,

definitively state the exact time at which she detected the pulse. She also testified that, after calling

the code, appellant instructed her and other members of the code team to “call her when the patient

expire[d]” and she would then go talk to McGhee’s family. Nurse Martin also testified that she

witnessed McGhee’s chest rising and falling and condensation in the ET tube. At some point after

calling the code, members of the code team notified appellant that McGhee was still breathing.11

         According to appellant, however, the respirations were “agonal,” and McGhee made no

attempt to breathe after she called the code. Appellant opined that McGhee was getting air into her

central airways, but not into her lungs. She stated that she explained to Nurse Martin that McGhee

had been hyperoxygenated and that her brain stem was continuing to fire, causing muscle

contractions to open up her airway and move air.

         Appellant testified that, after calling the code, she reported McGhee’s death to the medical

examiner (the ME) at 21:00. Because of McGhee’s “agonal activity,” appellant asked the ME for

permission to remove the ET tube, so that her airway tissues would collapse inward, thereby ending

the agonal respirations. However, the ME did not grant permission to remove the ET tube.12

         Appellant also testified that she subsequently reevaluated McGhee throughout the hour, but

there were still no signs of life. She asserted that there was electrical activity on the monitor, but

there “weren’t heart sounds or pulses,” and that with each evaluation, McGhee’s respiratory activity


         11
            Nurse Martin testified that appellant was notified immediately after disconnecting McGhee from the
ventilator that McGhee was still breathing and that she still had a pulse. Nurse Martin also testified that appellant
was argumentative and non-receptive when informed that McGhee was still breathing.

         12
          It was normal procedure that, if a patient died less than 24 hours after being admitted into the hospital,
removal was automatically denied.
                                                                                                                      7

became slower. Appellant stated that, shortly before 21:50, McGhee’s activity had “slowed down

to three or four agonal respirations a minute and the heart rate was down in the 20s, maybe mid-20s.”

She also stated that one of the nurses inquired as to how long this activity was going to continue, and

she explained that the duration of the activity could vary because the ET tube was keeping McGhee’s

airway open. According to appellant’s testimony, the nurse then attempted to occlude the ET tube

with paper, but appellant stopped her.13

         Appellant testified that, after the nurse left the trauma room, she revisited the idea of

occluding the tube because she knew that it would stop the agonal respirations. Hence, at 21:50,

appellant occluded McGhee’s ET tube with her finger. Appellant witnessed McGhee’s head and

neck move while she occluded the tube. Michael Kasschau, M.D., a resident in the ICU, testified

that he witnessed appellant occluding the tube and the movement of McGhee’s head and neck.14 Dr.

Kasschau asserted that appellant told him that this is something that she had seen done in her

fellowship.15 Nurse Berglund entered the trauma room while appellant was occluding the tube. In

disbelief, she asked appellant what she was doing and why, and appellant told her that she was

occluding the tube to end McGhee’s agonal respirations. Approximately a minute after occluding

the tube, McGhee’s movement ceased, and the monitor indicated that she was asystolic. There was


         13
              Testimony of members of the code team neither supported nor contradicted this assertion.

         14
            Appellant asserted that Dr. Kasschau was not present when she occluded the tube; however, this assertion
conflicts with other parts of appellant’s testimony.

         15
              W hen asked at trial, appellant did admit that she told Dr. Kassachau that she had witnessed something in
her fellowship, but it did not include occluding a tube.

(By the defense) Q. W hat were you describing to him?

                    A. W hat I was describing to him was the return of respiratory efforts after a
                    code was called and the patient was pronounced dead.
                                                                                                                    8

no autopsy. McGhee’s death certificate listed the cause of death as natural and recorded her time

of death as 20:50 on December 26, 2000.

         Dr. Kevin Wacasey, M.D., learned about the incident involving appellant and McGhee on

December 27, 2000.16 In March 2001, he made an anonymous phone call to homicide Detective

Watters of the Forth Worth Police Department to report appellant’s actions. Appellant was

subsequently indicted for murder. The trial court included in the jury charge an instruction on

criminally negligent homicide, which is the conviction now at issue.

                                              Standard of Review

         In Texas, statutory and constitutional authority grants to the courts of appeals (on direct

appeal), and this Court (in capital cases), the power to review claims of factual-sufficiency.17 See

Watson, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Clewis, 922 S.W.2d at 131-32. This

authority allows the appellate court to reverse criminal cases and remand them to the trial court for

a new trial if the appellate court finds that the evidence is factually insufficient.18 Id.

         An intermediate court, nonetheless, may not simply substitute its judgment for that of the

finder of fact. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997). The verdict may be set aside only if it is so contrary to the



         16
            Apparently, Dr. W acasey had concerns about the manner in which JPS ran its ER. He reported the
incident to the Fort W orth police department in March 2001 and was fired by the hospital in July 2001. Dr. W acasey
asserted that he was fired because he notified authorities about Lettie McGhee’s death. The defense asserted that he
knew that he was in danger of being fired and reported the incident as a way to set up a whistle-blower claim against
the hospital.

         17
          “Provided, that the decision of said courts shall be conclusive on all questions of fact brought before
them on appeal or error.” T EX . C O N ST . art. V, § 6.

         18
           “The courts of appeals or the Court of Criminal Appeals may reverse the judgment in a criminal action,
as well upon the law as upon the facts.” T EX . C O D E C RIM . P RO C . art. 44.25.
                                                                                                                       9

overwhelming weight of the evidence as to be clearly wrong and unjust. See Watson, 204 S.W.3d

at 414-17 (citing Clewis, 922 S.W.2d at 131-32). Such a wrong and unjust verdict includes instances

in which the jury’s finding is “manifestly unjust, ‘shocks the conscience,’ or ‘clearly demonstrates

bias.’” See Watson, 204 S.W.3d at 426 (citing Jones v. State, 944 S.W.2d 642 (Tex. Crim. App.

1996)); see also Clewis, 922 S.W.2d at 135; Meraz v. State, 785 S.W.2d 146, 149 (Tex. Crim. App.

1990). An opinion that addresses factual-sufficiency reviews the evidence in a neutral light.

Watson, 204 S.W.3d at 414. It must include a discussion of the evidence and, if it reverses on

factual-insufficiency grounds, it must state clearly why the evidence is factually insufficient. Sims

v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Goodman v. State, 66 S.W.3d 283, 287 (Tex.

Crim. App. 2001); Johnson, 23 S.W.3d at 7. A new trial is not warranted simply because the

appellate court disagrees with the verdict in the trial court. Watson, 204 S.W.3d at 414.

         The factual-conclusivity clause of the Texas Constitution makes an intermediate appellate

court’s factual-sufficiency decision conclusive and restricts this Court’s review to determining only

whether the court of appeals used the proper standard and properly applied it. Roberts v. State, 221

S.W.3d 659, 663 (Tex. Crim. App. 2007) (citing Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406,

44 S.W. 69, 69-70 (Tex. 1898)) (holding that purpose of factual-conclusivity clause was to limit the

Texas Supreme Court’s jurisdiction to questions of law and to make intermediate court’s

factual-sufficiency decisions conclusive).19                 Thus, review of a direct-appeal court’s

factual-sufficiency decision by the Court of Criminal Appeals is limited by the factual-conclusivity

clause to determining only whether the direct-appeal court properly applied “rules of law.” Roberts,

         19
            There are two Roberts opinions that discuss the factual-sufficiency standard. The first case, Roberts v.
State, 221 S.W .3d 659, involved an aggravated robbery conviction. The second case, Roberts v. State, 220 S.W .3d
521, involved a capital-murder conviction.
                                                                                                      10

221 S.W.3d at 662.

                            The Hypothetically Correct Jury Charge

        In Malik, we held that legal sufficiency of the evidence would no longer be measured by the

jury charge actually given, but that it would instead be measured by the elements of the offense as

defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d at 234.

Malik also held that, when assessing the legal sufficiency of evidence on appeal, the appellate court

should measure elements of the offense as defined in a hypothetically correct jury charge for the

case. Id. at 240. This charge accurately promulgates the law, is authorized by the indictment, does

not unnecessarily increase the state’s burden of proof or restrict the state’s theories of liability, and

adequately describes the particular offense for which the defendant was tried. Id.; see also Gollihar,

46 S.W.3d 243, 253 (Tex.Crim.App. 2001). In Wooley v. State, __ S.W.3d __ (Tex.Crim.App.

2008), delivered this day, we held that the Malik standard also applies to factual sufficiency. Thus,

the court of appeals may use a hypothetically correct jury charge to evaluate the factual sufficiency

of evidence. We now consider whether the definition of death used by the court of appeals in its

factual-sufficiency analysis would have been included in the hypothetically correct charge.

                                      The Definition of Death

        The state asserts that the court of appeals erred in its sufficiency analysis by applying Section

671.001 of the Health and Safety Code’s definition of “death,” which was not included in the jury

charge and was not the definition of death rendered under the penal code. Grotti, 209 S.W.3d at 759;

see generally TEX . HEALTH & SAFETY CODE § 671.001(a); TEX . PENAL CODE § 19.01. The state

further asserts that death is not a technical term, and “even if considered technical, it should be given

its ordinary meaning if not legislatively defined in the penal code.”
                                                                                                     11

       As a general rule, terms need not be defined in the jury charge if they are not statutorily

defined and jurors may understand them to have any meaning that is acceptable in common parlance.

Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000) (citing Vernon v. State, 841

S.W.2d 407, 409 (Tex. Crim. App. 1992)) (determining what the term “penetration” means in the

context of an aggravated sexual assault); see also Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991). There are exceptions. Terms which have a technical or legal meaning may require an

explicit definition. Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003) (citing Medford

v. State, 13 S.W.3d at 772)). This is particularly true when there is a risk that the jurors may

arbitrarily apply an inaccurate definition to the term or where an express definition of the term is

required to assure a fair understanding of the evidence. Ibid.

       In Medford, this Court held that the “canons of construction dictate that words and phrases

possessing a technical meaning are generally to be considered as having been used in their technical

sense.” Medford, 13 S.W.3d at 772. This applies to those terms that have a known and established

legal meaning or that have acquired a peculiar and appropriate meaning in the law. Id.

       Section 1.05(b) of the Penal Code, titled “Construction,” gives guidance as to how we should

construe provisions and terms within the penal code. It specifically states that “the provisions of the

code shall be construed according to the fair import of their terms, to promote justice, and effect the

objectives of the code.” See TEX . PENAL CODE § 1.05(a). It also refers to the Code Construction

Act, which states that “[w]ords and phrases that have acquired a technical or particular meaning,

whether by legislative definition or otherwise, shall be construed accordingly.” TEX . GOV ’T CODE

§ 311.011. It is clear that the legislature did not intend to place rigid restrictions on interpreting a

technical term or provision, but rather to provide an appropriate meaning of the term so that it would
                                                                                                                        12

provide a clear understanding to its hearer. We must, therefore, look to the best statutory source

when determining the most befitting definition of “death” in this case. See Medford, 13 S.W.3d at

772.

         Under the Texas Penal Code, a person commits a criminal homicide “if he intentionally,

knowingly, recklessly, or with criminal negligence causes the death of an individual.” TEX . PENAL

CODE § 19.01. The offense of criminally negligent homicide requires that “a person . . . cause[ ] the

death of an individual by criminal negligence.”20 TEX . PENAL CODE § 19.05(a). The Penal Code

defines an individual as “a human being who has been and is alive.” TEX . PENAL CODE §

1.07(a)(26). Death, however, is defined in the Penal Code only as it relates to an unborn child not

being born alive.21

         Section 671.001 of the Texas Health and Safety Code, titled, “Standards Used in Determining

Death,” also defines death. This section provides guidance to physicians, and others relying on a

physician’s pronouncements, as to when, legally, death occurs. TEX . HEALTH & SAFETY CODE §§

671.001(a), (b). Section 671.001 states that

         (a) a person is dead when, according to ordinary standards of medical practice, there
         is irreversible cessation of the person’s spontaneous respiratory and circulatory


         20
              The Penal Code defines criminal negligence as follows:

                    a person acts with criminal negligence, or is criminally negligent, with respect to
                    circumstances surrounding his conduct or the result of his conduct when he ought to
                    be aware of a substantial and unjustifiable risk that the circumstances exist or the
                    result will occur. The risk must be of such a nature and degree that the failure to
                    perceive it constitutes a gross deviation from the standard of care that an ordinary
                    person would exercise under all the circumstances as viewed from the actor’s
                    standpoint.

         T EX . P EN AL C O D E § 6.03(d).

         21
             “Death includes, for an individual who is an unborn child, the failure to be born alive.” T EX . P EN AL
C O D E § 1.07(a)(49).
                                                                                              13

        functions.

        (b) if artificial means of support preclude a determination that a person's spontaneous
        respiratory and circulatory functions have ceased, the person is dead when, in the
        announced opinion of a physician, according to ordinary standards of medical
        practice, there is irreversible cessation of all spontaneous brain function. Death
        occurs when the relevant functions cease.

TEX . HEALTH & SAFETY CODE §§ 671.001(a), (b).

        McGhee’s death occurred in a hospital, and the attending physician was accused of

intentionally causing that death. The jury had to determine whether McGhee’s death, as it is

medically defined, occurred before or after appellant occluded the tube. The jury, therefore, should

have been instructed to interpret “death” within the medical context.

        While the state argues that applying a meaning of death from outside the penal code was

error, the record is clear that both the state and the defense used § 671.001’s definition of death

throughout the trial. In fact, it was the state that introduced this definition into the trial. Before

calling its first witness, Mr. Fryer, the lead prosecutor stated, “I’d respectfully ask the Court to take

judicial notice of Section 671.001 of the Health and Safety Code, which is the standard used in

determining death.” The state’s request was a concession that, in this case, interpreting death

required a more technical meaning than that defined in the Penal Code and that the jury would need

a precise, uniform definition to guide its deliberations.

        Therefore, the hypothetically correct jury charge, which would have included the definition

of death as set out in § 671.001 of the Health and Safety Code, accurately promulgated the law as

it pertained to death, was authorized by the indictment, did not unnecessarily increase the state’s

burden of proof or restrict the state’s theories of liability, and adequately described the particular

offense for which appellant was tried. The court of appeals appropriately defined death by using
                                                                                                     14

section 671.001 of the Health and Safety Code, rather than the Penal Code’s definition of death, in

a hypothetically correct jury charge. We overrule the state’s first ground.

                       Court of Appeals’ Deference to the Jury’s Verdict

       In its second ground, the state argues that the court of appeals applied an incorrect standard

of factual-sufficiency review by failing to afford deference to the jury’s credibility determinations.

The state further asserts that the sole factual determination to be made, whether McGhee was dead

or alive at the time of the tube occlusion, was premised on the credibility of expert testimony, and

that the court of appeals simply decided to disagree with the jury’s credibility assessment. Hence,

the state argues that the jury’s acceptance of Dr. Zimmerman and Dr. DiMaio’s expert testimony that

McGhee was alive, rather than the defense’s expert witness asserting that McGhee was dead, does

not shock the conscience or clearly demonstrate bias. The state’s assertions lack support.

       In a factual-sufficiency review, the evidence is reviewed in a neutral light. Roberts v. State,

220 S.W.3d 521, 524 (Tex. Crim. App. 2007); accord Johnson v. State, 23 S.W.3d at 7. Only one

question is to be answered in a factual-sufficiency review: Considering all of the evidence in a

neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Watson, 204

S.W. 3d at 415. Evidence can be factually insufficient in one of two ways: (1) when the evidence

supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and (2)

when the supporting evidence is outweighed by the great weight and preponderance of the contrary

evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524

(citing Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 11); see also Castillo v. State, 221

S.W.3d 689, 693 (Tex. Crim. App. 2007). “[A]n appellate court must first be able to say, with some

objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts
                                                                                                           15

the jury’s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.”

Watson, 204 S.W.3d at 417. A reversal for factual insufficiency cannot occur when “the greater

weight and preponderance of the evidence actually favors conviction.” Roberts, 220 S.W.3d at 524.

Although an appellate court has the ability to second-guess the jury to a limited degree, the factual-

sufficiency review should still be deferential, with a high level of skepticism about the jury’s verdict

required before a reversal can occur. Watson, 204 S.W.3d at 417; Cain, 958 S.W.2d at 410. It is not

within this Court’s authority to conduct our own factual-sufficiency analysis. TEX . CONST . art. V,

§ 6. We are permitted to evaluate only whether the court of appeals applied the correct rule of law.

Id. We turn to a review of the evidence under these principles.

                                                 Analysis

        A fair reading of the record indicates that the court of appeals’ opinion set out the “most

important and relevant” evidence, including evidence contrary to the jury’s verdict that McGhee was

indeed alive when appellant occluded the tube. We find that the court of appeals did a thorough

analysis of whether the jury’s verdict was against the great weight of the evidence, and that it

correctly applied the appropriate legal standard in holding that the evidence presented at trial was

factually insufficient to support a guilty verdict.

        Although the state asserts that the court of appeals totally disregarded the jury’s verdict, this

assertion is contrary to the record presented to this Court. The court of appeals diligently reviewed

and thoroughly discussed each witness’ testimony and other evidence, specifically with respect to

the question of whether McGhee was alive or dead at the time of the tube’s occlusion.

        Sixteen witnesses testified for the state and five for the defense. Of these witnesses, two on

each side were qualified as expert witnesses. Fourteen “non-expert” witnesses testified as to what
                                                                                                                  16

each had done and seen that day. Of those fourteen, no one was willing to say unequivocally that

McGhee was alive at the time appellant occluded the tube.

        Both of the state’s expert witnesses, Dr. Zimmerman and Dr. DiMaio, gave expert opinion

as to whether McGhee was alive before appellant’s actions. Dr. DiMaio,22 however, was the only

expert witness who definitively asserted that McGhee was alive when appellant occluded the tube.

Dr. Zimmerman testified that appellant’s actions were inappropriate, but admitted that her opinion

was based on her assumption that McGhee was breathing when the tube was occluded.23 Both Dr.

Cox24 and Dr. Krucke,25 the defense expert witnesses, testified that McGhee was unequivocally dead

at the time of the occlusion.

        The court meticulously explained the reasons for its conclusion that the evidence that

McGhee was not alive when appellant occluded the tube so greatly outweighed the evidence that she

was alive. Further, the state has never contended that the court of appeals misrepresented or omitted

facts from its analysis. Rather, the state has couched its argument in terms of criticism of Clewis.26

We find that the court of appeals appropriately assessed all of the relevant evidence and used the


        22
            Dr. DiMaio was the chief medical examiner for San Antonio, Bexar County, Texas. He based his
opinion that McGhee was alive solely on her medical records and the JPS staff affidavits. He did not see McGhee
before or after her death.

        23
           Dr. Zimmerman was the director of emergency services at Ben Taub General Hospital in Houston, Texas.
Dr. Zimmerman based her opinions on McGhee’s medical records, JPS employee affidavits, information from the
Board, and letters.

        24
           Dr. Cox was an emergency-medicine physician at Harris Methodist Hospital in Fort W orth, Texas. He
based his opinion on McGhee’s medical records, ACLS guidelines, and the opinions of other experts. He did not see
McGhee before or after her death.

        25
             Dr. Krucke worked with appellant as a physician in the JPS ICU.

        26
           The state’s real complaint in this case seems not to be a legal complaint that the court of appeals
misapplied “rules of law,” but a factual complaint that the evidence of McGhee being dead is greatly outweighed by
contrary evidence.
                                                                                                   17

correct standard of review. The state’s second ground is overruled.

                           Clewis and the Factual-Sufficiency Standard

       In its third ground, the state argues that the courts of appeals’ further demonstrates that the

dissenting opinions in Watson were correct and that Clewis should be abandoned. We have

consistently declined to dispense with factual-sufficiency review, and the state’s arguments do not

persuade us to do so now. The state’s third ground is overruled.

       The judgment of the court of appeals is affirmed.



Filed: June 25, 2008
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