              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. PD-0210-09



                          KELVIN KIANTA BROOKS, Appellant

                                                 v.

                                   THE STATE OF TEXAS

                          ON APPELLANT’S AND STATE’S
                      PETITIONS FOR DISCRETIONARY REVIEW
                       FROM THE TENTH COURT OF APPEALS
                               MCLENNAN COUNTY

       C OCHRAN, J., filed a concurring opinion in which W OMACK, J., joined.

                                           OPINION

       I adhere to my view that the 1996 judicial creation of the “Clewis 1 factual-sufficiency

review was a well-intentioned but ultimately unworkable effort to incorporate civil standards

of review on elements of a crime that must be proven beyond a reasonable doubt.” 2




       1
           Clewis v. State, 922 S.W.2d 126 (1996).
       2
           Watson v. State, 204 S.W.3d 404, 421 (Tex. Crim. App. 2006) (Cochran, J., dissenting).
                                                       Brooks Concurring Opinion   Page 2

                                                 I.

A.     The Evidence in This Case Either Is or Is Not Legally Sufficient to Support a
       Conviction.

       The evidence in this case is either sufficient to support appellant’s conviction under

the constitutionally-mandated Jackson 3 standard or it is not. It cannot be “semi-sufficient.”

       Appellant was charged with possession of cocaine with the intent to distribute it. At

trial, he denied that the baggie containing 4.72 grams of cocaine and five ecstacy pills found

in the pool table pocket return was his, although he admitted ownership of the baggie of

marijuana that he tossed under that pool table. On appeal, he argued that the evidence was

both legally and factually insufficient to prove that he possessed the cocaine with the intent

to distribute it. The court of appeals found that the evidence was legally sufficient to support

a finding, beyond a reasonable doubt, that appellant possessed the cocaine with the intent to

distribute it. In doing so, it relied on a list of seven facts, beyond the mere amount of

cocaine, that supported the jury’s guilty verdict. 4 But then, in finding the evidence factually


       3
           Jackson v. Virginia, 443 U.S. 307 (1979).
       4
      Brooks v. State, No. 10-07-00309-CR, 2008 Tex. App. LEXIS 7364 at *12 (Tex.
App.—Waco 2008). The majority opinion in the court of appeals noted these additional facts:
     (1)   both the bag of marihuana and the bag of cocaine were packaged in the same
           manner;
     (2)   [appellant] was not in possession of any drug paraphernalia for either use or sale;
     (3)   [the State’s DEA expert] testified that users typically carry some type of heating
           element, such as a crack pipe, but dealers do not;
     (4)   at the time of his arrest, [appellant] was not under the influence of a narcotic;
     (5)   [appellant] has a previous conviction for possession with intent to deliver;
     (6)   [appellant] attempted to evade capture and discarded contraband in the process;
           and
     (7)   [appellant] was found in possession of three different types of drugs.
                                                       Brooks Concurring Opinion       Page 3

insufficient to support a finding of intent to distribute, the majority set out a totally different

list of facts that the record did not show: There was no evidence that (1) appellant was in a

high crime area; (2) the cocaine was packaged especially for sale; (3) he was carrying a large

amount of cash; or (4) he had drug-dealing paraphernalia on him.5 The court used positive

inferences for legal sufficiency (what the evidence did show) and then negative inferences

for factual sufficiency (what the evidence did not show).

       I agree that this is a close call on legal sufficiency, but I do not see how “missing”

facts can transform the purportedly legally sufficient evidence into factually insufficient

evidence. There is no higher standard than “proof beyond a reasonable doubt.” If the

evidence meets that standard, how can it fall short using a lower standard? Indeed, the Waco

Court of Appeals may have had second thoughts itself about this question because it held,

in a subsequent (but almost identical) case, that the evidence was factually and legally

sufficient.6 If nothing else, these two cases demonstrate that the Clewis factual sufficiency


Id. The majority did not analyze the probative value of these facts to establish appellant’s intent
or discuss what legitimate inferences, if any, might be drawn from them. It did not explain why
the evidence was legally sufficient when it announced its conclusion.
       5
          Id. at *13. Chief Justice Gray dissented, noting that the majority failed to acknowledge
that there was “more evidence of intent to deliver than merely the amount of cocaine.” Id. at *19
(Gray, C.J., dissenting). He also noted that the majority did not “detail the evidence and clearly
state why the evidence that is legally sufficient is nevertheless factually insufficient.” Id. at *20.
       6
         Guyton v. State, No. 10-07-00070-CR, 2009 Tex. App. LEXIS 839 (Tex. App.—Waco,
Feb. 6, 2009, pet. ref’d) (not designated for publication). In Guyton, the court of appeals
originally reversed the conviction due to factual insufficiency, but, once the State filed a PDR, it
reconsidered and held that the evidence was both legally and factually sufficient to support the
defendant’s conviction for possession of .40 grams of cocaine with the intent to distribute it. Id.
at *9-13.
                                                       Brooks Concurring Opinion      Page 4

review has led to random, inconsistent results, based primarily on “the luck of the draw.” 7

This doctrine is not based on a sound logical or historical foundation, and it serves only to

muddle criminal law. It should be overturned.

B.     Both Parties Agree That the Proper Issue Is Legal Sufficiency of the Evidence.

       Fittingly, both appellant and the State agree that the proper issue in cases such as this

is whether the evidence is legally sufficient. The State argues in its Petition for Discretionary

Review, “Evidence that is factually insufficient due to its inherent weakness should always

be legally insufficient; either the evidence is such that a rational juror could convict upon it

or it is not, regardless of the light in which it is viewed.”8 Appellant “suggests that in this

situation (i.e. a question of intent), if the evidence is factually insufficient it must also be

legally      insufficient.” 9       They     are   both      correct:   There    is   no    “sem i-


       7
           See Watson, 204 S.W.3d at 426 (Cochran, J., dissenting).
       8
           State’s Petition for Discretionary Review at 9.
       9
         Appellant’s Petition for Discretionary Review at 6. Appellant relies on several
analogous federal cases in which the courts held that the evidence was legally insufficient to
support a finding of “intent to distribute” a controlled substance that the defendant admittedly
possessed. In these cases, the inference of intent to distribute was not a reasonable one given the
paucity of circumstantial evidence.
        As appellant notes, the legal sufficiency standard of review is that required by the United
States Constitution as set out in Jackson v. Virginia. That same standard is applied in every state
and federal jurisdiction in America. It applies to all criminal convictions regardless of the type or
degree of crime. This application of a single, constitutionally-mandated standard has led to the
creation of an enormous body of “sufficiency of evidence” law and precedent across America
that any judge or lawyer may easily access and apply to any given conviction here in Texas. It is
a coherent body of law. It is objective and intellectually rigorous. It sets out appellate
presumptions, permissible inferences, and specific criteria to use when assessing the legal
sufficiency of the evidence. It does not rely upon subjective notions of “shocking the
conscience” of individual appellate judges, striking them as “manifestly unjust,” or seeming just
                                                      Brooks Concurring Opinion   Page 5

sufficient” standard of review.

                                                II.

A.     Logic Requires a Single Standard of Sufficiency Review in Criminal Cases.

       I have already set out my concerns about the intellectual legitimacy, historical

authenticity, and appropriateness of the Clewis factual sufficiency review in Texas.10 I now

focus only upon the most important reason to overrule Clewis: Logic.

       The attempt to impose Texas civil standards of a second-round factual sufficiency

review is logically incompatible with the constitutionally mandated legal sufficiency review

of criminal convictions that requires the State to prove all elements of a crime beyond a

reasonable doubt. Piling a factual sufficiency standard of review that was developed for civil

trials employing a preponderance-of-the-evidence standard of proof atop a legal sufficiency

standard of review that was developed for criminal trials employing a beyond-a-reasonable-

doubt standard of proof does not work. That is why this Court has so frequently tinkered

with the Clewis formulation, and why we have always been unsuccessful.

       The Clewis doctrine of re-reviewing the sufficiency of the evidence after the appellate

court has already held that the evidence satisfies the highest standard of proof

possible–beyond a reasonable doubt–to decide if it is nonetheless factually sufficient is

internally inconsistent. If the evidence suffices to prove guilt beyond a reasonable doubt, and



plain “wrong.”
       10
            See Watson, 204 S.W.3d at 421-26.
                                                       Brooks Concurring Opinion       Page 6

it supports a rational, reasonable verdict, as required under Jackson, that evidence cannot

logically be so lacking in probative value as to make the jury’s verdict “manifestly unjust”

under the vague and subjective civil-law factual-sufficiency standard. To declare the

evidence factually insufficient necessarily turns an appellate judge, viewing only the cold

written record, into a self-appointed thirteenth juror with absolute veto power over the twelve

citizens who actually saw the witnesses, heard the evidence, and reached a rational,

reasonable verdict. The United States Supreme Court recognized this in Tibbs v. Florida,11

as did the Florida Supreme Court when it judicially jettisoned factual-sufficiency review in

that same case.12

B.     Legally Sufficient Evidence in a Criminal Trial.

       For more than 150 years, Texas appellate courts reviewed the sufficiency of the

evidence in Texas criminal cases under a single standard (although the precise wording

varied), taking into account both the facts that were proven at trial and the law applicable to



       11
           457 U.S. 31, 42 (1982) (stating that an appellate reversal for factually insufficiency,
“unlike a reversal based on insufficient evidence, does not mean that acquittal was the only
proper verdict. Instead, the appellate court sits as a ‘thirteenth juror’ and disagrees with the
jury’s resolution of the conflicting testimony. This difference of opinion no more signifies
acquittal than does a disagreement among the jurors themselves. . . . [A]n appellate court’s
disagreement with the jurors’ weighing of the evidence does not require the special deference
accorded verdicts of acquittal.”).
       12
          Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981) (rejecting its former factual
sufficiency review because “the concern on appeal must be whether, after all conflicts in the
evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on
appeal, there is substantial, competent evidence to support the verdict and judgment. Legal
sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate
tribunal.”) (footnote omitted).
                                                    Brooks Concurring Opinion      Page 7

the particular offense.13 This Court (and the intermediate courts of appeals once they were

given jurisdiction over the direct appeal of criminal cases in 1981) reviewed the facts proven

in the light most favorable to the verdict, giving great deference to the jury’s credibility and

weight determinations. But we did not hesitate to reverse a conviction if the evidence failed

to prove a defendant’s guilt “with reasonable certainty,” or “beyond a reasonable doubt.” 14

There were never two distinct “sufficiency of the evidence” hurdles in Texas criminal

appellate review.15

1.     The constitutionally required Jackson standard.

       In 1979, the United States Supreme Court delivered its opinion in Jackson v.

Virginia,16 and set the national standard for review of the sufficiency of evidence under the

Due Process Clause of the federal constitution. In all criminal trials, state and federal, the

government must produce “sufficient evidence to justify a rational trier of the facts to find

guilt beyond a reasonable doubt.” 17 The Court explicitly rejected the “no evidence” standard




       13
          See Watson, 204 S.W.3d at 424-26 (Cochran, J., dissenting) (discussing the history of
appellate review of sufficiency of the evidence in Texas).
       14
            Id.
       15
         Id. at 426 (collecting and discussing Texas criminal cases from 1841 forward and
concluding, “Until Clewis in 1996, this Court had consistently used a single standard (although
the precise phrasing varied) and reviewed the evidence in the light most favorable to the
factfinder, giving great deference to the jury’s credibility and weight determinations.”).
       16
            443 U.S. 307 (1979).
       17
            Id. at 312-13.
                                                    Brooks Concurring Opinion      Page 8

of review that it had applied nineteen years earlier in Thompson v. Louisville.18

       In Jackson, the Court explained that the Thompson “no evidence” review “secures to

an accused the most elemental of due process rights: freedom from a wholly arbitrary

deprivation of liberty[,]” 19 but that standard is inadequate for “a question of evidentiary

‘sufficiency.’” 20 Instead, the correct standard must incorporate the prosecution’s burden of

proof–beyond a reasonable doubt–in a due-process review.              The Court noted that a

“‘reasonable doubt’ has often been described as one ‘based on reason which arises from the

evidence or lack of evidence.’” 21

       A reasonable doubt might arise because the verdict is manifestly against the great

weight and preponderance of the credible evidence or because there is nothing more than a

mere scintilla of evidence to support some element of the offense. But, of course, the

reviewing court does not “ask itself whether it believes that the evidence at the trial


       18
         362 U.S. 199, 199 (1960) (stating that the “ultimate question presented to us is whether
the charges against petitioner were so totally devoid of evidentiary support as to render his
conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.
Decision of this question turns not on the sufficiency of the evidence, but on whether this
conviction rests upon any evidence at all.”).
       19
            Jackson, 443 U.S. at 314.
       20
          Id. The Supreme Court explained that a “no evidence” standard does not “protect
against misapplications of the constitutional standard of reasonable doubt” because a “no
evidence” standard is satisfied by a “mere modicum” of evidence. “But it could not seriously be
argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond
a reasonable doubt.” Id. at 320. Under a “no evidence” standard, a reviewing court would affirm
the judgment if any evidence supported the conviction. See Gollihar v. State, 46 S.W.3d 243,
246 n. 3 (Tex. Crim. App. 2001) (citing Thompson, 362 U.S. at 199).
       21
            Id. at 318 n.9.
                                                      Brooks Concurring Opinion   Page 9

established guilt beyond a reasonable doubt.” 22 Rather, it must give “full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” 23 Thus, “all

of the evidence is to be considered in the light most favorable to the prosecution” because the

reviewing court may impinge upon “‘jury’ discretion only to the extent necessary to

guarantee the fundamental protection of due process of law.” 24

       Therefore, after 1979, Texas courts were prohibited from applying a “no evidence”

standard of review to a legal-sufficiency challenge because that standard affords “inadequate

protection against potential misapplication of the reasonable-doubt standard” in criminal

cases.25 In 1989, we explained, “Adherence to the no evidence standard is now, and has been

for the last decade, expressly forbidden by Jackson. It is no longer permissible to merely

quote the Jackson standard and then to turn around and apply the Thompson no evidence

standard as we have historically done.”26

2.     Legal sufficiency in criminal cases is judged by the quality, not the quantity, of
       evidence supporting the accuracy of the verdict.

       Legal sufficiency of the evidence is a test of adequacy, not mere quantity. Sufficient


       22
            Id. at 318-19 (citation omitted).
       23
            Id. at 319.
       24
            Id.
       25
            Gollihar v. State, 46 S.W.3d 243, 246 n. 4 (Tex. Crim. App. 2001).
       26
         Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989) (en banc), overruled on
other grounds by Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).
                                                      Brooks Concurring Opinion     Page 10

evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial

or official action demanded.” 27 In criminal cases, only that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of the

offense has been proven beyond a reasonable doubt is adequate to support a conviction.

There is no higher burden of proof in any trial, criminal or civil, and there is no higher

standard of appellate review than the standard mandated by Jackson. All civil burdens of

proof and standards of appellate review are lesser standards than that mandated by Jackson.

        Indeed, the Supreme Court explicitly held in In re Winship,28 that a juvenile could not

constitutionally be adjudicated under the civil standards of proof (or appellate review) of

preponderance of the evidence.29          The Court noted that “‘the preponderance test is

susceptible to the misinterpretation that it calls on the trier of fact merely to perform an

abstract weighing of the evidence in order to determine which side has produced the greater

quantum, without regard to its effect in convincing his mind of the truth of the proposition

asserted.’” 30

        As Justice Harlan explained in his Winship concurrence, although “the phrases

‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively

        27
             Black’s Law Dictionary 1285 (5th ed. 1979).
        28
             397 U.S. 358 (1970).
        29
             Id. at 368.
        30
         Id. at 367-68 (quoting Dorsen & Resneck, In Re Gault and the Future of Juvenile Law,
1 Fam. L. Quarterly No. 4, 26-27 (1967)) (rejecting the lower court’s suggestion that there is only
a “‘tenuous difference’” between the reasonable-doubt and preponderance standards).
                                                     Brooks Concurring Opinion      Page 11

imprecise, they do communicate to the finder of fact different notions concerning the degree

of confidence he is expected to have in the correctness of his factual conclusions.” 31 Justice

Harlan noted that “[t]he preponderance test has been criticized, justifiably in my view, when

it is read as asking the trier of fact to weigh in some objective sense the quantity of evidence

submitted by each side rather than asking him to decide what he believes most probably

happened.” 32 Indeed, that is precisely why the standard of proof and review in criminal cases

has been expressed, not by the quantity of evidence produced or how it might be weighed

when viewed neutrally, but rather by the quality of the evidence and the level of certainty it

engenders in the factfinder’s mind.

       Legal sufficiency of the evidence in a criminal proceeding may be divided into two

zones: evidence of such sufficient strength, character, and credibility to engender certainty

beyond a reasonable doubt in the reasonable factfinder’s mind and evidence that lacks that

strength.33 Appellate review of a jury’s verdict of criminal conviction focuses solely on that


       31
            Id. at 370 (Harlan, J., concurring).
       32
            Id. at 371 n.3 (citing J. MAGUIRE , EVIDENCE , COMMON SENSE AND COMMON LAW 180
(1947)).
       33
          That does not mean, of course, that every factfinder or every appellate judge need agree
that the evidence in a particular case is legally sufficient. As the Supreme Court explained in
Johnson v. Louisiana, 406 U.S. 356 (1972):
        In our view disagreement of three jurors does not alone establish reasonable
        doubt, particularly when such a heavy majority of the jury, after having considered
        the dissenters’ views, remains convinced of guilt. That rational men disagree is
        not in itself equivalent to a failure of proof by the State, nor does it indicate
        infidelity to the reasonable-doubt standard. Jury verdicts finding guilt beyond a
        reasonable doubt are regularly sustained even though the evidence was such that
        the jury would have been justified in having a reasonable doubt, even though the
                                                     Brooks Concurring Opinion       Page 12

“either-or” character of evidentiary sufficiency because a defendant is entitled to an acquittal

if the evidence lacks that strength.

C.     Texas Civil Standards of Review.

       Texas is considered a “hold-out” state by having a two-tiered standard of appellate

review for civil cases, although commentators state that “recent decisions hint that there is

support for assimilation into the single standard of review used in most jurisdictions.” 34 It

has long been acknowledged that “[f]ew issues of Texas law have created more confusion

or spawned more appellate litigation than the treatment of ‘no evidence’ and ‘insufficient

evidence’ points of error” in civil cases.35 The difficulty in distinguishing these two types

of claims–which require dramatically different results–is that appellate courts have little

guidance except their own intuition to guide them.36

1.     The “five zone” review for legal and factual sufficiency.

       Traditionally, Texas appellate courts have employed a five-zone review of civil


        trial judge might not have reached the same conclusion as the jury, and even
        though appellate judges are closely divided on the issue whether there was
        sufficient evidence to support a conviction.
Id. at 362-63 (citations omitted). The United States Supreme Court trusts juries when they reach
a rational verdict even though those same justices, the individual trial judge, or appellate judges
may be closely divided on the issue of whether they believe there was sufficient evidence to
support a conviction.
       34
        W. Wendall Hall & Mark Emery, The Texas Hold Out: Trends in the Review of Civil
and Criminal Jury Verdicts, 49 S. TEX . L. REV . 539, 540 (2008).
       35
         William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient
Evidence,” 69 TEX . L. REV . 515, 516 (1991).
       36
            Id. at 525.
                                                     Brooks Concurring Opinion      Page 13

verdicts when the burden of proof at trial is that of “preponderance of the evidence.” 37 In his

much cited law review article, Justice Calvert distinguished those five zones and defined

them.38

2.     Zone 1–“no evidence.”

       Zone 1 is the “no evidence” zone, similar to the old legal sufficiency standard rejected

by the Supreme Court in Jackson for criminal cases. A “no evidence” challenge by the party

without the burden of proof in a civil case may be sustained only when:

       C       There is a complete lack of evidence of some element of a claim or defense;

       C       The evidence offered at trial is inadmissible under the rules of law or of
               evidence and thus cannot be given any evidentiary value on appeal;

       C       There is no more than a “mere scintilla” of evidence to prove some essential
               fact of either the claim or defense;39 or


       37
          See id. at 517-18 (discussing and using the concept of “a five zoned spectrum, with the
strength of the proponent’s evidence increasing in each successive zone”).
       38
          One might visualize these five zones as laid out on an imaginary football field, starting
from the left-hand goal line of the party with the burden of proof. Zone 1, the “no evidence”
zone, starts at this goal line and, as the evidence supporting a vital fact or claim steadily
increases, the zones march down the field until zone 5, “conclusive evidence,” which is at the
opposing party’s goal line. The 50 yard line would roughly correspond to the line which must be
crossed by the party with the burden of proof by the “preponderance of the evidence,” leaving a
“zone of reasonable disagreement” on either side of the midline.
       39
          Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38
TEX . L. REV . 361, 363 (1960). Justice Calvert explained the scintilla rule as follows:
        [W]hen the evidence offered to prove a vital fact is so weak as to do no more than
        create a mere surmise or suspicion of its existence, the evidence is, in legal effect,
        no evidence, and will not support a verdict or judgment. The scintilla rule cannot
        apply when there is direct evidence of a vital fact; it applies only when the vital
        fact must be inferred from other relevant facts and circumstances which are
        proved. If the inference is not a reasonable one a “no evidence” point should be
                                                      Brooks Concurring Opinion       Page 14


       C       The evidence conclusively demonstrates the opposite of the essential fact.40

If the appellate court finds “no evidence” to support the verdict, the evidence is legally

insufficient, and the opponent is entitled to a judgment in his favor as a matter of law.41

3.     Zone 2–“factually insufficient evidence.”

       In zone 2, the party with the burden of proof has offered some evidence in support of

his claim or defense and the case is allowed to go to the jury for a verdict. But the evidence

supporting the jury’s verdict, while more than a “mere scintilla,” is slim indeed.42 In this

scenario, the appellate court may find that it is “factually insufficient,” but it must carefully

set out all of the evidence supporting the verdict and explain why the evidence is nonetheless



        sustained. It follows that “no evidence” points based on the scintilla rule require a
        careful analysis of the facts proved for the purpose of determining whether the
        vital fact may be reasonably inferred.
Id. (footnotes omitted).
       40
         Id. at 362-63; see also Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997); WILLIAM V. DORSANEO , III, et al., TEXAS LITIGATION GUIDE §
146.03[6][e][ii][A] (2007).
       41
          Havner, 953 S.W.2d at 730. Justice Calvert explained that, in deciding “no evidence”
points, the appellate court views the evidence in the light most favorable to the verdict and
considers only that evidence and inferences that support the verdict while ignoring all evidence
and inferences that are contrary to the verdict. Calvert, 38 TEX . L. REV . at 364.
       42
          According to Justice Calvert, “if the evidence supporting the finding is so uncertain,
inconsistent, improbable, or unbelievable that, although constituting some evidence of probative
force when considered in its most favorable light in support of the finding, it would nevertheless
be clearly unjust to permit the judgment to stand.” Calvert, 38 TEX . L. REV . at 367. Justice
Calvert appropriately viewed the evidence “in its most favorable light in support of the finding”
in assessing factual sufficiency; he did not view it in a “neutral light.” I have found no Texas
Supreme Court case that has viewed the evidence “in a neutral light” when addressing factual
sufficiency claims.
                                                      Brooks Concurring Opinion       Page 15

insufficient.43 This challenge is always brought by the party without the burden of proof.44

The rationale for allowing the party (who prevailed at trial but was found by the appellate

court to have produced insufficient evidence) to try again in a second trial is “that there is

available to the appellee other evidence of the vital fact which will support a finding in his

favor and it would work an injustice to cut off his right to produce it.” 45 The appellate court

assumes that the party who had the burden of proof and who originally prevailed may be able

to produce additional evidence at a second trial, evidence that he failed to offer at the first

trial.46

4.         Zone 3–“zone of reasonable disagreement.”

           Zone 3, the zone of reasonable disagreement, is the great middle ground, in which a

verdict will be upheld for either the party with the burden of proof or the opposing party as




           43
           Justice Calvert explains that, in this zone 2 scenario, the appellate court may not find
that the evidence is “against the great weight and preponderance of the evidence because there is
no evidence of the nonexistence of the fact.” Calvert, 38 TEX . L. REV . at 366. That is, when
reviewing an “insufficient evidence” point, the appellate court looks only to the evidence that
supports the vital fact and determines that this evidence is simply too meager to support a finding
of its existence by a preponderance of the evidence. Id.
           44
                See note 49 infra.
           45
                Id. at 370.
           46
          Id. (“By producing the evidence on retrial the party has fair assurance that a finding of
the existence of the vital fact will be permitted to stand.”). Strangely, this same rule does not
apply for legally insufficient evidence because “[p]resumptively, at least, all of the evidence
available to the appellee has been introduced.” Id. Justice Calvert did not explain why a party
who produced no evidence of a vital fact at the first trial is not entitled to a second bite at the
apple, while a party who offered some, but factually insufficient, evidence would be able to
produce more evidence and thus is entitled to a second bite at the apple.
                                                         Brooks Concurring Opinion         Page 16

there is conflicting evidence or inferences on either side of the vital fact issue or issues, but

the jury’s verdict is reasonable and does not “shock the conscience,” nor it is not so “clearly

unjust” to indicate obvious bias.47

5.      Zone 4–“great weight and preponderance.”

        In zone 4, the party with the burden of proof has offered significant evidence to

support the claim or defense; the great weight and preponderance of the credible evidence

supports his position.48 However, the jury has returned a verdict in favor of the opposing

party–the party without the burden of proof. In this scenario, the party with the burden of



        47
             Id.
        48
          Texas courts usually use the short-hand term “great weight of the evidence,” but the
Texas Supreme Court occasionally reiterates that it is, in reality, the great weight of the credible
evidence that it is referring to. Quality, not mere quantity, has been its historical determining
factor. See, e.g., Dawson v. St. Louis Expanded Metal Fireproofing Co., 61 S.W. 118, 119 (Tex.
1901) (“It was within the power of [the court of civil appeals] to disregard a finding of fact by the
jury if contrary to the great weight of the credible testimony, and in effect to set aside the finding
and to remand the cause, and we understand them to mean that under the facts as found by them
under the evidence, there was no negligence.”); McDonald v. New York Cent. Mut. Fire Ins. Co.,
380 S.W.2d 545, 548 (Tex. 1964) (“[T]he insured does not raise in the Court of Civil Appeals
the point of ‘insufficient evidence’ to support the jury findings or the point that the findings are
against ‘the great weight and preponderance’ of the credible evidence”); Darryl v. Ford Motor
Co., 440 S.W.2d 630, 633 (Tex. 1969) (“Nowhere in the amended motion for new trial did the
respondent, Ford Motor Company, state that the evidence supporting the jury answers to any
specific special issue was either insufficient or against the great weight of the credible
evidence”); see also In Re G.A.T.,16 S.W.3d 818, 829 (Tex. App.—Houston [14th Dist.] 2000,
pet. denied) (“The evidence shows that the verdict was not contrary to the great weight of the
credible evidence.”); Town & Country Mobile Homes, Inc. v. Bilyeu, 694 S.W.2d 651, 656 (Tex.
App.—Fort Worth 1985, no writ) (“In considering an ‘insufficient evidence’ point, we must
remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the
witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or
inconsistencies in the testimony. This Court may not substitute its judgment for that of the jury if
the challenged finding is supported by some evidence of probative value and is not against the
great weight and preponderance of the evidence.”) (citation omitted).
                                                      Brooks Concurring Opinion       Page 17

proof may challenge the result, claiming that the verdict is “against the great weight and

preponderance of the evidence.” 49 In this “against the great weight and preponderance”

scenario, all of the evidence, both pro and con, is set out, and the appellate court must explain

why the verdict is against the great weight and preponderance of the evidence.50

6.     Zone 5–“conclusive evidence.”

       At the opposite end of the spectrum from zone 1 is zone 5–“conclusive evidence”–

in which the party with the burden of proof has established conclusively, or as a matter of

law, that he is entitled to a judgment in his favor because the opponent has offered no



       49
           See William Powers, Jr. & Jack Ratliff, 69 TEX . L. REV . at 518-19 (“When the evidence
falls into zone 2, the proper terminology is that there is ‘insufficient evidence’ or ‘factually
insufficient evidence’ to support an affirmative finding. In zone 4, the clearest terminology is
that a finding contrary to the evidence is against the “great weight and preponderance of the
evidence,” although this terminology is occasionally (and we think confusingly) used to refer to
evidence in zone 2. Despite the differences between zones 2 and 4, attacks on jury findings in
these zones are usually called ‘factual sufficiency’ points. The preferred terminology has the
proponent [the party with the burden of proof] claim that an unfavorable (negative) finding
should be set aside because it is ‘contrary to the great weight and preponderance of the evidence,’
and has the opponent [the party without the burden of proof] claim that an unfavorable
(affirmative) finding was based on ‘insufficient evidence.’”) (footnotes omitted); see also
DORSANEO , TEXAS LITIGATION GUIDE § 146.03[6][e][ii][C] (“A party who attacks the factual
sufficiency of an adverse finding on an issue on which the party has the burden of proof must
demonstrate on appeal that the adverse finding is against the great weight and preponderance of
the evidence.”).
       50
           See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (“In order that this court
may in the future determine if a correct standard of review of factual insufficiency points has
been utilized, courts of appeals, when reversing on insufficiency grounds, should, in their
opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury’s
finding is factually insufficient or is so against the great weight and preponderance as to be
manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those
courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the
evidence in support of the verdict. It is only in this way that we will be able to determine if the
requirements of In Re King’s Estate [244 S.W.2d 660 (Tex. 1951)], have been satisfied.”).
                                                     Brooks Concurring Opinion     Page 18

evidence in opposition and the proponent has offered sufficient evidence of the vital fact or

claim.

7.       The Texas Supreme Court’s Reformulation of Legal Sufficiency.

         Although this five-zone theory has been the traditional formulation of civil legal and

factual sufficiency standards in civil cases, in 2005, the Texas Supreme Court articulated a

new formulation of the test for legal sufficiency review in City of Keller v. Wilson:51

         The 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
         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.52

Thus, when reasonable jurors could resolve conflicting evidence either way, an appellate

court must assume that jurors resolved all such conflicts in accord with their verdict, and

when the evidence supports conflicting inferences, the court must assume that jurors made

all inferences in favor of the verdict and disregard other possible inferences.53 “If the

evidence at trial would enable reasonable and fair-minded people to differ in their

conclusions, then jurors must be allowed to do so. A reviewing court cannot substitute its

judgment for that of the trier-of-fact, so long as the evidence falls within this zone of




         51
              168 S.W.3d 802 (Tex. 2005).
         52
              Id. at 827.
         53
              See id. at 818-21.
                                                        Brooks Concurring Opinion        Page 19

reasonable disagreement.” 54 The appellate court does not view the evidence in a neutral

light, but rather “in the light favorable to the verdict,” 55 just as is done in criminal cases under

Jackson and in Texas civil cases under a factual sufficiency review. Under this formulation,

zone 3 (the zone of “reasonable disagreement”) would seem to have increased considerably

in size, while zones 2 and 4 (those of “factual insufficiency” and “against the great weight

and preponderance”) have diminished as a verdict that is outside the zone of reasonable

disagreement would seem to be within the zone of legally insufficient evidence.56

        Some commentators have noted that this new formulation of legal sufficiency has

virtually merged the Texas legal sufficiency standard with that of factual sufficiency in civil

cases.57 And it has brought Texas civil standards “more closely in line with federal standards

        54
          Id. at 822 (footnote omitted). In City of Keller, the Supreme Court also described three
kinds of evidence that must be disregarded when conducting a legal sufficiency analysis: (1)
credibility evidence; (2) conflicting evidence; and (3) conflicting inferences. Id. at 819-22.
Thus, witness credibility in civil cases, as in criminal cases, is solely the prerogative of the
factfinder. An appellate court may not discount a witness’s testimony as being, in its view, less
credible than another witness’s. Furthermore, the appellate court may not choose between two
conflicting inferences if the evidence would reasonably support either one. “It is widely
recognized that one of the most important attributes of the right to jury trial is the ability of juries
to draw, from circumstantial evidence, inferences that cannot be set aside or second-guessed by
reviewing courts merely because the reviewers would have reached a different factual
conclusion.” William V. Dorsaneo, III, Changing the Balance of Power: Juries, the Courts, and
the Legislature, PRACTICE BEFORE THE SUPREME COURT 5 (State Bar of Texas 2004).
        55
             City of Keller, 168 S.W.3d at 807.
        56
          See City of Keller, 168 S.W.3d at 827-28 (“‘The rule as generally stated is that if
reasonable minds cannot differ from the conclusion that the evidence lacks probative force it will
be held to be the legal equivalent of no evidence.’”) (quoting Calvert, 38 TEX . L. REV . at 364).
        57
          See W. Wendall Hall & Mark Emery, 49 S.TEX . L. REV . at 559 (“Some may conclude
that City of Keller only addresses legal sufficiency challenges, but the reasonable juror standard
seems to make the distinction between legal and factual sufficiency mean little.”); id. at 562
                                                     Brooks Concurring Opinion      Page 20

for legal sufficiency review.” 58      These commentators argue that the language of the

“reasonable juror” standard “provides a cloak for the reasoning of judges, rather than

precision in reasoning.” 59 They contend that the City of Keller standard “leaves considerable

leeway for an appellate court to intercept a jury’s verdict when it feels motivated to do so.” 60

These commentators complain that the “reasonable juror” standard is too flexible and

subjective, 61 apparently preferring the purportedly more objective standard of “shocks the

conscience” or “manifestly unjust.” One can certainly agree with their ultimate conclusion

however, that appellate courts should make “a firm rededication to a jurisprudence of

restraint and standards of review that recognize the fundamental right to trial by jury and a

concomitant hard-minded application of standards of review.” 62 Particularly in Texas, the

most jury-deferential state in the nation,63 appellate courts must defer to a “reasonable” jury


(noting that under the City of Keller “reasonable and fair-minded juror” standard, the Supreme
Court may avoid the “yo-yo effect” of reversing and remanding cases for factual insufficiency
review and instead render judgment because the verdict is unreasonable and therefore the
evidence is legally insufficient).
       58
            Id. at 556.
       59
            Id. at 600.
       60
         Lonny S. Hoffman, Harmar and the Ever-Expanding Scope of Legal Sufficiency
Review, 49 S. TEX . L. REV . 611, 614 (2008).
       61
            Id.
       62
            See W. Wendall Hall & Mark Emery, 49 S. TEX . L. REV . at 610.
       63
         See Watson, 204 S.W.3d at 429 n.47 (Cochran, J., dissenting); see also William
Powers, Jr., Judge and Jury in the Texas Supreme Court, 75 Tex. L. Rev. 1699, 1699 n.3 (1997)
(“A hallmark of [the] entire body of law [regarding legal and factual sufficiency claims in civil
cases] however, is extraordinary deference to juries.”).
                                                    Brooks Concurring Opinion      Page 21

verdict in both civil and criminal cases.

D.     The Criminal Legal Sufficiency Standard Cannot Be Harmonized with the Civil
       Factual Sufficiency Standard.

1.     Clewis is a chimera.

       In Clewis, this Court attempted to superimpose the five-zone civil standard of review,

predicated upon trials in which the burden of proof is by a preponderance of the evidence

upon the two-zone criminal standard of review that requires proof beyond a reasonable

doubt.64 Visualizing the five-zone civil standard (“no evidence,” “insufficient evidence,”

“zone of reasonable disagreement,” “the great weight and preponderance of the evidence,”

and “conclusive evidence”) as a football field with the “no evidence” zone at one end and

with each zone comprised of an ever greater quantum of evidence offered by the party with

the burden of proof until the “conclusive evidence” zone at the other end, reviewing courts

are required to uphold as factually sufficient any verdict in favor of the party with the burden

of proof that is at least within the third zone, that of reasonable disagreement. But in

assessing the legal sufficiency of evidence in a criminal case, the State’s evidence must be

persuasive enough to almost make a touchdown; reaching the midfield is never enough to

meet the “beyond a reasonable doubt” standard.

       In a civil case, if the jury returns a verdict in favor of the party that did not have the

burden of proof (usually the defendant), but that verdict is determined by the appellate court

to be against the great weight and preponderance of the evidence offered by the party that did

       64
            See Clewis, 922 S.W.2d at 129.
                                                    Brooks Concurring Opinion       Page 22

have the burden of proof (usually the plaintiff), then the appellate court may reverse the

judgment and remand for a new trial. This gives the plaintiff a second opportunity to prove

his case before a new jury, after the first jury had rejected his claim although he had

originally produced “the great weight and preponderance of the evidence” to support its

claim. That scenario would not generally arise 65 in criminal cases because if the jury returns

a verdict favoring the party without the burden of proof (the defendant), there will be no

appeal because the State may not appeal an acquittal.

       Similarly, if the party with the burden of proof in a civil trial (usually the plaintiff)

obtains a jury verdict in its favor, but an appellate court determines that there is insufficient

evidence, even when viewed in the light most favorable to the verdict,66 to reach “the zone

of reasonable disagreement,” then the appellate court may reverse the jury verdict and

remand for a new trial. That scenario also would not arise in criminal cases because if the

State’s evidence is so weak in strength, character, and credibility that it does not reach the

level of “the zone of reasonable disagreement,” then it most assuredly does not meet the

“beyond a reasonable doubt” standard of legal sufficiency required in all criminal cases.

Such a lack of evidentiary support is not merely factually insufficient, it is legally

insufficient, and the defendant cannot be required to undergo a second trial.

       What this Court did in Clewis was adopt the language of Texas civil factual


       65
         This situation does arise in those instances in which the defendant bears the burden of
production and persuasion for affirmative defenses. See note 67 infra.
       66
            See note 42 supra.
                                                       Brooks Concurring Opinion        Page 23

sufficiency review without first determining whether there was a proper fit between those

civil standards of review and the differing evidentiary standards of proof in civil and criminal

cases. This mistake was quite understandable when Clewis was decided in 1996 because this

Court had recently and 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.67 But as appellate courts

attempted to reconcile the five-zone civil factual-sufficiency standards with the heightened

burden of proof in criminal cases in which the State is required to prove every element

beyond a reasonable doubt, we began to realize that this civil standard of review did not align

with the criminal burden of proof. And we tinkered and tinkered with various reformulations

of this “factual sufficiency” standard of review in criminal cases in a vain attempt to

harmonize them.68


       67
           See, e.g., Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990) (applying the
civil standards of factual review of “against the great weight and preponderance of the evidence”
in a case in which the defendant appealed the jury’s rejection of his plea of incompetence
because the defendant had the burden to prove incompetence by a preponderance of the
evidence); Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App. 1994) (applying the civil
standards of factual review because defendant had both the burden of production and persuasion
for his affirmative defense of insanity).
       68
           See Jones v. State, 944 S.W.2d 642, 647-49 (Tex. Crim. App. 1996) (deciding that a
factual-sufficiency review requires the appellate court to review all of the evidence, not just the
evidence that supports a verdict; rejecting capital murder defendant’s factual sufficiency claim
because there was conflicting evidence of whether he intended to shoot the murder victim); Cain
v. State, 958 S.W.2d 404, 407-09 (Tex. Crim. App. 1997) (reversing lower court’s holding of
factual insufficiency because that court failed to defer to the jury’s determination of witness
credibility); Johnson v. State, 23 S.W.3d 1, 5-8 (Tex. Crim. App. 2000) (upholding lower court’s
finding of factual insufficiency based on witness’s express lack of certainty, but reminding
appellate court that, “[u]nless the available record clearly reveals a different result is appropriate,
                                                     Brooks Concurring Opinion       Page 24

2.     Clewis and Watson relied upon a false premise that evidence should be viewed in a
       neutral light when conducting a factual sufficiency review.

       In Watson v. State,69 we stated that the only difference between a factual-sufficiency

review and a legal-sufficiency review is that, under the former, an appellate court should

view the evidence in a neutral light, rather than in the light most favorable to the verdict.70

But it is a strange distinction that ignores the quality or credibility of evidence, and it is one

that has never been a part of Texas factual-sufficiency review in civil cases.71 Instead, it was


an appellate court must defer to the jury’s determination concerning what weight to give
contradictory testimonial evidence because resolution often turns on an evaluation of credibility
and demeanor, and those jurors were in attendance when the testimony was delivered.”);
Goodman v. State, 66 S.W.3d 283, 285-86 & n.5 (Tex. Crim. App. 2001) (attempting to follow
Justice Calvert’s five-zone analysis of factual insufficiency in civil cases and stating that, only
when the evidentiary scales tip “radically” toward a negative finding on an essential element may
the reviewing court exercise any “thirteenth juror” role and conclude that the jury’s verdict is
“clearly wrong”); Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (reiterating
the importance of giving deference to the factfinder’s credibility and weight determinations);
Zuniga v. State, 144 S.W.3d 477, 483-84 (Tex. Crim. App. 2004) (recognizing that the different
civil and criminal standards of proof are an important source of confusion in any attempt to
review criminal convictions for factual sufficiency; “Once again, the preponderance-of-the-
evidence language creeps into a factual-sufficiency review where the burden of proof at trial was
beyond a reasonable doubt. And, the Court’s statement that the reviewing court must use both
standards is confusing.”).
       69
            204 S.W.3d 404 (Tex. Crim. App. 2006).
       70
            Id. at 415.
       71
           I am unable to find any Texas Supreme Court case that even mentions the word
“neutral” in relation to a factual sufficiency review. In In re King’s Estate, 244 S.W.2d 660, 661
(Tex. 1951), the Supreme Court set out the applicable standard for reviewing “great weight and
preponderance” complaints. The court of appeals must “consider and weigh all of the evidence
in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes
that the verdict is so against the great weight and preponderance of the evidence as to be
manifestly unjust-this, regardless of whether the record contains some ‘evidence of probative
force’ in support of the verdict. The evidence supporting the verdict is to be weighed along with
the other evidence in the case, including that which is contrary to the verdict.” Id. at 664-65
                                                      Brooks Concurring Opinion       Page 25

created by the Austin Court of Appeals in Stone v. State,72 and simply imported, without

further analysis, into this Court’s decision in Clewis. Indeed, in Lancon v. State,73 a post-

Watson decision in 2008, we again rejected the “neutral” light analysis and held that it is the

jury’s sole prerogative to make credibility decisions. Appellate courts must defer to those

credibility assessments; they may not view all conflicting witness testimony as equally



(citation omitted). There is nothing in this case, or any other Texas Supreme Court case, that
suggests that all of the evidence must be viewed “neutrally,” as if the sheer quantity of evidence
were the only criterion for factual sufficiency. How extraordinary if the jury’s verdict should be
held to be “against the great weight and preponderance of the evidence” if seven gang members
testified that their fellow gang-member defendant was with them the night of the murder while
only two nuns testified that they saw the defendant commit the murder. Any jury is entitled to
disbelieve the seven gang members and credit the two nuns.
       72
           823 S.W.2d 375, 381 (Tex. App.—Austin 1992, pet. ref’d). In Stone, the court of
appeals stated:
        When the court of appeals conducts a factual-sufficiency review, the court does
        not ask if any rational jury, after viewing the evidence in the light most favorable
        to the prosecution, could have found the essential elements of the crime beyond a
        reasonable doubt. Factual-sufficiency review begins with the presumption that the
        evidence supporting the jury’s verdict was legally sufficient, i.e., constitutionally
        sufficient for the purposes of the Due Process Clause of the Fourteenth
        Amendment. Rather, the court views all the evidence without the prism of “in the
        light most favorable to the prosecution.” Because the court is not bound to view
        the evidence in the light most favorable to the prosecution, it may consider the
        testimony of defense witnesses and the existence of alternative hypotheses. The
        court should set aside the verdict only if it is so contrary to the overwhelming
        weight of the evidence as to be clearly wrong and unjust.
Id. The court of appeals then cited Cain v. Bain, 709 S.W.2d 175, 176 (1986), and In re King’s
Estate, 244 S.W.2d 660, 661 (Tex. 1951), but neither of these cases said anything about viewing
the evidence “in a neutral light” or “without the prism of ‘in the light most favorable’ to the party
with the burden of proof. They spoke only of reviewing all of the evidence when determining
whether the verdict was “against the great weight and preponderance of the evidence.” And that
is precisely what is required under the Jackson legal sufficiency review: an examination of all of
the evidence, but in the light most favorable to the jury’s verdict because the jury, not the
appellate court, was the chosen factfinder.
       73
            253 S.W.3d 699 (Tex. Crim. App. 2008).
                                                     Brooks Concurring Opinion       Page 26

credible.74 Witnesses are not fungible, some are credible and some are not. Neither juries

nor appellate courts must tally up the number of witnesses “neutrally” and then base a

sufficiency decision on the greater number.

       In sum, we have never been successful in our attempts to superimpose the five-zone

civil standards for sufficiency review on top of the constitutionally mandated legal

sufficiency review of a criminal conviction. These two standards of review depend upon

their distinctly different burdens of proof. Like oil and water, they do not mix. They are not

logically consistent, and they promote only confusion and conflation of two distinct concepts.

We are required to follow the heightened Jackson legal sufficiency formulation; we cannot

follow a lesser factual sufficiency formulation.

       I agree that it is time to consign the civil-law concept of factual sufficiency review in

criminal cases to the dustbin of history.

Filed: October 6, 2010
Publish




       74
          Id. at 705 (noting that factual insufficiency claim cannot be based on contradictory and
inconsistent witness testimony because “the jury is the sole judge of what weight to give such
testimony. . . . Appellate courts should afford almost complete deference to a jury’s decision
when that decision is based upon an evaluation of credibility.”).
