Affirmed and Majority and Concurring Opinions filed April 2, 2013.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-12-00540-CR

                         EX PARTE ROBYN M. REED


                    On Appeal from the 338th District Court
                             Harris County, Texas
                       Trial Court Cause No. 1164028-A


                  CONCURRING OPINION

      The applicant’s complaint that there is no evidence supporting the trial
court’s judgment convicting her of theft is cognizable on application for habeas-
corpus relief, and this court should address the merits of this complaint rather than
conclude that the complaint is not cognizable.

   History of the Cognizability of No-Evidence Complaints on Habeas Corpus

      To understand why the applicant’s complaint is cognizable, it is helpful to
review the historical underpinnings of the binding precedent that compels this
conclusion. Long before the Supreme Court of the United States decided Jackson
v. Virginia, the Court of Criminal Appeals of Texas held that an applicant’s
complaint that his conviction violated federal due process—because of
insufficiency of the evidence supporting the conviction—was not cognizable on
application for habeas-corpus relief. See Ex parte Banspach, 91 S.W.2d 365, 365
(Tex. Crim. App. 1936). See also Jackson v. Virginia, 443 U.S. 307, 318–19, 99
S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979).

      In 1960, in Thompson v. City of Louisville, the Supreme Court held that a
conviction violated due process because the record showed a complete lack of
evidence to support the conviction. See 362 U.S. 199, 199–205, 80 S.Ct. 624,
625–29, 4 L.Ed.2d 654 (1960). In light of this holding, the Court of Criminal
Appeals concluded that a complaint that there is no evidence, as opposed to
insufficient evidence, to support the conviction is cognizable on habeas corpus.
See Laflore v. State, 595 S.W.2d 862, 864 (Tex. Crim. App. 1980), overruled in
part on other grounds by Ex parte Martin, 747 S.W.2d 789, 793 (Tex. Crim. App.
1988); Ex parte Moffett, 542 S.W.2d 184, 185 (Tex. Crim. App. 1976). The Texas
high court stated that such complaints are cognizable on habeas corpus because
there is a violation of federal due process. See Laflore, 595 S.W.2d at 864; Ex
parte Moffett, 542 S.W.2d at 185.

      In 1979, in Jackson v. Virginia, the Supreme Court held a person convicted
in state court is entitled to a judgment of acquittal under the due process
protections of the United States Constitution if, after viewing all the evidence in
the light most favorable to the prosecution, no reasonable trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. See 443 U.S.
at 318–19, 99 S.Ct. at 2788–89. The Jackson court concluded that the no-evidence
legal standard articulated in Thompson v. City of Louisville was “simply inadequate

                                         2
to protect against misapplications of the constitutional standard of reasonable
doubt” because “‘[a] mere modicum of evidence may satisfy a ‘no evidence’
standard.’” Jackson, 443 U.S. at 320, 99 S.Ct. at 2789 (quoting Jacobellis v. Ohio,
378 U.S. 184, 202, 84 S.Ct. 1676, 1686, 12 L.Ed.2d 793 (Warren, C.J.,
dissenting)). The Jackson court noted that “[a]ny evidence that is relevant—that
has any tendency to make the existence of an element of a crime slightly more
probable than it would be without the evidence” might be deemed a “mere
modicum” of evidence. See id. The Supreme Court concluded that “it could not
seriously be argued that such a ‘modicum’ of evidence could by itself rationally
support a conviction beyond a reasonable doubt.” Id.

      Because the Court of Criminal Appeals had based the cognizability of a no-
evidence complaint on the violation of federal due process, an issue arose after
Jackson v. Virginia as to whether an insufficiency complaint under Jackson also
would be cognizable on habeas corpus. See Laflore, 595 S.W.2d at 864; Ex parte
Moffett, 542 S.W.2d at 185. The answer is that even after Jackson v. Virginia, the
Court of Criminal Appeals has continued to conclude that no-evidence complaints
are cognizable on habeas corpus but that insufficiency complaints are not. See Ex
parte McLain, 869 S.W.2d 349, 350 (Tex. Crim. App. 1994) (holding that
complaints regarding the sufficiency of the evidence are not cognizable on habeas
corpus, without addressing no-evidence complaints or any change in the rationale
for the cognizability analysis after Jackson v. Virginia); Ex parte Christian, 760
S.W.2d 659, 660–61 (Tex. Crim. App. 1988) (holding that complaints regarding
the sufficiency of the evidence are not cognizable on habeas corpus but that no-
evidence complaints are cognizable and concluding that no-evidence complaint
lacked merit); Ex parte Brown, 757 S.W.2d 367, 368–69 (Tex. Crim. App. 1988)
(same as Ex parte Christian). See also Ex parte Perales, 215 S.W.3d 418, 419–20


                                        3
(Tex. Crim. App. 2007) (stating in dicta that complaints regarding the sufficiency
of the evidence are not cognizable on habeas corpus but that no-evidence
complaints are cognizable). The rationale for this conclusion is the Texas high
court’s determination that a judgment supported by no evidence is a void judgment
that can be attacked collaterally at any time but that a judgment supported by
insufficient evidence is not a void judgment subject to collateral attack. See Nix v.
State, 65 S.W.3d 664, 667–68 & n.14 (Tex. Crim. App. 2001); Ex parte Cantrell,
112 S.W.3d 753, 754–56 (Tex. App.—Beaumont 2003, pet. ref’d). The Court of
Criminal Appeals has noted that cases in which the judgment is a nullity because
no evidence supports the conviction are “very rare situations.” Nix, 65 S.W.3d at
668 & n.14.

      Thus, under current habeas-corpus law, an important distinction is made
between a complaint that no evidence supports the judgment and a complaint that
insufficient evidence supports the judgment. See Nix, 65 S.W.3d at 667–68 & n.14;
Ex parte Christian, 760 S.W.2d at 660–61; Ex parte Brown, 757 S.W.2d at 368–
69; Ex parte Cantrell, 112 S.W.3d at 754–56. A no-evidence complaint may be
asserted under the legal standard from Thompson v. City of Louisville, which, since
1979, has not been used as a legal standard for determining federal due process
violations. See Jackson, 443 U.S. at 318–19, 99 S.Ct. at 2788–89. If no evidence
supports the judgment, the judgment is void, a nullity, and subject to collateral
attack at any time. See Nix, 65 S.W.3d at 667–68 & n.14. For this reason, no-
evidence complaints are cognizable on application for habeas-corpus relief. See
Nix, 65 S.W.3d at 667–68 & n.14; Ex parte Christian, 760 S.W.2d at 660–61; Ex
parte Brown, 757 S.W.2d at 368–69; Ex parte Cantrell, 112 S.W.3d at 754–56.
Complaints that the evidence is insufficient to support the judgment may be
asserted under the legal standard from Jackson v. Virginia. See Jackson, 443 U.S.


                                         4
at 318–19, 99 S.Ct. at 2788–89. Insufficiency complaints may be asserted on
direct appeal but are not cognizable on application for habeas-corpus relief because
insufficiency of the evidence does not make the judgment void. See Nix, 65
S.W.3d at 667–68 & n.14; Ex parte Cantrell, 112 S.W.3d at 754–56. Significantly,
cases in which no evidence supports the judgment are a complete subset of the
cases in which the evidence is insufficient to support the judgment. See Jackson,
443 U.S. at 318–20, 99 S.Ct. at 2788–89. In all cases in which there is no evidence
to support the judgment, the evidence is also insufficient to support the judgment,
but in some cases the evidence may be insufficient to support the judgment even
though the no-evidence standard is not satisfied. See id. Thus, if an appellant or
an applicant for habeas-corpus relief shows that no evidence supports the
judgment, by definition, the evidence is also legally insufficient to support the
judgment, regardless of whether the applicant asserted insufficiency.   See id.

    The Applicant’s No-Evidence Complaint: Cognizable on Habeas Corpus

      Both the form and the substance of applicant Robyn M. Reed’s complaint is
a no-evidence rather than an insufficiency-of-the-evidence complaint. The
applicant cites precedent regarding the cognizability of no-evidence complaints on
application for habeas-corpus relief, and the applicant proffers argument in support
of the proposition that no evidence supports the judgment. The applicant does not
assert that the evidence is insufficient, nor does she rely upon the legal standard
from Jackson v. Virginia. She complains that no evidence supports the judgment.
Thus, the applicant’s complaint is cognizable on application for habeas-corpus
relief, and the trial court’s and the majority’s conclusions to the contrary are
incorrect. See Nix, 65 S.W.3d at 667–68 & n.14; Ex parte Christian, 760 S.W.2d
at 660–61; Ex parte Brown, 757 S.W.2d at 368–69; Laflore, 595 S.W.2d at 864; Ex
parte Moffett, 542 S.W.2d at 185; Ex parte Cantrell, 112 S.W.3d at 754–56.

                                         5
      The majority concludes that the applicant’s complaint is not cognizable on
application for habeas-corpus relief because, on direct appeal, the applicant
asserted the same or similar arguments in support of her appellate complaint that
the evidence supporting her conviction was insufficient under the legal standard
from Jackson v. Virginia. But, an argument that there is no evidence also will
support an argument that there is insufficient evidence, and the Court of Criminal
Appeals has stated that a judgment supported by no evidence is accorded no
respect, is a nullity, and is subject to collateral attack at any time. See Nix, 65
S.W.3d at 667–68. The majority relies upon Ex parte Cantrell, a case in which the
court held that the substance of an applicant’s argument was an insufficiency-of-
the-evidence complaint rather than an actual-innocence complaint. See Ex parte
Cantrell, 112 S.W.3d at 754–56.        The Ex parte Cantrell court held that the
applicant’s argument was not cognizable because it was an insufficiency-of-the-
evidence complaint. See id. Unlike the complaint in today’s case, the applicant’s
complaint in Ex parte Cantrell was not a no-evidence complaint, either in form or
substance. See id. The Ex parte Cantrell court indicated that, had the applicant in
that case asserted a no-evidence complaint, that complaint would have been
cognizable. See id. at 754. The Ex parte Cantrell case does not support the
majority’s conclusion that the applicant’s no-evidence complaint is not cognizable.
Because the applicant’s no-evidence complaint is cognizable on application for
habeas-corpus relief, this court should address the merits of this complaint.

                                    Conclusion

      A complaint that no evidence supports a judgment of criminal conviction is
cognizable on application for habeas-corpus relief, even though it may be very rare
for such a complaint to have merit. Both the form and the substance of the
applicant’s complaint in today’s case is a no-evidence rather than an insufficiency-

                                          6
of-the-evidence complaint.    Thus, under binding precedent from the Court of
Criminal Appeals, the proper course is for this court to address the merits of this
complaint. A merits review, however, would not result in a different judgment as
today’s case in not one of the “very rare situations” in which the judgment can be
declared a nullity because no evidence supports the conviction. Because the record
does not show a complete lack of evidence supporting the conviction, the
applicant’s no-evidence complaint lacks merit. Accordingly, though I respectfully
decline to join the majority opinion, I concur in the court’s judgment.




                                       /s/       Kem Thompson Frost
                                                 Justice


Panel consists of Justices Frost, Christopher, and Jamison (Christopher, J.,
majority)

Publish — TEX. R. APP. P. 47.2(b).




                                             7
