





Stone v. State                                                      



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-90-149-CR



DON STONE,

	APPELLANT

vs.



THE STATE OF TEXAS,

	APPELLEE



 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT,

NO. 101,323, HONORABLE BOB PERKINS, JUDGE PRESIDING

 




PER CURIAM
	Appellant was convicted of forgery by possession, and punishment, enhanced by
prior felony convictions, was assessed at imprisonment for ten years.  Tex. Penal Code Ann.
§ 32.21(b) (1989).  In two points of error, the appellant claims that the trial court erred in
rendering judgment against him because:  (1) the evidence is insufficient as a matter of law to
establish that appellant knew the check was forged; and (2) the jury's verdict was against the great
weight and preponderance of the evidence because the proof was insufficient to establish that
appellant knew the check was forged.  We will affirm the judgment of conviction.
	Appellant was charged with the offense of possession of a forged document with
intent to pass that document. (1)  Appellant was arrested when he attempted to cash a check for
$584.34 drawn on the payroll account of the Davis Brothers Construction Company.  The check's
drawer was Mark Brown, an unidentified and perhaps fictitious person, who was not authorized
to sign checks for the construction company.  Appellant presented the check at the Money Box,
a commercial check-cashing establishment in Austin, and used a Department of Public Safety
identification card in the name of Reginald Frank Sedberry.  The Money Box clerk, aware that
checks belonging to the construction company had been stolen, photographed appellant and called
the police.  At trial appellant testified and denied presenting both the forged check and the
Sedberry identification, claiming instead that a person ahead of him left the check and
identification at the counter.  The jury chose not to believe appellant's account.
	In his first point of error appellant alleges that the evidence is insufficient as a
matter of law to establish that he knew the check was forged.  Specifically, appellant asserts that
the State failed to prove that he knew that Mark Brown did not lawfully authorize the check.  We
disagree.
	Appellant's knowledge that the check was forged may be proved by circumstantial
evidence.  Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985); Wilson v. State, 605
S.W.2d 284, 286 (Tex. Crim. App. 1980).  In Wilson the Court of Criminal Appeals held that
the totality of the evidence indicated that appellant had knowledge of a forged drawer's signature
on a check:  (1) Wilson attempted to cash a paycheck made out to a third party, Caldwell; (2)
Wilson falsely held himself out as Caldwell; (3) the drawer on the check was a person who never
worked for Caldwell's employer; and (4) Wilson did not use his own identification when he
attempted to cash the check.  Wilson, 605 S.W.2d at 286.  The evidence in this cause is
substantially identical to that in Wilson.  A rational trier of fact could have found appellant guilty
beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin v. State,
614 S.W.2d 155, 159 (Tex. Crim. App. 1981).  Point of error one is overruled.
	In his second point of error appellant alleges that the jury's verdict was against the
great weight and preponderance of the evidence. (2)  The Court of Criminal Appeals in 1990 issued
its opinion in Meraz v. State, holding that the courts of appeals are constitutionally given the
authority to determine whether a jury finding on a matter the defendant must prove is factually
insufficient.  785 S.W.2d 146, 154 (Tex. Crim. App. 1990).  The court in Meraz expressed no
opinion on the role of the courts of appeals in reviewing the sufficiency of the evidence relative
to the proof of the elements of the offense.  Id. at 156.  This issue of first impression is now
squarely before us, and we hold that the courts of appeals have such power.
	We note that the Fourteenth Court of Appeals has stated repeatedly that factual-sufficiency reviews by the courts of appeals are limited by Meraz to instances when the criminal
defendant must prove an affirmative defense or other fact issue which the law has designated that
the defendant has the burden of proof by a preponderance of the evidence.  Coleman v. State, 804
S.W.2d 563, 565 (Tex. App. 1991, no pet.); (3) Brown v. State, 804 S.W.2d 566, 571 (Tex. App.
1991, pet. ref'd); Marsh v. State, 800 S.W.2d 607, 610 (Tex. App. 1990, pet. ref'd); Hunter v.
State, 799 S.W.2d 356, 358-59 (Tex. App. 1990, no pet.); Mason v. State, 798 S.W.2d 854, 857
(Tex. App. 1990, no pet.); Gaynor v. State, 788 S.W.2d 95, 97 (Tex. App. 1990, pet. ref'd). 
While it is conceivable that the Court of Criminal Appeals may one day so hold, we respectfully
disagree that Meraz foreclosed the possibility of factual-sufficiency review of the elements of the
offense in a criminal appeal.  See Garza v. State, 794 S.W.2d 497, 499 (Tex. App. 1990, pet.
ref'd) (holding that the extent of the courts of appeals's power to conduct a factual-sufficiency
review in a criminal appeal is an undecided question).
	In order to understand fully the constitutional issues present in this appeal, we must
briefly review the historical development of the Texas appellate courts.  The Texas Supreme Court
originally exercised appellate jurisdiction in both civil and criminal cases until the adoption of the
current, 1876 Texas Constitution.  Tex. Const. of 1869, art. V, § 3 (amended 1873); Tex. Const.
of 1866, art. IV, § 3; Tex. Const. of 1861, art. IV, § 3; Tex. Const. of 1845, art. IV, § 3;
Repub. Tex. Const. of 1836, art. IV, § 8.  The 1876 constitution created a "court of appeals" and
assigned this court appellate jurisdiction in all criminal cases and some civil cases.  Tex. Const.
art. V, § 6 (1876, amended 1891).  The constitution was amended in 1891, creating the courts of
civil appeals and renaming the "old" court of appeals the Court of Criminal Appeals.  Tex. Const.
art. V, § 4 (1891, amended 1966, 1977), § 6 (1891, amended 1978, 1980, 1985).  The courts of
civil appeals were given criminal appellate jurisdiction and renamed courts of appeals by a 1980
constitutional amendment, effective September 1, 1981. (4)  Tex. Const. art. V, § 6 (1980, amended
1985).
	In article V, section 6 of the Texas Constitution, that document delegates to the
courts of appeals "appellate jurisdiction co-extensive with the limits of their respective districts." 
The next sentence states, "Provided, that the decision of said courts shall be conclusive on all
questions of fact brought before them on appeal or error."  The proviso, known as the "factual-conclusivity clause," is not a grant of power to the courts of appeals to conduct a factual-sufficiency review.  Rather, the proviso implicitly recognizes that power as being within the
"appellate jurisdiction" delegated to those courts in the preceding sentence, by prescribing the
legal effect of an exercise of their decisions on questions of fact--their decisions "shall be
conclusive."  The 1891 amendment restricted, in express terms, the pre-existing jurisdiction of
the supreme court over questions of fact, and confined the supreme court to questions of law. 
Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex. 1988); Herbert v. Herbert, 754
S.W.2d 141, 143 (Tex. 1988); Choate v. San Antonio & A.P. Ry., 44 S.W. 69, 69 (Tex. 1898). 
The question then is whether the appellate criminal courts of this State (5) had jurisdiction over
questions of fact before 1891.  We conclude that they did.
	In Bailey v. Haddy the Supreme Court of the Republic of Texas held that a court
operating under a general grant of "appellate jurisdiction" had the power to review both the facts
and the law. (6)  Dallam 376, 378 (Tex. 1841).  This power was not restricted to civil cases. 
Republic v. Smith was decided in the same year as Bailey, and the court said, "[T]he Defendant
in a criminal prosecution in the District Court has the right of appeal to this Court from the
judgment, or sentence of the Court below, and to have the facts as well as the Law, at his own
election, opened for re-examination."  Dallam 407, 410-11 (Tex. 1841).
	We note that in an older pre-Meraz opinion, White v. State, the Court of Criminal
Appeals held that it did not have fact jurisdiction as did the courts of civil appeals.  591 S.W.2d
851, 856 (Tex. Crim. App. 1979).  However, White was based on the presumption that the
factual-conclusivity clause was an affirmative grant of power to the courts of civil appeals.  This
view was expressly rejected in Meraz, and we presume that White has been impliedly overruled
on this issue.
	In addition to the case law acknowledging the power of the appellate courts to
review questions of fact, the legislature has explicitly authorized such review by statute since
1856:


The Supreme Court may revise the judgment in a criminal action, as well upon the
law as upon the facts; but when a cause is reversed for the reason that the verdict
is contrary to the weight of the evidence, the same shall in all cases be remanded
for a new trial. (7)


There is nothing in either the text or history of the statute that limits the criminal appellate court's
power to review the facts merely to ensure that the conviction is legally sufficient, i.e., that
evidence exists, viewed in the light most favorable to the prosecution, such that a rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.  See
Jackson, 443 U.S. at 318-19 (1979); Griffin, 614 S.W.2d at 159 (Tex. Crim. App. 1981).
	Having established that the courts of appeals have jurisdiction over questions of
fact, we must decide whether this power conflicts with our obligation under the federal
constitution to ensure the legal sufficiency of the evidence to support a criminal conviction.  See
Jackson, 443 U.S. at 318-19.  We hold it does not.
	The critical inquiry on review of the legal sufficiency of the evidence to support
a criminal conviction is whether the evidence in the record, when viewed in the light most
favorable to the prosecution, supports a finding of guilt beyond a reasonable doubt.  The
reviewing court is not required to ask whether it believes the evidence at trial established guilt
beyond a reasonable doubt.  Instead, the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  Id.  Implicit in the Jackson analysis
is an important premise that the jurisdiction of the appellate court is limited to questions of law,
as the ordinary appellate court is.  The Jackson Court noted that its test for the constitutional
adequacy of the evidence "gives 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."  Id., 443 U.S. at 319.  The Jackson test is the minimum standard required
to enforce the Fourteenth Amendment due process guarantees of the federal constitution.  Id. at
320 n.12.
	The Jackson test for the constitutional adequacy of the evidence does not refer to
an appellate court's potential factfinding power:


    The question whether the evidence is constitutionally sufficient is of course
wholly unrelated to the question of how rationally the verdict was actually reached. 
Just as the standard announced today does not permit a court to make its own
subjective determination of guilt or innocence, it does not require scrutiny of the
reasoning process actually used by the factfinder--if known.


Id. at 320 n.13 (emphasis added).  Nothing in Jackson prohibits the states from setting higher
standards of review.  Griffin, 614 S.W.2d at 159 n.5.
	As previously mentioned, the Jackson test does not logically preclude factual-sufficiency review.  Jackson requires the appellate court to view the evidence in the light most
favorable to the prosecution.  Jackson permits the states to devise tests for factual-sufficiency
review that do not indulge in presumptions in favor of either side.  Because Jackson does not
preclude factual-sufficiency review and because we see nothing in the Meraz opinion that limits
the pre-existing factual-sufficiency review power of the courts of appeals to matters the defendant
must prove, we conclude that a criminal defendant is entitled to a factual-sufficiency review as
a matter of state constitutional law.
	In the Meraz opinion Judge Duncan stated, "a review of the facts relative to proof
of an affirmative defense does not inexorably lead to a review of facts relative to proof of the
elements of the offense."  Meraz, 785 S.W.2d at 153.  This statement does not imply that a
review of the facts relative to proof of the elements of the offense is somehow impermissible, but
rather highlights the fact that the Meraz court was only discussing the existence of factual-sufficiency review as to an affirmative defense.  Meraz did not decide whether factual-sufficiency
review exists as to proof of the elements of the offense.  However, if Meraz is correct and the
Texas Constitution by implication places a check on the power of juries to find the facts relating
to a criminal defendant's affirmative defense, then that same review logically exists over the jury's
power to find the facts relating to a criminal defendant's guilt.  Article V, section 6 states, "the
decision of said courts shall be conclusive on all questions of fact brought before them on appeal
or error"; it does not state that "the decision of said courts shall be conclusive on all questions
of fact, except for those relating to the elements of the offense in a criminal case, brought before
them on appeal or error."
	We are aware of one example in which both factual- and legal-sufficiency reviews
in criminal cases are conducted--federal courts-martial.  In United States v. Turner, the United
States Court of Military Appeals distinguished factual- and legal-sufficiency review in a criminal
case.  25 M.J. 324 (C.M.A. 1987).  The test for legal sufficiency is the Jackson test, but this does
not preclude the factual-sufficiency review mandated by article 66(c) of the Uniform Code of
Military Justice. (8) Turner correctly stated that legal sufficiency is the only review available in an
appellate court that lacks jurisdiction over factual issues, such as the United States Court of
Military Appeals.  Turner, 25 M.J. at 325.  In this respect, the United States Court of Military
Appeals is like the Texas Supreme Court and Texas Court of Criminal Appeals in that these
appellate courts at the top of their respective court systems have the power to review only matters
of legal sufficiency, while the intermediate appellate courts, the United States Courts of Military
Review and the Texas courts of appeals, have the power to review matters of both legal and
factual sufficiency.
	A potential trap of the Meraz-approved against-the-great-weight-and-preponderance
review in criminal cases is that it may be confused with the burden of proof.  It should not.  A
great-weight-and-preponderance point of error and a factually-insufficient-evidence point of error
both challenge the factual sufficiency of the evidence, but by convention in civil cases, different
names are used to identify which party had the burden of proof.  When the jury gives an answer
adverse to a party on an issue on which the party did not have the burden of proof, the jury
finding is properly attacked by a factually-insufficient-evidence point of error.  When the jury
gives an answer adverse to a party on an issue on which the party did have the burden of proof,
the jury finding is properly attacked by an against-the-great-weight-and-preponderance point of
error.  See Michol O'Connor, Appealing Jury Findings, 12 Hous. L. Rev. 65, 67 (1974). 
Technically, therefore, the criminal defendant would attack the jury's guilty verdict by means of
a factually-insufficient-evidence point of error, although a failure to frame properly the point of
error should not result in waiver.  A criminal defendant properly attacks the jury's failure to find
the elements of his affirmative defense by means of an against-the-great-weight-and-preponderance
point of error.  Because the criminal defendant's burden of proof on the affirmative defense is by
a preponderance of the evidence, the phrasing of the point of error is logically consistent with the
underlying burden of proof, just as it is in a civil case.  A factually-insufficient-evidence point of
error, however, does not import the preponderance-of-the-evidence burden of proof into a factual-sufficiency review of a jury's finding against a criminal defendant on an element of the offense. 
We must not allow the historical semantics used in civil cases to obscure the proper nature of
factual-sufficiency review.
	What then is the test to be followed in criminal cases?  Meraz held that as to a
factual-sufficiency review of the defendant's affirmative defenses, the correct standard is that used
by the Texas Supreme Court.  Meraz, 785 S.W.2d at 155.  We see no reason why the civil test
should not be adopted for a factual-sufficiency review of the elements of the criminal offense as
well.
	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.  Cain v.
Bain, 709 S.W.2d 175, 176 (1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). 
Before reversing a conviction on this basis, the court should detail the evidence and clearly state
why the jury's verdict is so contrary to the overwhelming weight of the evidence as to be
manifestly unjust, why it shocks the conscience, or why it clearly demonstrates bias; and further
state how the evidence contrary to the jury's verdict overwhelmingly outweighs the evidence that
supports the verdict.  Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), cited in Meraz,
785 S.W.2d at 154 n.2.
	Having established the test for factual-sufficiency review of the elements of the
offense, we apply that test to this cause.  After considering and weighing all the evidence, we
cannot conclude that the jury's verdict is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust.  We, therefore, overrule point of error two. (9)
	Our opinion in this cause is not motivated by a desire to arrogate power to the
courts of appeals.  We reach the conclusion that our authority to review the factual sufficiency of
the evidence extends to criminal cases only after much thought and deliberation.  We are
convinced by our analysis of the opinions interpreting the Texas Constitution over the past century
and a half that we have been given this authority whether we want it or not.  Accordingly, we are
duty-bound to exercise the full extent of the constitutional grant of appellate jurisdiction when
requested by the litigants.
	The judgment of conviction is affirmed.

[Before Justices Powers, Jones and B. A. Smith]
Affirmed
Filed:   January 8, 1992
[Publish]
1.  1  The Penal Code defines forgery as:

(a)	For the purposes of this section:

	(1)	"Forge" means:

		(A)	to alter, make, complete, execute, or authenticate any writing so that
it purports:

			(i)	to be the act of another who did not authorize that act;
			. . . .
		(B)	to issue, transfer, register the transfer of, pass, publish, or otherwise
utter a writing that is forged within the meaning of Paragraph (A) of
this subdivision; or

		(C)	to possess a writing that is forged within the meaning of Paragraph
(A) with intent to utter it in a manner specified in Paragraph (B) of
this subdivision.
	. . . .
(b)	A person commits an offense if he forges a writing with intent to defraud or
harm another.

Tex. Penal Code Ann. § 32.21 (1989).
2.  2  Appellant has separated his legal-sufficiency and factual-sufficiency complaints in two
separate points of error, avoiding the ambiguity of merely alleging that the evidence is
"insufficient."  See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).  Practitioners should also
note that the provision in the appellate rules which allows legal-sufficiency and factual-sufficiency
complaints to be combined in a single point of error is applicable only in civil cases.  Tex. R.
App. P. Ann. 74(d) (Pamph. 1991).
3.  3  The Fourteenth Court of Appeals stated in Coleman that the appellate court's determination
that the evidence was sufficient to allow a rational trier of fact to find beyond a reasonable doubt
that appellant was guilty logically precludes a determination that the jury's verdict was against the
great weight and preponderance of the evidence.  This is an erroneous premise, however, because
the appellate court does not merely determine that the evidence was sufficient to allow a rational
trier of fact to find beyond a reasonable doubt.  As will be discussed in further detail, the correct
test is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.  In conducting its factual-sufficiency review, the appellate court does not indulge in
presumptions in favor of either side.
4.  4  Article V, section 6 was amended in 1978 to allow a court of appeals to have more than
three justices and to sit in sections of three justices each, and in 1985 to change the name of the
territorial designation from "Supreme judicial districts" to "court of appeals districts," and the
titles of "Associate Justices" to "Justices."
5.  5  The criminal appellate courts were the supreme court from 1836 to 1876, and the court of
appeals from 1876 to 1891.
6.  6  The plenary grant of appellate jurisdiction, including the power to conduct factual-sufficiency reviews, was a result of the blending of common-law, civil-law, and equity courts in
Texas.  See Cropper, 754 S.W.2d at 648-49; Bailey, Dallam 376, 378 (Tex. 1841).
7.  7  1856 Tex. Code Crim. Proc., § 2, art. 744, at 141; repealed and recodified as 1879 Tex.
Code Crim. Proc., § 2, art. 870, at 103 (replacing "Supreme Court" with "court of appeals");
impliedly amended by 1892 Tex. Gen. Laws, 1st C.S., ch. 16, § 42, at 39 (replacing "court of
appeals" with "court of criminals appeals"); repealed and recodified as 1895 Tex. Code Crim.
Proc., § 2, art. 905, at 124; recodified as 1911 Tex. Code Crim. Proc., § 2, art. 939, at 269;
repealed and recodified as 1925 Tex. Code Crim. Proc., § 2, art. 848, at 135; repealed and
recodified as Code of Criminal Procedure, 2 1965 Tex. Gen. Laws, ch. 722, art. 44.25, at 516;
amended by 1981 Tex. Gen. Laws, ch. 291, § 134, at 291 ("The court 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.") (Tex. Code Crim. Proc. Ann. art. 44.25 (Supp. 1992)).  The current law, of course,
is limited by the factual-conclusivity clause in those cases when the courts of appeals have
intermediate criminal appellate jurisdiction.  Tex. Const. art. V, § 6.
8.  8  Article 66(c) requires the courts of military review, the intermediate appellate court of the
armed services, to "weigh the evidence, judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the trial court saw and heard the witnesses." 
Uniform Code of Military Justice art. 66(c), 10 U.S.C. § 866(c) (1988).  The United States
Courts of Military Review have both the power to find and unfind facts, while the Texas courts
of appeals only have the power to unfind facts.  We, of course, are not bound by the test for
factual-sufficiency review set out in Turner, nor do we express any opinion on whether that test
is correct.

        Texas has adopted a similar provision for courts-martial involving members of the state
military forces.  Texas Code of Military Justice, Tex. Gov't Code Ann. § 432.108(a) (1990).
9.  9  If the Court had sustained appellant's factual-sufficiency point, we would follow the civil
practice and reverse the judgment of the trial court and remand the cause for a new trial, a result
that apparently does not offend the Double Jeopardy Clause of the Fifth Amendment.  See Tibbs
v. Florida, 457 U.S. 31, 32 (1982).

