              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                       NO. PD-0861-07



                            JASON EARL WOOLEY, Appellant

                                               v.

                                  THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTEENTH COURT OF APPEALS
                            HARRIS COUNTY

                 M EYERS, J., filed a concurring opinion.

                                 CONCURRING OPINION

      The factual-sufficiency review standard has been continuously criticized for being

virtually indistinguishable from the legal-sufficiency standard of review. See Marshall v.

State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Now, the majority unnecessarily

muddles the waters even more by applying the Malik1 rule to factual sufficiency. I agree

with the statement in Judge Hedges’ concurring opinion that, “The reasoning in



       1
           953 S.W.2d 234 (Tex. Crim. App. 1997).
                                                                         Wooley Concurrence - 2

Malik–that the issue in legal sufficiency review is whether the evidence establishes the

essential elements of the offense beyond a reasonable doubt–is a poor fit in factual

sufficiency analysis. . . .” 2 Although we have never explicitly stated that the Malik rule

applied only to legal sufficiency, it seems obvious that a hypothetically correct jury

charge has no place in a factual-sufficiency review. When performing a factual-

sufficiency analysis, the reviewing court has already determined that the evidence is

legally sufficient as compared to a hypothetically correct jury charge, so there is no need

to examine the elements of the jury charge again. The reviewing court’s sole concern

when performing a factual-sufficiency review should be whether, when weighing all of

the evidence, the evidence supporting the verdict is so weak as to render the verdict

clearly wrong or manifestly unjust, or whether, considering conflicting evidence, the

jury’s verdict is against the great weight and preponderance of the evidence. Watson v.

State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).

       Although I disagree with adjusting the factual-sufficiency review standard once

again, I do agree that, after examining all of the evidence presented at trial and viewed in

a neutral light, the evidence was factually sufficient to support Appellant’s conviction.

Therefore, I concur with the majority’s judgment, but not its reasoning.

                                                            Meyers, J.

Filed: June 25, 2008
Publish

       2
           Wooley v. State, 223 S.W.3d 732, 740 (Tex. App.–Houston [14th Dist.] 2007).
