

Opinion issued October 13, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00746-CR
———————————
Jacob Matthew Kiffe, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 228th District Court  
Harris County,
Texas

Trial Court Case No. 1195811
 

 
CONCURRING OPINION
Because the evidence is
legally sufficient to support the conviction of appellant, Jacob Matthew Kiffe,
of the offense of driving while intoxicated, I concur in the judgment of this
Court.  However, I write separately to
explain why I do so in regard to the constitutional issues and the question of
fact presented to this Court by appellant in light of my concurring opinion in Ervin
v. State, 331 S.W.3d 49, 56–70 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)
 (Jennings,
J., concurring).  
In his first issue, appellant argues that
this Court, which has conclusive and final jurisdiction over his question of
fact, should not apply a legal-sufficiency standard of review to address his
question of fact, which he presents in his third issue, because doing so
deprives him of his state constitutional and statutory right to have his
question of fact addressed as a question of fact and his appellate remedy of a
new trial.  See Tex. Const. art. V, § 6(a); Tex. Code Crim. Proc. Ann. art. 44.25 (Vernon 2006) (entitled,
“Cases Remanded”).  He asserts that
applying the legal-sufficiency standard of review to his question of fact and depriving
him of his appellate remedy of a new trial violates his federal and state
rights to due process of law.  See U.S.
Const. amends. V, XIV; Tex. Const. art. I, § 19.
Given the express language of article V,
section 6 of the Texas Constitution and article 44.25 of the Texas Code of
Criminal Procedure, it is readily apparent that answering appellant’s question
of fact as a purely legal question violates the United States Constitution’s
guarantee of due process of law, as well as its guarantee of the equal
protection of the laws, because it, in fact, deprives him of his
well-established Texas appellate remedy of a new trial, recognized in the Texas
Constitution and by the Texas Legislature in article 44.25.[1]  See U.S.
Const. amends. V, XIV; Griffin v.
Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590 (1956) (concluding in states that
provide for appellate review, criminal defendant is entitled to protections
afforded under Due Process and Equal Protection Clauses of United States
Constitution); see also M.L.B. v. S.L.J., 519 U.S. 102, 111, 117
S. Ct. 555, 561 (1996) (emphasis added) (quoting Rinaldi v. Yeager, 384 U.S. 305, 310,
86 S. Ct. 1497, 1500 (1966)) (“This
Court has never held that the States are required to establish avenues of
appellate review, but it is now fundamental that, once established, these
avenues must be kept free of unreasoned distinctions that can only impede open
and equal access to the courts.”).
However, as I noted in Mosley v. State, this Court in Ervin, in light of the Texas Court of Criminal Appeal’s
plurality opinions in Brooks v. State,[2] decided to answer questions of fact in criminal appeals
as pure questions of law by applying the legal-sufficiency
appellate standard of review to fact questions and viewing the evidence in the
light most favorable to the prosecution, not neutrally reweighing it.  Mosley
v. State, Nos. 01-08-00937-CR, 01-08-00938-CR, 2010 WL 5395655 (Tex. App.—Houston
[1st Dist.] Dec. 30, 2010, pet. ref’d) (Jennings, J., concurring); see Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. App. 2010) (Hervey, J., joined
by Keller, J., Keasler, J., and Cochran, J.); see id. at 912–26 (Cochran, J., joined
by Womack, J., concurring) (purporting to overrule use in criminal cases of
factual-sufficiency appellate standard of review, which was consistent with
Texas Supreme Court precedent and articulated in Clewis v. State, 922 S.W.2d 126, 134–36 (Tex. Crim. App.
1996)); see
also Jackson, 443 U.S. 307, 99 S. Ct. 2781 (articulating legal-sufficiency standard of review in
criminal cases).  Although the majority in
Ervin erred in doing so, this Court
did have jurisdiction to so err, and, unless this Court subsequently overrules
Ervin, we must accept Ervin as binding precedent.  See Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964).  Nevertheless, appellant’s issues have merit and Ervin should be overruled.   
To understand what went wrong in Ervin, one must understand that Texas has a judicial structure,
which, in the words of some members of the Texas Supreme Court, is a
“jurisdictional mishmash ‘unimaginably abstruse,’ a tangle that has ‘gone from
elaborate to Byzantine.’”  In re
Reece, 341 S.W.3d 360, 382 (Tex. 2011) (Willett, J., concurring).  In the words of Justice Willett, our “[f]ragmented [s]tructure is [m]uch [m]aligned, and
[d]eservedly [s]o.”  Id. at 381.  As he explained in Reece:
The convoluted make-up of the Texas judiciary—“one of the most complex
in the United States, if not the world”—does not lack for critics, from the litigants who
endure it, the lawyers who navigate it, and the judges who lead it.  In 1991, this Court’s appointed Citizens’
Commission on the Texas Judicial System reached a stark but unsurprising
conclusion: “Texas has no uniform judicial framework to guarantee the just,
prompt and efficient disposition of a litigant’s complaint. . . .  With the passage of time, the organization of
the courts has become more, not less cumbersome.”  That critique mirrors
one that same year from the Texas Research League (“TRL”), which former Chief
Justice Phillips had asked to scrutinize our judicial structure and suggest
concrete improvements.  The system’s
mind-numbing complexity led TRL to lament in May 1991 that the Texas judiciary
was in “disarray” and “ill-equipped to meet the needs of the 21st century,”
adding, “Texas does not have a court system in the real sense of the word.”  Indeed,
“assigning the appellation ‘system’ to our state courts might require a long
stretch of the imagination.”  Nothing has improved, and interestingly, the
most strenuous critics, it seems, are those who know the system best: the judges.
 
Id. at 381–82 (citations omitted).  In regard to the fact that Texas has not one,
but two courts of last resort, Justice Willett observed, “our dichotomized system invites inter-court confusion, and as
Texas history shows, inter-court clashes,” including the fact that “conflicts
between the dual courts have arisen over
the conclusivity of the courts of appeals’ factual determinations.”  Id.
at 384. (emphasis added).  Indeed, some members of the Texas Court of
Criminal Appeals have expressed their concern that “this State’s bifurcated
judicial process could sometimes generate conflicting decisions at the highest
level on identical questions of law.”  State ex rel. Holmes
v. Honorable Court of Appeals for the Third District, 885 S.W.2d 389, 418–19 (Tex. Crim. App.
1994) (Meyers, J., dissenting). 

Such is the case
here.  In regard to appellate challenges based on the factual
insufficiency of the evidence, the factual-conclusivity clause of the Texas
Constitution provides in no uncertain terms that
[T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.
 

Tex. Const. art. V, §
6(a) (emphasis added).  The Texas Supreme Court has long recognized, under the express
language of article V, section 6 that its jurisdiction is confined to
addressing questions of law and Texas’ intermediate appellate courts have conclusive
and final jurisdiction over questions of fact and the ability to award a new
trial.  See Pool v. Ford Motor
Co., 715 S.W.2d 629, 633–35 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661–62
(1951); Choate v. San
Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898);  Mo. Pac. Ry. v.
Somers, 78 Tex. 439, 14 S.W. 779, 779 (1890).  Indeed, “it is the right and duty of the
court [of appeals] to set aside a verdict, when it is against such a
preponderance of the evidence that it is clearly wrong.”  Somers, 14
S.W. at 779.  
On
the other hand, our court of criminal appeals has struggled with the express
language of the factual-conclusivity clause and its implications.  The court has in the
past been criticized because, “in spite of a constitutional mandate to the
contrary,” it had, unlike the supreme court, “continue[d] to refuse to
recognize the authority of the courts of appeals to determine questions of
factual sufficiency of the evidence.” 
Susan Bleil & Charles Bleil, The Court of Criminal
Appeals Versus the Constitution: The Conclusivity Question, 23 St.
Mary’s L.J. 423, 424
(1991).  Yet,
in fact, “[t]here is no sound basis for the disparate interpretations of a
single constitutional provision based on whether the matter on appeal is civil
or criminal in nature.”  Id.   
  
          Regardless of how complex our judicial
system may be and the seemingly inevitable conflicts in constitutional
interpretation by our two courts of last resort, it is still our job, as
judges, to sort through the “mishmash,” resolve the issues presented to us in
accordance with the law, and fulfill our sworn duty to preserve, protect, and
defend the Texas Constitution, our pole star. 
We, as an intermediate court of appeals, have an express,
well-established, and long-recognized constitutional and statutory duty to
address appellant’s question of fact as a question of fact and, if he prevails,
to remand his case for a new trial.  See Tex.
Const. art. V, § 6(a); Tex. Code Crim. Proc. Ann. art. 44.25; Pool, 715 S.W.2d at 633–35; In re King’s Estate, 244 S.W.2d at 661–62; Choate, 44 S.W. at 69; Somers, 14 S.W. at 779.  And our “action upon
such questions is made final, and not subject to be reviewed by [our higher]
court[s].”  Choate, 44 S.W. at 69 (emphasis
added).  As recently recognized by the
court of criminal appeals itself, “[t]he Factual Conclusivity Clause gives final
appellate jurisdiction to the court of appeals on questions of fact brought before
the court.”  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (emphasis added).
          It is true that the court of criminal appeals has
characterized its holding in Brooks,
in which it purported to substitute a legal-sufficiency standard of appellate
review for a factual sufficiency standard, as “abolishing” factual sufficiency
review in criminal cases in Texas.  See Howard v. State, 333 S.W.3d 137, 138
n.2 (Tex. Crim. App. 2011).  However, three years prior to issuing its opinion in Clewis, the court itself
acknowledged that it simply may not order Texas courts of appeals to use a
legal-sufficiency appellate standard of review to decide the questions of fact
brought before them on appeal.  Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex. Crim. App. 1993).  Recognizing that it
may not “interfere[ ] with the fact jurisdiction of the intermediate appellate
courts,” the court emphasized that it is “not constitutionally authorized to
adopt a standard of review for the court[s] of appeals . . . inconsistent with Art. V, § 6 of [the Texas]
Constitution.”  Id. at 853 (emphasis added)
(quoting Meraz v. State, 785 S.W.2d 146, 153 (Tex. Crim. App. 1990)).  Any such action
taken by the court of criminal appeals is, in its own words, “void ab initio,” i.e., from its inception.  Id.   
It is important to
note that although the court of criminal appeals in Brooks overruled Clewis
in regard to articulating its new appellate standard for factual-sufficiency claims,
it did not overrule any of its jurisprudence acknowledging our “final
appellate jurisdiction” over the “questions of fact
brought before [us].”  See Laster, 275 S.W.3d at 518–19 (emphasis added).  In fact, in Roberts v.
State, the same five judges who in Brooks
purported to substitute a legal-sufficiency standard of review for a factual-sufficiency
standard of review noted:   
Factual-sufficiency
jurisprudence in civil cases is very persuasive in criminal cases like this
because factual-sufficiency jurisprudence in criminal cases is
meant to be “in line with civil practice.”  See Watson, 204 S.W.3d at 415. 
The factual-conclusivity clause in Article V, Section 6, of the Texas
Constitution, makes a direct-appeal court’s factual-sufficiency
decision final and conclusive upon this Court.[]  See Watson, at 439.  This Court’s review of a direct-appeal court’s
factual-sufficiency decision is limited by the factual-conclusivity
clause to determining only whether the direct-appeal court properly applied
“rules of law.”  See Choate v. San Antonio &
A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69, 69–70 (Tex. 1898) (purpose
of factual-conclusivity clause was to restrict Texas Supreme Court’s
jurisdiction to questions of law and to make direct-appeal court’s
factual-sufficiency decisions conclusive).
 
221 S.W.3d 659, 662–63 (Tex. Crim.
App. 2007) (emphasis added).  Judge Hervey, writing for Presiding Judge Keller and Judges
Womack, Keasler and Cochran, emphasized:
This
concept is illustrated in the Texas Supreme Court’s landmark decision in In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661–62 (Tex.1951). 
There, the Texas Supreme Court decided that the
factual-conclusivity clause did not prohibit it from taking jurisdiction to
decide, as a matter of law, that the direct-appeal court applied an incorrect
standard (a no-evidence standard) in addressing a party’s factual-sufficiency
claim.  Id.; see
also Pool v. Ford Motor Co., 715 S.W.2d 629, 634–35 (Tex. 1986) (In Re King’s Estate established
that “the supreme court might take jurisdiction, notwithstanding the finality
of judgments of the courts of civil appeals on fact questions, in order to
determine if a correct standard has been applied by the intermediate courts”). 
 
Id. at 663.  The five court of criminal appeals judges,
obviously aware that a legal-sufficiency standard is “an incorrect standard” to
apply “in addressing a party’s factual sufficiency claim,” acknowledged that
“[t]he issue in In Re King’s Estate was not whether the
direct-appeal court improperly applied a factual-sufficiency standard, but whether it undertook to apply that
standard at all.”  Id. at 663 n.5 (citation included) (emphasis
added).  And it “recognized that In Re King’s Estate is ‘useful in
explaining the proper procedures to follow in conducting factual sufficiency
analysis.’”  Id. at 663 n.4 (citing In re King’s Estate, 244 S.W.2d at
661–62).  Thus, Judge Hervey, writing for
her four colleagues, concluded:
In this
case, we cannot conclude that the Court of Appeals’ factual-sufficiency
decision improperly applied “rules of law.” 
See Dyson, 692 S.W.2d at 457; Choate, 44 S.W. at 69–70. 
Its opinion does not apply an incorrect standard by treating
appellant’s factual-sufficiency challenge as some other challenge, as
was the case in In Re King’s Estate, 244 S.W.2d at 661.
 
Id. at 665 (citations included)
(emphasis added).  
What to make of Roberts in light of the plurality opinions in Brooks?  One important fact
is clear: the same five judges in Brooks,
who there purported to substitute a legal-sufficiency standard for addressing
questions of fact, previously acknowledged that their
“review of a direct-appeal court’s factual-sufficiency decision is limited by
the factual-conclusivity clause to determining only whether the direct-appeal
court properly applied ‘rules of law’” and treating an appellant’s  factual-sufficiency challenge as
legal-sufficiency challenge would be “incorrect.”  Id.
at 663–65 (citing In Re King’s Estate, 244 S.W.2d at 661).  
Under the doctrine
of stare decisis, once “the highest court of the State having jurisdiction” of a matter decides a “principle, rule or proposition of
law,” that court and all “other courts of lower rank ” must accept the
decision as “binding precedent.”  Swilley, 374 S.W.2d at 875 (emphasis added).  And the court of criminal appeals, like this
Court, has an obligation to follow its own prior precedent until it expressly
overrules it.  See Rose v. State, 752 S.W.2d 529, 555 (Tex. Crim. App. 1988)
(Teague, J., concurring with court’s opinion on motion for rehearing) (until
case is expressly overruled, it must be followed); see also Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref’d) (Because there is no majority opinion . . . ,
[the plurality] is not binding precedent.”). 
Here, it is important to note that although the plurality in Brooks purported to change the standard
of review for fact questions to a legal standard, expressly overruling Clewis in that regard, it did not
address (1) the jurisdictional issue squarely presented in this case, (2) the
now apparent inconsistency between what the plurality said in Brooks about that standard and the
factual-conclusivity clause’s limitation on the court’s jurisdiction to address
the issue, (3) the inconsistency between what the plurality said in Brooks about that standard and the court’s
own precedent in regard to its very limited jurisdiction in regard to our
conclusive fact jurisdiction, and (4) the inconsistency between what the same
five judges in the plurality said in Brooks
about that standard and what they said in Roberts.  Accordingly, although this Court is bound by
its precedent in Ervin, it is not
bound by Brooks in addressing the
serious jurisdictional and consequent constitutional issues now asserted by
appellant in the instant case.  
Regardless, under
the factual-conclusivity clause, a Texas court of appeals, in regard to its
decisions on the questions of fact presented to it, is not a court of rank
“lower” than either the supreme court or the court of criminal appeals because
the courts of appeals have conclusive, exclusive, and final authority over such
questions of fact.  As previously recognized
by the court of criminal appeals, the factual-conclusivity clause gives “final
appellate jurisdiction to the courts of appeals on questions of fact brought
before” them.  Laster, 275 S.W.3d at 518–19.  As specifically
recognized by the five judges in the plurality in Brooks, the court of criminal appeals’ “review of a direct-appeal
court’s factual-sufficiency decision is limited by the factual-conclusivity
clause to determining only whether the direct-appeal court properly applied
‘rules of law’” and treating an appellant’s 
factual-sufficiency challenge as legal-sufficiency challenge would be “incorrect.”  Roberts, 221 S.W.3d at 663–65 (citing In Re King’s Estate, 244 S.W.2d at 661) (emphasis added).  And neither the
supreme court nor the court of criminal appeals has any jurisdiction to create
a factual-sufficiency appellate standard of review “in conflict” with the Texas
Constitution, i.e., any standard that would eliminate or in any way interfere
with the exclusive authority of the courts of appeals to actually decide the
questions of fact presented to them by considering and weighing all the
evidence in a trial record.  Ex parte Schuessler, 846 S.W.2d at 852; Meraz, 785 S.W.2d at 152; see also Pool, 715 S.W.2d at 633–35; In re King’s Estate, 244 S.W.2d at 661–62.  Again, as
acknowledged by the court of criminal appeals itself, it simply may not
“interfere[] with the fact jurisdiction of the intermediate appellate courts”
and it is “not constitutionally authorized to adopt a standard of review for
the court[s] of appeals . . . inconsistent with Art. V, § 6 of [the Texas]
Constitution.”  Ex parte Schuessler, 846 S.W.2d at 852–53 (emphasis added) (quoting Meraz, 785 S.W.2d at 153).  Any such action
taken by the court of criminal appeals is, in its own words, “void ab initio,” i.e., from its inception.  Id.  Thus, the doctrine of
stare decisis does not bind a Texas court of appeals to apply such an invalid,
unconstitutional, appellate standard of review in fulfilling its Texas constitutional
and statutory obligation to address questions of fact.  
Our constitutional
and statutory duty to address appellant’s question of fact as a question of
fact is not relieved just because doing so would be awkward given the plurality
opinions in Brooks or because of the
fact that Texas’ judicial structure is
a “jurisdictional mishmash ‘unimaginably abstruse.’”  See In
re Reece, 341 S.W.3d at 382 (Willett, J., concurring).  Indeed, we have a duty to protect our
jurisdiction:
Courts
have a duty to protect their legitimately conferred jurisdiction to the extent
necessary to provide full justice to litigants. 

 
Pittsburgh-Corning
Corp. v. Askewe, 823 S.W.2d 759,
761 (Tex. App.—Texarkana 1992, no writ) (quoting Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909, 927,
930–31 (D.C. Cir. 1984)).  
The bottom line is
that applying a legal-sufficiency standard to appellant’s question of fact deprives
him of his Texas constitutional and statutory right to present this Court with such
a question and the remedy of having his case remanded for a new trial if he
prevails on his question of fact.  Once a
state provides an appellate remedy to a defendant in its constitution or by
statute, a court may not circumvent the constitution or statute to deprive him
of the remedy.  See Griffin, 351 U.S. at
18, 76 S. Ct. at 590; M.L.B., 519
U.S. at 110–11, 117 S. Ct. at 561.  Such
an action by a court amounts to a denial of due process of law.  See
M.L.B., 519 U.S. at 111, 117 S. Ct.
at 561.  Here, moreover, given that the
Texas Supreme Court, in reading article V, section 6 of the Texas Constitution,
clearly recognizes the right of civil litigants to present intermediate courts
of appeals with questions of fact and the remedy of a remand for a new trial,
the denial of that right, given that article V, section 6 is not in any way limited
to civil cases, amounts to a denial of the equal protection of the laws.  See
U.S. Const. amend. XIV.  “There is no sound basis for the disparate
interpretations of a single constitutional provision based on whether the
matter on appeal is civil or criminal in nature.”[3]  Susan Bleil &
Charles Bleil, The Court of Criminal
Appeals Versus the Constitution: The Conclusivity Question, 23 St. Mary’s L.J. 423,
424 (1991).  
Although Texas’
courts of appeals have only rarely found evidence factually insufficient to
support criminal convictions or findings in civil cases, the right of a
litigant in a civil case or a defendant in a criminal case to assert a question
of fact on appeal and request a remand for a new trial is critical and in no
way interferes with the right to trial by jury. 
As explained by former Texas Supreme Court Chief Justice Tom Phillips:
Appellate
courts have the authority to review the sufficiency of evidence in support of
the fact finder’s determinations for one reason: to undo the effect of an unjust
trial.  See generally, Garwood, The Question of Insufficient
Evidence on Appeal, 30 Tex. L. Rev. 803, 809 (1952).  This traditional judicial function, now
exercised only by our intermediate appellate courts, neither conflicts with nor
infringes upon the right of trial by jury. 
No appeals court in Texas has ever been given, or has ever exercised,
the authority to find any
fact.  The extent of an appellate
court’s power is, as it has always been, to remand for new trial if more than a
scintilla of probative evidence exists to support the result reached by the
jury.
 
This authority exists regardless of whether the court of
appeals is reviewing a jury’s finding or its “non-finding,” that is, the
failure of a jury to find a fact.  In
either case, the court is not substituting its own finding for the jury’s; it
is merely ordering a new trial before another jury for a new determination.
 
The court of
appeals must have this authority in order to do justice. Trials may be just as unfair when the party with the burden
of proof unjustly loses as when the party with the burden of proof unjustly
wins.  To fulfill its constitutional
responsibilities, the court of appeals must have authority to review
both findings and non-findings.  Traylor
v. Goulding, 497
S.W.2d 944, 945 (Tex. 1973).
 
Herbert
v. Herbert, 754 S.W.2d 141,
145 (Tex. 1988) (Phillips, C.J., concurring) (emphasis added).
The
substitution of a legal-sufficiency appellate standard of review, which can be
reviewed and applied, respectively, by either the Texas Supreme Court or Texas
Court of Criminal Appeals, for a factual-sufficiency appellate standard of
review, which constitutionally may not be reviewed and applied by the higher
courts, would render the factual-conclusivity clause of the Texas Constitution
a dead letter.  See Ex
parte Schuessler, 846 S.W.2d at
852.  As
explained by the Texas Supreme Court:
[The factual-conclusivity clause] requires the [c]ourt of . . .
[a]ppeals, upon proper assignment, to consider the fact question of weight and
preponderance of all the evidence and to order or deny a new trial accordingly
as to the verdict may thus appear to it clearly unjust or otherwise.  This is the meaning given the constitutional phrase ‘all questions of fact
brought before them on appeal or error’. . . . But for that interpretation there would be no
‘questions of fact’ for the
[c]ourt of . . . [a]ppeals to determine . . . .
 
In
re King’s Estate, 244 S.W.2d at
666 (emphasis added). Again, in
the words of the Texas Court of Criminal Appeals:
It [is] not appropriate for this Court to create a standard of review
which is in conflict with the language of our State Constitution.
 
Meraz, 785 S.W.2d at 152.  Respectfully, this is precisely what a majority of the Texas Court of
Criminal Appeals purports to do in its plurality and concurring opinions in Brooks.  As noted by the
dissenting judges, the majority, without at all considering and addressing the
express language of the factual-conclusivity clause and article
44.25 of the Texas Code of Criminal Procedure,
“purports” to overrule Clewis, deciding that the
authority to reverse criminal judgments and remand the cases on the basis of
factual insufficiency, which “has been recognized from the beginning to be
inherent in the appellate jurisdiction of first-tier appellate courts in
Texas,” “need not be ‘retained.’”  Brooks, 323
S.W.3d at 926 (Price,
J., dissenting).  Such a dramatic change
of the constitutionally-delineated conclusive fact jurisdiction of Texas’
courts of appeals cannot be made “absent a change in the constitutional and
statutory provisions that confer that jurisdiction” on the courts of appeal.  Id. at 927.  As previously noted by the court itself, if it is “improper” for the
courts of appeals to decide questions of fact and remand cases for a new trial,
“it is up to the people of the State of Texas to amend the Constitution.”  Meraz, 785
S.W.2d at 154.  It would also be up to the Texas Legislature
to amend article
44.25.
       In sum, under Texas’ unique judicial structure, the Texas Constitution
expressly recognizes that Texas courts of appeals have “conclusive”
jurisdiction to decide the questions of fact presented to them on appeal; this
“conclusive fact jurisdiction,” this constitutional responsibility, by its very
nature requires that a court of appeals consider and weigh all the evidence in
a case when a question of fact is presented to it on appeal and, if
appropriate, to remand the case for a new trial.  Neither the Texas Supreme Court nor the Texas
Court of Criminal Appeals may lawfully amend the Texas Constitution to usurp
the constitutional responsibility of the Texas courts of appeals to properly
review and decide the questions of fact presented to them on appeal.  A Texas court of appeals is duty bound under
the Texas Constitution to protect its conclusive jurisdiction and exercise the
full extent of its appellate powers on the questions of fact brought before it
on appeal, and neither the Texas Supreme Court nor the Texas Court of Criminal
Appeals has the lawful authority to interfere with or relieve the courts of
appeals of this constitutional duty.  Any
attempt by either court to do so is void ab
initio.  Ex
parte Schuessler, 846 S.W.2d at
852.  
Here, appellant has
squarely presented a question of fact to this Court, contending that the
evidence in support of his conviction is so weak that the jury’s verdict is
clearly wrong and manifestly unjust.  He
has also squarely asserted that our failure to perform our constitutional and
statutory duty to address his question of fact as a question of fact
constitutes a denial of due process of law, and it also violates his right to
the equal protection of the laws.  See U.S.
Const. amends V, XIV.  Although awkward
under the circumstances, this Court still has a constitutionally-delineated
right and duty, with which no other court may lawfully interfere, to properly
address appellant’s question of fact by considering and weighing all the
evidence in record.  Accordingly, this
Court should overrule Ervin and
address appellant’s question of fact as a question of fact and not as a
question of law.  
       The People of the State of Texas have the exclusive authority
to amend the Texas Constitution. Until they do so, “[t]he right of [Texas]
courts of appeals to review for factual insufficiency must continue undisturbed.”  Pool, 715
S.W.2d at 634 (emphasis
added).  And, here, the failure to
address appellant’s question of fact constitutes a violation of the United
States Constitution’s guarantees of due process of law and the equal protection
of the laws.  See U.S. Const. amends.
V, XIV; Griffin, 351 U.S. at 18, 76
S. Ct. 585 at 590. 
 
 
                                                                   
Terry
Jennings
                                                                   Justice

 
Panel
consists of Justices Jennings, Bland, and Massengale.
Justice
Jennings, concurring.
Publish.   Tex. R. App. P. 47.2(b). 




[1]           As early as 1841, the Supreme Court of the
Republic of Texas recognized that “the 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.” Republic v. Smith,
Dallam 407, 410–11 (Tex. 1841) (emphasis
added).  
 
Texas has always recognized that a party on appeal may
challenge as erroneous a fact finding on the grounds that (1) as a question of
law, the issue should not have been submitted to the jury at all, i.e., the
evidence is legally insufficient to support the finding, or (2) as a question
of fact, although the issue was properly submitted to the jury with
legally-sufficient evidence, the jury erred in weighing the evidence, i.e., the
evidence is factually insufficient to support the finding.  See Choate v.
San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898).
 


[2]        The plurality
in Brooks purported to substitute a
legal-sufficiency appellate standard of review in place of a
factual-sufficiency appellate standard of review for questions of fact in
criminal cases, asserting that the two standards “have become essentially the
same.”  323 S.W.3d 893, 895 (Tex. Crim. App.
2010) (Hervey, J., joined by Keller, J.,
Keasler, J., and Cochran, J.); see id.
at
912–26 (Cochran, J.,
joined by Womack, J., concurring) (holding
that legal-sufficiency standard articulated in Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781
(1979) is “only standard” reviewing court should apply
in determining whether evidence is sufficient to support each element of
criminal offense).  
 However, the legal-sufficiency standard of review as
articulated by the United States Supreme Court in Jackson, which provides the minimum protection against wrongful
conviction required by the Due Process Clause of the United States
Constitution, is quite different from the factual-sufficiency standard of
review utilized by Texas courts.  The Jackson legal-sufficiency standard cannot be mistaken for a
factual-sufficiency standard because the scope of review under Jackson is limited to the evidence viewed “in the light most
favorable to the prosecution,” i.e., the evidence is not weighed, and a
successful challenge under Jackson results in an acquittal and not a new trial. 
Tibbs v. Florida, 457 U.S. 31,
41–42, 102 S. Ct. 2211, 2218 (1982).  Also, the Jackson standard does not implicate a Texas court of appeals’
constitutional duty to decide questions of fact by considering and weighing all
the evidence in a record because it “impinges upon ‘jury’ discretion only to
the extent necessary to guarantee the fundamental protection of due process of
law.”  Jackson, 443 U.S. at
319, 99 S. Ct. at 2789.  And the question whether the evidence is
legally sufficient under Jackson “is of course wholly unrelated to the question of
how rationally the verdict was actually reached . . . . [T]he standard announced today . . . does not
require scrutiny of the reasoning process” used by the fact-finder.  Id. at 319 n.13, 99 S. Ct. at 2789
n.13 (emphasis
added).
Moreover, the consequences surrounding the prosecution of an
accused based on legally-insufficient evidence have been clearly explained by
the United States Supreme Court:
 
[T]he Double Jeopardy Clause precludes retrial [of an
accused] “once the reviewing court has found the evidence legally insufficient”
to support conviction. This standard, we explained, “means that the government’s
case was so lacking that it should not have even been submitted to the jury.”  A
conviction will survive review whenever “the evidence and inferences therefrom most favorable to the prosecution would warrant the jury’s finding the defendant guilty
beyond a reasonable doubt.”  In sum, we
noted that the rule barring retrial would be “confined to cases where the
prosecution’s failure is clear.” . . .
 
[T]he Double Jeopardy Clause attaches special weight to
judgments of acquittal.  A verdict of not
guilty, whether rendered by the jury or  directed
by the trial judge, absolutely shields the defendant from retrial.  A reversal based on
the [legal] insufficiency of the evidence has the same effect because it means
that no rational factfinder could have voted to convict the defendant.

Tibbs, 457 U.S. at 40–41, 102 S. Ct. at 2217 (citations
omitted) (emphasis added). In short, evidence is legally insufficient where the
“only proper verdict” is acquittal.  Id. at 42, 102 S. Ct.
at 2218.  On the other hand,
A reversal on [a factual-sufficiency] ground, unlike a
reversal based on [legally-] 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
deadlocked jury, we consistently have recognized, does not result in an
acquittal barring retrial under the Double Jeopardy Clause. Similarly, an
appellate court’s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded
verdicts of acquittal.
 
A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented [legally-]
sufficient evidence to support conviction and has persuaded the jury to
convict.  The reversal simply
affords the defendant a second opportunity to seek a favorable judgment.  An appellate court’s decision to give the
defendant this second chance does not create “an unacceptably high risk that
the Government, with its superior resources, [will] wear down [the] defendant”
and obtain conviction solely through its persistence.

Id. at 42–43, 102 S. Ct. at 2218–19 (citations
omitted) (emphasis added).  Thus, the
United States Supreme Court expressly rejected the argument that a “distinction
between the weight [(factual sufficiency)] and [legal] sufficiency of the
evidence is unworkable,” noting that “trial and appellate judges commonly
distinguish between the weight [(factual sufficiency)] and [legal] sufficiency
of the evidence” and the Due Process Clause “sets a lower limit on
an appellate court’s definition of evidentiary sufficiency.” Id. at 44–45, 102
S. Ct. at 2219–20 (emphasis added). The Court further stated,
Our decisions also make clear that disagreements among jurors
or judges do not themselves create a reasonable doubt of guilt. As Justice
WHITE, . . . explained, “[t]hat 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.”

Id. at 42 n.17, 102 S. Ct. at 2218 n.17 (quoting Johnson
v. Louisiana, 406 U.S. 356, 362, 92 S. Ct. 1620, 1624 (1972)).


[3]           In construing the plain language of article V, section 6,
the Texas Supreme Court has clearly stated that Texas’ courts of appeals commit reversible error in applying a
legal-sufficiency standard of review to answer questions of fact.  In Re
King’s Estate, 244 S.W.2d at 661. 
Yet, the Texas Court of Criminal Appeals has now said that the same
courts commit reversible error if they do not.  See Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. App. 2010) (Hervey, J., joined by Keller, J., Keasler, J., and
Cochran, J.); see id. at 912–26 (Cochran, J., joined by Womack, J., concurring).  Respectfully, the court of criminal appeals’
disparate interpretation of article V, section 6 is untenable.


