





 


 
 IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0469-05


DELAIR WATSON, Appellant
 
v.


THE STATE OF TEXAS





ON STATE'S PETITION FOR DISCRETIONARY REVIEW 
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY


 Hervey, J., filed a dissenting opinion in which Keller, PJ., Keasler and
Cochran, JJ., joined.

DISSENTING OPINION

	In another decision meant to "clarify" Clewis, (1) the Court overrules a less than three year-old,
7-judge majority opinion in Zuniga, (2) which was also meant to "clarify" Clewis.  The reader should
notice that, in addition to overruling Zuniga, the Court's opinion also overrules a significant portion
of Clewis and a significant portion of Cain, (3) which was another decision meant to "clarify" Clewis.
	The Court's opinion disavows that part of Clewis stating that Texas courts apply the Jackson
v. Virginia (4) legal sufficiency standard "in such a way that the only evidence a reviewing court
considers is the evidence that supports the verdict." (5) See Watson v. State,   S.W.3d   slip op. at
19 n. 59, 20 (Tex.Cr.App. No. PD-0469-05, delivered this date) (Jackson v. Virginia legal
sufficiency standard requires a review of "all the evidence") (emphasis in original).  This
misstatement of the Jackson v. Virginia standard by Clewis formed a very significant portion of
Clewis' rationale that a factual sufficiency standard was needed to overturn convictions that are
"unjust" under Jackson v. Virginia with Clewis' 40-nun hypothetical (6) used to illustrate such an
"unjust" conviction.  This, of course, requires the reader to accept that a verdict that is rational under
the beyond a reasonable doubt standard under Jackson v. Virginia can at the same time be "clearly
wrong" or "manifestly unjust."  See Watson, slip op. at 25. (7)
	The Court's opinion also disavows a significant portion of Cain.  With the Court recognizing
that the Jackson v. Virginia standard requires an appellate court to consider all the evidence, this
means that the only difference between a Jackson v. Virginia legal sufficiency review and a Clewis
factual sufficiency review is that the former requires the appellate court to defer to the jury's
credibility and weight determinations (8) while the latter permits the appellate court to disagree with
the jury's credibility and weight determinations. (9)
	But, authorizing appellate courts to disagree with a jury's credibility and weight
determinations via Clewis' factual sufficiency review is inconsistent with Articles 38.04 and 36.13,
Tex. Code Crim. Proc., which unambiguously, without limitation, make the jury the exclusive
judges of the credibility and weight of the evidence.  The Court's opinion, however, states that these
Code provisions do not apply to appellate review of evidentiary sufficiency questions because "their
placement in Chapters 36 and 38 of the Code, which govern [sic] trial practice and procedure" make
it apparent that these provisions are "meant merely to allocate the fact-finding function at the trial
level and do not purport to affect appellate review." See Watson, slip op. at 9; accord Clewis, 922
S.W.2d at 134-35 (import of these Code provisions is "to distinguish the role of the jury from the
role of the judge at trial"). (10)  But, this Court's decision in Cain made no such distinction, and, Cain
expressly relied on these Code provisions to state, contrary to what Clewis originally stated, that "the
appellate court must defer to jury findings, and may find the evidence factually insufficient only
where necessary to prevent manifest injustice."  See Cain, 958 S.W.2d at 407 (emphasis supplied). (11) 
In stating that these Code provisions do not apply to the appellate process, the Court's opinion
overrules a significant portion of Cain. (12)
	Notwithstanding the foregoing, the issue of whether Texas appellate courts have factual
sufficiency jurisdiction in criminal cases is a matter of legislative intent subject to a Boykin analysis. 
This requires an interpretation of Article 44.25, Tex. Code Crim. Proc., against the backdrop of
the legal landscape as it existed in 1981 when the Legislature amended Article 44.25 to its current
form and granted the intermediate appellate courts criminal jurisdiction.  When this occurred in
1981, the Supreme Court had recently decided Burks/Greene, (13) which provided the remedy of an
appellate acquittal on evidentiary insufficiency grounds, and Jackson v. Virginia, which sets out the
now familiar due process standard for reviewing evidentiary sufficiency.
	Prior to 1981, Article 44.25 and its statutory predecessors provided that appellate criminal
courts may reverse a conviction "upon the law as upon the facts." (14)  These pre-1981 statutory
predecessors to current Article 44.25 also authorized the appellate remedy of a remand for a new trial
when a conviction was reversed because it was contrary to the weight of the evidence. (15)  But, it is
very significant that the 1981 legislative amendments to Article 44.25 deleted this language
authorizing the appellate remedy of a new trial when a conviction was reversed because it was
contrary to the weight of the evidence.  See Footnotes 13, 14.  The effect of these 1981 legislative
amendments to Article 44.25 deleting this language was to withdraw an appellate criminal court's
jurisdiction to provide the remedy of a remand for a new trial when a conviction was reversed
because it was contrary to the weight of the evidence. (16)
	It, therefore, seems clear that the Legislature very carefully insured that there would be no
factual sufficiency jurisdiction in criminal cases when it amended Article 44.25 to its current form
in 1981. (17) It seems equally clear that the Legislature intended that appellate criminal courts apply
only the evidentiary sufficiency standard set out in Jackson v. Virginia and provide only the appellate
remedy of an acquittal set out in Burks/Greene upon a determination that the evidence is insufficient
to support the conviction.  And, as the Court's opinion seems to recognize, Texas appellate criminal
courts applied only the Jackson v. Virginia standard after 1981 until this Court some years later
"rediscovered factual sufficiency, and resurrected it from a brief, court-imposed dormancy."  See
Watson, slip op. at 4.
	Finally, while purporting to retain a [factual] sufficiency standard that is "more solicitous of
defendants' rights," (18) the Court's retention of this standard is actually less solicitous of defendants'
rights.  Clewis' 40-nun hypothetical illustrates this as well.  According to Clewis, this 40-nun
hypothetical illustrates a legally sufficient but factually insufficient conviction.  See Clewis, 922
S.W.2d at 133 n.12.  This means that the State can retry this hypothetical defendant, and the
appellate court would probably have to affirm this hypothetical defendant's conviction the second
time around on the same evidence as that presented at his first trial.  See Tibbs v. Florida, 457 U.S.
31, 43 n.18 (1982).  But, this hypothetical defendant would have been entitled to an appellate
acquittal the first time around under a proper application of Jackson v. Virginia.
	With these comments, I join Judge Cochran's dissent.

									Hervey, J.
 

Filed: October 18, 2006
Publish
1. 	See Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996).
2. 	See Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App. 2004).
3. 	See Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997).
4. 	See Jackson v. Virginia, 443 U.S. 307 (1979).
5. 	See Clewis, 922 S.W.2d at 132 n.10.
6. 	See Clewis, 922 S.W.2d at 133 n.12.
7. 	The Jackson v. Virginia standard has two components.  It requires the reviewing court to
view the evidence in the light most favorable to the verdict, which means that the reviewing court
defers to the jury's credibility and weight determinations apparently because the jury, having seen
the witnesses testify, is in the best position to make these calls.  The Jackson v. Virginia standard
then requires the reviewing court to determine whether the jury's verdict is "rational" under the
beyond a reasonable doubt standard.  This "rationality" component prevents an "unjust" conviction
and accomplishes essentially what Clewis seeks to accomplish.  Clewis' 40-nun hypothetical
illustrates this.  Under the Jackson v. Virginia standard, the reviewing court would view the evidence
in the light most favorable to the verdict and defer to the jury's determination to believe the
impeached witness and to disregard the testimony of the 40 nuns.  But, such a verdict cannot be
considered rational under the beyond a reasonable doubt standard.  See Clewis, 922 S.W.2d at 156
n.7 (McCormick, P.J., dissenting).
	Another illustration of this is this Court's decision in Carmouche v. State, 10 S.W.3d 323
(Tex.Cr.App. 2000).  In Carmouche, this Court reviewed an intermediate appellate court's decision
reviewing a trial court's ruling denying a motion to suppress.  The reviewing court was required to
view the evidence in the light most favorable to the trial court's ruling and there was testimony from
a police officer that supported the trial court's ruling.  See Carmouche, 10 S.W.3d at 332-33.  But,
this Court overturned the lower courts' rulings because a videotape of the event contradicted the
testimony of the police officer.  See id.  Carmouche illustrates how a reviewing court can overturn
a lower court's ruling by considering all the evidence in the light most favorable to the ruling even
when there is some evidence to support the ruling.  See also Johnson v. State, 23 S.W.3d 1, 15
(Tex.Cr.App. 2000) (McCormick, P.J., dissenting) (hypothetical demonstrating proper  application
of Jackson v. Virginia standard).
8. 	This is also stated as viewing the evidence in the light most favorable to the verdict.
9. 	This is also stated as viewing the evidence in a neutral light.
10. 	Whether these Code provisions apply to appellate review of evidentiary sufficiency questions
is a matter of legislative intent which requires an appellate court to give effect to the unambiguous
language of these Code provisions unless doing so would produce an absurd result.  See Boykin v.
State, 818 S.W.2d 782, 785-86 (Tex.Cr.App. 1991).  Assuming that the language and particularly
the placement of these Code provisions supports the Court's interpretation of them, it arguably is an
absurd result that a trial court, which observed the witnesses testify and their demeanor, must defer
to a jury's credibility and weight determinations while an appellate court may disagree with these
determinations on a cold record.  In addition, under the reasoning of the Court's opinion, a trial court
arguably cannot grant a new trial since the provisions for granting a new trial are placed in the
appellate rules of procedure and not in the Code provisions "which govern trial practice and
procedure."  See Tex. R. App. Proc. 21.3.
11. 	This Court in Cain, 958 S.W.2d at 407, stated:

	First is the principle of deference to jury findings.  The Code of Criminal Procedure
establishes that the jury is the judge of the facts. [Citing Articles 36.13, 38.04]
[Footnotes omitted].  In Clewis we explained that "[a]ppellate courts should only
exercise their fact jurisdiction to prevent a manifestly unjust result; . . . those courts
'are not free to reweigh the evidence and set aside a jury verdict merely because the
judges feel that a different result is more reasonable.'" Clewis, 922 S.W.2d at 135
[citation omitted].  A court of appeals may not reverse a jury's decision simply
because it disagrees with the result; the appellate court must defer to jury findings,
and may find the evidence factually insufficient only where necessary to prevent
manifest injustice." 
12. 	In summary then, in 1996, this Court stated that these Code provisions do not apply to the
appellate process (Clewis, 922 S.W.2d at 135); but in 1997, this Court stated that they do apply to
the appellate process (Cain, 958 S.W.2d at 407); and in 2006, this Court states that they do not apply
to the appellate process (Watson, slip op. at 9).
13. 	See Burks v. United States, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).
14. 	See Bigby v. State, 892 S.W.2d 864, 874-75 n. 5 (Tex.Cr.App. 1996).
15. 	See Bigby, 892 S.W.2d at 874-75 n. 5.
16. 	The Court's opinion seems to state that the Legislature conferred factual sufficiency
jurisdiction by withdrawing an appellate court's authority to remand for a new trial when a
conviction was contrary to the weight of the evidence.  See Watson, slip op. at 19 n.59.  I disagree. 
I believe the issue is not whether the 1981 legislative amendments to Article 44.25 somehow
conferred factual sufficiency jurisdiction, but whether these amendments withdrew factual
sufficiency jurisdiction, if it ever existed which the Court's opinion claims it did prior to 1981.
17. 	More support for this is found in Section 22.225(a), Tex. Gov't Code, which makes a
judgment of the court of appeals "conclusive on the facts of the case in all civil cases."  (Emphasis
supplied).  See also Watson, slip op. at 19 n.59 (discussing legislative history of Section 22.225(a)). 
If Texas appellate criminal courts have factual sufficiency jurisdiction in criminal cases, then the
Legislature would have made their judgments conclusive on the facts in criminal cases too. 
18. 	A standard that is "more solicitous of defendants' rights" is necessarily less solicitous of the
rights or interests of non-defendants.
