Barber v. State, 6-82-080-CR

• Decision Date: 31 May 1989
• Docket Number: No. 6-82-080-CR,6-82-080-CR
• Citation: 773 S.W.2d 631
• Parties: W.S. BARBER, et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 631

773 S.W.2d 631

W.S. BARBER, et al., Appellants, v. The STATE of Texas, Appellee.

No. 6-82-080-CR.

Court of Appeals of Texas,

Texarkana.

May 31, 1989.

Discretionary Review Granted Sept. 27, 1989.

Rex Houston, Wellborn, Houston, Adkison, Mann & Sadler, Henderson and L.G. Hawkins, Sapulpa, Okl., for appellants.

R. Clement Dunn, Asst. Dist. Atty., Longview, for appellee.

ON REMAND

BLEIL, Justice.

In 1984, after viewing the evidence in the light most favorable to the verdict, we found that the evidence was insufficient to support a conviction. Barber v. State, 668 S.W.2d 424 (Tex.App.--Texarkana 1984), vacated, 764 S.W.2d 232 (Tex.Crim.App.1988). The highest court in this state disagreed with our determination that the evidence was insufficient and reversed, remanding the case to us to consider the other points which had been raised on the initial appeal.

As judges on this Court we are sworn to uphold the Constitution of Texas. ¹ As well as we could, we exercised our constitutional duty. We weighed all the evidence and found it "insufficient to establish beyond a reasonable doubt that five or more persons collaborated in a combination to commit or conspire to commit theft...." Barber v. State, 668 S.W.2d at 425. ² We did not find that there was "no evidence" to support the conviction or that it was legally insufficient; we found after weighing all the evidence that it was factually insufficient. ³ Tex. Const. art. V, § 6 provides that our decision shall be conclusive on all questions of fact. ⁴

Can Texas courts of appeals review and decide issues of factual sufficiency in criminal cases? Looking at our constitution and the history of our legal system, and using common sense evokes a resounding affirmative response. The Court of Criminal Appeals has not given this response. As an intermediate appellate court we are bound by the interpretations of the highest court in this state. That Court has commented that, with regard to evidentiary review, the courts of appeals seem rather confused, saying that:

There appears to be substantial confusion in the Courts of Appeal over the proper standard of review in criminal cases. This is due to their reading of Art. 5, Sec. 6 of the Texas Constitution and a recent decision of this Court, Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982).

Van Guilder v. State, 709 S.W.2d 178, 180 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986). ⁵

In acknowledging that Combs v. State, 643 S.W.2d 709 (Tex.Crim.App.1982), has caused some confusion, the Court of Criminal Appeals understates the effect of the Combs decision. In that case the Court first looked at the meaning of Article V, § 6 of the Texas Constitution. It said that, "If sufficiency of the evidence is a 'question of fact,' then the decisions of the Court of Appeals on sufficiency questions would appear to be binding on our Court." Id., at 714. Because criminal jurisdiction was new to the courts of appeals, the Court of Criminal Appeals looked to the Supreme Court's interpretation of Article V, § 6. It looked to the leading case of In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951). In that case the Supreme Court stated that:

Article 5, § 6 of the Constitution, Vernon's Ann.St., ... requires the Court of Civil Appeals, 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" of Sec. 6, supra. But for that interpretation there would be no "questions of fact" for the Court of Civil Appeals to determine,....

Then the Court briefly acknowledged a distinction between factual sufficiency and legal sufficiency standards, citing Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400 (Tex.1981); Stodghill v. Texas Emp. Ins. Ass'n, 582 S.W.2d 102 (Tex.1979); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 361 (1960).

Turning to criminal cases, the Court looked to Banks v. State, 510 S.W.2d 592 (Tex.Crim.App.1974), for state standards for review of factual sufficiency of the evidence and to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for federal constitutional standards for review of factual sufficiency. Banks was cited for the propositions that, "In reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict. In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused." (emphasis added). In other words, the Court in Banks established a "no evidence" standard and Jackson was said to hold that a review for the sufficiency of the evidence under federal constitutional standards was also a question of law. Thus, the Court held that sufficiency of the evidence to sustain criminal convictions as determined by that Court is a question of law under both state and federal standards. It is not a "question of fact" under Article V, § 6 of the Texas Constitution, the Court said. ⁶

If there appeared to be doubt about what was meant in Combs concerning a lack of jurisdiction of the courts of appeals to review the evidence for factual sufficiency, the Court in Van Guilder v. State, 709 S.W.2d 178, clarified this issue. In addressing review by the intermediate courts for factual sufficiency of the evidence concerning claims by a defendant that an affirmative defense was established, the Court said:

To allow the court of appeals to evaluate the facts in a criminal case and to reverse based on their individual belief that a jury finding is against the great weight and preponderance of the evidence both misconceives the burden of proof required for criminal convictions and usurps the function of the jury.

....

There must be no reweighing or reclassifying of the evidence by the appellate court.

Id., at 180, 181.

Clear enough. But, if we are prohibited from evaluating the facts or weighing the evidence, what possible meaning can our constitution have when it mandates that our decisions are conclusive on all questions of fact brought before us? This constitutional grant of authority plainly appears to (1) grant the courts of appeals authority to review questions of fact brought to them, and (2) prohibit any other court in the state from interfering with those courts' exercise of that constitutional duty. ⁷

In Combs v. State, 643 S.W.2d 709, the Court enunciated that the proper standard for reviewing sufficiency of the evidence claims was that set forth in Banks v. State, 510 S.W.2d at 595. That standard was clearly a "no evidence standard." Partly because that was the standard adopted for review of state sufficiency of the evidence questions, the Court of Criminal Appeals held that review of evidentiary issues was a question of law and not "a 'question of fact' under Art. 5, Sec. 6, of the Texas Constitution." 643 S.W.2d at 717. Recently, however, in Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989), the Court of Criminal Appeals expressly rejected and overruled the part of Combs that relied on the "no evidence" language from Banks. The Court said that it must "take each case and review the entire body of evidence to determine whether the State has proven beyond a reasonable doubt each and every element of the alleged crime...." Thus, the Court of Criminal Appeals has moved to a standard which is strikingly similar to the standards which have always been used by courts of appeals for review of factual sufficiency questions. Is not this reason enough for a further look at Combs v. State, 643 S.W.2d 709, and its holding concerning whether courts of appeals have jurisdiction to pass on fact issues or questions of the weight and preponderance of the evidence pursuant to Article V, § 6 of the Texas Constitution.

In Gold v. State, 736 S.W.2d 685, 691 (Tex.Crim.App.1987) (Teague, J., dissenting), an argument was made that the decision concerning the jurisdiction of the appellate courts of this state in reviewing factual matters, as laid down in Combs, was based on a flawed premise and that the Court of Criminal Appeals should now revisit Combs in light of Article V, § 6 of the Texas Constitution. ⁸ This matter was again addressed by Judge Teague in Moreno v. State, 755 S.W.2d 866, 872 (Tex.Crim.App.1988) (Teague, J., concurring). In Moreno v. State, 711 S.W.2d 382 (Tex.App.--Houston [14th Dist.] 1986), rev'd, 755 S.W.2d 866 (Tex.Crim.App.1988), the court of appeals had reviewed all of the evidence before it, weighed the facts, and found the evidence insufficient to support the conviction. The Court of Criminal Appeals held that the court of appeals had acted improperly in its review of the factual sufficiency of the evidence. Moreno v. State, 755 S.W.2d 866. Coming to the aid of the court of appeals on that issue and in a clear appeal to reason, Judge Teague said this:

The issues that confront this Court in this cause is (sic) whether the court of appeals had jurisdiction, pursuant to Art. V, § 6, of the Texas Constitution, to pass upon the weight and preponderance of the evidence, and how binding that decision might be on this Court. Those issues remain unresolved. Perhaps a more important issue that should be addressed by this Court is whether this Court's decision of Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982), where this Court's train got off the track in deciding what jurisdiction the courts of appeals have in deciding factual issues, and what jurisdiction this Court has to review sufficiency questions once they have been passed on by the Courts of Appeals, should be revisited by this Court.

Moreno v. State, 755 S.W.2d at 873. ⁹ We agree that Combs, insofar as it interprets Article V, § 6 of the Texas Constitution,...