Bigby v. State

• Decision Date: 02 November 1994
• Docket Number: No. 71234,71234
• Citation: 892 S.W.2d 864
• Parties: James Eugene BIGBY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 864

892 S.W.2d 864

James Eugene BIGBY, Appellant, v. The STATE of Texas, Appellee.

No. 71234.

Court of Criminal Appeals of Texas.

Nov. 2, 1994.

David L. Richards, Michael Logan Ware, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and Charles M. Mallin & Robert Mayfield, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MEYERS, Judge.

Appellant was found guilty of capital murder on March 12, 1991, for the murder of a father and his infant son. Tex.Penal Code.Ann. § 19.03(a)(6) (West 1990). The jury affirmatively answered the submitted special issues, and the trial court sentenced appellant to death. Tex.Code Crim.Proc.Ann. art. 37.071(b) (West 1990). Appeal to this court is automatic. Tex.Code Crim.Proc.Ann. art. 37.071(h) (West 1990). We will affirm.

I. SUFFICIENCY OF THE INSANITY DEFENSE

In the first point of error, appellant contends the jury's rejection of his insanity defense at trial was so against the great weight and preponderance of the evidence as to be manifestly unjust. At trial a criminal defendant has the burden to prove his insanity by a preponderance of the evidence and, in this case, appellant mounted a considerable insanity defense. Tex.Penal Code Ann. § 8.01(a) and § 2.04(d); Meraz v. State, 785 S.W.2d 146, 154 (Tex.Crim.App.1990). The State argues that this Court does not have the power to conduct a factual review of this nature, and in the alternative, that the evidence is not so against the great weight and preponderance so as to be manifestly unjust.

A. JURISDICTION

We begin with the State's jurisdictional argument. In support of its argument the State cites to White v. State, 591 S.W.2d 851, 855 (Tex.Crim.App.1979), a case heavily relied upon by this Court in Meraz, supra. In White the appellant asked our Court to review the jury's competency finding and to set aside that finding if we concluded it was against the great weight and preponderance of the evidence. In rejecting the appellant's invitation we explicitly stated that we did not have the power to review questions of fact as the then courts of civil appeals could. White, 591 S.W.2d at 855. ¹ Our conclusion that we lacked the power to review such questions was based upon the peculiar provisions of the Texas Constitution. ²

The jurisdiction of this Court is governed by Article V, Section 5 of the constitution. It provides:

The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade, with such exceptions and under such regulation as may be provided in this Constitution or as prescribed by law.

The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals....

Section 6 of the same article of the Texas Constitution grants the Courts of Appeals jurisdiction, providing:

... Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error. Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.

[Emphasis added.] The emphasized clause of Section 6 has been referred to as the "factual conclusivity" clause.

The Court in White was interpreting Article V, Section 6 prior to the 1980 Amendment when only the civil system had intermediate appellate courts. The Court held that, "this Court has no jurisdiction to do what appellant requests as would a Court of Civil Appeals because of a somewhat peculiar [factual conclusivity] provision applicable to the Court of Civil Appeals." White, 591 S.W.2d at 855. The 1980 Amendment to this section of the constitution changed the Courts of Civil Appeals to the Courts of Appeals and granted those courts criminal appellate jurisdiction. In Meraz we held that White was still applicable stare decisis and further that the "factual conclusivity" clause was a grant of fact jurisdiction to the courts of appeals. Meraz, 785 S.W.2d at 155. In this we erred. White v. State, 591 S.W.2d 851, incorrectly interpreted the "factual conclusivity" doctrine as a grant of fact jurisdiction. This is evidenced by both a historical perspective of the adoption of the "factual conclusivity" clause and criminal jurisprudence in this State from the days of the Republic to the 1960's.

The constitution grants the courts of appeals and our Court "appellate jurisdiction" in Sections 6 and 5 of Article V, respectively. This is a general grant of jurisdiction which is the basis for all appeals from lower to superior courts in Texas. Procedurally, an "appeal" is a review by a superior court of an inferior court's decision. White v. State, 543 S.W.2d 366, 368 (Tex.Crim.App.1976); Republic v. Smith, Dallam 407, 409 (Tex.1841); Black's Law Dictionary 712 (5th Ed.1983). In 1841 the Supreme Court of the Republic delineated the scope of "appellate jurisdiction" in Texas An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact as well as the law to a review and retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law.

Bailey v. Haddy, Dallam 376 (Tex.1841). Later that same year, the Supreme Court of the Republic addressed its criminal "appellate jurisdiction."

It is our opinion, then, that the [constitutional] convention intended only to adopt the common law, to use their own language, "as a rule of decision" in criminal proceedings; and no more of the forms and peculiar writs of that code than might be found necessary to carry out the objects contemplated by that adoption. And surely the convention never intended, when they inserted in the constitution a provision creating an appellate court in criminal as well as civil cases, to deny the accused who might wish to appeal from the district court to the supreme court the right of having the facts of his case, as well as the law, opened to re-examination. We cannot believe it. We decide, then, 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, 410-411 (Tex.1841). In 1875, the Supreme Court of the State of Texas also recognized that "appellate jurisdiction" conferred upon the superior court authority to revise the facts of a criminal case.

In harmony with and in pursuance of this construction of the import thus given to the terms appellate jurisdiction, all of our subsequent constitutions have expressly given to the Supreme Court jurisdiction of criminal as well as civil cases as an appellate tribunal, and statutes have been passed providing means by which the court should be enabled to exercise its full power of revising a criminal cause upon the law and facts as presented in the record.

Bishop v. State, 43 Tex. 390, 400 (1875).

In 1891 the State amended the 1876 Texas Constitution and created the courts of civil appeals. Tex. Const. Art. V, § 6 (1876). In that provision, the courts of civil appeals were granted "appellate jurisdiction," which meant that an appeal brought both the facts and the law of a case for review. Bailey, supra; Smith, supra; Bishop, supra. However, after the general grant of jurisdiction the Framers added what has become known as the "factual conclusivity" clause. The clause states: "Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error." Tex. Const. art. V, § 6. The Supreme Court interpreted this provision as a limit, not on the court of civil appeals, but upon their own jurisdiction. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex.1988); Pool v. Ford Motor Co, 715 S.W.2d 629, 633 (Tex.1986); Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Choate v. San Antonio & A.P. Ry., 91 Tex. 406, 44 S.W. 69 (1898). ³ The clause itself lends support to this interpretation. By stating that "[p]rovided that the decision of said court shall be conclusive" on fact questions, the clause seems to presuppose that the court already possesses the power to conduct factual review. This is buttressed by the historical meaning of "appellate jurisdiction."

In the civil system after the 1891 amendments, the losing party in a civil suit appealed first to the court of civil appeals. This was a direct appeal and a matter of right. Because the court of civil appeals had "appellate jurisdiction" to consider the appeal, the complaining party could seek a factual or legal review of his case. The court of civil appeals, like the trial court, had the power to set aside a factual finding by the jury. Choate, 91 Tex. 406, 44 S.W. at 69. ⁴ Any determination by the court of civil appeals concerning questions of fact were final and binding upon the Texas Supreme Court. Ibid. Questions of law decided by the court of civil appeals could be appealed via a writ of error to the Supreme Court. However, determination of the court's of civil appeals on the question of fact was final because of the "factual conclusivity" doctrine. Ibid. As the Supreme Court stated in Choate,

The supreme court, before the amendments in question, had jurisdiction on appeal or a writ of error over the facts of a case, but to this extent only; that, if the evidence was conflicting upon any material issue, it could sustain the verdict and affirm the judgment; or if, in their opinion, the verdict was...