Clewis v. State

• Decision Date: 15 March 1994
• Docket Number: No. 05-92-01950-CR,05-92-01950-CR
• Citation: 876 S.W.2d 428
• Parties: Elbert CLEWIS v. The STATE of Texas.
• Court: Texas Court of Appeals

Page 428

876 S.W.2d 428

Elbert CLEWIS v. The STATE of Texas.

No. 05-92-01950-CR.

Court of Appeals of Texas Dallas.

March 15, 1994.

Petitions for Discretionary Review

Granted Sept. 21, 1994.

George E. Ashford, III, Dallas, for appellant.

April E. Smith, Dallas, for appellee.

Before McGARRY, C.J., and LAGARDE and BARBER, JJ.

OPINION

LAGARDE, Justice.

A jury convicted Elbert Clewis of burglary of a building and assessed punishment, enhanced by two prior convictions, at fifty-five years' confinement. Clewis appeals his conviction, asserting in a single point of error that the evidence is factually insufficient to support the conviction. He urges this Court to adopt a new standard for reviewing a factual sufficiency challenge. We decline to do so and affirm.

In his sole point of error, appellant claims that the evidence is factually insufficient to show that he knowingly or intentionally entered the building. This assertion is a sufficiency attack on evidence supporting an element of the offense which the State had the burden to prove beyond a reasonable doubt. Appellant claims he does not attack the "legal " sufficiency of the evidence supporting his conviction. An appellate court's "legal " sufficiency standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989), overruled on other grounds, Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). ¹

Appellant, however, requests that this Court adopt and apply the factual sufficiency standard of review adopted by the Third District Court of Appeals. See Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd, untimely filed) (per curiam). As held by that court, a court of appeals when exercising its conclusive factual jurisdiction would review all the evidence without the prism of "in the light most favorable to the prosecution." Because the court is not bound to view the evidence in the light most favorable to the prosecution, it may consider the testimony of defense witnesses and the existence of alternative hypotheses. The court [would then] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Id. Under this standard, unlike under the Jackson standard, when an appellate court sustains a factual insufficiency point, the conviction is reversed and the cause is remanded for a new trial. ² Orona v. State, 836 S.W.2d 319, 321 (Tex.App.--Austin 1992, no pet.) (per curiam).

FACT JURISDICTION

The Texas Constitution confers upon the courts of appeals "appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts [of appeals] shall be conclusive on all questions of fact brought before them on appeal or error." TEX. CONST. art. V, § 6. No distinction is made between civil and criminal cases. The first provision operates as a general grant of appellate jurisdiction and is the only clause that vests the courts of appeals with judicial authority. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex.1988). Such a general grant of jurisdiction includes the power to review questions of law and fact. See id. at 648-49. ³ Importantly, this law and fact jurisdiction applies to criminal cases as well. See id. at 649 (citing Republic v. Smith, Dallam 407, 410-11 (Tex.1841)).

Intermediate appellate courts in Texas have no inherent power to ignore an express constitutional mandate. Queen v. State, 842 S.W.2d 708, 711 (Tex.App.--Houston [1st Dist.] 1992, no pet.). The courts of this state are bound to follow the will of the people of this state, as that will is expressed by the people in the constitution and in the laws enacted by their duly elected representatives. Id. Furthermore, the legislature has expressly authorized the courts of appeals to review fact questions in criminal cases. TEX.CODE CRIM.PROC.ANN. art. 44.25 (Vernon Supp.1994). We conclude that the above constitutional and statutory provisions provide this Court with appellate jurisdiction to review fact questions. ⁴

This conclusion does not mean, however, that we have jurisdiction to act as a factfinder and assess the credibility of witnesses and re-weigh evidence. To the contrary, Texas law is clear that we do not. See TEX.CODE CRIM.PROC.ANN. arts. 36.13 & 38.04 (Vernon 1981 & 1979). In exercising their conclusive fact jurisdiction, the courts of appeals do not possess fact-finding authority. Wisdom v. Smith, 146 Tex. 420, 425, 209 S.W.2d 164, 166 (1948); see also Hopson v. Gulf Oil Corp., 150 Tex. 1, 11, 237 S.W.2d 352, 358 (1951) ("The Court of Civil Appeals does not and cannot substitute fact findings of its own for the findings of the jury[.]"). The courts of appeals can only "unfind" a fact determination that the jury has found or failed to find. See Cropper, 754 S.W.2d at 649-51; see also Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 361, 368 (1960); W. St. John Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803, 813-14 (1952) (both articles cited with approval in Cropper ).

In reviewing certain defensive issues in criminal cases on which the defendant has the burden of proof by a preponderance of the evidence and which do not invoke a federal constitutional issue, the court of criminal appeals has specifically held that the above state constitutional provision is to be interpreted just as in civil cases. ⁵ Meraz v. State, 785 S.W.2d 146, 154 (Tex.Crim.App.1990). The court in Meraz then set out the standard of review to be applied "when the courts of appeals are called upon to exercise their fact jurisdiction, that is, examine whether the appellant proved his affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of the evidence[.]" Id. at 154-55. The court later emphasized, albeit in a footnote, ⁶ that it did not express any view on whether its holding in Meraz is limited to those cases where the defendant has the burden of proof by a preponderance of the evidence or whether Meraz permits the courts of appeal to engage in a factual sufficiency review of the elements of an offense. Ex parte Schuessler, 846 S.W.2d 850, 852 n. 5 (Tex.Crim.App.1993).

Appellate fact jurisdiction, as authorized by article V, section 6, should not be confused with the appellate standard of review required to exercise that fact jurisdiction. The state constitution, at most, says that an intermediate appellate court has conclusive fact jurisdiction in both civil and criminal cases. It does not purport to set out the standard of review required to exercise that fact jurisdiction. The question before us in this case, therefore, is what standard of review we are required to apply in reviewing the appellant's factual sufficiency challenge to the evidence supporting an element of the charged burglary offense. We now turn to that task.

STANDARD OF REVIEW

The Texas Supreme Court surely considered all of the legal circumstances present in civil jurisprudence when it adopted the standard of review for factual sufficiency in civil cases. Likewise, we must consider all of the legal circumstances present in criminal jurisprudence in adopting a standard of review for factual sufficiency of the evidence on the elements of an offense to use in the exercise of our state constitutional and statutory fact jurisdiction in criminal cases. Because the federal and state constitutional protections, burdens of proof, statutes, rules, and procedures are significantly different in the civil and criminal law contexts, the standards of review in such contexts may likewise differ. In the pages that follow, we will show that, indeed, the standard of appellate review for the factual sufficiency of the evidence on the elements of a criminal offense cannot be the same as the civil standard of review for factual sufficiency, which was adopted by the court in Meraz for review of factual sufficiency of the evidence on an affirmative defense. ⁷

A review of the factual sufficiency of the evidence on the elements of a criminal offense differs from a review of the factual sufficiency of the evidence on an affirmative defense in at least two significant ways: first, it invokes issues of federal constitutional dimension and second, it involves a much greater burden of proof at trial. ⁸

The Stone Standard of Review

Appellant correctly points out that the Third District Court of Appeals adopted the "overwhelming weight of the evidence as to be clearly wrong and unjust" standard. Stone, 823 S.W.2d at 381. Purportedly, the Stone standard is the same standard of review applied in civil cases. Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam)).

We first note that the Stone standard, advocated by appellant, has been met with mixed reactions. Compare Williams v. State, 848 S.W.2d 915, 916-17 (Tex.App.--Texarkana 1993, no pet.) (adopting the Stone standard) with Crouch v. State, 858 S.W.2d 599, 601 (Tex.App.--Fort Worth 1993, pet. ref'd) (rejecting the Stone standard) and Mukes v. State, 828 S.W.2d 571, 573-574 (Tex.App.--Houston [14th Dist.] 1992, no pet.) (rejecting the Stone standard). Additionally, the standard of review for factual insufficiency was addressed by this Court pre-Stone. See Borders v. State, 822 S.W.2d 661, 667-68 (Tex.App.--Dallas 1991), rev'd on other grounds, 846 S.W.2d 834 (Tex.Crim.App.1992). In Borders, we concluded that "[u]nder the criminal law of this state there is no 'factual insufficiency'...