Clewis v. State

• Decision Date: 31 January 1996
• Docket Number: No. 0450-94,0450-94
• Parties: Elbert CLEWIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 126

922 S.W.2d 126

Elbert CLEWIS, Appellant, v. The STATE of Texas, Appellee.

No. 0450-94.

Court of Criminal Appeals of Texas En Banc.

Jan. 31, 1996.

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

April E. Smith, Asst. Dist. Atty., Dallas, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted of burglary of a building, and the Fifth Court of Appeals affirmed his conviction. Clewis v. State, 876 S.W.2d 428 (Tex.App.--Dallas 1994). In his sole ground for review, appellant contends that the court of appeals erred in refusing to review the evidence to determine whether it was factually sufficient to sustain his conviction. See Stone v. State, 823 S.W.2d 375 (Tex.App.--Austin 1992, pet. ref'd, untimely filed ). Specifically, appellant avers that the evidence was factually insufficient to show that he knowingly and intentionally entered the building.

The court of appeals held that Texas constitutional and statutory provisions grant and authorize courts of appeals to exercise "appellate jurisdiction to review fact questions." Clewis, 876 S.W.2d at 430. The courts of appeals do not possess "fact-finding authority," but may " 'unfind' a fact determination that the jury has found or failed to find." Id. at 430-31. The court of appeals further held that the correct standard of review for factual sufficiency of the elements of the offense in noncapital cases is the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard: "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." Id. at 319, 99 S.Ct. at 2789; Clewis, 876 S.W.2d at 437.

While we agree that courts of appeals are vested with the authority to review fact questions in criminal cases, we part ways with the court of appeals' holding that the correct standard of review for factual sufficiency of the elements of the offense is the Jackson standard. Rather, we endorse Chief Justice McGarry's analysis in his concurring opinion in Clewis, and conclude that the Jackson standard of review does not satisfy a noncapital defendant's right to an appellate review of fact questions. Clewis, 876 S.W.2d at 444 (McGarry, C.J., concurring). We hold that the proper standard of review for factual sufficiency of the elements of the offense is the one articulated by the Third Court of Appeals in Stone v. State, 823 S.W.2d at 381: The court of appeals "views all the evidence without the prism of 'in the light most favorable to the prosecution.' ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." ¹ This holding harmonizes the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual sufficiency. ² Bishop v. State, 43 Tex. 390 (1875); see also Clewis, 876 S.W.2d at 445-46 (citing Tibbs v. Florida, 457 U.S. 31, 45 n. 22, 102 S.Ct. 2211, 2220 n. 22, 72 L.Ed.2d 652 (1982); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex.1988); Minor v. State, 653 S.W.2d 349, 354 (Tex.App.--San Antonio 1983) (Cadena, C.J., concurring)).

I. Fact Jurisdiction of Appellate Courts

We are faced with a question of Texas law regarding the courts of appeals. ³ The Texas Constitution confers appellate jurisdiction upon the courts of appeals, Tex. Const. art. V, §§ 5 & 6, ⁴ that includes the power to review questions of fact in criminal cases. ⁵ Bishop v. State, 43 Tex. 390, 400 (1875) ("[A]ll 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.") (citations omitted) (emphasis added); Bailey v. Haddy, Dallam 376, 378 (Tex.1841) ("An appeal ... [subjects] the facts as well as the law to a review and retrial.") (emphasis added); Republic of Texas v. Smith, Dallam 407, 410-11 (Tex.1841) ("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."); cf. Cropper, 754 S.W.2d at 648. This Court recently acknowledged in Bigby v. State, 892 S.W.2d 864, 874 (Tex.Crim.App.1994), the "considerable jurisprudence by this Court and our predecessors with criminal jurisdiction which had continually recognized the authority, though infrequently exercised, of the State's highest criminal court to review a case upon the facts as well as the law." ⁶ Id. In that case, we also noted that the Legislature has consistently recognized the ability of courts with criminal appellate jurisdiction to review the facts of a case and that Article 44.25 of the Texas Code of Criminal Procedure ⁷ has remained nearly identical since 1857 with each subsequent code revision. ⁸ Bigby, 892 S.W.2d at 874-75 n. 5 (quoting art. 44.25 of the 1979 Code, art. 848 of the 1950 Code, art. 905 of the 1892 Code, art. 870 of the 1879 Code, and art. 744 of the 1857 Code); id. at 875 ("[O]ur ability to factually review a criminal cause ... is inherent in our 'appellate jurisdiction' and the lack of any corresponding constitutional restriction."). When their jurisdiction to review fact questions is properly invoked, the courts of appeals cannot ignore constitutional and statutory mandates. Clewis, 876 S.W.2d at 430; id. at 441 (McGarry, C.J., concurring); Queen v. State, 842 S.W.2d 708, 711 (Tex.App.--Houston [1st Dist.] 1992).

We can add little to Judge Clinton's comprehensive, historical analysis of appellate authority to conduct factual sufficiency reviews in criminal cases. Clewis, 922 S.W.2d 126, 136-151 (Tex.Crim.App.1995) (Clinton, J., concurring). In his concurring opinion, Judge Clinton tracks the evolution of appellate judicial power and concludes that "from the beginning, 'appellate jurisdiction' included the power to examine 'factual sufficiency,' and further, that every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power...." Clewis, at pp. 137-139 & n. 4-5 (Clinton, J., concurring). We are persuaded by Judge Clinton's rebuttal of the State's argument that once an appellate court has found "legal sufficiency" to support the verdict, it may not proceed further to review "factual sufficiency," even if properly raised. Id. at part II.C. (Clinton, J., concurring) (explaining that Franklin v. State, 147 Tex.Crim. 636, 183 S.W.2d 573 (App.1944), cannot be read to rule out a factual sufficiency review by an appellate court and that "constitutional power to conduct such a review is not lost through pretermission....").

II. Standard of Review

A. Civil Factual Sufficiency Review

The Texas Supreme Court has consistently interpreted Art. V, § 6 of the Texas Constitution to mean that the courts of civil appeals, and later the courts of appeals, have the authority and responsibility to review the verdicts in civil cases to determine whether the evidence is factually sufficient. ⁹ See Meraz v. State, 785 S.W.2d 146, 149 (Tex.Crim.App.1990); Cropper, 754 S.W.2d at 648; Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898). That court has stated that the scope of review under a factually sufficient point

requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust....

In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); see Cropper, 754 S.W.2d at 646; Pool, 715 S.W.2d at 634.

B. Criminal Factual Sufficiency Review

Since the creation of the Texas Court of Criminal Appeals in 1891, appellate jurisdiction has included the power to examine factual sufficiency, and "every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power...." Clewis v. State, 922 S.W.2d at 141 (Clinton, J., concurring); see Bigby, 892 S.W.2d at 874 (citing cases that have recognized the authority of the State's highest criminal court to review a case upon the facts as well as the law).

While this Court has not determined the proper standard for a factual sufficiency review of the elements of the offense by courts of appeals, it has set the standard for factual sufficiency review in cases where the defendant has asserted an affirmative defense or otherwise has the burden of proof on another fact issue. When the defendant has asserted an affirmative defense or has the burden of proof on an issue, a reviewing court considers all the evidence and determines whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust:

The court of appeals is therefore constitutionally given the authority to determine if a jury finding is against the great weight and preponderance of the evidence and if this is improper it is up to the people of the State of Texas to amend the Constitution.

Meraz, 785 S.W.2d at 154; see Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex.Crim.App.1993).

C. Jackson v. Virginia

The court of appeals held that the Jackson standard, "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," incorporates...