Watson v. State

• Decision Date: 18 October 2006
• Docket Number: No. PD-469-05.,PD-469-05.
• Parties: Delair WATSON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

204 S.W.3d 404

Delair WATSON, Appellant, v. The STATE of Texas.

No. PD-469-05.

Court of Criminal Appeals of Texas.

October 18, 2006.

Stan Schwieger, Waco, for Appellant.

Betty Marshall, Asst. State Prosecuting Attorney, Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON and HOLCOMB, JJ., joined.

We granted the State's petition for discretionary review in this cause to address the question whether the court of appeals can reverse a conviction on the basis of factual insufficiency of the evidence even when it believes that the evidence preponderates in favor of guilt, consistent with our opinion in Zuniga v. State.¹ Moreover, we granted discretionary review on our own motion to address the further question whether we should undertake further clarification of the Clewis² standard for factual-sufficiency review as articulated in Zuniga. We now recognize that the Zuniga re-articulation of the Clewis standard represents an inadvertent distortion of factual-sufficiency review as historically conducted by this Court and its predecessors, and to that extent we overrule it.

I. FACTS AND PROCEDURAL POSTURE

The appellant was prosecuted for the burglary of a habitation during which he allegedly attempted to commit sexual assault. The jury convicted him of this offense and assessed his punishment at thirteen years' confinement in the penitentiary. On appeal he challenged both the legal and factual sufficiency of the evidence. The Tenth Court of Appeals found the evidence legally sufficient.³ However, finding the evidence factually insufficient, the court of appeals reversed the conviction and remanded the cause for a new trial.⁴ On the authority of our opinion in Zuniga, the court of appeals held that, even though the evidence preponderated in favor of finding an intent to commit sexual assault, it was nevertheless factually insufficient to support a finding of such an intent to a level of confidence beyond a reasonable doubt.⁵ We granted the State's petition for discretionary review to determine whether Zuniga does indeed authorize reversal when the legally sufficient evidence supporting the verdict "equals or outweighs the contrary evidence[.]" On our own motion, we expanded review to include the question whether we should re-examine Zuniga. In order to gain a proper perspective on these issues, we think it useful to review the origins and history of factual-sufficiency review in Texas.

II. FACTUAL-SUFFICIENCY REVIEW BEFORE CLEWIS

The authority of criminal appellate courts in Texas to reverse criminal convictions on the basis of factually insufficient evidence did not begin with our opinion in Clewis. Criminal appellate courts in Texas have always had, within their constitutional "appellate jurisdiction," the authority to review criminal convictions for what we now call "factual sufficiency" of the evidence. This includes the authority to reverse cases we would now regard as supported by "legally sufficient" evidence when the verdict nevertheless seems to be against the great weight and preponderance of the evidence. That authority has been codified in all former incarnations of what is now Article 44.25 of the Code of Criminal Procedure, authorizing criminal appellate courts to "reverse" (nee "revise") criminal judgments "as well upon the law as upon the facts[.]"⁶ Clewis did not invent factual sufficiency. Instead, the Court in Clewis, with an assist from our earlier opinions in Meraz v. State,⁷ and Bigby v. State,⁸ rediscovered factual sufficiency, and resurrected it from a brief, court-imposed dormancy.

A. Bailey, Smith and Bishop

The authority of criminal appellate courts in Texas to review factual sufficiency derives from the Texas Constitution. Both Bigby, and later Clewis, cite a trio of very old Texas Supreme Court cases for the proposition that criminal appellate courts in Texas have the authority, within their constitutionally endowed "appellate jurisdiction," to conduct a factual review. None of these cases, Bailey v. Haddy,⁹ Republic of Texas v. Smith,¹⁰ and Bishop v. State,¹¹ purports to hold that such a factual review embraces what we now call a "factual sufficiency" analysis. But each confirms that, first under the 1836 Constitution of the Republic, and then under succeeding state constitutions, the Supreme Court's appellate jurisdiction over criminal cases included the power to revise the case "upon the law as upon the facts."¹² This is precisely how a majority of this Court would come to construe these cases in Bigby¹³ None of these earliest cases expressly declared that factual-sufficiency review, per se, was authorized in criminal cases. But later cases construed the criminal appellate "fact" jurisdiction in Texas, first recognized in these earliest cases, to include what we would now call factual-sufficiency review. Moreover, Old Code Article 744, and all later iterations of that provision up until the 1981 amendment to present-day Article 44.25,¹⁴ expressly contemplated that criminal appellate courts had the power to "reverse[ ] for the reason that the verdict is contrary to the weight of the evidence[.]"

B. Tollett and Loza

Among the very earliest cases to address sufficiency of the evidence were Tollett v. State¹⁵ and Loza v. State.¹⁶ In each of these cases, the respective courts conducted an analysis that, to the contemporary ear, sounds much like what we would now call a "legal sufficiency" analysis. Neither Tollett nor Loza explicitly holds that the factual jurisdiction of criminal appellate courts in Texas includes the power to conduct a factual-sufficiency review, per se. But they do not rule it out either, and, like the earliest Texas Supreme Court cases, they do confirm the general factual jurisdiction of criminal appellate courts. Nevertheless, other cases from this period from the Texas Court of Appeals, the direct predecessor of this Court, demonstrate that the Court well "understood the nature and extent of its power to review jury verdicts for evidentiary sufficiency, albeit not then labelled `legal sufficiency' and `factual sufficiency.'"¹⁷ Some of those cases utilize language that sounds distinctly as though it belongs in the latter category.¹⁸

C. Walker

In Walker v. State, the Texas Court of Appeals (the direct predecessor of this Court) undertook a detailed analysis of the prior case law touching on the question of evidentiary sufficiency.¹⁹ From that analysis the Court distilled the following "rules of practice":

From a careful consideration of the cases in which this subject has been discussed, we deduce the following rules of practice governing this court, viz:

First. Where the evidence is conflicting, and there is sufficient, if believed, to prove the case of the State, the jury being the exclusive judges of the credibility of the testimony, their verdict will not be set aside unless it clearly appears to be wrong.

Second. Where there is no testimony to support it, the verdict will be set aside.

Third. Where the evidence is insufficient to rebut the presumption of innocence, the verdict will be set aside.

Fourth. Where the verdict is contrary to the weight of the evidence, it will be set aside.²⁰

The discussion that the Texas Court of Appeals undertook in Walker just before it set out these "rules of practice" seems manifestly to contemplate multiple and variable standards of sufficiency review, not variations on a single standard. The Walker rules even include a standard whereby the Court was authorized to reverse a conviction "though there was evidence sufficient to support it."²¹ In its entirety, omitting string citations, the Walker discussion reads as follows:

With reference to the authority of this court to set aside a verdict when that verdict is, in our judgment, against the weight of the evidence, or not supported by it, we think the statute confers it. Article 870 of the [1879] Code of Criminal Procedure provides: "The Court of Appeals may revise the judgment in a criminal action, as well upon the law as upon the facts; but when a cause is reversed for the reason that the verdict is contrary to the weight of evidence, the same shall, in all cases, be remanded for a new trial."

With reference to trials by jury it is provided: "The jury are the exclusive judges of the facts in every criminal cause." ([1879] Code Crim. Proc., Art. 676) And again it is provided: "The jury in all cases are the exclusive judges of the facts proved, and of the weight to be given to the testimony, except," etc. ( [1879] Code Crim. Proc., Art. 728.)

While Article 870, above quoted, expressly confers the authority to revise the facts, and to reverse the judgment for the reason that the verdict is contrary to the weight of evidence, it has been the general practice of this court to refuse to set aside a verdict where the evidence was conflicting, but where there was sufficient, if believed, to support the finding.

But even in such case, where it was manifest that the verdict was wrong, and it was clear that injustice had been done the defendant, it has been set aside, though there was evidence sufficient to support it.

And it has never been doubted, but has always been considered by this court, not only that it had the authority, but that it was its duty to set aside a verdict where that verdict was contrary to the evidence, or unsupported by it, though it is with reluctance that the court will disturb a verdict where there is any evidence to sustain it.²²

It could not be more clear from this discussion that the Texas Court of Appeals deemed itself authorized to reverse convictions under a number of distinct scenarios and that the "rules of practice" that immediately follow are not meant to be understood as variations on a single insufficiency theme, but as, indeed, separate "rules."

It is also imperative to note the Texas Court of Appeals's reference to the predecessors of present-day Articles 36.13 and 38.04...