Johnson v. State , 2000 Tex. Crim. App. LEXIS 12 ( 2000 )

MeCORMICK, P. J„

delivered a dissenting opinion in which KELLER and KEASLER, JJ., joined.

I respectfully dissent. We should seize this opportunity to remove the judicially-inflicted Clewis opinion¹ from the body of Texas jurisprudence.

Contrary to principles of stare decisis² and the clear legislative intent of the applicable statutes,³ Clewis adopted for criminal cases a civil “factual sufficiency” evidentia-ry standard which Clems had to modify to account for the prosecution’s “beyond a reasonable doubt” burden of proof.⁴ The Clewis dissenters were criticized for being disrespectful of the intermediate appellate courts. Clewis, 922 S.W.2d at 151 (Meyers, J., concurring).⁵ It also was explained to the general public that Clewis would not result in the reversal of “well-founded” convictions because there was “no reason whatsoever to believe that our intermediate appellate courts will not perform evi-dentiary review in a cautious, responsible, and deferential way, just as the law requires.” Id. (Emphasis Supplied).

Well, Clewis has resulted in the reversal of a growing nmnber of “well-founded” convictions.⁶ And, this is the second major case since this Court decided Clewis in which it has become necessary for this Court to try to articulate a proper application of the “factual sufficiency” standard adopted in Clems. This current attempt fares no better than previous ones. And, the problem is not with the intermediate appellate courts. The problem is Clewis.

It is beyond dispute that one of the main differences between a civil “factual sufficiency” standard and a Jackson v. Virginia ⁷ sufficiency standard is the amount of deference the reviewing court affords to the jury on questions of credibility and weight of the evidence. Jackson v. Virginia requires the reviewing court to view the evidence “in the light most favorable to the verdict” meaning that the reviewing court defers to the jury on questions of credibility and weight of the evidence. See Clewis, 922 S.W.2d at 133. The modified civil “factual sufficiency” standard which Clewis purportedly adopted requires the reviewing court to view the evidence “without the prism of in the light most favorable to the verdict” meaning that the reviewing court does not have to defer to, and may substitute its judgment for, the jury on these questions. See Clewis, 922 S.W.2d at 134.⁸

The problem begins with Clewis’ internal contradictions on the question of appellate deference to the jury’s credibility and weight determinations. Clewis said that under its “factual sufficiency” standard “an appellate court reviews the factfinder’s weighing of the evidence and is authorized to disagree with the factfinder’s determination.” See Clewis, 922 S.W.2d at 133 and at 149 (Clinton, J., concurring) (reviewing court must consider and weigh the evidence). Yet, Clewis contradicts itself by also saying that the reviewing court is “not free to reweigh the evidence” and that its sufficiency standard must be “appropriately deferential so as to avoid an appellate court’s substituting its judgment for that of the jury.” See Clewis, 922 S.W.2d at 133, 135 and at 151 (Meyers, J., concurring) (standard should be applied in a “deferential way”).⁹ To defer or not to defer, that is the question.

This Court unsuccessfully tried to resolve this question in Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997). In Cain, the Court relied on Article 38.04, V.A.C.C.P., to decide that Clewis’ “factual sufficiency” standard requires appellate deference to the jury’s credibility and weight determinations. See Cain, 958 S.W.2d at 407 (reviewing “court must defer to jury findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice”).¹⁰ Article 38.04, which contrary to Clewis Cain recognized as applying to the “appellate process,” clearly and unambiguously provides that the jury “is the exclusive judge of the facts proved, and of the weight to be given to the testimony.” (Emphasis Supplied).

But, contrary to Article 38.04, Cain also carried forward Clewis’ internal contradictions on appellate deference to the jury’s credibility and weight determinations when Cain also stated that the reviewing court views the evidence without the “prism” of “in the light most favorable to the verdict” and “sets aside the verdict only if it is so contrary to the overwhelming' weight of the evidence as to be clearly wrong and unjust.” Cain, 958 S.W.2d at 407 (emphasis supplied).¹¹ As in Clewis, Cain did not explain how a reviewing court can simultaneously defer to the jury’s credibility and weight determinations but also set aside a verdict because it is against the “weight” of the evidence.

The Court’s opinion in this case is also contrary to Article 38.04 and also carries forward Clewis’ internal contradictions on the question of a reviewing court’s deference to the jury’s credibility and weight determinations. The Court’s opinion does this when it says “the reviewing court must always remain cognizant of the fact finder’s role and unique position, a position that the reviewing court is unable to occupy ” but then it says the reviewing court may sometimes occupy this position, which it earlier says the reviewing court cannot occupy, when “necessary to arrest the occurrence of a manifest injustice.” See Johnson v. State, 23 S.W.3d 1, 6-7, 9 (Tex.Cr.App., delivered this date) (emphasis supplied).¹²

Another one of Clems’ serious flaws is its determination that its modified civil “factual sufficiency” standard is necessary to prevent an “unjust” conviction.¹³ This is based on Clewis’ mischaracterization of the Jackson v. Virginia standard as a “no evidence” standard.¹⁴ Clewis did this when it said that' we apply the Jackson v. Virginia standard “in such a way that the only evidence a reviewing court considers is the evidence that supports the verdict.” ¹⁵ In thus characterizing the Jackson v. Virginia standard, Clewis ignored Jackson v. Virginia and this Court’s well-settled case law all of which decided some time ago that the Jackson v. Virginia standard is not a “no evidence” standard because it requires the reviewing court to consider all the evidence.¹⁶

This is an important point which Clewis glossed over with its 40 nun hypothetical to which Clewis claimed Jackson v. Virginia provided no remedy. See Clewis, 922 S.W.2d at 138 fn. 12. A properly applied Jackson v. Virginia standard, however, would provide a remedy in the 40 nun hypothetical because the evidence would be insufficient under this standard to support the conviction. See Clewis, 922 S.W.2d at 156 fn. 7 (McCormick, P.J. dissenting). This would not require the reviewing court to substitute its judgment for the jury’s on credibility and weight determinations, it would merely require the reviewing court to decide that a finding of guilt on such a record is not “rational.” A properly applied Jackson v. Virginia standard does not result in an “unjust” conviction.

Another hypothetical that illustrates this is a robbery of a convenience store case. The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape of the event clearly shows that B committed the robbery. But, the jury convicts A. It was within the jury’s prerogative to believe the convenience store clerk and disregard the video. But based on all the evidence the jury’s finding of guilt is not a rational finding.¹⁷

A properly applied Jackson v. Virginia standard, therefore, is much more exacting than Clewis claims. Jackson v. Virginia requires the reviewing court to consider all the evidence in the “light most favorable to the verdict,” and then it requires the reviewing court to decide whether the jury’s finding of guilt is “rational.” A properly applied Jackson v. Virginia standard is essentially as exacting a standard as a “factual sufficiency” standard which means that when the evidence meets the Jackson v. Virginia standard, it can never be “factually insufficient” and when the evidence is “factually insufficient,” it will always be insufficient under the Jackson v. Virginia standard.¹⁸

So, when the intermediate appellate courts determine that the evidence is sufficient under Jackson v. Virginia but “factually insufficient” under Clewis to support a conviction and remand a case for a new trial, they either will have misapplied Cle-wis (in which case the conviction should have been affirmed)¹⁹ or they will have failed to appreciate that the evidence is also insufficient under Jackson v. Virginia (in which case the defendant should have received an appellate acquittal).²⁰ Under Clewis, therefore, only law abiding citizens or acquittal deserving defendants get a raw deal.²¹ In practice, the former is usually the case.

The Clewis standard also presents a federal constitutional problem assuming the jury is the sole judge of the credibility and weight of the evidence as Article 38.04 clearly requires. The only real way to reconcile Clewis and Cain is to follow the “plain” language of Article 38.04 and decide that an appellate court must defer to the jury’s credibility and weight determinations.²² Deferring to the jury’s credibility and weight determinations, the Jackson v. Virginia standard requires a reversal when the reviewing court determines that the jury’s verdict is “irrational.” Deferring to the jury’s credibility and weight determinations, the Clewis standard requires a reversal when the reviewing court determines that the jury’s verdict is “clearly wrong or unjust” or “manifestly unjust.”

This is a tougher standard to meet than the Jackson v. Virginia standard. This presents a federal constitutional problem because Jackson v. Virginia insufficiency requires the remedy of an acquittal²³ while Clems insufficiency requires the remedy of only a remand for a new trial. Assuming appellate deference to the jury’s credibility and weight determinations as Article 38.04 clearly requires, a finding that is “manifestly wrong and unjust” under Cle-wis cannot also be considered “rational” under Jackson v. Virginia, and a finding that is “rational” under Jackson v. Virginia cannot also be considered “manifestly wrong and unjust” under Clewis.

The Court’s opinion also erroneously states this Court has only addressed a “factual sufficiency” standard when a defendant “had the burden of proving [an] affirmative defense by a preponderance of the evidence” but not “when a [defendant] contests the factual sufficiency of an issue in which the State possessed the burden of proof.” See Johnson, 23 S.W.3d at 10. This is erroneous as Clewis clearly addressed whether a “factual sufficiency” standard should be applied to matters the State has to prove. See Clewis, 922 S.W.2d at 132.

The Court also errs to adopt both prongs of the civil “factual sufficiency” standard to matters the State has to prove. See Johnson, 23 S.W.3d at 9-10. The Court does this for the sake of “harmonizing” our “civil and criminal” jurisprudence. See Johnson, 23 S.W.3d at 11. The civil side, however, does not permit a party to raise both prongs of the civil “factual sufficiency” standard to matters upon which the other party has the burden of proof. See Johnson, 23 S.W.3d at 9-10. The civil side permits the challenging party to raise only one “factual sufficiency” challenge. See id. The Court’s opinion, therefore, does not “harmonize” our “civil and criminal jurisprudence.”

To be consistent with the civil side, a defendant with the burden of proof on an issue such as an affirmative defense would raise a “factual insufficiency” point by claiming the jury’s failure to find the affirmative defense is “against the great weight and preponderance of the evidence.” See id. The only “factual sufficiency” challenge a defendant would raise to a jury’s adverse finding on matters the prosecution has to prove would be to claim the jury’s finding is “clearly wrong and manifestly unjust.” See id.

Finally, it should be noted that the Court of Appeals misapplied the contradictory “factual sufficiency” standard set out in the Court’s opinion today. Despite its statements to the contrary, the Court of Appeals could not have reversed this conviction without substituting its judgment for the jury’s on credibility and weight determinations or, as the Court’s opinion says today, without “substantially [intruding] upon the fact finder’s role as the sole judge of the weight and credibility given to witness testimony.” See Johnson, 23 S.W.3d at 7; Johnson, 978 S.W.2d at 707 (Rodriguez, J., dissenting). And, on this record, it cannot be said that “a different result is appropriate,” or that this case presents “exceptional circumstances,” or that the jury’s verdict is “manifestly wrong and unjust.” See Johnson, 23 S.W.3d at 7, 8.

In summary, rather than digging our jurisprudence deeper into the Clewis quagmire, the Court should overrule Clewis.²⁴ I would do this because Clewis is contrary to clear legislative intent, it is internally contradictory, it ignored 75 years of well-settled precedent, it has been overruled in part by Cain, it is now more out of “harmony” with the civil side than it was before, it seriously misapplies the Jackson v. Virginia standard, it does not accomplish its goal of preventing an “unjust” conviction, it has usually resulted in a reversal of only “well-founded” convictions,²⁵ and it carries the very real possibility as has happened in at least two reported cases²⁶ that a defendant could be reprosecuted for an offense for which he should have been acquitted under Jackson v. Virginia.

I respectfully dissent.

1 .Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

2 . Arguing that principles of stare decisis require continued adherence to Clewis is disingenuous as Clewis itself ignored these principles. See Clewis, 922 S.W.2d at 155-57 (McCormick, P.J., dissenting) (explaining how Clewis ignored 75 years of well-settled precedent).

3 . See Clewis, 922 S.W.2d at 152-55 (McCormick, P.J., dissenting) (Legislature, pursuant to constitutional authority, very carefully insured that a civil "factual sufficiency” standard would not apply to criminal cases).

4 . So, from its very inception the Clewis standard was out-of-harmony with civil law which undermines its stated rationale to harmonize criminal and civil law. See Clewis, 922 S.W.2d at 129 (erroneously claiming that its holding "harmonizes the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual sufficiency”).

5 . The criticisms of the Clewis dissenters, however, were directed at the Clewis decision itself and not at the intermediate appellate courts. See Clewis, 922 S.W.2d at 151-58 (McCormick, P.J., dissenting).

6 . See Footnote 19.

7 . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct, 2781, 61 L.Ed.2d 560 (1979).

8 . See also Clewis, 922 S.W.2d at 152-53 (McCormick, P.J., dissenting).

9 . Another case decided after Clewis repeated this contradiction. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Cr.App.1996), cert0 denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). In the same sentence Jones says that the jury is "the sole judge of the weight and credibility of witness testimony” but also says the reviewing court’s evaluation "should not substantially intrude upon” this function that Jones says belongs solely to the jury. Jones, 944 S.W.2d at 648.

10 . Clewis rejected this when it was raised in one of the dissenting opinions. Compare Cle-wis, 922 S.W.2d at 135 (Article 38.04 does not apply .to the "appellate process”), with, Cle-wis, 922 S.W.2d at 154-55 (McCormick, P.J., dissenting) (Article 38.04 requires appellate deference to jury’s credibility and weight determinations). So, Cain overruled that part of Clewis which decided that Article 38.04 does not apply to the appellate process.

11 . A reviewing court cannot set aside a verdict because it is "against the great weight of the evidence” without substituting its judgment for the jury’s on questions of credibility and weight of the evidence. In also deciding that a reviewing court must defer to the jury's credibility and weight determinations, Clewis and Cain are contrary to the essential nature of a “factual sufficiency” standard which in all cases permits the reviewing court to substitute its judgment for the jury’s on credibility and weight determinations.

12 . The Court's opinion repeats the contradictory statements from Jones that an appellate court "must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder’s role as the sole judge of the weight and credibility given to witness testimony.” (Emphasis Supplied). See Footnote 9.

13 .I have yet to see any case where Clewis has prevented an "unjust” conviction. It is difficult to imagine how a "rational” finding of guilt beyond a reasonable doubt could also be considered "manifestly unjust.” So far, there has been no case where 40 nuns have showed up at a convicted defendant's trial to proclaim his innocence which is the only “useful example” of an "unjust” conviction that Clewis .provides. See Clewis, 922 S.W.2d at 133 fn. 12. Absent these kinds of facts, the intermediate appellate courts should hesitate to reverse convictions on "factual sufficiency” grounds.

14 .This was necessary to support Clewis’ “harmonization with civil law” rationale which the Court’s opinion in this case also carries forward. Civil law has "no evidence” and "factually insufficient evidence” sufficiency standards. The "harmonization with civil law” rationale would be undermined if the Jackson v. Virginia standard was characterized as something other than a "no evidence” standard. Harmony would be lost.

Of course, there are many examples where the criminal side and the civil side are not in harmony. The two most glaring examples are burden of proof and right to appeal. Unlike the criminal side where the burden of proof is beyond a reasonable doubt, the burden of proof on the civil side is preponderance of the evidence. Unlike the civil side where both parties have the right to appeal an adverse jury verdict, the State has no right to appeal an adverse jury verdict in a criminal case.

15 . Compare Clewis, 922 S.W.2d at 132 fn. 10, with, Clewis, 922 S.W.2d at 156 fn. 8 (McCormick, P.J., dissenting).

16 . See Clewis, 922 S.W.2d at 156 fn. 8 (McCormick, P.J., dissenting) and authorities cited therein.

17 . The reader might note that Clewis would permit a reprosecution of A and the defendant in the 40 nun hypothetical when they would be entitled to appellate acquittals under Jackson v. Virginia which further undermines Cle-wis ' rationale that it is needed to prevent an "unjust” conviction.

18 . See Clewis, 922 S.W.2d at 155-56 (McCormick, P.J., dissenting); see also Clewis v. State, 876 S.W.2d 428, 438-39 (Tex.App.— Dallas 1994), rev'd, Clewis, 922 S.W.2d at 134 (by requiring the reviewing court to consider all the evidence, the Jackson v. Virginia standard has a "built-in factual sufficiency component” although in "a more limited fashion” than a civil "factual sufficiency” standard).

19 . See, e.g., Goodman v. State, 5 S.W.3d 891 (Tex.App. — Houston [14th Dist.] 1999, pet. filed)(most recent and clearest example of misapplication of Clewis "factual sufficiency” standard to reverse a "well-founded” conviction); see also Cain, 958 S.W.2d at 408-10 (another example of misapplication of Clewis "factual sufficiency” standard to reverse a "well-founded” conviction); Reina v. State, 940 S.W.2d 770 (Tex.App. — Austin 1997, pet. ref'd) (same); Gaffney v. State, 940 S.W.2d 682 (Tex.App. — Texarkana 1996, pet. ref'd) (same); Perkins v. State, 940 S.W.2d 365 (Tex. App. — Waco 1997), vacated and remanded, 993 S.W.2d 116 (Tex.Cr.App.1999) (same); Fulton v. State, No. 10-95-00169 (Tex.App.— Waco, delivered April 3, 1996) (nonpubl-ished), petition for discretionary review dismissed as improvidently granted (Tex.Cr.App. No. 954-96) (same); Bell v. State, No. 10-97-062-Cr (Tex.App. — Waco, delivered February 18, 1998, pet. filed) (same).

20 . The author has found two reported cases where the Courts of Appeals reversed a conviction on Clewis "factual insufficiency” grounds and remanded for a new trial when the appellants were actually entitled to appellate acquittals under a proper application of Jackson v. Virginia. See Burns v. State, 958 S.W.2d 483 (Tex.App. — Houston [14th Dist.] 1997, no pet.); White v. State, 890 S.W.2d 131 (Tex.App. — Texarkana 1994, pet. ref'd). In reversing and remanding for a new trial on Clewis "factual sufficiency” grounds, White actually relied on this Court’s decision in Foster v. State which set out the requirements for applying Jackson v. Virginia’s evidentiary review standard! White, 890 S.W.2d at 139 citing Foster v. State, 635 S.W.2d 710, 719 (Tex.Cr.App.1982) (op. on reh’g). So, even though it purported to apply the Clewis "factual sufficiency” standard, White effectively applied the Jackson v. Virginia standard to decide that the prosecution could reprosecute the appellant when he should have been acquitted on appeal.

21 . Here, the Court of Appeals decided that appellant’s guilt was, not "established beyond a reasonable doubt” and remanded the case for a new trial. Johnson v. State, 978 S.W.2d 703, 707 (Tex.App. — Corpus Christi 1998). If this were true, then the Court of Appeals should have provided the remedy of an acquittal instead of providing the prosecution with another opportunity to convict appellant whose guilt was not "established beyond a reasonable doubt” in the first trial.

22 . Or, the Court could do another flip-flop and decide that Article 38.04 does not apply to the appellate process.

23 . See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

24 . Compare Tibbs v. Florida, 397 So.2d 1120, 1125-26 (Fla.1981) (abandoning its short-lived experiment with "factual sufficiency” review standard for policy reasons and also because this standard was unworkable).

25 . See Footnote 19.

26 . See Footnote 20.