Andre Cleveland v. State ( 2005 )

  Opinion issued April 7, 2005  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-01040-CR

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ANDRE CLEVELAND, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 960271

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CONCURRING OPINION  

          Because the en banc court errs in holding that an appellate court is to employ the same standard of review “applied in civil cases” in conducting a legal sufficiency review of a fact finder’s rejection of an accused’s defensive theory, and in overruling Patterson v. State, 121 S.W.3d 22 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d), I concur only in the judgment of the en banc court.  

          The en banc court holds that “the proper standard in criminal cases for review of legal-sufficiency challenges to a jury’s negative finding on an issue that the defendant had to prove is the same standard applied in civil cases.” In overruling Patterson, the majority emphasizes:

We discern no rational basis on which to reconcile Patterson’s conclusion, that we lack jurisdiction to review challenges to the legal sufficiency of the evidence to support a factfinder’s negative finding on an issue that a criminal defendant had to prove at trial.

However, the standard of review utilized in civil cases to determine the legal sufficiency of the evidence in regard to a negative finding on an issue on which a party has the burden of proof is inapplicable in the criminal law context.   

          In a civil case, when a party attacks the legal sufficiency of an adverse finding on an issue on which the party has the burden of proof, the party “must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (emphasis added). In reviewing a “matter of law” challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence that supports the finding, the reviewing court must then examine the entire record to determine if the contrary proposition is “established as a matter of law.” Id. A point of error should be sustained only if the contrary proposition is conclusively established. Id. Such a “matter of law” challenge is not applicable in criminal cases where the State has the burden of persuasion, not a burden of production, in disproving the defensive theories of an accused. Saxton v. State, 804 S.W.2d 910, 912-13 (Tex. Crim. App. 1991).

          In Saxton, the Court of Criminal Appeals reversed the court of appeals’ holding that “the State failed to produce evidence to refute [the defendant’s] claim of self-defense and that all of the evidence is uncontradicted and is consistent with self- defense.” Id. at 912 (citation omitted). The court specifically noted that the appellate court’s “implicit holding that [the defendant] established ‘as a matter of law’ that he acted in self-defense is incorrect.” Id. at 912 n.4. The court disavowed its previous use of the “as a matter of law” language in the context of the issue of self-defense, “[g]iven that the question of whether the accused acted in self-defense is a fact issue for the trier of fact’s determination and that ‘beyond a reasonable doubt’ is the required level of proof.” Id. at 912 n.3. In holding that the court of appeals utilized the wrong standard of review, the court emphasized:

[T]he State has the burden of persuasion in disproving the evidence of self-defense. That is not a burden of production, i.e., one which requires the State to affirmatively produce evidence refuting the self-defense claim, but rather a burden requiring the State to prove its case beyond a reasonable doubt. . . . [M]ore importantly, case law instructs us that the issue of self-defense is an issue of fact to be determined by the jury. Defensive evidence which is merely consistent with the physical evidence at the scene of the alleged offense will not render the State’s evidence insufficient since the credibility determination of such evidence is solely within the jury’s province and the jury is free to accept or reject the defensive evidence. A jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory.

Id. at 913-14 (alterations in original) (citations omitted).

          Accordingly, it is now well-settled law that in reviewing the legal sufficiency of the evidence in regard to a fact finder’s rejection of a defensive issue, “we look not to whether the State presented evidence which refuted appellant’s [defensive evidence], but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the [defensive] issue beyond a reasonable doubt.” Id. at 914 (citations omitted).

          The issue of sudden passion, like the issue of self-defense, is an issue of fact to be determined by the fact finder, and the fact finder is free to accept or reject defensive evidence on the issue. Such a defensive theory, by its very nature, cannot be conclusively established “as a matter of law” in a criminal case. The en banc court’s holding to the contrary, i.e., that we employ the legal sufficiency standard of review “applied in civil cases” to review an accused’s challenge to the fact finder’s rejection of a defensive issue in a criminal case, is in error.

                                                                        Terry Jennings

                                                                        Justice

En banc court consists of Chief Justice Radack and Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley and Bland.

Justice Jennings, concurring, joined by Justice Keyes.

Publish. Tex. R. App. P. 47.2(b).