Shanell Monique Mosley v. State ( 2010 )

Opinion issued December 30, 2010

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-08-00937-CR

          01-08-00938-CR

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SHANELL MONIQUE MOSLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 1182323 & 1182322

CONCURRING OPINION

I concur in the judgments of this Court, but write separately to explain why I do so in regard to the questions of fact presented to this Court by appellant, Shanell Monique Mosley, in light of my recent concurring opinion in Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at *5–17 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet. h.) (Jennings, J., concurring). 

In her second and fourth issues, appellant, citing Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000), argues that the evidence, when viewed not in the light most favorable to the prosecution, but when viewed neutrally, is factually insufficient to support her conviction for abandoning her children[1] because that evidence is “so weak that it makes the jury’s verdict clearly wrong and unjust” or “the finding of guilt is against the great weight and preponderance of the evidence.” 

As the Texas Court of Criminal Appeals clearly explained as recently as 2009, in addition to being supported by legally sufficient evidence, under Texas law,

A verdict must also be supported by factually sufficient evidence.  But unlike a legal sufficiency review, which is a federal due process requirement, a factual sufficiency review is a creature of state law. . . . On direct appeal, a court must begin its factual sufficiency review with the assumption that the evidence is legally sufficient under Jackson. Evidence that is legally sufficient, however, can be deemed factually insufficient in two ways: (1) the evidence supporting the conviction is “too weak” to support the factfinder’s verdict, or (2) considering conflicting evidence, the factfinder’s verdict is “against the great weight and preponderance of the evidence.” . . .  When a court of appeals conducts a factual sufficiency review, it must defer to the jury’s findings. . . .  We have set out three “basic ground rules” implementing this standard. . . .  First, the court of appeals must consider all of the evidence in a neutral light, . . . as opposed to in a light most favorable to the verdict. . . .  Second, the court of appeals may only find the evidence factually insufficient when necessary to “prevent manifest injustice.” . . .  Although the verdict is afforded less deference during a factual sufficiency review, the court of appeals is not free to override the verdict simply because it disagrees with it. . . .  Third, the court of appeals must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. . . .  This requirement serves two related purposes.  First, it supports the court of appeals’s judgment that a manifest injustice has occurred. . . .  And second, it assists us in ensuring that the standard of review was properly applied.

Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (Keasler, J., joined by Keller, P.J., Meyers, Womack, and Hearvey, JJ.) (emphasis added) (citations omitted).

          In fact, in 2005, on a direct appeal to the court of criminal appeals of a death-penalty capital murder conviction, the court itself conducted a factual‑sufficiency review of the evidence and reversed the conviction, which was based on the law of parties.  Vodochodsky v. State, 158 S.W.3d 502, 511 (Tex. Crim. App. 2005). In remanding the case, which involved the murder of three peace officers, for a new trial, Judge Keasler, writing for the majority, neutrally weighed the evidence and explained:

          In this case, the overwhelming weight of the evidence mitigates against the conclusion that Vodochodsky solicited, encouraged, directed, aided or attempted to aid [the principal actor] in committing the offense.  All of the evidence that could legally support a rational jury’s conclusion is nevertheless so weak that our confidence in the jury’s verdict is undermined. Although there was some evidence of a second shooter on the roof, this was not established.  While Vodochodsky’s statements were inconsistent, the inconsistencies were minor. When [the principal actor] expressed a desire to “do it right now” and Vodochodsky told him they did not yet have a plan, neither man specifically mentioned killing a peace officer.  When Vodochodsky told [another] that he bailed [the principal actor]  out of jail “to do this,” he did not specifically state that he bailed him out as part of a plan to kill police officers.  Vodochodsky removed belongings from the house, but there is no proof that he did so as part of a murderous plot.  And Vodochodsky’s comment to [the other] that [the principal actor] had “gone over the edge” when he took [a] deputy’s gun could just as reasonably have been a speculative comment, not one indicating that Vodochodsky had witnessed [the murder of one of the officers].

                   Indeed, none of that evidence necessarily suggests that Vodochodsky acted with intent to promote or assist [the principal actor].  None of his statements directly refer to killing police officers.  His statements are devoid of information on the details of the alleged murder plot, and there is no other information in the record suggesting that Vodochodsky was planning the event with [the principal actor].

Furthermore, other evidence suggests that Vodochodsky was not working with [the principal actor].  His whispered warning to [a witness] could indicate that while he may have known of [the principal actor]’s plan, he was not a party to it.  He did not participate in the purchase of ammunition. There is no evidence that Vodochodsky actually did any affirmative act to assist [the principal actor] with the plan. Instead, Vodochodsky had the bad luck of being the friend and roommate of a man determined to kill police officers and himself.

          We conclude that proof of Vodochodsky’s guilt was so weak as to undermine confidence in the jury’s determination.  This evidence was factually insufficient to convict.  Point of error two is sustained.

We reverse the judgment of the trial court and remand this case for Vodochodsky to answer the charges in the indictment.

Id. at 510–11 (emphasis added) (citations omitted).

          In regard to appellate challenges based on the factual insufficiency of the evidence in Texas courts of appeals, the factual-conclusivity clause of the Texas Constitution provides in no uncertain terms that:

[T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.

Tex. Const. art. V, § 6(a) (emphasis added).  The original intent of the drafters of the clause is clear.  The clause “requires” that Texas courts make a “distinction” between questions of law and questions of fact.  Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004).  As clearly explained, again by the court of criminal appeals, in Laster,

Unlike our jurisdiction over legal sufficiency decisions, our jurisdiction over the court of appeals’s factual sufficiency decisions is limited. . . .  The Factual Conclusivity Clause gives final appellate jurisdiction to the court of appeals on questions of fact brought before the court. . . .  We review the court of appeals’s factual sufficiency analysis to ensure that the court applied the correct legal standard and considered all of the relevant evidence. . . .  We do not conduct a de novo factual sufficiency review. . . .  If we determine that the court of appeals applied the wrong standard or misapplied the correct standard, the case must be remanded to the court of appeals to conduct a proper factual sufficiency review.

275 S.W.3d 518–19 (emphasis added) (citations omitted).

Thus, under the factual-conclusivity clause, this Court has a duty to address appellant’s question of fact as a question of fact, i.e., by neutrally considering and weighing all the evidence in the record, including that which is contrary to the jury’s verdict.  Id.; Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex. Crim. App. 1993); Meraz v. State, 785 S.W.2d 146, 153 (Tex. Crim. App. 1990); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 633–35 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661–62 (Tex. 1951).  Moreover, the Texas Legislature has expressly directed, consistent with the factual-conclusivity clause, that Texas courts of appeals “may reverse the judgment in a criminal action . . . upon the facts.”  Tex. Code Crim. Proc. Ann. art. 44.25 (Vernon 2006) (entitled, “Cases Remanded”). Indeed, it is reversible error for a court of appeals to address a question of fact as a question of law.  In re King’s Estate, 244 S.W.2d at 661–62; Ex parte Schuessler, 846 S.W.2d at 852; Meraz, 785 S.W.2d at 153.

Regardless, five judges on the court of criminal appeals, in two separate opinions, have recently concluded that in criminal cases “a legal-sufficiency [appellate] standard [of review] is ‘indistinguishable’ from a factual-sufficiency [appellate] standard” of review.  Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. App. 2010) (Hervey, J., joined by Keller, J., Keasler, J., and Cochran, J.); see id. at 912–26 (Cochran, J., joined by Womack, J., concurring) (overruling use in criminal cases of factual-sufficiency appellate standard of review, which was consistent with Texas Supreme Court precedent and articulated in Clewis v. State, 922 S.W.2d 126, 134–36 (Tex. Crim. App. 1996)). The five judges purport to substitute a legal-sufficiency appellate standard of review in place of a factual‑sufficiency appellate standard of review.  Brooks, 323 S.W.3d at 895 (holding that legal-sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) is “only standard” reviewing court should apply in determining whether evidence is sufficient to support each element of criminal offense). Asserting that the “two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both,” the five judges purport to eliminate from Texas’s criminal jurisprudence the factual-sufficiency appellate standard of review.  Id. (emphasis added).

The effect of this, which was not addressed by the five-judge majority in either of their opinions, would be to prohibit Texas courts of appeals in criminal cases from actually deciding questions of fact, which by their very nature require a Texas court of appeals to consider and weigh all the evidence in a trial record, and, if appropriate, reverse the judgment of a trial court and remand for a new trial as was done by the court of criminal appeals in Vodochodsky.  It would confine the courts of appeals to addressing the purely legal question of whether the evidence, when not weighed, but rather when viewed in the light most favorable to the prosecution, is legally sufficient to support a criminal conviction.  Thus, it would render the factual-conclusivity clause of the Texas Constitution and article 44.25 of the Texas Code of Criminal Procedure dead letters in criminal appeals. 

Simply put, the court of criminal appeals has neither the jurisdiction nor any lawful authority to do this.  In fact, three years prior to issuing its opinion in Clewis, the court itself acknowledged that it simply may not order Texas courts of appeals to use a legal-sufficiency appellate standard of review to decide the questions of fact brought before them on appeal.  Ex parte Schuessler, 846 S.W.2d at 852.  Recognizing that it may not “interfere[] with the fact jurisdiction of the intermediate appellate courts,” the court emphasized that it is “not constitutionally authorized to adopt a standard of review for the court[s] of appeals . . . inconsistent with Art. V, § 6 of [the Texas] Constitution.” Id. at 853 (emphasis added) (quoting Meraz, 785 S.W.2d at 153).  Any such action taken by the court of criminal appeals is, in its own words, “void ab initio.”  Ex parte Schuessler, 846 S.W.2d at 853.

In regard to the plurality and concurring opinions in Brooks, it is true that under the doctrine of stare decisis that once “the highest court of the State having jurisdiction” of a matter decides a “principle, rule or proposition of law,” that court and all “other courts of lower rank” must accept the decision as “binding precedent.”  Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (emphasis added).  It is also true that the court of criminal appeals has final appellate jurisdiction on all questions of law in criminal cases.  Tex. Const. art. V, § 5.  However, only four of the five court of criminal appeals judges who would substitute the Jackson legal-sufficiency standard for a factual-sufficiency standard purport to do so under Article V, section 5 of the Texas Constitution.  Brooks, 323 S.W.3d at 912 (Hervey, J.). 

More importantly, under the factual-conclusivity clause, a Texas court of appeals, in regard to its decisions on the questions of fact presented to it, is not a court of rank “lower” than either the supreme court or the court of criminal appeals because the courts of appeals have conclusive, exclusive, and final authority over such questions of fact.  As recognized by the court of criminal appeals, the factual‑conclusivity clause gives “final appellate jurisdiction to the courts of appeals on questions of fact brought before” them.  Laster, 275 S.W.3d at 518.  Under the clause, the court of criminal appeals’ jurisdiction on questions of fact is “limited” to ensuring that a court of appeals has answered a question of fact as a question of fact.  Id. And neither the supreme court nor the court of criminal appeals has any jurisdiction to create a factual-sufficiency appellate standard of review “in conflict” with the Texas Constitution, i.e., any standard that would eliminate or in any way interfere with the exclusive authority of the courts of appeals to actually decide the questions of fact presented to them by considering and weighing all the evidence in a trial record. Ex parte Schuessler, 846 S.W.2d at 852–53; Meraz, 785 S.W.2d at 152; see also Pool, 715 S.W.2d at 633–35; In re King’s Estate, 244 S.W.2d at 661–62.  Thus, the doctrine of stare decisis does not bind a Texas court of appeals to apply such an invalid, unconstitutional, appellate standard of review.

After further consideration of the instant case, I have grave doubts that the evidence, when viewed neutrally and weighed, as was done in Vodochodsky, and not viewed only in the light most favorable to the prosecution, is factually sufficient to support appellant’s conviction.  Nevertheless, the majority in Ervin decided to answer Ervin’s question of fact as a question of law by applying the Jackson legal-sufficiency appellate standard of review and viewing the evidence in the light most favorable to the prosecution.  Although the majority erred in doing so, this Court did have jurisdiction to so err, and, unless this Court subsequently overrules Ervin, we must accept Ervin as binding precedent.  Swilley, 374 S.W.2d at 875.

Accordingly, I concur in the judgments of this Court.  

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Massengale.

Justice Jennings, concurring.

Publish.  Tex. R. App. P. 47.2(b).

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[1]               See Tex. Penal Code Ann. § 22.041 (Vernon 2010).