Taylor v. State , 1983 Tex. App. LEXIS 4426 ( 1983 )

NYE, Chief Justice,

concurring.

I concur in the result reached by the majority. In light of the recent decision by the Court of Criminal Appeals in Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983), I must reluctantly concur in the opinion of the majority of this Court. My reluctance is based solely on my tacit complicity in sanctioning what I believe to be a very confusing set of standards for the review of sufficiency of the evidence questions from trials based solely on circumstantial evidence.

Were we charged with the duty of viewing the evidence in the light most favorable to the jury’s verdict, my position would be different, and I would agree with the dissent that the verdict and judgment should be affirmed. Until very recently, it was my understanding that, as an appellate court (especially the intermediate appellate court), we treated circumstantial evidence the same as direct evidence in determining its sufficiency to uphold a conviction. That is, we were required to view the evidence in the light most favorable to the jury’s verdict. That position was also taken by our Court of Criminal Appeals in many, many cases. See, for example, Hooker v. State, 621 S.W.2d 597, 601 (Tex.Cr.App.1980) (opinion on appellant’s motion for rehearing); Vaughn v. State, 607 S.W.2d 914, 919 (Tex.Cr.App.1980); Brasfield v. State, 600 S.W.2d 288, 290 (Tex.Cr.App.1980); Miller v. State, 566 S.W.2d 614, 617 (Tex.Cr.App.1978); Carlisle v. State, 549 S.W.2d 698, 703 (Tex.Cr.App.1977); and Brown v. State, 475 S.W.2d 938, 944 (Tex.Cr.App.1971); Jones v. State, 442 S.W.2d 698, 702 (Tex.Cr.App.1969). The rule in Federal cases that circumstantial evidence should be viewed in the light most favorable to the verdict when determining its sufficiency to support the conviction is the same as the rule that was in existence in Texas until changed most recently. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Alfrey, 620 F.2d 551, 555 (5th Cir.1980); United States v. Barrera, 547 F.2d 1250 (5th Cir.1977); United States v. Nazien, 504 F.2d 394, 395 (5th Cir.1974), cert. denied 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). See also United States v. Rusk, 512 F.2d 815 (5th Cir.1975). For a general overview of this question see CORNELIUS, “Appellate Review of Sufficiency of Evidence Challenges in Civil and Criminal Cases,” 46 Tex.B.J. 439 (1983).

In Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983), the Court of Criminal Appeals, in a brief opinion, abolished the 127-year tradition in this State of charging a jury on circumstantial evidence. I believe that some kind of instruction is needed to guide the court and jury. The rationale used by the Court in its action was that, under the evidentiary system used by this State, circumstantial evidence and direct evidence are of equal weight. Therefore, it is confusing and misleading to charge a jury on circumstantial evidence because such a charge erroneously suggests to the jury that proof of circumstantial evidence is subject to a different standard than that of direct evidence. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). The Court concludes “... that there is but one standard of proof for criminal convictions and where the jury is properly instructed on that standard, a charge on circumstantial evidence is valueless and invites confusion.” (Emphasis added.)

In almost the same breath, the Court then decided in Wilson v. State, supra, that there is “... a different standard of review in circumstantial evidence cases.” The Court instructs the bench and bar that reviewing courts must view the sufficiency of evidence in circumstantial evidence cases differently and apply a different standard than that used in reviewing sufficiency of the evidence in a direct evidence case.

I anticipate some additional confusion existing first with the trial juries trying to grapple with circumstantial and direct evidence without any instruction whatsoever except that the defendant must be found “guilty beyond a reasonable doubt,”¹ and secondly with courts of appeals and then the Court of Criminal Appeals, in effect, substituting themselves for the jurors in determining the sufficiency of the evidence to meet this undefined standard. Absent the time-honored presumption that the jurors did what they were supposed to do, this chore becomes difficult at best to those of us on the intermediate appellate court level who have only the cold record to review and are not privileged to see and judge the demeanor and credibility of the witnesses.

For example, in a case in which the State’s case is based solely on circumstantial evidence and the defendant offers eyewitness alibi testimony, are we to reverse a conviction because the alibi testimony precluded the exclusion of every other reasonable hypothesis except that of the guilt of the accused? Only the jurors can judge the truthfulness of the live testimony and the circumstantial evidence, and, absent a presumption in favor of their judgment, our role becomes one of speculation rather than determination when a sufficiency of the evidence question is raised on appeal in a circumstantial evidence case.

The Supreme Court of the United States said in Holland, 348 U.S. at 140, 75 S.Ct. at 137:

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” (citations omitted.)

If there is any one thing that the people of this nation value more than any other thing about the entire judicial system, it is their faith in juries. This value is higher than the faith people have in their judges. It is my belief that we must strengthen this virtue, rather than undermine it. “Faith is to believe what you do not yet see; the reward for this faith is to see what you believe.” St. Augustine.

The framers of the Texas Constitution conveyed to the courts of civil appeals final jurisdiction on all questions of fact, and this wisdom was carried forward when the current courts of appeals were created in 1981. Tex. Const, art. 5, § 6 (Vernon Supp.1982). Yet, in Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982), the Court of Criminal Appeals attempted to answer this jurisdictional question by stating that sufficiency of the evidence questions in criminal cases, whether factually sufficient or legally sufficient, are all questions of law. However, in Wilson, supra, the Court of Criminal Appeals re-examined the record of evidentiary facts and circumstances for reasonable hypotheses other than guilt, rejected the view of the trial judge, the jury and the justices of the Court of Appeals who had already undertaken that task, and substituted their views for the others’. This was true even though the Court, in Combs, supra, stated that “if there is any evidence which establishes guilt beyond a reasonable doubt and if the trier of facts believe that evidence, the Court of Criminal Appeals is not in a position to reverse that judgment.” Despite this language in the Combs case, the Court then turns around in the Wilson case and holds this is not to be the standard in circumstantial evidence eases and makes what I believe is a clearly factual determination in finding that evidence is insufficient to support a jury finding of guilt. I agree with many judges and lawyers that the function of the Court of Criminal Appeals is not that of “... an appellate arbiter over competing contentions of parties on direct appeal.” Wilson, supra. (Clinton, J., dissenting.)

Every appellant is entitled, under our system of jurisprudence, to one review of the factual determinations made in his case. However, as was intended by the framers of the Constitution and the legislature, and as has been acknowledged by our Supreme Court, that factual review is final with the courts of appeals. By their holding in Combs, the Court of Criminal Appeals has now created two complete factual reviews of criminal eases, and in so doing, has greatly diminished the constitutional jurisdiction of the courts of appeals.

If I viewed the evidence in the light most favorable to the jury, I would hold that the cumulative force of the circumstances shown was sufficiently consistent with the State’s theory of the appellant’s guilt beyond a reasonable doubt and sufficiently inconsistent with any other reasonable hypothesis except that of the defendant’s guilt. I would not substitute my judgment for that of the twelve men and women who found the defendant guilty.

However, since that is not now the standard under which we, as an intermediate appellate court, are required to decide this case, I must vote to reverse the judgment and set the defendant free. See: Wilson v. State, supra. I concur in the judgment of the majority.

1 . Texas being one of those states which has never permitted the submission of a definition of reasonable doubt.