Jack Wayne Reeves v. State ( 1996 )

Reeves-JW v. State

IN THE

TENTH COURT OF APPEALS

No. 10-96-038-CR

     JACK WAYNE REEVES,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 13,813

CONCURRING OPINION

      Although I join the Court's opinion, I write separately to urge the Court of Criminal Appeals to reexamine the standard of review adopted in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

      Clewis applies to a review of the factual sufficiency of the evidence to support the affirmative finding of the elements of the offense. Under the standard, a reviewing court "views all the evidence without the prism of ``in the light most favorable to the prosecution' ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id. My concern is whether the Clewis standard properly reflects the State's burden of proof at trial—beyond a reasonable doubt.

      In setting the standard for reviewing the findings of fact on the elements of an offense, the Clewis opinion barely addresses an initial question which civil appellate lawyers describe as essential: Who had the burden of proof at trial? William V. Dorsaneo, III, 6 Texas Litigation Guide § 151.05[3][b][iii] (1996); W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L. J. 1041, 1138-39 (1993); R. Orsinger, Successful Challenges to Legal and Factual Sufficiency, 1991 Advanced Civil Appellate Course, State Bar of Texas, N17-19; W. Wendell Hall, Standards of Appellate Review in Civil Appeals, 21 St. Mary's L. J. 865, 909-10 (1990); R. Townsend, W. Wendell Hall, & Madelyn DeWoody, Standards of Review and Reversible Error, 1990 Advanced Civil Appellate Course, State Bar of Texas, F21-22; see also William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 517-19 n.7-11 (1991).

      In civil cases, when an appellate court considers a "factually insufficient evidence" challenge, asserted by the party who did not have the burden of proof at trial, the reviewing court must consider and weigh all of the evidence in the case and set aside the verdict and remand the cause for a new trial if it concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 n.11 (1991).

      When an appellate court considers a "contrary to the weight and preponderance" challenge against a "failure to find," asserted by the party who did have the burden of proof at trial, the reviewing court may reverse and remand a case for a new trial when it concludes that the jury's "failure to find" is against the great weight and preponderance of the evidence. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988).

      It has been said that the difference in phrasing the formulations of the civil factual insufficiency standards is "merely semantical" and that the standards are "identical." Clewis, 876 S.W.2d 428, 432, 432 n.10 (Tex. App.—Dallas 1994), rev'd, 922 S.W.2d 126. Indeed, the two propositions are often cited as one. E.g., White v. Liberty Eylau ISD, 920 S.W.2d 809, 813-14 (Tex. App.—Texarkana 1996, writ denied); Ocean Transport, Inc. v. Greycas, Inc., 878 S.W.2d 256, 262-63 (Tex. App.—Corpus Christi 1994, writ denied); Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 509 (Tex. App.—Corpus Christi 1993, writ denied). Even if the difference is semantical in civil cases, my view is that the difference is substantive in the criminal context, because of the State's greater burden of proof at trial.

      In the first criminal case to apply a factual-sufficiency review to the elements of an offense, the Austin Court rejected the factual-insufficiency test in favor of the against-the-great-weight-and-preponderance test because the former "does not import the preponderance-of-the-evidence burden of proof." Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin 1992, pet. ref'd, untimely filed). The Clewis opinion simply holds that the review standard enunciated in Stone correctly acknowledges the trial standard. Clewis, 922 S.W.2d at 129; Stone, 823 S.W.2d at 381. Neither opinion explains how. The Austin Court assessed the difference in the civil standards:

A great-weight-and-preponderance point of error and a factually-insufficient-evidence point of error both challenge the factual sufficiency of the evidence, but by convention in civil cases, different names are used to identify which party had the burden of proof. When the jury gives an answer adverse to a party on an issue on which the party did not have the burden of proof, the jury finding is properly attacked by a factually-insufficient-evidence point of error. When the jury gives an answer adverse to a party on an issue on which the party did have the burden of proof, the jury finding is properly attacked by an against-the-great- weight-and-preponderance point of error. See Michol O'Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65, 67 (1974). Technically, therefore, the criminal defendant would attack the jury's guilty verdict by means of a factually-insufficient-evidence point of error, although a failure to frame properly the point of error should not result in waiver. A criminal defendant properly attacks the jury's failure to find the elements of his affirmative defense by means of an against-the-great-weight-and-preponderance point of error. Because the criminal defendant's burden of proof on the affirmative defense is by a preponderance of the evidence, the phrasing of the point of error is logically consistent with the underlying burden of proof, just as it is in a civil case.

Stone, 823 S.W.2d at 380-81.

      The standard adopted by Clewis is the same standard enunciated in Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990). The Meraz standard is proper when a defendant challenges the jury's rejection of an affirmative defense on which the defendant had the burden of proof by a preponderance of the evidence. With respect to factual-sufficiency challenges by parties who had the burden of proof at trial, Meraz "harmonizes the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual sufficiency." Clewis, 922 S.W.2d at 129. Why? Because under the Meraz standard, the question is: Was the finding contrary to the overwhelming weight of the evidence on the issue? In other words, did the jury, in order to convict the defendant, reject evidence in favor of the affirmative defense which outweighed the contrary evidence?

      Conversely, when a defendant complains of factual insufficiency of the evidence to support the finding on the elements of the offense, on which the State had the burden, the reviewing court should not ask whether the weight of the evidence actually favored acquittal, as the Clewis standard suggests (was the verdict contrary to the overwhelming weight of the evidence?). Rather, the court should ask whether the weight of the evidence is sufficient to reach the trial standard of beyond a reasonable doubt. This difference takes into account that evidence in favor of conviction could outweigh the contrary evidence and still be factually insufficient to satisfy the reasonable-doubt standard.

      The correct formulation would ask whether a review of all the evidence, both for and against the finding, demonstrates that the finding of guilt is clearly wrong and unjust. Reversal for a new trial could occur because the finding was based on weak or insufficient evidence or because the proof of guilt, although adequate if taken alone, is offset by contrary proof to the extent that the reasonable-doubt standard is not satisfied.

      One solution would be to recognize the burden of proof at trial in the statement of the review standard: Given that the burden of proof at trial was beyond a reasonable doubt, does a review of all of the evidence, both for and against the finding, demonstrate that the verdict is clearly wrong and unjust? Such a standard would recognize that the quantum of proof is greater in the criminal context.

                                                                                 BILL VANCE

                                                                                 Justice

Opinion delivered and filed December 18, 1996

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