Selph v. State ( 1988 )

BLEIL, Justice,

dissenting.

I dissent to this Court’s usurpation of what I believe to be a jury function: fact finding.

As the majority acknowledges, there is evidence which could indicate Selph’s guilty intent, but the majority finds it not sufficient to exclude every other reasonable hypothesis. It also acknowledges that intent almost always must be proved by circumstantial evidence, citing Dillon v. State, 574 S.W.2d 92 (Tex.Crim.App. [Panel Op.] 1978). Over a two-week period, Selph wrote five bad checks totalling $8,658.90 for merchandise delivered to him. He never paid nor offered to pay one penny of the money he owed. Surely the jury might have been justified in concluding from the circumstances that, at least for one instant, Selph intended to deprive the owner of property. As said in Dillon, “it is for the trier of fact to determine which circumstances to accept as proven_” 574 S.W. 2d at 95. The majority’s approach puts this Court in the position of second-guessing the jury. I believe that, as in Dillon, “Such an approach to the issues of proof of culpable mental states would render the evidence insufficient in all cases, as it is always possible that one’s intents are different than what all outward appearances would indicate.”

I did not see or hear Robert Selph — nor the other witnesses — testify. I did not observe the witnesses’ demeanor. The jury did. The jury, being the judges of the facts and credibility of the witnesses, is free to choose to believe or not believe the witnesses, in whole or in part. Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App.1986). We are not the jury and therefore not so free to choose what to believe and disbelieve, neither are we free to determine what weight to give the evidence.

Viewing the evidence in the light most favorable to the prosecution and assuming that the jury did not believe Selph, but did believe the evidence against him, this Court would be required to affirm the conviction. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Sharp v. State, 707 S.W.2d at 614.