Ex parte Queen , 1992 Tex. App. LEXIS 1276 ( 1992 )

OLIVER-PARROTT,

Chief Justice, concurring.

I am compelled to concur in the result reached by the majority because the Court quite correctly follows the holding in Lof-ton v. State, 777 S.W.2d 96, 97 (Tex.Crim.App.1989). I believe, however, that our higher court should reevaluate its holding in that case. The issue is whether the defendant waives the right to have the sufficiency of the evidence reviewed following his conviction by subsequently asserting his procedural right to request a new trial based on trial error. Although Lofton assumes that the United States Supreme Court decided this issue in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), I respectfully disagree. Richardson specifically addressed whether a defendant could prevent a retrial because of insufficient evidence where the jury never reached a verdict. Without a verdict, or conviction, the court held there was no jeopardy. In Lofton, the court compared the post-verdict granting of a new trial to a mistrial occasioned by a hung jury. If Lofton is correct, a defendant whose conviction is reversed for trial error, but who fails to persuade the court that the evidence is insufficient, cannot bar retrial by challenging the sufficiency of the evidence on federal habeas corpus. However, the federal courts have permitted a defendant in this situation to contest the sufficiency of the evidence on habeas corpus before retrial. United States v. Sneed, 705 F.2d 745 (5th Cir.1983); Delk v. Atkinson, 665 F.2d 90 (6th Cir.1981); cf. Gully v. Kunzman, 592 F.2d 283 (6th Cir.), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979). Such a defendant is in the same posture as appellant, who was granted a post-verdict new trial based on trial error. There is no reason that appellant should be penalized by denial of a review of the sufficiency of the evidence simply because he obtained a post-verdict reversal from the trial as opposed to the appellate court.

Perhaps a brief review of the procedural facts of this case most clearly demonstrates the injustice of the Lofton rule. Appellant’s motion for new trial was initially overruled and direct appeal was commenced. Appellate counsel (who did not represent appellant at trial or for purposes of post-trial motions) moved to abate the appeal when the trial judge agreed to rehear the motion for new trial. The trial judge then granted the new trial on the basis of ineffective assistance of counsel. Appellant now finds himself with no avenue to question the sufficiency of the evidence. If the trial judge had erroneously denied the motion for new trial, appellant would have had a right to complete appellate review. Certainly, such result is contrary to fairness and common sense. If the evidence was insufficient at appellant’s first trial, he should not be subject to the retrial. The Lofton rule precludes our even reviewing the evidence to determine its sufficiency. We should have that opportunity, and the appellant should have that right.

Although I concur with the majority in the application of the current law, I respectfully assert that the Lofton case should be readdressed, and the appellate court should be permitted to review the evidentiary challenges in these circumstances.