Brooks, Kelvin Kianta ( 2010 )


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  •               IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-0210-09
    KELVIN KIANTA BROOKS, Appellant
    v.
    THE STATE OF TEXAS
    ON APPELLANT’S AND STATE’S
    PETITIONS FOR DISCRETIONARY REVIEW
    FROM THE TENTH COURT OF APPEALS
    MCLENNAN COUNTY
    C OCHRAN, J., filed a concurring opinion in which W OMACK, J., joined.
    OPINION
    I adhere to my view that the 1996 judicial creation of the “Clewis 1 factual-sufficiency
    review was a well-intentioned but ultimately unworkable effort to incorporate civil standards
    of review on elements of a crime that must be proven beyond a reasonable doubt.” 2
    1
    Clewis v. State, 
    922 S.W.2d 126
    (1996).
    2
    Watson v. State, 
    204 S.W.3d 404
    , 421 (Tex. Crim. App. 2006) (Cochran, J., dissenting).
    Brooks Concurring Opinion   Page 2
    I.
    A.     The Evidence in This Case Either Is or Is Not Legally Sufficient to Support a
    Conviction.
    The evidence in this case is either sufficient to support appellant’s conviction under
    the constitutionally-mandated Jackson 3 standard or it is not. It cannot be “semi-sufficient.”
    Appellant was charged with possession of cocaine with the intent to distribute it. At
    trial, he denied that the baggie containing 4.72 grams of cocaine and five ecstacy pills found
    in the pool table pocket return was his, although he admitted ownership of the baggie of
    marijuana that he tossed under that pool table. On appeal, he argued that the evidence was
    both legally and factually insufficient to prove that he possessed the cocaine with the intent
    to distribute it. The court of appeals found that the evidence was legally sufficient to support
    a finding, beyond a reasonable doubt, that appellant possessed the cocaine with the intent to
    distribute it. In doing so, it relied on a list of seven facts, beyond the mere amount of
    cocaine, that supported the jury’s guilty verdict. 4 But then, in finding the evidence factually
    3
    Jackson v. Virginia, 
    443 U.S. 307
    (1979).
    4
    Brooks v. State, No. 10-07-00309-CR, 2008 Tex. App. LEXIS 7364 at *12 (Tex.
    App.—Waco 2008). The majority opinion in the court of appeals noted these additional facts:
    (1)   both the bag of marihuana and the bag of cocaine were packaged in the same
    manner;
    (2)   [appellant] was not in possession of any drug paraphernalia for either use or sale;
    (3)   [the State’s DEA expert] testified that users typically carry some type of heating
    element, such as a crack pipe, but dealers do not;
    (4)   at the time of his arrest, [appellant] was not under the influence of a narcotic;
    (5)   [appellant] has a previous conviction for possession with intent to deliver;
    (6)   [appellant] attempted to evade capture and discarded contraband in the process;
    and
    (7)   [appellant] was found in possession of three different types of drugs.
    Brooks Concurring Opinion       Page 3
    insufficient to support a finding of intent to distribute, the majority set out a totally different
    list of facts that the record did not show: There was no evidence that (1) appellant was in a
    high crime area; (2) the cocaine was packaged especially for sale; (3) he was carrying a large
    amount of cash; or (4) he had drug-dealing paraphernalia on him.5 The court used positive
    inferences for legal sufficiency (what the evidence did show) and then negative inferences
    for factual sufficiency (what the evidence did not show).
    I agree that this is a close call on legal sufficiency, but I do not see how “missing”
    facts can transform the purportedly legally sufficient evidence into factually insufficient
    evidence. There is no higher standard than “proof beyond a reasonable doubt.” If the
    evidence meets that standard, how can it fall short using a lower standard? Indeed, the Waco
    Court of Appeals may have had second thoughts itself about this question because it held,
    in a subsequent (but almost identical) case, that the evidence was factually and legally
    sufficient.6 If nothing else, these two cases demonstrate that the Clewis factual sufficiency
    
    Id. The majority
    did not analyze the probative value of these facts to establish appellant’s intent
    or discuss what legitimate inferences, if any, might be drawn from them. It did not explain why
    the evidence was legally sufficient when it announced its conclusion.
    5
    
    Id. at *13.
    Chief Justice Gray dissented, noting that the majority failed to acknowledge
    that there was “more evidence of intent to deliver than merely the amount of cocaine.” 
    Id. at *19
    (Gray, C.J., dissenting). He also noted that the majority did not “detail the evidence and clearly
    state why the evidence that is legally sufficient is nevertheless factually insufficient.” 
    Id. at *20.
           6
    Guyton v. State, No. 10-07-00070-CR, 2009 Tex. App. LEXIS 839 (Tex. App.—Waco,
    Feb. 6, 2009, pet. ref’d) (not designated for publication). In Guyton, the court of appeals
    originally reversed the conviction due to factual insufficiency, but, once the State filed a PDR, it
    reconsidered and held that the evidence was both legally and factually sufficient to support the
    defendant’s conviction for possession of .40 grams of cocaine with the intent to distribute it. 
    Id. at *9-13.
                                                           Brooks Concurring Opinion      Page 4
    review has led to random, inconsistent results, based primarily on “the luck of the draw.” 7
    This doctrine is not based on a sound logical or historical foundation, and it serves only to
    muddle criminal law. It should be overturned.
    B.     Both Parties Agree That the Proper Issue Is Legal Sufficiency of the Evidence.
    Fittingly, both appellant and the State agree that the proper issue in cases such as this
    is whether the evidence is legally sufficient. The State argues in its Petition for Discretionary
    Review, “Evidence that is factually insufficient due to its inherent weakness should always
    be legally insufficient; either the evidence is such that a rational juror could convict upon it
    or it is not, regardless of the light in which it is viewed.”8 Appellant “suggests that in this
    situation (i.e. a question of intent), if the evidence is factually insufficient it must also be
    legally      insufficient.” 9       They     are   both      correct:   There    is   no    “sem i-
    7
    See 
    Watson, 204 S.W.3d at 426
    (Cochran, J., dissenting).
    8
    State’s Petition for Discretionary Review at 9.
    9
    Appellant’s Petition for Discretionary Review at 6. Appellant relies on several
    analogous federal cases in which the courts held that the evidence was legally insufficient to
    support a finding of “intent to distribute” a controlled substance that the defendant admittedly
    possessed. In these cases, the inference of intent to distribute was not a reasonable one given the
    paucity of circumstantial evidence.
    As appellant notes, the legal sufficiency standard of review is that required by the United
    States Constitution as set out in Jackson v. Virginia. That same standard is applied in every state
    and federal jurisdiction in America. It applies to all criminal convictions regardless of the type or
    degree of crime. This application of a single, constitutionally-mandated standard has led to the
    creation of an enormous body of “sufficiency of evidence” law and precedent across America
    that any judge or lawyer may easily access and apply to any given conviction here in Texas. It is
    a coherent body of law. It is objective and intellectually rigorous. It sets out appellate
    presumptions, permissible inferences, and specific criteria to use when assessing the legal
    sufficiency of the evidence. It does not rely upon subjective notions of “shocking the
    conscience” of individual appellate judges, striking them as “manifestly unjust,” or seeming just
    Brooks Concurring Opinion   Page 5
    sufficient” standard of review.
    II.
    A.     Logic Requires a Single Standard of Sufficiency Review in Criminal Cases.
    I have already set out my concerns about the intellectual legitimacy, historical
    authenticity, and appropriateness of the Clewis factual sufficiency review in Texas.10 I now
    focus only upon the most important reason to overrule Clewis: Logic.
    The attempt to impose Texas civil standards of a second-round factual sufficiency
    review is logically incompatible with the constitutionally mandated legal sufficiency review
    of criminal convictions that requires the State to prove all elements of a crime beyond a
    reasonable doubt. Piling a factual sufficiency standard of review that was developed for civil
    trials employing a preponderance-of-the-evidence standard of proof atop a legal sufficiency
    standard of review that was developed for criminal trials employing a beyond-a-reasonable-
    doubt standard of proof does not work. That is why this Court has so frequently tinkered
    with the Clewis formulation, and why we have always been unsuccessful.
    The Clewis doctrine of re-reviewing the sufficiency of the evidence after the appellate
    court has already held that the evidence satisfies the highest standard of proof
    possible–beyond a reasonable doubt–to decide if it is nonetheless factually sufficient is
    internally inconsistent. If the evidence suffices to prove guilt beyond a reasonable doubt, and
    plain “wrong.”
    10
    See 
    Watson, 204 S.W.3d at 421-26
    .
    Brooks Concurring Opinion       Page 6
    it supports a rational, reasonable verdict, as required under Jackson, that evidence cannot
    logically be so lacking in probative value as to make the jury’s verdict “manifestly unjust”
    under the vague and subjective civil-law factual-sufficiency standard. To declare the
    evidence factually insufficient necessarily turns an appellate judge, viewing only the cold
    written record, into a self-appointed thirteenth juror with absolute veto power over the twelve
    citizens who actually saw the witnesses, heard the evidence, and reached a rational,
    reasonable verdict. The United States Supreme Court recognized this in Tibbs v. Florida,11
    as did the Florida Supreme Court when it judicially jettisoned factual-sufficiency review in
    that same case.12
    B.     Legally Sufficient Evidence in a Criminal Trial.
    For more than 150 years, Texas appellate courts reviewed the sufficiency of the
    evidence in Texas criminal cases under a single standard (although the precise wording
    varied), taking into account both the facts that were proven at trial and the law applicable to
    11
    
    457 U.S. 31
    , 42 (1982) (stating that an appellate reversal for factually insufficiency,
    “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only
    proper verdict. Instead, the appellate court sits as a ‘thirteenth juror’ and disagrees with the
    jury’s resolution of the conflicting testimony. This difference of opinion no more signifies
    acquittal than does a disagreement among the jurors themselves. . . . [A]n appellate court’s
    disagreement with the jurors’ weighing of the evidence does not require the special deference
    accorded verdicts of acquittal.”).
    12
    Tibbs v. State, 
    397 So. 2d 1120
    , 1123 (Fla. 1981) (rejecting its former factual
    sufficiency review because “the concern on appeal must be whether, after all conflicts in the
    evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on
    appeal, there is substantial, competent evidence to support the verdict and judgment. Legal
    sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate
    tribunal.”) (footnote omitted).
    Brooks Concurring Opinion      Page 7
    the particular offense.13 This Court (and the intermediate courts of appeals once they were
    given jurisdiction over the direct appeal of criminal cases in 1981) reviewed the facts proven
    in the light most favorable to the verdict, giving great deference to the jury’s credibility and
    weight determinations. But we did not hesitate to reverse a conviction if the evidence failed
    to prove a defendant’s guilt “with reasonable certainty,” or “beyond a reasonable doubt.” 14
    There were never two distinct “sufficiency of the evidence” hurdles in Texas criminal
    appellate review.15
    1.     The constitutionally required Jackson standard.
    In 1979, the United States Supreme Court delivered its opinion in Jackson v.
    Virginia,16 and set the national standard for review of the sufficiency of evidence under the
    Due Process Clause of the federal constitution. In all criminal trials, state and federal, the
    government must produce “sufficient evidence to justify a rational trier of the facts to find
    guilt beyond a reasonable doubt.” 17 The Court explicitly rejected the “no evidence” standard
    13
    See 
    Watson, 204 S.W.3d at 424-26
    (Cochran, J., dissenting) (discussing the history of
    appellate review of sufficiency of the evidence in Texas).
    14
    
    Id. 15 Id.
    at 426 (collecting and discussing Texas criminal cases from 1841 forward and
    concluding, “Until Clewis in 1996, this Court had consistently used a single standard (although
    the precise phrasing varied) and reviewed the evidence in the light most favorable to the
    factfinder, giving great deference to the jury’s credibility and weight determinations.”).
    16
    
    443 U.S. 307
    (1979).
    17
    
    Id. at 312-13.
                                                        Brooks Concurring Opinion      Page 8
    of review that it had applied nineteen years earlier in Thompson v. Louisville.18
    In Jackson, the Court explained that the Thompson “no evidence” review “secures to
    an accused the most elemental of due process rights: freedom from a wholly arbitrary
    deprivation of liberty[,]” 19 but that standard is inadequate for “a question of evidentiary
    ‘sufficiency.’” 20 Instead, the correct standard must incorporate the prosecution’s burden of
    proof–beyond a reasonable doubt–in a due-process review.              The Court noted that a
    “‘reasonable doubt’ has often been described as one ‘based on reason which arises from the
    evidence or lack of evidence.’” 21
    A reasonable doubt might arise because the verdict is manifestly against the great
    weight and preponderance of the credible evidence or because there is nothing more than a
    mere scintilla of evidence to support some element of the offense. But, of course, the
    reviewing court does not “ask itself whether it believes that the evidence at the trial
    18
    
    362 U.S. 199
    , 199 (1960) (stating that the “ultimate question presented to us is whether
    the charges against petitioner were so totally devoid of evidentiary support as to render his
    conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.
    Decision of this question turns not on the sufficiency of the evidence, but on whether this
    conviction rests upon any evidence at all.”).
    19
    
    Jackson, 443 U.S. at 314
    .
    20
    
    Id. The Supreme
    Court explained that a “no evidence” standard does not “protect
    against misapplications of the constitutional standard of reasonable doubt” because a “no
    evidence” standard is satisfied by a “mere modicum” of evidence. “But it could not seriously be
    argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond
    a reasonable doubt.” 
    Id. at 320.
    Under a “no evidence” standard, a reviewing court would affirm
    the judgment if any evidence supported the conviction. See Gollihar v. State, 
    46 S.W.3d 243
    ,
    246 n. 3 (Tex. Crim. App. 2001) (citing 
    Thompson, 362 U.S. at 199
    ).
    21
    
    Id. at 318
    n.9.
    Brooks Concurring Opinion   Page 9
    established guilt beyond a reasonable doubt.” 22 Rather, it must give “full play to the
    responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
    evidence, and to draw reasonable inferences from basic facts to ultimate facts.” 23 Thus, “all
    of the evidence is to be considered in the light most favorable to the prosecution” because the
    reviewing court may impinge upon “‘jury’ discretion only to the extent necessary to
    guarantee the fundamental protection of due process of law.” 24
    Therefore, after 1979, Texas courts were prohibited from applying a “no evidence”
    standard of review to a legal-sufficiency challenge because that standard affords “inadequate
    protection against potential misapplication of the reasonable-doubt standard” in criminal
    cases.25 In 1989, we explained, “Adherence to the no evidence standard is now, and has been
    for the last decade, expressly forbidden by Jackson. It is no longer permissible to merely
    quote the Jackson standard and then to turn around and apply the Thompson no evidence
    standard as we have historically done.”26
    2.     Legal sufficiency in criminal cases is judged by the quality, not the quantity, of
    evidence supporting the accuracy of the verdict.
    Legal sufficiency of the evidence is a test of adequacy, not mere quantity. Sufficient
    22
    
    Id. at 318
    -19 (citation omitted).
    23
    
    Id. at 319.
           24
    
    Id. 25 Gollihar
    v. State, 
    46 S.W.3d 243
    , 246 n. 4 (Tex. Crim. App. 2001).
    26
    Butler v. State, 
    769 S.W.2d 234
    , 239 (Tex. Crim. App. 1989) (en banc), overruled on
    other grounds by Geesa v. State, 
    820 S.W.2d 154
    (Tex. Crim. App. 1991).
    Brooks Concurring Opinion     Page 10
    evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial
    or official action demanded.” 27 In criminal cases, only that evidence which is sufficient in
    character, weight, and amount to justify a factfinder in concluding that every element of the
    offense has been proven beyond a reasonable doubt is adequate to support a conviction.
    There is no higher burden of proof in any trial, criminal or civil, and there is no higher
    standard of appellate review than the standard mandated by Jackson. All civil burdens of
    proof and standards of appellate review are lesser standards than that mandated by Jackson.
    Indeed, the Supreme Court explicitly held in In re Winship,28 that a juvenile could not
    constitutionally be adjudicated under the civil standards of proof (or appellate review) of
    preponderance of the evidence.29          The Court noted that “‘the preponderance test is
    susceptible to the misinterpretation that it calls on the trier of fact merely to perform an
    abstract weighing of the evidence in order to determine which side has produced the greater
    quantum, without regard to its effect in convincing his mind of the truth of the proposition
    asserted.’” 30
    As Justice Harlan explained in his Winship concurrence, although “the phrases
    ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively
    27
    Black’s Law Dictionary 1285 (5th ed. 1979).
    28
    
    397 U.S. 358
    (1970).
    29
    
    Id. at 368.
            30
    
    Id. at 367-68
    (quoting Dorsen & Resneck, In Re Gault and the Future of Juvenile Law,
    1 Fam. L. Quarterly No. 4, 26-27 (1967)) (rejecting the lower court’s suggestion that there is only
    a “‘tenuous difference’” between the reasonable-doubt and preponderance standards).
    Brooks Concurring Opinion      Page 11
    imprecise, they do communicate to the finder of fact different notions concerning the degree
    of confidence he is expected to have in the correctness of his factual conclusions.” 31 Justice
    Harlan noted that “[t]he preponderance test has been criticized, justifiably in my view, when
    it is read as asking the trier of fact to weigh in some objective sense the quantity of evidence
    submitted by each side rather than asking him to decide what he believes most probably
    happened.” 32 Indeed, that is precisely why the standard of proof and review in criminal cases
    has been expressed, not by the quantity of evidence produced or how it might be weighed
    when viewed neutrally, but rather by the quality of the evidence and the level of certainty it
    engenders in the factfinder’s mind.
    Legal sufficiency of the evidence in a criminal proceeding may be divided into two
    zones: evidence of such sufficient strength, character, and credibility to engender certainty
    beyond a reasonable doubt in the reasonable factfinder’s mind and evidence that lacks that
    strength.33 Appellate review of a jury’s verdict of criminal conviction focuses solely on that
    31
    
    Id. at 370
    (Harlan, J., concurring).
    32
    
    Id. at 371
    n.3 (citing J. MAGUIRE , EVIDENCE , COMMON SENSE AND COMMON LAW 180
    (1947)).
    33
    That does not mean, of course, that every factfinder or every appellate judge need agree
    that the evidence in a particular case is legally sufficient. As the Supreme Court explained in
    Johnson v. Louisiana, 
    406 U.S. 356
    (1972):
    In our view disagreement of three jurors does not alone establish reasonable
    doubt, particularly when such a heavy majority of the jury, after having considered
    the dissenters’ views, remains convinced of guilt. That rational men disagree is
    not in itself equivalent to a failure of proof by the State, nor does it indicate
    infidelity to the reasonable-doubt standard. Jury verdicts finding guilt beyond a
    reasonable doubt are regularly sustained even though the evidence was such that
    the jury would have been justified in having a reasonable doubt, even though the
    Brooks Concurring Opinion       Page 12
    “either-or” character of evidentiary sufficiency because a defendant is entitled to an acquittal
    if the evidence lacks that strength.
    C.     Texas Civil Standards of Review.
    Texas is considered a “hold-out” state by having a two-tiered standard of appellate
    review for civil cases, although commentators state that “recent decisions hint that there is
    support for assimilation into the single standard of review used in most jurisdictions.” 34 It
    has long been acknowledged that “[f]ew issues of Texas law have created more confusion
    or spawned more appellate litigation than the treatment of ‘no evidence’ and ‘insufficient
    evidence’ points of error” in civil cases.35 The difficulty in distinguishing these two types
    of claims–which require dramatically different results–is that appellate courts have little
    guidance except their own intuition to guide them.36
    1.     The “five zone” review for legal and factual sufficiency.
    Traditionally, Texas appellate courts have employed a five-zone review of civil
    trial judge might not have reached the same conclusion as the jury, and even
    though appellate judges are closely divided on the issue whether there was
    sufficient evidence to support a conviction.
    
    Id. at 362-63
    (citations omitted). The United States Supreme Court trusts juries when they reach
    a rational verdict even though those same justices, the individual trial judge, or appellate judges
    may be closely divided on the issue of whether they believe there was sufficient evidence to
    support a conviction.
    34
    W. Wendall Hall & Mark Emery, The Texas Hold Out: Trends in the Review of Civil
    and Criminal Jury Verdicts, 49 S. TEX . L. REV . 539, 540 (2008).
    35
    William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient
    Evidence,” 69 TEX . L. REV . 515, 516 (1991).
    36
    
    Id. at 525.
                                                         Brooks Concurring Opinion      Page 13
    verdicts when the burden of proof at trial is that of “preponderance of the evidence.” 37 In his
    much cited law review article, Justice Calvert distinguished those five zones and defined
    them.38
    2.     Zone 1–“no evidence.”
    Zone 1 is the “no evidence” zone, similar to the old legal sufficiency standard rejected
    by the Supreme Court in Jackson for criminal cases. A “no evidence” challenge by the party
    without the burden of proof in a civil case may be sustained only when:
    C       There is a complete lack of evidence of some element of a claim or defense;
    C       The evidence offered at trial is inadmissible under the rules of law or of
    evidence and thus cannot be given any evidentiary value on appeal;
    C       There is no more than a “mere scintilla” of evidence to prove some essential
    fact of either the claim or defense;39 or
    37
    See 
    id. at 517-18
    (discussing and using the concept of “a five zoned spectrum, with the
    strength of the proponent’s evidence increasing in each successive zone”).
    38
    One might visualize these five zones as laid out on an imaginary football field, starting
    from the left-hand goal line of the party with the burden of proof. Zone 1, the “no evidence”
    zone, starts at this goal line and, as the evidence supporting a vital fact or claim steadily
    increases, the zones march down the field until zone 5, “conclusive evidence,” which is at the
    opposing party’s goal line. The 50 yard line would roughly correspond to the line which must be
    crossed by the party with the burden of proof by the “preponderance of the evidence,” leaving a
    “zone of reasonable disagreement” on either side of the midline.
    39
    Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38
    TEX . L. REV . 361, 363 (1960). Justice Calvert explained the scintilla rule as follows:
    [W]hen the evidence offered to prove a vital fact is so weak as to do no more than
    create a mere surmise or suspicion of its existence, the evidence is, in legal effect,
    no evidence, and will not support a verdict or judgment. The scintilla rule cannot
    apply when there is direct evidence of a vital fact; it applies only when the vital
    fact must be inferred from other relevant facts and circumstances which are
    proved. If the inference is not a reasonable one a “no evidence” point should be
    Brooks Concurring Opinion       Page 14
    C       The evidence conclusively demonstrates the opposite of the essential fact.40
    If the appellate court finds “no evidence” to support the verdict, the evidence is legally
    insufficient, and the opponent is entitled to a judgment in his favor as a matter of law.41
    3.     Zone 2–“factually insufficient evidence.”
    In zone 2, the party with the burden of proof has offered some evidence in support of
    his claim or defense and the case is allowed to go to the jury for a verdict. But the evidence
    supporting the jury’s verdict, while more than a “mere scintilla,” is slim indeed.42 In this
    scenario, the appellate court may find that it is “factually insufficient,” but it must carefully
    set out all of the evidence supporting the verdict and explain why the evidence is nonetheless
    sustained. It follows that “no evidence” points based on the scintilla rule require a
    careful analysis of the facts proved for the purpose of determining whether the
    vital fact may be reasonably inferred.
    
    Id. (footnotes omitted).
           40
    
    Id. at 362-63
    ; see also Merrell Dow Pharmaceuticals, Inc. v. Havner, 
    953 S.W.2d 706
    ,
    711 (Tex. 1997); WILLIAM V. DORSANEO , III, et al., TEXAS LITIGATION GUIDE §
    146.03[6][e][ii][A] (2007).
    41
    
    Havner, 953 S.W.2d at 730
    . Justice Calvert explained that, in deciding “no evidence”
    points, the appellate court views the evidence in the light most favorable to the verdict and
    considers only that evidence and inferences that support the verdict while ignoring all evidence
    and inferences that are contrary to the verdict. Calvert, 38 TEX . L. REV . at 364.
    42
    According to Justice Calvert, “if the evidence supporting the finding is so uncertain,
    inconsistent, improbable, or unbelievable that, although constituting some evidence of probative
    force when considered in its most favorable light in support of the finding, it would nevertheless
    be clearly unjust to permit the judgment to stand.” Calvert, 38 TEX . L. REV . at 367. Justice
    Calvert appropriately viewed the evidence “in its most favorable light in support of the finding”
    in assessing factual sufficiency; he did not view it in a “neutral light.” I have found no Texas
    Supreme Court case that has viewed the evidence “in a neutral light” when addressing factual
    sufficiency claims.
    Brooks Concurring Opinion       Page 15
    insufficient.43 This challenge is always brought by the party without the burden of proof.44
    The rationale for allowing the party (who prevailed at trial but was found by the appellate
    court to have produced insufficient evidence) to try again in a second trial is “that there is
    available to the appellee other evidence of the vital fact which will support a finding in his
    favor and it would work an injustice to cut off his right to produce it.” 45 The appellate court
    assumes that the party who had the burden of proof and who originally prevailed may be able
    to produce additional evidence at a second trial, evidence that he failed to offer at the first
    trial.46
    4.         Zone 3–“zone of reasonable disagreement.”
    Zone 3, the zone of reasonable disagreement, is the great middle ground, in which a
    verdict will be upheld for either the party with the burden of proof or the opposing party as
    43
    Justice Calvert explains that, in this zone 2 scenario, the appellate court may not find
    that the evidence is “against the great weight and preponderance of the evidence because there is
    no evidence of the nonexistence of the fact.” Calvert, 38 TEX . L. REV . at 366. That is, when
    reviewing an “insufficient evidence” point, the appellate court looks only to the evidence that
    supports the vital fact and determines that this evidence is simply too meager to support a finding
    of its existence by a preponderance of the evidence. 
    Id. 44 See
    note 49 infra.
    45
    
    Id. at 370
    .
    46
    
    Id. (“By producing
    the evidence on retrial the party has fair assurance that a finding of
    the existence of the vital fact will be permitted to stand.”). Strangely, this same rule does not
    apply for legally insufficient evidence because “[p]resumptively, at least, all of the evidence
    available to the appellee has been introduced.” 
    Id. Justice Calvert
    did not explain why a party
    who produced no evidence of a vital fact at the first trial is not entitled to a second bite at the
    apple, while a party who offered some, but factually insufficient, evidence would be able to
    produce more evidence and thus is entitled to a second bite at the apple.
    Brooks Concurring Opinion         Page 16
    there is conflicting evidence or inferences on either side of the vital fact issue or issues, but
    the jury’s verdict is reasonable and does not “shock the conscience,” nor it is not so “clearly
    unjust” to indicate obvious bias.47
    5.      Zone 4–“great weight and preponderance.”
    In zone 4, the party with the burden of proof has offered significant evidence to
    support the claim or defense; the great weight and preponderance of the credible evidence
    supports his position.48 However, the jury has returned a verdict in favor of the opposing
    party–the party without the burden of proof. In this scenario, the party with the burden of
    47
    
    Id. 48 Texas
    courts usually use the short-hand term “great weight of the evidence,” but the
    Texas Supreme Court occasionally reiterates that it is, in reality, the great weight of the credible
    evidence that it is referring to. Quality, not mere quantity, has been its historical determining
    factor. See, e.g., Dawson v. St. Louis Expanded Metal Fireproofing Co., 
    61 S.W. 118
    , 119 (Tex.
    1901) (“It was within the power of [the court of civil appeals] to disregard a finding of fact by the
    jury if contrary to the great weight of the credible testimony, and in effect to set aside the finding
    and to remand the cause, and we understand them to mean that under the facts as found by them
    under the evidence, there was no negligence.”); McDonald v. New York Cent. Mut. Fire Ins. Co.,
    
    380 S.W.2d 545
    , 548 (Tex. 1964) (“[T]he insured does not raise in the Court of Civil Appeals
    the point of ‘insufficient evidence’ to support the jury findings or the point that the findings are
    against ‘the great weight and preponderance’ of the credible evidence”); Darryl v. Ford Motor
    Co., 
    440 S.W.2d 630
    , 633 (Tex. 1969) (“Nowhere in the amended motion for new trial did the
    respondent, Ford Motor Company, state that the evidence supporting the jury answers to any
    specific special issue was either insufficient or against the great weight of the credible
    evidence”); see also In Re G.A.T.,16 S.W.3d 818, 829 (Tex. App.—Houston [14th Dist.] 2000,
    pet. denied) (“The evidence shows that the verdict was not contrary to the great weight of the
    credible evidence.”); Town & Country Mobile Homes, Inc. v. Bilyeu, 
    694 S.W.2d 651
    , 656 (Tex.
    App.—Fort Worth 1985, no writ) (“In considering an ‘insufficient evidence’ point, we must
    remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the
    witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or
    inconsistencies in the testimony. This Court may not substitute its judgment for that of the jury if
    the challenged finding is supported by some evidence of probative value and is not against the
    great weight and preponderance of the evidence.”) (citation omitted).
    Brooks Concurring Opinion       Page 17
    proof may challenge the result, claiming that the verdict is “against the great weight and
    preponderance of the evidence.” 49 In this “against the great weight and preponderance”
    scenario, all of the evidence, both pro and con, is set out, and the appellate court must explain
    why the verdict is against the great weight and preponderance of the evidence.50
    6.     Zone 5–“conclusive evidence.”
    At the opposite end of the spectrum from zone 1 is zone 5–“conclusive evidence”–
    in which the party with the burden of proof has established conclusively, or as a matter of
    law, that he is entitled to a judgment in his favor because the opponent has offered no
    49
    See William Powers, Jr. & Jack Ratliff, 69 TEX . L. REV . at 518-19 (“When the evidence
    falls into zone 2, the proper terminology is that there is ‘insufficient evidence’ or ‘factually
    insufficient evidence’ to support an affirmative finding. In zone 4, the clearest terminology is
    that a finding contrary to the evidence is against the “great weight and preponderance of the
    evidence,” although this terminology is occasionally (and we think confusingly) used to refer to
    evidence in zone 2. Despite the differences between zones 2 and 4, attacks on jury findings in
    these zones are usually called ‘factual sufficiency’ points. The preferred terminology has the
    proponent [the party with the burden of proof] claim that an unfavorable (negative) finding
    should be set aside because it is ‘contrary to the great weight and preponderance of the evidence,’
    and has the opponent [the party without the burden of proof] claim that an unfavorable
    (affirmative) finding was based on ‘insufficient evidence.’”) (footnotes omitted); see also
    DORSANEO , TEXAS LITIGATION GUIDE § 146.03[6][e][ii][C] (“A party who attacks the factual
    sufficiency of an adverse finding on an issue on which the party has the burden of proof must
    demonstrate on appeal that the adverse finding is against the great weight and preponderance of
    the evidence.”).
    50
    See Pool v. Ford Motor Co., 
    715 S.W.2d 629
    , 635 (Tex. 1986) (“In order that this court
    may in the future determine if a correct standard of review of factual insufficiency points has
    been utilized, courts of appeals, when reversing on insufficiency grounds, should, in their
    opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury’s
    finding is factually insufficient or is so against the great weight and preponderance as to be
    manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those
    courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the
    evidence in support of the verdict. It is only in this way that we will be able to determine if the
    requirements of In Re King’s Estate [
    244 S.W.2d 660
    (Tex. 1951)], have been satisfied.”).
    Brooks Concurring Opinion     Page 18
    evidence in opposition and the proponent has offered sufficient evidence of the vital fact or
    claim.
    7.       The Texas Supreme Court’s Reformulation of Legal Sufficiency.
    Although this five-zone theory has been the traditional formulation of civil legal and
    factual sufficiency standards in civil cases, in 2005, the Texas Supreme Court articulated a
    new formulation of the test for legal sufficiency review in City of Keller v. Wilson:51
    The final test for legal sufficiency must always be whether the evidence at trial
    would enable reasonable and fair-minded people to reach the verdict under
    review. Whether a reviewing court begins by considering all the evidence or
    only the evidence supporting the verdict, legal-sufficiency review in the proper
    light must credit favorable evidence if reasonable jurors could, and disregard
    contrary evidence unless reasonable jurors could not.52
    Thus, when reasonable jurors could resolve conflicting evidence either way, an appellate
    court must assume that jurors resolved all such conflicts in accord with their verdict, and
    when the evidence supports conflicting inferences, the court must assume that jurors made
    all inferences in favor of the verdict and disregard other possible inferences.53 “If the
    evidence at trial would enable reasonable and fair-minded people to differ in their
    conclusions, then jurors must be allowed to do so. A reviewing court cannot substitute its
    judgment for that of the trier-of-fact, so long as the evidence falls within this zone of
    51
    
    168 S.W.3d 802
    (Tex. 2005).
    52
    
    Id. at 827.
             53
    See 
    id. at 818-21.
                                                            Brooks Concurring Opinion        Page 19
    reasonable disagreement.” 54 The appellate court does not view the evidence in a neutral
    light, but rather “in the light favorable to the verdict,” 55 just as is done in criminal cases under
    Jackson and in Texas civil cases under a factual sufficiency review. Under this formulation,
    zone 3 (the zone of “reasonable disagreement”) would seem to have increased considerably
    in size, while zones 2 and 4 (those of “factual insufficiency” and “against the great weight
    and preponderance”) have diminished as a verdict that is outside the zone of reasonable
    disagreement would seem to be within the zone of legally insufficient evidence.56
    Some commentators have noted that this new formulation of legal sufficiency has
    virtually merged the Texas legal sufficiency standard with that of factual sufficiency in civil
    cases.57 And it has brought Texas civil standards “more closely in line with federal standards
    54
    
    Id. at 822
    (footnote omitted). In City of Keller, the Supreme Court also described three
    kinds of evidence that must be disregarded when conducting a legal sufficiency analysis: (1)
    credibility evidence; (2) conflicting evidence; and (3) conflicting inferences. 
    Id. at 819-22.
    Thus, witness credibility in civil cases, as in criminal cases, is solely the prerogative of the
    factfinder. An appellate court may not discount a witness’s testimony as being, in its view, less
    credible than another witness’s. Furthermore, the appellate court may not choose between two
    conflicting inferences if the evidence would reasonably support either one. “It is widely
    recognized that one of the most important attributes of the right to jury trial is the ability of juries
    to draw, from circumstantial evidence, inferences that cannot be set aside or second-guessed by
    reviewing courts merely because the reviewers would have reached a different factual
    conclusion.” William V. Dorsaneo, III, Changing the Balance of Power: Juries, the Courts, and
    the Legislature, PRACTICE BEFORE THE SUPREME COURT 5 (State Bar of Texas 2004).
    55
    City of 
    Keller, 168 S.W.3d at 807
    .
    56
    See City of 
    Keller, 168 S.W.3d at 827-28
    (“‘The rule as generally stated is that if
    reasonable minds cannot differ from the conclusion that the evidence lacks probative force it will
    be held to be the legal equivalent of no evidence.’”) (quoting Calvert, 38 TEX . L. REV . at 364).
    57
    See W. Wendall Hall & Mark Emery, 49 S.TEX . L. REV . at 559 (“Some may conclude
    that City of Keller only addresses legal sufficiency challenges, but the reasonable juror standard
    seems to make the distinction between legal and factual sufficiency mean little.”); 
    id. at 562
                                                         Brooks Concurring Opinion      Page 20
    for legal sufficiency review.” 58      These commentators argue that the language of the
    “reasonable juror” standard “provides a cloak for the reasoning of judges, rather than
    precision in reasoning.” 59 They contend that the City of Keller standard “leaves considerable
    leeway for an appellate court to intercept a jury’s verdict when it feels motivated to do so.” 60
    These commentators complain that the “reasonable juror” standard is too flexible and
    subjective, 61 apparently preferring the purportedly more objective standard of “shocks the
    conscience” or “manifestly unjust.” One can certainly agree with their ultimate conclusion
    however, that appellate courts should make “a firm rededication to a jurisprudence of
    restraint and standards of review that recognize the fundamental right to trial by jury and a
    concomitant hard-minded application of standards of review.” 62 Particularly in Texas, the
    most jury-deferential state in the nation,63 appellate courts must defer to a “reasonable” jury
    (noting that under the City of Keller “reasonable and fair-minded juror” standard, the Supreme
    Court may avoid the “yo-yo effect” of reversing and remanding cases for factual insufficiency
    review and instead render judgment because the verdict is unreasonable and therefore the
    evidence is legally insufficient).
    58
    
    Id. at 556.
           59
    
    Id. at 600.
           60
    Lonny S. Hoffman, Harmar and the Ever-Expanding Scope of Legal Sufficiency
    Review, 49 S. TEX . L. REV . 611, 614 (2008).
    61
    
    Id. 62 See
    W. Wendall Hall & Mark Emery, 49 S. TEX . L. REV . at 610.
    63
    See 
    Watson, 204 S.W.3d at 429
    n.47 (Cochran, J., dissenting); see also William
    Powers, Jr., Judge and Jury in the Texas Supreme Court, 
    75 Tex. L. Rev. 1699
    , 1699 n.3 (1997)
    (“A hallmark of [the] entire body of law [regarding legal and factual sufficiency claims in civil
    cases] however, is extraordinary deference to juries.”).
    Brooks Concurring Opinion      Page 21
    verdict in both civil and criminal cases.
    D.     The Criminal Legal Sufficiency Standard Cannot Be Harmonized with the Civil
    Factual Sufficiency Standard.
    1.     Clewis is a chimera.
    In Clewis, this Court attempted to superimpose the five-zone civil standard of review,
    predicated upon trials in which the burden of proof is by a preponderance of the evidence
    upon the two-zone criminal standard of review that requires proof beyond a reasonable
    doubt.64 Visualizing the five-zone civil standard (“no evidence,” “insufficient evidence,”
    “zone of reasonable disagreement,” “the great weight and preponderance of the evidence,”
    and “conclusive evidence”) as a football field with the “no evidence” zone at one end and
    with each zone comprised of an ever greater quantum of evidence offered by the party with
    the burden of proof until the “conclusive evidence” zone at the other end, reviewing courts
    are required to uphold as factually sufficient any verdict in favor of the party with the burden
    of proof that is at least within the third zone, that of reasonable disagreement. But in
    assessing the legal sufficiency of evidence in a criminal case, the State’s evidence must be
    persuasive enough to almost make a touchdown; reaching the midfield is never enough to
    meet the “beyond a reasonable doubt” standard.
    In a civil case, if the jury returns a verdict in favor of the party that did not have the
    burden of proof (usually the defendant), but that verdict is determined by the appellate court
    to be against the great weight and preponderance of the evidence offered by the party that did
    64
    See 
    Clewis, 922 S.W.2d at 129
    .
    Brooks Concurring Opinion       Page 22
    have the burden of proof (usually the plaintiff), then the appellate court may reverse the
    judgment and remand for a new trial. This gives the plaintiff a second opportunity to prove
    his case before a new jury, after the first jury had rejected his claim although he had
    originally produced “the great weight and preponderance of the evidence” to support its
    claim. That scenario would not generally arise 65 in criminal cases because if the jury returns
    a verdict favoring the party without the burden of proof (the defendant), there will be no
    appeal because the State may not appeal an acquittal.
    Similarly, if the party with the burden of proof in a civil trial (usually the plaintiff)
    obtains a jury verdict in its favor, but an appellate court determines that there is insufficient
    evidence, even when viewed in the light most favorable to the verdict,66 to reach “the zone
    of reasonable disagreement,” then the appellate court may reverse the jury verdict and
    remand for a new trial. That scenario also would not arise in criminal cases because if the
    State’s evidence is so weak in strength, character, and credibility that it does not reach the
    level of “the zone of reasonable disagreement,” then it most assuredly does not meet the
    “beyond a reasonable doubt” standard of legal sufficiency required in all criminal cases.
    Such a lack of evidentiary support is not merely factually insufficient, it is legally
    insufficient, and the defendant cannot be required to undergo a second trial.
    What this Court did in Clewis was adopt the language of Texas civil factual
    65
    This situation does arise in those instances in which the defendant bears the burden of
    production and persuasion for affirmative defenses. See note 67 infra.
    66
    See 
    note 42 supra
    .
    Brooks Concurring Opinion        Page 23
    sufficiency review without first determining whether there was a proper fit between those
    civil standards of review and the differing evidentiary standards of proof in civil and criminal
    cases. This mistake was quite understandable when Clewis was decided in 1996 because this
    Court had recently and properly adopted the Texas civil standards of legal and factual
    sufficiency for those few instances in criminal cases in which the burden of proof is a
    preponderance of the evidence, as occurs with affirmative defenses.67 But as appellate courts
    attempted to reconcile the five-zone civil factual-sufficiency standards with the heightened
    burden of proof in criminal cases in which the State is required to prove every element
    beyond a reasonable doubt, we began to realize that this civil standard of review did not align
    with the criminal burden of proof. And we tinkered and tinkered with various reformulations
    of this “factual sufficiency” standard of review in criminal cases in a vain attempt to
    harmonize them.68
    67
    See, e.g., Meraz v. State, 
    785 S.W.2d 146
    , 154 (Tex. Crim. App. 1990) (applying the
    civil standards of factual review of “against the great weight and preponderance of the evidence”
    in a case in which the defendant appealed the jury’s rejection of his plea of incompetence
    because the defendant had the burden to prove incompetence by a preponderance of the
    evidence); Bigby v. State, 
    892 S.W.2d 864
    , 875 (Tex. Crim. App. 1994) (applying the civil
    standards of factual review because defendant had both the burden of production and persuasion
    for his affirmative defense of insanity).
    68
    See Jones v. State, 
    944 S.W.2d 642
    , 647-49 (Tex. Crim. App. 1996) (deciding that a
    factual-sufficiency review requires the appellate court to review all of the evidence, not just the
    evidence that supports a verdict; rejecting capital murder defendant’s factual sufficiency claim
    because there was conflicting evidence of whether he intended to shoot the murder victim); Cain
    v. State, 
    958 S.W.2d 404
    , 407-09 (Tex. Crim. App. 1997) (reversing lower court’s holding of
    factual insufficiency because that court failed to defer to the jury’s determination of witness
    credibility); Johnson v. State, 
    23 S.W.3d 1
    , 5-8 (Tex. Crim. App. 2000) (upholding lower court’s
    finding of factual insufficiency based on witness’s express lack of certainty, but reminding
    appellate court that, “[u]nless the available record clearly reveals a different result is appropriate,
    Brooks Concurring Opinion       Page 24
    2.     Clewis and Watson relied upon a false premise that evidence should be viewed in a
    neutral light when conducting a factual sufficiency review.
    In Watson v. State,69 we stated that the only difference between a factual-sufficiency
    review and a legal-sufficiency review is that, under the former, an appellate court should
    view the evidence in a neutral light, rather than in the light most favorable to the verdict.70
    But it is a strange distinction that ignores the quality or credibility of evidence, and it is one
    that has never been a part of Texas factual-sufficiency review in civil cases.71 Instead, it was
    an appellate court must defer to the jury’s determination concerning what weight to give
    contradictory testimonial evidence because resolution often turns on an evaluation of credibility
    and demeanor, and those jurors were in attendance when the testimony was delivered.”);
    Goodman v. State, 
    66 S.W.3d 283
    , 285-86 & n.5 (Tex. Crim. App. 2001) (attempting to follow
    Justice Calvert’s five-zone analysis of factual insufficiency in civil cases and stating that, only
    when the evidentiary scales tip “radically” toward a negative finding on an essential element may
    the reviewing court exercise any “thirteenth juror” role and conclude that the jury’s verdict is
    “clearly wrong”); Swearingen v. State, 
    101 S.W.3d 89
    , 97 (Tex. Crim. App. 2003) (reiterating
    the importance of giving deference to the factfinder’s credibility and weight determinations);
    Zuniga v. State, 
    144 S.W.3d 477
    , 483-84 (Tex. Crim. App. 2004) (recognizing that the different
    civil and criminal standards of proof are an important source of confusion in any attempt to
    review criminal convictions for factual sufficiency; “Once again, the preponderance-of-the-
    evidence language creeps into a factual-sufficiency review where the burden of proof at trial was
    beyond a reasonable doubt. And, the Court’s statement that the reviewing court must use both
    standards is confusing.”).
    69
    
    204 S.W.3d 404
    (Tex. Crim. App. 2006).
    70
    
    Id. at 415.
           71
    I am unable to find any Texas Supreme Court case that even mentions the word
    “neutral” in relation to a factual sufficiency review. In In re King’s Estate, 
    244 S.W.2d 660
    , 661
    (Tex. 1951), the Supreme Court set out the applicable standard for reviewing “great weight and
    preponderance” complaints. The court of appeals must “consider and weigh all of the evidence
    in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes
    that the verdict is so against the great weight and preponderance of the evidence as to be
    manifestly unjust-this, regardless of whether the record contains some ‘evidence of probative
    force’ in support of the verdict. The evidence supporting the verdict is to be weighed along with
    the other evidence in the case, including that which is contrary to the verdict.” 
    Id. at 664-65
                                                          Brooks Concurring Opinion       Page 25
    created by the Austin Court of Appeals in Stone v. State,72 and simply imported, without
    further analysis, into this Court’s decision in Clewis. Indeed, in Lancon v. State,73 a post-
    Watson decision in 2008, we again rejected the “neutral” light analysis and held that it is the
    jury’s sole prerogative to make credibility decisions. Appellate courts must defer to those
    credibility assessments; they may not view all conflicting witness testimony as equally
    (citation omitted). There is nothing in this case, or any other Texas Supreme Court case, that
    suggests that all of the evidence must be viewed “neutrally,” as if the sheer quantity of evidence
    were the only criterion for factual sufficiency. How extraordinary if the jury’s verdict should be
    held to be “against the great weight and preponderance of the evidence” if seven gang members
    testified that their fellow gang-member defendant was with them the night of the murder while
    only two nuns testified that they saw the defendant commit the murder. Any jury is entitled to
    disbelieve the seven gang members and credit the two nuns.
    72
    
    823 S.W.2d 375
    , 381 (Tex. App.—Austin 1992, pet. ref’d). In Stone, the court of
    appeals stated:
    When the court of appeals conducts a factual-sufficiency review, the court does
    not ask if any rational jury, after viewing the evidence in the light most favorable
    to the prosecution, could have found the essential elements of the crime beyond a
    reasonable doubt. Factual-sufficiency review begins with the presumption that the
    evidence supporting the jury’s verdict was legally sufficient, i.e., constitutionally
    sufficient for the purposes of the Due Process Clause of the Fourteenth
    Amendment. Rather, the court views all the evidence without the prism of “in the
    light most favorable to the prosecution.” Because the court is not bound to view
    the evidence in the light most favorable to the prosecution, it may consider the
    testimony of defense witnesses and the existence of alternative hypotheses. The
    court should set aside the verdict only if it is so contrary to the overwhelming
    weight of the evidence as to be clearly wrong and unjust.
    
    Id. The court
    of appeals then cited Cain v. Bain, 
    709 S.W.2d 175
    , 176 (1986), and In re King’s
    Estate, 
    244 S.W.2d 660
    , 661 (Tex. 1951), but neither of these cases said anything about viewing
    the evidence “in a neutral light” or “without the prism of ‘in the light most favorable’ to the party
    with the burden of proof. They spoke only of reviewing all of the evidence when determining
    whether the verdict was “against the great weight and preponderance of the evidence.” And that
    is precisely what is required under the Jackson legal sufficiency review: an examination of all of
    the evidence, but in the light most favorable to the jury’s verdict because the jury, not the
    appellate court, was the chosen factfinder.
    73
    
    253 S.W.3d 699
    (Tex. Crim. App. 2008).
    Brooks Concurring Opinion       Page 26
    credible.74 Witnesses are not fungible, some are credible and some are not. Neither juries
    nor appellate courts must tally up the number of witnesses “neutrally” and then base a
    sufficiency decision on the greater number.
    In sum, we have never been successful in our attempts to superimpose the five-zone
    civil standards for sufficiency review on top of the constitutionally mandated legal
    sufficiency review of a criminal conviction. These two standards of review depend upon
    their distinctly different burdens of proof. Like oil and water, they do not mix. They are not
    logically consistent, and they promote only confusion and conflation of two distinct concepts.
    We are required to follow the heightened Jackson legal sufficiency formulation; we cannot
    follow a lesser factual sufficiency formulation.
    I agree that it is time to consign the civil-law concept of factual sufficiency review in
    criminal cases to the dustbin of history.
    Filed: October 6, 2010
    Publish
    74
    
    Id. at 705
    (noting that factual insufficiency claim cannot be based on contradictory and
    inconsistent witness testimony because “the jury is the sole judge of what weight to give such
    testimony. . . . Appellate courts should afford almost complete deference to a jury’s decision
    when that decision is based upon an evaluation of credibility.”).