Hanks, Lincoln v. ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 769-03

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LINCOLN V. HANKS, Appellant

v.

THE STATE OF TEXAS

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ON DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS DALLAS COUNTY

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Womack, J., filed a dissenting opinion, in which Price and Holcomb, JJ., joined.

The court says (ante, at 3):

We agree that Tex. Const., art. V, § 6, provides that the decision of the courts of appeals "shall be conclusive on all questions of fact brought before them on appeal or error," and that Tex. Code Crim. Proc., art 44.25, states that courts of appeals and the Court of Criminal Appeals may reverse judgment in a criminal action "as well upon the law as upon the facts." Nevertheless, appellant does not specify or delineate how our constitution's provision for courts of appeals' decisions to be factually conclusive and our legislature's authorization to reverse a conviction "as well upon the law as upon the facts" require appellate review of the factual sufficiency of every disputed fact issue.

I shall mention only briefly the danger that this passage may be read to resurrect the mistaken notion that the source of the court of appeals' authority to review facts is the sixth sentence of Article V, Section 6(a) ("Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error"). The general grants of appellate jurisdiction to the courts of appeals in the fifth and seventh sentences of Section 6(a) give them their jurisdiction of issues of fact in criminal law cases. This court so held in Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996). The court was sharply divided on some issues in Clewis, but two of the dissenting judges expressly agreed with the majority on this point, ⁽¹⁾ and I do not read the other two dissenting judges' opinion to disagree. The sixth sentence actually is a limitation of this court's power to review a decision of a court of appeals.

Why should this jurisdiction not extend to questions of fact that are submitted to the jury under Article 38.23(a)? The court does not say why. It says that "nothing in Clewis mandates it." Ante, at 4. That's true, but nothing in Clewis limits it.

The court says nothing in Malik speaks to it. That's true, but nothing in Malik limits it.

The court seems to accept the analysis of the Fourteenth Court of Appeals that the fact question under Article 38.23(a) goes to admissibility, not to an element of the offense. Ante, at 5. This is correct without doubt. But it does not help. The constitution and laws do not limit the courts' authority to facts that are relevant to elements of offenses. The authority goes to facts.

The court says that it is "not persuaded by appellant's arguments" that the authority is not limited. Ibid. But the question should be, what persuades the court that there is a limitation when none appears in the constitution or any other law? The burden of persuasion should be on the party that is trying to limit a facially general grant.

Finally the court says, "To acquiesce to appellant's argument would be to allow a reviewing court to substitute its own judgment for that of the jury on every fact issue, including all subsidiary issues, raised at trial, even those factual determinations that rest on the determination of witness crediblity." Ante, at 6. This is a good argument, but it proves too much, because it is equally applicable to factual issues of guilt. It provides no reason to distinguish issues of fact under the Code of Criminal Procedure from issues of fact under the Penal Code.

The court's reasons do not persuade me that there is any law that limits the appellate authority of the courts of appeals. I would vacate the judgment of the court of appeals and remand the case for it to use its authority determine the fact question that the appellant has raised.

En banc.

Delivered June 23, 2004.

Publish.

1. "As I understand the majority opinion, the general grant of appellate jurisdiction in [Sections 5 and 6] grants this Court and the courts of appeals the same power to review 'fact' questions in

direct appeal criminal cases. And, I agree. Our prior cases misconstrued the 'factual conclusivity' clause in Article V, Section 6, by identifying it as the source of the courts of appeals' 'fact' jurisdiction. The majority presents compelling reasons to disavow our prior cases to the extent they suggest the 'factual conclusivity' clause is the source of the courts of appeals' 'fact' jurisdiction" Clewis, 922 S.W.2d, at 152 (McCormick, P.J., joined by Keller, J., dissenting) (citations and footnotes omitted).