Sudds, Patrick F. v. State

Affirmed and Majority and Concurring Opinions filed June 29, 2004

Affirmed and Majority and Concurring Opinions filed June 29, 2004.

In The

Fourteenth Court of Appeals

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NOS. 14-02-01241-CR

         14-02-01242-CR

         14-02-01244-CR

         14-02-01245-CR

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PATRICK SUDDS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 908116, 908117, 908118 & 908119

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C O N C U R R I N G   O P I N I O N

I agree with the majority opinion except in the following respects.  First, it observes that the legal sufficiency standard in Rippee does not require the reviewing court to view the evidence in a light favoring venue.  Based on this observation, the majority opinion conducts an undefined, hybrid sufficiency review that considers evidence not supporting the venue finding.

Having been decided before the current distinction was drawn between legal and factual sufficiency review, Rippee does not expressly or impliedly indicate that a legal sufficiency review can be conducted without viewing the evidence in the light favoring the challenged finding.  Nor am I aware of any authority or rationale in any other context for conducting a legal sufficiency review in that manner, which would be fundamentally at odds with the very concept of a legal sufficiency review.

In addition, I agree with the Texas Supreme Court that such a review of essentially the factual sufficiency of evidence to support venue would serve no useful purpose:

This review should be conducted like any other review of a trial court=s fact findings and legal rulings, except that the evidence need not be reviewed for factual sufficiency.  If there is probative evidence to support the trial court=s [venue] determination, even if the preponderance of the evidence is to the contrary, we believe the appellate court should defer to the trial court.  A remand to reconsider the issue, which is the relief ordinarily afforded for factual insufficiency of the evidence, would only increase the expense and delay of litigation in order to resolve an issue which, though important, is unrelated to the merits. . . .  (Would a second trial be required?)  The statute does not mandate factual sufficiency review, and we believe it is neither necessary nor wise.

Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).

/s/        Richard H. Edelman

Justice

Judgment rendered and Majority and Concurring Opinions filed June 29, 2004.

Panel consists of Justices Edelman, Frost, and Seymore.  (Frost, J., majority).

Publish C Tex. R. App. P. 47.2(b).