Opinion issued September 1, 2020

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00941-CR

———————————

QUINTON MALBROUGH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Case No. 1524524

CONCURRING OPINION

“[J]ustices continue to think and can change. . . . I am ever hopeful that if the 

Court has a blind spot today, its eyes will be open tomorrow.”1

1

Interview by Katie Couric with Supreme Court Justice Ruth Bader Ginsburg, Yahoo 

Global News (July 31, 2014), https://news.yahoo.com/video/exclusive-ruth-baderginsburg-hobby-091819044.html.
2

In his second and third issues, appellant, Quinton Malbrough, asserts that the 

evidence is factually insufficient to support his conviction, this Court has the 

authority under the Texas Constitution to conduct a factual sufficiency review by 

weighing the evidence in a neutral light, and the failure of this Court to conduct a 

proper review of the factual sufficiency of the evidence denies appellant due process 

of law and violates his right to equal protection of law.

The challenge appellant raises to the standard of review we must apply to his 

factual sufficiency complaint after the Texas Court of Criminal Appeals’s decision 

in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality opinion), is 

not new.2 But that does not make it any less important. I write separately to take up 

the mantle3and nevertheless persist in explaining why this Court has the obligation 

2 As an intermediate appellate court, we are duty bound to follow precedent issued by 

the Texas Court of Criminal Appeals. See Lewis v. State, 448 S.W.3d 138, 146 

(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Kiffe v. State, 361 S.W.3d 104, 

109–10 (Tex. App.—Houston [1st Dist.] 2011, pet ref’d) (Texas Court of Criminal 

Appeals has authority to determine questions of law, including standard of review 

that intermediate appellate court must use in conducting factual sufficiency review). 

We are similarly bound by our own precedent. See Swilley v. McCain, 374 S.W.2d 

871, 875 (Tex. 1964); Caddell v. State, 123 S.W.3d 722, 726–27 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d); see also Ervin v. State, 331 S.W.3d 49, 52–

56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (holding after Brooks that this 

Court reviews factual sufficiency of evidence under same appellate standard of 

review for legal sufficiency of evidence).

3 See, e.g., Vernon v. State, 571 S.W.3d 814, 828–33 (Tex. App.—Houston [1st Dist.] 

2018, pet. ref’d) (Jennings, J., concurring); Payne v. State, No. 01-16-00821-CR, 

2017 WL 5503650, at *4–8 (Tex. App.—Houston [1st Dist.] Nov. 16, 2017, no pet.) 

(mem. op., not designated for publication) (Jennings, J., concurring); Edwards v. 

State, 497 S.W.3d 147, 165–68 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) 

(Jennings, J., concurring); Kiffe, 361 S.W.3d at 110–19 (Jennings, J., concurring); 
3

to review the factual sufficiency of the evidence supporting appellant’s conviction 

by considering all the evidence in a neutral light to determine whether the jury’s 

verdict was “so contrary to the overwhelming weight of the evidence as to be clearly 

wrong and unjust.”4

The United States Constitution establishes the baseline for the quantum of 

evidence required to support a criminal conviction. See Byrd v. State, 336 S.W.3d 

242, 246 (Tex. Crim. App. 2011); Laster v. State, 275 S.W.3d 512, 517–18 (Tex. 

Crim. App. 2009) (“The Due Process Clause to the United States Constitution 

requires that a criminal conviction be supported by a rational trier of fact’s findings 

that the accused is guilty of every essential element of a crime beyond a reasonable 

doubt.”). In Jackson v. Virginia, 443 U.S. 307 (1979), the United States Supreme 

Court set out the minimum constitutional standard governing whether sufficient 

evidence supports each element of a charged offense. 397 U.S. at 318–19; see also 

Ervin, 331 S.W.3d at 56–70 (Jennings, J., concurring); see also Ibe v. State, No. 

01-12-00422-CR, 2014 WL 1058129, at *3 n.1 (Tex. App.—Houston [1st Dist.] 

Mar. 18, 2014, pet. ref’d) (mem. op., not designated for publication) (panel 

acknowledging failure to address defendant’s question of fact violated United States 

Constitution’s guarantees of due process of law and equal protection of law); Fisher 

v. State, No. 01-11-00516-CR, 2013 WL 4680226, at *4–5 (Tex. App.—Houston 

[1st Dist.] Aug. 29, 2013, pet. ref’d) (mem. op., not designated for publication) 

(same).

4 See Clewis v. State, 922 S.W.2d 126, 129, 134 (Tex. Crim. App. 1996), overruled 

by Brooks v. State, 323 S.W.3d 893, 894–95, 912 (Tex. Crim. App. 2010) (plurality 

opinion); see also Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); 

Ervin, 331 S.W.3d at 53 & n.1 (detailing pre-Brooks standard of review for 

determining factual sufficiency of evidence to support conviction).
4

Watson v. State, 204 S.W.3d 404, 412 (Tex. Crim. App. 2006). Initially, Texas 

courts followed Jackson in deciding whether the evidence supporting a defendant’s 

conviction was legally sufficient. See, e.g., Williams v. State, 235 S.W.3d 742, 750 

(Tex. Crim. App. 2007); see also Watson, 204 S.W.3d at 412–13 (applicable legal

sufficiency standard that Supreme Court articulated in Jackson); Clewis v. State, 922 

S.W.2d 126, 131–33 (Tex. Crim. App. 1996) (Texas adopted Jackson standard as 

legal sufficiency standard), overruled by Brooks, 323 S.W.3d at 894–95, 912.

But states may create protections more rigorous than federal constitutional 

standards. See Mills v. Rogers, 457 U.S. 291, 300 (1982) (“Within our federal 

system the substantive rights provided by the Federal Constitution define only a 

minimum. State law may recognize liberty interests more extensive than those 

independently protected by the Federal Constitution.”). And factual sufficiency 

review is a creature of Texas state law; it is rooted in the Texas Constitution. See 

Woods v. Cockrell, 307 F.3d 353, 357–58 (5th Cir. 2002); Laster, 275 S.W.3d at 

518; see also Clewis, 922 S.W.2d at 129–30.

The Factual Conclusivity Clause of the Texas Constitution provides in no 

uncertain terms that:

[T]he decision of [the Texas Courts of Appeals] shall be conclusive on 

all questions of fact brought before them on appeal or error.

TEX. CONST. art. V, § 6(a) (emphasis added). The clause “requires” Texas courts to 

make a “distinction” between questions of law and questions of fact. Sw. Bell Tel. 
5

Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004). Under the Factual Conclusivity 

Clause of the Texas Constitution, intermediate courts of appeals, not the Texas Court 

of Criminal Appeals, have final appellate jurisdiction on questions of fact and, thus,

the exclusive power to review the factual sufficiency of the evidence supporting a 

defendant’s conviction. See Laster, 275 S.W.3d at 518–19 (Court of Criminal 

Appeals does not conduct factual sufficiency review); Meraz v. State, 785 S.W.2d 

146, 153–55 (Tex. Crim. App. 1990); see also Regal Fin. Co., Ltd. v. Tex Star 

Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010); In re King’s Estate, 244 S.W.2d 

660, 665–66 (Tex. 1951); cf. TEX. CONST. art. V, § 5(a) (Court of Criminal Appeals 

has final appellate jurisdiction relative to questions of law in criminal cases). The 

Factual Conclusivity Clause also prevents the Court of Criminal Appeals from 

adopting a standard of review for the courts of appeals that is inconsistent with the 

Texas Constitution because by doing so the court interferes with the jurisdiction of 

the intermediate appellate courts to determine questions of fact. Ex parte Schuessler, 

846 S.W.2d 850, 852–53 (Tex. Crim. App. 1993); Meraz, 785 S.W.2d at 153–55; 

see also Temple v. State, 342 S.W.3d 572, 620 (Tex. App.—Houston [14th Dist.] 

2010) (Seymore, J., concurring) (Court of Criminal Appeals’s decision to require 

appellate courts, when reviewing evidence for factual sufficiency, to employ 

standard of review for legal sufficiency and review all evidence in light most 
6

favorable to verdict is “derogative of [the courts of appeals’s] conclusive jurisdiction 

relative to all questions of fact”), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013).

Additionally, the Texas Legislature has expressly directed, consistent with the 

Factual Conclusivity Clause, that intermediate courts of appeals “may reverse the 

judgment in a criminal action[] . . . upon the facts.” TEX. CODE CRIM. PROC. ANN.

art. 44.25. And it is well-settled that it is reversible error for a court of appeals to 

address a question of fact as a question of law. See In re King’s Estate, 244 S.W.2d 

at 666; see also Ex parte Schuessler, 846 S.W.2d at 852; Meraz, 785 S.W.2d at 153; 

see also Kiffe v. State, 361 S.W.3d 104, 117 n.3 (Tex. App.—Houston 2011, pet. 

ref’d) (Jennings, J., concurring).

This is why Texas courts crafted a distinct factual sufficiency standard of 

review, asking whether, in considering all the evidence in a neutral light, the jury’s 

verdict was “so contrary to the overwhelming weight of the evidence as to be clearly 

wrong and unjust.” See Clewis, 922 S.W.2d at 129, 134; see also Laster, 275 S.W.3d 

at 518–19 (determining legal and factual sufficiency of evidence requires 

implementation of separate and distinct standards; courts should not combine their 

legal and factual sufficiency analyses); Johnson v. State, 23 S.W.3d 1, 6–9 (Tex. 

Crim. App. 2000); In re King’s Estate, 244 S.W.2d at 666 (courts cannot ignore 

Factual Conclusivity Clause of Texas Constitution, which requires court of appeals 

“to consider the fact question of weight and preponderance of all evidence and to 
7

order . . . a new trial accordingly” if verdict appears clearly unjust); Campos v. State, 

317 S.W.3d 768, 773–77, 773 n.1 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) 

(examining legal sufficiency challenge separately and before appellant’s factual

sufficiency challenge); Cantrell v. State, 75 S.W.3d 503, 508 (Tex. App.—

Texarkana 2002, pet. ref’d) (“Legal and factual challenges to the sufficiency of the 

evidence require the use of separate and distinct standards. . . . If we find the 

evidence legally insufficient, we must reverse the judgment and render a judgment 

of acquittal. If we find the evidence factually insufficient, we reverse the judgment 

and remand the cause to the trial court for a new trial.” (internal citations omitted)); 

Ingram v. State, No. 09-91-232-CR, 1996 WL 596013, at *2 (Tex. App.—Beaumont 

Oct. 16, 1996, pet. ref’d) (not designated for publication) (“The mechanics of such 

a [factual sufficiency] review are obviously quite distinct from those concerning a 

legal sufficiency review. This is not surprising as legal insufficiency and factual 

insufficiency provide separate and independent grounds for relief in the criminal law 

context.”).

Texas courts for years have demonstrated an ability to distinguish between 

legally sufficient evidence and factually sufficient evidence. See Tibbs v. Florida, 

457 U.S. 31, 44–45 (1982); Johnson, 23 S.W.3d at 7–8. As the Texas Court of 

Criminal Appeals has explained:

The Due Process Clause to the United States Constitution 

requires that a criminal conviction be supported by a rational trier of 
8

fact’s findings that the accused is guilty of every essential element of a 

crime beyond a reasonable doubt. This due process guarantee is 

safeguarded when a court reviews the legal sufficiency of the evidence. 

During such a review, an appellate court must not usurp the role of the 

factfinder. . . . When conducting a legal sufficiency review, a court 

must ask whether “any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt”—not 

whether “it believes that the evidence at the trial established guilt 

beyond a reasonable doubt.” In doing so, we assess all of the evidence 

“in the light most favorable to the prosecution.” . . . . After giving 

proper deference to the factfinder’s role, we will uphold the verdict 

unless a rational factfinder must have had reasonable doubt as to any 

essential element.

. . . .

A verdict must also be supported by factually sufficient evidence. 

But unlike a legal sufficiency review, which is a federal due process 

requirement, a factual sufficiency review is a creature of state law. On 

direct appeal, a court must begin its factual sufficiency review with the 

assumption that the evidence is legally sufficient under Jackson. 

Evidence that is legally sufficient, however, can be deemed factually 

insufficient in two ways: (1) the evidence supporting the conviction is 

“too weak” to support the factfinder’s verdict, or (2) considering 

conflicting evidence, the factfinder’s verdict is “against the great 

weight and preponderance of the evidence.” When a court of appeals 

conducts a factual sufficiency review, it must defer to the jury’s 

findings. We have set out three “basic ground rules” implementing this 

standard. First, the court of appeals must consider all of the evidence 

in a neutral light, as opposed to in a light most favorable to the verdict. 

Second, the court of appeals may only find the evidence factually 

insufficient when necessary to “prevent manifest injustice.” Although 

the verdict is afforded less deference during a factual sufficiency 

review, the court of appeals is not free to override the verdict simply 

because it disagrees with it. Third, the court of appeals must explain 

why the evidence is too weak to support the verdict or why the 

conflicting evidence greatly weighs against the verdict. This 

requirement serves two related purposes. First, it supports the court of 

appeals’s judgment that a manifest injustice has occurred. And second, 
9

it assists [the Court of Criminal Appeals] in ensuring that the standard 

of review was properly applied.

Laster, 275 S.W.3d at 517–18 (internal footnotes omitted).

Yet, for the last decade, the Texas Court of Criminal Appeals has disregarded 

the plain language of the Factual Conclusivity Clause of the Texas Constitution, the 

plain language of Texas Code of Criminal Procedure article 44.25, Texas Supreme 

Court precedent, and its own precedent by purporting to “abolish[]” the courts of 

appeals’ duty to review the factual sufficiency of the evidence in criminal cases. See 

Howard v. State, 333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011); see also 

Lipscomb v. State, 526 S.W.3d 646, 653–54 (Tex. App.—Houston [1st Dist.] 2017, 

pet. ref’d) (noting Court of Criminal Appeals abolished factual sufficiency review 

of issues on which State bears burden of proof at trial). Instead, the court has 

determined that in criminal cases “a legal-sufficiency [appellate] standard [of review 

is] ‘indistinguishable’ from a factual-sufficiency [appellate] standard [of review].”

Brooks, 323 S.W.3d at 901 (plurality opinion); see id. at 912–26 (Cochran, J., joined 

by Womack, J., concurring) (agreeing with plurality to overrule use in criminal cases 

of factual sufficiency standard of review, which was consistent with Texas Supreme 

Court precedent and previously articulated by Court of Criminal Appeals itself).

After the Texas Court of Criminal Appeals’s plurality opinion in Brooks, this 

Court decided to answer questions of fact in criminal cases as pure questions of law. 

See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet. 
10

ref’d). In other words, after Brooks, we decided to apply the legal sufficiency 

standard of review to questions of fact, viewing the evidence in the light most 

favorable to the jury’s verdict, rather than neutrally reweighing it. See id. Although 

the majority in Ervin erred in doing so, until this Court or a higher court overrules 

Ervin, we must accept it as binding precedent. See Swilley v. McCain, 374 S.W.2d 

871, 875 (Tex. 1964); Caddell v. State, 123 S.W.3d 722, 726–27 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d) (explaining court bound to follow its own 

precedent).

The problem with our current inability to address appellant’s factual 

sufficiency complaint in accordance with the Factual Conclusivity Clause of the 

Texas Constitution is two-fold: it denies appellant due process of law5and it violates 

his right to equal protection of law.6 See Griffin v. Illinois, 351 U.S. 12, 18 (1956) 

(concluding in states providing for appellate review, criminal defendant entitled to 

protections afforded under Due Process and Equal Protection Clauses of United 

States Constitution); see also M.L.B. v. S.L.J., 519 U.S. 102, 111 (1996) (“This Court 

5 See U.S. CONST. amends. V (“No person shall be . . . deprived of life, liberty, or 

property, without due process of law . . . .”), XIV, § 1 (“No State shall . . . deprive 

any person of life, liberty, or property, without due process of law . . . .”); TEX.

CONST. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, 

property, privileges or immunities, or in any manner disfranchised, except by the 

due course of the law of the land.”).

6 See U.S. CONST. amend. XIV, § 1 (“No State shall . . . deny to any person . . . the 

equal protections of the laws.”); TEX. CONST. art. I, § 3.
11

has never held that the States are required to establish avenues of appellate review, 

but it is now fundamental that, once established, these avenues must be kept free of 

unreasoned distinctions that can only impede open and equal access to the courts.” 

(internal quotations omitted)). This is because by applying the Jackson legal 

sufficiency standard of review to appellant’s complaint of factually insufficient 

evidence, we answer appellant’s question of fact as a pure legal question and deny 

appellant his right to the appellate remedy of a new trial, as recognized in the Texas 

Constitution and by the Texas Legislature in Texas Code of Criminal Procedure 

article 44.25. See Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005)

(pre-Brooks “[r]eversal of [a] judgment and remand for a new trial [was] the proper 

remedy when a court of appeals f[ound] that evidence [was] factually insufficient”); 

Werner v. State, 445 S.W.3d 228, 238 (Tex. App.—Houston [1st Dist.] 2013) 

(“Before Brooks, the remedy for factual insufficiency was remanding for a new trial. 

Following Brooks, an acquittal is required if the evidence is insufficient under its 

standard of review.” (internal citations omitted)), rev’d on other grounds, 412 

S.W.3d 542 (Tex. Crim. App. 2013); Temple, 342 S.W.3d at 621 (Seymore, J., 

concurring) (“Query, how could a court of appeals ever decide a question of fact and 

remand a case for a new trial pursuant to the Texas Constitution and Code of 

Criminal Procedure article 44.25 if it is limited to reviewing legal sufficiency of the 

evidence?”).
12

Still yet, because the Texas Supreme Court clearly adheres to the Factual 

Conclusivity Clause of the Texas Constitution, it allows civil litigants to present 

factual sufficiency complaints, permits intermediate courts of appeals to review such 

complaints as questions of fact, and it preserves the remedy of a remand for new 

trial. But because the Court of Criminal Appeals has abolished actual factual 

sufficiency review in criminal cases, a criminal defendant is no longer entitled to the 

same rights as a civil litigant and his right to equal protection of law is violated. 

There can be “no sound basis for the disparate interpretations of a single 

constitutional provision based on whether the matter on appeal is civil or criminal in 

nature.” Susan Bleil & Charles Bleil, The Court of Criminal Appeals Versus the 

Constitution: The Conclusivity Question, 23 ST. MARY’S L.J. 423, 424 (1991).

As my distinguished judicial predecessor has pointed out, the Factual

Conclusivity Clause of the Texas Constitution provides a much-needed and critical 

fail-safe against manifestly unjust convictions that are based on evidence that is 

factually insufficient, although legally sufficient. See, e.g., Vernon v. State, 571 

S.W.3d 814, 832 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (Jennings, J., 

concurring). And neither this Court, nor the Court of Criminal Appeals has the 

legitimate power to “abolish” our constitutionally guaranteed right to review the 

factual sufficiency of the evidence supporting a defendant’s conviction. See Ex 

parte Schuessler, 846 S.W.2d at 852–53 (Court of Criminal Appeals does not have 
13

authority to “create[] a standard of review for the courts of appeals that contravene[s] 

the Texas Constitution”); Queen v. State, 842 S.W.2d 708, 711 (Tex. App.—

Houston [1st Dist.] 1992, no pet.) (intermediate appellate courts in Texas have no 

inherent power to ignore an express constitutional mandate); see also M.L.B., 519 

U.S. at 111 (“This Court has never held that the States are required to establish 

avenues of appellate review, but it is now fundamental that, once established, these 

avenues must be kept free of unreasoned distinctions that can only impede open and 

equal access to the courts.” (internal quotations omitted)).

“The [intermediate] courts of appeals [have been] . . . constitutionally given 

the authority to determine if a jury finding is against the great weight and 

preponderance of the evidence.” Meraz, 785 S.W.2d at 154. “[I]t is up to the people 

of the State of Texas[, not the courts,] to amend the Constitution.” Id.; see also 

Ervin, 331 S.W.3d at 67, 70 (Jennings, J., concurring). The Texas Court of Criminal 

Appeal may not “usurp the constitutional prerogative of the Texas courts of appeals 

to properly review and decide questions of fact presented to them on appeal.” Ervin, 

331 S.W.3d at 69 (Jennings, J., concurring). Thus, when a criminal defendant “has 

squarely presented a question of fact to this Court, contending that the evidence in 

support of his conviction is so weak that the jury’s verdict is clearly wrong and 

manifestly unjust,” “this Court still has a constitutionally-delineated right and duty, 

with which no other court may lawfully interfere, to properly address [the 
14

defendant’s] question of fact by considering and weighing all the evidence in 

record.” Id.

I respectfully request that the Texas Court of Criminal Appeals reconsider its 

determination that “a legal-sufficiency [appellate] standard [of review is] 

‘indistinguishable’ from a factual-sufficiency [appellate] standard [of review].” See 

Brooks, 323 S.W.3d at 901 (plurality opinion). And that it allow intermediate courts

of appeals to address a criminal defendant’s question of fact as a question of fact, by 

considering all the evidence in a neutral light, to determine whether the jury’s verdict 

was “so contrary to the overwhelming weight of the evidence as to be clearly wrong 

and unjust.” 

In light of this Court’s precedent and that of the Court of Criminal Appeals, I 

can do nothing but join in rejecting appellant’s request for a pre-Brooks review of 

the factual sufficiency of the evidence supporting his conviction. See Temple, 342 

S.W.3d at 620 (Seymore, J., concurring) (“Notwithstanding the imperatives 

of . . . stare decisis . . . , it is my considered opinion that this Court is duty-bound to 

contravene disgorgement of its exclusive jurisdiction to determine questions of 

fact.”); Jones v. State, 962 S.W.2d 96, 99 (Tex. App.—Houston 1997) (Taft, J., 

concurring) (although “we are bound by precedent . . . , we are not gagged” by it), 

aff’d, 984 S.W.2d 254 (Tex. Crim. App. 1998).
15

Julie Countiss

Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.

Countiss, J., concurring.

Publish. TEX. R. APP. P. 47.2(b).