Opinion issued September 1 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 1 8
- 00 941
- CR

——————————— QUINTON MAL B ROUGH , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 177th District Court

Harris County, Texas Trial Court Ca se No. 15 24524

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

- bader

ginsburg

- hobby

- 091819044.html

.2

In his second and third issues, appellant, Quinton Malbrough, asserts that the evidence i s factually insufficient to support his conviction, this Court has the authority under the Texas Constitution to conduct a factual sufficiency review by weighing the e vidence 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 factua l 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 impo rtant. I write separately to take up the mantle 3 and nevertheless persist in explaining why this Court has the obligation

2 As an intermediate appellate court, we are duty bound to follow precedent issued b y 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, 87 5 (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) (J ennings, 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 qua ntum 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 t hat 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 ( 197 9 ), 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

- C R, 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 (de tailing 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)

. Ini tially, 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, 1 31

– 3 3 (Tex. Crim. App. 1996) (Texas adopted Jackson standard as legal sufficiency standard) , overruled by Brooks , 323 S.W.3d at 894

– 95, 912

. But s tates 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 r ecognize liberty interests more extensive than those independently protected by the Federal Constitution.”)

. And f actual sufficiency review is a creature of Texas state law ; i t 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

. T he 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.
T EX
. C ONST
. 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 Crim inal 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 5 95, 603 (Tex. 2010) ; In re King ’ s Estate , 2 4 4 S.W.2d 660, 66 5

– 6 6 (Tex. 1951); cf. T EX
. C ONST
. 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 court s 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

– 5 5 ; 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 su fficiency, to employ standard of review for legal sufficiency and review all evidence in light most6

favorable to verdict is “derogative of [the courts of appeals ’ s] conclusive jurisdiction relat ive 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.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 44.25 . And i t 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).
T his is why Texas courts crafted a distinct factual sufficiency standard of review, ask ing whether , in considering all the evidence in a neutral ligh t , 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 to7

order

. . . a ne w 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 su fficiency challenge separately and before appellant’s factual sufficiency challenge); Cantrell v. State , 75 S.W.3d 503, 508 (Tex. App.

— Texarkana 200 2 , 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 q uite 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:

T he Due Proces s Clause to the United States Constitution requires that a criminal conviction be supported by a rational trier of8

fact ’ s findings that the accused is guilty of every essential element of a crime beyond a reasonable doubt. This due process guarantee is sa feguarded 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 fa ct 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 favorabl e 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 factua lly 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 t hat 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) con sidering 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 gro und 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 insufficien t 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 appea ls 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 injus tice has occurred. And second,9

it assists [the C ourt of C riminal A ppeals] in ensuring that the standard of review was properly applied.
Laster , 275 S.W.3d at 51 7

– 1 8 (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 preceden t 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. A pp.

— Houston [1st Dist.] 2017, pet. ref ’ d) (noting Court of Criminal Appeals abolished factual sufficiency review of issues on which State b ears burden of proof at trial). Instead, the court has determined that in criminal cases “a legal

- sufficiency [appel late] 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 ov errul e 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 i n 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
pr ecedent)

. 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 law 5 and 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 Un ited States Constitution); see also M.L.B. v. S.L.J. , 519 U.S. 102, 111 (1996) (“This Court

5 See U.S. C ONST
. 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

. . . .”); T EX
. C ONST
. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfra nchised, except by the due course of the law of the land.”).
6 See U.S. C ONST
. amend. XIV, § 1 (“No State shall

. . . deny to any person

. . . the equal protections of the laws.”); T EX
. C ONST
. 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 f ree 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 evide nce , 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 ins ufficiency 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 g rounds , 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 lega l 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 c ivil litigant s to present factual sufficiency complaints , permits intermediate courts of a ppeals 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 S T
. M ARY ’ S L.J. 423, 424 (1991). As my distinguished judicial predecessor has pointed out, t he 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 ( C ourt of C riminal A ppeals does not have13

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 constitution al 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 th at can only impede open and equal access to the courts.” (internal quotations omitted))

.

“ The [intermediate] court s of appeals [have been] . . . constitutionally given the authority to determine if a jury finding is against the great weight and preponderan ce 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 n ot “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 6 9 (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

- del ineated right and duty, with which no other court may lawfully interfere, to properly address [the14

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 r econsider 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

c onsidering 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 cle arly wrong and unjust.”
I n 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 it s 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. 199 8).15 Julie Countiss Justice Panel consists of Chief Justice Radack and Justices Lloyd and Countiss. Countiss, J., concurring.
P ublish. T EX
. R. A PP
. P. 47.2(b).