1

443 U.S. 307 (1979).

 

 

 

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

HERVEY, J., announced the judgment of the Court and delivered an opinion in

which KELLER, P.J., KEASLER, and COCHRAN, JJ., joined. COCHRAN J., filed a concurring

opinion in which WOMACK, J., joined. PRICE, J., filed a dissenting opinion in which

MEYERS, JOHNSON, and HOLCOMB, JJ., joined. WOMACK, J., concurred.

O P I N I O N

We granted discretionary review in this case to address, among other things, whether there

is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia and 1

a factual-sufficiency standard under Clewis v. State and whether there is a need to retain both
Brooks--2

2

922 S.W.2d 126 (Tex.Cr.App. 1996).

3

See Jackson, 443 U.S. at 319.

4

See Clewis, 922 S.W.2d at 133.

5

See id.

6

See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Cr.App. 2007) (factual-sufficiency review

is “barely distinguishable” from legal-sufficiency review); Watson v. State, 204 S.W.3d 404, 442-48

(Tex.Cr.App. 2006) (Cochran, J., dissenting) (discussing this Court’s attempts to “clarify” Clewis).

standards. Under the Jackson v. Virginia legal-sufficiency standard, a reviewing court is required 2

to defer to a jury’s credibility and weight determinations. In Clewis, this Court adopted a factual- 3

sufficiency standard, which is supposed to be distinguished from a Jackson v. Virginia legalsufficiency standard primarily by not requiring a reviewing court to defer to a jury’s credibility and

weight determinations. But then Clewis contradicted itself by also requiring a reviewing court to 4

apply this standard with deference to these jury determinations “so as to avoid an appellate court’s

substituting its judgment for that of the jury.” After having made several attempts to “clarify” 5

Clewis in part to resolve this fundamental contradiction, we eventually came to realize that the

Clewis factual-sufficiency standard is “barely distinguishable” from the Jackson v. Virginia legalsufficiency standard. We now take the next small step in this progression and recognize that these 6

two standards have become essentially the same standard and that there is no meaningful distinction

between them that would justify retaining them both. We, therefore, overrule Clewis and decide that

the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should

apply in determining whether the evidence is sufficient to support each element of a criminal offense
Brooks--3

7

Appellant was also charged with and convicted of possessing more than one but less than

four grams of ecstasy and sentenced to 10 years in prison in cause number 10-07-00310-CR. That

conviction is not at issue in this proceeding.

8

Appellant testified at trial that he had “like $30 or $40” on him.

that the State is required to prove beyond a reasonable doubt.

The record reflects that, in cause number 10-07-00309-CR, a jury convicted appellant of

possessing with intent to deliver more than four but less than 200 grams of crack cocaine and

sentenced him to 25 years in prison. Appellant claimed on direct appeal that the evidence is legally

and factually insufficient to support the intent-to-deliver element of this offense.

The evidence shows that two police officers went into a bar to investigate a report that

someone matching appellant’s description was there with a gun. When the officers asked appellant

to step outside, appellant ran and threw two baggies towards a pool table just before one of the

officers tased him. One of the baggies contained a small amount (about 3 grams) of marijuana. The

other baggie contained one baggie holding 4.72 grams of crack cocaine and another baggie holding

six ecstasy tablets that weighed 1.29 grams. Appellant also had a cell phone and, according to one 7

of the officers, “a couple of dollars.” Appellant did not appear to be under the influence of 8

narcotics, and he was not in possession of any drug paraphernalia that could have been used for

smoking crack cocaine. The police did not find a gun. The police gave appellant’s cell phone and

money to an acquaintance of appellant’s before they took appellant to jail.

An experienced Waco Police Department drug-enforcement investigator (Thompson)

testified that the bag containing the 4.72 grams of crack cocaine contained “two larger size rocks and

then maybe a smaller one” and a useable amount of “crumbs.” He testified that each of the two large
Brooks--4

rocks weighed at least two grams and the other one weighed “a gram and a half or something like

that.” Thompson testified that “he would say” that 4.72 grams was a “dealer amount,” which could

have been cut up into 23 or 24 rocks. He testified that 4.72 grams of crack cocaine is worth about

$470.

Thompson stated that a “typical quantity” that a dealer would have would be more than two

rocks and that he “would think” that someone with more than a gram would be a dealer. Thompson

testified that it is not “typical” for drug users to be in possession of a large amount of drugs and that

he has “not run across many people that are [crack cocaine] users that have more than one to two

rocks” because they are going to “smoke it as soon as [they] can get it.” He also testified that “most”

crack cocaine users “typically” would have some type of paraphernalia “to smoke the crack with”

and that “[t]ypically dealers don’t have crack pipes because it’s not really common for them to use

their product that they are selling.” For example, Thompson testified:

Q. [STATE]: Okay. So if somebody had approximately 4.72 grams and about three

or four rocks and some crumbs, is that a dealer amount or user amount?

A. [THOMPSON]: I would say that’s dealer amount.

* * *

Q. So if he’s got 4.72 grams--

A. I would think they were a dealer.

Q. Okay. I’m going to go–oh, you said that there are some other things that you

would look for to see if somebody was dealing as opposed to using the drugs. What

are some of those things that you would look for?

A. In my experience, and we’ve come across people that are just possessing crack to

use it. They usually have what is called a crack pipe or some type of heating element

to heat the crack up with. Most of the people that we’ve come across out in the field

that smoke crack have a crack pipe somewhere or have some brillo which you use

inside of your crack pipe as a filter to keep from inhaling the whole piece of crack up

when you’re smoking it. Typically dealers don’t have crack pipes because it’s not
Brooks--5

9

We note that appellant was charged with just possessing the six ecstasy pills that weighed

1.29 grams. The record contains no testimony on how many pills a typical user would take or a

typical seller would possess with intent to deliver.

really common for them to use their product that they are selling. You can’t make

any money if you’re hooked on your own product. So typically a user is going to

have some type of instrument to smoke the crack with, and, like I said before, they

normally don’t have more than one or two because they are smoking. You don’t save

crack. It’s not like a rainy day type of deal. You want to smoke it as soon as

possible.9

On cross-examination, Thompson described other factors, none of which are present in the

record in this case, indicating that a person could be a dealer: (1) possession of five, ten, or twenty

dollar bills; (2) names in the person’s cell phone; (3) possession of some document identifying who

owes what; (4) possession of a weapon; or (5) others observed the person trying to sell drugs.

Thompson also acknowledged that a person could possess 4.72 grams of crack cocaine for personal

use.

Appellant testified that he possessed only the baggie containing the small amount of

marijuana. He denied possessing the baggies containing the crack cocaine and the ecstasy pills.

Appellant also admitted that he has two prior convictions for possession of cocaine and another prior

conviction for possession with intent to deliver cocaine. The jury was instructed in the charge that

it could have considered these extraneous offenses “in determining the intent, motive, opportunity,

preparation, plan, knowledge, identity, or absence of mistake or accident by the Defendant, if any,

in connection with the offenses, if any, alleged against him in the indictment in this case, and for no

other purpose.”

During closing jury arguments, the State relied primarily on Thompson’s testimony to argue

that appellant possessed the crack cocaine with the intent to deliver it:
Brooks--6

[STATE]: There is no evidence at all, none, that he was a user. What does that tell

you? What does that tell the reasonable person? I’m going to go to Investigator

Thompson right now because he kind of ties in with that. The dealer level back on

the crack, and I’m bouncing back and forth because it’s basically the same charge.

Just with crack we have added the element of intent to deliver. But Investigator

Thompson testified that a typical user, one, two rocks, max, because what do they do

when they get it? They want to smoke it because they are craving this drug, because

they have to use it. They don’t hold it for a rainy day. They don’t keep it for later.

They use it then. And when they use it, they have paraphernalia on them. They don’t

carry a couple of rocks and then go home and find their stuff. They have it all on

their person. No drug paraphernalia, no brillo pad, no push pipe, no push rod, no

crack pipe, nothing. Again, because he’s not a user. There is no evidence of that.

In fact, the amount that he had is dealer amount. This is 23 to 25 crack rocks. It’s

way more than one or two for a user. 4.72 grams doesn’t really seem like a lot in

here. It’s a lot on the street. He had $500, $600 worth of drugs on him that night.

* * *

About him being a user and not a dealer, he got on the stand. Did he tell you, “I’m

a user, not a dealer”? He didn’t say that. That would have been the perfect chance

for him to say that. Does he look like a user? You know we had somebody in voir

dire say, “I’ve seen crack users, and I can tell when I see them.” Did he have a pipe

on him? No. What else did he not have? You know, no pipe. He had some money

on him, not a lot because he hadn’t started selling yet. He still had his whole 25-rock

stash. He hadn’t started selling yet. He had the cell phone. Yeah, it would have

been nice to get the names out of the cell phone and see if they match up with other

drug dealers, you know, that we know. The police, they were being nice. They gave

the phone to his sister and let her take it home. So are we going to blame the cops

for being a little too nice that night, even after he had cussed at them and resisted,

swung at them, kicked them? That’s not reasonable either.

During its closing jury arguments, the defense relied on other factors to argue that the

evidence did not show appellant’s intent to deliver.

[DEFENSE]: I know Mr. Brooks has a past. He came up here and he testified that

he has a juvenile conviction, that he has two possession convictions, he has a delivery

conviction. And when you look at all that, it would be easy for you to go back there

and say, “You know what? Because of all this, you know, he’s not telling the truth

and we shouldn’t believe him.” But I don’t think that’s what you’re going to do.

Yeah, he has had run-ins with the law, and as he stated, he panicked. He panicked

because he had the marijuana on him. But as he testified to you, he didn’t know

anything about that cocaine, didn’t know anything about that [ecstasy]. There was

no evidence presented to you other than Officer Thompson who came up here

yesterday and said, “Oh, it’s four grams to 200 grams, but that 4.72, oh, yeah, easy,
Brooks--7

that’s a delivery. Oh, yeah. It’s worth $500, $600.” But listen to his testimony

carefully. He also said that he looks for other things, too, and they should have

looked for other things too. They should have looked to determine whether or not

Mr. Brooks was carrying a large amount of money, whether or not he had a gun, and

we know that there was no gun found in that place now, whether or not he had any

documents with him that would indicate, “These people owe me money” or “This is

who I sold to.” They should have gotten a cell phone to see if there were any callers

in there that were potential buyers or users or anything of that nature. They should

have asked people in the bar whether or not Mr. Brooks when he went in there, did

anybody ever come up to him and say, “Do you have anything I can get from you

tonight” or “Can you sell me something?” There was no testimony whatsoever on

that. All you have is, ladies and gentlemen, as far as the delivery is what Allen

Thompson said, but most importantly, as I indicated to you, you have to show that

he was in possession of those items, and it’s just not there.

The court of appeals decided that “[s]tanding alone, 4.72 grams is insufficient evidence of

intent [to deliver because this amount is also consistent with personal use], additional evidence is

required.” See Brooks v. State, No. 10-07-00309-CR, slip op. at 8 (Tex.App.–Waco, delivered

October 1, 2008) (memorandum opinion not designated for publication). The court of appeals

decided that the additional evidence is legally sufficient “to establish possession with intent to

deliver,” but that “viewing the evidence in a neutral light, it is not factually sufficient.” See Brooks,

slip op. at 9-10 (“Viewing the evidence in the light most favorable to the verdict, the evidence is

legally sufficient to establish possession with intent to deliver. However, viewing the evidence in

a neutral light, it is not factually sufficient. The record does not reflect that Brooks was arrested in

a high crime or high drug area, the drugs were packaged in such a way to suggest that Brooks is a

dealer, Brooks was in possession of any drug paraphernalia for the purpose of dealing, or Brooks

possessed a large amount of cash . . . . Accordingly, we find the proof of guilt to be so weak as to

render the jury’s verdict clearly wrong and manifestly unjust.”).

We granted review on both the appellant’s and the State’s petitions for discretionary review.

Appellant’s petition for discretionary review presents the following ground for review:
Brooks--8

10

The question presented in this ground is whether a jury could rationally find beyond a

reasonable doubt that appellant possessed with intent to deliver 4.72 grams of crack cocaine because

appellant fit a profile of “most” or “typical” drug dealers.

11

See Jackson, 443 U.S. at 319.

(1) The Court of Appeals erred in holding the evidence was legally sufficient to

establish appellant had the intent to distribute cocaine, where the court found the

same evidence was factually insufficient to establish the necessary intent.10

The State’s petition for discretionary review presents the following grounds for review:

(1) Is there any meaningful distinction between legal sufficiency review under

Jackson v. Virginia and factually [sic] sufficiency review when that review is limited

to the weakness of the evidence in the abstract and, if so, does it escape review in this

Court?

(2) Did the Tenth Court of Appeals ignore its duty to adequately explain why the

evidence, though legally sufficient, is so weak as to render the jury’s verdict clearly

wrong and manifestly unjust?

I.Is There Any Meaningful Distinction Between Jackson v. Virginia Legal-Sufficiency Review

and Clewis Factual-Sufficiency Review

We begin the discussion by noting that in Watson this Court recognized that a factualsufficiency standard is “barely distinguishable” from a legal-sufficiency standard and that “the only

apparent difference” between these two standards is that the appellate court views the evidence in

a “neutral light” under a factual-sufficiency standard and “in the light most favorable to the verdict”

under a legal-sufficiency standard. See Watson, 204 S.W.3d at 415 (emphasis supplied). It is fair

to characterize the Jackson v. Virginia legal-sufficiency standard as:

Considering all of the evidence in the light most favorable to the verdict, was a jury

rationally justified in finding guilt beyond a reasonable doubt.11

Compare this to the Clewis factual-sufficiency standard which may fairly be characterized as:
Brooks--9

12

Our decision in Watson approved of this formulation of the Clewis standard. See Watson,

204 S.W.3d at 415. Stated another way, the question under the Clewis factual-sufficiency standard

is whether, after viewing all of the evidence in a “neutral light,” the jury’s verdict is either “clearly

wrong and manifestly unjust” or “against the great weight and preponderance of the [conflicting]

evidence.” See Watson, 204 S.W.3d at 414-15; see also Clewis, 922 S.W.2d at 129 (reviewing court

views the evidence in a neutral light and sets aside the jury’s verdict “if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust”).

13

See Jackson, 443 U.S. at 319 (“Once a defendant has been found guilty of the crime charged,

the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon

judicial review all of the evidence is to be considered in the light most favorable to the

prosecution.”) (emphasis in original) and at 326 (a “court faced with a record of historical facts that

supports conflicting inferences must presume–even if it does not affirmatively appear in the

record–that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer

to that resolution”).

Considering all of the evidence in a neutral light, was a jury rationally justified in

finding guilt beyond a reasonable doubt.12

Viewing the evidence “in the light most favorable to the verdict” under a legal-sufficiency

standard means that the reviewing court is required to defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be

given their testimony. Viewing the evidence in a “neutral light” under a factual-sufficiency 13

standard is supposed to mean that the reviewing court is not required to defer to the jury’s credibility

and weight determinations and that the reviewing court may sit as a “thirteenth juror” and

“disagree[] with a jury’s resolution of conflicting evidence” and with a jury’s “weighing of the

evidence.” See Tibbs v. Florida, 457 U.S. 31, 42 (1982) (internal quotes omitted) (describing

appellate reversals of convictions based on evidentiary weight); Watson, 204 S.W.3d at 447

(Cochran, J., dissenting) (factual-sufficiency standard “explicitly makes the reviewing court a

‘thirteenth juror’ who makes an independent, de novo determination of credibility and the weight to
Brooks--10

14

The Supreme Court in Tibbs explained the difference between reversals based on evidentiary

sufficiency (i.e., Jackson v. Virginia) and reversals based on evidentiary weight (i.e., factualsufficiency) which “draws the appellate court into questions of credibility.” See Tibbs, 457 U.S. at

38 n.11.

15

The lead majority opinion in Clewis seems to have cited Tibbs for the proposition that “when

conducting a factual sufficiency review, an appellate court cannot substitute its judgment for that of

the factfinder since this would violate the defendant’s right to trial by jury.” See Clewis, 922 S.W.2d

at 133 (citing Tibbs, 457 U.S. at 42). Tibbs, however, stands for the opposite proposition-that the

reviewing court can substitute its judgment for the factfinder’s in conducting a factual-sufficiency

review. See Tibbs, 457 U.S. at 42 (reviewing court can sit as “thirteenth juror” and disagree “with

the jury’s resolution of conflicting testimony” and “the jurors’ weighing of the evidence”).

be given the testimony and the inferences to be drawn from the base facts”). Therefore, the 14

difference between a factual-sufficiency standard and a legal-sufficiency standard is that the

reviewing court is required to defer to the jury’s credibility and weight determinations (i.e., it must

view the evidence in the light most favorable to the verdict) under a legal-sufficiency standard while

it is not required to defer to a jury’s credibility and weight determinations (i.e., it must view the

evidence in a “neutral light”) under a factual-sufficiency standard. See id.; Johnson v. State, 23

S.W.3d 1, 13 (Tex.Cr.App. 2000) (McCormick, P.J., dissenting) (“To defer or not to defer, that is

the question.”).

It is significant that Clewis purported to treat the evidentiary-weight standard described in

Tibbs as a component of the Clewis factual-sufficiency standard that views the evidence in a “neutral

light.” See Clewis, 922 S.W.2d at 149 (Clinton, J., concurring) (“The reviewing court no longer

‘views the evidence in the light mostfavorable to the prosecution;’ rather it must consider and weigh

the evidence to determine whether the jury’s resolution of conflicting testimony was manifestly

unjust”(citing Tibbs, 457 U.S. at 42)). This Court’s decision in Johnson also recognized that “there 15

appears to be no substantive differences” between the Clewis factual-sufficiency standard and the
Brooks--11

evidentiary-weight standard described in Tibbs. See Johnson, 23 S.W.3d at 8 n.8 (“Elsewhere, the

equivalent of determining legal sufficiency is often referred to as examining the ‘sufficiency of the

evidence,’ and the companion term to factual sufficiency is referenced as reviewing the ‘weight of

the evidence.’ However, there appears to be no substantive differences between these terms, and this

Court has treated them interchangeably.”). It is also noteworthy that the evidentiary-weight standard

described in Tibbs does not mention anything about the reviewing court being required to afford

“appropriate deference” to the jury’s credibility and weight determinations. But see Clewis, 922

S.W.2d at 133 (reviewing court must apply a factual-sufficiency standard in an “appropriately

deferential” manner).

Therefore, if a reviewing court is required to defer in any manner to a jury’s credibility and

weight determinations, then it is not viewing the evidence in a “neutral light” and not applying the

type of factual-sufficiency standard described in Tibbs and purportedly adopted in Clewis. And it

is very clear that this Court’s factual-sufficiency decisions have always required a reviewing court

in a factual-sufficiency review to afford a great amount of deference (though this Court has never

said precisely how much deference) to a jury’s credibility and weight determinations. See Clewis,

922 S.W.2d at 133 (reviewing court may disagree with a jury’s weighing of the evidence but in an

“appropriately deferential” manner “so as to avoid an appellate court’s substituting its judgment for

that of the jury”); see also Johnson, 23 S.W.3d at 7 (factual-sufficiency review “must employ

appropriate deference to prevent an appellate court from substituting its judgment for that of the fact

finder, and any evaluation should not substantially intrude upon the fact finder’s role as the sole
Brooks--12

16

This requirement that the reviewing court afford “appropriate deference” to a jury’s

credibility and weight determinations in a factual-sufficiency review is motivated by a concern that

not requiring such deference might violate the right to trial by jury set out in the Texas Constitution.

See Clewis, 922 S.W.2d at 134-36 (discussing “factfinder deference and right to trial by jury”); see

also Roberts v. State, 221 S.W.3d 659, 661-62 n.7 (Tex.Cr.App. 2007) (in order to safeguard Texas’

constitutional right to trial by jury, the Texas Supreme Court imposed several requirements upon the

reviewing court when it reverses on factual-sufficiency grounds such as requiring the reviewing court

to exercise its factual-sufficiency jurisdiction with “deferential standards of review”). 

judge of the weight and credibility given to witness testimony”).16

And in Watson this Court reiterated that it had never tolerated, “even in the ‘factual

sufficiency’ context,” an “appellate court simply opting to ‘disagree’ with the jury’s verdict.” See

Watson, 204 S.W.3d at 416. This Court further stated in Watson:

It is in the very nature of a factual-sufficiency review that it authorizes an appellate

court, albeit to a very limited degree, to act in the capacity of a so-called “thirteenth

juror.”

* * *

An appellate court judge cannot conclude that a conviction is “clearly wrong” or

“manifestly unjust” simply because, on the quantum of evidence admitted, he would

have voted to acquit had he been on the jury. Nor can an appellate judge declare that

a conflict in the evidence justifies a new trial simply because he disagrees with the

jury’s resolution of that conflict.

See Watson, 204 S.W.3d at 416-17 (emphasis supplied).

This, however, is inconsistent with the evidentiary-weight standard described in Tibbs (and

purportedly adopted in Clewis) and with viewing the evidence in a “neutral light,” which permit the

reviewing court to show no deference at all to a jury’s credibility and weight determinations and to

sit as a “thirteenth juror” without any limitation and to declare that a conflict in the evidence justifies

a new trial simply because the reviewing court disagrees with the jury’s resolution of conflicting

evidence. See Tibbs, 457 U.S. at 42. This is what is supposed to distinguish the factual-sufficiency

standard from the legal-sufficiency standard. See id. Thus the Clewis factual-sufficiency standard’s
Brooks--13

17

See Watson, 204 S.W.3d at 441 (Cochran, J., dissenting) (“Thus, Clewis empowered courts

of appeals to act as a ‘thirteenth juror’ (one who was not even present to see and hear the witnesses)

and disagree with the fact-finder’s determination, but to be deferential to the fact-finder’s judgment

as it did so. This standard was ambiguous and contradictory from the beginning.”) and at 445 (one

“cannot view the evidence in a neutral light while at the same time giving deference to the

factfinder’s determinations of weight and credibility”); Johnson, 23 S.W.3d at 13-14 (McCormick,

P.J., dissenting) (also discussing “Clewis’ internal contradictions on the question of appellate

deference to the jury’s credibility and weight determinations”). 

18

253 S.W.3d 699 (Tex.Cr.App. 2008).

requirement that the reviewing court view the evidence with “appropriate deference” to a jury’s

credibility and weight determinationsis not only contradictory and inconsistent with the evidentiaryweight standard described in Tibbs, it also makes the Clewis factual-sufficiency standard even more

“barely distinguishable” from a Jackson v. Virginia legal-sufficiency standard.17

The final nail in the coffin that made a legal-sufficiency standard “indistinguishable” from

a factual-sufficiency standard came in this Court’s decision in Lancon v. State. There this Court 18

decided that the reviewing court cannot decide that the evidence is factually insufficient “solely

because [it] would have resolved the conflicting evidence in a different way” since “the jury is the

sole judge of a witness’s credibility, and the weight to be given the testimony.” See Lancon, 253

S.W.3d at 707. Our current formulation of a factual-sufficiency standard in Lancon,recognizing that

the jury is “the sole judge of a witness’s credibility, and the weight to be given their testimony,”

entirely eliminates the viewing the evidence in a “neutral light” component of a factual-sufficiency

standard and makes the current factual-sufficiency standard indistinguishable from the Jackson v.

Virginia legal-sufficiency standard. See also Johnson, 23 S.W.3d at 8 (also recognizing that if “a

reviewing court was to accord absolute deference to the fact finder’s determinations, then a factual

sufficiency determination would, no doubt, become the functional equivalent of a legal sufficiency
Brooks--14

19

A dissenting opinion in Lancon stated that the majority opinion “seems to say that from now

on, the level of deference due a jury’s decision will be total deference when the decision is based on

an evaluation of credibility.” See Lancon, 253 S.W.3d at 708 (Johnson, J., dissenting). We disagree.

Our decision in Lancon merely recognizes that the jury is the “sole judge of a witness’s credibility,

and the weight to be given the testimony” thus requiring the reviewing court to defer to the jury on

these determinations (i.e., view the evidence in the light most favorable to the verdict). Viewing the

evidence in the light most favorable to the verdict, however, begins the Jackson v. Virginia legalsufficiency analysis. The Jackson v. Virginia standard still requires the reviewing court to determine

whether “any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” See Jackson, 443 U.S. 319 (emphasis in original); Watson, 204 S.W.3d at 418

n.7 (Hervey, J., dissenting). This is the portion of the Jackson v. Virginia standard that essentially

incorporates a factual-sufficiency review. See Clewis v. State, 876 S.W.2d 428, 438-39

(Tex.App.–Dallas 1994) (Jackson v. Virginia standard necessarily encompasses a factual-sufficiency

review), vacated, 922 S.W.2d at 136. 

20

See Jackson, 443 U.S. at 319.

review”).

19

This may be illustrated by considering the following formulation of the factual-sufficiency

standard that Watson approved: “Considering all of the evidence in a neutral light, was a jury

rationally justified in finding guilt beyond a reasonable doubt.” See Watson, 204 S.W.3d at 415.

Substituting “in the light most favorable to the jury’s verdict” for the “a neutral light” component

of this formulation of the standard, as our cases such as Lancon have done by recognizing that “the

jury is the sole judge of a witness’s credibility, and the weight to be given the testimony,” the 20

factual-sufficiency standard from Watson may be reformulated as follows: “Considering all of the

evidence in the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt.” This is the Jackson v. Virginia legal-sufficiency standard. There is,

therefore, no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and

the Clewis factual-sufficiency standard, and these two standards have become indistinguishable.
Brooks--15

21

See Burks v. United States, 437 U.S.1 (1978); Greene v. Massey, 437 U.S. 19 (1978).

II. Double-Jeopardy Considerations

The Clewis factual-sufficiency standard being “barely distinguishable” (and now

indistinguishable) from a legal-sufficiency standard also raises some troubling double-jeopardy

questions under the United States Supreme Court’s decision in Tibbs. First, we find it necessary to

discuss the proceedings involving Mr. Tibbs in the Florida courts.

In 1976, the Florida Supreme Court reversed Tibbs’ convictions for rape of one person and

first-degree murder of another person because of the “weakness and inadequacy” of the rape victim’s

testimony, which was the only testimony that directly connected Tibbs to these crimes. See Tibbs

v. Florida, 397 So. 2d 1120, 1126 (Fla. 1981) (several aspects of the rape victim’s testimony “cast

serious doubt on her believability”); Tibbs v. Florida, 337 So.2d 788, 791 (Fla. 1976) and at 792

(Boyd, J., specially concurring). The Florida Supreme Court remanded the case to the trial court for

a new trial, which at the time was the remedy provided by Florida law upon a finding that the

evidence did not support a defendant’s conviction. See id.

Before Tibbs could be retried, the United States Supreme Court decided that double-jeopardy

principles prohibit the states from retrying a defendant whose conviction has been reversed on appeal

on evidentiary-sufficiency (i.e., legal-sufficiency) grounds essentially because this has the same

effect as an acquittal by a jury. After the United States Supreme Court handed down these 21

decisions, the Florida trial court granted Tibbs’ motion to dismiss his indictment on the grounds that

double-jeopardy principles prohibited his retrial. See Tibbs, 397 So.2d at 1121. A Florida Court of

Appeals reversed this order and reinstated Tibbs’indictment upon deciding that the Florida Supreme
Brooks--16

Court’s 1976 decision reversing Tibbs’ convictions “was based on the weight, rather than the legal

sufficiency, of the evidence.” See id.; State v. Tibbs, 370 So.2d 386, 388-89 (Fla. Dist. Ct. App.

1979).

In 1981, the Florida Supreme Court reviewed this decision noting at the outset “that the

distinction between an appellate reversal based on evidentiary weight and one based on evidentiary

sufficiency was never of any consequence until [the United State’s Supreme Court’s decision in]

Burks,” apparently because the remedy provided in both situations was a remand for a new trial. See

Tibbs, 397 So.2d at 1122. The Florida Supreme Court examined several of its prior decisions that

the Florida Court of Appeals had relied upon for deciding that there was a distinction in Florida law

between convictions reversed for evidentiary weight (proper remedy is remand for new trial) and

convictions reversed for evidentiarysufficiency(proper remedy is an appellate acquittal). See Tibbs,

397 So.2d at 1122-23 (Florida Court of Appeals “distinguished Burks by placing Tibbs’ reversal in

[evidentiary weight] category; appellate reversals where the evidence is technically sufficient but its

weight so tenuous or insubstantial that a new trial is ordered”). The Florida Supreme Court,

however, viewed “these ambiguous decisions as reversals which were based on [evidentiary]

sufficiency; that is, as cases in which the state failed to prove the defendant’s guilt beyond a

reasonable doubt.” See Tibbs, 397 So.2d at 1124-25.

The Florida Supreme Court, therefore, concluded that the Florida Court of Appeals’

distinction between reversals based on evidentiary weight and reversals based on evidentiary

sufficiency had a “questionable historical foundation.” See Tibbs, 397 So.2d at 1125. Despite this

questionable historical foundation, the Florida Supreme Court decided that its 1976 decision

reversing Tibbs’ convictions was “one of those rare instances in which reversal was based on
Brooks--17

evidentiary weight” and the Florida Supreme Court’s “improper weighing of the evidence” and that

double-jeopardy principles did not prohibit Tibb’s retrial. See Tibbs, 397 So.2d at 1126-27. The

Florida Supreme Court also decided that appellate reversals based on evidentiary weight, “if ever

valid in Florida, should . . . be eliminated from Florida law.” See Tibbs, 397 So.2d at 1125.

On review of the Florida Supreme Court’s 1981 decision that double-jeopardy principles did

not bar Tibbs’ retrial, the United States Supreme Court decided that double-jeopardy principles do

not bar a retrial when an appellate court “sits as a ‘thirteenth juror’” and “disagrees with the jury’s

resolution of the conflicting testimony.” See Tibbs, 457 U.S. at 32, 42-43. In reaching this decision,

the United States Supreme Court noted that a reversal based on “insufficiency of the evidence” has

the same effect as a jury acquittal “because it means that no rational factfinder could have voted to

convict the defendant” and that “the prosecution has failed to produce sufficient evidence to prove

its case.” See Tibbs, 457 U.S. at 41. The United States Supreme Court further stated that an

appellate reversal based on evidentiary weight “no more signifies acquittal than does a disagreement

among the jurors themselves” and that an “appellate court’s disagreement with the jurors’ weighing

of the evidence does not require the special deference accorded verdicts of acquittal.” The Supreme

Court wrote:

As we suggested just last Term, these policies do not have the same force when a

judge disagrees with a jury’s resolution of conflicting evidence and concludes that

a guilty verdict is against the great weight of the evidence . . . . A reversal on this

ground, unlike a reversal based on insufficient evidence, does not mean that an

acquittal was the only proper verdict. Instead, the appellate courtsits 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 deadlocked jury, we consistently have recognized, does not

result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an

appellate court’s disagreement with the jurors’ weighing of the evidence does not

require the special deference accorded verdicts of acquittal.
Brooks--18

22

For example, in Watson, in which we recognized that factual-sufficiency review is “barely

distinguishable” from legal-sufficiency review, we stated that the first ground rule for factualsufficiency review is that “the appellate court should be mindful that a jury has already passed on

the facts, and convicted, and that the court should never order a new trial simply because it disagrees

with the verdict, but only where it seems to the court to represent a manifest injustice . . . .” See

Watson, 204 S.W.3d at 414. This, however, arguably describes a situation where “the prosecution

has failed to produce sufficient evidence to prove its case” and “an acquittal was the only proper

verdict.” See Tibbs, 457 U.S. at 41-42. Thus described, our factual-sufficiency standard with its

remedy of a new trial could violate double-jeopardy principles. See id.

See Tibbs, 457 U.S. at 42 (citation to authority and footnote omitted).

The United States Supreme Court also examined the Florida Supreme Court’s 1976 decision

reversing Tibbs’ convictions and concluded that a “close reading” of that decision suggested “that

the Florida Supreme Court overturned Tibbs’ convictions because the evidence, although sufficient

to support the jury’s verdict, did not fully persuade the court of Tibbs’ guilt.” See Tibbs, 457 U.S.

at 46. The United States Supreme Court further noted that any ambiguity in this 1976 Florida

Supreme Court decision was resolved in its 1981 decision when the Florida Supreme Court

“unequivocally held” that its 1976 decision reversing Tibbs’ convictions was “one of those rare

instances in which reversal was based on evidentiary weight.” See Tibbs, 457 U.S. at 47. The

United States Supreme Court concluded that under “these circumstances, the Double Jeopardy

Clause [did] not bar retrial.” See id.

We believe that the Clewis factual-sufficiency standard with its remedy of a new trial could

very well violate double-jeopardy principles under Tibbs if factual-sufficiency review is “barely

distinguishable” from legal-sufficiency review. With our prior decisions requiring a great amount 22

of appellate deference to a jury’s credibility and weight determinations and not permitting appellate
Brooks--19

23

See Watson, 204 S.W.3d at 416-17.

courts to sit as “thirteenth jurors” except perhaps to “a very limited degree,” it is questionable 23

whether appellate reversals in Texas under such a factual-sufficiency standard are really reversals

based on evidentiary weight (they may actually be reversals based on evidentiary sufficiency). Having

decided in Part I of this opinion that the current Clewis factual-sufficiency standard is

indistinguishable from a Jackson v. Virginia legal-sufficiency standard, the remedy of a new trial

under this factual-sufficiency standard would violate double-jeopardy principles.

We also note that, were we to decide that reviewing courts must continue to apply a factualsufficiency standard with its remedy of a new trial in criminal cases, then we must also be prepared

to decide that they should apply this standard as “thirteenth jurors” with no deference at all to a jury’s

credibility and weight determinations in order to avoid these potential federal constitutional doublejeopardy issues. See also Tibbs, 457 U.S. at 42. We must also keep in mind that such a

nondeferential standard could violate the right to trial by jury under the Texas Constitution. See

Roberts, 221 S.W.3d at 661-62 n.7; Clewis, 922 S.W.2d at 133. Simply retaining and attempting to

once again “clarify” the Clewis factual-sufficiency standard that is currently indistinguishable from

a Jackson v. Virginia legal-sufficiency standard would not seem to be an option. Retaining any kind

of factual-sufficiency standard in criminal cases would, therefore, still make it necessary for this Court

to overrule Clewis and abandon its requirement, carried on by our subsequent decisions meant to

“clarify” Clewis, that reviewing courts must be “appropriately deferential” to a jury’s credibility and

weight determinations. See Clewis, 922 S.W.2d at 133. Thus, the only way to retain a factualsufficiency standard, which would be meaningfully distinct from a Jackson v. Virginia legal-
Brooks--20

24

We also note that the Florida Supreme Court’s 1981 decision in Tibbs examined its 1976

decision in Tibbs, other Florida state-court decisions, and the Florida Court of Appeals’ decision in

determining whether its 1976 decision reversing Tibbs’ conviction was a reversal based on

evidentiary weight or a reversal based on evidentiary sufficiency. See Tibbs, 397 So.2d at 1125-27.

The United States Supreme Court examined the Florida Supreme Court’s 1976 decision reversing

Tibbs’ conviction and the Florida Supreme Court’s 1981 decision that Tibbs’ retrial did not violate

double-jeopardy principles in determining that the Florida Supreme Court’s 1976 decision reversing

Tibbs’ conviction was a reversal based on evidentiary weight and not a reversal based on evidentiary

sufficiency. See Tibbs, 457 U.S. at 46-47. A single Jackson v. Virginia legal-sufficiency standard

probably would have avoided all of this. See Tibbs, 397 So.2d at 1125-26 (eliminating reversals

based on evidentiary weight will avoid “having to review appellate reversals based on evidentiary

shortcomings to determine whether they were based on sufficiency or on weight”).

sufficiency standard, would be to allow reviewing courts to sit as “thirteenth jurors.” However, our

factual-sufficiency decisions have consistently declined to do this. See, e.g., Watson, 204 S.W.3d at

416 (this Court has never tolerated “even in the ‘factual sufficiency’ context,” an “appellate court

simply opting to ‘disagree’ with the jury’s verdict”). 

We believe that these and the reasons given by the Florida Supreme Court for abandoning its

factual-sufficiency standard are good reasons for discarding the confusing and contradictory Clewis

factual-sufficiency standard. We agree with the Florida Supreme Court that:

Considerations of policy support, if not dictate, this result. Elimination of [reversals

based on evidentiary weight] accords Florida appellate courts their proper role in

examining the sufficiency of the evidence, while leaving questions of weight for

resolution only before the trier of fact. Eliminating reversals for evidentiary weight

will avoid disparate appellate results, or alternatively our having to review appellate

reversals based on evidentiary shortcomings to determine whether they were based on

sufficiency or on weight. Finally, it will eliminate any temptation appellate tribunals

might have to direct a retrial merely by styling reversals as based on “weight” when

in fact there is a lack of competent substantial evidence to support the verdict or

judgment and the double jeopardy clause should operate to bar retrial.

 

See Tibbs, 397 So.2d at 1125-26.24
Brooks--21

25

In addition, having two evidentiary standards instead of one rigorously and properly applied

standard may actually be detrimental. See Amanda Peters, Symposium: Treaties and Domestic Law

After Medellin v. Texas: Article: The Meaning, Measure, and Misuse of Standards of Review, 13

Lewis &Clark L. Rev. 233, 255-56 note 3 (Spring 2009) (having two standards of sufficiency review

promotes the “boilerplate” recitation of both standards and the rigorous application of neither).

26

See Watson, 204 S.W.3d at 449 (Cochran, J., dissenting) (“reviewing courts must apply the

Jackson legal sufficiency standard robustly, taking into account all of the evidence, although viewed

in the light most favorable to the jury’s verdict. If that evidence supports a rational and reasonable

finding of guilt beyond a reasonable doubt, it cannot be said that the jury’s verdict is manifestly

unjust orshocksthe conscience of the reviewing court. The verdict is either rational and reasonable

or it is not; it cannot be ‘semi-rational” and still meet the Jackson standard. There is no

jurisprudential value in reversing a rational, reasonable verdict and forcing the parties to go back and

do it again.”) (footnotes omitted and emphasis in original); Johnson, 23 S.W.3d at 15 (McCormick,

P.J., dissenting) (a properly applied Jackson v. Virginia legal-sufficiency standard is much more

exacting than Clewis claims and when the evidence is sufficient under a properly applied Jackson

v. Virginia legal-sufficiency standard, it can never be factually insufficient) and at 16 (“when the

intermediate appellate courts determine that the evidence is sufficient under Jackson v. Virginia but

III. Is Clewis Necessary to Address Some Widespread Criminal Justice Problem That Jackson

v. Virginia Is Inadequate To Address

We agree with the discussion in Judge Cochran’s dissenting opinion in Watson that there are

no jurisprudential systemic problems for which the Jackson v. Virginia legal-sufficiency standard is

inadequate or that can be resolved more satisfactorily in other ways besides retaining Clewis’

“internally inconsistent” factual-sufficiency standard. See Watson, 204 S.W.3d at 448-50 (Cochran,

J., dissenting) and at 450 (Clewis “has not contributed to the integrity of the appellate review process;

it has led to inconsistent results; and it has required numerous, but futile, attempts to clarify its

content and application”). It bears emphasizing that a rigorous and proper application of the 25

Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency

standard (especially one that is “barely distinguishable” or indistinguishable from a Jackson v.

Virginia legal-sufficiency standard). A hypothetical that illustrates a proper application of the 26
Brooks--22

‘factually insufficient’ under Clewis to support a conviction, and remand a case for a new trial, they

either will have misapplied Clewis (in which case the conviction should have been affirmed) or they

will have failed to appreciate that the evidence is also insufficient under Jackson v. Virginia (in

which case the defendant should have received an acquittal.”) (footnotes omitted).

27

See Watson, 204 S.W.3d at 406-07 (acknowledging that early case law never “expressly

declared that factual-sufficiency review, per se, was authorized in criminal cases”) and at 412-14

(also acknowledging that “factual sufficiency went into hiding in the late Forties and early Fifties”

and did not begin to reveal itself again until 1994 culminating in the 1996 Clewis decision); Watson,

204 S.W.3d at 424-32 (Cochran, J., dissenting) (discussing origins of Texas appellate review of

evidentiary sufficiency and concluding, “Until Clewis in 1996, this Court had consistently used a

single standard (although the precise wording varied) and reviewed the evidence in the light most

favorable to the factfinder, giving great deference to the jury’s credibility and weight

determinations.”).

Jackson v. Virginia legal-sufficiency standard is robbery-at-a-convenience-store case:

The store clerk at trial identifies A as the robber. A properly authenticated

surveillance videotape of the event clearly shows that B committed the robbery. But,

the jury convicts A. It was within the jury’s prerogative to believe the convenience

store clerk and disregard the video. But based on all the evidence the jury’s finding

of guilt is not a rational finding.

See Johnson, 23 S.W.3d at 15 (McCormick, P.J., dissenting).

IV. Texas Constitution, Texas Statutes And Case Law Revisited

Case law makes it fairly clear that, from the time that Texas was a republic in the 1830s and

1840s until the United States Supreme Court decided Jackson v. Virginia in 1979, this Court and its

predecessors, under what are essentially the same constitutional and statutory provisions that currently

exist and existed when Clewis was decided in 1996, applied a single and deferential evidentiarysufficiency standard in criminal cases that essentially was the same standard as the Jackson v.

Virginia standard. And, until this Court decided Clewis in 1996, this Court applied only the Jackson 27

v. Virginia evidentiary-sufficiency standard after the United States Supreme Court decided Jackson
Brooks--23

28

See Watson, 204 S.W.3d at 412-14; Watson, 204 S.W.3d at 432-33 (Cochran, J., dissenting)

(noting that this Court quickly adopted the Jackson v. Virginia standard “and adhered to that single,

constitutionally mandated standard for seventeen years”).

29

Clewis decided that a direct-appeal court’s constitutional and statutory jurisdiction to review

“questions of fact” in criminal cases require a direct-appeal court to apply a factual-sufficiency

standard to the elements of the offense when properly requested to do so by a convicted defendant.

See Clewis, 922 S.W.2d at 129 (“Jackson standard of review does not satisfy a noncapital

defendant’s right to an appellate review of fact questions”) and at 129-31 (“When their jurisdiction

to review fact questions is properly invoked, the courts of appeals cannot ignore constitutional and

statutory mandates.”); Stone v. State, 823 S.W.2d 375, 381 (Tex.App.–Austin 1992, pet. ref’d as

untimely filed) (stating that it is “duty-bound to exercise the full extent of the constitutional grant

of appellate jurisdiction when requested by the litigants”). 

30

See Watson, 204 S.W.3d at 406-414; Clewis, 922 S.W.2d at 129-31; Clewis, 922 S.W.2d at

136-49 (Clinton, J., concurring); Bigby v. State, 892 S.W.2d at 870-75 (Tex.Cr.App. 1992); Watson,

204 S.W.3d at 417-20 (Hervey, J., dissenting); Watson, 204 S.W.3d at 424-40 (Cochran, J.,

dissenting); Clewis, 922 S.W.2d at 151-55 (McCormick, P.J., dissenting).

31

See TEX. CONST. Article V, § 5(a) (providing Texas Court of Criminal Appeals with final

appellate jurisdiction “with such exceptions and under such regulation as may be provided in this

Constitution or as prescribed by law”); TEX. CONST. Article V, § 6(a) (providing Courts of Appeals

with appellate jurisdiction “under such restrictions and regulations as may be prescribed by law” and

also providing that “the decision of said courts shall be conclusive on all questions of fact brought

before them on appeal or error”); Bigby v. State, 892 S.W.2d at 871-72 (grant of general appellate

v. Virginia in 1979. In 1996, however, Clewis decided that a civil factual-sufficiency standard is 28

also constitutionally and statutorily mandated in criminal cases under state law.29

There is very little to add to what this Court has already extensively written on a direct-appeal

court’s constitutional and statutory authority to apply this factual-sufficiency standard in criminal

cases. Our factual-sufficiency cases decided that Texas direct-appeal courts, which would include 30

this Court in its role as a direct-appeal court in death-penalty cases, are required to apply a civil

factual-sufficiency standard under their constitutional grant of general appellate jurisdiction to review

“questions of fact,” as also codified in Article 44.25, TEX. CODE CRIM. PROC., which currently

31
Brooks--24

jurisdiction authorizes review of “questions of fact” and “questions of law”); Clewis, 876 S.W.2d

at 430 (“general grant of [appellate] jurisdiction includes the power to review questions of law and

fact”) (emphasis in original).

32

See Watson, 204 S.W.3d at 407, 413-14; Clewis, 922 S.W.2d at 136-149 (Clinton, J.,

concurring); Bigby, 892 S.W.2d at 870-75.

33

See Article 36.13 (providing that “[u]nless otherwise provided in this Code, the jury is the

exclusive judge of the facts”); Article 38.04 (providing that “jury, in all cases, is the exclusive judge

of the facts proved, and of the weight to be given the testimony” subject to such exceptions not

applicable here).

34

This is arguably inconsistent with Tex. R. App. Proc. 21.3(h), which permits a trial court to

grant a new trial “when the verdict is contrary to the law and the evidence.” Compare Tibbs, 397

So.2d at 1123 (discussing Florida criminal-procedural rule permitting trial court to grant new trial

when the verdict is “contrary to law or the weight of the evidence”). In addition, in several decisions

meant to “clarify” Clewis, this Court has not been consistent on whether Articles 36.13 and 38.04

apply to the appellate process. See Watson, 204 S.W.3d at 419 n.12 (Hervey, J., dissenting) (noting

that, in 1996 in Clewis, this Court stated that these provisions do not apply to the appellate process,

but in 1997, in another case, this Court stated that they do apply to the appellate process, and in

2006, in Watson, this Court stated that they do not apply to the appellate process). We note that our

decision in Lancon recognized that these provisions do apply to the appellate process when Lancon

cited them for the proposition that in a factual-sufficiency review “the jury is the sole judge of what

weight” to give the witness testimony. See Lancon, 253 S.W.3d at 705 and at 707 (“jury is the sole

judge of a witness’s credibility, and the weight to be given the testimony”).

states that direct-appeal courts and this Court “may reverse the judgment in a criminal action, as well

upon the law as upon the facts.” Our factual-sufficiency cases further noted that Articles 36.13 and 32

38.04, TEX. CODE CRIM. PROC., and their statutory predecessors, which “reserve the fact-finding

function to the jury,” have “peacefully coexisted with that appellate authority for at least a hundred 33

and twenty-three years” and were meant “merely to allocate the fact-finding function at the trial level

and do not purport to affect appellate review.” See Watson, 204 S.W.3d at 409. Also, according 34

to our factual-sufficiency decisions, the “factual conclusivity clause” in Article V, Section 6(a), makes

“the resolution of factual issues” by direct-appeal courts conclusive on this Court in nondeath-penalty
Brooks--25

35

It should be noted that this Court has decided that its review of a direct-appeal court’s factualsufficiency decision is limited by the factual-conclusivity clause to determining only whether the

direct-appeal court properly applied “rules of law.” See Roberts, 221 S.W.3d at 662-63; Bigby, 892

S.W.2d at 872 n.3. This Court, however, has never decided that the factual-conclusivity clause limits

this Court’s jurisdiction to review a direct-appeal court’s decision on other “questions of fact” or that

it makes a direct-appeal court’s decision on these “questions of fact” conclusive on this Court. See,

e.g., Carmouche v. State, 10 S.W.3d 323, 331-33 (Tex.Cr.App. 2000) (this Court overturned directappeal court’s decision on “question of fact” regarding factual circumstances under which the police

claimed that the defendant consented to be searched based on a videotape which contradicted the

police version of the critical events). This, of course, is consistent with the plain language of Article

44.25, which states that this Court and the courts of appeals may reverse a judgment “upon the law

as upon the facts,” and with Section 22.225(a), TEX. GOV’T CODE, which makes a direct-appeal

court’s judgment “conclusive on the facts” only in civil cases. See Clewis, 876 S.W.2d at 430 n.4

(noting that Article 44.25 confers “upon the court of criminal appeals the same fact jurisdiction given

to the courts of appeals” but declining to “attribute power to the court of criminal appeals that it has

expressly disavowed”); Watson, 204 S.W.3d at 437 (Cochran, J., dissenting) (“It would appear that,

under article 44.25 (and all of its predecessor statutes), both the courts of appeals and the Court of

Criminal Appeals have co-equal jurisdiction to reverse ‘on the facts’ as well as the law.”) and at 439

n.118. It would appear that the Legislature did not intend for a direct-appeal court’s decision on a

“question of fact” in criminal cases to be conclusive on this Court. See id.; but see Watson, 204

S.W.3d at 412; Bigby, 892 S.W.2d at 872 n.3.

36

See Watson, 204 S.W.3d at 419-20 (Hervey, J., dissenting); Clewis, 922 S.W.2d at 153-54

(McCormick, P.J., dissenting).

cases and also “seems to presuppose that [a direct-appeal] court already possesses the power to

conduct factual [sufficiency] review.” See Watson, 204 S.W.3d at 412, 413-14, Bigby, 892 S.W.2d

at 872-73.35

The dissenters in this Court’s factual-sufficiency cases took the position that, even though

direct-appeal courts mayhave the authorityto applythis factual-sufficiencystandard under their grant

of general appellate jurisdiction, when the courts of appeals acquired criminal jurisdiction in 1981,

the Legislature, pursuant to its constitutional authorityin Article V, Sections 5(a) and 6(a), to regulate

appellate jurisdiction, made significant changes to Article 44.25 that were carefully designed to ensure

that direct-appeal courts defer to a jury’s credibility and weight determinations. The dissenters

36
Brooks--26

37

See Watson, 204 S.W.3d at 407; Bigby, 892 S.W.2d at 874 n.5.

38

See Bigby, 892 S.W.2d at 874 n.5.

39

See Watson, 204 S.W.3d at 419-20 (Hervey, J., dissenting); Clewis, 922 S.W.2d at 153-54

(McCormick, P.J., dissenting).

40

See also Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 295 (Tex.App.–Waco 1997, writ

denied) (when reviewing court reviews factual sufficiency of the evidence in civil cases, “the

considered it significant that in 1981, when Article 44.25 was changed to its current versionpermitting a case to be reversed only “upon the law as upon the facts”-its statutory predecessor

provided that a case could be reversed “upon the law as upon the facts” and also “because the verdict

is contrary to the evidence.” Before this, the statutory predecessor to Article 44.25 provided that 37

a case could be reversed “upon the law as upon the facts” and also because “the verdict is contrary

to the weight of the evidence.” The dissenters believed that the 1981 legislative changes to Article 38

44.25 indicated a legislative intent that direct-appeal courts should defer to a jury’s credibility and

weight determinations by expressly withdrawing the authority (that arguably had existed before 1981)

of direct-appeal courts to reverse a judgment because the verdict is contrary to the weight of the

evidence.39

Our decision in Clewis to adopt a civil factual-sufficiency standard was meant to “harmonize[]

the criminal and civil jurisprudence of this State with regard to appellate review of questions of

factual sufficiency.” See Clewis, 922 S.W.2d at 129. However, when Clewis was decided in 1996,

the Texas Supreme Court had decided that direct-appeal courts were required to exercise a factualsufficiency standard with “deferential standards of review.” See Roberts, 221 S.W.3d at 664 n. 7;

Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988). With its requirement that 40
Brooks--27

reviewing court shall neither interfere with the jury’sresolution of conflicts in the evidence nor pass

on the weight and credibility of the witnesses’ testimony” because, among other things, the trier of

fact has “the opportunity to observe the demeanor of the witnesses and to weigh their testimony”).

41

We further note that, since our 1996 decision in Clewis, the Texas Supreme Court, expressly

relying on Jackson v. Virginia, modified its traditional appellate standards of “legal” and “factual”

sufficiency in civil cases with a clear-and-convincing-evidence heightened burden of proof while

also noting that the parameters of these standards “differ to some degree from those adopted by the

Texas Court of Criminal Appeals.” See In re J.F.C., 96 S.W.3d 256, 264-67 (Tex. 2002); see also

Watson, 204 S.W.3d at 445-46 n.152 (Cochran, J., dissenting) (setting out verbatim these two

standards and noting that “there is barely visible light” between these two standards and wondering

“if this two-tier review will long endure in civil cases where the burden of proof is heightened”).

These two standards are basically a Jackson v. Virginia standard modified to account for the clearand-convincing-evidence heightened burden of proof. It, therefore, appears that civil appellate

standards of “legal” and “factual” sufficiency are moving in the direction of essentially a Jackson

v. Virginia standard as the burden of proof at trial increases. See Watson, 204 S.W.3d at 445-46

n.152 (Cochran, J., dissenting). 

all of the evidence must be viewed under deferential standards to determine whether a jury’s verdict

is “manifestly unjust and clearly wrong,” this civil factual-sufficiency standard that Clewis adopted

for criminal cases was essentially the Jackson v. Virginia standard.

Thus, when this Court decided Clewis in 1996, direct-appeal courts were already

harmoniously applying essentially the same standard of factual sufficiency in civil and criminal

cases. Clewis’ main accomplishment, therefore, was to adopt for criminal cases another evidentiary- 41

sufficiency standard that was essentially the Jackson v. Virginia standard and that direct-appeal courts

had been applying for about 150 years. This, in large part, explains why it was inevitable that these

two standards would eventually be recognized as indistinguishable. See Part I of this Opinion. The

Jackson v. Virginia standard is consistent with well-settled evidentiary-sufficiency practice in this

State and with a direct-appeal court’s constitutional and statutory mandates to review “questions of
Brooks--28

42

See Clewis, 876 S.W.2d at 429 n.1 (discussing the “no evidence” and the “factually

insufficient evidence” civil appellate standards of review and the confusion that can occur when

“attempting to refer to ‘legal sufficiency’ in criminal cases”) and at 438-39 (“Although characterized

as a ‘legal sufficiency’ review and a ‘question of law,’ the Jackson standard necessarily encompasses

a factual sufficiency review. If after reviewing the evidence, i.e., the facts, in the light most

favorable to the verdict, a rational trier of fact could not have found the essential elements of the

crime beyond a reasonable doubt, then the sufficiency challenge must be sustained and the defendant

acquitted.”) (emphasis in original); see also Watson, 204 S.W.3d at 437 (Cochran, J., dissenting)

(“And, of course, both this Court and the courts of appeals have the authority to review ‘the facts’

as well as the law. If ‘the facts’ do not establish every element beyond a reasonable doubt, those

‘facts’ require an appellate court to acquit the defendant under Jackson.”); Clewis, 922 S.W.2d at

157 (McCormick, P.J., dissenting) (when conviction is reversed under Jackson, it is reversed “upon

the law as upon the facts” after the reviewing court has examined all the evidence, i.e., the facts).

43

It is, therefore, unnecessary in this case to revisit the issue of whether legislative activity in

1981 was meant to insure that direct-appeal courts would defer to the jury’s credibility and weight

determinations and not sit as “thirteenth jurors.” See Watson, 204 S.W.3d at 419-20 (Hervey, J.,

dissenting); Clewis, 922 S.W.2d at 153-156 (McCormick, P.J., dissenting).

law” and “questions of fact.”42

The issue thus becomes whether direct-appeal courts’ constitutional jurisdiction to review

“questions of fact,” as also codified in Article 44.25 authorizing direct-appeal courts to reverse a

judgment “upon the facts,” should now be construed for the first time to mandate direct-appeal courts

to sit as “thirteenth jurors” in criminal cases contrary to 150 years of practice in civil and criminal

cases. We decline to question over 150 years of criminal and civil jurisprudence in this State and

construe constitutional and statutory mandates to review “questions of fact” to also require directappeal courts to sit as “thirteenth jurors” in criminal cases. See also Clewis, 876 S.W.2d at 431

(“Appellate fact jurisdiction . . . should not be confused with the appellate standard of review required

to exercise that fact jurisdiction. The state constitution, at most, says that an intermediate appellate

court has conclusive fact jurisdiction in both civil and criminal cases. It does not purport to set out

the standard of review required to exercise that fact jurisdiction.”) (emphasis in original).43
Brooks--29

44

14 Tex.Ct.App. 609 (1883).

45

See Watson, 204 S.W.3d at 407-09; Clewis, 922 S.W.2d at 138-39 (Clinton, J., concurring);

Watson, 204 S.W.3d at 426-28 (Cochran, J., dissenting) (“most important case discussing sufficiency

of the evidence was the court of appeals’s 1883 decision in Walker”).

46

Another case cited in Watson apparently for the proposition that Article 44.25 and its

statutory predecessors require a factual-sufficiency review that permits direct-appeal courts to sit as

“thirteenth jurors” is Green v. State, 260 S.W. 195 (Tex.Cr.App. 1924). See Watson, 204 S.W.3d

at 410. Green, however, is another case that, like Walker, is ambiguous on this point and appears

to be really applying a Jackson v. Virginia standard. See Green, 260 S.W. at 196 (“Though the

verdict should not be lightly annulled it is our duty to set it aside and order another trial when the

evidence viewed in its strongest light from the standpoint of the state, fails to make guilt

reasonably certain.”) (emphasis supplied).

We also note that Watson and Clewis relied on several cases, most notably the 1883 case of

Walker v. State, apparently for the proposition that the statutory predecessors to Article 44.25 44

required factual-sufficiency review that permits direct-appeal courts to sit as “thirteenth jurors.”

Walker is cited in both Clewis and Watson as a watershed case purportedly recognizing that the

statutory predecessors to Article 44.25 required such a review. It is not clear that cases such as 45

Walker were applying factual-sufficiency review that permits a direct-appeal court to sit as a

“thirteenth juror” in criminal cases since Walker “was fully consistent with the Jackson standard

alone.” See Watson, 204 S.W.3d at 428 (Cochran, J., dissenting) (Walker “was fully consistent with

the Jackson standard alone” even though it “could be read to support the proposition that the appellate

court felt that it had the authority to reverse a jury verdict even though the evidence was

‘sufficient.”). We do not believe that cases such as Walker clearly support the proposition that 46

Article 44.25 and its statutory predecessors mandate direct-appeal courts to sit as “thirteenth jurors”
Brooks--30

47

To the extent that Walker can be read to support this proposition, we note that Walker was

relying on that portion ofthe statutory predecessor to Article 44.25 that permitted a reversal “for the

reason that the verdict is contrary to the weight of the evidence.” See Walker, 14 Tex.Ct.App.

at 629 (emphasis supplied). This, however, is the language that the Legislature deleted in 1981 when

the courts of appeals acquired criminal jurisdiction. See Bigby, 892 S.W.2d at 874 n.5 (discussing

history of Article 44.25 and its statutory predecessors).

48

See Article V, § 5(a) (Court of Criminal Appeals “shall have final appellate jurisdiction

coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of

whatever grade”); Interpretive Commentary to Article V, § 5(a) (“In defining the jurisdiction of the

court of criminal appeals, this section confines its powers to the exercise of appellate jurisdiction in

criminal matters exclusively. It thus has no civil jurisdiction, but it is the court of final jurisdiction

in criminal matters.”).

in criminal cases. See also Watson, 204 S.W.3d at 424-32 (Cochran, J., dissenting). In addition, 47

reading Walker to mandate direct-appeal courts to sit as “thirteenth jurors” would be inconsistent with

the overwhelming weight of civil and criminal authority that direct-appeal courts should review a

jury’s verdict under deferential standards. 

As the Court with final appellate jurisdiction in this State, we decide that the Jackson v. 48

Virginia standard is the only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt. All other cases to the contrary, including Clewis, are overruled.

V. Disposition of This Case

We must now decide how to dispose ofthis case. In light of our disposition of the State’s first

ground for review, it is unnecessary to address the State’s second ground for review. And having

decided that there is no meaningful distinction between a Clewis factual-sufficiency standard and a

Jackson v. Virginia legal-sufficiency standard, we could decide that the court of appeals necessarily

found that the evidence is legally insufficient to support appellant’s conviction when it decided that
Brooks--31

the evidence is factually insufficient to support appellant’s conviction. However, primarily because

the “confusing” factual-sufficiency standard may have skewed a rigorous application of the Jackson

v. Virginia standard by the court of appeals, we believe that it is appropriate to dispose of this case

by sending it back to the court of appeals to reconsider the sufficiency of the evidence to support

appellant’s conviction under a proper application of the Jackson v. Virginia standard. Cf. Tibbs, 397

So.2d at 1125-16 (abandoning reversals based on weight of the evidence and stating that “[c]ases now

pending on appeal in which a court has characterized the reversal as based on evidentiary weight

should be reconsidered”).

The judgment of the court of appeals is vacated, and the case is remanded there for further

proceedings not inconsistent with this opinion.

Hervey, J.

Delivered: October 6, 2010

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