CCA Changes Mind on Clarification For Factual-Sufficiency Standard

By Mary Alice Robbins
Texas Lawyer
Monday, October 30, 2006


In a decade-old legal battle over whether an appellate court should act as a 13th juror in criminal cases, a divided Texas Court of Criminal Appeals has reaffirmed its support for factual-sufficiency review. But the CCA discarded language meant to clarify that standard.

In a 5-4 decision on Oct. 18, the CCA reversed the 10th Court of Appeals in Watson v. State, the case of a man convicted of burglary of a habitation with intent to commit sexual assault. The CCA majority disavowed the language in 2004's Zuniga v. State, the authority on which the Waco appeals court based its 2-1 opinion in Watson. In Watson, the 10th court said "that evidence can "preponderate' in favor of a conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt."

Justice Felipe Reyna wrote the 10th Court's majority opinion in Watson in which Justice Bill Vance joined, and Chief Justice Tom Gray dissented. The CCA remanded the case to the 10th Court for reconsideration.

As noted in Delair Watson's brief to the CCA, a 54th District Court jury in Waco convicted Watson and sentenced him to 13 years in prison for entering a woman's home in 2002, dropping his pants and grabbing a knife that the woman pointed at him in self-defense. According to the brief, there was no physical contact between Watson and the victim.

Waco criminal-defense solo Stan Schwieger, Watson's attorney, says there is insufficient evidence to prove that his client intended to commit a sexual assault, regardless of the standard used.

But, as Schwieger notes, "The fight isn't over the facts of the case."

Matthew Paul, state prosecuting attorney, says he petitioned the CCA to review Watson to correct the language in Zuniga. Acting on its own motion, the CCA expanded its review to determine whether it should re-examine the Zuniga decision.

The CCA adopted the language in Zuniga to clarify the standard for factual-sufficiency review established in 1996's Clewis v. State. But the Zuniga re-articulation of the Clewis standard "represents an inadvertent distortion of the factual-sufficiency review" that the CCA and its predecessors historically conducted, Judge Tom Price wrote for the majority in Watson.

Judge Cathy Cochran wrote in a dissenting opinion that the majority did not go far enough. According to Cochran's dissent in Watson, the CCA has tried multiple times to clarify the standard under Clewis and still has not succeeded.

Cochran wrote that she would reverse Clewis because "further efforts to clarify, refine or revise the Clewis standard are as unlikely to succeed as our previous attempts." Three other members of the CCA � Presiding Judge Sharon Keller and Judges Mike Keasler and Barbara Hervey � joined Cochran in the dissent. Hervey also wrote a separate dissent.

The CCA's Watson decision emphasizes the different perspectives that prosecutors and criminal-defense attorneys have on factual-sufficiency review.

"Watson is the latest decision in a prosecution-declared war on factual-sufficiency review," says Austin criminal-defense solo Keith Hampton.

Hampton says prosecutors continually seek to leave the judiciary with the least power and prosecutors with the greatest power.

"Factual sufficiency is a safety valve for reviewing courts," Hampton says. "Its utility is to protect people from convictions based on inference-stacking, that is, rationalized speculation."

Charles "Chuck" Mallin, chief of the appellate section in the Tarrant County District Attorney's Office, says the CCA has tried repeatedly to clarify Clewis, but it's an unworkable standard.

"Factual-sufficiency review is like a 1958 Edsel," Mallin says. "It's real pretty, but it's always in the garage for repairs."

Hampton says the Watson dissent misses the point that appellate courts have no choice but to conduct factual-sufficiency reviews, because the Texas Constitution requires such reviews.

Cochran wrote in her dissent that Article 5, �6, of the state Constitution authorizes mid-level appellate courts to review factual sufficiency in criminal cases. But, Cochran wrote, the constitutional provision says nothing about any Texas court's authority to conduct a factual-sufficiency review of the evidence in a criminal case. It's only when state law otherwise allows or requires such a review that the provision applies, Cochran wrote.

Cochran also noted that Code of Criminal Procedure Articles 36.13 and 38.04 make the jury the exclusive judge of the facts and the weight to be given to testimony.

While prosecutors and defense attorneys disagree about what Watson accomplishes, Paul says the 5-4 decision has convinced him to give up his 10-year effort to overturn Clewis � at least until there is a change in the makeup of the CCA.

Notes Paul, "If Judge Cochran can't convince the five judges to get rid of factual sufficiency review, for us to try to do it is just a waste of the state's paper."

[I strongly disagree, Matthew. Keep on fighting against Clueless. I will pay for all your paper. It will be worth it when 5 judges finally accept that a pig, even with lipstick, is still a pig.]

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Hampton says prosecutors continually seek to leave the judiciary with the least power and prosecutors with the greatest power.

"Factual sufficiency is a safety valve for reviewing courts," Hampton says. "Its utility is to protect people from convictions based on inference-stacking, that is, rationalized speculation."

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Spoken like someone with no faith in the jury system.

Matthew managed to get four votes this time--one shy of a majority for killing this white elephant. A terrific accomplishment. That is four votes more than the State got in Zuniga (bearing in mind that Judge Womack has now switched sides). We are so close to euthanizing this beast. Let's keep pounding away, as with Bauder. One day someone else must relent! Geesa and Paulson, and Duffy, took numerous attacks, but we eventually prevailed.

BTW Wasn't Chuck's quote about the Edsel the perfect clip for printing? I loved it.

I'd be happy to help pay for the paper costs too. Matthew, don't give up the ship! Your office is doing great work!

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Originally posted by Gretchen:

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Hampton says prosecutors continually seek to leave the judiciary with the least power and prosecutors with the greatest power.

"Factual sufficiency is a safety valve for reviewing courts," Hampton says. "Its utility is to protect people from convictions based on inference-stacking, that is, rationalized speculation."

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Spoken like someone with no faith in the jury system.

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Well what do you expect, those juries keep convicting all his clients ....

Christensen. It is a long opinion, but one worth reading because it seems to illuminate how a court can logically say one inference from or characterization of the same factual information should prevail over another. While this really is nothing other than redoing what the jury supposedly should have done, maybe the legal sufficiency test has to accomodate the weakest link paradigm. Few courts seem willing to go through this type of detailed analysis, regardless of the label attached to the review of the evidence. Notice that this case does not depend very much on credibility determinations, but far more on answering "what does it really mean"?