Indeed it is an element that requires proof- in the form of circumstances from which the mental state or motive can be inferred. Exactly what other kind of proof could the judge have had in mind? Maybe a contemporaneous statement from the accused that "I am doing this to gratify my sexual desire for you" or "isn't this arousing"?

Hey Martin -- Pittman looks like such a "thirteenth juror" case and the court treats it like other appeals with a DV claim -- reading the argument as a sufficiency complaint (the analysis even applies the good 'ole outstanding reasonable hypothesis construct). Toss me a case that actually delves into the authority for or mechanics of DVs, please sir. Saw your post on Ben's thread re his drug case that was busted, and I talked with him at the time, but there were other problems that made it an inappropriate case to pursue. Funny, a "throw-away" brief came in that's a simple DV issue -- your typical attempt to not write an Anders brief -- and it will provide a good vehicle to knuckle-down and get the issue on paper.

I'm answering an art. 11.071 writ right now. One of the complaints is that trial counsel was ineffective for failing to move for a directed verdict on factual-insufficiency grounds. So, I have a vehicle to present the arguments raised in this topic to the CCA.

Excellent, Richard -- another reason this forum is great! I'll email you the cites I've collected this afternoon and then we can visit.

I had to deal with this issue this week... The 12th Court of Appeals in Brown v. State (unpublished, 2008) opined that while the CCP fails to provide a rule of procedure, the rules of common law should be applied and govern. Therefore, the common law for criminal cases does not provide for a directed verdict on the ground of factual insufficiency of the evidence, but DOES provide for a directed verdict on the ground of legal insufficiency of the evidence. They cited the following cases: Pittman v. State, Calaes v. State, Turner v. State, Isassi v. State, and Willich v. State.

Wow. I completely forgot this thread, but I received an email when you posted. I was so young and idealistic in 2004. I wonder how that 2008 case stacks up with State ex rel Weeks, 391 S.W.3d 117, where the court held that a trial court must submit a case to the jury when supported by evidence. That said, the CCA and the Supremes have said the State cannot appeal an acquittal, even wrongful acquittals, so must we race to the court of appeals with a writ of mandamus before the judge can sign a judgment of acquittal?

The issue was set for decision in Moreno, 294 S.W.3d 594, but then by-passed. Of interest, however, was Judge Holcomb's conclusion: "A trial court has the authority, of course, to consider a defendant's motion for directed verdict. Pittman v. State, 140 Tex.Crim. 264, 144 S.W.2d 569, 569 (Tex.Crim.App.1940). Such a motion, and a trial court's consideration thereof, vindicate a defendant's constitutional right not to be convicted except upon proof of all the elements of the offense beyond a reasonable doubt."

I still have to wonder why this authority must be given to the trial judge where the parties have elected to have a jury determine the facts. Do trial judges really pay so close attention to the evidence as it comes in? Exactly how long are they required to deliberate before ruling?

I don't know about any required period of reflection, but our experience (yes, we've had some) teaches that, if a trial judge is going to grant a motion for DV/IV, he or she does so almost immediately. Generally, the comments surrounding that action suggest that the judge thought the case was a barker to begin with.