Hey, lets barf back a bunch of quotes from crappy old opinions and call it the factual sufficiency standard of review. Clewis is never going to die, is it?

Watson v. State

So what is the concensus? Does this opinion help the State in the least?

Also, while there may be only a handful (according to DiX and Cochran) of published opinions where cases were reversed and remanded due to factual insufficiency, I have personally had two cases in the last two years that were unpublished reversals. Anyone think to check out those?

Unpublished are more easily found now. When Clewis came out, I had 3 or 4 reversals on that basis over the next 2 or 3 years. Only one was published. Ultimately, the State won every case. One was turned around after a couple pdrs and a motion for rehearing, one by a motion for rehearing, and one gave up after we retried him and convicted him again. Since then, I don't know that we've had another factual sufficiency reversal.

Is anyone going to propose a bill that would prevent appellate courts from reviewing the credibility determinations of the factfinder?

It’s hard to see anyone in the Legislature objecting to such a bill since there are already provisions in the Code of Criminal Procedure that look like they were intended to do that.

Are you volunteering, David?

Well, the complication created by Clueless is the premise that factual sufficiency review is a power mandated by the Texas Constitution.

So, if you accept that premise, you would need to amend the Texas Constitution to prevent factual sufficiency review.

Another way might be to define by statute the standard for factual sufficiency review. I'm thinking it should sound something like ... "whether any rational jury could have found the defendant guilty beyond a reasonable doubt, giving deference to the jury's decisions on credibility."

Really, though, this is one nearly dead horse that has been whipped mercilessly. The time will come when at least 5 judges accept that the idea was bad and then badly executed. Judge Cochran was kind when she described it as a good idea badly executed.

When they have those debates about whether judges are activist or strict constructionists, this case should be the standard for evaluating the judge. Surely by now, even liberal judges can see that they have to keep making up stuff to make this "discovered" form of review seem to work.

I strongly encourage appellate lawyers to continue to attack the underlying premise that factual sufficiency review should apply to criminal cases.

Judge Cochran, as usual says it best and got it right: "Because the majority lops off only the most recent branch of Clewis and does not address the root of the problem, I most respectfully dissent."

JB

[This message was edited by JB on 10-21-06 at .]

This pair of unworkable and unsalvageable opinions should be torn out by their roots and burned. Repeateded assaults have overcome problem cases before. One day these two noxious weeds will wither too. Let's hope it is really soon.