Whoever understands the new "balancing scale" for measuring the factual sufficiency of the evidence, please explain it for me. Zuniga I get the part about leaving out "great weight", but what takes its place is beyond my comprehension. Is there reason to be concerned the court does not mention "due deference" or "substitution for the verdict" in this opinion. "Not enough" seems to me to be pretty vague as standards go.

[This message was edited by Martin Peterson on 04-21-04 at .]

Since they say "This does not alter the standards elucidated since Clewis . . . ." can't we conclude that nothing has changed?

Let's hope that some day we can get rid of factual sufficiency review -- think of the trees that have been squandered on briefing hopeless factual sufficiency complaints.

David: If nothing has been altered since Clewis, then you have to wonder why all the talk about "confusing" misguidance in the past. To me the only argument in challenging the factual sufficiency in a criminal case ought to be that the jury's finding "shocks the conscience," or "clearly demonstrates bias." All the rest of what was imported from the civil law made little sense all along. Any other standard (or parts of the test) involves assigning weight to particular evidence. If you can conclude after reading the reporter's record (or a good summary) that the jury's finding was based on bias rather than rational thought send the case to another jury. But if you are not immediately shocked to learn how the case came out, your review is concluded. I think that type of review of the evidence serves a purpose in the system. But trying to understand what a jury saw or didn't see in a videotape and then saying that surely outweighed other circumstantial evidence (as the court did in the famous Perkins case) is nothing but placing a 13th juror in the box.

The more you try to explain or rationalize Clewis, the less sense it makes. This type of standard is most useful in examining subjective factual determinations like damages in a civil case. For example, a trillion dollars for a lost finger would be against the great weight and preponderance of the evidence. When applied to discrete factual determinations, like elements of a criminal offense, it is merely a verbal exercise. Essentially, it amounts to discretion an appellate court may almost never properly exercise.

I haven't seen an upheld Clewis reversal yet where you could not make a strong argument for outright acquittal on appeal. I've seen more than my fair share of improper Clewis reversals. Thankfully, the courts get it right most of the time, although it does require us appellate types to go through the motions yet again, and again, and again, sifting and resifting the evidence. Some justice.

As I see it, the core problem with Zuniga is that it allows appellate reversal even where the evidence preponderates in favor of guilt. Clewis has always been odious to me, but at least every previous decision in that line said that the jury is free to choose between EQUALLY reaonsable theories of guilt and innocence. Thus, if the evidence was at least 50-50, an appellate court could not touch the verdict. An appellate court could reverse only if the evidence greatly preponderated against guilt (and "preponderate" means more than 50% against guilt, or innocence more likely than not).

Now an appellate court can reverse even where the evidence preponderates in favor of guilt. That is a significant change in the law, in my view, and utterly inconsistent with the notion that even in factual sufficiency review, an appellate court must give some deference to the jury's role as fact-finder.

Sure the opinion says it doesn't change the law. But how can the standard still be that an appellate court can only reverse where the guilty verdict is "against the great weight and preponderance of the evidence," when an appellate court can now reverse where the evidence preponderates in favor of guilt?

Matthew, that was not the explanation I wanted to hear, but I am afraid you may be right. The concepts seem more scrambled than ever before. Maybe its time for a constitutional amendment if the courts are really going to try to assign numerical values to this piece of evidence versus that piece. On the other hand, maybe the court was attempting to say that the same amount of the contrary evidence is still required before a finding is overturned- you just don't need to refer to it as being "great" in weight.

The real problem lies in the idea that "beyond reasonable doubt" is anything more than a mechanism for impressing a jury with the gravity of their decision. "Some" evidence of each element, if believed to be true after careful and impartial consideration, is all the constitutional standard actually requires. Why use that concept at all in judging the factual sufficiency? It has no relevance- its purpose has already been served once you find the evidence legally sufficient. Furthermore, the supposed contrary evidence obviously must greatly outweigh the evidence of guilt because it has already been determined by the jury not to be credible and therefore it can never otherwise "provide reasonable doubt" until you say that credibility determination was the result of bias or partial thought and it is the great weight standard that allows that determination to be made.

As is often the case, because Zuniga is not actually being granted a new trial, you end up with what appears to be a lot of judges agreeing with what Meyers says, when they really should be writing concurring opinions explaining that deference to the credibility determinations made by the jury will almost always support leaving the verdict in place and that Amarillo failed to include all of the evidence in its calculus. I have little doubt that Zuniga's conviction will be affirmed, but we get some nasty baggage (dicta) along with that victory.

[This message was edited by Martin Peterson on 04-26-04 at .]

The things that I think we should home in on as appellate prosecutors responding to these claims are the quality of the evidence, not the quantity of it. After all, a creative defense lawyer can always scrape up a half-dozen more nuns or boy scouts than we can. But our evidence often has features about it that corroborate it. For example, our rape victim who faces the shame and embarrassment of admitting the various criminal acts performed upon her by the defendant, is higher quality evidence than the minibus of nuns who thought they saw the victim and defendant together at a cafe at the time of the allged rape. Break it down, and the various pieces favor us. Even if you throw in bad facts about our witness, such as intoxication, you should still get there.

Of course, if we have more evidence, it will always be good to point that out.

We should also look for objective evidence as opposed to subjective evidence. For example, the defendant's DNA might establish that he was present at a rape even if the same minibus full of nuns testified that they were positive he was at confession.

By comparison, the Clewis reversals that have stuck usually involve objective weakenesses in the State's evidence:

Reina--only evidence of defendant's participation in offense was unattributed second hand hearsay.

Johnson--victim identified Johnson as her rapist, but admitted that she could not see his face because of extremely poor lighting.

White--only one affirmative link.

Do you really think a Constitutional amendment is necessary? Wouldn't a statute suffice to state what the law is? That aside, I think it unlikely we could muster the necessary support to pass either an amendment or a statute.

What kills me is that the Court treats this theory like it has some sort of inherent merit and precedential support. Where are the dissents? In reality, Clewis, Cain, Johnson, and Zuniga are like your drunk uncle at family gatherings. It seems like he ought to be there, but he serves no useful purpose, drinks more than his fair share, and is a giant pain. If you were going to live according to your principles, you would not invite him to the party . . .

The Court of Criminal Appeals has a bad history of stepping in it anytime they announce a legal theory that is not grounded in a constitutional provision, statute or rule.

For example, for many years, the CCA upheld a "carving doctrine" that kept prosecutors from convicting a defendant for more than one offense out of a criminal episode. Hello? Years later, the doctrine was itself carved into oblivion.

For example, for only a few years, the CCA adopted a definition of "beyond a reasonable doubt." Invented. Not a bit of supporting law. And then it was dropped like a rock into the bottomless pit of worthless case law.

Anyone have any other examples?

John Bradley
District Attorney
Williamson County, Texas

An example from the Supreme Court would be Grady v. Corbin, the "same facts" double jeopardy test, overruled just a couple years later by United States v. Dixon, reinstating the Blockburger test. I'm hoping the Crawford case will suffer the same fate.

I was wondering what everyione thought of the capital case, Vododchosky, reversed for factual insufficiency the same day that Zuniga came down. At 6-2, it was not even that close a decision.
Is anyone satisfied that the Court's analysis is anything but the thirteenth juror at work? Interestingly, the Court did not even refer to Zuniga or the new "correct" standard of review. I am even more perplexed!

Does it really help that we can theoretically retry a case after it has been found factually insufficient if practically all the evidence has already been introduced? (Sometimes, we might be lucky enough to seek a conviction for a lesser offense.) A single standard--legally sufficient evidence--should be enough, and if we can't satisfy that then the defendant walks. Isn't that enough?

John B. What about Bauder? How did that figment ever get added to our jurisprudence? Then there was that mess in McCambridge and that group of cases and an unnatural clinging to the Ex parte Duffy standard (at least the Court was initially adopting the 5th Circuit's law in that case but took for ever to recognize the Feds had then proceeded to abandon it). So it goes on!!!!!

[This message was edited by John Stride on 05-06-04 at .]

Good examples. Bauder doesn't count on this list until they drop it. So far, they've just given us lists of factors to consider. Always a bad sign.

John Bradley
District Attorney
Williamson County, Texas

John, remember Roberts, that said the state could only appeal motions to suppress granted on constitutional grounds? That was overruled in Medrano, finally, so we can once again appeal motions to suppress granted on evidentiary grounds.

That's a huge fix, Betty. For those of you youngsters that didn't practice law when the state couldn't appeal anything, it has made a big difference to be able to hold trial courts accountable for unlawful suppression of evidence.

And no one writes about how the prosecutors have been very careful about choosing their appeals. I am proud to say I have never had to appeal a trial court's decision here in Williamson County.

John Bradley
District Attorney
Williamson County, Texas

There were other threads where this note could also be placed, but since this one says so much about the topic (including the only post by Matthew Paul to the Forum) I think I will choose to supplement it.

The reason for my title is this potential gem from Roberts, 221 S.W.3d 659, 665 fn. 12: "the court of appeals' factual-sufficiency decision not to reweigh the evidence . . . is conclusive on this Court." While I find nothing in Watson, or at least not at page 412, to support that statement, I take it as valid declaration that a Court of Appeals can choose not to sit as that 13th "highly skeptical" juror and a defendant will be left with no complaint. That seems to me to be a broader (and potentially more useful) holding than just that Pool has no vitality in criminal law (where the decision on sufficiency is in favor of the conviction). Effectively, any court of appeals can choose to jettison a factual sufficiency challenge with a sentence or two.

Seems like the Watson language is focused on the White case. As I read it, and I'm reading an implication into Watson's text, but they are saying White was wrong at the time because the CCA was "still exclusively a direct appellate court," meaning that the factual conclusivity clause made its decisions on questions of fact conclusive. See Tex. Const. art. V, s.6(a).

Then, when the Legislature amended Article V, s.5 to make the CCA a discretionary review court in non-capital cases, that gave the factual conclusivity clause to the intermediate appellate courts in non-capital cases and left it with the CCA in capital cases. So...I think what Roberts is citing Watson for is that White is again correct. Note 56 in Watson tends to make this point. Thoughts?

As I understand it, the conclusivity clause stands for the proposition that, if the COA applies the correct standard of review, the CCA cannot say they reached the wrong result. That's why, when you take up a Clewis type case, you need to be able to argue that the COA applied the wrong standard of review, not that they applied the standard incorrectly. Thus, the CCA should never take an issue on PDR stating "the COA erred in finding the evidence factually (in)sufficient . . ."