Hmm, www.2ndcoa.courts.state.tx.us shows that the State's lawyer in this case is forum contributor David Curl.

I can think of situations where the State would make a tactical concession of factual insufficiency in order to throw a bone and forestall a finding of legal insufficiency from an acquittal-happy appellate court (esp where the evidence was so weak that even a win under the legal standard was iffy to begin with).

I realize we have pretty well beaten this horse to death. But, I cannot pass up the opportunity to note that the feds get the final say on suffciency and can use a test not so far removed from Clewis. In Smith, the Ninth Circuit said neither the California Court of Appeals, nor the Federal District Judge (nor of course the jury) were able recognize the lack of evidence before them (i.e., that the expert testimony amounted to no evidence).

As we await Grotti, I guess it is important to note that the CCA declined to take the bait in Valle (PDR dism'd as improvident) and that Watson did make a difference in another important case: Schiffert, (Tex.App.- Fort Worth 2008). Next test coming up in Lancon, on remand to San Antonio.

Grotti (June 25, 2008) confirms that Clewis correctly interpreted the Texas Constitution (for better or worse and perhaps forever).

Death is unquestionably serious bodily injury. Someone's intent is normally inferred from his conduct. Jones demonstrates once again how difficult it can be to predict the sufficiency of the evidence. The verbal threat was legally sufficient to show guilt, but too ambiguous to truly justify the jury's conclusion. This seems way too close to the thirteenth juror test to me. Why not just say the inference of intent was not reasonable to begin with?

Possession of 4.72 grams of cocaine and ecstacy and marihuana, prior conviction for possession with intent to deliver, no evidence of contrary intent this time. Reasonable to infer intent to deliver (although this was not necessarily true)?

All predictability has been removed, in my opinion. Brooks

It's a split opinion from the Waco Court of Appeals, so it should go into the doubtful precedent category. Isn't Vance retiring soon?

Dr. Lydia Grotti, a former intensive care physician at John Peter Smith Hospital who was accused of causing the death of a patient eight years ago, is no longer facing prosecution or prison time.

On Friday, more than two years after her conviction for criminally negligent homicide was overturned by a Texas appellate court, prosecutors decided not to try Grotti again. Her case was dismissed.


Details.

[This factual sufficiency business is ridiculous. So, here we are, years later, and the doctor is no more innocent than when we began. Everyone just walks away with no resolution of the issue. She deserves an acquittal or conviction. Once again, we see how utterly absurd it is to paste a civil rule of law into a criminal matter. When will 5 judges on the CCA concede that Texas voters never intended to extend factual sufficiency review to appellate courts and that such a legal "accident" should not be accepted as the rule of law? When will they give proper weight to the democratic notion that we should show great respect to the jury's right to decide facts?]

Grotti confirmed: The factual-conclusivity clause of the Texas Constitution makes an intermediate appellate court's factual-sufficiency decision conclusive and restricts this Court's review to determining only whether the court of appeals used the proper standard and properly applied it. Roberts v. State, 221 S.W.3d 659, 663 (Tex. Crim. App. 2007) (citing Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69, 69-70 (Tex. 1898)) (holding that purpose of factual-conclusivity clause was to limit the Texas Supreme Court's jurisdiction to questions of law and to make intermediate court's factual-sufficiency decisions conclusive). Thus, review of a direct-appeal court's factual-sufficiency decision by the Court of Criminal Appeals is limited by the factual-conclusivity clause to determining only whether the direct-appeal court properly applied "rules of law." Roberts, 221 S.W.3d at 662.

But, so long as the CCA is willing to use the "properly applied" test in granting a PDR, I guess the door is almost always open to further review. Will the decision in Steadman change on remand?

So, the CCA can, again and again, tell the courts of appeals that they got it wrong by misapplying the mysterious Clueless standard of factual sufficiency review. But, the CCA can't tell them what is the right outcome. More strangeness.

Turns out Brooks may not stand, and the CCA has agreed to review just how close the two standards of review really are. This is getting interesting again. Why has there been no move to clarify (or clean up) the Constitution?

I repeat my initial observation that factual sufficiency makes sense in some civil cases, but the rational juror test is about all that is needed or that makes much sense in the vast majority of criminal cases, especially if we are going to evaluate findings as to intent, knowledge, or culpability of mental states. Maybe if large groups stand in front of the Capitol or Supreme Court Building and shout "second bites ain't right," change will come. Doesn't the reversal upon the "facts" spoken of in art. 44.25 mean something other than sufficiency of the evidence (which, of course, is a question of law)?

That is one very dead horse they are beating.

Talk about second bites at the apple, I recently dealt with legal and factual sufficiency points on the jury's implicit rejection of defendant's theory of involuntariness (See Saxton, 804 2d 910 (Tex.Crim.App. 1991) and Zuiliani 97 3d 589 (Tex.Crim.App. 2003). Seems very redundant given our current standards.

Do you deal with this often?

Nearly every sufficiency case now indulges in this sophistry -- applying both standards and pretending there is a difference. And it is a big waste of time, resources and money.

In my own mind at least, I have come to a realization that maybe it is possible to separate the need to have the jury determine credibility and the need of an appellate court to assure justice has been accomplished.

I analyzed this early statement of the principle (from an 1806 decision of the Supreme Court of Pennsylvania). After first noting "each of the parties gave a great variety of testimony in support of their respective pretensions, much of which was contradictory and could not possibly be reconciled," Justice Yeates said:

The question submitted most chiefly turned on the credit which the jury would give to the several witnesses. Of their credibility, the jury were the exclusive constitutional judges. This court will never invade their province; although I trust they will firmly assert their judicial rights, where the principles of law have been violated by the jury however respectable, or where the weight of the evidence manifestly preponderates against their verdict. Without the cautious and discreet exercise of the controlling power of the court in proper cases, justice at this day cannot be administered.

It seems weight can be influenced by more than mere credibility. In any event, it is clear the "problem" has been around for a very long time.

[This message was edited by Martin Peterson on 11-26-09 at .]

The Waco Court got Steadman straightened out on remand. Steadman III

I bet that made for some very interesting conference discussion.

"So, who wants to write this thing?"

[This message was edited by JB on 12-17-09 at .]

The Rangers make the playoffs, and now Clewis is dead.

I never thought this day would come.

But does langugage in Brooks -- "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" -- also mean that Malik's hypothetically correct jury charge is dead?