Article of Interest

Everything old is new again
By: Stacy Stanley, Chief Staff Attorney of the Sixth Court of Appeals- Texarkana

After a 14-year hiatus, there is again only a single evidentiary sufficiency standard in criminal cases in Texas. In Brooks v. State, a splintered Court of Criminal Appeals held, in a plurality opinion issued October 6, 2010, that we all have been wrong since 1996. Instead of a legal and factual sufficiency review, there is only one standard for sufficiency of the evidence---the standard used to analyze legal sufficiency under the federal Jackson v. Virginia standard.

“The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

     In Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), a similarly splintered court had determined that the constitutional mandates both of the United States and Texas required a legal sufficiency and a factual sufficiency review in order to be satisfied.
     The division in the court is long-standing, and this particular issue has been raised by a bloc of the court on several occasions since Clewis. That division has not healed, but a majority of judges are now on the other side of the equation. The minority finally dredged up a fifth vote, albeit only as a concurrence, and, in the words of Judge Cochran, “consign[ed] the . . . concept of factual sufficiency review in criminal cases to the dustbin of history.”
     Practically, the ruling does make setting out the standard simple: That, however, provides little assistance in determining how to actually apply the standard. Jackson has been used since the 1996 Clewis opinion to define our test for “legal sufficiency” as opposed to “factual sufficiency” of the evidence to support a conviction. Now, the situation is different.
     After reading the lead opinion, which garnered four votes, and the concurrence, which pulled in one more joining judge (Womack), a few nuggets stand out that may help practitioners in crafting their arguments.
     First, the lead opinion repeatedly points out that appellate courts may not “weigh” the evidence. Avoid that language.
     However, Brooks also states, repeatedly, that the appellate courts should “rigorously” apply Jackson.
     It bears emphasizing that a rigorous and proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency standard. Brooks v. State, PD-0210-09, 2010 WL 3894613 at *11 (Tex. Crim. App. Oct. 6, 2010)

Second, the sole hypothetical provided by the court for our elucidation is one that shows the court intends for review to be not just of the quantity, but the quality of the evidence presented.

“The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape of the event clearly shows that B committed the robbery. But, the jury convicts A. It was within the jury’s prerogative to believe the convenience store clerk and disregard the video. But, based on all the evidence, the jury’s finding of guilt is not a rational finding.”

Under a pure “quantity” analysis, there is obviously some evidence to support conviction. The clerk testified A did it. Under a “quality” analysis---the result is different. Some additional direction can be taken from the source of the hypothetical: a dissent in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) (which two members of this plurality had joined).

A properly applied Jackson v. Virginia standard, therefore, is much more exacting than Clewis claims. Jackson v. Virginia requires the reviewing court to consider all the evidence in the “light most favorable to the verdict,” and then it requires the reviewing court to decide whether the jury's finding of guilt is “rational.” A properly applied Jackson v. Virginia standard is essentially as exacting a standard as a “factual sufficiency” standard which means that when the evidence meets the Jackson v. Virginia standard, it can never be “factually insufficient” and when the evidence is “factually insufficient,” it will always be insufficient under the Jackson v. Virginia standard. Johnson v. State, 23 S.W.3d 1, 15-16 (Tex. Crim. App. 2000).

     It appears that the legal sufficiency application must be different now—even though the description is the same. Otherwise, the court would not have remanded Brooks for reconsideration by the Waco Court of Appeals: it had already found the evidence legally sufficient.
     Again, the question is whether any (reasonable?) rational jury could conclude that the evidence established guilt beyond a reasonable doubt. See Brooks, 2010 WL 3894613, at *16 (Cochran, J., concurring). Courts still review the evidence in the light most favorable to the prosecution, but it appears that the emphasis has shifted firmly to a review of the rationality of the jury’s determination. It is no longer whether the evidence is sufficient; it is whether, after a rigorous review of that evidence by the appellate court, it can conclude that a rational jury could convict based upon that evidence. (As a side note, it is difficult to understand how one can determine the rationality of a verdict without in some manner examining the weight of the evidence, but that does seem to be the task before us.)
     Thus, the hypothetical has teeth. It is not rational to believe a clerk’s eyewitness testimony over the flat contradiction of an electronic recording showing the contrary. Although a reviewing court may not weigh the evidence, it can determine that the jury was not rational for convicting based upon that evidence.
     So. A reviewing court cannot weigh the evidence, does not look for manifest injustice, but is required to look to see if a rational jury, based on the quality of the evidence, viewed in light most favorable to the verdict, could have found all elements of the offense beyond a reasonable doubt.
     Unresolved question - Does a court not engage in some degree of the condemned “weighing” or comparison, or credibility analysis, in determining whether the jury’s determination is rational?
     Certainty in applying this standard will likely not exist for some time while the lower appellate courts wrestle with the problem of actually applying the “rigorous” legal sufficiency review that is “essentially the same standard” as the factual sufficiency review that has been discarded. Couple that shift in analysis with the court’s concern that the “factual-sufficiency standard may have skewed a rigorous application of the Jackson v. Virginia standard . . . .” Id. at *14, and one thing becomes crystalline: The same words will be used in your briefs and in appellate opinions as have been used since Jackson was released in 1979. But (with apologies to the Princess Bride), I do not think those words mean what you think they do. Until the courts come to some kind of consensus about what they do mean now, and the range of that meaning under Texas law . . . good luck to you.

"Opinions expressed herein are solely attributable to the author, and do not necessarily represent the opinions of the Court or any Justice on it."