Alvin Martinets v. State

• Court: Court of Appeals of Texas
• Decided: September 28, 1994
• Docket: 03-93-00193-CR
• Status: Published

Opinion

martinetsaddendum IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



ON MOTION FOR REHEARING

NO. 3-93-193-CR

ALVIN MARTINETS,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY NO. 35,751, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING

Appellant files a motion for rehearing and asserts as his sole point of error that this Court failed to consider the factual as well as the legal sufficiency of the evidence on appeal. Appellant argues that a court should consider both legal and factual sufficiency points of error when a "global" sufficiency of the evidence point is raised. We will overrule the motion for rehearing.

A court must review the legal sufficiency of the evidence in order to meet the minimum due process requirements of the Fourteenth Amendment to the U.S. Constitution. Jackson v. Virginia, 443 U.S. 307, 320 n.12 (1979). Factual sufficiency review is a stricter standard of review than that set out in Jackson and is permitted to the courts of appeals by the Texas Constitution, Art. V, § 6. See Stone v. State, 823 S.W.2d 375, 377-80 (Tex. App.--Austin 1992, pet. ref'd, untimely filed). Attorneys, when briefing constitutional questions, should carefully separate federal and state issues and provide substantive analysis or argument on each. If sufficient distinction between state and federal constitutional grounds of review is not provided, courts may overrule the ground as multifarious. McCambridge v. State, 712 S.W.2d 499, 501 n.9 (Tex. Crim. App. 1986). Texas Rule of Appellate Procedure 74(d) also requires distinct points of error when filing an appellate brief. By combining more than one contention in a single point of error, an appellant risks rejection on the grounds that nothing will be presented for review. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990).

This Court has made clear that "global" sufficiency points of error embrace legal and factual sufficiency only in civil cases. Stone, 823 S.W.2d at 377 n.2. Moreover, even in civil cases, legal and factual sufficiency points of error may be combined only if the record references and the argument made under that point sufficiently direct the court's attention to the nature of the complaint regarding each relevant issue, finding, or legal conclusion. Tex. R. App. P. 74(d).

In his original appeal, appellant urged us to examine the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the appellant guilty of all elements of the offense beyond a reasonable doubt. Appellant's Brief at 5 (citing Jackson, 443 U.S. at 307). This is the standard of review for legal sufficiency of the evidence. Nowhere in his original brief did appellant request review of the evidence for factual sufficiency, mention the standard for factual sufficiency review, or cite to cases involving factual sufficiency review. In short, appellant did nothing to direct our attention to the error about which he now complains.

Nevertheless, we have examined the evidence under the factual sufficiency standard of Stone. A judge's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards used to review jury findings. Okon v. Levy, 612 S.W.2d 938, 941 (Tex. App.--Dallas 1981, writ ref'd n.r.e.) (citing Hall v. Villareal Dev. Corp., 522 S.W.2d 195 (Tex. 1975)). When conducting a factual sufficiency review, we do not review the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.) We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone, 823 S.W.2d at 381.

Appellant was the driver of the car in which the contraband was found. The marihuana and rolling papers found in the closed ashtray were conveniently accessible to appellant. There was an odor of marihuana in the vehicle. We thus hold that the trial court's finding that the appellant was sufficiently linked to the marihuana found in the car was not so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust.

CONCLUSION

In his original brief, appellant raised and argued only a legal sufficiency point of error. This Court properly applied only a legal sufficiency review in affirming appellant's conviction. Even if a factual sufficiency point of error had been presented for review, we would affirm the conviction. We therefore overrule the motion for rehearing.

Bea Ann Smith, Justice

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Overruled

Filed: September 28, 1994

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