Clewis v. State

922 S.W.2d 126, 1996 Tex. Crim. App. LEXIS 11, 1996 WL 37908

• Court: Court of Criminal Appeals of Texas
• Decided: January 31, 1996
• Docket: 0450-94
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted of burglary of a building, and the Fifth Court of Appeals affirmed his conviction. Clewis v. State, 876 S.W.2d 428 (Tex.App.—Dallas 1994). In his sole ground for review, appellant contends that the court of appeals erred in refusing to review the evidence to determine whether it was factually sufficient to sustain his conviction. See Stone v. State, 823 S.W.2d 375 (Tex.App.—Austin 1992, pet. ref'd, untimely filed). Specifically, appellant avers that the evidence was factually insufficient to show that he knowingly and intentionally entered the budding.

The court of appeals held that Texas constitutional and statutory provisions grant and authorize courts of appeals to exercise “appellate jurisdiction to review fact questions.” Clewis, 876 S.W.2d at 430. The courts of appeals do not possess “fact-finding authority,” but may “ ‘unfind’ a fact determination that the jury has found or failed to find.” Id. at 430-31. The court of appeals further held that the correct standard of review for factual sufficiency of the elements of the offense in noncapital cases is the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard: “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.” Id. at 319, 99 S.Ct. at 2789; Clewis, 876 S.W.2d at 437.

While we agree that courts of appeals are vested with the authority to review fact questions in criminal cases, we part ways with the court of appeals’ holding that the correct standard of review for factual sufficiency of the elements of the offense is the Jackson standard. Rather, we endorse Chief Justice McGarry’s analysis in his concurring opinion in Clewis, and conclude that the Jackson standard of review does not satisfy a noncapital defendant’s right to an appellate review of fact questions. Clewis, 876 S.W.2d at 444 (McGarry, C.J., concurring). We hold that the proper standard of review for factual sufficiency of the elements of the offense is the one articulated by the Third Court of Appeals in Stone v. State, 823 S.W.2d at 381: The court of appeals “views all the evidence without the prism of ‘in the light most favorable to the prosecution.’ ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”¹ This holding harmonizes the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual sufficiency.² Bishop v. State, 43 Tex. 390 (1875); see also Clewis, 876 S.W.2d at 445-46 (citing Tibbs v. Florida, 457 U.S. 31, 45 n. 22, 102 S.Ct. 2211, 2220 n. 22, 72 L.Ed.2d 652 (1982); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex.1988); Minor v. State, 653 S.W.2d 349, 354 (Tex.App.—San Antonio 1983) (Cadena, C.J., concurring)).

1. Fact Jurisdiction of Appellate Courts

We are faced with a question of Texas law regarding the courts of appeals.³ The Texas Constitution confers appellate jurisdiction upon the courts of appeals, Tex. Const, art. V, §§ 5 & 6,⁴ that includes the power to review questions of fact in criminal eases.⁵ Bishop v. State, 43 Tex. 390, 400 (1875) (“[A]ll of our subsequent constitutions have expressly given to the Supreme Court jurisdiction of criminal as well as civil cases as an appellate tribunal, and statutes have been passed providing means by which the court should be enabled to exercise its full power of revising a criminal cause upon the law and facts as presented in the record.”) (citations omitted) (emphasis added); Bailey v. Haddy, Dallam 376, 378 (Tex.1841) (“An appeal ... [subjects] the facts as well as the law to a review and retrial.”) (emphasis added); Republic of Texas v. Smith, Dallam 407, 410-11 (Tex.1841) (“We decide, then, that the defendant in a criminal prosecution [in] the district court has the right of appeal to this court from the judgment or sentence of the court below, and to have the facts as well as the law, at his own election, opened for re-examination.”); cfi Cropper, 754 S.W.2d at 648. This Court recently acknowledged in Bigby v. State, 892 S.W.2d 864, 874 (Tex.Crim.App.1994), the “considerable jurisprudence by this Court and our predecessors with criminal jurisdiction which had continually recognized the authority, though infrequently exercised, of the State’s highest criminal court to review a case upon the facts as well as the law.”⁶ Id. In that case, we also noted that the Legislature has consistently recognized the ability of courts with criminal appellate jurisdiction to review the facts of a case and that Article 44.25 of the Texas Code of Criminal Procedure⁷ has remained nearly identical since 1857 with each subsequent code revision.⁸ Bigby, 892 S.W.2d at 874-75 n. 5 (quoting art. 44.25 of the 1979 Code, art. 848 of the 1950 Code, art. 905 of the 1892 Code, art. 870 of the 1879 Code, and art. 744 of the 1857 Code); id. at 875 (“[0]ur ability to factually review a criminal cause ... is inherent in our ‘appellate jurisdiction’ and the lack of any corresponding constitutional restriction.”). When their jurisdiction to review fact questions is properly invoked, the courts of appeals cannot ignore constitutional and statutory mandates. Clewis, 876 S.W.2d at 480; id. at 441 (McGarry, C.J., concurring); Queen v. State, 842 S.W.2d 708, 711 (Tex.App.—Houston [1st Dist.] 1992).

We can add little to Judge Clinton’s comprehensive, historical analysis of appellate authority to conduct factual sufficiency reviews in criminal cases. Clewis, 922 S.W.2d 126, 136-151 (Tex.Crim.App.1995) (Clinton, J., concurring). In his concurring opinion, Judge Clinton tracks the evolution of appellate judicial power and concludes that “from the beginning, ‘appellate jurisdiction’ included the power to examine ‘factual sufficiency,’ and further, that every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power_” Chwis, at pp. 137-139 & n. 4-5 (Clinton, J., concurring). We are persuaded by Judge Clinton’s rebuttal of the State’s argument that once an appellate court has found “legal sufficiency” to support the verdict, it may not proceed further to review “factual sufficiency,” even if properly raised. Id. at part II.C. (Clinton, J., concurring) (explaining that Franklin v. State, 147 Tex.Crim. 636, 183 S.W.2d 573 (App.1944), cannot be read to rule out a factual sufficiency review by an appellate court and that “constitutional power to conduct such a review is not lost through preter-mission_”).

II. Standard of Review

A. Civil Factual Sufficiency Review

The Texas Supreme Court has consistently interpreted Art. V, § 6 of the Texas Constitution to mean that the courts of civil appeals, and later the courts of appeals, have the authority and responsibility to review the verdicts in civil cases to determine whether the evidence is factually sufficient.⁹ See Meraz v. State, 785 S.W.2d 146, 149 (Tex.Crim.App.1990); Cropper, 754 S.W.2d at 648; Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898). That court has stated that the scope of review under a factually sufficient point

requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust....

In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); see Cropper, 754 S.W.2d at 646; Pool, 715 S.W.2d at 634.

B. Criminal Factual Sufficiency Review

Since the creation of the Texas Court of Criminal Appeals in 1891, appellate jurisdiction has included the power to examine factual sufficiency, and “every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power....” Clewis v. State, 922 S.W.2d at 141 (Clinton, J., concurring); see Bigby, 892 S.W.2d at 874 (citing cases that have recognized the authority of the State’s highest criminal court to review a case upon the facts as well as the law).

While this Court has not determined the proper standard for a factual sufficiency review of the elements of the offense by courts of appeals, it has set the standard for factual sufficiency review in cases where the defendant has asserted an affirmative defense or otherwise has the burden of proof on another fact issue. When the defendant has asserted an affirmative defense or has the burden of proof on an issue, a reviewing court considers all the evidence and determines whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust:

The court of appeals is therefore constitutionally given the authority to determine if a jury finding is against the great weight and preponderance of the evidence and if this is improper it is up to the people of the State of Texas to amend the Constitution.

Meraz, 785 S.W.2d at 154; see Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex.Crim.App.1993).

C. Jackson v. Virginia

The court of appeals held that the Jackson standard, “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,” incorporates both a legal and factual sufficiency review. We reject this holding given the context in which the Jackson standard was initially formulated and the historical meaning of “review upon the facts.”

1. Context of Jackson

Acknowledging that “state appellate review undoubtedly will serve in the vast majority of cases to vindicate the due process protection that follows from [In re ] Winship [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)],” the United States Supreme Court in Jackson set the standard for reviewing the sufficiency of state convictions on federal writs of habeas corpus. Jackson, 443 U.S. at 322, 99 S.Ct. at 2791. This standard constitutes the minimum standard for sustaining a conviction under the Due Process Clause of the Fourteenth Amendment. Jackson, 443 U.S. at 317-18, 99 S.Ct. at 2788. In no way does Jackson itself reference state constitutional or statutory law regarding appellate review. Although Texas courts have adopted the Jackson standard as the legal sufficiency standard in direct appeals,¹⁰ we have never held that its application precluded any other type of review. Clewis, 876 S.W.2d at 413-44 (McGarry, C.J., concurring); Stone, 823 S.W.2d at 379. As we explicitly noted in Griffin v. State, 614 S.W.2d 155, 159 n. 5 (Tex.Crim.App.1981), “[S]tates are free to set higher standards of review [than Jackson ].”

The court of appeals correctly stated that “whether the evidence satisfies the current Jackson test is a ‘question of law.”’ Clewis, 876 S.W.2d at 429 n. 1 (quoting Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982), overruled on other grounds, Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989), and Meraz v. State, 785 S.W.2d at 155). That is, if the evidence is insufficient under the Jackson standard, it is “legally insufficient.” A determination that the evidence is “legally insufficient” means that the case should never have been submitted to the jury.¹¹ Clewis, 876 S.W.2d at 429 n. 1 (citing Ex parte Schuessler, 846 S.W.2d at 852 n. 5).

In contrast, the issue of factual sufficiency is a question of fact. Ex parte Schuessler, 846 S.W.2d at 852 n. 5. A Jackson review, “viewing the evidence in the light most favorable to the prosecution,” is not a factual sufficiency review; rather, it is an analytical tool used to determine whether there is a fact issue at all.¹² Clewis, 876 S.W.2d at 441 (McGarry, C.J., concurring). The Jackson standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”¹³ Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

In conducting a factual sufficiency review, an appellate court reviews the fact-finder’s weighing of the evidence and is authorized to disagree with the factfinder’s determination. This review, however, must be appropriately deferential so as to avoid an appellate court’s substituting its judgment for that of the jury. Id. at 443 (McGarry, C.J., concurring).

2. Historical Meaning of Reversal on the Facts

While courts of appeals have typically conducted a Jackson review when a defendant attacks the sufficiency of the evidence of an element of the offense,¹⁴ nothing in the Texas Constitution or the Texas Code of Criminal Procedure limits the courts of appeals to a Jackson review. See Bigby, 892 S.W.2d at 874-75; Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Griffin, 614 S.W.2d at 159; Ex parte Schuessler, 846 S.W.2d at 852 n. 5; Stone, 823 S.W.2d at 379. After a court of appeals has determined that the evidence is legally sufficient under Jackson to support the verdict, it may proceed further to review factual sufficiency if it is properly raised. Clewis, slip op. at II (Clinton, J, concurring).

If a reviewing court determines that the evidence is insufficient under the Jackson standard, it must render a judgment of acquittal. Tibbs v. Florida, 457 U.S. at 42, 102 S.Ct. at 2218. As the concurring opinion in the court of appeals below noted, “To render a judgment of acquittal is to literally substitute the judgment of the reviewing court for that of the jury.” Clewis, 876 S.W.2d at 441 (McGarry, C.J., concurring). This is because, as stated earlier, if the evidence is insufficient under Jackson, the case never should have been submitted to the jury. Supra part. II.C. However, when conducting a factual sufficiency review, an appellate court cannot substitute its judgment for that of the factfinder since this would violate the defendant’s right to trial by jury. See Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218; Clewis, 876 S.W.2d at 441 (McGarry, C.J., concurring); see also Choate, 44 S.W. at 70. Accordingly, courts of appeals should vacate a conviction based on factually insufficient evidence and remand the cause for a new trial.

In sum, the Jackson standard does not incorporate a factual sufficiency review of the evidence because the appellate court does not review the factfinder’s weighing of the evidence.¹⁵ Clewis, 876 S.W.2d at 443 (McGar-ry, C.J., concurring). The test comprises the minimum standard for comporting with federal due process; this Court has never held that Jackson constitutes a factual sufficiency review.

D. Stone standard

Appellant urges us to hold that when the factual sufficiency of an element of the offense is challenged, courts of appeals should apply the Stone standard of review, articulated by the Third Court of Appeals. Stone, 823 S.W.2d at 381. In contrast to the court of appeals in the instant case, the Stone court observed that a factual sufficiency review begins with the presumption that the evidence supporting the jury’s verdict was legally sufficient, that is, sufficient under the Jackson test. Id. at 381. In conducting a factual sufficiency review, the court of appeals “views all the evidence without the prism of ‘in the light most favorable to the prosecution.’ ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id.16

The court of appeals in the instant case noted:

[T]he Stone standard correctly imports the beyond-a-reasonable-doubt burden of proof. Implicit in the Stone analysis is that court’s consideration of the higher burden of proof required for a criminal conviction. We interpret the Stone opinion as an attempt to apply the civil factual sufficiency standard of review to the evidence of the elements of a criminal offense by adapting it for the different burden of proof at trial. Accordingly, the Stone standard assesses all the evidence “impartially” to determine if it is factually sufficient for a factfinder to have found appellant guilty beyond a reasonable doubt. Cleuñs, 876 S.W.2d at 433 (citations and notes omitted).

Although the court of appeals indicated that the Stone standard “correctly” imports the beyond-a-reasonable-doubt burden of proof, it found the Stone standard deficient for two reasons: (1) Stone violates a defendant’s right to trial by jury, Texas Constitution art. I, § 15, by denying the factfinder the deference required by the Texas Constitution; and (2) the Stone standard violates the federal and Texas prohibition against double jeopardy, U.S. Const, amend. V and Tex. Const, art. I, § 14.

1. Factfinder deference and right to trial by jury

The Code of Criminal Procedure contains two provisions establishing that the jury is the judge of the facts. Tex.Code Crim.Proc. Ann. art. 36.13¹⁷ & 38.04.¹⁸ Notably, Chapter 36, “Trial Before the Jury,” and Chapter 38, “Evidence in Criminal Actions,” do not reference the appellate process, and no similar provision appears in the Rules of Appellate Procedure. The import of the provisions in the Code is, in part, to distinguish the role of the jury from the role of the judge at trial. Further, the court of appeals’ interpretation of these statutory provisions is overly broad and would essentially preclude any appellate review of the jury’s determination of the facts and the weight to be given the evidence. Clewis, 876 S.W.2d at 442 (McGarry, C.J., concurring). This conflicts with appellate courts’ jurisdiction and obligation to review criminal convictions “as well upon the law as well as upon the facts.” Tex.Code Crim. ProcAnn. art. 44.25. The appropriate balance between the jury’s role as the judge of the facts and the reviewing court’s duty to review criminal convictions is struck by not allowing the appellate court to “find” facts, or substitute its judgment for that of the jury;¹⁹ rather, when it determines that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, it must reverse the verdict and remand for a new trial.

“The same Constitution which guarantees a right of trial by jury empowers Courts of Civil Appeals finally to decide all fact questions.” Pool, 715 S.W.2d at 634, quoting Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 368 (1960). The historical safeguards of the “inviolate” right to trial by jury are found in the deferential standards of review applied and the prohibition against rendition of judgment upon a factual insufficiency point. Appellate courts should only exercise their fact jurisdiction to prevent a manifestly unjust result; ... those courts “are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable.” Pool, 715 S.W.2d at 634, quoting Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985) (Robertson, J., concurring). Instead of rendering or substituting its judgment for that of the factfinder, a reviewing court returns the case to trial before a different jury. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218; see Cropper, 754 S.W.2d at 651. In Meraz, 785 S.W.2d at 154, this Court acknowledged its concern that when the courts of appeals exercise their fact jurisdiction, they may merely substitute their judgment for that of the jury. However, we held that “sufficient safeguards can be imposed by this Court to guarantee that the mental processes of the scrivener are reflected in the opinion so that we may ascertain whether the process resulted in an usurpation of the jury function.” Meraz, 785 S.W.2d at 154. These safeguards include:

In order that this court may in the future determine if a correct standard of review of factual insufficiency points has been utilized, courts of appeals, when reversing on insufficiency grounds, should, in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient ... as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.

Pool, 715 S.W.2d at 635 (quoted in Meraz, 785 S.W.2d at 154 n. 2). We see no reason why these safeguards, which we held adequate in a factual sufficiency review of an affirmative defense, Meraz, 785 S.W.2d at 154, are not also adequate in a factual sufficiency review of the elements of the offense. Thus, these safeguards help ensure that the factfinder is given the appropriate deference and that the defendant’s right to trial by jury remains inviolate.

2. Double Jeopardy

Neither the federal nor the Texas prohibition against double jeopardy, U.S. Const, amend. V.; Tex. Const, art. I, § 14, preclude defendants from seeking an acquittal through a new trial. Tibbs v. Florida, 457 U.S. at 45, 102 S.Ct. at 2220; Lofton v. State, 777 S.W.2d 96, 97 (Tex.Crim.App.1989). As the United States Supreme Court held, the Double Jeopardy Clause does not prohibit a retrial if the reversal is based on factual insufficiency of the evidence. Tibbs, 457 U.S. at 39, 102 S.Ct. at 2216-17 (cited in Meraz, 785 S.W.2d at 156). However, retrial is prohibited where the reviewing court determines that the evidence is insufficient under Jackson. That is, as a practical matter, the State has only one opportunity to present evidence legally sufficient to convict a defendant. Meraz, 785 S.W.2d at 156.

In sum, we are not persuaded that the Stone standard denies the factfinder the deference required by the Texas Constitution, violates defendants’ right to trial by jury, or violates the prohibition against double jeopardy. Instead, we hold that the Stone standard correctly imports the beyond-a-reasonable-doubt burden of proof and successfully adapts the factual sufficiency standard to the burden of proof at a criminal trial.²⁰

Accordingly, we vacate the judgment of the court of appeals and remand the instant cause to that court for further proceedings consistent with this opinion.

1 .There is a split of authority in the courts of appeals as to the Stone factual sufficiency standard. The Austin court continued to adhere to the Stone standard in Orona v. State, 836 S.W.2d 319 (Tex.App.—Austin 1992) (per curiam). The Texarkana court has adopted the Stone standard. White v. State, 890 S.W.2d 131 (Tex.App.—Texarkana 1994, pet. filed); Lisai v. State, 875 S.W.2d 35, 37 (Tex.App.—Texarkana 1994, pet. ref'd.); Hernandez v. State, 867 S.W.2d 900, 905 n. 2 (Tex.App.—Texarkana 1993); Lewis v. State, 856 S.W.2d 271, 273 n. 1 (Tex.App.—Texarkana 1993); Williams v. State, 848 S.W.2d 915, 916-17 (Tex.App.—Texarkana 1993).

Other courts of appeals have rejected the Stone factual sufficiency standard. Blackmon v. State, 830 S.W.2d 711, 713 n. 1 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd.) (holding that Meraz only applies to issues where the burden of proof is on the defendant); Lopez v. State, 824 S.W.2d 298 (Tex.App.—Houston [1st Dist.] 1992) (refusing to extend Meraz to entrapment because entrapment is not an affirmative defense under Texas law); Crouch v. State, 858 S.W.2d 599, 601 (Tex.App.—Fort Worth 1993, pet. ref'd.); Pender v. State, 850 S.W.2d 201, 203 (Tex.App.—Fort Worth 1993) (per curiam); Clewis, 876 S.W.2d at 436 (Dallas); Wilson v. State, 879 S.W.2d 309, 311 (Tex.App.—Amarillo 1994); House v. State, 880 S.W.2d 512, 513-14 (Tex.App.—Eastland 1994); Smith v. State, 874 S.W.2d 269, 272 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd.); Mukes v. State, 828 S.W.2d 571, 573-74 (Tex.App.—Houston [14th Dist.] 1992).

The Corpus Christi and San Antonio courts addressed the Stone issue, but did not authoritatively adopt or reject the factual sufficiency standard. Rodriguez v. State, 888 S.W.2d 211, 215 (Tex.App.—Corpus Christi 1994); Harris v. State, 866 S.W.2d 316 (Tex.App.—San Antonio 1993, pet. ref’d.). The Tyler Court of Appeals applied the factual sufficiency test to the issue of competency, but did not reach the question of applying Stone to the guilt/innocence issue. Strickland v. State, 815 S.W.2d 309, 312-13 (Tex.App.—Tyler 1991).

2 . See generally, Susan Bliel & Charles Bliel, The Court of Criminal Appeals Versus the Constitution: The Conclusivity Question, 23 St. Mary’s LJ. 423 (1991).

3 . This opinion is limited to the jurisdiction and proper standard of factual sufficiency review in the courts of appeals. We will not address these issues with regard to this Court since they are not properly before us in the instant case.

4 . Art. V, § 6 of the Texas Constitution provides in relevant part:

Said Courts of Appeals shall have appellate jurisdiction co-extensive with the limits of ffieir respective districts, which shall extend to all cases of which the district Courts of County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.

Provided, that the decisions of said courts [courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.

The last sentence above is referred to as the "factual conclusivity” clause. The authority of direct appellate courts to review fact questions is not derived from the "factual conclusivity” clause of article V, section 6 of the Texas Constitution; rather, it is derived from the general grant of "appellate jurisdiction” in article V, sections 5 & 6. Bigby v. State, 892 S.W.2d 864, 871-74 (Tex.Crim.App.1994). The "factual con-clusivity” clause is a limit on the jurisdiction of the Supreme Court and the Court of Criminal Appeals in discretionary matters. Id.

5 . Neither Judge White nor Judge Mansfield discuss in their dissenting opinions the issue addressed by the 5th Court of Appeals and presented to this Court, on the Texas Constitutional authority placed in the courts of appeals to conduct factual sufficiency reviews in criminal cases, and thus do not require comment.

6 . Presiding Judge McCormick, joined by Judge Keller, in dissent, now take issue with what they perceive to be our lack of judicial restraint in finding that the courts of appeals should engage in a factual sufficiency review if such a point is raised on appeal. Clewis, 922 S.W.2d 152 (McCormick, P.J., dissenting). However, Texas appellate courts have been reviewing the factual sufficiency of the evidence in criminal cases for over a century. Republic of Texas v. Smith, Dallam 407 (Tex.1841); Bishop v. State, 43 Tex. 390, 399-400 (1875); Tollett v. State, 44 Tex. 95 (1875); Loza v. State, 1 Tex.App. 488 (1877); Montgomery v. State, 16 S.W. 342 (Tex.App.1891); Mitchell v. State, 33 Tex.Cr.R. 575, 28 S.W. 475 (1894); Murphy v. State, 65 Tex.Cr.R. 55, 143 S.W. 616, 620 (1912); Smith v. State, 85 Tex.Cr.R. 355, 212 S.W. 660, 661 (1919); Jolly v. State, 87 Tex.Cr.R. 288, 221 S.W. 279, 281 (1920); Cook v. State, 88 Tex.Crim. 659, 228 S.W. 213, 216 (1921) (on rehearing); Vogel v. State, 89 Tex.Crim. 474, 231 S.W. 1096, 1096-97 (1921); Rochetszky v. State, 94 Tex.Crim. 423, 251 S.W. 232, 233 (1923) (on rehearing); Green v. State, 97 Tex.Crim. 52, 260 S.W. 195 (1924); Claxton v. State, 105 Tex.Crim. 308, 288 S.W. 444, 447 (1926) (on State's motion for rehearing); Mason v. State, 108 Tex.Crim. 452, 1 S.W.2d 283, 284 (1928); Powell v. State, 116 Tex.Crim. 34, 28 S.W.2d 142 (1930); Stevens v. State, 121 Tex.Crim. 511, 50 S.W.2d 284 (1931); Davis v. State, 125 Tex.Crim. 6, 66 S.W.2d 343 (1933); Armistead v. State, 130 Tex.Crim. 501, 94 S.W.2d 1161 (1936); Ralston v. State, 133 Tex.Crim. 100, 109 S.W.2d 185 (1937); Ballard v. State, 136 Tex.Crim. 188, 124 S.W.2d 131 (1939); Lozano v. State, 138 Tex.Crim. 549, 137 S.W.2d 1031, 1032 (1940); Villareal v. State, 140 Tex.Crim. 675, 146 S.W.2d 406, 409-10 (1940); Franklin v. State, 147 Tex.Crim. 636, 183 S.W.2d 573, 574 (1944); Lozano v. State, 154 Tex.Crim. 229, 226 S.W.2d 118 (Tex.Crim.App.1950); Parker v. State, 432 S.W.2d 526 (Tex.Crim.App.1968).

7 . Tex.Code Crim.Proc.Aim. art. 44.25 provides:

The courts of appeals or the Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts.

8 . In dissent, Presiding Judge McCormick, joined by Judge Keller, claim the amendments to Article 44.25 "insured” courts of appeals do not have the power to apply a factual sufficiency review. Clewis, at 153-54 (McCormick, P.J., dissenting). This interpretation is flawed; in fact, just the contrary is true. Despite three amendments to Article 44.25, the legislature never deleted the controlling portion of the provision which states that a reversal may be had in a criminal action "as well upon the law as upon the facts." See Bigby, 892 S.W.2d at 874 n. 5. The language removed from the statute was in response to Burks-Greene and Johnson v. State, not a declaration of the legislature’s intent to deny appellate courts the power to engage in a factual sufficiency review. See Clewis, slip op. at part III, n. 14 (Clinton, J., concurring).

9 . The Texas Supreme Court originally exercised appellate jurisdiction in both civil and criminal matters until the adoption of the 1876 Constitution. The Texas Constitution of 1876 created the original "Court of Appeals,” which had both criminal and civil appellate jurisdiction. The constitutional amendments of 1891 changed the "Court of Appeals” to the Court of Criminal Appeals and created the "courts of civil appeals.” A 1980 constitutional amendment gave the "courts of civil appeals" criminal appellate jurisdiction and renamed them "courts of appeals.” Tex. Const, art. V, § 4. See Stone, 823 S.W.2d at 377-78.

10 . The court of appeals’ opinion stated that a correct standard of review under Jackson must include a review of all of the evidence adduced at trial to determine the sufficiency of the evidence to prove the elements of the offense. Clewis, 876 S.W.2d at 436. While the court of appeals correctly noted that Jackson specifically requires appellate courts to look at all the evidence, in Texas, we have applied Jackson in such a way that the only evidence a reviewing court considers is the evidence that supports the verdict. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991) (holding that the jury is the sole judge of the credibility of the witnesses and may choose to believe all, some, or none of the testimony); Burns v. State, 761 S.W.2d 353, 355-56 (Tex.Crim.App.1988) (holding that reconciliation of conflicts in the evidence is within the exclusive province of the jury); Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). In practice, to the extent that reviewing courts look at all the evidence, they do so merely for the purpose of determining whether it supports the verdict. A reviewing court will ultimately disregard any evidence that does not support the verdict. E.g., Chambers, 805 S.W.2d at 461; Burns, 761 S.W.2d at 355-56.

11 . In Combs, we held that this Court had jurisdiction to conduct a Jackson review where the court of appeals had already conducted one because a Jackson review is a question of law and not of fact. Combs, 643 S.W.2d 709, 716-17. Our holding indicates that Jackson is not a factual sufficiency review.

12 . The concurring opinion in the court of appeals provided a useful example illustrating the distinction between legal and factual sufficiency:

The prosecution’s sole witness, a paid informant, testifies that he saw the defendant commit a crime. Twenty nuns testify that the defendant was with them at the time, far from the scene of the crime. Twenty more nuns testify that they saw the informant commit the crime. If the defendant is convicted, he has no remedy under Jackson because the informant’s testimony, however incredible, is legally sufficient evidence.

Clewis, 876 S.W.2d at 444 n. 2 (McGarry, C.J., concurring).

13 . The Jackson Court further noted:

Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.

Jackson, 443 U.S. at 326, 99 S.Ct. at 2793.

14 . E.g., Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984); Griffin v. State, 614 S.W.2d at 159.

15 . In applying Jackson in the capital sentencing context, we have emphasized that Jackson constitutes a very limited review:

[A]s an appellate court, our task is to consider all of the record evidence and reasonable inferences therefrom in the light most favorable to the jury’s verdict and to determine whether, based on that evidence and those inferences, a rational jury could have found beyond a reasonable doubt [the elements of the offense or the special issue under consideration]. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1973 [1979]). Thus, our review is a very limited one. We do not act as a thirteenth juror re-evaluating the weight and credibility of the evidence. Rather, we act only "as a final, due process safeguard ensuring ... the rationality of the factfinder.” Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App.1994), cert. denied, - U.S. -, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); see also Chambers v. State, 903 S.W.2d 21, 25 (Tex.Crim.App.1995).

16 . Texas courts have articulated the standard for factual sufficiency review in various ways. Examples include: “so against the great weight and preponderance of the evidence,” "so against the overwhelming weight of the evidence as to be clearly wrong and unjust,” and "so against the great weight and preponderance of the evidence as to be manifestly unjust.” We agree with Judge Clinton's concurring opinion and the court of appeals below that these standards of factually sufficiency review, as applied, are identical. Clewis, at 148 (Clinton, J., concurring); Clewis, 876 S.W.2d at 433 n. 10.

17 . Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby.

Tex.Code Crim.Proc.Ann. art. 36.13.

18 . The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony,....

Tex.Code Crim.Proc.Ann. art. 38.04.

The civil counterpart to Article 38.04 is Rule of Civil Procedure 226a. Rule 226a contains a juiy admonishment providing that the jurors "are the sole judges of the credibility of the witnesses and the weight to be given their testimony,....” Tex.R.Civ.P. 226a.

19 .In deciding insufficient evidence points of error,

a court of appeals does not find facts; it only "unfinds” a vital fact. Moreover, action by a court in "unfmding” a vital fact is not an unconstitutional usurpation of the right of trial by jury.

Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TexX.Rev. 361, 368 (1960).

20 . The dissent states that our opinion "increases the likelihood” citizens will become victims of crimes in exchange for protecting a defendant from an unjust conviction. Dissent pg. 157. Our holding simply restates what the Texas Constitution provides as to the jurisdiction of the Courts of Appeals, insuring that the verdict is not contrary to the overwhelming weight of the evidence. The Texas Constitution already requires, ie. that the State satisfy its burden to put on evidence of the elements of an offense in order to prove guilt sufficiently, both factually and legally.