Escovedo v. State

934 S.W.2d 145, 1996 Tex. Crim. App. LEXIS 238, 1996 WL 676677

• Court: Court of Criminal Appeals of Texas
• Decided: November 20, 1996
• Docket: No. 709-95
• Status: Published

Opinion

BAIRD, Judge,

dissenting to refusal of appellant’s petition for discretionary review.

A jury convicted appellant of aggravated robbery and assessed punishment at twenty years confinement. The Court of Appeals affirmed. Escovedo v. State, 902 S.W.2d 109 (Tex.App. — Houston [1st Dist.] 1995).

In his second point of error, appellant contended the evidence was factually insufficient to support the conviction. Id., 902 S.W.2d at 115-116. The Court of Appeals held one may not challenge the factual sufficiency of the evidence to support the proof of the elements of an offense. Id., 902 S.W.2d at 116. Rather, the Court held factual sufficiency challenges were limited to issues where the defendant had the burden of proof to establish an affirmative defense. Ibid. For these reasons, the Court of Appeals did not reach the merits of appellant’s argument and overruled the second point of error. Ibid.

In Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996), we held the Texas Constitution permits factual sufficiency challenges and we adopted the standard of review announced in Stone v. State, 823 S.W.2d 375 (Tex.App.— Austin 1992, pet. refd as untimely filed). Therefore, the Court of Appeals erred in not reaching the merits of appellant’s second point of error.

Accordingly, I would summarily grant review, vacate the judgment of the Court of Appeals and remand this case to that Court for further proceedings in light of Clewis, supra.1 Because the majority fails to do so, I respectfully dissent.

MALONEY, J., joins this opinion.

1 . We should remand this case to the Court of Appeals even though appellant did not raise this issue in his petition for discretionary review. See, McFarland v. State, 930 S.W.2d 99 (Tex.Cr.App.1996).