Lillard, Jerry

• Court: Court of Criminal Appeals of Texas
• Decided: December 6, 2006
• Docket: PD-0825-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-825-06 JERRY LILLARD, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

ANGELINA COUNTY

Per curiam.

O P I N I O N

A jury found Appellant guilty of felony theft and the trial court assessed punishment at ten years' imprisonment and a fine of $5,000. The Court of Appeals reversed the conviction, finding the evidence was factually insufficient to support Appellant's conviction. Lillard v. State, No. 09-04-395-CR (Tex. App. -- Beaumont 2006).

The State has filed a petition for discretionary review contending the Court of Appeals' decision was based on the standard for factual sufficiency review as articulated by language in Zuniga, 144 S.W.3d 477 (2004), which is inappropriate and in conflict with previous jurisprudence. The State specifically claims that Zuniga's premise that evidence can preponderate in favor of guilt and still be factually insufficient conflicts with earlier caselaw. Recently, in Watson v. State, S.W.3d (Tex. Crim. App. No. PD-469-05, delivered October 18, 2006), we addressed this issue. We concluded that to the extent Zuniga inadvertently distorted factual sufficiency review as it has historically been conducted by this Court, it is overruled. Id. slip op. at 1-2. We held that a reviewing court may not reverse a conviction for factual insufficiency when it finds that the evidence preponderates in favor of guilt. Id. at 38-39. Further, the Court reiterated its previous stand that the great weight and preponderance of the evidence must contradict the jury's verdict before the reviewing court may exercise its appellate jurisdiction to order a new trial. Id. at 39-40. The Court of Appeals in the instant case did not have the benefit of our opinion in Watson. Accordingly, we grant the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals for consideration in light of our opinion in Watson.

Delivered: December 6, 2006

Do Not Publish