Nelson Romero v. State

• Court: Court of Appeals of Texas
• Decided: December 2, 2010
• Docket: 14-09-01035-CR
• Status: Published

Opinion

Affirmed and Majority and Concurring Opinions filed December 2, 2010.

In The

Fourteenth Court of Appeals

NO. 14-09-01035-CR

Nelson Romero, Appellant

V.

The State of Texas, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 58,710

  CONCURRING OPINION

The majority has concluded that appellant’s questions of fact must be determined under a “single standard for evaluating legal sufficiency of the evidence.”  For reasons outlined below, this court should address appellant’s questions of fact as questions of fact and employ a factual-sufficiency standard of review. 

I write separately because this Court has a duty to address appellant’s factual-sufficiency challenge by neutrally considering and weighing all the evidence in the record, including evidence contrary to the jury’s verdict.  Laster v. State, 275 S.W.3d 512, 518–19 (Tex. Crim. App. 2009); Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex. Crim. App. 1993); Meraz v. State, 785 S.W.2d 146, 153 (Tex. Crim. App. 1990); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 633–35 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661–62 (Tex. 1951).[1]  Moreover, the Texas Legislature has expressly provided that Texas courts of appeals may reverse and remand a criminal case for a new trial “as well upon the law as upon the facts.”  Tex. Code Crim. Proc. Ann. art. 44.25 (West 2006) (entitled, “Cases remanded”).  Indeed, it is well settled that reversible error occurs when a court of appeals addresses a question of fact as a question of law.  See Ex parte Schuessler, 846 S.W.2d at 852; Meraz, 785 S.W.2d at 154–55; In re King’s Estate, 244 S.W.2d at 661–62.

Every Texan is entitled to due process of law and all protections afforded under the Texas Constitution.  Each judge who takes our oath of office swears to preserve, protect, and defend the Texas constitution, and the language in the factual-conclusivity clause of the Texas Constitution is clear and unambiguous:

[T]he decision of [Texas courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.

Tex. Const. art. V, § 6(a) (emphasis added).  Pursuant to this provision, Texas courts must distinguish between questions of law and questions of fact.  Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004).  The Texas Court of Criminal Appeals recently recognized this obligation: “The Factual Conclusivity Clause gives final appellate jurisdiction to the court of appeals on questions of fact brought before the court.”  Laster, 275 S.W.3d at 518–19 (emphasis added).

The majority accepts without question the decision of five judges on the Court of Criminal Appeals to disgorge this court of its constitutional mandate to determine factual sufficiency of the evidence in a criminal case.[2]   See Brooks v. State, PD-0210-09, ---S.W.3d---, 2010 WL 3894613, at *7 (Tex. Crim. App. Oct. 6, 2010) (Hervey, J., joined by Keller, J., Keasler, J., and Cochran, J., plurality op.) & id. at *14–22 (Cochran, J., joined by Womack, J., concurring) (overruling use in criminal cases of factual-sufficiency appellate standard of review, which was consistent with Texas Supreme Court precedent and articulated in Clewis v. State, 922 S.W.2d 126, 134–36 (Tex. Crim. App. 1996)).  In the Brooks plurality and concurring opinions, five judges recently concluded that in criminal cases a “factual-sufficiency [appellate] standard [of review] is indistinguishable from a . . . legal-sufficiency [appellate] standard” of review.  See Brooks, 2010 WL 3894613, at *10.  The five judges substituted a legal-sufficiency standard of review for a factual-sufficiency standard of review when “determining whether the evidence is sufficient to support each element of a criminal offense . . . beyond a reasonable doubt.”  Id. at *1 (holding that legal-sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) is “only standard” reviewing court should apply in determining whether evidence is sufficient to support each element of criminal offense); id. at *22 (Cochran, J., concurring).  Asserting that the “two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both,” the five judges purport to eliminate the factual-sufficiency standard of review in criminal cases.  Brooks, 2010 WL 3894613, at *1 (emphasis added).

Regretfully, the five judges in Brooks would confine the courts of appeals to addressing the purely legal question of whether the evidence, when not weighed but viewed in the light most favorable to the prosecution, is legally sufficient to support a criminal conviction.  These judges have rendered the factual-conclusivity clause of the Texas Constitution and article 44.25 of the Texas Code of Criminal Procedure without force or effect in criminal appeals. 

I respectfully submit that the Court of Criminal Appeals has neither the jurisdiction nor lawful authority to disgorge criminal defendants of this constitutional protection.  In fact, three years prior to issuing its opinion in Clewis, the court acknowledged that it may not order Texas courts of appeals to use a legal-sufficiency appellate standard of review to decide questions of fact.  See Ex parte Schuessler, 846 S.W.2d at 852.  Recognizing that it may not “interfere[] with the fact jurisdiction of the intermediate appellate courts,” the court emphasized that it is “not constitutionally authorized to adopt a standard of review for the court[s] of appeals . . . inconsistent with Art. V, § 6 of [the Texas] Constitution.”  Id. at 853 (quoting Meraz, 785 S.W.2d at 153) (emphasis added).  Any such action taken by the Court of Criminal Appeals is “void ab initio.”  Id. at 852–53.

Relative to the plurality and concurring opinions in Brooks, it is true under the doctrine of stare decisis that once “the highest court of the State having jurisdiction” of a matter decides a “principle, rule or proposition of law,” that court and all “other courts of lower rank” must accept the decision as “binding precedent.”  Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (emphasis added).  It is also true that the Court of Criminal Appeals has final appellate jurisdiction relative to questions of law in criminal cases.  Tex. Const. art. V, § 5.  However, only four of the Court of Criminal Appeals judges would substitute the Jackson legal-sufficiency standard for a factual-sufficiency standard under Article V, section 5 of the Texas Constitution.  Brooks, 2010 WL 3894613, at *14.

Moreover, under the factual-conclusivity clause, a Texas court of appeals is not a court of rank “lower” than either the Texas Supreme Court or the Court of Criminal Appeals because the courts of appeals have conclusive, exclusive, and final authority over such questions of fact.  The Court of Criminal Appeals has recognized that the factual-conclusivity clause provides “final appellate jurisdiction to the courts of appeals on questions of fact brought before” them.  Laster, 275 S.W.3d at 518–19.  Neither the Texas Supreme Court nor the Court of Criminal Appeals has any jurisdiction to create a factual-sufficiency appellate standard of review “in conflict” with the Texas constitution, i.e., any standard that would eliminate or in any way interfere with the exclusive authority of the courts of appeals to actually decide the questions of fact presented to them by considering and weighing all the evidence in a trial record.  See Ex parte Schuessler, 846 S.W.2d at 852; Meraz, 785 S.W.2d at 152; see also Pool, 715 S.W.2d at 633–35; In re King’s Estate, 244 S.W.2d at 661–62.  Thus, the doctrine of stare decisis does not bind a Texas court of appeals to apply such an invalid, unconstitutional, appellate standard of review.

Nevertheless, in the present majority and in previous opinions,[3] this Court has reviewed factual-sufficiency issues as questions of law by applying the Jackson legal-sufficiency standard of review.  Those dispositions are binding precedent.  See Caddell v. State, 123 S.W.3d 722, 726–27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (explaining we are bound to follow our own precedent).  

I do not disagree with the majority’s disposition of appellant’s legal and factual sufficiency issues under the standard of review our court has adopted.  Accordingly, I concur with the majority in affirming the trial court’s judgment.

                                                            /s/        Charles W. Seymore

                                                                        Justice

Panel consists of Justices Seymore, Boyce, and Christopher (Boyce, J., majority).

Publish — Tex. R. App. P. 47.2(b).

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[1] I am not alone in my belief that Texas courts of appeals have a constitutional duty to review evidence for factual sufficiency when so requested.  See Ervin v. State, ---S.W.3d---,  No. 01-10-00054-CR, 2010 WL 4619329, at *5–17 (Tex. App.—Houston [1st Dist.] November 10, 2010, no pet. h.) (Jennings, J., concurring).

[2] Within the last month, I participated in four non-published opinions in which this Court followed Brooks.  See Leyva v. State, No. 14-09-00636-CR, 2010 WL 4514229 (Tex. App.—Houston [14th Dist.] Nov. 9, 2010) (mem. op., not designated for publication); Edwards v. State, No. 14-09-00074-CR, 2010 WL 4366114 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet. h.) (mem. op., not designated for publication); Holmes v. State, No. 14-09-00742-CR, 2010 WL 4366266 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet. h.) (mem. op., not designated for publication); Paredes v. State, No. 14-09-00732-CR, 2010 WL 4324395 (Tex. App.—Houston [14th Dist.] Nov. 2, 2010, no pet. h.) (mem. op., not designated for publication).  On further reflection, I believe this court has exclusive appellate jurisdiction over factual-sufficiency issues in criminal cases, and we are under a constitutional obligation not to employ what is patently a legal-sufficiency standard of review when a defendant has properly raised a factual-sufficiency issue.

[3] See Shaw v. State, ---S.W.3d---, No. 14-09-00412-CR, 2010 WL 4467456, at *8 (Tex. App.—Houston [14th Dist.] Nov. 9, 2010, no pet. h.); Pomier v. State, ---S.W.3d---, No. 14-09-00247-CR, 2010 WL 4132209, at *2 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, no pet. h.); see also Nwosoucha v. State, ---S.W.3d---, No. 14-08-01131-CR, 2010 WL 4380290, at *8 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet. h.) (recognizing that legal-sufficiency standard of review remains after Brooks).