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Criminal Law Zuliani v. State, No. 1168-01, 2/5/2003. FACTS: In this case, the court determines whether the Court of Appeals applied the proper factual sufficiency standard concerning the jury’s rejection of self-defense, and whether a statement made 20 hours after an altercation, made in response to a question, and made after the declarant appeared to be thinking about her answer was an excited utterance. HOLDING: Reversed and remanded. Evidence can be factually insufficient in one of two ways: 1. the evidence is so weak as to be clearly wrong or manifestly unjust; or 2. the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). These standards encompass the complete civil appellate law formulation for factual insufficiency. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. If the complaining party did not have the burden of proof at trial, then the first or manifestly unjust standard applies. If the complaining party on appeal had the burden of proof at trial, then the second or against the great weight and preponderance standard applies. The court has slightly modified this approach when a defendant challenges the factual sufficiency of a guilt finding. If the defendant challenges the factual sufficiency of the elements of the offense on appeal, even though the state has the burden of proof, the reviewing court must review the evidence using both standards. In other words, quoting Johnson, the reviewing court asks whether “a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” In the context of a rejected affirmative defense on a defendant’s appeal, the reviewing court uses the second standard and determines whether the finding against the affirmative defense was so against the great weight and preponderance of the evidence as to be clearly wrong. However, in this case, the court is dealing with self-defense, which is classified as a defense, as opposed to an affirmative defense. With a defense, the burdens at trial alternate between the defense and the state. In Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991), the court explained the burdens involved in a defense under Penal Code �2.03 and the proper analysis under a legal sufficiency challenge. A defendant bears the burden of production, which requires the production of some evidence that supports the particular defense. Once the defendant produces such evidence, the state bears the burden of persuasion to disprove the raised defense. The burden of persuasion is not one that requires the production of evidence, rather it requires only that the state prove its case beyond a reasonable doubt. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. This court has not discussed the proper standard of review in light of Johnson when analyzing a defense. Lower courts of appeals have reviewed such challenges under Clewis v. State, 922 S.W.2d 126 (1996), which expressly enunciated the “against the great weight and preponderance” standard of review. Before Johnson clarified Clewis, the Dallas Court of Appeals combined the standards in Clewis and Saxton to formulate a factual sufficiency standard involving the rejection of a defense. Reaves v. State, 970 S.W.2d 111 (Tex. App.-Dallas 1998, no pet.). Under Reaves, in determining a challenge to the sufficiency of the evidence to support the jury’s finding, beyond a reasonable doubt, against a defendant’s self-defense issues, the court considered all the evidence in the record probative of the defendant’s guilt. Also, the court considered all the evidence in the record probative of defendant’s self-defense issues and decided if the finding of guilt, beyond a reasonable doubt, and the implied finding against the self-defense issues, beyond a reasonable doubt, are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The court agrees with this approach, but modifies it in light of Johnson. The state has the ultimate burden of persuasion when confronted with a �2.03 defense. Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991). The state’s burden is proving its case beyond a reasonable doubt. Therefore, the court holds that when a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all the evidence in a neutral light and asks whether the state’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. The court of appeals, in this case, analyzed the evidence using only the second prong of Johnson. Thus, this case is remanded to the court of appeals to apply the full factual sufficiency standard. The court concludes that the trial court did not abuse its discretion in admitting a witness’ statements.The admissibility of an out-of-court statement under the exceptions to the general hearsay exclusion rule is within the trial court’s discretion. Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995). OPINION: Price, J., delivered the unanimous opinion of the court.

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