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Click here for the full text of this decision FACTS:The appellant was accused of possession of cocaine with intent to deliver, enhanced by a prior felony conviction. After a jury found him guilty as charged, appellant plead true to the enhancement paragraph, and the trial court assessed punishment at imprisonment for a term of 20 years. The court of appeals affirmed the judgment of conviction and sentence. HOLDING:The court affirms the judgment of the court of appeals. The court of appeals cited Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), for the principle that a defendant is not entitled to a legal sufficiency review of the jury’s implied finding on the Article 38.23(a) issue. In Malik, the jury charge included an instruction that explicitly told the jury to acquit if it did not believe beyond a reasonable doubt that the officer had probable cause to stop Malik. It thus instructed the jury to base its judgment of the legal and factual sufficiency of the state’s case on a single fact. The state objected to that portion of the charge. The court held that the legality of the defendant’s detention is not an element of the offense charged, but relates merely to evidence admissibility. Any jury instruction concerning the legality of the defendant’s detention should have been limited to the admissibility of the contested evidence; the legality of the defendant’s detention should not have been used to decide whether the state’s evidence was sufficient to prove the elements of the offense. The court did not speak to measuring the sufficiency of the evidence to prove the propriety of Malik’s detention, nor did the court express an opinion on the propriety of conducting a legal-sufficiency review of the evidence to support the implied finding on the Article 38.23(a) issue; the court said merely that the admissibility of a particular piece of evidence cannot be used to determine sufficiency of the evidence introduced to prove the elements of the offense. The appellant urges that there must be a factual sufficiency review of the evidence to support the resolution of any disputed fact issue, including issues of the admissibility of evidence pursuant to Article 38.23(a). The court is not persuaded by appellant’s arguments. The appellant points out that the Waco Court of Appeals, in Davy v. State, 67 S.W.3d 382 (Tex.App. — Waco 2001, no pet.), observed that implicit findings under Article 38.23 are akin to deadly-weapon findings by a jury, and that appellate courts frequently review the sufficiency of the evidence to sustain such findings. While this is true, the court notes that a deadly-weapon finding can be an element of the offense. Even if it is not, it is more akin to the elements of an offense than is the fact at issue here in that a deadly-weapon finding has a direct effect on the consequences of any conviction. While use of a deadly weapon may or may not be an element of the offense, it is an element of the punishment. Texas Code of Criminal Procedure Article 42.12 (3)(g). Resolution by the fact-finder of an Article 38.23(a) issue affects only the jury’s consideration of evidence: Should this evidence be included in the body of evidence to be considered in determining guilt? In Caddell v. State, 123 S.W.3d 722 (Tex. App. – Houston [14th Dist] 2003), the Fourteenth Court of Appeals noted that sufficiency and admissibility are distinct issues. An instruction pursuant to Article 38.23(a) should be included in the charge only “if there is a factual dispute as to how the evidence was obtained.” Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986). In a jury trial, the jury is the trier of fact, and we give great deference to its fact determinations and its decisions about the credibility of witnesses. Factual disputes almost always turn on witness credibility. The court does not decide who or what the jury should have, in our view, believed; the court considers only whether a reasonable jury could have reached that verdict. To acquiesce to appellant’s argument would be to allow a reviewing court to substitute its own judgment for that of the jury on every fact issue, including all subsidiary issues, raised at trial, even those factual determinations that rest on the determination of witness credibility. The court holds that factual-sufficiency review is appropriate only as to the sufficiency of the state’s proof as to elements of the offense. Such a review is not appropriate as to the admissibility of evidence when such a question is submitted to the jury pursuant to Article 38.23(a). OPINION:Johnson, J., delivered the opinion of the Court, in which Meyers, Keasler, Hervey and Cochran, JJ, joined. Keller, P.J., concurred in the judgment. DISSENT:Womack, J., filed a dissenting opinion, in which Price and Holcomb, JJ., joined. “The court’s reasons do not persuade me that there is any law that limits the appellate authority of the courts of appeals. I would vacate the judgment of the court of appeals and remand the case for it to use its authority determine the fact question that the appellant has raised.”

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