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Click here for the full text of this decision FACTS:The appellant was prosecuted for the burglary of a habitation during which he allegedly attempted to commit sexual assault. The jury convicted him of this offense and assessed his punishment at 13 years’ confinement in the penitentiary. On appeal he challenged both the legal and factual sufficiency of the evidence. The 10th Court of Appeals found the evidence legally sufficient. However, finding the evidence factually insufficient, the court of appeals reversed the conviction and remanded the cause for a new trial. On the authority of the Court of Criminal Appeals’ opinion in Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), the court of appeals held that, even though the evidence weighed in favor of finding an intent to commit sexual assault, it was nevertheless factually insufficient to support a finding of such an intent to a level of confidence beyond a reasonable doubt. The CCA granted the state’s petition for discretionary review to determine whether Zuniga does indeed authorize reversal when the legally sufficient evidence supporting the verdict equals or outweighs the contrary evidence. On its own motion, the CCA expanded review to include the question whether it should re-examine Zuniga. HOLDING:Reversed and remanded. The CCA stated that the Zuniga decision represented an attempt not to alter the factual-sufficiency standard of previous cases but to re-articulate it in terms specific to the particular level of confidence that due process requires in criminal cases proof beyond a reasonable doubt. The court stated its belief that it apparently made erroneous law when it elaborated on its reformulation, first in the following vein: “However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.” This reformulation, the court stated, make sense only when one remembers that it is not a legal sufficiency standard. This means that an appellate court can both affirm the legal sufficiency of the evidence, and at the same time harbor its own, admittedly subjective, reasonable doubt about the accuracy of the jury’s verdict. Thus, the CCA stated that when in Zuniga it referred to evidence that is factually insufficient because it is “too weak to support a finding of guilt beyond a reasonable doubt[,]” it meant that the evidence would not satisfy the appellate court’s own threshold of proof beyond a reasonable doubt. The CCA then recited other examples from the Zuniga decision where standards for legal and factual sufficiency were confused to create a result that the court now disavowed. The court then disavowed such language in Zuniga and reiterated that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An appellate court judge, the court stated, cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. Nor can an appellate court judge, the court stated, declare that a conflict in the evidence justifies a new trial simply because he disagrees with the jury’s resolution of that conflict. The CCA stated that it has always held that an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury’s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial. The CCA stated that it never, at least until Zuniga, interpreted the factual review jurisdiction of criminal appellate courts to include the ability to overturn a jury verdict and remand for a new trial when the greater weight and preponderance of the evidence actually favors conviction. To the extent that Zuniga may be to read to allow such a reversal, the CCA stated that Zuniga decision was flawed and has a clear potential to cause far more reversals for factual insufficiency than was ever contemplated by many Texas cases within the last 125 years that have inquired into factual sufficiency. OPINION:Price, J., delivered the opinion of the court in which Meyers, Womack, Johnson and Holcomb, J.J., joined. DISSENTS: Hervey, J., filed a dissenting opinion, in which Keller, P.J., and Keasler and Cochran, J.J., joined. “[T]he issue of whether Texas appellate courts have factual sufficiency jurisdiction in criminal cases is a matter of legislative intent. . . . The effect of the 1981 legislative amendments to Article 44.25 of the Texas Code of Criminal Procedure . . . was to withdraw an appellate criminal court’s jurisdiction to provide the remedy of a remand for a new trial when a conviction was reversed because it was contrary to the weight of the evidence . . . .” Cochran, J., filed an additional dissenting opinion in which Keller, P.J., and Keasler and Hervey, J.J., joined. “I respectfully dissent . . . I believe that further efforts to clarify, refine, or revise the Clewis [v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)] standard are as unlikely to succeed as our previous attempts. The Clewis factual-sufficiency review was a well-intentioned but ultimately unworkable effort to incorporate civil standards of review on elements of a crime that must be proven beyond a reasonable doubt. I would overrule Clewis and return to the single standard of review for sufficiency of the evidence in a criminal case as set out by the U.S. Supreme Court in Jackson v. Virginia [443 U.S. 307 (1979)].

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