David Mark Temple v. The State of Texas--Appeal from 178th District Court of Harris County
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Concurring Opinion to Denial of Rehearing En Banc filed May 24, 2011.
In The
Fourteenth Court of Appeals
NO. 14-08-00074-CR
DAVID MARK TEMPLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1008763
CONCURRING OPINION TO DENIAL
OF REHEARING EN BANC
Both as a member of the original panel and of the en-banc court, I have voted
against rehearing this cause. I write separately to respond to my colleagues who have
dissented from our refusal to rehear. I will address each in turn.
I
Appellate courts rarely overturn jury verdicts. When they do, the reason for
reversing often has more to do with trial-judge error than a conclusion that the jury just
got it wrong.1 Yet in this case Justice McCally would have us reverse the conviction
1
Trial-judge errors that lead juries into reversible verdicts range from submitting wrongful-death cases when there
is simply no evidence of causation, see, e.g., Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 730 (Tex.
below and render a judgment of acquittal because, in her judgment, the verdict is
―irrational.‖ Such a leap would supplant the jury‘s evaluation of the evidence with our
own—a gross invasion by the judiciary upon the right to trial by jury, a right that Texas
has held ―inviolate‖ since the days of the Republic.2
But I do not write to quarrel with Justice McCally over the merits. Like Justice
Seymore, I believe the panel opinion appropriately addresses the evidence upon which a
rational jury could have rendered the verdict rendered below. Instead, I write to dispel
Justice McCally‘s contention that this court has issued inconsistent messages about the
meaning of Brooks v. State. Respectfully, she is wrong when she contends that the court
has stated ―two different standards of review‖ arising from Brooks. In this case, as in
others, we held that after Brooks ―only one standard should be used to evaluate whether
the evidence is sufficient to support a criminal conviction beyond a reasonable doubt:
legal sufficiency.‖
Temple v. State, No. 14-08-0074-CR, — S.W.3d —, 2010 WL
5175018, at *2 (Tex. App.—Houston [14th Dist.] Dec. 21, 2010, no pet. h.) (relying on
Brooks v. State, 323 S.W.3d 893, 905–07) (Tex. Crim. App. 2010) (plurality op.); id. at
926–28 (Cochran, J., concurring)); see also Pomier v. State, 326 S.W.3d 373, 378 (Tex.
App.—Houston [14th Dist.] 2010, no pet. h.) (courts of appeals should apply the legalsufficiency standard when addressing legal-sufficiency and factual-sufficiency arguments
in appeals from criminal convictions).
Justice McCally is correct that in some opinions this court has also noted that
Brooks ―does not alter the constitutional authority of the intermediate courts of appeals to
evaluate and rule on questions of fact.‖ See, e.g., Muhammed v. State, 331 S.W.3d 187,
191 n.3 (Tex. App.—Houston [14th Dist.] 2011, no pet.) And indeed it does not. Under
1997), to allowing inadmissible confessions or extraneous offenses in criminal cases. Pitts v. State, 614 S.W.2d
142, 143–44 (Tex. Crim. App. [Panel Op.] 1981) (inadmissible confession); Fox v. State, 283 S.W.3d 85, 95 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref‘d) (inadmissible extraneous-offense evidence).
2
Repub. Tex. Const. of 1836, Declaration of Rights, Ninth, reprinted in 1 H.P.N. Gammel, The Laws of Texas
1822–1897, at 1069, 1083 (Austin, Gammel Book Co. 1898) (―the right of trial by jury shall remain inviolate‖);
accord Tex. Const. art. I, § 15; Tex. Const. of 1869, art. I, §§ 8, 12; Tex. Const. of 1866, art. 4, § 20; Tex. Const. of
1861, art. I, § 12; Tex. Const. of 1845, art. I, § 12; see also Repub. Tex. Dec. of Indep., reprinted in 1 Gammel,
supra, at 1065 (describing the right to trial by jury as ―that palladium of civil liberty, and only safe guarantee for the
life, liberty, and property of the citizen‖).
2
Brooks, ―[t]he Jackson v. Virginia legal-sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.‖ Brooks, 323 S.W.3d at 894 (plurality op.) (emphasis added). Brooks
does not say that the courts of appeals‘ authority to review cases for factual sufficiency is
dead.
It says, rather, that the Clewis v. State factual-sufficiency standard is
indistinguishable from a properly applied Jackson v. Virginia standard. Id. at 898–902.3
That still leaves a lot of factual review for the courts of appeals. We review for
factual sufficiency in civil cases, of course, but also in criminal cases where the burden of
proof is less than beyond a reasonable doubt. See, e.g., Ulloa v. State, No. 14-10-00102CR, 14-10-00101-CR, — S.W.3d —, 2011 WL 1283115, at *3 n.1 (Tex. App.—Houston
[14th Dist.] Apr. 5, 2011, pet. filed) (distinguishing Brooks and conducting a factualsufficiency review in an appeal from a trial court‘s denial of habeas-corpus relief in
which the burden of proof on the defendant is a preponderance of the evidence); Bernard
v. State, No. 14-10-00044-CR, — S.W.3d —, 2011 WL 1375570, at *2 (Tex. App.—
Houston [14th Dist.] Apr. 12, 2011, pet. filed) (distinguishing Brooks and reviewing the
factual sufficiency of a jury‘s punishment-phase negative finding on a special issue
concerning sudden passion in which the burden of proof is a preponderance of the
evidence).
When a court of appeals is called upon to review factual sufficiency on an issue
that a criminal defendant must prove by a preponderance, it should consider all the
relevant evidence to determine whether the finding is so against the great weight and
preponderance of the evidence so as to be manifestly unjust. Meraz v. State, 785 S.W.2d
146, 155 (Tex. Crim. App. 1990). As a panel of this court held in Bernard v. State, ―[t]he
five judges in Brooks did not overrule or disapprove of this part of Meraz; in fact, the two
concurring judges expressly stated that this part of Meraz was correctly decided.‖
Bernard, — S.W.3d at —, 2011 WL 1375570, at *2 (citing Brooks, 323 S.W.3d at 895;
3
See also Ricardo Pumarejo, Jr., Clueless over Clewis or: How I Learned to Stop Worrying and Welcome Brooks v.
State, 23 The Appellate Advocate: State Bar of Texas Appellate Section Report 246, 258 (Winter 2010).
3
id. at 924 & n.67 (Cochran, J., concurring); Ervin v. State, 331 S.W.3d 49, 53 n.2 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref‘d)).
So when this court says Brooks has done away with factual-sufficiency review in
some criminal cases, it is not inconsistent for us also to say that Brooks has not altered
our constitutional authority ―to evaluate and rule on questions of fact.‖
See, e.g.,
Muhammed, 331 S.W.3d at 191 n.3. Brooks did not abolish factual-sufficiency review in
all criminal cases. Instead, the Court of Criminal Appeals announced that in cases where
the burden of proof is beyond a reasonable doubt, the factual-sufficiency and legalsufficiency standards are the same. This court has faithfully followed Brooks where
appropriate, and faithfully conducted an old-fashioned factual-sufficiency review where
Brooks does not apply.
Because there is no conflict among the rulings from this court on the interpretation
of Brooks v. State, there is no reason for an en-banc rehearing of the panel opinion in this
case. See Tex. R. App. P. 41.2(c).
II
Justice Seymore also has dissented from the court‘s failure to conduct an en-banc
rehearing. But the thrust of his dissent is the allegation that Brooks has deprived the
intermediate courts of appeals of their ability to carry out their constitutional duty to
review facts. I dispute that the Court of Criminal Appeals has invaded our constitutional
province. I further believe that in his dissent, Justice Seymore advocates a violation of
the doctrine of hierarchical precedent.
A
There is no doubt—the factual-conclusivity clause in Article V, Section 6, of the
Texas Constitution makes intermediate appellate courts‘ factual-sufficiency decisions
―final and conclusive‖ upon the Court of Criminal Appeals. Roberts v. State, 221 S.W.3d
659, 662 & 663 n.2 (Tex. Crim. App. 2007); see also Tex. Const. art. V, § 6(a) (providing
that an intermediate appellate court‘s decision ―shall be conclusive on all questions of
4
fact brought before them on appeal or error‖). But the factual-sufficiency clause does not
prohibit the Court of Criminal Appeals from taking jurisdiction to decide, as a matter of
law, whether an intermediate court of appeals applied the correct standard of review in
addressing a party‘s factual-sufficiency claim. See Roberts, 221 S.W.3d at 663 (relying
on In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661–62 (1951); Pool v. Ford
Motor Co., 715 S.W.2d 629, 634–35 (Tex. 1986)).4
The factual-conclusivity clause allows the Court of Criminal Appeals to review an
intermediate court‘s factual-sufficiency decision insofar as necessary to determine
whether the intermediate court ―properly applied ‗rules of law.‘‖ Roberts, 221 S.W.3d at
663 & n.3 (citing Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69, 69–80
(1898); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); Harmon v. Sohio
Pipeline Co., 623 S.W.2d 314, 314–15 (Tex. 1981)). But no more than that is exactly
what the Brooks court did—it laid out the legal boundaries of a proper factual-sufficiency
review.
And though they have no jurisdiction themselves to perform a factual-
sufficiency review, it has been the legitimate realm of our state‘s courts of last resort to
tell the courts of appeals how factual sufficiency should be reviewed. See Pool, 715
S.W.2d at 635 (―Even as to factual insufficiency, it has been the supreme court that has
delineated the role of the courts of appeals.‖) (citing In re King’s Estate, 150 Tex. at 666,
244 S.W.2d at 662); see also Tex. Const. art. V, § 5(a) (granting ―final appellate
jurisdiction‖ to the Court of Criminal Appeals ―in all criminal cases of whatever grade‖).
I already have explained that Brooks did not do away with factual-sufficiency
review; it simply recognized that when the burden of proof is beyond a reasonable doubt,
factual sufficiency and legal sufficiency are one and the same. Brooks, 323 S.W.3d at
898–202; see also Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2007)
(holding that factual-sufficiency review is ―barely distinguishable‖ from Jackson v.
Virginia standard). And the Court of Criminal Appeals, under its authority to verify that
intermediate courts adhere to ―rules of law,‖ was completely within its rights to do so.
4
The Pool court held that In re King’s Estate established that ―the supreme court might take jurisdiction,
notwithstanding the finality of judgments of the courts of civil appeals on fact questions, in order to determine if a
correct standard has been applied by the intermediate courts.‖ Pool, 715 S.W.2d at 634–35.
5
Roberts, 221 S.W.3d at 663. Justice Seymore‘s exhortation notwithstanding, factual
conclusivity—the constitutional prerogative of the intermediate courts—remains intact.
B
In his dissent, Justice Seymore does not merely lambaste the constitutional
foundation of Brooks—he urges a refusal to ―adhere to‖ it. He sees Brooks as such an
―affront to the Texas Constitution‖ that we have no obligation to follow it. I do not agree
that Brooks is so sinister. But even if it were, we would be no less compelled to go where
it leads us.
Justice Seymore concedes that ―[o]stensibly, this court is required to follow the
dictates of vertical stare decisis by acceding to the opinions and mandates of the Court of
Criminal Appeals.‖ There‘s no ―ostensibly‖ to it. ―The Court of Criminal Appeals is the
highest tribunal on matters pertaining to the enforcement of criminal laws, and when it
has deliberately and unequivocally interpreted the law in a criminal matter, we must
adhere to its interpretation.‖ Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.—
Houston [1st Dist.] 1985, no pet.); see also Tex. Const. art. V, § 5(a); Robinson v. City of
Galveston, 51 Tex. Civ. App. 292, 297, 111 S.W. 1076, 1079 (Galveston 1908, no writ)
(holding that even ―if we were disposed to doubt the soundness of [the Court of Criminal
Appeals‘] decisions, we would yet feel constrained to follow them‖).5
Issues of hierarchical precedent are not child‘s play.
―Inferior courts are
absolutely bound to follow the decisions of the courts having appellate or revisory
jurisdiction over them. In this aspect, precedents set by the higher courts are imperative
5
Accord State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) (―‘The Court of Criminal
Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has
authority to overrule or circumvent its decisions, or disobey its mandates.‘‖ (quoting State ex rel. Wilson v. Briggs,
351 S.W.2d 892, 894 (Tex. Crim. App. 1961)); Gabriel v. State, 290 S.W.3d 426, 436 n.5 (Tex. App.—Houston
[14th Dist.] 2009, no pet.) (stating that ―[a]s an intermediate court of appeals, we are bound by controlling authority
from the Court of Criminal Appeals‖); Villarreal v. State, 267 S.W.3d 204, 209 (Tex. App.—Corpus Christi 2008,
no pet.); State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.); Horton v.. State, 986
S.W.2d 297, 300 (Tex. App.—Waco 1999, no pet.); Contreras v. State, 915 S.W.2d 510, 522 (Tex. App.—El Paso
1995, pet. ref‘d) (―As an intermediate appellate court, we are duty[-]bound to follow the law declared by the Texas
Court of Criminal Appeals on matters pertaining to the enforcement of criminal laws.‖); Flores v. State, 883 S.W.2d
383, 385 (Tex. App.—Amarillo 1994, pet. ref‘d); Pettigrew v. State, 822 S.W.2d 732, 734 (Tex. App.—Dallas 1992,
pet. ref‘d).
6
in the strictest sense. They are conclusive on the lower courts, and leave to the latter no
scope for independent judgment or discretion.‖ Henry Campbell Black, Law of Judicial
Precedents 10 (1912).
―[U]nless we wish anarchy to prevail‖ within our halls of justice, lower courts
must follow higher-court precedent ―no matter how misguided the judges of those courts
may think it to be.‖ Hutto v. Davis, 454 U.S. 371, 375, 102 S. Ct. 703, 706, 70 L. Ed.2d
556 (1982) (per curiam). The judges of the inferior courts ―must either obey the orders of
higher authority or yield up their posts to those who will.‖ Weber v. Kaiser Aluminum &
Chem. Corp., 611 F.2d 132, 133 ( 5th Cir. 1980) (Gee, J.).
Even if Brooks were an abomination, it is not the role of lower courts to rein in our
courts of last resort when they go ultra vires. When the Supreme Court of Texas and the
Court of Criminal Appeals interpret our state‘s constitution, we must follow. That‘s how
our system works. To do otherwise—to defy the authority of our state‘s highest courts—
is to forswear the rule of law.
/s/
Jeffrey V. Brown
Justice
Publish — Tex. R. App. P. 47.2(b).
Motion for Rehearing En Banc Denied. Justice McCally filed a Dissenting Opinion to
the Denial of En Banc Rehearing. Justice Seymore filed a Dissenting Opinion to the
Denial of En Banc Rehearing, in which Justice Anderson joins. Justice Brown filed a
Concurring Opinion to the Denial of En Banc Rehearing, in which Justice Boyce joins.
7
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