Marcus Raynard Johnson v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00224-CR

Marcus Raynard Johnson,

Appellant

v.

The State of Texas,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 31,679-CR

CONCURRING Opinion

I write to further address Johnson s fourth issue concerning the standard of review for factual-sufficiency issues on appeal.

"The essential guarantee of the Due Process Clause is that the government may not imprison or otherwise physically restrain a person except in accordance with fair procedures." Long v. State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987), overruled on other grounds by Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). "The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970); Fisher v. State, 887 S.W.2d 49, 52-53 (Tex. Crim. App. 1994). "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" Winship, 397 U.S. at 370, 90 S. Ct. at 1076 (Harlan, J., concurring).

The Court of Criminal Appeals has attempted to definitively state the standard of review for testing the factual sufficiency of the evidence to support the elements of a criminal conviction on at least seven occasions: Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Goodman v. State, 66 S.W.3d 283, 285-87 (Tex. Crim. App. 2001); Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (overruled in part on other grounds by Watson); and Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).

The court proclaimed in Zuniga: There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga, 144 S.W.3d at 484. That proposition was restated in Watson. Watson, 204 S.W.3d at 415. But the court then backed away from the following pronouncement from Zuniga: This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga, 144 S.W.3d at 485; see Watson, 204 S.W.3d at 416 ( The problem is exacerbated by what our Zuniga opinion says next. . . . ). In my view, Watson did not solve a problem; it created a due-process problem.

In Watson, the court justified its rejection of the Zuniga factual sufficiency standard by measuring it against its own standard of a high level of skepticism and concluded, Any holding that a criminal appellate court can reverse and remand for a new trial even when the evidence preponderates in favor of a conviction is inconsistent with that historically required high level of skepticism. [1] See Watson. 204 S.W.3d at 417. Is the court saying that a conviction must be affirmed when the evidence preponderates in favor of conviction but does not meet the beyond-a-reasonable-doubt-standard? If so, such an affirmance would violate the due-process requirement outlined in Winship.

Recognizing that we are bound by the decisions of the Court of Criminal Appeals, I concur in the judgment.

BILL VANCE

Justice

Concurring opinion delivered and filed May 28, 2008

Publish

[1] The United States Supreme Court recognized in Tibbs v. Florida that a state court s construction of its prior opinions might conflict with the Due Process Clause. Tibbs v. Florida, 457 U.S. 31, 47-48, 102 S. Ct. 2211, 2221, 72 L. Ed. 2d 652 (1982) ( Absent a conflict with the Due Process Clause . . . . ).