Appellant was convicted in a trial by jury of aggravated kidnapping. The jury assessed punishment at 31 years confinement in the Texas Department of Criminal Justice - institutional division and a fine of $10,000. The appeal was transferred from Harris County to the Court of Appeals for the Seventh District. On appeal, the court of appeals sustained appellant's first point of error, holding that the evidence was factually insufficient to support a conviction for aggravated kidnapping. Balque v. State, No. 07-01-0154-CR (Tex. App. - Amarillo, delivered June 11, 2002). It reformed the verdict to reflect conviction for the lesser-included offense of assault and remanded to the trial court for a new punishment hearing. Id.
We granted review of the state's second ground for review, which alleges that the court of appeals "erred by: (1) applying the wrong remedy to a factual sufficiency review, in direct conflict with this Court's holding in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); and (2) utilizing this Court's holding in Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999) under a factual sufficiency review."
In Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), we held that courts of appeals are authorized to review factual sufficiency of the evidence of the elements of the offense and stated that, when finding such factually insufficient evidence, "courts of appeals should vacate a conviction . . . and remand the cause for a new trial." Id. at 133-34. The court of appeals cited Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999), for the proposition that it could reform a judgment of conviction to reflect conviction of a lesser- included offense. Appellant also cites Collier, supra, as well as Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993), and Lee v. State, 51 S.W.3d 365 (Tex.App. - Austin 2001, no pet.), in support of the same principle. However, those three cases involved reformation of judgments after a finding of legally insufficient evidence rather than factually insufficient evidence.
As we held in Clewis, the remedy for factually insufficient evidence is to vacate the conviction and remand the cause for a new trial. Clewis, supra. Accordingly, we reverse the judgment of the court of appeals and remand to that court for action in accordance with this opinion.
Delivered: July 2, 2003
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