I join the Court's opinion and Presiding Judge Keller's opinion. I write separately to emphasize that the Court of Appeals did not afford the jury's verdict the "due deference" required by our decision in Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App. 2000). There this Court explained that in applying the factual sufficiency standard of review an appellate court "is not empowered with the right to substitute its judgment for that of the fact finder's" on credibility and weight determinations. See Johnson, 23 S.W.3d at 12, and at 7 (factual sufficiency review should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony), and at 8 (factual sufficiency review "can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record"), and at 9 ("due deference" must be accorded the fact finder's determinations "particularly those determinations concerning the weight and credibility of the evidence"). The resolution of the material issues at appellant's trial involved the jury's credibility and weight determinations to which the Court of Appeals should have afforded "due deference."
Delivered: November 21, 2001