O P I N I O N
After a jury trial in Gonzales County, appellant, Jimmie Lee Johnson, was convicted of two counts of aggravated sexual assault. Johnson v. State, 978 S.W.2d 703 (Tex.App. - Corpus Christi 1998). The jury recommended that appellant pay a $10,000 fine and serve a term of life imprisonment, and judgment was rendered accordingly. On direct appeal to the Thirteenth Court of Appeals, appellant challenged the factual sufficiency of the evidence after asserting that the State failed to prove an essential element of the offense charged. Specifically, appellant argued that the State failed to show that appellant was the person responsible for carrying out the aggravated sexual assault. In a two-member majority opinion, the Court of Appeals held that, while the State proved a rape did occur, the evidence was factually insufficient to prove beyond a reasonable doubt that appellant was the guilty party, and a "manifest injustice" would occur if this conviction was allowed to stand.(1) Johnson v. State, 978 S.W.2d at 707.
The District Attorney and the State Prosecuting Attorney each filed petitions for
discretionary review. The two questions presented ask this Court to determine (1) whether the
Clewis factual sufficiency standard of review is still valid and, (2) if so, whether the Court of
Appeals properly applied the correct standard of review in this case. See Clewis v. State, 922
S.W.2d 126 (Tex.Crim.App. 1996). The Court of Criminal Appeals, while not permitted to
conduct a de novo factual sufficiency review, can be called upon to determine whether the Court
of Appeals applied the correct standard of review and considered all of the relevant evidence.
Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). This Court's only recourse in the
event of an improper application of the factual sufficiency review is to reverse the Court of
Appeals decision and remand, with instructions, for the appropriate review. Ibid.
The Relevant Facts
The following represents, unless indicated otherwise, the uncontradicted facts as to what occurred on or about November 16, 1992. After working the 3:00 p.m. to 11:00 p.m. shift at Gonzales Memorial Hospital, the victim of this assault, K__C__, drove into the parking lot outside her apartment. Before she could turn off the car's engine, a man dressed entirely in black and wearing a ski mask and gloves, opened her car door, forced his way into the back seat, and directed her to drive from the parking lot. Believing that her assailant was armed and potentially violent, K__ C__ complied, and she was directed to a local community center outside the Gonzales city limits. Once there, the victim was blindfolded, her hands and ankles were bound, and she was forced into the passenger's seat. Her assailant began driving and proceeded to an even more remote location in the county.(2) K__ C__ was then untied, undressed, and raped. During the assault, the assailant ordered K__ C__ to her knees and demanded oral sex. At this point, he removed his mask and left it off for the duration of the crime. Although the headlights to the car were left on, the assailant never stood directly in front of the lights, so K__ C__ never got a lengthy, unobstructed view of his face. She believed at one point, however, that she was able to briefly glimpse her attacker's face, but could still only provide police with scant details of his overall appearance. She described him as an uncircumcised(3) African-American, standing approximately five feet, nine inches tall with a medium build and a flat stomach.
After the assault, K__ C__ was driven back to Gonzales but by a different route. She was dropped off at a hotel close to her home, and the police were notified. Investigators discovered later that the victim's car had been returned to her apartment's parking lot. It was impounded and examined for possible evidence.
Investigators began tracking down possible suspects from the area. K__ C__ looked through several photo line-ups but was unable to positively identify the perpetrator. At one point, however, she was shown a line-up that contained appellant's picture and, while she did not positively identify appellant, she told the sheriff that the eyes of the man in that picture were "similar" to the eyes of the man who had raped her. Additionally, shortly after the attack, K__ C__ was driven to Austin to describe her assailant to a sketch artist for the Texas Department Public Safety. This collaboration produced a composite sketch that, in the victim's opinion, bore a resemblance to appellant's face. However, a defense witness who had known appellant for most of his life stated that, in her opinion, the sketch did not bear a reasonable likeness.
Appellant's arrest for this crime did not occur until August 31, 1994, almost two years after the attack. A month after his arrest, appellant escaped from the Gonzales County Jail. He remained at large for two months before being apprehended near Dallas. The State used evidence of appellant's escape to help establish his guilt in this crime. See Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App. 1982) (evidence of escape from custody or flight to avoid arrest can be admissible on the issue of guilt).
Due to the circumstances of the abduction and the sequence of events from that night, the Gonzales County Sheriff hypothesized it was likely that the individual responsible for the crime was intimately familiar with the areas where the abduction occurred and where the rape took place. Prosecutors established that appellant lived within a half-mile of the victim's apartment and determined that he had spent at least part of his boyhood years in the remote and sparsely populated area where the assault occurred.
The State also relied upon DNA evidence taken from the victim's dress to link appellant to the assault. The State's expert determined that appellant was within the 8 1/2% of the black male population that could have contributed the DNA found in the sperm extracted from the dress.(4) In rebuttal, however, a defense expert testified that based on his calculations, appellant is within the 26% of the black male population that could have produced the sperm.
The State also relied on an in-court identification by the victim to establish that appellant
was her attacker. During direct examination, the victim was asked to describe her attacker, and
admitted, because of the conditions and her state of mind, her identification could not be
PROSECUTOR: . . . can you describe for this jury the man that did this to you? You
know he was a black man?
WITNESS: He was a black man.
PROSECUTOR: Do you have any idea how tall he was?
WITNESS: Like I said, maybe like 5'9", something like that. He is black. He has a flat - -
his tummy is flat and I could tell that he isn't circumcised.
PROSECUTOR: You saw his face briefly when you were out there?
WITNESS: I believe I saw his face.
COURT REPORTER: I'm sorry.
WITNESS: I believe that I saw his face.
PROSECUTOR: K__ C__, have you had an opportunity to look at this defendant. . . ?
WITNESS: Pardon me?
PROSECUTOR: Have you had a chance to look at this defendant. . . ?
WITNESS: Yes, sir.
PROSECUTOR: Do you believe or do you know whether or not that is the man that
sexually assaulted you in November of 1992?
WITNESS: I cannot tell a hundred percent that it is him, but I am positive.
PROSECUTOR: I'm sorry?
WITNESS: I'm positive that it is him.
PROSECUTOR: But you are not a hundred percent positive?
WITNESS: No, sir.
PROSECUTOR: Why can't you be a hundred percent positive?
WITNESS: It was dark. I was blindfolded. I was so scared. He had a ski mask on most
of the time. I didn't take a look at him very good. I was just so scared. I don't think I
would have a chance to identify him. I thought I was going to die.
During subsequent cross-examination by defense counsel concerning uncertainty about the shade of her assailant's skin, the victim continued:
WITNESS: Like I said before, I cannot tell you exactly a hundred percent that it is
[appellant], but something in his eyes.
DEFENSE COUNSEL: Something about [appellant's] eyes?
WITNESS: Yes, ma'am.
DEFENSE COUNSEL: Is it possible. . . that you had seen a picture of [appellant] before?
WITNESS: I believe that I did.
DEFENSE COUNSEL: And when was that?
WITNESS: When I saw lots of pictures, many different times after that. I cannot tell
when that I saw his picture.
DEFENSE COUNSEL: Do you know who it was that showed it to you?
WITNESS: Investigator Reyna showed them to me; the Sheriff at least twice.
DEFENSE COUNSEL: Did you ever look at his picture when Investigator Reyna showed
it to you and say, "This is the man"?
WITNESS: They never told me who - - which one.
DEFENSE COUNSEL: I am talking about did you ever say, "This is the man," to
DEFENSE COUNSEL: And did you ever tell the Sheriff, "This is the man"?
The defense, aside from disputing the State's DNA evidence, called a handful of other witnesses. In an attempt to discredit the victim's in-court identification of appellant, one defense witness told of a time the victim described her assailant as being tall, having a slender build, very dark skin, and long, greasy hair. This is a description contrary to her previous accounts. An expert on hair analysis testified that three foreign hairs recovered from the victim could not be matched with sample hairs taken from appellant. Another witness testified that while appellant's hair style never matched the victim's description of her attacker, the brother of appellant did wear a hairstyle similar to the description she provided.(5)
The Thirteenth Court of Appeals reversed appellant's conviction on the grounds of factual insufficiency. The Court of Appeals focused on the victim's less-than-certain identification of appellant as the primary reason why the conviction could not stand, saying "[t]he in-court identification was not clear and unequivocal." The additional evidence used to incriminate appellant -- the DNA match, appellant's familiarity with the area where the assault occurred, the fact he lived relatively close to the victim's home, the fact he was uncircumcised, and the fact appellant escaped from jail while awaiting trial, could, in the opinion of the court, "all apply to many people other than him."(6)
We granted the State's petition for discretionary review to (1) ascertain the continued
validity of an appellate court's authority to conduct a factual sufficiency review and (2) determine
if that standard of review was properly applied in the case at bar. Specifically, the State
Prosecuting Attorney's office presents us with the arguments that the present factual sufficiency
standard of review has proven "unworkable," and, especially in light of our decision in Cain v.
State, 958 S.W.2d 404, there exist only negligible differences between a legal and factual
sufficiency review. We disagree with the proposition that the factual sufficiency review is
"unworkable," as it is generally applied, and we also disagree that the Court of Appeals conducted
an improper factual sufficiency review.
The Factual Sufficiency Standard of Review
As this Court stated in Clewis, and has continued to state in its progeny, the Courts of Appeals are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of an offense. Cain v. State, 958 S.W.2d at 408; Clewis v. State, 922 S.W.2d at 129-30. In determining the factual sufficiency of the elements of the offense, the reviewing court "views all the evidence without the prism of 'in the light most favorable to the prosecution,' [i.e., views the evidence in a neutral light,] and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d at 129. The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 118 S.Ct. 100 (1997). "In conducting its factual sufficiency review, an appellate court reviews the fact finder's weighing of the evidence and is authorized to disagree with the fact finder's determination." Clewis v. State, 922 S.W.2d at 133. This review, however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d at 648.
To ensure that this proper standard of review has been followed and to ensure that a reviewing court is not merely usurping the role of the fact finder, certain procedural requisites have been erected. Clewis v. State, 922 S.W.2d at 135-36; Meraz v. State, 785 S.W.2d 146, 154 (Tex.Crim.App. 1990); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). When reversing on insufficiency grounds, the appellate court should detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient. The opinion should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Clewis v. State, 922 S.W.2d at 135.
This Court continues to recognize the constitutionally mandated authority vested in appellate courts to conduct a factual sufficiency review of the elements of an offense.(7) See Cain v. State, 958 S.W.2d at 408; Clewis v. State, 922 S.W.2d at 131-32; Tex. Const. art. V, 6. It is also now beyond dispute that determining the legal and factual sufficiency of evidence requires the implementation of separate and distinct standards. A legal sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995), cert. denied, 116 S.Ct. 717 (1996). In contrast, a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Clewis v. State, 922 S.W.2d at 134. In conducting a factual sufficiency analysis, the reviewing court "does not indulge inferences or confine its view to evidence favoring one side of the case. Rather it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . ." William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 (1991). The United States Supreme Court, too, has recognized that, while differences between the two standards may become difficult to discern, members of the judiciary (trial and appellate) have sufficiently demonstrated the ability to distinguish legally insufficient evidence from evidence that rationally supports a verdict. Tibbs v. Florida, 102 S.Ct. 2219-20.(8)
The assertions of the State Prosecuting Attorney's office notwithstanding, we recognize that differences do exist between a factual sufficiency review of the evidence and a legal sufficiency review. After extensive investigation into hundreds of opinions that have conducted factual sufficiency reviews, there exist no indications the standard has become "unworkable," especially to the degree this Court would feel justified in overruling existing precedent.
To support its argument that no difference exists between criminal legal and factual sufficiency review, the State Prosecuting Attorney's (S.P.A.) office relied on its interpretation of our decision in Cain v. State, 958 S.W.2d 404. Specifically, the S.P.A. argues Cain mandates absolute deference to the fact finder. If, as the State contends, a reviewing court was to accord absolute deference to the fact finder's determinations, then a factual sufficiency determination would, no doubt, become the functional equivalent of a legal sufficiency review. Absolute deference is not the standard, however, and Cain can not and should not be read to require as much. Cain was a case heavily dependent upon eyewitness testimony, testimony that oftentimes was in direct conflict. Therefore, the evaluation of eyewitness credibility and demeanor was crucial in determining the appropriate verdict, and, as Cain recognized, this was a job best suited to the fact finder.
The degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record. A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. Such an approach occasionally permits some credibility assessment but usually requires deference to the jury's conclusion based on matters beyond the scope of the appellate court's legitimate concern.(9) See George E. Dix & Robert O. Dawson, 42 Texas Practice - Criminal Practice and Procedure 36.19 (Supp.1999). Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered. This evidence is then accorded the appropriate consideration by the reviewing court in the context of its overall analysis of the relevant evidence. The Court of Appeals in Cain was unable to rely on the trial record and determine, with any degree of certainty, the believability or veracity of the witnesses. In the case we now consider, the record revealed no reason for an appellate court to question the veracity or honesty of the victim in this case. However, what the record did reveal, and what the Court of Appeals did recognize, was that the accuracy of the victim's identification of appellant was questionable because of the adverse conditions that existed during her brief and obstructed view of the assailant.
In conclusion, the reviewing court must always remain cognizant of the fact finder's role
and unique position, a position that the reviewing court is unable to occupy. The authority
granted in Clewis to disagree with the fact finder's determination is appropriate only when the
record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.
Otherwise, due deference must be accorded the fact finder's determinations, particularly those
determinations concerning the weight and credibility of the evidence. Jones v. State, 944 S.W.2d
Having addressed the arguments of the State Prosecuting Attorney, we now determine whether the Court of Appeals applied the correct standard in its factual sufficiency review of the elements in this case. As a corollary to this matter, it is necessary to first consider the scope of the Clewis factual sufficiency review.
In deciding Clewis and its accompanying standard of review, this Court adopted the Third Court of Appeals' analysis in Stone v. State, 823 S.W.2d 375 (Tex.App. - Austin 1992, pet. ref'd, untimely filed). The court in Stone had applied the civil factual sufficiency standard of review to criminal cases, and we agreed this was the proper analysis, thus distinguishing it from the legal sufficiency standard enunciated in Jackson v. Virginia, 99 S.Ct. 2781. What is unclear, however, is whether the Clewis opinion adopted the civil factual sufficiency standard in toto or only in part.
Historically, courts and academicians have recognized that the civil factual sufficiency standard of review consists of two separate elements. In civil matters, the Courts of Appeals are empowered to consider and weigh all the evidence in the case and set aside the verdict and remand the cause for a new trial if it concludes that (1) the evidence is insufficient or if (2) the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the record contains some evidence of probative force in support of the verdict. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In Re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). When reversing for factual insufficiency the Court of Appeals must detail all the evidence relevant to the issue and clearly state why the jury's finding is either factually insufficient or is so against the great weight and preponderance of the evidence that it is manifestly unjust. Maritime Overseas Corp. V. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert. denied, 119 S.Ct. 541 (1999); Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex. 1994).
Legal scholars also recognize that "factual sufficiency points of error are designated as 'insufficient evidence' points or 'great weight and preponderance of evidence' points. . . depending on whether the complaining party had the burden of proof. Although both points are classified generally as 'insufficiency evidence' points, they are distinct."(10) W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045, 1137 (1993) (emphasis added). "If a party is attacking the factual sufficiency of an adverse finding on an issue to which she did not have the burden of proof, she must demonstrate that there is insufficient evidence to support the adverse finding. In reviewing an insufficiency of the evidence challenge, the court of appeals must first consider, weigh, and examine all of the evidence that supports and that is contrary to the jury's determination. Having done so, the court should set aside the verdict only if the evidence standing alone is 'so weak' as to be clearly wrong and manifestly unjust." Id. at 1138. Alternatively, a party attacking a jury finding concerning an issue upon which he had the burden of proof must demonstrate that the adverse finding is actually against, i.e., outweighed by, the great weight and preponderance of the available evidence. Ibid. See also William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 (1991) ("[t]he preferred terminology has the proponent claim that an unfavorable [negative] finding should be set aside because it is 'contrary to the great weight and preponderance of the evidence,' and has the opponent claim that an unfavorable [affirmative] finding was based on insufficient evidence.").
While the civil factual sufficiency review encompasses insufficient evidence claims and great weight and preponderance claims (albeit now in an amalgamated analysis), it has been unclear whether this Court in Clewis adopted the "insufficient evidence" prong of the civil factual sufficiency review. As Clewis reads in its literal sense, a point which at least one Court of Appeals decision has recognized,(11) this Court explicitly addressed only the second element of the civil factual sufficiency standard, i.e., the great weight and preponderance of the evidence standard. This is the standard properly utilized when an appellant, for example, had the burden of proving his affirmative defense by a preponderance of the evidence, and on appeal he hopes to demonstrate that the state of the evidence preponderates greatly against the jury's finding. See Ex Parte Schuessler, 846 S.W.2d 850 (Tex.Crim.App. 1993); Meraz v. State, 785 S.W.2d at 146. But is only the great weight and preponderance standard to be applied when an appellant contests the factual sufficiency of an issue in which the State possessed the burden of proof ?
The Court of Appeals in the case at bar decided that the State presented insufficient evidence to satisfy the identity element of the offense and reversed appellant's conviction. Johnson v. State, 978 S.W.2d at 707 (the evidence is not factually sufficient to prove beyond a reasonable doubt that [appellant] is the guilty party). In other words, in deciding that the evidence indicating appellant was the perpetrator was insufficient so that it could not support the conviction, the Court of Appeals applied the half of the factual sufficiency formulation that this Court did not specifically address in Clewis.(12) We conclude the Court of Appeals was correct in this respect, and the appropriate scope of the Clewis criminal factual sufficiency review does, in fact, encompass both formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Because the State always carries the burden of proof to establish the elements of a criminal offense at trial, an appellant's points of error challenging the sufficiency of the evidence used to establish the elements of the charged offense could claim that the evidence used to establish the adverse finding was so weak as to be factually insufficient. This is the most equitable approach, especially given the fact criminal defendants are not under any obligation to present evidence on their behalf and usually rely, instead, on forcing the State to prove its case beyond a reasonable doubt.(13) Alternatively, in the event a defendant does muster contrary evidence, this standard of review allows him, if he so chooses, to present the argument on appeal that his evidence greatly outweighed the State's evidence to the extent that the contrary finding is clearly wrong and manifestly unjust. We hold, therefore, that our opinion in Clewis is to be read as adopting the complete civil factual sufficiency formulation. Borrowing in part from Justice Vance's concurring opinion in Mata v. State, 939 S.W.2d 719, 729 (Tex.App. - Waco 1997, no pet.), the complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Adoption of this complete standard allows us to remain true to one of the stated goals of Clewis, harmonization, when appropriate, of civil and criminal jurisprudence, and it recognizes the State's burden at a criminal trial is proof beyond a reasonable doubt.
Having decided that the Court of Appeals correctly incorporated the true scope of a criminal factual sufficiency review of the elements of an offense, we must determine whether its review in the case at bar was properly performed. Clewis directs a reviewing court to presume that the evidence supporting the jury's verdict was legally sufficient. Clewis v. State, 922 S.W.2d at 134. Though reasonable minds could differ whether the evidence truly is insufficient to warrant reversal of the conviction, this case does seem to present a situation in which there is evidence capable of satisfying any legal sufficiency challenge; i.e., viewed in a light favorable to the verdict, the DNA evidence, the victim's in-court identification of appellant, and appellant's intimate familiarity with the locations of the abduction and assault, all satisfy the legal sufficiency standard of review. However, in the context of a factual sufficiency review, the evidence, considered as a whole, may arguably not rise to the level of satisfying the State's burden of establishing beyond a reasonable doubt that appellant was the perpetrator. To make this determination, a complete and detailed examination of all the relevant evidence is required. If the reviewing court determines that a manifest injustice has occurred, and it would, therefore, be improper to defer to the fact finder's decision, then the reviewing court must provide a clearly detailed explanation of that determination that takes all of the relevant evidence into consideration. Cain v. State, 958 S.W.2d at 407. This high degree of specificity acts as a check upon the reviewing court and prevents it from substituting its judgment for that of the jury. Clewis v. State, 922 S.W.2d at 135. This Court is mindful of the fact that, just as a Court of Appeals is not empowered with the right to substitute its judgment for that of the fact finder's, the Court of Criminal Appeals shall not substitute its judgment for that of the Court of Appeals.(14) Regardless of whether we agree with the result, this Court is called upon to determine only whether the Court of Appeals correctly applied the factual sufficiency standard of review and properly considered all of the relevant evidence. Cain v. State, 958 S.W.2d at 408.
The Court of Appeals' opinion in this matter detailed the relevant evidence and
determined the accuracy of the victim's in-court identification could not shoulder sufficient
reliability to establish beyond a reasonable doubt that appellant carried out the assault. We have
reviewed the Court of Appeals' analysis and can find no fault in its application of the factual
sufficiency review and affirm its decision to reverse and remand the case for further proceedings.
DELIVERED: FEBRUARY 9, 2000
1. The third member of the panel dissented on this point by writing that, although this case presented a "close call," after appropriate consideration of all the available evidence and after providing the appropriate deference to the jury's findings, "the evidence was not so overwhelming such that the jury's verdict. . . was 'manifestly unjust.'"
2. It took about a week before the Gonzales County Sheriff was able to determine the exact location where this assault took place, and over the next few months investigators were able to discover and recover evidence from the site (blood stains, victim's property, etc.).
3. A jail guard who had helped conduct a strip search of appellant testified that appellant was uncircumcised.
4. In other words, approximately one out of twelve people in the black population would have the particular genetic type extracted from the DNA sample.
5. Police looked into the possible involvement of appellant's brother in the assault but eliminated him as a possible suspect.
6. We are uncertain how appellant's escape from jail could be considered applicable to another individual's guilt.
7. This includes the authority of the Court of Criminal Appeals to conduct a factual sufficiency review of those cases brought to it upon direct appeal, i.e., capital cases. See Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App. 1997); Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996).
8. The United States Supreme Court and the vast majority of courts across the nation apply different terms than Texas courts when it comes to considering the sufficiency of the evidence. Elsewhere, the equivalent of determining legal sufficiency is often referred to as examining the "sufficiency of the evidence," and the companion term to factual sufficiency is referenced as reviewing the "weight of the evidence." However, there appears to be no substantive differences between these terms, and this Court has treated them interchangeably. See Clewis v. State, 922 S.W.2d at 136; Meraz v. State, 785 S.W.2d 146, 156 (Tex.Crim.App. 1990).
9. This principle of appropriate jury deference is a concept understood and adhered to in many jurisdictions, including those advocating a factual sufficiency, or weight of the evidence, review. "Credibility determinations are properly left to the fact finder, as it is that entity which has the opportunity to examine those tell-tale signs of credibility - such as the physical appearance, demeanor, and cadence of speech of the witness - which are unavailable to an appellate court on the face of a cold record." Commonwealth v. Williams, 720 A.2d 679, 684 (Pa. 1998). Absent exceptional circumstances, issues of witness credibility are for the jury, and the reviewing court may not substitute its view of the credibility for the constitutionally guaranteed jury determination. People v. Lemmon, 576 N.W.2d 129, 137 (Mich. 1998). Professors Wright and Miller, writing in reference to federal jurisprudence, express the view that, although a reviewing court does not sit to approve miscarriages of justice, it should have a decent respect for the collective wisdom of the jury and accept the verdict in most cases. C. Wright and A. Miller, 11 Federal Practice and Procedure 2806 at 49 (1973).
10. Civil courts, by their own admission, often use these terms identifying the two elements interchangeably and claim the distinction is merely semantical with no substantive differences. See Stone v. State, 823 S.W.2d 375, 380-81 (Tex.App. - Austin 1992, pet. ref'd, untimely filed). However, at least two legal scholars feel this failure to make a distinction can cause confusion. William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 (1991). And in the criminal context, with the accompanying beyond a reasonable doubt burden of proof, there may truly be a difference of substance as recognized by at least one jurist. Mata v. State, 939 S.W.2d 719, 729 (Tex.App - Waco 1997) (Vance, J., concurring) ("Even if the difference is semantical in civil cases, my view is that the difference is substantive in the criminal context because of the State's greater burden of proof at trial.").
11. Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App. - Dallas 1996, no pet.) (in adopting the civil standard of review to criminal cases. . . the Court of Criminal Appeals focused exclusively on the second prong).
12. Research into those Courts of Appeals cases applying the factual sufficiency standard indicates, despite the arguably restricted language of Clewis, that many analyses have taken both formulations of the civil factual sufficiency standard into account. The Fifth Court of Appeals in Scott v. State, 934 S.W.2d 396 (Tex.App. - Dallas 1996, no pet.), conducted its review under both elements of the civil factual sufficiency review, but recognized that this Court only discussed the "second prong," and it has continued to apply the full civil factual sufficiency standard in subsequent cases. See Cardenas v. State, 971 S.W.2d 645, 649 (Tex.App. - Dallas 1998, pet. ref'd); Johnson v. State, 959 S.W.2d 284, 289 (Tex.App. - Dallas 1997, pet. ref'd). Other Courts of Appeals have proceeded in a similar fashion by holding that an appellant's claim must fail because adequate evidence was, in fact, presented by the State to sufficiently prove an element of the offense charged. Gowans v. State, 995 S.W.2d 787 (Tex.App. - Hous. (1st Dist.) 1999. no pet. h.) (the record contains sufficient evidence that appellant was intoxicated at the time of the accident); Thornton v. State, 994 S.W.2d 845 (Tex.App. - Fort Worth 1999, no pet. h.) (the evidence supporting the judgment was not so weak as to be manifestly unjust or wrong); Loudermilk v. State, 993 S.W.2d 382 (Tex.App. - Eastland 1999, no pet. h.) (testimony that vehicle received extensive damage and that appellant left the scene of the accident without giving the information required was both legally and factually sufficient to support the jury's verdict). See also Paez v. State, 995 S.W.2d 163, 166-67 (Tex.App. - San Antonio 1999, no pet. h.).
13. Appellate courts must be persistently mindful that this review differs from a legal sufficiency determination in that while conducting its factual sufficiency review the court must consider all of the evidence in a neutral light favoring neither party.
14. True to Judge Meyers' pronouncement in Clewis that reversals based on factual sufficiency reviews should be "most uncommon," Clewis v. State, 922 S.W.2d at 151 (Meyers, J. concurring), this is one of the rare opportunities this Court has had to directly consider a Court of Appeals' decision that evidence was factually insufficient. We are confident that Judge Meyers' prediction remains firm, and this opinion will not alter to any noticeable degree the amount of reversals of criminal convictions obtained after a factual sufficiency review.