A jury convicted appellant of injury to a child and sentenced her to six years imprisonment. The jury further recommended that appellant be placed on probation for six years and fined $4,000. See Tex. Penal Code Ann. § 22.04(a)(3). On appeal, appellant raised a single point of error, arguing that the evidence was factually insufficient to support the jury's verdict. The Court of Appeals reversed and remanded the cause for a new trial. See Goodman v. State, 5 S.W.3d 891, 907 (Tex. App. - Houston [14^th Dist.] 1999). The State petitioned this Court to review the Court of Appeals' reversal of appellant's conviction. We vacate the Court of Appeals' decision and remand the case for further proceedings.

Under Article 5, Section 6 of the Texas Constitution, "the decision of [the courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error." Thus, this Court does not have jurisdiction to "pass upon the weight and preponderance of the evidence or 'unfind' a vital fact." Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997) (citations omitted). However, this Court does have jurisdiction to determine whether the courts of appeals applied the correct rule of law and correct standard of review in a particular case involving the factual sufficiency of the evidence. Id.

This Court has addressed the methodology and standards of review regarding factual sufficiency issues in several recent cases. ⁽¹⁾ Nonetheless, factual sufficiency questions continue to appear before us.

Perhaps the problem is that this Court has not always been crystal clear in explaining how the courts of appeals should analyze factual sufficiency questions in a criminal case. Justice Calvert sets forth the proper inquiry in his authoritative and succinct article "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 361 (1960). He notes that:

"Insufficient evidence" points may, and should, be sustained when the record discloses either of the following situations: (a) the evidence is factually insufficient to support a finding of a vital fact, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Id. at 366. Thus, evidence to support a criminal conviction may be factually insufficient in two distinct ways. In the first, "the evidence in support of the existence of a vital fact, considered as standing alone, is factually too weak to support it." Id. Consider, for example, a possession of cocaine case. If a baggie containing cocaine is found on the sidewalk, two feet from the seated defendant and with no one else in sight, these facts support an inference that the cocaine belongs to defendant. Yet these facts alone are too weak to support the factual conclusion that the defendant actually used or possessed the cocaine. ⁽²⁾ Courts determine "factual insufficiency" when (as in the preceding example) the only evidence presented on the particular element supports the inference that the fact is true, but that evidence is simply too weak by itself to support a rational finding.

The second type of factual insufficiency involves a balancing scale. Here, there is evidence on both sides of the question. Some evidence supports a positive inference, and some evidence supports a negative inference. For example, suppose a modern-day Cretan Liar ⁽³⁾ testifies: "I saw the defendant put the baggie of cocaine down on the sidewalk." Although the Cretan Liar has five prior perjury convictions, his testimony is nonetheless legally sufficient to prove that the defendant possessed the baggie. Direct evidence of "X" fact is always legally sufficient to support a finding of "X" fact. See Calvert at 363. The Cretan Liar's testimony, standing alone, is also factually sufficient to support the element of possession. If the jury believes him (and it is entitled to do so under either a legal or factual sufficiency review), then the Cretan Liar's testimony conclusively proves the point. ⁽⁴⁾ Now, suppose that the defendant calls a dozen boy scouts, who uniformly testify that they definitely saw the baggie lying on the sidewalk before the defendant came along and sat down. Now we have the Cretan Liar's testimony (which the jury was entitled to believe and actually did believe) set against the testimony of twelve boy scouts (whose testimony the jury was entitled to reject and whose testimony, for whatever reason, it did reject). Clearly, the jury's finding that the defendant possessed the baggie of cocaine is against the great weight and preponderance of the evidence. The Cretan Liar, with multiple perjury convictions, versus twelve boy scouts? ⁽⁵⁾ Given this state of the evidence, the jury's verdict is "clearly wrong" and "manifestly unjust." A reviewing court can only attribute the verdict to bias, irrationality, or some other peculiarity.

In this case, the court of appeals did not clearly articulate whether it decided that: 1) the State's evidence was too weak, by itself, to support the inference that appellant committed child abuse; or 2) the appellant's evidence was so strong, so overwhelming, so much more extensive than the State's evidence that it reaches the level of the twelve boy scouts and renders the jury's verdict so contrary to the great weight and preponderance of the evidence that it is manifestly unjust.

Rather, the court of appeals stated that it had five reasons for concluding that the evidence was factually insufficient:

• "First, there is no direct evidence appellant injured the complainant." 5 S.W.3d at 906. Similarly, there was no evidence of any prior abuse or any mechanism that the appellant purportedly used to inflict the child's injuries. Id.

• "Second, there is evidence that appellant did not injure the complainant." Id.

• "Third, appellant provided a history of how the complainant sustained various injuries in the days prior to her admittance to the hospital." Id.

• "Fourth, there is undisputed evidence that the complainant was outside appellant's presence during several time periods, most notably when appellant was at work." Id.

• "Fifth, the injuries could have been self-inflicted." Id.

The court of appeals then concluded: "These five reasons greatly outweigh any evidence in support of the verdict and, therefore, we conclude the instant conviction is manifestly unjust." Id. at 907. However, the court's conclusion that appellant's conviction is manifestly unjust does not seem to flow from the great weight and preponderance of any contrary evidence. Rather, it appears to flow from the existence of some contrary evidence. The court of appeals greatly relies upon appellant's testimony and the fact that she offered a plausible explanation for all of the child's injuries. But just as a fact finder in the hypothetical is not required to believe either the Cretan Liar or any one of the boy scouts, so the jury was not required to credit appellant's explanations, regardless of how reasonable they may be.

All of the five reasons the court of appeals lists appear to be simply an alternate theory of causation or explanation of the injuries. But it is a jury, not a reviewing court, that accepts or rejects reasonably equal competing theories of causation. This listing of alternate possibilities does not "state why the jury's finding is factually insufficient," nor does it explain how the jury's verdict is "manifestly unjust" or why the verdict "shocks the conscience" or "clearly demonstrates bias." See Cain, 958 S.W.2d at 407 (quoting Clewis, 922 S.W.2d at 135). Perhaps most importantly, this list does not "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Id. As this Court stated in Cain:

In its opinion, the court of appeals seems to be advancing its own hypothesis ... . In addition, much of the evidence presented in this case is subject to two equally reasonable interpretations, one pointing to Appellant's guilt and one pointing to Appellant's innocence. The court of appeals fails to elucidate exactly how the verdict was "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust," as required by Clewis.

958 S.W.2d at 410. How many boy scouts are there in this case and how strong, unequivocal, and persuasive is their testimony? How does that defensive contrary testimony operate to tip the balanced scale with "the great weight and preponderance" of the evidence? In precisely what manner is the State's evidence so deficient that it does not counterbalance the defensive evidence? The Court encounters the same difficulty in this case that we encountered in Cain in understanding the logical basis for the Court of Appeals' decision. ⁽⁶⁾

We therefore vacate the decision of the Court of Appeals and remand this case for reconsideration consistent with this opinion.

Delivered: November 21, 2001

Publish

1. These cases include: Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (announcing and adopting factual sufficiency review in criminal cases); Cain v. State, 958 S.W.2d at 405-10; Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).

2. See, e.g., White v. State, 890 S.W.2d 131, 139 (Tex. App. -- Texarkana 1994, pet. ref'd) (evidence factually insufficient when cocaine was discovered in a tackle box in a boat stored on a vacant lot adjacent defendant's home, even though defendant was standing on vacant lot when boat was searched and defendant had marijuana and drug paraphernalia in his home). Of course, this evidence, standing alone, might also be legally insufficient to support a criminal conviction. Could a reasonable trier of fact conclude, beyond a reasonable doubt, from this single shred of evidence-the baggie's proximity to the defendant - that the defendant possessed the cocaine? The problem here, of course, is defining the point at which legally insufficient evidence shades into factually insufficient evidence which shades into factually and legally sufficient evidence.

3. History credits Epimenides, a 6^th century B.C. philosopher, for introducing the semantical paradox known as the Cretan Liar. Epimenides, himself a Cretan, reputedly asserted, "All Cretans are liars." If all Cretans are indeed liars, as Epimenides says, then Epimenides himself must be lying when he states that all Cretans are liars.

4. Suppose, instead, that the Cretan Liar testifies that he is almost blind but he's "pretty sure" he saw the defendant put down a baggie, though it could have been the paper napkin which was also found close by on the sidewalk. Here the evidence is legally sufficient (the jury was entitled to believe the Cretan Liar and is entitled to credit the witness' opinion that it was a baggie he saw), and it is also factually sufficient, even though both the paper napkin and the baggie are found nearby and even though the witness is uncertain as to which it was. The evidence is in fair equipoise. A rational trier of fact could conclude that he simply cannot make any decision based upon the state of this evidence. Another rational trier of fact could conclude that the Cretan Liar's testimony is both believable and accurate, despite his poor eyesight. A third rational trier of fact could conclude that he does not believe the Cretan Liar or that, even if he did believe the witness, this equivocal testimony is not sufficient for the factfinder to conclude, beyond a reasonable doubt, that it was the baggie of cocaine rather than the paper napkin, that the defendant placed on the ground. Any one of those conclusions is rational based upon the state of the evidence. Any one of them should be upheld by a reviewing court.

5. Of course, the next practical issue is how many boy scouts does it take to make a verdict based on the testimony a multiple perjurer "clearly wrong" and "manifestly unjust"? At what point do the scales of justice tip so radically that the evidence turns from being factually sufficient to "against the great weight and preponderance"? Equipoise does not render the verdict against the great weight and preponderance; where there is one multiple perjurer versus one boy scout, the evidence is factually sufficient. Presumably, the scales do not tip enough when there are two boy scouts. But where along the path to twelve boy scouts do we find "manifest injustice"? At some point, the reviewing court necessarily exercises its subjective judgment. It is precisely for this reason that we require reviewing courts to thoroughly detail and explain their rationale for reversing a jury verdict on the grounds that the verdict is so against the great weight and preponderance of the entire body of evidence as to be manifestly unjust.

6. Judge Womack, in his dissent, suggests that we are simply reweighing the evidence and disagreeing with the court of appeals' conclusion in this case. No, that we cannot and should not do. We do not have the authority to tell the court of appeals what should be the result of their factual sufficiency review.. We do have the authority to request the court of appeals to use a particular method of legal analysis and to explain its conclusion in accord with that methodology.