In a sharply divided plurality opinion released this week, the Texas Court of Criminal Appeals overruled the factual sufficiency standard articulated in Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996), holding that the factual-sufficiency standard is “barely distinguishable” from the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard. Judge Hervey writes:
We now take the next small step in this progression and recognize that these two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both. We, therefore, overrule Clewis and decide that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.What is the new merged legal/factual sufficiency standard you ask? Well, it is simply the standard as laid out in Jackson - "a reviewing court is required to defer to a jury’s credibility and weight determinations." No longer is there a factual sufficiency standard wherein the appellate court must view the evidence in a neutral light.
Judge Cochran concurred in the result, but expressly agreed that the Clewis factual-sufficiency standard should be overruled:
[T]he Clewis factual-sufficiency review was a well-intentioned but ultimately unworkable effort to incorporate civil standards of review on elements of a crime that must be proven beyond a reasonable doubt.
In an unflinching dissent, Judge Price (joined with Judges Meyers, Johnson, and Holcomb) stated:
By dint of persistence, a plurality of the Court purports to overrule Clewis. The plurality frames the question as a policy choice, asserting that we granted discretionary review in order to determine whether “there is a need to retain” factual sufficiency review. But as our opinion less than four years ago in Watson, 204 S.W.3d 404 (Tex. Crim. App. 2006), demonstrated, the authority to reverse a conviction on the basis of factual insufficiency has been recognized from the beginning to be inherent in the appellate jurisdiction of first-tier appellate courts in Texas. We cannot simply decide it need not be “retained” any longer absent a change in the constitutional and statutory provisions that confer that jurisdiction—or else a change in our own long-standing construction of those provisions.
The dissent further points out that the "barely distinguishable" standard between the Clewis factual-sufficiency standard and the Jackson v. Virginia legal-sufficiency standard is that the former views the evidence in a "neutral" light, while the latter views the evidence in the light most favorable to the verdict.
Factual sufficiency review recognizes that there may be rare cases in which, though some jury might convict, and it would not be irrational for it to do so, most juries would almost certainly harbor a reasonable doubt given the tenuousness of the State’s evidence or the weight and apparent credibility and/or reliability of the exculpatory evidence. Under these circumstances, factual sufficiency review in Texas permits a first-tier appellate court to reverse a conviction and remand for a new trial, in the interest of justice, to grant the defendant a second chance to obtain a jury acquittal.
This plurality opinion, while purporting to clarify the appellate standards and streamline appellate review, is a terrible decision for the appellate defense bar. Judge Price's dissent says it all. Give it a read. It's short and interesting.