factual-conclusivity clause in Texas

2015See Lancon, 253 S.W.3d at 705 and at 707 (" jury is the sole judge of a witness's credibility, and the weight to be given the testimony" ). [35] It should be noted that this Court has decided that its review of a direct-appeal court's factual- sufficiency decision is limited by the factual-conclusivity clause to determining only whether the direct-appeal court properly applied " rules of law." See Roberts, 221 S.W.3d at 662-63 ; Bigby, 892 S.W.2d at 872 n. 3.

2015See Lancon, 253 S.W.3d at 705 and at 707 (“jury is the sole judge of a witness's credibility, and the weight to be given the testimony”). 35 It should be noted that this Court has decided that its review of a direct-appeal court's factual- sufficiency decision is limited by the factual-conclusivity clause to determining only whether the direct- appeal court properly applied “rules of law.” See Roberts, 221 S.W.3d at 662-63 ; Bigby, 892 S.W.2d at 872 n. 3.

2011One important fact is clear: the same five judges in Brooks , who there purported to substitute a legal-sufficiency standard for addressing questions of fact, previously acknowledged that their “review of a direct-appeal court’s factual-sufficiency decision is limited by the factual-conclusivity clause to determin ing only whether the direct-appeal court properly applied ‘rules of law’ ” and treating an appellant’s factual-sufficiency challenge as legal-sufficiency challenge would be “incorrect.” Id. at 663-65 (citing In Re King’s Estate, 244 S.W.2d at 661 ).

2011One important fact is clear: the same five judges in Brooks , who there purported to substitute a legal-sufficiency standard for addressing questions of fact, previously acknowledged that their “review of a direct-appeal court’s factual-sufficiency decision is limited by the factual-conclusivity clause to determin ing only whether the direct-appeal court properly applied ‘rules of law’ ” and treating an appellant’s factual-sufficiency challenge as legal-sufficiency challenge would be “incorrect.” Id. at 663-65 (citing In Re King’s Estate, 244 S.W.2d at 661 ).

2011This is true because a question of fact as described in the factual-conclusivity clause is a "legal term of art signifying `questions of weight and preponderance of evidence.'" Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997) (quoting Combs v. State, 643 S.W.2d 709, 715 (Tex.Crim.App.1982)).

2011The court of criminal appeals has specifically recognized that “the phrase ‘question of fact,’ ” as used in the factual-conclusivity clause, is “a legal term of art signifying ‘questions of weight and preponderance of the evidence.’ ” Cain, 958 S.W.2d at 408 .

2011Co., 91 Tex. 406 , 44 S.W. 69 (1898). *60 In regard to appellate challenges based on the factual insufficiency of the evidence, the factual-conclusivity clause provides in no uncertain terms that: [T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.

2011Co., 91 Tex. 406 , 44 S.W. 69 (1898). *60 In regard to appellate challenges based on the factual insufficiency of the evidence, the factual-conclusivity clause provides in no uncertain terms that: [T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.

2011See Roberts , 221 S.W.3d at 663 (relying on In re King’s Estate , 150 Tex. 662 , 244 S.W.2d 660 , 661–62 (1951); Pool v. Ford Motor Co. , 715 S.W.2d 629 , 634–35 (Tex. 1986)). [4] The factual-conclusivity clause allows the Court of Criminal Appeals to review an intermediate court’s factual-sufficiency decision insofar as necessary to determine whether the intermediate court “properly applied ‘rules of law.’” Roberts , 221 S.W.3d at 663 & n.3 (citing Choate v. San Antonio & A.P.

2010See Roberts, 221 S.W.3d at 663 (relying on In re King's Estate, 150 Tex. 662 , 244 S.W.2d 660, 661-62 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986)). [4] *627 The factual-conclusivity clause allows the Court of Criminal Appeals to review an intermediate court's factual-sufficiency decision insofar as necessary to determine whether the intermediate court "properly applied `rules of law.'" Roberts, 221 S.W.3d at 663 & n. 3 (citing Choate v. San Antonio & A.P.

2015See, e.g., Carmouche v. State, 10 S.W.3d 323, 331-33 (Tex.Cr.App.2000) (this Court overturned direct-appeal court's decision on " question of fact" regarding factual circumstances under which the police claimed that the defendant consented to be searched based on a videotape which contradicted the police version of the critical events).

2015See, e.g., Carmouche v. State, 10 S.W.3d 323, 331-33 (Tex.Cr.App.2000) (this Court overturned direct-appeal court's decision on “question of fact” regarding factual circumstances under which the police claimed that the defendant consented to be searched based on a videotape which contradicted the police version of the critical events).

2011As revealed in Ex parte Schuessler, the finality of any judgment of our higher courts based on an analysis later deemed inconsistent with the factual-conclusivity clause may be called into question as void ab initio. 846 S.W.2d at 853 . *69 In regard to the plurality and concurring opinions in Brooks , it is true that under the doctrine of stare decisis that once "the highest court of the State having jurisdiction " of a matter decides a "principle, rule or proposition of law," that court and all "other courts of lower rank " must accept the decision as "binding precedent." Swilley v. McCain,

2011As revealed in Ex parte Schuessler, the finality of any judgment of our higher courts based on an analysis later deemed inconsistent with the factual-conclusivity clause may be called into question as void ab initio. 846 S.W.2d at 853 .

2011This is true because a question of fact as described in the factual-conclusivity clause is a "legal term of art signifying `questions of weight and preponderance of evidence.'" Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997) (quoting Combs v. State, 643 S.W.2d 709, 715 (Tex.Crim.App.1982)).

2011This is true because a question of fact as described in the factual-conclusivity clause is a “legal term of art signifying ‘questions of weight and preponderance of evidence.’ ” Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997) (quoting Combs v. State, 643 S.W.2d 709, 715 (Tex.Crim.App.1982)).

2017Watson, 204 S.W.3d at 439 . 1 This Court's of the state's witnesses was objectively unreliable, it had review of a direct-appeal court's factual-sufficiency deci- "concluded that it was not unreasonable to distrust their sion is limited by the factual-conclusivity clause to de- eyewitness testimony given the circumstances surround- Page 8 253 S.W.3d 699 , *; 2008 Tex. Crim.

2008Watson , at 439.[ [1] ] This Court's review of a direct-appeal court's factual-sufficiency decision is limited by the factual-conclusivity clause to determining only whether the direct-appeal court properly applied `rules of law.'" Roberts v. State, 221 S.W.3d 659, 662-63 (Tex. Crim.App.2007).

2017Watson, 204 S.W.3d at 439 . 1 This Court's of the state's witnesses was objectively unreliable, it had review of a direct-appeal court's factual-sufficiency deci- "concluded that it was not unreasonable to distrust their sion is limited by the factual-conclusivity clause to de- eyewitness testimony given the circumstances surround- Page 8 253 S.W.3d 699 , *; 2008 Tex. Crim.

2017Watson, 204 S.W.3d at 439 . 1 This Court's of the state's witnesses was objectively unreliable, it had review of a direct-appeal court's factual-sufficiency deci- "concluded that it was not unreasonable to distrust their sion is limited by the factual-conclusivity clause to de- eyewitness testimony given the circumstances surround- Page 8 253 S.W.3d 699 , *; 2008 Tex. Crim.

2011Laster, 275 S.W.3d at 518-19 ; Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); Ex parte Schuessler, 846 S.W.2d 850 , 852 (Tex.Crim.App.1993); Meraz v. State, 785 S.W.2d 146, 153 (Tex.Crim.App. 1990); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex.1986); In re King's Estate, 150 Tex. 662 , 244 S.W.2d 660, 661-62 (1951).

2011Id.; Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997); Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex.Crim.App.1993); Meraz v. State, 785 S.W.2d 146, 153 (Tex.Crim.App.1990); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex.1986); In re King's Estate, 150 Tex. 662 , 244 S.W.2d 660, 661-62 (1951).

2011As noted by the dissenting judges, the majority, without at all considering and addressing the express language of the factual-conclusivity clause and article 44.25, "purports" to overrule Clewis, deciding that the authority to reverse criminal judgments and remand the cases on the basis of factual insufficiency, which "has been recognized from the beginning to be inherent in the appellate jurisdiction of first-tier appellate courts in Texas," "need not be `retained.'" Brooks, 323 S.W.3d at 926 (Price, J., dissenting).

2011As noted by the dissenting judges, the majority, without at all considering and addressing the express language of the factual-conclusivity clause and article 44.25 of the Texas Code of Criminal Procedure, “purports” to overrule Clewis , deciding that the authority to reverse criminal judgments and remand the cases on the basis of factual insufficien cy, which “has been recognized from the beginning to be inherent in the appellate jurisdiction of first-tier appellate courts in Texas,” “need not be ‘retained.’ ” Brooks, 323 S.W.3d at 926 (Price, J., dissenting).

2011As revealed in Ex parte Schuessler, the finality of any judgment of our higher courts based on an analysis later deemed inconsistent with the factual-conclusivity clause may be called into question as void ab initio. 846 S.W.2d at 853 . *69 In regard to the plurality and concurring opinions in Brooks , it is true that under the doctrine of stare decisis that once "the highest court of the State having jurisdiction " of a matter decides a "principle, rule or proposition of law," that court and all "other courts of lower rank " must accept the decision as "binding precedent." Swilley v. McCain,

2011In regard to the plurality and concurring opinions in Brooks , it is true that under the doctrine of stare decisis that once “the highest court of the State having jurisdiction ” of a matter decides a “principle, rule or proposition of law,” that court and all “other courts of lower rank ” must accept the decision as “binding precedent.” Sivilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964) (emphasis added).

2011In White , Presiding Judge Onion, writing for the court, stated, "This court has no jurisdiction to do what the [defendant] requests" because the factual-conclusivity clause precluded it from doing so. 591 S.W.2d at 855 (emphasis added).

2011In White , Presiding Judge Onion, writing for the court, stated, “This court has no jurisdiction to do what the [defendant] requests” because the factual-conclusivity clause precluded it from doing so. 591 S.W.2d at 855 (emphasis added).

2020App. 2010); Kiffe v. State, 361 S.W.3d 104, 109-110 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (rejecting a constitutional challenge to the single sufficiency standard in criminal cases under the factual-conclusivity clause and stating that, “[a]lthough an intermediate appellate court’s decision shall be conclusive on all questions of fact brought before them on appeal or error, the Texas Court of Criminal Appeals has authority to determine questions of law, including the standard of review Swisher v. State Page 2 that an intermediate appellate court must use in conducting factual review

2020App. 2010); Kiffe v. State, 361 S.W.3d 104, 109-110 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (rejecting a constitutional challenge to the single sufficiency standard in criminal cases under the factual-conclusivity clause and stating that, “[a]lthough an intermediate appellate court’s decision shall be conclusive on all questions of fact brought before them on appeal or error, the Texas Court of Criminal Appeals has authority to determine questions of law, including the standard of review that an intermediate appellate court must use in conducting factual review.” (internal citations o

2007Id .; see also Pool v. Ford Motor Co. , 715 S.W.2d 629, 634-35 (Tex. 1986) ( In Re King's Estate established that "the supreme court might take jurisdiction, notwithstanding the finality of judgments of the courts of civil appeals on fact questions, in order to determine if a correct standard has been applied by the intermediate courts"). (5) Even when a direct-appeal court reversed on factual-sufficiency grounds, it could make its factual-sufficiency decision conclusive upon the Texas Supreme Court with a "simple statement" that "it has considered all of the evidence and has concluded that th

2007Id,.; see also Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986) ( In Re King’s Estate established that “the supreme court might take jurisdiction, notwithstanding the finality of judgments of the courts of civil appeals on fact questions, in order to determine if a correct standard has been applied by the intermediate courts”). 5 Even when a direct-appeal court reversed on factual-sufficiency grounds, it could make its factual-sufficiency decision conclusive upon the Texas Supreme Court with a “simple statement” that “it has considered all of the evidence and has concluded that the fi

2007See also Dyson v. Olin Corp. , 692 S.W.2d 456, 457 (Tex. 1985) (Texas Supreme Court has no jurisdiction to review factual sufficiency of the evidence, but it does have jurisdiction to determine whether direct-appeal court used the correct rules of law in reaching its conclusion); Harmon v. Sohio Pipeline Co. , 623 S.W.2d 314, 314-15 (Tex. 1981) (same and holding that direct-appeal court misapplied res ipsa loquitur rule of law in finding evidence factually insufficient to support negligence finding). 4.

2007The factual-conclusivity clause in Article V, Section 6, provides that a direct-appeal court's decision "shall be conclusive on all *663 questions of fact brought before them on appeal or error.” 3 .See also Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985) (Texas Supreme Court has no jurisdiction to review factual sufficiency of the evidence, but it does have jurisdiction to determine whether direct-appeal court used the correct rules of law in reaching its conclusion); Harmon v. Sohio Pipeline Co., 623 S.W.2d 314, 314-15 (Tex.1981) (same and holding that direct-appeal court misapplied res

2007Justice Gonzalez, on the other hand, apparently disagreed with Justice Robertson on this point but cautioned about the misuse of these requirements by the Texas Supreme Court to second-guess a direct-appeal court's factual-sufficiency decision thereby circumventing the factual-conclusivity clause and the Texas Supreme Court's "limited authority to review a factual sufficiency holding." See Jaffe Aircraft Corp. v. Carr , 867 S.W.2d 27, 29-30 (Tex. 1993) (Gonzalez, J., concurring); Pool , 715 S.W.2d at 636 (Gonzalez, J., concurring). 7.

2007Justice Gonzalez, on the other hand, apparently disagreed with Justice Robertson on this point but cautioned about the misuse of these requirements by the Texas Supreme Court to second-guess a direct-appeal court’s factual-sufficiency decision thereby circumventing the factual-conclusivity clause and the Texas Supreme Court’s "limited authority to review a factual sufficiency holding.” See Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29-30 (Tex. 1993) (Gonzalez, J., concurring); Pool, 715 S.W.2d at 636 (Gonzalez, J., concurring). 7 .

2007See also Dyson v. Olin Corp. , 692 S.W.2d 456, 457 (Tex. 1985) (Texas Supreme Court has no jurisdiction to review factual sufficiency of the evidence, but it does have jurisdiction to determine whether direct-appeal court used the correct rules of law in reaching its conclusion); Harmon v. Sohio Pipeline Co. , 623 S.W.2d 314, 314-15 (Tex. 1981) (same and holding that direct-appeal court misapplied res ipsa loquitur rule of law in finding evidence factually insufficient to support negligence finding). 4.

2007The factual-conclusivity clause in Article V, Section 6, provides that a direct-appeal court's decision "shall be conclusive on all *663 questions of fact brought before them on appeal or error.” 3 .See also Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985) (Texas Supreme Court has no jurisdiction to review factual sufficiency of the evidence, but it does have jurisdiction to determine whether direct-appeal court used the correct rules of law in reaching its conclusion); Harmon v. Sohio Pipeline Co., 623 S.W.2d 314, 314-15 (Tex.1981) (same and holding that direct-appeal court misapplied res

2006We were correct to hold, however, that the factual conclusivity clause does not bar our review of a legal sufficiency claim in a petition for discretionary review. . 892 S.W.2d at 874-75 ("Clearly under either the statute [Article 44.25 of the Code of Criminal Procedure] or the constitution [i.e., factual review which is inherent in our constitutionally-conferred appellate jurisdiction] we are empowered to review a case both upon the law and the facts.

2006We were correct to hold, however, that the factual conclusivity clause does not bar our review of a legal sufficiency claim in a petition for discretionary review. [57] 892 S.W.2d at 874-75 ("Clearly under either the statute [Article 44.25 of the Code of Criminal Procedure] or the constitution [ i.e., factual review which is inherent in our constitutionally-conferred appellate jurisdiction] we are empowered to review a case both upon the law and the facts.

2011Laster, 275 S.W.3d at 518-19 ; Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); Ex parte Schuessler, 846 S.W.2d 850 , 852 (Tex.Crim.App.1993); Meraz v. State, 785 S.W.2d 146, 153 (Tex.Crim.App. 1990); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex.1986); In re King's Estate, 150 Tex. 662 , 244 S.W.2d 660, 661-62 (1951).

2011Laster, 275 S.W.3d at 518 .

2015Ervin, 331 S.W.3d at 59 (Jennings, J., concurring.).

2006The question before us in this case, therefore, is what standard of review we are required to apply[.]" Id. at 431. [124] Clewis, 922 S.W.2d. at 129 ("We hold that the proper standard of review for factual sufficiency of the elements of the offense is the one articulated by the Third Court of Appeals in Stone" ). [125] Id. at 133 n. 12 (quoting Clewis, 876 S.W.2d at 444 n. 2 (McGarry, C.J., concurring)). [126] Clewis, 922 S.W.2d at 133 . [127] The total number of Shepard's citations to Clewis listed on Lexis as of September 25, 2006, was 5,786, including eleven law review articles and nine tre

2006The question before us in this case, therefore, is what standard of review we are required to apply[.]" Id. at 431. [124] Clewis, 922 S.W.2d. at 129 ("We hold that the proper standard of review for factual sufficiency of the elements of the offense is the one articulated by the Third Court of Appeals in Stone" ). [125] Id. at 133 n. 12 (quoting Clewis, 876 S.W.2d at 444 n. 2 (McGarry, C.J., concurring)). [126] Clewis, 922 S.W.2d at 133 . [127] The total number of Shepard's citations to Clewis listed on Lexis as of September 25, 2006, was 5,786, including eleven law review articles and nine tre