evidentiary sufficiency standard in Texas

2023If an appellate court finds “the evidence insufficient to support an appellant’s conviction for a greater-inclusive offense,” the court must consider the following two questions 5 when “deciding whether to reform the judgment to reflect a conviction for a lesser-included offense”: “1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense a

2020The trial court overruled both objections and appellant has not challenged those decisions in this appeal. 11 necessarily found every element necessary to convict the appellant for the lesser- included offense; and (2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense?” Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim.

2026To further amplify, the Court of Criminal Appeals noted that an evidentiary- sufficiency analysis turns on whether there is an immaterial or a material variance between a charging instrument’s allegations and the proof: “Immaterial variances do not affect the validity of a criminal conviction [because] we have held that a hypothetically correct jury charge [by which the efficiency of the evidence is tested] 4 need not incorporate allegations that would give rise to only immaterial variances.” Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim.

2026Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim.

2019See Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim.

2016See Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim.

2014The evidentiary sufficiency standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319 .

2013See 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (holding that the evidentiary sufficiency test of Jackson v. Virginia, 443 U.S. 307 , 3 While appellant challenges the sufficiency of the evidence of whether he knowingly and intentionally violated the terms of the divorce decree, the offense of interference with child custody requires proof only that appellant knowingly violated the terms of the divorce decree.

2015Id. 7 There are two types of variances in an evidentiary-sufficiency analysis: material variances and immaterial variances.

2011See Malik, 953 S.W.2d, at 238 n. 3 ("[D]ue process prevents an appellate court from affirming a conviction based upon legal and factual grounds that were not submitted to the jury.”); Wooley v. State, 273 S.W.3d 260, 268 n. 13 (Tex.Cr.App.2008) ("This due process rule is not, and should not be confused with, an evidentiary sufficiency rule.”).

2013See 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (holding that the evidentiary sufficiency test of Jackson v. Virginia, 443 U.S. 307 , 3 While appellant challenges the sufficiency of the evidence of whether he knowingly and intentionally violated the terms of the divorce decree, the offense of interference with child custody requires proof only that appellant knowingly violated the terms of the divorce decree.

2011Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176 , 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency. 13 Jackson v. Virginia, 443 U.S. 307 , 335 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). 14 443 U.S. at 319 ; Brooks, 323 S.W.3d at 912 .

2011Grotti v. State, 273 S.W.3d 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006).

2011Grotti v. State, 273 S.W.3d 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006).

2015In assessing the legal sufficiency of the evidence under Jackson v. Virginia, a reviewing court "consider[ s] all of the evidence in the light most favorable to the verdict and determine[s] whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

2015In assessing the legal sufficiency of the evidence under Jackson v. Virginia, a reviewing court "consider[s] all of the evidence in the light most favorable to the verdict and determine[s] whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 4 App. 2007 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S. Ct. 2781, 2788-89 , 61 L.

2011Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176 , 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency. 17 The previously-applied factual sufficiency standard considers whether the evidence supporting guilt, though legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury's verdict is against the gr

2011Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176, 177 n. 3 (Tex.Crim.App.1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency. 4 .According to Tex. Health & Safety Code Ann. § 481.134 (a)(5) (West 2010), a school means a private or public elementary or secondary school.

2024See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim.

2024See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim.

2010See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). [3]Jackson v. Virginia, 443 U.S. 307 , 33 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). [4]While we are not bound by a plurality decision, Pearson v. State, 994 S.W.2d 176 , 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency. [5]Citation to provisions of the Texas Penal Code throughout the remainder of this opinion will be simply as "section ____" or "§ ____."

2010See Chambers v. State , 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). [3] Jackson v. Virginia, 443 U.S. 307 , 33 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). [4] While we are not bound by a plurality decision, Pearson v. State, 994 S.W.2d 176 , 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency. [5] Citation to provisions of the Texas Penal Code throughout the remainder of this opinion will be simply as "section ____" or "§ ____."

2008See Santellan, 271 F.3d at 191-97 (separately addressing the applicant's evidentiary sufficiency claim that the evidence was insufficient to support any of the theories of attempted kidnapping and the applicant's due-process claim that this Court should not have "affirmed [the applicant's] capital murder conviction on a factual theory different from the theory principally advocated by the State at trial").

2008See Santellan, 271 F.3d at 191-97 (separately addressing the applicant’s evidentiary sufficiency claim that the evidence was insufficient to support any of the theories of attempted kidnapping and the applicant’s due-process claim that this Court should not have “affirmed [the applicant's] capital murder conviction on a factual theory different from the theory principally advocated by the State at trial”).

2019See State v. Zalman, 400 S.W.3d 590, 594 (Tex. Crim.

2018State v. Zalman, 400 S.W.3d 590, 594 (Tex. Crim.

2017Perez, 2014 WL 2191995 , at *3 (citing Johnson, 423 S.W.3d at 389–90).

2016See Perez v. State, No. 07-12-00451-CR, 2014 WL 2191995 , at *3 (Tex. App.—Amarillo May 23, 2014, pet. ref’d) (mem. op., not designated for publication) (noting that because the time payment fee is a legislatively mandated court cost, it is not subject to an evidentiary sufficiency challenge) (citing Johnson v. State, 423 S.W.3d 385 , 389–390 (Tex. Crim.

2023App. 2014); see Rabb v. State, 483 S.W.3d 16, 21 (Tex. Crim.

2018App. 2014); see Rabb v. State, 483 S.W.3d 16 , 20–21 (Tex. Crim.

2021See Lindsey v. Lindsey, 965 S.W.2d 589, 591-92 (Tex. App.—El Paso 1998, no pet.).

2021See Lindsey, 965 S.W.2d at 591-92 ; Jenkins, 16 S.W.3d at 477 .

2016See id. at 924 (citing Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim.

2015However, since Jackson was decided, the pertinent inquiry in an evidentiary-sufficiency analysis remains the same: whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 2 Hacker v. State, 389 S.W.3d 860, 873 (Tex. Crim.

2015Jackson v. Virginia, 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim.

2015Jackson v. Virginia, 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim.

2011Tibbs , 457 U.S. at 38 n.11 (quoting United States v. Lincoln , 630 F.2d 1313, 1316 (8th Cir. 1980).

2010Tibbs, 457 U.S. at 38 n. 11, 102 S.Ct. 2211 (quoting United States v. Lincoln, 630 F.2d 1313, 1316 (8th Cir. 1980).

2010Finding that “there is little distinction between a scent lineup and a situation where a dog is required to track an individual’s scent over an area traversed by multiple persons,” the court concluded that the use of scent lineups is a “legitimate field of expertise.” Id.; see Winfrey v. State, 291 S.W.3d 68, 71-74 (Tex. App.–Eastland 2009, pet. granted) (considering evidence of Deputy Pikett’s scent lineups in an evidentiary sufficiency analysis).

2010Finding that "there is little distinction between a scent lineup and a situation where a dog is required to track an individual's scent over an area traversed by multiple persons," the court concluded that the use of scent lineups is a "legitimate field of expertise." Id. ; see Winfrey v. State , 291 S.W.3d 68, 71-74 (Tex. App.-Eastland 2009, pet. granted) (considering evidence of Deputy Pikett's scent lineups in an evidentiary sufficiency analysis).

2022Id. at 922 (noting that a preservation requirement for “an evidentiary sufficiency claim concerning a restitution order, or the amount of restitution, need not be resolved in this case”); id. (noting that “there was a factual basis for the amount of restitution the trial court ordered.”); id. at n. 11 (noting that under our cases “the amount of restitution ordered must be ‘just,’ it must have a factual basis in the record, and it must compensate the victim.”) That is consistent with treatment of “factual basis” in the restitution context in other cases.

2022Id. at 922 (noting that a preservation requirement for “an evidentiary sufficiency claim concerning a restitution order, or the amount of restitution, need not be resolved in this case”); id. (noting that “there was a factual basis for the amount of restitution the trial court ordered.”); id. at n. 11 (noting that under our cases “the amount of restitution ordered must be ‘just,’ it must have a factual basis in the record, and it must compensate the victim.”) That is consistent with treatment of “factual basis” in the restitution context in other cases.

2013See Wooley, 273 S.W.3d at 268 n.13 (“This due process rule is not, and should not be confused with, an evidentiary sufficiency rule.”).

2011See Malik, 953 S.W.2d, at 238 n. 3 ("[D]ue process prevents an appellate court from affirming a conviction based upon legal and factual grounds that were not submitted to the jury.”); Wooley v. State, 273 S.W.3d 260, 268 n. 13 (Tex.Cr.App.2008) ("This due process rule is not, and should not be confused with, an evidentiary sufficiency rule.”).

2026As a result, in the absence of a complete 6 record, “it is impossible to review all the evidence presented to the [factfinder] or to apply the appropriate evidentiary sufficiency standard of review.” Id.

2023Absent a complete record, we cannot “review all the evidence presented to the jury or [] apply the appropriate evidentiary sufficiency standard of review.” Gavrel, 225 S.W.3d at 763 .

2026“This is because ‘[a]s a practical matter, a court cannot begin to say what evidence supports a verdict without reviewing it all.’” Id. at 744 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)); see also Cruz, 2018 WL 6793847 , at *4 (“Without a complete reporter’s record, it is impossible to review all the evidence presented to the trier of fact or to apply the appropriate sufficiency standards.”); Rich v. Olah, 274 S.W.3d 878 , 886–87 (Tex. App.—Dallas 2008, no pet.) (explaining, for a legal and factual sufficiency challenge following a take-nothing judgment, appellants were

2015Because evidence that was not admitted into the record cannot inform an evidentiary-sufficiency analysis, see City of Keller, 168 S.W.3d at 821–28 (discussing review of evidence in the record in context of legal sufficiency); Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (“In reviewing a factual sufficiency point, the court of appeals must weigh all of the evidence in the record.”) (emphasis omitted); Wynn v. Silver Oaks Apts., Ltd., No. 04-12-00727-CV, 2014 WL 60657 , at *1 (Tex. App.—San Antonio Jan. 8, 2014, no pet.) (mem. op.) (rejecting appellant’s reference to documents outside the rec

2023See Deutsche Bank Nat’l Trust Co. v. Jones, No. 13-14-00464-CV, 2015 WL 4116860 , at *5 (Tex. App.—Corpus Christi–Edinburg July 2, 2015, no pet.) (mem. op.) (rejecting bank’s contention that notice to vacate sent by bank’s counsel to tenants satisfied third and fourth elements of forcible detainer action where unsworn copy of notice appeared in appellate record but notice was not admitted as evidence at trial); Barnard v. Barnard, 133 S.W.3d 782 , 789 10 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule, documents not admitted into evidence are not considered by an appellate court.

2015See Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule, documents not admitted into evidence are not considered by an appellate court. . . .

2021See id.

2019Id. at 320 .