November-December 2010

Worth the wait

In Brooks v. State, the Court of Criminal Appeals (finally!) overrules Clewis. Here’s what this important decision means for prosecutors.

Emily Johnson-Liu

Assistant Criminal ­District Attorney in Collin County

On October 6, in Brooks v. State, a majority of the judges on the Court of Criminal Appeals finally agreed to a proposition that the State had been advancing for years: When an appellate court is deciding if the proof at trial was enough to sustain a conviction, it should apply only a single standard of review.1

    Up until Brooks, criminal defendants had been able to challenge the sufficiency of the evidence on federal constitutional grounds (“legal sufficiency,” a standard mandated in Jackson v. Virginia2) but also on grounds of “factual sufficiency,” a standard that the court held in Clewis v. State3 was required under Texas law. Under Clewis’s factual sufficiency standard and the cases following that decision, an appellate court was supposed to view the evidence offered at trial in a “neutral” light, which meant the court did not have to defer to the jury’s credibility and weight determinations, but, confusingly, the court was not supposed to substitute its judgment for that of the jury. Further, even though a rational jury believed all the elements of the offense beyond a reasonable doubt, an appellate court could reverse the conviction and remand for a new trial if the court found the jury’s verdict was “clearly wrong” or “manifestly unjust.” In fact, the Waco court of appeals had done just that in the lower court’s opinion in Brooks.4

    A jury had convicted Brooks of possession of cocaine with intent to deliver, but on appeal, Brooks contested the jury’s finding that he had intent to deliver. The evidence showed that Brooks matched the description of a man who police were told was in possession of a handgun. When they approached Brooks, he threw several baggies out of his pocket. The baggies contained two large rocks of crack cocaine weighing 4.72 grams, six ecstasy tablets, and about 3 grams of marijuana. The State’s expert testified that 4.72 grams of cocaine was usually a “dealer amount” and could be cut up into 23 or 24 rocks worth about $470, but he acknowledged a person could possess 4.72 grams for personal use. Brooks also had a cell phone and a couple of dollars, but police found no handgun, ledgers, or paraphernalia, either for selling or using, and Brooks was not under the influence of anything.

    The State’s expert testified that users typically do not hold on to larger amounts of crack; because of their habit, they usually use it as soon as they get it, and they often carry drug paraphernalia used to smoke the crack. Dealers, on the other hand, do not typically use their own product and will not have crack pipes or other cooking paraphernalia on them. On this evidence, the court of appeals concluded that a jury could believe, beyond a reasonable doubt, that Brooks had the intent to deliver. But a two-judge majority at the court of appeals also concluded that when they viewed the evidence in a neutral light (the standard set out in Clewis), the jury’s verdict became clearly wrong and manifestly unjust and had to be reversed for a new trial.5 The Court of Criminal Appeals granted the State’s petition for discretionary review to reconsider the standard for factual sufficiency review, as it had in several cases since Clewis.

    In resolving the case, the court issued three opinions. The lead opinion, authored by Judge Hervey and joined by three other judges, expressly overruled Clewis, primarily because the judges found that the court’s formulation of the factual sufficiency standard is now indistinguishable from the legal sufficiency standard in Jackson. For the judges joining Judge Hervey’s opinion, the lack of a distinction between the two standards (which, they argue, both require complete deference to the jury’s determination of weight and credibility) raises double jeopardy concerns. The remedy for factually insufficient evidence is retrial, but for legally insufficient evidence, it is acquittal. Without a clear distinction between the two standards, a defendant could be wrongly retried if the reviewing court finds “factual insufficiency” on what is actually legally insufficient evidence.

    Judge Cochran joined in Judge Hervey’s lead opinion in the case, but she also wrote a concurring opinion of her own that Judge Womack joined. Judge Cochran’s concurrence agreed that Clewis should be overturned, and she argued that Clewis was a failed attempt to incorporate part of the five-zone sufficiency scheme used in civil cases (where the burden is by a preponderance of the evidence) into criminal law (where the burden is beyond a reasonable doubt). The concepts are incompatible and Clewis ultimately unworkable. Having discarded factual sufficiency review for assessing sufficiency of the evidence on appeal, both the lead and concurring opinions conclude that the standard set out in Jackson v. Virginia for assessing the legal sufficiency of the evidence is the only test.

The dissent

Judge Price authored the dissenting opinion, which was joined by three other judges. Interestingly, these same judges (along with Judge Womack) had formed the majority in Watson, where, just four years ago, the court rejected Judge Hervey’s and Judge Cochran’s arguments that Clewis should be overruled.6 Now in the minority, Judge Price and the remaining judges argued that the distinction between legal and factual sufficiency, while slight, was nonetheless real and did not raise double jeopardy concerns.

    Although his opinion is only a dissent, Price did introduce some degree of uncertainty about whether Brooks has effectively overruled Clewis. Judge Price repeated three times in his dissent that the plurality “purports” to overrule Clewis, but he never explained why the decision does not authoritatively overrule Clewis. It is certainly true that having garnered only four votes (Hervey, Keller, Keasler, and Cochran), Judge Hervey’s lead opinion is a plurality. It does not announce the “opinion” of the court; it announces the “judgment” of the court. And ordinarily, a plurality opinion cannot operate to overrule established precedent.7 But even if no single opinion states the view of the Court of Criminal Appeals, a majority view may nonetheless be evident from the position taken by the judges. The four judges in Judge Hervey’s plurality together with Judge Womack, who joined Judge Cochran’s concurrence, all agreed that Clewis should be overturned. This constitutes a five-judge majority holding in the case. This was not a case where a plurality stated it was overruling precedent when a majority of the judges on the court were presented with the opportunity to join in that holding and declined to do so. As a result, it seems fairly certain that Brooks has effectively overruled Clewis.

Different rationales

The fact that the plurality and concurring opinions focus on different rationales for overruling Clewis should not matter. The Court of Criminal Appeals followed United States Supreme Court practice in holding, “When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”8 The narrowest opinion must represent a common denominator of the court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.9 Overruling Clewis represents this “common denominator” in the opinions supporting the judgment and embodies the position of a majority of the Court of Criminal Appeals’ judges. Even in the rationales, there is significant overlap in Judge Hervey’s and Judge Cochran’s opinions setting out the numerous problems with Clewis. Judge Cochran joined in both opinions, and both opinions favorably reference Judge Cochran’s dissenting opinion in Watson. With five judges on the Court of Criminal Appeals agreeing that Clewis is unworkable, confusing, and internally inconsistent, and with the express statement that Clewis is overruled, the intermediate courts of appeals are likely to find Brooks controlling on this issue. Indeed, two days after Brooks, one court of appeals had already cited Brooks as the case that overruled Clewis’s factual sufficiency standard.10

    Because the plurality and concurring opinions were careful to expressly overrule Clewis, it is puzzling that neither Judge Hervey’s nor Judge Cochran’s opinion suggests that the factual sufficiency cases following Clewis have been or should be overruled. And yet this must be the case. After Brooks, cases that attempted to reformulate Clewis’s standard while preserving factual sufficiency review (Cain,11 Johnson,12 and Watson,13 for instance) can no longer be good law.

   But factual sufficiency may continue to exist in another context never controlled by Clewis. Where the issue on appeal is a jury’s rejection of an affirmative defense, where the proof required is a preponderance of the evidence, courts may continue to employ a factual sufficiency review regardless of the decision in Brooks.14

Possible aftermath

With factual sufficiency for reviewing the elements of the offense consigned “to the dust bin of history,” as Judge Cochran puts it, cases that would have been reversed on factual sufficiency grounds will now either be affirmed or found legally insufficient. So Brooks could result in an increase in acquittals for legal insufficiency and in a few new writs of habeas corpus.

   For those whose convictions were reversed for factual insufficiency and who have been retried and again convicted, Judge Hervey’s plurality opinion may inspire a habeas writ on double jeopardy grounds, asserting that the appellate court wrongly found the evidence factually insufficient when it was legally insufficient. Whether these defendants will ultimately be successful is a different matter. For double jeopardy to even be at issue, the defendant must establish that the evidence in the first trial actually was legally insufficient, and sufficiency of the evidence is ordinarily not challengeable in a state writ of habeas corpus.15 Further, although the Court of Criminal Appeals has historically been willing to allow defendants to raise double jeopardy claims at any time,16 it can certainly be argued that the time to raise this particular challenge was when the court of appeals first reversed on factual sufficiency or before retrial by way of pre-trial writ of habeas corpus. The court’s decision in Gonzalez v. State17 is some indication that it is now more receptive to the State’s forfeiture arguments, even where double jeopardy is concerned. In any case, the Brooks decision does not do anything to further the legitimacy of such a claim or give rise to any new claim. Code of Criminal Procedure art 11.07, §4 should bar consideration of this issue for defendants who have already filed at least one prior writ. Judge Hervey’s plurality opinion did not set out a new legal basis for a double jeopardy claim based on an appellate court’s improper characterization of the evidence as factually insufficient. That argument has been around since the Supreme Court’s decision in Tibbs v. Florida,18 even before Clewis was decided.

    If the cost of overruling Clewis is the risk of a rise in legal sufficiency reversals and new challenges on habeas corpus, the potential benefits will make it all worthwhile. Judge Cochran expresses optimism that channeling all sufficiency claims through the rubric of legal sufficiency will provide greater clarity and less caprice in sufficiency issues.19 Because all states follow the same standard in Jackson v. Virginia, there is already a common body of law setting out criteria and permissible inferences in particular fact scenarios that the parties and courts can use to guide (and rein in) their decisions. And the prospect of more reasoned sufficiency review is a welcome change after so many years trying to reconcile the conflicting and ever-shifting standards of factual sufficiency under Clewis.


1 Brooks v. State, No. PD-0210-09, 2010 WL 3894613 (Tex. Crim. App. Oct. 6, 2010).
2 443 U.S. 307 (1979).
3 922 S.W.2d 126 (Tex. Crim. App. 1996).
4 Brooks v. State, No. 10-07-00309-CR, 2008 WL 4427266 (Tex. App.—Waco 2008, pet. granted).
5 Brooks, 2008 WL 4427266, at *5.
6 Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006).
7 Crittenden v. State, 899 S.W.2d 668, 671 (Tex. Crim. App. 1995).
8 Haynes v. State, 273 S.W.3d 183, 186-87 (Tex. Crim. App. 2008) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)); Carter v. State, 309 S.W.3d 31, 38 (Tex. Crim. App. 2010).
9 King v. Palmer, 950 F.2d 771, 781 (D.C. 1991).
10 Onick v. State, 02-09-130-CR, 2010 WL 3928705 (Tex. App.—Fort Worth Oct. 8, 2010, no pet. h.).
11 958 S.W.2d 404 (Tex. Crim. App. 1997).
12 23 S.W.3d 1 (Tex. Crim. App. 2000).
13 204 S.W.3d 404.
14 See Cochran’s dissent in Watson, 204 S.W.3d at 436-37 (Cochran, J., dissenting).
15 Ex parte Santana, 227 S.W.3d 700, 705 (Tex. Crim. App. 1975).
16 See Ex parte Evans, 530 S.W.2d 589, 591 (Tex. Crim. App. 1975).
17 Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000).
18 457 U.S. 31, 32 (1982).
19 See Brooks, 2010 WL 3894613, at *22 n.9 (Cochran, J., concurring).