This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

presenting issue (Sufficiency of Evidence Rules)

• Challenge to suff of evid could not be raised by post-conv habeas corpus. Ex parte Grigsby (June 23, 2004, No. 74,964)

• Court of appeals violated def's due process rights by affirming his conviction without addressing the legal sufficiency of the evidence supporting the value of the property at the time of the offense. Moff v State (April 7, 2004, No. 1343-03)

• If a defendant challenges the legal sufficiency of the evidence to support his conviction on direct appeal, the appellate court always has a duty to address that issue, regardless of whether it was raised in the trial court. A defendant need not file a motion for directed verdict or a motion for new trial to preserve an appellate claim concerning the sufficiency of the evidence to prove his guilt. He need not object to the admission of evidence in the trial court to preserve this issue. He need not claim, in the trial court, that the method by which the State proved an element of the offense was deficient or defective. In short, a claim regarding sufficiency of the evidence need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to do so. Moff v State (April 7, 2004, No. 1343-03)

• Challenge to legal sufficiency of evid to support deadly weapon finding under 42.12 sec. 3g(a)(2) is not waived by failure to raise issue in trial court. Court of appeals erred in holding that def waived a claim of legally insufficient evidence as to deadly weapon finding by failing to preserve error in the trial court. Rankin v State (June 6, 2001, No. 542-00)

general rules (Sufficiency of Evidence Rules)

• Gollihar v. State, 46 S.W.3d 243 (Tex.Cr.App. 2001), decided that under Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997), evidentiary sufficiency should be measured against the elements of the offense as defined by the hypothetically correct jury charge for the case in all sufficiency cases. Gollihar rejected the view that Malik was a federal constitutional decision which adopted only the Jackson v. Virginia, 99 S.Ct. 2781 (1979), evidentiary sufficiency standard. Gollihar thus made Malik's evidentiary sufficiency standard into a purely state law standard that is "foreign to federal constitutional norms." Fuller v State (March 27, 2002, No. 1283-98)

• A materiality inquiry should be made in all cases that involve a sufficiency of the evidence claim based upon a variance between the indictment and the proof and only a "material" variance will render the evidence insufficient. This "materiality" inquiry requires a determination of whether the variance deprived def of notice of the charges or whether the variance subjects def to the risk of later being prosecuted for the same offense. A "hypothetically correct jury charge" takes into consideration the material variance doctrine, meaning that allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included. Fuller v State (March 27, 2002, No. 1283-98)

multiple theories of guilt (Sufficiency of Evidence Rules)

• Where evid was suff to prove murder in course of aggravated sexual assault, it was not necessary to review suff of evid to support alternative theory of murder in course of robbery. Martinez v State (March 3, 2004, No. 74,535)

rules in circ evid cases (Sufficiency of Evidence Rules)

• The lack of direct evid is not dispositive of the issue of a defendant's guilt. Circ evid is as probative as direct evid in establishing the guilt of an actor. Circ evid alone is suff to establish guilt. Furthermore, the standard of review on appeal is the same for both direct and circ evid cases. In reviewing suff of evid, appeals court should look at events occurring before, during and after the commission of the offense and may rely on actions of def that show an understanding and common design to do the prohibited act. Each fact need not point directly and independently to def's guilt, as long as the cumulative effect of all the incriminating facts are suff to support conv. Motive is a significant circ indicating guilt. Intent may also be inferred from circ evid such as acts, words, and the conduct of def. Attempts to conceal incriminating evid, inconsistent statements, and implausible explanations to the police are probative of wrongful conduct and are also circs of guilt. Lies about an actor's relationship with an accomplice are probative of unlawful acts. Guevara v State (October 20, 2004, No. PD-0424-03)

role of appeals court (Sufficiency of Evidence Rules)

• In reviewing determination of court of appeals of factual sufficiency of the evidence, court of criminal appeals is limited to determining whether the court of appeals used the correct standard of review. Drichas v State (October 19, 2005, No. PD-1915-04)

• Although the court of appeals in instant case correctly cited the standard of review for examining factual sufficiency to prove motor vehicle was deadly weapon, it failed to indicate which grounds necessitated a finding of factual insufficiency. The court simply cited to portions of the trial record and stated that the evidence was factually insufficient to support a deadly weapon finding because the state failed to show actual danger. Where court of appeals misconstrued the actual danger requirement, thus reading into the statute an additional requirement of evasive action or zone of danger, cause remanded for new factual-sufficiency analysis. Drichas v State (October 19, 2005, No. PD-1915-04)

• On appeal from DWI conv in which def stipulated to two prior DWI convs, his stipulation barred him from claiming on appeal that evid was insuff to prove the two prior convs because state failed to offer proof of the stipulated prior convs. No merit to def's contention that evid was insuff to prove prior convs: The issue is not whether the state proved its case, but whether def may argue that the state failed to prove its case on an element to which he stipulated. He may not. By stipulating, def waived any right to contest the absence of proof on the stipulated elements. When def stipulated to his prior convictions, he made a judicial admission which removed the need for proof of those convictions. By entering into that stipulation, def waived his right to put the state to its proof of that element. He cannot complain on appeal that the state failed to prove an element to which he confessed. Bryant v State (April 6, 2005, No. PD-0672-04)

• A defendant in a criminal case may stipulate to evidence against him. If the defendant elects to do this, his stipulation is a kind of judicial admission. A judicial admission is to be distinguished from an evidentiary admission: Judicial admissions are not evidence at all; they are formal concessions in the pleadings in the case or stipulations by a party or counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. A fact that is judicially admitted needs no evidence from the party benefiting by the admission. (In case where def stipulated to prior DWI convs.) Bryant v State (April 6, 2005, No. PD-0672-04)

• When multiple theories are submitted to the jury, the evidence is sufficient to support a conviction so long as the evidence is sufficient to support conviction for one of the theories submitted to the jury. Guevara v State (October 20, 2004, No. PD-0424-03)

• Factual-sufficiency review is appropriate only as to the sufficiency of the state's proof as to elements of the offense. Such a review is not appropriate as to the admissibility of evidence when such a question is submitted to the jury pursuant to Article 38.23(a). Hanks v State (June 23, 2004, No. 769-03)

• The relevant appellate inquiry for assessing legal sufficiency is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard is meant to give full play to the jury's responsibility fairly to draw reasonable inferences from basic facts to ultimate facts. Sanders v State (November 5, 2003, No. 1742-02)

• When reviewing factual sufficiency of evid, as a general proposition appeals court should at least mention what the parties assert is the most important or most relevant evidence supporting a claim that the evidence is factually insufficient. Sims v State (March 12, 2003, No. 1328-01)

• Where def waived jury and was tried before court, and trial court improperly conducted bifurcated proceeding, it was error for court of appeals, in ruling on suff of evid, to limit its consideration of the evidence to that which was introduced at the "guilt" stage of the non-jury trial. Barfield v State (December 19, 2001, No. 1303-99)

• Sufficiency of the evidence law is based on due process. Quoting Jackson v. Virginia, 443 U.S. 307 (1979): "It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend." Gollihar v State (May 16, 2001, No. 669-99)

• Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), overruled Ortega v. State, 668 S.W.2d 701 (Tex. Crim. App. 1983), to the extent Ortega held evidentiary sufficiency should be measured by allegations in the application paragraph of the jury charge actually given. Gollihar v State (May 16, 2001, No. 669-99)

• In a sufficiency review, the jury's inference of intent is afforded more deference than the evidence supporting proof of conduct. Circumstantial evidence of a defendant's guilty knowledge is not required to meet the same rigorous criteria for sufficiency as circumstantial proof of other offensive elements. It is not necessary for appeals court to find to its own satisfaction that such was def's intent. It is enough to find that "any" rational jury could have so found beyond a reasonable doubt. Margraves v State (December 6, 2000, No. 1354-99)

• The principles behind the rule of Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997), that "sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case," also apply to the affirmative findings necessary to sustain the imposition of an enhanced punishment. Thus the sufficiency of the evidence to prove enhancement allegations should be measured by the elements of the hypothetically correct jury charge for the enhancement, as defined by statute. Young v State, 14 S.W.3d 748 (Mar. 22, 2000)

• A court of appeals may reform a judgment of conviction to reflect conviction of a lesser included offense only if (1) the court finds that the evidence is insufficient to support conviction of the charged offense but sufficient to support conviction of the lesser included offense and (2) either the jury was instructed on the lesser included offense (at the request of a party or by the trial court sua sponte) or one of the parties asked for but was denied such an instruction. Collier v State, 999 S.W.2d 779 (June 16, 1999)

• Where trial court did not instruct the jury on lesser included offense and neither party sought to have the jury instructed on that lesser included offense, court of appeals lacked authority to reform the judgment of conviction to reflect conviction of the lesser included offense. Collier v State, 999 S.W.2d 779 (June 16, 1999)

• Where indictment alleged in two paragraphs under single count for attempted murder, the first alleging the attempted murder of a person and persons unknown to the grand jury by shooting at them with a deadly weapon, and the other alleging the attempted murder of a named victim by shooting at him with a deadly weapon, and jury returned general verdict, and evid was suff to support conviction under either paragraph, assumption by court of appeals that def was convicted under first paragraph was contrary to the law and the evid. Manrique v State, 994 S.W.2d 640 (May 19, 1999)

review in light most favorable (Sufficiency of Evidence Rules)

• It was error for court of appeals to review legal sufficiency of evid by reviewing the facts by comparing the "Appellant's Analysis of the Evidence" against the "State's Analysis of the Evidence." A legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence. Instead, a legal-sufficiency review requires reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court of Appeals did not review the facts in the light most favorable to the verdict, but instead adopted def's version of the facts in concluding that the evidence was legally insufficient. Margraves v State (December 6, 2000, No. 1354-99)

consider all evid (Sufficiency of Evidence Rules)

• Court of appeals applied incorrect standard when it found evid factually insuff to support conv where it failed to consider all the evid based on appeals court's interpretation of notes on jury verdict form as indicating a "special verdict." A special verdict would violate 37.01 sec. 1(a). Court of appeals should not have disregarded some of evid on basis of notes on jury verdict. Zuniga v State (April 21, 2004, No. 539-02)

• There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga v State (April 21, 2004, No. 539-02)

role of indictment (Sufficiency of Evidence Rules)

• Where indictment was erroneously amended, the hypothetically correct jury charge to be used to measure sufficiency of evid must be jury charge which is authorized by the original indictment, not the amended indictment. Curry v State (September 20, 2000, No. 1521-99)

• The "law" as "authorized by the indictment" must be the statutory elements of the offense as modified by the charging instrument. The hypothetically correct jury charge could not simply quote the language of the statute. Curry v State (September 20, 2000, No. 1521-99)

disposition when evid insuff (Sufficiency of Evidence Rules)

• Where evid was insuff to support conv for capital murder but was suff to prove included offense of murder, judgment reformed to show conv for murder. Herrin v State (December 18, 2002, No. 73,987)

factual sufficiency rules (Sufficiency of Evidence Rules)

• Where def who was convicted of DWI and argued on appeal that audio and video tapes were most significant evid supporting his claim that evid was insuff, and court of appeals in its review* of issue did not discuss that evid, court of appeals erred. Court of criminal appeals reviewed the audio and video tapes and found that both contained evidence relevant to the contested issue in the case: whether def had the normal use of his mental and physical faculties while driving on the night he was arrested, and both parties referenced the tapes repeatedly in their briefs before court of appeals. The tapes should have been mentioned in the opinion. Judgment of court of appeals vacated and cause remanded for consideration of that evid. Sims v State (March 12, 2003, No. 1328-01)

• Evidence can be factually insufficient in one of two ways: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, 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. These standards encompass the complete civil appellate law formulation for factual insufficiency. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. If the complaining party did not have the burden of proof at trial, then the first or manifestly unjust standard applies. If the complaining party on appeal had the burden of proof at trial, then the second or against the great weight and preponderance standard applies. This approach has been slightly modified when a defendant challenges the factual sufficiency of a guilt finding. If the defendant challenges the factual sufficiency of the elements of the offense on appeal, even though the State has the burden of proof, the reviewing court must review the evidence using both standards. In other words, the reviewing court asks whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." In the context of a rejected affirmative defense on a defendant's appeal, the reviewing court uses the second standard and determines whether the finding against the affirmative defense was so against the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v State (February 5, 2003, No. 1168-01)

• Court of appeals finding of factually insuff evid to support conv was vacated and cause remanded where court of appeals did not clearly articulate basis for its ruling, as required for court of criminal appeals to review decision of court of appeals, to determine whether court of appeals applied the correct rule of law and correct standard of review in evaluating factual sufficiency of the evidence. Court of appeals did not clearly articulate whether it decided that: 1) state's evidence was too weak, by itself, to support the inference that def committed offense; or 2) def's evidence was so strong, so overwhelming, so much more extensive than state's evidence that it rendered jury's verdict so contrary to the great weight and preponderance of the evidence that it was manifestly unjust. Instead, court of appeals stated that it had five reasons for concluding that the evidence was factually insufficient; but all of the five reasons appeared to be simply an alternate theory of causation or explanation of victim's injuries. The listing of alternate possibilities did not "state why the jury's finding is factually insufficient," nor explain how the jury's verdict was "manifestly unjust" or why the verdict "shocks the conscience" or "clearly demonstrates bias." Perhaps most importantly, the list did not state in what regard the contrary evid greatly outweighed evid in support of the verdict. Goodman v State (November 21, 2001, No. 120-00)

• Under Texas Const. Art. 5, Sec. 6, "the decision of [the courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error." Thus, Court of Criminal Appeals does not have jurisdiction to pass upon the weight and preponderance of the evidence or "unfind" a vital fact. However, it does have jurisdiction to determine whether court of appeals applied the correct rule of law and correct standard of review in a particular case involving factual sufficiency of evidence. Goodman v State (November 21, 2001, No. 120-00)

• 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. Courts determine "factual insufficiency" when 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, but the jury's finding of guilt is against the great weight and preponderance of the evidence. When 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. Goodman v State (November 21, 2001, No. 120-00)

• The degree of deference to the fact finder, that a court reviewing factual sufficiency of the evidence provides, must be proportionate with the facts it can accurately glean from the trial record. A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. Such an approach occasionally permits some credibility assessment but usually requires deference to the jury's conclusion based on matters beyond the scope of the appellate court's legitimate concern. Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered. This evidence is then accorded the appropriate consideration by the reviewing court in the context of its overall analysis of the relevant evidence. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• In instant case the record revealed, and the Court of Appeals recognized, that the accuracy of the victim's identification of def was questionable because of the adverse conditions that existed during her brief and obstructed view of the assailant. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• The reviewing court must always remain cognizant of the fact finder's role and unique position, a position that the reviewing court is unable to occupy. The authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Otherwise, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• When reversing for factual insufficiency, the appellate court must detail all the evidence relevant to the issue in consideration and clearly state why the jury's finding is either factually insufficient or is so against the great weight and preponderance of the evidence that it is manifestly unjust. The opinion should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• The appropriate scope of factual sufficiency review encompasses both formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Because the State always carries the burden of proof to establish the elements of a criminal offense at trial, an appellant's points of error challenging the sufficiency of the evidence used to establish the elements of the charged offense could claim that the evidence used to establish the adverse finding was so weak as to be factually insufficient. This is the most equitable approach, especially given the fact criminal defendants are not under any obligation to present evidence on their behalf and usually rely, instead, on forcing the State to prove its case beyond a reasonable doubt. Alternatively, in the event a defendant does muster contrary evidence, this standard of review allows him, if he so chooses, to present the argument on appeal that his evidence greatly outweighed the State's evidence to the extent that the contrary finding is clearly wrong and manifestly unjust. The complete and correct standard a reviewing court must follow to conduct a factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• Though reasonable minds could differ whether the evidence in instant case truly is insufficient to warrant reversal of the conviction, this case seemed to present a situation in which there is evidence capable of satisfying any legal sufficiency challenge; i.e., viewed in a light favorable to the verdict, the DNA evidence, the victim's in-court identification of def, and def's intimate familiarity with the locations of the abduction and assault, all satisfy the legal sufficiency standard of review. However, in the context of a factual sufficiency review, the evidence, considered as a whole, may arguably not rise to the level of satisfying the State's burden of establishing beyond a reasonable doubt that def was the perpetrator. To make this determination, a complete and detailed examination of all the relevant evidence is required. If the reviewing court determines that a manifest injustice has occurred, and it would, therefore, be improper to defer to the fact finder's decision, then the reviewing court must provide a clearly detailed explanation of that determination that takes all of the relevant evidence into consideration. This high degree of specificity acts as a check upon the reviewing court and prevents it from substituting its judgment for that of the jury. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• Just as a Court of Appeals is not empowered with the right to substitute its judgment for that of the fact finder's, the Court of Criminal Appeals shall not substitute its judgment for that of the Court of Appeals. Regardless of whether Court of Criminal Appeals agrees with the result, it is called upon to determine only whether the Court of Appeals correctly applied the factual sufficiency standard of review and properly considered all of the relevant evidence. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• Where Court of Appeals' opinion (ruling evid was factually insuff) detailed the relevant evidence and determined the accuracy of the victim's in-court identification could not shoulder sufficient reliability to establish beyond a reasonable doubt that def carried out the assault, Court of Criminal Appeals reviewed the Court of Appeals' analysis and found no fault in its application of the factual sufficiency review and affirmed its decision to reverse and remand the case for further proceedings. Johnson v State, 23 S.W.3d 1 (Feb. 9, 2000)

• Court of Criminal Appeals has the authority to review the factual sufficiency of a capital murder case. Under the factual sufficiency review standard, it views all the evidence without the prism of "in the light most favorable to the prosecution” and sets aside the verdict only if it is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” A clearly wrong and unjust verdict may occur in instances where the jury’s finding is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

• When appellant challenges the factual sufficiency of evid and does not challenge its legal sufficiency, appeals court assumes that the evidence is legally sufficient under the Jackson v. Virginia (443 U.S. 307, 319 (1979)) test, then considers all of the evidence in the record related to the sufficiency challenge, comparing the evidence supporting with the evidence controverting the elemental fact in dispute. Even if probative evidence supports the verdict, appeals court may disagree with the jury’s determination, but must be appropriately deferential to the jury’s findings and avoid substituting its judgment for that of the fact finder. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

• Court of Appeals did not follow proper procedures for a factual-sufficiency review, where it summarized the evidence, but did not state clearly how the testimony “falls far short” of establishing element; used language suggesting court had confused the standards for review of factual and legal sufficiency; and did not state clearly why the jury’s finding was factually insufficient so as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Cause remanded for further proceedings. Mireles v State, 994 S.W.2d 148 (June 2, 1999)

• A factual sufficiency review takes into consideration all of the evidence and weighs the evidence which tends to prove the existence of the fact in dispute against the contradictory evidence. But, to avoid intruding on the jury’s role as arbiter of the weight and credibility of the evidence, a factual sufficiency review remains deferential to the jury’s verdict. That a different verdict would be more reasonable is, therefore, insufficient to justify reversal; the jury’s verdict will be upheld, unless it is so “against the great weight of the evidence ” that it is “clearly wrong and unjust,” i.e., manifestly unjust, shocking to the conscience or clearly biased. Fuentes v State, 991 S.W.2d 267 (April 28, 1999)

sufficiency on defense issues (Sufficiency of Evidence Rules)

• In a defense under 2.03 PC, a defendant bears the burden of production, which requires the production of some evidence that supports the particular defense. Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Zuliani v State (February 5, 2003, No. 1168-01)

• Because the State has the ultimate burden of persuasion when confronted with a section 2.03 defense, and the State's burden is proving its case beyond a reasonable doubt: When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v State (February 5, 2003, No. 1168-01)

• Where court of appeals applied wrong standard for review of factual suff of evid to reject self-defense, cause remanded for court of appeals to apply full factual sufficiency standard. Zuliani v State (February 5, 2003, No. 1168-01)

corpus delecti & confession (Sufficiency of Evidence Rules)

• The corpus delicti rule does not require the state to present evidence to corroborate every element and descriptive allegation in the indictment. The rule only requires that there be some independent evidence tending to show the essential nature of the charged crime. Salazar v State (October 9, 2002, No. 45-01)

• The corpus delicti rule requires some corroboration of an injury or loss and a criminal agent, but does not require any independent evidence that the defendant was the criminal culprit. Its purpose is to ensure that a person is not convicted of a crime that never occurred, based solely upon that person's extra-judicial confession. The rule was not intended to ensure that all confessions are corroborated in specific details or to ensure that the suspect does not falsely confess to a crime that did occur but for which he had no culpability. Thus, it satisfies the corpus delicti rule if some evidence exists outside of the extra-judicial confession which, considered alone or in connection with the confession, shows that the crime actually occurred. Salazar v State (October 9, 2002, No. 45-01)

variance in name - no error (Sufficiency of Evidence Rules)

• Failure of state to prove victim's name as alleged in indictment did not render evid insuff to support conv under federal constitutional standard of Jackson v. Virginia, 99 S.Ct. 2781 (1979), which measures evidentiary sufficiency against the "substantive elements of the criminal offense as defined by state law." The victim's name is not a substantive element of the offense of injury to an elderly individual. Evidence that def injured the elderly victim by hitting him in the face with his fist satisfied the Jackson v. Virginia standard because it constituted proof of every fact necessary to constitute the crime charged of "injury to an elderly individual." Fuller v State (March 27, 2002, No. 1283-98)

• State's failure to prove victim's name exactly as alleged in indictment did not make the evidence insufficient under state law standard of Gollihar v State, 46 S.W.3d 243 (Tex.Cr.App. 2001). The victim's name is not a statutory element of the offense. The variance between the indictment and the proof was immaterial; there was no indication in the record that def did not know whom he was accused of injuring or that he was surprised by the proof at trial; and the variance did not subject def to another prosecution for the same offense. Fuller v State (March 27, 2002, No. 1283-98)

• In conv for murder evid was not insuff on claim of variance in victim's name, where testimony showed he was known by two names, including name alleged in indictment. Maldonado v State, 998 S.W.2d 239 (June 30, 1999)

evidence sufficient to prove identity of defendant (Sufficiency of Evidence Rules)

• In conv for capital murder evid was factually suff to identify def as perpetrator where at least six significant items of evidence tied def to the murder: (1) his proximity to the victim, (2) his access to, and fingerprint on, the murder weapon, (3) his DNA on the victim's brassiere, (4) his possession of the victim's jacket, (5) his possession of the victim's ring, and (6) his admission of guilt to a third party. Evid in def's favor was weak and did not render evid factually insuff. Manns v State (December 17, 2003, No. 74,305)

• Court of appeals misapplied legal sufficiency standard of Jackson v. Virginia, 99 S.Ct. 2781 (1979), when it held evid was legally insuff to support conv; evid was legally suff to prove the ultimate fact in question, def's identity as the heavy man whom the neighbor saw burglarizing the house. A rational jury could have inferred the ultimate fact that def was that man from evid that complainant identified def (whom other evidence showed is heavy) as being at burglarized house on afternoon of burglary in a specifically described pickup truck and that def generally fit the description of one of the men whom the neighbor saw earlier that morning in a similarly described pickup truck burglarizing the house. Other evidence from which a jury could have inferred this ultimate fact: def left the house without moving any furniture after telling complainant that he was there to move furniture; def's claim that a named man at a particular address hired him to move furniture from the house was shown to be false; and def left town after he became a suspect in the burglary investigation. Sanders v State (November 5, 2003, No. 1742-02)

• Evid was suff to prove def committed capital murder where his bloody fingerprints put him in the apartment where offense was committed while the blood was still wet, and blood consistent with def's DNA profile was on towels and on a bloody bar at crime scene, leading to the reasonable conclusion that def was injured during the struggle with one or both of the victims. No merit to def's contention that the fingerprint and DNA evidence did not establish him as the perpetrator because he could have left prints on the beer can and tumbler before the killings, and that he could have reentered the apartment after the killings to leave the bloody fingerprint on the door and his own blood on the bathroom towels. Jackson v State, 17 S.W.3d 664 (May 17, 2000)

• In conv for capital murder, evid was factually suff to prove def committed offense, over contention no evid put him at crime scene. No merit to contention that the DNA statistics and shoe prints merely demonstrated that he could not be excluded as a suspect, and were not sufficiently reliable to establish his intention to kill the victim during an assault, a kidnapping, a burglary, and a robbery. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

eyewitness evid suff to prove identity of defendant (Sufficiency of Evidence Rules)

• In conv for capital murder evid was legally and factually suff to prove def was person who committed offense where eyewitnesses identified def as shooter and as person who stole car in which shooting occurred; def was driving that car when apprehended short time later; and blood and fingerprint evid linked def to car. Threadgill v State (October 13, 2004, No. AP-74,458)

• In conv for capital murder evid was legally and factually suff to prove def's identity as one of perpetrators. No merit to def's contention that X's identification of def was questionable due to X's drug use. Even if X was under influence of cocaine at time of offense, that would not render evidence legally insufficient: A rational jury could believe that he accurately identified def despite the drug's influence. Even under factual sufficiency review, the influence of an illegal drug would be but a factor to consider. Also, def's own expert conceded that the effects of a small cocaine dose taken at 9:00 in the evening would not still be felt at 6:00 the following morning. If testimony about time of offense was correct, X would not still be under the influence of cocaine. Even if other testimony that offense occurred at 3:00 in the morning was correct, a factfinder would be well within its discretion to believe that the effects of the cocaine had sufficiently worn off to enable an accurate identification. Vasquez v State (February 6, 2002, No. 73,729)

• In conv for capital murder evid was suff to prove def's identity as one of perpetrators. No merit to def's contention that X did not actually see def strangle victim. State did not have to prove that def personally killed victim. Jury was charged on law of parties, and X's testimony was more than sufficient to establish def's guilt as a party. Even so, X did testify that def was the only person around victim when she cried out the last time before she died and that def was assaulting her at the time. Vasquez v State (February 6, 2002, No. 73,729)

• In conv for capital murder evid was suff to prove def was the person who shot and killed victim, where eyewitnesses identified def at trial. Def’s arguments amounted to attacks on credibility of state’s evidence, which was for jury to resolve. Fuentes v State, 991 S.W.2d 267 (April 28, 1999)

variance and surplusage (Sufficiency of Evidence Rules)

• No merit to contention that requiring def to show surprise or prejudice in order to raise claim of variance between allegation and proof at trial violated his Fifth Amendment rights. By requiring def to demonstrate prejudice, the Court of Appeals was not requiring def to waive his Fifth Amendment rights and prove prejudice on the record. When the court stated that def had not claimed that he was surprised, prejudiced or misled by the asserted variances, the court was referring to the fact that he, through counsel, made no allegations that he had been unable to prepare a defense, or that prosecution under the deficiently drafted information would subject him to the risk of subsequent prosecution for the same offense. The court properly placed on def the burden of demonstrating prejudice in his direct appeal; his Fifth Amendment rights were not thereby implicated. In variance law, it is well-settled that the burden of demonstrating surprise or prejudice rests with the defendant. Def was properly required to demonstrate how he had been prejudiced by any variances in this case. Santana v State (October 31, 2001, No. 1780-00)

• A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. Gollihar v State (May 16, 2001, No. 669-99)

• A variance that is not prejudicial to a defendant's "substantial rights" is immaterial. In determining whether a defendant's substantial rights have been prejudiced in this context, two questions are generally asked: (1) whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and (2) whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar v State (May 16, 2001, No. 669-99)

• Court held: A hypothetically correct charge under Malik doctrine [Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)] need not incorporate allegations that give rise to immaterial variances. In so holding, court reaffirmed the fatal variance doctrine and overruled the surplusage rule and the Burrell exception [Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975)]. (Burrell exception to the general surplusage rule: where an extra or unnecessary allegation is descriptive of that which is legally essential to charge a crime, the State must prove it as alleged though needlessly pleaded.) Court found surplusage rule, without the Burrell exception, is generally consistent with Malik and might be maintained, but opted for a simpler approach by allowing the fatal variance doctrine to resolve surplusage problems. If the allegation is one which would be considered "surplusage" in that it is not essential to constitute the offense and might be entirely omitted without affecting the charge against def, and without detriment to the indictment, then it would rarely meet the test of materiality. Court saw little value in maintaining both doctrines. Gollihar v State (May 16, 2001, No. 669-99)

• Materiality test for variance doctrine: A variance between the wording of an indictment and the evidence presented at trial is fatal only if it is material and prejudices def's substantial rights. When reviewing such a variance, court must determine whether the indictment, as written, informed def of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject him to the risk of being prosecuted later for the same crime. Gollihar v State (May 16, 2001, No. 669-99)

• When faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a "material" variance will render the evidence insufficient. Thus, the hypothetically correct charge will take into consideration the fatal variance doctrine: Allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included. Gollihar v State (May 16, 2001, No. 669-99)

variance and surplusage - no error (Sufficiency of Evidence Rules)

• Variance between a deadly weapon allegation in the indictment (a "screwdriver") and the proof at trial (a "hard metal-like object") was not material where it did not affect defense. Record showed def claimed he stole victim's car without using any kind of weapon at all, so indictment's deadly weapon allegation sufficiently allowed def to prepare an adequate defense to the allegation and his defense was not affected by the "screwdriver" allegation. His defense did not depend on whether any particular type of weapon was used, so the variance between the indictment's allegation of a "screwdriver" and the state's proof at trial of "a hard metal-like object" was immaterial. Flenteroy v State (April 6, 2005, No. PD-0831-03)