In granting jurisdiction to the courts of appeals, our Constitution says "that the decision of said courts shall be conclusive on all questions of fact brought before them." ⁽¹⁾ In the appeal of a criminal case, as well as a civil one, "[t]he court of appeals is therefore constitutionally given the authority to determine if a jury finding is against the great weight and preponderance of the evidence and if this is improper it is up to the people of the State of Texas to amend the Constitution." ⁽²⁾ The legal standard that the courts of appeals may use is, however, a question of law that is finally decided by this Court. ⁽³⁾

We drew the obvious conclusion from these principles in Cain v. State:

The scope of our review of a court of appeals' factual sufficiency decisions is a limited one. We are empowered only to determine whether the court of appeals applied the correct standard of review and considered all of the relevant evidence. We may not undertake a review that essentially redoes the sufficiency analysis. If we determine that the court of appeals applied an improper legal standard or failed to consider the relevant law, our only possible action is to remand the case to the court of appeals to review the factual sufficiency under the correct standard. ⁽⁴⁾

By the end of the Cain opinion, however, a bare majority of the Court was determining something else -- whether the court of appeals applied the correct standard in a way we thought was correct. "The Court of Appeals incorrectly applied the factual sufficiency review standard set forth in this Court's opinion in Clewis." ⁽⁵⁾

Although the court recited the proper standard of review, it was not deferential to the jury's determination of witness credibility, it ignored the evidence supporting the jury's guilty verdict, and considered only the evidence that could be interpreted as favoring the defense theory of the case. ⁽⁶⁾

At that point we began to invade the conclusive jurisdiction of the courts of appeals.

Today we press the invasion deeper. We tell a court of appeals, not only that we do not like the way it applied the legal standard, we do not like the way it explained the way it applied the legal standard. ⁽⁷⁾ We tell a court of appeals what weight it must give certain evidence: "But it is a jury, not a reviewing court, that accepts or reject[s] reasonably equal competing theories of causation." ⁽⁸⁾ The court of appeals did not think they were reasonably equal -- and it has conclusive jurisdiction so to think.

In the future, it will get worse. The Court is ready to decide how many witnesses must testify to outweigh the testimony of another liar; one is not enough, even two are not enough, but thirteen are. ⁽⁹⁾

We have no jurisdiction to make such decisions.

I would affirm the judgment below.

En banc.

Delivered November 21, 2001.

Publish.

1. Tex. Const. art. I, § 6.

2. Clewis v. State, 922 S.W.2d 126, 132 (Tex. Cr. App. 1996) (quoting Meraz v. State, 785 S.W.2d 146, 154 (Tex. Cr. App. 1990)).

3. See id. at 129 & 129 n.2.

4. 958 S.W.2d 404, 408 (Tex. Cr. App. 1997) (emphasis added).

5. Id. at 410.

6. Id. at 408 (footnote omitted).

7. See ante at 6-8.

8. Id. at 7.

9. Id. at 5 n.3.