In an unusual move, a justice on Houston’s 1st Court of Appeals has challenged the authority of the Texas Court of Criminal Appeals to eliminate the factual-sufficiency standard of appellate review in criminal cases. The CCA’s decision leaves a defendant with one less way to appeal a conviction.
In a Nov. 10 concurring opinion in Ervin v. State , 1st Court Justice Terry Jennings wrote that the CCA’s decision in Brooks v. State — that a court of appeals should apply only a legal-sufficiency standard when reviewing a criminal conviction, not a factual-sufficiency standard — is at odds with the Texas Constitution. Jennings noted that the factual-conclusivity clause in Article 5, §6 of the state constitution provides, in part, that the decisions of courts of appeals are conclusive on all questions of fact brought before them on appeal or error. But, Jennings wrote, the Oct. 6 Brooks decisionwould render the factual-conclusivity clause “a dead letter” in criminal appeals.
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