TEMPLE v. STATE, 14-08-00074-CR (Tex.App.-Houston [14th Dist.] 5-24-2011)

JEFFREY V. BROWN, Justice.

CONCURRING OPINION TO DENIAL OF REHEARING EN BANC

Both as a member of the original panel and of the en-banc court, I have voted against rehearing this cause. I write separately to respond to my colleagues who have dissented from our refusal to rehear. I will address each in turn.

I

Appellate courts rarely overturn jury verdicts. When they do, the reason for reversing often has more to do with trial-judge error than a conclusion that the jury just got it wrong. Yet in this case Justice McCally would have us reverse the conviction below and render a judgment of acquittal because, in her judgment, the verdict is "irrational." Such a leap would supplant the jury's evaluation of the evidence with our own — a gross invasion by the judiciary upon the right to trial by jury, a right that Texas has held "inviolate" since the days of the Republic.

Trial-judge errors that lead juries into reversible verdicts range from submitting wrongful-death cases when there is simply no evidence of causation, see, e.g., Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 730 (Tex. 1997), to allowing inadmissible confessions or extraneous offenses in criminal cases. Pitts v. State, 614 S.W.2d 142, 143-44 (Tex. Crim. App. [Panel Op.] 1981) (inadmissible confession); Fox v. State, 283 S.W.3d 85, 95 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd) (inadmissible extraneous-offense evidence).

Repub. Tex. Const. of 1836, Declaration of Rights, Ninth, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 1069, 1083 (Austin, Gammel Book Co. 1898) ("the right of trial by jury shall remain inviolate"); accord Tex. Const. art. I, § 15; Tex. Const. of 1869, art. I, §§ 8, 12; Tex. Const. of 1866, art. 4, § 20; Tex. Const. of 1861, art. I, § 12; Tex. Const. of 1845, art. I, § 12; see also Repub. Tex. Dec. of Indep., reprinted in 1 Gammel, supra, at 1065 (describing the right to trial by jury as "that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen").

But I do not write to quarrel with Justice McCally over the merits. Like Justice Seymore, I believe the panel opinion appropriately addresses the evidence upon which a rational jury could have rendered the verdict rendered below. Instead, I write to dispel Justice McCally's contention that this court has issued inconsistent messages about the meaning of Brooks v. State. Respectfully, she is wrong when she contends that the court has stated "two different standards of review" arising from Brooks. In this case, as in others, we held that after Brooks "only one standard should be used to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency." Temple v. State, No. 14-08-0074-CR, ___ S.W.3d ___, 2010 WL 5175018, at *2 (Tex. App.-Houston [14th Dist.] Dec. 21, 2010, no pet. h.) (relying on Brooks v. State, 323 S.W.3d 893, 905-07) (Tex. Crim. App. 2010) (plurality op.); id. at 926-28 (Cochran, J., concurring)); see also Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.-Houston [14th Dist.] 2010, no pet. h.) (courts of appeals should apply the legal-sufficiency standard when addressing legal-sufficiency and factual-sufficiency arguments in appeals from criminal convictions).

Justice McCally is correct that in some opinions this court has also noted that Brooks "does not alter the constitutional authority of the intermediate courts of appeals to evaluate and rule on questions of fact." See, e.g., Muhammed v. State, 331 S.W.3d 187, 191 n. 3 (Tex. App.-Houston [14th Dist.] 2011, no pet.) And indeed it does not. Under Brooks, "[t]he Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks, 323 S.W.3d at 894 (plurality op.) (emphasis added). Brooks does not say that the courts of appeals' authority to review cases for factual sufficiency is dead. It says, rather, that the Clewis v. State factual-sufficiency standard is indistinguishable from a properly applied Jackson v. Virginia standard. Id. at 898-902. That still leaves a lot of factual review for the courts of appeals. We review for factual sufficiency in civil cases, of course, but also in criminal cases where the burden of proof is less than beyond a reasonable doubt. See, e.g., Ulloa v. State, No. 14-10-00102-CR, 14-10-00101-CR, ___ S.W.3d ___, 2011 WL 1283115, at *3 n. 1 (Tex. App.-Houston [14th Dist.] Apr. 5, 2011, pet. filed) (distinguishing Brooks and conducting a factual-sufficiency review in an appeal from a trial court's denial of habeas-corpus relief in which the burden of proof on the defendant is a preponderance of the evidence); Bernard v. State, No. 14-10-00044-CR, ___ S.W.3d ___, 2011 WL 1375570, at *2 (Tex. App.-Houston [14th Dist.] Apr. 12, 2011, pet. filed) (distinguishing Brooks and reviewing the factual sufficiency of a jury's punishment-phase negative finding on a special issue concerning sudden passion in which the burden of proof is a preponderance of the evidence).

See also Ricardo Pumarejo, Jr., Clueless over Clewis or: How I Learned to Stop Worrying and Welcome Brooks v. State, 23 The Appellate Advocate: State Bar of Texas Appellate Section Report 246, 258 (Winter 2010).

When a court of appeals is called upon to review factual sufficiency on an issue that a criminal defendant must prove by a preponderance, it should consider all the relevant evidence to determine whether the finding is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990). As a panel of this court held in Bernard v. State, "[t]he five judges in Brooks did not overrule or disapprove of this part of Meraz; in fact, the two concurring judges expressly stated that this part of Meraz was correctly decided." Bernard, ___ S.W.3d at ___, 2011 WL 1375570, at *2 (citing Brooks, 323 S.W.3d at 895; id. at 924 n. 67 (Cochran, J., concurring); Ervin v. State, 331 S.W.3d 49, 53 n. 2 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd)).

So when this court says Brooks has done away with factual-sufficiency review in some criminal cases, it is not inconsistent for us also to say that Brooks has not altered our constitutional authority "to evaluate and rule on questions of fact." See, e.g., Muhammed, 331 S.W.3d at 191 n. 3. Brooks did not abolish factual-sufficiency review in all criminal cases. Instead, the Court of Criminal Appeals announced that in cases where the burden of proof is beyond a reasonable doubt, the factual-sufficiency and legal-sufficiency standards are the same. This court has faithfully followed Brooks where appropriate, and faithfully conducted an old-fashioned factual-sufficiency review where Brooks does not apply.

Because there is no conflict among the rulings from this court on the interpretation of Brooks v. State, there is no reason for an en-banc rehearing of the panel opinion in this case. See Tex. R. App. P. 41.2(c).

II

Justice Seymore also has dissented from the court's failure to conduct an en-banc rehearing. But the thrust of his dissent is the allegation that Brooks has deprived the intermediate courts of appeals of their ability to carry out their constitutional duty to review facts. I dispute that the Court of Criminal Appeals has invaded our constitutional province. I further believe that in his dissent, Justice Seymore advocates a violation of the doctrine of hierarchical precedent.

A

There is no doubt — the factual-conclusivity clause in Article V, Section 6, of the Texas Constitution makes intermediate appellate courts' factual-sufficiency decisions "final and conclusive" upon the Court of Criminal Appeals. Roberts v. State, 221 S.W.3d 659, 662 663 n. 2 (Tex. Crim. App. 2007); see also Tex. Const. art. V, § 6(a) (providing that an intermediate appellate court's decision "shall be conclusive on all questions of fact brought before them on appeal or error"). But the factual-sufficiency clause does not prohibit the Court of Criminal Appeals from taking jurisdiction to decide, as a matter of law, whether an intermediate court of appeals applied the correct standard of review in addressing a party's factual-sufficiency claim. See Roberts, 221 S.W.3d at 663 (relying on In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex. 1986)).

The Pool court held that In re King's Estate established that "the supreme court might take jurisdiction, notwithstanding the finality of judgments of the courts of civil appeals on fact questions, in order to determine if a correct standard has been applied by the intermediate courts." Pool, 715 S.W.2d at 634-35.

The factual-conclusivity clause allows the Court of Criminal Appeals to review an intermediate court's factual-sufficiency decision insofar as necessary to determine whether the intermediate court "properly applied `rules of law.'" Roberts, 221 S.W.3d at 663 n. 3 (citing Choate v. San Antonio A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69, 69-80 (1898); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); Harmon v. Sohio Pipeline Co., 623 S.W.2d 314, 314-15 (Tex. 1981)). But no more than that is exactly what the Brooks court did — it laid out the legal boundaries of a proper factual-sufficiency review. And though they have no jurisdiction themselves to perform a factual-sufficiency review, it has been the legitimate realm of our state's courts of last resort to tell the courts of appeals how factual sufficiency should be reviewed. See Pool, 715 S.W.2d at 635 ("Even as to factual insufficiency, it has been the supreme court that has delineated the role of the courts of appeals.") (citing In re King's Estate, 150 Tex. at 666, 244 S.W.2d at 662); see also Tex. Const. art. V, § 5(a) (granting "final appellate jurisdiction" to the Court of Criminal Appeals "in all criminal cases of whatever grade").

I already have explained that Brooks did not do away with factual-sufficiency review; it simply recognized that when the burden of proof is beyond a reasonable doubt, factual sufficiency and legal sufficiency are one and the same. Brooks, 323 S.W.3d at 898-202; see also Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2007) (holding that factual-sufficiency review is "barely distinguishable" from Jackson v. Virginia standard). And the Court of Criminal Appeals, under its authority to verify that intermediate courts adhere to "rules of law," was completely within its rights to do so. Roberts, 221 S.W.3d at 663. Justice Seymore's exhortation notwithstanding, factual conclusivity — the constitutional prerogative of the intermediate courts — remains intact.

B

In his dissent, Justice Seymore does not merely lambaste the constitutional foundation of Brooks — he urges a refusal to "adhere to" it. He sees Brooks as such an "affront to the Texas Constitution" that we have no obligation to follow it. I do not agree that Brooks is so sinister. But even if it were, we would be no less compelled to go where it leads us.

Justice Seymore concedes that "[o]stensibly, this court is required to follow the dictates of vertical stare decisis by acceding to the opinions and mandates of the Court of Criminal Appeals." There's no "ostensibly" to it. "The Court of Criminal Appeals is the highest tribunal on matters pertaining to the enforcement of criminal laws, and when it has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation." Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.-Houston [1st Dist.] 1985, no pet.); see also Tex. Const. art. V, § 5(a); Robinson v. City of Galveston, 51 Tex. Civ. App. 292, 297, 111 S.W. 1076, 1079 (Galveston 1908, no writ) (holding that even "if we were disposed to doubt the soundness of [the Court of Criminal Appeals'] decisions, we would yet feel constrained to follow them").

Accord State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) ("`The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.'" (quoting State ex rel. Wilson v. Briggs, 351 S.W.2d 892, 894 (Tex. Crim. App. 1961)); Gabriel v. State, 290 S.W.3d 426, 436 n. 5 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (stating that "[a]s an intermediate court of appeals, we are bound by controlling authority from the Court of Criminal Appeals"); Villarreal v. State, 267 S.W.3d 204, 209 (Tex. App.-Corpus Christi 2008, no pet.); State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.-Fort Worth 1999, no pet.); Horton v. State, 986 S.W.2d 297, 300 (Tex. App.-Waco 1999, no pet.); Contreras v. State, 915 S.W.2d 510, 522 (Tex. App.-El Paso 1995, pet. ref'd) ("As an intermediate appellate court, we are duty[-]bound to follow the law declared by the Texas Court of Criminal Appeals on matters pertaining to the enforcement of criminal laws."); Flores v. State, 883 S.W.2d 383, 385 (Tex. App.-Amarillo 1994, pet. ref'd); Pettigrew v. State, 822 S.W.2d 732, 734 (Tex. App.-Dallas 1992, pet. ref'd).

Issues of hierarchical precedent are not child's play. "Inferior courts are absolutely bound to follow the decisions of the courts having appellate or revisory jurisdiction over them. In this aspect, precedents set by the higher courts are imperative in the strictest sense. They are conclusive on the lower courts, and leave to the latter no scope for independent judgment or discretion." Henry Campbell Black, Law of Judicial Precedents 10 (1912).

"[U]nless we wish anarchy to prevail" within our halls of justice, lower courts must follow higher-court precedent "no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 371, 375, 102 S. Ct. 703, 706, 70 L. Ed.2d 556 (1982) (per curiam). The judges of the inferior courts "must either obey the orders of higher authority or yield up their posts to those who will." Weber v. Kaiser Aluminum Chem. Corp., 611 F.2d 132, 133 (5th Cir. 1980) (Gee, J.).

Even if Brooks were an abomination, it is not the role of lower courts to rein in our courts of last resort when they go ultra vires. When the Supreme Court of Texas and the Court of Criminal Appeals interpret our state's constitution, we must follow. That's how our system works. To do otherwise — to defy the authority of our state's highest courts — is to forswear the rule of law.

SHARON McCALLY, Justice.

DISSENTING OPINION TO DENIAL OF REHEARING EN BANC

I respectfully offer my dissent to this court's denial of appellant's motion for rehearing en banc.

INTRODUCTION

A jury convicted appellant David Mark Temple of murdering his wife Belinda Temple on January 11, 1999, with a 12-gauge shotgun blast to the back of her head. This court, Justice Charles Seymore for the unanimous panel, affirmed the conviction. Justice Seymore, however, also authored a concurring opinion criticizing the majority for abdicating its responsibility to perform a constitutionally required factual-sufficiency review.

I suggest that en banc reconsideration is required in this case because: (1) opinions of this court conflict about whether Jackson v. Virginia requires a factual-sufficiency review; (2) we should resolve the conflict en banc and hold that a rigorous and proper application of Jackson v. Virginia, including analysis of whether a rational jury could have found the elements of the crime beyond a reasonable doubt, embodies a factual-sufficiency review; (3) the panel did not perform an appropriate Jackson v. Virginia sufficiency review of the evidence in appellant's case; and (4) a full Jackson v. Virginia sufficiency analysis in this case mandates reversal.

I also suggest that en banc reconsideration is appropriate in the case because of the flawed Brady and cumulative-error analysis performed by the Temple panel. Specifically, an "alternate suspect" RJS was the subject of the Brady point of error. On the fifth day of trial, one of the State's witnesses revealed to appellant's counsel for the first time that: RJS, the Temples' sixteen-year-old neighbor, lied to the police about skipping school on the day of the murder; RJS failed three polygraph tests; RJS had access to a 12-gauge shotgun and reloaded shells (the gun and ammunition used to murder Belinda) that the police had recovered; and RJS had recently shot that gun. The Temple panel held this Brady error was not preserved and was harmless. Yet, the record clearly reflects that (1) prior to trial the court assured appellant's counsel that he had read grand jury transcripts, which included RJS's testimony, and they contained no Brady materials, (2) appellant's counsel did not learn of the new information about RJS until several days after the beginning of trial, (3) appellant's counsel attempted to find RJS during trial but was unsuccessful, so he sought a continuance before resting his evidence — it was denied, and (4) the State, though it remained silent about RJS's location during the continuance hearing the day before, called RJS as a rebuttal witness. Regarding error preservation, the panel's reliance upon Wilson is misplaced on its face as appellant met the Wilson standard. See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) (holding that when the appellant learned of the exculpatory material five days before testimony began, his Brady complaint was not preserved by his failure to seek a continuance "before testimony began or before he rested his case in chief" (emphasis added)). Further, at a minimum, applying the cumulative error test of Harris v. State, this Brady error, along with the plethora of evidentiary and jury-argument errors the Temple panel specifically found, has eliminated integrity in the trial that led to appellant's conviction. See Harris v. State, 790 S.W.3d 568, 587-88 (Tex. Crim. App. 1989) (holding that the reviewing court must focus upon the integrity of the process leading to the conviction and should "always examine whether the trial was an essentially fair one"); see also Kelly v. State, 321 S.W.3d 583, 602 (Tex. App.-Houston [14th] 2010, no pet.). However, as I conclude herein that the evidence is legally insufficient and that a judgment of acquittal is appropriate, I do not write separately on this legal error.

CONFLICT AMONG PANELS AND COURTS: FACTUAL SUFFICIENCY REQUIRED?

The Texas Court of Criminal Appeals recently changed the standard of appellate review on legal and factual sufficiency in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). According to the Brooks plurality, the legal and factual-sufficiency standards had become "essentially the same standard" and there was "no meaningful distinction between them that would justify retaining them both." Id. at 894-95. So, it is beyond debate the Brooks court held that the Jackson v. Virginia, 443 U.S. 307 (1979), standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks, 323 S.W.3d at 895; id. at 926 (Cochran, J., concurring).

The new standard is easily stated: Intermediate appellate courts are to review all of the evidence (not just the evidence that favors the conviction) in the light most favorable to the prosecution (not a neutral light) and affirm if the evidence is legally sufficient for a rational jury (not just "a jury") to find all of the elements beyond a reasonable doubt. Id. at 899 (plurality opinion) ("It is fair to characterize the Jackson v. Virginia legal-sufficiency standard as: Considering all of the evidence in the light most favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.").

However, this court and other appellate courts have applied the standard inconsistently. First, this court has stated two different standards of review. According to the author of the majority opinion in Temple, the panel held that Brooks eliminated a factual-sufficiency review in Texas criminal cases. See Temple v. State, No. 14-08-0074-CR, — S.W.3d — , 2010 WL 5175018, at *38 (Tex. App.-Houston [14th Dist.] Dec. 21, 2010, no pet. h.) (Seymore, J., concurring). Other panels of this court have concluded that Brooks did not eliminate the factual-sufficiency review, holding specifically that the Brooks decision "does not alter the constitutional authority of the intermediate courts of appeals to evaluate and rule on questions of fact." Muhammed v. State, 331 S.W.3d 187, 191 n. 3 (Tex. App.-Houston [14th Dist.] Jan. 11, 2011, no pet. h.) (Anderson, J.).

Accord Quintanilla v. State, No. 14-10-00011-CR, 2011 WL 665328, at *5 n. 2 (Tex. App.-Houston [14th Dist.] Feb. 24, 2011, no pet. h.) (mem. op., not designated for publication); Serrato v. State, No. 14-09-00764-CR, 2011 WL 345635, at *3 n. 3 (Tex. App.-Houston [14th Dist.] Feb. 1, 2011, no pet. h.) (mem. op., not designated for publication); Ivey v. State, No. 14-09-00698-CR, 2011 WL 303893, at *2 n. 1 (Tex. App.-Houston [14th Dist.] Jan. 27, 2011, no pet. h.) (mem. op., not designated for publication); Wilson v. State, No. 14-09-00731-CR, 2011 WL 166901, at *1 n. 1 (Tex. App.-Houston [14th Dist.] Jan. 11, 2011, no pet. h.) (mem. op., not designated for publication); Shepard v. State, No. 14-08-00970, 2011 WL 166893, at *13 n. 10 (Tex. App.-Houston [14th Dist.] Jan. 11, 2011, no pet. h.) (mem. op., not designated for publication); Quinn v. State, No. 14-09-00914-CR, 2010 WL 4891410, at *2 n. 1 (Tex. App.-Houston [14th Dist.] Dec. 2, 2010, no pet. h.) (mem. op., not designated for publication).

A difference of opinion on the meaning and application of Brooks exists within the First and Second Courts of Appeals, as well. See Mosley v. State, Nos. 01-08-00937-CR, 01-08-00938-CR, — S.W.3d — , 2010 WL 5395655, at *15 (Tex. App.-Houston [1st Dist.] Dec. 30, 2010, pet. filed) (Jennings, J., concurring) (stating that the Brooks plurality eliminated factual-sufficiency appellate review); Ervin v. State, 331 S.W.3d 49, 67 n. 4 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (Alcala, J.) (disagreeing with recent court of appeals' decisions that suggest Brooks abolished factual-sufficiency challenges); Wise v. State, No. 02-09-00267-CR, — S.W.3d — , 2011 WL 754415, at *8 (Tex. App.-Fort Worth Mar. 3, 2011, no pet. h.) (Livingston, C.J., dissenting and concurring) (noting the majority's flawed application of the Brooks standard of review due to its failure to give the requisite deference to the jury's province to disbelieve even uncontradicted evidence).

There is no doubt, however, that in holding that factual and legal-sufficiency reviews are indistinguishable, the Court of Criminal Appeals has eliminated or abolished "factual sufficiency" as an independent point of error on appeal. See Howard v. State, 333 S.W.3d 137, 138 n. 2 (Tex. Crim. App. 2011).

Although en banc consideration of matters is disfavored, this case presents a textbook example of an en banc-worthy issue under Texas Rule of Appellate Procedure 41.2(c): uniformity of the court's decisions. See TEX. R. APP. P. 41.2(c). Appellant's entitlement to a full and constitutionally protected review of the evidence in this murder case should not depend upon which panel of the court is randomly assigned his case.

A RIGOROUS AND PROPER JACKSON V. VIRGINIA ANALYSIS EMBODIES A FACTUAL-SUFFICIENCY REVIEW

Courts of the view that Brooks eliminated a factual-sufficiency review hold that opinion because the Brooks court unquestionably eliminated a "neutral light" handling of evidence on a sufficiency review. However, the plain language of Brooks belies a conclusion that the court has relieved appellate courts of their obligation to review all of the evidence for factual sufficiency. Because the Brooks plurality holds that a factual-sufficiency review is part of a Jackson v. Virginia legal-sufficiency review, and because the Brooks plurality demonstrates the difference between reviewing and weighing evidence, this court should hold uniformly that Brooks and Jackson v. Virginia require a factual-sufficiency review. The Brooks plurality was emphatic: "a rigorous and proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency standard." 323 S.W.3d at 906.

1. Brooks holds that the "no-rational-jury" analysis is a factual-sufficiency review.

The Brooks plurality explicitly stated that a factual-sufficiency review under Jackson v. Virginia is embodied in the determination of whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Brooks, 323 S.W.3d at 902 n. 19 (quoting Jackson, 443 U.S. at 319) (holding that the "rational-trier-of-fact" component is "the portion of the Jackson v. Virgina standard that essentially incorporates a factual-sufficiency review"); see also Clewis v. State, 876 S.W.2d 428, 438-39 (Tex. App.-Dallas 1994) (explaining that the " Jackson v. Virginia standard necessarily encompasses a factual-sufficiency review"), vacated, 922 S.W.2d 126 (Tex. Crim. App. 1996), overruled by Brooks, 323 S.W.3d at 902 n. 19.

Justice Seymore's dissent from the denial of en banc reconsideration suggests this court would likely conclude the evidence in this case is factually insufficient upon a neutral weighing of the evidence, which is mandated by the Texas Constitution. As I conclude that, when viewed in the light most favorable to the conviction, the evidence is legally insufficient and no rational juror could have found the elements of this offense beyond a reasonable doubt, I necessarily agree that the evidence would be insufficient under a neutral-light review.

2. Brooks requires reweighing for sufficiency of evidence, not for weight of evidence.

Again, the plain language of the Brooks decision states that "viewing the evidence in `the light most favorable to the verdict' under a legal-sufficiency standard means that the reviewing court is required to defer to the jury's credibility and weight determinations." 323 S.W.3d at 899. The Brooks decision does not authorize a reviewing court to disregard evidence merely because the jury may have disregarded it. Stated differently, although the Brooks decision acknowledges that the court has never articulated precisely how much deference is due the jury's credibility and weight determinations, "total deference" is not required. See id. at 902 n. 19 (rejecting the suggestion from the dissenting opinion in Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008), that "total deference" is the standard). It bears repeating. Brooks says total deference is not the standard.

Therefore, it is clear that the Jackson v. Virginia sufficiency standard requires Texas appellate courts:

(1) to review all of the evidence;

(2) to review that evidence in the light most favorable to the verdict; and

(3) to give deference to the jury on credibility and conflicts in the evidence.

Thus, Brooks forbids the reviewing court to (1) disregard any evidence, or (2) neutrally (without deference) reweigh the evidence for the purpose of examining the jury's credibility determinations or resolution of conflicts in the evidence.

The command to review all of the evidence on a criminal-sufficiency challenge stands in contrast to the civil standard, rejected by Brooks, which authorizes the reviewing court to disregard contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

Significantly, however, we know from both Jackson v. Virginia and Brooks that there is some quantity or quality of evidence that a rational jury cannot disregard or disbelieve. The Brooks plurality was specific about that point:

A hypothetical that illustrates a proper application of the Jackson v. Virginia legal-sufficiency standard is robbery-at-a-convenience-store case: The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape of the event clearly shows that B committed the robbery. But, the jury convicts A. It was within the jury's prerogative to believe the convenience store clerk and disregard the video. But based on all the evidence the jury's finding of guilt is not a rational finding.

323 S.W.3d at 906-07. As the hypothetical states, the jury is free to believe or disbelieve evidence, but after a review of all of the evidence by the appellate court, it may become apparent that the jury's ultimate finding of guilt is not rational.

To emphasize the appellate court's role in this regard, Brooks refers the reader directly to Tibbs v. Florida, 457 U.S. 31 (1982), to decipher the difficult distinction between evidentiary sufficiency (legal) and evidentiary weight (factual). See Brooks, 323 S.W.3d at 899-901. The evidentiary-sufficiency standard gives "`the prosecution the benefit of all inferences reasonably to be drawn in its favor from the evidence,'" whether from direct or circumstantial evidence, and without the necessity of excluding every reasonable hypothesis except that of guilt. Tibbs, 457 U.S. at 38 n. 11 (quoting United States v. Lincoln, 630 F.2d 1313, 1316 (8th Cir. 1980). Tibbs further provides that the evidentiary-weight standard reconsiders the credibility of the witnesses and evaluates whether the "evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred." Id. (citing Lincoln, 630 F.2d at 1119).

Thus, the plain language of Brooks demonstrates that, although the light in which we view the evidence has changed, the court has not eliminated the requirement that appellate courts review all of the evidence and, " albeit to a very limited degree, to act in the capacity of a so-called `thirteenth juror'" to perform a factual-sufficiency review. Brooks, 323 S.W.3d at 901 (quoting Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)).

APPELLANT DID NOT RECEIVE A RIGOROUS AND PROPER JACKSON V. VIRGINIA SUFFICIENCY REVIEW

The Temple majority did not provide appellant an appropriate Jackson v. Virginia sufficiency review. As previously outlined, we know the Temple majority did not perform a factual-sufficiency ("no-rational-jury") analysis because the opinion's author, Justice Seymore, tells us so in his concurring opinion. See Temple, 2010 WL 5175018, at *38 (Seymore, J., concurring) (stating that this court "fail[ed] to review [appellant's] factual sufficiency challenges as questions of fact").

The face of the Temple opinion reveals Justice Seymore's observations to be accurate. The Temple panel demonstrably failed to apply a proper Jackson v. Virginia standard in two, independently flawed regards. First, the panel did not review all of the evidence. Second, the only "no-rational-jury" analysis applied by the panel in any way was not to all of the evidence, but rather to individual pieces of evidence.

A. The panel failed to review all of the evidence.

Instead of reviewing all of the evidence in the Temple record, the panel disregarded substantial evidence. In the name of deference to the jury, the panel concluded that any evidence favorable to the defense must have been disregarded by the jury, and therefore we, the reviewing court, must disregard it as well.

For example, when witnesses who lived adjacent to the Temple home testified that they heard a noise that sounded like a gunshot at 4:38 p.m., a time when appellant was not home, the panel concluded that "the jury was free to disbelieve it and rationally could have done so because [the witnesses] were children and no other witness testified that a gunshot was heard that day." Id. at *6 (majority opinion). This analysis falls short of an analysis of "all of the evidence" in two ways. First, there was no conflict in the testimony for the jury to resolve — according to Detective Schmidt, who interviewed the adjacent neighbors, no neighbor other than the Roberts children heard a gunshot at all, and yet, we know there was a gunshot; and we know from conclusive evidence that it occurred between 3:32 p.m. and 5:36 p.m. Second, the panel does not even mention the testimony of two other witnesses — also adjacent neighbors — who corroborated a disturbance in their location at that time; their dogs inexplicably "went crazy" at the time.

Although an appellate court is not required to detail all of the evidence admitted at trial, a proper sufficiency review should discuss the most important and relevant evidence that supports the appellant's complaint on appeal. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003) (referring to factual sufficiency analysis). Appellant, in his brief, urges that the timeline "made it impossible for him to have committed the crime" because at the same time neighbors heard gun shots, appellant was documented to be in another location. To disregard the timeline of sounds and absence of sounds relied upon by appellant is to disregard, without commentary, uncontradicted evidence simply because the jury may have disregarded it.

Although the jury is free to disbelieve any or all of the evidence, we cannot disregard it for purposes of a "no-rational-jury" analysis. See Redwine v. State, 305 S.W.3d 360, 366 n. 12 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) ("[D]isregarding all contrary evidence, no matter how mountainous or compelling it may be, appears incongruous with the reviewing court's task of deciding whether a rational factfinder could have found a defendant guilty beyond a reasonable doubt given that it is the evidence contrary to the verdict that commonly injects the element of `reasonable doubt' into the jury's deliberations."). In deferring to the jury, the Temple panel incorrectly disregarded all evidence that does not support the verdict.

B. The panel misapplied a "no-rational-jury" standard to pieces of evidence.

There is further indication in the Temple opinion that the panel confused the standard. Jackson v. Virginia commands that the appellate court determine, upon review of all of the evidence, whether no rational jury could have found the elements of the crime beyond a reasonable doubt. The only two times the Temple panel mentions a "rational jury" in its analysis of the evidence, the panel determines whether a rational jury could have believed particular pieces of evidence. See Temple, 2010 WL 5175018, at *6, *8 n. 3 (stating that "the jury was free to disbelieve [the children's testimony] and rationally could have done so," and "no rational jury could credit Vielma's testimony"). That is contrary to the proper standard. The court is not to substitute its judgment witness-by-witness to determine whom the jury rationally believes or disbelieves. Instead, the jury, to whom we defer on pieces of evidence, can only become irrational after a review of all of the evidence. See Brooks, 323 S.W.3d at 906-07.

For an appellate court to abdicate its responsibility to look at evidence that the jury may have disbelieved or disregarded deprives a defendant of the constitutionally mandated, minimum-sufficiency review. And for an appellate court to confuse "no rational jury could believe" a piece of evidence for a standard that requires examination of whether "no rational jury could convict based upon all of the evidence" highlights the absence of a proper standard of review in this case. This court should grant en-banc review to harmonize its statement and application of the Jackson v. Virginia sufficiency-of-evidence review.

A RIGOROUS AND PROPER JACKSON V. VIRGINIA SUFFICIENCY REVIEW MANDATES REVERSAL IN THIS CASE

The Temple case is, according to the panel, a purely circumstantial-evidence case. However, an examination of the status of circumstantial evidence for all types of criminal cases, in context, as well as the specific homicide cases relied upon by the Temple panel, reflects a significant departure from the rigorous analysis Texas requires of such evidence. Further, the rigorous analysis contemplated by Brooks, giving deference to the jury as directed, still reveals that this conviction rests upon no evidence that would permit a rational jury to find, beyond a reasonable doubt, that appellant intentionally or knowingly caused the death of Belinda Temple. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2003).

A. Murder convictions should not rest upon less circumstantial evidence than contraband-possession convictions.

Until 1983, when the Court of Criminal Appeals decided Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1983) (op. on reh'g), trial courts in criminal cases instructed juries not to convict on circumstantial evidence unless the jury excluded "every other reasonable hypothesis except the defendant's guilt." Id. at 197 (abolishing the requirement of a circumstantial-evidence charge); see also Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983) (op. on reh'g) ("[I]f the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding."). Then, in 1991, the Court of Criminal Appeals officially eliminated that same "reasonable hypothesis" construct from the evidence sufficiency review, as well. Geesa v. State, 820 S. W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000).

Meanwhile, in the context of crimes involving possession of contraband, the Court of Criminal Appeals coined the phrase "affirmative links" (and later, just "links") to describe the method for evaluating the circumstantial evidence linking an accused to contraband, such as drugs or firearms. See, e.g., Evans v. State, 202 S.W.3d 158, 161-62 n. 9 (Tex. Crim. App. 2006); Haynes v. State, 475 S.W.2d 739, 742 (Tex. Crim. App. 1972). Stated differently, when the contraband is not in the exclusive control of the defendant in the place or premise where it is found, the State must make a showing of links between the accused and the contraband. Evans, 202 S.W.3d at 161-62 n. 9 (noting that the term "links" is used "merely as a shorthand catch-phrase for a large variety of circumstantial evidence that may establish the knowing `possession' or `control, management, or care' of some item such as contraband"). Thus, had appellant been charged with possession of the firearm used to murder Belinda, the State would have had to establish links between such firearm and appellant. See, e.g., Williams v. State, 313 S.W.3d 393, 397 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) ("If the firearm is not found on the defendant or is not in his exclusive possession, the evidence must link him to the firearm.").

Ultimately the nonexclusive list of links suggested by the Court of Criminal Appeals has evolved into the following: (1) whether the defendant was present when a search was conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made any incriminating statements when arrested; (7) whether the defendant made furtive gestures or attempted to flee; (8) whether there was an odor of contraband; (9) whether other contraband or drug paraphernalia were present; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place where the drugs were found was enclosed; (12) whether the defendant was found with a large amount of cash; and (13) whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n. 12.

The elimination of the "reasonable hypothesis" construct created tension with the line of cases requiring links to eliminate the reasonable hypothesis that the defendant was an innocent simply in the wrong place. See Humason v. State, 728 S.W.2d 363, 367 (Tex. Crim. App. 1987), overruled by Geesa, 820 S.W.2d 154. In 1995, the Court of Criminal Appeals addressed the collision between its elimination of the "reasonable hypothesis" standard and its retention of the "affirmative links" analysis. In Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995), the court determined that each defendant must still be affirmatively linked with the contraband he or she allegedly possessed, but this link need no longer be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt. Id. at 748-49.

Today, more than fifteen years later, in a circumstantial-evidence case involving contraband, the State must still bring evidence that affirmatively links the accused to the contraband at issue. See, e.g., Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd). The court is not to look for a bright-line number of links answered affirmatively; instead, the court is to consider all of the links and determine "the logical force of all of the evidence, direct and circumstantial." Evans, 202 S.W.3d at 162. And still, the goal of the analysis of links is to protect an "innocent bystander — a relative, friend, or even stranger to the actual possessor — from conviction merely because of his fortuitous proximity to someone else's drugs." Id. at 161-62. All of these affirmative links require a focus on both the existence of circumstantial link and the absence of circumstantial link.

The circumstantial evidence in this case received nothing that resembles the analysis afforded a defendant in a case involving possession of a narcotic or a firearm. But, it should have. Absent a confession, eyewitness, accomplice, or recovered weapon, a nonexclusive list of affirmative links in murder cases could be:

(1) whether any of the defendant's DNA or other forensic evidence was tied to the crime or the scene, see Clayton v. State, 235 S.W.3d 772, 779-80 (Tex. Crim. App. 2007) (the defendant's bloody handprints at the scene); King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (the defendant's DNA on a cigarette butt found at the scene);

(2) whether any of the decedent's DNA or other forensic evidence was tied to the defendant, see Gardner v. State, 306 S.W.3d 274, 285-86 (Tex. Crim. App. 2009) (fibers likely from the decedent's red robe found in the truck driven by the defendant); King, 29 S.W.3d at 565 (the decedent's blood on the defendant's sandals);

(3) whether the defendant had access to or possessed a weapon or ammunition of the type used to commit the murder; see Guevara v. State, 152 S.W.3d 45, 51 (Tex. Crim. App. 2004) (shell casings matching the likely murder weapon found in the defendant's closet and car, and the defendant practiced firing a rented weapon of the same caliber shortly before the murder);

(4) whether the defendant was in possession of "fruits of the crime," Padilla v. State, 326 S.W.3d 195, 200-01 (Tex. Crim. App. 2010) (money and jewelry from the decedent's home);

(5) whether the defendant made any incriminating statements, see Guevara, 152 S.W.3d at 51 (the defendant told a friend he was researching how to make a silencer); King, 29 S.W.3d at 564-65 (the defendant's letter indicating pride in the offense could be construed as an admission); see also Smith v. State, 332 S.W.3d 425, 437 (Tex. Crim. App. 2011) (the defendant told her ex-husband that she committed the murders);

(6) whether the defendant attempted to conceal incriminating evidence, made inconsistent or implausible statements, or lied, Guevara, 152 S.W.3d at 50; see also Padilla, 326 S.W.3d at 201 (the defendant's untruthful statements may be considered in connection with the other circumstances of the case); King, 29 S.W.3d at 564-65 (the defendant's false statements to the media indicated consciousness of guilt and an attempt to cover up the crime);

(7) whether the defendant had a motive to murder the decedent, see Clayton, 235 S.W.3d at 781 (drug-related); Guevara, 152 S.W.3d at 50 (the defendant was having an affair and would receive substantial retirement benefits upon his wife's death); King, 29 S.W.3d at 565 (racial animosity); and

(8) whether the defendant attempted to flee or escape apprehension, see Clayton 235 S.W.3d at 780-81 (sudden flight from the crime scene and avoiding arrest for eight months).

Here, upon an analysis of these proposed links, the logical force of the evidence would not be sufficient. And, though the Court of Criminal Appeals has not suggested a list of affirmative links for murder cases, it is clear from the cases relied upon by the panel in this case that the court requires some link.

B. The circumstantial evidence to support appellant's murder conviction is nonexistent by comparison to the circumstantial evidence in the cases upon which the Temple panel relied.

The Temple panel correctly set forth the current role of circumstantial evidence, even as to murder cases: It is as probative as direct evidence and it may, standing alone, be sufficient to establish guilt. Temple, 2010 WL 5175018, at *3 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Then, the panel referenced three cases from the Court of Criminal Appeals to support the proposition that a murder conviction may rest solely upon inferences raised by circumstantial evidence. Id. (citing Clayton, 235 S.W.3d at 778-82; Guevara, 152 S.W.3d at 49-52; King, 29 S.W.3d at 564-65). Examination of the evidence necessary to affirm in these cases reveals the Temple panel's misapplication of the principles of circumstantial evidence.

In Clayton, the defendant's conviction rested upon, among other evidence, the following circumstantial evidence:

The evidence at trial showed that there was a significant amount of blood inside the car [where Playonero was shot at close range] and a moderate amount on the outside of the car. A latent-fingerprint examiner with the Houston Police Department testified that he identified prints belonging to Playonero, Ayala, and Clayton. He testified that he identified three sets of prints, stamped in blood — one on the middle console, one on the gear shift, and one on the steering wheel. These prints belonged to Clayton. The prints identified as belonging to Playonero and Ayala were not bloody.

235 S.W.3d at 775. Thus, in Clayton, the circumstantial evidence affirmatively linking the defendant to the murder included the defendant's bloody handprint, to the exclusion of others, at the scene of the murder.

In King, the case about the dragging death of James Byrd, Jr., the defendant's conviction rested upon, among other evidence, the following circumstantial evidence:

To summarize, the State presented several items of evidence that connect appellant to Byrd's murder: (1) DNA evidence from a cigarette butt at the crime scene — indicating appellant's presence during the murder, (2) DNA evidence on appellant's sandals — linking appellant to Byrd's injuries, (3) appellant's false statements to the media — indicating consciousness of guilt and an attempt to cover up the crime, (4) appellant's letter to Brewer — which could be construed as an admission that appellant participated in the crime, and (5) appellant's racial animosity — which supplies a motive for the murder.

29 S.W.3d at 565. Thus, in King, the circumstantial evidence linking the defendant to the murder included the presence of the defendant's DNA at the scene and the victim's DNA on defendant's shoes.

In Guevara, a case that is temptingly similar to this case on the facts, the defendant was convicted as a party to the murder of his wife. The defendant's mistress committed the actual murder — this fact was undisputed. 152 S. W. 3d at 47. The jury heard evidence about the affair, about the defendant's lies about the affair, and about the defendant's convenient alibi for the time of the murder. See id. at 50-51. The defendant discovered his wife's body. Id. at 47. However, the jury also heard the following evidence:

• One month before the murder, the appellant took his wife to a shooting range to practice firing a rented 9mm gun, the same caliber gun that was used in the murder.

• The defendant also told a friend, Paul Knauss, that he was researching how to make a silencer.

• Police found shell casings in the defendant's car that, according to the firearms expert, probably matched the murder weapon.

• Police found a box of shell casings under some clothes in the defendant's closet, thirty of which matched casings from the murder scene.

Id. at 51. Thus, in Guevara, the circumstantial evidence linking the defendant to the murder included shell casings from the likely murder weapon in his car and his closet.

In each of these cases, the State presented circumstantial physical evidence actually linking the defendant to the murder. In this case, it is undisputed that the State offered no circumstantial physical evidence linking appellant to the crime. See Temple, 2010 WL 5175018, at *32. The failure to do so is not attributable to a lack of physical evidence. The State had blood, brain matter, guns, and ammunition. None of it linked appellant to the crime.

With the framework of circumstantial evidence relied upon in the Clayton, King, and Guevara cases, the Temple decision falls far short. In its analysis of harm, the Temple panel specifically identified the "circumstantial evidence presented," which the panel concluded, "was not negligible":

• Appellant was involved in an extra-marital affair with Heather, had left his pregnant wife and son during the New Year's holiday to spend two nights with Heather, and resumed his relationship with Heather a relatively short time after Belinda's death, including sending Valentine's Day flowers a month later.

• Appellant criticized Belinda's weight, housekeeping, and childrearing, and he detested Belinda's family.

• The scene of the murder was staged to make it appear burglarized.

• Appellant, his parents, and his brothers conspired to protect appellant by concealing the truth about the family's shotguns and appellant's affair.

• Appellant's explanation for his trip to Brookshire Brothers and then eastward to Home Depot was refuted by the length of time it took him to enter Home Depot after leaving Brookshire Brothers and Bernard Bindeman's testimony that he saw appellant heading south from an area near appellant's parents' house.

• Appellant's behavior and demeanor immediately following Belinda's death.

• Appellant's untruthfulness regarding taking E.T. to a park and placing E.T. in a child seat.

• Testimony from Quinton and Tammy that, following Belinda's death, appellant aggressively confronted them regarding their statements to the police and grand jury, even following them in his truck.

Temple, 2010 WL 5175018, at *32. Assuming that the matters recited above are circumstantial evidence at all, they fall far short of the quantum of circumstantial evidence necessary to support a rational jury in determining, beyond a reasonable doubt, that appellant caused Belinda's murder.

Some of the matters recited are not, however, circumstantial evidence. At best, they are inferences that the Temple panel attempted to draw from testimony — sometimes inappropriately. For example, the panel broadly concluded that the Temple family conspired to protect appellant, including concealing the truth about the family's shotguns. There is, however, no evidence that any member of the Temple family lied about the shotguns. Members of the Temple family testified that: (1) appellant never owned a 12-gauge shotgun, though his brothers did; (2) in the mid-1980s, appellant owned a 20-gauge shotgun; and (3) appellant occasionally borrowed guns from his brother when he hunted. A friend of the family testified that he recalled seeing appellant shoot a 12-gauge shotgun when hunting in the mid-1980s.

This Temple-family testimony about the shotguns is not inconsistent with the other evidence. And it does not need to be inconsistent for the jury to disregard it because it is interested, family testimony. See Evans, 202 S.W.3d at 163 (holding that the jury is not required to believe even the uncontradicted testimony of the defendant's mother because "[s]he is, after all, the defendant's mother"). Yet, Evans does not suggest that the jury, when disbelieving the defendant's mother, may infer she was lying, and because she was lying, it is a circumstance of her son's guilt. If that were so, the State would only need to call the defendant's mother in every case to provide the silver-bullet inference. If the mother corroborated her son's innocence, the jury would be free to disregard her testimony, infer she was lying, and base its finding of guilt upon that inference. However, that is precisely the inference the Temple panel indulged in this case to fill the gap of evidence regarding appellant "causing the death of Belinda Temple."

Further, the Court of Criminal Appeals explains that

an inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.

Hooper, 214 S.W.3d at 16. It cannot be overemphasized: This inference regarding the family members "conspiring" to protect appellant concerning gun ownership more than fifteen years before this murder does not arise from actual facts proven through testimony. It is worse than speculation about the meaning of facts. It is speculation about what happened if the jury chose to disbelieve Kenneth Temple when he testified that he never purchased a 12-gauge shotgun for appellant: The jury substituted in place of the actual shotgun testimony — without any alternative evidence — the conclusions that: (1) Kenneth Temple did purchase appellant a 12-gauge shotgun in the 1980s, (2) appellant still owned that gun, (3) appellant owned double-ought, reloaded buckshot to fit into that gun, and (4) appellant used that gun and ammunition to shoot Belinda. This trial could have been much shorter if that inference exercise is permissible.

C. A rigorous and proper application of Jackson v. Virginia to all of the evidence, viewing it in the light most favorable to the conviction, reveals insufficient evidence for a rational jury to find beyond a reasonable doubt that appellant actually caused Belinda's death.

No rational jury could have found all of the elements of the offense charged against appellant. Specifically, there is no evidence, direct or circumstantial, to support even an inference that appellant actually caused Belinda's death.

There is evidence that supports an inference that appellant had a motive — he was having an affair. There is evidence that supports an inference that appellant had the opportunity to commit the crime — within the eighteen minutes that appellant failed to account for his time on the date of his wife's death with conclusive evidence. However, the State offered no evidence of any type that he actually committed the murder.

The conclusive evidence (from video surveillance, cell phones, and 911 calls) in this case accounts for appellant's whereabouts — away from the murder scene — for all but eighteen to thirty-five minutes of the one-hundred-twenty-four-minute window in which the crime was committed.

A review of the entire record of evidence yields the following Jackson v. Virginia analysis:

1. Conclusive evidence and agreed evidence

The Court of Criminal Appeals defines conclusive evidence as that evidence dispositive of the fact or element at issue. Evans, 202 S.W.3d at 163 n. 16. "Such evidence `becomes conclusive (and thus cannot be disregarded) when it concerns physical facts that cannot be denied.'" Id. (quoting City of Keller, 168 S.W.3d at 815). The Evans court placed into this category evidence upon which the parties mutually agree or assume. Id.

The following evidence is conclusive or agreed in this case:

• Belinda called appellant at home from her cell phone at 3:32 p.m., and the call lasted 30 seconds.

• Belinda was murdered in her home at 22502 Round Valley on January 11, 1999, between 3:32 p.m. and 5:36 p.m.

• E.T., the three-year-old son of Belinda and appellant, did not witness the murder.

• Belinda was murdered by a shotgun blast to the back of her head while she was inside and facing the rear of the bedroom closet of the home she shared with appellant.

• Belinda was shot with a 12-gauge shotgun, and the shell contained double-ought, reloaded buckshot.

• Belinda was murdered with a contact shot — the shotgun was aimed at and touching her head when fired.

• The 12-gauge shotgun discharged at 22502 Round Valley between 3:32 p.m. and 5:36 p.m. on January 11, 1999.

• Appellant and E.T. were in a Brookshire Brother's grocery store (and on a video surveillance tape) twelve minutes from home from 4:32 p.m. to 4:38 p.m. on January 11, 1999. Accordingly, appellant was not home from 4:20 p.m. to 4:50 p.m.

• Appellant and E.T. were in a Home Depot store (and on a video surveillance tape) fourteen minutes from home at 5:13 p.m. to 5:14 p.m. on January 11, 1999. Accordingly, appellant was not home from 4:59 p.m. to 5:27 p.m.

• A contact gunshot to the back of Belinda's head would cause some back splatter or blow back of blood or brain matter.

• Forensic analysis revealed none of Belinda's blood, none of Belinda's brain matter, and no gunshot residue on appellant or any of his clothing — none that he was wearing and none recovered from the laundry, bathroom, or vehicle.

• Forensic analysis revealed none of Belinda's blood or brain matter within either of the Temple vehicles.

• The backdoor window, because it was tempered, was broken with a tool or a gun, but not a hand or fist.

• Forensic analysis revealed no glass fragments on appellant's clothing.

• Forensic analysis revealed none of appellant's fingerprints on the bedroom television that was "placed" on the floor as part of the "staging."

• An extensive search of the Temple residence and Temple vehicles revealed no 12-gauge shotgun, no 12-gauge shotgun shells, and in particular, no 12-guage double-ought, reloaded shotgun shells.

• A multiple-day search that involved fifteen homicide officers, a dive team, ten to fifteen trustees, and a DPS plane with heat-seeking equipment scouring over four or five areas (including rice fields, reservoirs, canals, and ponds) of interest on the north side of Katy, where police believed appellant might have disposed of a weapon, revealed nothing.

• Subpoenaed emails between Heather and appellant revealed nothing beyond a flirtation — no murder plot, no discussions of weapon, no plans for the future that indicated a knowledge Belinda would be gone, etc.

2. Weighed evidence, including facts and inferences, with deference to the jury on credibility and conflict determinations

A rigorous and proper application of Jackson v. Virginia, as described by Brooks, requires an appellate court to defer to the jury on determinations of a witness's credibility and the weight to be given the testimony by reviewing all of the evidence in the light most favorable to the conviction. Brooks, 323 S.W.3d at 900. Brooks acknowledges, however, that the Court of Criminal Appeals has never articulated precisely how much deference such determinations are due. Id. (noting that even the court's factual-sufficiency decisions have always required a reviewing court to afford a great amount of deference "(though this Court has never said precisely how much deference) to a jury's credibility and weight determinations"). Nevertheless, it is clear that "total deference" is not required. See id. at 902 n. 19.

The jury was entitled to weigh the disputed evidence of a relationship outside his marriage and disrespectful treatment of his wife and determine that appellant had a motive to kill his wife. See Guevara, 152 S.W.3d at 50. Former "friends" Tammy and Quinton Harlon and Belinda's twin sister Brenda testified that appellant criticized his wife's weight, housekeeping, and childrearing, and he detested Belinda's family. Heather Temple admitted that she and appellant had a sexual relationship of a few encounters, and Heather and her roommate Tara gave testimony that appellant lied to his family and spent two nights with Heather in the two weeks prior to Belinda's death. The jury heard from investigators that Heather told police appellant said he loved her. Quinton, who also had pursued Heather, testified that appellant was unsure if he was willing to leave Belinda for Heather. Appellant continued his relationship with Heather shortly after Belinda's death.

By the time the State tried appellant for murder 8½ years after the murder, appellant and Heather had married.

Though Heather disputed this police account, as this evidence is in conflict, the jury was free to resolve it in favor of the police and, viewing the evidence in the light most favorable to the conviction, I assume they did.

The jury was entitled to weigh the disputed circumstantial physical evidence of glass at the scene and officer testimony and conclude that the scene was staged to appear that a robbery had occurred. Investigators testified that the broken glass in the back door and the overturned television in the bedroom appeared to have been staged because the glass was not in the right place and the television appeared gently set on the floor. Detective Mark Schmidt felt that the Temple home was staged to make it appear to have been burglarized. Insurance agents testified about the stolen jewelry claim made by the Temple family, which did not precisely match the list given to police — however, the family consistently listed only Belinda's jewelry.

It important to note the State advanced the theory that appellant must have staged the scene because his Chow, Shaka, would never have allowed a stranger into the backyard without at least barking. The Temple panel concluded, I believe correctly, that the jury was not free to indulge this inference because of the evidence that Shaka was in the garage at the time of the murder. Temple, 2010 WL 5175018, at *8 n. 3. The dog's bed, fresh food, and water were in the garage; the latch on the backyard fence was broken; no one heard Shaka barking; no one observed the dog in the backyard during the afternoon; and the dog was known to remain in the garage even when the door was opened for vehicles to enter. Without this inference, the most the jury was entitled to infer, without speculation, is that robbery was not the motive for the murder — not that appellant committed the murder.

Defense expert testimony and defendant's own testimony dispute that the scene was or could have been staged. However, as this evidence is in conflict, the jury was free to resolve it in favor of the police, and viewing the evidence in the light most favorable to the conviction, I assume they did.

The jury was entitled to weigh the disputed testimony to conclude that appellant was lying. Here, the evidence supports an inference that appellant lied on several occasions. First, evidence supports a conclusion that appellant did not take the route home from Home Depot north across Interstate 10 that he claimed. Appellant was observed by Bernard "Buck" Bindemann, who was familiar with appellant from high school (approximately fifteen years earlier) at the intersection of Katy Hockley Cut-Off and Morton Ranch Road between 4:50 p.m. and 5:00 p.m. on January 11, 1999. Appellant said he went to the park, then to Brookshire Brothers, then to Home Depot, and then home. Bindemann said he saw appellant at an intersection not on the described route home and not heading toward home. Second, appellant lied when he said he placed E.T. in a car seat before they drove north on Interstate 10. Crime scene photographs of appellant's vehicle do not show a car seat in the car. Third, appellant confronted his former best friends Quinton and Tammy Harlon about their grand-jury testimony and statements to police, and he told them to keep their mouths shut.

The jury was entitled to weigh the disputed testimony to conclude that appellant was not emotional about his wife's death. Police officers observed a lack of emotion in appellant following Belinda's death. 3. All of the evidence, after appropriate deference

All fact witnesses who had a history with appellant, even those adverse to appellant such as the Harlons, testified that appellant was emotional over the loss of his wife and child. However, as this evidence is in conflict, the jury was free to resolve it in favor of the police, and viewing the evidence in the light most favorable to the conviction, I assume that they did.

As discussed above, a reviewing court must consider all of the evidence. Brooks, 323 S.W.3d at 899. In the near one-month guilt/innocence phase of the trial, the parties presented more than sixty witnesses to the jury, including investigators, neighbors, family, police and medical responders, custodians of records, and others, directed almost exclusively to establishing the timeline of events. However, none of the investigators provided any link between appellant and the crime scene. The following evidence, falling into the categories I describe as "timeline evidence" and "RJS evidence," omits all evidence the jury was free to disbelieve, as previously outlined:

a. Timeline evidence

• Witnesses at the schools where Belinda and appellant worked, as well as the daycare where E.T. was enrolled, confirm that E.T. became ill in the morning, Belinda picked him up, and appellant came home to stay with E.T. so Belinda could go back to work. Belinda stopped by appellant's parents' house for soup on the way home, phoned appellant from her cell phone at 3:32 p.m., and then arrived home between 3:45 p.m. and 4:00 p.m.

• Appellant and E.T. were on a videotape at Brookshire Brothers from 4:32 p.m. to 4:38 p.m. Brookshire Brothers was at least twelve minutes from the Temple home without considering that his necessary path traveled across Interstate 10 at approximately rush hour when the freeway was under construction. A Brookshire Brothers manager recalled having a discussion with appellant outside the store after 4:38 p.m. Appellant had put a quarter in the mechanical hobby horse for E.T. to ride, but it would not work.

• Neighbor Natalie Scott drove by the Temple home at 4:30 p.m. but did not hear or see anything.

• At about 4:30 p.m., Mr. and Mrs. Parker's (adjacent-to-the-back-fence neighbors) dog went "crazy" in the backyard. Mr. Parker went outside to investigate and found no reason for the dog's behavior but noticed their tool shed had been opened.

• At 4:38 p.m., Belinda's sister called the Temple home phone line. No one answered, and she left a message.

• At some point between 4:38 p.m. at 4:41 p.m., the Roberts brothers (adjacent neighbors to the Temples), ages nine, eight, and six, heard a gunshot. They specifically recalled the sound and comforting one another. They measured the time by the time they were dropped off by the bus, had a snack, did a few minutes of homework, and started a video, Dr. Dolittle. The boys were able to pinpoint within the movie where they heard the shot, and another witness confirmed the bus schedule that day. No other witnesses heard a gunshot at any time.

• At approximately 4:55 p.m. or 5:00 p.m., RJS's (a sixteen-year-old sophomore at Belinda's school and the Temples' across-the-street neighbor) dogs started barking in the house. He was sleeping after having smoked marijuana during the day, and the dogs woke him up. At the same time, between 4:50 p.m. and 5:00 p.m., Bernard "Buck" Bindemann observed appellant at the intersection of Katy Hockley Cut-Off and Morton Ranch Road.

• Natalie Scott drove by the Temple home at 5:10 p.m. She did not see or hear anything.

• At 5:10 p.m., Kenneth Temple called to see how E.T. was feeling. No one answered, and he left a message.

• At 5:14 p.m., appellant and E.T. were on videotape at Home Depot a few minutes away from Brookshire Brothers. Home Depot is at least twelve minutes from the Temple home without considering that his necessary path traveled across Interstate 10 at approximately rush hour when the freeway was under construction.

• At around 5:25 p.m., Angela Vielma walked by the Temple home. She had a fight with her boyfriend and was walking to a friend's house. She observed appellant and E.T. drive into the garage. She did not see a dog or another vehicle in the garage.

• At approximately 5:35 p.m., appellant banged on the door of Mike and Peggy Ruggiero. They are adjacent neighbors on the garage side. Appellant was screaming, "Mike, Mike, it's me David. Let me in." When Mike opened the door, appellant said he needed them to keep E.T. because his house had been broken into. Peggy kept E.T. and phoned 911 at 5:36 p.m. while appellant and Mike returned to the Temple home. Appellant ran through the backyard and into the house, but Mike was stopped short by the Temple's dog. The dog did not like Mike and jumped on the fence at him — Mike stayed at the gate, holding it closed because of the broken latch, while appellant went into the house.

• At 5:38 p.m., appellant called 911 from inside the home.

• Sam Gonsoulin and Kathleen Johnson were the first responders. They were dispatched at 5:45 p.m. and arrived shortly thereafter. Johnson stayed outside with appellant while Gonsoulin went into the house. Gonsoulin was deceased by the time of the trial.

According to the Temple panel, the timeline evidence shows that appellant had eighteen minutes to commit the murder and dispose of all physical evidence. See 2010 WL 5175018, at *6. Further, there was evidence that a gunshot was heard in the neighborhood at a time when appellant could not have committed the murder, and there was no evidence that a gunshot was heard during the time appellant could have committed the murder.

However, the Temple panel did not view the evidence in the light most favorable to the conviction in arriving at this timeline. Appellant testified at trial that Belinda arrived home "closer to 4:00 p.m." but admitted that his initial estimate to officers was 3:45 p.m., and thus, the window for appellant to commit the murder and dispose of all physical evidence could have been thirty-five minutes: from 3:45 p.m. to 4:20 p.m. Appellant could have left his house no later than 4:20 p.m. to make the twelve-minute commute to Brookshire Brothers, where he appeared on a video camera at 4:32 p.m.

a. RJS evidence

As previously stated, RJS was the sixteen-year-old neighbor of the Temples. RJS and Belinda had a history: The jury heard of repeated run-ins with Belinda. She was one of his "counselors" at school and was constantly telling him to get to class because he was a class-skipper. In the fall of 1998, Belinda reported RJS's horrible school-attendance record to his parents, and they grounded him. Belinda also told RJS's parents about broken bottles in her yard, for which she suspected RJS. RJS stood and watched as his friends tore down the Temples' outdoor Christmas decorations less than a month before Belinda was murdered. These undisputed facts support a motive for RJS.

RJS and his family owned guns — 12-gauge shotguns — and they used 12-gauge double-ought shotgun shells that they reloaded. Within days before Belinda's murder, RJS took a 12-gauge shotgun and some shells out with his friends to shoot. He knew that his buddy Casey had recently stolen a 12-gauge shotgun from his mother's boyfriend, so Casey and RJS decided to go shooting. Usually, after he shot his dad's guns, he would clean them, but he did not know whether these guns were cleaned. He recalled leaving his 12-gauge shotgun with Casey. However, police records show that, several days after the murder, RJS's father voluntarily surrendered two 12-gauge shotguns. There was no blood detected on either. RJS's father also surrendered live, reloaded shotgun shells; none of those submitted contained wadding that matched the murder shell. However, these undisputed facts support RJS's possession of a weapon and ammunition consistent with those used to kill Belinda.

On the day of Belinda's death, RJS cut school after seventh period and was at his home, across the street from the Temple home, several times on the afternoon of Belinda's murder.

However, RJS testified that while he was skipping school, he and his friends hung out, went from house to house, and smoked marijuana. RJS admitted to being addicted to marijuana at the time. Further, though he was prohibited from driving, he nonetheless drove that afternoon. Initially he and his friends arrived at his home at approximately 3:30 p.m. after smoking a joint. When he arrived home, he was surprised to find one of his front doors cracked open. So, he and his friends looked around the house to be sure there had not been a burglary.

Later, he and his friends drove around in one of the boy's tan, four-door car looking for more marijuana, but could not find any. The Ruggerio's, taking their nightly walk through the neighborhood, saw a car matching that description, containing two teens, speed from the neighborhood at approximately 4:30 p.m. RJS believed he returned home around 4:20 p.m. or 4:30 p.m. He then fell asleep on the couch. He slept soundly because he was stoned; however, his dogs woke him between 4:55 p.m. and 5:00 p.m., as discussed above. These facts support RJS's opportunity to commit the crime.

RJS talked to the police on several occasions and "probably" smoked marijuana before going to the station to talk to them. He was interviewed more than once. RJS then provided grand jury testimony but smoked marijuana the night before. RJS unabashedly admitted that during this time he lied to his parents about driving the car, smoking marijuana, having marijuana in the house, skipping school, and shooting his father's guns. Accordingly, there is direct evidence that RJS lied and was sufficiently addicted to marijuana that he smoked marijuana even when it was likely his drug use would be discovered.

4. No rational jury could find guilt beyond a reasonable doubt

My conclusion about this record is straightforward. First, the absence of evidence should be dispositive. A rational jury cannot find, beyond a reasonable doubt, that one individual caused the death of another based solely upon (1) circumstantial evidence of motive, (2) circumstantial evidence of opportunity, and (3) inferences of guilt, none of which actually provide an affirmative link to the crime. If, as outlined herein, the State calls the defendant's mother, who says her son did not commit the crime, and we permit the jury to disbelieve it and infer from their disbelief that the defendant is guilty, we have allowed the irrational. Indeed, the Temple panel allowed the irrational.

Second, as to the evidence as a whole — deferring to the jury — appellant's conviction should be reversed. A rational jury could not hear of RJS's motive, opportunity, and possession of a weapon and ammunition consistent with those used to kill Belinda and, yet, form no reasonable doubt that RJS rather than appellant committed the crime. Moreover, a rational jury could not believe that appellant committed this murder in the manner that he did, whether in eighteen minutes or thirty-five. In this short time period, appellant allegedly surprised his wife, forced her into a closet, with a telephone in her hand, made her turn around facing the rear, placed a 12-gauge shotgun to the back of her head, and pulled the trigger. Appellant cleaned up. He washed the blood and brain matter from himself (hair and clothing) and left no trace in any sink in the house or on any towel in the house. Or, he covered himself, so he was required to dispose of the covering, but not in the house because it was searched. Appellant drove the blood and brain-soaked clothing and dumped it during his outing, without leaving a trace in the car, and he did so in a manner that a massive hunt for the items turned up nothing. Appellant transported and disposed of the gun without leaving a trace of blood, brain matter, or gunshot residue in the car, and he did so in a manner that a massive hunt for the gun turned up nothing. Before he left home, appellant staged it to create an appearance of a burglary. He used a tool to break the tempered glass in the back door, without getting glass on himself or his shoes. He put the tool away. He slid the television off of its stand without leaving prints on it. He opened miscellaneous drawers. He did all of these things while: (1) his three-year-old son was waiting for him somewhere inside or outside the house; and (2) hoping no one in the neighborhood heard the blast and called for help. It is more than just hard to believe this actually happened; it is irrational to believe it.

CONCLUSION

This court should grant appellant's motion for rehearing en banc. The Temple panel decision should not remain the Fourteenth Court of Appeals' last word on this case; our authoring colleague, Justice Seymore, agrees, although for different reasons.

The unrest that Brooks has created in intermediate appellate courts' application of the standard of review cost appellant his only appeal of right. Brooks eliminated a factual-sufficiency point of error because the standard that would apply is indistinguishable from the legal-sufficiency review. It was not the purpose of Brooks to ease the burden of intermediate appellate courts. Appellant is still entitled to a full-record review, a detailing of evidence sufficient to support a rational jury's determination to convict, and an evaluation of the process used to convict that generates a confidence that appellant's conviction will and should stand the test of time and technology. This court will continue to wrestle with circumstantial evidence, and inferences, and how to afford appropriate deference in the refining of Brooks. And, yet, just as appellant did not receive the benefit of a Clewis neutral-light review because the State was unable to indict in 1999, appellant will not receive the benefit of a proper Brooks standard of review if we do not grant this rehearing.

CHARLES W. SEYMORE, Justice.

DISSENTING OPINION TO DENIAL OF REHEARING EN BANC

While this case was pending, a plurality of the Court of Criminal Appeals issued Brooks v. State and abolished factual-sufficiency review in derogation of the Texas constitutional and statutory right to appellate review of questions of fact in criminal cases. 323 S.W.3d 893, 894-912 (Tex. Crim. App. 2010) (Hervey, J., joined by Keller, Keasler, Cochran, JJ., plurality op.) id. at 913-26 (Cochran, J., joined by Womack, J., concurring); see also Tex. Const. art. V, § 6(a). In fact, the Court of Criminal Appeals recently acknowledged it had abolished factual-sufficiency review. Howard v. State, 333 S.W.3d 137, 138 n. 2 (Tex. Crim. App. 2011) (citing Brooks and commenting, "The appellant also argues that the evidence was factually insufficient, but since the appellant's brief was submitted we have abolished factual-sufficiency review"). Accordingly, I dissent to the majority's decision to deny my request for en banc reconsideration of this court's adherence to Brooks and the concomitant disregard of appellant's right to seek review of his questions of fact, guaranteed by the Texas Constitution.

JURISDICTION

Ostensibly, this court is required to follow the dictates of vertical stare decisis by acceding to the opinions and mandates of the Court of Criminal Appeals. However, this court also has the duty to defend the Texas Constitution by asserting its conclusive appellate jurisdiction over questions of fact in criminal cases.

[T]he decision of [Texas courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.

Tex. Const. art. V, § 6(a). Early in Texas history, criminal defendants were afforded the protections of appellate review of questions of fact. The Supreme Court of the Republic of Texas recognized "the defendant in a criminal prosecution in the district court has the right of appeal to this court from the judgment or sentence of the court below, and to have the facts as well as the law, at his own election, opened for re-examination." Republic v. Smith, Dallam 407, 410-11 (Tex. 1841) (emphasis added). In Texas, appellants may challenge as erroneous, a finding of fact on the ground the jury's verdict was against the preponderance of the evidence, i.e., the evidence was factually insufficient. See, e.g., Choate v. San Antonio A.P. Ry. Co., 44 S.W. 69, 70 (Tex. 1898). The exclusive and conclusive jurisdiction of appellate courts was recently acknowledged by the Texas Supreme Court: "[A] review of the evidence for factual sufficiency is a power committed exclusively to the court[s] of appeals." Regal Fin. Co. v. Tex. Star Motors, No. 08-0148 — — S.W.3d — , 2010 WL 3277132, at *7 (Tex. Aug. 20, 2010) (emphasis added).

There is a plethora of authority acknowledging the Texas constitutional imperative that intermediate courts of appeals have conclusive jurisdiction over factual-sufficiency issues in criminal cases, but the Brooks plurality disregarded their own precedent in derogation of that jurisdiction. See Laster v. State, 275 S.W.3d 512, 518-19 (Tex. Crim. App. 2009); Bigby v. State, 892 S.W.2d 864, 872-75 n. 3 (Tex. Crim. App. 1994); Ex parte Schuessler, 846 S.W.2d 850, 852-53 (Tex. Crim. App. 1993); Meraz v. State, 785 S.W.2d 146, 152-54 (Tex. Crim. App. 1990); see also Brooks, 323 S.W.3d at 931 (Price, J., joined by Meyers, Johnson, Holcomb, JJ., dissenting) (expressing that the plurality ignored stare decisis). Actually, the Court of Criminal Appeals previously cautioned against what happened in Brooks:

[I]t [is] not appropriate for this Court to create a standard of review which is in conflict with the language of our State Constitution.

Meraz, 785 S.W.2d at 152; see also Susan Bleil Charles Bleil, The Court of Criminal Appeals Versus the Constitution: The Conclusivity Question, 23 St. Mary's L.J. 423, 424 (1991).

The Court of Criminal Appeals further declared that the only way to preclude a Texas court of appeals from "determin[ing] if a jury finding is against the great weight and preponderance of the evidence," i.e., determining a question of fact, is for "the people of the State of Texas to amend the Constitution." Meraz, 785 S.W.2d at 152. Subsequently, the Brooks plurality conversely concluded: "As the Court with final appellate jurisdiction in this State, we decide that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks, 323 S.W.3d at 912 (plurality op.) (citation omitted). The Brooks plurality attempts to justify this jurisdictional incursion with the implicit suggestion that their authority to establish standards of appellate review trumps any jurisdictional impediment. Id. at 911 (citing Clewis v. State, 876 S.W.2d 428, 431 (Tex. App.-Dallas 1994), vacated, 922 S.W.2d 126 (Tex. Crim. App. 1996)). However, I respectfully submit that our superior court has neither the jurisdiction nor constitutional authority to create or implement a standard of review that either explicitly or implicitly abolishes a Texan's right to appellate review of his questions of fact as questions of fact.

This court and all intermediate appellate courts in Texas are presently faced with a fundamental question relative to the oath of office for members of the judiciary: whether to "protect and defend" the right, under the Texas Constitution, to appellate review of questions of fact as questions of fact in criminal cases. The question is not rhetorical because constitutionally mandated protection is at stake. Intermediate appellate courts in Texas have no inherent power to ignore an express constitutional mandate. See Queen v. State, 842 S.W.2d 708, 711 (Tex. App.-Houston [1st Dist.] 1992, no pet.). Moreover, in consideration of recent public acknowledgements that numerous Texans were actually innocent when convicted, our courts should be vigilant to insure that Texans are afforded all constitutional protections against erroneous conviction. The goal of our criminal justice system should be to convict the guilty and exonerate the innocent. See United States v. Nobles, 422 U.S. 225, 230 (1975).

EN BANC RECONSIDERATION

This court is presented with an extraordinary circumstance necessitating en banc review: whether to adhere to the decision of the Court of Criminal Appeals to dictate a standard of review for factual sufficiency that "abolishes" appellate review of questions of fact. See Tex. R. App P. 41.2(c) (allowing en banc review when extraordinary circumstances so require). En banc review is necessary because this court has already followed Brooks in several opinions. I separately called for en banc review to afford this court the opportunity to reverse course and fulfill a Texan's right to meaningful factual-sufficiency review. Unfortunately, a majority of my colleagues choose to disregard this affront to the Texas Constitution.

In my previous concurrence with the panel opinion, I lamented that I am constrained to follow this court's decision to deny appellant's request for appellate review of questions of fact. I declined to perform a factual-sufficiency review, concluding that any effort in this regard would contradict this court's precedent. Accordingly, for reasons outlined below, I dissent to this court's rejection of en banc reconsideration of the decision to deny appellate review of appellant's questions of fact as prescribed by Article 5, Section 6 of the Texas Constitution. Tex. Const. art. V, § 6(a).

DOES THE JACKSON STANDARD FULFILL THE TEXAS CONSTITUTIONAL GUARANTEE OF APPELLATE REVIEW FOR FACTUAL SUFFICIENCY OF THE EVIDENCE?

In Clewis v. State, the Court of Criminal Appeals held that in determining factual sufficiency of the evidence, an appellate court should view "`all the evidence without the prism of "in a light most favorable to the prosecution," [and set] aside the verdict only if it is so contrary to overwhelming weight of the evidence as to be clearly wrong and unjust.'" 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (adopting the standard prescribed by the court in Stone v. State, 823 S. W. 2d 375 (Tex. App.-Austin 1992, pet. ref'd, untimely filed)). The Brooks plurality overruled Clewis, holding that the standard of review for any challenge to sufficiency of evidence is the Jackson v. Virginia legal-sufficiency standard in which an appellate court considers all of the evidence in the light most favorable to the verdict, and determines whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 895 (plurality op.).

Apparently, following the Court of Criminal Appeals opinion in Brooks, a majority of this court concluded that there is an implicit factual-sufficiency component within the standard of review for legal sufficiency prescribed by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Accordingly, those members of this court must have concluded that protections afforded criminal defendants under Article 5, Section 6 of the Texas Constitution were not abrogated by Brooks. In her dissent to this court's denial of en banc review, Justice McCally bases some of her criticism regarding the panel opinion on what she considers to be failure to incorporate a factual-sufficiency component when reviewing all the evidence under the Jackson standard of review for legal sufficiency. Risking redundancy, I remind my colleagues that the Brooks plurality adopted the unexpurgated Jackson standard of review for legal sufficiency as the standard for reviewing all challenges to sufficiency of evidence. Brooks, 323 S.W.3d at 895 (plurality op.). Under Jackson, this court must totally defer to the jury's weight and credibility determinations. Jackson, 443 U.S. at 319 n. 13, 326. Accordingly, for reasons outlined below, I strongly disagree with the proposition that a type of factual-sufficiency review contemplated under Clewis is subsumed under Jackson.

I address Justice McCally's criticisms of the majority opinion below.

Since the Brooks opinion, the Court of Criminal Appeals confirmed that factual sufficiency review has been "abolished." Howard, 333 S.W.3d at 138 n. 2.

First, under Jackson, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. The jury resolves conflicts in the testimony, weighs the evidence, and draws inferences from basic facts to ultimate facts, and the appellate court "impinges upon `jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law." Id. If the Brooks plurality implicitly concluded that the Jackson standard for legal-sufficiency review covers any questions of fact raised by an appellant, those members of the Court failed to acknowledge the unique constitutional duty of Texas courts of appeals to decide questions of fact by weighing all of the evidence. See Tex. Const. art. V, § 6(a). This is true because a question of fact as described in the factual-conclusivity clause is a "legal term of art signifying `questions of weight and preponderance of evidence.'" Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997) (quoting Combs v. State, 643 S.W.2d 709, 715 (Tex. Crim. App. 1982)). Conversely, as noted above, under the Jackson standard, the appellate court completely and totally defers to the jury's weight and credibility determinations. Jackson, 443 U.S. at 319 n. 13, 326.

Second, under Jackson, "the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Id. at 319. The evidence is not weighed, and a successful challenge to legal sufficiency of the evidence results in acquittal, not a new trial. See Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). Whether the evidence is legally sufficient under Jackson " is of course wholly unrelated to the question of how rationally the verdict was actually reached. . . . [T]he standard announced today . . . does not require scrutiny of the reasoning process" used by the fact-finder. Jackson, 443 U.S. at 319 n. 13 (emphasis added). Succinctly, evidence is legally insufficient where the "only proper verdict" is acquittal. Tibbs, 457 U.S. at 42.

Third and conversely,

A reversal on [a factual-sufficiency] ground, unlike a reversal based on [legally-]insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a "thirteenth juror" and disagrees with the jury's resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal.

A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented [legally-]sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment. An appellate court's decision to give the defendant this second chance does not create "an unacceptably high risk that the Government, with its superior resources, [will] wear down [the] defendant" and obtain conviction solely through its persistence.

Id. at 42-43 (citations and footnotes omitted) (emphasis added). Thus, the United States Supreme Court expressly rejected the contention (accepted as true by the Brooks plurality) that a "distinction between the weight [(factual sufficiency)] and [legal] sufficiency of the evidence is unworkable," noting that "trial and appellate judges commonly distinguish between the weight [(factual sufficiency)] and [legal] sufficiency of the evidence" and the Due Process Clause "sets a lower limit on an appellate court's definition of evidentiary sufficiency." Id. at 44-45 (emphasis added). Under Jackson, the appellate court may not reweigh evidence or scrutinize the jury's reasoning in any way. Jackson, 443 U.S. at 319 n. 13, 326.

To employ such complete deference when reviewing factual sufficiency of the evidence contravenes a Texas criminal defendant's constitutional right to appellate review of fact questions. Accordingly, I strongly disagree with the conclusion by a plurality of the Court of Criminal Appeals and a majority of my colleagues on this court that the Jackson standard of review is sufficient to fulfill the Texas constitutional guarantee of appellate review of questions of fact in criminal cases. I am not alone. In his comprehensive concurring opinion in Ervin v. State, Justice Jennings described what can only be denominated as jurisdictional usurpation by the Court of Criminal Appeals. 331 S.W.3d 49, 56-70 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (Jennings, J., concurring).

THE CLEWIS CONUNDRUM

The Brooks plurality described the progression of previous opinions dealing with appellate standards of review for sufficiency of evidence in criminal cases. However, our colleagues on the Court of Criminal Appeals could not reconcile the concept of reviewing the evidence in a neutral light, as prescribed in Tibbs, with lengthy Texas jurisprudence, both civil and criminal, according much deference to the jury's determinations of weight and credibility. The Brooks plurality referred to Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008), as the final nail in the coffin for factual-sufficiency review. Brooks, 323 S.W.3d at 901-02 (plurality op.); see also id. at 925-26 (Cochran, J., concurring). The plurality opined that requisite deference to the jury as the sole judge of a witness's credibility and the weight to be given testimony eliminates viewing the evidence in a "neutral light." Brooks, 323 S.W.3d at 902 (plurality op.) (overruling Clewis, 922 S.W.2d 126).

The Brooks plurality was so focused on resolving the analytical conundrum their court created by fashioning a standard of review for factual sufficiency in Clewis that they failed to acknowledge the difference between a constitutional guarantee of appellate review versus a standard of review gleaned under the principles of stare decisis. For example, the plurality concluded: "We believe that these and the reasons given by the Florida Supreme Court for abandoning its factual-sufficiency standard are good reasons for discarding the confusing and contradictory Clewis factual-sufficiency standard." Id. at 905. The plurality failed to acknowledge the fact that Florida does not have a similar constitutional guarantee of appellate review for questions of fact. The Florida Supreme Court simply exercised its jurisdictional and state constitutional authority to change the standard of review in order to eliminate confusion and avoid disparate results. Tibbs v. Florida, 397 So. 2d 1120, 1125 (Fla. 1981) (per curiam). The Texas Court of Criminal Appeals does not have authority to amend the Texas Constitution. See Meraz, 785 S.W.2d at 152, 154.

Moreover, the Brooks plurality's stated reasons for discarding factual-sufficiency review are unsupportable: (1) troubling double jeopardy problems are presented because the Clewis factual-sufficiency standard is barely distinguishable from the Jackson legal-sufficiency standard and (2) the non-deferential standard in Clewis could violate the right to trial by jury under the Texas Constitution. Brooks, 323 S.W.3d at 902-06 (plurality op.). First, relative to double jeopardy, a court may set aside a conviction for any unspecified reason and order a new trial because initial jeopardy continues and the case is restored to its position before the former trial. See Lofton v. State, 777 S.W.2d 96, 97 (Tex. Crim. App. 1989). The risks of double jeopardy following reversal based on factual insufficiency were fully clarified by the United States Supreme Court in Tibbs. When an appellate court sits as a "thirteenth juror" and, after weighing the evidence in a neutral light without deference to the jury's resolution of conflicting evidence, determines the evidence is factually insufficient to support conviction, an acquittal has not occurred, but a "deadlocked jury." Tibbs, 457 U.S. at 42. Therefore, there is no double jeopardy risk. Id. The Double Jeopardy Clause does not prevent an appellate court from granting a convicted defendant an opportunity to seek acquittal through a new trial. Id. Consequently, it is acutely ironic that the Court of Criminal Appeals refers to the Double Jeopardy Clause to "protect" a defendant from the new trial he desires! The Court might have sound reasons to overrule Clewis, but it is without jurisdiction or authority to abolish a constitutionally protected right. See Meraz, 785 S.W.2d at 152.

Second, there is persistent irony relative to the Brooks plurality's concern that application of "a nondeferential standard could violate the right to trial by jury under the Texas Constitution." Brooks, 323 S.W.3d at 905 (plurality op.). The Brooks plurality placed unnecessary emphasis on the statutory provisions establishing the jury as the exclusive judge of the facts and weight to be given evidence. Id. at 908 (citing Tex. Code Crim. Proc. Ann. arts. 36.13 (West 2007), 38.04 (West 1979); Watson v. State, 204 S.W.3d 404, 409 (Tex. Crim. App. 2006)). Their analytical error results from an overbroad interpretation contrary to the statute authorizing this court to reverse a criminal conviction "as well upon the law as upon the facts." See Tex. Code Crim. Proc. Ann. art. 44.25 (West 2006). Obviously, a criminal defendant is not concerned about preserving the jury's guilty verdict. On appeal, he seeks acquittal or a new trial and will be entitled to remand for a new trial if the court of appeals concludes that the evidence is factually insufficient.

It is axiomatic that a court of appeals does not substitute its judgment for that of the jury by sustaining a challenge to a question of fact and remanding for a new trial. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651-52 (Tex. 1988) (quoting Hopson v. Gulf Oil Corp., 237 S.W.2d 352, 358 (Tex. 1951)). "The fact that the court of appeals might engage in `thought processes' akin to the jury's . . . does not establish a violation of the right of trial by jury." Id. at 651.

As noted above, the United States Supreme Court cut a broad path for state jurisdictions that provide appellate review for a defendant's questions of fact. An appellate court may weigh the evidence and act as a "thirteenth juror." Tibbs, 457 U.S. at 41-42. The Brooks plurality was troubled that this broad authority contradicts the "appropriate deference" standard in Clewis. However, the United States Supreme Court recognized that state courts have the power to fulfill their state constitutional and statutory requirements of appellate review of questions of fact (with latitude for review of the evidence in a neutral light much wider than prescribed under Clewis ), but the Brooks plurality chose to overrule Clewis and abolish appellate review for factual sufficiency of the evidence! Denial of a Texan's state constitutional and statutory rights to appellate review for factual insufficiency through erroneous interpretation or application of United States Supreme Court authority implicates due process of law protections under the Fifth and Fourteenth amendments to the United States Constitution. Griffin v. Illinois, 351 U.S. 12, 18 (1956) (concluding in states which provide for appellate review, a criminal defendant is entitled to the protections afforded under the Due Process and Equal Protection Clauses of the United States Constitution). The Supreme Court subsequently opined: "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." M.L.B. v. S.L.J., 519 U.S. 102, 111 (1996) (emphasis added) (quoting Rinaldi v. Yeager, 384 U.S. 305, 310 (1966)).

Clewis represented a compromise between long-standing deference to the jury's verdict and a criminal defendant's constitutional right to appellate review of questions of fact. The appellate court entertained qualified deference to the jury's assessment of the weight, credibility, or reliability of the admittedly legally-sufficient evidence. Brooks, 323 S.W.3d at 928 (Price, J., dissenting). When viewing the evidence in a neutral light, an appellate court was not required to resolve every conflict in the evidence, or draw every inference from ambiguous evidence, in favor of the defendant's guilt just because a rational jury could have drawn such an inference; the court accepted the proposition that qualified deference does not convert factual-sufficiency review into legal-sufficiency review. See id. at 929. Consequently, for many years, appellate courts concluded there is no inherent conflict in the factual-sufficiency standard of review when an appellate court is "deferential" to the jury's verdict while neutrally considering and weighing all of the evidence in the record. The Brooks plurality concluded that the Clewis standard of review for factual sufficiency is indistinguishable from the standard of review for legal sufficiency prescribed in Jackson. Brooks, 323 S.W.3d at 895, 901 (plurality op.). Their analytical conundrum was resolved, but they threw the baby out with the bath-water!

I respectfully submit that each member of this court has a sworn duty to provide appellate review responsive to David Temple's contention that the evidence is factually insufficient to support the jury's verdict of guilt beyond a reasonable doubt.

In his concurring opinion to denial of en banc review, Justice Brown expresses concern that we would somehow defy "hierarchical precedent" by refusing to adhere to the dictates of the Brooks plurality. However, we have a sworn duty to address the constitutional crisis created by the Brooks decision. As Justice Frankfurter succinctly expressed: "A timid judge, like a biased judge, is intrinsically a lawless judge." Wilkerson v. McCarthy, 336 U.S. 53, 65 (1949) (Frankfurter, J., concurring). The Brooks plurality did not distinguish or overrule Meraz, in which the Court of Criminal Appeals acknowledged that it simply has no jurisdiction to fashion a standard of review that conflicts with the Texas Constitution. Meraz, 785 S.W.2d at 152. The Brooks plurality did not directly address the constitutional issue which is now squarely before this Court. However, even if the Brooks plurality had sufficiently addressed the constitutional issue and overruled Meraz, we should not remain silent. Our former colleague on the First Court of Appeals, Justice Taft, stated my position with clarity: "Judicial restraint requires that I be bound, but I will not be gagged." Windom v. State, 961 S.W. 2d 267, 270 (Tex. App.-Houston [1st Dist.] 1997) (Taft, J., concurring), rev'd, 968 S.W.2d 360 (Tex. Crim. App. 1998).

FACTUAL INSUFFICIENCY

As previously mentioned in my concurring opinion, any effort to perform a factual sufficiency review required by the Texas Constitution would be unavailing because a majority of this court has followed Brooks without reservation. After another exhaustive review of the record, and in consideration of Justice McCally's explication of the evidence, my concern about this court's reticence to address the constitutional crisis created by Brooks is heightened. In the panel opinion, we acknowledged that the circumstantial evidence supporting the jury's verdict is not negligible. After reviewing the entire record, this is the highest attribution we could muster. However, constrained by the Court of Criminal Appeals's opinion in Brooks, the panel ultimately concluded that the evidence was sufficient under the Jackson standard of review for legal sufficiency. It is my considered opinion that, after weighing all the evidence in a neutral light, a majority of this court would likely conclude the evidence of guilt beyond a reasonable doubt is so obviously weak as to undermine confidence in the jury's verdict.

See Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (acknowledging the requirement to set-aside a verdict for factual insufficiency after viewing the evidence in a neutral light and finding the proof of guilt is so obviously weak as to undermine confidence in the jury's verdict); see also W. Wendell Hall, Standards of Review in Texas, 38 St. Mary's L.J. 47, 265 (2006).

RESPONSE TO JUSTICE MCCALLY'S DISSENT TO DENIAL OF EN BANC REVIEW

Having expressed strong disagreement with this court's unwillingness to prevent erosion of the Texas constitutional right to factual-sufficiency review, I now address Justice McCally's concerns about the panel opinion which I authored. I agree with Justice McCally that this case does not involve strong circumstantial evidence and that other cases cited by the panel in which murder convictions were upheld involved stronger circumstantial evidence.

Apparently, Justice McCally's concerns are predicated on her interpretation of the degree of deference required after the Brooks plurality concluded that the standard of review for factual sufficiency under Clewis is the same standard of review adopted by the United States Supreme Court in Jackson. Regretfully, it appears that much of my disagreement with Justice McCally's interpretation of Brooks stems from the Brooks plurality's effort to transmogrify a Jackson standard of review for legal sufficiency into appellate review for factual sufficiency uniquely guaranteed by the Texas Constitution. Referring to footnote 19 in Brooks, Justice McCally contends there is a factual-sufficiency component in the Jackson standard for legal sufficiency. My colleague suggests that the "plain language of Brooks demonstrates that, although the light in which we view the evidence has changed, the court has not eliminated the requirement that appellate courts review all of the evidence and, `albeit to a very limited degree, to act in the capacity of a so-called "thirteenth juror"`to perform a factual-sufficiency review." J. McCally's Dissent to En Banc Review (quoting Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006) (explaining standard for factual-sufficiency review)). The incongruity of this postulate should be apparent: How does an appellate court follow the clear dictate of Jackson and view all of the evidence in a light most favorable to the prosecution, but " to a very limited degree" act as a thirteenth juror? If an appellate court renders a judgment of acquittal after acting as a thirteenth juror to any degree, the State would have a valid claim that the Court did not follow the Jackson standard of review for legal sufficiency. However, if an appellate court reverses for factually insufficiency and remands for a new trial after reviewing the evidence under the Jackson standard with some degree of deference to the jury's findings, the appellant may have a valid double jeopardy defense. The Supreme Court admonished state appellate courts not to confuse these two standards of review. Tibbs, 457 U.S. at 43-45.

Justice McCally posited the robbery-at-a-convenience-store hypothetical in support of her contention that the panel majority did not follow Jackson, and disregarded dispositional evidence. In that scenario, the store clerk identified A, who was convicted by a jury for robbing the store. A properly authenticated videotape was admitted showing B committed the robbery. In that instance, the jury's finding of guilt would not be rational, and the appellate court should reverse for legal insufficiency. However, that scenario is not presented in this case. Here, there is no conclusive, exculpatory evidence which is objectively measureable by an appellate court. In other words, no objectively measureable evidence conclusively negates the jury's implicit findings regarding disputed evidence. The scenario here is better represented by the proverbial twenty nuns hypothetical, in which the State's sole witness, a paid informant, testifies that he saw the defendant commit the crime. Twenty nuns testify that the defendant was with them at the time, far from the scene of the crime. Twenty more nuns testify that they saw the informant commit the crime. Under this scenario, if the defendant is convicted, he has no remedy under Jackson because the informant's testimony, however incredible, is legally sufficient to support his conviction. See Clewis, 876 S.W.2d at 444.

Justice McCally further opines that the panel did not properly apply the Jackson standard of review because "the panel did not review all of the evidence" and "the only `no-rational-jury' analysis applied by the panel in any way was not to all of the evidence, but rather to individual pieces of evidence." However, this is a circumstantial evidence case, with dozens of complimenting and competing items of evidence the jury was required to compare and weigh. In compliance with instructions in the Brooks opinion, the panel invoked the well-established standard of review for legal sufficiency that courts "view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt." Temple v. State, — — S.W.3d — , No. 14-08-00074-CR, 2010 WL 5175018, at *3 (Tex. App.-Houston [14th Dist.] Dec. 21, 2010, no pet. h.) (emphasis added). As the panel recognized, no single circumstance in this case provided a sufficient evidentiary basis to support the verdict. Id. at *10 (quoting Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003)). When the panel reviews all of these circumstances in the light most favorable to the verdict — which, of course, means the panel must defer to the jury's resolution of conflicting evidence unless a rational jury could not — their weight and consistency "`provide[d] the girders to strengthen the evidence and support a rational jury's finding the elements beyond a reasonable doubt.'" Id. (quoting Swearingen, 101 S.W.3d at 97).

Although all of the evidence in the record was reviewed and considered in a light most favorable to the prosecution, the panel did not detail all of the evidence. The panel was not required to provide such intricate detail in affirming the jury's verdict. Before Brooks abrogated factual-sufficiency review, courts were required to detail all relevant evidence during factual-sufficiency review only when reversing. See Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009) ("Before reversing a conviction on the basis of factual insufficiency, an appellate court must detail all the relevant evidence and must explain in exactly what manner the evidence is factually insufficient."). Contrarily, when courts overruled a factual-sufficiency challenge, they were required to detail the evidence only to the extent necessary to explain why it was factually sufficient to support the verdict. See Scott v. State, 934 S.W.2d 396, 402 (Tex. App.-Dallas 1996, no pet.). The rationale for this rule is even more applicable when a court overrules a legal-sufficiency challenge because it views the evidence, not in a neutral light, but in the light most favorable to the jury's verdict. Accordingly, after an appellate court determines and explains why the evidence is legally sufficient to support the jury's verdict, there is no requirement to meticulously detail all remaining evidence and inferences. The absence of such surplus analysis in the panel opinion should not be misconstrued as the panel's failure to consider all of the evidence.

As an example of the panel's failure to review all of the evidence, Justice McCally argues the panel did not properly consider the Roberts brothers' testimony that they heard a gunshot at 4:38 p.m., a time when appellant was undisputedly not home. The panel acknowledged that the Roberts brothers' testimony supported appellant's defense. Temple, 2010 WL 5175018, at *6. However, we also recognized that "the jury was free to disbelieve [this testimony] and rationally could have done so because the Roberts brothers were children and no other witness testified that a gunshot was heard that day." Id. In other words, although the jury was free to believe the Roberts brothers' testimony, there was no requirement to do so because their statements were not conclusively proved. The jury is the sole judge of the credibility and demeanor of a witness. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000) ("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."); Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) ("[A] jury is permitted to believe or disbelieve any part of a witness' testimony[.]"). In considering the cold record, we cannot discern whether the Roberts brothers were nervous, confident, or credible. Thus, under the Jackson standard of review, we are precluded from attributing credence to their testimony simply because it was not directly contradicted. Accordingly, the panel properly deferred to the jury's implicit decision not to believe the Roberts brothers' testimony.

Justice McCally also contends the panel's analysis of testimony from the Roberts brothers was inadequate because the panel did not consider testimony from the Parkers who lived next-door to the Robertses that their dogs inexplicably `went crazy' near the time the Roberts brothers heard a gunshot. Although the Parkers' testimony that their dog was barking during the time the Roberts brothers heard a gunshot arguably supports the contention that there was a shotgun blast at that time, it does not render the Roberts brothers' testimony conclusive relative to the exact time a shotgun was fired inside appellant's house. Therefore, under the Jackson standard, we cannot conclude that the jury acted irrationally by finding the Roberts brothers not credible on this point.

Additionally, Justice McCally contends the panel improperly applied the "rational jury" requirement by concluding "no rational jury could credit Vielma's testimony," because the panel purportedly did not consider Vielma's testimony in conjunction with all the evidence in the record. See Temple, 2010 WL 5175018, at *8 n. 3. While I agree rationality of a jury's fact finding is to be determined from all the evidence, the panel correctly concluded it would be irrational for a jury to believe Vielma's testimony that a dog was not inside the Temple's garage. Vielma admitted she was unable to see or determine the dog's location within a particular area inside the garage, rendering her testimony that a dog was inside the garage sheer speculation. Id.

I also disagree with Justice McCally's criticism that the panel reviewed the evidence in piecemeal fashion. The panel began its sufficiency analysis by noting the evidence conclusively established "that someone intentionally and knowingly caused Belinda's death." Temple, 2010 WL 5175018, at *4. Thus, the panel was required to determine whether legally-sufficient evidence supported the jury's finding that appellant was the killer. Viewed in the light most favorable to the verdict, the evidence supports the following findings and inferences:

• Appellant could have been in his house when the murder occurred.

• Someone staged the house to make it appear that it had been burglarized. Appellant had ample opportunity to stage a burglary while he was watching E.T., and Belinda was still at school.

• Appellant testified that he drove directly to Home Depot after leaving Brookshire Brothers. The drive time between Brookshire Brothers and Home Depot was approximately ten to fifteen minutes. Cameras captured appellant leaving Brookshire Brothers at 4:38 P.M. and arriving at Home Depot at 5:14 P.M. During this thirty-six minute window, a witness observed appellant driving from the opposite direction a person would choose when leaving Brookshire Brothers headed to Home Depot. Thus, the jury could have concluded that appellant lied about his activities after leaving Brookshire Brothers. The jury could have also rationally concluded that the thirty-six minute window afforded appellant ample opportunity to hide a gun and bloody clothing before arriving at Home Depot. A finding that appellant misrepresented his activities during the afternoon Belinda was murdered rationally supported a finding of guilt because there is no explanation for appellant's prevarication other than to thwart police from discovering his activities.

• Appellant engaged in an extramarital affair with Heather for several months before the murder. He told Heather he loved her and expressed to a friend that he was unsure if he was willing leave Belinda for Heather. Within a very brief period of time after Belinda was murdered, appellant resumed his relationship with Heather, and later they were married.

• While police were investigating the murder, appellant threatened certain friends to "keep [their] damn mouth[s] shut" and stop talking to police and also followed them in his car while they were driving.

Viewed cumulatively, through the prism "in a light most favorable to the jury's verdict," these facts sufficiently link appellant to the murder to support a non-speculative finding that he was the killer because he had motive and opportunity, his house was staged to appear burglarized, he misrepresented his activities during the afternoon of the murder, he quickly resumed a relationship with the woman who was the object of an illicit affair, and he threatened friends who were speaking with the police. Admittedly, the circumstantial evidence supporting guilt beyond a reasonable doubt is not great, but it is also not negligible. Accordingly, constrained by the Jackson standard of review, the panel correctly concluded that a rational jury could have found appellant guilty of murdering his wife beyond a reasonable doubt.

As described by Justice McCally, there was evidence linking the Temples' teenage neighbor, R.J.S., to the murder. See Temple, 2010 WL 5175018, at *11, *33. However, whether the majority panel or another jury would have believed that this evidence created reasonable doubt regarding Temple's guilt is superfluous — the inquiry is whether a rational jury could have disregarded this evidence. R.J.S. testified that he did not murder Belinda. Because no evidence rendered this testimony unbelievable (in fact, this testimony was supported by evidence that none of the double-ought shells recovered from R.J.S.'s family contained wadding matching that found near Belinda's body), the jury was free to believe R.J.S. Therefore, we were mandated to defer to the jury's implicit finding that R.J.S. was not the killer. See Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) (explaining that we defer to the jury's resolution of conflicting evidence).

Justice McCally also expresses concern about the panel's resolution of appellant's Brady issue and the cumulative harm analysis pertaining to evidentiary and jury-charge errors.
However, we determined appellant waived his Brady issue by failing to complain about the State's nondisclosure of Brady material until twenty-one days after he became aware of the nondisclosure. Temple, 2010 WL 5175018, at *11. Considering the fact that the Court of Criminal Appeals has recognized a Brady violation "must be made as soon as the grounds for complaint is apparent or should be apparent," appellant's twenty-one-day lull constitutes a clear waiver of the issue. See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). Stated differently, appellant was not entitled to a three-week delay to determine whether the belatedly disclosed R.J.S. evidence necessitated a trial-halting continuance.
Regarding the panel's harm analysis, appellant argued in over seventy-five issues that the trial court erroneously admitted evidence and permitted improper closing argument. Most of these issues were not preserved or did not support error. Temple, 2010 WL 5175018, at *12-30. After determining that roughly ten non-constitutional errors were properly preserved, we conducted a cumulative-error harm analysis pursuant to rule 44.2(b) of the Texas Rules of Appellate Procedure. In light of the evidence supporting appellant's guilt, the immaterial nature of several of the errors, and particularly the effect of the many unpreserved errors, we determined the preserved errors did not have a substantial and injurious effect on the jury's verdict. Id. at *37.

Finally, I am impressed by Justice McCally's detailed explication of the evidence, which I believe supports reversal for factual insufficiency. Accordingly, I urge my colleagues to abjure the decision to abolish factual-sufficiency review in criminal cases. This court did not create a constitutional crisis relative to the decision to abolish factual-sufficiency review; the crisis is identifiable by simply reviewing prior opinions by the Court of Criminal Appeals, acknowledging that it is without constitutional authority to determine whether the evidence is factually sufficient, and admitting it does not have jurisdiction to determine questions of factual insufficiency until or unless the Texas Constitution is amended! See Meraz, 785 S.W.2d at 152; see also Laster, 275 S.W.3d at 518-19. This court has a constitutional duty not to ignore usurpation of its conclusive jurisdiction over factual-sufficiency issues in criminal cases, and each member of this court is under a sworn duty to defend Article 5, Section 6 of the Texas Constitution. Accordingly, I respectfully dissent to denial of rehearing en banc.