Full opinion text
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW MALONEY, Judge. Appellant was convicted of burglary of a building, and the Fifth Court of Appeals affirmed his conviction. Clewis v. State, 876 S.W.2d 428 (Tex.App.—Dallas 1994). In his sole ground for review, appellant contends that the court of appeals erred in refusing to review the evidence to determine whether it was factually sufficient to sustain his conviction. See Stone v. State, 823 S.W.2d 375 (Tex.App.—Austin 1992, pet. ref'd, untimely filed). Specifically, appellant avers that the evidence was factually insufficient to show that he knowingly and intentionally entered the budding. The court of appeals held that Texas constitutional and statutory provisions grant and authorize courts of appeals to exercise “appellate jurisdiction to review fact questions.” Clewis, 876 S.W.2d at 430. The courts of appeals do not possess “fact-finding authority,” but may “ ‘unfind’ a fact determination that the jury has found or failed to find.” Id. at 430-31. The court of appeals further held that the correct standard of review for factual sufficiency of the elements of the offense in noncapital cases is the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard: “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, 99 S.Ct. at 2789; Clewis, 876 S.W.2d at 437. While we agree that courts of appeals are vested with the authority to review fact questions in criminal cases, we part ways with the court of appeals’ holding that the correct standard of review for factual sufficiency of the elements of the offense is the Jackson standard. Rather, we endorse Chief Justice McGarry’s analysis in his concurring opinion in Clewis, and conclude that the Jackson standard of review does not satisfy a noncapital defendant’s right to an appellate review of fact questions. Clewis, 876 S.W.2d at 444 (McGarry, C.J., concurring). We hold that the proper standard of review for factual sufficiency of the elements of the offense is the one articulated by the Third Court of Appeals in Stone v. State, 823 S.W.2d at 381: The court of appeals “views all the evidence without the prism of ‘in the light most favorable to the prosecution.’ ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” This holding harmonizes the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual sufficiency. Bishop v. State, 43 Tex. 390 (1875); see also Clewis, 876 S.W.2d at 445-46 (citing Tibbs v. Florida, 457 U.S. 31, 45 n. 22, 102 S.Ct. 2211, 2220 n. 22, 72 L.Ed.2d 652 (1982); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex.1988); Minor v. State, 653 S.W.2d 349, 354 (Tex.App.—San Antonio 1983) (Cadena, C.J., concurring)). 1. Fact Jurisdiction of Appellate Courts We are faced with a question of Texas law regarding the courts of appeals. The Texas Constitution confers appellate jurisdiction upon the courts of appeals, Tex. Const, art. V, §§ 5 & 6, that includes the power to review questions of fact in criminal eases. Bishop v. State, 43 Tex. 390, 400 (1875) (“[A]ll of our subsequent constitutions have expressly given to the Supreme Court jurisdiction of criminal as well as civil cases as an appellate tribunal, and statutes have been passed providing means by which the court should be enabled to exercise its full power of revising a criminal cause upon the law and facts as presented in the record.”) (citations omitted) (emphasis added); Bailey v. Haddy, Dallam 376, 378 (Tex.1841) (“An appeal ... [subjects] the facts as well as the law to a review and retrial.”) (emphasis added); Republic of Texas v. Smith, Dallam 407, 410-11 (Tex.1841) (“We decide, then, that 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.”); cfi Cropper, 754 S.W.2d at 648. This Court recently acknowledged in Bigby v. State, 892 S.W.2d 864, 874 (Tex.Crim.App.1994), the “considerable jurisprudence by this Court and our predecessors with criminal jurisdiction which had continually recognized the authority, though infrequently exercised, of the State’s highest criminal court to review a case upon the facts as well as the law.” Id. In that case, we also noted that the Legislature has consistently recognized the ability of courts with criminal appellate jurisdiction to review the facts of a case and that Article 44.25 of the Texas Code of Criminal Procedure has remained nearly identical since 1857 with each subsequent code revision. Bigby, 892 S.W.2d at 874-75 n. 5 (quoting art. 44.25 of the 1979 Code, art. 848 of the 1950 Code, art. 905 of the 1892 Code, art. 870 of the 1879 Code, and art. 744 of the 1857 Code); id. at 875 (“[0]ur ability to factually review a criminal cause ... is inherent in our ‘appellate jurisdiction’ and the lack of any corresponding constitutional restriction.”). When their jurisdiction to review fact questions is properly invoked, the courts of appeals cannot ignore constitutional and statutory mandates. Clewis, 876 S.W.2d at 480; id. at 441 (McGarry, C.J., concurring); Queen v. State, 842 S.W.2d 708, 711 (Tex.App.—Houston [1st Dist.] 1992). We can add little to Judge Clinton’s comprehensive, historical analysis of appellate authority to conduct factual sufficiency reviews in criminal cases. Clewis, 922 S.W.2d 126, 136-151 (Tex.Crim.App.1995) (Clinton, J., concurring). In his concurring opinion, Judge Clinton tracks the evolution of appellate judicial power and concludes that “from the beginning, ‘appellate jurisdiction’ included the power to examine ‘factual sufficiency,’ and further, that every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power_” Chwis, at pp. 137-139 & n. 4-5 (Clinton, J., concurring). We are persuaded by Judge Clinton’s rebuttal of the State’s argument that once an appellate court has found “legal sufficiency” to support the verdict, it may not proceed further to review “factual sufficiency,” even if properly raised. Id. at part II.C. (Clinton, J., concurring) (explaining that Franklin v. State, 147 Tex.Crim. 636, 183 S.W.2d 573 (App.1944), cannot be read to rule out a factual sufficiency review by an appellate court and that “constitutional power to conduct such a review is not lost through preter-mission_”). II. Standard of Review A. Civil Factual Sufficiency Review The Texas Supreme Court has consistently interpreted Art. V, § 6 of the Texas Constitution to mean that the courts of civil appeals, and later the courts of appeals, have the authority and responsibility to review the verdicts in civil cases to determine whether the evidence is factually sufficient. See Meraz v. State, 785 S.W.2d 146, 149 (Tex.Crim.App.1990); Cropper, 754 S.W.2d at 648; Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898). That court has stated that the scope of review under a factually sufficient point requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.... In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); see Cropper, 754 S.W.2d at 646; Pool, 715 S.W.2d at 634. B. Criminal Factual Sufficiency Review Since the creation of the Texas Court of Criminal Appeals in 1891, appellate jurisdiction has included the power to examine factual sufficiency, and “every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power....” Clewis v. State, 922 S.W.2d at 141 (Clinton, J., concurring); see Bigby, 892 S.W.2d at 874 (citing cases that have recognized the authority of the State’s highest criminal court to review a case upon the facts as well as the law). While this Court has not determined the proper standard for a factual sufficiency review of the elements of the offense by courts of appeals, it has set the standard for factual sufficiency review in cases where the defendant has asserted an affirmative defense or otherwise has the burden of proof on another fact issue. When the defendant has asserted an affirmative defense or has the burden of proof on an issue, a reviewing court considers all the evidence and determines whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust: The court of appeals is therefore constitutionally given the authority to determine if a jury finding is against the great weight and preponderance of the evidence and if this is improper it is up to the people of the State of Texas to amend the Constitution. Meraz, 785 S.W.2d at 154; see Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex.Crim.App.1993). C. Jackson v. Virginia The court of appeals held that the Jackson standard, “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,” incorporates both a legal and factual sufficiency review. We reject this holding given the context in which the Jackson standard was initially formulated and the historical meaning of “review upon the facts.” 1. Context of Jackson Acknowledging that “state appellate review undoubtedly will serve in the vast majority of cases to vindicate the due process protection that follows from [In re ] Winship [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)],” the United States Supreme Court in Jackson set the standard for reviewing the sufficiency of state convictions on federal writs of habeas corpus. Jackson, 443 U.S. at 322, 99 S.Ct. at 2791. This standard constitutes the minimum standard for sustaining a conviction under the Due Process Clause of the Fourteenth Amendment. Jackson, 443 U.S. at 317-18, 99 S.Ct. at 2788. In no way does Jackson itself reference state constitutional or statutory law regarding appellate review. Although Texas courts have adopted the Jackson standard as the legal sufficiency standard in direct appeals, we have never held that its application precluded any other type of review. Clewis, 876 S.W.2d at 413-44 (McGarry, C.J., concurring); Stone, 823 S.W.2d at 379. As we explicitly noted in Griffin v. State, 614 S.W.2d 155, 159 n. 5 (Tex.Crim.App.1981), “[S]tates are free to set higher standards of review [than Jackson ].” The court of appeals correctly stated that “whether the evidence satisfies the current Jackson test is a ‘question of law.”’ Clewis, 876 S.W.2d at 429 n. 1 (quoting Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982), overruled on other grounds, Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989), and Meraz v. State, 785 S.W.2d at 155). That is, if the evidence is insufficient under the Jackson standard, it is “legally insufficient.” A determination that the evidence is “legally insufficient” means that the case should never have been submitted to the jury. Clewis, 876 S.W.2d at 429 n. 1 (citing Ex parte Schuessler, 846 S.W.2d at 852 n. 5). In contrast, the issue of factual sufficiency is a question of fact. Ex parte Schuessler, 846 S.W.2d at 852 n. 5. A Jackson review, “viewing the evidence in the light most favorable to the prosecution,” is not a factual sufficiency review; rather, it is an analytical tool used to determine whether there is a fact issue at all. Clewis, 876 S.W.2d at 441 (McGarry, C.J., concurring). The Jackson standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. In conducting a factual sufficiency review, an appellate court reviews the fact-finder’s weighing of the evidence and is authorized to disagree with the factfinder’s determination. This review, however, must be appropriately deferential so as to avoid an appellate court’s substituting its judgment for that of the jury. Id. at 443 (McGarry, C.J., concurring). 2. Historical Meaning of Reversal on the Facts While courts of appeals have typically conducted a Jackson review when a defendant attacks the sufficiency of the evidence of an element of the offense, nothing in the Texas Constitution or the Texas Code of Criminal Procedure limits the courts of appeals to a Jackson review. See Bigby, 892 S.W.2d at 874-75; Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Griffin, 614 S.W.2d at 159; Ex parte Schuessler, 846 S.W.2d at 852 n. 5; Stone, 823 S.W.2d at 379. After a court of appeals has determined that the evidence is legally sufficient under Jackson to support the verdict, it may proceed further to review factual sufficiency if it is properly raised. Clewis, slip op. at II (Clinton, J, concurring). If a reviewing court determines that the evidence is insufficient under the Jackson standard, it must render a judgment of acquittal. Tibbs v. Florida, 457 U.S. at 42, 102 S.Ct. at 2218. As the concurring opinion in the court of appeals below noted, “To render a judgment of acquittal is to literally substitute the judgment of the reviewing court for that of the jury.” Clewis, 876 S.W.2d at 441 (McGarry, C.J., concurring). This is because, as stated earlier, if the evidence is insufficient under Jackson, the case never should have been submitted to the jury. Supra part. II.C. However, when conducting a factual sufficiency review, an appellate court cannot substitute its judgment for that of the factfinder since this would violate the defendant’s right to trial by jury. See Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218; Clewis, 876 S.W.2d at 441 (McGarry, C.J., concurring); see also Choate, 44 S.W. at 70. Accordingly, courts of appeals should vacate a conviction based on factually insufficient evidence and remand the cause for a new trial. In sum, the Jackson standard does not incorporate a factual sufficiency review of the evidence because the appellate court does not review the factfinder’s weighing of the evidence. Clewis, 876 S.W.2d at 443 (McGar-ry, C.J., concurring). The test comprises the minimum standard for comporting with federal due process; this Court has never held that Jackson constitutes a factual sufficiency review. D. Stone standard Appellant urges us to hold that when the factual sufficiency of an element of the offense is challenged, courts of appeals should apply the Stone standard of review, articulated by the Third Court of Appeals. Stone, 823 S.W.2d at 381. In contrast to the court of appeals in the instant case, the Stone court observed that a factual sufficiency review begins with the presumption that the evidence supporting the jury’s verdict was legally sufficient, that is, sufficient under the Jackson test. Id. at 381. In conducting a factual sufficiency review, the court of appeals “views all the evidence without the prism of ‘in the light most favorable to the prosecution.’ ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id. The court of appeals in the instant case noted: [T]he Stone standard correctly imports the beyond-a-reasonable-doubt burden of proof. Implicit in the Stone analysis is that court’s consideration of the higher burden of proof required for a criminal conviction. We interpret the Stone opinion as an attempt to apply the civil factual sufficiency standard of review to the evidence of the elements of a criminal offense by adapting it for the different burden of proof at trial. Accordingly, the Stone standard assesses all the evidence “impartially” to determine if it is factually sufficient for a factfinder to have found appellant guilty beyond a reasonable doubt. Cleuñs, 876 S.W.2d at 433 (citations and notes omitted). Although the court of appeals indicated that the Stone standard “correctly” imports the beyond-a-reasonable-doubt burden of proof, it found the Stone standard deficient for two reasons: (1) Stone violates a defendant’s right to trial by jury, Texas Constitution art. I, § 15, by denying the factfinder the deference required by the Texas Constitution; and (2) the Stone standard violates the federal and Texas prohibition against double jeopardy, U.S. Const, amend. V and Tex. Const, art. I, § 14. 1. Factfinder deference and right to trial by jury The Code of Criminal Procedure contains two provisions establishing that the jury is the judge of the facts. Tex.Code Crim.Proc. Ann. art. 36.13 & 38.04. Notably, Chapter 36, “Trial Before the Jury,” and Chapter 38, “Evidence in Criminal Actions,” do not reference the appellate process, and no similar provision appears in the Rules of Appellate Procedure. The import of the provisions in the Code is, in part, to distinguish the role of the jury from the role of the judge at trial. Further, the court of appeals’ interpretation of these statutory provisions is overly broad and would essentially preclude any appellate review of the jury’s determination of the facts and the weight to be given the evidence. Clewis, 876 S.W.2d at 442 (McGarry, C.J., concurring). This conflicts with appellate courts’ jurisdiction and obligation to review criminal convictions “as well upon the law as well as upon the facts.” Tex.Code Crim. ProcAnn. art. 44.25. The appropriate balance between the jury’s role as the judge of the facts and the reviewing court’s duty to review criminal convictions is struck by not allowing the appellate court to “find” facts, or substitute its judgment for that of the jury; rather, when it determines that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, it must reverse the verdict and remand for a new trial. “The same Constitution which guarantees a right of trial by jury empowers Courts of Civil Appeals finally to decide all fact questions.” Pool, 715 S.W.2d at 634, quoting Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 368 (1960). The historical safeguards of the “inviolate” right to trial by jury are found in the deferential standards of review applied and the prohibition against rendition of judgment upon a factual insufficiency point. Appellate courts should only exercise their fact jurisdiction to prevent a manifestly unjust result; ... those courts “are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable.” Pool, 715 S.W.2d at 634, quoting Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985) (Robertson, J., concurring). Instead of rendering or substituting its judgment for that of the factfinder, a reviewing court returns the case to trial before a different jury. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218; see Cropper, 754 S.W.2d at 651. In Meraz, 785 S.W.2d at 154, this Court acknowledged its concern that when the courts of appeals exercise their fact jurisdiction, they may merely substitute their judgment for that of the jury. However, we held that “sufficient safeguards can be imposed by this Court to guarantee that the mental processes of the scrivener are reflected in the opinion so that we may ascertain whether the process resulted in an usurpation of the jury function.” Meraz, 785 S.W.2d at 154. These safeguards include: In order that this court may in the future determine if a correct standard of review of factual insufficiency points has been utilized, courts of appeals, when reversing on insufficiency grounds, should, in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient ... as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Pool, 715 S.W.2d at 635 (quoted in Meraz, 785 S.W.2d at 154 n. 2). We see no reason why these safeguards, which we held adequate in a factual sufficiency review of an affirmative defense, Meraz, 785 S.W.2d at 154, are not also adequate in a factual sufficiency review of the elements of the offense. Thus, these safeguards help ensure that the factfinder is given the appropriate deference and that the defendant’s right to trial by jury remains inviolate. 2. Double Jeopardy Neither the federal nor the Texas prohibition against double jeopardy, U.S. Const, amend. V.; Tex. Const, art. I, § 14, preclude defendants from seeking an acquittal through a new trial. Tibbs v. Florida, 457 U.S. at 45, 102 S.Ct. at 2220; Lofton v. State, 777 S.W.2d 96, 97 (Tex.Crim.App.1989). As the United States Supreme Court held, the Double Jeopardy Clause does not prohibit a retrial if the reversal is based on factual insufficiency of the evidence. Tibbs, 457 U.S. at 39, 102 S.Ct. at 2216-17 (cited in Meraz, 785 S.W.2d at 156). However, retrial is prohibited where the reviewing court determines that the evidence is insufficient under Jackson. That is, as a practical matter, the State has only one opportunity to present evidence legally sufficient to convict a defendant. Meraz, 785 S.W.2d at 156. In sum, we are not persuaded that the Stone standard denies the factfinder the deference required by the Texas Constitution, violates defendants’ right to trial by jury, or violates the prohibition against double jeopardy. Instead, we hold that the Stone standard correctly imports the beyond-a-reasonable-doubt burden of proof and successfully adapts the factual sufficiency standard to the burden of proof at a criminal trial. Accordingly, we vacate the judgment of the court of appeals and remand the instant cause to that court for further proceedings consistent with this opinion. .There is a split of authority in the courts of appeals as to the Stone factual sufficiency standard. The Austin court continued to adhere to the Stone standard in Orona v. State, 836 S.W.2d 319 (Tex.App.—Austin 1992) (per curiam). The Texarkana court has adopted the Stone standard. White v. State, 890 S.W.2d 131 (Tex.App.—Texarkana 1994, pet. filed); Lisai v. State, 875 S.W.2d 35, 37 (Tex.App.—Texarkana 1994, pet. ref'd.); Hernandez v. State, 867 S.W.2d 900, 905 n. 2 (Tex.App.—Texarkana 1993); Lewis v. State, 856 S.W.2d 271, 273 n. 1 (Tex.App.—Texarkana 1993); Williams v. State, 848 S.W.2d 915, 916-17 (Tex.App.—Texarkana 1993). Other courts of appeals have rejected the Stone factual sufficiency standard. Blackmon v. State, 830 S.W.2d 711, 713 n. 1 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd.) (holding that Meraz only applies to issues where the burden of proof is on the defendant); Lopez v. State, 824 S.W.2d 298 (Tex.App.—Houston [1st Dist.] 1992) (refusing to extend Meraz to entrapment because entrapment is not an affirmative defense under Texas law); Crouch v. State, 858 S.W.2d 599, 601 (Tex.App.—Fort Worth 1993, pet. ref'd.); Pender v. State, 850 S.W.2d 201, 203 (Tex.App.—Fort Worth 1993) (per curiam); Clewis, 876 S.W.2d at 436 (Dallas); Wilson v. State, 879 S.W.2d 309, 311 (Tex.App.—Amarillo 1994); House v. State, 880 S.W.2d 512, 513-14 (Tex.App.—Eastland 1994); Smith v. State, 874 S.W.2d 269, 272 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd.); Mukes v. State, 828 S.W.2d 571, 573-74 (Tex.App.—Houston [14th Dist.] 1992). The Corpus Christi and San Antonio courts addressed the Stone issue, but did not authoritatively adopt or reject the factual sufficiency standard. Rodriguez v. State, 888 S.W.2d 211, 215 (Tex.App.—Corpus Christi 1994); Harris v. State, 866 S.W.2d 316 (Tex.App.—San Antonio 1993, pet. ref’d.). The Tyler Court of Appeals applied the factual sufficiency test to the issue of competency, but did not reach the question of applying Stone to the guilt/innocence issue. Strickland v. State, 815 S.W.2d 309, 312-13 (Tex.App.—Tyler 1991). . See generally, Susan Bliel & Charles Bliel, The Court of Criminal Appeals Versus the Constitution: The Conclusivity Question, 23 St. Mary’s LJ. 423 (1991). . This opinion is limited to the jurisdiction and proper standard of factual sufficiency review in the courts of appeals. We will not address these issues with regard to this Court since they are not properly before us in the instant case. . Art. V, § 6 of the Texas Constitution provides in relevant part: Said Courts of Appeals shall have appellate jurisdiction co-extensive with the limits of ffieir respective districts, which shall extend to all cases of which the district Courts of County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decisions of said courts [courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error. The last sentence above is referred to as the "factual conclusivity” clause. The authority of direct appellate courts to review fact questions is not derived from the "factual conclusivity” clause of article V, section 6 of the Texas Constitution; rather, it is derived from the general grant of "appellate jurisdiction” in article V, sections 5 & 6. Bigby v. State, 892 S.W.2d 864, 871-74 (Tex.Crim.App.1994). The "factual con-clusivity” clause is a limit on the jurisdiction of the Supreme Court and the Court of Criminal Appeals in discretionary matters. Id. . Neither Judge White nor Judge Mansfield discuss in their dissenting opinions the issue addressed by the 5th Court of Appeals and presented to this Court, on the Texas Constitutional authority placed in the courts of appeals to conduct factual sufficiency reviews in criminal cases, and thus do not require comment. . Presiding Judge McCormick, joined by Judge Keller, in dissent, now take issue with what they perceive to be our lack of judicial restraint in finding that the courts of appeals should engage in a factual sufficiency review if such a point is raised on appeal. Clewis, 922 S.W.2d 152 (McCormick, P.J., dissenting). However, Texas appellate courts have been reviewing the factual sufficiency of the evidence in criminal cases for over a century. Republic of Texas v. Smith, Dallam 407 (Tex.1841); Bishop v. State, 43 Tex. 390, 399-400 (1875); Tollett v. State, 44 Tex. 95 (1875); Loza v. State, 1 Tex.App. 488 (1877); Montgomery v. State, 16 S.W. 342 (Tex.App.1891); Mitchell v. State, 33 Tex.Cr.R. 575, 28 S.W. 475 (1894); Murphy v. State, 65 Tex.Cr.R. 55, 143 S.W. 616, 620 (1912); Smith v. State, 85 Tex.Cr.R. 355, 212 S.W. 660, 661 (1919); Jolly v. State, 87 Tex.Cr.R. 288, 221 S.W. 279, 281 (1920); Cook v. State, 88 Tex.Crim. 659, 228 S.W. 213, 216 (1921) (on rehearing); Vogel v. State, 89 Tex.Crim. 474, 231 S.W. 1096, 1096-97 (1921); Rochetszky v. State, 94 Tex.Crim. 423, 251 S.W. 232, 233 (1923) (on rehearing); Green v. State, 97 Tex.Crim. 52, 260 S.W. 195 (1924); Claxton v. State, 105 Tex.Crim. 308, 288 S.W. 444, 447 (1926) (on State's motion for rehearing); Mason v. State, 108 Tex.Crim. 452, 1 S.W.2d 283, 284 (1928); Powell v. State, 116 Tex.Crim. 34, 28 S.W.2d 142 (1930); Stevens v. State, 121 Tex.Crim. 511, 50 S.W.2d 284 (1931); Davis v. State, 125 Tex.Crim. 6, 66 S.W.2d 343 (1933); Armistead v. State, 130 Tex.Crim. 501, 94 S.W.2d 1161 (1936); Ralston v. State, 133 Tex.Crim. 100, 109 S.W.2d 185 (1937); Ballard v. State, 136 Tex.Crim. 188, 124 S.W.2d 131 (1939); Lozano v. State, 138 Tex.Crim. 549, 137 S.W.2d 1031, 1032 (1940); Villareal v. State, 140 Tex.Crim. 675, 146 S.W.2d 406, 409-10 (1940); Franklin v. State, 147 Tex.Crim. 636, 183 S.W.2d 573, 574 (1944); Lozano v. State, 154 Tex.Crim. 229, 226 S.W.2d 118 (Tex.Crim.App.1950); Parker v. State, 432 S.W.2d 526 (Tex.Crim.App.1968). . Tex.Code Crim.Proc.Aim. art. 44.25 provides: The courts of appeals or the Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts. . In dissent, Presiding Judge McCormick, joined by Judge Keller, claim the amendments to Article 44.25 "insured” courts of appeals do not have the power to apply a factual sufficiency review. Clewis, at 153-54 (McCormick, P.J., dissenting). This interpretation is flawed; in fact, just the contrary is true. Despite three amendments to Article 44.25, the legislature never deleted the controlling portion of the provision which states that a reversal may be had in a criminal action "as well upon the law as upon the facts." See Bigby, 892 S.W.2d at 874 n. 5. The language removed from the statute was in response to Burks-Greene and Johnson v. State, not a declaration of the legislature’s intent to deny appellate courts the power to engage in a factual sufficiency review. See Clewis, slip op. at part III, n. 14 (Clinton, J., concurring). . The Texas Supreme Court originally exercised appellate jurisdiction in both civil and criminal matters until the adoption of the 1876 Constitution. The Texas Constitution of 1876 created the original "Court of Appeals,” which had both criminal and civil appellate jurisdiction. The constitutional amendments of 1891 changed the "Court of Appeals” to the Court of Criminal Appeals and created the "courts of civil appeals.” A 1980 constitutional amendment gave the "courts of civil appeals" criminal appellate jurisdiction and renamed them "courts of appeals.” Tex. Const, art. V, § 4. See Stone, 823 S.W.2d at 377-78. . The court of appeals’ opinion stated that a correct standard of review under Jackson must include a review of all of the evidence adduced at trial to determine the sufficiency of the evidence to prove the elements of the offense. Clewis, 876 S.W.2d at 436. While the court of appeals correctly noted that Jackson specifically requires appellate courts to look at all the evidence, in Texas, we have applied Jackson in such a way that the only evidence a reviewing court considers is the evidence that supports the verdict. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991) (holding that the jury is the sole judge of the credibility of the witnesses and may choose to believe all, some, or none of the testimony); Burns v. State, 761 S.W.2d 353, 355-56 (Tex.Crim.App.1988) (holding that reconciliation of conflicts in the evidence is within the exclusive province of the jury); Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). In practice, to the extent that reviewing courts look at all the evidence, they do so merely for the purpose of determining whether it supports the verdict. A reviewing court will ultimately disregard any evidence that does not support the verdict. E.g., Chambers, 805 S.W.2d at 461; Burns, 761 S.W.2d at 355-56. . In Combs, we held that this Court had jurisdiction to conduct a Jackson review where the court of appeals had already conducted one because a Jackson review is a question of law and not of fact. Combs, 643 S.W.2d 709, 716-17. Our holding indicates that Jackson is not a factual sufficiency review. . The concurring opinion in the court of appeals provided a useful example illustrating the distinction between legal and factual sufficiency: The prosecution’s sole witness, a paid informant, testifies that he saw the defendant commit a 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. If the defendant is convicted, he has no remedy under Jackson because the informant’s testimony, however incredible, is legally sufficient evidence. Clewis, 876 S.W.2d at 444 n. 2 (McGarry, C.J., concurring). . The Jackson Court further noted: Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793. . E.g., Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984); Griffin v. State, 614 S.W.2d at 159. . In applying Jackson in the capital sentencing context, we have emphasized that Jackson constitutes a very limited review: [A]s an appellate court, our task is to consider all of the record evidence and reasonable inferences therefrom in the light most favorable to the jury’s verdict and to determine whether, based on that evidence and those inferences, a rational jury could have found beyond a reasonable doubt [the elements of the offense or the special issue under consideration]. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1973 [1979]). Thus, our review is a very limited one. We do not act as a thirteenth juror re-evaluating the weight and credibility of the evidence. Rather, we act only "as a final, due process safeguard ensuring ... the rationality of the factfinder.” Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App.1994), cert. denied, - U.S. -, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); see also Chambers v. State, 903 S.W.2d 21, 25 (Tex.Crim.App.1995). . Texas courts have articulated the standard for factual sufficiency review in various ways. Examples include: “so against the great weight and preponderance of the evidence,” "so against the overwhelming weight of the evidence as to be clearly wrong and unjust,” and "so against the great weight and preponderance of the evidence as to be manifestly unjust.” We agree with Judge Clinton's concurring opinion and the court of appeals below that these standards of factually sufficiency review, as applied, are identical. Clewis, at 148 (Clinton, J., concurring); Clewis, 876 S.W.2d at 433 n. 10. . Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby. Tex.Code Crim.Proc.Ann. art. 36.13. . The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony,.... Tex.Code Crim.Proc.Ann. art. 38.04. The civil counterpart to Article 38.04 is Rule of Civil Procedure 226a. Rule 226a contains a juiy admonishment providing that the jurors "are the sole judges of the credibility of the witnesses and the weight to be given their testimony,....” Tex.R.Civ.P. 226a. .In deciding insufficient evidence points of error, a court of appeals does not find facts; it only "unfinds” a vital fact. Moreover, action by a court in "unfmding” a vital fact is not an unconstitutional usurpation of the right of trial by jury. Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TexX.Rev. 361, 368 (1960). . The dissent states that our opinion "increases the likelihood” citizens will become victims of crimes in exchange for protecting a defendant from an unjust conviction. Dissent pg. 157. Our holding simply restates what the Texas Constitution provides as to the jurisdiction of the Courts of Appeals, insuring that the verdict is not contrary to the overwhelming weight of the evidence. The Texas Constitution already requires, ie. that the State satisfy its burden to put on evidence of the elements of an offense in order to prove guilt sufficiently, both factually and legally.
CLINTON, Judge, concurring. The Court is squarely presented with the compelling questions of whether a court of appeals is empowered to determine “factual sufficiency” of the evidence of one or more elements of an offense to sustain a conviction in a criminal case less than capital with the death penalty assessed; if so, what is the proper standard of review. See Clewis v. State, 876 S.W.2d 428, at 430-431 (Tex.App.—Dallas 1994). Holding with Trench that “[t]he present is only intelligible in light of the past,” I propose to track evolution of appellate judicial power in this jurisdiction, and then apply that which is made intelligible to the present. I A The Constitution of Republic of Texas vested “the judicial powers of government” in a Supreme Court and such “inferior courts” as the Congress may establish. The Supreme Court was empowered with “appellate jurisdiction only, which shall be conclusive, within the limits of the Republic[.]” Id., Article IV, §§ 1 and 8; 3 Vernon’s Ann.Tex. Const. 482, at 486 (1993). The Supreme Court soon determined that as a court functioning under a constitutional grant of general “appellate jurisdiction” it had the power to review both questions of fact and of law, subject only to the restriction that right to trial by jury remain inviolate. Bailey v. Haddy, Dallam 376, at 378 (1841). In Republic of Texas v. Smith, Dallam 407, at 410-411 (1841), the Supreme Court declared that in criminal prosecutions it could revise the judgment upon facts as well as law, at the option of appellant. Accord: Bishop v. The State, 43 Tex. 390, at 400 (1875) (as quoted in Bigby, 892 S.W.2d 864, at 872 (Tex.Cr.App.1994). Until the 1891 constitutional amendments the court continued to reaffirm and exercise its power to review and reverse jury verdicts on factual issues. See cases collected in Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, at 648-649 (Tex.1988). The court summarized the nature of its power and duty to do so in Missouri Pac. Ry. Co. v. Somers, 78 Tex. 439, 14 S.W. 779 (1890), viz: “... Although this court has the power to review a case upon the facts, and to set aside a verdict which has evidence to support it, that power has been reluctantly exercised. But it is the right and duty of the court to set aside a verdict, when it is against such a preponderance of the evidence, that it is clearly wrong, [citations omitted].” Ibid. When in turn the Constitution vested this Court with “appellate jurisdiction” in criminal cases, as we shall see, it adhered to the doctrinal foundation previously laid down by the Supreme Court. B Meanwhile, the Constitution of 1876 divested the Supreme Court of jurisdiction over criminal cases, created the former court of appeals, and granted it the same power taken from the Supreme Court to exercise “appellate jurisdiction ... in all criminal cases, of whatever grade.” Id., Article V, § 6; Tex. Rev.Stat. (State Printing Office 1879) at 29. The Legislature redundantly declared verbatim the same jurisdiction, and for good measure added “as is provided in the Code of Criminal Procedure.” Article 1068, id., at 175. Article 66, C.C.P. 1879, merely sustained its “appellate jurisdiction ... in all criminal cases of whatever grade.” More specifically, the Legislature recognized that, among other dispositions, the court of appeals may reverse the judgment of the court below and remand for a new trial. Article 869, id. Bringing forward provisions in O.C. 744, the Legislature iterated that same constitutional power the Supreme Court initially found declared and exercised, viz: “The court of appeals may revise the judgment in a criminal case, as well upon the law as upon the facts; but when a cause is reversed for the reason that the verdict is contrary to the weight of the evidence, the same shall, in all cases, be remanded for a new trial.” Article 870, id. Contemporaneously with the Supreme Court in civil cases and having inherited as it were the “appellate jurisdiction” of the Supreme Court in criminal cases, see ante, the court of appeals did not hesitate to exercise its constitutional power and right to discharge its duty in the premises. Its decisions under former articles 869 and 870, ante, demonstrate a resolve to examine and weigh all the evidence, meticulously if need be, to determine sufficiency questions—certain of its authority and usually, but not always, articulating the legal basis for its evidentiary decision. In its first year, for example, confronting testimony tending to contradict statements by the main prosecuting witness, the court reviewed and evaluated the “whole testimony and the charge of the court” to conclude: “We are not fully satisfied” that “the evidence is sufficient to support the verdict and judgment of conviction [and] we think the [trial] court erred in refusing a new trial [on appellant’s motion contending] ‘the verdict of the jury is contrary to the law and the evidence.’” Henderson v. The State, 1 Tex.App. 432, at 437 (1876). Compare: Loza v. The State, 1 Tex.App. 488, at 489-490 (1877) (applying rules of law to undisputed eviden-tiary facts, court weighs evidence to find it “insufficient” to prove felonious intent to steal—notwithstanding legislative admonition that jury is exclusive judge of facts proved and weight given to testimony). See also Gay v. The State, 2 Tex.App. 127, at 133-134 (1877) (evaluating and weighing testimony, finding it insufficient to support verdict). Later cases also make clear that the court of appeals, like the Supreme Court before it, see ante, at 140, understood the nature and extent of its power to review jury verdicts for evidentiary sufficiency, albeit not then la-belled “legal sufficiency” and “factual sufficiency.” In Walker v. The State, 14 Tex.App. 609 (1883), the State insisted that because “it was the peculiar province of the jury to determine the facts,” the court lacked authority to set aside the verdict “where there is any evidence to sustain it[.].” Id., at 628 (emphasis in original). Scholarly Judge Willson in a seminal opinion for a unanimous court responded. Alluding to former articles 676 and 728, C.C.P. 1879 (jury is the exclusive judge of the facts proved and the weight to be given to testimony), Judge Willson first countered that the court of appeals had authority to revise the facts, and to reverse the judgment for the reason that the verdict is contrary to the weight of evidence. But he explained: “[Yet], it has been the general practice of this court to refuse to set aside a verdict where the evidence was conflicting, but where there was sufficient, if believed, to support the finding, (citations omitted) (emphasis in ordinal). But even in such case, where it was manifest that the verdict was wrong, and it was clear that injustice had been done the defendant, it has been set aside, though there was evidence sufficient to support it. (citations omitted). And it has never been doubted, but has always been considered by this court, not only that it has the authority, but that it was its duty to set aside a verdict where that verdict was contrary to the evidence, or unsupported by it, though it was with reluctance that the court will disturb a verdict where there is any evidence to sustain it. (citations omitted).” Id., at 628-629. Thus, from a careful consideration of numerous cited cases, Judge Will-son deduced the following “rules of practice governing this Court,” viz: “First. Where the evidence is conflicting, and there is sufficient, if believed, to prove the case of the State, the jury being the exclusive judges of the credibility of the testimony, their verdict will not be set aside unless it is clearly appears to be wrong. Second. Where there is no testimony to support it, the verdict will be set aside. Third. Where the evidence is insufficient to rebut the presumption of innocence, the verdict will be set aside. Fourth. Where the verdict is contrary to the weight of the evidence it will be set aside.” Id., at 630. Under applicable law the court conducted a thorough analysis of detailed facts, concluding that the State failed to prove the corpus delicti in this murder case. Id., at 637. Thereafter, the Court continued to follow the lead of Judge Willson in Walker v. State, supra. See, e.g., Grimmett v. State, 22 Tex.App. 36, 2 S.W. 631, at 634 (1886) (Willson, J.) (where evidence is sufficient to support verdict, and verdict is not against great weight of evidence, court will not set aside conviction); Dickey v. State, 21 Tex.App. 430, 2 S.W. 809, at 810 (1886) (White, P.J.) (from review of conflicting evidence, court not satisfied with sufficiency; “conviction upon such testimony not permitted to stand as precedent in such cases”); Wilkerson v. State, 21 Tex.App. 501, 2 S.W. 857 (1886) (White, P.J.) (considered in light of testimony, verdict and judgment against weight of evidence); McLaren v. State, 21 Tex.App. 513, 2 S.W. 858 (1886) (Willson, J.) (conviction not only not supported by, but is against evidence and law, where explanation by accused not shown to be false, all evidence tends strongly to establish its truth, and is corroborated by his witness); Phipps v. State, 22 Tex.App. 621, 3 S.W. 761, at 763 (1886) (White, P.J.) (detailed review of all testimony reveals judgment “is wholly by [sic], and contrary to, the evidence”); Montgomery v. State, 16 S.W. 342 (Tex.Ct.App.1891) (White, P.J.) (because evidence wholly insufficient to warrant conviction, and verdict against great preponderance of evidence, judgment reversed and cause remanded); Lasky v. State, 18 S.W. 465 (Tex.Ct.App.1892) (Davidson, J.) (since verdict and judgment not supported by the evidence but “clearly against the same,” judgment reversed and cause remanded). II A The former court of appeals became the Court of Criminal Appeals by virtue of the 1891 constitutional amendments and implementing legislation revamping the judicial appellate system. Essentially stripped of its limited civil jurisdiction and merely renamed, the Court convened its 1892-1893 term with the same “appellate jurisdiction” in criminal cases as before, viz: “The court of criminal appeals shall have appellate jurisdiction ... in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.” Article V, § 5. The legislation tracks predecessor statute. See Act 1892, 22nd Leg., 1st C.S., Ch. 16, p. 34, §§ 5, 24, 10 Ganunel’s General Laws 398 ff; Article 905, C.C.P. 1895 (when cause remanded). Accordingly, the Court also continued to exercise its appellate jurisdiction to determine “legal sufficiency” as well as to weigh and decide “factual sufficiency.” See opinions in the first month of its new term, all written for the Court by Presiding Judge Hurt without dissent: Rollins v. State, 20 S.W. 358 (Tex.Cr.App.1892) (‘We are of opinion that [the evidence] is amply sufficient, and hence the judgment is affirmed.”) and Anderson v. State, 20 S.W. 358, at 359 (Tex.Cr.App.1892) (We are of opinion that the evidence does not establish with reasonable certainty the fact [of the offense charged]; wherefore, the judgment is reversed, and the cause remanded.”). Compare: Foresythe v. State, 20 S.W. 371 (Tex.Cr.App.1892), viz: “Under the above state of facts, does the testimony establish the guilt of defendant to a reasonable certainty? We think not. We believe that the verdict is against the great weight of the testimony; that every inculpatory fact has been met by the testimony for the defendant and made to consist with his innocence, except [certain testimony] ... we believe to be a mistake, and a very reasonable and common one. Judgment is reversed.” Id., at 373. The fortuitous juxtaposition of those three opinions demonstrate beyond a reasonable doubt that the Court well understood separate concepts of “legal sufficiency” and “factual sufficiency,” and that it was capable of properly applying each, or both, as deemed appropriate in a given case. B Nonetheless, the State, through its State Prosecuting Attorney, would have it that some thirty years around the turn of the century (1891-1920) was “a rather chaotic period of our sufficiency jurisprudence” during which both the court of appeals and the Court were “neither clear nor consistent” in their understanding the true meaning of “power to reverse ‘upon the facts;’ ” failing to recognize “two different standards for conducting a sufficiency review,” they “always applied a single (though ambiguous and fluctuating) standard of review ... upon finding the evidence insufficient.]” State Prosecuting Attorney’s Supplemental Brief, at 10. Having examined in the margin the cases submitted to support those notions and comments, one must conclude the State is mistaken. The entire line of cases reviewed ante demonstrate that from the beginning “appellate jurisdiction” included the power to examine “factual sufficiency,” and, further, that every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power, albeit “reluctantly exercised,” or without identifying it as such, or along with a determination of “legal sufficiency” as well. See ante, at 137, 137-138, 138-140 and notes 4-6. To bolster its theory the State advances the proposition that “a central tenet of sufficiency review was solidified” in Jolly v. State [87 Tex.Cr.R. 288, 221 S.W. 279 (1920)]. Supplemental Brief, at 10. The statute and ease cited by the Court go to its duty to order another trial in the premises; otherwise Judge Morrow cites no authority for the proposition claimed by the State, nor need he. Also observe that during the period from 1876 to 1920 decisions of the Court discussed ante never once declared that in determining sufficiency of the evidence to support the judgment, former articles 870, C.C.P. (1879); 905, C.C.P. (1895); 939, C.C.P. (1911), required an appellate court to view evidence in terms of “the light most favorable to the verdict (or the state).” Those observations are made, not to quibble about what has become accepted jargon in this Court, but to suggest the origin and intendment of that more modern phrase in this jurisdiction. In Jolly v. State, supra, 221 S.W. at 281, before entering into the discussion quoted above Judge Morrow wrote, “The State’s evidence, accepting it as true, which must be done, falls short_” In context that phrase is but another way of conveying the same meaning as the one more commonly and longer used by our courts, viz: “sufficient [evidence], if believed, to support the finding [of guilt].” Walker v. The State, supra, at 629. See, e.g., Speer v. State, 57 Tex.Cr.R. 297, 123 S.W. 415, at 417 (1909) (evidence, if believed, to sustain jury verdict); Thurston v. State, 58 Tex.Cr.R. 308, 125 S.W. 31, at 32 (1910) (evidence which, if believed, would show guilt; Coleman v. State, 58 Tex.Cr.R. 451, 126 S.W. 573, at 574 (1910) (testimony, if believed, justified conviction); Smith v. State, 60 Tex.Cr.R. 81, 131 S.W. 313, at 314 (1910) (evidence sufficient to support verdict, if testimony of witnesses to be believed); Martinez v. State, 61 Tex.Cr.R. 29, 133 S.W. 881, at 882 (1911) (testimony, if believed, justifies jury verdict of guilty); Oates v. State, 67 Tex.Cr.R. 488, 149 S.W. 1194, at 1198 (1912) (“if State’s evidence is to be believed, jury justified in finding guilt,” and on ad infinitum to Banks v. State, 510 S.W.2d 592, at 595 (Tex.CrApp.1974) (Court must view the evidence in light most favorable to verdict; in doing so, verdict will be sustained if there is “evidence which, if believed, shows the guilt of the accused”). In short, to say the prosecution presented such testimony and evidence which, “if believed,” supports the verdict is to view it in “the light most favorable,” and thus sufficient to support the verdict with “reasonable certainty.” The Jolly court merely used a phrase equivalent in meaning to that which courts traditionally utilized in assaying the evidence for “legal sufficiency.” But, again, as the court explained in Walker v. The State and iterated in other cases, engaging in that exercise does not rule out also reviewing the evidence for “factual sufficiency” as well. See 138-140, ante. Indeed, it is now axiomatic: “A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented 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.” Tibbs v. Florida, 457 U.S. 31, at 42-43, 102 S.Ct. 2211, at 2218, 72 L.Ed.2d 652 (1982). C The State cannot accept that, having found “legal sufficiency” to support the verdict, an appellate court still has power to proceed further to review “factual sufficiency” where appropriate. It discusses more cases during the ensuing period to conclude that while there was “the occasional inconsistency along the way,” this Court resolved “those apparent contradictions” in Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573 (Tex.Cr.App.1944) (Commissioner Davidson). Supplemental Brief, at 12-13. But since the Court conducted a “legal sufficiency” review pursuant to former article 848, C.C.P. 1925, a Third rule review under Walker, supra, it “resolved” nothing about determining “factual sufficiency.” Moreover, in then declaring globally that the Court “never reversed a judgment of conviction upon the facts of the case where the testimony of the State showed the guilt of the accused,” Judge Davidson apparently was less than thorough in his research. Moreover, the list of twelve followings in Shepard’s Texas Citations is not all that impressive: seven mention, in whole or in part, the proposition in headnote [3], but three of those seven are in dissents by former Presiding Judge Woodley, generally admonishing the majority for failing to adhere to it; the remaining five cites pertain to treatment of other matters in Franklin not at all germane to the issue here. Convinced that Franklin cannot be read to rule out a “factual sufficiency” review by an appellate court, and believing that its constitutional power to conduct such a review is not lost through pretermission, let us now move fast-forward to examine and consider more recent developments. Ill A In White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979), the Court was exercising its appellate jurisdiction on direct appeal in a capital murder case with punishment assessed at life in which an ancillary determination of competency to stand trial was implicated. See Jackson v. State, 548 S.W.2d 685, at 690 (Tex.Cr.App.1977) (court will review pretrial hearing on competency when raised and presented in appeal from trial on merits). Defendant contended, inter alia, the verdict of competency was contrary to the great weight and preponderance of evidence, and manifestly wrong—in other words, “factually insufficient.” White v. State, supra, at 852. Writing for a unanimous Court, former Presiding Judge Onion perceived that in effect defendant would have the Court “consider this ground as a fact issue question rather than a law issue question,” and to that he immediately responded, viz: "... This Court has no jurisdiction to do what appellant requests as would a Court of Civil Appeals because of a somewhat peculiar constitutional provision applicable to Courts of Civil Appeals. Article V, § 6 (Court of Appeals) states in part: ‘Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error ... ’ See also Article 1820, V.AC.S., Texas Rules of Civil Procedure 451, 453, 455.” Id., at 855. That is to say, the mere fact that courts of appeals are empowered to make findings as to “factual sufficiency” somehow precluded this Court from doing so in a 1979 case, over which it then possessed exclusive “appellate jurisdiction” on direct appeal. Then reviewing civil jurisprudence on the matter and contrasting it with unidentified criminal law provisions, the Court summarily concluded: “[T]his court has no fact jurisdiction as do the Courts of Civil Appeals, and cannot ‘unfind’ a vital fact finding by a jury. Since we do not have the jurisdiction to pass upon the great weight and preponderance of the evidence, appellant’s contention is overruled.” Id., at 856. And in Martin v. State, 605 S.W.2d 259 (Tex.Cr.App.1980), writing for the Court on motion for rehearing, former Presiding Judge Onion extended White to proceedings involving a sanity issue in which the trial court alone is fact finder. Id., at 261. Thus without so much as a cursory examination of germane determinative pronouncements by this Court to the contrary, see Part I B, Part II A & B, ante, as if by ipse dixit the Court purported to deny the appellate jurisdiction, power and authority it previously found, delineated, confirmed and exercised in appropriate eases. Ibid. See also Ex parte Watson, 606 S.W.2d 902, at 905-906 (Tex.Cr.App.1980) (Court constrained to follow White); Combs v. State, 643 S.W.2d 709, at 716 (Tex.Cr.App.1982) (White and Watson settled that this Court lacks jurisdiction to pass upon weight and preponderance of evidence). Furthermore, the White court surely failed to consider the venerable Old Code provision continued through all codes of criminal procedure to and including Article 44.25. C.C.P. 1965, viz: “The Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts. A cause reversed because the verdict is contrary to the evidence shall be remanded for new trial.” As its internal construction and caselaw construing the statute make clear, the first sentence embraces both findings of “legal sufficiency” and “factual sufficiency,” as they came to be known; the second merely admonishes that when judgment is reversed for the latter, the cause must be remanded. In Combs v. State, supra, the Court was deciding the question of its own “jurisdiction to review sufficiency questions once they have been passed on by the Courts of Appeals.” Id., at 714. Upon reviewing Article V, § 6, before and after the 1981 amendment, Article 1820, VAC.S. as amended, and civil cases deemed relevant, the Court alluded to White and Martin and stated— albeit erroneously—“our determinations of sufficiency of the evidence have never involved passing on the weight and preponderance of the evidence.” Id., at 716. Just as erroneously the Combs court said, “We perceive no other standard may be utilized by the Court of Appeals in reviewing criminal convictions other than sufficiency of the evidence to support the conviction.” Id., n. 1. Both statements are flat wrong in light of power inherent in successive constitutional grants of “appellate jurisdiction” in criminal cases to the Supreme Court, e.g., Republic v. Smith, supra; the former court of appeals, e.g., Walker v. State, supra; this Court, e.g., Foresythe v. State, supra; and lately to the reconstituted courts of appeals. The Court went on to compare the rule of prior decisions, e.g., Banks v. State, 510 S.W.2d 592, at 595 (Tex.Cr.App.1974 (verdict must be sustained where there is any evidence which, if believed, shows guilt of defendant), with the test formulated in Jackson v. Virginia, 443 U.S. 307, 318-309, 99 S.Ct. 2781, at 2788-2789, 61 L.Ed.2d 560. The Court summed up, viz: “Thus, sufficiency of the evidence to sustain criminal convictions as determined by this Court is a question of law under both state and federal standards. It is not a ‘question of fact’ under Art. 5, Sec. 6, of the Texas Constitution. We conclude that this Court has jurisdiction to review the sufficiency of the evidence to support a conviction even though that question has been addressed by the Courts of Appeals.” Id., at 717. The State Prosecuting Attorney accurately characterizes Combs as a “now-discredited” source of “considerable confusion.” Supplemental Brief, at 19. B The opinions of the Court in White and