Appellant was charged in a two-count indictment with the offenses of serious bodily injury to a child, a first degree felony, and bodily injury to a child, a third degree felony. Appellant was the foster mother of three young children placed in her home by Child Protective Services. She was accused of injuring the middle child, who was then two years old. The serious bodily injury count stemmed from a subdural hematoma discovered by an emergency room doctor. Appellant says that the injury occurred when the child fell off of her tricycle. The state claims that it was inflicted by appellant. The bodily injury count stemmed from several bruises found on the child's face and body.

During a hearing on a pre-trial motion, the state informed the court that the indictment was intended to charge two different offenses. The state asserted that the offenses were two different crimes alleged under the same criminal episode and that the jury could find appellant guilty of either or both under the Penal Code, §§ 302 and 303. The jury acquitted appellant on the serious bodily injury count, convicted her on the bodily injury count, and sentenced her to six years imprisonment. The jury further recommended that appellant be placed on probation for six years and fined $4,000. See Tex. Pen. Code Ann. § 22.04(a)(3).

On appeal, appellant raised a single point of error, arguing that the evidence was factually insufficient to support the jury's verdict of guilt on the charge of bodily injury. The court of appeals reversed and remanded the cause for a new trial. See Goodman v. State, 5 S.W.3d 891, 907 (Tex. App.-Houston [14th Dist.] 1999). The state petitioned this Court to review the court of appeals' reversal of appellant's conviction. I would affirm the decision of the court of appeals.

The Texas Constitution gives the courts of appeals conclusive authority over questions of fact. Article V, Section 6 of the Texas Constitution states:

Provided, that the decision of said [courts of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.

Texas Const. art. V, § 6.

This Court recognized in Clewis v. State that, under this provision, only the courts of appeals have authority to review the judgments of the lower courts for factual sufficiency. 922 S.W.2d at 128-29. See also Earl Waddell III and Tracy Abell, A New Evidentiary Standard for Criminal Appellate Review: Clewis v. State, 3 Tex. Wesleyan L. Rev. 235, 258-59 (1997). The authority to conduct a factual review is limited to the appellate courts that receive direct appeals. "[B]y amending the constitution and creating a two-tiered appellate system, the Framers of our Constitution have again evidenced a desire to limit factual review to the direct appellate courts. By making the direct appellate courts' determinations of questions of fact final, the Framers' intention of permitting a single factual review in any case has been accorded." Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App. 1994)(concluding that in a capital case where defendant had received the death penalty this Court had exclusive authority to review the factual sufficiency of the defendant's affirmative defense of insanity.)

In Cain v. State, this Court discussed the constitutional limits on our review of decisions on questions of fact by the courts of appeals. 958 S.W.2d 404 (Tex. Crim. App. 1997). Article V, Section 6 "operates as a jurisdictional limitation on this Court, so that we are without jurisdiction to 'pass upon the weight and preponderance of the evidence or to 'unfind' a vital fact.'" Id. at 408. Thus, this Court is precluded from conducting a de novo review of the factual decision by a court of appeals. See id; see also Shirley Baccus-Lobel, Criminal Law, 52 SMU L. Rev. 881, 889 (1999). "[W]e are empowered only to determine whether the court of appeals applied the correct standard of review and considered all of the relevant evidence. We may not undertake a review that essentially redoes the sufficiency analysis." Cain, 958 S.W.2d at 408.

We recently undertook an extensive reexamination of both Clewis and Cain in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). This Court then reiterated its belief that it should not substitute its judgment for that of the court of appeals. "Regardless of whether we agree with the result, this Court is called upon to determine only whether the court of appeals applied the factual sufficiency standard of review and properly considered all of the relevant evidence." Id. at 12. If an appellate court concludes that the evidence was factually insufficient, it must then provide a "clearly detailed explanation of that determination that takes all of the relevant evidence into consideration." Id. This Court declined the opportunity in Johnson to reverse Clewis and eliminate the factual sufficiency review from our jurisprudence. Id.

In the instant cause, the court of appeals applied the correct standard of review and set out in its opinion all of the evidence it deemed relevant to its determination that the evidence was factually insufficient to establish the injuries sustained by the complainant were intentionally or knowingly inflicted by another. While the court of appeals applied the correct standard of review, it did not limit its review to the proper evidence. Included in the evidence weighed by the court of appeals was the evidence regarding the head injury suffered by the child. This was improper because, according to the state, this evidence went only to the charge of serious bodily injury, and the jury acquitted appellant of this charge.

By the state's own assertions, both in its indictment and its statements to the trial court, the charge of serious bodily injury was based on the head injury suffered by the child. The state made it abundantly clear that it intended this charge to be a separate offense from the charge of bodily injury. The jury weighed all of the evidence presented in support of this charge and found it to be insufficient to prove beyond a reasonable doubt that appellant intentionally or knowingly inflicted serious bodily injury upon the child in question and acquitted her of that charge. The court of appeals had no jurisdiction to consider the evidence offered in support of this charge in its review of the lesser charge of bodily injury, as there was no conviction and thus no appeal.

In her concurring opinion, Judge Keller not only engages in her own factual sufficiency review, she also makes the same mistake that the court of appeals did by considering the evidence offered at trial in support of the serious bodily injury charge. Many pages of heart- tugging facts do not create a smoke screen sufficiently thick to hide the fact that this Court constitutionally has no jurisdiction to engage in its own factual sufficiency review.

Because the court of appeals found the evidence to be factually insufficient to support a conviction, even using evidence not relevant to this appeal, it is obvious that it would find factual insufficiency using the more limited body of evidence properly admitted in support of the charge of bodily injury which is under review here. Based on the foregoing, I believe that the court of appeals' decision complies with this Court's decisions in Clewis, Cain, and Johnson and should be affirmed. Because the majority does not do so, I dissent.

Johnson, J.

Delivered: November 21, 2001

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