Safeguarding the Meaning of Reasonable Doubt after Jackson v.

Virginia
All of the cases cited herein were determined by the Texas Court of Criminal
Appeals, so the standardized citation form has been altered for brevity.
The most basic objection that a criminal defendant may lodge against his or her
conviction after trial is that the government failed to prove its charge with the degree
of certainty required. In general, this means that the evidence (while perhaps strongly
suggesting that the defendant engaged in the conduct alleged) still positively fails to
eliminate reasonable doubt about one or more aspects of the government’s theory of
what occurred. Upon appellate review, however, two rules counteract such a claim.
First, is the thesis that reasonable inferences may be drawn from subsidiary facts
(particularly with regard to the identity of the perpetrator or his mental state). This
process of deductive logic is often expressed as allowing a conclusion based on the
cumulative force of all of the evidence, as in Acosta v. State, 429 S.W.3d 621 (2014).
This is not always an easy task. See Holloway v. State, ___ S.W.3d ___, No. PD-
0047-20 (June 17, 2020) (Walker and Keel, JJ. dissenting to denial of PDR);
Gonzalez v. State, No. PD-0983-19 (Apr. 8, 2020) (Walker and Slaughter, JJ.
dissenting to denial of PDR) (unpublished). Second, comes the restriction that
appellate judges cannot insert their own views about the credibility of any testimony
or piece of evidence, even if it was specifically contradicted by other evidence of
seeming equal credibility. This derives from the double-edged tenet that: only the
original factfinder is entitled to determine what weight to assign to conflicting
evidence and the state’s evidence need not exclude every conceivable alternative to a
defendant’s guilt.
A tragic example of how the second principle can work an injustice is found in Ex
parte Mayhugh, 512 S.W.3d 285 (2016). There the evidence was legally sufficient
based on medical testimony, despite the fact that the witnesses’ testimony about being
sexually abused conflicted and had changed over time in every detail, big and small.
The court of appeals had originally decided that the discrepancies did not go to the
elements of the offense but instead went only to the credibility of the witnesses, the
medical evidence from Dr. Kellogg supported the convictions, and the credibility of
the evidence must be left to the factfinder. The medical testimony was finally shown,
but long after the trial, to be inaccurate and untrue and the defendants were
exonerated.
Almost all challenges to the sufficiency of the evidence fail. Still, the due process
clause demands that a jury’s overall resolution must not irrationally disregard plain
gaps in the proof. Jurors cannot legally determine existence of a necessary fact
1
through guesswork. Leaps of logic or enthymeme are prohibited. Because it remains
clear that jurors can make emotional responses to the evidence or connect the dots in
an improper fashion, an appellate court needs to retain authority to overrule their
decision. This principle was possibly expressed in this statement: “Reconciliation of
conflicts and contradictions in the evidence is within the province of the jury, and
such conflicts will not call for reversal if there is enough credible testimony to support
the conviction.” Bowden v. State, 628 S.W.2d 782, 784 (1982). Although in a
different context, the court also searched for “the only reasonable interpretation of the
evidence.” State v. Gutierrez, 541 S.W.3d 91, 103 (2017). That could describe the
approach taken in Metcalf v. State, 597 S.W.3d 847 (2020) where the court said:
the evidence does not prove that Metcalf knew that Allen was sexually
assaulting Amber at the time of the charged offense, and there is no
other evidence showing that it was Metcalf's conscious objective or
desire for Allen to sexually assault Amber, so she could not have
intended to promote or assist the commission of that offense. Even after
viewing the cumulative impact of all the admitted evidence in the light
most favorable to the verdict, we conclude that no rational jury could
have reasonably inferred that Metcalf intended to promote or assist the
sexual assault of Amber.
Most important, the court has conceded that “a jury is not permitted to disregard
undisputed objective facts that can support only one logical inference.” Broughton v.
State, 569 S.W.3d 592, 611 (2018). In New York, the courts determine “whether any
valid line of reasoning and permissible inferences could lead a rational person to the
conclusion reached by the fact finder on the basis of the evidence at trial, viewed in
the light most favorable to the verdict.” The Second Circuit Court of Appeals has
provided the strictest test for overturning a jury verdict: “absent a situation in which,
for example, the evidence was patently incredible or defied physical realities, where
an evidentiary or instructional error compromised the reliability of the verdict, or
where the government’s case depends upon strained inferences drawn from
uncorroborated testimony, a . . . court must defer to the jury’s resolution of conflicting
evidence.”
How these tests for sufficiency are applied remains problematic due to this recent
observation by Justice Spain in Rancoco v. State, ___ S.W.3d ___ (Tex.
App.—Houston [14th Dist.] May 11, 2023) regarding the choice in Brooks to overrule
the holding in Clewis about the meaning of Art. V, §6(a) of the Texas Constitution:

2
 Factfinders can make egregious mistakes in all areas of the law, and
appellate courts should not take false comfort in the belief that the
system always works. The existence of this power was placed in our
constitution when the factual-conclusivity clause was written by
legislators and approved by citizens who understood that miscarriages of
justice unfortunately occur.
The Court of Criminal Appeals has found it necessary in recent years to spend a good
bit of its time reviewing and changing the decisions by the intermediate courts when
they have mistakenly concluded that the state’s evidence lacked sufficient reliability
to support a finding of guilt. These opinions deserve attention because they
presumably illuminate the true dividing line between an irrational and rational verdict,
thereby enabling the intermediate courts to more often correctly rule in the first
instance and to avoid tarnishing the rule through inconsistent or incoherent outcomes.
Such study seems a useful endeavor as divergent signals continue to emanate from the
court in its effort to resolve the outcomes in such cases as Edwards v. State, No. PD-
0585-21 and Dunham v. State, No. PD-0831-18.
A separate form of insufficiency—which involves whether the conduct proved
constitutes a violation of the statute chosen as the basis for prosecution—will not be
addressed here, as that result is more closely tied to the specific facts of the case.
Examples include: Mason v. State, ___ S.W.3d ___ (May 11, 2022) (statute required
proof of actual knowledge of ineligibility to vote); David v. State, ___ S.W.3d ___
(May 11, 2022) (marijuana was “altered” when dumped into a toilet and mixed with
water and human waste); Stahmann v. State, 602 S.W.3d 573 (Apr. 22, 2020)(5-4
decision) (State failed to prove concealment or alteration of (tampering with) physical
evidence); Walker v. State, 594 S.W.3d 330 (2020) (“State did not produce evidence
establishing the commission of a qualifying predicate offense”); Lang v. State, 561
S.W.3d 174 (2018) (to convict of organized retail theft “requires proof of . . . some
activity distinct from the mere ordinary shoplifting of retail items by a single
actor”);Lee v. State, 537 S.W.3d 924 (2017); Cary v. State, 507 S.W.3d 750 (2016)
(“Irrespective of a person’s intent to “bribe” someone, the legislature has decided that,
if the benefit offered to the recipient is a political contribution, the actor has not
committed bribery as charged in this case.”); Liverman v. State, 470 S.W.3d 831
(2015); and DeLay v. State, 443 S.W.3d 909 (2014).
The key question in such cases is different: whether “the evidence presented actually
supports a conclusion that the defendant committed the crime that was charged.”
Williams v. State, 235 S.W.3d 742, 750 (2007). See also Chambers v. State, 580
S.W3d 149 (2019) (not possible to show intent to defraud where there was no right to
3
rely on the falsified record); Couthren v. State, 571 S.W.3d 786 (Apr. 17, 2019) (5-4
decision) (proof merely that a vehicle was used in such manner as to cause a collision
resulting in serious bodily injury, gave “too little insight into the [specific] manner in
which Appellant operated his motor vehicle” to sufficiently justify the jury’s finding
that it was a “deadly weapon” because “[r]easonable inferences . . . must be
supported by the evidence presented at trial” or they “[go] too far.”); Morgan v. State,
501 S.W.3d 84 (Sept. 28, 2016) (proof of defendant’s status as a co-tenant would not
preclude finding that he needed the consent of his girlfriend before he could legally
enter their apartment); State v. Sutton, 499 S.W.3d 434 (Sept. 14, 2016) (agreeing
with the Beaumont court that the defendant was not an employee of the particular
school where the victim was enrolled); Murray v. State, 457 S.W.3d 446 (Apr. 15,
2015) (“a factfinder could have . . . reasonably inferred that Appellant drove his
vehicle to the location at which he was found after drinking to intoxication” and
therefore proved operation of the vehicle by Murray while intoxicated); and
Rodriguez v. State, 454 S.W.3d 503 (June 18, 2014) (defendant not shown to have
violated section 19.02(b)(3) of the Penal Code because her failure to provide her two-
month-old son with sufficient food, did not involve an act clearly dangerous to human
life in the course of the felony of injury to a child).
Possibly one of the most interesting cases in this category is Prichard v. State, 533
S.W.3d 315 (June 28, 2017). There the court found that the punishment for animal
cruelty could not be enhanced by a deadly weapon finding, as the shovel used by
Prichard to kill his pet dog threatened harm only to a non-human. It found section
1.07(a)(46) of the Penal Code was concerned only with injuries to humans because
the animal cruelty statute used “kill” to describe the prohibited conduct rather than
“cause death of” and expressly permitted some types of killing and prohibited only
infliction of “unjustified or unwarranted pain or suffering.”
Nor will cases involving an alleged material variance between the conduct as
described in the state’s pleading and its proof be discussed. See e.g., Alfaro-Jimenez v.
State, 577 S.W.3d 240 (July 3, 2019) (proof of presenting fake social security card
insufficient because State alleged that the certificate possessed was a real
governmental record); Hernandez v. State, 556 S.W.3d 308 (Oct. 18, 2017) (on orig.
submission). The cases in which the court affirmed findings of sufficiency (acting in
its jurisprudence-caretaker role), as in Spillman v. State, No. PD-0695-20 (Mar. 29,
2022) (unpublished); Martin v. State, 635 S.W.3d 672 (Dec. 15, 2021); Hammack v.
State, 622 S.W.3d 910 (May 19, 2021); Carter v. State, 620 S.W.3d 147 (Mar. 31,
2021); Timmins v. State, 601 S.W.3d 345 (June 10, 2020); Lopez v. State, 600 S.W.3d
43 (Apr. 29, 2020); Couthren v. State, 571 S.W.3d 786 (Apr. 17, 2019); Butcher v.

4
State, 454 S.W.3d 13 (Jan. 28, 2015); and Taylor v. State, 450 S.W.3d 528 (2014) are
also omitted.1 But, those cases (marked in red) in which the intermediate court
erroneously found the evidence sufficient will be mentioned. Also omitted are those
cases in which the court agreed with the intermediate court that the evidence was
insufficient (e.g., Herron v. State, 625 S.W.3d 144 (June 30, 2021) and Biggers v.
State, 630 S.W.3d 74 (Sept. 22, 2021)), although they could be cited as efficiently as
those discussed herein when sufficiency is questioned. Finally, no attention is given to
those cases involving only the sufficiency of the evidence in death penalty cases,
although the discussions therein can have broader application. The decisions (during
the time frame chosen) will be discussed in chronological order, as each succeeding
case is presumably built upon the growing body of law or foundation then in place.
In Romo v. State, ___ S.W.3d ___ (June 15, 2022) the court found that a video in
which young females’ genitals were displayed constituted a lewd exhibition thereof (a
prohibited form of sexual conduct) because the video’s exhibition of naked girls
appeared to be designed to elicit a sexual response in a viewer who is specifically
looking for videos featuring young, naked girls. The court found that the lower court
had erred because it “focused too heavily on the lack of sexual activity in the video
and neglected to consider the video holistically.” Presumably the jury had not done
so.
In Ratliff v. State, ___ S.W.3d ___ (Mar. 16, 2022), the court found that no tampering
with the governmental record (a police officer’s offense report) had occurred because
the facts omitted (including the presence of witnesses) were not legally required to be
included, even if the report thereby misrepresented the nature of the conduct involved.
The court observed that “[i]t is difficult to conceive of someone being convicted of
falsifying a governmental record when nothing in the record is, in fact, false.” It
added that, because the tampering statute did not prescribe a duty to include certain
information in an offense report, proof of an omission was insufficient to support a
conviction. The problem arose because the jury had been erroneously instructed that
1

Taylor, however, is an important case, as it serves to clarify the meaning of section 31.01(1)(E) of
the Penal Code. Carter clarifies the degree of specificity or detail needed for jurors to draw
reasonable inferences from expert testimony about “technical elements” of an offense, e.g., the
positioning of certain chemical components in a synthetic controlled substance. Martin clarifies
“that, to be a gang member for purposes of prosecution under § 46.02(a-1)(2)(C), an individual must
be one of three or more persons with a common identifying sign, symbol, or identifiable leadership
and must also continuously or regularly associate in the commission of criminal activities.” Curry
v. State, 622 S.W.3d 302 (Oct. 30, 2019) clarifies the elements of section 550.021(a)(1)–(4) of the
Transportation Code (as amended in 2013).

5
an omission or misrepresentation meant the report was made with knowledge of its
falsity.
In Witcher v. State, 638 S.W.3d 707 (Jan. 26, 2022), a bare majority of the court
found the jury could reasonably have ignored any uncertainty in exactly when the first
instance of sexual abuse had occurred. The testimony that it occurred “around or
about” June 10, 2018, “give or take,” or “when” someone had gone to jail provided
enough to conclude it took place on or before June 26. In its opinion, supposedly
based on settled law, the Texarkana court had found this terminology too ambiguous
and sparse to allow anything more than speculation that the necessary timing had
been proved beyond a reasonable doubt. The four dissenting judges continued to urge
that “[g]iven these equivocations, the jury had to guess about the meaning of the
testimony, which means they had to speculate, and speculation will not support a
finding beyond a reasonable doubt.”
In Edward v. State, 635 S.W.3d 649 (Dec. 8, 2021), the court found that the court of
appeals majority had erred by disregarding the evidence supporting the jury’s verdict
and thus deviated from the appropriate standard of review that permits the jury to
draw reasonable inferences from the evidence and evaluate the witnesses’ credibility.
Affording a proper level of deference to the jury’s verdict, the court concluded that
the jury’s finding of a dating relationship between Edwards and the person he
assaulted was not irrational or based upon impermissible speculation. It was sufficient
that Bolden had told the investigating officer that Edward was her “boyfriend” and
that the two were alone together in the bedroom of Edward’s apartment.
In Brooks v. State, 634 S.W.3d 745 (Nov. 10, 2021), the court determined that the
statement “I need to hit [you]” allegedly made by Brooks sufficiently showed that he
verbally threatened the victim with imminent bodily injury and thus committed an
assault by threat. The court of appeals had reasoned “that no rational juror could
discern a threat in that statement.” The court concluded: “the reviewing court must
‘consider the combined and cumulative force of all admitted evidence and reasonable
inferences therefrom[,]” and that “the court of appeals failed to adhere to these
principles” because “[a] rational jury could have concluded that Appellant verbally
conveyed to Grayson that he would continue hitting her with the board.” It further
said: “the fact that Grayson was already in fear of serious bodily injury did not
preclude her from being threatened again” and that his words could also be seen as
forward-looking, thus showing an intent to continue his assaultive conduct.
In Miranda v. State, 620 S.W.3d 923 (Apr. 21, 2021), the court clarified when or how
the closely-connected-crimes principle can be used to evaluate the sufficiency of the

6
evidence to adequately corroborate a defendant’s extra-judicial statements concerning
an offense, and reminded that “the evidence necessary to establish the corpus delicti
of an offense is much less than what is legally sufficient to support a criminal
conviction.”
On the same day, in Harrell v. State, 620 S.W.3d 910 (Apr. 21, 2021), the court found
that the circumstantial evidence was sufficient to corroborate the defendant’s
admission that he had recently driven the minivan to the location where the officer
discovered it, although there were two other intoxicated persons in the vehicle. The
evidence showed that the essential nature of the charged DWI crime had been
committed by someone and defendant’s statement completed the picture. Another
witness had reported seeing the minivan travelling to the gas station.
In Curlee v. State, 620 S.W.3d 767 (Apr. 14, 2021), the court found that although “the
playground was surrounded by a chain link fence that was not completely locked, an
officer’s conclusory testimony that the playground was open to the public, the
playground’s location on the premises of a church, and the fact that the playground
could be seen through the fence” did not mean that a rational jury could conclude,
beyond a reasonable doubt, that the playground was “open to the public.” Thus, the
evidence failed to sufficiently show that the methamphetamine in a van parked within
1000 feet of the church playground was then in a drug-free zone.
In distinguishing the public access concepts in the trespass and burglary statutes, the
court focused on the language of the statute at hand, holding that “‘open to the public’
is comprised of the collective noun ‘public’ preceded by ‘open to the’ in which open
is an adjective. The meaning of the word ‘public’ is significantly different when used
as a noun rather than as an adjective, and when one statute uses the word ‘public’ as a
noun and another statute uses the word as an adjective it is a real stretch to say that
the meaning of the word used as an adjective should also apply to the meaning of the
same word when used as a noun.” The court further clarified that a lay witness’
opinion, standing alone, could be a “factually unsupported inference or presumption”
and thus of no use to the jury. The majority was unwilling to “presume that every
church will welcome all members of the public to use their playgrounds without
restriction.” They added that there was “no evidence in the record that children are
known to gather at the playground in this case.”
It is worthy of note that the court suggested a similar “insufficiency” result might be
called for in Baltimore v. State, 631 S.W.3d 727 (Oct. 6, 2021) concerning proof that
the site of the unlawful possession of a firearm offense was a “licensed” premises.

7
In Flores v. State, 620 S.W.3d 154 (Mar. 31, 2021), the court found that the
defendant’s display of “an electric drill covered in plastic bags with a black sleeve
over the drill bit” in the course of a robbery did not constitute use of a “deadly
weapon” because the evidence failed to show he “actually used or intended to use
the drill in a manner that was ‘capable of causing death or serious bodily injury.’”
The aggravating element was not proved because “[i]n fact, Appellant neither
threatened nor took any action to hurt anyone with the drill; his only [intention]
was to threaten Shapakota with it by making her believe it was a gun and that he
might use it to shoot her, which was factually impossible under the circumstances.”
(emphasis added).
In Day v. State, 614 S.W.3d 121 (Dec. 16, 2020), the court found that at the time Day
escaped from the control of the city marshal, the jury was entitled to find the officer
was attempting to lawfully detain him on an existing arrest warrant, so the court of
appeals had erred in attaching any significance to the idea that Day was legally
allowed to leave once the marshal had determined Day was not someone he was
looking for. Because the existence of a warrant for Day’s arrest had been discovered
by the time he chose to flee, the proof showed that the officer’s command to stay put
must be obeyed.
In Romano v. State, 610 S.W.3d 30 (Oct. 28, 2020), involving disregard of the
likelihood of another’s presence in an indecent exposure case, the court found that
Romano’s effort to conceal his conduct from public view was insufficient because
“[e]xposure of genitalia in a place as public as Memorial Park is [too] risky when it is
done under circumstances (like time and weather) that make it likely that other people
will be present . . . The idea that there would be an ordinary standard of care for
masturbating in a public park in broad daylight is ‘oxymoronic in nature.’” Hence, the
court of appeals should have deferred to the trial judge’s conclusion that Romano had
acted recklessly.
In Cuevas v. State, 576 S.W.3d 398 (June 26, 2019), the court determined that the
proof had shown that at the time Cuevas assaulted him, the moonlighting Bee County
constable was discharging a public duty under section 101.07 of the Alcoholic
Beverage Code—even though acting as a private security guard who was arguably
only enforcing the “house rule” of the club (liquor dispensary) for which he was
working. Unlike the court of appeals, the court found that “[b]y enforcing Section
28.10(b) [of the beverage code], the complainant was discharging an official duty. It
is immaterial that he was also enforcing a house rule, that he was not trying to arrest
[Cuevas], and that [Cuevas] was not subject to prosecution for violating Section
28.10(b) or any other law.” Apparently, an effort to prevent a potential violation of
8
the law was enough to enhance the culpability of the offense (even though Cuevas
was not trying to take alcohol “off-premises,” but rather seeking to return to the
wedding festivities inside the club).
In Griffith v. State, No. PD-0639-18 (Apr. 3, 2019) (unpublished), regarding a
prosecution for continuous sexual abuse, the court found the key witness (the victim’s
mother) did not clearly enough specify when a second incident of abuse had occurred
to adequately establish how old the victim was (an essential element of the offense).
The chief justice of the court of appeals had observed: there was “no evidence to help
or point the jury to a reasonable inference that the second sexual assault occurred after
[the child] was living at the new location and before her fourteenth birthday. That is
what distinguishes speculation from inferences.”
In Johnson v. State. 560 S.W.3d 224 (Nov. 7, 2018), the court found the proof was
sufficient to show that Johnson had appropriated money, supposedly in payment for
cremation service, with knowledge that no cremation could be performed. This
constituted theft by use of deception as defined in section 31.01(1)(E) of the Penal
Code. The court determined that the Fort Worth court had 1) ignored the proof that
Johnson had no intent to perform at the time he accepted the payment, which included
proof that Johnson had deceived other cremation customers in other recent, similar
transactions, and 2) erroneously re-weighed incriminatory evidence.
The court also pointed out that although the money had been deposited into a business
account owned by Appellant’s wife, there was no need to prove that she shared an
intent to misappropriate the money. Johnson could still be guilty as a party to the
intended offense, since even an outright acquittal of the primary actor would not bar
prosecution for “party liability” under sections 7.02(a)(2) and 7.03(2) of the Penal
Code. It was enough that Johnson’s wife had later appropriated the funds in the bank
account.
In Ingerson v. State, 559 S.W.3d 501 (Sept. 19, 2018), the court found that a
combination of several circumstances reasonably pointed to Ingerson as the person
who fired shots into Richter’s vehicle (killing her and a passenger). The Fort Worth
court had simply incorrectly analyzed the meaning of the circumstances (and should
have deferred to the jury’s interpretation of them).
In Sears v. State, PD-0264-17 (Sept. 12, 2018) (unpublished), the court found that a
jury could properly infer that the defendant had knowledge that his co-conspirators
would be using a deadly weapon during the commission of an aggravated robbery, as
he drove them to the scene while at least one gun was visible and had told a fellow
inmate about his involvement in an aggravated robbery.

9
In Arroyo v. State, 559 S.W.3d 484 (Sept. 12, 2018), the court found the victim’s
testimony that had Arroyo had touched her chest proved he had touched her breast,
particularly because his hand had proceeded down her chest to her vagina.
In Nisbett v. State, 552 S.W.3d 244 (June 27, 2018), the court held that the
circumstances of the sudden and complete disappearance of the presumed victim
made it unnecessary for the State to prove the manner of death, which could be
assumed to be violent and thus at least caused with a knowing mental state. Nisbett’s
likely motive and proof of opportunity sufficiently identified him as the perpetrator.
In Zuniga v. State, 551 S.W.3d 729 (June 6, 2018), the court held there was sufficient
proof of Zuniga’s specific intent to engage in two murders as a member of a criminal
street gang. It said:
Under the particular circumstances of this case, we agree with the
State’s suggestion that the jury was permitted to reject the possibility
that appellant was acting due to independent impulse or for some reason
independent of his gang membership, and it was permitted to draw the
reasonable inference that appellant was acting in his capacity as a gang
member when he participated in the murders of the Vargas brothers
[with other gang members].
In Bush v. State, No. PD-1012-16 (May 2, 2018)(unpublished), the court found the
evidence sufficient to show the murder had occurred in the course of a kidnapping or
attempted kidnapping, holding the lower court had erroneously “substituted its
judgment for the jury’s about the weight of the evidence, ignored incriminating
inferences supported by the evidence, speculated about evidence that was not
presented and credited hypotheses that were inconsistent with Appellant’s guilt.”
There was evidence that the victim would not willingly have accompanied Bush to
the rural location where it appeared she had been murdered. Two judges (Walker and
Alcalá) agreed with the lower court, citing Williams v. State, 235 S.W.3d 742, 760-61
(Tex. Crim. App. 2007) (conclusion that defendant was reckless in leaving her
children in the care of her boyfriend was based on speculation, where there was no
evidence that her boyfriend was an incompetent caretaker or did not know what to do
with a burning candle); Gross v. State, 380 S.W.3d 181, 188 (Tex. Crim. App. 2012)
(conclusion that defendant and his brother-in-law decided to kill the victim while
driving was based on no evidence and was speculative); Rabb v. State, 434 S.W.3d
613, 617 (Tex. Crim. App. 2014) (conclusion that defendant destroyed evidence by
swallowing it was based on speculation, where there was no evidence on the status of
the bag after he swallowed it); and Queeman v. State, 520 S.W.3d 616, 625 (Tex.

10
Crim. App. 2017) (conclusion that defendant was excessively speeding was
speculative, where trooper did not quantify defendant’s speed).
In Reynolds v. State, 543 S.W.3d 235 (Mar. 28, 2018), the court determined that the
Texarkana court had erroneously found it was unreasonable for Reynolds to have
formed a belief that she could lawfully confiscate a cell phone from a child, who was
then in the temporary custody of the Department of Family Protective Services and
search the phone for evidence of the child’s drug activity. While the State had
presumably correctly argued that the seizure was tortious in nature, the court held
Reynolds could reasonably have thought her conduct was authorized by the DFPS
duty to protect the child from self-destructive behavior and thus rendered Reynolds
incapable of recognizing her conduct was unlawful. Strangely, the court did not focus
on the idea that perhaps Reynolds was presenting a defense amounting to justification
or privilege (something that would preclude her becoming liable under section
1.07(a)(48) of the Penal Code).
In Ross v. State, 543 S.W.3d 227 (Mar. 28, 2018), the court determined that the
Texarkana court had erroneously held the evidence was sufficient to show that Ross’s
conduct in illegally searching an item or area of a home was with knowledge that the
search was unlawful. It discounted the effect of Ross’s statement that her search was
for evidence of drug abuse, as opposed to evidence of what had happened to a child at
the residence (which was her purpose for being in the residence).
In State v. Bolles, 541 S.W.3d 128 (Oct. 18, 2017), the court determined that an
altered or “cropped” version of an earlier, larger photograph of a young child, which
had been made to focus upon the genitalia, constituted an image prohibited as
pornography regardless of when the alteration had been made, so that the lower court
had erred in finding section 43.26(a) of the Penal Code did not apply.
In Long v. State, 535 S.W.3d 511 (June 28, 2017), the court held (in contrast to its
upcoming decisions in Reynolds and Ross) that Long was shown to have knowledge
or reason to know that the recording she had procured (of a speech a basketball coach
had given to his team in their locker room at the half-time of a game) involved an oral
communication that had been “uttered by a person exhibiting an expectation that the
communication is not subject to interception under circumstances justifying that
expectation,” as described in section 18.20 of the Penal Code, which had therefore
been unlawfully intercepted contrary to section 16.02(b)(1) of the Penal Code. The
court, however, apparently interpreted the requirement of knowledge only to concern
whether the recording had been intercepted “through the use of an electronic,
mechanical, or other device,” and not whether the coach reasonably (i.e., in accord

11
with objective societal norms) expected his words to remain private. It took a lengthy
analysis by the court to decipher whether Coach Townsend’s expectation was
“reasonable.” This was certainly not something Long would be expected to recognize
or consider. Her claim that Townsend was acting as a teacher and thus legally subject
to having his communication intercepted and shared— a theory the El Paso court had
accepted—was fairly easily dispatched by the court.
In Moore v. State, 520 S.W.3d 906 (June 7, 2017), the court found that although
several things about Moore’s operation of his vehicle (including its speed and use of
brakes) were unknown, the circumstances surrounding his driving into another
vehicle that was stopped for a red light ahead of him allowed a reasonable inference
that his vehicle was capable of causing death or other serious bodily injury. The trial
court could thus attach an affirmative “deadly weapon” finding to its acceptance of
Moore’s plea of guilty to driving while intoxicated. The Fort Worth court had failed
to draw every reasonable inference available to the trial court. The facts that Ms.
Koen’s vehicle was heavily damaged and Moore had a high blood-alcohol
concentration were more important than any need to hypothesize about the extent of
the danger to other persons. Judge Walker filed a dissenting opinion and Judge Alcalá
noted her dissent.
In Villa v. State, 514 S.W.3d 227 (Mar. 22, 2017), the court felt that the victim’s
identification of Villa as one of the persons that assaulted him was sufficient to prove
he participated as a member of the Barrio Azteca street gang, especially considering
the evidence that there was a gang-related motive for the attack. The court implied
that the El Paso court had used a “divide and conquer” strategy in examining the
evidence favoring Villa’s connection with the gang.
In Johnson v. State, 509 S.W.3d 320 (Feb. 15, 2017), the court found the jury could
reasonably have inferred the knife Johnson held in his hand during a robbery was
used in a manner capable of causing serious bodily injury because of how it was
brandished, and a video showed it was of sufficient size to cause harm. The Fort
Worth court had found there was no imminent threat of harm involved and that the
knife was inadequately described by the victim. The court said Johnson had verbally
threatened the clerk by waving the knife while commanding her to back up (so he
could get to the register).
In Pruett v. State, 510 S.W.3d 925 (Jan. 25, 2017), the court found there was no need
for the evidence to show anyone was actually placed in danger of serious bodily
injury by the fire Pruett had started in the back yard of a residence he owned in part
with his brother and sister (with whom his relationship was strained). The court

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viewed the danger inherent in a fire in a residential neighborhood to make the jury’s
finding that it constituted a deadly weapon reasonable. It said the lower court had
adopted an incorrect standard of review.
In Acosta v. State, No. PD-0967-15 (Nov. 23, 2016) (unpublished), the court found
the necessary “affirmative links” to show that Acosta was knowingly exercising
control over the 24.48 pounds of marijuana the police discovered inside the spare tire
being transported in the vehicle Acosta was driving. The court found two flaws in the
reasoning used by the lower court: its analysis was “divide and conquer” in nature and
improperly focused on missing evidence (that might have provided a stronger
connection of Acosta to the spare tire). The jury verdict was re-instated.
In Walker v. State, No. PD-1429-14 (Oct. 19, 2016) (unpublished), the court found the
Tyler court had deferred to the jury’s presumed resolution of conflicts in the evidence
when it should have determined that the only evidence that truly suggested that
Walker’s conduct was responsible for the burns on her granddaughter’s legs came
from Dr. Wolf and that his opinion about the probability that the child would not have
injured herself derived from assumptions of facts not shown by the evidence. The
court said, “Because the assumptions underlying Dr. Wolf’s opinion in this case were
not supported by the evidence, even if his testimony is viewed in a light most
favorable to the verdict, it cannot rationally be said to establish intentional injury
beyond a reasonable doubt under the actual circumstances [proved] . . . considering
his uncertainty as to both the nature of the injury-accidental or intentional-and the
mechanism of the injury, we conclude that this testimony would have necessarily
called for speculation by the jury.” The court’s ultimate conclusion recognized that
“[t]he human desire to defer to an ‘expert’ is innate and not always rational [meaning]
the jury acted irrationally in deferring to the experts’ unsupported [or unreliable]
conclusions.” Perhaps foreseeing that its own reasoning came dangerously close to an
attack on the weight of the State’s evidence, the court refused to give its opinion in
the Walker case any value as a precedent.
In Tate v. State, 500 S.W.3d 410 (Sept. 21, 2016), the court found the Fort Worth
court had erroneously both “analyzed each circumstance of guilt in isolation without
considering the cumulative force of all of the evidence” and “focused on Tate’s
innocent explanation that one of the other passengers framed him.” It was enough that
the State proved “the methamphetamine and drug paraphernalia were found in the
vehicle Tate owned and was driving [and] were in plain view and conveniently
accessible to Tate.”

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In Wood v. State, 486 S.W.3d 583 (Apr. 6, 2016), the court found that “the court of
appeals failed to view the evidence in the light most favorable to the trial court’s
finding” had been previously convicted of a felony. The San Antonio court had
determined that the “State failed to present evidence that Appellant was convicted of
the enhancement offense alleged in the indictment.” The court observed, “It was not
disputed that Appellant had only one charge for possession of one to four grams of a
controlled substance, that he had been convicted and been to prison for this one drug
charge, and that he had received a six-year term and had served three years of it in
prison and three on parole.” Of interest, Presiding Judge Keller thought the lower
court had reached the correct conclusion.
In Blea v. State, 483 S.W.2d 29 (Feb. 10, 2016), the court found that the initial
injuries suffered by the victim of an assault caused a substantial risk of death. A
majority in the Fort Worth court felt that “bodily injury cannot be elevated to serious
bodily injury by postulating potential complications that are not in evidence.” The
court pointed out that “[b]y focusing on the risk of death after medical treatment
rather than as it had been caused by appellant, the court of appeals’s majority
misapplied the law to the facts.” It added, “that serious bodily injury may be
established without a physician’s testimony when the injury and its effects are
obvious.”
In Ramsey v. State, 473 S.W.3d 805 (Oct. 28, 2015), the court held the circumstances
made it most likely that Ramsey had made out the forged check. This was true even
though there was no comparative analysis of his and the forger’s handwriting because
Ramsey’s suggestion that he had innocently obtained the check (although made
payable to him) from someone else was implausible. The court implied that the older
caselaw relied upon by the intermediate court was no longer valid.
In Nowlin v. State, 473 S.W.3d 312 (Oct. 28, 2015), the court found that “all of the
factors discussed” by the court of appeals as showing Nowlin was aware that Federal
marshals were attempting to arrest her boyfriend for a felony offense were “just
unsupported inferences.” They would be reasonable only if it could have been proved
that her boyfriend knew that he had been indicted for a felony, which could not be
true because the indictment had been “sealed.” The court again emphasized that “[a]
strong suspicion or mere probability of guilt are insufficient . . . factfinders are not
permitted to make conclusions based on unsupported inferences or to guess at the
possible meaning of a piece of evidence.”
In Wilson v. State, 448 S.W.3d 418 (Sept. 17, 2014), made clear that making repeated
telephone communications in a manner reasonably likely to annoy or alarm another

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could include ones having a benign content or facially legitimate purpose because that
does not always prove benign intent, nor the objective harmlessness of its delivery.
The intermediate court had not properly considered the combined and cumulative
force of the evidence and particularly Wilson’s combative conduct and verbal abuse
toward Bailey.
In Dobbs v. State, 434 S.W.3d 166 (June 25, 2014), the court found that display of a
firearm accompanied only by defendant’s threat to kill himself could not constitute
use of force against the officer who was attempting to arrest him.
In Thornton v. State, 425 S.W.3d 289 (Apr. 2, 2014), with four judges dissenting, the
court found the circumstances supported a finding that Thornton had formed the
specific intent to conceal from a nearby officer the fact that he was in possession of a
crack pipe although the concealment was unlikely to be effective (something which
suggested merely an intent to abandon the pipe). The court applied the rule that “[a]s
long as the verdict is supported by a reasonable inference, it is within the province of
the factfinder to choose which inference is most reasonable.” It added, “it would be
inappropriate to adopt [another] alternative ‘reasonable hypothesis’ on the basis of
evidence that could be interpreted — equally reasonably — in one of two ways.”
Among other things, the dissenting judges sought to remind everyone that “in the
context of the criminal attempt statute that the [element of a] ‘specific intent’ to
commit an offense requires a finding [and evidence] that the defendant specifically
intended to bring about a particular result.”
Attacks on sufficiency of the evidence are currently most often launched based on
language from Hooper v. State, 214 S.W.3d 9 (2007) and the rulings in Winfrey v.
State, 323 S.W.3d 875 (2010) and Winfrey v. State, 393 S.W.3d 763 (2013) (“The
circumstantial evidence that the state presents as indicia of appellant’s guilt of the
capital-murder offense appears more speculative than inferential . . . .”). Notably,
Presiding Judge Keller opined in her dissent in Winfrey that “in finding the evidence
insufficient to support appellant’s convictions, the Court views the evidence in the
wrong light and fails to give the jury the deference that it is due.”
Another point defense counsel might include in arguments about sufficiency are: “[I]n
this land of ours the life and liberty of no man shall be exacted or taken from him as a
penalty for crime, until his guilt has been first established in accordance with law.
Such is the right guaranteed every citizen. It is the duty and responsibility of the
courts to enforce and preserve that right.” Thomas v. State, 148 Tex. Crim. 526, 189
S.W.2d 621, 626 (1945). Or one might rely on the wisdom of Judge Wright C.
Morrow, who said: “The sanctity of the verdict of the jury is such that it must not

15
lightly be annulled in any case, but the law does not contemplate that one shall suffer
because of the verdict when the evidence, viewed in its strongest light from the
standpoint of the State, fails to make his guilt reasonably certain.” Jolly v. State, 87
Tex. Crim. 288, 221 S.W. 279, 281 (1920).
There are no easy answers to the issue of how best to balance or define the concerns
expressed in “beyond reasonable doubt” or “irrational.” Certainty or sureness may be
quantified in terms of the care or importance or desire the thinker assigns to the task.
But, ultimately, lack of absolute certainty arises no matter how hard or long one
studies the evidence or facets of the problem, just as any decision we make produces
unknowable, unreckoned consequences that could cause it later to seem too hasty.

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