¶1dissenting and concurring.
¶2The facts of this cause make it clear to me that the day in question was a “dismal” day for Ricardo Moreno, henceforth appellant. The facts reflect that appellant, who was then highly intoxicated, was shot once in the hand and once in the stomach by the complainant, a Houston police officer, who was a much larger man than appellant, who is only four feet, six inches tall. Given what the majority opinion states, or perhaps does not state, it should also be a “dismal” day for the Courts of Appeals of this State, if not the criminal jurisprudence of this State.
¶3A majority of this Court, operating from its perch, in its de novo review of the facts of this cause, that go to appellant’s claim that the State’s evidence is insufficient to sustain his conviction for attempted capital murder of the complainant, a Houston peace officer, finds that the evidence is sufficient.
¶4The Fourteenth Court of Appeals (Houston), however, from its perch, in a unanimous opinion by Justice Ross Sears, on behalf of himself, Justice Paul Presslar, and Justice Bill Cannon, for that court, held to the contrary, after carefully reviewing the facts of the case.
¶5Does this mean that the collective judgment of a majority of the members of this *873Court who vote to join the majority opinion is superior to the collective judgment of Justices Sears, Presslar, and Cannon? Under the “gorilla” theory, the answer is, of course, an unequivocal yes. However, by virtue of Art. V, § 6, of the Texas Constitution, the voters of this State have declared that the judgments of the members of this Court, when it comes to making factual determinations, are inferior to the members of the Courts of Appeals.
¶6Implicit in the opinion of the court of appeals is that in making the determination whether the evidence was sufficient it “weighed” the evidence, obviously doing so pursuant to the provisions of Art. V, § 6, of the Texas Constitution, which provides, inter alia, that decisions of the courts of appeals shall be conclusive on all questions of fact, subject to no review by this Court. In this regard, please observe that in finding that the evidence was insufficient the court of appeals did not order the trial judge to enter a judgment of acquittal as to the offense of attempted capital murder on appellant’s behalf; it merely ordered that “The conviction of appellant is reversed and this cause is remanded to the trial court [for proceedings not inconsistent with this opinion].” Moreno v. State, 711 S.W.2d 382, 386 (Tex.App.-14th 1986). Thus, the court of appeals did not find that there was “no evidence” to support the conviction, only that by weighing the facts the evidence was insufficient.
¶7The majority opinion, implicitly if not expressly, asserts that in ordering the conviction for attempted capital murder set aside, the court of appeals acted as “the almighty thirteenth juror” in this cause. To the contrary, however, it did not act or attempt to act as the almighty thirteenth juror might have acted when it reviewed the claim that the evidence was insufficient; it acted as a court of appeals is authorized to act pursuant to Art. V, § 6, of the Texas Constitution.
¶8The issues that confront this Court in this cause is whether the court of appeals had jurisdiction, pursuant to Art. V, § 6, of the Texas Constitution, to pass upon the weight and preponderance of the evidence, and how binding that decision might be on this Court. Those issues remain unresolved. Perhaps a more important issue that should be addressed by this Court is whether this Court’s decision of Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982), where this Court’s train got off the track in deciding what jurisdiction the courts of appeals have in deciding factual issues, and what jurisdiction this Court has to review sufficiency questions once they have been passed on by the Courts of Appeals, should be revisited by this Court.
¶9In urging the members of this Court that Combs, supra, should be revisited, and trying to persuade them to see the guiding light, I can do little more than refer them to the dissenting opinion that I filed in Gold v. State, 736 S.W.2d 685, 691 (Tex.Cr.App.1987), which I strongly urge them to read, if they have not done so, or re-read if they would care to understand my repeat of the concerns expressed by Justice Colley of the Tyler Court of Appeals. I pause to point out that members of the El Paso Court of Appeals and the Corpus Christi Court of Appeals have also voiced the same concerns that Justice Colley has expressed about the Constitutional authority that courts of Appeals have in reviewing factual issues, and how binding those decisions should be in this court.
¶10In sum, the court of appeals did not act as a “thirteenth” juror, and the majority opinion errs in implying that it acted in that capacity, because all that the members of the court of appeals did in this cause was to act in accordance with their oaths of office.
¶11For all of the above and foregoing reasons, I respectfully dissent to this Court implicitly overruling that part of Art. V, § 6, of the Texas Constitution, which provides that decisions of the Courts of Appeals “shall be conclusive on all questions of fact brought before them.” I do, however, join the remainder of the opinion that holds that appellant properly preserved his second point of error for appellate review purposes.