¶1concurring:
¶2Since neither the appellant nor the State has requested a re-examination of the decision in Combs, I see no reason to overrule it. However, I believe the correct result was reached by the majority, thus I concur in its judgment.
¶3concurring.
¶4In the opinion of the Court Judge Miller reprises the “critical inquiry” the Supreme Court held a federal habeas court has a duty to make on reviewing sufficiency of evidence to support a criminal conviction obtained in a state court. Opinion, at 237 - 239. That is, of course, the standard of review it pronounced as “the constitutional minimum” in Jackson v. Virginia, 443 U.S. 307, at 318-319, 99 S.Ct. 2781, at 2788-2789, 61 L.Ed.2d 560 (1979). Without being compelled by the supremacy doctrine to do so, this Court chose to adopt that standard for state appellate courts in reviewing sufficiency of circumstantial as well as direct evidence on appeal.
¶5That we deliberately adhered to a traditional analytical formulation for examining one kind of evidence in applying a newly adopted standard of review — one the Court was not obliged to accept in the first place —was to recognize there are no better guidelines than “those we currently employ” for that purpose, e.g., Carisen, at 450, and Wilson, at 472. We were not then and are not now being “disturbingly selective;” rather, the Court retained a large body of law, well known to bench and bar, to guide appellate review by fourteen courts of appeals. If not its duty, such is its patent prerogative.
¶6*243We need not reject what the Supreme Court “denounces” for its own reasons of practice. Federal courts instruct the jury on meaning of reasonable doubt. Holland v. United States, 348 U.S. 121, 139-141, 75 S.Ct. 127, 137-138, 99 L.Ed. 150 (1954). The law of this State does not mandate that jurors be given a definition of reasonable doubt.
¶7A majority of this Court abolished the requirement of a circumstantial evidence charge but refused to require trial courts to define reasonable doubt. Hankins v. State, 646 S.W.2d 191, 197ff (Tex.Cr.App.1981) (Opinions on State’s Motion for Rehearing delivered March 1, 1983). Thereafter, while agreeing with the State’s suggestion that the “standard for appellate review” is the same for direct and circumstantial evidence cases, with Hankinsin mind this Court maintained the “reasonable hypothesis” analysis for applying that standard. We agreed that “if there is a ‘reasonable hypotheses’ other than guilt of the accused, then it cannot be said that the guilt has been shown ‘beyond a reasonable doubt.’” McCormick, J., concurring in Carlsen, et al., supra, delivered July 20, 1983.
¶8Therefore, if Moreno “decided that any amount of evidence constituting more than a ‘mere modicum’ to support the jury’s verdict will suffice,” White, J., concurring herein, at 244, then it is Moreno rather than the opinion of the Court in this cause that “sees fit to selectively adhere to certain convenient aspects of Jackson [v. Virginia], supra ...,” id., at 244.
¶9With those observations, I join the opinion of the Court.
¶10. Pointedly we made the decision in a quartet of cases in which conviction depended on circumstantial evidence, viz: Carlsen v. State, 654 S.W. 2d 444, 448ff; Freeman v. State, 654 S.W.2d 450, at 455ff; Denby v. State, 654 S.W.2d 457, at 463ff; Wilson v. State, 654 S.W.2d 465, at 470ff (Tex.Cr.App.1983) (Opinions on Rehearing).
¶11Forever the Court has tested sufficiency of circumstantial evidence under a rubric of "the utilitarian 'exclusion of outstanding hypotheses’ analysis,” and we found no reason to abandon it for "applying" the Jackson v. Virginiastandard of review in such a case. Carisen, at 449; Freeman, at 456; Denby, at 464; Wilson, at 471; each concurring opinion agreed, 654 S.W.2d at 450, at 457, at 465 and at 472 (all emphasis is mine throughout this opinion unless otherwise indicated).
¶12. As Judge White sees the opinion of the Court, it "ignores the most important aspect of Moreno [v. State, 755 S.W.2d 866 (Tex.Cr.App.1988) viz: "the discussion of the actual degree of evidence necessary to support the jury’s verdict." Concurring opinion, at 244. The problem in Moreno is its admonition that “a verdict must stand unless it is found to be irrational or unsupported by a more than a 'mere modicum’ of evidence....” Id., at 867.
¶13First of all, read literally the statement means "unless the verdict is either irrational or unsupported by more than a mere modicum of evidence." On that account alone the discussion hardly describes an “actual degree of evidence."
¶14More importantly, the "mere modicum” term was used by the Supreme Court to point out that its "no evidence" doctrine failed to provide “a workable or even predictable standard." Jackson v. Virginia, supra, 443 U.S. at 320, 99 S.Ct., at 2789-2790. In making its point the Supreme Court did not there suggest that the inquiry it mandated is complete when slightly "more than a mere modicum" is found in the record evi*243dence. To the contrary, in note 12 it had already alluded to degrees of more substantial evidence. See, e.g., Moreno, supra, at 871 (Clinton, J., concurring; Nevarez v. State, 767 S.W.2d 766 (Tex.Cr.App.1989). (Clinton, J., dissenting).
¶15Indeed, when it came to apply the "rational factfinder" standard of review to the contested issue of specific intent to kill, without in any way indicating its quest was for “more than a mere modicum" the Supreme Court first examined all germane evidence presented by the prosecution, and concluded:
"... From these uncontradicted circumstances, a rational factfinder readily could have inferred beyond a reasonable doubt that the petitioner, notwithstanding evidence that he had been drinking on the day of the killing, did have the capacity to form and had in fact formed an intent to kill the victim."
¶16Id.,443 U.S. at 325, 99 S.Ct., at 2792. Concerning his claim of selfdefense, the Supreme Court said it was evident from the record "that the trial judge found this story, including the petitioner’s belated contention that he had been so intoxicated as to be incapable of premeditation, incredible.” Ibid.That ended its analysis of evidence, and after again rejecting a reasonable hypothesis theory the Supreme Court held a rational trier of fact could have reasonably found petitioner committed murder as alleged. Id., at 326, 99 S.Ct., at 2792-2793.
¶17concurring.
¶18At this point in time, a decade after Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), I thought all members of this Court were well aware that the “no evidence” standard of sufficiency review was defunct. At the very least, I do know that the general members of the bar have long been aware of this fact. This is why, although I do not disagree, I do find the majority’s perceived need to overrule the implicitly invalid “no evidence” language in Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982), quite perplexing. Had I realized that anyone considered this language in Combsthe least bit viable, I would have never cited Combsin Moreno v. State, 755 S.W.2d 866 (Tex.Cr.App.1988). Moreno’s reliance on Combswas intended to be, albeit implicitly, purely limited to Combs’ discussion of and quotation from Jacksonconcerning the type of sufficiency evaluation involved in a due process standard of review. Moreno, supra at 867. However, after reading the instant majority opinion, I now must give credence to Judge Clinton’s concerns in Morenothat a Combscitation would revive the totally unacceptable “no evidence” standard. Moreno, supra at 872 (Clinton, J., concurring). Such was never my intent, nor, I dare say, the majority’s intent in voting for Moreno. Thus, to the extent that the “no evidence” standard of review has once again been disavowed, I do not disagree.
¶19*244What I do disagree with, however, is the less than favorable characterization of Morenoby the majority, many of whom fully joined the Morenoopinion less than eight months ago. Further, and what disturbs me even more, is that the majority ignores the most important aspect of Moreno—the discussion of the actual degree of evidence necessary to support the jury’s verdict. Here lies the crux of any Jacksonanalysis yet the majority fails to even acknowledge this issue. In Morenowe stated,
Under the Jacksonstandard, the reviewing Court is not to position itself as a thirteenth juror in assessing the evidence. Rather, it is to position itself as a final, due process safeguard ensuring only the rationality of the factfinder.... The factfinder, best positioned to consider all the evidence firsthand, viewing the valuable and significant demeanor and expression of the witness, has reached a verdict beyond a reasonable doubt. Such a verdict must stand unless it is found to be irrational or unsupported by more than a ‘mere modicum’ of the evidence, with such evidence being viewed under the Jacksonlight.
¶20Moreno, supra at 867. Thus, this Court has decided that any amount of evidence constituting more than a “mere modicum” to support the jury’s verdict will suffice.
¶21Finally, I must point out the folly in the majority’s denouncement of prior applications of Jacksonwhile they themselves attempt to validate a method of sufficiency review that Jacksonexpressly disapproved. In footnote 1, the majority ‘reiterates’ the continued validity of the “outstanding reasonable hypothesis” theory, op. at 238. However, the JacksonCourt explicitly rejected this notion by stating,
Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 [(1954)]. We decline to adopt it today. 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.
¶22(emphasis supplied). Jackson, supra443 U.S. at 325-327, 99 S.Ct. at 2792-93. Thus, Jacksonspecifically denounces the “reasonable hypothesis theory” while the majority embraces it. Further, whether this theory is euphemistically labeled as an “analytical construct” (see op. at 238, fn. 1) or a standard of review is of little moment; the resultant effect remains the same — the adoption of a theory of sufficiency review expressly denounced by Jackson. Thus, although the majority, by all auspices, fully adheres to Jackson, it appears to me that such adherence is disturbingly selective.
¶23Because the Court sees fit to selectively adhere to certain convenient aspects of Jackson, supraand Moreno, supra,while completely disregarding the less palatable holdings of those opinions, I must concur only in the result reached.