="font-size: 14pt">Trial Court # MB98-32671-A

CONCURRING OPINION

      I disagree with the analysis of the first issue. I do not believe that we should review the factual sufficiency of the evidence to support a jury’s implied findings on an article 38.23 instruction. As I read Malik v. State, sufficiency reviews are reserved for elements of the offense. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (“The legality of appellant's detention is not an element of the offense charged but merely relates to the admissibility of evidence.”); see also McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App. 1998) (“We hold that a factual sufficiency review of a jury's determination [at the punishment phase of a capital case] of a probability of future dangerousness is not required by the Texas Constitution.”). Thus, I disagree with the decision in Coleman v. State, 45 S.W.3d 175, 178 (Tex. App.—Houston [1^st Dist.] 2001, pet. ref’d).

      Shortly after the Clewis decision, in Brumbalow v. State, we recognized that a Clewis-type review of factual sufficiency is limited to the “elements of the offense” and declined to extend it to the factual basis underlying revocation of community supervision. Brumbalow v. State, 933 S.W.2d 298, 299-300 (Tex. App.—Waco 1996, pet. ref’d).

      The foremost problem with such a review is: What is the remedy if we find the evidence factually insufficient to support the jury’s implied finding on the article 38.23 instruction? The answer is easy if there is no other evidence on which the conviction might be based: reverse for a new trial. If, however, we disregarded the evidence in question on the article 38.23 instruction and found other evidence that is legally and factually sufficient to support the elements of the offense, do we reverse a valid conviction that is fully supported by competent evidence? I think not. I would rather not enter into the quagmire that review of such implied findings poses.

      Because I otherwise agree with the Chief Justice, I concur in affirming the judgment.

                                                                       BILL VANCE

                                                                       Justice

Opinion delivered and filed December 28, 2001

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