188 F.3d 250 | 5th Cir. | 1999
Lead Opinion
The state appeals the grant of habeas corpus relief to Larry Bledsue, who had been convicted in state court of intentionally and knowingly possessing 28 or more but less than 400 grams of amphetamine. Concluding that the district court properly entertained the claim, we nevertheless disagree with its conclusion that the evidence adduced at trial was constitutionally insufficient to convict. Thus, we reverse the grant of habeas corpus relief and deny Bledsue’s petition.
I.
In July 1989, Bledsue was indicted for intentionally and knowingly possessing amphetamine in a quantity less than 400 grams, but of at least 28 grams. The indictment described the offense as “aggravated” but did not state that the weight of the amphetamine necessary to convict could include adulterants or dilutants; neither did it reference Tex. Health & Safety Code § 481.116, the statute defining the offense.
The undisputed evidence indicated that, counting adulterants and dilutants, Bled-sue possessed more than 28 grams of amphetamine, but that absent such additives he possessed only 10 to 17 grams. On an instruction that it could consider the weight of the adulterants and dilutants when determining the total weight of amphetamine, the jury found Bledsue guilty on the “28 grams or more” count,
Bledsue’s appeal to an intermediate Texas court was dismissed as untimely. In response, he filed his first petition for ha-beas corpus relief with the Texas Court of Criminal Appeals, which granted it, allowing him to proceed on direct appeal. Ultimately, his conviction was affirmed by the intermediate court in an unpublished opinion. He did not petition the Court of Criminal Appeals for discretionary review.
Bledsue did, however, file two additional petitions for habeas relief in Texas courts. In his second petition, his principal argu
Bledsue then filed a third state habeas petition, in which he specifically argued that (1) the trial court had improperly allowed the jury to include adulterants and dilutants in determining the amount of total amphetamine when the indictment charged only the possession of pure
Bledsue then sought habeas relief in federal court under 28 U.S.C. § 2254, advancing the same two points he had raised in his third state habeas petition. The magistrate judge found that Bledsue’s first assignment of error was proeedurally barred in federal court because it was not raised until his third state habeas petition, which was dismissed by the Court of Criminal Appeals as successive.
Ultimately, the magistrate judge recommended granting the writ, finding the evidence constitutionally insufficient in that the state was bound by its indictment, which charged the possession of at least 28 grams of amphetamine but made no mention of adulterants or dilutants. Because the undisputed evidence indicated that Bledsue possessed, at most, 17 grams of pure amphetamine, the magistrate judge recommended a judgment of acquittal, but allowing the state 120 days to retry on the lesser charge of possessing less than 28 grams. The state objected on only the sufficiency claim, but the district court denied the objection and adopted the recommendation.
The state challenges on three fronts. First, it argues that the court improperly granted relief based on insufficient weight of drugs to convict, given that Bledsue had argued, to the state courts, only insufficient evidence of intent. If, however, the weight claim was contained in his second state habeas petition, the state contends, then Bledsue’s state petition was dismissed on a procedural rule rather than on the merits, resulting in a bar to consideration in federal court.
Second and alternatively, the state argues that if the weight claim is in a proper procedural posture for federal consideration, then under a constitutional sufficiency of the evidence test, the evidence adduced at trial was sufficient to prove possession of at least 28 grams. Third, the state urges that even if the evidence was constitutionally deficient, any error is harmless, because Bledsue
II.
In reviewing a grant of habeas relief, we examine factual findings for clear error and issues of law de novo. Lauti v. Johnson, 102 F.3d 166, 168 (5th Cir.1996). Mixed questions of law and fact are also reviewed de novo by “independently applying the law to the facts found by the district court, unless those factual determinations are clearly erroneous.” Id. at 169. Additionally, Bledsue’s federal habeas claim is governed by the Anti-Terrorism and Effective Death Penalty Act (“AED-PA”), under which federal courts can grant habeas relief only if the state court’s adjudication on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (1996).
III.
As the state correctly notes, the scope of federal habeas review is limited by the intertwined doctrines of procedural default and exhaustion. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal,
In its original answer to the federal habeas petition, the state admitted “that Bledsue has sufficiently exhausted his state remedies as required by 28 U.S.C. § 2254(b) and (c).” Consequently, the state has waived any independent exhaustion argument, as well as the exhaustion argument included within the doctrine of-procedural default—specifically, ground (2) above.
According to the state, the district court should have refused to consider Bledsue’s sufficiency claim regarding the weight of the amphetamine, because the only time Bledsue raised any issue regarding weight was in his third state habeas petition, which was expressly dismissed on an independent and adequate procedural ground (successive writs). The state asserts that in his direct appeal to the intermediate state court of appeals and in his second habeas petition to the Court of Criminal Appeals, Bledsue focused only on the intent element and raised no challenge to the sufficiency of the evidence regarding weight. Consequently, contends the state, the district court granted relief on an issue advanced only in Bledsue’s third habeas petition, which was expressly dismissed on the independent and adequate state law ground of abuse of the writ.
The district court, however, concluded that the overall issue of sufficiency of the evidence — not just sufficiency as to the issue of intent — was presented in Bled-sue’s direct appeal and in his second state habeas petition. We agree. Although we recognize that the plain language of Bled-sue’s direct state appeal and second state habeas petition did not explicitly pinpoint the issue of weight, his claim of insufficient proof of intent implicitly presented the. issue of weight. Admittedly, we so conclude generously, because Bledsue is a pro se petitioner, and in this circuit pro se habeas petitions are construed liberally and are not held to the same stringent and rigorous standards as are pleadings filed by lawyers.
Accordingly, finding guidance from Brown v. Collins, 937 F.2d 175 (5th Cir.1991), we conclude that Bledsue amply raised an overall challenge to the sufficiency of the evidence in his state petitions. The petitioner in Brown argued on direct appeal to the state court that the state had failed to carry its burden of proving armed robbery, because it had “proved only that [he] was near the scene of the robbery.” Later, in a federal habeas petition, Brown argued that the prosecution had not proven an essential element of armed robbery, specifically, that he had used or exhibited a firearm.
Even though the state petition challenged a different element of armed robbery, we held that the federal challenge to the sufficiency of the evidence was subsumed within Brown’s sufficiency claim on direct appeal; See Brown, 937 F.2d at 179. Guided by Brown, we likewise find that the mainstay of Bledsue’s direct appeal and state habeas petition was a challenge to the overall sufficiency of the evidence to sustain his conviction for possession of twenty-eight grams or more of amphetamine.
We now consider whether the Court of Criminal Appeals clearly and expressly dismissed Bledsue’s claim on an “independent and adequate” state procedural ground, such that the claim is procedurally
In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state law ground, a federal court may address the petition.
Id. at 735, 111 S.Ct. 2546.
On the same day Coleman was decided, the Court issued Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), which clarifies Coleman and addresses the problem that arises when a state court issues an unexplained order, neither disclosing nor insinuating the reason for its judgment. The Court created a presumption to be applied by federal courts when they are unable to determine whether the state court opinion “fairly appeared to rest primarily upon federal law.” See id. at 803, 111 S.Ct. 2590 (quoting Coleman, 501 U.S. at 740, 111 S.Ct. 2546).
Termed the “look through” doctrine, this presumption enables federal courts to ignore' — and hence, look through — an unexplained state court denial and evaluate the last reasoned state court decision. When one reasoned state court decision rejects a federal claim, subsequent unexplained orders upholding that judgment or rejecting the same claim are considered to rest on the same ground as did the reasoned state judgment. The Court explained:
The maxim is that silence implies consent, not the opposite — and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below. The essence of unexplained orders is that they say nothing. We think that presumption which gives them no effect — which simply “looks through” them to the last reasoned decision — most nearly reflects the role they are ordinarily intended to play.
Id. at 804, 111 S.Ct. 2546.
The Court of Criminal Appeals responded to Bledsue’s second habeas petition by simply stating, “Application denied without written order.” The state argues that this denial stems from the longstanding Texas procedural rule that prohibits the Court of Criminal Appeals from entertaining sufficiency of the evidence claims on habeas review.
Although the Court of Criminal Appeals generally refuses to entertain sufficiency challenges on collateral review, the mere existence of a procedural default does not deprive federal courts of jurisdiction. See Shaw v. Collins, 5 F.3d 128, 131 (5th Cir.1993). Quite to the contrary, to prohibit our collateral review the state court must have expressly relied on the procedural bar as the basis for disposing of the case. Here, the disposition by the Court of Criminal Appeals presented no such expression and no explanation, so we cannot identify the element of clear and express reliance on a state procedural rule to preclude review in federal court.
Additionally, under Ylst, we must “look through” the Texas court’s denial to the ruling of the last state court to render a reasoned decision. When we do so, we find that the state court denied Bledsue’s requests not on a procedural ground but on the merits.
The intermediate state court of appeals, on direct review, conducted a sufficiency of the evidence examination in which it noted that “we must review all of the evidence in the light most favorable to the verdict.” Although that court ultimately found the evidence sufficient to establish guilt, it nevertheless performed an analysis on the merits to reach that finding. As we “look through” the denial by the Court of Criminal Appeals to the reasoned intermediate appellate opinion, we again conclude that Bledsue’s claim was denied on the merits, i.e., was not denied on an independent and adequate state ground. We therefore conclude that the sufficiency of the evidence claim does not fall prey to the procedural bar and is properly before the federal courts.
IV.
In arguing insufficiency, Bledsue claims the state failed to prove he possessed more than twenty-eight grams of amphetamine because his indictment did not contain the phrase “including adulterants and dilu-tants.” Even though his jury charge allowed the state to include adulterants and dilutants in calculating the total weight of amphetamine, Bledsue points out that Texas courts have required jury charges to correspond to the elements of the offense set forth in the indictment.
A.
This court last considered the effect of the Benson/Boozer rule on federal habeas
Similarly, the statute used to convict Bledsue authorized the inclusion of adulterants and dilutants in calculating the amount possessed, and the charge gave instructions to consider “adulterants and dilutants”. Therefore, Brown requires reversal of habeas relief here, because Bled-sue has not shown that the omission of the phrase “adulterants and dilutants” in his indictment is anything more than a violation of the Benson/Boozer rule unworthy of habeas relief.
B.
Bledsue argues, however, that Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), modifies the Benson/Boozer rule and elevates it from a procedural nuance to an essential element requiring federal habeas protection. Essentially, Bledsue asks us to overrule Brown on the basis of the change in Texas law effected in Malik. We decline, however, to expand the scope of our review of Texas cases by incorporating the Malik rule into our federal habeas jurisprudence.
In Malik, id. at 240, the court abolished the “Benson/Boozer” rule in favor of a rule requiring sufficiency of the evidence to be measured by the “elements of the offense as defined by the hypothetically correct jury charge for the case.” A “hypothetically correct jury charge ... accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. Bledsue reasons that because this new standard requires the state to prove the elements of the crime set forth in the indictment, a failure to meet the Malik standard is tantamount to failing the constitutional sufficiency-of-the-evidence test.
Bledsue contends that, in general, Malik actually benefits the state, because the state simply has to prove the elements in the indictment. Thus, unlike defendants subject to the “Benson/Boozer” doctrine, defendants post-Malik cannot challenge convictions of illegal handgun possession on the basis of concerns over the legality of their detention, because the detention is not an essential element discussed in the indictment. See Malik, 953 S.W.2d at 240. Similarly, the defendant in Brown would not have been able to challenge the theory of liability raised in the jury instructions because, under Malik, the state proved the charges raised in a “hypothetically accurate” instruction.
In many cases, the Malik rule will produce an accurate list of the “essential elements” that Jackson requires federal courts to review during habeas proceedings. Jackson, however, does not necessarily require that, for constitutional sufficiency, the elements stated in the indictment govern which “essential elements” must be measured against the evidence. Jackson requires only that the review occur “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781.
Although the indictment is central to figuring out which laws are being charged, an ambiguously drafted indictment may make it difficult to identify which “substantive elements” need to be proven for constitutional sufficiency. The Malik court recognized this problem:
Measuring sufficiency by the indictment is an inadequate substitute because some important issues relating to sufficiency — e.g. the law of parties and the law of transferred intent — are not contained in the indictment. Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.
953 S.W.2d at 239-40. Bledsue’s case provides an example of how the indictment can inadequately set out the elements of the offense. The state indicted Bledsue for knowingly and intentionally possessing amphetamine in a quantity of at least 28 but less than 400 grams, but the indictment did not state whether the weight included adulterants or dilutants. The magistrate judge correctly found that in reviewing for sufficiency pre-Malik, Texas courts will refuse to consider adulterants and dilutants unless the indictment specifically includes the words “adulterants and dilutants.” Dowling, 885 S.W.2d at 109.
Post-Malik, however, it is uncertain whether Texas courts would require that phrase in the indictment to convict Bled-sue, because the old requirement of matching the jury charges and indictment no longer exists.
Perhaps, to meet Malik, a Texas court simply would require the hypothetically correct jury charge to be based on a hypothetically correct indictment. At the very least, when the indictment raises ambiguities as to what the hypothetically correct jury charge should be, the Malik approach does not resolve a federal habeas court’s inquiry into what are the essential elements of state law we should use to review Bledsue’s conviction.
This quandary teaches us, on habeas review, to maintain our own notions of constitutional sufficiency that are not overly dependent on state law doctrines such as that enunciated in Malik. Rather, federal habeas courts should independently analyze the governing statute, the indictment, and the jury charge to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry.
C.
Therefore, while we decline to adopt the Malik rule as a measure of constitutional sufficiency, we still consider whether “adulterants and dilutants” constitute an “essential element” for the purpose of federal habeas review. If we decide that “adulterants and dilutants” are an essential element under Jackson, then the district court properly granted habeas relief, because no rational jury could have found the evidence sufficient to convict Bledsue of possessing more than twenty-eight grams of pure amphetamine. To make this determination, we look to “substantive elements of the crime” as defined in the statute used to convict Bledsue, and we seek guidance from the Supreme Court’s recent teachings on how to construe criminal statutes.
In Jones v. United States, — U.S. -, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court construed 18 U.S.C. § 2119, the federal car-jacking statute, as creating three separate offenses. The statute provides that when a person takes a motor vehicle by force and while possessing a firearm, the punishment is (1) not more than 15 years if the victim suffered no serious bodily injury; (2) not more than 25 years if he suffered serious bodily injury; and (3) not more than life imprisonment if he died as a result of the car-jacking. The Court rejected the government’s contention that § 2119 be read to create one offense with three separate punishments and held that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. 119 S.Ct. at 1224 n. 6.
The defendant in Jones was indicted and convicted under § 2119, but at trial no evidence regarding injury to the victims was produced. At sentencing, however, the court found that the defendant had indeed caused serious bodily injury, pursuant to the second subsection of § 2119, and sentenced him to twenty-five years. To avoid constitutional concerns, the Court construed the separate subsection creating serious punishments for causing “serious bodily injuries” to constitute a separate, independent offense. In doing so, the Court held that the question whether the defendant had caused serious bodily injury must be determined by the jury.
Like the one in Jones, the statute authorizing Bledsue’s conviction sets out three levels of punishment for possession of certain illegal substances, depending on the quantity possessed: (1) Possessing less than 28 grams, including adulterants and dilutants, is a third-degree felony; (2) possessing more than 28 grams but less than 400 grams, including adulterants and dilu-tants, is an aggravated felony punishable by up to 99 years but no less than 5 years; (3) possessing more than 400 grams, in-
Therefore, the state would violate Bled-sue’s Sixth Amendment jury trial rights if it proved that he possessed less than 28 grams, then convinced the court to impose a heavier sentence based on a non-jury finding that he possessed more than 28 grams. In other words, because the amount of the controlled substance possessed determines the severity of punishment, the amount possessed is a jury question and an essential element under Jones and Jackson. But nothing in Jones suggests that we must read “adulterants and dilutants” as an essential element of the crime for which Bledsue was convicted.
Acknowledging that § 481.116 creates three separate offenses, we nevertheless do not conclude that the omission of “adulterants and dilutants” creates a separate criminal offense. Each of the three offenses in the statute describes the amount of the controlled substance as “including adulterants and dilutants.” In Jones, the penalty varied with respect to the level of harm caused to the victims. The problems arose when the jury considered facts supporting one offense, while the sentencing court considered facts supporting an entirely different offense.
Here, the penalty varies with respect to the amount of controlled substances possessed and does not depend on whether adulterants and dilutants are included. According to § 481.116, adulterants and dilutants are always included for purposes of calculating the amount possessed. Therefore, even under Jones, Bledsue could not have been convicted of possessing less than twenty-eight grams, because “adulterants and dilutants” are always included in the calculation of the amount possessed.
If the grand jury had indicted Bledsue for possessing less than twenty-eight grams, but the jury had been instructed that it could convict him of possessing more than that amount, federal habeas relief would be more likely, because, under Jones, the indictment would have charged a crime different from the one for which he was convicted. But here, it was not possible for the grand jury to have indicted Bledsue for a different crime, because the lowest possible offense created by the statute still includes adulterants and dilu-tants in calculating the amount possessed.
Therefore, for purposes 'of federal habe-as review, the state provided sufficient evidence for a rational trier of fact to find
The judgment granting habeas corpus relief is REVERSED, and judgment is RENDERED, denying habeas relief.
. The jury was instructed on the lesser included offense of possession of amphetamine in a quantity less than 28 grams. Although it is inconsequential to the outcome, we find it perplexing that the jury instruction on the "28 grams or more” count allowed the jury to include adulterants and dilutants, but the instruction on the "less than 28 grams” count did not.
. Tex. Penal Code § 12.42 (West 1994). Bled-sue's sentence was assessed under subsection (d), which states,
If it be shown on the trial of a felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment for life, or for any term of not more than 99 years or less than 25 years.
Tex. Penal Code § 12.42(d).
. The indictment referred to "amphetamine” without the adjective "pure,” but also without reference to "adulterants and dilutants.”
. Section 4 of Article 11.07 provides that a court may not consider the merits of a subsequent application for habeas relief after final disposition of an initial application challenging the same conviction.
.A federal court is barred from reviewing a habeas application that a state court has expressly dismissed on an independent and adequate state law ground. See Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1845, 140 L.Ed.2d 1094(1998).
. See Jackson v. Johnson, 150 F.3d 520, 522 (5th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1339, 143 L.Ed.2d 503 (1999). Bledsue satisfies the "in custody" requirement of AEDPA because there is a demonstrable relationship between his conviction, which is the subject of this petition, and his present incarceration. See 28 U.S.C. § 2254(a) (1996); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Escobedo v. Estelle, 655 F.2d 613, 614 (5th Cir. Unit A Sept.1981).
. Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Nobles, 127 F.3d at 420.
. Both in oral argument and in its brief, the state insists that Bledsue's failure to seek discretionary review constitutes procedural default. See Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir.1985) ("We hold that a Texas inmate seeking federal habeas relief who, in directly appealing his state criminal conviction, has by-passed the Texas Court of Criminal Appeals will not be deemed to have exhausted his state remedies until he has raised his claims before the state's highest court though collateral review provided by state habeas proceedings.”). We conclude that this theory addresses the exhaustion issue and has been waived by the state.
Even if there had been no waiver, however, the state's argument would fail, because at no time have we suggested that pursuing relief in the Court of Criminal Appeals in both a petition for discretionary review and in an application for a writ of habeas corpus is necessary to satisfy the exhaustion requirement. See Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir.1990). Only one avenue of post-conviction relief need be exhausted, and Bledsue has done so in his application for habeas relief to the Court of Criminal Appeals.
. See Martin v. Maxey, 98 F.3d 844, 847 n. 4 (5th Cir.1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir.1988); Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981).
. See Humphrey v. Cain, 120 F.3d 526, 530 n. 2 (5th Cir.1997), rehearing en banc, 138 F.3d 552 (5th Cir.), cert. denied, - U.S. -, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998).
. See also Vela v. Estelle, 708 F.2d 954 (5th Cir.1983), on which the district court relied. There, a pro se petitioner filed a federal habe-as claim alleging ineffective assistance of counsel, but the petition alleged a number of trial errors that were not specifically mentioned in his state habeas claim. See id. at 957-58. The state argued that the federal claim was procedurally barred, as it had not been made in state court, but we held that a general claim of ineffective assistance of counsel in the state petition was sufficient to invoke a full study of individual factual claims found in the available state court records. See id. at 960.
. See Rent v. Scott, 28 F.3d 431, 432 (5th Cir.1994); Clark v. Texas, 788 F.2d 309, 310 (5th Cir.1986); Ex parte McWilliams, 634 S.W.2d 815, 818 (Tex.Crim.App.1982). The state's reliance on Rem is misplaced. There, the state habeas trial court refused to reach the sufficiency of the evidence claim explicitly based on a state procedural rule, and the Court of Criminal Appeals denied relief "on the findings of the trial court." Renz, 28 F.3d at 432. The state habeas trial court plainly denied Bledsue's second petition on the merits, and the Court of Criminal Appeals denied the petition "without written order.” We find these two results inapposite and glean no support for the state's position.
.Ex parte Thomas, 953 S.W.2d 286, 289 (Tex.Crim.App.1997) (citing Ex Parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App.1997)); compare Jackson, 150 F.3d at 524 ("The court of conviction ruled explicitly on the merits and the denial of relief [without written reasons] by the Court of Criminal Appeals serves, under Texas law, to dispose of the merits of the claim.”) with Coleman, 501 U.S. at 744, 111 S.Ct. 2546 (relying on the nature of the disposition as a "dismissal” to find that the basis was solely procedural).
. The failure to prove guilt beyond a reasonable doubt constitutes a denial of due process. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
. The Court of Criminal Appeals has called this rule the “Benson/Boozer” doctrine in reference to a line of cases beginning with Benson v. State, 661 S.W.2d 708 (Tex.Crim.App. 1982), and Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984).
. See id. at 183 ("Although the evidence did not conform strictly to the theory of culpability as alleged in the indictment ... we hold that the evidence sufficed to prove the substantive elements of aggravated robbery under the law of parties as charged generally in the court's instructions.”).
. We respectfully disagree with the dissent’s suggestion that Brown should apply only to situations in which the defendant benefits from an inconsistency between the evidence and the jury instruction. The Brown court gave no indication it would fail to apply the same analysis to a case in which the state benefits from the inconsistency. Rather,
Indeed, following Jackson, the decisive question in analyzing potential “procedural nuances” is not whether they work in favor of or against defendants. Rather, because Jackson is concerned solely with the sufficiency of the evidence needed to sustain a conviction, see Jackson, 443 U.S. at 318, 99 S.Ct. 2781, the key issue is whether “adulterants and dilutants” is an essential element for purposes of constitutional sufficiency review. Which party benefits from the potential "procedural nuance” is not significant to this analysis.
. Some post-Malik cases indicate that Texas courts will continue to require the language of the jury charge to conform to the indictment, especially where the indictment leaves out a theory of liability. See Harris v. State, 1998 WL 322683 (Tex App. — Houston [14th Dist.] 1998, no writ) (unpublished) (finding evidence insufficient to sustain conviction where broader theory of liability was introduced into jury charge); Williams v. State, 980 S.W.2d 222, 224 (Tex.App. — Houston [14th Dist.] 1998, writ ref'd) (requiring state to follow indictment language charging use of "firearm”). Bledsue's case is somewhat different, because the language of his indictment is ambiguous as to whether adulterants and dilutants are included in the alleged amphetamine possession. Even if Texas courts would require the insertion of such language in the indictment, however, this requirement does not reach the level of constitutional sufficiency required for federal habeas intervention.
. See Tex. Health and Safety Code § 481.116(b, c) (West 1992). This provision was amended in 1993. See Acts 1993, 73d Leg., ch. 900, § 2.02.
. The dissent colorfully describes our analysis of this issue as an "exercise of semantically chasing one’s tail ...” because such analysis would also fail to find "possession” and "weight of amphetamine” an essential element. We believe, respectfully, that the dissent misses the point of Jones.
In Jones, the government in Jones urged the Court to construe the statute as a single offense with three separate punishments. The Court refused to read the statute to dimmish the jury’s "control over facts determining a statutory sentencing range.” See Jones, 119 S.Ct. at 1215. Because the seriousness of bodily injury was a factual determination that would affect the statutory sentencing range, the Court found this factor to be an essential element, but not simply because it was found in the statute.
Jones does not teach us that every phrase in a statute is an "essential element.” Rather, it simply asks courts to look carefully at elements that could increase the statutory sentencing range.
In fact, we can easily read the statute to mean that calculations of the amount of amphetamines always includes adulterants and dilutants. The fact that the term is included in all three sections of the statute means that it is not a factor that would increase the sentence; therefore, Jones does not lead us to construe "adulterants and dilutants” as an essential element.
Concurrence in Part
concurring in part and dissenting in part:
I agree with my colleagues of the majority that we have jurisdiction to review the district court’s disposition of Bledsue’s federal habeas corpus petition, and that the case is in the proper procedural posture for us to hear it. I respectfully dissent from the majority opinion, however, because I cannot agree with its sufficiency of the evidence analysis or with its conclusion that the variance between the state’s indictment of Bledsue and the trial court’s jury charge — which effectively lowered the state’s burden of proof — is merely a “procedural nuance,” unworthy of constitutional protection. I must also dissent from the majority’s conclusion that “adulterants and dilutants” are not essential elements of the offense that, when relied on by the state to obtain a conviction, must have been pleaded in the indictment. I find this assertion incompatible with the Supreme Court’s recent holding in Jones v. United States,
It is axiomatic that the Due Process Clause protects an accused against conviction unless facts necessary to demonstrate the presence of each element of the crime of which he is charged are proved beyond a reasonable doubt.
The Jackson Court established the framework to be used by federal courts reviewing habeas corpus petitions in which a prisoner challenges a state court conviction on grounds of insufficiency of the evidence. Focusing on the Fourteenth Amendment’s Due Process protection, the Court held that habeas relief is warranted “if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
Today, however, I read the majority opinion as frustrating the dictates of Jackson by over-emphasizing — and thereby over-empowering — portions of our opinion in Brown, despite a plethora of factual distinctions from the instant case — distinctions that, I submit, do make a difference. In Brown as here, we examined a habeas petition grounded on a claim of insufficient evidence to support a state court conviction. The most prominent feature of Brown, though, is a flawed jury charge that impermissibly increased the state’s burden of proof to an unattainable level, resulting in a “windfall” acquittal — based on constitutionally insufficient evidence— for a defendant who was factually guilty of the crime actually charged in the indictment.
Key legal and factual differences between Brown’s case and Bledsue’s block my agreeing with the majority that Brown governs this case. First and most significantly, the instructions given the jury at Bledsue’s trial impermissibly lowered the state’s burden of proof for the crime for which Bledsue was indicted — a diametrically opposite circumstance from the heightened proof burden placed on the state in Brown. The factor improperly inserted into Bledsue’s jury charge (instructing the jury that it could include the weight of adulterants or dilutants in determining whether Bledsue possessed 28 grams or more of the controlled substance) gave the state the easy ability to prove the statutorily-required weight of amphetamines necessary to obtain a conviction under an indictment that made no mention of such additives.
Texas law defines the quantity element of its drug possession crimes by weight: Possessing 0 to 28 grams is an essential element of a crime of possession that is a mere “third degree felony,” distinguishing it from a separate and distinct crime of possession that is a more heinous “aggravated felony,” an essential element of which is possessing 28 to 400 grams. In both crimes, the statute allows, but does not require, the state to ease its burden of proving the weight of the substance possessed by cumulating “adulterants and dilutants” with the pure substance when calculating the quantity. But, I submit, if the state elects to use such additives, it must track the statute and expressly include “adulterants and dilutants” in the indictment. Failing that (as here), the state must prove the quantity on the basis of the pure substance alone.
Second, Bledsue’s indictment omitted an element of the crime, adulterants and dilu-tants, in contrast to the omission of the state’s theory of the case in Brown, clearly not an essential element of the crime. Consequently, Bledsue’s conviction was vacated by the federal district court (correctly, I believe) not on the basis of a pro
I am not the first to recognize the critical importance of the threshold question, “which party benefits from an improper jury charge” when considering constitutional sufficiency of the evidence on habe-as. Recently, the highest criminal court in Texas, in Malik v. State,
I read today’s majority opinion as disregarding the Malik court’s approach to the constitutional sufficiency of the evidence analysis under Jackson, despite the Court’s instruction in Jackson that we are to rely on substantive state criminal law when reviewing a state conviction for constitutional sufficiency. The majority says that “[w]e decline [ ] to expand the scope of our review of Texas cases by incorporating the Malik rule into our federal habeas jurisprudence.” As I read Malik, however, the highest criminal court of Texas confected its rule in an express effort to align that state’s sufficiency of the evidence analysis with the federal sufficiency analysis decreed in Jackson. The majority’s failure to focus on this state/federal nexus in Jackson offends the principles of federalism, ironically, a goal later espoused by the majority as a reason to deny habeas relief to Bledsue. It has been said that “[i]f the Federal Government in all or any of its departments are to prescribe the limits of its own authority, and the States are bound to submit to this decision, and are not to be allowed to examine and decide for themselves when the Constitution shall be overleaped, this is practically ‘a government without limitation of powers.’ ”
As I see it, the majority expands its power and further exacerbates the deprivation of Bledsue’s constitutional rights by concluding — without regard to the glaring inconsistency between the indictment and the jury charge — that “adulterants and dilutants” are not essential elements of the crime under Jackson, as necessary for federal habeas review. The majority concedes, as I insist, that the statute under which Bledsue was convicted creates three separate offenses, each with at least one separate element, not one offense with three gradations of punishment. Regardless of the fact that each offense contains separate elements, however, the majority sees a distinction between the amount of amphetamine possessed, which it acknowledges to be an essential element of the offense, and “adulterants and dilutants,”
Earlier this year, the Supreme Court in Jones considered a criminal statute essentially identical in structure to the Texas statute that is at the heart of this case. The Court in Jones concluded that the degree of bodily injury, i.e. severe bodily injury or death, which resulted in a heightened penalty imposed on the criminal, was an element of the offense that must be (1) charged in the indictment, (2) submitted to the jury, and (3) proved beyond a reasonable doubt.
As I see it, the majority opinion today imposes an unyielding federal power over constitutional interpretation, but in a coun-terstroke supplants the Fourteenth Amendment by rubber-stamping a conviction that was obtained in the clear absence of proof beyond a reasonable doubt that the defendant committed the crime for which he was charged in the indictment. With all due respect, it is principally for this reason that I must dissent.
I.
FRAMEWORK
As the majority opinion adequately states the facts and replicates the procedural history, standard of review, and issue of procedural bar, I shall hereafter mention from time to time only small shards of those vessels as needed to complete a frame of reference. I am prepared, however, to take whatever time (and ink) is needed to illuminate the flaws
II.
ANALYSIS
A. Sufficiency Analysis Under Jackson v. Virginia
In reviewing challenges to constitutional sufficiency of the evidence, we begin with the well-known Jackson v. Virginia standard.
The question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence. The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.18
We have entertained numerous habeas petitions in which the Jackson analysis has been dutifully applied. In so doing, however, we have recognized a distinction between the crime’s “substantive” elements under state law — which should be weighed under a Jackson analysis — and “procedural nuances” — which are undeserving of a Jackson review and need not be proved by the state to withstand a judgment of acquittal or the grant of a new trial on
B. Elements of a Sufficiency Review
Just as I agree with the majority that the starting point in this case is Jackson v. Virginia, I also agree that the quest for a state definition of the charged offense starts with the state statute. Where I part with the panel majority is its implied conclusion that we stop with the statute as well. I am satisfied that, for purposes of a Jackson analysis — at least in this case— “state law” is the product of both a Texas statute and that state’s Common Law, ie., its jurisprudence.
1. The Statute
I find a parsing of the applicable statutory provision helpful. The initial paragraph of § 481.116 of the Texas Health & Safety Code specifies that a person commits an offense if he knowingly or intentionally possesses a controlled substance listed in Penalty Group 2 (which includes amphetamine).
2. Texas Common Law
After defining the necessary elements of Bledsue’s crime as set forth in the applicable state statute, however, the majority fails to take the next logical step. This marks the initial point at which the majority and I part ways. We are in agreement that, from a plain reading of Jackson, we are required to measure sufficiency of the evidence with reference to the substantive elements of the criminal offense as defined by state law. But, “state law” is nowhere narrowly defined as a synonym for “state statute.” It seems clear to me that the majority opinion repeatedly misconstrues the Jackson standard by measuring sufficiency of the evidence against the governing statute only — not the entire body of pertinent state law. Consequently, the majority implicitly dismisses Texas Common Law and thereby prohibits Texas from defining its own state law, in direct contravention of the Court’s express concern in Jackson.
Nevertheless, the majority concludes that this well-established jurisprudential rule does not create an “essential element” of the offense, but is a “procedural nuance” that should not affect a constitutional analysis under Jackson. For support, the majority relies entirely on our opinion in Brown v. Collins,
3. Brown v. Collins
In Brown, the habeas petitioner had been convicted in state court of participating in an aggravated robbery by driving the get-away car. Consistent with the indictment, the jury was instructed that, to establish culpability, the state must prove that the defendant acted as a principal. The evidence adduced at trial, however, supported culpability only under a party-accomplice theory.
Brown relied on the so-called Benson/Boozer line of cases to argue that the evidence presented at trial must conform to the theory of responsibility expressed in the charge given to the jury, failing which, the court must enter a judgment of acquit
Although we acknowledged the Benson/Boozer rule in Brown, we nevertheless found that a technical violation of this rule to be a mere procedural nuance that “does not rise to constitutional heights.”
Attempting to draw similarities to Brown today, the majority asserts that the state clearly proved the elements in the statute, which authorized the inclusion of adulterants and dilutants, thereby establishing that the evidence is sufficient. Regardless of the fact that the state (not the defendant, as in Brown) received the benefit of its own inconsistency, the majority takes the position that Brawn, applies either way — irrespective of whether it is the state or the defendant who receives the benefit. The majority reasons that in Brown we gave no indication that our analysis would only apply to situations in which the defendant benefitted from the inconsistent charge. To say, however, that Brawn’s silence somehow creates a legal rule — without ever delving into the factual irregularities present in each case — is counterintuitive and also runs contrary to accepted methodology. A principal fallacy of this reasoning is its disregard of the difference between the relationship of the parties in a criminal case as distinguished from a civil case: In a criminal case all proof burdens are on the state; the defense can stand mute and prove nothing. What’s “sauce” for the prosecution is not “sauce” for the defense.
I view portions of the discussion in Brown as supporting inferences contrary to the position taken today by the majority. For example, at the outset of that opinion, we described Brown’s argument as finding support in the line of Texas cases that measure sufficiency of the evidence by the “jury charge given, failing which, the court must enter a judgment of acquittal.”
It seems obvious to me that, unlike civil litigation, we cannot hold criminal defendants to the same standard as the state when it comes to objecting to a jury charge in a criminal trial that decreases the state’s burden of proof.
Disregarded by the majority is another critical distinction in Brown that renders its application inapposite here. Unlike Brown, the instant case does not deal with the state’s theory of responsibility, but with an actual element of the crime — the weight of amphetamine necessary to constitute the particular aggravated felony as charged in the indictment. Unlike the theory of parties in Brown, the phrase “including adulterants and dilutants,” when relied on to obtain a conviction, is an integral, necessary component of an element of the offense — the weight or quantity of the amphetamine — required to obtain a conviction under one of three levels of possesso-ry crimes expressed in the subject statute. I obviously would be concurring in the majority opinion, not dissenting from it, if the indictment had expressly mentioned the additives or had incorporated them by reference to the statutory section that allows (but does not require) the state to include adulterants and dilutants; but the indictment did neither. We must rely on the clear and unambiguous words of the indictment to determine the elements of the crime actually charged — not the crime potentially “chargeable” — which, in Bled-sue’s case, indisputably did not include adulterants and dilutants for purposes of calculating the weight of the substance possessed.
After a careful reading of Brown, I see significant differences in Bledsue’s sufficiency of the evidence claim and Brown’s — differences that I believe elevate Texas’s court-made rule above a mere “procedural nuance” to an “essential element of the offense” under Jackson. Additionally, even though the Brown decision may have hit the proverbial “nail on the head” at the time it was decided, its holding has been weakened by the Texas Court of Criminal Appeals’s decision in Malik v. State,
4. Malik v. State
In Malik, the highest Texas court reexamined the Benson/Boozer line of cases, noting the inconsistencies caused by the longstanding rule that turns on whether the state or the defendant benefitted from the improper jury charge. To reiterate, if an indictment was facially complete but the jury charge required more proof than the indictment (and the state failed to object to its increased burden of proof), then under the Benson/Boozer line, sufficiency of the evidence was to be measured by the jury charge.
Dissatisfied with the maze of complex rules for different situations, the Malik court concluded that the Benson/Boozer rule was actually at odds with the Jackson standard. The court recognized that although “[t]he Jackson standard was established to ensure that innocent persons would not be convicted,” the Benson/Boozer rule permitted acquittals simply because the defendant received a windfall in the jury instructions — a result directly at odds with the Jackson protection.
To alleviate this inconsistency, the court in Malik held that “sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.”
The majority discredits the analysis set forth by Malik, stating — without citation or other support — that the Malik rule, like the Benson/Boozer line of cases, “does not reach the level of constitutional sufficiency required for federal habeas intervention.” The majority concedes, however, that in many cases, “the Malik rule will produce an accurate list of the ‘essential elements’ that Jackson requires federal courts to review during habeas proceedings.” Yet, it fails to acknowledge a situation like Bledsue’s, in which the Malik rule does not comport with Jackson. The panel majority cites only to the language in Malik that the indictment is central to confecting the “hypothetically correct jury charge,” but is not a dispositive measurement of sufficiency in cases when theories such as law of the parties or transferred intent are involved.
Again, I find clear under Malik that the “hypothetically correct jury charge” must be “authorized by the indictment,” signifying that we cannot disregard the indictment and look only to the statute. Using the Malik benchmark, the kind of technical violations that concerned the Brown court and ended in unnecessary judgments of acquittal will be eliminated, and the state will consistently have to prove the elements in the indictment.
It seems to me that the effect of the majority opinion is to allow the Malik court’s interpretation of Jackson to come in one juridical ear and go out the other. Ironically, the instant panel majority invokes federalism to justify denial of habeas relief at the same time that it unduly discounts a state common law principle that was created to further the goals of a federal constitutional sufficiency of the evidence analysis under Jackson. Another curiosity is the majority’s expression of concern that “[p]ost-Malik ... it is uncertain whether Texas courts would require that phrase [including adulterants or dilu-tants] in the indictment to convict Bledsue, because the old requirement of matching the jury charges and the indictment no
In Harris v. State, for example, a Texas court of appeals applied the Malik standard to facts closely analogous to those of this case.
In like manner, even though the statute under which Bledsue was convicted clearly allowed the inclusion of adulterants and dilutants in calculating the total weight of the amphetamine, this element was omitted from his indictment, as drawn for the grand jury by the prosecution. Analogous to Harris, the essential elements of Bled-sue’s offense are those specified in the indictment — here, “pure” amphetamine only — and, because the state did not prove one of the essential elements of the indictment’s offense (as distinct from a mere theory of responsibility) beyond a reasonable doubt, i.e., possession of 28-400 grams of unadulterated amphetamine, exclusive of the indictment-omitted additives, Bledsue is entitled to habeas corpus relief.
In Pizzini v. State, another Texas court confirmed this reading of Malik by stating, “[w]e do not read Malik so broadly ... we must conclude that the hypothetically correct jury charge contemplated in Malik is based on the indictment as returned by the grand jury. Accordingly, Malik may not be used to release the state from its burden of proving each element of the offense as charged in the indictment.”
Jackson requires us to evaluate the elements of the offense under state law; and Texas law — both before and after Malik— mandates that, for purposes of constitutional sufficiency, the essential elements of the offense are those contained in the indictment. It therefore follows inescapably that the standard announced in Malik, as contemplated in that decision and consistently applied by the Texas courts of appeal ever since, is aligned with the Jackson standard and must be considered in a sufficiency of the evidence review.
Using the Malik standard as my yardstick, I now test for constitutional sufficiency the evidence produced by the state to convict Bledsue on the allegations in a hypothetically correct jury charge as authorized by, inter alia, the indictment. The indictment alleged possession of at least 28 grams of amphetamine — no mention of adulterants or dilutant; no mention of the criminal statute. Thus, a hypothetically correct jury instruction would not allow the weight of the adulterants and dilutants to be considered in calculating the weight of the amphetamine possessed. At trial, the state’s expert witness testified that Bledsue possessed at most 17 grams of pure amphetamine. Because, as a matter of law, the state did not and could not prove beyond a reasonable doubt one of the essential elements of the indictment— 28 grams or more of the substance (pure amphetamine) possessed — I would affirm the district court’s grant of habeas relief based on its holding that Bledsue’s conviction is unconstitutional under the standard espoused in Jackson. The majority’s minimizing of the Malik standard by labeling it a Brown procedural nuance (thus undeserving of constitutional scrutiny) is one reason why I must respectfully dissent.
D. Essential Elements
Declining to adopt the Malik rule, the majority, in its final step, addresses whether “adulterants and dilutants” constitute essential elements under Jackson such that they must be charged in the indictment. The majority sought guidance from the Supreme Court’s teachings in Jones v. United States,
I perceive, however, an inherent flaw in the position that the majority opinion subsequently advances. It attempts to distinguish between the amount of amphetamine possessed — which it deems an element of the offense — and the phrase “adulterants and dilutants,” which it claims is not an element of the offense. Because “adulterants and dilutants” are included in each separate crime under the statute to calculate the amount possessed, goes the majority’s reasoning, Bledsue could not have been convicted of possessing less than 28 grams of amphetamine. It is from this thesis that the majority concludes that “adulterants and dilutants” cannot be an element of the offense of conviction.
Not only do I perceive this argument as patently circular, I find it to be a classic non sequitur. The majority concedes that the amount of controlled substance possessed is an element of Bledsue’s offense but in the same breath insists that “adulterants and dilutants” do not affect the total amount of the controlled substance possessed; that the crime, as expressed in the statute, describes the weight of the controlled substance as including adulterants and dilutants. But, the majority fails to account for the indictment’s omission of adulterants and dilutants when it fails to track or identify the statute. As these two substances — (1) pure drugs and (2) additives — are inextricably intertwined, I can
Additionally, the majority’s conclusion that Bledsue could not have been convicted of possessing less than 28 grams of amphetamines can only follow if sufficiency of the evidence is measured by the statute alone or by the jury charge alone, both of which include “adulterants and dilutants.” But, if sufficiency of the evidence considers the statute only as expressly incorporated into the indictment — as, I am convinced, it must — then Bledsue undeniably could have been convicted of possessing less than 28 grams of amphetamine — 17 grams to be exact.
Finally, to say that “adulterants and dilutants” are not essential elements because they are always included in the offense is both illogical and unsupported. The elements of “possession” and “weight of amphetamines” are always included in the offense as well, but that would not excuse their omission from the indictment. I can neither understand nor reconcile the majority’s position that under Jones, adulterants and dilutants are not essential elements of the offense. Clearly, “adulterants and dilutants” can dramatically affect the weight of the amphetamine proved by the state to have been possessed by the defendant and can thus increase the defendant’s penalty: That is precisely what has occurred here. This is an additional reason why I must respectfully dissent — unless, of course, the error can be found to be harmless. Thus, one more step is required.
E. Harmless Error Analysis
To take my thesis to its necessary legal conclusion, I must address one final hurdle raised by the state: harmless error. As a writ of habeas corpus is not necessarily granted in every instance in which the state has failed to conform to constitutional requirements, my conclusion that Jackson has not been satisfied does not fully complete this inquiry.
In its brief and in oral argument, the state insisted that Bledsue could not successfully demonstrate prejudice because (1) he would have been convicted under the lesser included offense of “less than 28 grams,” and (2) for Bledsue, that lesser offense carries the same punishment range as does the greater offense of which he was convicted. Accordingly, urges the state, any error is harmless.
As with the majority opinion’s reasoning, I perceive a fatal flaw in the state’s logic as well. Even though the state is correct in observing that a conviction under either the “28 grams or more” aggravated felony or the “less than 28 grams” third degree felony would carry the same punishment range for Bledsue — 25 to 99 years or life imprisonment — -it does not follow that the jury would necessarily have assessed the same punishment within that range.
The state urges that “[tjhere is no reason to believe that the jury would have been more forgiving in sentencing Bledsue for seventeen grams of pure amphetamine rather than more than 28 grams of diluted amphetamine.” This is a classic mis-char-acterization of an issue: The correct question to ask in this harmless error analysis is whether there is at least a realistic possibility that a jury might be less inclined to assess the statutory maximum — • life in prison — for the minimal, first-tier, third degree felony than for the more egregious, second-tier aggravated felony. To me the obvious answer is “Yes.” Moreover, the state’s reasoning cuts both ways: There is no reason to believe that the jury would have imposed the identical, statutory maximum sentence when dealing with a conviction on the lower grade felony, as a lesser included offense at that, particularly when armed with the knowledge that the more heinous aggravated felony carries the same maximum as the “entry level” third degree crime.
I deem worth highlighting for analogical purposes the different treatment given under Texas law to a first-time offender who commits an “aggravated” felony, as compared to the treatment given to a first offender for a “third degree” felony. An aggravated felony' — in this case the “28 grams or more” count — carries, for a first offender, a punishment range of 5 to 99 years or life and a maximum fine of $50,-000. In contrast, a third degree felony — in this case the “less than 28 grams” count— carries, for a first offender, a punishment range of only 2 to 10 years and a maximum fine of $10,000. A reasonable jury could not help but note the fact that the possibility of an additional 79 years or life in prison and an additional $40,000 in fines reflects a public policy, as expressed by the legislature, that an aggravated felony is substantially more egregious than a third degree felony in the Texas criminal pantheon. Although these penalty ranges apply only to first time offenders, of which Bledsue admittedly is not one, I infer guidance from the Texas Legislature’s treatment of these offenses and can see how a jury would be likely to make the same analogical distinction when enlightened by an able defense lawyer. Additionally, given that Bledsue’s prior offenses were felony theft and unlawful carrying of a weapon on licensed premises, this was Ms first drug conviction. That a defendant is found guilty of the least criminal quantity range of amphetamine possession that is pumshable by law and that it is his first drug offense might very well lead a jury to assess a lower sentence, almost certainly less than life imprisonment.
In sum, we should sit neither as a transcendental jury nor as an oracle predicting what a jury would decide when theoretically sentencing one convicted of a “third-
I therefore conclude that Bledsue has demonstrated sufficient prejudice in the discrepancy between his indictment and the jury charge, and the substantially different nature of the lesser included offense, to remove his case from the realm of harmless error. I agree with the recommendation of the district court and would affirm its reversal of Bledsue’s conviction on the charge of possession of amphetamine in a quantity of 28 grams or more, allowing the state 120 days in which to retry Bledsue on the lesser included offense of possession of less than 28 grams, should the state elect to do so.
III.
CONCLUSION
I am deeply troubled by the majority’s treatment of the Fourteenth Amendment’s fundamental due process guarantee that every individual — regardless of factual culpability — shall be free from conviction except on proof beyond a reasonable doubt of the crime of which he is charged. By mandate of the Supreme Court, we have been given explicit rules under which to measure sufficiency of the evidence on ha-beas when questioning a state conviction, most notably the reference to state law for the substantive definition of the elements of the criminal offense. With its focus limited narrowly to the statute only, however, the majority disregards an essential element of state law — ingrained in the Common Law of Texas for almost 20 years — that the state must include the key phrase “including adulterants or dilutants” in the indictment if the weight of those additives are to be relied on by the state in proving the essential element of weight.
By diminutively terming this discrepancy between the indictment and the jury charge a “procedural nuance,” the majority condones sloppiness at best and sophistry and deception at worst, in the actions of the state prosecutor.
. - U.S. -, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
. 937 F.2d 175 (5th Cir.1991).
. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
. Id. at 324, 99 S.Ct. 2781.
. Id. at 324 n. 16, 99 S.Ct. 2781 (emphasis added).
. Brown, 937 F.2d at 182.
. Id. at 181-82.
. 953 S.W.2d 234 (Tex.Crim.App.1997).
. Id. al 239-40.
.Robert V. Hayne, Speech in the United States Senate, 25 Jan. 1830, in Register of Debates of Congress 43, 58 (1830).
. Jones, 119 S.Ct. at 1228.
. Jones involved a direct criminal appeal of a federal conviction, which arose in the context of sentencing, while Bledsue’s case is a post-conviction federal habeas attack on a state court conviction. In Jones, the Court sentenced the defendant based on a non-charged, non-jury finding that the victim suffered serious bodily injury. 119 S.Ct. at 1218. As the indictment did not charge the defendant with committing serious bodily injury and the jury was never asked to find that the defendant committed serious bodily injury, the Court concluded that Jones’s Sixth Amendment right to a trial by jury was violated. Id. at 1226. The Court based its holding on the conclusion that serious bodily injury, a fact that increases the maximum penalty for the offense, was an essential element that must be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Id. at 1224 n. 6. In Bledsue’s case, the jury charge included the element "adulterants and dilutants.” Relying on the negative pregnant drawn from the Court’s holding in Jones, I am convinced that if the state allows the jury to consider an essential element of the crime that increases the maximum penalty, then that element must be charged in the indictment and proved beyond a reasonable doubt.
. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
. Id. at 320, 99 S.Ct. 2781.
. Id. at 324 n. 16, 99 S.Ct. 2781 (emphasis added).
. Id. at 316, 324 n. 16, 99 S.Ct. 2781.
. Id. at 323-24, 99 S.Ct 2781 (citations omitted) (emphasis added).
. Brown, 937 F.2d at 181.
. Jackson, 443 U.S. at 323-24, 99 S.Ct. 2781 (emphasis added).
. Tex. Health & Safety Code Ann. § 481.116 (West 1992).
. Subsection (d) further subdivides the punishment ranges for the "aggravated felony” depending on whether the aggregate weight of the controlled substance is between 28 and 400 grams or greater than 400 grams.
. The Court presumed that consideration of state law in the sufficiency of the evidence standard would ensure that intrusions on the power of the states to define criminal offenses would not occur. Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781.
.See Dowling v. State, 885 S.W.2d 103, 109 (Tex.Crim.App.1992) (en banc) (ordering acquittal because the indictment failed to contain the phrase "including adulterants and dilutants” and the state could not prove the pure amount of amphetamine as alleged in the indictment), decision clarified, 885 S.W.2d 114 (Tex.Crim.App.1994); Reeves v. State, 806 S.W.2d 540, 543 (Tex.Crim.App.1990) (en banc) (same), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991); Farris v. State, 811 S.W.2d 577 (Tex.Crim.App.1990) (en banc) (same); Cruse v. State, 722 S.W.2d 778, 780 (Tex.Crim.App.1986).
. Cruse, 722 S.W.2d at 780 (citing Doyle v. State, 661 S.W.2d 726 (Tex.Crim.App.1983)).
. 937 F.2d 175 (5th Cir.1991).
. In its instruction, the court charged the jury on the law of parties generally, but this theory was not included in the "application paragraphs,” which apply the relevant law to the specific facts of the case. Brown, 937 F.2d at 177.
.Id. at 180.
. Id. at 180. If the state objects to the erroneous jury charge and the court nevertheless charges the jury on a higher burden, then the defendant is not entitled to acquittal, but the appellate court remands the case for a new trial. Id. at 181 n. 8.
. 661 S.W.2d 708 (Tex.Crim.App.1982), overruled, 953 S.W.2d 234 (Tex.Crim.App.1997).
. 717 S.W.2d 608 (Tex.Crim.App.1984), overruled, 953 S.W.2d 234 (Tex.Crim.App.1997).
. Benson, 661 S.W.2d at 715-16; Boozer, 111 S.W.2d at 610-12.
. See Malik v. Texas, 953 S.W.2d 234, 238-39 (Tex.Crim.App.1997); Morrow v. State, 753 S.W.2d 372, 381-82 (Tex.Crim.App.1988) (Onion, J., dissenting), cert. denied, 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 784 (1996). The second branch of the dichotomy — measuring sufficiency of the evidence by the indictment — has been overruled. I present a detailed analysis of the case that overruled this legal holding and the impact of the holding on Bledsue’s case in subsection B.4.
. Brown, 937 F.2d at 181.
. Id. at 182 (emphasis added).
. Id. at 180.
. Id. (quoting Nickerson v. State, 782 S.W.2d 887, 891 (Tex.Crim.App.1990)).
. Even more compelling in this case, however, Bledsue did object to the improper jury charge at trial, placing the state court on notice.
.See Leal v. State, 975 S.W.2d 636, 640 (Tex.Ct.App.1998) ("[I]f any unnecessary language included in an indictment describes an essential element of the, crime charged, the state must prove the allegation, though needlessly pleaded (citing Burrell v. State, 526 S.W.2d 799, 802 (Tex.Crim.App.1975)).
. 953 S.W.2d 234 (Tex.Crim.App.1997).
. The majority believes that Bledsue is asking us to overrule Brown on the basis of Malik. Bledsue need not ask us to do so, because the holding in Brown was implicitly overruled by the Malik decision, i.e. the holding in Brown was based on the Benson/Boozer line of cases, which were explicitly overruled in Malik, rendering Brown nugatory — implicitly if not explicitly. And, again, Brown is truly inapposite to the instant circumstances.
. The Malik court noted that even if the indictment was facially incomplete, but consistent with the jury charge, sufficiency of the evidence is also measured by the jury charge. 953 S.W.2d at 239.
. Id.
. Id.
. Id. at 240.
. Id. (emphasis added).
. See Johnson v. State, 982 S.W.2d 403, 409 (Tex.Crim.App.1998) (en banc) (when applying Malik, noting that general principles of liability, such as transferred intent, need not be alleged in the indictment).
.Cf. Barrera v. State, 982 S.W.2d 415, 417 (Tex.Crim.App.1998) (applying Malik and finding that the omission of self-defense in the application paragraph of the jury charge, even though it was adequately defined in the jury charge, was a technical violation of a state law rule, which did not affect a constitutional sufficiency of the evidence review).
.Although the majority addresses some of the cases decided post-Malik, it concludes that Bledsue’s case is different “because the language of his indictment is ambiguous as to whether adulterants and dilutants are included in the alleged amphetamine possession.” I find this conclusion astonishing. First, there is no ambiguity in Bledsue’s indictment: It simply did not contain the phrase "adulterants or dilutants.” Second, subsequent Texas cases have confirmed that the jury charge must conform to the indictment, even when a key element has been omitted from the indictment. See infra notes 47-48 and accompanying text.
. 1999 WL 441839 (Tex.Cl.App. July 1, 1999) (unpublished).
. Id. at *2-4.
. 981 S.W.2d 367, 368 (Tex.Ct.App.l998)(emphasis added); see also Williams v. State, 980 S.W.2d 222, 224-25 n. 2 (Tex.Ct.App.1998) ("[A] hypothetically correct jury charge must reflect the elements of a criminal offense as set out in the indict-mewi.”)(emphasis added).
. - U.S. -, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
. Id. 119 S.Ct. at 1224 n. 6; see also United States v. Davis, 184 F.3d 366 (4th Cir.1999) (relying on Jones, vacating Davis's sentence because “great bodily injury” was not charged in the indictment).
. Brown, 937 F.2d at 182; Clark v. Maggio, 737 F.2d 471, 475 (5th Cir.1984), cert. denied, 470 U.S. 1055, 105 S.Ct. 1761, 84 L.Ed.2d 823 (1985).
. Brown, 937 F.2d at 182.
.Cf. id. at 182-83 (finding no prejudice because the sentence for the lesser included offense was exactly the same as the sentence imposed on the defendant); Clark, 737 F.2d at 475-76 (same).
. In the context of the United States Sentencing Guidelines, it is clear that misapplication of a guideline is only harmless error if the district court would have imposed the exact same sentence, even in the absence of the error. Williams v. U.S., 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). The fact that the district court could have chosen the same sentence is immaterial. See U.S. v. Tello, 9 F.3d 1119, 1131 (5th Cir.1993) (holding that application of the wrong sentencing range is not harmless error even when the same sentence was available under the correct sentencing range); U.S. v. Huskey, 137 F.3d 283, 289-90 (5th Cir.1998) (refusing to find harmless error because the government could not prove that the district court would have chosen the exact same sentence); U.S. v. Rogers, 126 F.3d 655, 661 (5th Cir.1997) (same); U.S. v. Surasky, 976 F.2d 242, 248 (5th Cir.1992).
. For example, in Bledsue's case, the indictment not only left out the phrase "adulterants or dilutants,” but failed to mention the statute under which Bledsue was convicted.
