            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                        _______________

                                          m 97-11195
                                        _______________



                                  LARRY LEE BLEDSUE,
                                                            Petitioner-Appellee,
                                             VERSUS

                                 GARY L. JOHNSON,
                     Director, Texas Department of Criminal Justice,
                                  Institutional Division,
                                                            Respondent-Appellant.

                                  _________________________

                           Appeal from the United States District Court
                               for the Northern District of Texas
                                _________________________

                                         August 31, 1999


Before SMITH, DUHÉ, and WIENER,                     phetamine in a quantity less than 400 grams,
  Circuit Judges.                                   but of at least 28 grams. The indictment
                                                    described the offense as “aggravated” but did
JERRY E. SMITH, Circuit Judge:                      not state that the weight of the amphetamine
                                                    necessary to convict could include adulterants
   The state appeals the grant of habeas cor-       or dilutants; neither did it reference TEX.
pus relief to Larry Bledsue, who had been           HEALTH & SAFETY CODE § 481.116, the
convicted in state court of intentionally and       statute defining the offense.
knowingly possessing 28 or more but less than
400 grams of amphetamine. Concluding that              The undisputed evidence indicated that,
the district court properly entertained the         counting adulterants and dilutants, Bledsue
claim, we nevertheless disagree with its con-       possessed more than 28 grams of amphet-
clusion that the evidence adduced at trial was      amine, but that absent such additives he pos-
constitutionally insufficient to convict. Thus,     sessed only 10 to 17 grams. On an instruction
we reverse the grant of habeas corpus relief        that it could consider the weight of the
and deny Bledsue’s petition.                        adulterants and dilutants when determining the
                                                    total weight of amphetamin, the jury found
                     I.                             Bledsue guilty on the “28 grams or more”
   In July 1989, Bledsue was indicted for
intentionally and knowingly possessing am-
count,1 then sentenced him to life                         without written order.
imprisonment under the Texas habitual
offender statute after finding his two prior                  Bledsue then filed a third state habeas
convictions to be “true” for purposes of                   petition, in which he specifically argued that
sentencing.2                                               (1) the trial court had improperly allowed the
                                                           jury to include adulterants and dilutants in
    Bledsue's appeal to an intermediate Texas              determining the amount of total amphetamine
court was dismissed as untimely. In response,              when the indictment charged only the
he filed his first petition for habeas corpus              possession of pure3 amphetamine, and (2)
relief with the Texas Court of Criminal                    (reiterating the argument from his second
Appeals, which granted it, allowing him to                 petition) the state had failed to prove his
proceed on direct appeal. Ultimately, his                  possession of at least twenty-eight grams of
conviction was affirmed by the intermediate                amphetamine, including adulterants and
court in an unpublished opinion. He did not                dilutants, with the intent to increase the
petition the Court of Criminal Appeals for                 amount of amphetamine. The trial court again
discretionary review.                                      found ample evidence to support the
                                                           conviction, but instead of considering the
    Bledsue did, however, file two additional              merits on appeal, the Court of Criminal
petitions for habeas relief in Texas courts. In            Appeals denied the petition as successive
his second petition, his principal argument was            under TEX. CRIM. P. CODE ANN. ART. 11.07 §
that the state had failed to prove his possession          4 (West Supp. 1998).4
of at least 28 grams of amphetamine, including
adulterants and dilutants, with the intent to                  Bledsue then sought habeas relief in federal
increase the amount of amphetamine. The trial              court under 28 U.S.C. § 2254, advancing the
court, in a memorandum opinion, found ample                same two points he had raised in his third state
evidence to justify the conviction, and the                habeas petition. The magistrate judge found
Court of Criminal Appeals denied the petition              that Bledsue’s first assignment of error was
                                                           procedurally barred in federal court because it
                                                           was not raised until his third state habeas
   1
                                                           petition, which was dismissed by the Court of
      The jury was instructed on the lesser included       Criminal Appeals as successive.5 But finding
offense of possession of amphetamine in a quantity         Bledsue’s second assignment of error
less than 28 grams. Although it is inconsequential         procedurally properSSas it had also been raised
to the outcome, we find it perplexing that the jury        in his second state habeas petition, which was
instruction on the “28 grams or more” count
allowed the jury to include adulterants and                denied on the meritsSSthe magistrate judge
dilutants, but the instruction on the “less than 28
grams” count did not.
                                                              3
                                                                The indictment referred to “amphetamine”
   2                                                       without the adjective “pure,” but also without
     TEX. PENAL CODE § 12.42 (West 1994).
Bledsue’s sentence was assessed under                      reference to “adulterants and dilutants.”
subsection (d), which states,
                                                              4
                                                                Section 4 of Article 11.04 provides that a
   If it be shown on the trial of a felony offense         court may not consider the merits of a subsequent
   that the defendant has pr eviously been                 application for habeas relief after final disposition
   finally convicted of two felony offenses, and           of an initial application challenging the same
   the second previous felony conviction is for            conviction.
   an offense that occurred subsequent to the
                                                              5
   first previous conviction having become                      A federal court is barred from reviewing a
   final, on conviction he shall be punished by            habeas application that a state court has expressly
   imprisonment for life, or for any term of not           dismissed on an independent and adequate state law
   more than 99 years or less than 25 years.               ground. See Nobles v. Johnson, 127 F.3d 409,
                                                           420 (5th Cir. 1997), cert. denied, 118 S. Ct. 1845
TEX. PENAL CODE § 12.42(d).                                (1998).

                                                       2
treated the second claim as an overall                   those factual determinations are clearly
challenge to the sufficiency of the evidence.            erroneous.”     Id. at 169.       Additionally,
                                                         Bledsue’s federal habeas claim is governed by
    Ultimately, the magistrate judge                     the Anti-Terrorism and Effective Death
recommended granting the writ, finding the               Penalty Act (“AEDPA”), under which federal
evidence constitutionally insufficient in that the       courts can grant habeas relief only if the state
state was bound by its indictment, which                 court’s adjudication on the merits “resulted in
charged the possession of at least 28 grams of           a decision that was contrary to, or involved an
amphetamine but made no mention of                       unreasonable application of, clearly established
adulterants or dilutants.         Because the            federal law, as determined by the Supreme
undisputed evidence indicated that Bledsue               Court of the United States.” 28 U.S.C. §
possessed, at most, 17 grams of pure                     2254(d)(1) (1996).6
amphetamine, the magistrate judge
recommended a judgment of acquittal, but                                        III.
allowing the state 120 days to retry on the                  As the state correctly notes, the scope of
lesser charge of possessing less than 28 grams.          federal habeas review is limited by the
The state objected on only the sufficiency               intertwined doctrines of procedural default and
claim, but the district court denied the                 exhaustion. Procedural default exists where
objection and adopted the recommendation.                (1) a state court clearly and expressly bases its
                                                         dismissal of a claim on a state procedural rule,
    The state challenges on three fronts. First,         and that procedural rule provides an
it argues that the court improperly granted              independent and adequate ground for the
relief based on insufficient weight of drugs to          dismissal,7 or (2) the petitioner fails to exhaust
convict, given that Bledsue had argued, to the           all available state remedies, and the state court
state courts, only insufficient evidence of              to which he would be required to petition
intent. If, however, the weight claim was                would now find the claims procedurally
contained in his second state habeas petition,           barred. See Coleman, 501 U.S. at 735 n.1. In
the state contends, then Bledsue’s state                 either instance, the petitioner is deemed to
petition was dismissed on a procedural rule              have forfeited his federal habeas claim. See
rather than on the merits, resulting in a bar to         generally O'Sullivan v. Boerckel, 119 S. Ct.
consideration in federal court.                          1728 (1999).
    Second and alternatively, the state argues
that if the weight claim is in a proper                     In its original answer to the federal habeas
procedural posture for federal consideration,            petition, the state admitted “that Bledsue has
then under a constitutional sufficiency of the           sufficiently exhausted his state remedies as
evidence test, the evidence adduced at trial             required by 28 U.S.C. § 2254(b) and (c).”
was sufficient to prove possession of at least
28 grams. Third, the state urges that even if
the evidence was constitutionally deficient, any            6
                                                              See Jackson v. Johnson, 150 F.3d 520, 522
error is harmless, because Bledsue was                   (5th Cir. 1998), cert. denied, 119 S. Ct. 1339
undeniably guilty of the lesser included offense         (1999). Bledsue satisfies the “in custody”
of possessing “less than 28 grams,” and the              requirement of AEDPA because there is a
punishment range for both crimes is the same.            demonstrable relationship between his conviction,
                                                         which is the subject of this petition, and his present
                     II.                                 incarceration. See 28 U.S.C. § 2254(a) (1996);
                                                         Peyton v. Rowe, 391 U.S. 54 (1968); Escobedo v.
   In reviewing a grant of habeas relief, we             Estelle, 655 F.2d 613, 614 (5th Cir. Unit A
examine factual findings for clear error and             Sept. 1981).
issues of law de novo. Lauti v. Johnson,
102 F.3d 166, 168 (5th Cir. 1996). Mixed                    7
                                                             Coleman v. Thompson, 501 U.S. 722, 731-32
questions of law and fact are also reviewed              (1991); Harris v. Reed, 489 U.S. 255, 262-63
de novo by “independently applying the law to            (1989); Wainwright v. Sykes, 433 U.S. 72, 81
the facts found by the district court, unless            (1977); Nobles, 127 F.3d at 420.

                                                     3
Consequently, the state has waived any                       state, the district court granted relief on an
independent exhaustion argument, as well as                  issue advanced only in Bledsue’s third habeas
the exhaustion argument included within the                  petition, which was expressly dismissed on the
doctrine of procedural defaultSSspecifically,                independent and adequate state law ground of
ground (2) above.8 We therefore consider                     abuse of the writ.
only whether Bledsue’s claim is procedurally
barred under ground (1), i.e., whether the state                The district court, however, concluded that
court expressed an independent and adequate                  the overall issue of sufficiency of the
state law ground for dismissal.                              evidenceSSnot just sufficiency as to the issue
                                                             of intentSSwas presented in Bledsue’s direct
    According to the state, the district court               appeal and in his second state habeas petition.
should have refused to consider Bledsue’s                    We agree. Although we recognize that the
sufficiency claim regarding the weight of the                plain language of Bledsue’s direct state appeal
amphetamine, because the only time Bledsue                   and second state habeas petition did not
raised any issue regarding weight was in his                 explicitly pinpoint the issue of weight, his
third state habeas petition, which was                       claim of insufficient proof of intent implicitly
expressly dismissed on an independent and                    presented the issue of weight. Admittedly, we
adequate procedural ground (successive                       so conclude generously, because Bledsue is a
writs). The state asserts that in his direct                 pro se petitioner, and in this circuit pro se
appeal to the intermediate state court of                    habeas petitions are construed liberally and are
appeals and in his second habeas petition to                 not held to the same stringent and rigorous
the Court of Criminal Appeals, Bledsue                       standards as are pleadings filed by lawyers.9
focused only on the intent element and raised                To that end, we accord Bledsue’s state and
no challenge to the sufficiency of the evidence              federal habeas petitions a broad interpretation,
regarding weight. Consequently, contends the                 notwithstanding the later appointment of
                                                             counsel.10

                                                                 Accordingly, finding guidance from Brown
   8
     Both in oral argument and in its brief, the state       v. Collins, 937 F.2d 175 (5th Cir. 1991), we
insists that Bledsue’s failure to seek discretionary         conclude that Bledsue amply raised an overall
review constitutes procedural default.            See        challenge to the sufficiency of the evidence in
Richardson v. Procunier, 762 F.2d 429, 432 (5th              his state petitions. The petitioner in Brown
Cir. 1985) (“We hold that a Texas inmate seeking             argued on direct appeal to the state court that
federal habeas relief who, in directly appealing his         the state had failed to carry its burden of
state criminal conviction, has by-passed the Texas           proving armed robbery, because it had “proved
Court of Criminal Appeals will not be deemed to
have exhausted his state remedies until he has               only that [he] was near the scene of the
raised his claims before the state’s highest court           robbery.” Later, in a federal habeas petition,
though collateral review provided by state habeas            Brown argued that the prosecution had not
proceedings.”). We conclude that this theory                 proven an essential element of armed robbery,
addresses the exhaustion issue and has been waived           specifically, that he had used or exhibited a
by the state.                                                firearm.
    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
                                                                9
of Criminal Appeals in both a petition for                        See Martin v. Maxey, 98 F.3d 844, 847 n.4
discretionary review and in an application for a             (5th Cir. 1996); Guidroz v. Lynaugh, 852 F.2d
writ of habeas corpus is necessary to satisfy the            832, 834 (5th Cir. 1988); Woodall v. Foti,
exhaustion requirement. See Myers v. Collins, 919            648 F.2d 268, 271 (5th Cir. Unit A June 1981).
F.2d 1074, 1076 (5th Cir. 1990). Only one avenue
                                                                10
of post-conviction relief need be exhausted, and                   See Humphrey v. Cain, 120 F.3d 526, 530
Bledsue has done so in his application for habeas            n.2 (5th Cir. 1997), rehearing en banc, 138 F.3d
relief to the Court of Criminal Appeals.                     552 (5th Cir.), cert. denied, 119 S. Ct. 348 (1998).

                                                         4
   Even though the state petition challenged a                 On the same day Coleman was decided, the
different element of armed robbery, we held                 Court issued Ylst v. Nunnemaker, 501 U.S.
that the federal challenge to the sufficiency of            797 (1991), which clarifies Coleman and
the evidence was subsumed within Brown’s                    addresses the problem that arises when a state
sufficiency claim on direct appeal. See Brown,              court issues an unexplained order, neither
937 F.2d at 179. Guided by Brown, we                        disclosing nor insinuating the reason for its
likewise find that the mainstay of Bledsue’s                judgment. The Court created a presumption
direct appeal and state habeas petition was a               to be applied by federal courts when they are
challenge to the overall sufficiency of the                 unable to determine whether the state court
evidence to sustain his conviction for                      opinion “fairly appeared to rest primarily upon
possession of twenty-eight grams or more of                 federal law.” See id. at 803 (quoting
amphetamine.11                                              Coleman, 501 U.S. at 740).

   We now consider whether the Court of                        Termed the “look through” doctrine, this
Criminal Appeals clearly and expressly                      presumption enables federal courts to
dismissed Bledsue’s claim on an “independent                ignoreSSand hence, look through SSan
and adequate” state procedural ground, such                 unexplained state court denial and evaluate the
that the claim is procedurally barred in federal            last reasoned state court decision. When one
court, when it denied his application “without              reasoned state court decision rejects a federal
written order.” Drawing from a long line of                 claim, subsequent unexplained orders
precedent, the Court in Coleman v. Thompson,                upholding that judgment or rejecting the same
501 U.S. 722 (1991), elaborated on the                      claim are considered to rest on the same
“independent and adequate” state law                        ground as did the reasoned state judgment.
doctrine, which aids federal courts in                      The Court explained:
determining when to exercise habeas review.
The Court held:                                                The maxim is that silence implies
                                                               consent, not the oppositeSSand courts
   In habeas, if the decision of the last state                generally behave accordingly, affirming
   court to which the petitioner presented                     without further discussion when they
   his federal claims fairly appeared to rest                  agree, not when they disagree, with the
   primarily on resolution of those claims,                    reasons given below. The essence of
   or to be interwoven with those claims,                      unexplained orders is that they say
   and did not clearly and expressly rely on                   nothing. We think that presumption
   an independent and adequate state law                       which gives them no effectSSwhich
   ground, a federal court may address the                     simply “looks through” them to the last
   petition.                                                   reasoned decisionSSmost nearly reflects
                                                               the role they are ordinarily intended to
Id. at 735.                                                    play.

                                                            Id. at 804.
   11
       See also Vela v. Estelle, 708 F.2d 954 (5th
Cir. 1983), on which the district court relied.                The Court of Criminal Appeals responded
There, a pro se petitioner filed a federal habeas           to Bledsue’s second habeas petition by simply
claim alleging ineffective assistance of counsel, but       stating, “Application denied without written
the petition alleged a number of trial errors that          order.” The state argues that this denial stems
were not specifically mentioned in his state habeas         from the longstanding Texas procedural rule
claim. See id. at 957-58. The state argued that the
federal claim was procedurally barred, as it had not        that prohibits the Court of Criminal Appeals
been made in state court, but we held that a general        from entertaining sufficiency of the evidence
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.

                                                        5
claims on habeas review.12                                 habeas application, thereby signifying its
                                                           rejection of the meritsSSalbeit for no additional
   Although the Court of Criminal Appeals                  reasons, but certainly not expressly on the
generally refuses to entertain sufficiency                 basis of an independent and adequate state
challenges on collateral review, the mere                  procedural ground. Under Coleman, we must
existence of a procedural default does not                 treat this “denial” as a merits adjudication of
deprive federal courts of jurisdiction. See                Bledsue’s state habeas petition that raised the
Shaw v. Collins, 5 F.3d 128, 131 (5th Cir.                 same constitutional challenge to the sufficiency
1993). Quite to the contrary, to prohibit our              of the evidence as he raised in the district court
collateral review the state court must have                and as he brings to us today.14
expressly relied on the procedural bar as the
basis for disposing of the case. Here, the                    Additionally, under Ylst, we must “look
disposition by the Court of Criminal Appeals               through” the Texas court’s denial to the ruling
presented no such expression and no                        of the last state court to render a reasoned
explanation, so we cannot identify the element             decision. When we do so, we find that the
of clear and express reliance on a state                   state court denied Bledsue’s requests not on a
procedural rule to preclude review in federal              procedural ground but on the merits.
court.
                                                              The intermediate state court of appeals, on
   Indeed, the Court of Criminal Appeals has               direct review, conducted a sufficiency of the
explained that “‘[i]n our writ jurisprudence, a            evidence examination in which it noted that
“denial” signifies that we addressed and                   “we must review all of the evidence in the
rejected the merits of a particular claim while            light most favorable to the verdict.” Although
“dismissal” means that we declined to consider             that court ultimately found the evidence
the claim for reasons unrelated to the claim’s             sufficient to establish guilt, it nevertheless
merits.’”13 Here, that court “denied” the                  performed an analysis on the merits to reach
                                                           that finding. As we “look through” the denial
                                                           by the Court of Criminal Appeals to the
   12
       See Renz v. Scott, 28 F.3d 431, 432 (5th Cir.       reasoned intermediate appellate opinion, we
1994); Clark v. Texas, 788 F.2d 309, 310 (5th Cir.         again conclude that Bledsue’s claim was
1986); Ex parte McWilliams, 634 S.W.2d 815,                denied on the merits, i.e., was not denied on an
818 (Tex. Crim. App. 1982). The state’s reliance           independent and adequate state ground. We
on Renz is misplaced. There, the state habeas trial        therefore conclude that the sufficiency of the
court refused to reach the sufficiency of the              evidence claim does not fall prey to the
evidence claim explicitly based on a state
procedural rule, and the Court of Criminal Appeals         procedural bar and is properly before the
denied relief “on the findings of the trial court.”        federal courts.
Renz, 28 F.3d at 432. The state habeas trial court
plainly denied Bledsue’s second petition on the                                  IV.
merits, and the Court of Criminal Appeals denied              In arguing insufficiency, Bledsue claims the
the petition “without written order.” We find these        state failed to prove he possessed more than
two results inapposite and glean no support for the        twenty-eight grams of amphetamine because
state’s position.                                          his indictment did not contain the phrase
    13
       Ex parte Thomas, 953 S.W.2d 286, 289-90             “including adulterants and dilutants.” Even
(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          (...continued)
denial of relief [without written reasons] by the          basis was solely procedural).
Court of Criminal Appeals serves, under Texas
law, to dispose of the merits of the claim.”) with            14
                                                                 The failure to prove guilt beyond a
Coleman, 501 U.S. at 744 (relying on the nature of         reasonable doubt constitutes a denial of due
the disposition as a “dismissal” to find that the          process. Jackson v. Virginia, 443 U.S. 307
                           (continued...)                  (1979); In re Winship, 397 U.S. 358, 364 (1970).

                                                       6
though his jury charge allowed the state to               instructions on this theory.16
include adulterants and dilutants in calculating              Similarly, the statute used to convict
the total weight of amphetamine, Bledsue                  Bledsue authorized the inclusion of adulterants
points out that Texas courts have required jury           and dilutants in calculating the amount
charges to correspond to the elements of the              possessed, and the charge gave instructions to
offense set forth in the indictment.15 Relying            consider “adulterants and dilutants”.
on this rule, Texas courts have specifically held         Therefore, Brown requires reversal of habeas
that for a conviction to survive a sufficiency            relief here, because Bledsue has not shown
challenge, the phrase “adulterants and                    that the omission of the phrase “adulterants
dilutants” must be included in both the                   and dilutants” in his indictment is anything
indictment and the charge. See Dowling v.                 more than a violation of the Benson/Boozer
State, 885 S.W.2d 103, 109 (Tex. Crim. App.               rule unworthy of habeas relief.
1992). Therefore, Bledsue avers that the
evidence was insufficient to convict him under                                  B.
Jackson, because “no rational trier of fact                  Bledsue argues, however, that Malik v.
could have found proof beyond a reasonable                State, 953 S.W.2d 234 (Tex. Crim. App.
doubt” that he was guilty of the essential                1997), modifies the Benson/Boozer rule and
elements of the crime for which he was                    elevates it from a procedural nuance to an
charged: possessing 28 or more but less than              essential element requiring federal habeas
400 grams of amphetamine. See Jackson, 443                protection. Essentially, Bledsue asks us to
U.S. at 324.                                              overrule Brown on the basis of the change in
                                                          Texas law effected in Malik. We decline,
                       A.                                 however, to expand the scope of our review of
    This court last considered the effect of the          Texas cases by incorporating the Malik rule
Benson/Boozer rule on federal habeas review               into our federal habeas jurisprudence.
in Brown, in which a defendant sought habeas
relief because the theory of liability in the jury           In Malik, id. at 240, the court abolished the
charge differed from that presented at trial.             “Benson/Boozer” rule in favor of a rule
The Brown court, 937 F.3d at 182, squarely                requiring sufficiency of the evidence to be
held that a technical violation of the                    measured by the “elements of the offense as
Benson/Boozer rule “does not rise to [the]                defined by the hypothetically correct jury
constitutional heights” justifying federal habeas         charge for the case.” A “hypothetically
intervention. Obedient to Jackson, we held                correct jury charge . . . accurately sets out the
that on habeas review, federal courts should              law, is authorized by the indictment, does not
look only to the substantive elements of the              unnecessarily increase the State’s burden of
offense defined by state law, and not to state            proof or unnecessarily restrict the State’s
procedural requirements, when measuring the               theories of liability, and adequately describes
sufficiency of the evidence. See Brown, id. at            the particular offense for which the defendant
181. Conceding that Brown had shown a                     was tried.” Id. Bledsue reasons that because
violation of state law, we nevertheless denied            this new standard requires the state to prove
habeas relief, because the statute used to                the elements of the crime set forth in the
convict permitted conviction based on the                 indictment, a failure to meet the Malik
theory of liability presented at trial and                standard is tantamount to failing the
because the jury charge gave general                      constitutional sufficiency-of-the-evidence test.


    15                                                      16
        The Court of Criminal Appeals has called               See id. at 183 (“Although the evidence did not
this rule the “Benson/Boozer” doctrine in reference       conform strictly to the theory of culpability as
to a line of cases beginning with Benson v. State,        alleged in the indictment . . . we hold that the
661 S.W.2d 708 (Tex. Crim. App. 1982), and                evidence sufficed to prove the substantive elements
Boozer v. State, 717 S.W.2d 608 (Tex. Crim. App.          of aggravated robbery under the law of parties as
1984).                                                    charged generally in the court’s instructions.”).

                                                      7
    Bledsue contends that, in general, Malik                in the indictment govern which “essential
actually benefits the state, because the state              elements” must be measured against the
simply has to prove the elements in the                     evidence. Jackson requires only that the
indictment. Thus, unlike defendants subject to              review occur “with explicit reference to the
the “Benson/Boozer” doctrine, defendants                    substantive elements of the criminal offense as
post-Malik cannot challenge convictions of                  defined by state law.” Jackson, 443 U.S. at
illegal handgun possession on the basis of                  324 n.16.
concerns over the legality of their detention,
because the detention is not an essential                       Although the indictment is central to
element discussed in the indictment. See                    figuring out which laws are being charged, an
Malik, 953 S.W.2d at 240. Similarly, the                    ambiguously drafted indictment may make it
defendant in Brown would not have been able                 difficult to identify which “substantive
to challenge the theory of liability raised in the          elements” need to be proven for constitutional
jury instructions because, under Malik, the                 sufficiency. The Malik court recognized this
state pro ved the charges raised in a                       problem:
“hypothetically accurate” instruct ion. 17
Because Malik now conforms to the “essential                   [M]easuring sufficiency by the
elements” required by Jackson, Bledsue                         indictment is an inadequate substitute
argues, we cannot dismiss the Malik rule as a                  because some important issues relating
mere procedural nuance.                                        to sufficiencySSe.g. the law of parties
                                                               and the law of transferred intentSSare
   In many cases, the Malik rule will produce                  not contained in the indictment. Hence,
an accurate list of the “essential elements” that              sufficiency of the evidence should be
Jackson requires federal courts to review                      measured by the elements of the offense
during habeas proceedings. Jackson, however,                   as defined by the hypothetically correct
does not necessarily require that, for                         jury charge for the case.
constitutional sufficiency, the elements stated
                                                            953 S.W.2d at 239-40.

                                                               Bledsue’s case provides an example of how
    17
       We respectfully disagree with the dissent’s          the indictment can inadequately set out the
suggestion that Brown should apply only to                  elements of the offense. The state indicted
situations in which the defendant benefits from an          Bledsue for knowingly and intentionally
inconsistency between the evidence and the jury             possessing amphetamine in a quantity of at
instruction. The Brown court gave no indication it          least 28 but less than 400 grams, but the
would fail to apply the same analysis to a case in
which the state benefits from the inconsistency.            indictment did not state whether the weight
Rather, Brown focused on how the evidence                   included adulterants or dilutants.         The
supported the substantive elements of the charge,           magistrate judge correctly found that in
even if there were procedural irregularities, and did       reviewing for sufficiency pre-Malik, Texas
not limit its holding to cases in which the defendant       courts will refuse to consider adulterants and
benefits.                                                   dilutants unless the indictment specifically
                                                            includes the words “adulterants and dilutants.”
    Indeed, following Jackson, the decisive question         Dowling, 885 S.W.2d at 109.
in analyzing potential “procedural nuances” is not
whether they work in favor of or against                       Post-Malik, however, it is uncertain
defendants. Rather, because Jackson is concerned            whether Texas courts would require that
solely with the sufficiency of the evidence needed
to sustain a conviction, see Jackson, 443 U.S.              phrase in the indictment to convict Bledsue,
at 318, the key issue is whether “adulterants and           because the old requirement of matching the
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.

                                                        8
jury charges and indictment no longer exists.18             charge to measure the constitutional
A Texas habeas court reviewing under Malik                  sufficiency of the evidence and determine what
must develop a hypothetically correct jury                  are the essential elements required by the
charge that both “accurately sets out the law”              Jackson sufficiency inquiry.
and “is authorized by the indictment.” Malik,
953 S.W.2d at 240.          In this case, a                                        C.
hypothetically correct jury charge that                         Therefore, while we decline to adopt the
“accurately sets out the law” would have                    Malik rule as a measure of constitutional
included the phrase “adulterants and dilutants”             sufficiency, we still consider whether
but would not be “authorized by the                         “adulterants and dilutants” constitute an
indictment.”                                                “essential element” for the purpose of federal
                                                            habeas review. If we decide that “adulterants
   Perhaps, to meet Malik, a Texas court                    and dilutants” are an essential element under
simply would require the hypothetically                     Jackson, then the district court properly
correct jury charge to be based on a                        granted habeas relief, because no rational jury
hypothetically correct indictment. At the very              could have found the evidence sufficient to
least, when the indictment raises ambiguities as            convict Bledsue of possessing more than
to what the hypothetically correct jury charge              twenty-eight grams of pure amphetamine. To
should be, the Malik approach does not                      make this determination, we look to
resolve a federal habeas court’s inquiry into               “substantive elements of the crime” as defined
what are the essential elements of state law we             in the statute used to convict Bledsue, and we
should use to review Bledsue’s conviction.                  seek guidance from the Supreme Court’s
                                                            recent teachings on how to construe criminal
   This quandary teaches us, on habeas                      statutes.
review, to maintain our own notions of
constitutional sufficiency that are not overly                 In Jones v. United States, 119 S. Ct. 1215
dependent on state law doctrines such as that               (1999), the Court construed 18 U.S.C. § 2119,
enunciated in Malik. Rather, federal habeas                 the federal car-jacking statute, as creating
courts should independently analyze the                     three separate offenses. The statute provides
governing statute, the indictment, and the jury             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
    18                                                      victim suffered no serious bodily injury; (2) not
        Some post-Malik cases indicate that Texas           more than 25 years if he suffered serious
courts will continue to require the language of the         bodily injury; and (3) not more than life
jury charge to conform to the indictment, especially
where the indictment leaves out a theory of                 imprisonment if he died as a result of the car-
liability. See Harris v. State, 1998 Tex. App.              jacking. The Court rejected the government’s
LEXIS 3430 (Tex App. SSHouston [14th Dist.]                 contention that § 2119 be read to create one
1998, no writ) (unpublished) (finding evidence              offense with three separate punishments and
insufficient to sustain conviction where broader            held that “under the Due Process Clause of the
theory of liability was introduced into jury charge);       Fifth Amendment and the notice and jury trial
Williams v. State, 980 S.W.2d 222, 224 (Tex.                guarantees of the Sixth Amendment, any fact
App.SSHouston [14th Dist.] 1998, writ ref'd)                (other than prior conviction) that increases the
(requiring state to follow indictment language              maximum penalty for a crime must be charged
charging use of “firearm”). Bledsue’s case is               in an indictment, submitted to a jury, and
somewhat different, because the language of his             proven beyond a reasonable doubt.” Id. at
indictment is ambiguous as to whether adulterants
and dilutants are included in the alleged                   1224 n.6.
amphetamine possession. Even if Texas courts
would require the insertion of such language in the            The defendant in Jones was indicted and
indictment, however, this requirement does not              convicted under § 2119, but at trial no
reach the level of constitutional sufficiency               evidence regarding injury to the victims was
required for federal habeas intervention.                   produced. At sentencing, however, the court
                                                        9
found that the defendant had indeed caused                 Acknowledging that § 481.116 creates
serious bodily injury, pursuant to the second           three separate offenses, we nevertheless do not
subsection of § 2119, and sentenced him to              conclude that the omission of “adulterants and
twenty-five years. To avoid constitutional              dilutants” creates a separate criminal offense.
concerns, the Court construed the separate              Each of the three offenses in the statute
subsection creating serious punishments for             describes the amount of the controlled
causing “serious bodily injuries” to constitute         substance as “including adulterants and
a separate, independent offense. In doing so,           dilutants.” In Jones, the penalty varied with
the Court held that the question whether the            respect to the level of harm caused to the
defendant had caused serious bodily injury              victims. The problems arose when the jury
must be determined by the jury.                         considered facts supporting one offense, while
                                                        the sentencing court considered facts
    Like the one in Jones, the statute                  supporting an entirely different offense.
authorizing Bledsue’s conviction sets out three
levels of punishment for possession of certain             Here, the penalty varies with respect to the
illegal substances, depending on the quantity           amount of controlled substances possessed and
possessed: (1) Possessing less than 28 grams,           does not depend on whether adulterants and
including adulterants and dilutants, is a third-        dilutants are included.         According to
degree felony; (2) possessing more than 28              § 481.116, adulterants and dilutants are always
grams but less than 400 grams, including                included for purposes of calculating the
adulterants and dilutants, is an aggravated             amount possessed. Therefore, even under
felony punishable by up to 99 years but no less         Jones, Bledsue could not have been convicted
than 5 years; (3) possessing more than 400              of possessing less than twenty-eight grams,
grams, including adulterants and dilutants, is          because “adulterants and dilutants” are always
an aggravated felony punishable by up to 99             included in the calculation of the amount
years but no less than 10 years.19 We read this         possessed.
statute as creating three separate offenses
rather than one o ffense with three                         If the grand jury had indicted Bledsue for
punishments, thus avoiding the constitutional           possessing less than twenty-eight grams, but
concerns expressed in Jones.                            the jury had been instructed that it could
                                                        convict him of possessing more than that
    Therefore, the state would violate                  amount, federal habeas relief would be more
Bledsue’s Sixth Amendment jury trial rights if          likely, because, under Jones, the indictment
it proved that he possessed less than 28 grams,         would have charged a crime different from the
then convinced the court to impose a heavier            one for which he was convicted. But here, it
sentence based on a non-jury finding that he            was not possible for the grand jury to have
possessed more than 28 grams. In other                  indicted Bledsue for a different crime, because
words, because the amount of the controlled             the lowest possible offense created by the
substance possessed determines the severity of          statute still includes adulterants and dilutants
punishment, the amount possessed is a jury              in calculating the amount possessed.20
question and an essential element under Jones
and Jackson. But nothing in Jones suggests
that we must read “adulterants and dilutants”              20
as an essential element of the crime for which               The dissent colorfully describes our analysis
Bledsue was convicted.                                  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
     19
         See TEX. HEALTH AND SAFETY CODE                Jones.
§ 481.116(b, c) (West 1992). This provision was
amended in 1993. See Acts 1993, 73d Leg.,                  In Jones, the government in Jones urged the
ch. 900, § 2.02.                                                                   (continued...)

                                                   10
    Therefore, for purposes of federal habeas
review, the state provided sufficient evidence
for a rational trier of fact to find guilt beyond
a reasonable doubt. Under Brown, our review
for constitutional sufficiency should ask only
“whether the evidence was constitutionally
sufficient to convict [Bledsue] of the crime
charged, not whether a state appellate court
would have reversed his conviction . . . .”
Brown, 937 F.2d at 181. Whatever the
complexities raised by the new Malik approach
to analyzing indictments and jury charges and
by Jones, the fact remains that “with explicit
reference to the substantive elements of the
criminal offense,” the state produced sufficient
evidence to convict. Accordingly, we will not
grant habeas relief based on the grand jury’s
omission of a non-essential element of
Bledsue's offense.

    The judgment granting habeas corpus relief
is REVERSED, and judgment is RENDERED,
denying habeas relief.




(...continued)
Court to construe the statute as a single offense
with three separate punishments. The Court
refused to read the statute to diminish 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.

                                                         11
                                       charge —— which effectively
JACQUES L. WIENER, JR., Circuit        lowered the state’s burden of
Judge, concurring in part and          proof    ——   is    merely    a
dissenting in part:                    “procedural nuance,” unworthy
                                       of constitutional protection.
I agree with my colleagues of          I must also dissent from the
the majority that we have              majority’s   conclusion    that
jurisdiction to review the             “adulterants and dilutants” are
district court’s disposition of        not essential elements of the
Bledsue’s federal habeas corpus        offense that, when relied on by
petition, and that the case is         the   state    to   obtain    a
in   the   proper    procedural        conviction, must have been
posture for us to hear it. I           pleaded in the indictment. I
respectfully dissent from the          find      this     assertion
majority   opinion,    however,        incompatible with the Supreme
because I cannot agree with its        Court’s recent holding in Jones
sufficiency of the evidence            v.   United   States,21   which
analysis or with its conclusion        requires    any    fact    that
that the variance between the
state’s indictment of Bledsue
                                            21
and the trial court’s jury                       119 S. Ct. 1215 (1999).

                                  12
increases the maximum penalty       Focusing on the Fourteenth
for a crime be (1) charged in       Amendment’s       Due     Process
the indictment, (2) submitted       protection, the Court held that
to a jury, and (3) proved           habeas relief is warranted “if
beyond a reasonable doubt.          it is found that upon the
  It is axiomatic that the Due      record evidence adduced at the
Process Clause protects an          trial no rational trier of fact
accused   against     conviction    could have found proof of guilt
unless   facts    necessary   to    beyond a reasonable doubt.”25
demonstrate the presence of         In so holding, however, the
each element of the crime of        Jackson Court also recognized
which he is charged are proved      the    potential    for   federal
beyond a reasonable doubt.22        intrusion on a state’s power to
In the face of this immutable       define criminal offenses and
constitutional principle, the       therefore directed that the
majority opinion nevertheless       prescribed standard be applied
dismisses the state’s failure       in     every    instance    “with
to prove an essential element       explicit     reference   to    the
of the offense —— the weight of     substantive elements of the
the amphetamine as charged in       criminal offense as defined by
the indictment —— beyond a          state law.”26 For over twenty
reasonable         doubt      by    years now, this deliberate
trivializing the omission of        intertwining       of     federal
the     integral      statutory     constitutional law and state
component,         “including       substantive criminal law has
adulterants    and   dilutants,”    served       to    vacate      the
with the label “procedural          convictions     of   those    who,
nuance” and thereby relegating      though factually culpable, are
it to a point below the             legally innocent of a state
threshold   of    constitutional    crime     as    charged    ——    a
scrutiny. I am convinced that,      constitutionally         assumed
in doing this, the majority so      societal risk that lies at the
broadens and exalts our holding     very heart of the Due Process
in Brown v. Collins23 that the      Clause.
constitutional standards and           Today, however, I read the
purposes articulated by the         majority opinion as frustrating
Supreme Court in Jackson v.         the dictates of Jackson by
Virginia24 are diminished to        over-emphasizing —— and thereby
the point of inefficacy in          over-empowering —— portions of
situations such as this.            our opinion in Brown, despite a
  The Jackson Court established     plethora         of     factual
the framework to be used by         distinctions from the instant
federal courts reviewing habeas     case —— distinctions that, I
corpus petitions in which a         submit, do make a difference.
prisoner challenges a state         In Brown as here, we examined a
court conviction on grounds of      habeas petition grounded on a
insufficiency of the evidence.      claim of insufficient evidence
                                    to    support   a   state   court
                                    conviction. The most prominent
     22
        In re Winship, 397 U.S.
358, 364 (1970).
        23
           937 F.2d 175 (5th Cir.        25
                                          Id. at 324.
                                             26
1991).                                          Id. at   324   n.   16
     24
        433 U.S. 307 (1979).        (emphasis added).
feature of Brown, though, is a            possessed 28 grams or more of
flawed    jury     charge     that        the controlled substance) gave
impermissibly    increased     the        the state the easy ability to
state’s burden of proof to an             prove the statutorily-required
unattainable level, resulting             weight      of     amphetamines
in a “windfall” acquittal ——              necessary      to      obtain     a
based    on    constitutionally           conviction under an indictment
insufficient evidence —— for a            that made no mention of such
defendant who was factually               additives.
guilty of the crime actually                Texas    law     defines      the
charged in the indictment.27              quantity element of its drug
As the wrongly-heightened proof           possession crimes by weight:
burden thus placed on the state           Possessing 0 to 28 grams is an
would    have     enabled      the        essential element of a crime of
defendant   “to    walk”    on   a        possession that is a mere
technicality, we applied the              “third      degree       felony,”
label “procedural nuance” to              distinguishing      it    from    a
the variance between the theory           separate and distinct crime of
of the case presented at trial            possession that is a more
and the theory of the case                heinous “aggravated felony,” an
stated in the faulty jury                 essential element of which is
instructions.          We     thus        possessing 28 to 400 grams. In
distinguished     it    from    an        both    crimes,     the     statute
essential    element     of    the        allows, but does not require,
offense as required by Jackson,           the state to ease its burden of
and we denied habeas relief.28            proving the weight of the
                                          substance       possessed        by
  Key    legal    and   factual           cumulating    “adulterants      and
differences    between  Brown’s           dilutants”     with     the    pure
case and Bledsue’s block my               substance when calculating the
agreeing with the majority that           quantity.    But, I submit, if
Brown governs this case. First            the state elects to use such
and most significantly, the               additives, it must track the
instructions given the jury at            statute and expressly include
Bledsue’s trial impermissibly             “adulterants and dilutants” in
lowered the state’s burden of             the indictment. Failing that
proof for the crime for which             (as here), the state must prove
Bledsue was indicted —— a                 the quantity on the basis of
diametrically         opposite            the pure substance alone.
circumstance       from     the             Second, Bledsue’s indictment
heightened proof burden placed            omitted an element of the
on the state in Brown.      The           crime,      adulterants         and
factor improperly inserted into           dilutants, in contrast to the
Bledsue’s       jury    charge            omission of the state’s theory
(instructing the jury that it             of the case in Brown, clearly
could include the weight of               not an essential element of the
adulterants or dilutants in               crime. Consequently, Bledsue’s
determining    whether  Bledsue           conviction was vacated by the
                                          federal      district         court
                                          (correctly, I believe) not on
     27
          Brown, 937 F.2d at 182.         the basis of a procedural
     28
          Id. at 181-82.                  technicality, but because the

                                     14
essential, substantive weight           charge that increased its own
element of the offense, as              burden of proof (even though
charged in the indictment, had          the state had factually proved
not been proved. Moreover, to           its case). Malik created a new
a legal certainty, it could not         sufficiency of the evidence
have been proved by the state           standard,    one   designed     to
without    the   trial   court’s        permit an acquittal to stand or
departing from the indictment           a conviction to be reversed
by (1) allowing evidence of             only when the state actually
additives to be presented to            fails to prove the offense
the jury and (2) instructing            charged in the indictment.30
the jury to include the weight            I   read    today’s    majority
of    those    additives    when        opinion as disregarding the
calculating the weight of the           Malik court’s approach to the
controlled substance. This was          constitutional sufficiency of
done by Bledsue’s state trial           the evidence analysis under
court despite the absence in            Jackson, despite the Court’s
the indictment of any reference         instruction in Jackson that we
whatsoever to either (1) the            are to rely on substantive
statute that defines the crime,         state    criminal     law     when
i.e.,   no    incorporation   by        reviewing a state conviction
reference, or (2) “adulterants          for constitutional sufficiency.
or dilutants.”                          The majority says that “[w]e
   I am not the first to                decline [] to expand the scope
recognize       the    critical         of our review of Texas cases by
importance of the threshold             incorporating the Malik rule
question, “which party benefits         into    our    federal      habeas
from an improper jury charge”           jurisprudence.”      As I read
when considering constitutional         Malik, however, the highest
sufficiency of the evidence on          criminal    court     of     Texas
habeas. Recently, the highest           confected    its   rule    in   an
criminal court in Texas, in             express effort to align that
Malik v. State,29 recognized            state’s sufficiency of the
the inconsistency stemming from         evidence analysis with the
the     application      of    a        federal sufficiency analysis
sufficiency review depending on         decreed   in    Jackson.       The
which party —— the state or the         majority’s failure to focus on
defendant —— has benefitted             this state/federal nexus in
from     questionable       jury        Jackson offends the principles
instructions.      To eliminate         of federalism, ironically, a
these    inconsistencies     and        goal later espoused by the
produce a single, coherent              majority as a reason to deny
standard, the court in Malik            habeas relief to Bledsue. It
overruled one prong of prior            has been said that “[i]f the
state precedent, the prong that         Federal Government in all or
had     awarded      defendants         any of its departments are to
acquittals after the state              prescribe the limits of its own
failed to object to a jury              authority, and the States are
                                        bound   to    submit    to    this
       29
         953 S.W.2d 234 (Tex.
                                             30
Crim. App. 1997).                                 Id. at 239-40.

                                   15
decision, and are not to be             three        separate      offenses.
allowed to examine and decide
for    themselves     when   the          Earlier     this    year,     the
Constitution        shall     be        Supreme     Court     in      Jones
overleaped, this is practically         considered a criminal statute
‘a     government       without         essentially      identical       in
limitation of powers.’“31               structure to the Texas statute
  As I see it, the majority             that is at the heart of this
expands its power and further           case.     The Court in Jones
exacerbates the deprivation of          concluded that the degree of
Bledsue’s constitutional rights         bodily injury, i.e. severe
by concluding —— without regard         bodily injury or death, which
to the glaring inconsistency            resulted     in    a    heightened
between the indictment and the          penalty     imposed      on     the
jury     charge      ——     that        criminal, was an element of the
“adulterants and dilutants” are         offense    that    must    be   (1)
not essential elements of the           charged in the indictment, (2)
crime    under    Jackson,    as        submitted to the jury, and (3)
necessary for federal habeas            proved beyond a reasonable
review. The majority concedes,          doubt.32     The statute under
as I insist, that the statute           which Bledsue was convicted
under    which    Bledsue    was        stands on all fours with the
convicted      creates     three        statute examined in Jones.
separate offenses, each with at         Even though construction of the
least one separate element, not         statute in this case arises in
one    offense     with    three        a different procedural context
gradations     of    punishment.        than that in Jones,33 I am
Regardless of the fact that
each offense contains separate
                                                     32
elements, however, the majority                           Jones, 119 S. Ct. at
sees a distinction between the          1228.
                                                33
amount      of     amphetamine                 Jones involved a direct
possessed,        which       it        criminal appeal of a federal
acknowledges to be an essential         conviction, which arose in the
element of the offense, and             context of sentencing, while
“adulterants and dilutants,”            Bledsue’s case is a post-
which it insists are not.      I        conviction    federal    habeas
cannot accept this distinction,         attack   on   a   state   court
however, as the amount of               conviction.     In Jones, the
“adulterants and dilutants” is          Court sentenced the defendant
merely added to the amount of           based on a non-charged, non-
pure amphetamine to make up the         jury finding that the victim
total weight of possessed drugs         suffered serious bodily injury.
necessary    to     support    a        119 S. Ct. at 1218.      As the
conviction under any one of the         indictment did not charge the
                                        defendant    with    committing
                                        serious bodily injury and the
     31
       Robert V. Hayne, Speech          jury was never asked to find
in the United States Senate, 25         that the defendant committed
Jan. 1830, in Register of               serious bodily injury, the
Debates of Congress 43, 58              Court concluded that Jones’s
(1830).                                                  (continued...)

                                   16
convinced     that    the   same        ways: the amphetamine alone or
reasoning applies.      As such,        the      amphetamine            plus
the weight of the possessed             adulterants       and     dilutants.
amphetamine, the incremental            Either way, a valid charge
increases of which produce              results. But, under Jackson,
concomitant increases in the            the state cannot elect to
seriousness of the crime and            charge        possession           of
the penalty imposed on the              amphetamine alone, then switch
perpetrator, is one of the              and prove the weight of the
essential    elements    of  the        pure-only substance charged by
offense of conviction that, if          including     evidence       of   the
relied on by the state to               amount     of    adulterants      and
obtain a conviction, must be            dilutants as well.
charged in the indictment and              As I see it, the majority
proved beyond a reasonable              opinion     today       imposes    an
doubt.     Conversely, if the           unyielding federal power over
state omits adulterants and             constitutional interpretation,
dilutants from the indictment,          but     in     a      counterstroke
the jury cannot rely on them in         supplants       the       Fourteenth
calculating the amount of drugs         Amendment by rubber-stamping a
possessed.      Obviously, the          conviction that was obtained in
state can elect to charge in            the clear absence of proof
the indictment the essential            beyond a reasonable doubt that
weight element in either of two         the defendant committed the
                                        crime for which he was charged
                                        in the indictment.          With all
(...continued)                          due respect, it is principally
Sixth Amendment right to a              for this reason that I must
trial by jury was violated.             dissent.
Id. at 1226. The Court based                              I.
its holding on the conclusion                        FRAMEWORK
that serious bodily injury, a              As   the    majority       opinion
fact that increases the maximum         adequately states the facts and
penalty for the offense, was an         replicates       the      procedural
essential element that must be          history, standard of review,
charged in the indictment,              and issue of procedural bar, I
submitted to a jury, and proved         shall hereafter mention from
beyond a reasonable doubt. Id.          time to time only small shards
at 1224 n.6. In Bledsue’s case,         of those vessels as needed to
the jury charge included the            complete a frame of reference.
element     “adulterants    and         I am prepared,          however, to
dilutants.”    Relying on the           take whatever time (and ink) is
negative pregnant drawn from            needed to illuminate the flaws
the Court’s holding in Jones, I         I perceive in the majority
am convinced that if the state          opinion’s disposition of this
allows the jury to consider an          admittedly complex case.            I
essential element of the crime          begin with a further discussion
that increases the maximum              of    Jackson      v.     Virginia’s
penalty, then that element must         sufficiency of the evidence
be charged in the indictment            analysis and the gloss that we
and proved beyond a reasonable          put on it in Brown v. Collins.
doubt.                                  Based    on    the     legal    rules

                                   17
espoused in those cases, I                 well-known Jackson v. Virginia
follow with consideration of               standard.34 As noted, we must
those elements that I find must            determine whether, in the light
be   included       in   a   proper        most     favorable       to    the
constitutional         sufficiency         prosecution,      “any    rational
review of Bledsue’s state court            trier of fact could have found
conviction and the definition              the essential elements of the
of his offense under Texas law,            crime    beyond    a    reasonable
both       statutory           and         doubt,”35     with       “explicit
jurisprudential,       in   context        reference to the substantive
with what I perceive to be the             elements    of     the    criminal
importance of the Brown and                offense as defined by state
Malik decisions to this case               law.”36 When the Jackson Court
when they are read in pari                 formulated this standard, it
materia. Then, with that legal             re-emphasized the Fourteenth
framework in place, I analyze              Amendment’s guarantee that “no
the merits of Bledsue’s appeal             person shall be made to suffer
in an effort to identify the               the    onus    of     a   criminal
pitfalls I perceive in the                 conviction        except      upon
analysis advanced by the panel             sufficient        proof,”      but
majority. Next, assuming that              contemplated the intrusion by
(as the majority concludes) the            federal    courts     into   state
variance between the indictment            convictions as a matter of
and jury charge need not be                finality    and     federal-state
factored into a sufficiency                comity.37 The Court concluded
analysis,      I     explore    the        that    finality     of   judgment
fundamental flaw that I discern            should not be achieved at the
in the majority’s holding that,            expense of a constitutional
even when “adulterants and                 right, stating:
dilutants” are included in the
instruction to the jury and
used by it in calculating the
weight     of      the    possessed
substance, the adulterants and
dilutants are not essential
elements of the offense of
conviction that must be charged
in the indictment. Finally, I
take    my    position     to   its
necessary        conclusion      by
explaining my conviction that a
harmless error analysis of this
case fails        to   excuse   the
constitutional          violation
suffered by Bledsue.
                 II.
             ANALYSIS
                                                34
A.    Sufficiency Analysis                         443   U.S. 307 (1979).
                                                35
      Under Jackson v. Virginia                    Id.   at 320.
                                                36
   In reviewing challenges to                      Id.      at    324    n.16
constitutional sufficiency of              (emphasis     added).
                                                37
the evidence, we begin with the                    Id.   at 316, 324 n.16.

                                      18
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.38




     38
      Id. at 323-24 (citations
omitted) (emphasis added).

                            19
   We have entertained numerous            statute and that state’s Common
habeas petitions in which the              Law, i.e., its jurisprudence.
Jackson    analysis     has    been          1. The Statute
dutifully applied.          In so            I find a parsing of the
doing,     however,     we     have        applicable statutory provision
recognized       a    distinction          helpful. The initial paragraph
between         the      crime’s           of § 481.116 of the Texas
“substantive” elements under               Health & Safety Code specifies
state law —— which should be               that   a   person   commits   an
weighed     under     a    Jackson         offense if he knowingly or
analysis —— and “procedural                intentionally     possesses    a
nuances”      ——     which      are        controlled substance listed in
undeserving of a Jackson review            Penalty Group 2 (which includes
and need not be proved by the              amphetamine).41     The several
state to withstand a judgment              subsections that follow define
of acquittal or the grant of a             separate, increasingly severe
new trial on habeas review.39              felonies    with    increasingly
As such, the relevant inquiry              severe punishment levels, both
under Jackson is “whether the              based on the aggregate weight
evidence was constitutionally              of the controlled substance
sufficient to convict [the                 possessed:     An    amphetamine
defendant]      of    the    crime         offense      falling      within
charged, not whether a state               subsection (b)’s “less than 28
appellate court would have                 grams” is a “third degree
reversed     [the    defendant’s]          felony”; an amphetamine offense
conviction on the basis of a               falling within subsection (c)’s
state procedural nuance foreign            “28 grams or more” is an
to     federal     constitutional          “aggravated         felony.”42
norms.”40                                  Consequently, when, as here,
B.    Elements of a Sufficiency            the prosecution is proceeding
      Review                               under    a    subsection     (c)
   Just as I agree with the                “aggravated felony” —— 28 grams
majority that the starting                 or more —— it must prove that
point in this case is Jackson              the defendant (1) knowingly or
v. Virginia, I also agree that             intentionally (2) possessed (3)
the     quest    for    a    state         amphetamines in an amount of 28
definition     of   the    charged         grams or more but less than 400
offense starts with the state              grams. This is precisely what
statute. Where I part with the             Bledsue’s indictment specifies;
panel majority is its implied
conclusion that we stop with
                                                  41
the statute as well.          I am                   TEX. HEALTH & SAFETY CODE
satisfied that, for purposes of            ANN. § 481.116 (West 1992).
                                                  42
a Jackson analysis —— at least                       Subsection (d) further
in this case —— “state law” is             subdivides      the     punishment
the product of both a Texas                ranges for the “aggravated
                                           felony” depending on whether
                                           the aggregate weight of the
     39
      Brown, 937 F.2d at 181.              controlled substance is between
     40
      Jackson, 443 U.S. at                 28 and 400 grams or greater
323-24 (emphasis added).                   than 400 grams.

                                      20
and it does so without mention            with the majority’s implicit
of “adulterants or dilutants,”            narrow definition of “state
and without reference to the              law” as used by the Court in
name or number of the statute             Jackson.
that    incriminates     unlawful            Treating “state law” in the
possession of the controlled              more       comprehensive       sense
substance.                                intended in Jackson brings me
  2. Texas Common Law                     to    an    additional     rule   of
  After defining the necessary            criminal law engendered from
elements of Bledsue’s crime as            the      Texas      Common      Law.
set forth in the applicable               Notwithstanding       §   481.116's
state statute, however, the               inclusion of adulterants or
majority fails to take the next           dilutants in the calculation of
logical step. This marks the              the    total     weight     of   the
initial point at which the                controlled      substance,     Texas
majority and I part ways. We              jurisprudence        has      firmly
are in agreement that, from a             established that an indictment
plain reading of Jackson, we              must      contain     the     phrase
are    required     to     measure        “including       adulterants     and
sufficiency of the evidence               dilutants” before the state (or
with     reference      to     the        the jury) can use the weight of
substantive elements of the               these additives in calculating
criminal offense as defined by            the aggregate weight of the
state law. But, “state law” is            controlled substance.44 Courts
nowhere narrowly defined as a             in Texas have consistently held
synonym for “state statute.”              that “[t]he state is bound by
It seems clear to me that the             the      allegations      in     its
majority opinion       repeatedly         indictment and must prove them
misconstrues      the      Jackson
standard       by      measuring
sufficiency of the evidence
                                               44
against the governing statute                   See Dowling v. State,
only —— not the entire body of            885 S.W.2d 103, 109 (Tex. Crim.
pertinent        state       law.         App. 1992) (en banc) (ordering
Consequently,     the    majority         acquittal      because      the
implicitly     dismisses     Texas        indictment failed to contain
Common     Law    and      thereby        the     phrase     “including
prohibits Texas from defining             adulterants and dilutants” and
its own state law, in direct              the state could not prove the
contravention of the Court’s              pure amount of amphetamine as
express concern in Jackson.43             alleged in the indictment),
For this reason, I cannot agree           decision clarified, 885 S.W.2d
                                          114 (Tex. Crim. App. 1994);
                                          Reeves v. State, 806 S.W.2d
      43
       The Court presumed that            540, 543 (Tex. Crim. App. 1990)
consideration of state law in             (en banc) (same), cert. denied,
the sufficiency of the evidence           499 U.S. 984 (1991); Farris v.
standard would ensure that                State, 811 S.W.2d 577 (Tex.
intrusions on the power of the            Crim. App. 1990) (en banc)
states to define criminal                 (same); Cruse v. State, 722
offenses   would   not   occur.           S.W.2d 778, 780 (Tex. Crim.
Jackson, 443 U.S. at 324 n.16.            App. 1986).

                                     21
beyond a reasonable doubt.”45            distinguishing features between
Our      Brown         opinion           this case and Brown, I briefly
notwithstanding,            this         set out the facts in Brown
jurisprudential rule is clearly          before      highlighting      its
substantive,     not    a    mere        differences.
procedural nuance; there is                3. Brown v. Collins
nothing procedural about it.               In    Brown,      the    habeas
Rather, it goes to the very              petitioner had been convicted
core of requiring that the               in state court of participating
proof   not   vary     from   the        in an aggravated robbery by
indictment.    Accordingly, if           driving    the   get-away    car.
the grand jury does not return           Consistent with the indictment,
an indictment that contains the          the jury was instructed that,
phrase “including adulterants            to establish culpability, the
and dilutants,” the state must           state must prove that the
prove   the   weight     of   the        defendant acted as a principal.
controlled substance on the              The evidence adduced at trial,
basis of pure amount alone or            however, supported culpability
risk a judgment of acquittal or          only under a party-accomplice
a reversal of conviction in a            theory.47     On habeas, Brown
sufficiency of the evidence              conceded     his   guilt    under
challenge, whether on direct             Texas’s party-accomplice rule
appeal or habeas review. There           but argued that the evidence
is nothing harsh or burdensome           had to conform to the theory of
about this rule when we stop to          responsibility submitted in the
reflect on the fact that the             jury charge. As it did not, he
wording of the grand jury’s              insisted, his conviction should
indictment    is     under    the        be overturned.48
exclusive control of the state!            Brown relied on the so-called
  Nevertheless, the majority             Benson/Boozer line of cases to
concludes   that     this   well-        argue     that    the    evidence
established     jurisprudential          presented at trial must conform
rule   does   not     create   an        to the theory of responsibility
“essential element” of the               expressed in the charge given
offense, but is a “procedural            to the jury, failing which, the
nuance” that should not affect           court must enter a judgment of
a constitutional analysis under          acquittal.49     Beginning with
Jackson.     For support, the
majority relies entirely on our
opinion in Brown v. Collins,46                47
                                                 In its instruction, the
and, without presenting much-            court charged the jury on the
needed analysis, holds that              law of parties generally, but
“Brown requires reversal of              this theory was not included in
habeas here.” As I see myriad            the “application paragraphs,”
                                         which apply the relevant law to
                                         the specific facts of the case.
     45
       Cruse, 722 S.W.2d at 780          Brown, 937 F.2d at 177.
                                              48
(citing Doyle v. State, 661                      Id. at 180.
                                              49
S.W.2d 726 (Tex. Crim. App.                      Id. at 180.      If the
1983)).                                  state objects to the erroneous
       46
          937 F.2d 175 (5th Cir.         jury charge and the court
1991).                                                     (continued...)

                                    22
Benson    v.      State,50     and        favorable to the defendant.53
continuing    in      Boozer    v.          Although we acknowledged the
State,51 the Texas Court of               Benson/Boozer rule in Brown, we
Criminal Appeals had held that            nevertheless    found   that   a
the state’s failure to object             technical violation of this
to    a   jury     charge     that        rule to be a mere procedural
unnecessarily     increased    the        nuance that “does not rise to
prosecution’s burden of proof             constitutional heights.”54    In
required it      to    prove   the        so doing, we reasoned that,
offense as described in the               notwithstanding the improper
excessively    burdensome     jury        jury instruction, the state
charge; failure to do so would            clearly proved the elements of
result in an acquittal based on           the Texas aggravated robbery
insufficient evidence.52      From        statute and the “standard in
these decisions emerged a line            Jackson demands no more.”55
of cases that developed a                   Attempting        to      draw
dichotomy: Sufficiency of the             similarities to Brown today,
evidence is measured by the               the majority asserts that the
jury charge if (1) the jury               state   clearly    proved    the
charge impermissibly increases            elements in the statute, which
the state’s burden of proof ——            authorized the inclusion of
and is thus more favorable to             adulterants    and    dilutants,
the defendant, and (2) the                thereby establishing that the
state    fails      to     object;        evidence     is     sufficient.
conversely, sufficiency of the            Regardless of the fact that the
evidence is measured by the               state (not the defendant, as in
indictment if the unobjected-to           Brown) received the benefit of
jury    charge      impermissibly         its own inconsistency, the
lowers the state’s burden of              majority takes the position
proof —— and is thus less                 that Brown applies either way
                                          —— irrespective of whether it

                                               53
                                                  See Malik v. Texas, 953
(...continued)                            S.W.2d 234, 238-39 (Tex. Crim.
nevertheless charges the jury             App. 1997); Morrow v. State,
on a higher burden, then the              753 S.W.2d 372, 381-82 (Tex.
defendant is not entitled to              Crim. App. 1988) (Onion, J.,
acquittal, but the appellate              dissenting), cert. denied, 517
court remands the case for a              U.S. 1192 (1996). The second
new trial. Id. at 181 n.8.                branch of the dichotomy ——
        50
           661 S.W.2d 708 (Tex.           measuring sufficiency of the
Crim. App. 1982), overruled,              evidence by the indictment ——
953 S.W.2d 234 (Tex. Crim App.            has been overruled. I present
1997).                                    a detailed analysis of the case
        51
           717 S.W.2d 608 (Tex.           that    overruled   this   legal
Crim. App. 1984), overruled,              holding and the impact of the
953 S.W.2d 234 (Tex. Crim App.            holding on Bledsue’s case in
1997).                                    subsection B.4.
       52                                      54
          Benson, 661 S.W.2d at                   Brown, 937 F.2d at 181.
                                               55
715-16; Boozer, 717 S.W.2d at                     Id. at 182 (emphasis
610-12.                                   added).

                                     23
is the state or the defendant             in analogizing the situation in
who receives the benefit. The             Brown to the one in Nickerson,
majority reasons that in Brown            we quoted Nickerson for the
we gave no indication that our            proposition    that   “‘By   not
analysis would only apply to              objecting to a charge which
situations    in     which     the        unnecessarily    increased   the
defendant benefitted from the             state’s burden of proof, the
inconsistent charge. To say,              state deemed the charge correct
however, that Brown’s silence             and accepted the burden.’”57
somehow creates a legal rule ——           It is this “windfall” that we
without ever delving into the             dismissed in Brown by dubbing
factual irregularities present            it   a    “procedural    nuance”
in    each     case      ——     is        because (1) it clearly deals
counterintuitive and also runs            with the procedural default
contrary       to       accepted          issue of the state’s failure to
methodology.       A    principal         object, and (2) the defendant
fallacy of this reasoning is              would gain an unjust acquittal
its disregard of the difference           from the state’s failure to
between the relationship of the           object, even though the state
parties in a criminal case as             had definitively proved the
distinguished from a civil                substantive elements of its
case: In a criminal case all              case under applicable state
proof burdens are on the state;           law.   In Bledsue’s case, there
the defense can stand mute and            is no procedural default issue,
prove nothing. What’s “sauce”             and Bledsue gained no advantage
for the prosecution is not                by the variance; in fact, he
“sauce” for the defense.                  suffered      the      ultimate
   I view    portions     of   the        disadvantage. And, again, in
discussion     in     Brown     as        Brown, what the state proved
supporting inferences contrary            matched the indictment, which
to the position taken today by            is   not   the    situation   we
the majority. For example, at             consider today. For all these
the outset of that opinion, we            reasons,    Brown    is   simply
described Brown’s argument as             inapposite.
finding support in the line of                 It seems obvious to me
Texas   cases     that     measure        that, unlike civil litigation,
sufficiency of the evidence by            we    cannot    hold    criminal
the “jury charge given, failing           defendants to the same standard
which, the court must enter a             as the state when it comes to
judgment of acquittal.”56 The             objecting to a jury charge in a
Texas cases cited for this                criminal trial that decreases
proposition     ——     Nickerson,         the state’s burden of proof.58
Stephens, and Benson —— all
relate to but one side of the
                                                57
sufficiency of the evidence                         Id. (quoting Nickerson
dichotomy, the one in which the           v. State, 782 S.W.2d 887, 891
defendant benefits from the               (Tex. Crim. App. 1990)).
                                                58
improper jury charge by getting                    Even more compelling in
a windfall acquittal. Indeed,             this case, however, Bledsue did
                                          object to the improper jury
                                          charge at trial, placing the
     56
          Id. at 180.                                       (continued...)

                                     24
In    Brown,      we     did    not        concurring in the majority
contemplate a situation in                 opinion, not dissenting from
which     the      jury      charge        it, if the indictment had
benefitted     the    state     and        expressly       mentioned       the
sufficiency was thus measured              additives or had incorporated
by the indictment, because                 them   by    reference     to   the
Brown    faced      exactly     the        statutory section that allows
opposite circumstances. He was             (but does not require) the
seeking     sufficiency      review        state to include adulterants
measured by the jury charge                and    dilutants;       but     the
even though the burden of proof            indictment did neither.          We
in the jury charge benefitted              must rely on the clear and
him, not the state.         Reading        unambiguous      words    of    the
the holding in Brown to apply              indictment to determine the
to obverse facts, i.e., when               elements of the crime actually
the state benefits from the                charged    ——    not   the    crime
improper jury charge, simply               potentially     “chargeable”     ——
does not follow, either in law             which,    in    Bledsue’s     case,
or in logic. In the context of             indisputably did not include
constitutional proof beyond a              adulterants and dilutants for
reasonable         doubt,       the        purposes of calculating the
prosecution and the defense are            weight     of     the    substance
not fungible.                              possessed.59 And, clearly, the
   Disregarded by the majority             weight of the substance is the
is another critical distinction            element that is unique to each
in Brown that renders its                  of the different possession
application inapposite here.               crimes under Texas law and
Unlike Brown, the instant case             determines what kind of felony
does not deal with the state’s             has been committed.        In this
theory of responsibility, but              regard, I cannot overlook the
with an actual element of the              fact that the state conducts
crime    ——    the    weight     of        the grand jury proceeding and
amphetamine       necessary      to        actually writes the indictment.
constitute      the     particular         Presumably, the state knows its
aggravated felony as charged in            own statute and knew or should
the indictment.        Unlike the          have known to include the
theory of parties in Brown, the            permitted     additives     if   it
phrase “including adulterants              intended to use them to prove
and dilutants,” when relied on
to obtain a conviction, is an
                                                 59
integral, necessary component                     See Leal v. State, 975
of an element of the offense ——            S.W.2d 636, 640 (Tex. Ct. App.
the weight or quantity of the              1998) (“[I]f any unnecessary
amphetamine —— required to                 language   included    in   an
obtain a conviction under one              indictment    describes     an
of three levels of possessory              essential element of the crime
crimes expressed in the subject            charged, the state must prove
statute. I obviously would be              the    allegation,      though
                                           needlessly pleaded . . . .”)
                                           (citing Burrell v. State, 526
(...continued)                             S.W.2d 799, 802 (Tex. Crim.
state court on notice.                     App. 1975)).

                                      25
quantity.      As it did not, we              4. Malik v. State
must assume objectively that in               In Malik, the highest Texas
this instance the state was                court       reexamined        the
satisfied to deal strictly with            Benson/Boozer line of cases,
pure amphetamine (even if,                 noting     the    inconsistencies
subjectively,            omitting          caused by the longstanding rule
adulterants and dilutants was              that turns on whether the state
not intentional).                          or the defendant benefitted
  After a careful reading of               from the improper jury charge.
Brown,     I     see    significant        To reiterate, if an indictment
differences        in     Bledsue’s        was facially complete but the
sufficiency of the evidence                jury charge required more proof
claim      and       Brown’s     ——        than the indictment (and the
differences that I believe                 state failed to object to its
elevate Texas’s court-made rule            increased burden of proof),
above    a      mere    “procedural        then under the Benson/Boozer
nuance”      to    an    “essential        line,     sufficiency    of   the
element of the offense” under              evidence was to be measured by
Jackson.      Additionally, even           the jury charge.62 Conversely,
though the Brown decision may              if the indictment was facially
have hit the proverbial “nail              complete but the jury charge
on the head” at the time it was            required less proof than the
decided, its holding has been              indictment, then under the
weakened by the Texas Court of             Benson/Boozer line, sufficiency
Criminal Appeals’s decision in             of the evidence was to be
Malik     v.      State,60    which        measured by the indictment.63
overruled      the    Benson/Boozer           Dissatisfied with the maze of
doctrine in an attempt to bring            complex rules for different
its state sufficiency of the               situations, the Malik court
evidence         standard      into        concluded           that     the
alignment with the Jackson                 Benson/Boozer rule was actually
constitutional standard.          I        at    odds   with    the  Jackson
submit that we can no longer               standard. The court recognized
rely on Brown, at least not                that although “[t]he Jackson
without factoring in Malik.61              standard was established to
                                           ensure that innocent persons
        60
           953 S.W.2d 234 (Tex.
Crim. App. 1997).                          (...continued)
        61
           The majority believes           nugatory —— implicitly if not
that Bledsue is asking us to               explicitly. And, again, Brown
overrule Brown on the basis of             is truly inapposite to the
Malik. Bledsue need not ask us             instant circumstances.
                                                62
to do so, because the holding                      The Malik court noted
in    Brown     was    implicitly          that even if the indictment was
overruled      by    the    Malik          facially     incomplete,    but
decision, i.e. the holding in              consistent    with   the   jury
Brown was based on the                     charge, sufficiency of the
Benson/Boozer line of cases,               evidence is also measured by
which were explicitly overruled            the jury charge. 953 S.W.2d at
in   Malik,     rendering   Brown          239.
                                                63
                   (continued...)                  Id.

                                      26
would not be convicted,” the             rule, like the Benson/Boozer
Benson/Boozer rule permitted             line of cases, “does not reach
acquittals simply because the            the level of constitutional
defendant received a windfall            sufficiency      required    for
in the jury instructions —— a            federal habeas intervention.”
result directly at odds with             The majority concedes, however,
the Jackson protection.64                that in many cases, “the Malik
  To      alleviate         this         rule will produce an accurate
inconsistency, the court in              list    of    the     ‘essential
Malik held that “sufficiency of          elements’ that Jackson requires
the evidence should be measured          federal courts to review during
by the elements of the offense           habeas proceedings.” Yet, it
as     defined        by     the         fails    to    acknowledge     a
hypothetically    correct    jury        situation like Bledsue’s, in
charge    for    the     case.”65        which the Malik rule does not
Significantly, the court went            comport with Jackson.        The
on to define hypothetically              panel majority cites only to
correct jury charge as “one              the language in Malik that the
that accurately sets out the             indictment    is    central   to
law, is authorized by the                confecting the “hypothetically
indictment,        does       not        correct jury charge,” but is
unnecessarily    increase     the        not a dispositive measurement
state’s burden of proof, or              of sufficiency in cases when
unnecessarily    restrict     the        theories such as law of the
state’s theories of liability,           parties or transferred intent
and adequately describes the             are involved.67     These legal
particular offense for which             theories of liability are not
the defendant was tried.”66 I            essential elements of the crime
fear that the majority opinion           at issue in this case, so the
today has turned a blind eye             indictment-based hypothetically
toward the phrase “authorized            correct jury charge is the
by the indictment” in the Malik          appropriate     mechanism    for
definition of a hypothetically           comparison.
correct jury charge.     Indeed,           Again, I find clear under
my entire dissenting position            Malik that the “hypothetically
hinges on     this    point:   By        correct jury charge” must be
omitting     adulterants      and        “authorized by the indictment,”
dilutants (or a reference to             signifying   that    we   cannot
the    statute)      from     the        disregard the indictment and
indictment, a jury charge that           look only to the statute.
includes them can never be               Using the Malik benchmark, the
correct,    hypothetically     or        kind of technical violations
actually.
  The majority discredits the
                                                67
analysis set forth by Malik,                     See Johnson v. State,
stating —— without citation or           982 S.W.2d 403, 409 (Tex. Crim.
other support —— that the Malik          App. 1998) (en banc) (when
                                         applying Malik, noting that
                                         general      principles      of
     64
        Id.                              liability, such as transferred
     45
        Id. at 240.                      intent, need not be alleged in
     46
        Id. (emphasis added).            the indictment).

                                    27
that concerned the Brown court           interpretation of Jackson to
and   ended    in    unnecessary         come in one juridical ear and
judgments of acquittal will be           go out the other. Ironically,
eliminated, and the state will           the instant panel majority
consistently have to prove the           invokes federalism to justify
elements in the indictment.68            denial of habeas relief at the
On the one hand, defendants              same   time   that  it    unduly
like     Brown,      who      had        discounts a state common law
historically benefitted from an          principle that was created to
improper   jury    charge    that        further the goals of a federal
required a higher level of               constitutional sufficiency of
proof for conviction, will no            the evidence analysis under
longer be     acquitted    on   a        Jackson. Another curiosity is
technicality; on the other               the majority’s expression of
hand, defendants like Bledsue,           concern that “[p]ost-Malik . .
who were    convicted     on   an        . it is uncertain whether Texas
improper   jury    charge    that        courts   would   require    that
allowed the state to prevail             phrase [including adulterants
under a lower level of proof             or dilutants] in the indictment
than the crime charged in the            to convict Bledsue, because the
indictment, will be eligible             old requirement of matching the
for federal habeas relief. I             jury charges and the indictment
agree wholeheartedly with the            no longer exists.”69     Not to
Malik court’s observation that           worry: The courts of Texas have
it   has brought      the   Texas        continued to indicate that, for
sufficiency of the evidence              the state to cumulate the
inquiry more in line with the            weight of additives with the
Jackson standard to ensure that
a judgment of acquittal will be
                                                69
reserved for those situations                     Although the majority
in which there is a failure in           addresses some of the cases
the   state’s     constitutional         decided      post-Malik,      it
burden of proof, rather than             concludes that Bledsue’s case
merely a technical violation.            is   different   “because    the
   It seems to me that the               language of his indictment is
effect of the majority opinion           ambiguous    as    to    whether
is to allow the Malik court’s            adulterants and dilutants are
                                         included    in    the    alleged
                                         amphetamine possession.”       I
     48
      Cf. State v. Barrera,              find      this     conclusion
982 S.W.2d 415, 417 (Tex. Crim.          astonishing. First, there is
App. 1998) (applying Malik and           no   ambiguity   in   Bledsue’s
finding that the omission of             indictment: It simply did not
self-defense in the application          contain the phrase “adulterants
paragraph of the jury charge,            or     dilutants.”     Second,
even though it was adequately            subsequent Texas cases have
defined in the jury charge, was          confirmed that the jury charge
a technical violation of a               must conform to the indictment,
state law rule, which did not            even when a key element has
affect     a    constitutional           been     omitted    from     the
sufficiency of the evidence              indictment.    See infra notes
review).                                 47-48 and accompanying text.

                                    28
weight of the pure drug so as                 a conviction.71
to gain a conviction, the                       In like manner, even though
requirement that the statutory                the statute under which Bledsue
phrase must appear in the                     was convicted clearly allowed
indictment does still exist.                  the inclusion of adulterants
  In Harris v. State, for                     and dilutants in calculating
example, a Texas court of                     the   total    weight    of  the
appeals     applied       the    Malik        amphetamine, this element was
standard     to    facts      closely         omitted from his indictment, as
analogous to those of this                    drawn for the grand jury by the
case.70       The defendant in                prosecution.       Analogous to
Harris     was      convicted       of        Harris, the essential elements
aggravated assault of a peace                 of Bledsue’s offense are those
officer.      The defendant had               specified in the indictment ——
been charged in an indictment                 here, “pure” amphetamine only
that alleged the defendant “did               —— and, because the state did
then and there unlawfully,                    not prove one of the essential
intentionally       and     knowingly         elements of the indictment’s
cause bodily injury” to the                   offense (as distinct from a
officer.       The jury charge,               mere theory of responsibility)
however, instructed the jury                  beyond a reasonable doubt,
that “[a] person commits the                  i.e., possession of 28-400
offense of       assault       if   he        grams     of      unadulterated
intentionally,        knowingly     or        amphetamine, exclusive of the
recklessly causes bodily injury               indictment-omitted additives,
to another,” thereby permitting               Bledsue is entitled to habeas
a   conviction       on    a    theory        corpus relief.
broader ——       and      thus    less          In Pizzini v. State, another
burdensome to the state —— than               Texas court confirmed this
the    one     alleged       in    the        reading of Malik by stating,
indictment.      Even though the              “[w]e do not read Malik so
specific      language       of    the        broadly... we must conclude
statute      under       which     the        that the hypothetically correct
defendant        was        indicted          jury charge contemplated in
contained      the      element     of        Malik    is    based    on   the
recklessness, the court held                  indictment as returned by the
that the essential elements of                grand jury. Accordingly, Malik
the offense must appear in the                may not be used to release the
indictment; its presence in the               state   from    its   burden  of
statute       alone        is      not        proving each element of the
sufficient.        Thus, a Malik              offense as charged in the
hypothetically        correct     jury        indictment.”72
charge     could       not    include
recklessness, and, as a result,
                                                   71
recklessness could not sustain                      Id. at *2-4.
                                                   72
                                                    1998 WL 635306, *2 (Tex.
                                              Ct.     App.     Sept.      16,
                                              1998)(emphasis added); see also
                                              Williams v. State, 980 S.W.2d
      70
      1999 WL 441839 (Tex. Ct.                222, 224-25 n.2 (Tex. Ct. App.
App.     July     1,    1999)                 1998)   (“[A]   hypothetically
(unpublished).                                                (continued...)

                                         29
   Jackson   requires    us  to           Using the Malik standard as
evaluate the elements of the           my yardstick, I now test for
offense under state law; and           constitutional sufficiency the
Texas law —— both before and           evidence produced by the state
after Malik —— mandates that,          to convict Bledsue on the
for purposes of constitutional         allegations in a hypothetically
sufficiency,    the   essential        correct      jury      charge     as
elements of the offense are            authorized by, inter alia, the
those     contained   in    the        indictment.        The indictment
indictment.       It  therefore        alleged possession of at least
follows inescapably that the           28 grams of amphetamine —— no
standard announced in Malik, as        mention     of    adulterants     or
contemplated in that decision          dilutant; no mention of the
and consistently applied by the        criminal statute.          Thus, a
Texas courts of appeal ever            hypothetically       correct    jury
since, is aligned with the             instruction would not allow the
Jackson standard and must be           weight of the adulterants and
considered in a sufficiency of         dilutants to be considered in
the evidence review.                   calculating the weight of the
C.    Merits of the Case               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

(...continued)
correct    jury   charge  must
reflect the elements of a
criminal offense as set out in
the     indictment.”)(emphasis
added).

                                  30
       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,73 a
     case in which the structure of
     a criminal statute was examined
     to find that the increased
     level of harm suffered by the
     victim, i.e., bodily injury or
     death, was an essential element
     of the offense to be decided by
     a jury. The Court noted that
     “any fact (other than prior
     conviction) that increases the
     maximum penalty for a crime
     must    be     charged     in   the
     indictment, submitted to a
     jury, and proven beyond a
     reasonable doubt.”74 Based on
     the similarities between the
     statute     in   Jones    and   the
     statute at hand, the majority
     correctly describes the Texas
     statute     as   defining     three
     separate offenses, rather than
     one offense with three separate
     punishments.
       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

          73
           119 S. Ct. 1215 (1999).
            74
               Id. at 1224 n.6; see
     also United States v. Davis,
     1999 WL 496519 (4th Cir. July
     13, 1999) (relying on Jones,
     vacating     Davis’s   sentence
     because “great bodily injury”
     was   not     charged  in   the
     indictment).

31
element of the offense —— and             the logical fallacy in the
the phrase “adulterants and               majority’s position.          More
dilutants,” which it claims is            importantly, it continues to
not an element of the offense.            ignore what the indictment
Because      “adulterants      and        actually    said,     and,    more
dilutants” are included in each           significantly, what it did not
separate     crime     under   the        say.
statute to calculate the amount             Additionally, the majority’s
possessed, goes the majority’s            conclusion that Bledsue could
reasoning, Bledsue could not              not have been convicted of
have    been      convicted     of        possessing less than 28 grams
possessing less than 28 grams             of amphetamines can only follow
of amphetamine.        It is from         if sufficiency of the evidence
this thesis that the majority             is measured by the statute
concludes that “adulterants and           alone or by the jury charge
dilutants” cannot be an element           alone, both of which include
of the offense of conviction.             “adulterants and dilutants.”
  Not only do I perceive this             But, if sufficiency of the
argument as patently circular,            evidence considers the statute
I find it to be a classic non             only as expressly incorporated
sequitur.          The    majority        into the indictment —— as, I am
concedes that the amount of               convinced, it must —— then
controlled substance possessed            Bledsue undeniably could have
is an element of Bledsue’s                been convicted of possessing
offense but in the same breath            less   than     28     grams    of
insists that “adulterants and             amphetamine —— 17 grams to be
dilutants” do not affect the              exact.
total amount of the controlled              Finally,     to     say     that
substance possessed; that the             “adulterants and dilutants” are
crime, as expressed in the                not essential elements because
statute, describes the weight             they are always included in the
of the controlled substance as            offense is both illogical and
including      adulterants     and        unsupported. The elements of
dilutants. But, the majority              “possession” and “weight of
fails to      account     for  the        amphetamines”      are      always
indictment’s       omission     of        included in the offense as
adulterants and dilutants when            well, but that would not excuse
it fails to track or identify             their    omission      from    the
the statute.        As these two          indictment.      I can neither
substances —— (1) pure drugs              understand nor reconcile the
and (2)      additives     ——  are        majority’s position that under
inextricably intertwined, I can           Jones,     adulterants         and
neither accept nor understand             dilutants are not essential
the majority’s proposition. In            elements    of    the    offense.
fact, the majority states,                Clearly,     “adulterants      and
“[e]ach of the three offenses             dilutants”    can   dramatically
in the statute describes the              affect   the    weight    of   the
amount    of     the    controlled        amphetamine proved by the state
substance       as      “including        to have been possessed by the
adulterants     and    dilutants.”        defendant and can thus increase
This exercise of semantically             the defendant’s penalty: That
chasing one’s tail demonstrates           is precisely what has occurred

                                     32
here.    This is an additional             state is correct in observing
reason why I must respectfully             that a conviction under either
dissent —— unless, of course,              the    “28     grams     or    more”
the error can be found to be               aggravated felony or the “less
harmless. Thus, one more step              than 28 grams” third degree
is required.                               felony would carry the same
E.    Harmless Error Analysis              punishment range for Bledsue –—
   To take my thesis to its                25    to   99     years    or   life
necessary legal conclusion, I              imprisonment –— it does not
must address one final hurdle              follow that the jury would
raised by the state: harmless              necessarily have assessed the
error.      As a writ of habeas            same punishment within that
corpus    is    not    necessarily         range.77 During the sentencing
granted in every instance in               phase    of    trial,     the   jury
which the state has failed to              assessed punishment at life
conform      to     constitutional         imprisonment based on two prior
requirements,      my   conclusion         convictions and the present
that Jackson has not been                  conviction for an “aggravated
satisfied      does    not    fully        felony” —— the second “tier” of
complete       this     inquiry.75         the punishment scheme of the
Before habeas relief can be                statute     that    is    based   on
granted, Bledsue must establish            weight.     That second tier ——
that he suffered prejudice as a            reserved       for      aggravated
result of the variance between             felonies —— is clearly meant to
the    jury    charge    and    the        punish more heinous drug crimes
indictment.76           I n   i t s        than the first tier’s third
brief and in oral argument, the            degree,     “under     28    grams,”
state insisted that Bledsue                felonies, obviously a less
could      not       successfully          egregious,      minimal     quantity
demonstrate prejudice because              crime.     The jury, which had
(1)    he     would    have    been        found Bledsue guilty of the
convicted under the lesser                 greater aggregate weight, was
included offense of “less than             instructed       that    it    could
28 grams,” and (2) for Bledsue,            sentence Bledsue for any term
that lesser offense carries the            between 25 and 99 years or that
same punishment range as does              it      could       impose      life
the greater offense of which he            imprisonment; and the jury
was convicted.        Accordingly,         chose life imprisonment.
urges the state, any error is                 The state urges that “[t]here
harmless.                                  is no reason to believe that
   As    with     the      majority        the jury would have been more
opinion’s reasoning, I perceive            forgiving in sentencing Bledsue
a fatal flaw in the state’s
logic as well. Even though the
                                                57
                                                 Cf.   id.    at    182-83
                                           (finding no prejudice because
     55
        Brown, 937 F.2d at 182;            the sentence for the lesser
Clark v. Maggio, 737 F.2d 471,             included offense was exactly
475 (5th Cir. 1984), cert.                 the same as the sentence
denied, 470 U.S. 1055 (1985).              imposed on the defendant);
     76
        Brown, 937 F.2d at 182.            Clark, 737 F.2d at 475-76
                                           (same).

                                      33
for seventeen grams of pure                I deem worth highlighting for
amphetamine rather than more             analogical      purposes    the
than 28     grams   of  diluted          different treatment given under
amphetamine.”      This  is   a          Texas law to a first-time
classic mis-characterization of          offender    who    commits   an
an issue: The correct question           “aggravated”      felony,    as
to ask in this harmless error            compared to the treatment given
analysis is whether there is at          to a first offender for a
least a realistic possibility            “third degree” felony.       An
that a jury might be less                aggravated felony —— in this
inclined     to   assess    the          case the “28 grams or more”
statutory maximum —— life in             count —— carries, for a first
prison —— for the minimal,               offender, a punishment range of
first-tier, third degree felony          5 to 99 years or life and a
than for the more egregious,             maximum fine of $50,000.     In
second-tier aggravated felony.           contrast, a third degree felony
To me the obvious answer is              —— in this case the “less than
“Yes.” Moreover, the state’s             28 grams” count —— carries, for
reasoning cuts both ways: There          a first offender, a punishment
is no reason to believe that             range of only 2 to 10 years and
the jury would have imposed the          a maximum fine of $10,000. A
identical, statutory maximum             reasonable jury could not help
sentence when dealing with a             but note the fact that the
conviction on the lower grade            possibility of an additional 79
felony, as a lesser included             years or life in prison and an
offense at that, particularly            additional $40,000 in fines
when armed with the knowledge            reflects a public policy, as
that    the     more    heinous          expressed by the legislature,
aggravated felony carries the            that an aggravated felony is
same maximum as the “entry               substantially more egregious
level” third degree crime.78             than a third degree felony in
                                         the Texas criminal pantheon.
                                         Although these penalty ranges
     58
       In the context of the             apply   only   to   first  time
United     States      Sentencing        offenders, of which Bledsue
Guidelines, it is clear that             admittedly is not one, I infer
misapplication of a guideline
is only harmless error if the
district    court    would   have        (...continued)
imposed     the    exact     same        same sentence was available
sentence, even in the absence            under the correct sentencing
of the error.       Williams v.          range); U.S. v. Huskey, 137
U.S., 503 U.S. 193, 203 (1992).          F.3d 283, 289-90 (5th Cir.
The fact that the district               1998)   (refusing     to   find
court could have chosen the              harmless error because the
same sentence is immaterial.             government could not prove that
See U.S. v. Tello, 9 F.3d 1119,          the district court would have
1131 (5th Cir. 1993) (holding            chosen    the     exact    same
that application of the wrong            sentence); U.S. v. Rogers, 126
sentencing     range     is   not        F.3d 655, 661 (5th Cir. 1997)
harmless error even when the             (same); U.S. v. Surasky, 976
                  (continued...)         F.2d 242, 248 (5th Cir. 1992).

                                    34
guidance     from     the   Texas        error.     I agree with the
Legislature’s     treatment    of        recommendation of the district
these offenses and can see how           court and would affirm its
a jury would be likely to make           reversal      of      Bledsue’s
the same analogical distinction          conviction on the charge of
when enlightened by an able              possession of amphetamine in a
defense lawyer. Additionally,            quantity of 28 grams or more,
given that Bledsue’s prior               allowing the state 120 days in
offenses were felony theft and           which to retry Bledsue on the
unlawful carrying of a weapon            lesser included offense of
on licensed premises, this was           possession of less than 28
his first drug conviction.               grams, should the state elect
That a defendant is found                to do so.
guilty of the least criminal                           III.
quantity range of amphetamine                       CONCLUSION
possession that is punishable               I am deeply troubled by the
by law and that it is his first          majority’s treatment of the
drug offense might very well             Fourteenth        Amendment’s
lead a jury to assess a lower            fundamental      due     process
sentence, almost certainly less          guarantee that every individual
than life imprisonment.                  ——    regardless   of    factual
  In sum, we should sit neither          culpability —— shall be free
as a transcendental jury nor as          from conviction except on proof
an oracle predicting what a              beyond a reasonable doubt of
jury     would     decide    when        the crime of which he is
theoretically sentencing one             charged.    By mandate of the
convicted of a “third-degree”            Supreme Court, we have been
felony     rather      than    an        given explicit rules under
“aggravated” felony, with the            which to measure sufficiency of
difference dictated explicitly           the evidence on habeas when
and solely by quantity. This             questioning a state conviction,
should be decided by another             most notably the reference to
jury on another day —— if it is          state law for the substantive
to be decided at all. I find             definition of the elements of
it self-evident, though, that            the criminal offense. With its
in the sentencing context a              focus limited narrowly to the
conviction          based      on        statute only, however, the
insufficient evidence of the             majority      disregards      an
quantity      of      amphetamine        essential element of state law
possessed would be prejudicial           —— ingrained in the Common Law
to any habeas petitioner under           of Texas for almost 20 years ——
the     instant      facts    and        that the state must include the
applicable law.                          key      phrase      “including
  I therefore conclude that              adulterants or dilutants” in
Bledsue     has      demonstrated        the indictment if the weight of
sufficient prejudice in the              those additives are to be
discrepancy       between     his        relied on by the state in
indictment and the jury charge,          proving the essential element
and the substantially different          of weight.
nature of the lesser included               By diminutively terming this
offense, to remove his case              discrepancy      between     the
from the realm of harmless               indictment and the jury charge

                                    35
a “procedural nuance,” the
majority condones sloppiness at
best    and     sophistry     and
deception at worst, in the
actions      of     the     state
prosecutor.79     The state in
this case benefitted from its
own     omission       in     the
inconsistency     between     the
indictment and the jury charge,
condemning Bledsue to a life
behind bars for committing a
crime of which he was never
indicted. I hasten to add that
I should not be misunderstood
to advocate a blanket review of
state court convictions, as it
should be with great reluctance
that any federal court intrudes
on the finality of a state’s
disposition of such cases. But
we must not forget that we are
in all likelihood the final
arbiter    between      Bledsue’s
guarantee of due process and
the    state’s     interest    in
prosecuting criminals. Absent
consideration of the Texas
common law rule that examines
the   variance     between    the
indictment and the jury charge
which, I might add, is aligned
with the federal constitutional
standard, Bledsue’s due process
rights to a fundamental fair
trial have been abrogated,
first by the state conviction
and now by the majority’s
reversal     of    the    federal
district    court’s    grant   of
habeas relief —— which I would
affirm. For these reasons, I
respectfully dissent.

            79
             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.

                                    36
