                                 IN THE UNITED STATES COURT OF APPEALS

                                                    FOR THE FIFTH CIRCUIT


                                                               No. 99-20934
                                                            (Summary Calendar)




GARY JOSEPH FREEMAN,
                                                                                                                      Petitioner-Appellant,


                                                                        versus

GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                                                                                                       Respondent-Appellee.



                                         Appeal from the United States District Court
                                             for the Southern District of Texas
                                                  USDC No. H-98-CV-729

                                                               February 5, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

           Gary Joseph Freeman, Texas prisoner #582026, was granted a certificate of appealability to

appeal the district court’s denial of his claim in his 28 U.S.C. § 2254 petition that the state appeals

court violated the Ex Post Facto Clause of the Constitution when it applied the standard of review

for sufficiency of the evidence claims set forth in Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.


           *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1991) (en banc), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App.

2000) (en banc), to conduct that occurred before Geesa was announced.

        Upon review of a habeas petitioner’s challenge to the sufficiency of the evidence, this court

views the evidence in the light most favorable to the verdict to determine if any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In Geesa, Texas changed its

standard of appellate review for insufficiency of the evidence claims to comport with this minimum

constitutional standard by ho lding that “circumstantial cases are to be analyzed solely under the

standard of Jackson v. Virginia.” Geesa, 820 S.W.2d at 163. In so doing, Texas eliminated the

“reasonable hypothesis analytical construct,” under which appellate courts were required to find with

respect to circumstantial evidence that every other reasonable hypothesis raised by the evidence was

negated, save that which established the guilt of the defendant. See Geesa, 820 S.W.2d at 158-61.

        Freeman correctly notes that the Texas Court of Criminal Appeals clearly stated that “the new

rule[] at issue compels the conclusion that justice is best served by an application of ‘limited

prospectivity.’” Id. at 165 (stating that “application of the rules will be limited to the case at bar and

all cases tried hereafter”) (emphasis added). Although Freeman’s trial preceded Geesa, we are

persuaded that the Texas Court of Appeals did not commit an error of constitutional magnitude when

it subsequently reviewed Freeman’s conviction solely under the Jackson standard rather than under

the reasonable hypothesis analytical construct. See Freeman v. State, No. 01-91-00123-CR, 1994

WL 276702, at *2 (Tex. App.-Houston [1st dist.], June 23, 1994).

        Our conclusion is predicated upon two principal grounds. First, a law that neither alters the

degree nor lessens the amount or measure of the proof that was made necessary to conviction when


                                                    2
the crime was committed does not offend the constitutional proscription of ex post facto laws.

Carmell v. Texas, 529 U.S. 513, 120 S. Ct. 1620, 1638, 146 L. Ed. 2d 577 (2000); see also United

States v. Mejia, 844 F.2d 209, 211 (5th Cir. 1988) (concluding that no ex post facto violation occurs

if the change in law does not increase the punishment, nor change the ingredients of the offense or

the ultimate acts necessary to establish guilt). Because Hankins v. State, 646 S.W.2d 191, 199 (Tex.

Crim. App. 1983), which was decided well before Freeman’s trial, repudiated the jury charge that

required the exclusion “to a moral certainty, [of] every other reasonable hypothesis except the

defendant’s guilt” in criminal cases based upon circumstantial evidence, the Geesa prohibition against

using the reasonable hypothesis analytical construct during appellate review in no way affected the

degree of proof requisite for a jury to convict Freeman– the prosecution had to prove every element

of the charges against Freeman beyond a reasonable doubt. See Hankins, 646 S.W.2d at 198 (citing

Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 137, 99 L. Ed. 150 (1954)).

       Moreover, while the Texas Court of Criminal Appeals recognized that states are free to set

higher standards of review for sufficiency of the evidence challenges, it also acknowledged that the

standard enunciated in Jackson v. Virginia is binding on states as a constitutional minimum. See

Geesa, 820 S.W.2d at 157, 166-67 (stating that the Jackson v. Virginia standard “was intended to

be ‘the constitutional minimum required to enforce the due process right’”). Therefore, when the

Texas Court of Appeals considered the circumstantial evidence to determine whether a rational fact

finder could have found that Freeman committed a burglary beyond a reasonable doubt, it not only

relied on Geesa but also reasonably applied Jackson v. Virginia- clearly established federal law as

announced by the Supreme Court of the United States. Thus, the district court was correct in

denying Freeman’s habeas petition. See 28 U.S.C. § 2254 (d) (stating that “a writ of habeas corpus


                                                  3
on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with

respect to any claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States”). Accordingly, we AFFIRM the district court’s denial of Freeman’s habeas petition.

AFFIRMED.




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