             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                         No. PD-1532-07


                              RODGER LOU GRISSAM, Appellant

                                                 v.

                                    THE STATE OF TEXAS


                    On Discretionary Review of Case 02-05-00422-CR of the
                                   Second Court of Appeals,
                                        Hood County


               WOMACK , J., delivered the opinion of the Court, in which KELLER,
               P.J., and PRICE, JOHNSON, KEASLER, HERVEY , HOLCOMB, and
               COCHRAN, JJ., joined. MEYERS, J., filed a dissenting opinion.


       An indictment accused the appellant of committing burglary of a habitation in each of

two ways in which such an offense can be committed: (1) by entering with intent to commit theft

or (2) by entering and thereafter committing (or attempting to commit) theft. The trial court’s

charge to the jury should have explained both kinds of burglary and authorized them to convict

on either. Instead it explained one kind in the abstract statement of the law and authorized

conviction on the other in the application paragraph:
                                                                                        (Grissam - 2)

               Our law provides that a person commits the offense of burglary if, without
       the effective consent of the owner, he enters a habitation with intent to commit
       theft.
               …
               Now if you find from the evidence beyond a reasonable doubt that
       Defendant, RODGER LOU GRISSAM, in Hood County, Texas, on or about the
       27th day of August, 2004, either acting alone or with Joseph LeFebvre as a party
       to the offense herein before defined, did then and there intentionally or knowingly,
       without the effective consent of Ashley Carey, the owner thereof, enter a
       habitation and did attempt to commit or commit theft, then you will find the
       defendant guilty of the offense of Burglary of a Habitation as alleged in the
       indictment. [Emphases added.]

       The legal sufficiency of evidence is measured against the requirements for conviction in a

correct charge of the court (as distinguished from the charge that actually was given). Malik v.

State, 953 S.W.2d 234 (Tex. Cr. App. 1997).

       The Court of Appeals recognized that standard, but it read Malik and other decisions to

forbid it from applying any theory that was not submitted to the jury in the application paragraph

of the charge. See Grissam v. State, No. 2-05-422-CR, 2007 Tex. App. LEXIS 6843, at *8–9

(Tex. App.—Fort Worth Aug. 24, 2007) (not designated for publication).

       We said in Malik that “due process prevents an appellate court from affirming a

conviction based upon legal and factual grounds that were not submitted to the jury.” 953

S.W.2d, at 238 n.3. But that statement was followed immediately by our discussion of the

holding of a federal court of appeals that sufficiency of the evidence should be measured by the

law of parties that was in the abstract portion of the charge but not in the application paragraph,

and noting that the federal court’s decision “implied that the complete absence” of the theory

from the charge may present constitutional problems. Ibid.
                                                                                     (Grissam - 3)

       In the case before us, both theories of burglary were in the charge, although only one was

in the application paragraph. The legal sufficiency of the evidence should have been measured

against the requirements for conviction under either theory of burglary.

       We vacate the judgment of the Court of Appeals and remand the case to that court for

further consideration.


Delivered September 10, 2008.
Publish.
