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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
petition, which was dismissed by the Court of
1 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
denied on the meritsSSthe magistrate judge
allowed the jury to include adulterants and
dilutants, but the instruction on the "less than 28
grams" count did not.
3 The indictment referred to "amphetamine"
2 TEX. PENAL CODE § 12.42 (West 1994).
without the adjective "pure," but also without
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
first previous conviction having become
5 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);
In reviewing a grant of habeas relief, we
Peyton v. Rowe, 391 U.S. 54 (1968); Escobedo v.
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
only that [he] was near the scene of the
have exhausted his state remedies until he has
robbery." Later, in a federal habeas petition,
raised his claims before the state's highest court
Brown argued that the prosecution had not
though collateral review provided by state habeas
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
of Criminal Appeals in both a petition for
9 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
of post-conviction relief need be exhausted, and
10 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
that prohibits the Court of Criminal Appeals
federal claim was procedurally barred, as it had not
from entertaining sufficiency of the evidence
been made in state court, but we held that a general
claim of ineffective assistance of counsel in the
state petition was sufficient to invoke a full study
of individual factual claims found in the available
state court records. See id. at 960.
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 bar and is properly before the
procedural rule, and the Court of Criminal Appeals
federal courts.
denied relief "on the findings of the trial court."
Renz, 28 F.3d at 432. The state habeas trial court
plainly denied Bledsue's second petition on the
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 The Court of Criminal Appeals has called
16 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
indictment did not state whether the weight
which the state benefits from the inconsistency.
included adulterants or dilutants. The
Rather, Brown focused on how the evidence
magistrate judge correctly found that in
supported the substantive elements of the charge,
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
phrase in the indictment to convict Bledsue,
to sustain a conviction, see Jackson, 443 U.S.
because the old requirement of matching the
at 318, the key issue is whether "adulterants and
dilutants" is an essential element for purposes of
constitutional sufficiency review. Which party
benefits from the potential "procedural nuance" is
not significant to this analysis.
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
victim suffered no serious bodily injury; (2) not
18 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
imprisonment if he died as a result of the car-
where the indictment leaves out a theory of
jacking. The Court rejected the government's
liability. See Harris v. State, 1998 Tex. App.
contention that § 2119 be read to create one
LEXIS 3430 (Tex App.SSHouston [14th Dist.]
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
1224 n.6.
and dilutants are included in the alleged
amphetamine possession. Even if Texas courts
The defendant in Jones was indicted and
would require the insertion of such language in the
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"
as an essential element of the crime for which
20 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
f i n d t h i s a s s e r t i o n
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
and the trial court's jury
21119 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
r e a s o n a b l e d o u b t b y
years now, this deliberate
trivializing the omission of
intertwining of federal
the integral statutory
constitutional law and state
c o m p o n e n t , " i n c l u d i n g
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
p l e t h o r a o f f a c t u a l
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
22In re Winship, 397 U.S.
358, 364 (1970).
23937 F.2d 175 (5th Cir.
25Id. at 324.
1991).
26Id. at 324 n. 16
24433 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
d i a m e t r i c a l l y o p p o s i t e
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
27Brown, 937 F.2d at 182.
the basis of a procedural
28Id. 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
29953 S.W.2d 234 (Tex.
Crim. App. 1997).
30Id. 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
elements, however, the majority
32Jones, 119 S. Ct. at
sees a distinction between the
1228.
amount of amphetamine
33Jones involved a direct
p o s s e s s e d , w h i c h i t
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
31Robert 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,
t h e a m p h e t a m i n e p l u s
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
c h a r g e p o s s e s s i o n o f
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
b o t h s t a t u t o r y a n d
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
A.
Sufficiency Analysis
34443 U.S. 307 (1979).
Under Jackson v. Virginia
35Id. at 320.
In reviewing challenges to
36Id.
at
324
n.16
constitutional sufficiency of
(emphasis added).
the evidence, we begin with the
37Id. 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
38Id. 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
b e t w e e n t h e c r i m e ' 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
" a g g r a v a t e d f e l o n y . " 4 2
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
the statute as well. I am
41TEX. HEALTH & SAFETY CODE
satisfied that, for purposes of
ANN. § 481.116 (West 1992).
a Jackson analysis ---- at least
42Subsection (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
39Brown, 937 F.2d at 181.
controlled substance is between
40Jackson, 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
against the governing statute
44See Dowling v. State,
only ---- not the entire body of
885 S.W.2d 103, 109 (Tex. Crim.
p e r t i n e n t s t a t e l a w .
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
43The 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
O u r
B r o w n
o p i n i o n
this case and Brown, I briefly
n o t w i t h s t a n d i n g , t h i s
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
47In 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.
45Cruse, 722 S.W.2d at 780
Brown, 937 F.2d at 177.
(citing Doyle v. State, 661
48Id. at 180.
S.W.2d 726 (Tex. Crim. App.
49Id. at 180. If the
1983)).
state objects to the erroneous
46937 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
53See 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 ----
50661 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
51717 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.
52Benson, 661 S.W.2d at
54Brown, 937 F.2d at 181.
715-16; Boozer, 717 S.W.2d at
55Id. 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
c o n t r a r y t o a c c e p t e d
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
sufficiency of the evidence
57Id. (quoting Nickerson
dichotomy, the one in which the
v. State, 782 S.W.2d 887, 891
defendant benefits from the
(Tex. Crim. App. 1990)).
improper jury charge by getting
58Even more compelling in
a windfall acquittal. Indeed,
this case, however, Bledsue did
object to the improper jury
charge at trial, placing the
56Id. 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
integral, necessary component
59See 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
c o u r t r e e x a m i n e d t h e
satisfied to deal strictly with
Benson/Boozer line of cases,
pure amphetamine (even if,
noting
the
inconsistencies
s u b j e c t i v e l y , o m i t t i n g
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
c o n c l u d e d t h a t t h e
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
60953 S.W.2d 234 (Tex.
Crim. App. 1997).
(...continued)
61The 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.
to do so, because the holding
62The 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.
(continued...)
63Id.
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
T o a l l e v i a t e t h i s
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
a s d e f i n e d b y t h e
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
i n d i c t m e n t , d o e s n o t
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
analysis set forth by Malik,
67See 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
64Id.
liability, such as transferred
45Id. at 240.
intent, need not be alleged in
46Id. (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
reserved for those situations
69Although 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
48Cf. State v. Barrera,
f i n d t h i s c o n c l u s i o n
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,
recklessness could not sustain
71Id. at *2-4.
721998 WL 635306, *2 (Tex.
C t . A p p . S e p t . 1 6 ,
1998)(emphasis added); see also
Williams v. State, 980 S.W.2d
701999 WL 441839 (Tex. Ct.
222, 224-25 n.2 (Tex. Ct. App.
A p p . J u l y 1 , 1 9 9 9 )
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
( t h u s u n d e s e r v i n g o f
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
73119 S. Ct. 1215 (1999).
74Id. 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
57Cf.
id.
at
182-83
(finding no prejudice because
55Brown, 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);
76Brown, 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
58In 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
F o u r t e e n t h A m e n d m e n t ' 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
c o n v i c t i o n b a s e d o n
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.
79For 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

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