This case is easily resolved by reference to Gollihar v. State, 46 S.W.3d 243 (Tex. Cr. App. 2001), in which stolen property was alleged by its generic name, brand name, and model number, but the evidence proved its generic name, brand name, and a different model number. We held in Gollihar that the case presented an immaterial variance that concerned the defendant's right to notice of the particular charge against him, not a failure of proof that should result in an acquittal.

Likewise, as we hold today, this case presents a variance, not a failure of proof, and the variance is immaterial. In this case the State alleged the victim by his full name -- first name, middle initial, and last name -- but the witnesses referred to him by his last name and his nickname. The appellant says the evidence is therefore legally insufficient and he should have an acquittal. We are unanimous in holding that his argument is wrong, just as Gollihar's was. The disagreement among us is over two statements in the Court's opinion: one about Malik v. State ⁽¹⁾ and the other about Jackson v. Virginia. ⁽²⁾

The first statement is, "Gollihar rejected the view that Malik was a federal constitutional decision which adopted only the Jackson v. Virginia evidentiary sufficiency standard. See Gollihar 46 S.W.3d at 252-57, 255-56 fn 20, 255." ⁽³⁾ This statement is wrong as a matter of historical fact.

This is shown on one of the very pages in Gollihar that the Court cites, where we explicitly said our holding was made "in light of our stated policy in Malik to bring our state courts' sufficiency review in line with Jackson and federal constitutional requirements." ⁽⁴⁾ The Court does not say how and why it reads these words (and those on the other pages it cites) as "rejecting" that policy. In fact, the Court does not quote any words of Gollihar, much less explain how they cut Malik loose from the Due Process Clause. I have read the pages the Court cites, and I say with respect that I do not see that they did any such thing.

It is clear to me that Malik was a due-process decision, the point of which was that evidence is sufficient if it meets the due-process standard regardless of whether it met the higher standard imposed by an erroneous charge. It is significant that the Presiding Judge, who wrote Malik, agrees. ⁽⁵⁾

To support its contrary proposition, the Court refers to Gollihar ⁽⁶⁾ and two Fifth Circuit decisions. ⁽⁷⁾ I believe that the Court has misread those cases.

The Court says that Gollihar "rejected" the notion that Malik was limited to cases of erroneous charges. True. The court's charge in Malik incorrectly told the jury to acquit if it did not find reasonable suspicion for a traffic-stop. ⁽⁸⁾ The charge in Gollihar told the jury to acquit if it did not find the appellant had stolen the property as it was alleged, including the model number; ⁽⁹⁾ this was not incorrect, just unnecessarily specific. ⁽¹⁰⁾ But that has nothing to do with Malik's employing, or not employing, the due-process standard. It means only that the Malik standard applies to all cases.

The Fifth Circuit opinion in Brown v. Collins that the Court cites is directly opposed to what the Court says today. Brown not only supports the position that Malik is a due-process case; Brown IS Malik.

Brown tried to get the federal habeas court to adopt the pre-Malik standard to review the evidence in his case; that is, he wanted the federal court to measure the evidence in his case against the erroneous jury charge that the trial court gave. The court of appeals refused to do this, saying that the Court of Criminal Appeals could do that if state law compelled it, but the constitutional method used the correct elements of the offense as a standard.

[Brown] finds support for this argument in a line of Texas cases which hold that the evidence presented at trial must conform to the theory of responsibility in the jury charge given, failing which, the court must enter a judgment of acquittal. See … Benson v. State, 661 S.W.2d 708 (Tex. Cr. App. 1982), cert. denied, 467 U.S. 1219 (1984). …

We agree with Brown that under …Benson his conviction would not withstand a sufficiency challenge in the Texas courts. …

Brown's contention that … Benson [and other cases] expose the insufficiency of the evidence presented against him overlooks the core issue in this habeas appeal: whether the evidence was constitutionally sufficient to convict him of the crime charged, not whether a state appellate court would have reversed his conviction on the basis of a state procedural nuance foreign to federal constitutional norms.

To determine sufficiency of a state conviction as a matter of constitutional law, we look merely to the "substantive elements of the criminal offense as defined by state law," Jackson, 443 U.S. at 324 n.16 (emphasis added), not, as Brown suggests, to a State's procedural requirements. ⁽¹¹⁾

This is exactly what we did in Malik. We noted that Benson was incorrect when it claimed to be consistent with Jackson, the standard of which was "the essential elements of the crime." ⁽¹²⁾ We overruled Benson, and held that sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case." ⁽¹³⁾ It is Benson that was foreign to federal constitutional norms, and Brown and Malik that applied those norms. It seems to me that the citation to Brown refutes the Court's statement rather than supporting it. The federal court said in Brown that Texas' pre-Malik standard was not the constitutional standard. That's the whole point of Malik; to adopt the constitutional standard instead of the previous standard.

Bledsue is not much help to the Court's position, either. Bledsue was convicted in a Texas court of possessing 28 grams or more of amphetamine, a controlled substance. Although the Controlled Substances Act made it an aggravated offense to possess a controlled substance if "the amount of the controlled substance possessed is, by aggregate weight, including any adulterants or dilutants, 28 grams or more," ⁽¹⁴⁾ neither the indictment nor the court's charge mentioned adulterants or dilutants. They spoke only of 28 grams of "amphetamine." It was undisputed in the federal habeas court that Bledsue possessed no more than 17 grams of amphetamine, although the adulterants and dilutants with which it was mixed brought the weight over 28 grams. Like Brown, Bledsue wanted the federal courts to measure the sufficiency of the evidence by this Court's standard -- Malik. ⁽¹⁵⁾

The court of appeals seemed to view Malik as insufficient because it would be too dependent on the indictment.

In many cases, the Malik rule will produce an accurate list of the "essential elements" that Jackson requires federal courts to review during habeas proceedings. Jackson, however, does not necessarily require that, for constitutional sufficiency, the elements stated in the indictment govern which "essential elements" must be measured against the evidence. Jackson requires only that the review occur "with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16. ⁽¹⁶⁾

The court of appeals found it unclear whether Malik would use a hypothetically correct jury charge that was based on a hypothetically correct indictment or one that was based on the actual indictment. ⁽¹⁷⁾ "At the very least, when the indictment raises ambiguities as to what the hypothetically correct jury charge should be, the Malik approach does not resolve a federal habeas court's inquiry into what are the essential elements of state law we should use to review Bledsue's conviction." ⁽¹⁸⁾

This quandary teaches us, on habeas review, to maintain our own notions of constitutional sufficiency that are not overly dependent on state law doctrines such as Malik. Rather, federal habeas courts should independently analyze the governing statute, the indictment, and the jury charge to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson inquiry. ⁽¹⁹⁾

Malik said "we recognize that measuring sufficiency by the indictment is an inadequate substitute [for Benson] because some important issues relating to sufficiency -- e.g. the law of parties and the law of transferred intent -- are not contained in the indictment. Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." ⁽²⁰⁾

This seems to me to be essentially identical to the Bledsue opinion's exposition of the constitutional standard of Jackson (which Malik repeatedly said it wanted to follow). The majority of the divided panel in Brown may have thought Malik could be read otherwise; that is, read to use a standard other than Jackson's. But if it is read correctly, there is no difference between Malik and Jackson.

As the Court reads Jackson, "state law" must mean only the penal statute, and general terms in the statute can never be limited by a particular description from the indictment. "State law does not define the victim's name as a substantive element of the offense by, for example, defining the offense as 'injury to an elderly individual named Olen M. Fuller.'" ⁽²¹⁾ So this problem is just a variance, not a due-process violation.

Let us apply the Court's reasoning to another statute, which defines the federal offense of "false declarations before grand jury or court": "Whoever under oath … in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration … shall be fined under this title or imprisoned not more than five years, or both." ⁽²²⁾

Let us suppose a person is indicted for making false declarations in testimony before a grand jury. The indictment alleges the grand-jury testimony was inconsistent with statements made "on September 30, while under oath as a witness in a proceeding ancillary to [a court proceeding] to the degree that one of said declarations was false." The evidence is that the person made inconsistent statements not only in the September 30 proceeding, but also in a pre-trial hearing on October 21. It turns out that the September 30 proceeding did not qualify as a "proceeding ancillary" to the court proceeding, but the October 21 hearing clearly was part of the court proceeding.

Under the Court's view of Jackson, a federal court, applying Jackson, should hold that the evidence was sufficient because the perjury statute does not define "any proceeding before or ancillary to any court" as "a proceeding on September 30," so that was not an element of the offense. Any inconsistent statement in any court proceeding would meet the standard of the Due Process Clause, and this was just a variance.

Actually one did so hold, and it was reversed by the Supreme Court. Without dissent. ⁽²³⁾ With the agreement of the government.

In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner's statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury. Indeed, the October 21 testimony was introduced by the Government only in rebuttal to dispel any inference that petitioner's grand jury testimony was true. But while there was no variance between the indictment and proof at trial, there was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner's conviction. Whereas the jury was instructed to rest its decision on Dunn's September statement, the Tenth Circuit predicated its affirmance on petitioner's October testimony. The Government concedes that this ruling was erroneous. We agree.

To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused. There is, to be sure, no glaring distinction between the Government's theory at trial and the Tenth Circuit's analysis on appeal. The jury might well have reached the same verdict had the prosecution built its case on petitioner's October 21 testimony adopting his September 30 statement rather than on the September statement itself. But the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. As we recognized in Cole v. Arkansas, 333 U.S. [196 (1948)], at 201, "[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." Thus, unless the September 30 interview constituted an ancillary proceeding, petitioner's conviction cannot stand. ⁽²⁴⁾

In holding that there was a denial of due process, the Supreme Court looked, not just to the penal statute, but to the indictment and the charge. That is the Malik approach. The one the Court advances today is not.

I agree with the Court that the problem in this case is variance, not insufficiency, and that the conviction should be affirmed. But I cannot agree with the Court's reasoning. I join only its judgment.

En banc.

Date filed March 27, 2002.

Publish.

1. 953 S.W.2d 234 (Tex. Cr. App. 1997).

2. 443 U.S. 307 (1979).

3. Ante at 3.

4. Gollihar, 46 S.W.3d at 257.

5. See ante (concurring opinion of Keller, P.J.).

6. "Gollihar further rejected the notion that Malik's 'hypothetically correct jury charge for the case' language did not apply in a sufficiency analysis unless the case involved a jury charge error like the one in Malik. Compare Gollihar [citing the same pages] with, Planter v. State, 9 S.W.3d 156, 159-61 (Tex. Cr. App. 1999) (McCormick, P.J., dissenting) (setting out the view which Gollihar rejected)." Ante at 3.

7. "Thus, Malik's evidentiary sufficiency standard [i]s a purely state law standard that is 'foreign to federal constitutional norms.' Compare Malik, 953 S.W.2d at 238; Bledsue v. Johnson, 188 F.3d 250, 257-62, 60 (5th Cir. 1999) (characterizing Malik's evidentiary sufficiency standard as a state law doctrine); Brown v. Collins, 937 F.2d 175, 182 (5th Cir. 1991) (characterizing pre-Malik evidentiary sufficiency standard as a 'state procedural nuance foreign to federal constitutional norms' even though our decisions claimed this standard was consistent with federal constitutional law)." Ante at 3-4.

8. See Malik, 953 S.W.2d at 236.

9. See Gollihar, 46 S.W.3d at 244.

10. See id. at 256.

11. Brown, 937 F.2d at 180-81 (footnote omitted).

12. Malik, 953 S.W.2d at 236-37.

13. Id. at 240 (emphasis added).

14. See Act of June 17, 1983, 68th Leg., R.S., ch. 425, § 10, 1983 Tex. Gen. Laws 2361, 2381, repealed by Health & Safety Code Act, 71st Leg, R.S., ch. 678, § 1, sec. 481.116, 1989 Tex. Gen. Laws 2230, 2937.

15. See Bledsue, 188 F.3d at 258.

16. Id. at 259.

17. Id. at 259-60.

18. Id. at 260.

19. Ibid.

20. Malik, 953 S.W.2d 239-40 (citation and footnote omitted, emphasis added).

21. Id. at 4.

22. 18 U.S.C. § 1623(a).

23. Justice Powell did not take part; the other members of the Court joined the opinion.

24. Dunn v. United States, 442 U.S. 100, 105-07 (1979) (citations and footnote omitted).