WILLIAM EDWARD PLANTER, Appellant

I respectfully dissent. The Court's opinion provides, as a matter of federal constitutional law, the greatest form of appellate relief--an acquittal--to this appellant who clearly is guilty of the charged crime of solicitation of capital murder. The federal constitution does not require this and Malik expressly prohibits it. See Malik v. State, 953 S.W.2d 234, 239 (Tex.Cr.App. 1997) (federal constitutional evidentiary sufficiency review not intended to provide appellate acquittals to defendants who are guilty of the crime charged).

In this case the indictment alleged appellant induced Bacquer to kill Fratta. The jury charge tracked this allegation. There was, however, a variance between the indictment's allegation and the prosecution's trial evidence because this evidence actually proved appellant himself offered to kill Fratta which no one, not even the Court's opinion, claims does not constitute the charged crime of solicitation of capital murder.

In deciding that this guilty-of-the-crime-charged appellant is entitled to an appellate acquittal, the Court's opinion measures evidentiary sufficiency against everything except what Malik requires that evidentiary sufficiency be measured against. The Court's opinion does this by measuring evidentiary sufficiency against the indictment, the actual jury charge and a "hypothetically correct jury charge" incorporating a parties theory. Planter v. State, S.W.2d Slip op. at 5 (Tex.Cr.App. No. 1426-98, delivered this date) ("[b]ecause the evidence presented at trial does not comport with the allegations in the indictment, and because the jury verdict cannot be supported logically by either the actual jury charge or the hypothetically correct jury charge formulated by the Court of Appeals, the Court of Appeals erred in its assessment of the sufficiency of the evidence").

Malik's "one simple, coherent [evidentiary sufficiency] standard," however, clearly requires that evidentiary sufficiency be measured against the "elements of the offense." See Malik, 953 S.W.2d at 240. When measured against this standard, the evidence is more than sufficient to prove appellant guilty of the charged crime of solicitation of capital murder.

The Court's opinion as well as the opinion of the Court of Appeals apparently believe that Malik's "hypothetically correct jury charge for the case" language, ⁽¹⁾ which immediately follows and defines the "sufficiency of the evidence should be measured by the elements of the offense" language in Malik, has some application in cases like this. Malik's "hypothetically correct jury charge for the case" language, however, has no application in cases like this.

Malik contains this "hypothetically correct jury charge for the case" language because the specific error in Malik involved jury charge error ⁽²⁾ which our prior erroneous case law that Malik overruled treated like an element of the offense that the prosecution had to prove to obtain a conviction. See Malik, 953 S.W.2d at 236-39. ⁽³⁾ Malik's "hypothetically correct jury charge for the case language" simply eliminates consideration of these kinds of jury charge errors as part of an evidentiary sufficiency review.

Malik does not require appellate consideration of a "hypothetically correct jury charge for the case" unless the case involves a jury charge error like the one in Malik. And, even then, Malik still makes the "elements of the offense," and not a "hypothetically correct jury charge," the measure of evidentiary sufficiency. See Malik, 953 S.W.2d at 240. The issue is simply whether the evidence is sufficient to support the "elements of the offense." See id.

In deciding appellant is entitled to the remedy of an appellate acquittal, footnote five of the Court's opinion relies on footnote three in Malik which recognizes the general rule that "[a]ppellate affirmance of a conviction on the basis of a charge neither alleged in the indictment not (sic) presented to the jury is constitutionally prohibited." See Planter, S.W.2d at Slip op. at 5 fn 5; Malik, 953 S.W.2d at 238 fn 3. The Court's opinion, however, fails to mention that footnote three of Malik goes on to say that this "rule does not bar retrial of a criminal defendant." See id. The Court's reliance on footnote three of Malik to provide the remedy an appellate acquittal to this guilty-of-the-crime-charged appellant is clearly misplaced. This appellant might be entitled to the remedy of a remand for a new trial because of the variance between the indictment's allegations and the proof at trial, but he is not entitled to the greatest form of appellate relief--an acquittal.

The error in this case involves a variance between the indictment's allegations and the proof at trial and not the prosecution's failure to prove appellant guilty of the crime charged. This, however, is trial error which does not implicate the sufficiency of the evidence to support appellant's conviction. See generally Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (discussing difference between trial error requiring remedy of remand for new trial and legal insufficiency of the evidence requiring an appellate acquittal). And this Court also recently recognized that Malik abrogated the "close to bizarre" evidentiary sufficiency rule in variance cases like Hicks v. State. ⁽⁴⁾ See Rosales v. State, S.W.2d Slip op. at 3 (Tex.Cr.App. No. 73,163, delivered October 13, 1999), and S.W.2d at Slip op. at 1-2 (Womack, J., concurring), and S.W.2d at Slip op. at 4-5 fn 2 (Meyers, J., concurring in the judgment) (recognizing that cases like Hicks are variance cases).

Finally, with its reliance on Malik, the Court's opinion decides appellant is entitled to an appellate acquittal as a matter of federal constitutional law. Malik is a federal constitutional decision, so it could not adopt a different standard of evidentiary sufficiency review than the one set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This means that if the evidence is legally sufficient under Jackson v. Virginia, then it must be sufficient under Malik. See State v. Guzman, 959 S.W.2d 631 (Tex.Cr.App. 1998) (when we apply federal constitutional law, we are bound by United States Supreme Court law interpreting it).

No principle of federal constitutional law requires appellate courts to provide appellate acquittals to defendants, like this appellant, who are guilty of the crime charged. Deciding, therefore, that this appellant is entitled to an appellate acquittal is tantamount to deciding that state courts do not have to follow controlling United States Supreme Court precedents. This position was litigated between 1861 and 1865 and rejected.

I respectfully dissent.

McCormick, Presiding Judge

(Delivered December 15, 1999)

En Banc

Publish

1. See Malik, 953 S.W.2d at 240.

2. See Malik, 953 S.W.2d at 235-36 (involving erroneous jury instruction requiring jury to acquit upon finding that certain evidence was illegally obtained).

3. This case does not involve jury charge error. See Malik, 953 S.W.2d at 240.

4. Hicks v. State, 860 S.W.2d 419, 424 (Tex.Cr.App. 1993).