Affirmed and Majority and Concurring Opinions filed May 1, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00088-CR

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JASON EARL WOOLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 997,161

C O N C U R R I N G   O P I N I O N

I respectfully concur.  I believe that the majority has gone beyond appropriate application of Malik v. State when it reviews the factual sufficiency of the evidence against a hypothetically correct jury charge as opposed to against the charge actually given.

In Malik, the trial court charged the jury that the legality of the defendant=s detention was a prerequisite for conviction.  953 S.W.2d 234, 235 (Tex. Crim. App. 1997).  The court of appeals reversed and acquitted, finding that the evidence was legally insufficient to show reasonable suspicion to justify a traffic stop.  Id.  The Court of Criminal Appeals reversed, holding that the legality of the defendant=s detention was not an element of the offense and should not have been considered in reviewing the sufficiency of the evidence to sustain the conviction.  Id. at 240.  The Court fashioned a new standard of review for sufficiency of the evidence: it discarded the former rule measuring evidence against the charge as given and instead mandated examination of the evidence in the light of a hypothetically correct charge.  Id.

In this landmark opinion, the Court of Criminal Appeals revisited the Benson/Boozer line of cases, which measured sufficiency of the evidence Aby the jury charge if that charge is more favorable to the defendant than the law requires and if the State fails to object.@  Malik, 953 S.W.2d at 235 (citing Boozer v. State, 717 S.W.2d 608 (Tex. Crim. App. 1984), and Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982)).^[1]  The Court recognized the dilemma faced by the State under this principle: that if evidence was not legally sufficient as compared to an erroneous charge, even if it were sufficient as compared to the statutory elements of the offense, a conviction was reversed and acquittal ordered because of trial error, not because of insufficiency of the evidence.  Benson/Boozer permits, indeed contemplates, that convicted persons who are guilty of the charged offense may be acquitted on appeal based on an erroneous and/or unnecessary instruction in the jury charge to which the State failed to object.  This result represents nothing less than a defendant=s windfallCan acquittal based on mere charge error, for which the historic remedy is remand for new trial.  Accordingly, the Malik court overruled the Benson/Boozer line of cases and announced that henceforth, the legal sufficiency of the evidence would be measured against Athe 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 necessarily increase the State=s burden of proof or unnecessarily restrict the State=s theory of liability, and adequately describes the particular offense for which the defendant was tried.@  Malik, 953 S.W.2d at 241.  It is clear that in Malik, the Court of Criminal Appeals addresses only the standards for legal sufficiency review.  Its occasional use of the less specific phrase Asufficiency of the evidence@ notwithstanding, legal sufficiency was unquestionably the issue at hand.^[2]

The primary basis of Malik=s directive to use a hypothetically correct jury charge in assessing sufficiency of the evidence is the Jackson standard: Awhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).  Legal sufficiency review (or in federal cases, sufficiency review) is not particularly concerned with what charge was actually given to the jury; instead, it is concerned with whether the evidence established the essential elements of the offense.^[3]  See  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).  The standard does not focus on the actual jury in the case, the actual charge, or the actual verdict; it posits the review of Aany rational trier of fact@ of the Aessential elements@ of the offense.  Thus, reviewing the evidence against a hypothetically correct charge in the legal sufficiency context makes logical sense.

The reasoning in MalikCthat the issue in legal sufficiency review is whether the evidence establishes the essential elements of the offense beyond a reasonable doubtCis a poor fit in factual sufficiency analysis, where the standard of review is whether Athe great weight and preponderance of the . . . evidence contradicts the jury=s verdict.@  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (emphasis omitted and added).  A[N]othing about Jackson impacts the legitimacy or fate of factual-sufficiency review in criminal cases in Texas.@  Id. at 412.  The context of factual sufficiency review stands in stark contrast to that of legal sufficiency review.  The question of whether the evidence is constitutionally sufficient is unrelated to the question of how rationally the verdict was actually reached.  Jackson, 443 U.S. at 319 n.13, 99 S.Ct. at 2789 n.13.  Where legal sufficiency review essentially ignores the jury (except for the fact that there was a conviction) and considers whether the evidence establishes the essential elements of the offense, factual sufficiency review respects the jury=s decision and is, indeed, a direct review of the jury=s verdict itself.

Accordingly, legal sufficiency is not concerned with the actual charge given but rather with a hypothetically correct charge focusing on the elements of the offense.  Factual sufficiency, on the other hand, is directly tied to the charge given.  Where, as here, the jury was asked a specific factual question, i.e., whether appellant was a party to an offense committed by a specific primary actor, the only way to assess whether the verdict was supported by evidence is to consider the charge actually given.  By inserting a hypothetically correct charge into its factual sufficiency analysis, the majority reviews a question that was never posed to the jury, i.e., whether appellant was a party to an offense committed by Aanother person@ (i.e., not necessarily Pablo Velez, Jr.).

The extension of Malik and the hypothetically correct jury charge into the realm of factual sufficiency review is hardly unique to the majority.  Many Texas Courts of Appeals have opined that Malik applies as equally to factual sufficiency challenges as to legal sufficiency challenges.  The majority here states the matter as honestly as any court has or could:  AWe continue to assume that Malik applies to both legal and factual sufficiency review, though the Court of Criminal Appeals has only expressly applied it to the former.@  Maj. Op. supra at *3, n.1 (citing Villani v. State, 116 S.W.3d 297, 307 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d)).  Most courts that have applied Malik principles in the factual sufficiency context have either simply cited Malik directly for the proposition,^[4] or cited other courts of appeals= cases for the proposition.^[5]  The closest any court has come to cogent analysis of the issue is the Dallas Court of Appeals= statement in Reaves v. State, that A[a]lthough Malik involved a challenge to the legal sufficiency of the evidence, we discern nothing in the opinion that limits its holding to that category of sufficiency challenges.@  970 S.W.2d 111, 116 (Tex. App.CDallas 1998, no pet.).^[6]

I recognize that creating two different and possibly contradictory standards of measurement of evidentiary sufficiency (one for legal sufficiency challenges and one for factual sufficiency challenges), could generate at least a practical complication.  Courts of appeals decisions considering legal and factual sufficiency challenges could become considerably more involved, at least in cases where the hypothetical and actual charges are not identical.  Under the current scheme, legal and factual sufficiency reviews are often conducted in one analysis with both standards in mind, usually for simplicity=s sake or because the appellant does not make separate arguments.  Yet notwithstanding the convenience factor, as Judge Cochran recognized in Watson, A[i]t is essential that evidentiary hurdles like Jackson and Clewis be easily distinguishable.  If they are not easily and logically distinguishable, allowing both to apply muddles the law[.]@  Watson, 204 S.W.3d at 423 (Cochran, J., dissenting).  I believe that two complete and separate reviews should be required whenever the hypothetically correct charge differs from the actual charge given.^[7]

However, because I believe that the evidence in this case was factually sufficient to sustain the conviction under either a hypothetically correct charge or the charge actually given, I concur in the judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Majority and Concurring Opinions filed May 1, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. (Fowler, J. majority).

Publish C Tex. R. App. P. 47.2(b).