Bledsue v. Johnson

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 1 petition, which was dismissed by the Court of 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 allowed the jury to include adulterants and denied on the meritsSSthe magistrate judge dilutants, but the instruction on the “less than 28 grams” count did not. 3 The indictment referred to “amphetamine” 2 without the adjective “pure,” but also without TEX. PENAL CODE § 12.42 (West 1994). 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 5 first previous conviction having become 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).

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); Peyton v. Rowe, 391 U.S. 54 (1968); Escobedo v. In reviewing a grant of habeas relief, we 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.

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 have exhausted his state remedies until he has only that [he] was near the scene of the raised his claims before the state’s highest court robbery.” Later, in a federal habeas petition, though collateral review provided by state habeas Brown argued that the prosecution had not 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 9 of Criminal Appeals in both a petition for 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 10 of post-conviction relief need be exhausted, and 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).

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 federal claim was procedurally barred, as it had not that prohibits the Court of Criminal Appeals been made in state court, but we held that a general from entertaining sufficiency of the evidence 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.

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 rule, and the Court of Criminal Appeals procedural bar and is properly before the denied relief “on the findings of the trial court.” federal courts. 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).

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.

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 which the state benefits from the inconsistency. indictment did not state whether the weight Rather, Brown focused on how the evidence included adulterants or dilutants. The supported the substantive elements of the charge, magistrate judge correctly found that in 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 to sustain a conviction, see Jackson, 443 U.S. phrase in the indictment to convict Bledsue, at 318, the key issue is whether “adulterants and because the old requirement of matching the 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.

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 18 victim suffered no serious bodily injury; (2) not 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 where the indictment leaves out a theory of imprisonment if he died as a result of the car- liability. See Harris v. State, 1998 Tex. App. jacking. The Court rejected the government’s LEXIS 3430 (Tex App. SSHouston [14th Dist.] contention that § 2119 be read to create one 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 and dilutants are included in the alleged 1224 n.6. amphetamine possession. Even if Texas courts would require the insertion of such language in the The defendant in Jones was indicted and 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

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” 20 as an essential element of the crime for which 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...)

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.

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 find this assertion 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 21 and the trial court’s jury 119 S. Ct. 1215 (1999).

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 reasonable doubt by years now, this deliberate trivializing the omission of intertwining of federal the integral statutory constitutional law and state component, “including 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 plethora of factual 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 22 In re Winship, 397 U.S. 358, 364 (1970). 23 937 F.2d 175 (5th Cir. 25 Id. at 324. 26 1991). Id. at 324 n. 16 24 433 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 diametrically opposite 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 27 Brown, 937 F.2d at 182. the basis of a procedural 28 Id. at 181-82. technicality, but because the

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 29 953 S.W.2d 234 (Tex. 30 Crim. App. 1997). Id. at 239-40.

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 32 elements, however, the majority Jones, 119 S. Ct. at sees a distinction between the 1228. 33 amount of amphetamine Jones involved a direct possessed, which it 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 31 Robert 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...)

convinced that the same ways: the amphetamine alone or reasoning applies. As such, the amphetamine plus 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 charge possession of 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

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 both statutory and 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 34 A. Sufficiency Analysis 443 U.S. 307 (1979). 35 Under Jackson v. Virginia Id. at 320. 36 In reviewing challenges to Id. at 324 n.16 constitutional sufficiency of (emphasis added). 37 the evidence, we begin with the Id. at 316, 324 n.16.

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

38 Id. at 323-24 (citations omitted) (emphasis added).

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 between the crime’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 “aggravated felony.”42 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 41 the statute as well. I am TEX. HEALTH & SAFETY CODE satisfied that, for purposes of ANN. § 481.116 (West 1992). 42 a Jackson analysis —— at least Subsection (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 39 Brown, 937 F.2d at 181. controlled substance is between 40 Jackson, 443 U.S. at 28 and 400 grams or greater 323-24 (emphasis added). than 400 grams.

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 44 against the governing statute See Dowling v. State, only —— not the entire body of 885 S.W.2d 103, 109 (Tex. Crim. pertinent state law. 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 43 The 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).

beyond a reasonable doubt.”45 distinguishing features between Our Brown opinion this case and Brown, I briefly notwithstanding, this 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 47 In 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. 45 Cruse, 722 S.W.2d at 780 Brown, 937 F.2d at 177. 48 (citing Doyle v. State, 661 Id. at 180. 49 S.W.2d 726 (Tex. Crim. App. Id. at 180. If the 1983)). state objects to the erroneous 46 937 F.2d 175 (5th Cir. jury charge and the court 1991). (continued...)

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

53 See 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 —— 50 661 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 51 717 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. 52 54 Benson, 661 S.W.2d at Brown, 937 F.2d at 181. 55 715-16; Boozer, 717 S.W.2d at Id. at 182 (emphasis 610-12. added).

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 contrary to accepted 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 57 sufficiency of the evidence Id. (quoting Nickerson dichotomy, the one in which the v. State, 782 S.W.2d 887, 891 defendant benefits from the (Tex. Crim. App. 1990)). 58 improper jury charge by getting Even more compelling in a windfall acquittal. Indeed, this case, however, Bledsue did object to the improper jury charge at trial, placing the 56 Id. at 180. (continued...)

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 59 integral, necessary component See 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)).

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 court reexamined the satisfied to deal strictly with Benson/Boozer line of cases, pure amphetamine (even if, noting the inconsistencies subjectively, omitting 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 concluded that the 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 60 953 S.W.2d 234 (Tex. Crim. App. 1997). (...continued) 61 The 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. 62 to do so, because the holding The 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. 63 (continued...) Id.

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 To alleviate this 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 as defined by the 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 indictment, does not 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 67 analysis set forth by Malik, See 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 64 Id. liability, such as transferred 45 Id. at 240. intent, need not be alleged in 46 Id. (emphasis added). the indictment).

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 69 reserved for those situations Although 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 48 Cf. State v. Barrera, find this conclusion 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.

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, 71 recklessness could not sustain Id. at *2-4. 72 1998 WL 635306, *2 (Tex. Ct. App. Sept. 16, 1998)(emphasis added); see also Williams v. State, 980 S.W.2d 70 1999 WL 441839 (Tex. Ct. 222, 224-25 n.2 (Tex. Ct. App. App. July 1, 1999) 1998) (“[A] hypothetically (unpublished). (continued...)

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 (thus undeserving of 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).

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

73 119 S. Ct. 1215 (1999). 74 Id. 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).

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

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 57 Cf. id. at 182-83 (finding no prejudice because 55 Brown, 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); 76 Brown, 937 F.2d at 182. Clark, 737 F.2d at 475-76 (same).

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 58 In 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).

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 Fourteenth Amendment’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 conviction based on 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

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.

79 For 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.

Footnotes

[15] 16 The Court of Criminal Appeals has called 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.”).