Bledsue v. Johnson ( 1999 )

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. 1845TEX. PENAL CODE § 12.42(d). (1998).
2
treated the second claim as an overall those factual determinations are clearly
challenge to the sufficiency of the evidence. erroneous.” Id. at 169. Additionally,
Bledsue’s federal habeas claim is governed by
Ultimately, the magistrate judge the Anti-Terrorism and Effective Death
recommended granting the writ, finding the Penalty Act (“AEDPA”), under which federal
evidence constitutionally insufficient in that the courts can grant habeas relief only if the state
state was bound by its indictment, which court’s adjudication on the merits “resulted in
charged the possession of at least 28 grams of a decision that was contrary to, or involved an
amphetamine but made no mention of unreasonable application of, clearly established
adulterants or dilutants. Because the federal law, as determined by the Supreme
undisputed evidence indicated that Bledsue Court of the United States.” 28 U.S.C. §
possessed, at most, 17 grams of pure 2254(d)(1) (1996).6
amphetamine, the magistrate judge
recommended a judgment of acquittal, but III.
allowing the state 120 days to retry on the As the state correctly notes, the scope of
lesser charge of possessing less than 28 grams. federal habeas review is limited by the
The state objected on only the sufficiency intertwined doctrines of procedural default and
claim, but the district court denied the exhaustion. Procedural default exists where
objection and adopted the recommendation. (1) a state court clearly and expressly bases its
dismissal of a claim on a state procedural rule,
The state challenges on three fronts. First, and that procedural rule provides an
it argues that the court improperly granted independent and adequate ground for the
relief based on insufficient weight of drugs to dismissal,7 or (2) the petitioner fails to exhaust
convict, given that Bledsue had argued, to the all available state remedies, and the state court
state courts, only insufficient evidence of to which he would be required to petition
intent. If, however, the weight claim was would now find the claims procedurally
contained in his second state habeas petition, barred. See Coleman, 501 U.S. at 735 n.1. In
the state contends, then Bledsue’s state either instance, the petitioner is deemed to
petition was dismissed on a procedural rule have forfeited his federal habeas claim. See
rather than on the merits, resulting in a bar to generally O'Sullivan v. Boerckel, 119 S. Ct.
consideration in federal court. 1728 (1999).
Second and alternatively, the state argues
that if the weight claim is in a proper In its original answer to the federal habeas
procedural posture for federal consideration, petition, the state admitted “that Bledsue has
then under a constitutional sufficiency of the sufficiently exhausted his state remedies as
evidence test, the evidence adduced at trial required by 28 U.S.C. § 2254(b) and (c).”
was sufficient to prove possession of at least
28 grams. Third, the state urges that even if
the evidence was constitutionally deficient, any 6
See Jackson v. Johnson, 150 F.3d 520, 522
error is harmless, because Bledsue was (5th Cir. 1998), cert. denied, 119 S. Ct. 1339undeniably 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.
3
Consequently, the state has waived any state, the district court granted relief on an
independent exhaustion argument, as well as issue advanced only in Bledsue’s third habeas
the exhaustion argument included within the petition, which was expressly dismissed on the
doctrine of procedural defaultSSspecifically, independent and adequate state law ground of
ground (2) above.8 We therefore consider abuse of the writ.
only whether Bledsue’s claim is procedurally
barred under ground (1), i.e., whether the state The district court, however, concluded that
court expressed an independent and adequate the overall issue of sufficiency of the
state law ground for dismissal. evidenceSSnot just sufficiency as to the issue
of intentSSwas presented in Bledsue’s direct
According to the state, the district court appeal and in his second state habeas petition.
should have refused to consider Bledsue’s We agree. Although we recognize that the
sufficiency claim regarding the weight of the plain language of Bledsue’s direct state appeal
amphetamine, because the only time Bledsue and second state habeas petition did not
raised any issue regarding weight was in his explicitly pinpoint the issue of weight, his
third state habeas petition, which was claim of insufficient proof of intent implicitly
expressly dismissed on an independent and presented the issue of weight. Admittedly, we
adequate procedural ground (successive so conclude generously, because Bledsue is a
writs). The state asserts that in his direct pro se petitioner, and in this circuit pro se
appeal to the intermediate state court of habeas petitions are construed liberally and are
appeals and in his second habeas petition to not held to the same stringent and rigorous
the Court of Criminal Appeals, Bledsue standards as are pleadings filed by lawyers.9
focused only on the intent element and raised To that end, we accord Bledsue’s state and
no challenge to the sufficiency of the evidence federal habeas petitions a broad interpretation,
regarding weight. Consequently, contends the notwithstanding the later appointment of
counsel.10
Accordingly, finding guidance from Brown
8
Both in oral argument and in its brief, the state v. Collins, 937 F.2d 175 (5th Cir. 1991), we
insists that Bledsue’s failure to seek discretionary conclude that Bledsue amply raised an overall
review constitutes procedural default. See challenge to the sufficiency of the evidence in
Richardson v. Procunier, 762 F.2d 429, 432 (5th his state petitions. The petitioner in Brown
Cir. 1985) (“We hold that a Texas inmate seeking argued on direct appeal to the state court that
federal habeas relief who, in directly appealing his the state had failed to carry its burden of
state criminal conviction, has by-passed the Texas proving armed robbery, because it had “proved
Court of Criminal Appeals will not be deemed to
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).
4
Even though the state petition challenged a On the same day Coleman was decided, the
different element of armed robbery, we held Court issued Ylst v. Nunnemaker, 501 U.S.
that the federal challenge to the sufficiency of 797 (1991), which clarifies Coleman and
the evidence was subsumed within Brown’s addresses the problem that arises when a state
sufficiency claim on direct appeal. See Brown, court issues an unexplained order, neither
937 F.2d at 179. Guided by Brown, we disclosing nor insinuating the reason for its
likewise find that the mainstay of Bledsue’s judgment. The Court created a presumption
direct appeal and state habeas petition was a to be applied by federal courts when they are
challenge to the overall sufficiency of the unable to determine whether the state court
evidence to sustain his conviction for opinion “fairly appeared to rest primarily upon
possession of twenty-eight grams or more of federal law.” See id. at 803 (quoting
amphetamine.11 Coleman, 501 U.S. at 740).
We now consider whether the Court of Termed the “look through” doctrine, this
Criminal Appeals clearly and expressly presumption enables federal courts to
dismissed Bledsue’s claim on an “independent ignoreSSand hence, look through SSan
and adequate” state procedural ground, such unexplained state court denial and evaluate the
that the claim is procedurally barred in federal last reasoned state court decision. When one
court, when it denied his application “without reasoned state court decision rejects a federal
written order.” Drawing from a long line of claim, subsequent unexplained orders
precedent, the Court in Coleman v. Thompson, upholding that judgment or rejecting the same
501 U.S. 722 (1991), elaborated on the claim are considered to rest on the same
“independent and adequate” state law ground as did the reasoned state judgment.
doctrine, which aids federal courts in The Court explained:
determining when to exercise habeas review.
The Court held: The maxim is that silence implies
consent, not the oppositeSSand courts
In habeas, if the decision of the last state generally behave accordingly, affirming
court to which the petitioner presented without further discussion when they
his federal claims fairly appeared to rest agree, not when they disagree, with the
primarily on resolution of those claims, reasons given below. The essence of
or to be interwoven with those claims, unexplained orders is that they say
and did not clearly and expressly rely on nothing. We think that presumption
an independent and adequate state law which gives them no effectSSwhich
ground, a federal court may address the simply “looks through” them to the last
petition. reasoned decisionSSmost nearly reflects
the role they are ordinarily intended to
Id. at 735. play.
Id. at 804.
11
See also Vela v. Estelle, 708 F.2d 954 (5th
Cir. 1983), on which the district court relied. The Court of Criminal Appeals responded
There, a pro se petitioner filed a federal habeas to Bledsue’s second habeas petition by simply
claim alleging ineffective assistance of counsel, but stating, “Application denied without written
the petition alleged a number of trial errors that order.” The state argues that this denial stems
were not specifically mentioned in his state habeas from the longstanding Texas procedural rule
claim. See id. at 957-58. The state argued that the
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.
5
claims on habeas review.12 habeas application, thereby signifying its
rejection of the meritsSSalbeit for no additional
Although the Court of Criminal Appeals reasons, but certainly not expressly on the
generally refuses to entertain sufficiency basis of an independent and adequate state
challenges on collateral review, the mere procedural ground. Under Coleman, we must
existence of a procedural default does not treat this “denial” as a merits adjudication of
deprive federal courts of jurisdiction. See Bledsue’s state habeas petition that raised the
Shaw v. Collins, 5 F.3d 128, 131 (5th Cir. same constitutional challenge to the sufficiency
1993). Quite to the contrary, to prohibit our of the evidence as he raised in the district court
collateral review the state court must have and as he brings to us today.14
expressly relied on the procedural bar as the
basis for disposing of the case. Here, the Additionally, under Ylst, we must “look
disposition by the Court of Criminal Appeals through” the Texas court’s denial to the ruling
presented no such expression and no of the last state court to render a reasoned
explanation, so we cannot identify the element decision. When we do so, we find that the
of clear and express reliance on a state state court denied Bledsue’s requests not on a
procedural rule to preclude review in federal procedural ground but on the merits.
court.
The intermediate state court of appeals, on
Indeed, the Court of Criminal Appeals has direct review, conducted a sufficiency of the
explained that “‘[i]n our writ jurisprudence, a evidence examination in which it noted that
“denial” signifies that we addressed and “we must review all of the evidence in the
rejected the merits of a particular claim while light most favorable to the verdict.” Although
“dismissal” means that we declined to consider that court ultimately found the evidence
the claim for reasons unrelated to the claim’s sufficient to establish guilt, it nevertheless
merits.’”13 Here, that court “denied” the performed an analysis on the merits to reach
that finding. As we “look through” the denial
by the Court of Criminal Appeals to the
12
See Renz v. Scott, 28 F.3d 431, 432 (5th Cir. reasoned intermediate appellate opinion, we
1994); Clark v. Texas, 788 F.2d 309, 310 (5th Cir. again conclude that Bledsue’s claim was
1986); Ex parte McWilliams, 634 S.W.2d 815, denied on the merits, i.e., was not denied on an
818 (Tex. Crim. App. 1982). The state’s reliance independent and adequate state ground. We
on Renz is misplaced. There, the state habeas trial therefore conclude that the sufficiency of the
court refused to reach the sufficiency of the evidence claim does not fall prey to the
evidence claim explicitly based on a state
procedural 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).
6
though his jury charge allowed the state to instructions on this theory.16
include adulterants and dilutants in calculating Similarly, the statute used to convict
the total weight of amphetamine, Bledsue Bledsue authorized the inclusion of adulterants
points out that Texas courts have required jury and dilutants in calculating the amount
charges to correspond to the elements of the possessed, and the charge gave instructions to
offense set forth in the indictment.15 Relying consider “adulterants and dilutants”.
on this rule, Texas courts have specifically held Therefore, Brown requires reversal of habeas
that for a conviction to survive a sufficiency relief here, because Bledsue has not shown
challenge, the phrase “adulterants and that the omission of the phrase “adulterants
dilutants” must be included in both the and dilutants” in his indictment is anything
indictment and the charge. See Dowling v. more than a violation of the Benson/Boozer
State, 885 S.W.2d 103, 109 (Tex. Crim. App. rule unworthy of habeas relief.
1992). Therefore, Bledsue avers that the
evidence was insufficient to convict him under B.
Jackson, because “no rational trier of fact Bledsue argues, however, that Malik v.
could have found proof beyond a reasonable State, 953 S.W.2d 234 (Tex. Crim. App.
doubt” that he was guilty of the essential 1997), modifies the Benson/Boozer rule and
elements of the crime for which he was elevates it from a procedural nuance to an
charged: possessing 28 or more but less than essential element requiring federal habeas
400 grams of amphetamine. See Jackson, 443 protection. Essentially, Bledsue asks us to
U.S. at 324. overrule Brown on the basis of the change in
Texas law effected in Malik. We decline,
A. however, to expand the scope of our review of
This court last considered the effect of the Texas cases by incorporating the Malik rule
Benson/Boozer rule on federal habeas review into our federal habeas jurisprudence.
in Brown, in which a defendant sought habeas
relief because the theory of liability in the jury In Malik, id. at 240, the court abolished the
charge differed from that presented at trial. “Benson/Boozer” rule in favor of a rule
The Brown court, 937 F.3d at 182, squarely requiring sufficiency of the evidence to be
held that a technical violation of the measured by the “elements of the offense as
Benson/Boozer rule “does not rise to [the] defined by the hypothetically correct jury
constitutional heights” justifying federal habeas charge for the case.” A “hypothetically
intervention. Obedient to Jackson, we held correct jury charge . . . accurately sets out the
that on habeas review, federal courts should law, is authorized by the indictment, does not
look only to the substantive elements of the unnecessarily increase the State’s burden of
offense defined by state law, and not to state proof or unnecessarily restrict the State’s
procedural requirements, when measuring the theories of liability, and adequately describes
sufficiency of the evidence. See Brown, id. at the particular offense for which the defendant
181. Conceding that Brown had shown a was tried.” Id. Bledsue reasons that because
violation of state law, we nevertheless denied this new standard requires the state to prove
habeas relief, because the statute used to the elements of the crime set forth in the
convict permitted conviction based on the indictment, a failure to meet the Malik
theory of liability presented at trial and standard is tantamount to failing the
because the jury charge gave general constitutional sufficiency-of-the-evidence test.
15 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.”).
7
Bledsue contends that, in general, Malik in the indictment govern which “essential
actually benefits the state, because the state elements” must be measured against the
simply has to prove the elements in the evidence. Jackson requires only that the
indictment. Thus, unlike defendants subject to review occur “with explicit reference to the
the “Benson/Boozer” doctrine, defendants substantive elements of the criminal offense as
post-Malik cannot challenge convictions of defined by state law.” Jackson, 443 U.S. at
illegal handgun possession on the basis of 324 n.16.
concerns over the legality of their detention,
because the detention is not an essential Although the indictment is central to
element discussed in the indictment. See figuring out which laws are being charged, an
Malik, 953 S.W.2d at 240. Similarly, the ambiguously drafted indictment may make it
defendant in Brown would not have been able difficult to identify which “substantive
to challenge the theory of liability raised in the elements” need to be proven for constitutional
jury instructions because, under Malik, the sufficiency. The Malik court recognized this
state pro ved the charges raised in a problem:
“hypothetically accurate” instruct ion. 17
Because Malik now conforms to the “essential [M]easuring sufficiency by the
elements” required by Jackson, Bledsue indictment is an inadequate substitute
argues, we cannot dismiss the Malik rule as a because some important issues relating
mere procedural nuance. to sufficiencySSe.g. the law of parties
and the law of transferred intentSSare
In many cases, the Malik rule will produce not contained in the indictment. Hence,
an accurate list of the “essential elements” that sufficiency of the evidence should be
Jackson requires federal courts to review measured by the elements of the offense
during habeas proceedings. Jackson, however, as defined by the hypothetically correct
does not necessarily require that, for jury charge for the case.
constitutional sufficiency, the elements stated
953 S.W.2d at 239-40.
Bledsue’s case provides an example of how
17
We respectfully disagree with the dissent’s the indictment can inadequately set out the
suggestion that Brown should apply only to elements of the offense. The state indicted
situations in which the defendant benefits from an Bledsue for knowingly and intentionally
inconsistency between the evidence and the jury possessing amphetamine in a quantity of at
instruction. The Brown court gave no indication it least 28 but less than 400 grams, but the
would fail to apply the same analysis to a case in
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.
8
jury charges and indictment no longer exists.18 charge to measure the constitutional
A Texas habeas court reviewing under Malik sufficiency of the evidence and determine what
must develop a hypothetically correct jury are the essential elements required by the
charge that both “accurately sets out the law” Jackson sufficiency inquiry.
and “is authorized by the indictment.” Malik,
953 S.W.2d at 240. In this case, a C.
hypothetically correct jury charge that Therefore, while we decline to adopt the
“accurately sets out the law” would have Malik rule as a measure of constitutional
included the phrase “adulterants and dilutants” sufficiency, we still consider whether
but would not be “authorized by the “adulterants and dilutants” constitute an
indictment.” “essential element” for the purpose of federal
habeas review. If we decide that “adulterants
Perhaps, to meet Malik, a Texas court and dilutants” are an essential element under
simply would require the hypothetically Jackson, then the district court properly
correct jury charge to be based on a granted habeas relief, because no rational jury
hypothetically correct indictment. At the very could have found the evidence sufficient to
least, when the indictment raises ambiguities as convict Bledsue of possessing more than
to what the hypothetically correct jury charge twenty-eight grams of pure amphetamine. To
should be, the Malik approach does not make this determination, we look to
resolve a federal habeas court’s inquiry into “substantive elements of the crime” as defined
what are the essential elements of state law we in the statute used to convict Bledsue, and we
should use to review Bledsue’s conviction. seek guidance from the Supreme Court’s
recent teachings on how to construe criminal
This quandary teaches us, on habeas statutes.
review, to maintain our own notions of
constitutional sufficiency that are not overly In Jones v. United States, 119 S. Ct. 1215dependent 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
9
found that the defendant had indeed caused Acknowledging that § 481.116 creates
serious bodily injury, pursuant to the second three separate offenses, we nevertheless do not
subsection of § 2119, and sentenced him to conclude that the omission of “adulterants and
twenty-five years. To avoid constitutional dilutants” creates a separate criminal offense.
concerns, the Court construed the separate Each of the three offenses in the statute
subsection creating serious punishments for describes the amount of the controlled
causing “serious bodily injuries” to constitute substance as “including adulterants and
a separate, independent offense. In doing so, dilutants.” In Jones, the penalty varied with
the Court held that the question whether the respect to the level of harm caused to the
defendant had caused serious bodily injury victims. The problems arose when the jury
must be determined by the jury. considered facts supporting one offense, while
the sentencing court considered facts
Like the one in Jones, the statute supporting an entirely different offense.
authorizing Bledsue’s conviction sets out three
levels of punishment for possession of certain Here, the penalty varies with respect to the
illegal substances, depending on the quantity amount of controlled substances possessed and
possessed: (1) Possessing less than 28 grams, does not depend on whether adulterants and
including adulterants and dilutants, is a third- dilutants are included. According to
degree felony; (2) possessing more than 28 § 481.116, adulterants and dilutants are always
grams but less than 400 grams, including included for purposes of calculating the
adulterants and dilutants, is an aggravated amount possessed. Therefore, even under
felony punishable by up to 99 years but no less Jones, Bledsue could not have been convicted
than 5 years; (3) possessing more than 400 of possessing less than twenty-eight grams,
grams, including adulterants and dilutants, is because “adulterants and dilutants” are always
an aggravated felony punishable by up to 99 included in the calculation of the amount
years but no less than 10 years.19 We read this possessed.
statute as creating three separate offenses
rather than one o ffense with three If the grand jury had indicted Bledsue for
punishments, thus avoiding the constitutional possessing less than twenty-eight grams, but
concerns expressed in Jones. the jury had been instructed that it could
convict him of possessing more than that
Therefore, the state would violate amount, federal habeas relief would be more
Bledsue’s Sixth Amendment jury trial rights if likely, because, under Jones, the indictment
it proved that he possessed less than 28 grams, would have charged a crime different from the
then convinced the court to impose a heavier one for which he was convicted. But here, it
sentence based on a non-jury finding that he was not possible for the grand jury to have
possessed more than 28 grams. In other indicted Bledsue for a different crime, because
words, because the amount of the controlled the lowest possible offense created by the
substance possessed determines the severity of statute still includes adulterants and dilutants
punishment, the amount possessed is a jury in calculating the amount possessed.20
question and an essential element under Jones
and Jackson. But nothing in Jones suggests
that we must read “adulterants and dilutants” 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...)
10
Therefore, for purposes of federal habeas
review, the state provided sufficient evidence
for a rational trier of fact to find guilt beyond
a reasonable doubt. Under Brown, our review
for constitutional sufficiency should ask only
“whether the evidence was constitutionally
sufficient to convict [Bledsue] of the crime
charged, not whether a state appellate court
would have reversed his conviction . . . .”
Brown, 937 F.2d at 181. Whatever the
complexities raised by the new Malik approach
to analyzing indictments and jury charges and
by Jones, the fact remains that “with explicit
reference to the substantive elements of the
criminal offense,” the state produced sufficient
evidence to convict. Accordingly, we will not
grant habeas relief based on the grand jury’s
omission of a non-essential element of
Bledsue's offense.
The judgment granting habeas corpus relief
is REVERSED, and judgment is RENDERED,
denying habeas relief.
(...continued)
Court to construe the statute as a single offense
with three separate punishments. The Court
refused to read the statute to diminish the jury’s
“control over facts determining a statutory
sentencing range.” See Jones, 119 S. Ct. at 1215.
Because the seriousness of bodily injury was a
factual determination that would affect the
statutory sentencing range, the Court found this
factor to be an essential element, but not simply
because it was found in the statute.
Jones does not teach us that every phrase in a
statute is an “essential element.” Rather, it simply
asks courts to look carefully at elements that could
increase the statutory sentencing range.
In fact, we can easily read the statute to mean
that calculations of the amount of amphetamines
always includes adulterants and dilutants. The fact
that the term is included in all three sections of the
statute means that it is not a factor that would
increase the sentence; therefore, Jones does not
lead us to construe “adulterants and dilutants” as
an essential element.
11
charge —— which effectively
JACQUES L. WIENER, JR., Circuit lowered the state’s burden of
Judge, concurring in part and proof —— is merely a
dissenting in part: “procedural nuance,” unworthy
of constitutional protection.
I agree with my colleagues of I must also dissent from the
the majority that we have majority’s conclusion that
jurisdiction to review the “adulterants and dilutants” are
district court’s disposition of not essential elements of the
Bledsue’s federal habeas corpus offense that, when relied on by
petition, and that the case is the state to obtain a
in the proper procedural conviction, must have been
posture for us to hear it. I pleaded in the indictment. I
respectfully dissent from the 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).
12
increases the maximum penalty Focusing on the Fourteenth
for a crime be (1) charged in Amendment’s Due Process
the indictment, (2) submitted protection, the Court held that
to a jury, and (3) proved habeas relief is warranted “if
beyond a reasonable doubt. it is found that upon the
It is axiomatic that the Due record evidence adduced at the
Process Clause protects an trial no rational trier of fact
accused against conviction could have found proof of guilt
unless facts necessary to beyond a reasonable doubt.”25
demonstrate the presence of In so holding, however, the
each element of the crime of Jackson Court also recognized
which he is charged are proved the potential for federal
beyond a reasonable doubt.22 intrusion on a state’s power to
In the face of this immutable define criminal offenses and
constitutional principle, the therefore directed that the
majority opinion nevertheless prescribed standard be applied
dismisses the state’s failure in every instance “with
to prove an essential element explicit reference to the
of the offense —— the weight of substantive elements of the
the amphetamine as charged in criminal offense as defined by
the indictment —— beyond a state law.”26 For over twenty
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
14
essential, substantive weight charge that increased its own
element of the offense, as burden of proof (even though
charged in the indictment, had the state had factually proved
not been proved. Moreover, to its case). Malik created a new
a legal certainty, it could not sufficiency of the evidence
have been proved by the state standard, one designed to
without the trial court’s permit an acquittal to stand or
departing from the indictment a conviction to be reversed
by (1) allowing evidence of only when the state actually
additives to be presented to fails to prove the offense
the jury and (2) instructing charged in the indictment.30
the jury to include the weight I read today’s majority
of those additives when opinion as disregarding the
calculating the weight of the Malik court’s approach to the
controlled substance. This was constitutional sufficiency of
done by Bledsue’s state trial the evidence analysis under
court despite the absence in Jackson, despite the Court’s
the indictment of any reference instruction in Jackson that we
whatsoever to either (1) the are to rely on substantive
statute that defines the crime, state criminal law when
i.e., no incorporation by reviewing a state conviction
reference, or (2) “adulterants for constitutional sufficiency.
or dilutants.” The majority says that “[w]e
I am not the first to decline [] to expand the scope
recognize the critical of our review of Texas cases by
importance of the threshold incorporating the Malik rule
question, “which party benefits into our federal habeas
from an improper jury charge” jurisprudence.” As I read
when considering constitutional Malik, however, the highest
sufficiency of the evidence on criminal court of Texas
habeas. Recently, the highest confected its rule in an
criminal court in Texas, in express effort to align that
Malik v. State,29 recognized state’s sufficiency of the
the inconsistency stemming from evidence analysis with the
the application of a federal sufficiency analysis
sufficiency review depending on decreed in Jackson. The
which party —— the state or the majority’s failure to focus on
defendant —— has benefitted this state/federal nexus in
from questionable jury Jackson offends the principles
instructions. To eliminate of federalism, ironically, a
these inconsistencies and goal later espoused by the
produce a single, coherent majority as a reason to deny
standard, the court in Malik habeas relief to Bledsue. It
overruled one prong of prior has been said that “[i]f the
state precedent, the prong that Federal Government in all or
had awarded defendants any of its departments are to
acquittals after the state prescribe the limits of its own
failed to object to a jury authority, and the States are
bound to submit to this
29
953 S.W.2d 234 (Tex.
30
Crim. App. 1997). Id. at 239-40.
15
decision, and are not to be three separate offenses.
allowed to examine and decide
for themselves when the Earlier this year, the
Constitution shall be Supreme Court in Jones
overleaped, this is practically considered a criminal statute
‘a government without essentially identical in
limitation of powers.’“31 structure to the Texas statute
As I see it, the majority that is at the heart of this
expands its power and further case. The Court in Jones
exacerbates the deprivation of concluded that the degree of
Bledsue’s constitutional rights bodily injury, i.e. severe
by concluding —— without regard bodily injury or death, which
to the glaring inconsistency resulted in a heightened
between the indictment and the penalty imposed on the
jury charge —— that criminal, was an element of the
“adulterants and dilutants” are offense that must be (1)
not essential elements of the charged in the indictment, (2)
crime under Jackson, as submitted to the jury, and (3)
necessary for federal habeas proved beyond a reasonable
review. The majority concedes, doubt.32 The statute under
as I insist, that the statute which Bledsue was convicted
under which Bledsue was stands on all fours with the
convicted creates three statute examined in Jones.
separate offenses, each with at Even though construction of the
least one separate element, not statute in this case arises in
one offense with three a different procedural context
gradations of punishment. than that in Jones,33 I am
Regardless of the fact that
each offense contains separate
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...)
16
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
17
espoused in those cases, I well-known Jackson v. Virginia
follow with consideration of standard.34 As noted, we must
those elements that I find must determine whether, in the light
be included in a proper most favorable to the
constitutional sufficiency prosecution, “any rational
review of Bledsue’s state court trier of fact could have found
conviction and the definition the essential elements of the
of his offense under Texas law, crime beyond a reasonable
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.
18
The question whether a
defendant has been convicted
upon inadequate evidence is
central to the basic question
of guilt or innocence. The
constitutional necessity of
proof beyond a reasonable doubt
is not confined to those
defendants who are morally
blameless. Under our system of
criminal justice even a thief
is entitled to complain that he
has been unconstitutionally
convicted and imprisoned as a
burglar.38
38
Id. at 323-24 (citations
omitted) (emphasis added).
19
We have entertained numerous statute and that state’s Common
habeas petitions in which the Law, i.e., its jurisprudence.
Jackson analysis has been 1. The Statute
dutifully applied. In so I find a parsing of the
doing, however, we have applicable statutory provision
recognized a distinction helpful. The initial paragraph
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.
20
and it does so without mention with the majority’s implicit
of “adulterants or dilutants,” narrow definition of “state
and without reference to the law” as used by the Court in
name or number of the statute Jackson.
that incriminates unlawful Treating “state law” in the
possession of the controlled more comprehensive sense
substance. intended in Jackson brings me
2. Texas Common Law to an additional rule of
After defining the necessary criminal law engendered from
elements of Bledsue’s crime as the Texas Common Law.
set forth in the applicable Notwithstanding § 481.116's
state statute, however, the inclusion of adulterants or
majority fails to take the next dilutants in the calculation of
logical step. This marks the the total weight of the
initial point at which the controlled substance, Texas
majority and I part ways. We jurisprudence has firmly
are in agreement that, from a established that an indictment
plain reading of Jackson, we must contain the phrase
are required to measure “including adulterants and
sufficiency of the evidence dilutants” before the state (or
with reference to the the jury) can use the weight of
substantive elements of the these additives in calculating
criminal offense as defined by the aggregate weight of the
state law. But, “state law” is controlled substance.44 Courts
nowhere narrowly defined as a in Texas have consistently held
synonym for “state statute.” that “[t]he state is bound by
It seems clear to me that the the allegations in its
majority opinion repeatedly indictment and must prove them
misconstrues the Jackson
standard by measuring
sufficiency of the evidence
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
43The Court presumed that 540, 543 (Tex. Crim. App. 1990)
consideration of state law in (en banc) (same), cert. denied,
the sufficiency of the evidence 499 U.S. 984 (1991); Farris v.
standard would ensure that State, 811 S.W.2d 577 (Tex.
intrusions on the power of the Crim. App. 1990) (en banc)
states to define criminal (same); Cruse v. State, 722
offenses would not occur. S.W.2d 778, 780 (Tex. Crim.
Jackson, 443 U.S. at 324 n.16. App. 1986).
21
beyond a reasonable doubt.”45 distinguishing features between
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...)
22
Benson v. State,50 and favorable to the defendant.53
continuing in Boozer v. Although we acknowledged the
State,51 the Texas Court of Benson/Boozer rule in Brown, we
Criminal Appeals had held that nevertheless found that a
the state’s failure to object technical violation of this
to a jury charge that rule to be a mere procedural
unnecessarily increased the nuance that “does not rise to
prosecution’s burden of proof constitutional heights.”54 In
required it to prove the so doing, we reasoned that,
offense as described in the notwithstanding the improper
excessively burdensome jury jury instruction, the state
charge; failure to do so would clearly proved the elements of
result in an acquittal based on the Texas aggravated robbery
insufficient evidence.52 From statute and the “standard in
these decisions emerged a line Jackson demands no more.”55
of cases that developed a Attempting to draw
dichotomy: Sufficiency of the similarities to Brown today,
evidence is measured by the the majority asserts that the
jury charge if (1) the jury state clearly proved the
charge impermissibly increases elements in the statute, which
the state’s burden of proof —— authorized the inclusion of
and is thus more favorable to adulterants and dilutants,
the defendant, and (2) the thereby establishing that the
state fails to object; evidence is sufficient.
conversely, sufficiency of the Regardless of the fact that the
evidence is measured by the state (not the defendant, as in
indictment if the unobjected-to Brown) received the benefit of
jury charge impermissibly its own inconsistency, the
lowers the state’s burden of majority takes the position
proof —— and is thus less that Brown applies either way
—— irrespective of whether it
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).
23
is the state or the defendant in analogizing the situation in
who receives the benefit. The Brown to the one in Nickerson,
majority reasons that in Brown we quoted Nickerson for the
we gave no indication that our proposition that “‘By not
analysis would only apply to objecting to a charge which
situations in which the unnecessarily increased the
defendant benefitted from the state’s burden of proof, the
inconsistent charge. To say, state deemed the charge correct
however, that Brown’s silence and accepted the burden.’”57
somehow creates a legal rule —— It is this “windfall” that we
without ever delving into the dismissed in Brown by dubbing
factual irregularities present it a “procedural nuance”
in each case —— is because (1) it clearly deals
counterintuitive and also runs with the procedural default
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...)
24
In Brown, we did not concurring in the majority
contemplate a situation in opinion, not dissenting from
which the jury charge it, if the indictment had
benefitted the state and expressly mentioned the
sufficiency was thus measured additives or had incorporated
by the indictment, because them by reference to the
Brown faced exactly the statutory section that allows
opposite circumstances. He was (but does not require) the
seeking sufficiency review state to include adulterants
measured by the jury charge and dilutants; but the
even though the burden of proof indictment did neither. We
in the jury charge benefitted must rely on the clear and
him, not the state. Reading unambiguous words of the
the holding in Brown to apply indictment to determine the
to obverse facts, i.e., when elements of the crime actually
the state benefits from the charged —— not the crime
improper jury charge, simply potentially “chargeable” ——
does not follow, either in law which, in Bledsue’s case,
or in logic. In the context of indisputably did not include
constitutional proof beyond a adulterants and dilutants for
reasonable doubt, the purposes of calculating the
prosecution and the defense are weight of the substance
not fungible. possessed.59 And, clearly, the
Disregarded by the majority weight of the substance is the
is another critical distinction element that is unique to each
in Brown that renders its of the different possession
application inapposite here. crimes under Texas law and
Unlike Brown, the instant case determines what kind of felony
does not deal with the state’s has been committed. In this
theory of responsibility, but regard, I cannot overlook the
with an actual element of the fact that the state conducts
crime —— the weight of the grand jury proceeding and
amphetamine necessary to actually writes the indictment.
constitute the particular Presumably, the state knows its
aggravated felony as charged in own statute and knew or should
the indictment. Unlike the have known to include the
theory of parties in Brown, the permitted additives if it
phrase “including adulterants intended to use them to prove
and dilutants,” when relied on
to obtain a conviction, is an
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)).
25
quantity. As it did not, we 4. Malik v. State
must assume objectively that in In Malik, the highest Texas
this instance the state was 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.26
would not be convicted,” the rule, like the Benson/Boozer
Benson/Boozer rule permitted line of cases, “does not reach
acquittals simply because the the level of constitutional
defendant received a windfall sufficiency required for
in the jury instructions —— a federal habeas intervention.”
result directly at odds with The majority concedes, however,
the Jackson protection.64 that in many cases, “the Malik
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).
27
that concerned the Brown court interpretation of Jackson to
and ended in unnecessary come in one juridical ear and
judgments of acquittal will be go out the other. Ironically,
eliminated, and the state will the instant panel majority
consistently have to prove the invokes federalism to justify
elements in the indictment.68 denial of habeas relief at the
On the one hand, defendants same time that it unduly
like Brown, who had discounts a state common law
historically benefitted from an principle that was created to
improper jury charge that further the goals of a federal
required a higher level of constitutional sufficiency of
proof for conviction, will no the evidence analysis under
longer be acquitted on a Jackson. Another curiosity is
technicality; on the other the majority’s expression of
hand, defendants like Bledsue, concern that “[p]ost-Malik . .
who were convicted on an . it is uncertain whether Texas
improper jury charge that courts would require that
allowed the state to prevail phrase [including adulterants
under a lower level of proof or dilutants] in the indictment
than the crime charged in the to convict Bledsue, because the
indictment, will be eligible old requirement of matching the
for federal habeas relief. I jury charges and the indictment
agree wholeheartedly with the no longer exists.”69 Not to
Malik court’s observation that worry: The courts of Texas have
it has brought the Texas continued to indicate that, for
sufficiency of the evidence the state to cumulate the
inquiry more in line with the weight of additives with the
Jackson standard to ensure that
a judgment of acquittal will be
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.
28
weight of the pure drug so as a conviction.71
to gain a conviction, the In like manner, even though
requirement that the statutory the statute under which Bledsue
phrase must appear in the was convicted clearly allowed
indictment does still exist. the inclusion of adulterants
In Harris v. State, for and dilutants in calculating
example, a Texas court of the total weight of the
appeals applied the Malik amphetamine, this element was
standard to facts closely omitted from his indictment, as
analogous to those of this drawn for the grand jury by the
case.70 The defendant in prosecution. Analogous to
Harris was convicted of Harris, the essential elements
aggravated assault of a peace of Bledsue’s offense are those
officer. The defendant had specified in the indictment ——
been charged in an indictment here, “pure” amphetamine only
that alleged the defendant “did —— and, because the state did
then and there unlawfully, not prove one of the essential
intentionally and knowingly elements of the indictment’s
cause bodily injury” to the offense (as distinct from a
officer. The jury charge, mere theory of responsibility)
however, instructed the jury beyond a reasonable doubt,
that “[a] person commits the i.e., possession of 28-400
offense of assault if he grams of unadulterated
intentionally, knowingly or amphetamine, exclusive of the
recklessly causes bodily injury indictment-omitted additives,
to another,” thereby permitting Bledsue is entitled to habeas
a conviction on a theory corpus relief.
broader —— and thus less In Pizzini v. State, another
burdensome to the state —— than Texas court confirmed this
the one alleged in the reading of Malik by stating,
indictment. Even though the “[w]e do not read Malik so
specific language of the broadly... we must conclude
statute under which the that the hypothetically correct
defendant was indicted jury charge contemplated in
contained the element of Malik is based on the
recklessness, the court held indictment as returned by the
that the essential elements of grand jury. Accordingly, Malik
the offense must appear in the may not be used to release the
indictment; its presence in the state from its burden of
statute alone is not proving each element of the
sufficient. Thus, a Malik offense as charged in the
hypothetically correct jury indictment.”72
charge could not include
recklessness, and, as a result,
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
701999 WL 441839 (Tex. Ct. 222, 224-25 n.2 (Tex. Ct. App.
App. July 1, 1999) 1998) (“[A] hypothetically
(unpublished). (continued...)
29
Jackson requires us to Using the Malik standard as
evaluate the elements of the my yardstick, I now test for
offense under state law; and constitutional sufficiency the
Texas law —— both before and evidence produced by the state
after Malik —— mandates that, to convict Bledsue on the
for purposes of constitutional allegations in a hypothetically
sufficiency, the essential correct jury charge as
elements of the offense are authorized by, inter alia, the
those contained in the indictment. The indictment
indictment. It therefore alleged possession of at least
follows inescapably that the 28 grams of amphetamine —— no
standard announced in Malik, as mention of adulterants or
contemplated in that decision dilutant; no mention of the
and consistently applied by the criminal statute. Thus, a
Texas courts of appeal ever hypothetically correct jury
since, is aligned with the instruction would not allow the
Jackson standard and must be weight of the adulterants and
considered in a sufficiency of dilutants to be considered in
the evidence review. calculating the weight of the
C. Merits of the Case amphetamine possessed. At
trial, the state’s expert
witness testified that Bledsue
possessed at most 17 grams of
pure amphetamine. Because, as
a matter of law, the state did
not and could not prove beyond
a reasonable doubt one of the
essential elements of the
indictment —— 28 grams or more
of the substance (pure
amphetamine) possessed —— I
would affirm the district
court’s grant of habeas relief
based on its holding that
Bledsue’s conviction is
unconstitutional under the
standard espoused in Jackson.
The majority’s minimizing of
the Malik standard by labeling
it a Brown procedural nuance
(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).
30
Declining to adopt the Malik
rule, the majority, in its
final step, addresses whether
“adulterants and dilutants”
constitute essential elements
under Jackson such that they
must be charged in the
indictment. The majority
sought guidance from the
Supreme Court’s teachings in
Jones v. United States,73 a
case in which the structure of
a criminal statute was examined
to find that the increased
level of harm suffered by the
victim, i.e., bodily injury or
death, was an essential element
of the offense to be decided by
a jury. The Court noted that
“any fact (other than prior
conviction) that increases the
maximum penalty for a crime
must be charged in the
indictment, submitted to a
jury, and proven beyond a
reasonable doubt.”74 Based on
the similarities between the
statute in Jones and the
statute at hand, the majority
correctly describes the Texas
statute as defining three
separate offenses, rather than
one offense with three separate
punishments.
I perceive, however, an
inherent flaw in the position
that the majority opinion
subsequently advances. It
attempts to distinguish between
the amount of amphetamine
possessed —— which it deems an
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).
31
element of the offense —— and the logical fallacy in the
the phrase “adulterants and majority’s position. More
dilutants,” which it claims is importantly, it continues to
not an element of the offense. ignore what the indictment
Because “adulterants and actually said, and, more
dilutants” are included in each significantly, what it did not
separate crime under the say.
statute to calculate the amount Additionally, the majority’s
possessed, goes the majority’s conclusion that Bledsue could
reasoning, Bledsue could not not have been convicted of
have been convicted of possessing less than 28 grams
possessing less than 28 grams of amphetamines can only follow
of amphetamine. It is from if sufficiency of the evidence
this thesis that the majority is measured by the statute
concludes that “adulterants and alone or by the jury charge
dilutants” cannot be an element alone, both of which include
of the offense of conviction. “adulterants and dilutants.”
Not only do I perceive this But, if sufficiency of the
argument as patently circular, evidence considers the statute
I find it to be a classic non only as expressly incorporated
sequitur. The majority into the indictment —— as, I am
concedes that the amount of convinced, it must —— then
controlled substance possessed Bledsue undeniably could have
is an element of Bledsue’s been convicted of possessing
offense but in the same breath less than 28 grams of
insists that “adulterants and amphetamine —— 17 grams to be
dilutants” do not affect the exact.
total amount of the controlled Finally, to say that
substance possessed; that the “adulterants and dilutants” are
crime, as expressed in the not essential elements because
statute, describes the weight they are always included in the
of the controlled substance as offense is both illogical and
including adulterants and unsupported. The elements of
dilutants. But, the majority “possession” and “weight of
fails to account for the amphetamines” are always
indictment’s omission of included in the offense as
adulterants and dilutants when well, but that would not excuse
it fails to track or identify their omission from the
the statute. As these two indictment. I can neither
substances —— (1) pure drugs understand nor reconcile the
and (2) additives —— are majority’s position that under
inextricably intertwined, I can Jones, adulterants and
neither accept nor understand dilutants are not essential
the majority’s proposition. In elements of the offense.
fact, the majority states, Clearly, “adulterants and
“[e]ach of the three offenses dilutants” can dramatically
in the statute describes the affect the weight of the
amount of the controlled amphetamine proved by the state
substance as “including to have been possessed by the
adulterants and dilutants.” defendant and can thus increase
This exercise of semantically the defendant’s penalty: That
chasing one’s tail demonstrates is precisely what has occurred
32
here. This is an additional state is correct in observing
reason why I must respectfully that a conviction under either
dissent —— unless, of course, the “28 grams or more”
the error can be found to be aggravated felony or the “less
harmless. Thus, one more step than 28 grams” third degree
is required. felony would carry the same
E. Harmless Error Analysis punishment range for Bledsue –—
To take my thesis to its 25 to 99 years or life
necessary legal conclusion, I imprisonment –— it does not
must address one final hurdle follow that the jury would
raised by the state: harmless necessarily have assessed the
error. As a writ of habeas same punishment within that
corpus is not necessarily range.77 During the sentencing
granted in every instance in phase of trial, the jury
which the state has failed to assessed punishment at life
conform to constitutional imprisonment based on two prior
requirements, my conclusion convictions and the present
that Jackson has not been conviction for an “aggravated
satisfied does not fully felony” —— the second “tier” of
complete this inquiry.75 the punishment scheme of the
Before habeas relief can be statute that is based on
granted, Bledsue must establish weight. That second tier ——
that he suffered prejudice as a reserved for aggravated
result of the variance between felonies —— is clearly meant to
the jury charge and the punish more heinous drug crimes
indictment.76 I n i t s than the first tier’s third
brief and in oral argument, the degree, “under 28 grams,”
state insisted that Bledsue felonies, obviously a less
could not successfully egregious, minimal quantity
demonstrate prejudice because crime. The jury, which had
(1) he would have been found Bledsue guilty of the
convicted under the lesser greater aggregate weight, was
included offense of “less than instructed that it could
28 grams,” and (2) for Bledsue, sentence Bledsue for any term
that lesser offense carries the between 25 and 99 years or that
same punishment range as does it could impose life
the greater offense of which he imprisonment; and the jury
was convicted. Accordingly, chose life imprisonment.
urges the state, any error is The state urges that “[t]here
harmless. is no reason to believe that
As with the majority the jury would have been more
opinion’s reasoning, I perceive forgiving in sentencing Bledsue
a fatal flaw in the state’s
logic as well. Even though the
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).
33
for seventeen grams of pure I deem worth highlighting for
amphetamine rather than more analogical purposes the
than 28 grams of diluted different treatment given under
amphetamine.” This is a Texas law to a first-time
classic mis-characterization of offender who commits an
an issue: The correct question “aggravated” felony, as
to ask in this harmless error compared to the treatment given
analysis is whether there is at to a first offender for a
least a realistic possibility “third degree” felony. An
that a jury might be less aggravated felony —— in this
inclined to assess the case the “28 grams or more”
statutory maximum —— life in count —— carries, for a first
prison —— for the minimal, offender, a punishment range of
first-tier, third degree felony 5 to 99 years or life and a
than for the more egregious, maximum fine of $50,000. In
second-tier aggravated felony. contrast, a third degree felony
To me the obvious answer is —— in this case the “less than
“Yes.” Moreover, the state’s 28 grams” count —— carries, for
reasoning cuts both ways: There a first offender, a punishment
is no reason to believe that range of only 2 to 10 years and
the jury would have imposed the a maximum fine of $10,000. A
identical, statutory maximum reasonable jury could not help
sentence when dealing with a but note the fact that the
conviction on the lower grade possibility of an additional 79
felony, as a lesser included years or life in prison and an
offense at that, particularly additional $40,000 in fines
when armed with the knowledge reflects a public policy, as
that the more heinous expressed by the legislature,
aggravated felony carries the that an aggravated felony is
same maximum as the “entry substantially more egregious
level” third degree crime.78 than a third degree felony in
the Texas criminal pantheon.
Although these penalty ranges
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).
34
guidance from the Texas error. I agree with the
Legislature’s treatment of recommendation of the district
these offenses and can see how court and would affirm its
a jury would be likely to make reversal of Bledsue’s
the same analogical distinction conviction on the charge of
when enlightened by an able possession of amphetamine in a
defense lawyer. Additionally, quantity of 28 grams or more,
given that Bledsue’s prior allowing the state 120 days in
offenses were felony theft and which to retry Bledsue on the
unlawful carrying of a weapon lesser included offense of
on licensed premises, this was possession of less than 28
his first drug conviction. grams, should the state elect
That a defendant is found to do so.
guilty of the least criminal III.
quantity range of amphetamine CONCLUSION
possession that is punishable I am deeply troubled by the
by law and that it is his first majority’s treatment of the
drug offense might very well 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
35
a “procedural nuance,” the
majority condones sloppiness at
best and sophistry and
deception at worst, in the
actions of the state
prosecutor.79 The state in
this case benefitted from its
own omission in the
inconsistency between the
indictment and the jury charge,
condemning Bledsue to a life
behind bars for committing a
crime of which he was never
indicted. I hasten to add that
I should not be misunderstood
to advocate a blanket review of
state court convictions, as it
should be with great reluctance
that any federal court intrudes
on the finality of a state’s
disposition of such cases. But
we must not forget that we are
in all likelihood the final
arbiter between Bledsue’s
guarantee of due process and
the state’s interest in
prosecuting criminals. Absent
consideration of the Texas
common law rule that examines
the variance between the
indictment and the jury charge
which, I might add, is aligned
with the federal constitutional
standard, Bledsue’s due process
rights to a fundamental fair
trial have been abrogated,
first by the state conviction
and now by the majority’s
reversal of the federal
district court’s grant of
habeas relief —— which I would
affirm. For these reasons, I
respectfully dissent.
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.
36