Larry Lee Bledsue v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division , 188 F.3d 250 ( 1999 )

JERRY E. SMITH, Circuit Judge:

The state appeals the grant of habeas corpus relief to Larry Bledsue, who had been convicted in state court of intentionally and knowingly possessing 28 or more but less than 400 grams of amphetamine. Concluding that the district court properly entertained the claim, we nevertheless disagree with its conclusion that the evidence adduced at trial was constitutionally insufficient to convict. Thus, we reverse the grant of habeas corpus relief and deny Bledsue’s petition.

I.

In July 1989, Bledsue was indicted for intentionally and knowingly possessing amphetamine in a quantity less than 400 grams, but of at least 28 grams. The indictment described the offense as “aggravated” but did not state that the weight of the amphetamine necessary to convict could include adulterants or dilutants; neither did it reference Tex. Health & Safety Code § 481.116, the statute defining the offense.

The undisputed evidence indicated that, counting adulterants and dilutants, Bled-sue possessed more than 28 grams of amphetamine, but that absent such additives he possessed only 10 to 17 grams. On an instruction that it could consider the weight of the adulterants and dilutants when determining the total weight of amphetamine, the jury found Bledsue guilty on the “28 grams or more” count,¹ then sentenced him to life imprisonment under the Texas habitual offender statute after finding his two prior convictions to be “true” for purposes of sentencing.²

Bledsue’s appeal to an intermediate Texas court was dismissed as untimely. In response, he filed his first petition for ha-beas corpus relief with the Texas Court of Criminal Appeals, which granted it, allowing him to proceed on direct appeal. Ultimately, his conviction was affirmed by the intermediate court in an unpublished opinion. He did not petition the Court of Criminal Appeals for discretionary review.

Bledsue did, however, file two additional petitions for habeas relief in Texas courts. In his second petition, his principal argument was that the state had failed to prove his possession of at least 28 grams of amphetamine, including adulterants and dilutants, with the intent to increase the amount of amphetamine. The trial court, in a memorandum opinion, found ample evidence to justify the conviction, and the Court of Criminal Appeals denied the petition without written order.

Bledsue then filed a third state habeas petition, in which he specifically argued that (1) the trial court had improperly allowed the jury to include adulterants and dilutants in determining the amount of total amphetamine when the indictment charged only the possession of pure³ amphetamine, and (2) (reiterating the argument from his second petition) the state had failed to prove his possession of at least twenty-eight grams of amphetamine, including adulterants and dilutants, with the intent to increase the amount of amphetamine. The trial court again found ample evidence to support the conviction, but instead of considering the merits on appeal, the Court of Criminal Appeals denied the petition as successive under Tex. Crim. P.Code Ann. aet. 11.07 § 4 (West Supp.1998).⁴

Bledsue then sought habeas relief in federal court under 28 U.S.C. § 2254, advancing the same two points he had raised in his third state habeas petition. The magistrate judge found that Bledsue’s first assignment of error was proeedurally barred in federal court because it was not raised until his third state habeas petition, which was dismissed by the Court of Criminal Appeals as successive.⁵ But finding Bledsue’s second assignment of error procedurally proper — as it had also been raised in his second state habeas petition, which was denied on the merits — the magistrate judge treated the second claim as an overall challenge to the sufficiency of the evidence.

Ultimately, the magistrate judge recommended granting the writ, finding the evidence constitutionally insufficient in that the state was bound by its indictment, which charged the possession of at least 28 grams of amphetamine but made no mention of adulterants or dilutants. Because the undisputed evidence indicated that Bledsue possessed, at most, 17 grams of pure amphetamine, the magistrate judge recommended a judgment of acquittal, but allowing the state 120 days to retry on the lesser charge of possessing less than 28 grams. The state objected on only the sufficiency claim, but the district court denied the objection and adopted the recommendation.

The state challenges on three fronts. First, it argues that the court improperly granted relief based on insufficient weight of drugs to convict, given that Bledsue had argued, to the state courts, only insufficient evidence of intent. If, however, the weight claim was contained in his second state habeas petition, the state contends, then Bledsue’s state petition was dismissed on a procedural rule rather than on the merits, resulting in a bar to consideration in federal court.

Second and alternatively, the state argues that if the weight claim is in a proper procedural posture for federal consideration, then under a constitutional sufficiency of the evidence test, the evidence adduced at trial was sufficient to prove possession of at least 28 grams. Third, the state urges that even if the evidence was constitutionally deficient, any error is harmless, because Bledsue was undeniably guilty of the lesser included offense of possessing “less than 28 grams,” and the punishment range for both crimes is the same.

II.

In reviewing a grant of habeas relief, we examine factual findings for clear error and issues of law de novo. Lauti v. Johnson, 102 F.3d 166, 168 (5th Cir.1996). Mixed questions of law and fact are also reviewed de novo by “independently applying the law to the facts found by the district court, unless those factual determinations are clearly erroneous.” Id. at 169. Additionally, Bledsue’s federal habeas claim is governed by the Anti-Terrorism and Effective Death Penalty Act (“AED-PA”), under which federal courts can grant habeas relief only if the state court’s adjudication on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (1996).⁶

III.

As the state correctly notes, the scope of federal habeas review is limited by the intertwined doctrines of procedural default and exhaustion. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal,⁷ or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. See Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546. In either instance, the petitioner is deemed to have forfeited his federal habeas claim. See generally O’Sullivan v. Boerckel, — U.S. -, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

In its original answer to the federal habeas petition, the state admitted “that Bledsue has sufficiently exhausted his state remedies as required by 28 U.S.C. § 2254(b) and (c).” Consequently, the state has waived any independent exhaustion argument, as well as the exhaustion argument included within the doctrine of-procedural default—specifically, ground (2) above.⁸ We therefore consider only whether Bledsue’s claim is procedurally barred under ground (1), i.e., whether the state court expressed an independent and adequate state law ground for dismissal.

According to the state, the district court should have refused to consider Bledsue’s sufficiency claim regarding the weight of the amphetamine, because the only time Bledsue raised any issue regarding weight was in his third state habeas petition, which was expressly dismissed on an independent and adequate procedural ground (successive writs). The state asserts that in his direct appeal to the intermediate state court of appeals and in his second habeas petition to the Court of Criminal Appeals, Bledsue focused only on the intent element and raised no challenge to the sufficiency of the evidence regarding weight. Consequently, contends the state, the district court granted relief on an issue advanced only in Bledsue’s third habeas petition, which was expressly dismissed on the independent and adequate state law ground of abuse of the writ.

The district court, however, concluded that the overall issue of sufficiency of the evidence — not just sufficiency as to the issue of intent — was presented in Bled-sue’s direct appeal and in his second state habeas petition. We agree. Although we recognize that the plain language of Bled-sue’s direct state appeal and second state habeas petition did not explicitly pinpoint the issue of weight, his claim of insufficient proof of intent implicitly presented the. issue of weight. Admittedly, we so conclude generously, because Bledsue is a pro se petitioner, and in this circuit pro se habeas petitions are construed liberally and are not held to the same stringent and rigorous standards as are pleadings filed by lawyers.⁹ To that end, we accord Bled-sue’s state and federal habeas petitions a broad interpretation, notwithstanding the later appointment of counsel.¹⁰

Accordingly, finding guidance from Brown v. Collins, 937 F.2d 175 (5th Cir.1991), we conclude that Bledsue amply raised an overall challenge to the sufficiency of the evidence in his state petitions. The petitioner in Brown argued on direct appeal to the state court that the state had failed to carry its burden of proving armed robbery, because it had “proved only that [he] was near the scene of the robbery.” Later, in a federal habeas petition, Brown argued that the prosecution had not proven an essential element of armed robbery, specifically, that he had used or exhibited a firearm.

Even though the state petition challenged a different element of armed robbery, we held that the federal challenge to the sufficiency of the evidence was subsumed within Brown’s sufficiency claim on direct appeal; See Brown, 937 F.2d at 179. Guided by Brown, we likewise find that the mainstay of Bledsue’s direct appeal and state habeas petition was a challenge to the overall sufficiency of the evidence to sustain his conviction for possession of twenty-eight grams or more of amphetamine.¹¹

We now consider whether the Court of Criminal Appeals clearly and expressly dismissed Bledsue’s claim on an “independent and adequate” state procedural ground, such that the claim is procedurally barred in federal court, when it denied his application “without written order.” Drawing from a long line of precedent, the Court in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), elaborated on the “independent and adequate” state law doctrine, which aids federal courts in determining when to exercise habeas review. The Court held:

In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state law ground, a federal court may address the petition.

Id. at 735, 111 S.Ct. 2546.

On the same day Coleman was decided, the Court issued Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), which clarifies Coleman and addresses the problem that arises when a state court issues an unexplained order, neither disclosing nor insinuating the reason for its judgment. The Court created a presumption to be applied by federal courts when they are unable to determine whether the state court opinion “fairly appeared to rest primarily upon federal law.” See id. at 803, 111 S.Ct. 2590 (quoting Coleman, 501 U.S. at 740, 111 S.Ct. 2546).

Termed the “look through” doctrine, this presumption enables federal courts to ignore' — and hence, look through — an unexplained state court denial and evaluate the last reasoned state court decision. When one reasoned state court decision rejects a federal claim, subsequent unexplained orders upholding that judgment or rejecting the same claim are considered to rest on the same ground as did the reasoned state judgment. The Court explained:

The maxim is that silence implies consent, not the opposite — and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below. The essence of unexplained orders is that they say nothing. We think that presumption which gives them no effect — which simply “looks through” them to the last reasoned decision — most nearly reflects the role they are ordinarily intended to play.

Id. at 804, 111 S.Ct. 2546.

The Court of Criminal Appeals responded to Bledsue’s second habeas petition by simply stating, “Application denied without written order.” The state argues that this denial stems from the longstanding Texas procedural rule that prohibits the Court of Criminal Appeals from entertaining sufficiency of the evidence claims on habeas review.¹²

Although the Court of Criminal Appeals generally refuses to entertain sufficiency challenges on collateral review, the mere existence of a procedural default does not deprive federal courts of jurisdiction. See Shaw v. Collins, 5 F.3d 128, 131 (5th Cir.1993). Quite to the contrary, to prohibit our collateral review the state court must have expressly relied on the procedural bar as the basis for disposing of the case. Here, the disposition by the Court of Criminal Appeals presented no such expression and no explanation, so we cannot identify the element of clear and express reliance on a state procedural rule to preclude review in federal court.

Indeed, the Court of Criminal Appeals has explained that “ ‘[i]n our writ jurisprudence, a “denial” signifies that we addressed and rejected the merits of a particular claim while “dismissal” means that we declined to consider the claim for reasons unrelated to the claim’s merits.’ ”¹³ Here, that court “denied” the habeas application, thereby signifying its rejection of the merits — albeit for no additional reasons, but certainly not expressly on the basis of an independent and adequate state procedural ground. Under Coleman, we must treat this “denial” as a merits adjudication of Bledsue’s state habeas petition that raised the same constitutional challenge to the sufficiency of the evidence as he raised in the district court and as he brings to us today.¹⁴

Additionally, under Ylst, we must “look through” the Texas court’s denial to the ruling of the last state court to render a reasoned decision. When we do so, we find that the state court denied Bledsue’s requests not on a procedural ground but on the merits.

The intermediate state court of appeals, on direct review, conducted a sufficiency of the evidence examination in which it noted that “we must review all of the evidence in the light most favorable to the verdict.” Although that court ultimately found the evidence sufficient to establish guilt, it nevertheless performed an analysis on the merits to reach that finding. As we “look through” the denial by the Court of Criminal Appeals to the reasoned intermediate appellate opinion, we again conclude that Bledsue’s claim was denied on the merits, i.e., was not denied on an independent and adequate state ground. We therefore conclude that the sufficiency of the evidence claim does not fall prey to the procedural bar and is properly before the federal courts.

IV.

In arguing insufficiency, Bledsue claims the state failed to prove he possessed more than twenty-eight grams of amphetamine because his indictment did not contain the phrase “including adulterants and dilu-tants.” Even though his jury charge allowed the state to include adulterants and dilutants in calculating the total weight of amphetamine, Bledsue points out that Texas courts have required jury charges to correspond to the elements of the offense set forth in the indictment.¹⁵ Relying on this rule, Texas courts have specifically held that for a conviction to survive a sufficiency challenge, the phrase “adulterants and dilutants” must be included in both the indictment and the charge. See Dowling v. State, 885 S.W.2d 103, 109 (Tex.Crim.App.1992). Therefore, Bledsue avers that the evidence was insufficient to convict him under Jackson, because “no rational trier of fact could have found proof beyond a reasonable doubt” that he was guilty of the essential elements of the crime for which he was charged: possessing 28 or more but less than 400 grams of amphetamine. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781.

A.

This court last considered the effect of the Benson/Boozer rule on federal habeas review in Brown, in which a defendant sought habeas relief because the theory of liability in the jury charge differed from that presented at trial. The Brown court, 937 F.2d at 182, squarely held that a technical violation of the Benson/Boozer rule “does not rise to [the] constitutional heights” justifying federal habeas intervention. Obedient to Jackson, we held that on habeas review, federal courts should look only to the substantive elements of the offense defined by state law, and not to state procedural requirements, when measuring the sufficiency of the evidence. See Brown, id. at 181. Conceding that Brown had shown a violation of state law, we nevertheless denied habeas relief, because the statute used to convict permitted conviction based on the theory of liability presented at trial and because the jury charge gave general instructions on this theory.¹⁶

Similarly, the statute used to convict Bledsue authorized the inclusion of adulterants and dilutants in calculating the amount possessed, and the charge gave instructions to consider “adulterants and dilutants”. Therefore, Brown requires reversal of habeas relief here, because Bled-sue has not shown that the omission of the phrase “adulterants and dilutants” in his indictment is anything more than a violation of the Benson/Boozer rule unworthy of habeas relief.

B.

Bledsue argues, however, that Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), modifies the Benson/Boozer rule and elevates it from a procedural nuance to an essential element requiring federal habeas protection. Essentially, Bledsue asks us to overrule Brown on the basis of the change in Texas law effected in Malik. We decline, however, to expand the scope of our review of Texas cases by incorporating the Malik rule into our federal habeas jurisprudence.

In Malik, id. at 240, the court abolished the “Benson/Boozer” rule in favor of a rule requiring sufficiency of the evidence to be measured by the “elements of the offense as defined by the hypothetically correct jury charge for the case.” A “hypothetically correct jury charge ... accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. Bledsue reasons that because this new standard requires the state to prove the elements of the crime set forth in the indictment, a failure to meet the Malik standard is tantamount to failing the constitutional sufficiency-of-the-evidence test.

Bledsue contends that, in general, Malik actually benefits the state, because the state simply has to prove the elements in the indictment. Thus, unlike defendants subject to the “Benson/Boozer” doctrine, defendants post-Malik cannot challenge convictions of illegal handgun possession on the basis of concerns over the legality of their detention, because the detention is not an essential element discussed in the indictment. See Malik, 953 S.W.2d at 240. Similarly, the defendant in Brown would not have been able to challenge the theory of liability raised in the jury instructions because, under Malik, the state proved the charges raised in a “hypothetically accurate” instruction.¹⁷ Because Malik now conforms to the “essential elements” required by Jackson, Bledsue argues, we cannot dismiss the Malik rule as a mere procedural nuance.

In many cases, the Malik rule will produce an accurate list of the “essential elements” that Jackson requires federal courts to review during habeas proceedings. Jackson, however, does not necessarily require that, for constitutional sufficiency, the elements stated in the indictment govern which “essential elements” must be measured against the evidence. Jackson requires only that the review occur “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781.

Although the indictment is central to figuring out which laws are being charged, an ambiguously drafted indictment may make it difficult to identify which “substantive elements” need to be proven for constitutional sufficiency. The Malik court recognized this problem:

Measuring sufficiency by the indictment is an inadequate substitute because some important issues relating to sufficiency — e.g. the law of parties and the law of transferred intent — are not contained in the indictment. Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.

953 S.W.2d at 239-40. Bledsue’s case provides an example of how the indictment can inadequately set out the elements of the offense. The state indicted Bledsue for knowingly and intentionally possessing amphetamine in a quantity of at least 28 but less than 400 grams, but the indictment did not state whether the weight included adulterants or dilutants. The magistrate judge correctly found that in reviewing for sufficiency pre-Malik, Texas courts will refuse to consider adulterants and dilutants unless the indictment specifically includes the words “adulterants and dilutants.” Dowling, 885 S.W.2d at 109.

Post-Malik, however, it is uncertain whether Texas courts would require that phrase in the indictment to convict Bled-sue, because the old requirement of matching the jury charges and indictment no longer exists.¹⁸ A Texas habeas court reviewing under Malik must develop a hypothetically correct jury charge that both “accurately sets out the law” and “is authorized by the indictment.” Malik, 953 S.W.2d at 240. In this case, a hypothetically correct jury charge that “accurately sets out the law” would have included the phrase “adulterants and dilutants” but would not be “authorized by the indictment.”

Perhaps, to meet Malik, a Texas court simply would require the hypothetically correct jury charge to be based on a hypothetically correct indictment. At the very least, when the indictment raises ambiguities as to what the hypothetically correct jury charge should be, the Malik approach does not resolve a federal habeas court’s inquiry into what are the essential elements of state law we should use to review Bledsue’s conviction.

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

C.

Therefore, while we decline to adopt the Malik rule as a measure of constitutional sufficiency, we still consider whether “adulterants and dilutants” constitute an “essential element” for the purpose of federal habeas review. If we decide that “adulterants and dilutants” are an essential element under Jackson, then the district court properly granted habeas relief, because no rational jury could have found the evidence sufficient to convict Bledsue of possessing more than twenty-eight grams of pure amphetamine. To make this determination, we look to “substantive elements of the crime” as defined in the statute used to convict Bledsue, and we seek guidance from the Supreme Court’s recent teachings on how to construe criminal statutes.

In Jones v. United States, — U.S. -, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court construed 18 U.S.C. § 2119, the federal car-jacking statute, as creating three separate offenses. The statute provides 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 victim suffered no serious bodily injury; (2) not more than 25 years if he suffered serious bodily injury; and (3) not more than life imprisonment if he died as a result of the car-jacking. The Court rejected the government’s contention that § 2119 be read to create one offense with three separate punishments and held that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. 119 S.Ct. at 1224 n. 6.

The defendant in Jones was indicted and convicted under § 2119, but at trial no evidence regarding injury to the victims was produced. At sentencing, however, the court found that the defendant had indeed caused serious bodily injury, pursuant to the second subsection of § 2119, and sentenced him to twenty-five years. To avoid constitutional concerns, the Court construed the separate subsection creating serious punishments for causing “serious bodily injuries” to constitute a separate, independent offense. In doing so, the Court held that the question whether the defendant had caused serious bodily injury must be determined by the jury.

Like the one in Jones, the statute authorizing Bledsue’s conviction sets out three levels of punishment for possession of certain illegal substances, depending on the quantity possessed: (1) Possessing less than 28 grams, including adulterants and dilutants, is a third-degree felony; (2) possessing more than 28 grams but less than 400 grams, including adulterants and dilu-tants, is an aggravated felony punishable by up to 99 years but no less than 5 years; (3) possessing more than 400 grams, in-eluding adulterants and dilutants, is an aggravated felony punishable by up to 99 years but no less than 10 years.¹⁹ We read this statute as creating three separate offenses rather than one offense with three punishments, thus avoiding the constitutional concerns expressed in Jones.

Therefore, the state would violate Bled-sue’s Sixth Amendment jury trial rights if it proved that he possessed less than 28 grams, then convinced the court to impose a heavier sentence based on a non-jury finding that he possessed more than 28 grams. In other words, because the amount of the controlled substance possessed determines the severity of punishment, the amount possessed is a jury question and an essential element under Jones and Jackson. But nothing in Jones suggests that we must read “adulterants and dilutants” as an essential element of the crime for which Bledsue was convicted.

Acknowledging that § 481.116 creates three separate offenses, we nevertheless do not conclude that the omission of “adulterants and dilutants” creates a separate criminal offense. Each of the three offenses in the statute describes the amount of the controlled substance as “including adulterants and dilutants.” In Jones, the penalty varied with respect to the level of harm caused to the victims. The problems arose when the jury considered facts supporting one offense, while the sentencing court considered facts supporting an entirely different offense.

Here, the penalty varies with respect to the amount of controlled substances possessed and does not depend on whether adulterants and dilutants are included. According to § 481.116, adulterants and dilutants are always included for purposes of calculating the amount possessed. Therefore, even under Jones, Bledsue could not have been convicted of possessing less than twenty-eight grams, because “adulterants and dilutants” are always included in the calculation of the amount possessed.

If the grand jury had indicted Bledsue for possessing less than twenty-eight grams, but the jury had been instructed that it could convict him of possessing more than that amount, federal habeas relief would be more likely, because, under Jones, the indictment would have charged a crime different from the one for which he was convicted. But here, it was not possible for the grand jury to have indicted Bledsue for a different crime, because the lowest possible offense created by the statute still includes adulterants and dilu-tants in calculating the amount possessed.²⁰

Therefore, for purposes 'of federal habe-as 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.

1 . The jury was instructed on the lesser included offense of possession of amphetamine in a quantity less than 28 grams. Although it is inconsequential to the outcome, we find it perplexing that the jury instruction on the "28 grams or more” count allowed the jury to include adulterants and dilutants, but the instruction on the "less than 28 grams” count did not.

2 . Tex. Penal Code § 12.42 (West 1994). Bled-sue's sentence was assessed under subsection (d), which states,

If it be shown on the trial of a felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment for life, or for any term of not more than 99 years or less than 25 years.

Tex. Penal Code § 12.42(d).

3 . The indictment referred to "amphetamine” without the adjective "pure,” but also without reference to "adulterants and dilutants.”

4 . Section 4 of Article 11.07 provides that a court may not consider the merits of a subsequent application for habeas relief after final disposition of an initial application challenging the same conviction.

5 .A federal court is barred from reviewing a habeas application that a state court has expressly dismissed on an independent and adequate state law ground. See Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1845, 140 L.Ed.2d 1094(1998).

6 . See Jackson v. Johnson, 150 F.3d 520, 522 (5th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1339, 143 L.Ed.2d 503 (1999). Bledsue satisfies the "in custody" requirement of AEDPA because there is a demonstrable relationship between his conviction, which is the subject of this petition, and his present incarceration. See 28 U.S.C. § 2254(a) (1996); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Escobedo v. Estelle, 655 F.2d 613, 614 (5th Cir. Unit A Sept.1981).

7 . Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Nobles, 127 F.3d at 420.

8 . Both in oral argument and in its brief, the state insists that Bledsue's failure to seek discretionary review constitutes procedural default. See Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir.1985) ("We hold that a Texas inmate seeking federal habeas relief who, in directly appealing his state criminal conviction, has by-passed the Texas Court of Criminal Appeals will not be deemed to have exhausted his state remedies until he has raised his claims before the state's highest court though collateral review provided by state habeas proceedings.”). We conclude that this theory addresses the exhaustion issue and has been waived by the state.

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 of Criminal Appeals in both a petition for discretionary review and in an application for a writ of habeas corpus is necessary to satisfy the exhaustion requirement. See Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir.1990). Only one avenue of post-conviction relief need be exhausted, and Bledsue has done so in his application for habeas relief to the Court of Criminal Appeals.

9 . See Martin v. Maxey, 98 F.3d 844, 847 n. 4 (5th Cir.1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir.1988); Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981).

10 . See Humphrey v. Cain, 120 F.3d 526, 530 n. 2 (5th Cir.1997), rehearing en banc, 138 F.3d 552 (5th Cir.), cert. denied, - U.S. -, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998).

11 . See also Vela v. Estelle, 708 F.2d 954 (5th Cir.1983), on which the district court relied. There, a pro se petitioner filed a federal habe-as claim alleging ineffective assistance of counsel, but the petition alleged a number of trial errors that were not specifically mentioned in his state habeas claim. See id. at 957-58. The state argued that the federal claim was procedurally barred, as it had not been made in state court, but we held that a general 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.

12 . See Rent v. Scott, 28 F.3d 431, 432 (5th Cir.1994); Clark v. Texas, 788 F.2d 309, 310 (5th Cir.1986); Ex parte McWilliams, 634 S.W.2d 815, 818 (Tex.Crim.App.1982). The state's reliance on Rem is misplaced. There, the state habeas trial court refused to reach the sufficiency of the evidence claim explicitly based on a state procedural rule, and the Court of Criminal Appeals denied relief "on the findings of the trial court." Renz, 28 F.3d at 432. The state habeas trial court plainly denied Bledsue's second petition on the merits, and the Court of Criminal Appeals denied the petition "without written order.” We find these two results inapposite and glean no support for the state's position.

13 .Ex parte Thomas, 953 S.W.2d 286, 289 (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 denial of relief [without written reasons] by the Court of Criminal Appeals serves, under Texas law, to dispose of the merits of the claim.”) with Coleman, 501 U.S. at 744, 111 S.Ct. 2546 (relying on the nature of the disposition as a "dismissal” to find that the basis was solely procedural).

14 . The failure to prove guilt beyond a reasonable doubt constitutes a denial of due process. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

15 . The Court of Criminal Appeals has called this rule the “Benson/Boozer” doctrine in reference to a line of cases beginning with Benson v. State, 661 S.W.2d 708 (Tex.Crim.App. 1982), and Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984).

16 . See id. at 183 ("Although the evidence did not conform strictly to the theory of culpability as alleged in the indictment ... we hold that the evidence sufficed to prove the substantive elements of aggravated robbery under the law of parties as charged generally in the court's instructions.”).

17 . We respectfully disagree with the dissent’s suggestion that Brown should apply only to situations in which the defendant benefits from an inconsistency between the evidence and the jury instruction. The Brown court gave no indication it would fail to apply the same analysis to a case in which the state benefits from the inconsistency. Rather, Brown focused on how the evidence supported the substantive elements of the charge, even if there were procedural irregularities, and did not limit its holding to cases in which the defendant benefits.

Indeed, following Jackson, the decisive question in analyzing potential “procedural nuances” is not whether they work in favor of or against defendants. Rather, because Jackson is concerned solely with the sufficiency of the evidence needed to sustain a conviction, see Jackson, 443 U.S. at 318, 99 S.Ct. 2781, the key issue is whether “adulterants and 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.

18 . Some post-Malik cases indicate that Texas courts will continue to require the language of the jury charge to conform to the indictment, especially where the indictment leaves out a theory of liability. See Harris v. State, 1998 WL 322683 (Tex App. — Houston [14th Dist.] 1998, no writ) (unpublished) (finding evidence insufficient to sustain conviction where broader theory of liability was introduced into jury charge); Williams v. State, 980 S.W.2d 222, 224 (Tex.App. — Houston [14th Dist.] 1998, writ ref'd) (requiring state to follow indictment language charging use of "firearm”). Bledsue's case is somewhat different, because the language of his indictment is ambiguous as to whether adulterants and dilutants are included in the alleged amphetamine possession. Even if Texas courts would require the insertion of such language in the indictment, however, this requirement does not reach the level of constitutional sufficiency required for federal habeas intervention.

19 . See Tex. Health and Safety Code § 481.116(b, c) (West 1992). This provision was amended in 1993. See Acts 1993, 73d Leg., ch. 900, § 2.02.

20 . The dissent colorfully describes our analysis 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 Jones.

In Jones, the government in Jones urged the Court to construe the statute as a single offense with three separate punishments. The Court refused to read the statute to dimmish 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.