I'm wondering what the reaction is to Fuller 3/27/02, in which the majority held that Malik was not grounded in federal constitutional law. In other words, we now have the Jackson v. Virginia standard, and then this other, additional state standard for judging the sufficiency of the evidence on appeal.

Is this a good thing?

Maybe I just don't understand it. As I read it, a material variance entitles the defendant to a new trial, and an immaterial variance is meaningless. For a Jackson review, we look only at the statute, evidence, and the "hypthetically correct" jury charge, but nothing in the indictment.

At first blush, this would seem to favor the prosecution, unless there are far more variance claims out there than I am aware of. If that is the case, then perhaps we might see more reversals if the defense lawyers figure out the right magic words to say at trial when faced with a variance.

Does this mean the defense now has to object in order to preserve a variance issue? I'd argue that it does, since it is not a sufficiency error but rather a notice problem. Does this mean that failure to prove venue can never be grounds for an acquittal? Seems as if.

In fact, it seems almost too good to be true, and that bothers me, especially in light of the authority cited in Judge Womack's concurrence.

[This message was edited by John Rolater on 04-01-02 at 11:30 a.m.]

[This message was edited by John Rolater on 04-01-02 at .]

We really seemed to be heading somewhere with Malik and Gollihar, leaving behind that primordial morass of Benson, Boozer, Fisher, and Burrell. Now it seems we have turned full circle and are in danger of floundering around again in that same legal bog.

John may be on to something when he suggests an objection to a variance is now required. Also, the prosecution may not be harmed by the new "interpretation" of Malik.

But even if Gollihar, i.e., variance law, is a matter of state law alone why fling Malik onto the same uncertain ground. Are we now left with two standards for legal sufficiency of the evidence, Jackson and Malik? If so what's the difference? Why do we need two standards? We have only recently discarded Ex parte Duffy and, we may hope, Bauder will soon follow the same demise, will Malik sink away too? I find the majority opinion raises more questions than it resolves.

Matthew: Is a motion for rehearing in the works?

Didn't we win in Golihar, Malik, and now Fuller? Don't these results suggest that, as usual, procedural default and harmless error are the friends of prosecution? Isn't this trio of cases just a blending of the procedural default and harmless error concepts, except dealing with sufficiency of the evidence?

Frankly, I don't care if they call it federal or state law. That is the sort of detail work that leads to far too many law review articles. The point, to me, is that the Court continues to recognize that there must be some reality injected into any discussion of whether someone was unfairly convicted. And misplacing a number in a serial number or using the defendant's dad's nickname is not worthy of cutting loose a criminal.

John Bradley
District Attorney
Williamson County, Texas

I hope you're right, John B., and maybe I'm looking too hard at this stuff and coming up with egg-headed, non-real-world law review material, but here's my concern: The whole point of Malik was that Benson-Boozer purported to be an application of fed constitutional law, but was not. It seems to me that if we now have two sufficiency standards, one dictated by the federal constitution, the other a creature of state law, then the CCA is endorsing the idea that it can create its own sufficiency standard, and damn the U.S. Supreme Court. That may be okay with our present Court, but an election or two could land us right back where we were with Benson-Boozer. I'm not comfortable with the CCA making up state sufficiency standards out of whole cloth.

Also, I have serious doubts that the majority's characterization of fed constitutional sufficiency law will withstand scrutiny. Can it really be right that the evidence will be deemed sufficient even if we allege D murdered X with a knife, but proved D murdered Y with a gun?

But, again, maybe I'm just a near-sighted appellate geek seeing boogie-men lurking in the trees when the forest is quite safe and State-friendly.

Remember the movies Rob Roy and Robin Hood? (Sorry, only English titles came to mind). Oh, here's one, "Blair Witch."

More to the point, does Fisher still have any vitality and, if so, where does it lie in the newly revised framework of two stds for legal sufficiency? Is it now the vehicle for applying the federal std?

Maybe Fuller is a case that will simply be overlooked in the future. But I must admit to feeling troubled that we may have won the battle in Fuller but are in danger of losing the war we were close to winning. Why did the majority go to the trouble of deciding something that did not need reaching if a bigger plan was not envisioned?

Okay, I see little black helicopters too (and they can be heard in the forests on especially dark nights) but so do those evil guys in Afghanistan and I hope they are not simply paranoid.

[This message was edited by John Stride on 04-03-02 at .]

I'm as concerned as Matthew and the Johns (Stride and Rolater) about the winning-battle-losing-war possibility in Fuller. I'm never going to be comfortable with a new standard (especially a separate state standard that can now change, seemingly, at the whim of the judges) when the best thing you can say about it is that maybe the Court will ignore its own opinion in the future. I agree with Judge Keasler's concurrence: Why couldn't the Court just have remanded in light of Gollihar?

And Bradley, that's not like you to be unconcerned. Maybe if this was a misdemeanor or something...

Diane, things have changed. There is a kinder, gentler John in Williamson County these days. The new one campaigns with his children (who I expect also will run for office one day), meets and greets the public, speaks to attorneys he hasn't had to talk to for years, and is a big picture kind of guy. It's scary sometimes.

Do I think Fuller is misdirected in its details? Yes. Does it matter in the big picture? Probably not.

I compare it to the self-inflicted wound of Factual Sufficiency Review. Through a series of poorly reasoned and defense-oriented opinions, the Court of Criminal Appeals found a state constitutional standard for reviewing factual sufficiency of the evidence. It is bothersome and will continue to rub us the wrong way until it is abandoned, abolished, or ignored. But, the bottom line is that it will rarely result in a serious injustice (meaning release of a truly dangerous and guilty bad guy).

So, in the great scheme of things, if I have to pick and choose my fights, I am pretty happy with the progress of the Court of Criminal Appeals as it pertains to the reality-based application of criminal procedure.

Does this mean I won't take opportunities to shoot down the momentary misdirection of a Fuller? No. But I also won't declare war on the Court over it. I want them in my corner for the next case.

By the way, my feelings of generosity might be influenced by last week's decision in Wiley v. State. Without any dissenting opinions, the Court of Criminal Appeals affirmed a conviction from Williamson County, rejecting a Keith Hampton claim that we had violated the 6th Amendments "right to present a defense" by excluding speculative evidence that someone else burned down the defendant's restaurant. Sometimes, you've just got to enjoy the victory.

And, as for Matthew Paul's self-described geekness, I disagree. I am very proud of the work that the State Prosecuting Attorney's Office is doing. For many years, prosecutors were not represented well in that office. Today, we have a well-trained, professional attorney who has a magnificent staff to watch over our territory. Perhaps that is why I can relax and enjoy the view a little more.

John Bradley
District Attorney
Williamson County, Texas

Jana, it is the "New John." An informant, who must remain anonymous for safety reasons, revealed that last weekend John was spotted in Starbucks having a non-fat latte and a scone.

Now, that's just sick.

John Bradley
District Attorney
Williamson County, Texas

As the chief victim of Clewis (I think I still hold that title, but Matthew is probably the ultimate authority), I hope that Fulleris not as bad. Clewis has been a serious injustice to me 5 times. I cringe each time I give a summary response to a Clewis claim, knowing full well that the case could turn into another story of an appellate court misconstruing the cold paper record, violating the standards designed to protect the verdict, and causing me another multi-year odyssey on rehearing, PDR, remand, and PDR again. Any new standard should be thoroughly and critically reviewed to ensure that it fits the system.

Viewing new decisions with a critical eye is not a declaration of war on the court issuing the decision or the judge authoring it. A bad rule is a bad rule even if the State wins the judgment. None of these posts advocates burning black-robed effigies or voting against Judge X next Tuesday or in November. No war, no fight, just critical examination of something us law geeks may be stuck with for many years, something the elected bosses may not understand . . . laughs.

You are correct, John. Clewis is a major bungle in the jungle. And someday the Court will awaken to their mistake.

Although there are many reasons to attack the decision, for me the simplest reason is that the voters of Texas never intended to expand a civil sufficiency test to include criminal cases when they expanded the jurisdiction of the intermediate appellate courts to include criminal cases.

For a hundred years, the appellate courts had developed the civil sufficiency test in the context of civil cases. And then, suddenly, the CCA decided it also applied to criminal cases without any examination of the application of that test, which was meaningless in the criminal context.

And that is why it makes so little sense. And that is why eventually someone will have the courage to say, this doesn't fit.

John Bradley
District Attorney
Williamson County, Texas

Matthew, even though she talks about "Gollihar's state law sufficiency standard," I don't see Hervey as saying there are now two different standards of sufficiency of the evidence. As I see it, the court merely has awakened to the fact that a variance between allegata and probata does not have anything to do with the defendant's guilt of the statutorily defined offense, unless it is material. All of this begs the question, of course, about the Supreme Court's meaning when it referred to "every fact necessary to constitute the crime with which he is charged". That could mean either the statute under which he is charged or the offense as alleged in the indictment/information. As I understand it, the court has chosen to focus on the elements set forth in the statute identified by the language of the charging instrument (aided by a hypothetically correct jury charge, if necessary). I still think a court might find the difference between a gun and a knife to be material and therefore subject to the Jackson test, but serial numbers and road numbers and names that don't mislead anyone are thankfully no longer an issue, at least not unless the variance is raised as a bar to the admission of the evidence. I think it is great that material variances are now treated as pleading and notice problems and not the type of error that bars retrial. To me Fuller is just an application of Gollihar, not a step backwards or sideways, though it is too bad Hervey used the confusing terminology or labels that she did and attributed something to Malik that just isn't there. Whoever came up with Burrell as a sufficiency question was nuts, though I recognize most states treated the issue in the same way. Only if the indictment was intended to allege a different offense than that for which the defendant is tried should we have a sufficiency issue; otherwise bad or overly descriptive allegations of elements should not stand in the way of a valid conviction by the very proof that all parties anticipated. By the way, thanks for joining this forum.

[This message was edited by Martin Peterson on 04-07-02 at .]

Man, once the Latin started I dropped out quick.

A kinder and gentler John Bradley? Oh my god! Next thing you know we'll be seeing Keith Hampton holding a press conference to announce that not ALL of his clients have been innocent, and not ALL Texas prosecutors hide exculpatory evidence and suborn perjury.

The more I think about Fuller, the more I am of the opinion that its effect is largely beneficial. Though I do believe the opinion sets up two independent sufficiency standards, state and federal, it also hints that even where there is a material variance under the state standard, the appropriate remedy is a new trial, not an acquittal (which was our state disposition for insufficient evidence Burks and Green).

And maybe I, too, am getting kinder and gentler in my old age (or perhaps I'm just in a good mood this week because I like Kutzner and Franklin), but I think we have a pretty good CCA right now. Keller is doing one hell of a great job as P.J., and folks like Hervey and Cochran are going to be shining stars for years to come.

Matthew

And thanks to Tuesday's election results, Paul Womack and Cathy Cochran are here to stay for six more years.

And now let's all have a moment of silence for the other race.

John Bradley
District Attorney
Williamson County, Texas

I observed a moment of silence, now some of you in San Antonio please tell us about John W. Bull.

Everyone seemed to know I was using Latin, so what's the problem? I thought it was mandatory to speak some other language to have any chance of understanding the law of variance. And be careful, I also know karate (and a few other Japanese words).

[This message was edited by Martin Peterson on 04-13-02 at .]

Wouldn't Gollihar and Fuller each be a lot easier to comprehend if they had just said something like "a variance between the allegations and the proof will not render the evidence insufficient if the defendant was not surprised or prejudiced by the variance. See Rojas v. State, 986 S.W.2d 241, 246 (Tex.Crim.App.1998); Human v. State, 749 S.W.2d 832, 836 (Tex.Crim.App.1988) (op. on reh'g)"?

Valenti, 49 S.W.3d 594