II.

It is bedrock federal constitutional law that "[A]ppellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial." Dunn v. United States, 442 U.S. 100, 107 (1979) (hereinafter "Dunn"). Dunn tells reviewing courts that Due Process prevents reviewing courts from inventing new and novel methods of review³.

In Dunn the defendant was indicted, tried and convicted on the theory that he had lied under oath in a judicial proceeding. The judicial proceeding was alleged to have taken place in September of 1976. However, it was shown at trial that the lie did not occur in September of 1976, but in October of 1976⁴. On appeal, the Tenth Circuit affirmed the conviction, reasoning that Dunn, the appellant, had "adopted his September statement", so it made no difference whether he lied in September or October. The variance between the pleading and the evidence was construed by the Tenth Circuit to be a mere "misstep"⁵ by the prosecution, and therefore was merely "nonprejudical variance between indictment and proof at trial." Id at 104-105. The United States Supreme Court squarely rejected the Tenth Circuit’s reasoning holding: "[I]t is as much a violation of due process to send an accused to prison following a conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." Id at 197.

The problem created here is that under Malik, Texas courts are free to apprise the validity of convictions based on a hypothetical jury charge on which a Defendant was never tried and which includes and/or exclude essential factual elements of the offenses or theories of prosecution that were never assessed by a jury as having been proven beyond a reasonable doubt, as long as the hypothetically correct jury charge can be substantiated by evidence from trial. But see Cole v. Arkansas, 333 U.S. 196, 201 (1948).

How does Hunter S. Thompson apply here? In Dunn, the Government bought their ticket when they charged Mr. Dunn with committing perjury on September 30, put Mr. Dunn on trial alleging he committed the perjury on September 30, brought forth evidence establishing he perjured himself on September 30, and forced Mr. Dunn to defend against charges he committed perjury on September 30. It was not a hypothetical trial. In Dunn the Government bought the September 30 ticket. They were obligated at that point to take the September 30 ride on appeal. Fortunately for Due Process, the United States Supreme Court was punching the tickets, not the Tenth Circuit.

III

Consider the following hypothetical exercise for review. Texas Penal Code sections 37.02 and 37.03, govern perjury in Texas. There is no statutory requirement that a specific date be pled and proven at trial. Rather, the variation in Dunn would be found immaterial under Malik, the jury charge adjusted to fit the hypothetical model, and Dunn’s conviction sustained.

How do we know this? Because of Fuller. Using Malik review, Fuller held that failure to prove the correct name of the victim is not a fatal variance in an assault case. If there is no need to correctly identify the victim in an assault case, would there really be a need to identify the exact date a lie allegedly occurred? Under Malik, the answer is no. So long as the State proved at trial that: (1) a person (2) with the intent to deceive or with knowledge of the statement’s meaning (3) made a false statement under oath or swears to the truth of a false statement previously made (4) and the statement is required or authorized by law to be made under oath, then the State proves their case under Malik. This is regardless of whether the State can prove the exact date or not as alleged in the indictment or information. Under Malik, Dunn’s conviction would likely have stood based on the hypothetical jury charge. If Malik would overrule Dunn, then the incongruity of applying different standards so lamented in McDonald, is precisely what the Malik Court created. Texas sufficiency review under Malik is watered-down Due Process.

Like in Dunn, the State buys its ticket when they charge a Defendant, put him on trial, forced him to defend his liberty, agree to the jury charge submitted to the jury, and aske the jury to return a guilty verdict based on that charge. Malik review rewards the State by letting them off the ride. It is precisely what the holding in Dunn stands against.

IV.

"Do or Do Not. There is No Try" Jedi Master Yoda

The holding in Dunn was predicated on Cole v. Arkansas, 333 U.S. 196 (1948) (hereinafter "Cole"). In Cole, the Defendants were tried in Arkansas state court under an information alleging a violation of section 2 of a particular state statute. Section 2 made it a crime to use force and violence to prevent a person from engaging in a lawful vocation. See Id at 198. At the request of the prosecuting attorney, the trial judge read section 2 to the jury (under current Texas law, this request to read section 2 could be viewed as a mere "misstep" by the prosecutor). See Id. at 199. The jury convicted the appellants. On appeal with the Arkansas Supreme Court, it was recognized that the information (the charging instrument) as drawn, did not include a charge that the petitioners violated section 2, as read to the jury.

This was not a problem for the Arkansas Supreme Court though. The convictions were simply upheld on appeal by invoking section 1 of the same statute, and finding the evidence was legally sufficient to support a finding of guilt under section 1⁶. Id. at 200. The Arkansas Supreme Court found nothing inconsistent with sustaining convictions under section 1, when charged, tried and convicted under section 2 at trial. This is tantamount to a reviewing court saying, "The evidence at trial showed they did something wrong, now let’s find that statute.⁷"

The question presented to the United States Supreme Court in Cole was: "Were the Defendants denied due process of law . . . in violation of the Fourteenth Amendment by the circumstance that their convictions were affirmed under a criminal statute for violation of which they had not been charged?" See Id. at 197. Answer: Unquestionably Yes.

The Cole Court held: "To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court" (emphasis added). Id at 648. Nothing in Cole, its progeny or any other United States Supreme Court case law, grants state appellate courts the right to assess the validity of a conviction by judicially creating nuances like Malik which allow those state reviewing courts to consider issues never submitted to the jury. The Cole Court held that appellate review like that used by the Arkansas Supreme Court to uphold the Cole’s conviction "denied safeguards guaranteed by due process of law–safeguards essential to liberty in government dedicated to justice under law."

The Cole court found the Arkansas Supreme Court’s antics repugnant to Due Process. "That court (the Arkansas Supreme Court) refused to pass upon petitioner’s federal constitutional challenges to section 2. It later denied a petition for rehearing in which petitioners argued: ‘To sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass upon, deprives the defendants of a fair trial and a trial by jury, and denies the defendants that due process of law guaranteed by the 14th Amendment to the United States Constitution (emphasis added).’" Id. 200. The Cole Court found petitioners’ argument to be persuasive. The United States Supreme Court found the Arkansas Supreme Court’s judicial gerrymandering of the information, evidence and the jury charge to be simply unconstitutional. Cole teaches us that prosecutors either bring forth legally sufficient evidence to convict under the charging instrument submitted to the jury and criminal statute charged, or they do not. There is no "try". Jedi Master Yoda was correct (See The Empire Strikes Back movie).

V.

Sustaining convictions on grounds "the jury had no opportunity to pass on" is what Malik allows appellate courts to do. Malik authorizes that Due Process infraction to occur. More precisely, Malik mandates it.

Malik style appellate review cannot in any meaningful, intellectually honest way, be squared with the holdings in Jackson, Dunn or Cole. See also Presnell v. Georgia, 439 U.S. 14 (1978) and Rabe v. Washington, 405 U.S. 313 (1972). Malik style review simply allows too many appellate created variables to be introduced, in order to fix any "missteps" by the prosecution. Malik removes the incentive for State prosecutors and trial courts to go the extra mile to get it right, because in the end, appellate courts are instructed to fix those "missteps⁸" under Malik⁹, by creating the hypothetically correct jury charge which the prosecutor should have hypothetically fought to be actually submitted to the jury during the trial¹⁰. Under Malik, the prosecutor’s error in Cole of requesting that section 2 be read to the jury is not relevant in any way. The hypothetical jury charge controls. Texas Appellate Courts are denying Defendants of their guaranteed safeguards by refusing to review cases under federal Due Process, and instead reviewed it under a hypothetical jury charge, hypothetically providing very little watered-down Due Process. This hypothetical appellate review violates a Defendant’s Due Process rights vis-a-vis Jackson, Dunn, Cole, and the Sixth Amendment rights under the United States Constitution. When it comes to jury charges at trial, "Do, or do not. There is not try."

VI.

"What’s Good for the Goose..."

It is a violation of the federal constitution for a reviewing court to measure sufficiency of the evidence against a standard different than all the applicable law in the charging instrument and the court’s charge using a hypothetical jury charge containing and/or excluding prosecution theories of liability and/or essential elements which no jury assessed for proof beyond a reasonable doubt. See McCormick v. U.S., 500 U.S. 257 at 269-270 (1991) (hereinafter "McCormick"). Under McCormick, if the instructions were good enough for the trial court, they are good enough for appellate review. What’s good for the goose is good for the gander.

McCormick dealt with jury instructions (real, not hypothetical) given in the court’s jury charge which explained to the jury that campaign contributions could be proscribed by the Hobbs Act, even where there was no expectation of benefit by the contributor. The Tenth Circuit disagreed with those jury instruction, holding that the Hobbs Act required a showing of quid pro quo and provided a seven factor test for such an arrangement. Despite the erroneous instructions to the jury at trial, the court of appeals affirmed the conviction on this new seven factor test first spelled out by the Tenth Circuit, which seven factor test should have been submitted to the jury in the first place. See Id. at 269-270.

The Tenth Circuit’s erroneous decision to create factors not submitted to the jury to sustain a wrongful conviction was quickly felled. The United States Supreme Court found this sort of reverse engineering of jury instructions to support a conviction to be offensive. The United States Supreme Court held the following in McCormick: "This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions¹¹ and on a different theory than was ever presented to the jury. Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury (emphasis added)". The Texas Court of Criminal Appeals Court recognized this legal truism in its holding of Wooley v. State, 273 S.W.3d 260 (Tex. Crim. App. 2008) (hereinafter "Wooley").

By creating a hypothetically correct jury charges and using thoses charge as the starting point to analyze the legal sufficiency of the evidence against Defendants, Texas Appellate Courts are using different instructions and theories than were ever submitted to the jury to sustain a Defendant’s conviction.

VII.

As discussed by this Court in Fuller, the United States 5^th Circuit reviewed Malik. See Bledsue v. Johnson, 188 F. 3d 250 (Cir. 1999). The Bledsue court held, "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." See Bledsue at 260. Bledsue went on to say, "Perhaps, to meet Malik, a Texas court simply would require the hypothetically correct jury charge to be based on a hypothetically correct indictment¹². 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." Id at 260. This is not a glowing review of Malik by the oft quoted United States Fifth Circuit.

VIII.

The Texas Court of Criminal Appeals recognized the Malik standard of measuring evidentiary sufficiency against the "elements of the offense as defined by the hypothetically correct jury charge for the case" clearly is not the same as the Jackson v. Virginia standard of measuring evidentiary sufficiency against the "substantive elements of the criminal offense as defined by state law." See Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (hereinafter "Gollihar"). Compare Jackson, 99 S. Ct. at 2792 fn 16, with Gollihar, 46 S.W.3d at 255. This Court’s own body of law acknowledges that Malik is a Texas state sufficiency standard. It is not congruent with federal sufficiency standards¹³.

In Wooley, this Court wrote, "to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process." This Court’s holding in Woolely and the United States Supreme Court’s holdings in Jackson, Dunn, Cole, & McCormick, and the Fifth Circuit’s holding in Bledsue fly squarely in the face of the Malik review conducted by the Thirteenth Court of Appeals.

Allowing reviewing Courts to re-try cases on theories, instructions and/or elements which were never submitted to the jury is a frontal assault on Due Process and United States Supreme Court precedent. That is beyond honest debate. No less than venerated legal scholar, legal historian and Supreme Court Justice Antonin Scalia has held this to be true.

IX.

Malik review is Unconstitutional Under The Current Federal Due Process InterpretationJustice Scalia’s dissent in Neder v. United States, 527 U.S. 1 (1999) is at once instructive and illustrative of the current Malik conundrum for two reasons: First, Neder provides a wonderfully terse historic recap of the right to a jury trial, and how judges, especially appellate judges, can and do impinge mightily on that precious right. Second, as this Court noted in Wooley at 272, Justice Scalia’s dissent in Neder is now the prevailing view held by the majority of the United State’s Supreme Court relating to Sixth Amendment Constitutional jury trial rights and the application of those constitutional rights to the States vis a vis Due Process.

Neder dealt with improper jury instructions being given and whether those improper instructions were subject to harmless error analysis¹⁴. Harmless error analysis won the day in Neder, but barely. And it has since paid a heavy toll at the hands of Justice Scalia’s dissent along with the new majority.

Even though Neder is a relatively Johnny-Come-Lately to the legal case law scene, the United States Supreme Court has seen fit to overrule the line of logic leading to its conclusion (though not the case itself just yet), while adopting the more reasoned and historically appropriate approach of Justice Scalia’s Neder dissent¹⁵. Neder appears ripe for overruling.

Justice Scalia’s dissent/new majority rationale in Neder reads¹⁶: "Article III, § 2, cl. 3 of the Constitution provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . ." The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." When this Court deals with the content of this guarantee -- the only one to appear in both the body of the Constitution and the Bill of Rights -- it is operating upon the spinal column of American democracy¹⁷. William Blackstone, the Framers' accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as "the grand bulwark of [the Englishman's] liberties . . . secured to him by the great charter." 4 W. Blackstone, Commentaries at 349. One of the indictments of the Declaration of Independence against King George III was that he had "subjected us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws" in approving legislation "for depriving us, in many Cases, of the Benefits of Trial by Jury." Alexander Hamilton wrote that "the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this, the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government." Neder dissent at 30.

Justice Scalia continues: "The right to be tried by a jury in criminal cases obviously means the right to have a jury determine whether the defendant has been proved guilty of the crime charged. And since all crimes require proof of more than one element to establish guilt (involuntary manslaughter, for example, requires (1) the killing (2) of a human being (3) negligently), it follows that trial by jury means determination by a jury that all elements were proved (emphasis in the original)¹⁸. Id. at 31.

Justice Scalia’s continues in his Neder dissent arguing the new majority view: "[T]he Constitution does not trust judges to make determinations of criminal guilt" (emphasis added). See Id at 32. Nothing encapsulates the harm caused to Defendants by Malik like that statement. Nothing this author could say more succinctly crystalizes how and why Defendant’s Due Process rights are violated by every time a Texas Court of Appeals uses a hypothetical jury charge containing and/or excluding elements which no jury assessed for proof beyond a reasonable doubt. Justice Scalia reminds us that trial by jury has never been efficient, but it has always been free. Formal requirements are often scorned when they stand in the way of expediency (or simply re-labeled as "missteps"). The Supreme Couth, and this Court, have an obligation to take a longer view of Due Process. See Neder at 40.

Justice Thomas agrees with Justice Scalia’s Neder dissent views. Justice Thomas’ concurring opinion in Apprendi makes clear that a jury, not a judge should decide all the elements of a crime beyond reasonable doubt¹⁹: "Further, the United States Supreme Court has held that due process requires that the jury find beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970)." This Court acknowledged in Wooley the prevailing constitutional winds discussed above in Justice Scalia’s Neder dissent. Wooley stated "We (the Texas Court of Criminal Appeals) also note that an Illinois appellate court has even stated that it "seems increasingly clear that the views expressed by Justice Scalia in Neder v. United States are now beliefs shared by" a majority of the Supreme Court. See State v. Nitz²⁰, 353 Ill. App. 3d 978, 820 N.E.2d 536, 554-58. Dec. 760 (Ill.App.Ct. 2004)."

X.

Justice Scalia warned we are fast moving into a new phase in law where judges are substituting their judgement for that of a jury. A fear for the future of Due Process conceived in Justice Scalia’s Neder dissent, has been born in Malik and its progeny.

"[H]ow many elements can be taken away from the jury with impunity, so long as appellate judges are persuaded that the defendant is surely guilty? Answer: We know that all elements cannot be taken from the jury, and that one can." See Neder at 33. After more than a decade of Malik review, trial judges now know appellate courts operate as a safety net to provide the correct charge on review. There is no more threat of additional court time expended on retrial for fallacious jury charges. All "missteps" are cured in our hypothetically fueled quest for judicial expediency. The proverbial Sword of Damocles hanging over the trial judge’s head has been replaced by a gentle pat on the back with a warm affirmations from the pending Malik reviewing court saying, "You did your best trial judge. Now let us do it right." State prosecutors and trial courts are relieved of these burdens at the expense of Due Process. With Due Process safely shackled, a more streamlined method of affirming findings of guilt has emerged. The record need only reasonably assure the reviewing court the convicted was really a bad man, deserving of punishment. This was the kind of Due Process the Courts of Appeals are giving Defendants. But this is far less than the Due Process demanded by Jackson and the United States Supreme Court.

The Bludsue court astutely opined, "This quandary (Malik review) 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 charge²¹ to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry. Therefore, while we decline to adopt the Malik rule as a measure of constitutional sufficiency..." Id. at 260. The Texas Court of Criminal Appeals should decline the continued adoption of the Malik rule as a measure of Texas constitutional sufficiency. Malik should be disavowed.

ENDNOTES

1.  Malik review says that an Appellate court must measure the sufficiency of the evidence against a hypothetically correct jury charge. Such a charge would be one that 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. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

2.  Malik instructs reviewing courts to use a "hypothetically correct" jury charge to assess the sufficiency of the evidence. Compare William Osler wisdom: "To confess ignorance is often wiser than to beat about the bush with a hypothetical diagnosis" (emphasis in the original).

3.  See Chiarella v. United States, 445 U.S. 222 (1980) at 236 where the court said: "[W]e cannot affirm a criminal conviction on the basis of a theory not presented to the jury" (quoting Dunn). See also Rewis v. United States, 401 U.S. 808 at 814 (1971) holding the Supreme Court cannot affirm a criminal conviction by a jury on the basis of a theory not presented to the jury. This would seem to exclude assessing the evidence to sustain convictions on the basis of hypothetical jury charges which include law of parties’ theoretical instructions never submitted to the jury. More on that later.

4.  There was no doubt that a lie was told. The question was only when it was told.

5.  "Missteps" is the phrase coined in Winfrey v. State, 323 S.W.3d 875 (Tex.Crim.App. 2010), to describe error on the part of prosecutors in failing to obtain proper instructions. It was held in Winfrey that, "We should not be concerned in the legal-sufficiency context with missteps made by the State regarding what is included in the jury charge. A misstep in the jury charge can be remedied by means other than an acquittal, such as a new trial on the lesser-included offense."

6.  This has tinges of Bushell’s Case to it where the judge told the jurors who tried to acquit William Penn, "[You] shall not be dismissed until we have a verdict that the court will accept."

7.  For full effect, this quote should be read with a thick west Texas accent like the cowboys of old.

8.  Remember that in Cole, the prosecutor asked the judge to instruct the jury regarding section 2. Had the prosecutor asked the judge to instruct the jury under section one, there would have been nothing to complain about on review.

9.  See Justice Scalia’s dissenting opinion in which he discusses appellate review protecting against "against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Neder v. United States, 527 U.S. 1 at 36. See also State v. Myers, 158 Wis.2d 356, 367, 461 N.W.2d 777, 782 (1990) where Malik style review was rejected as saving the prosecution when "from a trial strategy that went awry", much like saving the State from "missteps."

10.  It seems a wholly sounder practice to rid Texas law of hypotheticals and deal only in concretes, i.e., actual jury charges. If the law of jury charges were simplified so the hypothetically correct jury charge could be readily discernible in reality, Due Process would be better serviced and satisfied. This would provide Defendants non-hypothetical Due Process as guaranteed under Jackson.

11.  McCormick does not allow a reviewing court to create new jury charge instructions on review. How can a jury receive and pass judgment beyond a reasonable doubt on a hypothetical jury charge? How can creating a hypothetical instruction be anything other than "retr[ying] a case on appeal under different instructions" than presented to and used by the jury? Quid pro quo was an element of a Hobbs Act offense according to the Tenth Circuit. The Tenth Circuit essentially created its own "hypothetically correct jury" charge setting out the elements of a Hobbs Act violation and then assessed the evidence to support McCormick’s guilt under that make-believe appellate court charge. This sounds too much like Malik. And the Supreme Court rejected it.

12.  Bledsue identifies the slippery slope of Malik: hypothetical, upon hypothetical until the desired result is achieved in the light most favorable to be able to sustain the jury’s verdict of guilt. That is the future Bledsue foresaw from Malik style Texas justice. Perhaps a prophetic prediction given the recent holding in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), abolishing factual sufficiency review in favor of more hypothetical Malik review. Texas is now one opinion away from hypothetical indictment or notice review, first available for all to see, only after the jury convicts. Is such a "save every conviction doctrine" compatible with the "fair notice pre-trial and trial" envisioned in the right to a fair and impartial jury by the Founding Fathers?

13.  Malik sufficiency review is accompanied with an implicit warning: "Lasciate ogne speranza, voi ch'intrate."

14.  Justice Scalia’s Neder response addressed whether appellate courts should view faulty jury instructions under a harmless error standard. Justice Scalia took the view that jury charge error is always harmful.

15.  The Texas Court of Criminal Appeals held in Malik, "When, as in the present case, our precedents appear to require us to stray far afield from the holding that originated a constitutional doctrine, we should reexamine those precedents to determine their continuing validity..." The new majority in the United States Supreme Court has telegraphed their position on Sixth Amendment and Fourteenth Amendment Due Process issues. Malik and its progeny, are not in line with the new majority’s view and will likely not withstand a federal constitutional challenge for long. The Court of Criminal Appeals must decide whether to right the ship that is Malik review, or run aground convinced the Court’s constitutional sextant has found true north.

16,  See Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) (hereinafter "Apprendi" and "Blakely") for further detailed discussion on Due Process rights and its relation to Sixth Amendment rights, along with an enlightening discussion on the correct role of judges under both those Constitutional Amendments. These two cases represent the adoption of the logic in Justice Scalia’s Neder dissent by the new majority.

17.  When the Texas Court of Criminal Appeals creates judicial nuances like Malik, allowing review contrary to Due Process and Supreme Court precedent, it is actively undermining the surgical efficiency the United States Supreme Court has articulated as necessary to ensure Due Process and safeguard liberty, yet ensure proper respect for jury verdicts. We as Texans once had a proud lineage of protecting first and finding guilt second, until recently. Due Process should not find itself being quietly shuffled away to maintain convictions and deny "windfalls" and "the greatest form of relief in the criminal justice system." See Malik at 239. Further, this notion that acquittal is a "windfall" or "the greatest form of relief in the criminal justice system" is simply wrong spirited. William Blackstone stated, "When the prisoner has thus put himself upon his trial the clerk answers in the humane language of the law which always hopes that the party's innocence rather than his guilt may appear ‘God send thee a good deliverance.’" See 4 Blackstone, Commentaries at 402 commentaries. It does not appear that Texas law "always hopes for a party’s innocence.

18.  Another hypothetical for the readers’s consideration based on Justice Scalia’s example of the manslaughter elements that need to be proven at trial to satisfy Due Process. Imagine a jury trial in a Texas district court for manslaughter. The jury is not properly charged with one of Justice Scalia’s three listed elements of manslaughter because of a "misstep" by the state. For this hypothetical, we will assume the jury is never instructed nor properly charged on element (3) listed by Justice Scalia; negligence in causing the death. Based on that faulty charge, and without ever being instructed on the negligence element, the jury convicts. The Defendant appeals, alleging the jury was not correctly instructed since they were not told they must find beyond a reasonable doubt the accused committed the murder negligently. In other words, no mens rea was submitted to the jury and judged as having been proven beyond a reasonable doubt. The defendant in our hypothetical appeals his conviction, alleging a depravation of Due Process and Sixth Amendment rights. Under Malik, it is of little consequence the jury did not find beyond a reasonable doubt this hypothetical defendant committed the murder negligently. Why? Because a Malik reviewing court can cure that "misstep" by creating a hypothetically correct jury charge containing the needed language to describe killing through negligence. Once the hypothetically correct jury charge is constructed, the record is perused to see if the evidence will sustain a showing of negligence on the part of the convicted in (1) killing (2) the human being, as listed in the hypothetically correct jury charge. Looking at the evidence in a light most favorable to the verdict, based on the hypothetical jury charge and "trusting appellate judge[s] to make determinations of guilt", this hypothetical defendant could be convicted without one of the three elements listed by Justice Scalia being included. Malik ensures there will be no "windfall" for the Defendant simply because of the state’s "misstep". And the appellate court conducting the Malik review will be relieved of the possibility of delivering "the greatest form of relief in the criminal justice system." Justice Scalia would have serious problem with this scenario, as would the new majority.

19.  If trial judges are forbidden from passing judgment on matters constitutionally left to juries, it is no less a Due Process violation for appellate judges to pass judgment on matters never submitted to the jury and then make a determination as to those matters of judicial fantasy applying an amorphous appellate standard. This would be the equivalent of saying a defendant is simply too guilty to have or deserve a trial.

20.  The right of jury trial is no mere procedural formality, but a fundamental reservation of power in the constitutional structure. Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict. Every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to enhance the applicable punishment statute. See Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004).

21.  It should be pointed out that Bledsue stated "the jury charge", not a hypothetically correct jury charge.