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Wooley v. State

Malik 's rule of measuring evidentiary sufficiency "by the elements of the offense as defined by a hypothetically correct jury charge" applies when the evidence is reviewed for factual sufficiency. Court of Criminal Appeals, No. PD-0861-07

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Hervey, J., delivered the opinion of the Court in which Price, Womack, Keasler and Holcomb , JJ., joined. Meyers, J., filed a concurring opinion. Keller, P.J., concurred. Johnson and Cochran, JJ., dissented in point of error two, but otherwise joined point of error one.

OPINION

Appellant’s first ground for review presents the claim that this Court should reintroduce the court-made Benson/Boozer*fn1 rule for measuring evidentiary sufficiency when the evidence is reviewed for factual sufficiency.*fn2 The Benson/Boozer rule required that evidentiary sufficiency be measured by the jury charge actually given. In Malik, a case in which only the legal sufficiency of the evidence was at issue, this Court rejected the Benson/Boozer rule and decided that evidentiary sufficiency should be measured “by the elements of the offense as defined by the hypothetically correct jury charge for the case.” See Malik v. State, 953 S.W.2d 234, 239-240 (Tex.Cr.App. 1997).*fn3 We reject the claim presented in appellant’s first ground for review and decide that Malik’s rule for measuring evidentiary sufficiency also applies when the evidence is reviewed for factual sufficiency. We will, however, reverse the judgment of the court of appeals, based on our disposition of appellant’s second ground for review.

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