Blanco v. State

962 S.W.2d 46, 1998 Tex. Crim. App. LEXIS 20, 1998 WL 63539

• Court: Court of Criminal Appeals of Texas
• Decided: February 18, 1998
• Docket: 0098-97
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge,

delivered the opinion of the Court.

Appellant was convicted of the offense of burglary of a habitation. The court assessed punishment at ten years in prison but suspended the sentence and placed appellant on ten years’ probation. On appeal, appellant challenged the sufficiency of the evidence to support his conviction. In an unpublished opinion, the El Paso Court of Appeals reversed appellant’s conviction and remanded the cause with instructions that the trial court enter a judgment of acquittal. The El Paso Court of Appeals followed the Benson1Boozer2-Jones3 line of cases and held that because the application paragraph of the court’s charge did not refer to the law of parties, the sufficiency of the evidence, when measured against the application paragraph, entitled appellant to an acquittal on appeal because he was guilty only as a party.

We granted the State’s petition for discretionary review to reexamine the Benson/Boozer line of cases. However, this Court recently overruled the Benson/Boozer line of cases in Malik v. State, 953 S.W.2d 234 (Tex.Cr.App.1997).

The authors of the dissenting opinions are under the mistaken impression that this Court’s decision in Malik is “pure dicta with no precedential value” because in Malik this Court “failed to address the ground for review this Court granted” in Malik.⁴ We disagree with the contention put forth in the dissenting opinions. In Malik, Judge Meyers made this same contention which lost by a 6-3 vote. See Malik, 953 S.W.2d at 24CM2 (Meyers, J., concurring, joined by Baird and Overstreet, JJ.).

That this Court may have decided Malik on broader grounds than those presented in the State’s petition for discretionary review⁵ does not convert our Malik decision into “pure dicta.” Once this Court in Malik exercised its discretion to decide the case on these broader grounds, this Court’s deliberate decision in Malik to overrule the Benson/Boozer line of cases⁶ was “essential to determination of the case in hand” with the force of adjudication and of binding prece-dential effect.⁷ See Black’s Law Dictionary, at 541 (4th Ed.1951) (definition of “dictum”). The bench and bar should not be confused about Malik’s precedential effect. It is the law and it is binding precedent. The dissenting opinion in no way resurrects Benson/Boozer which continue to be in a state of having been overruled.

We vacate the judgment of the Court of Appeals and remand the cause there for reconsideration in light of Malik.

1 : Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982), cert. denied 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372(1984).

2 . Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1984).

3 . Jones v. State, 815 S.W.2d 667 (Tex.Cr.App.1991).

4 . This is like saying the decision in Mapp v. Ohio making the federal exclusionary rule applicable to the states through the Due Process Clause of the Fourteenth Amendment is "pure dicta” because that was not the issue upon which the United States Supreme Court granted certiorari in Mapp which came to the Court as a First Amendment case. See Mapp v. Ohio, 367 U.S. 643, 672-79, 81 S.Ct. 1684, 1701-04, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting). It would be unwise for this Court ever to take such a position.

5 . See Malik, 953 S.W.2d at 240-42 (Meyers, J., concurring) (claiming, among other things, that this Court should have decided the case on narrower grounds).

6 . In Malik, a 6-3 majority of this Court expressly and deliberately overruled the Benson/Boozer line ■ of cases primarily because they misinterpreted federal constitutional precedent and they resulted in a windfall to fairly tried and factually guilty criminal defendants. See Malik, 953 S.W.2d at 239 (evidentiary sufficiency is no longer measured by the jury charge); Scott v. State, 915 S.W.2d 505 (Tex.Cr.App.1996) (McCormick, P.J., dissenting to refusal of State's petition for discretionary review) (example of application of Benson/Boozer ).

7 .As set out in the dissenting opinion, the ground for review upon which we granted discretionary review in Malik was whether the intermediate appellate court "erred in failing to properly apply the correct standard of review in analyzing the sufficiency of the evidence.” In Malik, this Court adopted the "correct standard of review in analyzing the sufficiency of the evidence.” Therefore, we disagree with the dissenting opinion’s contention that in Malik this "Court failed to address the ground for review this Court granted,” not that this makes any difference in resolving the dissenting opinion’s contention that Malik is "pure dicta.”