Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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.


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.

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Complex Claims & Litigation Forum 2024

February 26, 2024 - February 28, 2024
Las Vegas, NV

The conference experience aimed to help insurers and litigators Prevent, Prepare, and Prevail in complex claims cases and risks.

Learn More

Women, Influence & Power in Law UK Awards 2024

March 06, 2024
London, UK

Women, Influence & Power in Law UK Awards honors women lawyers who have made a remarkable difference in the legal profession.

Learn More

Florida Legal Awards (FLLA) 2024

April 04, 2024
Miami, FL

Daily Business Review honors attorneys and judges who have made a remarkable difference in the legal profession in Florida.

Learn More

Associate Attorney

Seeking Estate Administration Attorney for busy boutique office. Huge upside potential and growth opportunity.NYS Bar Admission and relevan...

Apply Now ›


Growing Mineola defense firm seeks independent associate (at least 4 years post-admission) with excellent deposition skills and demonstrated...

Apply Now ›


Our client, a large provider of liability insurance, has exclusively engaged us to identify a highly qualified trial attorney to join their ...

Apply Now ›

Danaher Lagnese, PC

Connecticut Law Tribune

Professional Announcement

View Announcement ›

Blume Forte Fried Zerres & Molinari

New Jersey Law Journal

Frederick D. Miceli has joined the firm as Of Counsel

View Announcement ›


New Jersey Law Journal

Professional Announcement

View Announcement ›