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Malik review is unconstitutional. Malik is unconstitutionalbecause it violates the basic protections of Due Processunder the Fourteenth Amendment of the United States Constitutionand violates United States Supreme Court precedent.Sufficiency review under Malik v. State, 953 S.W.2d 234 (Tex.Crim. App. 1997), is an independent state ground review. Malikis not congruent with United States Supreme Court’s reviewstandard spelled out in Jackson v. Virginia, 443 U.S. 307 (1979).Due Process review under Jackson does not permit Texasappellate courts to find there is legally sufficient proof to sustaina conviction on a theory never submitted to a jury. 1 However,Malik review does just that. Malik review allows theories to beincluded in sufficiency review that were never reviewed by ajury for proof beyond a reasonable doubt. For the reasons listedbelow, Malik review should be disavowed.I. Federal Due Process ProtectionsGuaranteed Under the FourteenthAmendment Apply to the StatesFirst things first. The United States Supreme Court has abandonedthe notion that the Fourteenth Amendment applies to thestates only a watered-down, subjective version of the individualguarantees of the Bill of Rights. It would be incongruous toapply different standards depending on whether the claim wasasserted in a state or federal court. Instead, incorporated Bill ofRights protections are all to be enforced against the states underthe Fourteenth Amendment according to the same standardsthat protect those personal rights against federal encroachment.See McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 (2010).The Fourteenth Amendment of the United States Constitutionapplies to Texas, even when reviewing legal sufficiency claims.Malik’s evidentiary sufficiency standard is a purely state lawstandard that is foreign to federal constitutional norms. SeeFuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (hereinafter“Fuller”). Malik does not in any meaningful way applyto federal constitutional evidentiary sufficiency claims, despitethe challenged Malik opinion’s claim to the contrary.Texas Courts are free to provide more protection than theFourteenth Amendment Federal Due Process Clause (hereinafter“Due Process”). But they cannot provide less. Pertaining to thelegal sufficiency review standard, when compared to that usedby federal reviewing courts, Malik provides “only a watereddown,subjective version of the individual guarantees of theBill of Rights.” 2II. Due Process and Jury Instructions:“Buy the Ticket, Take the Ride”(Hunter S. Thompson)It is bedrock federal constitutional law that “[A]ppellate courtsare not free to revise the basis on which a defendant is convictedsimply because the same result would likely obtain on retrial.”Dunn v. United States, 442 U.S. 100, 107 (1979). Dunn tells reviewingcourts that Due Process prevents reviewing courts frominventing new and novel methods of review. 3In Dunn the defendant was indicted, tried, and convictedon the theory that he had lied under oath in a judicial proceeding.The judicial proceeding was alleged to have taken place inSeptember 1976. However, it was shown at trial that the lie didnot occur in September 1976, but in October 1976. 4 On appeal,the Tenth Circuit affirmed the conviction, reasoning that Dunn,the appellant, had “adopted his September statement,” so it madeno difference whether he lied in September or October. Thevariance between the pleading and the evidence was construedby the Tenth Circuit to be a mere “misstep” 5 by the prosecution,and therefore was merely “nonprejudical variance betweenindictment and proof at trial.” Id at 104–105. The United StatesSupreme Court squarely rejected the Tenth Circuit’s reasoning,holding: “[I]t is as much a violation of due process to send anaccused to prison following a conviction of a charge on whichhe was never tried as it would be to convict him upon a chargethat was never made.” Id at 197.The problem created here is that under Malik, Texas courtsare free to apprise the validity of convictions based on a hypotheticaljury charge on which a Defendant was never tried, andwhich includes and/or excludes essential factual elements of theoffenses or theories of prosecution that were never assessed by ajury as having been proven beyond a reasonable doubt, as longas the hypothetically correct jury charge can be substantiatedby evidence from trial. But see Cole v. Arkansas, 333 U.S. 196,201 (1948).How does Hunter S. Thompson apply here? In Dunn, theGovernment bought their ticket when they charged Mr. Dunnwith committing perjury on September 30, put Mr. Dunn ontrial alleging he committed the perjury on September 30, broughtforth evidence establishing he perjured himself on September30, and forced Mr. Dunn to defend against charges he committedperjury on September 30. It was not a hypothetical trial. InDunn the Government bought the September 30 ticket. Theywere obligated at that point to take the September 30 ride onappeal. Fortunately for Due Process, the United States SupremeCourt was punching the tickets, not the Tenth Circuit.