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V. Coles’ Application toSufficiency Review in TexasSustaining convictions on grounds “the jury had no opportunityto pass on” is what Malik allows appellate courts to do. Malikauthorizes that Due Process infraction to occur. More precisely,Malik mandates it.Malik-style appellate review cannot in any meaningful, intellectuallyhonest 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 reviewsimply allows too many appellate-created variables to be introducedin order to fix any “missteps” by the prosecution. Malikremoves the incentive for state prosecutors and trial courts to gothe extra mile to get it right, because in the end, appellate courtsare instructed to fix those “missteps” 8 under Malik 9 by creatingthe hypothetically correct jury charge the prosecutor shouldhave hypothetically fought to be actually submitted to the juryduring the trial. 10 Under Malik, the prosecutor’s error in Coleof requesting that section 2 be read to the jury is not relevant inany way. The hypothetical jury charge controls. Texas appellatecourts are denying defendants of their guaranteed safeguards byrefusing to review cases under federal Due Process, and insteadreview it under a hypothetical jury charge—hypothetically providingvery little watered-down Due Process. This hypotheticalappellate review violates a defendant’s Due Process rights vis-àvisJackson, Dunn, Cole, and the Sixth Amendment rights underthe United States Constitution. When it comes to jury chargesat trial: “Do or do not. There is no try.”VI. The Law of Due Process as It Relatesto Jury Charge Review on Appeal“What’s good for the goose . . .”It is a violation of the federal constitution for a reviewingcourt to measure sufficiency of the evidence against a standarddifferent than all the applicable law in the charging instrumentand the court’s charge, using a hypothetical jury charge containingand/or excluding prosecution theories of liability and/or essential elements that no jury assessed for proof beyond areasonable doubt. See McCormick v. U.S., 500 U.S. 257 at 269–270(1991). Under McCormick, if the instructions were good enoughfor 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 explaining to the jury thatcampaign 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 instructions,holding that the Hobbs Act required a showing of quid proquo and providing a seven-factor test for such an arrangement.Despite the erroneous instructions to the jury at trial, the courtof appeals affirmed the conviction on this new seven-factor testfirst spelled out by the Tenth Circuit—a seven-factor test thatshould have been submitted to the jury in the first place. SeeId. at 269–270.The Tenth Circuit’s erroneous decision to create factorsnot submitted to the jury to sustain a wrongful conviction wasquickly felled. The United States Supreme Court found this sortof reverse engineering of jury instructions to support a convictionto be offensive. The United States Supreme Court held thefollowing in McCormick: “This Court has never held that theright to a jury trial is satisfied when an appellate court retries acase on appeal under different instructions 11 and on a differenttheory than was ever presented to the jury. Appellate courts arenot permitted to affirm convictions on any theory they pleasesimply because the facts necessary to support the theory werepresented to the jury” [emphasis added]. The Texas Court ofCriminal Appeals Court recognized this legal truism in its holdingof Wooley v. State, 273 S.W.3d 260 (Tex. Crim. App. 2008).By creating hypothetically correct jury charges and usingthose charges as the starting point to analyze the legal sufficiencyof the evidence against defendants, Texas appellate courts areusing different instructions and theories than were ever submittedto the jury to sustain a defendant’s conviction.VII. The Fifth Circuit and MalikAs discussed by this Court in Fuller, the United States 5th Circuitreviewed Malik. See Bledsue v. Johnson, 188 F. 3d 250 (Cir.1999). The Bledsue court held, “A Texas habeas court reviewingunder Malik must develop a hypothetically correct jury charge”that both “accurately sets out the law” and “is authorized bythe indictment.” Malik, 953 S.W.2d at 240. In this case, a hypotheticallycorrect jury charge that “accurately sets out the law”would have included the phrase “adulterants and dilutants” butwould not be “authorized by the indictment.” See Bledsue at 260.Bledsue went on to say: “Perhaps, to meet Malik, a Texas courtsimply would require the hypothetically correct jury charge tobe based on a hypothetically correct indictment. 12 At the veryleast, when the indictment raises ambiguities as to what thehypothetically correct jury charge should be, the Malik approachdoes not resolve a federal habeas court’s inquiry into what are theessential elements of state law we should use to review Bledsue’sconviction.” Id at 260. This is not a glowing review of Malik bythe oft-quoted United States Fifth Circuit.