concurring and dissenting.
We vacate the judgment of the court of appeals and remand this cause thereto for reconsideration in light of our recent Malik v. State, 953 S.W.2d 234 (Tex.Cr.App.1997) opinion. In light of Malik, 953 S.W.2d at 240, holding that “sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the casef,]” apparently we now measure evidence sufficiency based upon what the State was hypothetically required to prove beyond a reasonable doubt, rather than what the statute, indictment, and jury charge required.
Logically and realistically, if the State is statutorily required to prove certain statutory elements, then rationally it would seem that the State is required to plead and prove those very elements, and the trial court is likewise required to submit those same required elements to the jury. There should be nothing hypothetical or theoretical about that. Evidence sufficiency review should encompass reviewing the sufficiency of the evidence to prove those required statutory elements, which should have been plead in the indictment and submitted in the jury charge.
If Malik provides for finding hypothetically sufficient evidence where there is in reality insufficient evidence of the required statutory elements, then Malik is bad law with which I dissent to; but by 6-3 vote it is law. There is no requirement that the law be good; just settled. And we can only hope that such settled law will be good.
With these comments, I concur with the Court’s decision to remand this cause to the court of appeals for reconsideration in light of Malik.