dissenting.
The majority opinion remands this case because the Benson/Boozer line of cases were “recently overruled” by Malik v. State, 953 S.W.2d 234 (Tex.Cr.App.1997). Ante, at 46. Believing the majority overstates the holding in Malik, I dissent.
*48In Malik, we granted the State’s petition for discretionary review to determine: whether: “[t]he Court of Appeals erred in failing to properly apply the correct standard of review in analyzing the sufficiency of the evidence and in reversing and remanding for an order of acquittal.” Id., 953 S.W.2d at 240 (Baird, Overstreet and MEYERS, JJ., concurring). As pointed out in the concurring opinion in Malik, the “Benson/Boozer line of cases ... holdfs] that ‘the sufficiency of the evidence is measured by the jury charge if that charge is more favorable to the defendant than the law requires and if the State fails to object.’ ” Ibid., 953 S.W.2d at 240. However, in Malik the State objected. Ibid.
The Malik majority wholly failed to consider the exceptions to the Benson/Boozer line of cases, specifically, Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983) (When the State objects to the trial court unnecessarily increasing the State’s burden in the jury instructions, the matter will be viewed as trial error on appeal.), and Stephens v. State, 717 S.W.2d 338, 341 (Tex.Cr.App.1986) (If the State fails to object to the higher burden in the charge, then it is assumed the State voluntarily accepted the increased burden.). The Malik majority ignored these cases even though the State relied upon Ortega, stating that since the State had objected at trial, the issue should be treated as trial error rather than a sufficiency problem. Malik, 953 S.W.2d at 240-241. Nowhere in Malik was there error raised concerning the issue when the State does not object.
The Malik Court failed to address the ground for review this Court granted, reducing the Malik holding into pure dicta with no precedential value. Malik, 953 S.W.2d at 240. See, Tallant v. State, 742 S.W.2d 292, 295 (Tex.Cr.App.1987) (Our review is limited to those points of error granted as grounds for review.). “Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case at hand are obiter dicta, and lack the force of an adjudication.” Black’s Law Dictionary, 541 (4th Ed.1968). Dictum, which includes expressions of opinion on a point or issue not necessarily involved in the case, will not create binding precedent under stare decisis. See, Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593, 597 (1915); and Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1126 (1913). The Supreme Court has held that broad language in an opinion unnecessary for the decision cannot be considered binding authority. Kastigar v. United States, 406 U.S. 441, 454-455, 92 S.Ct. 1653, 1662, 32 L.Ed.2d 212 (1972) (See also, Smith v. Orr, 855 F.2d 1544, 1550 (Fed.Cir.1988) (“[I]t is well established that a general expression in an opinion, which expression is not essential to the disposition of the case, does not control a judgment in a subsequent proceeding.”)).
Because this Court has misconstrued the precedential value of Malik in order to summarily dispose of this case, I dissent.