dissenting.
The majority vacates the judgment of the Court of Appeals and remands to that court for reconsideration in light of Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997). In Malik, a majority of this Court held “[n]o longer shall sufficiency of the evidence be measured by the jury charge actually giv-en_ Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.” Id. at 239-40. We granted appellant’s petition in the instant case on the following five grounds:
(1) Is it necessary to instruct the jury of the law of parties in order for the evidence to be sufficient to support a conviction based solely on party liability?
(2) Should legal sufficiency of the evidence be measured against the theory or theories upon which the case was tried instead of being measured by the application paragraph?
(3) If legal sufficiency of the evidence is to continue to be measured by the charge, shouldn’t such sufficiency be measured by the whole charge, and not just the application paragraph?
(4) Should a defendant’s failure to object to the charge and failure to request an instruction preclude a legal sufficiency challenge based on a charge defect?
*49(5) Should a finding of legally, insufficient evidence due to an erroneous charge be classified as trial error resulting in a remand for a new trial rather than an acquittal?
It is not clear to me which of these grounds for review is controlled by the stated holding in Malik. I guess that is what the Court of Appeals is supposed to figure out.
As expressed in my concurring opinion in Malik, I do not view the majority’s holding there as particularly valuable in light of the facts of that case. In Malik, the State objected to error in the jury charge. The majority in Malik expressly overruled law holding that “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." Thus, the precedential value of Malik is questionable. But in the instant case, the State failed to object to the alleged jury charge error. If the holding in Malik is applied here, its precedential value will be unquestionable. This Court ought to address the issues presented.