Byrd v. State, No. 04-08-00226-CR (Tex. App. 4/21/2010)
| Decision Date | 21 April 2010 |
| Docket Number | No. 04-08-00226-CR.,04-08-00226-CR. |
| Court | Texas Court of Appeals |
| Parties | LAVONNE BYRD, Appellant, v. THE STATE OF TEXAS, Appellee. |
Appeal from the County Court at Law No. 4, Bexar County, Texas, Trial Court No. 206448, Honorable Sarah Garrahan-Moulder, Judge Presiding.
AFFIRMED.
In an order dated March 4, 2009, a majority of this court granted Appellant Lavonne Byrd's motion for rehearing en banc. The panel opinion and judgment dated January 14, 2009, are withdrawn, and this opinion and judgment are substituted. We affirm the trial court's judgment.
By way of an information, the State charged that Byrd "with intent to deprive the owner, Mike Morales, of property, namely: THREE (3) PAIRS OF PANTS, and ONE (1) DVD, did unlawfully, without the effective consent of the owner, appropriate said property . . . ." The information was based on an alleged shoplifting incident at a Wal-Mart in San Antonio. The parties agree the State did not present any evidence proving Mike Morales was the owner of the property or his relationship to Wal-Mart. Rather, the State presented evidence that Wal-Mart was the owner.1 In accordance with the information, the jury was charged it could find Byrd guilty if the State proved beyond a reasonable doubt the property was appropriated without the effective consent of Mike Morales. Byrd argues the State was required to prove the person named as owner in the charging instrument was the actual owner of the property and because it did not so prove, the evidence is legally insufficient to support the conviction.
Byrd raises legal sufficiency challenges under both the federal and state constitutions. We review a federal due process challenge to the legal sufficiency of the evidence by determining whether a rational trier of fact could have found the "substantive elements of the offense as defined by state law" beyond a reasonable doubt. Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979)); see also Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005) (). However, when the legal sufficiency of the evidence is challenged under state law, we measure the evidentiary sufficiency against "the elements of the offense as defined by the hypothetically correct jury charge for the case." Fuller, 73 S.W.3d at 252 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).
Section 31.03 of the Texas Penal Code provides in relevant part:
§ 31.03 Theft
(a) A person commits an offense if he unlawfully appropriates property with the intent to deprive the owner of the property.
(b) Appropriation is unlawful if:
(1) it is without the owner's effective consent[.]
Tex. Penal Code Ann. § 31.03(a), (b) (Vernon Supp. 2009). The essential elements of theft are (1) a person (2) with intent to deprive the owner of property (3) unlawfully appropriates the property. Ex parte Luna, 784 S.W.2d 369, 371 (Tex. Crim. App. 1990). Although the State must prove there is an owner from whom the property was unlawfully appropriated, the owner's name is not a "substantive element" of the theft statute. See id.; see also Fuller, 73 S.W.3d at 253. The issue in Fuller was whether the State's failure to prove the name of the victim as it appeared in the indictment for the offense of injury to an elderly individual2 rendered the evidence legally insufficient. The victim was identified as Olen M. Fuller in the indictment. At trial, the victim was referred to as either "Mr. Fuller" or "Buddy." After reviewing the statutory definition of the offense, the Texas Court of Criminal Appeals concluded the name of the elderly individual was not a substantive element of the offense:
State law does not define the victim's name as a substantive element of the offense by, for example, defining the offense as "injury to an elderly individual named Olen M. Fuller."
The prosecution's failure to prove the victim's name exactly as alleged in the indictment does not, therefore, make the evidence insufficient to support appellant's conviction under Jackson v. Virginia. The evidence that appellant injured the elderly victim by hitting him in the face with his fist satisfies the Jackson v. Virginia standard because it constitutes proof of every fact necessary to constitute the crime charged of "injury to an elderly individual."
Id. In similar fashion, the theft statute does not define the offense of theft to be the unlawful appropriation of property with intent to deprive the owner Mike Morales of the property. Because the property owner's name is not a substantive element of the offense of theft, the State's failure to prove the name alleged in the information does not render the evidence legally insufficient under Jackson v. Virginia.
Under the state law sufficiency standard, Byrd's claim of legal insufficiency is viewed as a variance issue — the evidence is different or varies from the allegations in the charging instrument. See Fuller, 73 S.W.3d at 253; Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex. Crim. App. 2001). Gollihar, 46 S.W.3d at 246.
In determining whether the trial evidence is legally sufficient under state law, we measure the evidence against the "elements of the offense as defined by the hypothetically correct jury charge for the case." Fuller, 73 S.W.3d at 252. "Allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included." Gollihar, 46 S.W.3d at 257; see Fuller, 73 S.W.3d at 253. Only a material variance requires reversal because only a material variance prejudices a defendant's substantial rights. Fuller, 73 S.W.3d at 253. We decide if the variance is material by determining "whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime." Gollihar, 46 S.W.3d at 257 (quoting U.S. v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).
In Fuller, after holding the evidence was sufficient under Jackson v. Virginia because the name of the victim was not a substantive element of the offense, the Court of Criminal Appeals conducted a separate analysis of whether the evidence was legally sufficient under Texas law. The court of appeals had held the name of the victim must be included in a hypothetically correct jury charge. Fuller v. State, No. 10-98-019-CR, slip op. ¶ 4 n.3 (Tex. App.—Waco May 27, 1998) (), available at http://www.10thcoa.courts.state.tx.us/opinions/ HTMLopinion.asp?OpinionID=2585, reversed, Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002). The court of appeals concluded the evidence was insufficient to support appellant's conviction because "the name of the complaining witness is material to an indictment and must be alleged and proven." Id., slip op. ¶ 2. The Court of Criminal Appeals reversed, and affirmed the trial court judgment, holding the name of the victim was not required in a hypothetically correct jury charge because "the victim's name is not a statutory element of the offense" and the variance between the indictment and the proof was not material:
There is no indication in the record that appellant did not know whom he was accused of injuring or that he was surprised by the proof at trial. See Gollihar, 46 S.W.3d at 257. Finally, the variance does not subject appellant to another prosecution for the same offense. See id.
Byrd does not complain the failure to prove the name of the owner as alleged in the information prejudiced her defense. And, as in Fuller, nothing in the record suggests Byrd was unaware that she was being accused of stealing from Wal-Mart. The State presented evidence that a group of women, in a coordinated effort, stole merchandise from Wal-Mart. Byrd's defense was she did not knowingly take any property. Given this defense, the variance between the allegation of ownership and proof of ownership could not and did not prejudice her defense.
Because the indictment sufficiently informed Byrd of the charge against her, the variance is material only if it subjects Byrd to another prosecution for the same offense. The issue is whether excluding the owner's name from the hypothetically correct jury charge would deny Byrd double jeopardy protection. Posed in a different manner, the question becomes: If Byrd's conviction is affirmed, may the State successfully initiate a new proceeding charging Byrd with theft of the same items, but allege Wal-Mart as the owner of the property? If the...
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