Byrd v. State

• Decision Date: 30 March 2011
• Docket Number: No. PD–0738–10.,PD–0738–10.
• Parties: Lavonne BYRD, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

336 S.W.3d 242

Lavonne BYRD, Appellant,

v.The STATE of Texas.

No. PD–0738–10.

Court of Criminal Appeals of Texas.

March 30, 2011.

Angela J. Moore, Chief Public Defender, San Antonio, for Appellant.Kevin Patrick Yeary, Asst. Crim. D.A., San Antonio, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the unanimous opinion of the Court.

In this theft case, the State alleged that appellant appropriated certain property from the owner, “Mike Morales.” At trial, the State proved that Wal–Mart owned the property. Mike Morales was never mentioned. The jury charge tracked the allegations in the information, and the jury returned a verdict finding appellant guilty of theft of property from Mike Morales. Appellant claimed on appeal that the evidence was legally insufficient to support her conviction because the State had alleged the wrong owner. A sharply divided en banc court of appeals held that the discrepancy between the alleged owner and the proof at trial was an immaterial variance.¹ The three dissenting justices argued that this was an instance of the failure of proof and that appellant was entitled to an acquittal.² We granted appellant's petition to resolve this difficult issue.³ We conclude that, under the principles set out in our trilogy of Malik, Gollihar, and Fuller,⁴ the State failed to prove its allegation that Mike Morales was the owner of the property appellant stole. Thus, the evidence is insufficient to support her conviction.

I.

Appellant was charged with misdemeanor theft for shoplifting. The information read, in pertinent part: “Lavonne Byrd, hereinafter referred to as defendant, 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[.]” At trial, the State called Richard Salinas, one of Wal–Mart's loss prevention officers. He watched appellant as her two female cohorts scooped up items—primarily children's clothing, cosmetics, and jewelry—from different departments in the store. They then passed those items to appellant to hide underneath a blanket covering a baby's car seat propped up in a shopping cart. Mr. Salinas and another Wal–Mart loss prevention officer, Leo Padron, attempted to stop all three women after they left the store without paying for the items. Appellant was carrying the car seat. When Mr. Padron stopped appellant right outside the store, she said “Here, you can have your stuff back,” and she emptied out all of the merchandise that had been hidden in the car seat. The two other women fled. The total value of the forty-three items that were hidden underneath the blanket was $306.61. Mr. Salinas testified that “Wal–Mart hadn't given her consent to take that property.”

The jury charge tracked the information, including the allegation that the owner of the property was “Mike Morales.” The jury found appellant guilty of theft and the trial judge sentenced her to six months in jail, but probated the sentence for one year.

At no time during the trial did anyone ever refer to a “Mike Morales.” And no witness ever made any connection between a “Mike Morales” and Wal–Mart or any of the property that appellant shoplifted. No one—not the prosecutor, the defense counsel, the trial judge, or even the jury—seemed to notice this astonishing discrepancy between the allegation of “Mike Morales” as the owner of the property in both the information and the jury charge and the absence of any mention of him or his possible connection to the property at trial. ⁵

On appeal, appellant argued that the evidence was legally insufficient under Jackson v. Virginia⁶ when measured by the elements of the offense as defined in the hypothetically correct jury charge required by Malik v. State.⁷ The en banc Fourth Court of Appeals, in a four-to-three decision, held that the variance between the information and jury charge allegation that “Mike Morales” was the owner of the property and proof that “Wal–Mart” was the owner of the property was not material. Therefore the evidence was legally sufficient to support appellant's conviction.⁸ The majority stated that “the name of the owner is not a substantive or statutory element of the offense of theft,” and therefore “the allegation of the name of the owner of the property is not required to be included in a hypothetically correct jury charge.” ⁹ It affirmed appellant's conviction.

The three dissenters, on the other hand, argued that this discrepancy between the ownership allegation and the evidence was an instance of “a failure of proof rather than a variance,” but that, even if it was a variance issue, it was a material variance under Fuller v. State¹⁰ and Bailey v. State.¹¹ The dissent would reverse appellant's conviction and enter an acquittal.

Both the majority and dissenting opinions did an admirable job of thoroughly addressing the issue, but they cannot both be right. We granted discretionary review in an attempt to clarify this difficult and still confusing area of the law.

II

A. Legal Sufficiency, Federal Due Process, and State Law.

In Jackson v. Virginia, the Supreme Court held that federal due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged.¹² The Due Process Clause protects a person from conviction “ ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” ¹³ But the Court also stated that this constitutional standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” ¹⁴ Thus, the “elements” or “facts necessary” to constitute a particular crime are determined by state law. Under Texas state law, we measure the sufficiency of the evidence “by the elements of the offense as defined by the hypothetically correct jury charge for the case.” ¹⁵ Such a charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” ¹⁶ Thus, we apply the Jackson standard of review to the hypothetically correct jury charge.¹⁷ But sometimes the words in the indictment do not perfectly match the proof at trial.

1. Variances.

A “variance” occurs whenever there is a discrepancy between the allegations in the indictment and the proof offered at trial.¹⁸ Variances are mistakes of one sort or another. Sometimes they make no difference at all, sometimes they make all the difference. Suppose, for example, the indictment alleges that the defendant killed Dangerous Dan McGrew. At trial, the State proves that the defendant killed Little Nell, not Dangerous Dan. That is a big mistake. Murder may be murder, but killing one person is not the same offense as killing an entirely different person. ¹⁹ In such a case, the State has failed to prove its allegation that the defendant killed Dangerous Dan McGrew, and the defendant is entitled to an acquittal under both Jackson and Malik.²⁰ Of course he may be reindicted and tried for the murder of Little Nell, as he was never placed in jeopardy for killing her.²¹ A variance of this type is actually a failure of proof because the indictment sets out one distinct offense, but the proof shows an entirely different offense.

Now suppose that the State proves that the defendant killed Dan McGrew, but every witness agreed that Dan was not at all dangerous and had never been called Dangerous. Or suppose that the evidence showed that the murder victim was really Don McGrew, Daniel Macgrew, or Dan Magoo. These are all examples of variances between the allegation and the proof, but they are little mistakes, generally not likely to prejudice a defendant's substantial rights by either (1) failing to give him notice of who it was he allegedly killed, or (2) allowing a second murder prosecution for killing the same person with a different spelling of his name.²² Little mistakes or variances that do not prejudice a defendant's substantial rights are immaterial. ²³ On the other hand, a conviction that contains a material variance that fails to give the defendant sufficient notice or would not bar a second prosecution for the same murder requires reversal, even when the evidence is otherwise legally sufficient to support the conviction.²⁴

2. Legal sufficiency and variances.

In Gollihar v. State,²⁵ we held that, under state law, the hypothetically correct jury charge—the standard by which to measure sufficiency of evidence under Jackson—need not incorporate allegations that give rise to immaterial variances.²⁶ And in Fuller v. State, we held that, under state law, immaterial variances are to be disregarded in reviewing the sufficiency of the evidence.²⁷ In Fuller, for example, the discrepancy between the indictment allegation that the victim of injury to an elderly person was named “Olen M. Fuller” and the evidence that he was called “Mr. Fuller” or “Buddy” was an immaterial variance which did not make the evidence insufficient under Malik or Gollihar.²⁸

Taken together, Malik, Gollihar, and Fuller brought Texas law into the mainstream of modern American variance law and sufficiency of the evidence standards. Under traditional Texas variance doctrine, this Court routinely reversed convictions when the name of the person alleged in the indictment did not exactly match the proof of that person's name at trial. For example, in Escobar v. State,²⁹ this Court held that there was a fatal variance between the allegation in the burglary indictment that the complainant's name was Dan Wiederhold, when the evidence showed that this person was really named Donald Ray Wiederhold.³⁰ The conviction was reversed and the defendant acquitted, but we explicitly stated that double jeopardy would not...