Gollihar v. State

• Decision Date: 16 May 2001
• Citation: 46 S.W.3d 243
• Parties: (Tex.Crim.App. 2001) DOUGLAS CHARLES GOLLIHAR, Appellant v. THE STATE OF TEXAS NO. 669-99
• Court: Texas Court of Criminal Appeals

Page 243

46 S.W.3d 243 (Tex.Crim.App. 2001)

DOUGLAS CHARLES GOLLIHAR, Appellant v. THE STATE OF TEXAS

NO. 669-99

Court of Criminal Appeals of Texas

May 16, 2001

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS HOOD COUNTY

OPINION

Meyers, J., delivered the opinion of the Court, joined by Price, Holland, Johnson and Holcomb, J.J..

Appellant was charged with and convicted of stealing a go-cart, valued at less than $1,500.00. On appeal, appellant claimed the evidence was insufficient to support his conviction because the indictment and the jury charge alleged the model number of the stolen cart to be 136202, but the evidence at trial showed the model number to be 136203. The Court of Appeals agreed and ordered an acquittal. Gollihar v. State, 991 S.W.2d 303 (Tex. App.-Texarkana 1999). We granted the State's petition for discretionary review to decide whether the Court of Appeals erred in holding the evidence insufficient.

I.

Appellant's indictment alleged appellant "unlawfully appropriat[ed] one Go-Cart Model 136202, of the value of less than $1500." A Wal-Mart employee testifying for the State at trial answered affirmatively when asked if the cart taken was model number 136203. There was no other evidence as to the model number of the cart. The jury charge tracked the language from the indictment, requiring the jury to find that appellant stole a model number 136202 go-cart.

Appellant raised legal insufficiency in the Court of Appeals, based on the failure of the State to prove the go-cart number as alleged in the indictment and charged in the jury charge. Relying to some extent on Weaver v. State, 551 S.W.2d 419 (Tex. Crim. App. 1977), and on Ortega v. State, 668 S.W.2d 701 (Tex. Crim. App. 1983)(opinion on reh'g), the Court of Appeals held that the State was bound to shoulder the burden alleged in the charge, since it had not objected to the charge. Gollihar, 991 S.W.2d at 305-07. Because the charge required the State to prove a specific model number of the stolen property and this fact was not proven as alleged, the evidence was insufficient to sustain the jury's verdict. Id. at 307. The Court of Appeals referred to the "fatal variance" doctrine as requiring a showing that the variance between the indictment allegations and the evidence is "material," but said this doctrine did not apply here because "the complaint on appeal is the variance between the proof and the jury charge-not between the indictment and jury charge."¹ Id. at 305. Finally, the court viewed Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), as establishing a "sweeping change in the law requiring the sufficiency of the evidence to be measured by the elements of the offense as defined by a hypothetically correct jury charge," but said Malik did not apply to the instant case because Malik had not "involve[d] part of a legally essential element of the offense." Gollihar, 991 S.W.2d at 306-07. Noting that Malik did not expressly overrule Ortega, the Court of Appeals urged this Court to address Ortega's viability in light of Malik. Id. at 307.

The State claims the Court of Appeals erred in measuring sufficiency of the evidence against the charge given. Under Malik, the State argues, a hypothetically correct charge would not have permitted the State's burden to be increased by requiring proof of the model number. Finally, the State says Ortega is inconsistent with Malik and should be overruled.

Appellant argues Malik is inapplicable to this case because Malik concerned error isolated in the jury charge. Here, there was no error in the jury charge because it tracked the indictment exactly. Appellant says extending Malik beyond its facts would result in overruling a long line of cases holding that the authorization paragraph in the jury charge can never contain "surplusage," as well as other cases such as Weaver, relied upon by the Court of Appeals. Appellant relies on Ortega to continue to stand for the proposition that the State is bound to shoulder the burden it alleged in the indictment and acquiesced in by failing to object to the charge.

This case implicates a number of different legal theories and their relationships to one another. Raised are questions of legal sufficiency of the evidence and how it is measured, variance law, and the law relating to surplusage. The overriding question is whether these areas of the law have been affected by the Court's opinion in Malik.

II.

Sufficiency of the evidence law is based on due process.² In In re Winship, 397 U.S. 358, 364 (1970), the Supreme Court held that reasonable doubt was the constitutionally-required standard of proof in criminal cases: "Lest there be any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (Emphasis added). Whether this standard compelled a new criterion by which the validity of a criminal conviction was tested by reviewing courts was addressed in Jackson v. Virginia, 443 U.S. 307, 313 (1979). Prior to Jackson, the Supreme Court had held that a conviction supported by "no evidence" could not stand.³ Thompson v. Louisville, 362 U.S. 199 (1960). The Supreme Court granted certiorari in Jackson to decide whether the reviewing court must consider "not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a 'rational trier of the facts to find guilt beyond a reasonable doubt.'" Jackson, 443 U.S. at 312-13.

In answering this question, the Court began with some fundamental premises:

It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.

Id. at 315 (citations omitted)(emphasis added). The Court further explained that a meaningful opportunity to defend presupposes, as was held in Thompson, that a total absence of evidence to support a charge will conclude the case in favor of the defendant. And due process further requires that the State provide proof beyond a reasonable doubt of every element of the crime charged.⁴ Id. at 319.

III.

A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. 42 George E. Dix & Robert O. Dawson, Texas Practice, Criminal Practice and Procedure § 31.81 at 178 (1995). Although variance law pre-dates Jackson,⁵ it has since been viewed by this Court as subsumed by the Jackson standard and subject to Burks. See Carter v. Estelle, 691 F.2d 777, 781-82 (5th Cir. 1982)(recognizing that "Texas courts have consistently [] held" variances between indictment and proof is evidentiary insufficiency requiring application of Burks; "variances . . . are not regarded as mere trial error by the Texas courts but as evidentiary sufficiency"), cert. denied, 460 U.S. 1056 (1983); see also Ward v. State, 829 S.W.2d 787 (Tex. Crim. App. 1992)(ordering acquittal due to alleged "fatal variance" between indictment and proof); Wray v. State, 711 S.W.2d 631, 634 (Tex. Crim. App. 1986)("[i]f a variance exists between the allegations and the proof, it may render the evidence insufficient to sustain the conviction"); Franklin v. State, 659 S.W.2d 831 (Tex. Crim. App. 1983). Some courts treat variance claims as a notice-related claim, distinct from an insufficiency of the evidence claim, but we have routinely treated variance claims as insufficiency of the evidence problems.⁶

The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant's "substantial rights" is immaterial.⁷ In determining whether a defendant's substantial rights have been prejudiced in this context, two questions are generally asked:

. . . 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.

United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)(footnotes omitted); see also Tsinhahijinnie, 112 F.3d at 991 (analyzing variance claim under Jackson, court stated that variance is immaterial where it is "'not of a character which could have misled the defendant at the trial' and there is no danger of double jeopardy")(citations omitted); Woods v. State, 535 S.E.2d 524, 525 (Ga. App. 2000)(analyzing variance claim under Jackson, court said proper inquiry focuses on materiality: allegations must sufficiently inform defendant of charges against him so as to enable him to present defense and not be taken by surprise and allegations must be adequate to protect defendant against another prosecution for same offense); State v. Walker, No. 02C01-9707-00258 slip op. (Tenn. Crim. App. Sept. 3, 1998)(variance is not material "where the allegations and proof substantially correspond, the variance is not of a character which could have misled the defendant at trial and is not such as to deprive the accused of his right to be protected against another prosecution for the same offense"). A material variance is sometimes referred to as a "fatal variance."

We have not been consistent in requiring materiality, but have sometimes reversed upon a finding of variance without exploring...