Johnson v. State

• Decision Date: 21 March 2012
• Docket Number: No. PD–0068–11.,PD–0068–11.
• Citation: 364 S.W.3d 292
• Parties: Perry Montez JOHNSON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

364 S.W.3d 292

Perry Montez JOHNSON, Appellant,

v.The STATE of Texas.

No. PD–0068–11.

Court of Criminal Appeals of Texas.

March 21, 2012.

William H. “Bill” Ray, Fort Worth, for appellant.

Sharon A. Johnson, Asst. Crim. D.A., Fort Worth, Lisa C. McMinn, State's Attorney, Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, COCHRAN, and ALCALA, JJ., joined.

The question in this case is whether a variance between the allegations in the charging instrument and the proof at trial renders the evidence legally insufficient to support the conviction. Because the variance in this case involves a non-statutory allegation that does not affect the “allowable unit of prosecution,” the variance cannot render the evidence legally insufficient to support a conviction. We shall affirm the judgment of the court of appeals.

I. BACKGROUND

Appellant was indicted for various counts of aggravated assault. The count at issue in the present case charged that appellant did then and there “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or by twisting her arm with his hand.” The victim testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.¹

On appeal, appellant claimed that this variance between pleading and proof rendered the evidence legally insufficient to support his conviction. The court of appeals disagreed, holding that the variance was “not material because it only concerned the method by which appellant caused the serious bodily injury.” ²

II. ANALYSIS

The standard for determining whether the evidence is legally sufficient to support a conviction is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ³ In Malik v. State, we articulated the modern Texas standard for ascertaining what the “essential elements of the crime” are; they are “the elements of the offense as defined by the hypothetically correct jury charge for the case.” ⁴ The hypothetically correct jury charge is one that at least “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.” ⁵ We have described the law “as authorized by the indictment” to be “the statutory elements of the offense ... as modified by the charging instrument,” ⁶ but we have said also that the hypothetically correct jury charge does not necessarily have to track exactly all of the charging instrument's allegations.⁷ In Gollihar v. State, we held that “a hypothetically correct charge need not incorporate allegations that give rise to immaterial variances.” ⁸

A variance in pleading and proof can occur in two different ways. First, a variance can involve the statutory language that defines the offense. This can happen when a statute specifies alternate methods by which an offense could be committed, the charging instrument pleads one of those alternate methods, but the State proves, instead, an unpled method. For example, the retaliation statute makes it a crime to threaten a “witness” or “informant.” The first type of variance occurs if the State pleads only “witness” in the charging instrument and proves only the unpled element of “informant” at trial. ⁹ Second, a variance can involve a non-statutory allegation that is descriptive of the offense in some way. For example, the charging instrument pleads “Mary” as the victim, but the State proves “John” at trial. Or the charging instrument pleads the offense was committed with a knife, but the State proves at trial that a baseball bat was used.

With respect to the first type of variance between pleading and proof, this Court has held, both before and after Gollihar, that the failure to prove the statutory language pled renders the evidence legally insufficient to support the conviction.¹⁰ We have suggested that “ ‘immaterial variance’ law as set out in Gollihar does not apply” to this situation, ¹¹ or that, if considered under Gollihar, a variance of this sort is always material.¹²

Gollihar involved the second type of variance—a variance with respect to a non-statutory allegation that describes the offense in some way. The charging instrument alleged the theft of a go-cart with the model number 136202. ¹³ We ultimately determined that the proof of model number 136203 rather than 136202 did not constitute a material variance.¹⁴ Since Gollihar, we have decided other cases involving this second type of variance. In Byrd v. State, we found that a variance with respect to the name of the owner in a theft prosecution—“Mike Morales” was alleged but “Wal–Mart” was proved—was material and required an acquittal.¹⁵ But in Fuller v. State, we found that a variance with respect to the name of the victim in a prosecution for injury to an elderly individual—“Olen M. Fuller” was alleged but “Buddy Fuller” was proved—was not material.¹⁶

So, in contrast to our treatment of statutory allegations, for non-statutory allegations we tolerate some variation in pleading and proof. We tolerate “little mistakes” that do not prejudice the defendant's substantial rights but we will not tolerate a variance that really amounts to a failure to prove the offense alleged.¹⁷ What is essential about variances with respect to non-statutory allegations is that the variance should not be so great that the proof at trial “shows an entirely different offense” than what was alleged in the charging instrument.¹⁸ For example, in a murder prosecution, the victim's name need not be proved with exactness, but the State must prove that the victim alleged in the indictment is the same person as the victim proved at trial.¹⁹ If the State has alleged the murder of “Dangerous Dan” but has proved, instead, the murder of “Little Nell,” then the State has proved a different murder than it has alleged, and an acquittal is required.²⁰

The key to this conclusion is that each victim is an allowable unit of prosecution for the offense of murder.²¹ If there are multiple murder victims, the State may obtain multiple murder convictions.²² So, the murder of one individual is a different offense from the murder of a different individual. But some types of facts—such as the method by which a murder is committed—do not relate at all to the allowable unit of prosecution. The State could allege “poisoning, garroting, shooting, stabbing, or drowning,” of a single individual, and those different acts would simply be alternate methods of committing a single offense.²³ With only one victim, there can be only one murder, regardless of how that murder is committed.²⁴

We are frequently called upon to determine the “allowable unit of prosecution” in cases involving intertwining strands of our double-jeopardy and jury-unanimity jurisprudence.²⁵ In making such a determination, we generally try to ascertain the focus or gravamen of the offense.²⁶ Most of those cases involve determining whether alternative statutory elements mark separate offenses or simply represent alternative means of committing the same offense. For example, alternative statutory methods of committing a homicide are considered the same offense when the same victim is involved, but alternative statutory methods of committing sexual assault are considered different offenses.²⁷ But this type of inquiry can be made even when non-statutory allegations are at issue. The Supreme Court has explained that a “jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, [for instance], which of several possible means the defendant used to commit an element of the crime.” ²⁸ In an injury-to-a-child case, we held that a jury did not necessarily have to agree on what underlying acts caused the child's injuries. ²⁹ And we have held that two burglary convictions, based upon two victims, violated double jeopardy when there was only a single entry.³⁰

The jury unanimity context may provide a useful framework for evaluating non-statutory variances because any issue involving a non-statutory variance can be converted into a jury unanimity question. If the non-statutory allegations that were pled and proved had both been pled, could both have been submitted in the jury charge in support of a single offense without violating principles of jury unanimity? For example, an indictment might allege that Dangerous Dan was murdered by being stabbed with a knife, but the proof at trial might showed that he was, instead, bludgeoned with a baseball bat. The issue could be re-framed as whether the principles of jury unanimity would be violated if “stabbed with a knife” and “bludgeoned with a baseball bat” were both submitted in support of the single murder offense to the jury. The answer is no, because the two methods of committing murder do not result in two offenses.³¹

Beginning at least with Gollihar, the cases in which we have made an inquiry into the materiality of a variance have been cases in which a non-statutory allegation was descriptive of an element of the offense that defines or helps define the allowable unit of prosecution. Gollihar and Byrd involved theft prosecutions. Theft has two gravamina: the property and ownership.³² These elements alone do not always define the allowable unit of prosecution for theft (property can be jointly owned), but the allowable unit of prosecution can at least be derived from the combination of these elements: different property taken from different persons are different thefts.³³ The description of the item taken in Gollihar—a go-cart with a certain model number—constituted a non-statutory description of the gravamen element...