Pennington, Curtis Anthony v. State

Opinion issued March 6, 2003











     






In The

Court of Appeals

For The

First District of Texas





NO. 01-01-01163-CR





CURTIS ANTHONY PENNINGTON, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 882074





MEMORANDUM OPINION

          Curtis Anthony Pennington, appellant, was charged with aggravated assault, a second degree felony punishable by imprisonment for no more than 20 years and no less than two years and a fine of no more than $10,000. The jury found appellant guilty, and the trial court assessed punishment at 16 years’ confinement. We affirm.

Facts This aggravated assault case arose from an argument. On July 6, 2001, Jessie James Cooper, Jr., was walking home from the store, where he had purchased some juice, when he met his fiancee’s daughter, Charlotte Phillips. Phillips asked Cooper about the juice; and Cooper told Phillips he would give her $1 so that she could buy some juice for herself. Appellant overheard the conversation and told Cooper that Cooper should give Phillips $10; and Cooper told appellant that appellant should give Phillips $10. Appellant gave Phillips $10 to buy fruit drinks; and Phillips gave the money to Cooper so that he could take it home for her. Appellant began to talk about Phillips’ mother in crude and vulgar language for no apparent reason and then asked Phillips to return the $10. Phillips went to Cooper and asked him to return the money to appellant.

          When Cooper went back to the apartment complex to return the $10 to appellant, appellant was holding a towel in one hand. Appellant began to curse at Cooper and then tried to stab Cooper with a knife hidden in the towel. Appellant missed Cooper. Cooper was able to disarm appellant, break the knife, and throw the remnants aside. Cooper turned to walk away, heard a gun click, and turned around to see appellant pointing a gun at him. Appellant pulled the trigger a second time, but again the gun clicked. Appellant pulled the trigger a third time, and this time he shot Cooper in the left side of his stomach with a bullet.

          Cooper disarmed appellant again and put the gun against appellant’s head. Steven Arceneaux, a bystander, told Cooper that “it wasn’t worth it,” and Cooper gave the gun to him. Appellant fled from the scene and was arrested a week later. Cooper spent a week in the hospital recovering from his injury.

Issues

          In three points of error, appellant argues that the evidence was legally and factually insufficient to support his conviction, because (1) the evidence did not prove that he was guilty of causing bodily injury to “JESSE COOPER,” as named in the indictment, and (2) there was a material variance between the indictment and proof at trial as to the identity of the person who sustained the bodily injury. We do not consider appellant’s first two points of error as true factual or legal sufficiency arguments; rather they are alternate ways of asserting appellant’s third point of error, that there was a variance between the indictment and the proof at trial. Therefore, we consider appellant’s three points of error together.

Discussion

          Appellant contends that there is a material variance between the indictment and the proof at trial. Specifically, appellant argues that the evidence was legally and factually insufficient to support his conviction because the State failed to prove at trial that the person who sustained the bodily injuries was the person named in the indictment. Appellant’s indictment alleged appellant “intentionally and knowingly cause[d] bodily injury to JESSE COOPER by using a deadly weapon, namely, A FIREARM.” Cooper’s name is Jessie James Cooper, Jr.

          A “variance” occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In a variance situation, the State has proved the defendant guilty of a crime, but has proved the commission of the crime in a manner that varies from the allegations in the charging instrument. Id.

          The widely-accepted rule, regardless of whether a variance is viewed 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. Id. at 247-48. In determining whether a defendant’s substantial rights have been prejudiced in this context, two questions are asked: (1) 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 (2) whether prosecution under the indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. at 248.

          The Court of Criminal Appeals has held that the prosecution’s failure to prove the victim’s name exactly as alleged in the indictment does not make the evidence insufficient. Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (emphasis added). Furthermore, the victim’s name is not a statutory element of the offense. Id. The variance between the indictment and the proof at trial is immaterial. There is no evidence set forth in appellant’s brief or pointed to in the record that shows that appellant did not know that he was accused of injuring Cooper, or that the proof presented at trial was surprising to appellant. See Fuller, 73 S.W.3d at 254; Gollihar, 46 S.W.3d at 257.

          This case is controlled by Fuller and Gollihar. Therefore, we hold that the evidence was not insufficient to convict appellant and that the variance between the indictment and the proof at trial was immaterial.

          We overrule appellant’s first, second, and third points of error.

 

 

Conclusion

We affirm the judgment of the trial court.

          


                                                   Evelyn V. Keyes

                                                   Justice

 

Panel consists of Justices Taft, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.4.