In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-02-00160-CR
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KENNETH MILLAGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court
Lamar County, Texas
Trial Court No. 41597
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Kenneth Millage appeals from his jury conviction of misdemeanor deadly conduct for forcing Tony and Marilyn Elmi off a road with his vehicle. The jury assessed punishment at 365 days in the Lamar County Jail, probated for two years. Millage argues that the evidence was legally and factually insufficient to support the verdict.
On the night of April 13, 2001, the Elmis were traveling north driving a four-wheeler at approximately fifteen miles per hour on a country gravel road in Lamar County. The Elmis claimed Millage, who was traveling south at approximately twenty miles per hour, forced them off the road and into a ditch by suddenly turning and driving his pickup truck toward them. The Elmis claimed Millage ended up at an eighty-five to ninety-degree angle with the ditch and had to brake to prevent himself from going in the ditch. The Elmis claimed Millage's truck missed them by approximately two to four feet.
Millage claimed he only passed one four-wheeler that night and pulled over to allow it to pass. In addition, Millage claimed the Elmis concocted the story because of a dispute between the parties concerning a chain gate Millage had constructed across the road in front of his house. A neighbor, Michael Witson, testified he was riding with Millage when they passed a four-wheeler that night and Millage pulled over and allowed it to pass. Due to the darkness, Witson could not determine who was driving the four-wheeler.
Millage pled not guilty to the charge of deadly conduct. After the State rested its case, Millage requested an instructed verdict, alleging the State had failed to introduce any evidence to prove the allegation that he had left the road. The trial court denied the motion. Judgment consistent with the jury's assessment was entered on August 8, 2002.
Millage contends that legally and factually insufficient evidence exists to support the verdict because a material variance existed between the information and the evidence at trial. The information alleged that: "ONE KENNETH LENORD MILLAGE late of said County and State, . . . did then and there recklessly engage in conduct that placed TONY AND MARILYN ELMI in imminent danger of serious bodily injury by RUNNING DEFENDANT OFF THE ROAD BY MOTOR VEHICLE." Millage argues that, because the evidence at trial established he never left the road, there is a material variance. The State argues Millage failed to prove that the variance prejudiced his substantial rights.
In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979). This calls for a review of the relevant evidence in the light most favorable to the verdict and a determination as to whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).
In contrast to legal sufficiency, a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Johnson, 23 S.W.3d at 7. In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong, or so weak as to be clearly wrong or manifestly unjust. Id. However, "[t]he court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).
"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). A person commits the offense of deadly conduct under Section 22.05 of the Texas Penal Code if "he recklessly engages in conduct that places another in imminent danger of serious bodily injury." Tex. Pen. Code Ann. § 22.05(a) (Vernon 2003). When recklessness enters into or is a part or element of any offense, the State is required to allege, with reasonable certainty, in its charging instrument, the act or acts on which it relies to constitute recklessness. Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). Millage contends that, based on the information, the State was required to prove he ran off the road while placing the Elmis in imminent danger of serious bodily injury. Tony Elmi testified Millage's pickup never left the road. Millage argues the variance between the evidence at trial and the information is material, or fatal, which requires a reversal.
Only a material variance will render the evidence insufficient. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). "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." Gollihar, 46 S.W.3d at 247-48; see Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). A defendant has the burden of showing surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001). Determination of whether a defendant's "substantial rights" have been prejudiced requires consideration of two questions: whether the information, as written, informed the defendant of the charge against him or her sufficiently to allow him or her to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted information would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248 (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).
There is considerable evidence Millage was not surprised or prejudiced by the variance. The State provided Millage with full access to its file and the police reports. The manner and means description in the information notified Millage the State was alleging that, on a specified date, he committed the offense of deadly conduct by reckless conduct that placed Tony and Marilyn Elmi in imminent danger of serious bodily injury by running someone off the road with a motor vehicle. Furthermore, evidence indicates Millage knew the State intended to prove he ran the Elmis off the road. Witson testified Millage told him he had been arrested for "running or chasing down a four-wheeler . . . ." Millage prepared an adequate defense to the conduct proved. Millage presented evidence he did not run the Elmis off the road, but rather pulled over and allowed them to pass. Millage also presented evidence of a motive for the Elmis to lie, including the dispute over the chain gate. The record indicates Millage was not surprised by the variance and had sufficient notice in order to adequately prepare for trial.
Millage also contends the variance would subject him to additional prosecutions for the same crime. Any subsequent prosecution would involve the same offense with the same statutory elements and involve the same set of facts arising out of the same incident on the same date. The variance in this case would not subject Millage to the risk of a later prosecution for the same crime. While we note that variances in manner and means may provide insufficient notice in some situations, the variance at issue in this case is immaterial because Millage did not prove prejudice to his substantial rights.
The Texas Court of Criminal Appeals has held that evidence sufficiency should be measured against a "hypothetically correct" jury charge. See Gollihar, 46 S.W.3d at 253; Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The jury charge in this case did not include the immaterial variance in question. However, Malik controls "even in the absence of alleged jury charge error." Gollihar, 46 S.W.3d at 255. A "hypothetically correct" jury 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." Malik, 953 S.W.2d at 240. In Curry, the Texas Court of Criminal Appeals held that the "'law' as 'authorized by the indictment' must be the statutory elements" of the offense charged "as modified by the charging instrument." Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). The "hypothetically correct" jury charge cannot "wholly re-write the indictment," but is not required to "track exactly all of the allegations in the indictment." Gollihar, 46 S.W.3d at 253. If the essential elements of the offense are modified by the indictment, the modification must be included. Id. at 254. However, the hypothetically correct charge "need not incorporate allegations that give rise to immaterial variances." Id. at 256. The variance at issue is not a material variance and does not modify the essential elements of the offense of deadly conduct. Therefore, since the variance at issue is immaterial, it does not need to be included in the "hypothetically correct" jury charge.
Millage cites Planter v. State, 9 S.W.3d 156 (Tex. Crim. App. 2000), for the proposition that the variance at issue requires a reversal. Planter involved an indictment that alleged the defendant attempted to induce Lex Baquer to kill Bob Frata. Id. at 157. However, the defendant attempted to induce Baquer to pay the defendant to kill Frata. Id. The Texas Court of Criminal Appeals held that the variance resulted in the defendant being convicted based on proof of an offense for which he was never charged. Id. at 159. The Texas Court of Criminal Appeals based its decision on the fact the variance resulted in a different statutory offense being proven than the offense alleged in the indictment. Id. However, Planter is distinguishable from the facts in this case. The information alleged Millage committed the offense of deadly conduct, and the evidence at trial proved the offense of deadly conduct. The variance in this case did not result in a different offense being proven than alleged in the information. The essential elements of deadly conduct were unaffected by the variance.
When viewed in the light most favorable to the prosecution and measured against the "hypothetically correct" jury charge, sufficient evidence exists for a rational juror to have found Millage guilty beyond a reasonable doubt. Credibility of the witnesses is within the sole province of the jury. Jones, 944 S.W.2d at 648-49. The jury is entitled to believe the Elmis' version of the facts over Millage and Witson. Further, when viewed in a neutral light and measured against the "hypothetically correct" jury charge, we cannot say the verdict was against the great weight and preponderance of the evidence. While there is evidence supporting Millage's version of the facts, the great weight of the evidence does not indicate the result was clearly wrong. Therefore, legally and factually sufficient evidence exists to support the jury's verdict.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: October 7, 2003
Date Decided: October 8, 2003
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