Affirmed and Memorandum Opinion filed February 13, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-01-01140-CR
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CHRISTOPHER MICHAEL BUTLER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from County Court at Law Number Two
Brazoria County, Texas
Trial Court Cause No. 117,514S
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M E M O R A N D U M O P I N I O N
Appellant Christopher Michael Butler appeals his assault conviction, asserting that the evidence was legally and factually insufficient to support his conviction because of a variance between the information and the trial evidence. Appellant also asserts the trial court erred in refusing to give the jury an instruction on self-defense. We affirm.
I. Factual and Procedural Background
Police responded to two calls from appellant’s house. The first was apparently in response to a call from appellant, who was arguing with his girlfriend, Amanda Evans, and wanted her to leave. The police arrived just before midnight and told appellant his girlfriend had a right to stay at his house because she had lived there for more than a year. There was no indication of violence when police responded to the first call.
The second call came in the early morning hours from Amanda Evans. Sergeant Vincent Garcia of the Freeport Police Department was the first to respond to the second call. When Sergeant Garcia arrived, he found Evans outside the home crying and in pain. He could tell she had been struck in the face because she had redness and swelling in her left eye. She told Sergeant Garcia that her boyfriend had assaulted her. Evans was seven months pregnant at the time and was wet from the waste down. A medic and emergency-room nurse also testified that Evans reported, in the course of treatment, that appellant had struck her face.
Officer Matt Wise of the Freeport Police Department arrived at the scene after Sergeant Garcia, and he saw Evans lying in the front yard, near the ambulance, screaming and crying. The officers arrested appellant at the scene, and Officer Wise drove appellant to the police station. En route, appellant asked Officer Wise about his girlfriend’s condition. Officer Wise informed appellant that Evans had possibly gone into early labor. Although appellant never said he hit or injured Evans, he stated that he was a “sorry SOB” for what he had done to his girlfriend.
Appellant was charged by information with assaulting “Amanda Butler,” and he pleaded not guilty. At trial all evidence pertained to Amanda Evans, who was appellant’s girlfriend at the time of the offense. The trial evidence consisted of an ambulance report, an emergency-room report, and the testimony of several witnesses, including Evans. The jury found appellant guilty, and the trial court assessed punishment at seventy-five days’ confinement in the Brazoria County Jail.
II. Analysis and Discussion
A. Is the evidence legally and factually insufficient?
In his first and second issues, appellant asserts the evidence adduced at trial is legally and factually insufficient to support his conviction. The only argument appellant makes in support of these issues is that the information charged him with assault of “Amanda Butler,” but all of the evidence at trial pertained to Amanda Evans. Appellant argues this was a fatal variance because this charging instrument was the only source he had that identified the complainant in this case.
When there is a variance between the State’s charging instrument and proof, we must affirm the trial court’s judgment unless the record shows the variance was material. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). A variance is material if it (1) deprives the defendant of notice of the charges against him; or (2) subjects the defendant to later prosecution for the same offense. Id. In Fuller v. State, the Texas Court of Criminal Appeals held that a variance between the name in a charging instrument and the proof adduced at trial is immaterial when the complainant’s name is not a substantive element of the offense and there is no indication in the record that the defendant was thereby deprived of notice or subjected to double jeopardy. 73 S.W.3d 250, 254 (Tex. Crim. App. 2002). In Fuller, the indictment charged the defendant with “injury to an elderly individual” committed against “Olen M. Fuller,” appellant’s father. Id. at 251. However, during trial the parties only referred to the complainant as “Mr. Fuller” or “Buddy” and the prosecution did not present any evidence that he was Olen M. Fuller. Id. at 251–54. The evidence that defendant injured the elderly victim by punching him in the face was sufficient because it provided “proof of every fact necessary to constitute the crime charged of ‘injury to an elderly individual.’” Id. at 253. As in Fuller, the evidence in this case is sufficient because there is evidence of every fact necessary to constitute assault and the variance did not deprive appellant of notice or subject him to double jeopardy. A person commits an assault if he “intentionally, knowingly, or recklessly causes bodily injury to another.” Tex. Pen. Code § 22.01. The evidence in the record is sufficient to support the conviction because it provides proof of every fact necessary to constitute assault, i.e., that appellant hit and injured another. The variance is immaterial because nothing in the record shows appellant “did not know whom he was accused of injuring or that he was surprised by the proof at trial.” Fuller, 73 S.W.3d at 254. Furthermore, the variance did not subject appellant to another prosecution for the same offense because the entire record, not just the charging instrument, may be referred to in protecting against double jeopardy in the event of subsequent prosecution. See id. (citing Gollihar, 46 S.W.3d at 258).[1] Because the variance between the information and evidence adduced at trial is immaterial, we hold the evidence is legally and factually sufficient to support the conviction. We overrule appellant’s first and second issues.
B. Did the trial court err by not charging the jury on self-defense?
Appellant asserts in his third issue that the trial court committed reversible error because it did not charge the jury on self-defense. Appellant argues he was entitled to a self-defense instruction because the evidence raised the issue of self-defense. See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999) (holding that an accused is entitled to an instruction on any defensive issue raised by the evidence, whether the evidence is strong or weak, unimpeached or contradicted, and regardless of what court may or may not think about the credibility of this evidence). Section 9.31 of the Texas Penal Code provides that a person is “justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” Tex. Pen. Code § 9.31. We must decide whether the evidence, viewed in the light most favorable to appellant, is sufficient to raise the issue of self-defense. See Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (en banc). Though a non-testifying defendant may be entitled to a jury charge on self-defense, it is rare for this defense to be raised when the defendant does not testify. Id.
Evans’s testimony at trial was inconsistent and somewhat contradictory. She testified that she loved appellant and did not want him prosecuted in this case. Initially, she stated that she remembered telling the police that appellant hit her, but that these statements were not true. She testified that her “injuries did not occur from Mr. Butler” and that he did not hit her. She stated that she was the violent one in her relationship with appellant. According to Evans’s trial testimony, she hit appellant a few times and slapped him once, and he did not have any way of getting away. She also stated that appellant attempted to defend himself and that the swelling in her face could have been due to appellant’s defensive actions. On the other hand, Evans also testified that her facial injuries resulted from her falling down in anger. On redirect examination, Evans testified that she hit appellant twice in the chest with her fist, pushed him, slapped him once, and that, in response, appellant “stood there looking at [Evans].” Evans said that appellant did not hit her back but that he “[g]rabbed [her] hands or put his hands up to defend himself.”
The evidence does not show that appellant believed force was immediately necessary to defend himself. Evans testified in part that appellant did not cause the injuries to her face and that appellant did not respond to her alleged attack on him. This testimony does not raise the issue of self-defense. Though, at one point, Evans did say that appellant attempted to defend himself and that the swelling in her face could have been due to appellant’s defensive actions, this testimony does not raise the issue of self-defense because it is not evidence that, at the time appellant used force against Evans, he was in fear of harm and believed force was immediately necessary to defend himself.[2] See Barree v. State, 621 S.W.2d 776, 779 (Tex. Crim. App. 1981) (holding trial court did not err in refusing to charge jury on self-defense because there was no evidence appellant was in fear of receiving unlawful force from complainant at the time of the offense); Clifton v. State, 21 S.W.3d 906, 908 (Tex. App.—Fort Worth 2000, pet. ref’d) (stating there was no testimony that appellant was in fear of bodily harm); McFarland v. State, 834 S.W.2d 481, 487–88 (Tex. App.—Corpus Christi 1992, no pet.) (finding no error in refusal to charge jury on self-defense when there was no evidence showing appellant believed the use of force was immediately necessary to protect himself).
Because the evidence at trial did not raise the issue of self-defense, the trial court correctly denied appellant’s request for a self-defense jury instruction. Accordingly, we overrule appellant’s third issue.
Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed February 13, 2003.
Panel consists of Justices Yates, Anderson, and Frost.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Appellant’s reliance on Ward v. State is misplaced because in that case the misidentification of the building-owner complainant in the indictment went to a substantive element of the charged offense, namely the consent of the owner. See Ward v. State, 829 S.W.2d 787, 788 (Tex. Crim. App. 1992), overruled on other grounds, Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000).
[2] We do not address the reasonableness of any such belief by appellant, which would have been an issue for the jury if self-defense were otherwise raised by the evidence. See Hayes v. State, 728 S.W.2d 804, 806–09 (Tex. Crim. App. 1987).