Johnson, Perry Montez

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0068-11

PERRY MONTEZ JOHNSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
TARRANT COUNTY

K ELLER, P.J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K EASLER, J.,
concurred.

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
 JOHNSON — 2

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

1
Before throwing her against the wall, appellant had choked the victim, thrown her on a
couch, pulled her up by her arm, and choked her again. None of these actions caused the victim
serious bodily injury. The victim testified that appellant used only his hands to throw her against the
wall. He did not kick her or use any means other than his hands to assault her.
2
Johnson v. State, No. 11-09-00037-CR, slip op. at 5 (Tex. App.–Eastland December 16,
2010) (not designated for publication).
3
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
4
953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Clinton v. State, 354 S.W.3d 795,
799 (Tex. Crim. App. 2011) (“To identify ‘the essential elements of the crime,’ we look to ‘the
hypothetically correct jury charge for the case.’”) (quoting Malik).
 JOHNSON — 3

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

5
Malik, 953 S.W.2d at 240.
6
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
7
Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001).
8
Id. at 256.
9
See Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011).
 JOHNSON — 4

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

10
Geick v. State, 349 S.W.3d 542, 547-48 (Tex. Crim. App. 2011) (When pled, a statutory
definition becomes an element of the offense that the State must prove. The statutory method of
committing theft by deception was pled, so it must be proved); Cada, 334 S.W.3d at 768, 776
(When indictment pled retaliation against a “witness,” it was not enough to prove the alternative,
unpled statutory elements of “prospective witness” and “informant.” “Under Jackson, the State must
prove the statutory elements that it has chosen to allege, not some other alternative statutory elements
that it did not allege.”); Curry v. State, 30 S.W.3d 394, 404-05 (Tex. Crim. App. 2000) (The
indictment alleged some, but not all, of the statutory alternative elements of kidnapping. A
sufficiency of the evidence review was limited to the elements that had been alleged.); Planter v.
State, 9 S.W.3d 156, 159 (Tex. Crim. App. 1999) (State pled only one of two statutory alternatives
for proving murder for remuneration. Sufficiency of the evidence was measured only by the
alternative that was pled.).
11
Cada, 334 S.W.3d at 774.
12
Id. at 767 (“We hold that a variance between the pleading of one statutory element . . . and
proof of a different statutory element . . . is material under Gollihar.”). We note, however, that some
theories of law that extend criminal responsibility need not be contained in the charging
instrument—e.g., the law of parties and the law of transferred intent—and may be considered in a
sufficiency review. See Malik, 933 S.W.2d at 239-40.
13
Gollihar, 46 S.W.3d at 244.
 JOHNSON — 5

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

14
Id. at 258.
15
336 S.W.3d 242, 244, 255-58 (Tex. Crim. App. 2011).
16
73 S.W.3d 250, 251, 254 (Tex. Crim. App. 2002).
17
Byrd, 336 S.W.3d at 246-48.
18
Id. at 246-47.
19
Id. at 246-47, 247 n.21, 252-53.
 JOHNSON — 6

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

20
Id. at 246-47.
21
See Ex parte Rathmell, 717 S.W.2d 33, 35-36 (Tex. Crim. App. 1986) (death of each
victim is a separate allowable unit of prosecution for the offense of manslaughter); Saenz v. State,
166 S.W.3d 270, 272 (Tex. Crim. App. 2005) (explaining that each individual victim is the allowable
unit of prosecution for most violent offenses and citing Rathmell).
22
See previous footnote.
23
Ngo v. State, 175 S.W.3d 738, 746 n.27 (Tex. Crim. App. 2005).
24
See Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011) (“Thus, the death of one
victim may result in only one murder conviction, regardless of how the actor accomplished the
result.”).
25
Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008).
26
Id. at 907.
 JOHNSON — 7

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

27
See id. at 905-06.
28
United States v. Richardson, 526 U.S. 813, 817 (1999).
29
Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007).
30
Ex parte Cavazos, 203 S.W.3d 333, 335, 337 (Tex. Crim. App. 2006) (two victims, but
only one offense because there was only a single entry, and the allowable unit of prosecution for
burglary is each entry, not each victim).
 JOHNSON — 8

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 of property. The question we faced in Gollihar

was whether the variance was significant enough that we could not conclude that the State had

proved the same theft—the stealing of the same go-cart—as the one it had alleged. In Byrd, the

variance involved the name of the owner. The specific name of the owner is not an element of the

31
The jury-unanimity context cannot be used for statutory variances because the State must
always prove its statutory allegations. See above.
32
Byrd, 336 S.W.3d at 250-51, 250 n.40. Although we referred to “appropriation of
property” as part of the gravamen, it is clear that both we and the State (with whom we agreed in
part) were referring to the identity of the property that was appropriated, not the method by which
the property was appropriated. See id. at 250-51 (referring to “certain specified property”), 250 n.40
(State contended “that it is the property taken . . . that identifies the allowable unit of prosecution in
a theft case”).
33
See id. at 251 n.43. Of course multiple thefts could be committed against the same person,
e.g. different property stolen on different days.
 JOHNSON — 9

offense of theft,34 but it is a non-statutory description of the statutory, gravamen element of

ownership.35 The question was whether the variance in the name was significant enough that we

could not conclude that the State had proved the same theft when it alleged that property was taken

from Mike Morales but proved, instead, that property was taken from Wal-Mart. Fuller addressed

the variance of a victim’s name in an “injury to an elderly individual” prosecution.36 Because the

offense at issue in that case is an assaultive offense,37 the victim is one of the statutory, gravamen

elements of the offense.38 The question was whether proof of the nickname instead of the full name

created a variance so significant that it left us unable to tell whether the victim proven was the same

person as the victim alleged.39

But as we explained above, a variance could involve a non-statutory allegation that has

nothing to do with the allowable unit of prosecution and, therefore, cannot be a basis for saying that

the proved offense is different from the one that was pled. “Stabbing with a knife” and “bludgeoning

34
Id. at 251.
35
See id. at 252 (“Although the name of the owner is not a substantive element of theft, the
State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the
indictment as the owner is the same person (or entity)—regardless of name—as shown by the
evidence.”).
36
73 S.W.3d at 251.
37
See Cook v. State, 884 S.W.2d 485, 489 (Tex. Crim. App. 1994) (quoting Alvarado v.
State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985) (characterizing “injury to a child” statute, which
exists in the same Penal Code section as the “injury to an elderly individual offense,” as an
“assaultive,” result-of-conduct offense)).
38
Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999) (“the allowable unit of
prosecution for an assaultive offense is each victim”).
39
See Fuller, 73 S.W.3d at 258 (Womack, J., concurring).
 JOHNSON — 10

with a baseball bat” are two possible ways of murdering Dangerous Dan, but they do not constitute

separate offenses. These methods of committing murder do describe an element of the offense: the

element of causation.40 But murder is a result-of-conduct crime. What caused the victim’s death is

not the focus or gravamen of the offense; the focus or gravamen of the offense is that the victim was

killed.41 Variances such as this can never be material because such a variance can never show an

“entirely different offense” than what was alleged.

In the present case, appellant was charged with aggravated assault by causing serious bodily

injury. The variance in this case involves the charged acts of “hitting the victim with his hand” and

“twisting the victim’s arm with his hand” versus the proved act of “throwing the victim against the

wall.” All of these acts describe the causation element of the offense, but none of them are used to

describe the injury suffered by the victim. What caused the victim’s injury is not the focus or

gravamen of this offense. The aggravated assault offense at issue is a result-of-conduct crime with

the focus or gravamen being the victim42 and the bodily injury that was inflicted.43 “The precise act

or nature of conduct in this result-oriented offense is inconsequential.”44 Had the State pled and

proved different injuries, a question might arise as to whether the difference between what was pled

and what was proved was significant enough to be material. Separate crimes of aggravated assault

40
See TEX . PENAL CODE § 19.02(b)(1)-(3)(“causes the death of an individual”).
41
See Young, 341 S.W.3d at 423.
42
Hawkins, 6 S.W.3d at 560.
43
Landrian v. State, 268 S.W.3d 532, 533, 537 (Tex. Crim. App. 2008).
44
Id. at 537.
 JOHNSON — 11

could be based upon separately inflicted instances of bodily injury.45 But the act that caused injury

does not define or help define the allowable unit of prosecution for this type of aggravated-assault

offense, so the variance at issue cannot be material.

To summarize, variances can be classified into three categories, depending upon the type of

allegation that the State has pled in its charging instrument but failed to prove at trial.46 First, a

variance involving statutory language that defines the offense always renders the evidence legally

insufficient to support the conviction (i.e. such variances are always material). Second, a variance

involving a non-statutory allegation that describes an “allowable unit of prosecution” element of the

offense may or may not render the evidence legally insufficient, depending upon whether the

variance is material (i.e. such variances are sometimes material). Finally, other types of variances

involving immaterial non-statutory allegations do not render the evidence legally insufficient.47 The

variance in the present case falls within the third category.

We affirm the judgment of the court of appeals.

Delivered: March 21, 2012
Publish

45
At this juncture, we need not address whether “bodily injury” under the aggravated-
assault statute consists of each discrete harm suffered by the victim or consists of all damage
suffered by the victim in a single transaction. However bodily injury is defined, a separate bodily
injury would be a separate offense.
46
See also Fuller, 73 S.W.3d at 255-57 (Keller, P.J., concurring) (discussing three types of
variances).
47
We do not address whether a variance under this third category could be significant
enough to warrant a new trial based upon lack of notice.