A study of cases in Texas since 1890 convinces one that a reversal is required in this particular case. Lest this holding be regarded as a recent "technicality" of the times, that notion is soon dispelled by the law that has remained unswerving in this state from early times.
The discussion by J.W.C. Davis in Franklin v.State, 659 S.W.2d 831 (Tex.Crim.App. 1983) traces the background as well as the reasoning in many of the "variance" cases. Where the unnecessary matter is descriptive of that which is legally essential to charge a crime, it must be proven as alleged even though needlessly stated. Id. at 833.
The elements of the offense of arson, as charged against appellant herein, are: (1) a person, (2) with intent to destroy or damage any habitation to collect insurance, (3) starts a fire. It must also be alleged that the habitation is located in Bexar County. [This indictment arose under the former arson statute, TEX.PENAL CODE ANN. § 28.02(a)(2) (Vernon 1974), enacted by Acts 1973, 63rd Legislature, Chapter 399, effective January 1, 1974].
According to long-standing Texas law, the State was required to prove as alleged, that the habitation, the essential element, was "located generally in the 9000 block of John Wagner Road, Bexar County, Texas." The State's proof showed there was no 9000 block of John Wagner Road.
Moreover, the charge submitted to the jury required them to find the location of the habitation to be in the 9000 block. This they could not do, for no proof had been received by them of that fact.
I agree there is a fatal variance between the allegations charging the offense and the State's proof. And, under the double jeopardy edict of our court of criminal appeals and the supreme court of the United States, when there is insufficient evidence to support the verdict, an acquittal must be ordered.
This is a hard lesson for those prosecutors who draw the indictments with the unnecessarily descriptive words of an essential element of the offense. The descriptive words all too often are not legally *Page 656 essential. The lesson is bitter and not soon forgotten.