IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 669-99

DOUGLAS CHARLES GOLLIHAR, Appellant

v.


THE STATE OF TEXAS



ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

HOOD COUNTY


Keller, P.J., filed a concurring opinion in which WOMACK, J., joined.

CONCURRING OPINION



Under Malik, the sufficiency of the evidence is measured "by the elements of the offense as defined by the hypothetically correct jury charge for the case." (1) This hypothetically correct 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." (2) The focus of the inquiry is upon the elements of the offense. Malik requires a hypothetically correct charge because measuring sufficiency by reference to the indictment ignores some important issues relating to sufficiency, such as the law of parties. (3) The hypothetically correct charge is a mechanism by which we determine what must be proven. Today we are confronted with the question of whether, using this mechanism, a go-cart serial number must be proven

As the Court explains, for something to be an element of the offense in a hypothetically correct jury charge, it must be "authorized by the indictment." In Curry, we explained that the law as "authorized by the indictment" entails "the statutory elements of the offense...as modified by the charging instrument." (4) When the indictment alleges some, but not all, of the statutorily listed methods of committing an offense, the State is limited to the methods alleged. (5) In Curry, for example, the indictment alleged only one of two possible ways to "abduct" someone: using or threatening to use deadly force. (6) The State could not expand the bases of the defendant's liability to include the other definition of "abduct" contained in the statute because the indictment limited the State to the version of "abduct" that was alleged. (7) Likewise, in Planter, the State was limited to the theory of solicitation of capital murder alleged in the indictment. (8) The Penal Code provides two different methods of committing murder for hire: 1) by committing the murder for remuneration or the promise of remuneration, and 2) by employing another to commit the murder for remuneration or the promise of remuneration. (9) The indictment in Planter alleged solicitation of capital murder under the first method but not the second. (10) But the evidence at trial showed the second method but not the first. (11)

Curry and Planter both involved statutorily listed descriptions of offense elements. The State chose to allege some, but not all, of the statutorily listed methods of committing the offense provided by the legislature. The present case involves a different situation: a descriptive averment that is not statutorily listed. The identity of a murder victim, the location of a building that was burglarized, and the description of an item that was stolen are all examples of descriptions of an offense element where the description is not listed in the statute. An indictment may contain such descriptive averments but the question is whether those averments would carry over into a hypothetically correct jury charge. Because, unlike the descriptive averments in Curry and Planter, they are not required to be pled, the answer is "no."

In this case, the go-cart's serial number need not have been pled. The State was not required to allege it in the indictment. If the State had failed to allege the serial number, the defendant could not have succeeded in quashing the indictment on that basis. Failure to prove the correct serial number does not render the evidence insufficient. (12)

With these comments, I concur in the court's judgment.

KELLER, Presiding Judge

Date filed: May 16, 2001

Publish

1. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

2. Id.

3. Id. at 239

4. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

5. Id. at 404-405.

6. Id. at 405.

7. Id.

8. Planter v. State, 9 S.W.2d 156, 159 (Tex. Crim. App. 1999).

9. 19.03(a)(3).

10. Planter, 9 S.W.2d at 159 ("The offense in the present case, as alleged in the indictment...was that appellant 'requested, commanded and attempted to induce Lex Baquer [sic] to engage in specific conduct, namely, to kill Bob Fratt[a].'").

11. Id. ("The evidence does not show that appellant attempted to request, command or attempt to induce Bacquer to kill Fratta. Instead, it shows that appellant attempted to request, command or attempt to induce Bacquer to pay appellant to kill Fratta").

12. The Court overrules Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975). Burrell, however, did not involve sufficiency of the evidence. Burrell held that amending an indictment to remove allegations that were unnecessarily pled but that described an element of the offense was an impermissible amendment of substance. So, Burrell's analysis of indictment amendments should not be applied to the different question of evidence sufficiency. Though the sufficiency analysis may in some cases (like Curry) include an analysis of whether an amendment was proper, the two issues should not be confused.