NO. 1283-98








Keller, P.J., filed a concurring opinion.


I disagree with the Court's conclusion that Malik and Gollihar impose state-law rules, and I write separately to explain how the law of variances operates in the legal sufficiency arena.


Due process is the touchstone of the legal sufficiency review, and the standard formulated in Malik is simply the vehicle designed to implement the federal constitutional protection. (1) The Supreme Court's opinion in Jackson requires that evidentiary sufficiency be measured by the substantive elements of the offense as defined by state law. (2) In Malik, we set forth the standard for ascertaining what those elements are: "the elements of the offense as defined by the hypothetically correct jury charge for the case." (3) We further explained that a 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." (4)

Subsequent cases have further developed the standard set forth in Malik, as various facets of evidentiary sufficiency law were raised before us. In Curry, we explored what is meant by being "authorized by the indictment." (5) We held this phrase to mean that a sufficiency review must encompass "the statutory elements of the modified by the charging instrument." (6) When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. (7)

In Gollihar, we addressed the sufficiency implications of a variance between the indictment and the evidence at trial. (8) We held that, under the hypothetically correct jury charge, "only a 'material' variance will render the evidence insufficient." (9) In arriving at this holding, we discussed two purposes of the doctrine against variances: notice and jeopardy preclusion - an indictment should give the defendant enough notice of the crime to allow him to prepare an adequate defense at trial and it should preclude the defendant from being prosecuted later for the same crime. (10) The variance at issue in the case was the difference between the go-cart model number alleged in the indictment and the number proved at trial. (11) In holding that the variance was not material, we remarked that the State was not required to plead the model number and that the defendant's defensive theory was not impacted by the variance. (12) We also held that the variance would not place the defendant in danger of being prosecuted again for the same offense. (13)

The variance at issue in the present case requires a deeper examination of the variance doctrine and its relationship to evidentiary sufficiency. Unlike the go-cart model number in Gollihar, at least part of the complainant's name is required by law to be in the indictment, (14) and at least part of what was required - the first initial of the first name - was not specifically proven at trial. The resolution of the present case becomes clear, however, once we distinguish between different types of variances and how they relate to evidentiary sufficiency.


1. Statutorily-enumerated elements

One type of "variance" involves the State's failure to prove a statutorily-enumerated element pled in the indictment. We addressed this type of situation in Curry and Planter. In Curry, the indictment alleged only one of the two possible ways to "abduct" someone: using or threatening to use deadly force. (15) 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. (16) Likewise, in Planter, the State was limited to the theory of solicitation of capital murder alleged in the indictment. (17) 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. (18) The indictment in Planter alleged solicitation of capital murder under the first method but not the second. (19) But the evidence at trial showed the second method but not the first. (20)

Neither of these decisions characterized the issue as one of "variance." (21) And with good reason. When an appellate court finds a variance, it is ordinarily prompted to determine whether the variance is material. But a Curry/Planter variance is always material. The State cannot "substantially" prove a statutorily-enumerated element of the offense; the element is proven or it is not proven. So while one could call that situation a "variance," it is not the type of variance that calls for a materiality determination.

2. Non-statutory facts defining allowable units of prosecution

But what about allegations that are not found in the relevant statutory provision, such as the identity of the victim in a murder case, a description of the items taken in a theft case, or the type of weapon used in an assault case? As discussed above, under Malik, one of the characteristics of a hypothetically correct jury charge is that it "adequately describes the particular offense for which the defendant was tried." What is an adequate description? The State may not be bound by overly descriptive indictment allegations, but by the same token, the hypothetically correct jury charge cannot be invoked "to wholly re-write the indictment to charge a different offense." (22) When, if ever, does a variance in proof involving a non-statutory indictment allegation establish a different offense from the one alleged?

The answer to these questions turns on the concept of jeopardy-preclusion. While a lack of notice may implicate due process, it does not implicate sufficiency concerns. If a defendant fails to receive proper notice, the remedy is to give him that notice, in a new trial if necessary, not to terminate the prosecution. But double jeopardy rights do involve an interest in terminating the prosecution. And that interest is implicated when a particular fact is used to distinguish one offense from another. In double jeopardy parlance, such a fact is one that defines the "allowable unit of prosecution." (23)

For example, a defendant who murders two people has committed two offenses, not one. In a given case, the statutorily-enumerated elements of the two murders could be the same, but the identity of the victims would nevertheless distinguish each offense from the other. (24) If the defendant is indicted for murdering Mary, but the State proves that he murdered John, protecting the defendant's double jeopardy rights requires acquitting the defendant of the murder of Mary. After such an acquittal, the State could seek an indictment alleging the murder of John. Acquittal as a remedy for a variance protects the defendant's double jeopardy interests while also allowing the State an opportunity to prosecute for the "correct" theory of the crime.

This analysis applies to any situation in which the non-statutory fact defines an allowable unit of prosecution. A defendant indicted for theft for stealing a car should not be convicted of stealing a necklace. These types of variances - involving non-statutory facts that define allowable units of prosecution - are sufficiency questions.

But non-statutory facts pose a problem because they are elements of the offense only to the extent that they distinguish one offense from another, and by so doing, protect a defendant's double jeopardy interests. There is no set formula for alleging these facts. For example, double jeopardy interests do not necessarily require proof of a murder victim's full name, or even the last name, so long as the victim is identified with sufficient particularity that a conviction or acquittal will serve as a jeopardy bar to any future prosecution for murdering that particular victim. Another example, addressed in Gollihar, is the description of property stolen in a theft offense. How particular must the description be? And if the description is inaccurate in the smallest detail, should the true description be considered a different offense from the description alleged? This is where the law of material variance comes into play: the non-statutory fact alleged in the indictment must not materially vary from the non-statutory fact proved. In this way, we ensure that the defendant is not convicted of committing a different crime from the one with which he was charged, while avoiding the imposition of hypertechnical pleading and proof requirements that are not really necessary to protect the defendant's double jeopardy interests.

3. Other non-statutory facts

When a non-statutory fact does not define an allowable unit of prosecution, any variance involving that fact is simply a notice issue. If, for example, a murder defendant were able to show that he was surprised when the proof at trial involved a shotgun as the murder weapon, instead of a knife as alleged in the indictment, the defendant might be entitled to a new trial but he would not be entitled to an acquittal. In this example, there is no question that the defendant was convicted of the correct offense - murdering a particular individual; he was simply surprised by the evidence.


The "variance" at issue in the present case is a category two variance: a non-statutory fact defining an allowable unit of prosecution. The question is the identity of the individual appellant injured. I agree that the State's failure to specifically prove the victim's first name does not, under the facts of the case, constitute a material variance. There is no real question here that the victim proved at trial was in fact the same person alleged in the indictment. Therefore, I concur in the Court's judgment.

KELLER, Presiding Judge

Date filed: March 27, 2002


 1. Malik v. State, 953 S.W.2d 234, 239-240 (Tex. Crim. App. 1997).

 2. Jackson v. Virginia, 443 U.S. 307, 324 n. 16 (1979)

 3. Malik, 953 S.W.2d at 240.

 4. Id. We noted that this list is not necessarily exclusive. Id. at 240 n. 5.

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

 6. Id.

 7. Id. at 404-405; Gollihar v. State, 46 S.W.3d 243, 254-255 (Tex. Crim. App. 2001).

 8. See Gollihar, supra.

 9. Id. at 257.

 10. Id. at 248 & 257

 11. Id. at 244.

 12. Id. at 258. The defendant admitted that he took the go-cart but claimed that he thought it had been paid for. Id.

 13. Id.

 14. Tex. Code Crim. Proc., Art. 21.07.

 15. Curry, 30 S.W.3d at 405.

 16. Id.

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

 18. 19.03(a)(3).

19. 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].'").

20. 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").

 21. See Curry and Planter, supra.

 22. Gollihar, 46 S.W.3d at 253.

 23. See Sanabria v. United States, 437 U.S. 54, 69-70 (1978).

 24. Phillips v. State, 787 S.W.2d 391, 394 (Tex. Crim. App. 1990).