## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

_________

__________________ No. 02

- 19

- 00460

- CR

_____ _____ ________ _________

On Appeal from the 97th District Court Montague County, Texas Trial Court No. 2018

- 0 170M

- CR

Before Sudderth, C.J.; Bassel and Womack , JJ. Opinion by Chief Justice Sudderth 

### J OHNNIE 

### D EMPSEY 

### W OOD 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 OPI NION
The T e xas Penal Code prohibit s a felon fr om p ossess i ng a firear m at his home
within a certain period of time after his felony convictio n . Tex. Pe nal Code Ann

. § 46.0 4(a) (1)

. Appellant Johnnie Dempsey Wood was a felon su bject to this
pr ohib iti on . By statute, th e time frame f or the prohibitio n be gan at Wood ’ s convicti on and continued for a minimum of five year s , but it could extend longer, with a
maximum end da te falling on the fifth anniversa ry of four alternative , statutorily listed

events
. The Stat e alleged one alternative event

— th e fifth anniversary o f Woo d ’ s release from con finement

— but the evidence at tria l proved a different alternative

event

— the f ifth a nniversary of Wood ’ s release from parole supervisio n . T here in li es the central issue of this case : When an unlawful

- possession indictment all eges o n e (a nd only one ) a lternative statutory timeframe element but the evidence at trial proves another, is t he v ariance material ? Wood implicitly argues that it is and that the
evidence is thus insuffic ie nt to support his conviction for the offense alleged in the
in dict m ent
. We a gree and will reverse
. 1
I
. B ackground Woo d was convicted of felony agg ravated assault on December 7, 200 6 , and he

was sentenced to 30 years ’ confinement

. But Wood did not se r v e his full sentence

.

1 Because Wood ’s first issu e is dispos itive, we ne ed not address hi s second issue

. See Tex. R. App. P. 47.1

.3

A t some point, he was r ele ase d from c onfinement and granted parole. 2 A nd he was still on parole on March 4, 2018 , when law enfor cement officer s foun d five firearms

at his home

. 3
Wood was subsequently indicted fo r five counts of unlaw fu l p ossession of a
firearm b y a felon

. The five counts differed only in the specific firearm that each
al l eged W ood possessed ; all fi ve counts o f the indictment ch a rged Wood with
intention ally or knowi ngly poss es s ing a firearm on March 4, 2018, after “ having been
convicted of the felony offense of ag gravated assault on the 7 th day of December
2006

. . . [ a nd] before the fifth an n iversar y of [his] release from confin e ment following
convictio n of said fel ony . ” The indictment said nothing about parole.
A t Wood ’ s jury trial , t he S t ate did not at tempt to prove that Wo od possessed the weapons within five yea rs o f his “ r eleas e from confinement following

2 The S t ate did not offer evidence to prove when Wood was released from confinement , but Ch ief Deputy Jack L a wson o f the Montague County Sheriff ’ s Of fice stated that , based on Wood ’ s o rigin al 30

- ye ar sentence, Wood ’ s parole wou ld cont inue until 20 3 6

.

3 Kent H olco mb, t he City of Nocona ’ s Chief of Police , testified that he went t o Wood ’ s resi dence to arrest him on a felony warrant , and after the arrest, Chie f Holcomb “ clea r ed the house ” and found a gun cabinet in the bedroom tha t Wood sha red w ith his ex

- wife

. Holcomb contacted her , and she retrieved the gun

- cabinet key s from the be droom dresser and opened th e cabinet to reveal two rifles, two shotg uns, an d a pistol

. Wood ’ s ex

- wife testified that Woo d m oved in wit h her in O c tober 2017

. T he firearms were alr eady in her home when Wood moved in

. When Wood ’ s ex

- wi fe offered to move the m , Wood to ld her that the w e a p ons cou ld stay as long as they remained lo cked up. She testified that Wood knew where th e g un

- cabinet keys were but tha t she nev er saw him ha n dle the key s or the firearms.4

conviction

. ” 4 In s t ead, t he State offered evidence that Wood possessed the we apons while on parole for his 200 6 fe lony c onviction

. Nevertheless , when the jury was as ked to d eter min e whe ther Wood unlaw fully
poss essed the five firearms “ before the fifth anniversary of the de f e ndant ’ s release
from confinement , ” the jury found Wood guilty of all fiv e counts “ as charge d in the
indictment

. ” After hearing punishment evidence, the trial court assessed W ood ’ s punishment at twenty

- five years ’ confinement f or ea ch offense, w

ith the s e n tences running concurrentl y. Wood appeals , challenging the sufficien cy of the evidence t o sup port the
release

- f rom

- confinement elements alleged in each of the five counts of his
indictment

. I I
. Standard of Review

“ It is axiomatic that a conviction upon a charge not made

. . . constitutes a denial of due process. ” Jackson v. Virgini a , 443 U.S. 307, 314, 99 S. Ct. 2781, 2786 (1979) ; G ollihar v. State , 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (quo ting Jackson )

. To prevent such an “ arbitrary deprivation o f li berty, ” d u e proce ss requires that the State provide sufficien t pro of of every element of the offense charged in the
indictment

. Jackson , 443 U.S. at 314, 99 S. Ct. at 2786 ; G ollihar , 46 S. W.3d at 246 &
n.3 ; see Rabb v. State , 434 S.W.3d 613, 616 (Tex. C rim. A pp. 2014)

.

4 W o od moved f

or a directed verdict and a new t rial on this basis , but the trial court d enied bo th motions.5

I n an evidentiary

- sufficiency review , we view all the e vidence in the light most
favorable to the verdict to determine whether a ny rational factfinder could have found
the essentia l elements of the offense beyond a reasonable doubt. Jac k s on , 443 U.S

. at 319, 99 S. Ct. at 2789 ; Herron v. State , 625 S.W.3d 144, 152 (Tex

. Crim. App. 20 21) ; Queeman v. State , 52 0 S .W.3d 616, 622 (Tex. Crim. App. 2017). The essential elements
of th e off

ense are defined by the hypothetically correct jury ch arg e . He rron , 625
S.W.3d at 152 ; see also Febus v . State , 5 42 S.W.3d 568, 57 2 (Tex. Cri m. App. 2018) (“The essential elemen ts of an offense are determined by state law.”). “ The hypothetically [ ] correc t jury charge is one that accurately sets out the law, is a utho rized by the indictment, does no t unnecessarily incre ase 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. ” Herron , 625 S.W. 3d a t 152 ; Ramja ttansingh v. State, 54 8 S.W.3d 540, 546 (Tex. Crim. Ap p . 2018 ).
B ecaus e the hypothetically correct charge is limi ted to th at “ a uthorized by the
indictment , ” the statutory elements contai ned in th is hypothetical charge are mo dified by the factu a l d etails and leg al theories in the def endant ’ s charg

ing instrument

. H

erron , 62 5 S.W.3d at 152

. So w hen a statute li sts more than one method of commi tting an
of fense or more than one definition of an element of an offense, and t h e indictment allege s som e , b ut not all, of the statutorily listed methods or definitions, the St ate is
l imi ted to the methods and definitions a lleged in the indictment

. Id. ; Rabb , 434
S.W.3d at 616 (“When the State ple ads a specific element of a pen al offense that has6

statutory a l ternatives for that el eme nt, the sufficiency of the evidence will be measured by the element t hat was actually pleaded, and not any alternative statutory elements.”)

. But the hypothetically cor rect jury charge does not neces sarily have to track all
of th e indictment ’s a llegation s. Herron , 625 S.W.3d at 152

. Whethe r an allegation
must be included in the hypothetically correct jury charge de p ends on the materiality
of the allegation , i.e., wheth er a variance between the alleg ation in the indictment and
th e evide nce offer ed at tri al would be material. Id

. ; see Geick v. State , 349 S.W.3d 542,
545 (Te x. Crim. App. 2011) ( “ [W] hen an indictment needl essly pleads an allegat ion
that gives rise to an im material variance, that allegat ion will not be included in th e hypothetically correct ju ry c harge

. ”)

. But w h ich indictment allegations ( and corresponding variances ) are material? A s relevant here, v ariances involving

s tatutor i ly enumerated elements are a lways material , and the corresp onding indi ctment allegatio ns a l

ways bind the S tate
. 5 Jo hnson v. State , 364 S.W.3d 292, 298

– 99 (Tex. Crim. App. 2012 ) ; see also Cada v. State , 334 S.W.3d 766, 774 (Tex. Crim. App. 2011) (noting

5 Gener ally, a vari ance is material if it prej u dices the defendant ’ s substantial rights , i.e., th e indictm ent , as written, f a il s to adequa tely inform the defendant of the charge against him or subjects the defendant to the risk of being prosecuted later for the same crime. Ramjattansingh , 548 S.W.3d a t 547

. Th ere are thre e categor ies of variances: ( 1) var

ian ces “ involving sta t ut ory languag e that defin e s the offense

. . . [ , which] are always material ”; (2) variances “ involving a n on

- statutory alle gation that describe s an ‘ a llowable unit of prosecutio n ’ element of the offen se . . . [ , whi ch] are some times mate ria l ” ; and (3) “ var i an ces involvi ng immaterial
non

- statutory allegations

. ” Johnson v. State , 364 S.W.3d 292, 29 8

– 99 (Tex. Cr im. App. 2012)

.7

that “ [t] he Texas ‘ immaterial variance ’ law as set out in Gol lihar does not apply to the
sp e c ific statutory elements a lleged in the indictment ”)

. I II. Discussion T exas Penal Code Section 4 6 .04(a) prohibits a felon from possess ing a firearm
for a minimum of fi ve years after the convi ction , 6 but the maximum timefr a me for the prohibit ion and t he l o c ations to wh ich it exte nds depend on s everal factors

. Tex.
Pe nal Code An n. § 46.0 4(a). The statute provides:
A person who has been convicted of a felony commits an o ffense if he possesses a firearm: ( 1) after convictio n and before the fifth anniv ersa r y of the pers on ’ s releas e from confinement following convict ion of the felony or the person ’ s re lease from supervision under community supervision, par ole, or mandatory supervision, whichever date is la ter; or

6 Because Wood possessed a fi rearm more than five years a fter his felony convic tion , the cases addressing unlawful

- p oss ession offenses w it hin the m in imum five

- year period are distinguis hable. Cf. , e.g. , Cunningham v. State , No. 06

- 15

- 00129

- CR, 2016 WL 53779 16, at *4 (Tex. App.

— Texark ana Sept. 2 7, 2016, no pet. ) (mem. op. , not design ated for publication ) ( hold ing that w h en the possession occurs within five years of conv

i ct ion, “ the d ate of release from confi ne ment [or other alleged statutory timeframe ele ment

] is unnecessary because ‘ t he pe riod of prohibition ex t ends for this d uration in any event ’ ” ) ; Fagan v. S tate , 362 S. W.3d 796, 800

– 01 (Tex. App.

— Texarkana 2012, pet. re f’d) (notin g that S e ct ion 46.04 pro hibi ts p ossession for a minimum five

- year timeframe but that proof of the statutory timeframe element is necessary when t he offens e occu rs outside this minim um timefra me ) ; Tapps v. State , 257 S.W.3d 438, 445 (Tex. App.

— A ustin 2008) ( “ The date of release from confinement is not necessary when the alleged possession occurs within five years of the d at e o f c onviction because t h e period of pro hibition extends for this durat ion in any event. ”) , aff

’ d on other grounds , 294 S.W.3d 175 (Tex

. C rim. App. 2 009)

.8 (2) after the period described by Subd ivis i o n (1), at an y location other than the premises at which the person lives. 7
Id.
The central issue i n this case is the materiality of a vari ance between the
alterna tive statutory timeframe el ements listed in comma

- separ ate d fashion within Subsection ( a

) (1). Specif

ically , Woo d was indic ted under Subsection (a)( 1) ’ s release

from

- con finement option , b ut the State offered evidence of Subsection (a)(1) ’ s

re l ease

- fr om

- par ole

- supervision option i nstead. Wood implicitly alle ge s that the
variance between thes e two alternative t imefra me elements is materia l and argues that
the evi dence is insufficient to support his co nviction s because the S t ate did not prove
the statutory ti me fr ame element it alle ged in each of the f ive counts of the i ndictment

. T he State di sag re es . I t cla im s that the d iscre pancy was not material because “ the variance did not involve an allegation drawn from a d elineated option within the

statute a nd would not aff ec t the hypothetically [ ] co rrect jury charge. ” Ac cording to
th e State , th e l eg

isl ature ’ s structure d delineation of subsections is equivalent to
material ity ; therefore , the indict ment bound the State to Subsection (a) (1 ) rather than
Subsection (a) (2), 8 b ut the i ndictment did not bind the State to a particular timefram e option wi th in Sub sectio n (a)(1)

.

7 Wood possessed a firear m at his residence, re n dering S ubsecti on (a)(2) inapplicable. See Tex. Pe nal Code An n. § 46.0 4(a) ( 2)

.

8 C f. Sal dana v. State , 418 S.W.3d 7 22 , 72 5

– 2 6 (T ex. App.

— Ama rillo 2013, no pet.) ( acquitting defendant and holding t hat the conviction could not be sustained9

T h is is an issue of first impression for this court

. 9 But it is not an issue on
which we lack guid in g , ana l ogous precedent.
I n Cada , the Co urt of Criminal Ap peals discussed material variance s in t he

co ntext of an other statute : t he r e tal iat ion st atute
. 334 S.W.3d at 77 0

– 7 6

. Th ere, as here, t he relevant Penal C ode provision set f orth numerous alternative ways of proving the off

ense

— some delin eated in structur e d subsecti ons a nd some g rou ped in

c omma

- separated lists within s u bsections : A p ers on com mits an offense if the pe rson intentionally or knowingly harms or t hreatens to harm another by an u nlawful act:

based on S ubsection ( a

)(2) o f the unl awfu l

- possession statu te where the i ndictment relied upon Subsection (a)(1) only ) ; Hall v. St

a te , Nos. 05

– 10

– 00084

– CR, 05

– 10

– 00085

– CR, 05

– 10

– 00086

– CR, 05

– 10

– 00087

– CR, 2012 WL 3174130, at * 2

– 5 (Tex. App.

— Dallas Aug. 7, 2012, pet. ref’d) (not designated for publication) (same) ; Fagan , 362 S .W .3d at 799

– 80 1 ( s ame ).

9 Our sister court has addressed this s a me issue in an unpublished o p in ion

. Trevi n o v. State , No. 13

- 14

- 00280

- CR, 2015 WL 2160042, at * 3

– 6 (Tex. App.

— Corpus Christi

– Edinburg May 7, 201 5, no pet.) ( mem. op., not design ated for pu b l ica tion )

. In that case , the State ch arged Trevino with possessi ng a firea rm b efore the fifth anniversary of his release from parole supervision , but the State offered evide n ce that Trevi no possessed the fire arm before the fifth anniversary of his release fro m con finement. Id. at * 1

– 2. Rely in g on Cad

a , the Tr evino co urt held t hat the release

from

- parole

- supervision a llegation was included in the hypoth e ti cally corre ct jury charge , that th e variance between the indictment and the evidence was material, an d th at the evidence was thus insuffici ent to supp ort Trev ino ’ s co nviction. Id

. at * 4

– 6. Nonetheless, w e recognize that this opinion is, at most, persuasive authority. See Tex. R. App. P. 47.7( a) ( “ Opinions and memorandum opinions not designated f or publ i cat io n by the court of appeals under these or prior rule s have n o preceden tia l value [

. ] ” )

.10 (1) in retaliation for or on account of the service or status of another as a: (A ) public servant, witness , prospective witness, or i nfo rmant ; or (B) person who has r eported or who the actor knows intends to report the occurrence of a crime; o r (2) to prev ent or delay the se rvice of anothe r as a: (A) publ i c servant, witness, pros pec tive wit ness, or informant; or (B) person who has r epo rted o r who the actor knows int ends to report the occurrence of a crime.
Tex. Pen al Code Ann. § 36.06 (a) (emphasis added)

. The State c harged Cada with

ret aliat ion “ o n acco u nt of the [ complainant ’ s ] service

. . . as a witnes s , ” but the

e vidence at tria l s howe d that Cada retaliated “ on account of the [ complainant ’ s ]

ser vice

. . . as a[n]

. . . i nformant

. ” Id. ; Cada , 334 S.W.3d at 774

– 75

. The indictment
and evi d ence thus both fit wi thi n the sa me structured subsec tio n

— Subsection (1)(A)

— but the indi ctment al leged a statutory option within the comm a

- separated list
contained in t hat subsection different from what the evidence supported

. Cada , 334
S.W.3d at 774

– 75 ; see Tex. Pen al Code Ann

. § 36.06 (a) (1)(A)

. The Court of Criminal Appeals desc ribed the s tatut e a s a “ ‘ Chines e M enu ’ style of s etti ng out the el ement s ” listing out the relevant “ element s and alternative elements , ” under Subsection (1)( A)

as : (1) The Defendant11

(2) a. inte ntional l y [or]
b. knowingly (3) a. harms [or]
b. threatens to harm (4) ano the r pers on (5) by an unlawful act (6) a. in retaliation for [ or]
b. on account of (7) a. the service of anothe r [or]
b. the status of another (8) as a

a. public servant
b. witn e ss

c. prospective witne ss [or]
d. informant.
Cada , 33 4 S.W.3d at 770

– 71 (inde ntation altered ). T he cour t exp lain ed that “ [t] he indictment and jury charge must contain at least one item from each num bered
elem ent, but it may contain more than one [lette r ed ] altern ative element (e.g., the indictment might lis t ‘ a public ser van t, wit ness, prospecti ve wi tness, or informant ’ )

. ”
Id

. B u t in terms o f materiality, if th e indictment lists only one lettered item “ from a
pe nal offense that contains alternatives f o r that element, the suff iciency of the12

evidence is meas ured by the ele men t that was actually pleaded, not an y other sta tutor y alternative element

. ” Id. at 774

. I n Ca d a ’s case, then, al though the State could h ave charged him with multiple
alternative el e ments

— e .g., both “witness ” and “ informa nt ”

— Cada ’s indi ctment only allege d r etalia tion on account of the complainant ’ s service as a “w itness , ” so the State

was required to “ pro ve the statutory elements that i t ha [d] chosen t o allege, not some
other alterna t

ive statutory elements th a t it did not allege

. ” I d. at 776

. In other w ord s , the variance between the indictment

— whic h alleged “ witn ess ”

— and the evidence

— which showed the al t ernati ve “ informa nt ” element

— was material ; the evidence was legally insufficient to prove the offense alleg ed. Id.
L ike the re taliation statute construe d i n Cada , the unla wful

- possession s tatut e at
issue he re reflects a “ ‘C hinese Menu ’ style of s etting out the elements

. ” Id. at 770 ; see al so Trevino , 2015 WL 2160042, at * 4

– 6 ( disc u ssing and applying Cada to d etermine materiality of statutory tim e frame el em e n t in S ubsection (a)(1) o f unlawf ul

- possession statute)

. And , as Cada demonstrated, the materiality of elements within this men u is

not depend ent upon the l egislature ’ s decision to use structured s ubsection s in the
statute rather than comma

- se parated lis t s . 33 4 S.W.3d at 7 70

– 71 ; s ee T revino , 2015 WL
21 60042, at *5 n.5 ( “ The mere fact that the statute does not enumerate each option separately in its own subsection does not mean t h at the State may allege one option but prove another

. ”)

. R ather, to p rov e th at Woo d unlawf ully possessed a fire arm under Subs ection (a) (1) , the State was required to prove :13

(1) t he defendant (2) ha ving been convicted of a felony (3) a. intentionally or b. knowingly ( 4 ) possesse d a firearm ( 5 ) after the felon y convicti o n a nd (6) be fore the fift h anniversary of the later of

a . his release from confinement following the felony conviction , b

. h is release from supervision und er community supervision,

c . his release from super

vision under parole, or d

. hi s r elease f

rom sup ervisi on u nder mand atory supervision

. T ex. Pen al Code Ann . § 46.04 (a)(1)

. As in C a da , “ [t] he indictment and jury charge

m ust contain at least one item f rom each numbered elem ent , but [they] may contain

more than one alternative element

. ” 334 S.W.3d a t 77 0

– 71

. T h e S t a t e w a s f r e e t o l i s t

m u l t i p l e alternat

ive timeframe elements i n Wood ’s i ndictmen t ; it could have allege d that he possessed a weapon before the fifth anniversary of h i s release from
confinement a nd of his release from p arole su pervision

. S ee i d. at 771 ( “ I t is wel

l
established that the State may plead in the conjunctive and charge in the disjunctive

. ”)

. F or that matter, the State was free to throw everything at the w a ll and charge W ood
with pos s essing a weapon after his convic ti on and befo re t he fif th annive rsa ry of his
release from confine ment and his release from supervision under community14

supervision , p arole , and mandatory supervision. Tex . Pen al Code Ann. § 46.0 4 ; see also
Trevino , 2015 WL 2160042, at * 5 ( noting , where indict me nt incl uded only release

from

- p ar ole

- supervision option , that the indict ment could hav e alleged both release

from

- confin ement a nd release

- from

- parole

- supervision o pti ons )

. But the State di d
not do so . Instead, it al l eged only one alternative t im eframe el ement: “ rel ease f rom confineme nt following [

Wood ’ s ] conviction

. ” Th is wa s the o nly statutory timeframe
element “ autho rized by the indictment ” and included in the hypothetically co r rect jury charge

— the charge by wh ich the sufficiency of the evid en ce is measu red

. See Herro n , 6 25 S.W.3d at 152

. “ That is what federal due process and Jackson v. Virginia require [ :] proof bey ond a reasonable doubt to support every element of the offense alleged. ”
Cada , 334 S.W.3d at 774

. T he State offered no evi de nc e that Wood posses sed a ny or all of the five relevant weapons before the fifth anniversary of his “ release from confinement
fol lowing [

his ] conviction

. ” I nstead, t he State offered evidence of a statutory
timeframe e lement not al leged in Wood ’ s indictment : release from paro le s upervi sion

. Because the v a riance between the release

- from

- confinement indictmen t al legatio n and
the rel ease

- from

- parole

- supervision evidence offered at trial was material, the
evide nce is legally insufficie nt to support Wood ’ s conviction for the offen se a lleged in
his indictment

. See Trevino , 2015 WL 2160042, at * 4 ( “ Because the ‘ nature of rel ea se ’ [i.e., statutory timeframe] is one of the elements of the offense listed in the statute, the15

State was require d to prove th at element as alleged, and the v aria nce is per se
material. ” )

. We sustain Wood ’ s first issue

. I V . Conclusion T he S tate was re quired to “ pro ve the [alternative] statutory elements that
it

. . . chos [e] to allege, not some other alternative st atutory el ements th at it did not
all ege . ” Cada , 334 S. W.3d at 776 ; see a l so Rabb , 434 S.W.3d at 617 ( quoting and applying Cada

)

. Becaus e t he State di d not prove what it alleged, w e reverse Woo d ’ s five conviction s and render corresponding j udgment s of acq uittal

. See Thomas v. State , 444 S.W.3d 4, 9 (Te x. Cri m. App. 2014) ( “ [A ] material variance renders a conviction
inf irm, and the only remedy is to render a n a cquittal. ”)

.

/s/ Bonnie Sudderth
Bonnie Su dder th Chief Justice
Publish
Delivered : November 10, 2021