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. 2018-0170M-CR

Before Sudderth, C.J.; Bassel and Womack, JJ.

Opinion by Chief Justice Sudderth

JOHNNIE DEMPSEY WOOD, Appellant

V.

THE STATE OF TEXAS
2

OPINION

The Texas Penal Code prohibits a felon from possessing a firearm at his home

within a certain period of time after his felony conviction. Tex. Penal Code Ann. 

§ 46.04(a)(1). Appellant Johnnie Dempsey Wood was a felon subject to this 

prohibition. By statute, the timeframe for the prohibition began at Wood’s conviction 

and continued for a minimum of five years, but it could extend longer, with a 

maximum end date falling on the fifth anniversary of four alternative, statutorily listed

events. The State alleged one alternative event—the fifth anniversary of Wood’s 

release from confinement—but the evidence at trial proved a different alternative

event—the fifth anniversary of Wood’s release from parole supervision. Therein lies

the central issue of this case: When an unlawful-possession indictment alleges one 

(and only one) alternative statutory timeframe element but the evidence at trial proves

another, is the variance material? Wood implicitly argues that it is and that the 

evidence is thus insufficient to support his conviction for the offense alleged in the 

indictment. We agree and will reverse.

1

I. Background

Wood was convicted of felony aggravated assault on December 7, 2006, and he 

was sentenced to 30 years’ confinement. But Wood did not serve his full sentence.

1Because Wood’s first issue is dispositive, we need not address his second issue. 

See Tex. R. App. P. 47.1.
3

At some point, he was released from confinement and granted parole.2 And he was 

still on parole on March 4, 2018, when law enforcement officers found five firearms 

at his home.

3

Wood was subsequently indicted for five counts of unlawful possession of a 

firearm by a felon. The five counts differed only in the specific firearm that each

alleged Wood possessed; all five counts of the indictment charged Wood with 

intentionally or knowingly possessing a firearm on March 4, 2018, after “having been 

convicted of the felony offense of aggravated assault on the 7th day of December 

2006 . . . [and] before the fifth anniversary of [his] release from confinement following 

conviction of said felony.” The indictment said nothing about parole.

At Wood’s jury trial, the State did not attempt to prove that Wood possessed 

the weapons within five years of his “release from confinement following 

2The State did not offer evidence to prove when Wood was released from 

confinement, but Chief Deputy Jack Lawson of the Montague County Sheriff’s Office

stated that, based on Wood’s original 30-year sentence, Wood’s parole would continue

until 2036.

3Kent Holcomb, the City of Nocona’s Chief of Police, testified that he went to 

Wood’s residence to arrest him on a felony warrant, and after the arrest, Chief 

Holcomb “cleared the house” and found a gun cabinet in the bedroom that Wood

shared with his ex-wife. Holcomb contacted her, and she retrieved the gun-cabinet 

keys from the bedroom dresser and opened the cabinet to reveal two rifles, two 

shotguns, and a pistol.

Wood’s ex-wife testified that Wood moved in with her in October 2017. The 

firearms were already in her home when Wood moved in. When Wood’s ex-wife

offered to move them, Wood told her that the weapons could stay as long as they 

remained locked up. She testified that Wood knew where the gun-cabinet keys were 

but that she never saw him handle the keys or the firearms.
4

conviction.”

4

 Instead, the State offered evidence that Wood possessed the weapons 

while on parole for his 2006 felony conviction.

Nevertheless, when the jury was asked to determine whether Wood unlawfully 

possessed the five firearms “before the fifth anniversary of the defendant’s release 

from confinement,” the jury found Wood guilty of all five counts “as charged in the 

indictment.” After hearing punishment evidence, the trial court assessed Wood’s 

punishment at twenty-five years’ confinement for each offense, with the sentences 

running concurrently.

Wood appeals, challenging the sufficiency of the evidence to support the 

release-from-confinement elements alleged in each of the five counts of his

indictment.

II. Standard of Review

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

denial of due process.” Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct. 2781, 2786

(1979); Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (quoting Jackson). 

To prevent such an “arbitrary deprivation of liberty,” due process requires that the 

State provide sufficient proof of every element of the offense charged in the 

indictment. Jackson, 443 U.S. at 314, 99 S. Ct. at 2786; Gollihar, 46 S.W.3d at 246 & 

n.3; see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014).

4Wood moved for a directed verdict and a new trial on this basis, but the trial 

court denied both motions.
5

In an evidentiary-sufficiency review, we view all the evidence in the light most 

favorable to the verdict to determine whether any rational factfinder could have found 

the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Herron v. State, 625 S.W.3d 144, 152 (Tex. Crim. App. 2021); 

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The essential elements 

of the offense are defined by the hypothetically correct jury charge. Herron, 625 

S.W.3d at 152; see also Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018)

(“The essential elements of an offense are determined by state law.”). “The 

hypothetically[ ]correct jury 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.” Herron, 625 S.W.3d at 152; 

Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018).

Because the hypothetically correct charge is limited to that “authorized by the 

indictment,” the statutory elements contained in this hypothetical charge are modified

by the factual details and legal theories in the defendant’s charging instrument. Herron, 

625 S.W.3d at 152. So when a statute lists more than one method of committing an 

offense or more than one definition of an element of an offense, and the indictment 

alleges some, but not all, of the statutorily listed methods or definitions, the State is 

limited to the methods and definitions alleged in the indictment. Id.; Rabb, 434 

S.W.3d at 616 (“When the State pleads a specific element of a penal offense that has 
6

statutory alternatives for that element, the sufficiency of the evidence will be 

measured by the element that was actually pleaded, and not any alternative statutory 

elements.”).

But the hypothetically correct jury charge does not necessarily have to track all 

of the indictment’s allegations. Herron, 625 S.W.3d at 152. Whether an allegation 

must be included in the hypothetically correct jury charge depends on the materiality 

of the allegation, i.e., whether a variance between the allegation in the indictment and

the evidence offered at trial would be material. Id.; see Geick v. State, 349 S.W.3d 542,

545 (Tex. Crim. App. 2011) (“[W]hen an indictment needlessly pleads an allegation

that gives rise to an immaterial variance, that allegation will not be included in the

hypothetically correct jury charge.”). But which indictment allegations (and 

corresponding variances) are material? As relevant here, variances involving 

statutorily enumerated elements are always material, and the corresponding indictment 

allegations always bind the State.

5

Johnson 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 

5Generally, a variance is material if it prejudices the defendant’s substantial 

rights, i.e., the indictment, as written, fails to adequately 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 at 547. There are three categories of 

variances: (1) variances “involving statutory language that defines the 

offense . . . [, which] are always material”; (2) variances “involving a non-statutory 

allegation that describes an ‘allowable unit of prosecution’ element of the 

offense . . . [, which] are sometimes material”; and (3) “variances involving immaterial 

non-statutory allegations.” Johnson v. State, 364 S.W.3d 292, 298–99 (Tex. Crim. App. 

2012).
7

that “[t]he Texas ‘immaterial variance’ law as set out in Gollihar does not apply to the

specific statutory elements alleged in the indictment”).

III. Discussion

Texas Penal Code Section 46.04(a) prohibits a felon from possessing a firearm

for a minimum of five years after the conviction,

6 but the maximum timeframe for the 

prohibition and the locations to which it extends depend on several factors. Tex.

Penal Code Ann. § 46.04(a). The statute provides:

A person who has been convicted of a felony commits an offense if he 

possesses a firearm:

(1) after conviction and before the fifth anniversary of the

person’s release from confinement following conviction of the 

felony or the person’s release from supervision under community 

supervision, parole, or mandatory supervision, whichever date is 

later; or 

6Because Wood possessed a firearm more than five years after his felony 

conviction, the cases addressing unlawful-possession offenses within the minimum 

five-year period are distinguishable. Cf., e.g., Cunningham v. State, No. 06-15-00129-CR, 

2016 WL 5377916, at *4 (Tex. App.—Texarkana Sept. 27, 2016, no pet.) (mem. op., 

not designated for publication) (holding that when the possession occurs within five 

years of conviction, “the date of release from confinement [or other alleged statutory

timeframe element] is unnecessary because ‘the period of prohibition extends for this 

duration in any event’”); Fagan v. State, 362 S.W.3d 796, 800–01 (Tex. App.—

Texarkana 2012, pet. ref’d) (noting that Section 46.04 prohibits possession for a 

minimum five-year timeframe but that proof of the statutory timeframe element is 

necessary when the offense occurs outside this minimum timeframe); Tapps v. State, 

257 S.W.3d 438, 445 (Tex. App.—Austin 2008) (“The date of release from 

confinement is not necessary when the alleged possession occurs within five years of 

the date of conviction because the period of prohibition extends for this duration in 

any event.”), aff’d on other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009).
8

(2) after the period described by Subdivision (1), at any location 

other than the premises at which the person lives.7 

Id.

The central issue in this case is the materiality of a variance between the

alternative statutory timeframe elements listed in comma-separated fashion within

Subsection (a)(1). Specifically, Wood was indicted under Subsection (a)(1)’s releasefrom-confinement option, but the State offered evidence of Subsection (a)(1)’s

release-from-parole-supervision option instead. Wood implicitly alleges that the 

variance between these two alternative timeframe elements is material and argues that 

the evidence is insufficient to support his convictions because the State did not prove 

the statutory timeframe element it alleged in each of the five counts of the indictment. 

The State disagrees. It claims that the discrepancy was not material because “the 

variance did not involve an allegation drawn from a delineated option within the 

statute and would not affect the hypothetically[ ]correct jury charge.” According to

the State, the legislature’s structured delineation of subsections is equivalent to 

materiality; therefore, the indictment bound the State to Subsection (a)(1) rather than 

Subsection (a)(2),8 but the indictment did not bind the State to a particular timeframe 

option within Subsection (a)(1).

7Wood possessed a firearm at his residence, rendering Subsection (a)(2) 

inapplicable. See Tex. Penal Code Ann. § 46.04(a)(2).

8Cf. Saldana v. State, 418 S.W.3d 722, 725–26 (Tex. App.—Amarillo 2013, no 

pet.) (acquitting defendant and holding that the conviction could not be sustained
9

This is an issue of first impression for this court.

9

 But it is not an issue on 

which we lack guiding, analogous precedent.

In Cada, the Court of Criminal Appeals discussed material variances in the 

context of another statute: the retaliation statute. 334 S.W.3d at 770–76. There, as 

here, the relevant Penal Code provision set forth numerous alternative ways of 

proving the offense—some delineated in structured subsections and some grouped in

comma-separated lists within subsections:

A person commits an offense if the person intentionally or knowingly 

harms or threatens to harm another by an unlawful act:

based on Subsection (a)(2) of the unlawful-possession statute where the indictment

relied upon Subsection (a)(1) only); Hall v. State, 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 799–801 (same).

9Our sister court has addressed this same issue in an unpublished opinion. 

Trevino v. State, No. 13-14-00280-CR, 2015 WL 2160042, at *3–6 (Tex. App.—Corpus 

Christi–Edinburg May 7, 2015, no pet.) (mem. op., not designated for publication). In 

that case, the State charged Trevino with possessing a firearm before the fifth 

anniversary of his release from parole supervision, but the State offered evidence that 

Trevino possessed the firearm before the fifth anniversary of his release from 

confinement. Id. at *1–2. Relying on Cada, the Trevino court held that the releasefrom-parole-supervision allegation was included in the hypothetically correct jury 

charge, that the variance between the indictment and the evidence was material, and

that the evidence was thus insufficient to support Trevino’s conviction. Id. at *4–6.

Nonetheless, we recognize that this opinion is, at most, persuasive authority. 

See Tex. R. App. P. 47.7(a) (“Opinions and memorandum opinions not designated for

publication by the court of appeals under these or prior rules have no precedential 

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 informant;

or

(B) person who has reported or who the actor knows 

intends to report the occurrence of a crime; or

(2) to prevent or delay the service of another as a:

(A) public servant, witness, prospective witness, or 

informant; or

(B) person who has reported or who the actor knows 

intends to report the occurrence of a crime.

Tex. Penal Code Ann. § 36.06(a) (emphasis added). The State charged Cada with

retaliation “on account of the [complainant’s] service . . . as a witness,” but the 

evidence at trial showed that Cada retaliated “on account of the [complainant’s]

service . . . as a[n] . . . informant.” Id.; Cada, 334 S.W.3d at 774–75. The indictment 

and evidence thus both fit within the same structured subsection—Subsection 

(1)(A)—but the indictment alleged a statutory option within the comma-separated list 

contained in that subsection different from what the evidence supported. Cada, 334 

S.W.3d at 774–75; see Tex. Penal Code Ann. § 36.06(a)(1)(A). The Court of Criminal 

Appeals described the statute as a “‘Chinese Menu’ style of setting out the elements” 

listing out the relevant “elements and alternative elements,” under Subsection (1)(A)

as:

(1) The Defendant
11

(2) a. intentionally [or]

b. knowingly

(3) a. harms [or]

b. threatens to harm

(4) another person

(5) by an unlawful act

(6) a. in retaliation for [or]

b. on account of

(7) a. the service of another [or]

b. the status of another

(8) as a

a. public servant

b. witness

c. prospective witness [or]

d. informant.

Cada, 334 S.W.3d at 770–71 (indentation altered). The court explained that “[t]he 

indictment and jury charge must contain at least one item from each numbered 

element, but it may contain more than one [lettered] alternative element (e.g., the 

indictment might list ‘a public servant, witness, prospective witness, or informant’).” 

Id. But in terms of materiality, if the indictment lists only one lettered item “from a 

penal offense that contains alternatives for that element, the sufficiency of the 
12

evidence is measured by the element that was actually pleaded, not any other statutory 

alternative element.” Id. at 774.

In Cada’s case, then, although the State could have charged him with multiple 

alternative elements—e.g., both “witness” and “informant”—Cada’s indictment only

alleged retaliation on account of the complainant’s service as a “witness,” so the State

was required to “prove the statutory elements that it ha[d] chosen to allege, not some 

other alternative statutory elements that it did not allege.” Id. at 776. In other words, 

the variance between the indictment—which alleged “witness”—and the evidence—

which showed the alternative “informant” element—was material; the evidence was 

legally insufficient to prove the offense alleged. Id.

Like the retaliation statute construed in Cada, the unlawful-possession statute at 

issue here reflects a “‘Chinese Menu’ style of setting out the elements.” Id. at 770; see 

also Trevino, 2015 WL 2160042, at *4–6 (discussing and applying Cada to determine 

materiality of statutory timeframe element in Subsection (a)(1) of unlawful-possession 

statute). And, as Cada demonstrated, the materiality of elements within this menu is 

not dependent upon the legislature’s decision to use structured subsections in the 

statute rather than comma-separated lists. 334 S.W.3d at 770–71; see Trevino, 2015 WL 

2160042, at *5 n.5 (“The mere fact that the statute does not enumerate each option 

separately in its own subsection does not mean that the State may allege one option 

but prove another.”). Rather, to prove that Wood unlawfully possessed a firearm

under Subsection (a)(1), the State was required to prove: 
13

(1) the defendant

(2) having been convicted of a felony

(3) a. intentionally or

b. knowingly

(4) possessed a firearm

(5) after the felony conviction and 

(6) before the fifth anniversary of the later of

a. his release from confinement following the felony conviction,

b. his release from supervision under community supervision,

c. his release from supervision under parole, or

d. his release from supervision under mandatory supervision.

Tex. Penal Code Ann. § 46.04(a)(1). As in Cada, “[t]he indictment and jury charge 

must contain at least one item from each numbered element, but [they] may contain 

more than one alternative element.” 334 S.W.3d at 770–71. The State was free to list

multiple alternative timeframe elements in Wood’s indictment; it could have alleged 

that he possessed a weapon before the fifth anniversary of his release from 

confinement and of his release from parole supervision. See id. at 771 (“It is well 

established that the State may plead in the conjunctive and charge in the disjunctive.”). 

For that matter, the State was free to throw everything at the wall and charge Wood

with possessing a weapon after his conviction and before the fifth anniversary of his 

release from confinement and his release from supervision under community 
14

supervision, parole, and mandatory supervision. Tex. Penal Code Ann. § 46.04; see also 

Trevino, 2015 WL 2160042, at *5 (noting, where indictment included only releasefrom-parole-supervision option, that the indictment could have alleged both releasefrom-confinement and release-from-parole-supervision options). But the State did

not do so. Instead, it alleged only one alternative timeframe element: “release from 

confinement following [Wood’s] conviction.” This was the only statutory timeframe 

element “authorized by the indictment” and included in the hypothetically correct jury 

charge—the charge by which the sufficiency of the evidence is measured. See Herron, 

625 S.W.3d at 152. “That is what federal due process and Jackson v. Virginia require[:] 

proof beyond a reasonable doubt to support every element of the offense alleged.” 

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

The State offered no evidence that Wood possessed any or all of the five 

relevant weapons before the fifth anniversary of his “release from confinement 

following [his] conviction.” Instead, the State offered evidence of a statutory 

timeframe element not alleged in Wood’s indictment: release from parole supervision. 

Because the variance between the release-from-confinement indictment allegation and 

the release-from-parole-supervision evidence offered at trial was material, the 

evidence is legally insufficient to support Wood’s conviction for the offense alleged in 

his indictment. See Trevino, 2015 WL 2160042, at *4 (“Because the ‘nature of release’

[i.e., statutory timeframe] is one of the elements of the offense listed in the statute, the 
15

State was required to prove that element as alleged, and the variance is per se

material.”).

We sustain Wood’s first issue.

IV. Conclusion

The State was required to “prove the [alternative] statutory elements that 

it . . . chos[e] to allege, not some other alternative statutory elements that it did not 

allege.” Cada, 334 S.W.3d at 776; see also Rabb, 434 S.W.3d at 617 (quoting and 

applying Cada). Because the State did not prove what it alleged, we reverse Wood’s 

five convictions and render corresponding judgments of acquittal. See Thomas v. State,

444 S.W.3d 4, 9 (Tex. Crim. App. 2014) (“[A] material variance renders a conviction 

infirm, and the only remedy is to render an acquittal.”).

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Publish

Delivered: November 10, 2021