### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00713-CV

In the Matter of D. P.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. J-18,744, HONORABLE WILLIAM D. KING, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

After a bench trial, appellant D.P. was adjudicated delinquent based on the offense

of assault on a public servant. S ee Tex. Pen. Code Ann. § 22.01(b)(1) (West Supp. 2004). The court

committed appellant to the custody of the Texas Youth Commission. In one issue on appeal,

appellant contends that there was a material variance between the state’s allegations in the original

petition and the evidence adduced at trial, which was substantial, misleading and prejudicial and

rendered the evidence legally insufficient to support appellant’s adjudication of delinquency. We

will affirm the trial court’s judgment.

Factual and Procedural Background

In September 2002, while residing at the Travis County Leadership Academy (the

Academy), appellant made a phone call to someone who was not on his approved list. After one of

appellant’s peers confronted him about the illicit phone call, a group of Academy residents engaged

in a “huddle-up,” a process used at the Academy to confront negative behavior. During the “huddle-2

up,” the participants stand in a circle and attempt to talk through a problem. During this particular

“huddle-up,” a ppellant kept telling his peer that he did nothing wrong, but the peer insisted that

appellant confess to making the illicit phone call. According to Vicki O’Hara, a residential treatment

officer at the Academy, the appellant “lost it” when his peer refused to believe him.

Michael Botello, a residential treatment officer at the Academy, was the target of the

assault. He testified that he saw appellant make fists with his hands and begin cursing. Such

aggressive behavior in the “huddle-up” was against Academy rules. Botello approached appellant,

told him to take a time-out, and began walking him to the time-out room. When they came to the

door, appellant turned around an d started swinging his arms at Botello. Botello immediately grabbed

appellant and wr estled him onto his back on the floor. Before Botello grabbed appellant’s arms,

appellant hit Botello in the face two times. After restraining appellant’s arms, Botello rolled

appellant onto his stomach and put him into a primary restraint hold, a maneuver used to restrain

j uveniles who become violent. While being held in this position, appellant began scratching at

Botello’s side until O’Hara restrained appellant’s hands. Four other Academy officers came to the

scene to help control appellant. They held appellant down for twenty minutes until appellant said

he was calm, and they released him. Appellant then backed up to a wall, raised his fists, and said,

“All right, what’s up now, what do y ’all want to do now.” The officers restrained appellant for

another fifteen minutes.

When asked whether he felt any pain from the punches, Botello testified that he did

not initially feel the impact of being hit. He said there was no bruising on his face, and he did not

recall observing any redness after the incident. While appellant’s hands were at his sides as he was3

bein g held on the floor, Botello said he was trying to “punch me, scratch me on the side.” When

asked, “Did that hurt at the time?,” he answered, “Yes.” He said appellant’s actions physically hurt

him at the time and left scratches. When asked what appellant used to scratch him, Botello said,

“His fingers, his hands.” The defense had no questions for Botello.

James Richard, a nurse at the Academy, was one of the participants in restraining

appellant. He said that appellant was kicking Botello “rather violently” and attempting to “claw and

scratch him.” Richards said that the punches struck Botello in the head, the back of the head, and

the top of the neck area. He observed that appellant had several abrasions on his body. Dionecia

Garcia, another staff member who participated in restraining appellant, testified that during the time

appellant was being restrained, he was constantly threatening the staff and the boy who reported his

phon e call. When released from the restraint, appellant backed up against a wall and assumed a

threatening posture. As they restrained appellant a second time, Garcia was hit twice in the head

with an elbow.

After the prosecution rested, the defense moved for a directed verdict, claiming that

the State had not proved the element of bodily injury or that appellant knew that Botello was a public

servant. The court overruled the motion for directed verdict.

Discussion

In his only issue on appeal, appellant contends there was a material variance between

the State’s allegations in the original petition and the evidence adduced at trial; that variance was

substantial, misleading and prej udicial and rendered the evidence legally insufficient to support

appellant’s adjudication of delinquency.1 Although the State discusses the jeopardy prong of Gollihar , appellant does not contend that

the variance exposes him to double jeopardy. Accordingly, we do not discuss that aspect of variance

analysis.

4

The court of criminal appeals has held that a variance between a charging instrument

and evidence adduced at trial is a legal sufficiency issue. S ee Gollihar v. State

, 46 S.W.3d 243, 246

(Tex. Crim. App. 2001). Such an issue arises when the State proves a defendant guilty of a crime,

but the evidence shows that the crime was committed in a manner that varies from the allegations

in the indictment; if such a variance is material, the evidence may be insufficient to sustain the

conviction. I

d

. G ollihar rejected the surplusage doctrine, which formerly required the State to prove

an “extra or unnecessary allegation [that] ‘is descriptive of that which is legally essential to charge

a crime.’” I

d

. at 250 (quoting Eastep v. State , 941 S.W.2d 130, 134 n.7 (Tex. Crim. App. 1997)).

The Gollihar court held that a variance is fatal only if it is mater ial and if it prejudiced the

defendant’s “substantial rights” by denying him the ability to adequately pr epare a defense or by

exposing him to the risk of being prosecuted later for the same crime. I d

. at 257 (citing United States

v. Sprick , 233 F.3d 845, 853 (5th Cir. 2000)). 1

Although this Court has noted that a juvenile adjudication proce eding is a quasicriminal proceeding, see In re M.S.

, 940 S.W.2d 789, 790-91 (Tex. App.—Austin 1997, no writ),

juvenile proceedings generally are governed by the rules of civil procedure and the family code. Tex.

Fam. Code Ann. § 51.17 (West Supp. 2004); In re R.J.H.

, 79 S.W.3d 1, 6 (Tex. 2002); In re L.M.

,

993 S.W.2d 276, 280 n.3 (Tex. App.—Austin 1999, pet. denied); In re O.C.

, 945 S.W.2d 241, 243

(Tex. App.—San Antonio 1997, no writ). Under the rules of civil procedure, an alleged variance

between the pleadings and pr oof is evaluated by considering whether the variance is substantial,2 “[T]o pierce or penetrate” is also definition nine in W ebsters Third New International

Dictionary 2262 (Philip B. Gove ed., 1986).

5 misleading, and prejudicial. O .C.

, 945 S.W.2d at 243 (citing Brown v. American Transfer & Storage

Co.

, 601 S.W.2d 931, 937 (Tex. 1980)); In re A.B.

, 868 S.W.2d 938, 942 (Tex. App.—Fort Worth

1994, no writ).

In this case, the original petition stated that the appellant “on or about the 9th day of

September, 2002, in Travis County, State of Texas

. . . did then and there knowingly, intentionally,

and recklessly cause bodily injury to Michael Botello, a public servant, by striking the said Michael

Botello with his hand, while Michael Botello was lawfully discharging an official duty and when the

said [appellant] knew Michael Botello was a public servant.” Appellant contends that his rights were

prejudiced because the prosecution switched to an alternate theory of guilt midway through trial by

proving that appellant caused bodily injury by scratching appellant with his hand rather than striking

him with his hand.

Appellant claims that no definition of the word “strike” includes the word “scratch,”

relying on its absence from fifty-seven definitions of “strike.” See American Heritage Dictionary

1276 (William Morris ed., New College Edition 1976). Appellee counters with the definition of

“strike” as to “penetrate or pierce,” relying on the American Heritage Dictionary (Joseph P. Pickett

ed., 4th ed. 2000). 2 “Strike” also means to come into forceful contact with or collide with.

Webster’s Third New International Dictionary 2262 (Philip B. Gove ed., 1986). Appellant has not

demonstrated how he was surp rised or mislead or how his trial preparation was affected by an

allegati on of “striking” with his hand and proof that the bodily injury was caused by “scratching”6

using appellant’s hands and the fingers that are part of his hands. Similarly, one can also read the

word “strike” to mean that the appellant was accused of causing bodily injury by his hands colliding

or coming into f

orceful contact with Botello. Again, appellant has not demonstrated how he was

surprised or mislead. The record indicates that appellant did not raise the variance issue until his

motion for new trial. All of the participants in the altercation testified; although appellant chose not

to cross-examine Bot ello, he cross-examined other witnesses. Appellant did not object to the

testimony concerning appellant kicking and scratching Botello while in the restraint hold as well as

punching him.

This case is distinguishable from L.G.R. v. State

, on which appellant relies. S ee 724

S.W.2d 775, 775 (Tex. 1987). In L .G.R.

, the State charged that the defendant had intentionally set

fire to a building. I

d

. At trial, the jury charge authorized conviction if the jury found that defendant

had intentionally set fire to a boxcar outside the building. Because the State failed to allege that the

defendant had set fire to a boxcar, the defendant was prejudiced in adequately preparing a defense.

Id . at 776. Without knowing that the State would proceed under a theory of transferred intent, the

defendant could reasonably have believed that he only intentionally set fire to the boxcar and that

this precluded him from being guilty for intentionally setting fire to the building. Id

.

In contrast, in this case, the State alleged that appellant inflicte d bodily injury by using

his hands. The evidence showed bodily injury by use of appellant’s hands. The jury was so charged.

There was no change in the State’s theory and proof that appellant inflicted bodily injury by using

his hands. Appellant has not carried his burden of showing that he was harmed by the variance. S ee

Santana v. State

, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001) (burden of demonstrating surprise or3 The supreme court has not decided whether the G ollihar standard should apply to juvenile

adjudication proceedings. However, we need not address this question here. Even if we assume that

Gollihar applies, appellant has not explai ned how his substantial rights were prejudiced by the

alleged variance. There is no evidence that he was unable to prepare an adequate defense. S ee

Santana v. State , 59 S.W.3d 187, 194-95 (Tex. Crim. App. 2001).

7 prejudice rests with defendant). We therefore hold that any variance that may have existed between

the State’s petition and the evidence presented at trial was not fatal. 3

The gravamen of appellant’s complaint really is that the State did not prove the

element of bodily injury. Appellant believes that the scratches inflicted on Botello and his testimony

that he felt pain from appellant’s activities with his hands are insufficient to establish bodily injury.

The definition of bodily injury is “physical pain, illness, or any impairment of physical condition.”

Tex. Pen. Code Ann. § 1.07(a)(8) (West Supp. 2004). This definition is purposefully broad, seeming

to encompass even relatively minor physical contacts so long as they constitute more than mere

offensive touching. S ee Lane v. State

, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (assailant

grabbed wallet and victim’s fingers and twisted, leaving bruise on wrist, victim testified she suffered

pain ; adequate to show bodily injury although not struck or pushed down by assailant); L ewis v.

S tate

, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975) (physical pain when briefcase grab bed, arm

twisted back

leaving small bruise); S alley v. State

, 25 S.W.3d 878, 881 (Tex. App.—Houston [14th

Dist.] 2000, no pet.) (police officer found appellant crying and in pain, her hair was “messed up in

back,” and she said defendant hit her in the head with his fist; sufficient evidence to show bodily

injury); cf. In re M.C.L.

, 110 S.W.3d 591, 600 (Tex. App.—Austin 2003, no pet.) (evidence

insufficient to show bodily injury f rom juvenile kicking officer when only evidence of injury to

officer was cuts from glass shards from juvenile breaking window during struggle to force juvenile4 The State did not charge appellant with an offense requiring the State to prove s erious bodily

injury. S ee Tex. Pen. Code Ann. § 1.07(a)(46) (West Supp. 2004) (serious bod ily injury means

bodily injury that creates a substan tial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily member or organ).

8 into police car). “In fact, the degree of injury sustained by a victim and the ‘type of violence’ utilized

by an accused appear to be of no moment

. . . .” L ane

, 763 S.W.2d at 786. Here, there is testimony

concerning pain inflicted by appella nt’s hands making forceful contact with Botello during the

struggle when appellant was punching and scratching Botello, testimony that abrasi ons were

observed, and testimony concerning residual scratch marks on the skin which indicated some degree

of penetration of the skin. The State proved the element of bodily injury. 4

Conclusion

Appellant failed to establish a fatal variance between the State’s pleading and proof.

Accordingly, sufficient evidence supported his adjudica tion as delinquent based on the offense of

assault on a public servant. We overrule his only issue and affirm the trial court’s judgment.

__________________________________________

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: May 6, 2004