COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00269-CR

FREDRICK STEINBERGER, III APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 97TH DISTRICT COURT OF ARCHER COUNTY

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MEMORANDUM OPINION1

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Introduction

Appellant Fredrick Steinberger, III, appeals his conviction and sentence for 

a drug offense after the trial court adjudicated his guilt and revoked his deferredadjudication community supervision. In a single issue, Appellant claims there is

a fundamental variance between his name as alleged in the State’s motion to 

adjudicate and the proof offered at the hearing on the State’s motion. We affirm.

 

1See Tex. R. App. P. 47.4.
2

Background Facts and Procedural History

An indictment returned to the 97th District Court by an Archer County 

grand jury on September 2, 2008, in cause number 2008-0000029A-CR, charged

―Frederick Steinberger, III‖ with possession of less than a gram of 

methamphetamine. Later that month, on the 29th, Fredrick Steinberger, III, the 

defendant in that case, pled guilty and the trial court ordered him to pay a fine 

and placed him on two years’ deferred-adjudication community supervision. A 

Guilty Plea Memorandum, containing admonishments and waivers refers to the 

defendant as ―Fredrick Steinberger, III‖ and is signed in numerous places on 

lines beneath which appear the word ―DEFENDANT‖ by ―Fredrick D. Steinberger, 

III.‖ The trial court’s Order of Deferred Adjudication-Community Supervision and 

its Order Imposing Conditions of Community Supervision both refer to ―Fredrick 

Steinberger, III‖ as defendant and are both signed by ―Fredrick D. Steinberger 

III.‖

On March 23, 2010, the State moved to adjudicate and impose sentence, 

alleging that ―Fredrick David Steinberger‖ had committed three new offenses. On 

June 6, 2011, at a hearing on its motion, Appellant pled not true, the State 

abandoned two allegations and presented evidence showing that during the term 

of his community supervision Appellant had assaulted a public servant. The trial 

court granted the State’s motion, adjudicated Appellant guilty, and sentenced him 

to two years’ confinement in state jail.
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The trial court’s order adjudicating guilt and imposing state jail confinement 

refers to ―Fredrick Steinberger, III‖ as the defendant. The trial court’s certification 

of defendant’s right of appeal dated June 3, 2011, refers to ―Fredrick Steinberger, 

III, Defendant‖ and above the line labeled ―Defendant‖ is signed ―David 

Steinberger.‖ Another trial court certification of defendant’s right of appeal, this 

one dated July 25, 2011, refers to ―Fredrick David Steinberger, Defendant‖ and 

above the line labeled ―Defendant‖ is signed ―Fredrick David Steinberger III.‖

Discussion

Appellant contends that the State’s proof of his name at the hearing on its 

motion to adjudicate created a fatal variance from the allegation in its motion, 

which alleged his name as ―Fredrick David Steinberger.‖

The record shows that the trial court opened the hearing as follows:

2

THE COURT: All right. Call Cause No. 2008-29A-CR, The 

State of Texas versus Fredrick David Steinberger set today on the 

State’s Motion to Proceed with Adjudication of Guilt. Is the State 

ready?

MR. McGAUGHEY: The State’s ready, Your Honor.

 

2

The court reporter spelled Appellant’s first name throughout the reporter’s 

record as ―Frederick.‖ Where Appellant’s brief quotes his name from portions of 

the reporter’s record in which it appears, the brief has changed the reporter’s 

record spelling to ―Fredrick,‖ which is also how Appellant’s signature appears in 

documents in the clerk’s record. Appellant does not argue that any variance 

exists due to the reporter’s record spelling his first name with an additional ―e.‖ 

To be consistent with Appellant’s briefing and signature, therefore, we likewise 

drop the second ―e‖ where we quote the reporter’s record in this opinion. 

Appellant’s name quoted from documents in the clerk’s record, on the other 

hand, such as the indictment, is spelled as it originally appears in those 

documents.
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THE COURT: Is the defendant ready?

MR. BARBER [for the Defense]: Ready, Your Honor.

THE COURT: And you’re Fredrick David Steinberger?

THE DEFENDANT: Yes, sir.

The State’s attorney first called probation officer Robert Geurin and asked 

if he knew ―Fredrick Steinberger III, also known as Fredrick David Steinberger.‖ 

Guerin testified that he knew him as ―Mr. Steinberger, yes, Fredrick Steinberger,‖ 

and that he had supervised him while he was on probation. Guerin then pointed 

out the person he had supervised as the ―gentleman sitting at the table there—

next to your left.‖ He also testified that the individual he had identified in open 

court as the person he had supervised was the same person placed on probation 

in Cause number 2008–0000029A–CR.

Archer County Sheriff Staci Beesinger testified that she had a good rapport 

with Appellant—whom she referred to as ―David‖ and ―Davy‖—having dealt with 

him several times in the past. She also testified as follows:

Q. Are you familiar with a person named Fredrick David 

Steinberger?

A. Yes.

Q. Also known as Fredrick Steinberger, III?

A. Yes.

Q. Is that person present in court today?

A. Yes.
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Q. Would you point him out for the Judge?

A. David.

Q. You’ve pointed to the person immediately to the right of 

Mr. Payne the defense counsel; is that correct?

A. Yes, sir.

MR. McGAUGHEY: Your Honor, I would ask the record 

reflect the identification of the defendant or respondent by this 

witness.

THE COURT: It will.

The State’s next witness, Archer County Constable Clayton Brett Hoff 

testified as follows:

Q. . . . Are you acquainted with a person named Fredrick 

David Steinberger sometimes referred to as Fredrick Steinberger, 

III?

A. Yes, I am.

Q. Is that person present in court today?

A. Yes. He’s sitting right here in overalls.

Q. You’ve pointed to the person immediately to the right of 

Mr. Payne the defense counsel; is that correct?

A. Yes.

MR. McGAUGHEY: Your Honor, I would request the record 

reflect the identification of the respondent by the witness.

THE COURT: It will.

The sole defense witness was Archer County District Clerk Judy 

McLemore. She testified that she had resided in that county for sixty-four years 
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and that before becoming District Clerk she had owned a title company. She 

further testified as follows:

Q. . . . . Are you familiar with Fredrick David Steinberger, III?

A. Yes, sir.

Q. Is he seated to my right?

A. Yes, sir.

Q. Do you know his father?

A. Yes, sir, I did.

Q. You knew him in his lifetime?

A. Yes.

Q. And what was his name?

A. David.

Q. You called him David, but did you know what his name 

was? Do you know what [sic] his name appeared in title records in 

this county?

A. Oh, gosh. I’m trying to think. I don’t honestly remember 

his whole full name because I always called him David.

Q. Do you recognize the name of Fredrick David Steinberger, 

Jr., or the II?

A. Yes. I started to say that, but I was afraid I was wrong.
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Q. Okay. Did you know the patriarch of Fredrick David 

Steinberger, the original, who would have been the father of junior 

and grandfather of the third? Did you ever know him?

A. No, sir.

The fatal variance doctrine stands for the proposition that a variance 

between the indictment and the evidence at trial may be fatal to a conviction 

because due process guarantees the defendant notice of the charges against 

him. See Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). The 

doctrine applies to revocations of community supervision. Moore v. State, 11 

S.W.3d 495, 499–500 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see

Taylor v. State, 592 S.W.2d 614, 615 (Tex. Crim. App. [Panel Op.] 1980). But

not every variance between the evidence at trial and the indictment is fatal; only 

a material variance is fatal. Moore, 11 S.W.3d at 500; see Stevens, 891 S.W.2d 

at 650. A variance between the charging instrument and the proof at trial is 

material only if it operated to the defendant’s surprise or prejudiced his rights.

Moore, 11 S.W.3d at 500; see Stevens, 891 S.W.2d at 650, Human v. State, 749 

S.W.2d 832, 837 (Tex. Crim. App. 1988). Likewise, a variance between 

pleadings and proof at a probation revocation hearing is material only if it 

operated to the defendant’s surprise or prejudiced his rights. Pierce v. State, 113 

S.W.3d 431, 439 (Tex. App.—Texarkana 2003, pet. ref’d.); see Chacon v. State, 

558 S.W.2d 874, 876 (Tex. Crim. App. 1977). The burden to show surprise or 

prejudice resulting from a variance rests with the defendant. Santana v. State, 
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59 S.W.3d 187, 194 (Tex. Crim. App. 2001); Human, 749 S.W.2d at 837; Cole v. 

State, 611 S.W.2d 79, 82 (Tex. Crim. App. 1981).

In this case, when the trial court asked Appellant if he was Fredrick David 

Steinberger as alleged in the State’s motion, Appellant said, ―Yes, sir.‖ Three 

other witnesses testified that Appellant was known by that name. Constable Hoff 

testified that the defendant had committed the offense of assault on a public 

servant against him and that the defendant was seated in the courtroom at 

counsel table with the defense attorney.

During closing argument, counsel for Appellant did not argue that

Appellant had received insufficient notice of the allegations against him to 

prepare an adequate defense or that he was surprised or otherwise misled; he 

simply argued that the State was bound by its pleadings and that it should have 

pled Appellant’s name as set out in the order of deferred adjudication.

We need not decide today whether there was any variance in this case at 

all because Appellant has failed to satisfy his burden to show that he was 

prejudiced in any way by the variance he claims exists. See Santana, 59 S.W.3d 

at 194; Human, 749 S.W.2d at 837; Cole, 611 S.W.2d at 82. Accordingly, we 

overrule Appellant’s sole issue.
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Conclusion

Having overruled Appellant’s sole issue, we affirm the judgment of the trial 

court.

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2012