## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

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. P D

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P E R R Y M O N T E Z J O H N S O N , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E E L E V E N T H C O U R T O F A P P E A L S

T A R R A N T C O U N T Y

K E L L E R , P
. J
. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , P R IC E , W O M A C K , J O H N S O N , H E R V E Y , C O C H R A N , a n d A L C A L A , J J
. , j o i n e d
. K E A S L E R , J
. , c o n c u r r e d
. The question in this cas e i s whether a varia nce betwee n the alleg ations in the char g ing
instrument and the proof at trial rende rs the evidenc e leg ally insufficient to support the conviction.

Be ca u s e the varia

nce in this case involves a non-statutory alleg ation that does not aff ect t h e
“allowa ble unit o f p ro secution,” the varia nce cannot rende r the evidenc e leg ally insufficient to support a convic tion. W e shall af firm the judg ment of the c ourt of appe als.
I. BACKG ROUND Appellant was indicted f

o r various counts of agg rava ted assault. The count at i ssue i n theJOHNSON — 2

prese nt case char g ed that appellant did then and there “intentionally or k n o wi n g ly cause serious bodily injury to [t he victim] by hitting her with his hand or by twisting her arm with his hand.” The
victim testified that appellant thre w her ag ainst the wall and tha t hitti ng the wall cause d her to f all
to the floor and br eak he r ar m. 1

On appea l, appellant claimed that this varia nce betwee n pleading and proof rende red the
evidenc e leg ally insufficient to support his conviction. The court of appea ls disag ree d, holding that
the varia nce was “not materia l beca use it only conce rned the method by which appellant cause d the serious bodily

injury .” 2

II. ANALYSIS
The standard for deter

min i ng whether the evidenc e is leg ally sufficie nt to support a
conviction is “whe ther, afte r viewing the evidenc e in the light most favor able to the prosec ution, any
rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable
doubt.” I n Malik v. State , we articula ted the modern Texas standard for asce rtaining what the

3

“esse ntial elements of the crime” are ; they are “the elements of the o ff en s e as d efined by the hy pothetically corr ect jury char g e for the case .” The hy pothetically corr ect jury char g e is one that 4

Be fore throwing her ag ainst the wall, appellant had ch o k ed the victim, thrown her on a 1 couch, pulled h er u p b y h er arm, and choked her ag ain. None of these actions cause d the victim serious bodily injury

. The victim testified that appellant used only his hands to throw her ag ainst the wall. He did not kick he r or use any means other

than his hands to assault her

. Johnson v. State , No. 11-09-00037-CR, slip op. at 5 (Tex. App.–Eastland De cembe r 16, 2 2010) (not desig nated f

or publication).
Jack son v. Virginia , 443 U.S. 307, 319 (1979) (e mphasis in origina l). 3
953 S.W .2d 234, 240 (Tex. Crim. App. 1997); see also Clint on v. State , 354 S.W .3d 795, 4 7 9 9 (T ex
. C rim. App. 2011) (“To identify ‘the essential elements of the crime,’ we look to ‘th e hy pothetically

corr ect jury

char g e for

the ca se.’” ) (quoting Malik ).JOHNSON — 3

at least “ac cura tely sets out the law, is authorized by the indictment, does not unnece ssarily incre ase
the State’s burden of proof or unnece ssarily restric t the State’s theories of liability , and adequately
descr ibes the particula

r offe nse for which the defe ndant was tried.” We have descr ibed the law “as 5
authorized by the indictment” to be “the st at u t o ry elements of the offe nse
. . . as modified by the
char g ing instrument,” but we hav e s aid also that the hy pothetically corr ect jury char g e does not 6

nece ssarily have to tr ack exactly all of the char g ing instrument’s alleg ations. I n Gollihar v. State , 7

we held that “a hy

pothetically corr ect char g e need n o t incorporate alleg ations that g ive rise to
immaterial var iance s.” 8

A varia nce in pleading and proof can occur in two differ en t wa y s
. Fi rst , a varia nce can
involve the statutory lang uag e that define s the offe nse. This can happen when a statute specifie s
alterna te methods by

which an of

fense could be c ommitt ed, the char g ing instrument ple ads one of
those alterna t e methods, but the State proves, instead, an unpled method. For example, the

reta liation statute makes it a crime to threa ten a “witness” or “informa nt.” The first ty

pe of varia

nce

occur s if the State p l ea d s only “witness” in the char g ing instrument and proves only the unpled
element of “inform an t” at trial. Second, a varia nce can involve a non-statutory alleg ation that is 9
descr iptive of the offe nse in some way
. For example, the char g ing instrument pleads “Mar y ” as the victim, b u t t h e S t at e proves “John” at trial. Or the char g ing instrument pleads the offe nse was

Malik , 953 S.W .2d at 240. 5 Curry v. State , 30 S.W .3d 394, 404 (Tex. Crim. App. 2000). 6
Gollihar v. State , 46 S.W .3d 243, 253 (Tex. Crim. App. 2001). 7
Id. at 256. 8
See Cada v . State , 334 S.W .3d 766 (Tex. Crim. App. 2011). 9JOHNSON — 4

committed with a knife, but the State prove s at trial that a ba seball bat wa s used.
Wit h respe ct t o the fi rs t t y p e o f varia

nce betwee n pleading and proof, this Court has held,
both befor e and afte r Gollihar , that the failu re t o p ro ve the statutory lang uag e pled rende rs the
evidenc e leg ally insufficient to sup p o rt the conviction. We have sug g ested that “‘immater ial 1 0
varia nce’ law as set out in Gollihar does not apply ” to this situation, or t hat, i f considered under 1 1
Gollihar , a var iance of this sort is alway s material. 1 2
Gollihar involved the second ty pe of varia

nce—a varia

nce with respe ct to a non-statutory alleg ation that descr ibes the offe nse in some way
. The char g ing instrument alleg ed the theft of a g ocar t with the model number 136202. We ultimately deter mined that the proof of model number 1 3

Geick v. State , 349 S.W .3d 542, 547-48 (Tex. Crim. App. 2011) (When pled, a statutory 1 0 definition become s an element of the offe nse th at the State must prove. The statutory method of committing theft by dece ption was pled, so it must be proved) ; Ca d a , 3 3 4 S

. W

. 3d at 768, 776 (When indictment pled reta liation ag ainst a “witness,” it was not enoug h to prove the alterna tive , unpled statutory elements of “prospe ctive witness” and “informa nt.” “Unde r Jack

son , the State must prove the statutory elements that it has chosen to alleg e, not some other alterna tive statutory elements that it did not alleg e.”) ; Curry v. State , 30 S.W .3d 394, 404-05 (Tex. Crim. Ap p
. 2 0 00) (The indictment alleg ed some, but not all, of the statu t o ry al t erna tive elements of kidnapping

. A
s u ff i ci ency of the evidenc e revie w was limit ed to the elements that had been alleg ed.); Planter v. State , 9 S.W .3d 156, 159 (Tex. Crim. App. 1999) (State pled only one of two statutory alterna tives for proving murder for re m u n era tion. Sufficienc y of the evidenc e was measure d only by the alterna tive that was pled.)

.

Cada , 334 S.W .3d at 774. 1 1
Id. at 767 (“We hold that a varia nce betwee n the pleading of one statutory element

. . . and 1 2 proof of a differ ent statutory element

. . . is materia l under Gollihar .”). We note, howeve r, that some theories of law that extend criminal responsibility need not be containe d i n the char g ing instrument—e.g ., the law of parties a nd the law of

transfe rre d intent—and may be conside red in a sufficie ncy

revie w. See M

alik , 933 S.W .2d at 239-40.
Gollihar , 46 S.W .3d at 244. 1 3JOHNSON — 5

136203 rathe r than 136202 did not constitute a materia l varia nce. Since Gollihar , we have decide d 1 4
other cases invol ving this second ty pe of varia

nce. I n Byrd v. State , we f ound that a variance with

respe ct to the name of the owner in a theft prosec uti o n—“Mike Morales” was alleg ed but “WalMart” was proved—w as materia l and require d an acquittal. But in Fuller v. State , we found that 1 5

a v ar i an ce wi th respe ct to the name of the victim in a prosec ution for injury to an elder ly
individual—“Olen M. F uller” w as alleg ed but “B uddy Fuller ” wa s proved—wa s not materia l. 1 6
So, in contra st t o o u r t re atment of statutory alleg ations, for non-statutory alleg ations we
tolerate some varia tion in pleading and proof. We tolerate “little mistakes” that do not prejudice the
defe ndant’s substantial rig hts but we will not tol era te a varia nce tha t rea lly

amounts to a failure to

prove the o ff

en s e alleg ed. What is essential about varia nces with respe ct to non-statutory 1 7 alleg ations is that the varia nce should not be so gre at t h at the proof at trial “shows an entirely
differ ent offe nse” than what was alleg ed in the char g ing instrument. For ex am p le, in a murder 1 8

prosec ution, the victim’s name need not be proved with exactness, but the State must prove that the
victim alleg ed in the i ndictment is the s ame person as the vi ctim proved at trial. I f t he S tate has 1 9 alleg ed the murder o f “D anger ous Dan” but has proved, instead, t he murder of “L ittle Nell,” then

Id. at 258. 1 4
336 S.W .3d 242, 244, 255-58 (Te x . Crim. App. 2011). 1 5
73 S.W .3d 250, 251, 254 (Tex. Crim. App. 2002). 1 6 Byrd , 336 S.W .3d at 246-48. 1 7
Id . at 246-47. 1 8
Id. at 246-47, 247 n.21, 252-53. 1 9JOHNSON — 6

the State has prove d a diffe rent murde r than it has alleg ed, and a n acquittal is requir ed. 2 0
The key to this conclusion is that eac h v i cti m is an allowable unit of prosec ution for the
offe nse of murder. I f there are multipl e murder victims, the S t at e m ay o b tain multipl e murder 2 1
convictions. So, the murder of one individual is a differ ent offe nse from the murder of a differ ent

2 2
individual. But some ty

pes of fac ts—such as the method by which a murder is committed—do not
rela te at all to the allowable unit of prosec ut i o n
. T h e S t ate could alleg e “poisoning , g arr oting, shooting, stabbing, or drowning ,” of a si ng le i ndividual, and thos e differe nt acts woul d s i m p ly be
al t er n at e m ethods of committing a single offe nse. Wit h only one victim, there can be only o n e 2 3 murder, r eg ardle ss of how that murder is committ ed. 2 4

We are fre quently called upon to deter mine the “allowa

ble unit of prosec uti o n ” i n ca s es
in v o lv in g intertwining strands of our double-jeopa rdy and jury -unanimity ju

r is p r u d e n c e
. I

n ma k in g 25
such a deter

mination, we g ener ally try to asce rtain the focus or g rava men of the offe nse. Most of 2 6
those case s involve determ i n i n g wh ether alterna tive statutory elements mark separ ate offe nses or

Id. at 246-47. 2 0
See Ex parte Rathmell , 7 1 7 S .W.2d 33, 35-36 (Tex. Crim. App. 1986) (dea th of eac h 2 1 victim is a separa te allowable unit of prosec ution for the off ense of manslaug hter); Saenz v. State , 166 S.W .3d 270, 272 (Tex. Crim. App. 2005) (explaining that eac h individual victim is the allowable unit of prosec ution for most violent offenses a nd citing Rathmell ).
See previous footnote. 2 2 Ngo v. State , 175 S.W .3d 738, 746 n.27 (Tex. Crim. App. 2005). 2 3
See Y oung v. State , 341 S.W .3d 417, 423 (Tex. Crim. App. 2011) (“Thus, the death of one 2 4 victim may result in only one murder conviction, reg ardle ss of how the ac t o r ac complished the result.”)

. Huffman v. State , 267 S.W .3d 902, 905 (Tex. Crim. App. 2008).

2 5
Id. at 907. 2 6JOHNSON — 7

simply repr esent alterna tive means of comm i t t i n g the same offe nse. For example, alterna tive
statutory methods of committing a homicide are considere d the same offe nse when the same victim
is involved, but alterna tive statutory methods of committing sexual assault are considere d differ ent
offe nses. But this ty

pe of inquiry

can be made e ven when non- statutory alleg ations are at issue. 2 7
The Supreme Court has explained that a “jury need not alway s decide unanimously which of sever al possible sets of underly ing brute fac ts make up a particula r element, [for instance], which of sever al possible means the defe ndant used to commit an ele m en t o f t h e crime.” I n an injury -to-a- child 2 8

case , we held that a jury did not nece ssarily have to ag ree on what underly ing acts cause d the child’s injuries. And we have held that two burg lary convictions, based upon two victims, violated double

2 9 jeopar dy when ther e wa s only

a sing le entry

. 3 0
The j u ry u n anim ity context may provide a useful fra mework for evalua ting non-statutory
varia nces becaus e any issue involving a non-statutory varia nce can be conver

ted into a jury unanimity question. I f the non-statutory alleg ations that wer e pled and proved had both been pled,
could both have be en submitted in the j ury char g e in support of a single offe nse without violating principles of jury unanimity ? For example, an indictment might alleg e that Dang erous Dan was
murdere d b y b ei n g s t ab b ed with a knife, but the proof at trial might showed that he was, instead, bludge oned with a baseba ll bat. The issue could be re- fra med as whether the principles of jury

See id. at 905-06. 2 7
United States v. Richardson , 526 U.S. 813, 817 (1999). 2 8
Stuhler v. State , 218 S.W .3d 706, 717 (Tex. Crim. App. 2007). 2 9 Ex parte Cavazos , 203 S.W .3d 333, 335, 337 (Tex. Crim. App. 2006) (two victims, but 3 0 only one offe nse beca

use there was only a single entry , an d t h e al l o wable unit of prosec ution for burg lary is eac h entry , not eac h victim).JOHNSON — 8

unanimity would be viol ated if “stabbe d with a knife” and “bludg eoned with a baseba ll bat” were
both submitt ed in support of the single murder offe nse to the jury

. The answe r is no, beca use the two methods of committing murde r do not result in two offe nses. 3 1

Be g inning at l ea s t wi th Gollihar , the case s in which we have made an inquiry into the
materia lity of a varia

nce have been case s in w hich a non-statutory alleg ation was descr iptive of an
element of the offe nse that define s or helps define the allowable unit of prosec ution. Gollihar and Byrd involved theft prosec utions. Theft has two g rava mina: the proper

ty and owner ship. These 3 2
el em en t s al one do not alway s define the allowable unit of prosec ution for theft (prope rty can b e jointly owned) , but the allowable unit of pr osecution ca n at least be derive d from the c ombination
of these elements: differ ent p ro p erty taken from differ ent persons are differ ent thefts. The 3 3
descr iption of the item taken in Gollihar —a g o-ca rt with a certain model number—c onstitut ed a non-statutory descr iption of the g rava men element of proper

ty

. The question we fac ed in Gollihar

was whether the varia

nce was signific ant enoug h that we could not co n cl u d e that the State had proved the same theft— t h e s t ea l i n g of the same g o-ca rt—as the one it had alleg ed. I n Byrd , the
varia nce involved the name of the owner
. The specific name of the owner is not an element of the

The jury -unanimity context cannot be used for statutory varia nces beca use the State must 3 1 alway s prove its statutory alleg ations. See above. Byrd , 336 S.W .3d at 2 5 0 -51, 250 n.40. Although we ref err ed to “appr opriation of 3 2 proper ty ” as part of the g rava

men, it is clea

r t hat both we and the State (with whom we ag ree d in part) were ref

err ing to the ide ntity

of the prope rty

that was a

ppropriate d, not the method by which the proper ty was appropr iated. See id. at 250-51 (re fer ring to “ce rtain specifie d proper ty ”), 250 n.40 (State contende d “that it is the proper ty taken

. . . that identifies the allowable unit of prosec ution in a thef t case ”).
See id. at 251 n.43. Of course multipl e thefts could be committed ag ainst the same person, 3 3 e.g . differ ent prope rty

stolen on differ ent day s.JOHNSON — 9

offe nse of theft, but it is a non-statutory descr iption of the statutory , g rava men elem ent of 3 4

owner ship. The question was whether the varia nce in th e n am e wa s s i g nificant enoug h that we 3 5
could not conclude that the State had proved the same theft when it alleg ed that proper ty was taken
from Mike Morales but proved, instead, that proper ty was taken from Wal-Mart. Fuller addre ssed
the variance of a victim’s name in an “injury to an elderly individual” prosec uti o n. Be cause the 3 6
offe nse at issue in that case is an assau l t ive offense, the vi ctim is one of the s tatutory , g rava men 3 7
elements of the offe nse. The question was whether proof of the nickname instead of the full name 3 8

cre ated a varia

nce so signific ant that it left us unable to tell whether the victim proven was the same
person a s the victim alleg ed. 3 9

But as we explained above, a v ariance could involve a non-statutory alleg ation that has nothing to do with the allowable unit of prosec ution and, there fore , cannot be a basis for say ing that
the proved offe nse is differ ent from the one that was pled. “Stabbing with a knife” and “bludg eoning

Id. at 251. 3 4
See id. at 252 (“A lthough the name of the owner is not a substantive element of theft, the 3 5 State is require d to prove, bey ond a rea sonable do u b t , t h at t h e person (or entity ) alleg ed in the indictment as the owner is the same person (o r en t ity )—re g ardle ss of name—a s shown by the evidenc e.”)

. 73 S.W .3d at 251. 3 6
See Cook v. State , 884 S.W .2d 485, 489 (Tex. Crim. App. 1994) (quoting Alvar a do v. 3 7 State , 704 S.W .2d 36, 39 (Tex. Crim. App. 1985) (cha rac terizing “injury to a child” statute, which exis ts in the same Penal Code section as the “i njury to an elder ly individual offe nse,” as an “assa ultive,” re sult-of-conduc t offense )). Ex parte Hawk

ins , 6 S.W .3d 554, 560 (Tex. Crim. App. 1999) (“the a llowable unit of 3 8 prosec ution for an a ssaultive offe nse is eac h victim”).

See F uller , 73 S.W .3d at 258 (Womack, J., concurring ). 3 9JOHNSON — 10

with a baseba ll bat” are two possible way s of murdering Dang erous Dan, but they do not constitute

separ ate offe nses. These methods of committing murder do descr ibe an element of the offe nse: the
element of causa tion. But murder is a result-of- conduct crime. What cause d the victim’s death is 4 0

not the focus or g rava

men of the offe nse; the focus or g rava men of the offe nse is that the victim was
killed. Var iance s such as thi s ca n n ev er be material beca use such a variance can never show an 4 1
“entire ly differ ent offe nse” tha

n what wa s alleg ed.

I n the prese nt case , appellant was char g ed with ag g rava ted assault by causing serious bodily injury

. The varia

nce in this case involves the char g ed acts of “hitting the victim with his hand” and “twisting the victim’s arm with his hand” versus the proved act of “throwing the victim ag ainst the
wall.” All of these acts descr ibe the causa tion element of the offe nse, but none of them are used to
descr ibe the injury suffe red by t h e v i ct i m
. W h at cause d the victim’s injury is not the focus or
g rava men of this offe nse. The ag g rava ted assault offe nse at issue is a result-of- conduct crime with
the focus or g rava

men being the victim and the bodily injury that was inflicted. “The prec ise act 4 2 4 3

or nature of conduct in thi s re s u l t -oriente d offe nse is inconseque ntial.” Had the State pled and 4 4 proved differ ent injuries, a question might arise as to whether the differ ence betwee n what was pled
and what was proved was signific ant enoug h to be materia l. Separa te crimes of ag g rava ted assault

See T E X

. P E N A L C O D E § 19.02(b)( 1)-( 3)(“ cause s the dea th of an individual”). 4 0 See Young , 341 S.W .3d at 423. 4 1
Hawkins , 6 S.W .3d at 560. 4 2
Landrian v. State , 268 S.W .3d 532, 533, 537 (Tex. Crim. App. 2008). 4 3
Id. at 537. 4 4JOHNSON — 11

could be based upon separ ately inflicted instances of bodily injury

. But the act that cause d injury 4 5
does not define or help de fine the a llowable unit of prosec ution f or this ty pe of ag g rava

ted-a ssault
offe nse, so the var iance at issue ca nnot be mater ial.

To summarize, varia

nces can be classified into three cate g ories, depending upon the ty pe of alleg ation that the State has pled in its char g ing instrument but failed to prove at tri al

. Fi rs t, a 4 6
varia nce involving s tatutory lang uag e that defines t he offense alway s rende rs t he evidence leg ally
insufficient to suppor

t the conviction (i.e. such varia nces are alway s materia l). Second, a varia nce involving a non-statutory alleg ation that descr ibes an “allowa ble unit of prosec ution” element of the
offe nse may or may not rende r the evidence leg ally insufficient, depending upon whether the
varia nce is ma terial (i.e . such var iance s are sometimes material). F inally , other ty pes of varia

nces involving immaterial non-statutory alleg ations do not rende r the evidenc e leg ally insufficient. The 4 7
varia nce in the pr esent c ase f

alls within the third categ ory
. We affir m the judgme nt of the cour t of appe als.
Deliver ed: Marc h 21, 2012 Publis h

At this juncture, we ne ed not addr ess whethe r “bodily injury ” under

the ag g rava ted- 4 5 assault statute consists of ea ch discre te har m suffer ed by

the victim or consists of all damag e suffe red by

the victim in a single transac tion. However bodily injury is defined, a

separ ate bodily injury would be a se para

te offe nse. See also Fuller , 73 S.W .3d at 255-57 (Ke ller, P.J ., concur ring ) (discussing three ty

pes of 4 6 varia nces)

. We do not addre ss wh et h er a varia nce under this third cate g ory could be signific ant 4 7 enoug h to warr ant a ne w trial base d upon lack of notice.