COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00431-CR

MICHAEL ERIC FRITZCHING APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellant Michael Eric Fritzching appeals his conviction for misdemeanor 

assault of a family member. He contends in one point that the evidence is 

insufficient to support his conviction for assault because the indictment and jury 

charge alleged that Appellant struck his ex-girlfriend with his ―hands‖ but that the 

prosecution proved at trial that he struck her with his ―fist.‖ We affirm.

 

1See Tex. R. App. P. 47.4.
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II. Factual Background

Appellant moved in with Caitlin Ramsey shortly after they began dating in 

the summer of 2007. In February 2009, he and Ramsey ended their relationship 

and Appellant moved out of their apartment. A month or so later, as Appellant’s 

birthday approached, Ramsey called Appellant, asking him to stop by the 

apartment to pick up the present that Ramsey had purchased for him.

On April 4, 2009, Ramsey had some friends over to her apartment to ―hang 

out.‖ After walking to a liquor store with her friends to buy whiskey, Ramsey 

consumed two or three drinks and smoked some marijuana. Later, Appellant 

called Ramsey and asked her if he could stop by the apartment to pick up the 

gift. Ramsey agreed to meet him in the parking lot behind her apartment. After 

Appellant arrived, Ramsey also agreed to go for a ride in Appellant’s car so that 

they could smoke marijuana together. During this drive, Ramsey told Appellant 

that she was still in love with him. Appellant replied that he was in love with 

someone else, and Ramsey asked him to take her home.

After they arrived back at the apartment parking lot, Appellant noticed that 

someone had moved into one of Ramsey’s spare bedrooms. Appellant became 

upset after finding out that Ramsey’s friend Tyler was the new roommate 

because Tyler had a reputation as a ―ladies’ man.‖ Appellant asked Ramsey to 

get out of the vehicle, but Ramsey stayed inside and continued to talk to him. 

Appellant then got out of the vehicle, walked around to the passenger side, and 

hit Ramsey in the face with his fist.
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Ramsey’s friends later found her unconscious at the bottom of the stairs. 

They carried her inside the apartment and to the bathroom, where she vomited 

profusely. Ramsey’s friends then put her in bed, and she slept until she woke up 

to her friends panicking at the sight of her bloody and swollen face. Her friends 

then persuaded her to go to the hospital.

Dr. Brenda Lobley examined Ramsey and, after reviewing the CAT scan 

she ordered of Ramsey’s neck and head, discovered that Ramsey had sustained 

an orbital fracture (i.e., a facial fracture around the eye). Dr. Lobley further 

determined that Ramsey suffered a laceration and extensive bruising to her face, 

a shoulder injury, and a concussion. Dr. Lobley likened Ramsey’s injuries to the 

blunt force injuries experienced by those involved in car accidents. Dr. Lobley 

sutured Ramsey’s facial lacerations and prescribed medications.

Appellant was indicted for the misdemeanor offense of assault, and the 

indictment alleged that Appellant did ―intentionally or knowingly cause bodily 

injury to Caitlin Ramsey, a person with whom the defendant has or has had a 

dating relationship that is a continuing relationship of a romantic or intimate 

nature, by hitting her with his hands . . . .‖ Appellant pleaded not guilty. At trial, 

Ramsey testified that Appellant struck her in the face with his fist. The jury 

charge, as submitted to the jury, alleged that Appellant ―did . . . intentionally or

knowingly cause bodily injury to Caitlin Ramsey, a person whose relationship is 

or association with the defendant has or has been a continuing dating 

relationship of a romantic or intimate nature, by striking her with his hands . . . .‖ 
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At the request of the defense, the judge amended the jury charge to read ―hands‖ 

instead of ―hand.‖ The jury found Appellant guilty, and the trial court sentenced 

Appellant to 180 days in jail, a $500 fine, and two years’ community supervision.

III. Standard of Review

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the 

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. 

at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole 

judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. 

Ann. art. 38.04 (West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. 

App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an 

evidentiary sufficiency review, we may not re-evaluate the weight and credibility 

of the evidence and substitute our judgment for that of the factfinder. Williams v. 

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine 

whether the necessary inferences are reasonable based upon the combined and 

cumulative force of all the evidence when viewed in the light most favorable to 

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We 
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must presume that the factfinder resolved any conflicting inferences in favor of 

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 

2793; Isassi, 330 S.W.3d at 638.

The sufficiency of the evidence should be measured by the elements of the 

offense as defined by the hypothetically correct jury charge for the case, not the 

charge actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 

2011); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a 

charge is one that accurately sets out the law, is authorized by the indictment, 

does not unnecessarily restrict the State’s theories of liability, and adequately 

describes the particular offense for which the defendant was tried. Byrd, 336 

S.W.3d at 246; Malik, 953 S.W.2d at 240. Measuring the sufficiency of the 

evidence against the hypothetically correct jury charge ensures that a defendant 

will be acquitted when the State actually fails to meet its burden of proof rather 

than when the State includes a simple error in the indictment or jury charge. 

Malik, 953 S.W.2d at 240. The law as authorized by the indictment means the 

statutory elements of the charged offense as modified by the factual details and 

legal theories contained in the charging instrument. See Curry v. State, 30 

S.W.3d 394, 404–05 (Tex. Crim. App. 2000).

IV. Analysis

Appellant argues in his sole point that the evidence is insufficient to sustain 

his conviction. He maintains that to prove the offense as alleged in the 

indictment and the jury charge, the evidence must show that he hit Ramsey with 
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his ―hands‖ and that there is no evidence that he hit her with both hands. 

Appellant further argues that there is no need to construct a hypothetically 

correct jury charge because the charge, as submitted to the jury, exactly tracks 

the indictment. The State initially counters that whether the jury charge tracked 

the language of the indictment is irrelevant for sufficiency review purposes 

because the sufficiency of the evidence is judged against a hypothetically correct 

jury charge rather than the charge actually given. The State further argues that 

the alleged variance between the indictment and the proof at trial was not 

material and, therefore, should be disregarded in a sufficiency review under a 

hypothetically correct jury charge.

As a preliminary matter, the State is correct that, in a sufficiency review, 

the evidence is measured against the hypothetically correct jury charge, even if 

the jury charge mirrors the indictment. See Malik, 953 S.W.2d at 240; Stine v. 

State, 300 S.W.3d 52, 56 (Tex. App.—Texarkana 2009, pet. dism’d). The 

essential elements of assault are: (1) the defendant; (2) intentionally, knowingly, 

or recklessly; (3) causes bodily injury; (4) to another. See Tex. Penal Code Ann. 

§ 22.01(a)(1) (West 2011); Rodriguez v. State, 274 S.W.3d 760, 767 (Tex. 

App.—San Antonio 2008, no pet.). Here, a hypothetically correct jury charge 

would ask whether Appellant intentionally or knowingly caused bodily injury to 

Caitlin Ramsey. See Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.—El 

Paso 2009, no pet.).
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A. Alleged Variance Between Indictment and Proof

A variance arises when there is a difference between the allegations in the 

indictment and the evidence presented at trial. Gollihar v. State, 46 S.W.3d 243, 

257 (Tex. Crim. App. 2001). An immaterial variance between the indictment and 

the proof at trial is disregarded in a sufficiency of the evidence review. Id. A 

material variance, however, is fatal if it prejudices the defendant’s substantial 

rights. Id. When determining materiality, the court ―must determine whether the 

indictment, as written, informed the defendant of the charge against him 

sufficiently to allow him to prepare an adequate defense at trial, and whether 

prosecution under the deficiently drafted indictment would subject the defendant 

to the risk of being prosecuted later for the same crime.‖ Id.; see also Millage v. 

State, No. 06-02-00160-CR, 2003 WL 22299193, at *3 (Tex. App.—Texarkana 

Oct. 8, 2003, no pet.) (mem. op., not designated for publication) (noting that 

where ―[a]ny subsequent prosecution would involve the same offense with the 

same statutory elements and the same set of facts arising out of the same 

incident on the same date,‖ the variance will not subject the defendant to a 

second prosecution for the same crime, and the variance is not material). 

Further, a defendant bears the burden of showing prejudice. Santana v. State, 

59 S.W.3d 187, 194 (Tex. Crim. App. 2001). The court will disregard the 

variance if the defendant fails to explain how it prevented him from preparing an 

adequate defense or how he could be tried again under the same facts. Hilburn 

v. State, 312 S.W.3d 169, 175 (Tex. App.—Fort Worth 2010, no pet.).
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In Sanders v. State, this court recognized the defendant’s burden to prove 

prejudice. See 346 S.W.3d 26, 28 (Tex. App.—Fort Worth 2011, pet. ref’d). 

Sanders was convicted of assault, and although the charging instrument alleged 

that the assault caused the victim to hit a wall, the evidence indicated that the 

victim fell to the floor. Id. at 28, 30. Even though there was a variance between 

the indictment and proof at trial, this court disregarded the alleged variance 

because the appellant failed to allege that the variance denied him notice or 

subjected him to a subsequent prosecution for the same offense. Id. at 28; see 

also Hilburn, 312 S.W.3d at 175 (disregarding alleged variance in a sufficiency of 

evidence review when the appellant failed to explain how the alleged variance 

prevented him from preparing an adequate defense or how he could be 

prosecuted again under the same facts); Rogers v. State, 200 S.W.3d 233, 237

(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding that although the 

appellant attacked the sufficiency of the evidence, he failed to allege that the 

variance denied him sufficient notice or subjected him to a subsequent 

prosecution for the same offense).

Here, Appellant was charged with striking Ramsey with his ―hands,‖ and 

the State presented evidence that Appellant struck her with one hand, not both 

hands. The wording differs between the charging instrument and the proof at 

trial so it is a variance. But Appellant has not met his burden to allege or prove 

prejudice due to the variance. Like the appellants in Sanders and Hilburn, 

Appellant does not even argue that the variance denied him sufficient notice of 
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the charge so that he could prepare an adequate defense. Also similar to the 

Sanders and Hilburn appellants, Appellant has not shown how the variance could 

subject him to a second prosecution for the same offense when, taking the 

hypothetically correct jury charge into account, any subsequent prosecution 

would involve the same offense with the same elements and the same facts 

arising out of the same incident on the same date. Appellant bears the burden of 

showing materiality or prejudice, and he has not done so.

B. Manner and Means

Appellant also seems to argue that ―with his hands‖ was a material 

element of the offense. The State responds that the manner and means is not 

an essential element of the offense and therefore should not be included in the 

hypothetically correct jury charge, making the discrepancy between ―hands‖ and 

―fist‖ irrelevant.

Several courts have held that the manner and means of an offense—

particularly assault—is not an essential element of the offense and therefore 

need not be included in the hypothetically correct jury charge. See, e.g.,

Thomas, 303 S.W.3d at 331; Rodriguez, 274 S.W.3d at 760; Phelps v. State, 999 

S.W.2d 512, 516 (Tex. App.—Eastland 1999, pet. ref’d). A variance between the 

manner and means alleged and the actual manner and means used does not 

preclude a conviction. Thomas, 303 S.W.3d at 333. Even though the State may 

include the manner and means in the indictment, it will be disregarded in a 

hypothetically correct jury charge. Id.; see also Johnson v. State, PD-0068-11, 
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2012 WL 931980, at *4 (Tex. Crim. App. Mar. 21, 2012) (holding variance 

immaterial in aggravated assault case when indictment alleged the appellant hit 

the victim and twisted her arm ―with his hand‖ and evidence showed the 

appellant threw the victim against a wall).

In Thomas, the court held that manner and means was not an essential 

element of assault. See 303 S.W.3d at 333. Although the charging instrument 

alleged that Thomas struck the victim with his hand, the State proved at trial that 

he pushed the victim. Id. The court held that, not being an essential element, 

manner and means would not be included in the hypothetically correct jury 

charge. Id.; see Phelps, 999 S.W.2d at 518 (holding that a hypothetically correct 

jury charge would not include the descriptive phrase ―with his hand‖ and that it 

was thus immaterial that the State never proved the appellant struck the 

complainant with his hand); see also Dunn v. State, No. 05–10–00196–CR, 2011 

WL 227715, at *2 (Tex. App.—Dallas Jan. 26, 2011, pet. ref’d) (not designated 

for publication) (concluding that the evidence was sufficient to uphold the 

appellant’s conviction even though the proof at trial did not show that appellant 

struck complainant specifically with his hand or fist—as the indictment alleged—

because manner and means are not an essential element of assault); Botello v. 

State, No. 08–04–00127–CR, 2005 WL 2044667, at *2–3 (Tex. App.—El Paso 

Aug. 25, 2005, pet. ref’d) (not designated for publication) (concluding that a 

variance between the alleged manner and means—striking the head of the 

complainant against a door frame—and the actual manner and means—pushing 
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the complainant—was immaterial because manner and means are not included 

in the hypothetically correct jury charge). 

Here, because the manner and means must be disregarded in a 

hypothetically correct jury charge on assault, it is irrelevant that the State did not 

prove that Appellant struck the complainant with both hands. The hypothetically 

correct jury charge would allege that Appellant intentionally or knowingly caused 

bodily injury to Ramsey, and the evidence is sufficient to support that charge. 

See Tex. Penal Code Ann. § 22.01(a)(1); Thomas, 303 S.W.3d at 333. Applying 

the appropriate standard of review, we hold that sufficient evidence supports 

Appellant’s conviction, and we overrule his sole point. Jackson, 443 U.S. at 319, 

99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

V. Conclusion

Having overruled Appellant’s sole point, we affirm the trial court’s 

judgment.

ANNE GARDNER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH

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

DELIVERED: April 12, 2012