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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-14-00062-CR

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MARC RICHARD SAUNDERS, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________________________

On Appeal from the 410th District Court

Montgomery County, Texas

Trial Cause No. 12-10-11342-CR

_______________________________________________________________________

MEMORANDUM OPINION 

Appellant Marc Richard Saunders appeals his conviction for cruelty to a 

livestock animal. The jury returned a guilty verdict, found Saunders used a deadly 

weapon during the commission of the offense, and assessed Saunders’s punishment 

at confinement in prison for a term of five years. In two issues, Saunders contends 

the trial court erred in amending the indictment and he challenges the sufficiency 

of the evidence based upon a variance between the indictment and the proof at 

trial. We affirm the trial court’s judgment. 
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The indictment handed up by the grand jury alleged, in pertinent part, that 

Saunders, on or about October 25, 2012, “did then and there intentionally, 

knowingly or recklessly torture to an animal, to-wit: a donkey by dragging it with a 

motor vehicle . . . .” Saunders did not move to quash the indictment before the trial 

commenced. During the presentation of the State’s case-in-chief, over Saunders’s 

objection, the trial court granted the State’s motion to abandon the parts of the 

indictment that alleged “recklessly” and “an animal.” The trial court denied 

Saunders’s motion for directed verdict after the State rested. Saunders objected to 

describing a donkey as a livestock animal in the charge. The trial court overruled 

the objection and, in part, charged the jury as follows:

A person commits the offense of Cruelty To Livestock Animals 

if the person intentionally or knowingly tortures an animal and the 

conduct engaged in by the defendant is not a generally accepted and 

otherwise lawful form of conduct occurring solely for the purpose of 

or in support of fishing, hunting, trapping, wildlife management, 

wildlife or depredation control, or shooting preserve practices as 

regulated by state and federal law, or animal husbandry or agriculture

practice involving livestock animals.

The charge included a definition that “‘Livestock animal’ means a horse, 

pony, mule, donkey, or [hinny].” The application paragraph stated as follows: 

Now, bearing in mind the foregoing instructions, if you find 

from the evidence beyond a reasonable doubt that on or about October 

25, 2012, in Montgomery County, Texas, the defendant, MARC 

RICHARD SAUNDERS, did then and there intentionally or knowingly 

torture a donkey by dragging it with a motor vehicle, and the 
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defendant’s conduct was not a generally accepted and otherwise 

lawful form of conduct occurring solely for the purpose of or in 

support of fishing, hunting, or trapping, or wildlife management, 

wildlife or depredation control, or shooting preserve practices as 

regulated by state and federal law or animal [husbandry] or 

agricultural practice involving livestock animals, then you will find 

the defendant guilty of the offense of Cruelty To Livestock Animals 

as charged in the Indictment.

In issue one, Saunders contends the trial court effectively amended the 

indictment in violation of article 28.10 of the Texas Code of Criminal Procedure, 

which prohibits amendment over a defendant’s objection if the amendment charges 

the defendant with an additional or different offense or if his substantial rights are 

affected. See Tex. Code. Crim. Proc. Ann. art. 28.10 (West 2006). He argues the 

indictment alleged an offense of cruelty to a nonlivestock animal under section 

42.092 of the Texas Penal Code and that by allowing the removal of the terms 

“recklessly” and “animal” from the charge, the trial court impermissibly allowed 

the State to proceed to verdict on a charge of cruelty to a livestock animal under 

section 42.09 of the Texas Penal Code. Compare Tex. Penal Code Ann. § 42.09 

with § 42.092 (West 2011).

We disagree with the appellant’s contention that the trial court amended the 

indictment. A trial court affects an amendment through a physical interlineation of 

the original indictment or the trial court signs an order approving an amended 

version of a photocopy of the original indictment. See Riney v. State, 28 S.W.3d 
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561, 566 (Tex. Crim. App. 2000). Here, the trial court did not physically alter the 

face of the indictment, the State did not proffer an amended photocopy of the 

indictment, and the State and the trial court specifically noted that only an 

abandonment was sought or granted.

Also, we disagree with the appellant’s contention that the indictment alleged 

only the commission of the offense of cruelty to a nonlivestock animal and that the 

State’s abandonment of certain allegations effectively charged Saunders with an 

additional or different offense from the offense indicted by the grand jury. The 

grand jury indicted Saunders for torturing a donkey by dragging it with a motor 

vehicle. The elements of an offense committed under section 42.09(a)(1) of the 

Texas Penal Code are: the person (1) intentionally or knowingly (2) tortures a 

livestock animal. Tex. Penal Code Ann. § 42.09(a)(1). For purposes of section 

42.09, “‘[l]ivestock animal’ means . . . a horse, pony, mule, donkey, or hinny[.]” 

Id. § 42.09(b)(5)(B). “‘Torture’ includes any act that causes unjustifiable pain or 

suffering.” Id. § 42.09(b)(7). The indictment, which alleged that Saunders did 

“intentionally, knowingly . . . torture . . . a donkey by dragging it with a motor 

vehicle[,]” included the elements of an offense under section 42.09 of the Penal 

Code. See id.
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Allegations may be abandoned from an indictment without giving the 

defendant additional time to prepare. Alston v. State, 175 S.W.3d 853, 854 (Tex. 

App.—Waco 2005, no pet). Unlike an amendment, an abandonment of surplusage 

does not affect the substance of the charging instrument. Chen v. State, 410 S.W.3d 

394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (citing Eastep v. State, 

941 S.W.2d 130, 135 (Tex. Crim. App. 1997), overruled on other grounds by 

Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) and by Riney, 28 

S.W.3d at 566). For example, in Chen, a theft case, the information alleged the 

defendant committed theft of “an ipod mouse.” 410 S.W.3d at 395. During the 

trial, the State abandoned the word “ipod[,]” and theft of “a mouse” was submitted 

to the jury. Id.at 395-96. The use of the word “ipod” was not legally essential to 

charge the crime because “it did not define the scope of the offense, place it in a 

specific setting, or describe the method by which the theft was committed.” Id. at 

396-97.

Saunders argues the indictment alleged the commission of an offense under 

section 42.092 of the Texas Penal Code because it included elements that appear in 

section 42.092 and do not appear in section 42.09. We disagree. Words that do not 

relate to the charged offense are mere surplusage that may be deleted from the 

application paragraph without invalidating the indictment. See Cook v. State, 256
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S.W.3d 846, 850 (Tex. App.—Texarkana 2008, no pet.). In Cook, which concerned 

an appeal of a conviction for attempted aggravated sexual assault of a child, the 

appellant argued that the indictment erroneously blended two offenses. Id. The 

court held that the inclusion of allegations relating to online solicitation of a minor 

was mere surplusage that did not invalidate the indictment for attempted 

aggravated sexual assault of a child. Id.

In this case, the indictment alleged that Saunders tortured a donkey. A 

donkey is a livestock animal. See Tex. Penal Code Ann. § 42.09(b)(5)(B). We 

conclude the indictment alleged the commission of an offense under section 42.09 

of the Texas Penal Code and allegations relating to cruelty to a nonlivestock 

animal were surplusage. See Cook, 256 S.W.3d at 850.

Saunders suggests that the deletion of “recklessly” is not an abandonment

because it is a lesser culpable mental state, not a greater culpable mental state. It is 

error to add a less culpable mental state that was not alleged in the indictment if the 

less culpable mental state is not part of a lesser included offense and the acts relied 

upon to constitute recklessness were not included in the indictment. See Reed v. 

State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003). But, deleting allegations that 

need not be proven to secure a conviction can be distinguished from adding 

allegations that were neither stated nor described. For instance, in Bates v. State, an 
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aggregate theft case, the State abandoned allegations concerning theft of aluminum 

and retained allegations concerning theft of brass. See 15 S.W.3d 155, 161 (Tex. 

App.—Texarkana 2000, pet. ref’d). Additionally, the State abandoned an 

allegation of theft of brass by a perpetrator with a given name that differed from 

the defendant’s. Id. at 161-62. The appellate court held the trial court did not err in 

permitting the State to drop some of the alleged instances of theft because it was 

not necessary to prove each individual appropriation in a prosecution for aggregate 

theft. Id. at 162. Similarly, in this case, the inapplicable alternate mental state is 

surplusage because a reckless mental state is not descriptive of the offense of 

cruelty to a livestock animal. Allegations “not essential to constitute the offense, 

and which might be entirely omitted without affecting the charge against the 

defendant, and without detriment to the indictment are treated as mere surplusage, 

and may be entirely disregarded.” Burrell v. State, 526 S.W.2d 799, 802 (Tex.

Crim. App. 1975), overruled on other grounds by Gollihar, 46 S.W.3d at 257.

Saunders argues that an “animal” cannot be a “livestock” animal by statutory 

definition. The term “animal” does not include “livestock” for purposes of a 

prosecution under section 42.092 of the Texas Penal Code, but that same exclusion 

is not contained in section 42.09. See Tex. Penal Code Ann. §§ 42.09, 42.092.

Section 42.09 states that a donkey is a livestock animal. See id. § 42.09(b)(5)(B).
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The State, having pleaded that Saunders tortured a donkey, accused Saunders of 

committing an offense under section 42.09 of the Texas Penal Code. Because the 

State abandoned surplusage, the trial court did not permit a mid-trial amendment of 

the indictment in violation of article 28.10 of the Texas Code of Criminal 

Procedure. See generally Tex. Code. Crim. Proc. Ann. art. 28.10. We overrule 

issue one.

In issue two, Saunders contends there is a fatal variance between the 

indictment, which alleged that Saunders tortured “an animal, to-wit: a donkey” and 

the proof at trial that Saunders tortured a donkey, which is per se a livestock 

animal. The State argues that “any variance between the charged offense and the 

proof offered at trial is immaterial because [Saunders] was given sufficient notice 

that he would be charged with cruelty to a donkey, and there is no danger of the 

appellant being later charged with the same offense.”

In evaluating the legal sufficiency of the evidence, we consider the evidence 

in the light most favorable to the verdict and determine whether any rational trier 

of fact could have found the defendant guilty of all of the elements of the offense 

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To 

determine whether the State met its burden under Jackson to prove the defendant’s 

guilt beyond a reasonable doubt, we compare the elements of the crime as defined 
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by the hypothetically correct jury charge to the evidence adduced at trial. See 

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically 

correct jury charge “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.” Id. “[T]he ‘law’ as ‘authorized by the indictment’

must be the statutory elements of the offense” and those elements as modified by 

the indictment. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). “[T]he 

hypothetically correct jury charge does not necessarily have to track exactly all of 

the charging instrument’s allegations.” Johnson v. State, 364 S.W.3d 292, 294 

(Tex. Crim. App. 2012). “[A] hypothetically correct jury charge need not 

incorporate allegations that would give rise to only immaterial variances.” Thomas 

v. State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014).

A variance involving statutory language that defines the offense is always 

material and renders the evidence legally insufficient to support the conviction. 

Johnson, 364 S.W.3d at 298. “[A] variance involving a non-statutory allegation 

that describes an ‘allowable unit of prosecution’ element of the offense may or 

may not render the evidence legally insufficient, depending upon whether the 
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variance is material[.]” Id. at 298-99. Variances involving immaterial non-statutory 

allegations do not render the evidence legally insufficient. Id. at 299.

Saunders argues a material variance is presented here because the State 

alleged he committed cruelty to a nonlivestock animal, but proved he committed 

cruelty to a livestock animal. We disagree. A hypothetically correct charge need 

not track exactly all of the allegations of the indictment. Johnson, 364 S.W.3d at 

294; Gollihar, 46 S.W.3d at 253. The indictment neither alleged that Saunders 

tortured a nonlivestock animal, nor described a nonlivestock animal in the 

indictment. Rather, the indictment alleged that Saunders tortured a donkey, which 

is a livestock animal. See Tex. Penal Code Ann. § 42.09(b)(5)(B). If we assume for 

the sake of argument that the State failed to abandon the allegation of “animal” in 

the indictment, the variance would be immaterial because the State pleaded and 

proved that Saunders tortured a donkey. Thus, the indictment notified Saunders 

that he was being charged with cruelty to an animal that is a livestock animal and 

the State adduced proof at trial that the animal Saunders dragged with his 

vehicle—until its hooves ground down to the soft tissue—was a donkey. Because 

any variance between the pleading and proof was immaterial, and Saunders’s 

challenge to the sufficiency of the evidence is based solely on the variance, we 
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hold the evidence is legally sufficient to support the conviction. See Gollihar, 46 

S.W.3d at 258. We overrule issue two and we affirm the trial court’s judgment.

AFFIRMED.

 ________________________________

 CHARLES KREGER

 Justice

 

Submitted on January 27, 2015

Opinion Delivered November 18, 2015

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.