NUMBER 13-22-00256-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

OSCAR OSVALDO BARAJAS JR. 

A/K/A OSCAR OSVALDO BARAJAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 36th District Court 

of Aransas County, Texas.

 

DISSENTING MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Silva and Peña

Dissenting Memorandum Opinion by Justice Silva

Relying on Thomason, the majority determined that because the State failed to 

plead a facially complete offense, no material variance exists between the indictment and 

evidence presented at trial. See Thomason v. State, 892 S.W.2d 8, 11–12 (Tex. Crim. 
2

App. 1994). Because I disagree with the majority’s use of Thomason as well as its ensuing 

analysis, I respectfully dissent.

I. APPLICABLE LAW

At the outset, I wish to acknowledge that this case presents an interesting 

dichotomy between two differing considerations. Although Barajas did not object to a 

defect in the indictment, which waived any error as to the indictment, see TEX. CODE CRIM.

PROC. ANN. art. 1.14(b), he is challenging the sufficiency of the evidence as measured 

against the hypothetically correct jury charge, which must be authorized by the indictment, 

see Malik v. State, 953 S.W.2d 234, 239–40 (Tex. Crim. App. 1997). Thus, Barajas is 

seemingly permitted to collaterally attack the indictment for the first time on appeal

through a challenge to the sufficiency of the evidence. See Curlee v. State, 620 S.W.3d 

767, 785 (Tex. Crim. App. 2021) (“A claim regarding the sufficiency of the evidence need 

not be preserved for review at the trial level and is not waived by the failure to do so.”

(quoting Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001))). Because these 

two considerations appear to be in conflict, I believe it is incumbent on the Texas Court 

of Criminal Appeals to further clarify the interplay between waiver of defect in the 

indictment and a challenge to sufficiency of the evidence.

To complicate matters more, the ever-evolving case law regarding challenges to 

the sufficiency of the evidence and variances creates a murky backdrop by which we 

consider the facts presented in this case. In 1997, the court of criminal appeals released 

Malik, wherein it held that a challenge to the sufficiency of evidence supporting a 

conviction should be measured against a hypothetically correct jury charge, overruling a 
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series of prior cases which had focused on the charge actually given. 953 S.W.2d at 239–

40. Malik defined a hypothetically correct jury charge as “one that 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. at 240. “The law authorized 

by the indictment ‘includes the statutory elements of the offense and those elements as 

modified by the indictment.’” Lang v. State, 664 S.W.3d 155, 168–69 (Tex. Crim. App. 

2022) (quoting Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018)).

But what happens when “there is a discrepancy between the allegations in the 

charging instrument and the proof at trial”? Gollihar v. State, 46 S.W.3d 243, 246 (Tex. 

Crim. App. 2001). Such instance is called a “variance,” and in Gollihar, the court 

considered what impact a variance has on the post-Malik-era sufficiency review. The 

court made a distinction between variances which were material and those which were 

not, concluding that “a hypothetically correct charge need not incorporate allegations that 

give rise to immaterial variances.” Id. at 256. A variance is material if it operates to the 

defendant’s surprise or prejudices his rights. Id. at 249 n.8.

There are two types of variances—statutory and non-statutory—intertwined in the 

materiality analysis. See Hernandez v. State, 556 S.W.3d 308, 313–14 (Tex. Crim. App. 

2017). A statutory “variance occurs when the State’s proof deviates from the statutory 

theory of the offense as alleged in the indictment.” Id. at 313. In other words, “the State 

may not plead one specific statutory theory but then prove another.” Id. A statutory 

variance is always material and renders the evidence legally insufficient. Id. The court 
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provided an example of a statutory variance:

The example we gave in Johnson derived from the retaliation statute, which 

“makes it a crime to threaten a ‘witness’ or ‘informant.’” [Johnson v. State, 

364 S.W.3d 292, 294 (Tex. Crim. App. 2012)] (discussing Cada v. State, 

334 S.W.3d 766 (Tex. Crim. App. 2011)). “This first type of variance will 

occur if the State only pleads ‘witness’ in the charging instrument and 

proves only . . . ‘informant’ at trial.” Id. Under these circumstances, the 

hypothetically correct jury charge would require the jury to find that the 

defendant threatened a witness. Proof that he threatened an informant only, 

and not a witness, would amount to a material variance between pleading 

and proof that would result in an acquittal (even though it constitutes an 

offense to threaten an informant).

Hernandez, 556 S.W.3d at 313.

A non-statutory variance, by contrast, is merely descriptive of the offense in some 

way. Id. at 314. An example of a non-statutory variance would be an indictment that 

alleges the defendant assaulted the victim with a knife, but the evidence adduced at trial 

shows the assault occurred using a bat. See id. A non-statutory variance may be material 

or immaterial, “depending upon whether it would result in conviction for a different offense 

than what the State alleged.” Id. A variance may also be material if it fails to give the 

defendant sufficient notice of the crime for which he is accused or would allow a 

subsequent prosecution for the same offense—i.e., implicates double jeopardy. See Byrd 

v. State, 336 S.W.3d 242, 247–48 (Tex. Crim. App. 2011) (citing Berger v. United States, 

295 U.S. 78, 82 (1935)). “What is essential about variances with respect to non-statutory 

allegations is that the variance should not be so great that the proof at trial ‘shows an 

entirely different offense’ than what was alleged in the charging instrument.” Johnson, 

364 S.W.3d at 295.
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II. ANALYSIS

A. Thomason and Its Application

Where, then, does Thomason fit among the since-developed sufficiency and 

variance precedent? See Thomason, 892 S.W.2d at 11. Relying on Thomason, the 

majority concludes that because the State failed to charge a facially complete offense of 

either deadly conduct or aggravated assault, no material variance can exist between the 

indictment and the evidence at trial. Thomason does hold that when the State charges a 

facially complete offense, it cannot convict a defendant under another offense; however,

it does not hold that a variance may only exist where the State charges a facially complete 

offense. Id. In Thomason, the court stated that:

Reviewing the sufficiency of the evidence to support the conviction, we 

noted that while a conviction may be sustained under an indictment which 

is defective because it omits essential elements of the offense, such is not 

true when the indictment facially charges a complete offense and the State 

presents evidence which convicts under a different theory than that alleged.

Id. (internal citation omitted). However, the court was relying on Studer v. State, which 

was decided before Malik and its progeny, replacing the former sufficiency review with 

the current standard. See id.; Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990); 

see also Malik, 953 S.W.2d at 239–40; Gollihar, 46 S.W.3d at 246. That is not to say that 

Thomason does not have a place under the current variance jurisprudence; rather, it 

seems it would be a consideration under the materiality of a variance. See, e.g., Johnson, 

364 S.W.3d at 295–96.

Even if Thomason were to apply separate and apart from Malik and its progeny, I 

believe the majority misapplies it. As noted, Thomason does not stand for the position 

that a material variance may only exist where a facially complete offense is alleged in the 
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indictment. See Thomason, 892 S.W.2d at 11–12. In Malik, the court defined a “facially 

complete offense” as “alleg[ing] all of the essential elements of a criminal offense.” 953 

S.W.2d at 239 n.4.

Further, applying the “facially complete offense” standard, I believe the State did 

in fact allege the facially complete offense of deadly conduct. See TEX. PENAL CODE ANN. 

§ 22.05(a), (b). A person may commit the offense of deadly conduct in two ways: (1) by 

recklessly engaging in conduct that places another in imminent danger of serious bodily 

injury, or (2) knowingly discharging a firearm at or in the direction of one or more 

individuals, or a habitation, building or vehicle, and is reckless as to whether the 

habitation, building, or vehicle is occupied. Id. § 22.05(a), (b). However, the majority 

concludes that because the indictment alleges that Barajas “intentionally, knowingly[,] or 

recklessly” shot Gaines, the indictment did not charge the facially complete offense of 

deadly conduct. See id. § 22.05(b) (requiring a knowing mens rea). I believe the language 

in the indictment charges the facially complete offense of deadly conduct under 

§ 22.05(a), which includes reckless conduct. See id. § 22.05(a). The inclusion of 

additional culpable mental states, levels above which the statute requires, would not 

render the indictment facially incomplete. See generally Hicks v. State, 372 S.W.3d 649, 

656–57 (Tex. Crim. App. 2012) (“[P]roof of the greater culpable mental state is necessarily 

proof of the lesser ones.”). 

Additionally, applying the court of criminal appeals’ definition of a facially complete 

offense, I believe the State charged a facially complete offense under § 22.05(b) of the 

deadly conduct statute. See id. § 22.05(b). By alleging Barajas shot Gaines, the State 
7

alleged that Barajas discharged a firearm at or in the direction of Gaines. See id. The 

majority concludes that the State’s inclusion of “recklessly” prevents the indictment from 

alleging all the essential elements of the offense of deadly conduct. See Malik, 953 

S.W.2d at 239 n.4 (defining a facially complete offense). But the indictment did also 

include that Barajas intentionally or knowingly shot Gaines. Thus, the indictment included 

the essential elements that (1) Barajas (2) shot at or in the direction of one or more 

individuals.1 See TEX. PENAL CODE ANN. § 22.05(b). The inclusion of recklessness does 

not negate the essential elements, but rather improperly expands the State’s theories of 

liability, which constitutes a defect in the indictment that must be objected to.

2 Barajas 

waived any objection to such defect. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b).

Perhaps most concerningly, the majority’s decision would allow the State to include 

any offense in the jury charge, so long as the indictment did not include a facially complete 

offense. Rather than endorse an analysis with such expansive implications, I believe the 

appropriate review would be to apply Gollihar and its progeny to determine whether a 

variance exists and, if so, whether it was material. See Gollihar, 46 S.W.3d at 246. Such 

1 The State argues that it alleged that Barajas actually shot Gaines, rather than alleging that 

Barajas shot at or in the direction of Gaines. See TEX. PENAL CODE ANN. § 22.05(a). However, that seems 

to be a distinction without a difference. The State does not argue that Barajas did not actually shoot at 

Gaines or in his direction. 

2 If the majority is correct in its conclusion that the indictment failed to allege any facially complete 

offense, then we must analyze whether the purported indictment “accuse[d Barajas] of a crime with enough 

clarity and specificity to identify the penal statute under which the State intend[ed] to prosecute.” Duron v. 

State, 956 S.W.2d 547, 550–51 (Tex. Crim. App. 1997). The court of criminal appeals has “recognized as 

a legal principle that an indictment that fails to allege ‘the commission of an offense’ is not an indictment 

under the Texas Constitution.” Walker v. State, 594 S.W.3d 330, 339 (Tex. Crim. App. 2020) (citing Duron, 

956 S.W.2d at 551). If the instrument does not qualify as an indictment, “then the defendant is exempted 

from the usual requirement that he object to defects in the indictment before the date of trial.” Id. at 339 

n.44 (citing Duron, 956 S.W.2d at 551). Further, “absent an indictment or a valid waiver, a district court 

does not have jurisdiction over a case.” Id. at 339.
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review would also fit within Malik’s requirement that the sufficiency of the evidence be 

measured against a hypothetically correct jury charge, which, among other things, must 

be authorized by the indictment. See Malik, 953 S.W.2d at 240.

B. Malik, Gollihar, and Material Variances

As noted, a variance exists when there is a discrepancy between the indictment 

and the evidence at trial. Gollihar, 46 S.W.3d at 246. If the variance between the 

indictment and the evidence is material, it is fatal, and we must enter a judgment 

acquitting the defendant. See id. at 246–47. Thus, the first inquiry must be to determine

whether a variance exists, and if so, we ask: is that variance material under Gollihar and 

its progeny?

Under either Texas Penal Code § 22.02(a)(1) or § 22.02(a)(2), the gravamen of 

the offense of aggravated assault is the resulting bodily injury. See Hernandez, 556 

S.W.3d at 314; Johnson, 364 S.W.3d at 298 (“The aggravated assault offense at issue is 

a result-of-conduct crime with the focus or gravamen being the victim and the bodily injury 

that was inflicted.”); Landrian v. State, 268 S.W.3d 532, 533 (Tex. Crim. App. 2008) (“The 

gravamen of this result-oriented offense [(Aggravated Assault)] is ‘causing bodily 

injury.’”). The State argues that by alleging Barajas shot Gaines, it implicitly pleaded the 

causational element of bodily injury (i.e., the gravamen of the offense), and thus, the 

indictment incorporated all requisite elements of aggravated assault. See TEX. PENAL 

CODE ANN. § 22.02(a)(2). I am unassuaged by the State’s gravamen inclusion by implicit 

reference theory, nor have I found case law in support.3 Regardless, the parties do not 

3 It is possible to shoot a person without causing bodily injury. For instance, a bullet may not cause 
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dispute that the indictment did not explicitly allege that Barajas caused bodily injury to 

Gaines—yet this is precisely what the State argued occurred at trial, what the submitted 

jury instructions charged, and what Barajas’s conviction is necessarily predicated upon.

See TEX. PENAL CODE ANN. § 1.07(a)(8) (defining “bodily injury” as “physical pain, illness, 

or any impairment of physical condition”); id. § 22.02. Thus, there is a variance as defined 

by Gollihar. See Gollihar, 46 S.W.3d at 246; see also Cornwell v. State, 471 S.W.3d 458, 

467 (Tex. Crim. App. 2015) (observing that “descriptive averments of statutory elements 

that define or help define the allowable unit of prosecution can give rise to material 

variances”) (cleaned up). I next determine whether the variance is material.

In the court of criminal appeals’ example of a statutory variance, the indictment 

alleged a complete offense but swapped one statutory theory of completing an offense 

with another: namely, threatening a witness versus threatening an informant. See 

Hernandez, 556 S.W.3d at 313 (citing Johnson, 364 S.W.3d at 294); see also TEX. PENAL 

CODE ANN. § 36.06(a)(1)(A) (Obstruction or Retaliation). Such example begs the 

question: Can the absence of a statutory element in an indictment constitute a statutory 

variance? I believe the answer is “Yes.” Otherwise, the requirement that a hypothetically 

correct jury charge be authorized by the indictment would ring hollow. See Malik, 953 

S.W.2d at 240. 

Here, the State did not just leave off an element of the offense of aggravated 

bodily injury because its velocity is reduced from ricochet, passing through building materials, when shot 

from too far of a distance, or an underpowered round. Such possibility could explain why the State left off 

the bodily injury element and support the conclusion that it intentionally indicted the offense of deadly 

conduct. See TEX. PENAL CODE ANN. § 22.05(a).
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assault, it left off the element that constitutes the gravamen of the offense. See id.; see 

also Hernandez, 556 S.W.3d at 314; Landrian, 268 S.W.3d at 533. Thus, the State alleged 

a statutory theory wherein Barajas did not commit bodily injury. See Hernandez, 556 

S.W.3d at 313. Even if the variance were not statutory, “the variance [was] so great that 

the proof at trial ‘show[ed] an entirely different offense’ than what was alleged in the 

charging instrument.” Johnson, 364 S.W.3d at 295. Accordingly, the variance would be a 

material—or fatal—one. Gollihar, 46 S.W.3d at 249.

C. Reformation

In some circumstances, a variance requires an acquittal. See Johnson, 364 

S.W.3d at 295. However, “after a court of appeals has determined that evidence is 

insufficient to support a conviction, the court may reform the judgment to reflect a 

conviction for a lesser-included offense.” Lang, 664 S.W.3d at 163 (citing Thornton v. 

State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014)). I believe reformation would be 

appropriate here.

To determine whether we should reform the judgment, reviewing courts must ask 

two questions:

1) in the course of convicting the appellant of the greater offense, must the 

jury have necessarily found every element necessary to convict the 

appellant for the lesser-included offense; and 2) conducting an evidentiary 

sufficiency analysis as though the appellant had been convicted of the 

lesser-included offense at trial, is there sufficient evidence to support a 

conviction for that offense?

Thornton, 425 S.W.3d at 300. If we answer “yes,” then we reform the judgment to include 
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the lesser included offense.4 Because we can answer “yes” to both questions in this case, 

I would reform the judgment to reflect a conviction for deadly conduct pursuant to Texas 

Penal Code § 22.05(a).5 See Lang, 664 S.W.3d at 163; Thornton, 425 S.W.3d at 300; 

see also TEX. PENAL CODE ANN. § 22.05(a); Guzman v. State, 188 S.W.3d 185, 190–92 

(Tex. Crim. App. 2006) (explaining when deadly conduct is a lesser included of 

aggravated assault with a deadly weapon); Isaac v. State, 167 S.W.3d 469, 473–74 (Tex. 

App—Houston [14th Dist.] 2005, pet ref’d) (same). 

III. CONCLUSION

Because I believe there was a material variance between the indictment and the 

proof at trial, I would reverse the judgment of the trial court, reform the judgment to include 

a conviction for misdemeanor deadly conduct and remand the case to the trial court for a 

new sentencing hearing. See Lang, 664 S.W.3d at 176.

CLARISSA SILVA

Justice

Do not publish.

TEX. R. APP. P. 7.2 (b).

Delivered and filed on the

13th day of July, 2023.

4 Exceptions to mandatory reformation exist where there are multiple possible lesser-included 

offenses that the judgment may be reformed to include or where we have no way of determining which 

degree of the lesser-included offense the jury could find the appellant guilty of. See Rodriguez v. State, 

S.W.3d 503, 510 (Tex. Crim. App. 2014). Neither situation exists here.

5 Further, because the evidence here showed that the firearm was discharged multiple times, 

Barajas would not be subjected to double jeopardy for two convictions of deadly conduct. See Lozano v. 

State, 577 S.W.3d 275, 278–79 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“Based on the statute as 

written, we conclude that the allowable unit of prosecution for the offense of engaging in deadly conduct is 

each discharge of a firearm that occurs under the proscribed surrounding circumstances.”).