Blevins v. State

¶1concurring.

¶2Recently the Court of Criminal Appeals in Clark v. State, 665 S.W.2d 476 (Tex.Crim.App.1984), once again set forth the rule of court-made law which says that: “when the State alleges unnecessary matter in an indictment or information which is descriptive of an essential element of the crime, such descriptive matter must be proven as alleged even though needlessly stated.” Because we are an intermediate Court, we are required to follow the rule laid down by the Court of Criminal Appeals and reverse the appellant’s convictions. I believe that this rule has been inconsistently, improvidently, and sometimes arbitrarily applied, with results that sometimes border on the absurd. However, I am compelled to concur in the reversal of this case because the highest court in criminal matters has spoken; and we, as intermediate appellate judges, must follow because of *833the long-standing doctrine of stare decisis. Otherwise, I would affirm the convictions.1

¶3Appellant was charged by three complaints with intentionally and knowingly killing a game animal, to-wit, a “wild white tail deer,” at a time outside of the open season as provided for by the law. As alleged in the complaints, all actions transpired in Refugio County. The evidence at trial was ample to prove and establish that appellant killed a wild deer out of season; it did not, however, establish that this particular wild deer had a white tail. Even though the appellant did not object to this variance in the trial court, he finds himself in the amiable position of being acquitted by this Court of three criminal offenses because of this technical rule of law. In my opinion such a result is not necessary to protect the rights of the accused; nor does it further the interests of the people of this State or the judiciary of Texas.

¶4As set forth by the majority, appellant was tried in the county court based upon the original complaint used in the trial to the justice court; this complaint served as the functional equivalent to an “information.” Since the rules with respect to allegations in an indictment and the certainty required thereto also apply to an information, TEX.CODE CRIM.PROC.ANN. art. 21.23 (Vernon 1966), it follows that the same rules apply to the complaints before us today.

¶5An indictment is “the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.” TEX. CODE CRIM.PROC.ANN. art. 21.01 (Vernon 1966). “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” TEX.CODE CRIM. PROC.ANN. art. 21.04 (Vernon 1966). We call this test “double jeopardy.” An indictment should charge the commission of an offense with that degree of certainty as will give the defendant notice of the particular offense with which he is charged. TEX.CODE CRIM.PROC.ANN. art. 21.11 (Vernon 1966). An indictment should not be found insufficient by reason of a defect in form which does not prejudice the substantial rights of the defendant.” See TEX.CODE CRIM.PROC.ANN. art. 21.19 (Vernon 1967).

¶6Tex.Park & Wild.Code Ann. § 296.001 (Vernon Supp.1984), hereafter the Code, provides that the Uniform Wildlife Regulatory Act (Chapter 61 of the Code), hereafter the Act; applies to deer in Refugio County. Section 61.021 of the Act2 provides in pertinent part that:

“Except as permitted under a proclamation issued by the Commission under this chapter, no person may hunt ... a ... game animal ... at any time or in any place covered by this chapter.”

¶7Hunt is defined by the Act to include kill.3 Furthermore, wild deer are included as game animals under § 63.001(a) of the Code.4 Accordingly, appellant committed an offense under the Act when he killed a wild deer out of season. It follows that a complaint charging appellant with either the killing of a wild deer or a game animal out of season, would have been sufficient to apprise appellant of the offense for which he was being prosecuted. See Sullivan v. State, 398 S.W.2d 757 (Tex.Crim. App.1966); see also McDonald v. State, 615 S.W.2d 214 (Tex.Crim.App.1981). In McDonald, the defendant was charged simply with “possess[ing] a deer killed in closed season.... ”

¶8In delegating to the Parks and Wildlife Commission the power to regulate wildlife resources under the Act, the legislature *834first provided for a blanket ■prohibition of taking wildlife resources and then provided for the Commission to modify that prohibition. No showing has been made as to any modification regarding game in Refugio County. While game animal is defined to include wild deer under the Code, nowhere does the Act distinguish between wild deer and white tail deer, black tail deer or any other type of deer in Refugio County. In the case at bar only the killing of a game animal out of season is prohibited by the Act. The indictment before us today, therefore, adequately advised appellant as to the offense with which he was being charged. I fail to see how justice is served as it concerns either the accused or the people of Texas by requiring the State to prove that the deer killed by appellant was a “white tail” deer.

¶9A reading of the Court’s opinion in Clarkwould lead one to believe that the area of law regarding a variance between the wording of an indictment and the proof offered at trial, is clear. However, a careful examination of Texas case law illustrates that this issue is far from settled. Numerous cases have adopted different rules to become exceptions to this so-called “well settled” rule. A few cases will illustrate this point.

¶10In Keagan v. State, 618 S.W.2d 54 (Tex.Crim.App.1981), the Court invoking the doctrine of idem sonans stated: “The law does not treat every slight variance in an indictment or information, if trivial, such as the misspelling of a like-sounding name, as fatal.” On appeal of an order revoking probation, appellant collaterally attacked an indictment (to which he had pled guilty and was accorded probation) as void. The indictment charged that appellant passed a forged check to J. E., knowing such check had been made so that it purported to be the act of Brent Mezell. The Court observed that the name of the purported maker is “Mezell” whereas the forger, appellant, spelled the name “Mizell.” By invoking the doctrine of idem sonans, the court found no irreconcilable repugnancy between the purport clause and the tenor clause in the forgery indictment and foreclosed appellant from making a collateral attack upon the indictment. See also Nitcholas v. State, 524 S.W.2d 689 (Tex.Crim.App.1975), where “Denny” and “Danny” were found to be idem sonans.

¶11The defendant in Handley v. State, 480 S.W. 2d 738 (Tex.Crim.App.1972) was charged by indictment with possession of narcotic paraphernalia, “to wit: two plastic hypodermic syringes, one needle, one double edge razor blade, and five yellow pieces of cellophane paper, adapted for such use.” The Court of Criminal Appeals held that the indictment charged an offense when it alleged that the defendant had possessed narcotic paraphernalia, to-wit: two hypodermic syringes and a needle. It then treated the rest of the allegation as sur-plusage. I would like to treat “white tail” as “surplusage” in the case before us.

¶12To the same effect was Bergman v. State, 370 S.W.2d 895 (Tex.Crim.App.1963). There, the Court held that a variance between an indictment alleging theft of “fifty-two dollars and ninety-six cents in money” and proof showing that the defendant gave a check for $52.96 and received $50 in cash and purchased $2.96 worth of groceries was not fatal. It based its decision on the rationale that “Where the value of the property alleged to have been stolen does not determine whether the offense is a felony or a misdemeanor, nor control the punishment applicable to the theft, the allegation as to its value is not descriptive of the offense and need not be proven.” A similar result was reached in Houston v. State, 98 Tex.Cr.R. 280, 265 S.W. 585 (1924), where the defendant appealed a conviction for theft. The charge in the indictment was theft of a bale of cotton of the value of $131.41. Proof at trial established the value to be $118. The Court found no fatal variance to exist.

¶13In Hill v. State, 103 Tex.Cr.R. 580, 281 S.W. 1071 (1926), the defendant was charged by information with damaging a storehouse occupied by “C. A. Swindell.” The evidence showed that the house was occupied by a “C. O. Swindell.” The Court *835adopted the rule that “[a] middle initial is not known at law and a variance between the allegation and proof as to a middle initial is immaterial. A middle initial may be rejected as surplusage.” (Citations omitted.) See also Burke v. State, 170 Tex.Cr.R. 539, 342 S.W.2d 585 (1961).

¶14Again, in Davis v. State, 149 Tex.Cr.R. 96, 191 S.W.2d 734 (1945), the defendant was charged by complaint and information with “unlawfully commit[ting] an aggravated assault and battery and did then and there strike, beat, bruise and wound the said [victim].... ” The proof at trial only established that the defendant had placed his hand on the victim’s leg and had pulled up her dress. The Court held that the information sufficiently charged an offense of aggravated assault without the need of the phrase “and did strike, beat, bruise and wound,” and treated this phrase as sur-plusage in affirming the conviction.

¶15In a similar case, Cabness v. State, 142 Tex.Cr.R. 367, 154 S.W.2d 460 (1941), the defendant was charged with “unlawfully commit[ting] an aggravated assault and battery and did then and there strike, beat, bruise and wound the [victim].... ” The Court observed that the complaint would have sufficiently alleged an offense had it left out “and then and there strike, beat, bruise and wound.” It found this to be an unnecessary allegation and rejected it as surplusage.

¶16The defendant in Potter v. State, 139 Tex.Cr.R. 590, 141 S.W.2d 647 (1940) was charged by complaint and information with violation of the liquor laws “after an election had been held by the qualified voters of said county in accordance with the law to determine whether or not the sale of intoxicating liquors, to-wit: whiskey, should be prohibited in said county....” The defendant complained that the complaint had been too specific. The Court rejected the defendant’s contentions saying that the only kind of election permissible under the Constitution at that time was one prohibiting the sale of intoxicating liquors, of which whiskey would be included. Therefore the word “whiskey” could be eliminated from the pleading and treated as surplusage.

¶17Some of our Texas Courts of Appeals have recently refused to reverse a conviction because the indictment or information described a portion of the complaint with unnecessary particularity. The defendant in Stevens v. State, 636 S.W.2d 857 (Tex.App. — Waco 1982, pet. ref’d) was convicted for aggravated robbery. The indictment described the brand of the property stolen as “one Pulton brand eight-track tape player”; however, the proof only tended to establish the brand name as “Fulmer” rather than “Fulton.” In affirming the judgment, the Court said: “Where the description of the property taken is not a legal requisite of the robbery indictment the gratuitous description can be disregarded as surplusage.”

¶18Last year, in the case of Howard v. State, 650 S.W.2d 460 (Tex.App. — Houston [14th Dist.] 1983, pet. granted), the defendant was charged by amended indictment with the “attempt to cause the death of [complainant] by intentionally shooting [the complainant] with a gun, to wit: a shot-gun_” The Court in affirming the conviction treated the amended part of the indictment, “to wit: a shotgun ...” as sur-plusage and not as descriptive or explanatory of anything legally essential to a valid indictment.

¶19Numerous examples of the relaxation of the variance rule have been applied regarding enhancement allegations and proof. In Cole v. State, 611 S.W.2d 79 (Tex.Crim.App.1981), a variance arose between the allegation of the prior offense, “Cause No. 87954” and the proof that it was “Cause No. 87594.” The Court stated: “a transpo-sitional error in the cause numbers would not prevent a defendant from finding the record of the prior conviction and presenting a defense.”

¶20The Court in Thompson v. State, 563 S.W.2d 247 (Tex.Crim.App.1978), examined a variance between an indictment alleging that a prior conviction was final on “October 17, 1972,” and a showing that it was in fact final on “October 19, 1972.” The *836Court determined that there was no motion to quash and no indication that the defendant was harmed or misled, and found no error. See Thomas v. State, 496 S.W.2d 578 (Tex.Crim.App.1973).

¶21In Plessinger v. State, 536 S.W.2d 380 (Tex.Crim.App.1976), a variance existed in that the indictment alleged that the prior Arizona conviction being used for enhancement was titled “The State of Texas vs. Delbert Lorrain Plessinger, Jr.,” while the proof showed that it was really titled “The State of Arizona vs. Delbert Lorrain Ples-singer, Jr.” The Court said that “[wjhile the carelessness here involved is not to be condoned, we are unable to say that appellant has shown surprise or that he was misled to his prejudice.” It further stated that: “The object of the doctrine of variance between allegations of an indictment is to avoid surprise, and for such variance to be material it must be such as to mislead the party to his prejudice.” (Citations omitted.) The judgment was affirmed.

¶22The defendant’s indictment in Baity v. State, 455 S.W.2d 305 (Tex.Crim.App.1970) alleged that the conviction for the prior offense occurred in the “89th District Court.” The Court found no problem with proof that showed it had occurred in the “30th District Court.”

¶23The Court of Criminal Appeals’ position on variances and enhancement allegations was perhaps best summarized in Hall v. State, 619 S.W.2d 156 (Tex.Crim.App.1980), wherein it stated: “It appears that in alleging prior convictions for enhancement of punishment the trend is toward a relaxation of the former rigid rules.” To this, I agree.

¶24The question of harm and the need to preserve error have also created a rift in the “well settled rule.” In Johnson v. State, 160 Tex.Cr.R. 171, 268 S.W.2d 190 (1954), the Court stated: “We disclaim any intention in our original opinion that the question of the insufficiency of the evidence because of variance could not be raised for the first time in this Court. The rule to the contrary is well established.” However, in Malone v. State, 630 S.W.2d 920 (Tex.Crim.App.1982), the Court, in a better reasoned opinion, affirmed an order revoking probation, despite a claim by the defendant that a variance existed between the allegations in the revocation motion and the proof adduced. The motion alleged the complaining witness was “Powell Battle,” and the proof showed the person to be “Paul Battel.” The Court concluded that: “The issue raised here was raised for the first time on appeal, so nothing is presented for review.” (Emphasis supplied.) See Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979); and Martin v. State, 541 S.W.2d 605 (Tex.Crim.App.1976).

¶25Also, in Bowker v. State, 481 S.W.2d 141 (Tex.Crim.App.1972), there was a variance between the allegation in the indictment that the offense occurred on March 28, 1970, and proof that it occurred on May 28, 1970. In affirming the judgment of the trial court, the Court set forth: “Further, the record is devoid of any motion to quash the indictment or any objections made to the indictment.”

¶26The potential of double jeopardy was addressed in Martin v. State, 152 Tex.Cr.R. 261, 213 S.W.2d 548 (1948). The defendant appealed a conviction for theft by false pretext. His indictment had alleged the date of the check which formed the basis of the charge as “February 12, 1947,” while the check itself showed the date to be “February 13, 1947.” The Court stated: “The purpose of the requirement of the correspondence between the allegation and proof is: first, to put an accused on notice as to what the charge against him consists of; and second, in order that he can if necessary, plead the same in the event of a further attempt to put him again in jeopardy for the same alleged act.” (Citations omitted.) On appellant’s motion for rehearing, the Court further set forth that “[wjhen we consider the whole record we see no chance for a misunderstanding on the part of appellant as to the offense with which he was charged and, certainly, there is no ground for fear that he could be reindicted and re-tried for the same offense.” (Emphasis supplied.) Appel*837lant’s conviction was affirmed. In the case at bar, I see no possible chance that the appellant misunderstood the offense with which he was charged.

¶27The Fort Worth Court of Appeals, in Mayfield v. State, 649 S.W.2d 361 (Tex.App. — Fort Worth 1983, pet. ref’d), had no trouble in holding that a variance between the indictment and evidence was waived for failure to object to the variance. There, the defendant appealed a conviction for robbery with bodily injury. Named in the indictment as the party injured was W.B. Branch. On appeal the defendant alleged that no showing had been made at trial that Wayne Branch, the officer who testified as to the injuries he received, was the same W.B. Branch named in the indictment. In overruling the contention that there existed a fatal variance, the Court said: “Appellant did not raise the variance between the indictment and the evidence at trial, nor does appellant suggest it was designed to mislead him to his prejudice. We hold that the variance between ‘Wayne Branch’ and ‘W. B. Branch’ is not material and that the alleged variance was not prejudicial or misleading to appellant.” The judgment was affirmed.

¶28To the same effect are French v. State, 629 S.W.2d 279 (Tex.App. — Fort Worth 1982, pet ref’d 1982), and Wray v. State, 642 S.W.2d 27 (Tex.App. — Texarkana 1982, pet. granted 1983).

¶29In Wray, the indictment alleged assault by pointing a shotgun at the victim. There was no evidence that the defendant pointed or aimed the gun at the victim. There the Court said: “An indictment is not rendered fatally defective because there is a variance between the allegations and the proof. Rather, the variance, if fatal, may render the evidence insufficient to sustain a conviction.” Finding no showing of surprise or that the defendant was misled to his prejudice, the Court found the variance not to be fatal to the conviction.

¶30Perhaps the rationale for such divergence from the general rule laid down by the Court of Criminal Appeals, that the State must prove matter in an indictment descriptive of an essential element of the crime, can be discerned from examining cases strictly construing this rule of law. When you follow the literal application of this rule, as the Court of Criminal Appeals has done in many cases, a more bizarre result is reached. For instance:

¶31In Easley v. State, 167 Tex.Cr.R. 156, 319 S.W.2d 325 (1959), the defendant had been convicted under an indictment alleging theft of “corporeal personal property of H. E. Butt_” The evidence at trial established that the money which was the subject of the theft belonged to H.E. Butt Grocery Company, a Texas Corporation of which H.E. Butt, as president, owned, either individually or as trustee, all of the company’s stock. The Court concluded that the evidence established that H.E. Butt was not in fact the owner of the money and reversed the conviction.

¶32The defendant in Gibbs v. State, 610 S.W.2d 489 (Tex.Crim.App.1980) was charged by indictment with appropriating property from Montgomery Ward and Company, Incorporated. At trial, the evidence only established that the property belonged to either Montgomery Ward Store or to Montgomery Ward Department Store. Since it was never established that the property belonged to “Montgomery Ward and Company, Incorporated,” the Court found a fatal variance. The conviction was reversed.

¶33In Flippin v. State, 134 Tex.Cr.R. 352, 115 S.W.2d 665 (1937), the defendant had been convicted of theft of property of a value over $50. The defendant was charged by indictment with the theft of 2,500 pounds of “sudan grass seed.” The proof at trial only established that the property stolen was “sudan” or “seed” or “sudan seed.” The Court found this to be a fatal variance and reversed the case.

¶34A conviction was reversed in Jacobs v. State, 129 Tex.Cr.R. 617, 91 S.W.2d 348 (1936) because the indictment alleged unlawful plating of cotton with a particular staple of cotton when the proof established that the cotton used was in fact of differ*838ent staple. The Court stated “[i]t is unfortunate that the attorney for the State saw fit to set out the exact grade and class of the two grades of cotton used. If, with intent to deceive, one plate[s] a bale of cotton, putting higher grade cotton on the outside and lower grade on the inside, he would be guilty.”5

¶35*839It would seem to me that the more practical approach to this problem would be to adopt the reasoning taken by the Federal Judiciary. It is a very simple and easy to understand rule. There, a variance between an indictment and the proof adduced at trial is immaterial unless the substantial rights of the accused have been prejudiced. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). It is not necessary to prove the exact words charged in the indictment, if the charge is substantially proved. Any variance is immaterial. United States v. Laite, 418 F.2d 576 (5th Cir.1969). “Not every variance between the indictment and the proof is fatal to a conviction. In order for a variance to be fatal, thus mandating reversal, it must affect the substantial rights of the accused either (1) by insufficiently informing him of the charges against him such that he is taken by surprise and prevented from presenting a proper defense, or (2) by affording him insufficient protection against reprosecution for the same offense.” (Citations omitted.) United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981), cert. denied 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982). Only such a fatal variance between the crime charged and the proof adduced should mandate a reversal. United States v. Eaton, 501 F.2d 77 (5th Cir.1974).

¶36The very best approach in my opinion on variances and surplusage is again used by the federal judiciary. They hold that the failure to present the variance to the trial court amounts to a waiver. United States v. Cauble, 706 F.2d 1322 (5th Cir.1983), petition for cert filed. I think the Texas legislature should adopt a “bill of particulars” rule, the effect of which would be that the failure by the defendant to object would amount to a waiver.

¶37While the Court of Criminal Appeals states in Clarkthat the law in this area is “well settled,” I disagree. Until such time as the Court of Criminal Appeals and the legislature make an indepth examination of Texas criminal procedure law in this area and clear up the inconsistencies contained therein, the law will never truly be “settled.” The result reached today by the majority of this Court is probably correct as the law now stands. However, justice is not served. I, therefore, concur in the result.