Texas Court of Criminal Appeals Case Updates – Sufficiency of Evidence

The CCA handed down two opinions today dealing with legal sufficiency of evidence.  Johnson v. State (Tex. Crim. App. 2012) involved a variance between allegations in the charging instrument and the sufficiency of the proof presented at trial.  Wirth v. State (Tex. Crim. App. 2012) involved a general question of legal sufficiency in light of the recent case, Brooks v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).

In Johnson v. State, Appellant was convicted on various counts of aggravated assault.  The indictment read that appellant did then and there, “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or twisting her arm with his hand.” The complaining witness in the case testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.  Appellant’s criminal defense attorney argued that the variance between pleading and proof rendered the evidence legally insufficient to support the conviction.  The CCA held that ultimately, “the act that caused the injury does not define or help define the allowable unit of prosecution for this type of aggravated assault offense, so variance at issue cannot be material.” The CCA also stated that this type of variance involved immaterial non-statutory allegations and when a variance like this presents itself it will not render the evidence legally insufficient.

I thought this case was interesting because, as a former criminal prosecutor, I used to try and charge the most accurate manner and means possible.  I came across cases like this occasionally where we alleged one way that a defendant had assaulted a victim and then upon further investigation or questioning of the victim, it looked as if there was going to be a variance.  In those cases, I would amend the indictment to reflect the more accurate description of the manner and means.  Another method that is commonly used by prosecutors is to allege a very broad manner and means.  Often, you will see the manner and means in an assault alleged, “by striking with defendant’s hands.” This language covers various types of assaults (slapping, punching, grabbing, squeezing).  But, in looking at the Johnson opinion, it looks like the bottom-line is that if the language in the indictment involves immaterial non-statutory allegations, it will likely not render the evidence legally insufficient if different evidence comes up at trial.

In Wirth v. State, the Appellant was convicted of the offense of Theft of $20,000 or more but less than $100,000, a third degree felony.  The Sixth Court of Appeals (Texarkana) held that the evidence was legally insufficient to support the conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review.  The CCA found that the Sixth Court of Appeals had erred and reversed the Court’s decision, reinstating the Appellant’s conviction.  The CCA recognized that the Sixth Court of Appeals had reviewed the Appellant’s case and found that the evidence was factually insufficient to support the verdict based on Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).  As the Court noted, at the time that the Court of Appeals considered the Appellant’s case, the CCA had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010) which essentially overruled the factual sufficiency analysis (see our previous post on this issue here).  In light of the Brooks decision, the CCA analyzed Appellant’s case based on the legal sufficiency of the evidence and held that there was legally sufficient evidence (even given that the evidence was purely circumstantial and that the defendant was a party to the crime) to support the jury’s prior verdict of guilt. Accordingly, the CCA reversed the judgment of the Sixth Court of Appeals and affirmed the judgment of the trial court.

What's in a Name?

Last year I wrote about Byrd v. State, a case out of the 4th District Court of Appeals (San Antonio). In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Wal-Mart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that "Mike Morales" - the person alleged in the theft indictment - has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing "Mile Morales," convicted her nevertheless.  According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved - and possibly to the jury as well - that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter."  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future theft cases, the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Wal-Mart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.