Opinion
13-22-00256-CR
07-13-2023
OSCAR OSVALDO BARAJAS JR. A/K/A OSCAR OSVALDO BARAJAS, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. TEX. R. APP. P. 47.2 (b).
On appeal from the 36th District Court of Aransas County, Texas.
Before Chief Justice Contreras and Justices Silva and Pena
MEMORANDUM OPINION
DORI CONTRERAS CHIEF JUSTICE
Appellant Oscar Osvaldo Barajas Jr. a/k/a Oscar Osvaldo Barajas was convicted of aggravated assault with a deadly weapon, a second-degree felony, and deadly conduct by discharge of a firearm, a third-degree felony. See TEX. PENAL CODE ANN. §§ 22.02(a)(2), 22.05(b)(2). He was sentenced to concurrent ten- and five-year prison terms for the respective offenses. On appeal, Barajas argues: (1) a material variance existed between the indictment and the proof at trial regarding the aggravated assault offense, rendering the evidence legally insufficient to support conviction; and (2) the court erred by submitting the aggravated assault charge to the jury. We affirm.
I. Background
An Aransas County grand jury returned an indictment alleging that Barajas, on or about September 27, 2021: (1) "intentionally, knowingly[,] or recklessly sh[ot] Don Gaines with a firearm, and did then and there use or exhibit a deadly weapon, namely a firearm, during the commission of the assault" (Count 1); and (2) "discharge[d] a firearm at or in the direction of a habitation, and . . . was then and there reckless as to whether the habitation was occupied" (Count 2).
At trial, Gaines testified that in the early morning of September 26, 2021, he observed an argument between his neighbors Ace Montgomery and Leon Anderson outside his home in Rockport. According to Gaines, Montgomery was yelling racial slurs at Anderson and then punched him. Gaines testified that, when his son David came out of the house, David saw Anderson's necklace on the ground next to Montgomery's Mercedes and went to retrieve it; Montgomery then punched David. Gaines said he grabbed David and Montgomery and all three men fell into a ditch. At that point, police arrived and the parties dispersed. However, as he and his wife were trying to go back to sleep, Gaines heard a "bunch" of gunshots and "the bullets just started running in through the wall." Gaines was shot in the foot and began bleeding profusely. He stated that the injury hurt and that it required surgery.
Fernanda Moctezuma testified she lived with Montgomery in her house across the street from Gaines's residence. She observed the fight between Montgomery and Anderson. At the time of the fight, Barajas was inside her house. Moctezuma stated that, when Montgomery came back inside her house after the fight, he had visible injuries, and Barajas saw those injuries. At some point, Barajas left the house and Moctezuma fell asleep. She woke up when she heard multiple gunshots which she thought were directed at her house. Later, police came to search the house and to ask about Montgomery's whereabouts. Eventually, Montgomery returned to the house in a car driven by Juan Arguello, at which point police arrested both Montgomery and Arguello. On crossexamination, she agreed with defense counsel that Gaines, David, and Anderson "jumped" Montgomery.
Phone records introduced into evidence showed that Montgomery called Barajas at 4:30 a.m.-around eight minutes before the shooting occurred. Investigation also revealed that Montgomery called Arguello at around 5:54 a.m. and again at around 6:08 a.m. Arguello testified that he went to pick up Montgomery at Barajas's house at around 6:00 a.m. When he went inside Barajas's bedroom, he saw a black "assault rifle" against a wall. He then brought Montgomery back to Moctezuma's house, where he and Montgomery were arrested.
Barajas's roommate Clayton Lambert testified that he saw Barajas with a black "AR" when Barajas moved in with him in around March of 2021. Lambert conceded that he told police on September 28, 2021, that Barajas "said he was going to dip out because things were getting hot." Police impounded Barajas's black BMW, which was parked outside Lambert's house. A search of the BMW revealed two .223-caliber shell casings, which were consistent with having been fired from an assault rifle.
Barajas was interviewed by police after he was arrested. At first, Barajas claimed not to be involved with the shooting; then, he said he was a passenger in the car and Montgomery was the driver and the shooter. Barajas told police that Montgomery used an "AR P"-i.e., an AR pistol, which is an AR-15-style rifle modified to have a shorter barrel and no buttstock. No firearm was recovered by police.
The jury was instructed on the law of parties. See TEX. PENAL CODE ANN. § 7.02(a)(2) ("A person is criminally responsible for an offense committed by the conduct of another if[,] . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense ...."). It found Barajas guilty on both charges and assessed punishment as set forth above. This appeal followed.
II. Discussion
A. Material Variance
By his first issue, Barajas contends that the evidence was legally insufficient to support his conviction for aggravated assault with a deadly weapon because there was a material variance between the allegations in the indictment and the proof adduced at trial. His complaint stems from the fact that Count 1 of the indictment failed to explicitly allege that Gaines suffered bodily injury. See id. § 22.02(a)(2) (stating that a person commits aggravated assault "if the person commits assault as defined in [§] 22.01 and . . . uses or exhibits a deadly weapon during the commission of the assault"); id. § 22.01(a)(1) (stating that a person commits assault "if the person . . . intentionally, knowingly, or recklessly causes bodily injury to another" (emphasis added)).
In reviewing the sufficiency of the evidence to support a conviction, we consider the evidence "in the light most favorable to the verdict" to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). Sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (citing 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. (citing Malik, 953 S.W.2d at 240). "The law 'authorized by the indictment' consists of the statutory elements of the offense as modified by the indictment allegations." Id.
"If a variance exists between the allegations and the proof, it may render the evidence insufficient to sustain the conviction." Wray v. State, 711 S.W.2d 631, 633 (Tex. Crim. App. 1986). "In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance requires reversal and judgment of acquittal only when it is prejudicial to a defendant's substantive rights. Id. at 248. In determining whether substantial rights have been prejudiced, we ask (1) "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 (2) "whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime." Id. [
The dissent purports to apply Gollihar and would find a material variance, but it does not apply these factors.
In this case, Count 1 of the indictment failed to allege all of the essential elements of aggravated assault because it did not allege that Barajas, either as a principal or as a party, caused bodily injury. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.01(a)(1).Pursuant to the Texas Court of Criminal Appeals' decision in Studer v. State, it is "possible . . . for a defendant to be convicted on the basis of an indictment that does not allege all of the elements of the offense." Fisher v. State, 887 S.W.2d 49, 55 (Tex. Crim. App. 1994) (first citing Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990); then citing State v. Oliver, 808 S.W.2d 492, 493-94 (Tex. Crim. App. 1991) (holding that an indictment which failed to allege a culpable mental state was still an "indictment" conferring jurisdiction, and the defect was waived); and then citing Rodriguez v. State, 799 S.W.2d 301, 302-03 (Tex. Crim. App. 1990) (same)), overruled on other grounds by Malik, 953 S.W.2d at 239-40; see Ex parte Edwards, 663 S.W.3d 614, 617 (Tex. Crim. App. 2022) (citing Studer approvingly and noting that, under Article V, § 12 of the Texas Constitution, "an indictment is still an indictment" conferring jurisdiction on the trial court "even if it has a defect of substance"). However,
Barajas did not object to the indictment prior to trial; therefore, he waived any complaint as to the lack of an essential element in the indictment, and he does not bring any complaint regarding the indictment on appeal See Studer v State, 799 S.W.2d 263 (Tex Crim App 1990) (noting that defects of substance or form contained in an indictment must be objected to at trial or are waived, and that a defect of substance includes the omission of a required element or elements of the offense); see also TEX CODE CRIM PROC ANN art 114(b) ("If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding") Specifically, Barajas does not argue on appeal that the indictment failed to accuse him of a crime "with enough clarity and specificity to identify the penal statute under which the State intend[ed] to prosecute" such that it would not invoke the trial court's jurisdiction See Duron v State, 956 S.W.2d 547, 550-51 (Tex Crim App 1997) We nevertheless observe that Count 1 of the indictment in this case, though failing to allege a "complete offense," contains far more detail about Barajas's complained-of conduct than the example given by the Texas Court of Criminal Appeals of a charging instrument so deficient that it might fail to invoke the court's jurisdiction See Teal v State, 230 S.W.3d 172, 183 (Tex Crim App 2007) (Keller, PJ, concurring) (noting that an indictment which merely reads "John Smith intentionally" would not contain "enough information to allege an offense" and would not invoke the court's jurisdiction); see also Walker v. State, 594 S.W.3d 330, 339 (Tex. Crim. App. 2020) ("Had the indictment in this case been as deficient as the one envisioned by Presiding Judge Keller [in Teal] then we might characterize the engaging offense as the State does, as a 'non-existent' offense."); Jenkins v. State, 592 S.W.3d 894, 900 (Tex. Crim. App. 2018) (holding that when an indictment potentially charges a felony but is defective, a court may refer to the indictment's heading and other circumstances to determine whether the charging instrument effectively invokes felony jurisdiction).
where an indictment facially charges a complete offense, it is reasonable to presume the State intended to charge the offense alleged, and none other. Consequently, where an indictment facially charges a complete offense, the State is held to the offense charged in the indictment, regardless of whether the State intended to charge that offense.Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994); see Sierra v. State, 501 S.W.3d 179, 183 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (same); see also Kirkpatrick v. State, 279 S.W.3d 324, 327 (Tex. Crim. App. 2009) (implicitly rejecting appellant's contention that the court of criminal appeals "retreated" from its holding in Thomason); Guerrero-Acosta v. State, No. 13-17-00560-CR, 2018 WL 5832097, at *6 (Tex. App.-Corpus Christi-Edinburg Nov. 8, 2018, no pet.) (mem. op., not designated for publication). It follows that, "when the indictment facially charges a complete offense and the State presents evidence which convicts under a different theory than that alleged," the defendant's due process rights are violated "because the State has failed to prove beyond a reasonable doubt every fact necessary to constitute the crime with which [the] defendant was charged." Thomason, 892 S.W.2d at 11. In that situation, "we cannot presume a defect exists and Studer is simply not applicable." Id. n.5.
The dissent suggests that both Studer and Thomason have been abrogated by the more recent holding in Malik that sufficiency is measured with reference to a hypothetically correct jury charge, not the charge actually given. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). But a variance analysis calls for a comparison between the facts alleged in the charging instrument and the proof adduced at trial; it does not involve the jury charge at all. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001); Wray v. State, 711 S.W.2d 631, 633 (Tex. Crim. App. 1986). Accordingly, the holding in Malik does not affect the continued vitality of Studer and Thomason.
Barajas argues that the indictment for Count 1 "facially alleged the complete offense of [d]eadly [c]onduct" under Texas Penal Code § 22.05(b)(1). See TEX. PENAL CODE ANN. § 22.05(b)(1) (stating that a person commits the offense of deadly conduct "if he knowingly discharges a firearm at or in the direction of . . . one or more individuals"); Thomason, 892 S.W.2d at 11. He contends that "the material variance is fatal, and therefore warrants reversal, since the evidence at trial proved an offense different than the complete offense alleged in the indictment."
In response, the State notes that, though Count 1 of the indictment did not explicitly allege that Barajas caused Gaines to suffer bodily injury, it did specifically cite penal code § 22.02(a)(2), defining aggravated assault, in its header. The State also argues that Count 1 did not facially allege the "complete offense" of deadly conduct under § 22.05(b) because, though it alleged that Barajas "sh[ot] . . . Gaines," it did not allege that Barajas shot "at or in the direction of" Gaines. See TEX. PENAL CODE ANN. § 22.05(b)(1).
We agree with the State that Count 1 of the indictment did not allege the "complete offense" of deadly conduct as defined in § 22.05(b)(1) of the penal code. Count 1 alleged that Barajas "intentionally, knowingly[,] or recklessly" shot Gaines with a firearm, which would theoretically allow Barajas to be convicted even if he did not shoot "at or in the direction of" Gaines. See id. § 6.03(c) ("A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the . . . result will occur."). This is inconsistent with the statutory definition of deadly conduct under § 22.05(b), which requires the "knowing" discharge of a firearm. Id. § 22.05(b); see id. § 6.03(b) ("A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result."); see also id. § 6.02(d) (classifying "knowing" mental state as relatively more culpable than "reckless"). Barajas does not suggest any other "complete offense" which Count 1 may have alleged, and we observe none.
For example, a defendant could fire a gun out of a car window aimlessly, or into the air or at the ground, or while spinning the gun around on his finger. If a person is shot as a result of this action, the defendant may be guilty of assault (because he recklessly caused bodily injury to another), but not deadly conduct as defined in § 22.05(b) (because he did not knowingly discharge a firearm at or in the direction of one or more individuals). See TEX. PENAL CODE ANN. §§ 22.01, 22.05(b)(1). Moreover, under this scenario, the defendant shot the victim, but he did not necessarily shoot "at or in the direction" of the victim; thus, the dissent is mistaken when it claims that "[b]y alleging Barajas shot Gaines, the State alleged that Barajas discharged a firearm at or in the direction of Gaines." In fact, the evidence established that Barajas shot at Gaines's house, not necessarily at or in the direction of Gaines.
In particular, Barajas does not argue that the indictment alleged a "complete offense" under penal code § 22.05(a). See id. § 22.05(a) ("A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury."). Notably, under that statute, "recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another," id. § 22.05(c), but there was no allegation or evidence to that effect in this case.
The dissent argues that an indictment alleging an "intentional, knowing, or reckless" shooting suffices to allege the "complete offense" of deadly conduct under § 22.05(b), which requires the "knowing" discharge of a firearm. By that rationale, an indictment alleging that a defendant "intentionally or knowingly caused the death or discomfort of an individual" would suffice to allege the "complete offense" of murder under § 19.02(b)(1). See id. § 19.02(b)(1) (providing that a person commits murder if he "intentionally or knowingly causes the death of an individual" (emphasis added)). With its use of the disjunctive "or" in its description of culpable mental states, the indictment transformed what would be an essential element of deadly conduct under § 22.05(b)- the "knowing" discharge of a firearm-into an optional element. The indictment therefore did not allege a "complete offense" as argued by Barajas. See Malik, 953 S.W.2d at 239 n.4 (noting an indictment is "facially complete" if "it alleges all of the essential elements of a criminal offense").
The dissent expresses concern that our 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." This is misleading. If an indictment does not facially allege a complete offense, it is incumbent upon the defendant to object to it prior to trial. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b); id. art. 21.03 ("Everything should be stated in an indictment which is necessary to be proved."). Similarly, the defendant may object to the indictment if he believes it does not give him adequate notice of the charges against him. See Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000) ("The charging instrument must convey sufficient notice to allow the accused to prepare a defense."). And for an offense to be included in the jury charge, there must have been evidence adduced at trial to support each essential element of it. See TEX. CODE CRIM. PROC. ANN. art. 36.14. So, it is true that, when the indictment fails to facially allege a complete offense, "any offense" may be later included in the jury charge-as long as the defendant first declined to object to the indictment prior to trial on any grounds, and as long as there is evidence adduced at trial to support each element of the included offense. It is not unjust or unreasonable to allow a jury charge instruction on a particular offense in this hypothetical scenario. In any event, the result in this case is compelled by Studer and Thomason, and we may not disregard controlling precedent of the court of criminal appeals. See State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) ("The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.").
Because Count 1 of the indictment did not facially allege a complete offense, its failure to allege an essential element of aggravated assault did not result in a variance between the indictment and the proof at trial, and it is not fatal to Barajas's conviction. See Thomason, 892 S.W.2d at 11; Studer, 799 S.W.2d at 263. We overrule Barajas's first issue.
Barajas does not argue that the evidence was insufficient to support the jury's finding that he committed aggravated assault, either as a principal or as a party to the offense.
B. Jury Charge Error
By his second issue, Barajas contends that the jury charge contained reversible error because it "instructed the jury to return a guilty verdict for [a]ggravated [a]ssault with a [d]eadly [w]eapon, despite the indictment facially alleging the complete offense of [d]eadly [c]onduct." See TEX. CODE CRIM. PROC. ANN. art. 36.14 (providing that the jury charge must "distinctly set[] forth the law applicable to the case"); Fella v. State, 573 S.W.2d 548 (Tex. Crim. App. 1978) (reversing conviction because "the charge of the trial court authorized the jury to find the appellant guilty . . . on a theory not alleged in the indictment"). This issue is dependent on Barajas's assertion that Count 1 of the indictment facially alleged the "complete offense" of deadly conduct, an argument which we have already rejected. Accordingly, we overrule Barajas's second issue.
III. Conclusion
The trial court's judgment is affirmed.
Dissenting Memorandum Opinion by Justice Silva.
DISSENTING MEMORANDUM OPINION
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. 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 series of prior cases which had focused on the charge actually given. 953 S.W.2d at 23940. 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 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.
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 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 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. 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. Barajas waived any objection to such defect. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b).
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.
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.
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 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. Regardless, the parties do not 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.
It is possible to shoot a person without causing bodily injury. For instance, a bullet may not cause 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).
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 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 the lesser included offense. 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). 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).
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.
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.").
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.