No. 04-05-00856-CR.
Delivered and Filed: January 31, 2007. DO NOT PUBLISH.
Appeal from the 229th Judicial District Court, Starr County, Texas, Trial Court No. 04-CRS-692, Honorable Alex W. Gabert, Judge Presiding. AFFIRMED.
Sitting: SANDEE BRYAN MARION, Justice PHYLIS J. SPEEDLIN, Justice REBECCA SIMMONS, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
This case is before us on appellant's motions for rehearing. We deny appellant's panel motion for rehearing and motion for rehearing en banc but withdraw our November 22, 2006 opinion and judgment and substitute this opinion and judgment in its place. Gaston Garcia was convicted of aggravated robbery and was sentenced to fifty years' imprisonment. On appeal, he complains that the evidence is insufficient to support his conviction and he was denied adequate notice of the charged offense because a fatal variance exists between the name of the victim alleged in the indictment and the proof of the name of the victim presented at trial, depriving him of due process of law; Garcia also argues that he received ineffective assistance of counsel. We affirm the judgment of the trial court.
Analysis
In this case, the indictment alleged as follows: . . . Gaston Garcia, Defendant, on or about the 15th day of October 2004, and before the presentment of this indictment, in Starr County, Texas, did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Mirtha Bazan in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, . . . Garcia pled guilty to the offense of aggravated robbery as alleged in the indictment, with no plea bargain. Garcia agreed to stipulate to the State's evidence, which included an offense report and a supplemental report from the Starr County Sheriff's Department. At the plea hearing, the complainant testified that her name is "Mirtala Bazan" and that her nickname is "Mirta." During sentencing, Mrs. Bazan testified, as did her daughter, who was held at gunpoint during the home invasion robbery. The trial court subsequently sentenced Garcia to fifty years' imprisonment. In two issues, Garcia contends his due process rights under the Texas and United States Constitutions were violated because the indictment gave him insufficient notice of the victim in this case. In his third and fourth issues, Garcia maintains the evidence is legally and factually insufficient to support his conviction for aggravated robbery due to the variance between the indictment and the evidence presented at trial. Specifically, Garcia argues that he was "surprised at the true name of the victim" and was not given an opportunity to prepare a defense as to the true victim, Mirtala or Mirthala. Because all four issues pertain to the variance, we will address Garcia's arguments in a single discussion. See Gollihar v. State, 46 S.W.3d 243, 247 (Tex.Crim.App. 2001) (noting that while some courts have treated variance claims as notice-related claims, the Court of Criminal Appeals has routinely treated variance claims as insufficiency of the evidence problems). A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar, 46 S.W.3d at 246. A variance between the wording in an indictment and the evidence presented at trial is fatal only if "it is material and prejudices [the defendant's] substantial rights." Id. at 257. To determine whether a defendant's substantial rights have been prejudiced, we consider 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 whether the defendant would be subject to the risk of later being prosecuted for the same crime. Id. at 248. Garcia was provided adequate notice of the charges against him. The evidence, which was also available to the defense, included offense reports and witness statements identifying the complainant as "Mirtala Bazan" or "Mirthala Bazan." Any variance between the indictment and the evidence did not operate as a surprise to Garcia or prejudice his substantial rights. Barro v. State, No. 04-04-00142-CR, 2005 WL 418530, at *2 (Tex.App.-San Antonio Feb. 23, 2005, no pet.). There is no indication in the record that Garcia did not know whom he was accused of robbing or that he was surprised by the complainant's true name. See Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002). Additionally, Garcia is in no danger of being prosecuted later for the aggravated robbery of "Mirtala" Bazan. See Gollihar, 46 S.W.3d at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir.) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution), cert. denied, 488 U.S. 932 (1988)). Accordingly, we conclude that the variance at issue was not material, and therefore the evidence is sufficient to sustain Garcia's conviction. See Gollihar, 46 S.W.3d at 257 (holding that only a "material" variance will render evidence insufficient to support conviction). In his final issue, Garcia argues that he received ineffective assistance of counsel because counsel failed to present his "motion in arrest of judgment or for a new trial" within 75 days after the pronouncement of his sentence. To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999). To establish deficient performance, the defendant must show that counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-14 (Tex.Crim.App. 1999). Prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Any allegations of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813. Garcia timely filed his motion for new trial. In it, Garcia alleged that the variance between the indictment and the evidence prevented him from preparing for trial. A hearing was held on the motion on October 31, 2005, more than 75 days after his sentence was pronounced on August 12, 2005. See Tex. R. App. P. 21.8(a); 22.4(a) (court must rule on a motion for new trial or a motion in arrest of judgment within 75 days after imposing or suspending sentence in open court). At the hearing, Garcia's counsel argued that his client was prejudiced by the variance. The State responded by stating that the variance was immaterial under Gollihar, but ultimately argued that the trial court lacked jurisdiction to consider the motion. The trial court denied the motion in a written order, and orally stated, "If I don't have jurisdiction, then I cannot rule, but if I do have jurisdiction, then the motion will be denied." Garcia now argues that because his motion raised a fact issue pertaining to a material variance not determinable from the record, it was necessary to present evidence at a timely hearing. See Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). We disagree. There is no absolute right to a hearing on a motion for new trial when error is determinable from the record. Id. at 815-16. Garcia did not need to establish any evidence outside of the record to prove there was a variance between the indictment and the evidence; therefore, he was not harmed by the failure to have a timely hearing. Furthermore, the trial court judge admitted that even if he did have jurisdiction to consider the motion, he would have denied it. As discussed above, we have already concluded that the variance was immaterial. Even assuming arguendo that the failure to timely present the motion for new trial was deficient performance, the grounds asserted in the motion and the record cannot support a finding of a reasonable probability that, but for trial counsel's deficient performance, the outcome would have been different. Having failed to meet the second prong of the test set out in Strickland, Garcia has failed to show he was deprived of reasonably effective assistance of counsel. See Strickland, 466 U.S. at 694. Accordingly, Garcia's final issue is overruled and the judgment of the trial court is affirmed.