Opinion
No. 10-03-00181-CR
Opinion delivered and filed November 10, 2004. DO NOT PUBLISH.
Appeal from the County Court Bosque County, Texas, Trial Court # 14653. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA
MEMORANDUM OPINION
Appellant, Gena Harris, was convicted of misdemeanor furnishing alcohol to minors. TEX. ALCO. BEV. CODE ANN. § 106.06(a) (Vernon Supp. 2004-05). She was sentenced to fourteen days in county jail and a fine of $500. She brings two issues on appeal: (1) the trial court erred in convicting her on a theory not alleged in the information, and (2) there is no evidence to support a conviction on the offense of purchasing alcohol for minors as charged in the information. Harris argues that the information charged her with purchasing alcohol for minors. She contends that the State failed to prove that she purchased the alcohol, and that she was convicted under a different theory: that she made alcohol available to minors. That theory, Harris argues, was not alleged in the information. The controlling statute provides in part that "a person commits an offense if he purchases an alcoholic beverage for or gives or with criminal negligence makes available an alcoholic beverage to a minor." Id. The information charged that Harris "did . . . with criminal negligence, to-wit: make available alcoholic beverages, namely, beer and wine coolers, to Clifton Cockerham, Jessica Helms, and Jaqueline Helms, persons [sic] were less than 21 years of age, by purchasing alcohol,. . . ." Unfortunately, the information combines elements of two ways of committing an offense under the statute: purchasing alcohol for minors and making alcoholic beverages available to minors. It is clear from the record that Harris was not convicted on a theory that she purchased the alcohol for the minors. The State's witnesses testified that they could not show that Harris purchased the alcohol, Harris's witnesses testified that Harris did not purchase the alcohol, and the judge announced that his decision was based on Harris's making alcohol available to the minors. However, the theory that Harris made alcohol available to minors was alleged in the information. The information alleges all of the elements of the offense of making alcohol available to minors and tracks the language of the statute. As a general rule, an indictment in the language of the statute creating and defining the charged offense will be sufficient. Beck v. State, 682 S.W.2d 550, 554 (Tex.Crim.App. 1985). Harris's contention appears to be that there is a variance between the offense as alleged in the information and the proof at trial. Even if the inclusion of the words "by purchasing alcohol" in the information created a variance, the variance was not material. Whether a variance is material is determined by examining whether the information (1) sufficiently informs the defendant of the charge against her to allow her to adequately prepare a defense, and (2) is sufficiently clear about what criminal conduct it is referring to, such that the defendant could not be subjected to prosecution for the same offense under a differently-worded information. Gollihar v. State, 46 S.W.3d 243, 247 (Tex.Crim.App. 2001). The charging instrument sufficiently informed Harris of the charge against her and was clear enough about the offense that she would not be subjected to double jeopardy by a differently worded indictment about the same offense. Thus there is no material variance. Because of our resolution of Harris's first issue, Harris's second issue fails. The State was not required to prove that Harris purchased the alcohol to obtain a conviction. The statute provides more than one means by which a person can commit an offense. The charging instrument alleged that Harris, with criminal negligence, made alcohol available to minors. Harris was convicted of that offense.