Brandon Powers v. State, 04-17-00103-CR

Brandon Powers was indicted for cruelty to a non-livestock animal after Josette McAnelly and Roger Rainey testified Powers repeatedly slammed McAnelly’s puppy’s head against a door jamb/wall, killing it.
Officer Bobby Buscha responded, relayed McAnelly’s statements, and recorded video and photos of the limp, deceased puppy and the door jamb.
At trial the jury found Powers guilty; punishment was a $5,000 fine and two years in state jail. The trial court’s judgment also assessed attorney’s fees.
Powers appealed, arguing (1) legally insufficient evidence due to a variance (indictment alleged “wall,” evidence showed “door jamb”), (2) jury-charge error (omitted reckless definition; included definitions/terms not alleged), and (3) attorney’s fees were improper because his indigence was not rebutted.
The Fourth Court of Appeals held the evidence was legally sufficient, the charge errors (if any) did not cause egregious harm, but attorney’s fees must be deleted because the record shows indigence and no finding of ability to repay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Legal sufficiency/variance between indictment ("wall") and proof ("door jamb")	State: The indictment tracked the evidence; the door jamb is part of the wall.	Powers: Proof showed door jamb, not wall, creating a material variance and insufficient evidence.	No material variance; evidence (including testimony and photo showing door jamb affixed to wall) was sufficient to support conviction.
Jury-charge errors (missing definition of "recklessly"; inclusion of "torture", "serious bodily injury", and both conduct/result formulations of mental states)	Powers: Charge defects misstated law and risked conviction on uncharged theories; caused egregious harm.	State: Application paragraph tracked the indictment; State argued intentional killing, not other theories; jury presumably followed application paragraph.	No egregious harm: application paragraph matched indictment, evidence supported intentional/knowing killing, and State did not rely on improper theories.
Assessment of attorney’s fees	Powers: Insufficient because trial court found him indigent and made no finding he could repay fees.	State (on appeal): Agreed reformation is required.	Judgment modified to delete assessed attorney’s fees; indigence not rebutted.

Jackson v. Virginia, 443 U.S. 307 (standard for legal sufficiency of evidence) (establishes that a conviction must be supported by proof beyond a reasonable doubt such that any rational trier of fact could find the essential elements).
Byrd v. State, 336 S.W.3d 242 (variance doctrine and when variances are immaterial) (discusses discrepancies between charging instrument and proof and prejudice analysis).
Merritt v. State, 368 S.W.3d 516 (reviewing sufficiency in the light most favorable to the verdict) (confirms standard of reviewing evidence in sufficiency review).
Almanza v. State, 686 S.W.2d 157 (egregious harm standard for unobjected jury-charge error) (establishes the egregious-harm test when no timely objection was made).
Cates v. State, 402 S.W.3d 250 (attorney’s fees and indigence) (holds that where defendant is adjudged indigent and the record contains no finding of ability to repay, assessment of counsel fees should be deleted).