Byrd v. State
2011 Tex. Crim. App. LEXIS 415
| Tex. Crim. App. | 2011Background
- Byrd was charged with misdemeanor theft, alleging she appropriated property from owner Mike Morales.
- Trial evidence showed Wal-Mart owned the property, with Morales never mentioned at trial.
- The jury charge and verdict followed the information alleging Morales; Byrd was convicted and sentenced to six months, probated for one year.
- On appeal, the Fourth Court of Appeals split on whether the Morales-owner discrepancy was a material variance.
- This Court granted review to clarify variance and sufficiency principles under Malik, Gollihar, and Fuller, and held Morales had no ownership interest in the stolen property, rendering the evidence insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the owner's identity a substantive element of theft? | Byrd: Morales ownership is a required element. | State: ownership name is not a substantive element; variance immaterial. | Ownership identity is essential; variance fatal; acquittal ordered. |
| Must the charging instrument name the owner and describe property in the hypothetically correct jury charge? | Indictment must align with proof; misnaming owner undermines notice and elements. | Owner name need not be a separate element; immaterial if real owner shown. | Owner naming is required in charging instrument; hypothetically correct charge must reflect ownership and property. |
| Can the State retry for the same offense after acquittal due to a fatal variance? | Bailey allows reprosecution with correct owner; not barred by variance. | Double jeopardy bars retrial for the same offense if essential elements are not proven. | State cannot reprosecute for the same specific offense; acquittal affirmed. |
Key Cases Cited
- Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) (defines hypothetically correct charge and sufficiency review)
- Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001) (immaterial variances disregard in sufficiency review)
- Fuller v. State, 73 S.W.3d 250 (Tex.Crim.App.2002) (immaterial variance doctrine; identity of victim/owner controls units of prosecution)
- Bailey v. State, 87 S.W.3d 122 (Tex.Crim.App.2002) (reprosecution for different victim not barred by double jeopardy)
- Escobar v. State, 578 S.W.2d 139 (Tex.Crim.App.1979) (fatal variance when indictment names a different person)
- Fulmer v. State, 731 S.W.2d 943 (Tex.Crim.App.1987) (idem sonans and variance concepts in variance doctrine)
- Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992) (variance affecting ownership identity and notice)
- Stevens v. State, 891 S.W.2d 649 (Tex.Crim.App.1995) (pseudonym victim cases and due process notice considerations)