556 S.W.3d 308
Tex. Crim. App.2017Background
- Appellant Teodoro Hernandez convicted of aggravated assault with a deadly weapon (water) under Tex. Penal Code § 22.02(a)(2).
- Jury also convicted him of aggravated sexual assault and acquitted him of assault/family violence; sexual assault sentence and seven-year aggravated assault sentence imposed.
- Appellant and Molien had a volatile dating relationship; after a breakup, he went to Molien's duplex where she described being assaulted.
- During the attack, Appellant punched Molien, then retrieved a water jug and allegedly used water to choke her while continuing the assault.
- Indictment charged Count 2 as aggravated assault with water used during the assault; Count 3 related to strangulation.
- Court of Appeals reversed Count 2, reforming to simple assault; State sought review arguing no material variance and sufficiency supports the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a material variance between pleading and proof regarding water as a deadly weapon. | Hernandez argues variance is material; water differed from alleged use. | Hernandez argues the variance makes the count defective. | Variance immaterial; conviction supported despite multiple assault events. |
| Whether the State proved water was used as a deadly weapon during the assault. | Hernandez asserts water was not used during the same assault. | State contends water was used in the continuous assault. | Evidence supports use of water as a deadly weapon during the assault. |
| Whether the alleged two-attack theory affects sufficiency under Dunn and Johnson. | Hernandez claims Dunn would require a defined unit of prosecution. | State contends no defined unit required; proof suffices under hypothetically correct charge. | No Dunn-based defect; sufficiency sustained under the hypothetically correct jury charge. |
| Whether the indictment’s unit of prosecution for aggravated assault with a deadly weapon is properly defined. | Hernandez argues manner/means define a unit of prosecution. | State argues gravamen is bodily injury; manner/means immaterial. | Unit of prosecution is gravamen; manner/means immaterial in sufficiency analysis. |
| Whether the jury’s inconsistent verdicts undermine the Count 2 conviction. | Hernandez contends inconsistent verdicts (Count 2 vs Count 3) undermine guilt. | Dunn principle allows sustaining Count 2 if sufficient evidence supports it. | Inconsistent verdicts do not negate sufficiency of Count 2. |
Key Cases Cited
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetically correct jury charge for offense elements)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (material vs immaterial variance; immaterial variances may be disregarded)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (non-statutory allegations describing offense; immaterial variances; unit of prosecution)
- Dunn v. United States, 284 U.S. 390 (U.S. 1932) (foundation for Dunn variance analysis on multi-count indictments)
- Flenteroy v. State, 187 S.W.3d 406 (Tex. Crim. App. 2005) (indictment of deadly weapon; immaterial variance when notice adequate)
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (owner identity variance material when it alters offense)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (materiality of variance in unit of prosecution)