Johnson v. State
2012 Tex. Crim. App. LEXIS 479
| Tex. Crim. App. | 2012Background
- Appellant Johnson was indicted on multiple counts of aggravated assault.
- Count at issue alleged he caused serious bodily injury by hitting with his hand or twisting his arm.
- Victim testified appellant threw her against a wall, causing injury (broken arm).
- Appellant asserted a variance between pleading and proof rendered evidence legally insufficient.
- Court of Appeals rejected the claim, holding the variance was not material because it concerned the method of causing injury.
- The issue before the Court of Criminal Appeals is whether the non-statutory variance affects the legal sufficiency of the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a non-statutory variance that describes the offense affect sufficiency? | Johnson argues the variance is material and defeats sufficiency. | State contends the variance is immaterial as it does not alter the allowable unit of prosecution. | Variance here is immaterial; sufficiency not defeated. |
| Whether a variance that describes causation rather than injury is material in a result-focused offense | Johnson argues causation-related variance could misstate the offense. | State argues causation-focused variance cannot create a different offense in a single victim case. | In a result-of-conduct offense, causation variances are not material. |
| What is the proper materiality framework for variances in this context | Materiality depends on whether variance changes the offense charged. | Materiality depends on whether variance affects the allowable unit of prosecution. | Variance falls into immaterial third category; allowed if it does not alter the offense. |
Key Cases Cited
- Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) (defines essential elements via hypothetically correct jury charge)
- Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001) (non-statutory variances may be immaterial to the offense)
- Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App.2011) (owner name variance in theft can be material or not depending on unit of prosecution)
- Fuller v. State, 73 S.W.3d 250 (Tex.Crim.App.2002) (victim name variance in injury-to-an-elderly case; not always material)
- Cada v. State, 334 S.W.3d 766 (Tex.Crim.App.2011) (clarifies immaterial variances where not describing allowable unit of prosecution)