399 S.W.3d 664
Tex. App.2013Background
- Marra, a former Harlingen city commissioner, owned a downtown real estate business and faced a class A misdemeanor for failing to file an affidavit and abstain in a matter with a special economic effect.
- At the September 1, 2010 city commission meeting, Marra discussed renewing the downtown development district but no vote occurred then.
- The district renewal was approved at the September 15, 2010 meeting, which Marra did not attend or participate in.
- The information alleged the entity affected would be 2405 and 2407 Treasure Hills Court, LLC, and required an affidavit and abstention as to that entity.
- The State proved Taubert-Marra, LLC, owned Marra’s downtown real estate and the trial primarily addressed that entity rather than the 2405/2407 Treasure Hills Court, LLC entity named in the information.
- The jury found Marra guilty under section 171.004(a)(1) but acquitted on the related real-property offense under subsection (a)(2); the trial court sentenced Marra to 30 days and a fine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material variance defeated the offense proven | Marra argued information misidentified the entity; proof showed Taubert-Marra, LLC instead of 2405/2407 Treasure Hills Court, LLC. | State contended the core conduct and entity were sufficient under the statute and did not require exact entity identity. | Material variance invalidated the offense; acquittal rendered. |
Key Cases Cited
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (immaterial vs material variance in indictments and proof)
- Jackson v. Virginia, 443 U.S. 307 (Supreme Court 1979) (sufficiency standard: rational trier of fact)
- Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) (immaterial vs material variance analysis)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (hypothetically correct jury charge; elements vs non-statutory variance)
- Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002) (double jeopardy, unit of prosecution; immaterial variances)
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (acquittal when proving a different allowable unit)
- Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008) (focus of offense; circumstances surrounding conduct)
- Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) (hypothetically correct charge and statutory alignment)