Marc Richard Saunders v. State, 09-14-00062-CR

Marc Saunders was indicted for torturing “an animal, to‑wit: a donkey” by dragging it with a motor vehicle (Oct. 25, 2012). The indictment alleged he acted intentionally, knowingly, or recklessly.
At trial the State moved to abandon the words “recklessly” and the generic term “animal”; the court granted the abandonment over Saunders’s objection but did not physically amend the indictment.
The jury was instructed on cruelty to livestock animals (which statutorily includes donkeys) and found Saunders guilty; punishment was five years’ confinement and a deadly‑weapon finding.
Saunders raised two issues on appeal: (1) the court impermissibly amended the indictment in violation of art. 28.10 by allowing the abandonment and thus converting the charged offense from cruelty to a non‑livestock animal to cruelty to a livestock animal; and (2) a fatal variance existed between the indictment’s allegations and the proof presented at trial.
The court held the trial court did not amend the indictment (the change was an abandonment of surplusage), the indictment as pleaded charged cruelty to a donkey (a livestock animal), any variance was immaterial, and the evidence was legally sufficient to support the conviction.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Saunders)	Held
1. Whether the trial court impermissibly amended the indictment in violation of art. 28.10	The court’s allowance of abandonment did not alter the indictment’s substance; only surplusage was dropped and no new offense was charged	Granting abandonment of “animal” and “recklessly” effectively changed the charged offense from cruelty to a non‑livestock animal (§42.092) to cruelty to a livestock animal (§42.09), violating art. 28.10	No amendment occurred; abandonment of surplusage is permitted and the indictment as pleaded contained the elements of §42.09 (donkey = livestock). Issue overruled
2. Whether a variance between indictment and proof rendered evidence legally insufficient	Any variance was immaterial because the indictment alleged torture of a donkey and defendant received adequate notice; the State proved the donkey was a livestock animal	Proof showed cruelty to a livestock animal while the indictment alleged cruelty to “an animal,” creating a material variance that undermines sufficiency	Variance immaterial; the indictment charged torture of a donkey (a livestock animal) and the evidence sufficed under the hypothetically correct jury charge standard. Issue overruled

Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) (distinguishes amendments from abandonments; amendment requires physical change or signed amended indictment)
Chen v. State, 410 S.W.3d 394 (Tex. App.—Houston [1st Dist.] 2013) (abandonment of surplusage does not invalidate indictment)
Cook v. State, 256 S.W.3d 846 (Tex. App.—Texarkana 2008) (non‑essential words are surplusage and may be deleted)
Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003) (error to add a less culpable mental state not alleged in indictment under certain circumstances)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for legal sufficiency: view evidence in light most favorable to verdict)
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (use hypothetically correct jury charge to evaluate sufficiency)
Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (a correct jury charge need not mirror every allegation; immaterial variances excused)
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (principles on indictment charging, variance, and surplusage)