Ramjattansingh v. State, 548 S.W.3d 540

On April 9, 2015, Jason Ramjattansingh was stopped after a 911 caller reported erratic driving; officers observed signs of intoxication and arrested him.
Breath tests administered about 1.5–2 hours after the stop measured .235 and .220 g/210L, above .15; the State’s toxicology witness could not extrapolate BAC at the time of driving.
The State charged Class B DWI and elevated to Class A by alleging BAC ≥ .15 “at the time the analysis was performed.” The information additionally (and unnecessarily) alleged BAC ≥ .15 “at or near the time of the commission of the offense.”
The jury charge tracked the information and required proof of the extra, non‑statutory element (BAC ≥ .15 at or near time of the offense); the jury convicted on the Class A allegation.
The court of appeals reversed the Class A conviction as unsupported by evidence on the extra element and rendered acquittal as to Class A; this Court granted review to decide whether sufficiency should be measured by the hypothetically correct charge.

Issue	State's Argument	Ramjattansingh's Argument	Held
Whether a charging instrument’s non‑statutory surplusage and an identical jury instruction bar measuring sufficiency against the hypothetically correct charge (Malik standard)	The State argued Malik governs and sufficiency should be measured against the elements of the offense as set by the hypothetically correct charge, not the erroneously heightened jury instruction	Ramjattansingh argued the State’s decision to plead the extra element and acquiesce to the charge estops it from invoking Malik; sufficiency must be measured against the charge given	Held for the State: sufficiency is measured against the hypothetically correct charge; made‑up extra elements in the information or charge do not change that result
Whether the extra language alleging BAC ≥ .15 “at or near the time of the offense” was a material variance requiring inclusion in the hypothetically correct charge	The State argued the extra language was immaterial surplusage and should be excluded from the hypothetically correct charge	Ramjattansingh argued the extra allegation was material and misled his defense, so the jury charge given controlled sufficiency review	Held: the extra language was immaterial (a made‑up, non‑statutory element); the hypothetically correct charge need not include it

Musacchio v. United States, 136 S. Ct. 709 (U.S. 2016) (sufficiency reviewed against statutory elements, not erroneously heightened jury instruction)
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (defines the hypothetically correct jury charge for sufficiency review)
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (framework for material vs. immaterial variances between indictment and proof)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence review)
Cornwell v. State, 471 S.W.3d 458 (Tex. Crim. App. 2015) (hypothetically correct charge excludes immaterial surplusage)