Rose v. State
76 S.W.3d 573
Tex. App.
2002
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*574 OPINION

JOHN HILL, Justice (Assigned).

Charles Rose appeals his conviction by a jury of the offense of assault. The judge assessed his punishment at one year’s confinement, suspended, two years community supervision, and a fine of $500. In his sole issue on appeal, Rose contends that the evidence is insufficient to support the jury’s verdict because the State failed to prove that the complainant was struck with an object, the exact nature of which was unknown to the grand jury. We affirm because the evidence is sufficient to support the jury’s verdict.

The indictment alleged that Rose knowingly and intentionally caused bodily injury to the complainant by striking her on the torso with an object, the exact nature of which was unknown to the grand jurors. At trial, the complainant testified that after she had refused to perform a sexual favor for Rose, she felt a sharp, painful blow to her back. She indicated that she did not see the object Rose used to hit her, but assumed that it was the side of his fist. The contusion resulting from the attack was in the size and shape of a hand. Rose testified that he pushed the complainant with the palm of his hand. We hold that the evidence is sufficient to support Rose’s conviction.

Rose urges that the evidence is insufficient because the State failed to prove that the grand jury used due diligence in seeking to determine the weapon used in the assault. He relies upon the cases of Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App.1999), cert, denied, 531 U.S. 1016, 121 S.Ct. 576, 148 L.Ed.2d 493 (2000); Hicks v. State, 860 S.W.2d 419, 424 (Tex.Crim.App.1993); McFarland v. State, 845 S.W.2d 824, 830-31 (Tex.Crim.App.1992); and. Matson v. State, 819 S.W.2d 839, 847 (Tex.Crim.App.1991). These cases represent the rule that where the indictment alleges that the weapon used was unknown to the grand jury, but the evidence at trial shows the weapon that was used, the State must prove that the grand jury used due diligence in ascertaining the weapon used. Rosales, 4 S.W.3d at 231; Hicks, 860 S.W.2d at 424; McFarland, 845 S.W.2d at 830; Matson, 819 S.W.2d at 847. We believe that the evidence in this case shows that Rose committed the offense with his hand, even though the complainant could not say with certainty what he hit her with. Consequently, under the line of cases to which we have just referred, the State would have been required to present evidence as to the diligence used by the grand jury in determining what weapon was used.

However, in Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), the Texas Court of Criminal Appeals held that the sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Id. at 240. In Rosales, the court subsequently held that in light of its ruling in Malik, “the rule in cases like Hicks is no longer viable.” Rosales, 4 S.W.3d at 231.

Since Rosales, the Texas Court of Criminal Appeals has held that a hypothetically correct jury charge need not incorporate allegations that give rise to immaterial variances. Gollihar v. State, 46 S.W.3d 243, 256 (Tex.Crim.App.2001). A non-essential element allegation, such as an allegation that the object used to cause injury was unknown to the grand jury, may properly be excluded from a hypothetically correct charge. See id. at 252-53; Richards v. State, 54.S.W.3d 348, 350 (Tex.App. — Houston [1st Dist.] 2001, pet. ref d). A variance between the wording of the indictment and the evidence presented is fatal only if it is material and prejudices *575 the defendant’s substantial rights, that is, if the indictment fails to inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense and if the defendant would be subjected to the risk of being prosecuted later for the same offense. Gollihar, 46 S.W.3d at 257. We hold that even if there is a variance between the wording of the indictment, that the object Rose used was unknown to the grand jury, and the proof at trial, the indictment informed Rose of the charge against him sufficiently to allow him to prepare an adequate defense and Rose would not be subject to the risk of being prosecuted later for the same offense. Consequently, any such variance was not material. See Richards, 54 S.W.3d at 350. We overrule Rose’s sole issue on appeal.

The judgment is affirmed.