January-February 2018

Back to the basics of variance law

Clint Morgan

Assistant District Attorney in Harris County

In Texas, the unit of prosecution for assault-by-injury is the injury. This is simple enough when the assault is a single action—e.g., a punch that bloodies a nose—but what about extended beatings, where there are multiple punches and kicks, each causing an injury? Texas prosecutors drafting charging instruments in such cases face a conundrum: We don’t want to confuse matters with a 12-paragraph information that reads like a blow-by-blow account, but limiting ourselves to one or two actions from a complicated encounter risks that the evidence may vary from the charge.
    The Court of Criminal Appeals has grasped this problem. A few years ago in Johnson v. State,1 it held that the precise cause of the complainant’s injury was not an element of the offense. Thus, a variance between the allegation and proof—the State alleged that Johnson broke a woman’s arm by twisting it or striking it, but the evidence showed the arm broke when Johnson threw her into a wall and she fell—would, as a general rule, be immaterial and not require reversal.

Hernandez v. State
In October, in Hernandez v. State,2 the Court revisited this matter in a case where the defendant exhibited a deadly weapon during part, but not all, of an extended beating. The result should aid prosecutors by keeping courts focused on whether the State proved the defendant unlawfully injured the complainant, rather than whether the State proved the precise means of the injury.
    Hernandez and his girlfriend Melanie had a relationship that was “rocky from its outset.”3 On the night of the offense, Hernandez went to Melanie’s house and began making accusations of infidelity. Hernandez stripped off Melanie’s clothing and inserted his fingers in her vagina. Then he questioned her about what men she was seeing, and “each time [Melanie] replied that she had been faithful to him, he struck her with his hands in the head/face region.”4 Melanie interrupted the beating by asking for a cup of water. When Hernandez left to get the water, Melanie tried but failed to close the door behind him. He returned and began choking her with his hand while pouring water from a jug down her throat.
    This incident involved a great many crimes. The State picked three:
    1) aggravated sexual assault (pled with four alternative aggravating elements);
    2) aggravated assault with a deadly weapon (striking Melanie with his hands while using or exhibiting a deadly weapon, “to-wit: water”); and
    3) assault of a family member by impeding breath.
    For Count 1, the jury convicted Hernandez of the lesser-included offense of sexual assault. For Count 2, the jury found Hernandez guilty. The jury acquitted on Count 3.5
    On appeal, Hernandez claimed the evidence was insufficient regarding the aggravated assault charge. Specifically, he pointed out that the indictment alleged he struck Melanie while using or exhibiting the water, but the evidence showed that by the time he was using the water, he had stopped hitting her and had moved on to choking her.
    The Sixth Court of Appeals bought this claim. After noting that the assault was not a continuous offense, the Sixth Court held that the State was obliged to prove Hernandez used or exhibited the water “either before he struck [Melanie] or simultaneously with having struck her.” The State argued that, under Johnson, the specific deadly weapon the defendant used was not an essential element of the offense, and the jury could have found Hernandez guilty based on his use of his hands as a deadly weapon (rather than the water the State noted). Focusing on the specific allegations in the indictment, the Sixth Court rejected the State’s argument: “Although the State was within its discretion to allege that Hernandez choked [Melanie] with his hands or struck [Melanie] by using or exhibiting his hands as a deadly weapon, it apparently chose not to do so.” The Sixth Court found the evidence insufficient and ordered an acquittal on the aggravated-assault charge.
    The State petitioned for discretionary review on two grounds: 1) Was the variance regarding which deadly weapon the appellant used material? and 2) was the whole beating one continuous assault, such that striking with hands during one part and use of a deadly weapon during another part were sufficient to support an aggravated assault conviction?
    The Court of Criminal Appeals granted both grounds but did not actually answer either question. Instead, Judge Yeary, writing for a six-judge majority, went back to the basics of variance law. A variance occurs when the evidence at trial proves an offense that differs from what was charged. For purposes of a sufficiency review, a variance will render the evidence insufficient only if the variance is “material.”6

Statutory vs. non-statutory variances
The first step in determining whether a variance is material is to determine whether it is a statutory variance or a non-statutory variance. A statutory variance relates to an element that is listed in the statute, whereas a non-statutory variance relates to part of the charging instrument that is not explicitly in the statute. As an example, in an assault case, causing bodily injury is a statutory allegation because it is from the statute.7 But the manner and means of the assault—e.g., “striking with his hand”—is not something listed in the statute, so it is a non-statutory allegation.
    A statutory variance is always material and will require acquittal. A non-statutory variance will be material only if the evidence shows a completely different offense from what was alleged. For an example of a non-statutory variance that was deemed material, Judge Yeary discussed Byrd v. State, where the State alleged that the defendant stole property from Mike Morales, but Mike Morales was never mentioned at trial, and the evidence showed she stole from Wal-Mart.8 Though that was a non-statutory variance, it showed an offense so different from the charged offense as to make the non-statutory variance material and require an acquittal. That contrasts with Johnson, where the offense was breaking a woman’s arm; whether the defendant did so by twisting the arm or throwing the victim into a wall did not change the offense.

The wrong variance
Addressing the case before the Court, Judge Yeary assumed that two different assaults had occurred, one in which Hernandez struck Melanie with his hands, and a second in which he had choked her and exhibited the water as a deadly weapon. Given that assumption, Judge Yeary reasoned that the Sixth Court had looked at the wrong variance. The Sixth Court had held that there was a variance in the deadly-weapon allegation, and that variance was material. Judge Yeary instead reasoned that the real issue was that there was a variance regarding the underlying assault. That is, the variance was that instead of striking Melanie while using or exhibiting the water, the evidence showed Hernandez choked Melanie while using or exhibiting the water.9 Because the court had already held in Johnson that a variance in the manner and means of an assault is generally immaterial, the variance between striking Melanie with his hands and strangling (choking) her with his hands was not material and did not render the evidence insufficient. Thus the court reversed the Sixth Court and reinstated the judgment of conviction.
    Judge Richardson wrote a concurrence, which Judge Walker joined. Because Judge Richardson saw the striking and the use of water as occurring during the same assault, he would have held there was no variance at all. After a detailed analysis of the charging instruments and evidence, Judge Richardson concluded the “momentary break” Hernandez took from beating Melanie to retrieve the water was so brief—not even long enough for her to get up from the floor to close the door—that it was “unrealistic” to divide the events into separate assaults.

Going forward
Aside from being a good refresher on variance law, this case has some useful takeaways for prosecutors. First, Hernandez will help when defense counsel files the inevitable motion for directed verdict “because the State pled ‘struck with an open hand,’ but the witness testified she got punched.” The unit of prosecution in assault cases is the injury; the manner and means is important, but it generally will not factor into a sufficiency review.
    Second, it is important to look at what the court did not say. The court granted review to determine whether a variance regarding which deadly weapon a defendant used is material. Neither opinion addressed that question. A cautious prosecutor would be particularly careful about naming the deadly weapon in an aggravated assault case and would probably plead in the alternative (“or” instead of “and”) if there were a chance the evidence would vary.
    The court also granted review of the State’s “continuous offense” theory of assault, and though the concurrence adopted a limited version of it, the court’s majority remained agnostic. This remains an open question of law, but for cases involving extended beatings, a cautious prosecutor would still rely on pleading and proving specific acts causing specific injuries.


1  Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012).

2  Hernandez v. State, ___ S.W.3d___ No. PD-1049-16, 2017 WL 4675371 (Tex. Crim. App. Oct. 18, 2017).

3  Hernandez v. State, No. 06-15-00167-CR, 2016 WL 4256938 (Tex. App.—Texarkana Aug. 5, 2016) (rev’d ___ S.W.3d ___, No. PD-1049-16 (Tex. Crim. App. 2017)).

4  Hernandez v. State, 2017 WL 4675371 at *1.

5  As the Court of Criminal Appeals noted, these verdicts seem inconsistent. One of the aggravating elements the jury rejected in Count 1 was that “in the course of the same criminal episode the defendant used or exhibited a deadly weapon, to-wit: water.”

6  Hernandez, 2017 WL 4675371 at *2 (citing Gollihar v. State, 46 S.W.3d  243, 256 (Tex. Crim. App.2001)).

7  Id. at *2-3 (citing Johnson, 364 S.W.3d at 293-95).

8  Id. at *3 (discussing Byrd v. State, 336 S.W.3d 242, 244 (Tex. Crim. App. 2011)).

9  But didn’t the jury acquit Hernandez of the strangling? Yes, but as the concurring opinion points out, well-settled caselaw holds that an acquittal on one charge does not affect the sufficiency review of another charge. See Hernandez, 2017 WL 4675371 at *5 (Richardson, J., concurring) (citing Dunn v. United States, 284 U.S. 390, 393-94 (1932)).