OPINION
COCHRAN, J.,
delivered the opinion of the unanimous Court.
We granted review of this retaliation case to determine whether a variance between the indictment allegation of one statutory element — the description of the complainant as “a witness” — is material when the proof shows that the complainant was either a “prospective witness” or “an informant” — two different statutory elements.
The court of appeals decided that
this variance was immaterial and the evidence therefore legally sufficient to support appellant’s conviction of retaliation.
We hold that a variance between the pleading of one statutory element (“a witness”) and proof of a different statutory element (“a prospective witness” or “an informant”) is material under
Gottihar.
Therefore, the evidence was legally insufficient to support appellant’s conviction for retaliation as the offense was pled.
I.
Appellant was charged with the third-degree felony of retaliation for “intentionally and knowingly threatening] to harm another, to-wit: Arthur Finch, by an unlawful act, to-wit, assault, in retaliation for or on account of the service of the said Arthur Finch as a witness.”
At trial, Arthur Finch testified that he works full-time as a jailer at the Hale County Sheriffs Office, but he also works part time at the local Allsup’s convenience store. He was on the graveyard shift at Allsup’s when, close to 2:00 a.m., he got worried because a car had been parked near the store for about ten to fifteen minutes, but no one had come inside. Mr. Finch said that he walked outside to check and saw somebody moving around inside the car, “so I got a little bit nervous and everything, so I called the police thinking, hopefully, these guys aren’t going to try to rob me.”
The police arrived, and Mr. Finch saw them talk to the people in the car. Then everyone left. He couldn’t see the people in the car and didn’t recognize anyone.
About twenty minutes later, the phone at Allsup’s rang. When Mr. Finch picked it up, he heard a voice saying, “[H]ey, you know man, you f_ed up. You know my wife — you got my wife arrested and you didn’t need to call the cops.” Then the caller said that he was Frank Lee Cada and told Mr. Finch, “[Yjou’re going to pay.” Mr. Finch explained that he had nothing to do with Mrs. Cada’s arrest, he had just called the police for his own safety. But Mr. Finch was concerned enough about the caller that he phoned the police again to report the incident.
Ten minutes later, Mr. Finch got another phone call. The caller did not identify himself, but Mr. Finch recognized the voice as being that of the person who had made the earlier call. Appellant said, “[H]ey, I am behind the store and I am going to get you.” Mr. Finch asked appellant to come to the front and talk with him, but appellant responded, “[Y]ou know you’re going to pay.” Appellant then said that he was going to get back at Mr. Finch’s family since appellant’s wife went to jail because Mr. Finch had called the cops.
Mr. Finch then pushed the Allsup’s “panic button” to summon the police. Officers arrived, searched around the store, but did not find anyone. They also went to Mr. Finch’s home to check on his family’s safety. Mr. Finch felt threatened by appellant’s phone calls and was worried that “if he is going to come in, if he has a
weapon I was — I am stuck right here in this one spot.”
Officer Ward, a Plainview policeman, testified that he and two other officers were dispatched to Allsup’s that night at about 1:45 a.m. to check on a “suspicious vehicle.” He arrived and found a blue Honda Accord parked near the store. There were five people in the car — appellant, his wife, Adam Cisneros, and two children, ages seven and twelve. After Officer Ward identified them all, he “ran them through dispatch to check for any possible warrants.” Appellant’s wife, Josie, had an outstanding warrant, so she was placed under arrest. Appellant, sitting in the passenger’s seat, became angry and “began removing his jacket, popping his knuckles and his neck and stating to the driver, ‘Adam, there’s only three of them. We can take them.’ ” He wanted to know why the officers were called and why “we were messing with him.” Officer Ward explained that the Allsup’s clerk had called because he was concerned about the late hour and where the car was parked because of recent robberies. When the clerk came outside, appellant began yelling and pointing his finger at him. Another officer was so concerned about appellant’s anger that he took out his Taser, but it was not necessary to use it.
Officer Ward received two further calls from Allsup’s that night — the first at 2:12 a.m. and the second, a panic alarm, at 2:24. Officer Ward again responded, found Mr. Finch “extremely shaken and emotionally upset,” so he searched for appellant, but did not find him. After the State rested, appellant moved for a directed verdict because there was no evidence that appellant threatened to harm Mr. Finch because of his service as a witness. After some discussion, the trial judge denied that motion.
Appellant then testified. He said that he had previously been convicted of burglary, terroristic threat, and resisting arrest. He testified that he and his family picked up his cousin, Adam Cisneros, that night, and then they all went to Allsup’s where they sat in the car rolling pennies to buy some snacks. When the police arrived, the officers asked for everyone’s names and then arrested his wife on a motion-to-revoke-probation warrant stemming from a misdemeanor hot-check case. Appellant admitted that he was mad when he phoned Mr. Finch and called him “a punk m_f_” and told him he was “a sorry person,” but he did not know that Mr. Finch had been a witness to anything. He said that he was sorry for what happened that night, but he did not think it was suspicious for him to park his car at Allsup’s and sit in it for fifteen minutes.
In both opening and closing argument, defense counsel contended that appellant was guilty of telephone harassment and disorderly conduct, but that he did not commit retaliation because Mr. Finch had not been a witness to anything. The State argued that appellant was guilty of retaliation: “He threatened him because Arthur Finch called the police. That’s why he threatened him. Because Arthur Finch called the police.”
The jury charge tracked the indictment, requiring the jury to find that appellant threatened to harm Mr. Finch because of his service as a witness before it could convict for retaliation. During their deliberations, the jury sent out a note, asking for the definition of the word “witness,” but the judge said that there is no statutory definition of that term, so he told the jury to consider only the instructions that had already been given. The jury found appellant guilty of retaliation and assessed his punishment at three years in prison.
On appeal, appellant argued,
inter alia,
that the evidence was legally insufficient to support his conviction for retaliation
against a witness because Mr.
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OPINION
COCHRAN, J.,
delivered the opinion of the unanimous Court.
We granted review of this retaliation case to determine whether a variance between the indictment allegation of one statutory element — the description of the complainant as “a witness” — is material when the proof shows that the complainant was either a “prospective witness” or “an informant” — two different statutory elements.
The court of appeals decided that
this variance was immaterial and the evidence therefore legally sufficient to support appellant’s conviction of retaliation.
We hold that a variance between the pleading of one statutory element (“a witness”) and proof of a different statutory element (“a prospective witness” or “an informant”) is material under
Gottihar.
Therefore, the evidence was legally insufficient to support appellant’s conviction for retaliation as the offense was pled.
I.
Appellant was charged with the third-degree felony of retaliation for “intentionally and knowingly threatening] to harm another, to-wit: Arthur Finch, by an unlawful act, to-wit, assault, in retaliation for or on account of the service of the said Arthur Finch as a witness.”
At trial, Arthur Finch testified that he works full-time as a jailer at the Hale County Sheriffs Office, but he also works part time at the local Allsup’s convenience store. He was on the graveyard shift at Allsup’s when, close to 2:00 a.m., he got worried because a car had been parked near the store for about ten to fifteen minutes, but no one had come inside. Mr. Finch said that he walked outside to check and saw somebody moving around inside the car, “so I got a little bit nervous and everything, so I called the police thinking, hopefully, these guys aren’t going to try to rob me.”
The police arrived, and Mr. Finch saw them talk to the people in the car. Then everyone left. He couldn’t see the people in the car and didn’t recognize anyone.
About twenty minutes later, the phone at Allsup’s rang. When Mr. Finch picked it up, he heard a voice saying, “[H]ey, you know man, you f_ed up. You know my wife — you got my wife arrested and you didn’t need to call the cops.” Then the caller said that he was Frank Lee Cada and told Mr. Finch, “[Yjou’re going to pay.” Mr. Finch explained that he had nothing to do with Mrs. Cada’s arrest, he had just called the police for his own safety. But Mr. Finch was concerned enough about the caller that he phoned the police again to report the incident.
Ten minutes later, Mr. Finch got another phone call. The caller did not identify himself, but Mr. Finch recognized the voice as being that of the person who had made the earlier call. Appellant said, “[H]ey, I am behind the store and I am going to get you.” Mr. Finch asked appellant to come to the front and talk with him, but appellant responded, “[Y]ou know you’re going to pay.” Appellant then said that he was going to get back at Mr. Finch’s family since appellant’s wife went to jail because Mr. Finch had called the cops.
Mr. Finch then pushed the Allsup’s “panic button” to summon the police. Officers arrived, searched around the store, but did not find anyone. They also went to Mr. Finch’s home to check on his family’s safety. Mr. Finch felt threatened by appellant’s phone calls and was worried that “if he is going to come in, if he has a
weapon I was — I am stuck right here in this one spot.”
Officer Ward, a Plainview policeman, testified that he and two other officers were dispatched to Allsup’s that night at about 1:45 a.m. to check on a “suspicious vehicle.” He arrived and found a blue Honda Accord parked near the store. There were five people in the car — appellant, his wife, Adam Cisneros, and two children, ages seven and twelve. After Officer Ward identified them all, he “ran them through dispatch to check for any possible warrants.” Appellant’s wife, Josie, had an outstanding warrant, so she was placed under arrest. Appellant, sitting in the passenger’s seat, became angry and “began removing his jacket, popping his knuckles and his neck and stating to the driver, ‘Adam, there’s only three of them. We can take them.’ ” He wanted to know why the officers were called and why “we were messing with him.” Officer Ward explained that the Allsup’s clerk had called because he was concerned about the late hour and where the car was parked because of recent robberies. When the clerk came outside, appellant began yelling and pointing his finger at him. Another officer was so concerned about appellant’s anger that he took out his Taser, but it was not necessary to use it.
Officer Ward received two further calls from Allsup’s that night — the first at 2:12 a.m. and the second, a panic alarm, at 2:24. Officer Ward again responded, found Mr. Finch “extremely shaken and emotionally upset,” so he searched for appellant, but did not find him. After the State rested, appellant moved for a directed verdict because there was no evidence that appellant threatened to harm Mr. Finch because of his service as a witness. After some discussion, the trial judge denied that motion.
Appellant then testified. He said that he had previously been convicted of burglary, terroristic threat, and resisting arrest. He testified that he and his family picked up his cousin, Adam Cisneros, that night, and then they all went to Allsup’s where they sat in the car rolling pennies to buy some snacks. When the police arrived, the officers asked for everyone’s names and then arrested his wife on a motion-to-revoke-probation warrant stemming from a misdemeanor hot-check case. Appellant admitted that he was mad when he phoned Mr. Finch and called him “a punk m_f_” and told him he was “a sorry person,” but he did not know that Mr. Finch had been a witness to anything. He said that he was sorry for what happened that night, but he did not think it was suspicious for him to park his car at Allsup’s and sit in it for fifteen minutes.
In both opening and closing argument, defense counsel contended that appellant was guilty of telephone harassment and disorderly conduct, but that he did not commit retaliation because Mr. Finch had not been a witness to anything. The State argued that appellant was guilty of retaliation: “He threatened him because Arthur Finch called the police. That’s why he threatened him. Because Arthur Finch called the police.”
The jury charge tracked the indictment, requiring the jury to find that appellant threatened to harm Mr. Finch because of his service as a witness before it could convict for retaliation. During their deliberations, the jury sent out a note, asking for the definition of the word “witness,” but the judge said that there is no statutory definition of that term, so he told the jury to consider only the instructions that had already been given. The jury found appellant guilty of retaliation and assessed his punishment at three years in prison.
On appeal, appellant argued,
inter alia,
that the evidence was legally insufficient to support his conviction for retaliation
against a witness because Mr. Finch never testified or provided any “service” in any proceeding as a “witness.” He relied on
Jones v.
State,
in which this Court held that the statutory term “witness” in the retaliation statute means “one who
has
testified in an official proceeding.”
The court of appeals noted
Jones,
but held that use of the word “witness” was an immaterial variance because it was “not a variance in the manner and means of committing the crime of retaliation.”
This variance concerned the statutory status of the protected person, and the court of appeals had previously held that “the variance between the allegation of one classification of protected person for the victim and the proof of a different classification
of
protected person was simply irrelevant.”
The court of appeals concluded that Mr. Finch was “a prospective witness,” the evidence was sufficient to prove that status, and therefore the evidence was legally sufficient to support his conviction for retaliation.
II.
A. Persons Protected Under the Retaliation Statute.
A person commits the felony offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for the service or status of another as a public servant, witness, prospective witness, or informant.
The “service” or “status” of the complainant as a “public servant,” “witness,” “prospective witness” or “informant” are all differing elements of the underlying offense.
Indeed, the retaliation statute is a good example of the “Chinese Menu” style of setting out the elements of a penal offense. Section 36.06(a)(1)(A) of the retaliation statute contains eight different elements, but several of those elements include distinct alternatives, which may or may not be included in a particular indictment and jury charge. Those elements and alternative elements are:
(1) The Defendant
(2) a. intentionally [or]
b.knowingly
(3) a. harms [or]
b. threatens to harm
(4) another person
(5) by an unlawful act
(6) a. in retaliation for [or] b. on account of
(7) a. the service of another [or] b. the status of another
(8) as a
a. public servant
b. witness
c. prospective witness [or]
d. informant.
The indictment and jury charge must contain at least one item from each
numbered element, but it may contain more than one alternative element (e.g., the indictment might list “a public servant, witness, prospective witness, or informant”
). It is well established that the State may plead in the conjunctive and charge in the disjunctive.
Thus an indictment might contain allegations that the defendant retaliated against the complainant because he was “a public servant, witness, prospective witness, and informant,” and if the proof shows any one of those statutory alternative elements beyond a reasonable doubt, then the evidence is sufficient to support a conviction.
A central purpose of the retaliation statute is to encourage a specified class of citizens — which includes public servants, witnesses, prospective witnesses, and informants — to perform vital public duties without fear of retribution. “Those public duties may include reporting criminal activities, testifying in official proceedings, or cooperating with the government in a criminal investigation.”
The Legislature keeps increasing that statutorily protected class to ensure that all of those who participate in the administration of justice may do so without fear of harm or physical injury. In
Jones v. State,
this Court held that the word “witness” in the retaliation statute refers only to a person who has already testified in some official proceeding.
This holding left a large number of citizens who had or were expected to assist the criminal and civil justice systems outside the scope of protection. Therefore, in 1983, the Legislature amended the retaliation statute to include a “prospective witness” within the protected class, and, in
1989, it extended protection to “a person who has reported the occurrence of a crime.”
The Legislature again expanded the statutory protections afforded this class of citizens by adding “or one who the actor knows intends to report” to the phrase “a person who has reported the occurrence of a crime” in 1993. Finally, in 1997, it added the alternative of “status,” as well as “service,” as a member of any one of the protected categories.
Thus, “the legislature [has] attempted to account for every category of person who might possess information regarding criminal activity which may lead to the apprehension of a criminal offender. We can conceive of no existing gap in the persons protected under section 36.06.”
It is not always easy to categorize a particular citizen who has been subject to retaliation into one specific box (such as “status as a prospective witness”) to the exclusion of all other categories (such as “service as an informant”). But, as this Court has previously noted, “[w]hile there may be some overlap among the categories of persons listed, each category is nevertheless distinct.”
In
Morrow v. State,
this Court explained the distinction between some of the various categories. We said that an
“informant” is
defined in the Penal Code as “a person who has communicated information to the government in connection with any governmental function,”
but we noted that “[tjhere are a number of reasons an informant would not be considered a prospective witness.”
For example, an informant may not have first-hand knowledge of a crime; he may not have revealed his identity when he reported something to the government; the government may not wish to divulge his identity; the informant may not have reported an actual crime because “[i]nformants often communicate information about criminal activity that is
about
to occur, rather than criminal activity that has already occurred.”
Or he could report “suspicious” activities which may or may not turn out to be a crime. Similarly, a person who is a “prospective witness” may not necessarily be a person who has reported the occurrence of a crime to government, or he may not have said anything at all to governmental agents.
Thus, when there is overlap or uncertainty concerning the status or service of a particular person within the protected general class, the State may plead alternatives in the indictment.
B. Sufficiency of the Evidence and Material Variances.
Due process requires that the State prove, beyond a reasonable doubt,
every element of the crime charged.
We measure the sufficiency of the evidence by the elements of the offense as defined in a hypothetically correct jury charge.
Such a charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”
But, in
Gollihar v. State,
we held that, under state law, the hypothetically correct jury charge need not incorporate allegations that give rise to immaterial variances.
In
Gollihar,
the indictment for theft of a go-cart stated that the go-cart was “Model 136202,” but the State’s evidence showed that its model was 136203. That variance was immaterial because the State did not have to plead any model or serial number to describe the property stolen and there was no suggestion that the defendant was surprised or harmed by the evidence offered at trial.
The model number was not an element of the offense, and the defendant’s guilt or innocence of the theft charge did not depend upon the specific model of the go-cart. Further, there was no suggestion that the defendant possessed numerous go-carts with different model numbers, or that he was misled about which specific go-cart the State would prove he stole.
The focus of the inquiry under both
Malik
and
Gollihar
“is upon the elements of the offense.”
And, of course, before something may be an element of the offense in the hypothetically correct jury charge, it must be “authorized by the indictment.”
For example, if the penal offense sets out various statutory alternatives for the distinct elements of the crime, the jury charge may contain only those alternative elements that are actually alleged in the indictment.
And the sufficiency of the
evidence is measured by the specific alternative elements that the State has alleged in the indictment. Thus, if the State pleads one specific element from a penal offense that contains alternatives for that element, the sufficiency of the evidence is measured by the element that was actually pleaded, not any other statutory alternative element.
That is what federal due process and
Jackson v. Virginia
require— proof beyond a reasonable doubt to support every element of the offense alleged.
The Texas “immaterial variance” law as set out in
Gollihar
does not apply to the specific statutory elements alleged in the indictment.
III.
In the present case, the State alleged that appellant retaliated against Mr. Finch “on account of the service of the said Arthur Finch as a witness.” The State, the defense, and the court of appeals all agree that there was not a scintilla of evidence that Mr. Finch provided any service as a “witness” as that statutory element was defined in
Jones.
Under
Jones,
the State was required to prove that Mr. Finch
“has
testified in an official proceeding” and that appellant retaliated against him on account of, or because of, that service as a witness in an official proceeding.
Thus, appellant properly requested a directed verdict after the completion of the State’s case, and he properly argued on appeal that the evidence was legally insufficient to prove an essential element of the offense under
Jackson v. Virginia.
Under
Jackson,
he was entitled to an acquittal.
However, both the State and the court of appeals recognized that Mr. Finch is clearly a member of the general class of citizens that the Legislature intended to protect against retaliation. He saw a car parked outside the Allsup’s for a lengthy period of time when it was late at night and he was the only clerk in the store. He became worried and suspicious that whoever was in that car might be planning a
robbery. So he did what we want concerned citizens to do: he called the police and reported his suspicions. He did not see a crime, but he was worried that one might be in the offing. At that point in time, Mr. Finch was an “informant” for purposes of the retaliation statute. He “communicated information to the government in connection with [a] governmental function.”
Furthermore, that is precisely why appellant twice called Mr. Finch at the Allsup’s later that evening and threatened him. Appellant told Mr. Finch that he was going to “get back” at him because Mr. Finch had called the police, and, as a result, appellant’s wife was arrested on an unrelated open warrant. In his second phone call, appellant told Mr. Finch that he was going to get back at Mr. Finch’s family because appellant’s wife had gone to jail because Mr. Finch had called the police. The State was exactly correct when it argued to the jury that appellant “threatened him because Arthur Finch called the police. That’s why he threatened him. Because Arthur Finch called the police” — not because Mr. Finch had testified against him as a witness in an official proceeding, not because Mr. Finch might be a prospective witness at some future trial or proceeding, but because Mr. Finch had already served as an informant by calling the police. Unfortunately, that is not what the State alleged in its indictment. Instead of pleading the correct element of “informant,” or pleading several of the statutory alternatives (“witness, prospective witness, or informant” or “person who has reported or who the actor knows intends to report the occurrence of a crime”) and then including only those for which there was some evidence given to the jury for its consideration, the State alleged a single element for which there was no evidence.
The court of appeals held that this was an immaterial mistake or variance because the evidence was sufficient to show that Mr. Finch was a “prospective witness” and appellant “has never contended that the variance at issue resulted in an inability to adequately mount a defense.”
First, the evidence is not sufficient to show that appellant retaliated against Mr. Finch because of his service (or even his status) as a prospective witness.
There is no
evidence to suggest that appellant had any notion that Mr. Finch would perform any witness-type services in the future, and that is not why he threatened him. The evidence shows that appellant threatened him solely because of a past, completed act — calling the police. Second, even though there may be some overlap and considerable commonality between the various statutory categories of protected persons under the retaliation statute, they are distinct and separate statutory elements of the offense. Under
Jackson,
the State must prove the statutory elements that it has chosen to allege, not some other alternative statutory elements that it did not allege. The variance construct of
Gol-lihar
and
Fuller
simply does not override the constitutional due-process requirement that the State prove, beyond a reasonable doubt, every statutory element of the offense that it has alleged.
We therefore reverse the judgment of the court of appeals and enter an acquittal because the evidence was legally insufficient . to prove that appellant retaliated against Mr. Finch “on account of his service as a witness.”