Daryl Washington v. State
Opinion
Appellant
Appellee
Before QUINN, REAVIS, and CAMPBELL, JJ.
Appellant Daryl M. Washington, a previously convicted felon, appeals his conviction for unlawfully possessing a firearm. He complains, through nine issues, of charge error, ineffective assistance of counsel, and the failure to grant his motion to suppress. We affirm the judgment of the trial court.
On August 22, 2001, former Officer Ron McGlone and Lieutenant Billy Timms, of the Slaton Police Department, responded to a complaint from the manager of the Housing Authority about several persons smoking marijuana outside of a residence. (1) When the officers arrived, no one was seen in front of the house. So the officers drove towards the back through an alley, saw individuals in the backyard, exited their vehicle, saw an opening in the fence and approached the group. While doing so, they noticed that one or more of the individuals appeared nervous. Also noticed was a partially smoked marijuana cigarette laying on a window sill, appellant standing closest to the cigarette, and a bulge in appellant's right front pocket. When initially asked what was in his pocket, appellant failed to respond. Then, an officer touched the bulge and asked again. Appellant replied that it was a handgun.
At trial, appellant argued that the gun belonged to his grandfather who was visiting due to the death of appellant's aunt. His grandfather allegedly had a fascination with guns and was also suffering from dementia. Appellant allegedly picked up the gun because he saw it laying on a coffee table, knew that his mother's grandchildren would be home from school soon, and was worried that they would come upon it.
In his first four issues, appellant complains that the trial court erred in instructing the jury about the defense of necessity. That is, when including the defense in the charge, the trial court stated that appellant had the burden to prove, by a preponderance of the evidence, that he acted out of necessity. Though no one objected to that aspect of the charge, the State nonetheless concedes on appeal that the instruction was erroneous. See Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.-Austin 2002, pet. ref'd) (holding that necessity is a statutory defense, and if the defendant presents some evidence on each element of the defense, then the burden shifts to the State to disprove the defense beyond a reasonable doubt). However, it further argues that because no one objected, the mistake cannot result in reversal unless it caused appellant to suffer egregious harm. See Degrate v. State, 86 S.W.3d 751, 754 (Tex. App.-Waco 2002, pet. ref'd) (describing egregious harm as that which affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory). We agree with the State and overrule the issue.
It is a defense to prosecution that the conduct in question was justified. Tex. Pen. Code Ann. §9.02 (Vernon 2003). Additionally, conduct is justified when the actor reasonably believes that it is immediately necessary to avoid imminent harm. Id. §9.22(1). Next, for the harm to be imminent it must be impending, not pending; that is, it must be on the "point of happening, not about to happen." Smith v. State, 874 S.W.2d 269, 272-73 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd). There must exist an emergency situation requiring immediate action or a split second decision to avoid the harm. Id.; accord, Stefanoff v. State, 78 S.W.3d at 501. And, whether the situation is of that ilk is determined from the standpoint of the accused. Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.- Fort Worth 2001, pet. ref'd); Gonzalez v. State, 2 S.W.3d 600, 605 (Tex. App.-Texarkana 1999, pet. ref'd). Yet, the defendant's belief that his conduct was immediately necessary may be deemed unreasonable as a matter of law if the undisputed facts demonstrate a complete absence of immediate necessity or imminent harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.-Texarkana 2000, no pet.); Brazelton v. State, 947 S.W.2d 644, 648-49 (Tex. App.-Fort Worth 1997, no pet.).
Appellant alleges that the record contained sufficient evidence to warrant the charge on necessity because children lived in the home and were to return home from school "any minute." Because they often brought friends home with them, he perceived the need to remove the gun from their reach to avoid potential injury. Yet, nothing in the record suggests, much less illustrates, that any of the children were home or in the house at the time appellant saw the weapon. Nor is there evidence suggesting that appellant thought that any children were at home. Again, he simply believed that they would be arriving "at any minute." (2)
We hold, as a matter of law, that this evidence, when viewed in a light most favorable to appellant and from his perspective, does not indicate that there existed some harm that was on the point of occurring and which necessitated a split second decision. Nor does it arise to a level of something about to happen for several contingencies had yet to transpire. Not only was there a need for a child to arrive home, but also the gun had to have remained at its location and the child had to have ventured into the room wherein it lay and perceived it. Given these contingencies, the evidence permits one to reasonably infer no more than that appellant feared the possibility of or potential for harm and acted in response thereto. That, however, falls short of the imminency contemplated under the defense of necessity. See Garcia v. State, 972 S.W.2d 848, 849 (Tex. App.-Beaumont 1998, no pet.) (holding that fear induced by one's presence in a high crime area is not sufficient evidence of an immediate necessity to avoid imminent harm so as to justify unlawfully carrying a handgun). Consequently, no evidence existed to entitle appellant to an instruction on the defense in the first place. And, because he was not entitled to such an instruction, we cannot say that he was egregiously harmed when the trial court told the jury that he had the burden of proving the defense. (3)
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Appellant
Appellee
Before QUINN, REAVIS, and CAMPBELL, JJ.
Appellant Daryl M. Washington, a previously convicted felon, appeals his conviction for unlawfully possessing a firearm. He complains, through nine issues, of charge error, ineffective assistance of counsel, and the failure to grant his motion to suppress. We affirm the judgment of the trial court.
On August 22, 2001, former Officer Ron McGlone and Lieutenant Billy Timms, of the Slaton Police Department, responded to a complaint from the manager of the Housing Authority about several persons smoking marijuana outside of a residence. (1) When the officers arrived, no one was seen in front of the house. So the officers drove towards the back through an alley, saw individuals in the backyard, exited their vehicle, saw an opening in the fence and approached the group. While doing so, they noticed that one or more of the individuals appeared nervous. Also noticed was a partially smoked marijuana cigarette laying on a window sill, appellant standing closest to the cigarette, and a bulge in appellant's right front pocket. When initially asked what was in his pocket, appellant failed to respond. Then, an officer touched the bulge and asked again. Appellant replied that it was a handgun.
At trial, appellant argued that the gun belonged to his grandfather who was visiting due to the death of appellant's aunt. His grandfather allegedly had a fascination with guns and was also suffering from dementia. Appellant allegedly picked up the gun because he saw it laying on a coffee table, knew that his mother's grandchildren would be home from school soon, and was worried that they would come upon it.
In his first four issues, appellant complains that the trial court erred in instructing the jury about the defense of necessity. That is, when including the defense in the charge, the trial court stated that appellant had the burden to prove, by a preponderance of the evidence, that he acted out of necessity. Though no one objected to that aspect of the charge, the State nonetheless concedes on appeal that the instruction was erroneous. See Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.-Austin 2002, pet. ref'd) (holding that necessity is a statutory defense, and if the defendant presents some evidence on each element of the defense, then the burden shifts to the State to disprove the defense beyond a reasonable doubt). However, it further argues that because no one objected, the mistake cannot result in reversal unless it caused appellant to suffer egregious harm. See Degrate v. State, 86 S.W.3d 751, 754 (Tex. App.-Waco 2002, pet. ref'd) (describing egregious harm as that which affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory). We agree with the State and overrule the issue.
It is a defense to prosecution that the conduct in question was justified. Tex. Pen. Code Ann. §9.02 (Vernon 2003). Additionally, conduct is justified when the actor reasonably believes that it is immediately necessary to avoid imminent harm. Id. §9.22(1). Next, for the harm to be imminent it must be impending, not pending; that is, it must be on the "point of happening, not about to happen." Smith v. State, 874 S.W.2d 269, 272-73 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd). There must exist an emergency situation requiring immediate action or a split second decision to avoid the harm. Id.; accord, Stefanoff v. State, 78 S.W.3d at 501. And, whether the situation is of that ilk is determined from the standpoint of the accused. Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.- Fort Worth 2001, pet. ref'd); Gonzalez v. State, 2 S.W.3d 600, 605 (Tex. App.-Texarkana 1999, pet. ref'd). Yet, the defendant's belief that his conduct was immediately necessary may be deemed unreasonable as a matter of law if the undisputed facts demonstrate a complete absence of immediate necessity or imminent harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.-Texarkana 2000, no pet.); Brazelton v. State, 947 S.W.2d 644, 648-49 (Tex. App.-Fort Worth 1997, no pet.).
Appellant alleges that the record contained sufficient evidence to warrant the charge on necessity because children lived in the home and were to return home from school "any minute." Because they often brought friends home with them, he perceived the need to remove the gun from their reach to avoid potential injury. Yet, nothing in the record suggests, much less illustrates, that any of the children were home or in the house at the time appellant saw the weapon. Nor is there evidence suggesting that appellant thought that any children were at home. Again, he simply believed that they would be arriving "at any minute." (2)
We hold, as a matter of law, that this evidence, when viewed in a light most favorable to appellant and from his perspective, does not indicate that there existed some harm that was on the point of occurring and which necessitated a split second decision. Nor does it arise to a level of something about to happen for several contingencies had yet to transpire. Not only was there a need for a child to arrive home, but also the gun had to have remained at its location and the child had to have ventured into the room wherein it lay and perceived it. Given these contingencies, the evidence permits one to reasonably infer no more than that appellant feared the possibility of or potential for harm and acted in response thereto. That, however, falls short of the imminency contemplated under the defense of necessity. See Garcia v. State, 972 S.W.2d 848, 849 (Tex. App.-Beaumont 1998, no pet.) (holding that fear induced by one's presence in a high crime area is not sufficient evidence of an immediate necessity to avoid imminent harm so as to justify unlawfully carrying a handgun). Consequently, no evidence existed to entitle appellant to an instruction on the defense in the first place. And, because he was not entitled to such an instruction, we cannot say that he was egregiously harmed when the trial court told the jury that he had the burden of proving the defense. (3)
In his fifth and sixth issues, appellant asserts that his counsel was ineffective in failing to object to the misstatement in the jury charge about which we discussed in the first four issues. Yet, having determined that appellant was not entitled to the charge, we cannot say that his attorney erred in failing to object to its wording. See Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (holding that because the defendant was not entitled to an instruction on the defense of necessity, counsel was not ineffective in failing to request one). So, the issues are overruled.
In his final three issues, appellant attacks the trial court's decision to deny his motion to suppress evidence. We overrule them as well.
Below, at the hearing to suppress, appellant argued that the evidence of the firearm was subject to suppression because the officers had no basis to temporarily detain him and search his person. Here, he contends that suppression was required since the officers had no basis to initially enter the premises. Nothing is said, in his brief, about the temporary detention and Terry (4) frisk other than the comment that whether the officers had "probable cause to search, or even reasonable suspicion to detain, is irrelevant." Nor does he mention the authority (or lack thereof) of the officers to initially enter upon the property as grounds warranting exclusion of the evidence in his written motion to suppress. Given this, the grounds underlying his complaint at trial do not comport with those uttered on appeal. Thus, his complaint about the trial court's refusal to suppress the evidence was waived. Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996) (holding that if trial objections do not comport with arguments on appeal, error is not preserved).
Nevertheless, and assuming the grounds for error were preserved, we review the trial court's ruling on the motion to suppress under the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). In doing so, we give almost total deference to the trial court's findings of historical fact and review de novo its application of the law to the facts. Id. at 89. And, when no findings of fact are executed, as here, we must also view the evidence in the light most favorable to the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Both our federal and state constitutions protect one against unreasonable searches and seizures, but that protection exists only if the individual has a reasonable expectation of privacy in the thing searched. Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214, 223 (1984); Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). If there is no such expectation, there is no constitutional protection. Rosalez v. State, 875 S.W.2d 705, 713 (Tex. App.-Dallas 1993, pet. ref'd) (stating that because there is no reasonable expectation of privacy attaching to an open field, no Fourth Amendment protection extends to such an area). Furthermore, the burden lies with the accused to establish this expectation. Villareal v. State, 935 S.W.2d at 138.
It is beyond dispute that one has such an expectation of privacy in his home. Oliver v. United States, 466 U.S. at 178, 104 S.Ct. at 1741, 80 L.Ed.2d at 224. So too is it indisputable that this expectation extends to the curtilage surrounding the home. (5) Yet, the restriction against intruding upon one's curtilage has its limits. For instance, it does not prevent a police officer from approaching and knocking upon the front door of a home. Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995). This is so because the police have the same right as any other person to enter onto residential property and walk up to the front door. Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim. App.1989), overruled on other grounds by Heitman v. State, 895 S.W.2d 681 (Tex. Crim. App. 1991); Watts v. State, 56 S.W.3d 694, 699-700 (Tex. App.-Houston [14th Dist.] 2001), reversed on other grounds, 99 S.W.3d 604 (Tex. Crim. App. 2003); Nored v. State, 875 S.W.2d 392, 396 (Tex. App.-Dallas 1994, pet. ref'd). Because entry is impliedly authorized, there exists no reasonable expectation with regard to things observed by those on the pathway to the house. Bower v. State, 769 S.W.2d at 897. However, the authorization to enter may not exist if the occupant made manifest his intent to restrict access to the area. Id.; Nored v. State, 875 S.W.2d at 397 (stating that if the person in possession of the property has not made express orders prohibiting any form of trespass, and if the police follow the usual path to the front door, then the police have not violated the person's Fourth Amendment rights).
There is also precedent extending the authority to approach one's door and knock to include the back door. For instance, in Long v. State, 532 S.W.2d 591 (Tex. Crim. App. 1975), the sheriff first went to the front door to inquire about private aircraft flights in the area. When no one answered the knock, he and his deputy walked around to the back door and knocked. When no one answered again, they decided to leave. Walking back around the house, they felt a blast of hot air and smelled marijuana coming from an open window. Furthermore, the window blinds were also open, and the officers looked into the room and saw marijuana on the floor and stacked around the walls. The Court of Criminal Appeals affirmed the trial court's refusal to suppress the evidence discovered because the acts described did not constitute a search. Id. at 594-95.
A like conclusion was reached in Atkins v. State, 882 S.W.2d 910 (Tex. App.- Houston [1st Dist.] 1994, pet. ref'd). There, two officers proceeded to the appellant's residence to investigate an anonymous tip. One went to the front door and the other to the back door in an effort to contact the occupant. To arrive at the back door, the officer had to pass through a fence, which he did. At that time, appellant left the house, observed the officer, dropped an object, and thereafter re-entered the house. The officer picked the object up, recognized it as contraband, and entered the house to arrest appellant. Because both officers were attempting to contact the occupant and nothing indicated the officer's view of the backyard was blocked by the fence, "the officer's viewing of appellant's conduct was not a search" according to the court of appeals. Id. at 913.
Thus, an officer can enter the curtilage of a house in an effort to contact its occupants. Buchanan v. State, 129 S.W.3d 767, 773 (Tex. App.-Amarillo 2004, pet. ref'd). This is true when the occupant has not manifested his intent to restrict access by locking a gate or posting signs informing the officer he is not invited or the officer does not deviate from the normal path of traffic. Id.
Here, the officers were responding to a complaint by the manager of the Housing Authority (which operated the property) about men smoking marijuana on a front porch of a particular house. When the officers arrived, they saw no one in the front of the house and proceeded to drive around the back through an alley. There, they could see a group in the backyard. So the officers disembarked from their vehicle, walked through "an opening in the fence," and approached the group. There was no gate prohibiting their entrance; nor was there evidence of a sign warning them against trespassing. And, to the extent that the fence itself could be perceived as a barrier suggesting the desire for privacy, it did not prevent the officers from seeing individuals in the backyard and it had an opening large enough for people to venture through.
In view of the foregoing, the situation before us is akin to those in Long and Atkins. Any interests the occupants had in the privacy of their backyard was lost given the officers' authority to contact them about the complaint, their visibility in the backyard, and the opening in the fence. Thus, we cannot say that the officers violated either the constitutional or statutory rights of appellant when they entered the premises under these circumstances.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Publish.
1. The residence was that of appellant's mother. Appellant was living with his mother as were five of
her grandchildren.
2. 3. Indeed, it could be said that appellant had an opportunity for a windfall to which the law did not
actually afford him, and in the words of J. P. Driskill, "that's the luck of the draw."
4. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
5.
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NO. 07-09-00054-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 24, 2010
FRANKIE LEE CADA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A 17878-0812; HONORABLE ROBERT W. KINKAID JR., JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Frankie Lee Cada, was indicted for the offense of retaliation[1] enhanced by one prior felony conviction. A jury convicted appellant of the offense as charged, found the enhancement paragraph true, and sentenced him to confinement in the Institutional Division of the Texas Department of Criminal Justice for three years. Appellant appeals by four issues contending that the evidence was both legally and factually insufficient and that the trial court erred in not charging the jury on the lesser-included offense of assault. We affirm.
Factual and Procedural Background
On November 12, 2008, the Plainview Police Department received a call regarding a suspicious car at an Allsups convenience store. The manager of the Allsups, Arthur Finch, had contacted the police. Upon arriving at the scene, officers identified the adult passengers in the car. After identifying the passengers, the police checked each name for outstanding warrants. One of the adult occupants of the car, Josephine Cada, appellants wife, had outstanding warrants. Mrs. Cada was taken into custody, and the other occupants of the car were allowed to leave the scene. After the arrest of Mrs. Cada, Finch received a telephone call from appellant. During the phone call, appellant identified himself and threatened to get back at Finch for getting his wife arrested. Finch called the police after receiving the first phone call. Within ten minutes of calling the police to report the first phone call, Finch received a second phone call. Finch testified that the caller did not identify himself during the phone call; however, Finch further testified that he recognized the second caller as appellant. During the second call appellant stated he was behind the store and was going to get Finch. Finch activated a panic button that notified the police, and the police immediately went to the Allsups location. Based upon information Finch gave the police, appellant was arrested, indicted, and tried for the offense of retaliation.
At the conclusion of Finchs testimony the State rested and appellants trial counsel moved for an instructed verdict because the testimony, did not show that the action of appellant was a result of Finchs service as a witness. The trial court denied the motion, and appellant then presented his witnesses. At the conclusion of the testimony, the trial court prepared its charge. The trial court charged on the indicted offense of retaliation and the lesser-included offense of terroristic threat. The jury convicted appellant of retaliation. The jury subsequently found that the enhancement paragraph was true and sentenced appellant to confinement for a period of three years in the ID-TDCJ.
Appellant contends that the evidence is both legally and factually insufficient, and that the trial court committed reversible error in not giving a lesser-included charge of assault.[2] We disagree with appellant and affirm the judgment of the trial court.
Sufficiency of the Evidence
Appellant challenges both the legal and factual sufficiency of the evidence. Therefore, we are required to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).
Standard of Review
Legal Sufficiency
In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jurys verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We measure the legal sufficiency of the evidence against a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).
Factual Sufficiency
When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finders determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jurys verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jurys verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The Texas Court of Criminal Appeals has recently declared that, when reviewing the evidence for factual sufficiency, the reviewing court should measure the evidence in a neutral manner against a hypothetically correct jury charge. Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)).
Analysis
The indictment against appellant alleges that appellant intentionally and knowingly threatened harm to Finch in retaliation for the service of Finch as a witness.[3] Appellant contends that the evidence was insufficient because the record clearly reflects that, at the time of trial, Finch had not testified in any official court proceeding. According to appellants theory, Finch was, therefore, not a witness. In support of this proposition, appellant cites the court to Jones v. State, 628 S.W.2d 51, 55 (Tex.Crim.App. [Panel Op.] 1980). In Jones, the Texas Court of Criminal Appeals concluded that the term witness as used in connection with the retaliation statute meant one who had testified in an official proceeding. Id. However, the holding in Jones is not determinative of the outcome of our case.
After the Jones opinion, the Texas Court of Criminal Appeals was again addressing the issue of the protected parties within the retaliation statute and noted that while there may be some overlap among the categories of persons listed, each category is nevertheless distinct. Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App. 1993). Jones and Morrow would indicate that appellants contention about the sufficiency of the evidence should be accepted as correct. However, in addition to the cases discussing the various protected parties within the retaliation statute, we must also consider the allegation that Finch was a witness, as opposed to a prospective witness, from the perspective of a hypothetically correct charge and material variance.
As set forth above, the sufficiency of the evidence is to be measured from the perspective of a hypothetically correct charge. Malik, 953 S.W.2d at 240 (legal sufficiency); Vega, 267 S.W.3d at 915 (factual sufficiency). Such a charge would accurately set out the law as authorized by the charging instrument. See Ortiz v. State, 280 S.W.3d 302, 304 (Tex.App.Amarillo 2008, no pet.). When applied to the facts of the case before the court, this hypothetically correct charge appears to support appellants position. Such a charge would ask the jury if appellant retaliated against Finch because of his service as a witness. As reflected in the testimony, Finch had not yet testified in any formal proceeding at the time of the threats. However, a closer review leads to the conclusion that this inquiry, witness vis-a-vis prospective witness does not conclude our inquiry. Rather, we must look further into the issue of variance as set forth by the Texas Court of Criminal Appeals in Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001). A hypothetically correct charge need not incorporate allegations that give rise to immaterial variances. Id. at 256.
In discussing the issue of variance between the wording of an indictment and the evidence presented at trial, the court in Gollihar stated that such a variance is fatal only if it is material and prejudices [the defendants] substantial rights. Id. at 257. To determine whether the variance prejudices the defendants substantial rights, we must make a two-part inquiry: first, whether the indictment informs the defendant of the charge against him sufficiently to allow him to prepare an adequate defense; and, secondly, whether prosecution under the deficiently drawn indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id.
Our review of the indictment leads to the conclusion that this is not a variance in the manner and means of committing the crime of retaliation. See Curry v. State, 30 S.W.3d 394, 403 (Tex.Crim.App. 2000) (discussing allegations that vary the manner and means of commission of offense); Planter v. State, 9 S.W.3d 156, 159 n.5 (Tex.Crim.App. 2000) (same). Rather, what we are dealing with here is a variance regarding the status of the protected person. See Morrow 862 S.W.2d at 614-15 (discussing the categories of protected persons relevant to the retaliation statute).
Applying the test for variance in the evidentiary sufficiency arena, we find that the evidence at trial is that Finch reported a suspicious car. Thereafter, the Plainview police came out to investigate. As part of the police investigation, all adults in the vehicle were identified. The identification of appellants wife resulted in the discovery of outstanding warrants for her arrest. After her arrest, appellant called Finch on two separate occasions and threatened him. At the time of trial, Finch had not testified in any official court proceeding related to Mrs. Cadas arrest.
Applying the variance test to these facts yields the determination that, there is a variance between the allegation in the indictment of Finch as a witness and the proof that he was a prospective witness. As analyzed by our sister court, the Sixth District Court of Appeals, such a variance is not material. See Martin v. State, No. 06-03-00139-CR, 2004 Tex. App. LEXIS 7142 at *23-*24 (Tex.App.Texarkana, Aug. 11, 2004, no pet.) (not designated for publication). The Martin court relied heavily on the opinion of this Court in Hudspeth v. State, 31 S.W.3d 409, 412 (Tex.App.Amarillo 2000, pet refd.). In Hudspeth, we said 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. Id.
We agree with the Hudspeth opinions ultimate conclusion and read its conclusion that the variance was irrelevant as a shorthand method of saying that the variance was not material. Appellant has never contended that the variance at issue has resulted in an inability to adequately mount a defense. See Gollihar, 46 S.W.3d at 257. Likewise, there is no danger of a second prosecution for the same offense as a result of the variance at issue. See id. These conclusions lead to the ultimate conclusion that the variance was not material. See id.
When reviewing an insufficient evidence contention based on a variance between pleading and proof, only a material variance will render the evidence insufficient. See id. Having determined that the variance was not material, we reach the conclusion that the evidence was legally and factually sufficient under each test. Jackson, 443 U.S. 319 (legal sufficiency); Ross, 133 S.W.3d at 620 (same); and Watson, 204 S.W.3d at 415 (factual sufficiency). Accordingly, we overrule appellants first, second and third issues.
Lesser-Included Offense of Assault
Appellant next contends that the trial court erred in not giving a lesser-included charge for the offense of assault by threatening to cause imminent bodily injury. However, this issue has previously been decided adverse to appellant in Helleson v. State, 5 S.W.3d 393, 396 (Tex.App.Fort Worth 1999, pet. refd) (determining that retaliation does not require that the threat to harm in retaliation for the victims public service be imminent and this element of assault by threat is not included within the necessary proof to establish retaliation). Appellants fourth issue is overruled.
Conclusion
Having overruled appellants issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Publish.
[1] See Tex. Penal Code Ann. § 36.06(a)(1)(A) (Vernon Supp. 2009).
[2] Appellant also contends the trial court erred in denying his motion for an instructed verdict. We treat such an allegation as a challenge to the legal sufficiency of the evidence. Castellon v. State, 302 S.W.3d 568, 575 (Tex.App.Amarillo 2009, no pet.).
[3] §36.06 Obstruction or Retaliation
(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) In retaliation for or on account of the service or status of another as a:
(A) public servant, witness, or prospective witness, or informant;
Tex. Penal Code Ann. § 36.06(a)(1)(A) (Vernon Supp. 2009).
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