Johnny Ray Coleman v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 12, 2023
• Docket: 09-21-00155-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00155-CR __________________

JOHNNY RAY COLEMAN, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 19-32563 __________________________________________________________________

OPINION

The principal issue in this appeal is whether the trial court erred

in failing to grant Johnny Ray Coleman’s motion to quash an indictment,

an indictment alleging that between April 21, 2016 and the day before

his indictment Coleman committed a Class A misdemeanor in violation

of the Texas Human Resources Code in “one scheme and continuing

course of conduct” when he knowingly “use[d], transfer[red], and

rede[emed] food stamp benefits, namely Electronic Benefit Transfer 1 Cards[,] in a manner not authorized by law[.]” 1 After the trial court

denied Coleman’s motion to quash, the case was tried. When the trial

ended, the jury found Coleman guilty of the “Illegal Possession/Transfer

of EBT Benefits, as charged in the indictment.” After the jury considered

the sentencing range based on the trial court’s instruction in the charge

and Coleman’s pleas of “true” to the enhancement counts in the

indictment, the jury gave Coleman a twenty-seven-year sentence.

After the trial court pronounced Coleman’s sentence, Coleman

appealed. On appeal, Coleman argues that there are three reasons he is

entitled to receive a new trial. First, he contends the indictment failed to

provide him with adequate notice of the “actions he allegedly committed

to allow him to prepare a defense,” and he claims the lack of notice caused

him harm. Second, Coleman argues error exists in the charge used to

submit the offense to the jury, which for sake of simplicity we will refer

to as SNAP card fraud. According to Coleman, the charge enlarged on the

offense by allowing the jury to consider whether he trafficked in SNAP

1See Tex. Hum. Res. Code Ann. § 33.011 (Prohibiting the knowing use, alteration, transfer, or possession of a supplemental nutrition assistance program electronic benefit card when “not authorized by law.”). 2 benefits when the theory of trafficking was not one of the theories for

committing the offense that is raised by the language used in his

indictment. Third, Coleman contends the trial court should have even

without his request included an accomplice witness instruction in the

charge.

For the reasons explained below, we will affirm.

Background

The SNAP Program

The food stamp program began with the enactment of the Food

Stamp Act of 1964. 2 The program is designed to “alleviate . . . hunger and

malnutrition” by allowing those in low-income households “to purchase a

nutritionally adequate diet through normal channels of trade.”3 Under

the Act, Congress gave the Secretary of the U.S. Department of

Agriculture the authority to formulate and administer the program, but

it gave the agencies of each state that chose to participate in the program

2See Food Stamp Act of August 31, 1964, Pub. L. 88-525, 78 Stat. 703. 37 U.S.C.S. § 2011 (LexisNexis, Lexis Advance through Public Law 118-3, approved April 10, 2023). 3 the “responsibility for certifying applicant households and issuing EBT

cards” to the individuals who qualified to buy food. 4

The State of Texas is among the states that elected to participate

in the federal food stamp program. The Texas Health and Human

Services Commission is the state agency responsible for operating the

food stamp program in this state. 5 In 2008, Congress renamed the Food

Stamp Act, and currently benefits delivered to participants in the

program are known as SNAP benefits rather than food stamps. 6 As the

agency in charge of administering the program in Texas, the Texas

Health and Human Services Commission is responsible for ensuring the

program is administered in a manner that complies “with federal

regulations[.]” 7

47U.S.C.S. § 2013(a) (LexisNexis, Lexis Advance through Public Law 118-3, approved April 10, 2023), § 2020(a)(1) (LexisNexis, Lexis Advance through Public Law 118-3, approved April 10, 2023). 5See Tex. Hum. Res. Code Ann. § 11.001(2) (defining Commission

as “Health and Human Services Commission”); id. § 33.0006 (“The commission operates the supplemental nutrition assistance program.”). 6See Agricultural Security Improvement Act of May 22, 2008, Pub.

L. 110-234, Title IV, § 4001, 122 Stat. 923. 7Tex. Hum. Res. Code Ann. § 33.002(d) (West and West Supp. 2022)

(Even though the legislature amended the Human Resource Code section 33.002 after Coleman was indicted, the changes it made didn’t include changing section 33.002(d), the section that addresses an offense 4 Under the federal legislation governing the program, Congress

made it a crime to knowingly use, transfer, acquire, alter, or possess

SNAP benefits “in any manner contrary to the” SNAP program. 8 And

when it created the program, Congress delegated broad regulatory

authority to the Secretary of the Department of Agriculture, authorizing

the Department of Agriculture to issue regulations governing the

delivery of SNAP benefits and to enter into cooperative arrangements

with governmental authorities in states that chose to participate in the

SNAP program so that a participating state through its agency in its

state could deliver and administer the SNAP program in its state in

accord with federal regulations governing the program. 9 What’s more,

even though the SNAP program is a creature of Congress, the costs of

running the program are shared between a participating state and the

federal government as to the cost of the program in that state.10

committed based on one scheme and continuing course of conduct. For convenience, we have cited the current version of the statute.). 87 U.S.C.S. § 2024 (LexisNexis, Lexis Advance through Public Law

118-3, approved April 10, 2023). 9Id. 107 U.S.C.S. § 2024(b) (Unauthorized use) (LexisNexis, Lexis

Advance through Public Law 118-3, approved April 10, 2023). 5 Therefore, states that elect to participate in the program have a financial

interest in minimizing SNAP card fraud.

In an effort to minimize and prevent fraud, the Texas legislature

made it a crime to knowingly use, alter, transfer, possess or redeem a

“supplemental nutrition assistance program electronic benefit transfer

card in any manner not authorized by law[,]” the offense we are calling

SNAP card fraud. 11 While the legislature passed a SNAP card fraud

statute and made SNAP card fraud a state crime, the Texas legislature

chose not to define the term not authorized by law in section 33.011 or in

the Human Resources Code.12

Still, since SNAP benefits are a federal program, federal law

provides rules and regulations governing the manner the program is

administered in the states. These regulations include how the benefits

available to participants in the program may be used. As relevant here,

the Department of Agriculture’s regulations governing the use of SNAP

benefits:

• Limit the use of SNAP benefits to certified eligible households, that is households that are qualified as eligible through the Texas Health and Human Resources Commission

11Tex. Hum. Res. Code Ann. § 33.011(a), (b). 12Id. § 33.011; see id. §§ 1.001-261.151

6 under regulations prescribed by the Department of Agriculture; 13

• Restrict an eligible household’s use of SNAP benefits to the purchase of “eligible food for the household[;]” 14

• Make the unauthorized issuance, redemption, use, transfer, acquisition, alteration, or possession of benefits, EBT cards, or other program access devices subject to prosecution under “section 15(b) and (c) of the Food and Nutrition Act of 2008 or under any other applicable Federal, State or local law, regulation, or ordinance.” 15

• Define trafficking as the “buying, stealing, or otherwise effecting an exchange of SNAP benefits issued and accessed via Electronic Benefit Transfer (EBT) cards, card numbers and personal identification numbers (PINs), or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others or acting alone[.]” 16

137 C.F.R. 274.2 (Providing benefits to Participants) (Lexis Advance through the May 31, 2023 issue of the Federal Register); 7 CFR 271.7 (Benefit redemption by eligible households); 7 C.F.R. § 271.7 (Lexis Advance through the May 31, 2023 issue of the Federal Register). 147 C.F.R. § 274.7 (Benefit redemption by eligible households) (Lexis

Advance through the May 31, 2023 issue of the Federal Register). 157 C.F.R. § 271.5 (Benefits as obligations of the United States,

crimes and offenses, forfeiture and denial of property rights) (Lexis Advance through the May 31, 2023 issue of the Federal Register). 167 C.F.R. § 271.2 (Definitions) (Lexis Advance through the May 31,

2023 issue of the Federal Register). 7 Coleman’s Indictment and Trial

Between April 2016 and July 2019, Coleman owned and operated

Coleman’s Deli Burger in Beaumont, Texas. In April 2018, unusual

activity involving the use of Plashette Carrington’s SNAP card at a Sam’s

Club store in Beaumont came to the attention of Steven Lightfoot, an

investigator for the Texas Human Health and Services Commission (the

Commission). Lightfoot, who works from the Commission’s Houston

office, called Kenneth Parks another of the Commission’s investigators to

assist him in the investigation because Parks lives near Beaumont.

Ultimately, Parks became the Commission’s lead agent in Coleman’s

case.

During the Commission’s investigation, Parks spoke with

employees at Sam’s and examined receipts there. In the initial stage of

the investigation, Parks determined that Coleman had used SNAP

benefits cards at Sam’s to buy food in quantities he thought were akin to

those in restaurants for food like burger patties, fries, condiments, and

buns. Following several months of investigative work, work that included

undercover surveillance by a team of investigators led by Parks, Coleman

was videotaped loading food into his vehicle at Sam’s. Investigators

8 followed Coleman from Sam’s, and he was videotaped taking the food

from his vehicle into Coleman’s Deli Burger.

With help from Sam’s, investigators from the Commission obtained

evidence—point-of-sale receipts tied to Coleman’s membership card at

Sam’s, which show SNAP cards tied to Coleman’s account were being

used to pay for food at Sam’s. Using the receipts from Sam’s bearing

Coleman’s account number, which also contain the numbers from the

SNAP cards that were used in the transactions to buy food, the

investigators determined whose SNAP cards were used in these

transactions. After investigators interviewed and obtained statements

from many of the cardholders whose SNAP cards had been used in these

transactions, investigators determined that for several months SNAP

cards tied to Coleman’s account at Sam’s were used to buy large

quantities of food Based on records maintained by the Commission, the

Commission determined that Coleman was not an authorized user on the

SNAP cards used in the transactions that were tied to his account at

Sam’s.

Later, the Commission’s investigators obtained a search warrant,

which authorized police to search Coleman’s Deli Burger. In the search,

9 Parks obtained additional evidence tying Coleman to the records from

Sam’s point-of-sale registers, records investigators had already retrieved

from Sam’s. In searching Coleman’s restaurant, police also found receipts

from Sam’s and three SNAP cards in Coleman’s wallet. The Commission

did not issue the SNAP cards in Coleman’s wallet to him, and he was not

an authorized user on the three cards.

From records the Commission’s investigators gathered in the

investigation, Parks prepared detailed summaries to illustrate

Coleman’s use of SNAP cards, focusing mainly on the SNAP cards tied to

Coleman’s account at Sam’s. One of the summaries—which was marked

and admitted into evidence at Coleman’s trial as Exhibit 16—shows that

between April 2016 and May 2018, Coleman bought over $55,000 in

merchandise from Sam’s using SNAP cards that didn’t belong to him. The

same exhibit shows more than sixty individuals’ SNAP cards were used

at Sam’s on Coleman’s account in these transactions.

Under the federal regulations that govern the SNAP program, only

households certified as qualifying for benefits may receive SNAP

benefits, and even then, an individual issued a SNAP card may use the

10 card only at a participating retail food store to buy eligible food.17

Moreover, under federal law a person with a SNAP card cannot sell or

use their benefits in a manner that would violate federal law, and they

may not sell or use their benefits in a manner that would violate a

regulation issued by the Department of Agriculture under the Food and

Nutrition Program of 2008. 18

To prove SNAP card fraud under Human Resources Code section

33.011, the State must prove the defendant knowingly engaged in the

prohibited conduct. 19 Coleman’s indictment alleged that he knowingly

used, transferred, and redeemed food stamp benefits (EBT Cards) in a

manner not authorized by law. During the trial, the State presented

evidence showing that in October 2017 following Hurricane Harvey,

Coleman applied for SNAP benefits under the Disaster SNAP program,

and the application he filled out informed him that he could not use,

transfer, or redeem the benefits by purchasing and then using the SNAP

benefits that were on another’s card. The application for Disaster SNAP

Food Benefits, which Coleman signed, states:

177 C.F.R. 274.7(a). 187 U.S.C.S. § 2024. 19Tex. Hum. Res. Code Ann. § 33.011(b).

11 Everyone who gets SNAP benefits must follow these rules (1) Don’t give false information or hide information to get SNAP, (2) don’t give or sell your Lone Star Card to anyone not authorized to use it, (3) don’t use SNAP benefits to buy unauthorized items such as alcohol or tobacco, and (4) don’t use another person’s SNAP benefits if you are not on their SNAP case. 20

At trial, one of the Commission’s investigators—Iris Baros—

testified that when Coleman signed the Disaster-SNAP application, all

those who apply for benefits are made aware that they can’t buy, sell, or

give away their cards. She also testified that the rules about trafficking

against SNAP benefits apply equally to Disaster-SNAP and SNAP

benefits.

Turning to the specifics of Coleman’s indictment, the record shows

that in July 2019, a Jefferson County grand jury indicted Johnny Ray

Coleman for engaging in a scheme and continuing course of conduct that

began on April 21, 2016, and continued until the presentment of the

indictment for knowingly using, transferring, and redeeming food stamp

benefits, namely Electronic Benefit Transfer Cards, in a manner not

authorized by law. 21 On appeal, Coleman’s complaints revolve around the

20In Texas, SNAP benefits are on an EBT card that the Commission named the Lone Star Card. 21See Tex. Hum. Res. Code Ann. § 33.011(a), (b).

12 indictment and the charge. To be clear, he doesn’t argue that the evidence

doesn’t establish beyond reasonable doubt that he knowingly engaged in

the conduct prohibited by the SNAP program. Instead, he argues the

indictment didn’t provide him with fair notice of what the State claimed

his unauthorized conduct was before his trial, the charge enlarged on the

conduct alleged in his indictment, and the trial court omitted the

accomplice witness instruction in the charge.

Twenty-one months after Coleman was indicted, Coleman moved to

quash the indictment. He filed his motion to quash on the day the trial

court notified him that he was being called to trial. In his motion to

quash, Coleman argued that because his indictment didn’t detail what

conduct was “not authorized by law,” the indictment didn’t provide him

with sufficient “notice of the acts he is accused of committing,” and

therefore failed to “fairly inform [him] of the charge against which he

must defend[.]”

On the morning of the first day of the trial and before selecting the

jury, the trial court conducted a hearing on Coleman’s motion to quash.

Coleman’s attorney argued that because the indictment didn’t

specifically state what the State claimed Coleman did that was “not

13 authorized by law,” the indictment is “extraordinarily vague, ambiguous

in nature, and does not give our client the opportunity to adequately

defend or recognize what he’s charged with.” In response, the State

argued the indictment appropriately tracked the language of the statute,

and that under federal law, the use, transfer, or redemption of SNAP

benefits is not authorized by law when it is done by trafficking, which the

prosecutor explained is a defined term in the Code of Federal

Regulations. Coleman’s attorney was apparently aware the Code of

Federal Regulations defines trafficking as it relates to the food stamp

program. During the hearing, Coleman’s attorney told the trial court that

section (d) of the Human Resources Code “talks about trafficking in Food

Stamps.” Then, Coleman’s attorney added that in the indictment, the

State “could have easily put in what in effect this - - our client was

allegedly doing that was wrong. That would have given us knowledge in

order to adequately prepare a defense in this case.” In denying the motion

to quash, the trial court observed (without further comment) that the

indictment tracked the language of the statute.

In the guilt-innocence phase of the trial, seventeen witnesses

testified for the State. Ten of the State’s witnesses testified they were

14 employed by the Commission and part of the team the Commission used

to investigate Coleman’s case. The ten witnesses who were part of the

investigation conducted by the Commission described their roles in the

investigation, which occurred in 2018. For instance, Ken Parks testified

that among the tasks he completed included preparing summaries of the

documents the Commission obtained in its investigation, summaries that

list the dates, SNAP card numbers, names of SNAP cardholders, and

dollar amounts charged to SNAP cards on dates the Commission

attributed to Coleman’s unauthorized use of the SNAP cards of others

under the regulations that apply to the SNAP program.

Two of the witnesses called by the State—Steve Helms and Mark

Odom—were not employed by the Commission. They testified that in

2018, they worked for Sam’s Club or its parent corporation, Walmart.

Helms explained that even though he had since retired from Sam’s, he

was Sam’s asset-protection manager in 2018 when investigators from the

Commission asked him to provide them with receipts and videotapes of

Coleman’s transactions with Sam’s. The State used Helms to

authenticate several exhibits that contain records relevant to Coleman’s

transactions at Sam’s.

15 Odom, who testified he is still works for Walmart as an

investigator, explained that he provided the Commission’s investigators

with two computerized reports, which summarize Walmart’s business

records. One of the reports lists the transactions tied to Johnny

Coleman’s membership card at Sam’s. That report shows Coleman’s use

of his Sam’s account between May 19 and August 10, 2018. This report

contains columns listing information that includes: dates the

transactions at Sam’s occurred; the SNAP card numbers used to pay for

the merchandise; the Sam’s membership number and member’s name

(Johnny Coleman); information about type of payment used for the

transaction (Debit Card, EBT Food Stamps, Walmart Credit Card, Cash);

the credit or debit card account number if used; the amount charged to

the credit or debit card if used; and the total amount the customer

tendered at checkout in the transaction.

Of the remaining five witnesses called by the State, four testified

they allowed Coleman to use their SNAP cards in return for cash. The

remaining witness testified that she allowed Coleman to use her SNAP

card even though she didn’t get anything in return for Coleman’s use of

16 her card. All five admitted they pleaded guilty to committing SNAP card

fraud. 22

On appeal, Coleman hasn’t challenged the legal or factual

sufficiency of the evidence supporting his conviction. Instead, he argues

(1) the indictment provides inadequate notice, (2) the charge enlarged the

offense with which he was charged, and (3) the trial court erred in failing

to include an accomplice witness instruction in the charge.

Analysis

Motion to Quash

We turn first to the trial court’s ruling on Coleman’s motion to

quash. The paragraph of the indictment charging Coleman with SNAP

card fraud reads as follows:

THE GRAND JURORS for the County of Jefferson, State aforesaid, duly organized as such at the July Term, A.D., 2019, of the 252nd District Court of Jefferson County, in said County and State, upon oath in said Court present that JOHNNY RAY COLEMAN, hereafter styled the Defendant, committed an offense hereafter styled the primary offense, pursuant to one scheme and continuing course of conduct beginning on or about the 21ST day of APRIL, TWO THOUSAND AND SIXTEEN, and continuing through on or about the 18TH day of MAY, TWO THOUSAND AND EIGHTEEN, and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas, did

22Tex. Hum. Res. Code Ann. § 33.011. 17 then and there, [ ] knowingly use, transfer and redeem food stamp benefits, namely Electronic Benefit Transfer Cards in a manner not authorized by law, with a total value of over two hundred dollars[.] 23

In his brief, Coleman argues that even though the indictment tracks the

statute, its allegations didn’t adequately notify him before his trial of how

he had violated the law because the indictment failed to set out what use,

alteration, transfer, or redemption of the SNAP benefits had occurred

that had been done in a “manner not authorized by law.”

For example, Coleman notes the trial court attempted to remedy

this problem when the parties finished presenting their evidence by

defining the prohibited conduct in the charge as trafficking. The parts of

the Code of Federal Regulations regulating the Food Stamp program

include a definition of trafficking in food stamps. 24 According to Coleman,

there are six distinct types of forbidden conduct falling within the

definition of trafficking prohibited by the Food Stamp Act as that term is

defined in the Code of Federal Regulations, which he says would

23Originally, the indictment alleged Coleman “intentionally and knowingly” committed the offense. Before submitting the case to the jury, however, the State abandoned the allegation alleging that Coleman “intentionally” violated the statute. 247 C.F.R. § 271.2.

18 therefore also be prohibited conduct under Human Resources Code

section 33.011 as conduct not authorized by law. 25 So looking to the

indictment, Coleman concludes the language the State included in his

indictment failed “to give him notice of what one of these six forbidden

types of conduct” he was charged “with [] because [the indictment’s

language] doesn’t specifically identify whether he violated one, two or all

six types of ‘forbidden conduct’ listed in the federal regulation[.]” 26

As Coleman sees it, because trafficking may occur in six ways—

some of which do not include exchanging of SNAP benefits for cash or

consideration other than eligible food, which Coleman contends are the

theories of trafficking the trial court submitted in the charge—the

indictment failed to provide him with enough information to allow him to

prepare to defend himself against the indictment in the trial. Coleman

concludes that since no definition exists for not authorized by law in

section 33.011, the State was required to include more factual allegations

in the indictment than it did to adequately inform him of what it claims

he did wrong to violate the law so that he could have had an adequate

25Tex. Hum. Res. Code Ann. § 33.011(d). 267 C.F.R. 271.2; Tex. Hum. Res. Code Ann. § 33.011.

19 opportunity to prepare his defense to the alleged misconduct before the

trial.

Here, the indictment alleges a scheme that began in April 2016 and

ended by at least July 23, 2019, the day before Coleman was indicted.

Even though the indictment incorporates part of the language from

sections 33.011(a), (b), and (d) of the Human Resources Code, Coleman’s

case involves criminal conduct that allegedly occurred over many years.

In cases involving indictments alleging conduct that spans a period

of years, the Court of Criminal Appeals has explained that merely

tracking the language of the statute is not enough to fulfill the statutory

and constitutional requirements of specificity needed to give a defendant

fair notice of the conduct with which he is charged. 27 That said, the Court

of Criminal Appeals did not say the information necessary to fulfill the

statutory and constitutional requirements of specificity must be alleged

within the four corners of the indictment in all cases: instead, it said that

27SeeState v. Moff, 154 S.W.3d 599, (2004) (affirming trial court’s ruling granting motion to quash, reversing the appellate court’s decision to reverse the trial court’s ruling on the motion, and explaining that in a case in which an indictment alleged illegal purchases which had occurred over several years, tracking the language of the statute was insufficient “to fulfill the constitutional and statutory requirements of specificity”). 20 a defendant could receive sufficient notice in cases where the indictment

alleged a single offense involving criminal conduct that occurred over a

period of years by “means other than the language in the charging

instrument.”28

In Moff, for example, the Court of Criminal Appeals noted that in

an earlier case, Kellar v. State, it had explained that even though the

allegations in the indictment alone were not sufficient, the State had

satisfied the sufficient notice requirement by filing “an itemized list

containing the dates, check numbers, and amounts of each

transaction[.]” 29 Like Moff, Coleman was charged with separate criminal

acts that when the jury considers them together allow the jury on finding

the defendant guilty to convict the defendant of a single offense.30

Because Coleman’s indictment alleges acts that together constitute but a

single offense, “details regarding the specific acts on which the State

intends to rely [were] not required to be listed in the indictment, as long

as they [were] provided by some other means.” 31

28Id. (cleaned up). 29Id. (citing Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). 30SeeTex. Hum. Res. Code Ann. § 33.011(d). 31Moff, 154 S.W.3d at 603.

21 When a case involves an indictment that alleges a single offense

involving alleged criminal conduct that occurred over a period of months

or years, we look to the entire record to determine two things: (1) did the

defendant have notice by means other than the indictment, which

provided him with sufficient notice of the conduct with which he was

charged; and (2) if not, does the record nonetheless show that defendant

was not actually harmed by any lack of notice. 32 For the following three

reasons, we conclude the discovery and information the State produced

to Coleman well before his trial provided him with adequate notice of the

State’s theory against which Coleman was required to defend as related

to Coleman’s use, transfer, and redemption of the SNAP cards

transactions prohibited by law.

32See Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009) (explaining a defendant may suffer no harm by any lack of notice in the indictment even though the indictment in a defendant’s case isn’t sufficiently sufficient when the allegations involve a course of conduct, a single offense, and the motion to quash if overruled, if the defendant received notice of the State’s theory against which he would have to defend); Kellar, 108 S.W.3d at 313 (“due process may be satisfied by means other than the language in the charging instrument”); Tex. Code Crim. Proc. Ann. art. 21.19 (“An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant”). 22 First, under the indictment, the State had to prove that when

Coleman used, transferred, or redeemed the SNAP cards and then later

used the benefits at Sam’s, he knew what he was doing violated the laws

that regulate the SNAP program. Because not authorized by law isn’t

defined in the Human Resources Code, the reference to not authorized by

law must refer to violations of the Food and Nutrition Act of 2008 and

the federal regulations promulgated under the Act.

It's important to our analysis that the Texas statute prohibiting

SNAP card fraud required the State to prove that Coleman violated the

SNAP card fraud statute knowingly. 33 Thus under Coleman’s indictment,

the State had to prove that Coleman knew that the manner he was using,

transferring, or redeeming the SNAP cards or the SNAP benefits he

obtained from others were uses, transfers or redemptions that were not

authorized by law. 34

33Tex. Hum. Res. Code Ann. § 33.011(a), (b). 34See Mason v. State, 663 S.W.3d 621, 631-32 (Tex. Crim. App. 2022)

(explaining that section 64.012 of the Election Code requires the State to prove individuals know they are ineligible to vote to be convicted of illegal voting); Delay v. State, 465 S.W.3d 232, 250, 252 (Tex. Crim. App. 2014) (holding that a statutory requirement that a defendant knowingly commit an offense under the Election Code required the State to prove “the actor was actually aware of the existence of the particular circumstance surrounding that conduct that renders it unlawful”). 23 Second, the discovery available to Coleman (and to his attorneys)

provided Coleman with a roadmap of the State’s case, which placed

Coleman on notice of the State’s theory that Coleman had engaged in a

scheme of trafficking in SNAP benefits by redeeming the SNAP benefits

of others for cash in return for the authorized users’ agreements

transferring their cards to him, which he then used to purchase food.

The record shows that long before trial, Coleman had access to the

State’s evidence, including the detailed summaries later introduced as

exhibits—these summaries provided Coleman with a roadmap of the

State’s case. As a practical matter, the discovery to which Coleman had

access months before his trial shows that Coleman was redeeming the

SNAP cards of others at a discount for cash and then using the cards to

buy food. The witness list and witness statements to which Coleman had

access allowed Coleman to know how the State intended to show how he

had acquired the various SNAP cards. The discovery available to

Coleman included detailed point-of-sale receipts containing the dates of

the alleged transactions that show when and where the transactions

occurred. These transactions were laid out in summaries, all of which

were available to Coleman. All this evidence gave Coleman fair notice of

24 the facts and the transactions the State intended to use to support the

allegations in the indictment that Coleman used, transferred, and

redeemed food stamps in violation of federal law.

There’s also no doubt that this discovery was available to Coleman

well before trial. In December 2019 Coleman filed a motion for

continuance, complaining that he had been provided with a “voluminous

amount of discovery” by the State with the “majority of the transactions”

involving SNAP card transactions at Sam’s. For instance, as of December

2019, the record shows that Coleman had access to the sixty exhibits,

undercover surveillance videos, witness statements of over twenty

witnesses, and DVD recordings from cameras inside Sam’s. During the

trial, Coleman never claimed he was surprised when the State introduced

any of the evidence or when the State called any of the seventeen

witnesses who testified in the trial.

Third, during the hearing on Coleman’s motion to quash, Coleman

never raised a claim of surprise when the prosecutor told the trial court

that it was claiming Coleman was “trafficking” in benefits by violating

regulations that apply to the SNAP program. Moreover, the evidence in

the trial focused on Coleman’s redemption of the SNAP card benefits of

25 others for cash, the transfers by authorized users of their SNAP cards to

Coleman, and Coleman’s later use of the SNAP benefits on the cards at

grocery stores like Sam’s. For instance in opening statement, the

prosecutor told the jury that the State intended to prove that

investigators from the Commission discovered that Coleman was using

SNAP cards he obtained from more than 60 others to buy items at Sam’s.

Coleman did not raise a claim of surprise. Then, the prosecutor told the

jury:

Mr. Coleman knew that what he was doing was wrong, because . . . [the] evidence will also show that on October 7th, 2017, Mr. Coleman applied for and received disaster SNAP benefits, and he signed for that.” I believe you will see that document. It basically says you can’t buy and sell your Food Stamps because it’s a crime.

Again, Coleman never claimed he was surprised. Over a year before the

trial, the State filed a witness list of the witnesses it intended to call in

the trial. None of the witnesses called by the State were not on the State’s

list.

At trial, four witnesses testified they sold Coleman their SNAP

cards for 50 cents on the dollar for the value of benefits on their cards.

Coleman never claimed surprise when the State introduced the

application for D-SNAP benefits that he signed, an application in which 26 he acknowledged SNAP benefits cannot be sold, that a person cannot

authorize another to use a SNAP card who has not been authorized to

use it, and that he couldn’t “use another person’s SNAP benefits if [he

wasn’t] on their SNAP case.” Since the State under the SNAP card fraud

statute had to prove that Coleman knowingly violated the statute, his

access to the witness statements, the receipts, the detailed summaries of

the transactions, when coupled with the allegations in his indictment

alleging conduct involving Coleman’s use, transfer, and redemption of

SNAP cards in a manner not authorized provided Coleman with

sufficient other notice of what conduct the State intended to prove

Coleman engaged in that violated the statute.

Finally, Coleman suggests that because the indictment isn’t clear,

it doesn’t protect him from being prosecuted again for the same conduct

involved in the scheme the State proved he engaged in between April and

July 2019. We disagree. In considering whether Coleman is subject to

being prosecuted again for the conduct covered by his indictment, a court

has a right to consider the entire record and not just the indictment in

27 protecting him against double jeopardy should the State seek to

prosecute him a second time for conduct on which he was tried. 35

To sum it up, the evidence the State produced in discovery paints a

clear roadmap sufficient to provide Coleman with notice by other means

that the State intended to prove that Coleman knowingly engaged in an

ongoing scheme of redeeming the SNAP card benefits of others for cash

in return for their transfer to him of their cards, which he then used to

buy food even though he was not authorized by the Commission to

purchase food using the cards. Because the State gave Coleman adequate

notice before the trial through means other than the indictment of the

criminal conduct it intended to rely on to prove he violated the SNAP

card fraud statute, Coleman’s first issue is overruled.

The Charge

In Coleman’s second issue, he argues the charge authorized the jury

to convict him on theories not alleged in the indictment. According to

Coleman, the charge authorized his conviction on the extra theories of

selling, stealing, possessing, and altering SNAP cards when the theories

35See Gollihar v. State, 46 S.W.3d 243, 258 (Tex. Crim. App. 2001) (citing United States v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir. 1988)). 28 alleged in the indictment were limited to using, transferring, and

redeeming SNAP cards in a manner not authorized by law.

We review claims of charge error using a two-step process. 36 When

evaluating charge error, we must first determine whether an error

occurred. 37 If an error occurred, we then apply the appropriate harm

analysis depending on whether the error was properly preserved by the

defendant in the trial. 38 And determining whether harm resulted from

an error in a charge is measured by a “some harm” standard if the

defendant objected to the error in the court below, but by another

standard known as “egregious harm” if the defendant didn’t object. 39

Coleman acknowledges he didn’t preserve the error that he has

complained about in his appeal, so we would reverse his conviction on his

claim of charge error “only if the error was so egregious and created such

harm that the defendant did not have a fair and impartial trial.”40

Egregious harm resulting from an error in a charge occurs only when the

error “affects the very basis of the case, deprives the defendant of a

36Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). 37Id. 38Id.

State, 665 S.W.3d 551, 557 (Tex. Crim. App. 2022). 39Cyr v. 40Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).

29 valuable right, or vitally affects a defensive theory.” 41 In reviewing claims

of charge error, we consider: “(1) the entirety of the jury charge itself, (2)

the state of the evidence, (3) counsel’s argument, and (4) any other

relevant information revealed by the entire trial record.” 42

On appeal, Coleman complains that under the definition of

trafficking in the charge, the jury was instructed to consider convicting

him on theories of selling, stealing, possessing, and altering SNAP

benefits even though those four theories are not among the theories

alleged in the indictment. In part, we agree with Coleman that the charge

the trial court submitted didn’t confine the jury to the conduct covered by

the allegations in his indictment. That said, on the record before us we

nonetheless still conclude that Coleman’s argument claiming he suffered

harm due to the claimed error in the charge lacks merit.

The instructions section of the charge defining trafficking contains

the language that according to Coleman, expanded upon the allegations

in his indictment. That section of the charge reads:

A use, transfer or redemption of food stamp benefits is not authorized by law when done pursuant to “trafficking”.

41Id. 42Id.

30 “Trafficking” is the buying, selling, stealing, or otherwise effecting an exchange of SNAP benefits issued and accessed via Electronic Benefit Transfer (EBT) cards, card numbers, and personal identification numbers (PINS), or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone.

Then, the application section of the charge states:

Now, if you find from the evidence beyond a reasonable doubt that Johnny Coleman, pursuant to one scheme and continuing course of conduct beginning on or about April 21, 2016 and continuing through on or about May 18, 2018, in Jefferson County, Texas, knowingly used, transferred or redeemed food stamp benefits, namely electronic Benefit Transfer Cards in a manner not authorized by law, with a total value of over two hundred dollars, then you will find the defendant guilty of the offense of Illegal Possession/Transfer of EBT Benefits.

We examine each of the words Coleman argues expanded on the

allegations in turn starting with the fact that as defined by the charge

the term trafficking included selling when the indictment didn’t include

that term. As commonly used, the verb transfer means “the conveyance

of right, title, or interest in either real or personal property from one

person to another by sale, gift, or other process.” 43 Since transferring a

right includes its sale, we conclude the indictment gave Coleman fair

43Transfer, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2523 (2002). 31 notice that the State was charging him with engaging in a scheme or

course of conduct that included selling SNAP benefits for cash or

consideration other than eligible food. So in the context of SNAP card

fraud as defined by section 33.011, we see no practical difference between

the two verbs transfer and sell.

Coleman also complains the instruction on trafficking allowed the

jury to consider whether he altered or possessed SNAP cards in a manner

not authorized by law when that conduct isn’t alleged in his indictment.

But contrary to Coleman’s claim, the word alters or altered isn’t one of

the terms the trial court used in defining trafficking in the charge.

Coleman complains the charge includes the word possession too

when his indictment did not. We can’t say the same thing, however, about

the trial court’s decision to include the word possession in the charge.

While that true, the word possession isn’t included in the definition of

trafficking. Instead, possession appears in two places in the charge, first

in the instructions section, where the trial court explains that Coleman

is accused of “Illegal Possession or Transfer of EBT Benefits.” It appears

a second time in the applications section of the charge. There, the trial

court instructs the jury that if it has found Coleman guilty of the

32 elements of SNAP card fraud, “then you will find the defendant guilty of

the offense of Illegal Possession/Transfer of EBT (Electronic Benefit

Transfer Card) benefits.” In both of these places in the charge, the trial

court uses the word as nothing more than a noun in the name of an

offense. But as some say, “[w]hat’s in a name? That which we call a

rose[.]” 44 In defining an offense by a name different from the one used in

the statute, the court didn’t change the elements the State was required

to prove Coleman guilty of committing SNAP card fraud. 45

Instead, all the trial court did by labeling the crime with a name

different from the one in the statute is to have created an incidental

variance in the charge. When considering variances in a charge, the

Court of Criminal Appeals has explained that, “[a]llegations giving rise

to immaterial variances may be disregarded in the hypothetically correct

[jury] charge, while allegations giving rise to material variances must be

included.” 46 In Coleman’s case, the instructions and applications sections

of the charge don’t instruct the jury that trafficking includes possession

44See William Shakespeare, Romeo and Juliet, act 2, sc. 2. 45Tex. Hum. Res. Code Ann. § 33.011. 46Hernandez v. State, 556 S.W.3d 308, 313 (Tex. Crim. App. 2017)

(cleaned up). 33 of SNAP cards or SNAP benefits. So we conclude that labeling what we

have called SNAP card fraud as “Illegal Possession/Transfer of EBT

Benefit Transfer Card Benefits” is nothing more than an immaterial

variance in the charge. Because the charge did not allow Coleman’s

conviction on evidence of possession of another’s SNAP card and instead

just gave the offense a name different from the one used in the statute,

the variance is one that must be disregarded.

Coleman’s remaining complaint about the charge enlarging on the

allegations in his indictment is that the charge allowed the jury to

consider whether he was stealing SNAP benefits when the indictment did

not include any allegations that claimed theft. As a practical matter, the

terms in the indictment—use, transfer, and redeem—don’t imply

transactions that occurred without the consent of a card’s authorized

user. For example, the term use commonly implies that an object was

used for a practical purpose, which for food stamps is the exchange of

benefits on a card by the card’s authorized user for eligible food.47 We

47See Use, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2523 (2002) (explaining that the term use “stresses the practicality of the end, result, or purpose for which something is employed”); 7 C.F.R. 2747(a) (“Eligible food. Program benefits may be used only by the household, or other persons the household selects, to purchase eligible food for the 34 have already discussed the common meanings of transfer and redeem,

and both terms typically refer to consensual exchanges, not exchanges

that occur without a party’s consent.

Even though the trial court’s definition of trafficking included the

term stealing, we conclude the jury didn’t find Coleman guilty on a theory

he was stealing SNAP cards or SNAP benefits given the evidence before

the jury in the trial. The testimony in the trial shows that Coleman

bought SNAP cards from others at a discounted value for cash. Nothing

in the record suggests that he took SNAP cards from others without their

authorization or their consent. The State also never claimed that any of

the SNAP cards Coleman used were stolen.

For example, in opening statement the prosecutor told the jury:

You will also hear evidence as to why these other individuals sold their benefits. You will hear that oftentimes that Food Stamp benefits are sold for 50 cents on the dollar. So if you get $500 of Food Stamp cards, Mr. Coleman paid $250 for them. That person would take that money and use it for whatever purposes, we don’t know, and then he [referring to Coleman] would go basically fund food in his restaurant for 50 cents on the dollar and increase his profit margins.

household, which includes, for certain households, the purchase of prepared meals[.]”) (Lexis Advance through the June 1, 2023 issue of the Federal Register). 35 The evidence before the jury in Coleman’s trial ties Coleman to the

SNAP cards he bought and to his account at Sam’s. Four witnesses

testified they sold their SNAP benefits to Coleman at a discount for cash,

all of whom later pleaded guilty to SNAP card fraud. One witness

testified she gave Coleman her card knowing that he intended to use it

to buy food for his restaurant.

Testimony and exhibits before the jury show that Coleman was

seen at Sam’s during an undercover operation conducted by the

Commission. The evidence gathered in the investigation includes

undercover videos, which show Coleman coming out of Sam’s on days he

bought food there. The Commission used records its investigators

obtained from Sam’s to tie Coleman’s purchases at Sam’s, to his use of

SNAP cards issued by the Commission, and then back again through

Sam’s records to the individuals SNAP cards to show their cards were

being used by Coleman to make purchases at Sam’s. In-store cameras

from Sam’s, which depict Sam’s point-of-sale registers, show Coleman

purchasing items at register numbers tied to Coleman’s Sam’s card.

Transactions on Coleman’s Sam’s card were then tied to merchandise

Coleman purchased with SNAP cards, which he had purchased at a

36 discount for cash. Some of the transactions at Sam’s occurred on days

when the Commission was watching Coleman outside Sam’s, where the

Commission’s investigators saw Coleman load his vehicle with food,

which he then delivered to his restaurant.

In closing argument, the prosecutor emphasized the State’s overall

theme—that Coleman had knowingly redeemed the SNAP cards benefits

of others at a discount in return for SNAP cards, which based on the

regulations applicable to the SNAP program he was not authorized to

use. Still, we concede that the State mentioned stealing twice during its

closing argument. In the opening section of the State’s closing argument,

the State’s attorney argued:

What is the importance of this statute? This statute addresses a theft of your tax dollars. Our tax dollars are paying for the food that Mr. Coleman produces on a daily basis at his restaurant. We held the people responsible that sold their food stamps to Mr. Coleman. We are collecting the restitution for the money they received. None of these individuals would have done this were it not for the fact that Mr. Coleman was willing to buy their food stamps. He - - Mr. Coleman needs to be held [to] respond for his conduct and his greed. The stealing of tax dollars affects all American, and it must be stopped. As you’re your elected District Attorney, I pledge to continue to fight and protect your tax dollars.

In the final part of closing argument, the State’s attorney argued

the term not authorized by law “appears in the charge and in the 37 indictment. And that not authorized by law refers back to Federal law.”

Then the State’s attorney argued that under federal law, trafficking

means the “buying selling, stealing or [ ] exchanging those food stamp

benefits.” 48 In the next sentence, the State’s attorney concluded: “So, no

buying or selling or giving away your food stamp cards in any manner

not authorized as determined by the Federal government and as adopted

by the Federal government.”

Thus, while it’s true that the prosecutors briefly argued that

Coleman was stealing the taxpayers’ money, the indictment didn’t allege

he was stealing SNAP cards or SNAP benefits. Except for the brief

argument that we have mentioned, to which Coleman didn’t object—and

an argument that didn’t concern Coleman’s use, transfer, or redemption

of SNAP cards and SNAP benefits as alleged by Coleman’s indictment—

the State’s theme in the trial focused on Coleman’s unauthorized

redemption of SNAP benefits for cash, the transfer by others of their

48Of course, we recognize it’s not the simple exchange of food stamp benefits that violates the law, it’s exchanging them in a manner that violates the law. Although the prosecutor left off the phrase “manner that violates the law” in this sentence of his argument, the trial court didn’t leave off the restrictive clause—not authorized by law—which restricts the scope of the statute to a use, transfer, or redemption that violates the regulations applicable to the SNAP program in its charge. 38 SNAP cards to him in return, and his use of the SNAP cards he purchased

to buy food. So the harm Coleman argues he suffered from the error the

trial court committed by including the word stealing in the charge is

theoretical, given the evidence and focus of the trial on Coleman’s use,

transfer, and redemption of the SNAP cards in a manner that violated

federal law.

In conclusion, Coleman was indicted for conduct authorizing his

conviction under alternate methods for committing one offense, SNAP

card fraud. Therefore, the jury’s verdict finding him guilty must stand “if

the evidence is sufficient to support a finding under any of the theories

summitted.” 49 Despite the fact the trial court erred by including stealing

as a form of trafficking in the charge, we cannot fairly conclude Coleman

was actually harmed by that error given the lack of evidence showing he

49See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) (cleaned up) (explaining that when a jury finds a defendant guilty “on an indictment charging alternate methods of committing the same offense, the verdict stands if the evidence is sufficient to support a finding under any of the theories submitted”); Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (explaining that when the evidence is sufficient to support a conviction under at least one theory of the offense, the harmfulness of error in the charge is measured against the likelihood the jury’s verdict is based on a theory not affected by the erroneous parts of the charge). 39 was stealing SNAP benefits or cards and the overwhelming evidence

showing that Coleman was guilty of redeeming, transferring, and using

the SNAP cards and benefits of others in a manner not authorized by

federal law. 50 We overrule Coleman’s second issue.

Accomplice-Witness Instruction

In Coleman’s third issue, he argues that since the State called five

co-conspirators to testify against him in the trial, the trial court should

have included an accomplice-witness instruction in the charge. On

appeal, Coleman acknowledges that because he didn’t object to the trial

court’s failure to include the instruction in the charge, he must show he

suffered egregious harm from the instruction’s omission. 51

A Texas statute requires that a defendant’s conviction be

“corroborated by other evidence tending to connect the defendant with

the offense committed” when it is based on testimony from an accomplice

witness. 52 Coleman argues the five witnesses who testified that they

50Sanchez, 376 S.W.3d at 775. 51See Zamora v. State, 411 S.W.3d 504, 513-14 (Tex. Crim. App.

2013) (explaining that if an accomplice-witness instruction is required, the failure to include it in the charge is analyzed for egregious harm if the trial court’s error wasn’t properly preserved). 52Tex. Code Crim. Proc. Ann. art. 38.14; see Druery v. State, 225

S.W.3d 491, 498 (Tex. Crim. App. 2007). 40 either sold him or gave him their SNAP cards were accomplices to the

SNAP card fraud with which he was charged as a matter of law.

The State proved that five of the witnesses that it called to testify

took part in Coleman’s scheme, and that as a result, each had been

convicted for their part in the scheme. 53 The law in Texas under the facts

at issue is clear: “When there exists no doubt as to the character of a

witness as an accomplice as a matter of law the court is under a duty to

so instruct the jury.”54 The State’s theory was that the five witnesses who

sold or gave their SNAP cards to Coleman were involved in Coleman’s

scheme. We hold the trial court erred in failing to include an accomplice-

witness instruction in the charge.

In general, an accomplice-witness instruction informs the jury that

(1) a conviction cannot be had upon the uncorroborated testimony of an

accomplice, (2) evidence is sufficient to corroborate the testimony of an

accomplice if it tends to connect the defendant with the commission of the

offense, but (3) is insufficient to corroborate the testimony of an

53Tex.Penal Code Ann. § 33.011. 54Burns v. State, 703 S.W.2d 649, 651 (Tex. Crim. App. 1985).

41 accomplice if it merely shows the offense was committed. 55 Yet when the

egregious harm standard applies in the appeal, the trial court’s error in

omitting the instruction may be rendered harmless if the record before

the jury includes evidence from sources that aren’t accomplice witnesses

when that other evidence fulfills the purpose an accomplice-witness

instruction would have served. 56

Under the egregious harm standard, the omission of an accomplice-

witness instruction is generally harmless unless the non-accomplice

evidence that corroborates the accomplice witness’s testimony is “so

unconvincing in fact as to render the State’s overall case for conviction

clearly and significantly less persuasive.” 57 In Coleman’s case, there was

an overwhelming amount of non-accomplice witness evidence before the

jury, evidence that included (1) point-of-sale receipts, (2) surveillance

videos, (3) evidence resulting from a search of Coleman’s restaurant, (4)

records of SNAP card use by SNAP card numbers and dates tied to

55See Tex. Code Crim. Proc. Ann art. 38.14; see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Instruction—Accomplice Witness Testimony—Accomplice as a Matter of Law PJC § 3.3 (2018). 56Herron v. State, 86 S.W.3d 621, 632-33 (Tex. Crim. App. 2002). 57Id.

42 Coleman’s Sam’s account, and (5) testimony from investigators employed

by the Commission.

The non-accomplice evidence tied Coleman directly to the

unauthorized redemption, transfer, and use of SNAP benefits in a

manner not authorized by law. On this record, nothing supports doubting

the reliability of the documentary evidence tying Coleman to using the

SNAP cards of others to buy items at Sam’s. Coleman’s third issue is

overruled.

Conclusion

We hold the indictment and the discovery available to Coleman

provided Coleman with adequate notice by other means of the State’s

theory that he was knowingly redeeming, transferring, and using SNAP

benefits in a manner that violated the law applicable to the SNAP

program. We also hold that Coleman wasn’t egregiously harmed by the

alleged error in the charge. Last, we conclude Coleman wasn’t

egregiously harmed by the trial court’s error in failing to include an

accomplice-witness instruction in the charge.

43 Accordingly, the trial court’s judgment is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on October 14, 2022 Opinion Delivered July 12, 2023 Publish

Before Golemon, C.J., Horton and Johnson, JJ.