Lett, Michael Louis v. State

• Court: Court of Appeals of Texas
• Decided: February 5, 2013
• Docket: 05-11-01436-CR
• Status: Published

Opinion

Aflirmed and Opinion Filed February 5, 2013

In The QIønrt nf ptnmh .FifI1i District of &ii JaI1a No. 05-11-01436-CR

MICHAEL LOUIS LETT, Appellant

V.

r1HF STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 7 Dallas County, Texas Trial Court Cause No. Ml0-26256-H

MEMORANDUM OPINION Before Justices LangMiers, Myers, and Lewis Opinion by Justice Lewis A jury convicted Michael Louis Lett of indecent exposure. The trial court assessed his

punishment at 180 days’ confinement, probated for one year. and a 5750 fine. In a single issue,

appellant contends the evidence is insufficient to support his conviction. Because the dispositive

issue is clearly settled in law, we issue this memorandum opinion. See TEx. R. App. P. 47.4. We

affirm the trial court’s judgment.

The complaining witness in this case was a woman studying to be a respiratory therapist.

She was enrolled in a clinical rotation at Baylor Medical Center at Garland, also called Baylor

Garland. Appellant was her instructor. Appellant was charged by information with exposing his genitals and masturbating in the presence ui the coinplai ning witness “in a puhlic medical center

located in the 1 30() hiuck of Marie Curie Blvd.. [)allas, l)allas County. Texas.’’ 1-lowever, the

detectiVe invesIigatng the complaint against appellant testifled:

Q. And she said this took place in a hospital?

A. Yes, ma’am. Baylor Garland hospital.

Q. is that located in Dallas?

A. Dallas County, City of Garland.

Q. Okay. Is that also in Texas?

A. Yes, ma’am.

Thus, the evidence at trial established that the “public medical center” described in the

information was located in the city ot Garland. not Dallas. Garland is in fact located in Dallas

County, Texas. And appellant acknowledges the street address given in the information is ihe

correct streel address ftr Baylor Garland hospital. Thus, the only error in the description of the

location of the offense was the city in which the hospital was located. Appellant argues that

“[b]ecause the State chose to plead that the offense occurred in Dallas, Texas, [it was] required to

prove that it occurred in Dallas, Texas.” In the absence of such proof. appellant contends, the

evidence is insufficient to support his conviction.

We determine whether the evidence is sufficient to support a conviction by asking

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Johnson c. State, 364 S.W.3d 292, 293—94 (Te. 2012). We identify the essential elements of

the crime by looking to the hypothetically correct jury charge for the case. Clinton i’. State, 354

S.W.3d 795, 799 (Tex. Crim. App. 2011). A hypothetically correct jury charge accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proot’ or restrict the State’s theories of I iabi I itv. and adequateI describes the particular offense

for which the dcflndant vas tried, hi.

Appellants snl’ficiencv issue invokes the law of variance .A variance occurs when a

discrepancy exists bet\\een the facts alleged in the charging instrument and the proof ofkred at

trial. Go//thur i’. iuie. 46 S.W.3d 243, 246 (i’ex. Crim .App. 2001). The Texas Court of

Criminal Appeals has held that—when faced with a sufficiency of evidence claim based upon a

variance between the charging instrument and the proof—only a material variance will render

the evidence insufficient, Id. at 257. Allegations giving rise to immaterial variances may he

disregarded in the hvpotheticaHy correct jury charge, but allegations giving rise to material

variances must he included, Id To determme s hether a variance is material we ask whether the

indictment inlhrmcd the defbndant of the charge a ainst him sufficiently to allow him to prepare

an adequate defnsc at trial and whether the indictment would subject the deftmdant to the risk of

being prosecuted later fir the same crime, hi. at 258.

In this case, appellant acknowledges that his appeal involves a non—statutory variance,

because the municipality where an offense occurred is not an element of the offense of indecent

t When a variance involves non-statutory allegations we tolerate “little mistakes,” so exposure.

long as they do not prejudice the defendant’s substantial rights. Johnson, 364 S.W.3d at 295.

We must be sure, though. that the proof at trial does not show an entirely different offense than

the one alleged in the charging instrument. Id.

l’he elements of the olTense of’ indecent exposure are: (I) a person (2) exposes his anus or ally part of his genitals (3) with intent to arouse or gratify the sexual desire of any person. and (4) he is reckless about whether another is present who will be offended or alarmed by his act. State v. York. 31 S.W.3d 798. 802 (‘fex. App.—Dallas 2000. pet. ref’d); see a/so TEN. Pisal Coor ANN. §21.08(a) (West 2011). Appellant does not challenge the sufficiency of the evidence to support any of these elements.

-a- Our review of the record in this case establishes that the variance in the name of the city

in which the hospital was located was immaterial. The information included the correct street

address, count, and state for the hospital. Appellant’s defense was that the complaining witness

fabricated the story she told about him exposing himself to her, This defense was not tied to the

hospital’s location in any way, and we see no evidence that the variance caused appellant any

confusion in preparing his delense for trial. Moreover, the record is replete with references to

“Baylor Garland’’ as the location ol the alle!ed offense and the location of the practicum class

taught by appellant. We envision no possibility of appellants being prosecuted a second time

br the same offense based on the variance. Because naming the incorrect city gave rise only to

an immaterial variance in this case, it may be disregarded in the hypothetically correct jury

charge. See Gollihar, 46 S.W,3d at 257. Appellant’s sufficiency challenge does not address any

essential element of the indecent-exposure oflense. Accordingly we overrule his single issue.

We affirm the trial court’s judgment.

DAVID LEWIS JUSTICE

11 1436F.U05

-4- (tiiirt of Appcab Fift1 itrirt uf ixa at Ja11a JUDGMENT

Michael Louis Leti, Appellant On Appeal Irom the County Criminal Court No. 7. Dallas County, Texas No. 051 lMl436CR Trial Court Cause No. M l0262564I, Opinion delivered by Justice Lewis. The State of Texas, Appellee Justices Lang-Miers and Myers participating.

Based on the Courts opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this day of February, 2013.

/L 4 D AVID LEWIS JUSTICE