Michelle Statler v. State ( 2005 )

                             NUMBER 13-04-120-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

MICHELLE STATLER,                                                Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                   On appeal from the 36th District Court

                        of San Patricio County, Texas.

          CONCURRING MERMORANDUM OPINION^[1]

                   Before Justices Yañez, Castillo, and Garza

          Concurring Memorandum Opinion by Justice Castillo  

Appellant Michelle Statler raises two issues on appeal:  (1) variance between the indictment and proof; and (2) legal insufficiency of the evidence to prove the essential elements of the offense.  Respectfully, I concur in the result.

I.  LEGAL SUFFICIENCY

By her second issue, Statler asserts that the evidence is legally insufficient to support the conviction. 

A.  Standard of Revew

A challenge to the legal sufficiency of the evidence and hence Statler's second issue is properly reviewed under the standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979).^[2]  A legal‑sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict, and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson, 443 U.S. at 319); see also Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc).  This standard is meant to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts."  Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).  We consider all the evidence that sustains the conviction, whether properly or improperly admitted.  Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (en banc)).  Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc).  In this review, we are not to reevaluate the weight and credibility of the evidence, but rather, we act only to ensure that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).

B.  Hypothetically Correct Jury Charge

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted.  Id.  We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson, 443 U.S. at 319.  If we reverse a criminal case for legal insufficiency, we reform the judgment of conviction to reflect conviction for a lesser offense only if a jury charge on the lesser offense was either submitted or requested, but denied.  Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999).  Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal.  Swearingen, 101 S.W.3d at 95.

A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof.  Malik, 953 S.W.2d at 240; Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).  A hypothetically correct jury charge would not simply quote from the controlling statute.  Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001).  Its scope is limited by the statutory elements of the offense as modified by the charging instrument.  See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence. See Gollihar, 46 S.W.3d at 252. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error.  Gollihar, at 254-55. 

C.  Elements of the Offense

A hypothetically correct jury charge would instruct the jury that a person commits an offense of credit or debit card abuse if she receives a benefit that she knows has been obtained in violation of Texas Penal Code section 32.31.  See Tex. Pen. Code Ann. _ 32.31(b)(3) (Vernon Supp. 2004-05).

D.  Disposition

 Here, the authorized bank-card holder testified that the bank card could be used both as a debit and a credit card.^[3]  He unequivocally testified that one transaction "was handled as a debit." The evidence showed that, whether a "debit check card" or a "credit card," the bank card was tied to a single account number, and Statler's unauthorized expenditures were billed to that account number.  Evidence further showed that Statler obtained goods without the effective consent of the cardholder. Viewedin the light most favorable to the verdict against a hypothetically correct jury charge, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Thus, I agree that the evidence is legally sufficient and, accordingly, the second issue should be overruled.  

II.  FATAL VARIANCE

By her first issue, Statler asserts that the variance between the indictment and the proof at trial is fatal to the conviction. 

A.  Standard of Review

An argument that there is a material variance between the proof adduced at trial and the indictment,^[4] on the other hand, first requires an examination of whether there is a variance, Gollihar, 46 S.W.3d at 246, and then, if there is a variance, an examination of the materiality of the variance.  Id. at 257-58.  Some courts have viewed a variance claim as a notice issue and others as a sufficiency issue, although the court of criminal appeals has more consistently reviewed the issue as one of sufficiency.^[5]  Id. at 247.  However, even when viewed as a sufficiency question, a variance claim is subject to an additional materiality analysis which is not required under a traditional sufficiency of the evidence review.  Id. at 247 n.7.  Only a material variance will render the evidence insufficient.  Id. at 257.

B.  Discussion

In this case, the prosecution's failure to prove "a debit check card" exactly as alleged in the indictment does not render the evidence insufficient under the hypothetically correct jury charge of the offense under section 32.31(b)(3).  The variance between the indictment and the proof is also immaterial.  There is no indication in the record that Statler did not know the bank card could be used as both a credit and debit card or that she was surprised by the proof at trial.  See Gollihar, 46 S.W.3d at 257.  Further, the variance does not subject Statler to another prosecution for the same offense.  See id. As there was no material variance because the bank card was both a debit and credit card, I agree that the first issue should be overruled.

III.  CONCLUSION

With these comments, I concur in the result.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Concurring Memorandum Opinion delivered and filed

this 7th day of July,  2005.

---

^[1] See Tex. R. App. P. 47.2, 47.4.

^[2] I note that  Statler's second issue complains generally that the evidence is insufficient to support the conviction, without specifying whether the challenge was to the legal or the factual sufficiency of the evidence.  However, as her challenge specifically relates to the sufficiency of the evidence in light of the alleged variance between the evidence and the indictment as to proof of the existence of the card used, I read this solely as a challenge to the legal sufficiency of the evidence.  See Gollihar v. State, 46 S.W.3d 243, 246-49 (Tex. Crim. App. 2001) (discussing how variance claims have been treated as an evidentiary question under the Jackson v. Virginia standard).

^[3] The bank-card holder testified as follows on cross-examination:

Q:  Okay. Now, there has been some discussion on whether or not the items that she purchased particularly over in the HEB that day, whether or not they were on a debit or a credit.  Do you understand the difference?

A:  Yes.

Q:  Tell me the difference.

A: The difference is one is a credit card and the other one is a debit which is debit[ed] to your account.  In this case a debit credit card which was issued by my bank is both.  It's a credit card and it's a debit card.

^[4] Statler also argues that there was a material variance between the evidence and the jury charge; however, the variance doctrine relates to variances between the evidence and the charging instrument.  Gollihar, 46 S.W.3d at 246.

^[5] The court of criminal appeals has noted that a defendant could also raise a pure notice claim  apart from a variance/sufficiency claim, Gollihar, 46 S.W.3d at 257 n.24, but Statler has not done so in the present case.