Briscoe v. State

HERBERT BRISCOE, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-19-00467-CR

State of Texas in the Fourteenth Court of Appeals

May 18, 2021

On Appeal from the 183rd District Court Harris County, Texas

Trial Court Cause No. 1610468

MEMORANDUM OPINION

Appellant Herbert Briscoe was charged by indictment with aggravated assault and entered a plea of not guilty. He was tried by a jury, found guilty, sentenced to ten years' confinement, and assessed a $5,000 fine. Appellant filed a timely motion for new trial and a timely notice of appeal. He raises four issues on appeal. For the reasons below, we affirm.

BACKGROUND

Complainant, Marvin Hart, testified he was shot after he left a concert in midtown Houston the night of December 30, 2016. Evidence at trial included: (1) a Mac-10 recovered at the scene that fired .45-caliber bullets, (2) Appellant's DNA thereon, (3) sixteen .45-caliber shell casings found near Appellant's vehicle, (4) Complainant's testimony that he was shot in the buttock, (5) a .45-caliber projectile retrieved from Complainant's backside on the night in question that could have been fired by the Mac-10, (6) video surveillance of the incident, (7) Appellant's testimony that in said video, he saw himself firing his weapon towards Complainant as Complainant and two other men were walking past Appellant's car, (8) Appellant's admission that he shot in Complainant's direction as Complainant was walking away, (9) Appellant's admission that he understood what it entailed when he shot in the direction of someone he "perceived to be a threat", (10) Appellant's admission that he knew a firearm was a deadly weapon, and (11) Appellant's admission that "he would do it all over again" because he believed he "made the right decision". Appellant also testified he shot at Complainant in self-defense because Complainant and "his crew" assaulted Appellant earlier that evening, stabbed him, and stole cash from him.

Appellant was indicted for aggravated assault by causing bodily injury by shooting in Complainant's direction with a firearm. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2). Specifically, the State alleged Appellant "unlawfully intentionally and knowingly cause[d] bodily injury to Marvin Hart, hereinafter called the Complainant, by shooting in the direction of the Complainant, and the Defendant used and exhibited a deadly weapon, namely a firearm."

The jury charge¹ deviated from the indictment in two respects. First, itexpanded the applicable mens rea to include recklessness (in addition to intentional and knowing mens rea). Second, it altered the manner and means of committingthe offense as alleged in the indictment from causing bodily injury by shooting in the direction of Complainant to causing bodily injury by shooting Complainant. The State (to its credit) openly acknowledges both deviations.

Appellant raises four issues on appeal, arguing (1) he was denied due process "by the trial court's amendment of the indictment in the court's instructions to the jury"; (2) the evidence was legally insufficient based on a fatal variance to support his conviction; (3) the trial court abused its discretion by refusing to hold a hearing on his motion for new trial; and (4) the trial court abused its discretion by denying his motion for new trial based on ineffective assistance of counsel.

ANALYSIS

I. Sufficiency of the Evidence

We begin our analysis by addressing Appellant's legal sufficiency challenge he raises in his second issue.² He contends the "evidence is legally insufficient based on a variance between the court's charge to the jury and the indictment."

A. Standard of Review and Governing Law

In a legal sufficiency review, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018). Our sufficiency review does not rest on how the jury was actually instructed in the jury charge; rather, we assess a sufficiency challenge against the elements of the charged crime. See Ramjattansingh, 548 S.W.3d at 546(citing Musacchio v. United States, 577 U.S. 237, 243 (2016)).

The Court of Criminal Appeals "set forth the modern Texas standard" for ascertaining what the elements of the charged crime are in Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Id. To determine whether the State has met its burden to prove a defendant guilty beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge for the case to the evidence adduced at trial. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); Malik, 953 S.W.2d at 240. A hypothetically correct jury "charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.2d at 240.

The "law as authorized by the indictment" means the statutory elements of the offense as modified by the charging instrument. Ramjattansingh, 548 S.W.3d at 546. When a Texas statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Id. at 547; Thomas, 444 S.W.3d at 8; see also Cada v. State, 334 S.W.3d 766, 773-74 (Tex. Crim. App. 2011). Although a hypothetically correct jury charge does not necessarily have to exactly track all of the allegations in the indictment, whether an unproved allegation is to be included in the hypothetically correct jury charge is determined by whether or not the variance between the allegation and proof is "material." Ramjattansingh, 548 S.W.3d at 547-48.

A "variance" occurs when there is a discrepancy between the allegations in the indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011); see also Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim. App. 2001). There are two types of variances in a legal sufficiency analysis: material variances and immaterial variances. Thomas, 444 S.W.3d at 9. Immaterial variances do not affect the validity of a criminal conviction, and a hypothetically correct jury charge need not incorporate allegations that would give rise to only immaterial variances. Id. But a "material" variance, one that prejudices a defendant's substantial rights, will render the evidence insufficient. Ramjattansingh, 548 S.W.3d at 547. This occurs when the charging instrument, as written, (1) fails to sufficiently inform the defendant of the charge against him to allow him to prepare an adequate defense at trial, or (2) subjects the defendant to the risk of being prosecuted later for the same crime. Id.

The Court of Criminal Appeals has recognized three different categories of variance: (1) "a statutory allegation that defines the offense, which is either not subject to a materiality analysis, or, if it is, is always material"; (2) "a non-statutory allegation that is descriptive of an element of the offense that defines or helps define the allowable unit of prosecution, [which is] sometimes material"; and (3) "a non-statutory allegation that has nothing to do with the allowable unit of prosecution, [which is] never material". Id. In a sufficiency review, courts "tolerate variances as long as they are not so great that the proof at trial 'shows an entirely different offense' than what was alleged in the charging instrument." Id. (quoting Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012)).

B. Variance

Appellant contends the evidence is legally insufficient to support his conviction because there is a fatal variance between the indictment and the actual charge given to the jury. He contends "the indictment alleged that Appellant intentionally and knowingly caused bodily injury to the complainant by shooting in his direction with a firearm" but the actual jury charge "authorized his conviction ifhe caused bodily injury by shooting [Complainant] with a firearm" which are "[t]wo distinct manner [and] means of committing an offense." We reject Appellant's argument for several reasons.

First, Appellant misunderstands the variance doctrine. As we have stated, a variance occurs when there is a discrepancy between the allegations in the indictment and the proof offered at trial. Byrd, 336 S.W.3d at 246; Gollihar, 46 S.W.3d at 246. Therefore, to determine whether a variance occurred, we compare the indictment and the proof presented at trial; we do not compare the indictment and the actual jury charge given. See Ramjattansingh, 548 S.W.3d at 546; Root v. State, 615 S.W.3d 920, 927 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd).

Second, when comparing the charging instrument and the evidence presented at trial, we cannot conclude there is a variance in this case because the State proved what it alleged in the indictment, namely that Appellant "unlawfully, intentionally and knowingly cause[d] bodily injury to . . . Complainant, by shooting in the direction of the Complainant, and the [Appell]ant used and exhibited a deadly weapon, namely a firearm." The surveillance video presented at trial showed Appellant pointing a firearm and then firing it in Complainant's direction. Evidence also showed that Complainant was hit and injured by a bullet consistent with the bullets that were in Appellant's firearm. Further, Appellant admitted he shot in Complainant's direction as Complainant walked away and "would do it all over again" because he believed he "made the right decision". Additionally, Appellant's testimony that he shot Complainant in self-defense shows that Appellant intentionally and knowingly caused Complainant bodily injury when he...