Opinion issued January 7, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00117-CR

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TEODORO ESCOBAR ROBLES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1161114

MEMORANDUM OPINION

Appellant, Teodoro Escobar Robles, was convicted of aggravated robbery, a first degree felony, and sentenced to life imprisonment. On appeal, appellant argues in his single point of error that the evidence was legally insufficient to support the jury's verdict. Appellant contends that a fatal variance existed because the indictment referred to the complainant as "Ali Abid," when the evidence adduced at trial showed his name was in fact "Abid Ali." Because we hold that the variance was not material, we overrule appellant's single point of error and affirm the judgment of the trial court.

BACKGROUND

Abid Ali was leaving his home in the early morning on April 4, 2008 when four armed men approached him near his garage. The assailants forced Ali inside the house where his wife, three children, and 87-year-old father were all still asleep. Ali was then brought upstairs where his wife and children were being held at gunpoint. The gunmen bound the family with duct tape, threatened to kill them, and demanded valuables. Ali's eldest daughter had managed to call 9-1-1 before being discovered, and the assailants attempted to flee when they heard the police arriving.

Officer A. Daugherty was the first to respond to the 9-1-1 call. As he approached the rear gate, three men carrying pillow cases exited the house and began running. Officer Daugherty pursued two of the suspects who jumped the rear fence, but saw the third suspect jump the northbound fence.

Shortly thereafter, a K-9 officer, Deputy T. Lauder, arrived on the scene and located appellant hiding behind a fence two houses down from Ali's residence. Ali and his daughter identified appellant as one of their attackers, and police found a watch and a wallet on appellant that belonged to Ali.

Appellant was subsequently indicted for aggravated robbery and the case proceeded to trial. The indictment transposed Ali's first and last names, referring to him as "Ali Abid." The State, however, noticed the error and received permission from the trial court to correct the name in the jury charge during the guilt-innocence phase. Counsel for appellant stated at that time that he had "no objection" to the change. The jury found appellant guilty and assessed punishment at confinement for life. The trial court entered judgment on the verdict, and appellant timely filed his notice of appeal.STANDARD OF REVIEW

In his single point of error, appellant contends that the evidence was legally insufficient to support his conviction because the prosecution failed to prove the victim's name as alleged in the indictment. When analyzing a claim of legal insufficiency, we examine all evidence in the light most favorable to the prosecution and will uphold the conviction if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

"[W]hen faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a 'material' variance will render the evidence insufficient." Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). A reviewing court is to measure the evidentiary sufficiency against the "elements of the offense as defined by the hypothetically correct jury charge." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard is to be applied even in the absence of an allegation of error in the jury charge. See Gollihar, 46 S.W.3d at 255. Immaterial variances may be disregarded, but material variances must be included in the hypothetically correct jury charge. Id. at 257.

MATERIALITY OF VARIANCE

A variance is material (1) when it fails to inform the defendant of the charge against him so that it deprives him of the ability to present an adequate defense, or (2) when it may subject the defendant to double jeopardy. See Gollihar, 46 S.W.3d at 257 (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).

"[T]he 'law' as 'authorized by the indictment' must be the statutory elements of the offense . . . as modified by the charging instrument." Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000). Appellant was convicted of aggravated robbery, which is defined as intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death while using or exhibiting a deadly weapon during the course of committing a theft with the intent to obtain or maintain control over the property. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). The victim's name is not a required element of the offense. However, the indictment must identify the offense with sufficient specificity so as to bar future prosecution for the same offense. Tex. Code Crim. Proc. Ann. art. 21.04 (Vernon 2009).

A variance between the indictment and the proof alleged at trial would be material if the accused did not know whom he was accused of injuring or if he was surprised by the proof presented at trial. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002). When, as here, a non-statutory fact alleged in the indictment differs from a fact proven at trial, a material variance between the two facts will compel acquittal. See id. at 256–57. However, there is no indication in the record, and appellant makes no argument on appeal, that he was in any way misled as to the identity of the person he was being charged of robbing. He also never suggested any surprise when the State requested to change the name of the victim used in the indictment when creating the jury charge. An objection to the jury instructions must be made before the final charge is read to the jury, and cannot be raised for the first time on appeal. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007); Seefurth v. State, 422 S.W.2d 931, 935 (Tex. Crim. App. 1967). We therefore hold that the variance here did not deprive appellant of fair notice so as to mandate acquittal.

A variance may also be deemed material if it could subject the defendant to the possibility of being tried twice for the same crime. Gollihar, 46 S.W.3d at 257. When protecting against double jeopardy in the event of subsequent prosecution, a court may refer to the entire record and is not restricted to the language used in the indictment. Id. at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir.). In this case, the State, without objection by appellant, amended the jury charge to correct Ali's name. Appellant is in no danger of being prosecuted again for the aggravated assault against Ali occurring in April 2008. The variance is therefore immaterial on this ground as well.

The evidence in the case showed that appellant took Ali's property at gunpoint after threatening to kill Ali and his family. Appellant does not challenge the sufficiency of the evidence to prove the elements of aggravated robbery and the evidence is legally sufficient.

CONCLUSION

Because the variance did not deprive appellant of fair notice of the charges against him, nor will it subject him to subsequent prosecution for the same crime, we hold that it was immaterial. An immaterial variance is disregarded in a sufficiency of the evidence review and is not included in the hypothetically correct jury charge. Gollihar, 46 S.W.3d at 257. The evidence presented at trial was legally sufficient to prove the elements of aggravated robbery. Accordingly, we overrule appellant's sole point of error and affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

Do not publish. Tex. R. App. P. 47.2(b).