NUMBER 13-22-00256-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG

OSCAR OSVALDO BARAJAS JR. A/K/A OSCAR OSVALDO BARAJAS, Appellant, v. THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of Aransas County, Texas.

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Silva and Peña Memorandum Opinion by Chief Justice Contreras Appellant Oscar Osvaldo Barajas Jr. a/k/a Oscar Osvaldo Barajas was convicted of aggravated assault with a deadly weapon, a second-degree felony, and deadly conduct by discharge of a firearm, a third-degree felony. See TEX. PENAL CODE ANN. §§ 22.02(a)(2), 22.05(b)(2). He was sentenced to concurrent ten- and five-year prison terms for the respective offenses. On appeal, Barajas argues: (1) a material variance existed between the indictment and the proof at trial regarding the aggravated assault offense, rendering the evidence legally insufficient to support conviction; and (2) the court erred by submitting the aggravated assault charge to the jury. We affirm.

I. BACKGROUND An Aransas County grand jury returned an indictment alleging that Barajas, on or about September 27, 2021: (1) “intentionally, knowingly[,] or recklessly sh[ot] Don Gaines with a firearm, and did then and there use or exhibit a deadly weapon, namely a firearm, during the commission of the assault” (Count 1); and (2) “discharge[d] a firearm at or in the direction of a habitation, and . . . was then and there reckless as to whether the habitation was occupied” (Count 2).

At trial, Gaines testified that in the early morning of September 26, 2021, he observed an argument between his neighbors Ace Montgomery and Leon Anderson outside his home in Rockport. According to Gaines, Montgomery was yelling racial slurs at Anderson and then punched him. Gaines testified that, when his son David came out of the house, David saw Anderson’s necklace on the ground next to Montgomery’s Mercedes and went to retrieve it; Montgomery then punched David. Gaines said he grabbed David and Montgomery and all three men fell into a ditch. At that point, police arrived and the parties dispersed. However, as he and his wife were trying to go back to sleep, Gaines heard a “bunch” of gunshots and “the bullets just started running in through the wall.” Gaines was shot in the foot and began bleeding profusely. He stated that the injury hurt and that it required surgery.

Fernanda Moctezuma testified she lived with Montgomery in her house across the

street from Gaines’s residence. She observed the fight between Montgomery and Anderson. At the time of the fight, Barajas was inside her house. Moctezuma stated that, when Montgomery came back inside her house after the fight, he had visible injuries, and Barajas saw those injuries. At some point, Barajas left the house and Moctezuma fell asleep. She woke up when she heard multiple gunshots which she thought were directed at her house. Later, police came to search the house and to ask about Montgomery’s whereabouts. Eventually, Montgomery returned to the house in a car driven by Juan Arguello, at which point police arrested both Montgomery and Arguello. On cross- examination, she agreed with defense counsel that Gaines, David, and Anderson “jumped” Montgomery.

Phone records introduced into evidence showed that Montgomery called Barajas at 4:30 a.m.—around eight minutes before the shooting occurred. Investigation also revealed that Montgomery called Arguello at around 5:54 a.m. and again at around 6:08 a.m. Arguello testified that he went to pick up Montgomery at Barajas’s house at around 6:00 a.m. When he went inside Barajas’s bedroom, he saw a black “assault rifle” against a wall. He then brought Montgomery back to Moctezuma’s house, where he and Montgomery were arrested.

Barajas’s roommate Clayton Lambert testified that he saw Barajas with a black “AR” when Barajas moved in with him in around March of 2021. Lambert conceded that he told police on September 28, 2021, that Barajas “said he was going to dip out because things were getting hot.” Police impounded Barajas’s black BMW, which was parked outside Lambert’s house. A search of the BMW revealed two .223-caliber shell casings, which were consistent with having been fired from an assault rifle.

Barajas was interviewed by police after he was arrested. At first, Barajas claimed not to be involved with the shooting; then, he said he was a passenger in the car and Montgomery was the driver and the shooter. Barajas told police that Montgomery used an “AR P”—i.e., an AR pistol, which is an AR-15-style rifle modified to have a shorter barrel and no buttstock. No firearm was recovered by police.

The jury was instructed on the law of parties. See TEX. PENAL CODE ANN. § 7.02(a)(2) (“A person is criminally responsible for an offense committed by the conduct of another if[,] . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense . . . .”). It found Barajas guilty on both charges and assessed punishment as set forth above. This appeal followed.

II. DISCUSSION A. Material Variance By his first issue, Barajas contends that the evidence was legally insufficient to support his conviction for aggravated assault with a deadly weapon because there was a material variance between the allegations in the indictment and the proof adduced at trial.

His complaint stems from the fact that Count 1 of the indictment failed to explicitly allege that Gaines suffered bodily injury. See id. § 22.02(a)(2) (stating that a person commits aggravated assault “if the person commits assault as defined in [§] 22.01 and . . . uses or exhibits a deadly weapon during the commission of the assault”); id. § 22.01(a)(1) (stating that a person commits assault “if the person . . . intentionally, knowingly, or recklessly causes bodily injury to another” (emphasis added)).

In reviewing the sufficiency of the evidence to support a conviction, we consider

the evidence “in the light most favorable to the verdict” to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). Sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct jury charge “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.” Id. (citing Malik, 953 S.W.2d at 240). “The law ‘authorized by the indictment’ consists of the statutory elements of the offense as modified by the indictment allegations.” Id. “If a variance exists between the allegations and the proof, it may render the evidence insufficient to sustain the conviction.” Wray v. State, 711 S.W.2d 631, 633 (Tex. Crim. App. 1986). “In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument.” Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance requires reversal and judgment of acquittal only when it is prejudicial to a defendant’s substantive rights. Id. at 248. In determining whether substantial rights have been prejudiced, we ask (1) “whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial,” and (2) “whether prosecution under the deficiently drafted indictment would subject the

defendant to the risk of being prosecuted later for the same crime.” Id. 1 In this case, Count 1 of the indictment failed to allege all of the essential elements of aggravated assault because it did not allege that Barajas, either as a principal or as a party, caused bodily injury. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.01(a)(1). 2 Pursuant to the Texas Court of Criminal Appeals’ decision in Studer v. State, it is “possible . . . for a defendant to be convicted on the basis of an indictment that does not allege all of the elements of the offense.” Fisher v. State, 887 S.W.2d 49, 55 (Tex. Crim.

App. 1994) (first citing Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990); then citing State v. Oliver, 808 S.W.2d 492, 493–94 (Tex. Crim. App. 1991) (holding that an indictment which failed to allege a culpable mental state was still an “indictment” conferring jurisdiction, and the defect was waived); and then citing Rodriguez v. State, 799 S.W.2d 301, 302–03 (Tex. Crim. App. 1990) (same)), overruled on other grounds by

ANN. art. 1.14(b) (“If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.”). Specifically, Barajas does not argue on appeal that the indictment failed to accuse him of a crime “with enough clarity and specificity to identify the penal statute under which the State intend[ed] to prosecute” such that it would not invoke the trial court’s jurisdiction. See Duron v. State, 956 S.W.2d 547, 550–51 (Tex. Crim. App. 1997). We nevertheless observe that Count 1 of the indictment in this case, though failing to allege a “complete offense,” contains far more detail about Barajas’s complained-of conduct than the example given by the Texas Court of Criminal Appeals of a charging instrument so deficient that it might fail to invoke the court’s jurisdiction. See Teal v. State, 230 S.W.3d 172, 183 (Tex. Crim. App. 2007) (Keller, P.J., concurring) (noting that an indictment which merely reads “John Smith intentionally” would not contain “enough information to allege an offense” and would not invoke the court’s jurisdiction); see also Walker v. State, 594 S.W.3d 330, 339 (Tex. Crim. App. 2020) (“Had the indictment in this case been as deficient as the one envisioned by Presiding Judge Keller [in Teal] then we might characterize the engaging offense as the State does, as a ‘non-existent’ offense.”); Jenkins v. State, 592 S.W.3d 894, 900 (Tex. Crim. App. 2018) (holding that when an indictment potentially charges a felony but is defective, a court may refer to the indictment’s heading and other circumstances to determine whether the charging instrument effectively invokes felony jurisdiction).

Malik, 953 S.W.2d at 239–40; see Ex parte Edwards, 663 S.W.3d 614, 617 (Tex. Crim.

App. 2022) (citing Studer approvingly and noting that, under Article V, § 12 of the Texas Constitution, “an indictment is still an indictment” conferring jurisdiction on the trial court “even if it has a defect of substance”). However, where an indictment facially charges a complete offense, it is reasonable to presume the State intended to charge the offense alleged, and none other.

Consequently, where an indictment facially charges a complete offense, the State is held to the offense charged in the indictment, regardless of whether the State intended to charge that offense.

Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994); see Sierra v. State, 501 S.W.3d 179, 183 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (same); see also Kirkpatrick v. State, 279 S.W.3d 324, 327 (Tex. Crim. App. 2009) (implicitly rejecting appellant’s contention that the court of criminal appeals “retreated” from its holding in Thomason); Guerrero-Acosta v. State, No. 13-17-00560-CR, 2018 WL 5832097, at *6 (Tex. App.—Corpus Christi–Edinburg Nov. 8, 2018, no pet.) (mem. op., not designated for publication). It follows that, “when the indictment facially charges a complete offense and the State presents evidence which convicts under a different theory than that alleged,” the defendant’s due process rights are violated “because the State has failed to prove beyond a reasonable doubt every fact necessary to constitute the crime with which [the] defendant was charged.” Thomason, 892 S.W.2d at 11. In that situation, “we cannot presume a defect exists and Studer is simply not applicable.” Id. n.5. 3

Barajas argues that the indictment for Count 1 “facially alleged the complete offense of [d]eadly [c]onduct” under Texas Penal Code § 22.05(b)(1). See TEX. PENAL CODE ANN. § 22.05(b)(1) (stating that a person commits the offense of deadly conduct “if he knowingly discharges a firearm at or in the direction of . . . one or more individuals”); Thomason, 892 S.W.2d at 11. He contends that “the material variance is fatal, and therefore warrants reversal, since the evidence at trial proved an offense different than the complete offense alleged in the indictment.”

In response, the State notes that, though Count 1 of the indictment did not explicitly allege that Barajas caused Gaines to suffer bodily injury, it did specifically cite penal code § 22.02(a)(2), defining aggravated assault, in its header. The State also argues that Count did not facially allege the “complete offense” of deadly conduct under § 22.05(b) because, though it alleged that Barajas “sh[ot] . . . Gaines,” it did not allege that Barajas shot “at or in the direction of” Gaines. See TEX. PENAL CODE ANN. § 22.05(b)(1).

We agree with the State that Count 1 of the indictment did not allege the “complete offense” of deadly conduct as defined in § 22.05(b)(1) of the penal code. Count 1 alleged that Barajas “intentionally, knowingly[,] or recklessly” shot Gaines with a firearm, which would theoretically allow Barajas to be convicted even if he did not shoot “at or in the direction of” Gaines. See id. § 6.03(c) (“A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the . . . result will occur.”). 4 This is inconsistent with

4For example, a defendant could fire a gun out of a car window aimlessly, or into the air or at the ground, or while spinning the gun around on his finger. If a person is shot as a result of this action, the defendant may be guilty of assault (because he recklessly caused bodily injury to another), but not deadly conduct as defined in § 22.05(b) (because he did not knowingly discharge a firearm at or in the direction of one or more individuals). See TEX. PENAL CODE ANN. §§ 22.01, 22.05(b)(1). Moreover, under this scenario,

the statutory definition of deadly conduct under § 22.05(b), which requires the “knowing” discharge of a firearm. Id. § 22.05(b); see id. § 6.03(b) (“A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”); see also id. § 6.02(d) (classifying “knowing” mental state as relatively more culpable than “reckless”). Barajas does not suggest any other “complete offense” which Count 1 may have alleged, 5 and we observe none.

The dissent argues that an indictment alleging an “intentional, knowing, or reckless” shooting suffices to allege the “complete offense” of deadly conduct under § 22.05(b), which requires the “knowing” discharge of a firearm. By that rationale, an indictment alleging that a defendant “intentionally or knowingly caused the death or discomfort of an individual” would suffice to allege the “complete offense” of murder under § 19.02(b)(1). See id. § 19.02(b)(1) (providing that a person commits murder if he “intentionally or knowingly causes the death of an individual” (emphasis added)). With its use of the disjunctive “or” in its description of culpable mental states, the indictment transformed what would be an essential element of deadly conduct under § 22.05(b)—

the defendant shot the victim, but he did not necessarily shoot “at or in the direction” of the victim; thus, the dissent is mistaken when it claims that “[b]y alleging Barajas shot Gaines, the State alleged that Barajas discharged a firearm at or in the direction of Gaines.” In fact, the evidence established that Barajas shot at Gaines’s house, not necessarily at or in the direction of Gaines.

the “knowing” discharge of a firearm—into an optional element. The indictment therefore did not allege a “complete offense” as argued by Barajas. 6 See Malik, 953 S.W.2d at 239 n.4 (noting an indictment is “facially complete” if “it alleges all of the essential elements of a criminal offense”).

Because Count 1 of the indictment did not facially allege a complete offense, its failure to allege an essential element of aggravated assault did not result in a variance between the indictment and the proof at trial, and it is not fatal to Barajas’s conviction. 7 See Thomason, 892 S.W.2d at 11; Studer, 799 S.W.2d at 263. We overrule Barajas’s first issue.

B. Jury Charge Error By his second issue, Barajas contends that the jury charge contained reversible error because it “instructed the jury to return a guilty verdict for [a]ggravated [a]ssault with a [d]eadly [w]eapon, despite the indictment facially alleging the complete offense of

In any event, the result in this case is compelled by Studer and Thomason, and we may not disregard controlling precedent of the court of criminal appeals. See State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) (“The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.”).

[d]eadly [c]onduct.” See TEX. CODE CRIM. PROC. ANN. art. 36.14 (providing that the jury charge must “distinctly set[] forth the law applicable to the case”); Fella v. State, 573 S.W.2d 548 (Tex. Crim. App. 1978) (reversing conviction because “the charge of the trial court authorized the jury to find the appellant guilty . . . on a theory not alleged in the indictment”). This issue is dependent on Barajas’s assertion that Count 1 of the indictment facially alleged the “complete offense” of deadly conduct, an argument which we have already rejected. Accordingly, we overrule Barajas’s second issue.

III. CONCLUSION The trial court’s judgment is affirmed.

DORI CONTRERAS Chief Justice Dissenting Memorandum Opinion by Justice Silva.

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 13th day of July, 2023.