in Re Donald Sanford

IN THE TENTH COURT OF APPEALS No. 10-04-00135-CR In re Donald Sanford Original Proceeding MEMORANDUM Opinion The petition for writ of mandamus is denied. See In re Batson, No. 10-03-378-CV, 2003 Tex. App. LEXIS 10920 (Tex. App.—Waco Dec. 31, 2003)(orig. proceeding). TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Writ denied Opinion delivered and filed July 28, 2004 Do not publish [OT06] When faced with a legal insufficiency claim based upon a variance between the indictment and the proof, only a material variance will render the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). Allegations giving rise to an immaterial variance may then be disregarded in a hypothetically correct jury charge but allegations giving rise to material variances must be included. Id. A variance is material if the indictment (1) failed to inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, or (2) does not describe the offense clearly enough to protect the defendant from being subjected to the risk of later prosecution for the same crime. Id. The indictment alleged that White “intentionally or knowingly possess[ed] a short barrel firearm, to-wit: a shotgun with a sawed off barrel measuring 15 3/4 inches.” At trial, the evidence showed the barrel length as 16 1/4 inches. White argues that this variance is material and prejudiced his substantial rights. We disagree. The indictment specifically alleged the elements of the offense: intentional or knowing possession of a short-barrel firearm, namely a shotgun. See Tex. Pen. Code Ann. § 46.05(a)(3). A short-barrel shotgun is defined by statute as one with a barrel length of less than eighteen inches. See Tex. Pen. Code Ann. § 46.01(10). The record does not suggest that White was confused about the offense with which he was charged or that his ability to prepare a defense was impaired. He was charged with possessing a short-barrel shotgun with a barrel length less than eighteen inches and this is what the evidence showed. Nor is White in any danger of being prosecuted again for the same crime. The variance is immaterial. See Flenteroy v. State, 187 S.W.3d 406, 411 (Tex. Crim. App. 2005) (Finding “variance between the indictment’s allegation of a ‘screwdriver’ and the State’s proof at trial of ‘a hard metal-like object’” immaterial); see also Gollihar, 46 S.W.3d at 258 (Finding variance between indictment alleging one go-cart model number and the evidence showing another model number immaterial). Although the record shows that the actual barrel length is 16 1/4 inches rather than 15 3/4 inches as alleged in the indictment, the evidence at trial established that the barrel length of the shotgun was within the prohibited range. The jury could have found beyond a reasonable doubt that White committed the offense of possession of a prohibited weapon, namely a short-barrel shotgun with a barrel length less than eighteen inches. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789; see also Bigon, 252 S.W.3d at 366. We overrule point two. The judgment is affirmed. FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed July 1, 2009 Do not publish [CR25]