The majority concludes that our variance law conflicts with our surplusage law and, therefore, overrules all surplusage law. Rather than overruling surplusage law, I would seize this opportunity to clarify variance law.

The problem with our variance caselaw is our failure to distinguish between two different issues - lack of notice and insufficient evidence. The word "variance" has been used in analyzing both issues, but they are quite different. Both issues arise when the State alleges one fact in its indictment but proves another at trial.

For example, the State might indict a defendant for the murder of Jane Ann, but then prove at trial that he killed Joe Bob. On the one hand, the defendant could argue that he was denied notice of the allegations against him. The defendant prepares a defense for the charge, as he has a sound alibi for the night Jane Ann was murdered. But when he gets to trial, suddenly the State puts forth evidence that he killed Joe Bob. The defendant is unprepared; the State has denied him any ability to prepare a defense for this charge. This defendant might argue on appeal that he was denied notice of the State's accusation against him. In analyzing his claim, we would consider the Constitution's requirement that a defendant be given notice of the allegation against him. ⁽¹⁾ We would also consider whether the defendant was harmed by the lack of notice, that is, whether he was surprised to his detriment resulting in his inability unable to defend himself. If we found the defendant harmed, we would remand the case for a new trial, since the defendant should have an opportunity to prepare a defense against the State's charge.

On the other hand, the defendant could argue that the evidence was insufficient to convict him. While the State charged him with the murder of one individual, the State was unable to prove its allegation, instead proving the murder of a completely different person. In analyzing this claim, we would consider the requirement that the State prove all the elements of the offense beyond a reasonable doubt. ⁽²⁾ We would also consider our own caselaw which states that sufficiency of the evidence should be measured by the hypothetically correct jury charge. ⁽³⁾ If we found the evidence insufficient to convict, we would enter a judgment of acquittal.

As noted, these are two distinct claims to be analyzed differently. The majority states that "we have routinely treated variance claims as insufficiency of the evidence problems," ⁽⁴⁾ but that fact neither addresses nor resolves the problem. Admittedly, claims that a variance deprived a person of notice are less common, but as I have explained, this is a legitimate claim which can be argued. ⁽⁵⁾ When it is asserted, it should be analyzed solely as a notice claim. Claims that a variance rendered the evidence insufficient are more common, but how we have addressed those claims is not at all routine. Sometimes we have analyzed whether the evidence was sufficient, ⁽⁶⁾ and sometimes we have analyzed whether the defendant was deprived of notice. ⁽⁷⁾ The majority perpetuates confusion in the law by analyzing Gollihar's sufficiency claim in terms of whether he received notice.

The majority explains its reasoning in footnote 7, but I remain unconvinced. First, the majority indicates that three other courts have analyzed sufficiency in terms of notice. Whether those courts do so or not does not persuade me that we should continue to do so.

The majority also states in this footnote that, while materiality generally has no place in a sufficiency analysis, it is appropriate in this context because in variance cases, "the State, by all accounts, has proven that the defendant committed a crime. The only question is whether it has proven the details as it alleged in the indictment." ⁽⁸⁾ But the real questions, to me, are whether a rational trier of fact could find the State proved all the elements of the offense beyond a reasonable doubt, and whether the State proved the elements as required by the hypothetically correct jury charge. I would resolve these questions without regard to notice. Whether the State has proven that the defendant committed "a" crime does not resolve, in my mind, whether the State has proven the defendant committed "the" crime with which he was charged.

Part of the problem may be the confusion between the concepts of notice and surprise and the concepts of materiality and harm. In notice cases, we might assess whether the defendant was harmed or surprised to the extent that the lack of notice was material. On the other hand, in sufficiency cases, notice and surprise should be irrelevant, but in limited circumstances, materiality may come into play. That is, there may be instances in which the State's failure to prove a particular fact alleged is immaterial - not relevant to its overall ability to prove its case. To me, this is far different from saying its failure to prove this fact is immaterial because the accused received notice. I read the majority's opinion as approving our past cases which encompassed the notice-type of materiality - surprise - within the sufficiency analysis. I would not do so.

Finally, the majority concedes that this type of materiality was derived from the notice cases, but concludes that it is appropriate to include it within a sufficiency analysis based on Jackson v. Virginia. I read Jackson more narrowly. As I read it, Jackson merely holds that due process requires that the State prove a person guilty beyond a reasonable doubt, and that a reviewing court should assess whether any rational trier of fact could find all the elements of the offense beyond a reasonable doubt. Although Jackson mentions notice as another one of the guarantees of due process, I do not read Jackson to require or even encourage courts to analyze sufficiency claims by considering whether the defendant received notice.

I would hold that notice claims and sufficiency claims are different. I would hold that the word "variance" is just a word - it does not control the claim an appellant makes - and that courts should look beyond semantics. If an appellant argues he was denied notice of the charge against him, the court should consider whether that is so, and if so, whether he was surprised at trial. If an appellant argues the evidence was insufficient, the court should consider whether that is so without regard to any surprise or lack of notice. Whether the appellant or the State uses the word "variance" within its argument should have no affect on how the claim is analyzed.

To avoid confusion in the future, I would hold that, from now on, the word "variance" should only be used with notice claims. That does not prevent an appellant in any way from arguing that the evidence was insufficient because the State failed to prove something that it alleged. An appellant can always make that claim, and appellate courts should consider that claim based on sufficiency caselaw, without regard to notice or surprise. But if an appellant or the State should use the word "variance" inappropriately, that oversight should not affect the appellate court's analysis of the case. The appellate court will look beyond the use, or the absence, of the word "variance," and determine whether an appellant is claiming that he was denied notice or that the evidence was insufficient to convict.

This holding would not require the overruling of any caselaw, in the sense that any of our previous variance cases were wrongly decided. Those cases which melded the sufficiency and notice analyses may very well have reached the same result under a strict sufficiency or notice analysis. But we should clarify the law now - sufficiency and notice are wholly different claims, to be resolved independently of one another. We should disavow the reasoning of our past cases that have combined the two.

The issue in this case is whether the evidence was sufficient, not whether Gollihar received notice of the allegations against him. Under Malik, sufficiency of the evidence is to be measured against the hypothetically correct jury charge. A hypothetically correct jury charge is one which "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." ⁽⁹⁾ This list is not necessarily exhaustive. ⁽¹⁰⁾ In Malik, the trial court charged the jury concerning the legality of the defendant's detention. ⁽¹¹⁾ We noted that this charge merely related to the admissibility of evidence, not to any "element of the offense." ⁽¹²⁾ We explained that a judgment of acquittal should be reserved for those instances in which there is an "actual failure in the State's proof of the crime." ⁽¹³⁾

Sometimes the State alleges evidentiary matters in its indictment which need not be proved. These allegations, as the majority notes, are considered "surplusage." In Burrell v. State, ⁽¹⁴⁾ we explained that "allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment are treated as mere surplusage, and may be entirely disregarded." The exception to that rule is when "the unnecessary matter is descriptive of that which is legally essential to charge a crime." ⁽¹⁵⁾ In Upchurch v. State, ⁽¹⁶⁾ we explained that extra language is "descriptive" of an element of the offense if it "define[s] the offense more narrowly, place[s] it in a specific setting, or describe[s] the method by which it was committed." Such language "must be proven as alleged, even though needlessly stated." ⁽¹⁷⁾ Ortega v. State ⁽¹⁸⁾ relied on this line of authority.

As the majority recognizes, the rule that language in an indictment that is descriptive of an element of the offense must be proved even though needlessly alleged conflicts with the rationale in Malik. Under Malik, a judgment of acquittal should be reserved for those instances in which there is an "actual failure in the State's proof of the crime." ⁽¹⁹⁾ The Court in Burrell recognized that excessive language "might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment." ⁽²⁰⁾ This rationale applies regardless of whether the language is descriptive of an element of the offense.

This case presents the obvious problem. There was no actual failure in the State's proof of the crime. The State proved theft of a go-cart. Indeed, Gollihar admitted taking the go-cart. The only issue at trial was whether he had consent, and the jury resolved that issue against him. There was no doubt at trial that a go-cart was taken. The fact that the State unnecessarily alleged the serial number of the go-cart, and the proof at trial showed a different serial number, should not render the evidence insufficient to convict under Malik.

I agree with the majority that Malik implicitly overruled Ortega and Burrell. The serial number of the go-cart was surplusage: descriptive of an element of the offense, but needlessly alleged. It need not have been proved by the State. It should not be included in the hypothetically correct jury charge. The evidence was sufficient to convict Gollihar under the hypothetically correct charge.

I concur in the judgment of the Court. In particular, I agree that Malik overruled Ortega and Burrell and that Malik applies even in the absence of alleged jury charge error. But I dissent to the majority's overruling all surplusage law and to the majority's analyzing this sufficiency claim in terms of whether Gollihar received notice. I join only Parts I and IV of the Court's opinion.

DATE DELIVERED: May 16, 2001

PUBLISH

1. U.S. Const. Amend. VI.

2. See Jackson v. Virginia, 443 U.S. 307 (1979).

3. See Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).

4. Ante, slip op. at 6.

5. See Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999) (both sufficiency and notice claims raised, each analyzed separately); see also Simpson v. State, 821 S.W.2d 622 (Tex. Crim. App. 1992) (separate notice and sufficiency claims raised, although court remands without addressing either).

6. See Maldonado v. State, 998 S.W.2d 239 (Tex. Crim. App. 1999); Huffman v. State, 726 S.W.2d 155 (Tex. Crim. App. 1987); Thurmon v. State, 145 Tex.Cr.R. 279, 167 S.W.2d 528 (1942).

7. See Martin v. State, 213 S.W.2d 548 (Tex. Crim. App. 1948); Stevens v. State, 891 S.W.2d 649 (Tex. Crim. App. 1995); Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998).

8. Ante, slip op. at 7 n.7.

9. Malik, 953 S.W.2d at 240.

10. Id. at 240 n.5.

11. Id. at 235, 240.

12. Id. at 240.

13. Ibid.

14. 526 S.W.2d 799, 802 (Tex. Crim. App. 1975).

15. Ibid.

16. 703 S.W.2d 638, 641 (Tex. Crim. App. 1985).

17. Id. at 640, citing Burrell, 526 S.W.2d at 802.

18. 668 S.W.2d 701 (Tex. Crim. App. 1983).

19. Malik, 953 S.W.2d at 240.

20. Burrell, 526 S.W.2d at 802.