Because the court of appeals did not have the benefit of our opinion in Gollihar v. State when it decided this case, we should remand for them to reconsider in light of Gollihar. In lieu of that, on the merits, I agree that the evidence was sufficient to convict Fuller, and I would remand for the appellate court to consider Fuller's remaining points of error.

The State's indictment charged that Michael Fuller "intentionally and knowingly cause[d] bodily injury to Olen M. Fuller." At trial, the evidence showed that Michael Fuller injured his father, who was referred to as "Mr. Fuller" or "Buddy." Fuller argued on appeal that the evidence was insufficient to convict. The court of appeals agreed and rendered a judgment of acquittal. ⁽¹⁾ We granted the State's petition for discretionary review to decide whether the court of appeals erred in acquitting Fuller "without conducting any inquiry into whether this 'variance' misled [Fuller] to his prejudice."

In Gollihar v. State, our majority opinion said that a variance occurs "when there is a discrepancy between the allegations in the charging instrument and the proof at trial" ⁽²⁾ and that, "regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem . . . a variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." ⁽³⁾ The court of appeals did not consider whether the variance in this case prejudiced Fuller's substantial rights. We should not reach the merits of this issue, but should remand this case for the appellate court to consider the issue in light of Gollihar.

On the merits, I agree with the majority's conclusion but for different reasons.

The State argues that Fuller could not possibly have been surprised in this case because (1) Fuller was accused of injuring his own father, whose name he certainly knew; (2) the victim's complete name was on the State's witness list; (3) defense counsel stated during voir dire examination that she expected "Olin Fuller" ⁽⁴⁾ to testify; and (4) defense counsel and the victim met about the case before trial. I agree. Under Gollihar, I would hold that the variance did not prejudice Fuller's substantial rights.

As I stated in Gollihar, I believe that "[i]f an appellant argues the evidence was insufficient, the court should consider whether that is so without regard to any surprise or lack of notice." ⁽⁵⁾ In Malik v. State, we held that sufficiency of the evidence is to be measured by 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." ⁽⁶⁾

In Curry v. State, we explained that the "law" as "authorized by the indictment" is the statutory elements of the offense as modified by the charging instrument. ⁽⁷⁾ So Fuller's hypothetically correct jury charge could not simply quote the language of the statute, instructing the jury to find Fuller guilty if it found that he injured an "elderly individual," because the indictment specifically charges that Fuller injured "Olen M. Fuller," and the State was required to prove that element of the offense. ⁽⁸⁾ While the State was not required to allege the victim's full first name, ⁽⁹⁾ once it did so, it undertook to prove it.

Here, the jury could have rationally found that the person testifying at trial was "Olen M. Fuller." During voir dire, defense counsel said the following: "I suspect a fellow by the name of Olin Fuller, or nicknamed Buddy, will come and testify." At trial, the prosecutor began his opening statement by introducing the victim as "Olin Buddy Fuller," and defense counsel referred to the victim in closing argument as "Olin Fuller." Of course, voir dire examination and opening and closing statements are not evidence. But the issue, under a sufficiency analysis, should be whether a rational jury could conclude beyond a reasonable doubt that Fuller assaulted the person he was accused of assaulting. Here, it could. A rational jury could conclude beyond a reasonable doubt that the person sitting in the witness chair was the same person Michael Fuller was accused of injuring - his own father. I would decline to follow any hypertechnical approach of the past which that would hold this evidence insufficient to convict.

DATE FILED: March 27, 2002

PUBLISH

1. Fuller v. State, No. 10-98-00019-CR (Tex. App. - Waco, delivered May 27, 1998) (not designated for publication).

2. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).

3. Id. at 247-48.

4. While the indictment alleges injury of "Olen" Fuller, the court reporter's record spells the name "Olin."

5. Gollihar, 46 S.W.3d at 262 (Keasler, J., concurring and dissenting).

6. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

7. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

8. Id.

9. Tex. Code Crim. Proc. Art. 21.07.