                          NUMBER 13-11-00772-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


KORI J. MARRA,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


               On appeal from the County Court at Law No. 3
                       of Cameron County, Texas.


                                      OPINION

               Before Justices Rodriguez, Garza, and Perkes
                       Opinion by Justice Rodriguez
       On the Court's own motion, we withdraw the opinion and judgment issued in this

case on March 14, 2013, and substitute this opinion and judgment.

       Appellant Kori J. Marra, a former City of Harlingen commissioner, challenges her

class A misdemeanor conviction for participating in a vote or decision on a matter that had
a special economic effect on an entity in which she had a substantial interest without first

filing an affidavit stating the nature and extent of her interest in the entity, as is required by

sections 171.003 and 171.004 of the local government code,. See TEX. LOC. GOV'T

CODE ANN. §§ 171.003(a)(1), (b), 171.004(a)(1) (West 2008). By three issues, Marra

argues that:     (1) there was no evidence of a special effect or that she actually

participated in a decision on the relevant matter; (2) she was egregiously harmed by an

erroneous jury charge that contained permissive instead of mandatory language

regarding the finding of special economic effect; and (3) the trial court erred in admitting

evidence that violated Marra's attorney-client privilege.          We reverse and render a

judgment of acquittal.

                                       I. Background

       The following facts are undisputed. Marra is the owner of a real estate business

in downtown Harlingen and a former Harlingen city commissioner. At the September 1,

2010 city commission meeting, Marra participated in a discussion regarding the renewal

of the Harlingen downtown development district. The development district was formed in

the 1980s to promote the revitalization of the downtown area and requires renewal every

five years. Renewal is initiated by a petition of fifty percent of the downtown business

owners, who affirm that they are willing to be taxed an extra percentage of their property

value in order to be eligible for grants from the city to improve their businesses. At the

September 1, 2010 meeting, Marra stated that, as a downtown business owner, she

supported the renewal of the development district.                Another city commissioner

expressed concern that Marra's participation in the discussion was a conflict of interest.

No vote on the renewal petition was taken at this meeting.                The renewal of the
                                                2
development district was not approved until the September 15, 2010 commission

meeting; Marra did not attend this meeting or otherwise participate in the vote on the

renewal. Before the approval of the district, Marra did not file an affidavit stating the

nature of her interest in her business that would be benefited by the commission's

approval.

      Marra was charged by information as follows:

      [O]n or about [September 1, 2010], . . . [Marra] . . . did then and there,
      knowingly fail to file[,] before a decision on the matter at hand was made,
      AN AFFIDAVIT WITH THE CITY OF HARLINGEN CITY SECRETARY
      STATING THE NATURE AND EXTENT[] of . . . [Marra]'s INTEREST IN
      2405 and 2407 TREASURE HILLS COURT, L.L.C., a business entity in
      which she had a substantial interest[,] and knowingly fail to abstain from
      further participation in the decision at hand to wit; to REAUTHORIZE A
      PUBLIC IMPROVEMENT ASSESSMENT DISTRICT, when such action on
      the matter . . . would have a special economic effect on 2405 and 2407
      Treasure Hills Court, L.L.C. that would be distinguishable from the effect on
      the public . . . .

See id. § 171.004(a)(1).      Marra was also charged by information under section

171.004(a)(2), which prohibits a local public official's participation in a matter that is

"reasonably foreseeable" to have a "special economic effect on the value" of real property

in which the official has a "substantial interest." See id. § 171.004(a)(2). The real

property alleged in the information to be affected by Marra's participation in the

September 1, 2010 meeting was also "2405 and 2407 Treasure Hills Court, LLC."

      Marra pleaded not guilty to both charged offenses, and her case was tried to a jury.

The jury found Marra guilty of the business-entity offense under section 171.004(a)(1),

but acquitted her of the real-property offense under section 171.004(a)(2). The trial court

then sentenced her to thirty days' confinement in county jail and assessed a $500 fine and

court costs. This appeal followed.
                                            3
                                           II. Discussion

        By her first issue, Marra challenges the sufficiency of the evidence supporting her

conviction.      Specifically, Marra argues that the business entity named in the

information—"2405 and 2407 Treasure Hills Court, LLC"—was, in actuality, not the

downtown real estate business that the evidence at trial showed would have benefited

from renewal of the downtown public improvement district. It is undisputed Marra's

downtown real estate business was named "Taubert-Marra, LLC."1 Marra argues that

this created a material variance between the information and proof that rendered the

evidence at trial insufficient to support her conviction.2 We agree.

        Under Texas law, a variance between the allegations in the indictment and the

evidence at trial is a matter of evidentiary sufficiency. Gollihar v. State, 46 S.W.3d 243,

246–47 (Tex. Crim. App. 2001). In reviewing the sufficiency of the evidence, we must

determine "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011); Cada v. State, 334 S.W.3d

766, 772 (Tex. Crim. App. 2011).

        To determine what "the essential elements of the crime" are, we look to "the


        1
           It is undisputed that 2405 and 2407 Treasure Hills Court, LLC is also owned by Marra and is the
entity that owned the building in which Marra's real estate business is located.
        2
           Marra further challenges the evidence supporting the special economic benefit element of the
offense by arguing that: (1) the statute requires the business entity to receive a present and certain
economic benefit and that renewal of the development district would have given Marra, at most, a
speculative or contingent economic benefit; and (2) the renewal's benefit to Marra's business entity would
have been no different than the benefit to the public. Finally, Marra argues that the evidence was
insufficient to support her conviction because there was no evidence that she actually participated in a
decision on the relevant matter.
                                                    4
        hypothetically correct jury charge for the case." A hypothetically correct
        jury charge "would be one that 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."

Geick, 349 S.W.3d at 545 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)).

        The statute under which Marra was convicted provides, in relevant part, as follows:

        If a local public official has a substantial interest in a business
        entity . . . , the official shall file, before a vote or decision on any matter
        involving the business entity . . . , an affidavit stating the nature and extent
        of the interest and shall abstain from further participation in the matter
        if . . . the action on the matter will have a special economic effect on the
        business entity that is distinguishable from the effect on the public.[3]

TEX. LOC. GOV'T CODE ANN. § 171.004(a)(1). Thus, a local public official4 commits an

offense if, (1) before a vote or decision on a matter involving a business entity (2) in which

the official has a substantial interest,5 (3) she fails to file an affidavit stating the nature and

extent of her interest in the business entity and (4) fails to abstain from further

participation in the matter (5) where action on the matter will have a special economic

effect on the business entity that is distinguishable from the effect on the public. Id.

        The law "as authorized by the indictment" means "the statutory elements of the

offense . . . as modified by the charging instrument." Johnson v. State, 364 S.W.3d 292,

294 (Tex. Crim. App. 2012) (citations omitted). A hypothetically correct jury charge need

not necessarily track exactly all of the allegations in the charging instrument.                         Id.

        3
        Section 171.003 makes a knowing violation of the foregoing a class A misdemeanor. TEX. LOC.
GOV'T CODE ANN. § 171.003(a)(1), (b) (West 2008).
        4
            It is undisputed that Marra was a local public official.
        5
          It is also undisputed that Marra had a substantial interest in 2405 and 2407 Treasure Hills Court,
LLC, the business entity named in the information.
                                                         5
(citations omitted). "[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, 46 S.W.3d at 257. A variance is material, or "fatal[,]

only if it . . . prejudices [the defendant's] substantial rights." Id. (citations omitted). A

defendant's substantial rights are not prejudiced so long as "the indictment, as written,

informed the defendant of the charge against him sufficiently to allow him to prepare an

adequate defense at trial" and "the deficiently drafted indictment would [not] subject the

defendant to the risk of being prosecuted later for the same crime."           Id. (citations

omitted). "[A] hypothetically correct charge need not incorporate allegations that give

rise to immaterial variances." Id. at 256.

       "A variance in pleading and proof can occur in two different ways.            First, a

variance can involve the statutory language that defines the offense. . . . Second, a

variance can involve a non-statutory allegation that is descriptive of the offense in some

way." Johnson, 364 S.W.3d at 294. With regard to the first type of variance, "the failure

to prove the [pleaded] statutory language . . . [always] renders the evidence legally

insufficient to support the conviction"; in other words, "a variance of this sort is always

material."     Id. at 295; see also Cada, 334 S.W.3d at 774 ("The Texas 'immaterial

variance' law as set out in Gollihar does not apply to the specific statutory elements

alleged in the indictment." (internal quotation omitted)). With regard to the second type

of variance,

       we tolerate some variation in pleading and proof. We tolerate "little
       mistakes" that do not prejudice the defendant's substantial rights but we will
       not tolerate a variance that really amounts to a failure to prove the offense
       alleged. What is essential about variances with respect to non-statutory
       allegations is that the variance should not be so great that the proof at trial
                                             6
       "shows an entirely different offense" than what was alleged in the charging
       instrument.

Johnson, 364 S.W.3d at 295 (citations omitted); see also Fuller v. State, 73 S.W.3d 250,

256 (Tex. Crim. App. 2002) (Keller, J., concurring) ("[While t]he State may not be bound

by overly descriptive indictment allegations, . . . the hypothetically correct jury charge

cannot be invoked to 'wholly re-write the indictment to charge a different offense.'"

(quoting Gollihar, 46 S.W.3d at 253)).

       The first question for this Court is whether the identity of the business entity is

statutory language or a non-statutory allegation that is descriptive of the offense in some

way. We believe it is the latter. Although the term "business entity" is included in

section 171.004's statutory language, the identity of the business is not. Nonetheless,

as discussed below, it is a relevant non-statutory fact, and the second question for the

Court is therefore whether a variance involving that fact is material.

       In analyzing whether variances involving non-statutory allegations are material, we

focus on the allowable unit of prosecution and are guided primarily by whether a

defendant's double jeopardy interests are implicated.       See Johnson, 364 S.W.3d at

295–96; Fuller, 73 S.W.3d at 257.        Where a non-statutory allegation "defines an

allowable unit of prosecution" and a defendant is indicted for that one allowable unit but

the State proves another allowable unit, "protecting the defendant's double jeopardy

rights requires acquitting the defendant" of the proved, but non-indicted, offense. Fuller,

73 S.W.3d at 257; see Byrd v. State, 336 S.W.3d 242, 246–47 (Tex. Crim. App. 2011)

(reasoning that "the defendant is entitled to an acquittal" where the State alleges one

offense and proves another).       "After such an acquittal, the State could seek an

                                             7
indictment alleging [the offense involving the non-indicted allowable unit]. Acquittal as a

remedy for [this type of variance] protects the defendant's double jeopardy interests while

also allowing the State an opportunity to prosecute for the 'correct' theory of the crime."

Fuller, 73 S.W.3d at 257; see Byrd, 336 S.W.3d at 247.

       To that end, we determine the "allowable unit of prosecution" of a particular

offense by "ascertain[ing] the focus or gravamen of the offense." Johnson, 364 S.W.3d

at 296 (citing Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008)).

       If the focus of the offense is the result—that is, the offense is a "result of
       conduct" crime—then different types of results are considered to be
       separate offenses, but different types of conduct are not. On the other
       hand, if the focus of the offense is the conduct—that is, the offense is a
       "nature of conduct" crime—then different types of conduct are considered to
       be separate offenses. . . . If "circumstances surrounding the conduct" is
       the focus of the offense, then under a focus-based approach to determining
       separateness of offenses, different types of conduct could establish
       alternate methods of committing the same offense rather than different
       offenses, so long as the circumstances surrounding the conduct are the
       same.

Huffman, 267 S.W.3d at 907 (internal citations and quotations omitted). In other words,

in the latter example, the "circumstances" form the allowable unit of prosecution. See id.

at 908.

       The proscribed conduct in this statute—i.e., the failure to file an affidavit and

abstain from further participation—would not necessarily be criminal absent the

circumstances specified by the statute—i.e., the local official's substantial interest in the

business entity that will be economically affected by the matter at hand. See TEX. LOC.

GOV'T CODE ANN. § 171.004(a)(1). We therefore conclude that section 171.004 is a

"circumstances surrounding conduct" offense and that the relevant circumstances that

form the gravamen of the offense are the official's ownership of the particular business
                                             8
entity that is alleged to receive a special economic benefit. See Huffman, 267 S.W.3d at

908 (reasoning that the failure to stop and render aid offense is a "circumstances

surrounding conduct offense" because a defendant's "failure to stop, return, or remain

becomes criminal only because of his knowledge of circumstances surrounding the

conduct: an accident and a victim suffering an injury"). Although the identity of the

business entity is not statutory language, see Johnson, 364 S.W.3d at 294, it is a

non-statutory fact that embodies the allowable unit of prosecution for this offense. See

id. at 296; Huffman, 267 S.W.3d at 907. Because the identity of the business entity

comprises the very nature of the offense, the hypothetically correct jury charge for an

offense under section 171.004(a)(1) must include the name of the business entity alleged

in the information or indictment to have been affected by the local official's participation in

a matter.6 See Geick, 349 S.W.3d at 545; see also Johnson, 364 S.W. at 294; Gollihar,

46 S.W.3d at 257. And if the proof at trial concerns a different business entity than the

entity named in the indictment, the State has proven a different crime than the one

alleged.     This implicates the defendant's double jeopardy rights; a subsequent

prosecution involving the indicted business entity would not be barred because the proof

at trial involved an entirely different entity and, therefore, an entirely different offense.

See Byrd, 336 S.W.3d 256–57 (holding that, where both ownership and appropriation

constitute the gravamen of theft, the State's proof at trial of a different owner than one

alleged in the indictment rendered the evidence insufficient to support the conviction, but

did not bar re-prosecution because "proof of one [owner] will not prove the other" and

        6
          Compare Johnson v. State, 364 S.W.3d 292, 295–96 (Tex. Crim. App. 2012) (reasoning that
because the victim is the allowable unit of prosecution for murder, "the State must prove that the victim
alleged in the indictment is the same person as the victim proved at trial").
                                                   9
"[t]hus, the offenses are not the same for double jeopardy purposes").             In short, a

variance between the identity of the business entity alleged and the identity of the

business entity proved is material and requires acquittal.

       In this case, the State does not dispute that the evidence at Marra's trial concerned

a different business entity than the entity pled in the information. The State's proof at trial

in support of its charges under section 171.004(a)(1) involved the Taubert-Marra, LLC

business entity that owned Marra's downtown real estate business. The State produced

no evidence that 2405 and 2407 Treasure Hills Court, LLC—the entity that owned the real

property in which the real estate business was located and which was the real property

involved in the State's separate charge against Marra under section 171.004(a)(2)—was

the business entity that would have received the special economic benefit. Because

Marra's ownership of a particular business entity is the allowable unit of prosecution for

this offense, the State proved an entirely different offense by proving that Taubert-Marra,

LLC would be the entity that was affected by Marra's participation in the discussion on

renewal of the downtown development district. This was not a "little mistake." It was a

failure to prove the offense alleged in the information. And it was material because it

does not bar the State from prosecuting Marra a second time for the same offense.

Under Texas law, as discussed above, Marra could be reindicted and tried for an offense

involving Taubert-Marra, LLC, as she was never placed in jeopardy for such an offense.

See Byrd, 336 S.W.3d at 247; see also Fuller, 73 S.W.3d at 257.

       For these reasons, we hold the material variance between the information and

proof in this case rendered the evidence legally insufficient to support Marra's conviction.

See Gollihar, 46 S.W.3d at 246–47; see also Jackson, 443 U.S. at 319. We sustain
                                              10
Marra's first issue in this regard.7

                                          III. Conclusion

        We reverse the judgment of the trial court and render a judgment of acquittal.



                                                                        NELDA V. RODRIGUEZ
                                                                        Justice

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

Delivered and filed the
4th day of April, 2013.




        7
          Having ruled that the evidence was insufficient because of the material variance, we need not
reach Marra's further sufficiency arguments regarding the evidence of a special economic effect or the
evidence of whether she actually participated in a decision on the relevant matter. See TEX. R. APP. P.
47.1. And because our holding regarding the variance is dispositive of the appeal, we also need not reach
Marra's issues involving the jury charge and the admission of evidence barred by the attorney-client
privilege. See id.
                                                  11
