AFFiRM; Opinion Filed March 15, 2013.




                                             In The
                              (i!nurt nf Apnat
                         ith 1jqtrjrt 01 ixa Lit alla
                                      No. 05-1 1-01028-CR

                                ISAAC OHONBA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 3
                                   Dallas County, Texas
                          Trial Court Cause No. MBIO-05557-C

                             MEMORANDUM OPINION
                          Before Justices Moseley, Fillmore, and Myers
                                   Opinion by Justice Moseley

       Isaac Ohonba was indicted for the offense of making a false statement to a law

enforcement employee. He waived his right to a jury and the case was tried to the court. The

trial court found him guilty and assessed punishment at 180 days in jail and a $2,000 fine. The

trial court suspended sentence and placed Ohonba on community supervision for twelve months.

In a single issue, Ohonba contends the evidence is legally insufficient because of a material

variance between the indictment allegations and the proof at trial. The background of the case

and the evidence adduced at trial are well known to the parties; thus, we do not recite them here

in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion.

TEX. R. App. P. 47.2(a), 47.4. We affirm the trial court’s judgment.
       Ohonba, a Dallas Independent School District teacher, reported to the DISD Police

Department that he had been attacked one morning by five Hispanic students.             He gave a

statement to a DISD Police Department employee while he was in the emergency room. The

police department later determined the statement was false, and Ohonba was indicted for making

a false statement to an employee of a law enforcement agency.

       The indictment alleged that Ohonba:

       with intent to deceive, knowingly [madej to J. Liebbe a false statement, towit:
       “the five students, all male, all Hispanic began to hit me. They actually pushed me
       and some hit me and I fell to the ground and this is when I hit my head on the
       tree. I then became unconscious. My head was hurting and I was in so much pain
       as the five male Hispanic students were punching me very hard throughout their
       brutal and physical attack on me.”, and the said J. Liebbe was an employee of a
       law enforcement agency, namely, Dallas Independent School District Police
       Department, and was authorized by said agency to conduct said investigation, and
       the defendant knew that the said J. Liebbe was conducting said investigation, and
       the statement was material to the investigation in that the accused students would
       likely be charged, detained and disciplined based on the defendant’s false
       allegations of assault.

       Ohonba contends the proof at trial showed that the statement was given to Melissa

Juarez, a civilian employee of the DISD Police Department, not to Jeremy Liebbe.

       We review the evidence under the legal sufficiency standard of review. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011), cert. denied, 132 S. Ct. 1763 (2012). in a legal sufficiency review, “we view all of the

evidence in the light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Adames, 353

S.W.3d at 860. This standard “recognizes the trier of fact’s role as the sole judge of the weight

and credibility of the evidence after drawing reasonable inferences from the evidence.” Id. We

measure the sufficiency of the evidence by the elements of the offense as defined by a

hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997)). However, “a hypothetically correct charge need not incoqorate allegations
that give rise to immaterial variances” Gol/ihar v. State. 46 S.W.3d 243, 256 (Tex. Crim. App.

2001).    The hypothetically correct charge standard applies to both jury and nonjury trials.

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

         A variance occurs when there is a discrepancy between the allegations in the indictment

and the proof at trial,       Go/lihar, 46 S.W.3d at 246.           Variances can be classified into three

categories. First, a variance involving statutory language that defines the offense always renders

the evidence legally insufficient to support the conviction. Johnson v State, 364 S.W.3d 292,

298 (Tex. Crim. App.), cert. denied, 133 S. Ct. 536 (2012). Second, a variance involving a non

statutory allegation that describes an “allowable unit of prosecution” element of the offense may

or may not render the evidence legally insufficient, depending upon whether the variance is

material. Id. Finally, other types of variances involving immaterial non-statutory allegations do

not render the evidence legally insufficient. Id.

         We analyze the materiality of defects in indictments and jury charges by looking to the

focus or gravarnen of the offense and the hypothetically correct jury charge under the specific

indictment or information. Johnson, 364 S.W.3d at 297; Byrd v. State, 336 S.W.3d 242, 250

(Tex. Crim. App. 2011).

         Examining the elements of the offense of making a false report to a law enforcement

employee, a person commits such an offense if, with intent to deceive, he knowingly makes a

false statement that is material to a criminal investigation and makes it to “any employee of a law

enforcement agency that is authorized by the agency to conduct the investigation and that the

actor knows is conducting the investigation.” TEx. PENAL CoDE ANN.                  §   37.08(a)(2) (West Supp.

2012))


     The legislature amended section 37.08 in 2011 to add federal special investigators to section 37.08(a)(1). See
     1
Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 3, 2011 Tex. Gen. Laws 2110, 2111. Subsection 37.08(a)(2) was
not amended. We refer to the law as it existed at the time of the offense.
        The focus or gravamen of this offense is the making of a false statement to “any

employee” under the circumstances described in the statute, not the particular employee to whom

it is made,   See Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010) (gravamen of

offense of making a material false statement to obtain credit is the making of a false statement,

not obtaining credit); see also Harris v. State, 359 S.W.3d 625, 63031 (Tex. Crim. App. 2011)

(best indicator of legislative intent regarding allowable unit of prosecution is gravamen or focus

of offcnsc) Hu/frnan r ctate, 267 S W 3d 902, 907 (Tex Crim App 2008) (discussing aids to

identifying the gravamen of an offense). Thus, the allowable unit of prosecution in this case is a

false statement made to any employee of a law enforcement agency authorized to conduct the

investigation and whom the actor knows is conducting the investigation.

        Here the record indicates a single incident was under investigation: Ohonba’s alleged

assault by several students. One student, Andy Morales, testified he was walking with Ohonba

that morning, slipped on some mud, grabbed onto Ohonba, and Ohonba slipped and hit his head

on a tree. Ohonba got up, took Morales’s school identification and turned him over to the school

security officer. Ohonba went to the nurse’s office and was then transferred to the emergency

room.    Melissa Juarez, a DISD Police Department employee, testified she was riding with

Sergeant Tapia, a DISD police officer, when they were dispatched to the hospital to take a

statement from a teacher who had been assaulted. Tapia and Juarez introduced themselves to

Ohonba and asked if they could take his statement about the incident that morning. Tapia was in

and out of the examination room because of another call, but Ohonba agreed to give a statement

to Juarez.

        Because Ohonba was injured, Juarez offered to write the statement and let Ohonba

review and sign it. Ohonba agreed and told Juarez he had been walking into school that morning

and was attacked by five Hispanic students who hit him several times, causing him to fall and hit
his head on a tree.     Ohonba reviewed the handwritten statement and made several minor

corrections. tie then signed the statement and Juarez signed it as a witness. After taking the

statement, Juarez told Ohonba she would turn it over to the police department headquarters and

an investigator would be assigned, Juarez testified she was not in charge of the investigation,

one of the detectives handled the investigation.

       The next day, Ohonba typed and had notarized a similar statement about the incident,

apparently at the request of Liebbe. The indictment quotes parts of both statements. Ohonba

testified that school district rules required a teacher involved in an incident to give a statement.

He also referred to this requirement in the typed statement.

        Liebbe testified he is a detective in the DISD police department and investigated

Ohonba’s complaint. Liebbe said Ohonba’s statement was material to the investigation. Based

on the investigation, Liebbe determined the incident was an accident not an assault. Liebbe

explained that Ohonba applied for and received assault leave, a type of fully paid leave for

employees who are assaulted at work.

       Ohonba contends he did not have adequate notice from the indictment to prepare his

cross-examination because only Liebbe was identified, not Juarez. We disagree. Juarez’s name

is listed in the statement and she signed it as a witness. There is no indication in the record that

Ohonba did not know that he gave the statement to Juarez or that he was misled by the

indictment. Ohonba’s defense did not contend he did not make the statement or that he gave it to

someone who was not a law enforcement employee.            He admitted giving the statement and

testified at trial to essentially the same facts as in his statement. He argued the statement was

true, or at least was not knowingly false.
       Ohonba argues he could be subject to double jeopardy based on the same elements test

identified in Blockhurger v. United States, 284 U.S. 299 (1932). I-Ic claims he could face another

indictment for makmg the same statement to Juarez. We disagree.

       First, courts do not apply the Blaekburger same elements test “when the double-jeopardy

issue involves the allowable unit of prosecution, as it may when it comes to necessary

descriptions of a statutory element that is the gravamen of the offense.” Byrd, 336 S.W.3d at

257. As discussed above, the gravamen and allowable unit of prosecution under section 37.08 is

the making of a false statement to any employee of a law enforcement agency authorized to

conduct the investigation.

       Second, Ohonba is not in danger of being prosecuted again for the same offense based on

his February 4, 2010 statement.      See Gol/ihar, 46 S.W.3d at 258 (citing United States v.

Apodaca, 843 F.2d 421, 430 n.3 (10th Cir. 1988) (entire record, not just indictment, may be

referred to in protecting against double jeopardy in event of subsequent prosecution)).       The

indictment and the record at trial indicate Ohonba was tried for making a false statement to a law

enforcement employee on February 4, 2010. The State would not be able to prosecute him again

for the same statement.

       Here, because the false statement was made to a law enforcement employee authorized to

take the statement (Juarez was dispatched with an officer to take the statement) and known by

Ohonba to be conducting that part of the investigation (Juarez and Tapia introduced themselves

and asked to take a statement about the incident that morning), we conclude the variance in the

name of employee to whom the statement was made did not deprive Ohonba of notice and would

not subject him to multiple prosecutions for the same offense; thus the variance was not material.

       Considering all the evidence (including that summarized above) in the light most

favorable to the verdict, we conclude a rational trier of fact could have found Ohonba guilty of


                                               —6---
the offense beyond a reasonable doubt. See Jcwkco,,. 443 U.S. at 319: Aikanes, 353 S.W.3d at

860. Thus, we overrule Ohonba’s sole issue.

       We affirm the trial court’s judgment.




Do Not Publish
Thx. it An. P. 47.2(b)
11 1028F.U05




                                               —7—
                                  Litirt uf 1Jra15
                        Fift1i Jiitrirt nf    xiu itt Oat1iu
                                       JUDGMENT

ISAAC OHONBA, Appellant                              On Appeal from the County Criminal Court
                                                     No. 3, Dallas County, Texas
No. 05-1 1-01028-CR        V.                        Trial Court Cause No. MBIO-05557-C.
                                                     Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee                         Justices Fillmore and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial   court is   AFFIRMED.


Judgment entered this 15th day of March, 2013.




                                                     JiM MOSELEY               K
                                                     JUSTICE




                                               —8—
