                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-19-00201-CR

DEVIN LAMARCUS DIGGS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the County Court at Law
                               Hill County, Texas
                            Trial Court No. M0063-19


                                    OPINION


      In two issues, appellant, Devin Lamarcus Diggs, challenges his conviction for

unlawful possession of a controlled substance in Penalty Group 3 in an amount less than

twenty-eight grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.117(b) (West 2017).

Because we conclude that there is a material variance between the charging instrument

and the proof presented that renders the evidence insufficient, we reverse and acquit.
                                        I.      BACKGROUND

          In the instant case, Diggs was charged by information with unlawful possession

of a controlled substance--Acetaminophen—in an amount by aggregate weight,

including any adulterants and dilutants, of less than twenty-eight grams.                    See id.

Pursuant to a plea bargain with the State, Diggs pleaded nolo contendere to the charged

offense. The trial court found Diggs guilty of the charged offense and sentenced him to

serve 180 days in the county jail. Despite this being a plea-bargain case, the trial court

gave Diggs permission to appeal, and this appeal followed.

    II.       SUFFICIENCY OF THE EVIDENCE AND VARIANCE IN THE CHARGING INSTRUMENT

          In his first issue, Diggs contends that there is a fatal variance between the charging

instrument and the proof presented that renders the evidence insufficient. 1 As such,

Diggs argues that his conviction should be reversed and that he should be acquitted of

the charged offense. In a document labeled, “Appellee’s Confession of Error,” the State

asserts that the information did not charge Diggs with a crime under Texas law and that

no one noticed the error in the charging instrument at the time of the plea in this case.

The State requests that we reverse Diggs’s conviction and remand for a new trial after re-

pleading.




         The record reflects that Diggs did not seek to quash the indictment in this case, nor has he
          1

challenged his plea as involuntary or unknowing.

Diggs v. State                                                                                Page 2
A.      Standard of Review

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

            When addressing a challenge to the sufficiency of the evidence, we
            consider whether, after viewing all of the evidence in the light most
            favorable to the verdict, 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
            State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
            the appellate court to defer “to the responsibility of the trier of fact fairly
            to resolve conflicts in the testimony, to weigh the evidence, and to draw
            reasonable inferences from basic facts to ultimate facts.” Jackson, 443
            U.S. at 319. We may not re-weigh the evidence or substitute our
            judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
            (Tex. Crim. App. 2007). The court conducting a sufficiency review must
            not engage in a “divide and conquer” strategy but must consider the
            cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although
            juries may not speculate about the meaning of facts or evidence, juries
            are permitted to draw any reasonable inferences from the facts so long
            as each inference is supported by the evidence presented at trial. Cary
            v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443
            U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
            2007). We presume that the factfinder resolved any conflicting
            inferences from the evidence in favor of the verdict, and we defer to that
            resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
            This is because the jurors are the exclusive judges of the facts, the
            credibility of the witnesses, and the weight to be given to the testimony.
            Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct
            evidence and circumstantial evidence are equally probative, and
            circumstantial evidence alone may be sufficient to uphold a conviction
            so long as the cumulative force of all the incriminating circumstances is
            sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
            (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

            We measure whether the evidence presented at trial was sufficient to
            support a conviction by comparing it to “the elements of the offense as
            defined by the hypothetically correct jury charge for the case.” Malik v.
Diggs v. State                                                                                Page 3
            State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
            correct jury charge is 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.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim.
            App. 2013). The “law as authorized by the indictment” includes the
            statutory elements of the offense and those elements as modified by the
            indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

B.      Discussion

        “Due process requires that the State prove, beyond a reasonable doubt, every

element of the crime charged.” Cada v. State, 334 S.W.3d 766, 772-73 (Tex. Crim. App.

2011). In the instant case, the judgment of conviction reflects that Diggs was found guilty

of the offense of unlawful possession of a controlled substance in Penalty Group 3 in an

amount less than twenty-eight grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.117(b).

However, the information in this case alleged that, on or about December 5, 2018, Diggs,

“did then and there knowingly and intentionally possess a controlled substance, to wit:

Acetaminophen in an amount by aggregate weight, including any adulterants and

dilutants, of less than 28 grams.” It is undisputed that acetaminophen, otherwise known

as Tylenol, is not, by itself, a controlled substance listed in Penalty Group 3. See id. §

481.104(a) (West Supp. 2019) (listing the substances that are considered Penalty Group 3

controlled substances). In other words, as the State acknowledged, the information in

this case did not charge Diggs with a crime under Texas law. Diggs characterizes this as


Diggs v. State                                                                            Page 4
a material variance between the charging instrument and the evidence that amounts to a

failure of proof and entitles him to an acquittal.

        “A ‘variance’ occurs whenever there is a discrepancy between the allegations in

the indictment and the proof offered at trial.” Byrd v. State, 336 S.W.3d 242, 246 (Tex.

Crim. App. 2011). A claim of variance is treated as an insufficiency claim that we review

under the Jackson standard. Gollihar, 46 S.W.3d at 246; see Jackson, 443 U.S. at 319. As

mentioned above, the hypothetically-correct jury charge, against which the evidence is

measured, “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.” Gollihar, 46 S.W.3d at 253 (citing Malik, 953 S.W.2d at 240).

        Only a “material” variance between the charging instrument and the evidence

warrants reversal. Gollihar, 46 S.W.3d at 257. As such, the hypothetically-correct jury

charge includes material variances but excludes immaterial ones. Id. at 258; see Fuller v.

State, 73 S.W.3d at 250, 253 (Tex. Crim. App. 2002). In determining if a variance is

material, we ask two questions: (1) “whether the indictment, as written, informed the

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

defense at trial”; and (2) “whether prosecution under the deficiently drafted indictment

would subject the defendant to the risk of being prosecuted later for the same crime.”

Gollihar, 46 S.W.3d at 246; see Fuller, 73 S.W.3d at 253.


Diggs v. State                                                                        Page 5
        In this case, the information did not charge Diggs with an offense under Texas law.

Furthermore, the Plea Agreement Memorandum signed by Diggs and by the State

reflected that Diggs entered a plea of nolo contendere to the offense of possession of a

controlled substance in Penalty Group 3 in an amount less than twenty-eight grams.

However, the memorandum is silent as to which controlled substance Diggs allegedly

possessed. Neither the transcript from the plea hearing, nor the judgment of conviction

itself provide any further clarity as to the controlled substance Diggs allegedly possessed.

        The parties, the court, and, in other cases, the jury must know the substance and

whether that substance falls within the penalty groups designated for controlled

substances in the prosecution of a drug case. See Gollihar, 46 S.W.3d at 256; see also TEX.

HEALTH & SAFETY CODE ANN. § 481.117(b) (providing that a person commits an offense if

the person knowingly or intentionally possesses a controlled substance listed in Penalty Group

3, unless the person obtains the substance directly from or under a valid prescription or

order of a practitioner acting in the course of professional practice (emphasis added)); see

id. § 481.104(a) (listing the substances contained in Penalty Group 3). Because the

charging instrument, as written, does not allege that Diggs illegally possessed a

controlled substance for which he could be prosecuted under the Texas Health & Safety

Code, we cannot say that Diggs was sufficiently informed of the charge against him to

allow him to prepare a defense at trial. See Gollihar, 46 S.W.3d at 256.




Diggs v. State                                                                          Page 6
        Furthermore, the State acknowledges in its “Confession of Error” that it intends to

re-plead and charge Diggs for the same crime. See Gollihar, 46 S.W.3d at 257. In other

words, prosecution under the deficiently-drafted indictment subjects Diggs to the risk of

being prosecuted later for the same crime. See id.

        We therefore conclude that the variance in this case is material and that it

prejudiced Diggs’s substantial rights because the charging instrument failed to give him

sufficient notice and subjects him to the possibility of a second prosecution for the same

offense. See id. at 258; see also Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001)

(noting that, in variance law, it is the defendant’s burden to demonstrate prejudice to a

substantial right). Accordingly, we reverse Diggs’s conviction and enter an acquittal

because the evidence is insufficient to prove that Diggs violated section 481.117(b) of the

Texas Health and Safety Code. See Cada, 334 S.W.3d at 776 (“Under Jackson, the State

must prove the statutory elements that it has chosen to allege, not some other alternative

statutory elements that it did not allege. The variance construct of Gollihar and Fuller

simply does not override the constitutional due-process requirement that the State prove,

beyond a reasonable doubt, every statutory element of the offense that it has alleged.”).

This is the case, even though Diggs pleaded nolo contendere to the charged offense. See

Byrd, 336 S.W.3d at 248 (“On the other hand, a conviction that contains a material variance

that fails to give the defendant sufficient notice or would not bar a second prosecution




Diggs v. State                                                                         Page 7
for the same [offense] requires reversal, even when the evidence is otherwise legally

sufficient to support the conviction.”). We sustain Diggs’s first issue.

                                     III.   CONCLUSION

        Having sustained Diggs’s first issue on appeal, we reverse the judgment of

conviction and enter a judgment of acquittal. And in light of this conclusion, we need

not address Diggs’s second issue. See TEX. R. APP. P. 47.1, 47.4.




                                                 JOHN E. NEILL
                                                 Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray dissenting)
Reverse and acquit
Opinion delivered and filed February 26, 2020
Publish
[CR25]




Diggs v. State                                                                  Page 8
