                                  NO. 12-13-00357-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

TOCARRA LOCKETT A/K/A                             §      APPEAL FROM THE 420TH
TOCARRA MCKIND,
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      NACOGDOCHES COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Tocarra Lockett appeals his conviction for unlawful possession of a firearm. He raises
two issues on appeal. We reverse and render.


                                          BACKGROUND
       On August 9, 2013, a Nacogdoches County grand jury returned an indictment against
Appellant, alleging that he committed the offense of unlawful possession of a firearm. Appellant
pleaded “not guilty” to the offense, and a jury trial was held. The jury found Appellant guilty of
the offense, and assessed punishment at six and one-half years of imprisonment. This appeal
followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant contends the evidence is insufficient to support his
conviction. The State argues that Appellant is not entitled to an acquittal.
Standard of Review and Applicable Law
       When sufficiency of the evidence is challenged on appeal, we view all of the evidence in
the light most favorable to the verdict to decide whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010).               Under this standard, the jury is the sole judge of the
witnesses‟ credibility and the weight of their testimony. Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Brooks, 323 S.W.3d at 899. A jury is permitted to draw multiple reasonable inferences,
but it is not permitted to come to conclusions based on mere speculation or factually unsupported
inferences or presumptions. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
          In determining whether the State has met its burden of proving the defendant guilty
beyond a reasonable doubt, we compare the elements of the crime as defined by the
hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d
4, 8 (Tex. Crim. App. 2014). A 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 or
theories of liability, and adequately describes the particular offense for which the defendant was
tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
          The “law as authorized by the indictment” consists of the statutory elements of the
offense and those elements as modified by the indictment. See Thomas, 444 S.W.3d at 8. When
a statute defines alternative methods of manner and means of committing an element of the
offense and the indictment alleges only one of those methods, “the law” for purposes of the
hypothetically correct jury charge, is the single method alleged in the indictment. Gollihar v.
State, 46 S.W.3d 243, 255 (Tex. Crim. App. 2001).
          Under Section 46.04(a)(1), a convicted felon commits an offense if he possesses a
firearm


          after conviction and before the fifth anniversary of the person‟s release from confinement
          following conviction of the felony or the person‟s release from supervision under community
          supervision, parole, or mandatory supervision, whichever date is later[.]


TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011).
Discussion
          The indictment in this case alleged that on or about September 16, 2012, Appellant


          did then and there, having been convicted of the felony offense of Aggravated Robbery on the 4th
          day of October, 2002, in cause number 102422002 in the 145th Judicial District Court of
          Nacogdoches County, Texas, intentionally or knowingly possess a firearm before the fifth




                                                         2
       anniversary of the defendant‟s release from supervision under parole following conviction of said
       felony[.]



       At trial, the State introduced a “pen pack” that contained a judgment of conviction and a
public information disclosure sheet relating to Appellant‟s conviction for aggravated robbery.
The judgment shows that Appellant pleaded guilty to the offense and, pursuant to a plea bargain,
received a ten year sentence. The disclosure sheet states that Appellant‟s sentence began on
December 5, 2001, the maximum expiration of his sentence was December 5, 2011, and that
Appellant was discharged on December 5, 2011 (ten years after his sentence began). The
disclosure sheet also contained a line that stated “Date of Release,” but no date was entered on
this line. The record contains no evidence that Appellant was “released from supervision under
parole.”
       The State’s Argument
       The State argues that the discrepancy between the evidence and the indictment amounts
to an “immaterial variance” because the evidence proved that Appellant was guilty of an offense.
To support this contention, the State cites Kauffman v. State, an opinion issued by the Fort
Worth court of appeals. See generally Kauffman v. State, No. 2-02-059-CR, 2003 WL 863559
(Tex. App.—Fort Worth 2003, pet. ref‟d) (mem. op., not designated for publication).
       The defendant in Kauffman was convicted of unlawful possession of a firearm. Id. at *1.
One of the issues before the court was whether there was a fatal variance between the indictment
and the State‟s documentary evidence of the defendant‟s prior conviction. Id. at *2. The
indictment alleged the defendant was convicted of grand theft on December 13, 1996, but the
evidence showed that he was convicted on April 24, 1981, and sentenced on December 13, 1996.
Id. The defendant argued the State failed to “prove the elements of a final, prior conviction[,] or
that [he] had been legally confined on that conviction less than five years from the date of his
arrest.” Id. The court of appeals held that the date of the defendant‟s prior conviction was not
an element of the offense—it was his status as a felon that was the element. Id. at 3. Thus, the
court reasoned that “any discrepancy between the date of the prior offense alleged . . . and the
date proven at trial only affects the strength of the evidence showing that the defendant
possessed a firearm within five years of his release from confinement.” Id.




                                                      3
       Nature of the Variance
       Although the State contends that Kauffman supports its argument, we conclude the case
is not instructive because the alleged failure of proof here does not concern Appellant‟s status as
a felon. The State argues that, “when someone is released from confinement, after serving the
entire sentence, without even being given the opportunity to be placed on parole, that individual
is also „released from parole,‟ in that given case.” But this is not what the indictment alleged.
Here, the issue is whether the indictment‟s allegation, “release from supervision under parole,”
was an immaterial variance.
       A variance exists when there is a discrepancy between the allegations in the charging
instrument and the proof at trial. Gollihar, 46 S.W.3d at 246. As applied here, this occurs when
the State proves the defendant is guilty of a crime, but proves its commission in a manner that
varies from the allegations in the indictment. See id.
       There are two types of variances in an evidentiary sufficiency analysis: immaterial and
material. Thomas, 444 S.W.3d at 9. A variance is immaterial if it does not affect a defendant‟s
substantial rights.   See Gollihar, 46 S.W.3d at 248; see also Thomas, 444 S.W.3d at 9
(immaterial variance does not affect validity of conviction). A variance is material if the State
does not prove the statutory language pleaded in the indictment. See Johnson v. State, 364
S.W.3d 292, 294-95 (Tex. Crim. App. 2012). This amounts to a failure of proof, rendering the
evidence legally insufficient to support the conviction. See Johnson, 364 S.W.3d at 295; Byrd v.
State, 336 S.W.3d 242, 258 (Tex. Crim. App. 2011).
       In this case, the “release from supervision under parole” allegation in the indictment is a
statutory element of the offense under Section 46.04(a)(1).        See TEX. PENAL CODE ANN.
§ 46.04(a)(1); see also TEX. PENAL CODE ANN. § 1.07(22) (West Supp. 2014) (element of offense
means forbidden conduct, required culpability, any required result, and negation of any
exception to offense).    Although the State proved that Appellant had been released from
confinement, it failed to prove the statutory element it alleged (release from supervision under
parole). See Thomas, 444 S.W.3d at 8 (“[The State] may not rely on any other statutory manner
and means of committing the crime [that] it did not plead in the charging instrument.”). The
variance in this case is material. See Johnson, 364 S.W.3d at 295.




                                                 4
Conclusion
         Because there is no evidence that Appellant was “released from supervision under
parole,” a rational jury could not have found that the State proved each element of the offense
beyond a reasonable doubt. See Brooks, 323 S.W.3d at 895; Hooper, 214 S.W.3d at 15. The
evidence is legally insufficient to support Appellant‟s conviction. See Johnson, 364 S.W.3d at
294. The evidence presented at trial clearly shows Appellant possessed a firearm. And if the
State had indicted him alleging the statutory element of “release from confinement following
conviction of the felony,” Appellant would have been guilty of the offense charged. However,
this is not how the State chose to indict Appellant, and it bound itself to prove the offense as
alleged. For us to adopt the State‟s argument, we would have to ignore the material variance
between the allegation in the charging instrument and the proof at trial. Likewise, we would
have to conclude that the statutory element of release from confinement after serving the entire
sentence is the same as being released from parole, which would undermine the distinction the
legislature set forth in the statute. We are not inclined to do either. Accordingly, we sustain
Appellant‟s first issue. Because we have resolved Appellant‟s first issue in his favor, we need
not address his second issue. See TEX. R. APP. P. 47.1.


                                                  DISPOSITION
         Having found the evidence legally insufficient to support Appellant‟s conviction, we
reverse the judgment of the trial court and render a judgment of acquittal.

                                                                BRIAN HOYLE
                                                                   Justice

Opinion delivered March 25, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          5
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                          MARCH 25, 2015


                                        NO. 12-13-00357-CR


                   TOCARRA LOCKETT A/K/A TOCARRA MCKIND,
                                  Appellant
                                     V.
                            THE STATE OF TEXAS,
                                  Appellee


                               Appeal from the 420th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. F1320229)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment of the trial court be reversed and a judgment of acquittal be, and the same is,
hereby rendered herein in accordance with the opinion of this court; and that this decision be
certified to the court below for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
