           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-1917-11



                              DAVID RAMOS, Appellant

                                            v.

                                  THE STATE OF TEXAS



        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE EIGHTH COURT OF APPEALS
                         EL PASO COUNTY



       M EYERS, J., delivered the opinion of the Court in which P RICE, W OMACK,
       J OHNSON, H ERVEY, and C OCHRAN, JJ., joined. A LCALA, J., filed a concurring
       opinion. K ELLER, P.J., filed a dissenting opinion. K EASLER, J., dissented.

                                      OPINION

       Appellant was indicted on one count of capital murder, one count of felony

murder, and one count of injury to a child involving the death of Danielle Ramos, a child

under six years old. The indictment and jury charge alleged that Appellant killed Danielle

in one of three ways: (1) by shaking, (2) by shaking and causing Danielle’s head to strike
                                                                                     Ramos—2




an object, or (3) by shaking and striking Danielle’s head with an object.1 The jury

convicted Appellant of the lesser-included offense of manslaughter and sentenced him to

ten years in prison.2 Appellant appealed and argued that the evidence is legally

insufficient to support the jury’s determination: “(1) that he acted ‘recklessly;’ or (2) that

‘shaking’ caused Danielle’s death.”3 The court of appeals found Appellant’s statement

that he threw Danielle into her crib out of frustration provided a rational basis from which

the jury could have found recklessness; that is, he consciously disregarded her safety.4

The court of appeals affirmed the conviction of the trial court after concluding that the

testimony at trial regarding the nature of Danielle’s head injuries also provided a rational

basis for the jury to conclude that Appellant’s actions caused Danielle’s death.5

Appellant filed a petition for discretionary review, which we granted to determine

whether the court of appeals erred in holding that a hypothetically correct jury charge for

manslaughter did not require the State to prove the act or acts relied upon to constitute

recklessness. However, since this petition was granted, this Court issued an opinion on


       1
        Ramos v. State, No. 08-09-00279, 2011 WL 3715956, at *4 (Tex. App.–El Paso Aug. 24,
2011, pet. granted) (not designated for publication).
       2
           Id. at *3.
       3
           Id.
       4
           Id. at *4.
       5
           Id.
                                                                                  Ramos—3




Johnson v. State6 and addressed a nearly identical issue. Therefore, we will analyze this

case in light of Johnson and focus on whether the notice requirement of Article 21.15 of

the Code of Criminal Procedure affects the determination of whether there was a material

variance between the pleading and proof in this case. We hold that the variance between

pleading and proof is immaterial in this case and affirm the decision of the court of

appeals.

                                      BACKGROUND

Summary of Facts

       At 9 p.m. on March 15, 2006, Danielle Ramos was admitted to the emergency

room unconscious and not breathing. She was pronounced dead less than fifteen minutes

later, and medical examiners ruled her death a homicide. Dr. Paul Shrode, the Chief

Medical Examiner for El Paso County, concluded that Danielle’s death was the result of

an impact injury to her head. Appellant was interviewed soon after Danielle was

pronounced dead, however his statement at that time was inconsistent with the statement

he gave after being taken into police custody. Once in custody, he stated that he was

home taking care of three children when he woke to the sound of Danielle crying. He

became frustrated when he was unable to calm her and she continued to cry. He stated

that he did not know what to do, so he “[k]ind of like not intentionally threw her hard.


       6
           364 S.W.3d 292 (Tex. Crim. App. 2012).
                                                                                    Ramos—4




Just threw her on her bassinet to see if she would stop crying.” He discovered that she

was not breathing that afternoon, but did not alert his wife until they returned home after

dinner that evening. When asked by the detective why Appellant had not explained this

during their first interview, Appellant explained, “It was my fault. I wanted something

else. Something else.” Appellant was charged with capital murder, felony murder, and

injury to a child. At trial, Dr. Shrode testified that some type of trauma to Danielle’s head

caused her brain to bleed and swell. He found that it was more likely that her head was in

motion when it struck an object than it was that an object struck her head when her head

was stationary. He also testified that shaking, coupled with an impact, was consistent

with the injuries that caused Danielle’s death. This was the only evidence indicating that

Appellant shook Danielle or that shaking Danielle caused her death. However, there was

substantial evidence that Appellant threw Danielle into her metal-framed bassinet.

Appellant was found guilty of manslaughter, an option that was submitted to the jury as a

lesser-included offense of the charged capital murder. Appellant appealed and argued

that the evidence was insufficient to prove that shaking caused Danielle’s death.

However, the court of appeals held that the hypothetically correct jury charge for

manslaughter “would ask whether Appellant recklessly caused the death of Danielle

Ramos,” and would not include the manner and means alleged in the indictment.7

       7
           Ramos, No. 08-09-00279, 2011 WL 3715956, at *4.
                                                                                   Ramos—5




Appellant’s Argument

       Appellant argues that the State failed to prove that Appellant caused Danielle’s

death by shaking her as alleged in the indictment and therefore did not meet the notice

requirement of Article 21.15 of the Code of Criminal Procedure. Appellant contends that

under Article 21.15, a hypothetically correct jury charge for manslaughter should have

included the act or acts relied upon to constitute recklessness and that the court of appeals

ignored the acts alleged when conducting its sufficiency review. Appellant argues that

there is no evidence that shaking caused Danielle’s death.

State’s Argument

       The State argues that the variance in pleading and proof is immaterial. First, in

result-of-conduct offenses like manslaughter, where the unit of prosecution is death of the

victim, a variance in pleading and proof in the manner of the offense’s commission is

immaterial. Second, the acts pled in the indictment were not acts constituting

recklessness since the indictment did not charge manslaughter. Therefore, the State

argues that the court of appeals did not err in its decision.

                                         ANALYSIS

       When determining the legal sufficiency of the evidence, we must (1) consider the

entire record in the light most favorable to the verdict and (2) determine whether, based

on the record, any rational trier of fact could have found the defendant guilty of all the
                                                                                     Ramos—6




essential elements of the offense beyond a reasonable doubt.8

       Additionally, the essential elements of the offense are defined by the

hypothetically correct jury charge for the case.9 A hypothetically correct jury charge does

four things: (1) accurately sets out the law, (2) is authorized by the indictment, (3) does

not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and (4) adequately describes the particular offense for which the

defendant was tried.10 However, we have determined that a hypothetically correct jury

charge does not have to include all of the charging instrument’s allegations.11

       As we explained in Johnson, there are two ways a variance can occur in pleading

and proof:

       First, a variance can involve the statutory language that defines the offense.
       This can happen when a statute specifies alternate methods by which an
       offense could be committed, the charging instrument pleads one of those
       alternate methods, but the State proves, instead, an unpled method. For
       example, the retaliation statute makes it a crime to threaten a “witness” or
       “informant.” The first type of variance occurs if the State pleads only
       “witness” in the charging instrument and proves only the unpled element of
       “informant” at trial. Second, a variance can involve a non-statutory



       8
        Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); see also Jackson v.
Virginia, 443 US. 307, 319 (1979).
       9
           Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
       10
            Id.
       11
            Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001).
                                                                                    Ramos—7




       allegation that is descriptive of the offense in some way. For example, the
       charging instrument pleads “Mary” as the victim, but the State proves
       “John” at trial. Or the charging instrument pleads the offense was
       committed with a knife, but the State proves at trial that a baseball bat was
       used.12

       The variance in Johnson was of the second type, a non-statutory allegation, which

is precisely the same kind of variance that is at issue in this case. In Johnson, the relevant

count of aggravated assault charged that the appellant intentionally or knowingly caused

serious bodily injury by hitting the victim with his hand or by twisting her arm with his

hand. However, the victim testified that appellant threw her against a wall, which caused

her serious bodily injury. We held that the variance involved a non-statutory type of

allegation that does not help define the allowable unit of prosecution for this result-of-

conduct crime, and therefore, the variance did not render the evidence insufficient and is

immaterial.

       In this case, the indictment alleged, and the charge required the jury to decide

whether, Appellant caused the victim’s death by shaking her but testimony indicated that

he caused an object to strike her head, resulting in her death. Appellant argues that

because Appellant was convicted of manslaughter, Section 21.15 of the Code of Criminal

Procedure applies, the State is required to plead the acts relied upon to constitute

recklessness. Section 21.15 states:

       12
            Johnson, 364 S.W.3d at 294.
                                                                                   Ramos—8




       Whenever recklessness or criminal negligence enters into or is a part or
       element of any offense, or it is charged that the accused acted recklessly or
       with criminal negligence in the commission of an offense, the complaint,
       information, or indictment in order to be sufficient in any such case must
       allege, with reasonable certainty, the act or acts relied upon to constitute
       recklessness or criminal negligence, and in no event shall it be sufficient to
       allege merely that the accused, in committing the offense, acted recklessly
       or with criminal negligence.13

       However, Section 21.15 does not apply in this situation because the indictment did

not include manslaughter, which was a lesser-included offense. Furthermore,

manslaughter is a “result of conduct” crime where the “focus” or gravamen is the “death

of the individual.” 14

       Applying the law to this case, we must determine whether any variance in pleading

and proof was material. As mentioned above, the purported variance in this case involves

a non-statutory allegation that is descriptive of the elements of the offense. Specifically,

the variance deals with the alleged method by which Appellant caused the death of the

victim–whether by shaking, shaking and striking her head against an object, or shaking

and striking her head with an object. While the State plead the above three acts as the

possible method of causing the victim’s death, the evidence fails to prove definitively the

exact method of commission of manslaughter. However, as we held in Gollihar, the



       13
            Tex. Code Crim. Proc. Ann. § 21.15 (West 2011).
       14
            Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999).
                                                                                        Ramos—9




pleading of unnecessary facts gives rise to an immaterial variance.15

       There are three relevant opinions that provide us with a valid framework of

analysis and guide us when determining whether a variance in pleading and proof is

material in regard to legal sufficiency.

       First, in Johnson we focused on the offense’s unit of prosecution by looking at the

gravamen of the offense.16 As previously explained, the gravamen of murder is death of

the victim.17 Therefore, the manner by which the murder is committed is irrelevant as

long as surrounding evidence shows beyond a reasonable doubt that Appellant was

reckless and caused the victim’s death.18 Applied to this situation, any variance in

pleading and proof is immaterial because the surrounding evidence and Appellant’s

testimony show that Appellant (1) was reckless in his care of the victim and (2) caused

the victim’s death.19 In Johnson, we held that in “result of conduct” crimes such as


       15
            Gollihar, 46 S.W.3d at 257.
       16
            Johnson, 364 S.W.3d at 295–96.
       17
            Ervin, 991 S.W.2d at 804.
       18
            Johnson, 364 S.W.3d at 295–96.
       19
          There was ample evidence that could have led a jury to conclude that Appellant was
reckless in his actions. He admitted to throwing seven-month-old Danielle into her metal
bassinet “to see if she would stop crying.” There was also evidence that Appellant was also
reckless in his inaction. When Appellant checked on Danielle, he believed she was in a “very
deep sleep” and was not breathing or responding. Although Appellant sensed that something was
wrong, he continued other activities, including taking his wife to dinner, before finally informing
                                                                                 Ramos—10




aggravated assault, the gravamen of the offense is the serious bodily injury, not what

caused the injury.20 Therefore, a variance regarding a non-statutory allegation describing

the method of the offense of a result-of-conduct offense is immaterial.

       Second, in Gollihar we clarified the effect of variances between indictment and

proof and focused on whether (1) there was sufficient notice to the defendant so he may

prepare an adequate defense at trial, and (2) there was no risk of double jeopardy.21 The

facts of this case are similar to those in Gollihar. In Gollihar, the defendant was charged

with stealing a go-cart model 136202, however, at trial the defendant was proved to have

stolen go-cart model 136203.22 We held that the variance in pleading and proof was

immaterial because the evidence and defendant’s testimony showed that he was on

notice.23 Furthermore, the facts surrounding the offense were so specific regarding the

theft of one go-cart that we determined that there was little risk that the defendant would

be re-prosecuted for the same offense.24 Similarly in this situation, notwithstanding any




others of his actions.
       20
            Johnson, 364 S.W.3d at 295–96.
       21
            Gollihar, 46 S.W.3d at 243.
       22
            Id. at 244.
       23
            Id. at 258.
       24
            Id.
                                                                                   Ramos—11




variance in pleading and proof regarding the precise method by which Appellant caused

the death of the victim, Appellant was still put on notice regarding the specific offense of

manslaughter because Appellant was charged with murder, and the events surrounding

the event were unique. Also, because this manslaughter concerns one deceased victim,

there is no risk that Appellant would later be prosecuted for the same offense. Therefore,

the variance is immaterial.

       Finally, we will employ the cumulative-force analysis used in Lucio v. State,25

where if an uncertainty regarding legal sufficiency exists, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative force of

all the incriminating circumstances is sufficient to support the conviction.”26 In Lucio, we

determined that the evidence was legally sufficient to support a conviction for capital

murder, even though the defendant admitted only that she struck the two-year-old victim

at some time.27 The evidence indicated that the defendant had the opportunity to inflict

the victim's fatal injuries, as she was the victim's primary care-giver, she told police that

she spanked or hit the victim several times, and that the victim's father and her older

children did not hit the victim. Based on this evidence the jury could infer that defendant



       25
            351 S.W.3d 878 (Tex. Crim. App. 2011).
       26
            Id. at 878.
       27
            Id.
                                                                                  Ramos—12




caused the victim’s fatal injuries despite the fact that the evidence did not prove the

method of commission of the offense. The facts of Lucio almost mirror the facts of our

case–like in Lucio: (1) Appellant corroborated committing the result-of-conduct offense;

and (2) the evidence does not prove the specific method of commission of the offense.

As in Lucio, the evidence in this case would lead a jury to infer beyond a reasonable

doubt that Appellant committed the offense of manslaughter, and therefore the variance is

immaterial.

Conclusion

       Because (1) the gravamen of manslaughter is the death of the victim, and the

evidence shows beyond a reasonable doubt that Appellant caused the death of the victim,

(2) notice was adequately provided to Appellant, and there is no risk of double jeopardy,

and (3) the cumulative force of the evidence supports the jury’s verdict that, beyond a

reasonable doubt, the Appellant caused the death of the victim, the variance in pleading

and proof is immaterial. We affirm the decision of the court of appeals.




                                    Meyers, J.

Delivered: June 26, 2013

Publish
