           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1717-11



                       TONYA JEAN DAUGHERTY, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIFTH COURT OF APPEALS
                            COLLIN COUNTY

       H ERVEY, J., filed a dissenting opinion in which M EYERS and K EASLER, JJ.,
joined.

                               DISSENTING OPINION

       I respectfully disagree with the disposition of this case. Today the majority holds

that there is insufficient evidence to prove that Appellant committed theft by deception.

But in so holding, the majority ignores key evidence and neglects the ground upon which

we granted review.

       On April 16, 2008, Appellant entered into a construction contract with Gary Bailey
                                                                             Daugherty Dissent - 2

to finish out a newly rented office space. The contract was for “$48,251 plus or minus

any approved change orders,” of which the Appellant’s landlord agreed to pay

$32,040.00.1 On the day the contract was executed, Appellant wrote a check for

$1,657.00. Bailey went to his bank on the same day and deposited the check, which

cleared.

       The construction contract provided that substantial completion was to occur “on or

about June 7, 2008 (apx 5 weeks after issuance of building permit).” However, Bailey

testified that approximately a month and a half passed after the contract’s execution

before the city issued a permit and he could begin the work. In the meantime, Appellant

had spent the money that she intended to pay Bailey on her own personal expenses. On

May 31, 2008, Appellant’s bank account had a balance of $1,870.59. Thus, she did not

have the money in her account to pay Bailey the roughly $15,000 owed, but she did not

inform him of this. Meanwhile, Bailey hired subcontractors and began the thirty-day

construction project.

       When he was one week away from completing the work, Bailey called Appellant

to make sure that she would have proper payment arranged by the time of completion, and

Appellant assured him that he would be paid. Records showed that Appellant’s bank

account balance was only $1,839.84 on June 30, 2008. Bailey completed the work on

July 3, 2008, and then obtained a certificate of occupancy from the City of Frisco on July

       1
        Appellant testified that, per their lease agreement, the landlord would pay a portion of
the remodeling work done to the building.
                                                                            Daugherty Dissent - 3

10, 2008. There was no work performed on the contract after July 10. According to the

contract, the remaining balance owed for the services was then due,2 so arrangements

were made for Bailey to meet with Appellant and her husband on July 14, 2008. At the

meeting, Appellant gave Bailey two checks to cover the work completed, one for

$15,871.00 for her portion of the cost and another to cover her landlord’s portion.3

Appellant testified that she was aware at the time she wrote the checks that she had

insufficient funds to cover them, but that she wrote them because she was “wanting

[Bailey] to feel better about the situation” and to believe that he would be paid.

       Bailey testified that when he attempted to deposit the $15,871.00 check several

days later, he was informed by his banker that there were insufficient funds to cover the

check.4 After speaking with Appellant’s husband, Bailey returned to the bank three to

four days later, and he again learned that there were insufficient funds to cover the check.

Bailey spoke to Appellant again and was assured that there would be funds to cover the

check. Bailey then went to the bank a third time and was told that there were insufficient

funds to cover the check. After speaking to Appellant’s husband one final time, Bailey

was assured that the funds for the check were being taken care of, and he deposited the


       2
         The contract provided that the final payment “shall be made after substantial completion
of the project (Final and CO city inspections).”
       3
       The landlord eventually paid his portion, so charges were pursued only on the
$15,871.00 check.
       4
        The trial record shows that Bailey and Appellant both banked at Compass Bank, but they
used different branches.
                                                                          Daugherty Dissent - 4

check. The next day, the check was returned for insufficient funds. Bank records

revealed that at no point from May 31, 2008, through September 2008 did Appellant have

sufficient funds in her bank account to cover a $15,000 check.

       Bailey testified that he sent Appellant a demand for payment in full, dated August

5, 2008, that included notice that failure to pay within ten days creates a presumption of

committing an offense. See T EX. P ENAL C ODE § 31.04(b)(2). When Bailey did not

receive payment, he referred the matter to the hot check division of the Collin County

District Attorney’s Office. Gary Cochrane, an investigator for the hot check division,

testified that Appellant worked with the D.A. to set up a payment plan, and under the

agreement, Appellant admitted knowing that she lacked the funds in the bank to cover the

checks when she wrote them.5 Cochrane stated, and payment records support, that

Appellant paid around $7,658.67 in restitution, but when she failed to make the

appropriate payment,6 Cochrane referred the case to the grand jury division.

       Subsequently, Appellant was indicted for theft of services. The indictment alleged

that Appellant did




       5
         The payment plan agreement shows that Appellant initialed next to the following
language: “I admit and acknowledge that I signed and issued all of the checks as referenced on
the attached list, and I knew at the time I signed and issued those checks that I did not have
sufficient funds in the bank to pay those checks . . . .”
       6
        Appellant agreed to make a down payment of $4,000 and three separate payments of
$3,992.00. However, when she made an initial down payment of $3,500, the remaining
payments were adjusted to $4,158.67 each. Appellant made a single payment of $4158.67 and
then ceased making payments.
                                                                         Daugherty Dissent - 5

       by deception, threat, or false token, to-wit: by issuing and passing a check,
       when the defendant did not have sufficient funds in and on deposit with the
       bank for the payment in full of the check as well as all other checks then
       outstanding, intentionally and knowingly secure performance of a service,
       namely, construction services, of the value of at least Fifteen Hundred
       Dollars ($1,500.00) but less than Twenty Thousand Dollars ($20,000.000),
       from Gary Bailey, intending to avoid payment for the service and knowing
       that the service was provided only for compensation.

       At trial, after the State rested its case, Appellant moved for a directed verdict of

not guilty on the grounds that there was insufficient evidence to support that the services

were secured by deception. Appellant claimed that the deception, if any, occurred after

the services were secured and, thus, Section 31.04(a)(1) of the Texas Penal Code was not

violated as the State charged. The trial court denied Appellant’s motion.

       In the jury charge, the State relied on the statutory definitions of deception

contained in Section 31.01(1) of the Texas Penal Code. Accordingly, the jury was

instructed that

       “Deception” means:
             (1) creating or confirming by words or conduct a false impression of
             law or fact that is likely to affect the judgment of another in the
             transaction, and that the actor does not believe to be true;
             (2) failing to correct a false impression of law or fact that is likely to
             affect the judgment of another in the transaction, that the actor
             previously created or confirmed by words or conduct, and that the
             actor does not now believe to be true;
             (3) preventing another from acquiring information likely to affect his
             judgment in the transaction;
             (4) selling or otherwise transferring or encumbering property without
             disclosing a lien, security interest, adverse claim, or other legal
             impediment to the enjoyment of the property, whether the lien,
             security interest, claim, or impediment is or is not valid, or is or is
             not a matter of official record; or
                                                                       Daugherty Dissent - 6

              (5) promising performance that is likely to affect the judgment of
              another in the transaction and that the actor does not intend to
              perform or knows will not be performed, except that failure to
              perform the promise in issue without other evidence of intent or
              knowledge is not sufficient proof that the actor did not intend to
              perform or knew the promise would not be performed.

The jury returned a verdict of guilty. The trial court sentenced Appellant to one year

confinement (probated for two years), $8,317.33 restitution, 100 hours of community

service, and completion of an anti-theft course. The Dallas Court of Appeals reversed the

trial court’s judgment and entered a judgment of acquittal after determining that the

evidence was insufficient to support Appellant’s conviction. Daugherty v. State, No. 05-

10-00832-CR, 2011 Tex. App. LEXIS 6770, at *8 (Tex. App.—Dallas Aug. 24, 2011)

(not designated for publication).

       The State appealed to this Court, and we granted discretionary review to

specifically address the following issue:

       This Court held in Cada v. State that “immaterial variance” law as set out in
       Gollihar does not apply to the specific statutory elements alleged in the
       indictment. But what happens when the allegation at issue is not a statutory
       element and not part of the definitions of the offense but originates from
       another statute entirely? Does Gollihar’s two-part test for materiality
       apply?

Although we granted review on this ground, which focuses on variance law, the majority

gives minimal attention to that issue. See Maj. Op. at 13. As I will explain, the variance

issue is critical to determining whether the evidence here meets the legal sufficiency

standard—this Court must first determine whether there was a variance between the
                                                                         Daugherty Dissent - 7

allegations of the indictment and the proof offered at trial. Gollihar v. State, 46 S.W.3d

243, 246 (Tex. Crim. App. 2001).

       In assessing the legal sufficiency of the evidence to support a conviction, we

analyze “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). To

determine “the essential elements of the crime,” we look to the hypothetically correct jury

charge for the case. Malik v. 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. The law as “authorized by the

indictment” includes the statutory elements of the offense “as modified by the charging

instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

       The hypothetically correct jury charge does not necessarily have to track all of the

charging instrument’s allegations—“a hypothetically correct charge need not incorporate

allegations that give rise to immaterial variances.” Gollihar, 46 S.W.3d at 253, 256

(emphasis added). A variance occurs when there is a discrepancy between the charging

instrument and proof at trial. In such a situation, “the State has proven the defendant

guilty of a crime, but has proven its commission in a manner that varies from the
                                                                            Daugherty Dissent - 8

allegations in the charging instrument.” Id. at 246. A variance between the wording of

the indictment and the evidence presented is fatal only if it is material7 and prejudices the

defendant’s substantial rights. Id. at 257.

       Therefore, to determine whether the evidence meets the legal sufficiency standard,

this Court must first determine whether there was a variance between the allegations of

the indictment and the proof offered at trial. Gollihar, 46 S.W.3d at 246.

       In this case, the indictment specifically alleged that Appellant, “by deception,

threat, or false token, to-wit: by issuing and passing a check, when the defendant did not

have sufficient funds in and on deposit with the bank for the payment in full of the check

as well as all other checks then outstanding, intentionally and knowingly secure

performance of a service, namely, construction services . . . .” I agree with the majority

that Appellant’s issuance of the bad check (alone), as alleged in the indictment, could not

have secured Bailey’s services because the check was not written until the services were

rendered. See Cortez v. State, 582 S.W.2d 119, 120-21 (Tex. Crim. App. 1979)

(“Obviously any deception that occurs after the other person has completed performance

of his obligations in the transaction, any later deception would be incapable of affecting

retrospectively his judgment in what he has already completed.”); see also Gibson v.

State, 623 S.W.2d 324, 329-31 (Tex. Crim. App. 1981) (op. on reh’g). In this case,


       7
        In assessing materiality, we ask two questions: first, “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, second, “whether prosecution under the deficiently drafted indictment
would subject the defendant to the risk of being prosecuted later for the same crime.” Id. at 248
                                                                              Daugherty Dissent - 9

however, there is evidence of deception long before, and continuing through, the issuance

of a bad check. Cf. Cortez, 582 S.W.2d 119 (holding that there was no evidence of

deception by which the appellant secured performance of the service when the only

evidence presented showed that the appellant issued a bad check upon completion of the

services). Because the instant indictment stated that the services were secured with an

insufficient funds check, an issue has developed as to whether other evidence of

deception offered by the State was sufficient proof of theft by deception, thus creating a

variance.

       This Court has recognized three different categories of variance. The variance in

this case falls into the third category identified in Johnson, that with respect to “an

immaterial, non-statutory allegation.” Johnson, 364 S.W.3d at 299.8 It neither refers to

the statutory language that defines the offense9 nor involves a non-statutory allegation that




       8
          This Court identified the variance in Johnson as belonging to the third category. There,
the State charged the defendant with causing bodily injury by hitting the victim with his hand or
twisting her arm, but it proved that the defendant threw the victim against the wall, which caused
her to break her arm. Johnson, 364 S.W.3d at 293. We determined that, because the variance
did not describe the focus or gravamen of the offense and “[t]he precise act or nature of conduct
in this result-oriented offense is inconsequential,” it did not rise to the level necessary to be
material. Id. at 298. Variance in the third category is immaterial and, therefore, does not render
the evidence legally insufficient. Id. at 299.
       9
         Johnson, 364 S.W.3d at 294; see, e.g., Cada v. State, 334 S.W.3d 766, 768 (Tex. Crim.
App. 2011)( holding that a material variance existed when the indictment alleged one statutory
alternative, that the victim was “a witness,” but proof was offered of another statutory alternative,
that the victim was either “a prospective witness” or “an informant”); see also Geick v. State, 349
S.W.3d 542, 547-48 (Tex. Crim. App. 2011).
                                                                          Daugherty Dissent - 10

describes an allowable unit of prosecution.10 Variance in the third category is immaterial

and, therefore, does not render the evidence legally insufficient. Id. at 298, 299

(“Variances such as this can never be material because such a variance can never show an

‘entirely different offense’ than what was alleged.”).

       The theft of services statute provides several means by which the offense may be

committed. T EX. P ENAL C ODE § 31.04. The State alleged only one of those means—theft

by deception. Thus, the State was required to prove only that Appellant “intentionally or

knowingly secured performance of the service by deception.” Id. § 31.04(a)(1).

Although the State used language from Texas Penal Code Section 32.41(a) in the

indictment, that description did not become an element of the statute charged. It was

merely a descriptive averment of the specifically pled manner and means, and it was not a

statutory alternative of the controlling statute of theft of service. Cf. Geick v. State, 349

S.W.3d 542, 547 (Tex. Crim. App. 2011) (holding that the State was bound to prove theft

by deception, rather than theft alone, when it alleged the more narrow offense by

choosing to specifically plead one of five possible circumstances that make consent

ineffective).



       10
         Johnson, 364 S.W.3d at 298; see, e.g., Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App.
2011). There are two gravamina for the crime of theft (the property or service and the
ownership), which in combination can be used to determine the allowable unit of prosecution.
See Johnson, 364 S.W.3d at 297. The language at issue in this case neither describes the services
stolen nor details the ownership of the services stolen. It merely describes the means by which
Appellant committed deception.
                                                                         Daugherty Dissent - 11

       And indeed the State proved that which it was required to prove: that Appellant

“intentionally or knowingly secured performance of the service by deception.” T EX.

P ENAL C ODE § 31.04(a)(1). The State presented evidence of a continuum of actions and

events reflecting deception by Appellant to secure Bailey’s performance, much of which

the majority downplays or completely ignores. The issuance of the worthless check was

simply the final act of deception. The State showed that as early as May 31 (when the

construction work was just beginning) and continuing until trial, Appellant’s bank

account never carried a balance large enough to cover the approximately $15,000

promised under the contract; that by the time work began in earnest at the end of May or

the beginning of June, she knew that she did not have the money to pay the contract but

did not inform Bailey of such and continued to spend the money on her personal

expenses; and that a week before Bailey completed the construction work, Bailey called

Appellant to ensure that she and her husband would have the money to pay him, and

Bailey was assured that he would be paid. All of these acts occurred before services were

complete, that is, before Bailey completed construction and then conveyed the certificate

of occupancy to Appellant.11

       The definitions of deception provided by Section 31.01(1) of the Texas Penal

Code, except for one not relevant here, require that the deception “affect the judgment of


       11
         I disagree with Appellant’s argument that the services must have been secured before
the contract was executed on April 16, 2008. As long as services were unperformed, those
remaining services could be secured through deception. Therefore, deceptive acts affecting
Bailey’s judgment could have occurred up until July 10, 2008.
                                                                       Daugherty Dissent - 12

another in the transaction.” T EX. P ENAL C ODE § 31.01(1). The majority mistakenly

claims that the State failed to prove any such deception. Because services were still

outstanding when the identified acts occurred, Appellant’s actions could have affected the

judgment of Bailey and, thus, satisfied the statutory definitions of deception. Therefore,

unlike Cada v. State, 334 S.W.3d 766, 768 (Tex. Crim. App. 2011), in which the State

pled one statutory alternative (the victim was a “witness”) but offered evidence of another

statutory alternative (the victim was a “potential witness” or an “informant”), the State in

this case alleged theft of services by deception (i.e., that Appellant secured performance

of service by deception) and then offered evidence of the same.

       The majority contends that even if our “immaterial variance” law allowed this

variance from the indictment, the fact remains that the State was still not able to prove

beyond a reasonable doubt that Appellant secured services through any form of deception.

See Maj. Op. at 13. But as discussed previously, the State did offer evidence that

Appellant’s actions could have affected Bailey’s judgment in rendering

services12 —Appellant promised to pay for the work before it was completed and knew

that she did not have sufficient funds, at any point, to follow through. When the

construction work was just beginning, and continuing until trial, Appellant’s bank

account never carried a balance large enough to cover the contract. By the time work

began in earnest, Appellant knew that she did not have the money to pay the contract but



       12
            TEX . PENAL CODE § 31.01(1).
                                                                     Daugherty Dissent - 13

did not inform Bailey of such. Instead, she continued to spend the money on her personal

expenses. And when, a week before the construction was completed, Bailey called

Appellant to ensure that she and her husband would have the money to pay him,

Appellant assured Bailey that he would be paid. All of these acts occurred before Bailey

completed the construction work and conveyed the certificate of occupancy to Appellant.

Because there were still services outstanding, Appellant’s actions could have affected

Bailey’s judgment in rendering services. See T EX. P ENAL C ODE § 31.01(1). Therefore, a

reasonable trier of fact could have found the essential element of deception beyond a

reasonable doubt. Jackson, 443 U.S. at 319.

       In conclusion, although there exists a variance between the charging instrument

and what was proven at trial, the variance involves an immaterial, non-statutory

allegation. Moreover, the evidence is legally sufficient to support Appellant’s conviction.

For these reasons, I respectfully dissent.

                                                               Hervey, J.

Filed: January 9, 2013

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