                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                    MEMORANDUM OPINION
                                             No. 04-12-00574-CR

                                            Kevin John FARESE,
                                                 Appellant

                                                    v.
                                               The STATE of
                                            The STATE of Texas,
                                                  Appellee

                      From the County Court at Law No. 5, Bexar County, Texas
                                      Trial Court No. 223808
                              Honorable Jason Pulliam, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: February 19, 2014

AFFIRMED

           After a jury trial, Kevin John Farese was found guilty of driving while intoxicated on July

28, 2007. He appeals, arguing (1) the State “failed in [its] proof when the charge to the jury did

not track the charging instrument”; and (2) the State violated Brady v. Maryland, 373 U.S. 83

(1963), when it failed to provide the defense with a letter allegedly stating that Al McDougall 1

suffered from failing cognitive abilities in March 2012. We affirm.



1
 Mr. McDougall supervised the breath-alcohol testing program in Bexar County on the date Farese was arrested for
DWI. He did not testify at trial. Instead, Debbie Stevens testified that she examined the records Mr. McDougall kept,
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        In his first point of error, Farese argues that there was a failure of proof in that the charge

to the jury did not conform to the charging instrument. Farese emphasizes that the application

paragraph of the jury charge did not provide the jury with the option of convicting him if it believed

his blood alcohol level was greater than .08, but instead allowed for a conviction only if it believed

he had lost the normal use of his mental and physical faculties. See TEX. PENAL CODE ANN.

§ 49.01(2) (West 2011) (defining “intoxicated” as “not having the normal use of mental or physical

faculties by reason of the introduction of alcohol” or “having an alcohol concentration of .08 or

more”). Thus, Farese argues the jury could convict him only if it believed that he had lost the

normal use of his mental and physical faculties. And, according to Farese, the evidence is

insufficient to show that he had lost the normal use of his mental and physical faculties. However,

as pointed out by the State, we do not measure the sufficiency of the evidence by the jury charge

actually given to the jury. See Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (“No

longer shall sufficiency of the evidence be measured by the jury charge actually given.”). Instead,

the sufficiency of the evidence is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011).

        A hypothetically correct jury charge need not incorporate allegations that give rise to

immaterial variances. Id. at 248. Farese complains about a variance between the allegations in the

charging instrument and the proof offered at trial. A variance occurs when there is a “discrepancy

between the allegations in the indictment and the proof offered at trial.” Id. at 246. “Variances are

mistakes of one sort or another.” Id. “Sometimes they make no difference at all; sometimes they

make all the difference.” Id. For example, if an “indictment alleges that the defendant killed

Dangerous Dan McGrew,” but at trial the State proved that “the defendant killed Little Nell,” the


and based upon her inspection of the records, the breath intoxilyzer machine was working properly on the date that
the test was given to Farese.

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State would fail “to prove its allegation that the defendant killed Dangerous Dan McGrew” and

the defendant would be entitled to an acquittal. Id. at 246-47. “Murder may be murder, but killing

one person is not the same offense as killing an entirely different person.” Id. at 246. “Of course,”

the defendant could be later “reindicted and tried for the murder of Little Nell, as he was never

placed in jeopardy for killing her.” Id. at 247. “A variance of this type is actually a failure of proof

because the indictment sets out one distinct offense, but the proof shows an entirely different

offense.” Id.

        If instead the State had proved that “the defendant killed Dan McGrew, but every witness

agreed that Dan was not at all dangerous and had never been called Dangerous,” or that “the murder

victim was really Don McGrew, Daniel MacGrew, or Dan Magoo,” there would be a variance

between the allegation in the charging instrument and the proof at trial. Id. However, such

variances are “little mistakes, generally not likely to prejudice a defendant’s substantial rights by

either (1) failing to give him notice of who it was he allegedly killed, or (2) allowing a second

murder prosecution for killing the same person with a different spelling of his name.” Id. “Little

mistakes or variances that do not prejudice a defendant’s substantial rights are immaterial.” Id. at

247-48. “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 for the same murder requires

reversal, even when the evidence is otherwise legally sufficient to support the conviction.” Id. at

248.

        Under a hypothetically correct jury charge, Farese committed “the offense of DWI if (1)

he (2) operated (3) a motor vehicle (4) in a public place (5) while intoxicated.” Kirsch v. State, 366

S.W.3d 864, 867 (Tex. App.—Texarkana 2012, no pet.); see TEX. PENAL CODE ANN. § 49.04

(West Supp. 2013). The definitions contained in section 49.01 of the Texas Penal Code “set forth

alternate means by which the State may prove intoxication, rather than alternate means of
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committing the offense.” Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003) (emphasis

in original). “The conduct proscribed by the Penal Code is the act of driving while in a state of

intoxication.” Id. “That does not change whether the State used the per se definition or the

impairment definition to prove the offense.” Id. “[E]vidence to prove intoxication under either

definition is relevant to the single question of whether appellant was, in fact, intoxicated.” Id. at

763. Thus, there was no material variance in this case.

       In considering the sufficiency of the evidence under the hypothetically correct jury charge,

we note there is evidence in the record of the following: (1) Farese was driving a motor vehicle in

downtown San Antonio when he turned the wrong way down a one-way street; (2) as he made the

turn, he passed a big, red, circular “wrong way” sign; (3) the arresting officer attempted to conduct

a traffic stop and although the officer used his PA system four times, he was unable to gain Farese’s

attention; (4) only after the officer shined his spotlight did Farese stop his vehicle; (5) there was

an open container of alcohol in the back seat within Farese’s reach, and the officer found no

indication that the passenger of the car had been drinking; (6) the officer detected the odor of

alcohol emanating from the vehicle; (7) Farese admitted to having consumed alcohol at a bar; (8)

while performing field sobriety tests, Farese exhibited signs of intoxication; (9) Farese’s breath-

alcohol test results indicated that he had consumed an amount of alcohol consistent with the loss

of the normal use of mental or physical faculties. This evidence is sufficient to support Farese’s

conviction for DWI. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (explaining

that in a sufficiency review, a court reviews all the evidence in the light most favorable to the jury

verdict to determine whether any rational jury could have found the essential elements of the

offense beyond a reasonable doubt).

       Farese also argues because the application paragraph of the jury charge instructed the jury

to find him guilty only if it believed he had lost the normal use of his mental and physical faculties,
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the jury may not have reached a unanimous verdict because the jurors may have focused on

different definitions of intoxication. However, as noted, the definitions contained in section 49.01

set forth alternate means by which the State may prove intoxication, rather than alternate means of

committing the offense. Bagheri, 119 S.W.3d at 762. Therefore, the jury need not be unanimous

as to whether Farese had an alcohol concentration of .08 or the loss of the normal use of his

faculties due to the introduction of alcohol into his body. See id.; see also Leza v. State, 351 S.W.3d

344, 356-57 (Tex. Crim. App. 2011). The jury needed only to unanimously agree that Farese was

intoxicated while operating a motor vehicle in a public place.

       We thus overrule Farese’s first point of error.

       In his second point of error, Farese argues the trial court erred in denying his motion for

new trial because he showed the State had failed to provide him with evidence, thus violating

Brady. In the trial court, Farese filed a motion for new trial, generally alleging that new evidence

favorable to him had been discovered since trial. At the hearing on the motion for new trial, no

evidence was admitted. Instead, Farese’s counsel simply told the trial court,

       [A]bout a week after the trial, a couple of defense attorneys received a letter, a fax
       from the Center for Neurological Care and Research regarding Mr. McDougall, and
       he’s been diagnosed, I think, since March 2012, with a – I believe it’s March 2012,
       with a terrible affliction that was – they call it very mild cognitive impairment. This
       was dated August 22, 2012 to that other defense attorney. So, this is from MD, Dr.
       Marie Alvarez.

       The thing is, Your Honor, is that we don’t know exactly when he started developing
       mild cognitive impairment, but it was never brought to my attention. . . . And this
       is something that was never brought up to defense counsel’s – to defense counsel
       regarding his cognitive impairment.

The trial court denied Farese’s motion for new trial.

       On appeal, the State emphasizes that under Brady, the defendant bears the burden of

showing that, in light of all the evidence, it is reasonably probable that the outcome of the trial

could have been different had the prosecutor made a timely disclosure. Hampton v. State, 86
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S.W.3d 603, 612 (Tex. Crim. App. 2002). “The mere possibility that an item of undisclosed

information might have helped the defense, or might have affected the outcome of the trial, does

not establish ‘materiality’ in the constitutional sense.” Id. The State points out that this letter was

never admitted in evidence at the motion for new trial hearing and is not contained within the

appellate record. The State argues that Farese did not meet his burden and that we should overrule

his second point of error without prejudice. See Leza, 351 S.W.3d at 362-63 (holding that because

letters informing appellate defense counsel of a possible Brady violation were not part of the

appellate record, appellant’s point of error was overruled without prejudice to appellant pursuing

any Brady claim that further investigation might turn up pursuant to his initial application for post-

conviction writ of habeas corpus). We agree with the State.

       Even taking into account defense counsel’s proffer of McDougall suffering from a “mild

cognitive impairment” in 2012, Farese was arrested for DWI and took a breath-alcohol test in

2007. There is no evidence in this record that McDougall was affected by any such mild cognitive

impairment in 2007 when he was supervising the breath-alcohol testing program in Bexar County.

Further, there is no evidence as to the extent of this “mild disorder” or how it might have affected

McDougall. Thus, Farese did not carry his burden. We overrule his second point of error without

prejudice to him pursuing any Brady claim that further investigation might turn up pursuant to his

initial application for post-conviction writ of habeas corpus. See Leza, 351 S.W.3d at 362-63.

       Accordingly, we affirm the judgment of the trial court.


                                                   Karen Angelini, Justice

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