                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00269-CR


FREDRICK STEINBERGER, III                                             APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 97TH DISTRICT COURT OF ARCHER COUNTY

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                         MEMORANDUM OPINION1
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                                   Introduction

      Appellant Fredrick Steinberger, III, appeals his conviction and sentence for

a drug offense after the trial court adjudicated his guilt and revoked his deferred-

adjudication community supervision. In a single issue, Appellant claims there is

a fundamental variance between his name as alleged in the State’s motion to

adjudicate and the proof offered at the hearing on the State’s motion. We affirm.

      1
       See Tex. R. App. P. 47.4.
                   Background Facts and Procedural History

        An indictment returned to the 97th District Court by an Archer County

grand jury on September 2, 2008, in cause number 2008-0000029A-CR, charged

―Frederick Steinberger, III‖     with possession of less than a gram of

methamphetamine. Later that month, on the 29th, Fredrick Steinberger, III, the

defendant in that case, pled guilty and the trial court ordered him to pay a fine

and placed him on two years’ deferred-adjudication community supervision. A

Guilty Plea Memorandum, containing admonishments and waivers refers to the

defendant as ―Fredrick Steinberger, III‖ and is signed in numerous places on

lines beneath which appear the word ―DEFENDANT‖ by ―Fredrick D. Steinberger,

III.‖ The trial court’s Order of Deferred Adjudication-Community Supervision and

its Order Imposing Conditions of Community Supervision both refer to ―Fredrick

Steinberger, III‖ as defendant and are both signed by ―Fredrick D. Steinberger

III.‖

        On March 23, 2010, the State moved to adjudicate and impose sentence,

alleging that ―Fredrick David Steinberger‖ had committed three new offenses. On

June 6, 2011, at a hearing on its motion, Appellant pled not true, the State

abandoned two allegations and presented evidence showing that during the term

of his community supervision Appellant had assaulted a public servant. The trial

court granted the State’s motion, adjudicated Appellant guilty, and sentenced him

to two years’ confinement in state jail.




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      The trial court’s order adjudicating guilt and imposing state jail confinement

refers to ―Fredrick Steinberger, III‖ as the defendant. The trial court’s certification

of defendant’s right of appeal dated June 3, 2011, refers to ―Fredrick Steinberger,

III, Defendant‖ and above the line labeled ―Defendant‖ is signed ―David

Steinberger.‖ Another trial court certification of defendant’s right of appeal, this

one dated July 25, 2011, refers to ―Fredrick David Steinberger, Defendant‖ and

above the line labeled ―Defendant‖ is signed ―Fredrick David Steinberger III.‖

                                     Discussion

      Appellant contends that the State’s proof of his name at the hearing on its

motion to adjudicate created a fatal variance from the allegation in its motion,

which alleged his name as ―Fredrick David Steinberger.‖

      The record shows that the trial court opened the hearing as follows:2

            THE COURT: All right. Call Cause No. 2008-29A-CR, The
      State of Texas versus Fredrick David Steinberger set today on the
      State’s Motion to Proceed with Adjudication of Guilt. Is the State
      ready?

             MR. McGAUGHEY: The State’s ready, Your Honor.

      2
       The court reporter spelled Appellant’s first name throughout the reporter’s
record as ―Frederick.‖ Where Appellant’s brief quotes his name from portions of
the reporter’s record in which it appears, the brief has changed the reporter’s
record spelling to ―Fredrick,‖ which is also how Appellant’s signature appears in
documents in the clerk’s record. Appellant does not argue that any variance
exists due to the reporter’s record spelling his first name with an additional ―e.‖
To be consistent with Appellant’s briefing and signature, therefore, we likewise
drop the second ―e‖ where we quote the reporter’s record in this opinion.
Appellant’s name quoted from documents in the clerk’s record, on the other
hand, such as the indictment, is spelled as it originally appears in those
documents.


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            THE COURT: Is the defendant ready?

            MR. BARBER [for the Defense]: Ready, Your Honor.

            THE COURT: And you’re Fredrick David Steinberger?

            THE DEFENDANT: Yes, sir.

      The State’s attorney first called probation officer Robert Geurin and asked

if he knew ―Fredrick Steinberger III, also known as Fredrick David Steinberger.‖

Guerin testified that he knew him as ―Mr. Steinberger, yes, Fredrick Steinberger,‖

and that he had supervised him while he was on probation. Guerin then pointed

out the person he had supervised as the ―gentleman sitting at the table there—

next to your left.‖ He also testified that the individual he had identified in open

court as the person he had supervised was the same person placed on probation

in Cause number 2008–0000029A–CR.

      Archer County Sheriff Staci Beesinger testified that she had a good rapport

with Appellant—whom she referred to as ―David‖ and ―Davy‖—having dealt with

him several times in the past. She also testified as follows:

            Q. Are you familiar with a person named Fredrick David
      Steinberger?

            A. Yes.

            Q. Also known as Fredrick Steinberger, III?

            A. Yes.

            Q. Is that person present in court today?

            A. Yes.



                                         4
             Q. Would you point him out for the Judge?

             A. David.

            Q. You’ve pointed to the person immediately to the right of
      Mr. Payne the defense counsel; is that correct?

             A. Yes, sir.

             MR. McGAUGHEY: Your Honor, I would ask the record
      reflect the identification of the defendant or respondent by this
      witness.

             THE COURT: It will.

      The State’s next witness, Archer County Constable Clayton Brett Hoff

testified as follows:

           Q. . . . Are you acquainted with a person named Fredrick
      David Steinberger sometimes referred to as Fredrick Steinberger,
      III?

             A. Yes, I am.

             Q. Is that person present in court today?

             A. Yes. He’s sitting right here in overalls.

            Q. You’ve pointed to the person immediately to the right of
      Mr. Payne the defense counsel; is that correct?

             A. Yes.

             MR. McGAUGHEY: Your Honor, I would request the record
      reflect the identification of the respondent by the witness.

             THE COURT: It will.

      The sole defense witness was Archer County District Clerk Judy

McLemore. She testified that she had resided in that county for sixty-four years



                                         5
and that before becoming District Clerk she had owned a title company. She

further testified as follows:

             Q. . . . . Are you familiar with Fredrick David Steinberger, III?

             A. Yes, sir.

             Q. Is he seated to my right?

             A. Yes, sir.

             Q. Do you know his father?

             A. Yes, sir, I did.

             Q. You knew him in his lifetime?

             A. Yes.

             Q. And what was his name?

             A. David.

             Q. You called him David, but did you know what his name
      was? Do you know what [sic] his name appeared in title records in
      this county?

            A. Oh, gosh. I’m trying to think. I don’t honestly remember
      his whole full name because I always called him David.

              Q. Do you recognize the name of Fredrick David Steinberger,
      Jr., or the II?

             A. Yes. I started to say that, but I was afraid I was wrong.




                                          6
            Q. Okay. Did you know the patriarch of Fredrick David
      Steinberger, the original, who would have been the father of junior
      and grandfather of the third? Did you ever know him?

            A. No, sir.

      The fatal variance doctrine stands for the proposition that a variance

between the indictment and the evidence at trial may be fatal to a conviction

because due process guarantees the defendant notice of the charges against

him. See Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). The

doctrine applies to revocations of community supervision. Moore v. State, 11

S.W.3d 495, 499–500 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see

Taylor v. State, 592 S.W.2d 614, 615 (Tex. Crim. App. [Panel Op.] 1980). But

not every variance between the evidence at trial and the indictment is fatal; only

a material variance is fatal. Moore, 11 S.W.3d at 500; see Stevens, 891 S.W.2d

at 650. A variance between the charging instrument and the proof at trial is

material only if it operated to the defendant’s surprise or prejudiced his rights.

Moore, 11 S.W.3d at 500; see Stevens, 891 S.W.2d at 650, Human v. State, 749

S.W.2d 832, 837 (Tex. Crim. App. 1988).           Likewise, a variance between

pleadings and proof at a probation revocation hearing is material only if it

operated to the defendant’s surprise or prejudiced his rights. Pierce v. State, 113

S.W.3d 431, 439 (Tex. App.—Texarkana 2003, pet. ref’d.); see Chacon v. State,

558 S.W.2d 874, 876 (Tex. Crim. App. 1977). The burden to show surprise or

prejudice resulting from a variance rests with the defendant. Santana v. State,




                                        7
59 S.W.3d 187, 194 (Tex. Crim. App. 2001); Human, 749 S.W.2d at 837; Cole v.

State, 611 S.W.2d 79, 82 (Tex. Crim. App. 1981).

      In this case, when the trial court asked Appellant if he was Fredrick David

Steinberger as alleged in the State’s motion, Appellant said, ―Yes, sir.‖ Three

other witnesses testified that Appellant was known by that name. Constable Hoff

testified that the defendant had committed the offense of assault on a public

servant against him and that the defendant was seated in the courtroom at

counsel table with the defense attorney.

      During closing argument, counsel for Appellant did not argue that

Appellant had received insufficient notice of the allegations against him to

prepare an adequate defense or that he was surprised or otherwise misled; he

simply argued that the State was bound by its pleadings and that it should have

pled Appellant’s name as set out in the order of deferred adjudication.

      We need not decide today whether there was any variance in this case at

all because Appellant has failed to satisfy his burden to show that he was

prejudiced in any way by the variance he claims exists. See Santana, 59 S.W.3d

at 194; Human, 749 S.W.2d at 837; Cole, 611 S.W.2d at 82. Accordingly, we

overrule Appellant’s sole issue.




                                           8
                                        Conclusion

         Having overruled Appellant’s sole issue, we affirm the judgment of the trial

court.




                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2012




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