                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-14-00062-CR
                            ____________________

                   MARC RICHARD SAUNDERS, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________________________

                    On Appeal from the 410th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-10-11342-CR
_______________________________________________________________________

                           MEMORANDUM OPINION

      Appellant Marc Richard Saunders appeals his conviction for cruelty to a

livestock animal. The jury returned a guilty verdict, found Saunders used a deadly

weapon during the commission of the offense, and assessed Saunders’s punishment

at confinement in prison for a term of five years. In two issues, Saunders contends

the trial court erred in amending the indictment and he challenges the sufficiency

of the evidence based upon a variance between the indictment and the proof at

trial. We affirm the trial court’s judgment.

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      The indictment handed up by the grand jury alleged, in pertinent part, that

Saunders, on or about October 25, 2012, “did then and there intentionally,

knowingly or recklessly torture to an animal, to-wit: a donkey by dragging it with a

motor vehicle . . . .” Saunders did not move to quash the indictment before the trial

commenced. During the presentation of the State’s case-in-chief, over Saunders’s

objection, the trial court granted the State’s motion to abandon the parts of the

indictment that alleged “recklessly” and “an animal.” The trial court denied

Saunders’s motion for directed verdict after the State rested. Saunders objected to

describing a donkey as a livestock animal in the charge. The trial court overruled

the objection and, in part, charged the jury as follows:

             A person commits the offense of Cruelty To Livestock Animals
      if the person intentionally or knowingly tortures an animal and the
      conduct engaged in by the defendant is not a generally accepted and
      otherwise lawful form of conduct occurring solely for the purpose of
      or in support of fishing, hunting, trapping, wildlife management,
      wildlife or depredation control, or shooting preserve practices as
      regulated by state and federal law, or animal husbandry or agriculture
      practice involving livestock animals.

      The charge included a definition that “‘Livestock animal’ means a horse,

pony, mule, donkey, or [hinny].” The application paragraph stated as follows:

             Now, bearing in mind the foregoing instructions, if you find
      from the evidence beyond a reasonable doubt that on or about October
      25, 2012, in Montgomery County, Texas, the defendant, MARC
      RICHARD SAUNDERS, did then and there intentionally or knowingly
      torture a donkey by dragging it with a motor vehicle, and the
                                          2
      defendant’s conduct was not a generally accepted and otherwise
      lawful form of conduct occurring solely for the purpose of or in
      support of fishing, hunting, or trapping, or wildlife management,
      wildlife or depredation control, or shooting preserve practices as
      regulated by state and federal law or animal [husbandry] or
      agricultural practice involving livestock animals, then you will find
      the defendant guilty of the offense of Cruelty To Livestock Animals
      as charged in the Indictment.

      In issue one, Saunders contends the trial court effectively amended the

indictment in violation of article 28.10 of the Texas Code of Criminal Procedure,

which prohibits amendment over a defendant’s objection if the amendment charges

the defendant with an additional or different offense or if his substantial rights are

affected. See Tex. Code. Crim. Proc. Ann. art. 28.10 (West 2006). He argues the

indictment alleged an offense of cruelty to a nonlivestock animal under section

42.092 of the Texas Penal Code and that by allowing the removal of the terms

“recklessly” and “animal” from the charge, the trial court impermissibly allowed

the State to proceed to verdict on a charge of cruelty to a livestock animal under

section 42.09 of the Texas Penal Code. Compare Tex. Penal Code Ann. § 42.09

with § 42.092 (West 2011).

      We disagree with the appellant’s contention that the trial court amended the

indictment. A trial court affects an amendment through a physical interlineation of

the original indictment or the trial court signs an order approving an amended

version of a photocopy of the original indictment. See Riney v. State, 28 S.W.3d
                                          3
561, 566 (Tex. Crim. App. 2000). Here, the trial court did not physically alter the

face of the indictment, the State did not proffer an amended photocopy of the

indictment, and the State and the trial court specifically noted that only an

abandonment was sought or granted.

      Also, we disagree with the appellant’s contention that the indictment alleged

only the commission of the offense of cruelty to a nonlivestock animal and that the

State’s abandonment of certain allegations effectively charged Saunders with an

additional or different offense from the offense indicted by the grand jury. The

grand jury indicted Saunders for torturing a donkey by dragging it with a motor

vehicle. The elements of an offense committed under section 42.09(a)(1) of the

Texas Penal Code are: the person (1) intentionally or knowingly (2) tortures a

livestock animal. Tex. Penal Code Ann. § 42.09(a)(1). For purposes of section

42.09, “‘[l]ivestock animal’ means . . . a horse, pony, mule, donkey, or hinny[.]”

Id. § 42.09(b)(5)(B). “‘Torture’ includes any act that causes unjustifiable pain or

suffering.” Id. § 42.09(b)(7). The indictment, which alleged that Saunders did

“intentionally, knowingly . . . torture . . . a donkey by dragging it with a motor

vehicle[,]” included the elements of an offense under section 42.09 of the Penal

Code. See id.




                                        4
      Allegations may be abandoned from an indictment without giving the

defendant additional time to prepare. Alston v. State, 175 S.W.3d 853, 854 (Tex.

App.—Waco 2005, no pet). Unlike an amendment, an abandonment of surplusage

does not affect the substance of the charging instrument. Chen v. State, 410 S.W.3d

394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (citing Eastep v. State,

941 S.W.2d 130, 135 (Tex. Crim. App. 1997), overruled on other grounds by

Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) and by Riney, 28

S.W.3d at 566). For example, in Chen, a theft case, the information alleged the

defendant committed theft of “an ipod mouse.” 410 S.W.3d at 395. During the

trial, the State abandoned the word “ipod[,]” and theft of “a mouse” was submitted

to the jury. Id.at 395-96. The use of the word “ipod” was not legally essential to

charge the crime because “it did not define the scope of the offense, place it in a

specific setting, or describe the method by which the theft was committed.” Id. at

396-97.

      Saunders argues the indictment alleged the commission of an offense under

section 42.092 of the Texas Penal Code because it included elements that appear in

section 42.092 and do not appear in section 42.09. We disagree. Words that do not

relate to the charged offense are mere surplusage that may be deleted from the

application paragraph without invalidating the indictment. See Cook v. State, 256

                                        5
S.W.3d 846, 850 (Tex. App.—Texarkana 2008, no pet.). In Cook, which concerned

an appeal of a conviction for attempted aggravated sexual assault of a child, the

appellant argued that the indictment erroneously blended two offenses. Id. The

court held that the inclusion of allegations relating to online solicitation of a minor

was mere surplusage that did not invalidate the indictment for attempted

aggravated sexual assault of a child. Id.

      In this case, the indictment alleged that Saunders tortured a donkey. A

donkey is a livestock animal. See Tex. Penal Code Ann. § 42.09(b)(5)(B). We

conclude the indictment alleged the commission of an offense under section 42.09

of the Texas Penal Code and allegations relating to cruelty to a nonlivestock

animal were surplusage. See Cook, 256 S.W.3d at 850.

      Saunders suggests that the deletion of “recklessly” is not an abandonment

because it is a lesser culpable mental state, not a greater culpable mental state. It is

error to add a less culpable mental state that was not alleged in the indictment if the

less culpable mental state is not part of a lesser included offense and the acts relied

upon to constitute recklessness were not included in the indictment. See Reed v.

State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003). But, deleting allegations that

need not be proven to secure a conviction can be distinguished from adding

allegations that were neither stated nor described. For instance, in Bates v. State, an

                                            6
aggregate theft case, the State abandoned allegations concerning theft of aluminum

and retained allegations concerning theft of brass. See 15 S.W.3d 155, 161 (Tex.

App.—Texarkana 2000, pet. ref’d). Additionally, the State abandoned an

allegation of theft of brass by a perpetrator with a given name that differed from

the defendant’s. Id. at 161-62. The appellate court held the trial court did not err in

permitting the State to drop some of the alleged instances of theft because it was

not necessary to prove each individual appropriation in a prosecution for aggregate

theft. Id. at 162. Similarly, in this case, the inapplicable alternate mental state is

surplusage because a reckless mental state is not descriptive of the offense of

cruelty to a livestock animal. Allegations “not essential to constitute the offense,

and which might be entirely omitted without affecting the charge against the

defendant, and without detriment to the indictment are treated as mere surplusage,

and may be entirely disregarded.” Burrell v. State, 526 S.W.2d 799, 802 (Tex.

Crim. App. 1975), overruled on other grounds by Gollihar, 46 S.W.3d at 257.

      Saunders argues that an “animal” cannot be a “livestock” animal by statutory

definition. The term “animal” does not include “livestock” for purposes of a

prosecution under section 42.092 of the Texas Penal Code, but that same exclusion

is not contained in section 42.09. See Tex. Penal Code Ann. §§ 42.09, 42.092.

Section 42.09 states that a donkey is a livestock animal. See id. § 42.09(b)(5)(B).

                                          7
The State, having pleaded that Saunders tortured a donkey, accused Saunders of

committing an offense under section 42.09 of the Texas Penal Code. Because the

State abandoned surplusage, the trial court did not permit a mid-trial amendment of

the indictment in violation of article 28.10 of the Texas Code of Criminal

Procedure. See generally Tex. Code. Crim. Proc. Ann. art. 28.10. We overrule

issue one.

      In issue two, Saunders contends there is a fatal variance between the

indictment, which alleged that Saunders tortured “an animal, to-wit: a donkey” and

the proof at trial that Saunders tortured a donkey, which is per se a livestock

animal. The State argues that “any variance between the charged offense and the

proof offered at trial is immaterial because [Saunders] was given sufficient notice

that he would be charged with cruelty to a donkey, and there is no danger of the

appellant being later charged with the same offense.”

      In evaluating the legal sufficiency of the evidence, we consider the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the defendant guilty of all of the elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To

determine whether the State met its burden under Jackson to prove the defendant’s

guilt beyond a reasonable doubt, we compare the elements of the crime as defined

                                         8
by the hypothetically correct jury charge to the evidence adduced at trial. See

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically

correct jury charge “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. “[T]he ‘law’ as ‘authorized by the indictment’

must be the statutory elements of the offense” and those elements as modified by

the indictment. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). “[T]he

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

the charging instrument’s allegations.” Johnson v. State, 364 S.W.3d 292, 294

(Tex. Crim. App. 2012). “[A] hypothetically correct jury charge need not

incorporate allegations that would give rise to only immaterial variances.” Thomas

v. State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014).

      A variance involving statutory language that defines the offense is always

material and renders the evidence legally insufficient to support the conviction.

Johnson, 364 S.W.3d at 298. “[A] variance involving a non-statutory allegation

that describes an ‘allowable unit of prosecution’ element of the offense may or

may not render the evidence legally insufficient, depending upon whether the




                                          9
variance is material[.]” Id. at 298-99. Variances involving immaterial non-statutory

allegations do not render the evidence legally insufficient. Id. at 299.

      Saunders argues a material variance is presented here because the State

alleged he committed cruelty to a nonlivestock animal, but proved he committed

cruelty to a livestock animal. We disagree. A hypothetically correct charge need

not track exactly all of the allegations of the indictment. Johnson, 364 S.W.3d at

294; Gollihar, 46 S.W.3d at 253. The indictment neither alleged that Saunders

tortured a nonlivestock animal, nor described a nonlivestock animal in the

indictment. Rather, the indictment alleged that Saunders tortured a donkey, which

is a livestock animal. See Tex. Penal Code Ann. § 42.09(b)(5)(B). If we assume for

the sake of argument that the State failed to abandon the allegation of “animal” in

the indictment, the variance would be immaterial because the State pleaded and

proved that Saunders tortured a donkey. Thus, the indictment notified Saunders

that he was being charged with cruelty to an animal that is a livestock animal and

the State adduced proof at trial that the animal Saunders dragged with his

vehicle—until its hooves ground down to the soft tissue—was a donkey. Because

any variance between the pleading and proof was immaterial, and Saunders’s

challenge to the sufficiency of the evidence is based solely on the variance, we




                                          10
hold the evidence is legally sufficient to support the conviction. See Gollihar, 46

S.W.3d at 258. We overrule issue two and we affirm the trial court’s judgment.

      AFFIRMED.




                                             ________________________________
                                                     CHARLES KREGER
                                                          Justice


Submitted on January 27, 2015
Opinion Delivered November 18, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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