             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-1889-11



                           DAVID LEN MOULTON, Appellant

                                                v.

                                  THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SIXTH COURT OF APPEALS
                               CASS COUNTY

                K ELLER, P.J., filed a concurring opinion.

       I agree that the trial judge was not required to instruct the jury on the specific manner and

means of committing murder in this case. But I also believe that a trial judge is not required to

instruct on the specific manner and means of committing murder in any case. In our recent opinion

in Johnson v. State,1 we explained:

       “[M]urder is a result-of-conduct crime. What caused the victim’s death is not the
       focus or gravamen of the offense; the focus or gravamen of the offense is that the
       victim was killed. Variances such as this [regarding the method by which death is
       caused in a murder prosecution] can never be material because such a variance can



       1
           364 S.W.3d 292 (Tex. Crim. App. 2012).
                                                                                    MOULTON — 2

        never show an “entirely different offense” than what was alleged.2

If a variance can never be material, it can never render the evidence legally insufficient to support

the conviction.3 If the failure to prove an allegation cannot render the evidence legally insufficient

to support the conviction, it is because the State is not required to prove the allegation.4 And if “the

State is not bound to prove such an allegation, the allegation should not be a part of the jury charge,

because . . . the State is entitled to the broadest submission of its theories of liability that are

authorized by the charging instrument and supported by the evidence.”5 Consequently, the jury

charge need not ever specify the (non-statutory) manner and means by which a murder is committed

or even that the manner and means is unknown.

        With these comments, I join the Court’s opinion.

Filed: March 6, 2013
Publish




        2
            Id. at 298.
        3
            Id. at 299.
       4
         In re State ex rel. Weeks, Nos. AP-76,953 & AP-76,954, 2013 Tex. Crim. App. LEXIS 155,
at 19-20 (Tex. Crim. App. January 16, 2013).
        5
            Id.
