Eric Todd Ansley v. The State of Texas--Appeal from Co Crim Ct at Law No 11 of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-09-01047-CR

Case Date: 12/16/2010

Plaintiff: Jozef Kawaski Jones

Defendant: The State of Texas--Appeal from 248th District Court of Harris County

Preview:Affirmed and Memorandum Opinion filed August 4, 2011.

In The

Fourteenth Court of Appeals
NO. 14-10-00767-CR JOZEF KAWASKI JONES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 1239443

MEMORANDUM OPINION
Appellant, Jozef Kawaski Jones, appeals his conviction for aggravated robbery asserting that (1) a material variance between the indictment and the allegedly insufficient proof at trial requires acquittal and (2) the evidence is insufficient to support a deadly-weapon finding, such that he should have been convicted of the lesser-included offense of robbery. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The complainant, his brother, and their eleven-year-old cousin were walking home at night from a nearby sandwich shop when a van pulled up next to them. Appellant and

two other men were inside the van. The driver got out of the vehicle and remarked, You know what time it is. You know what's up. The complainant's brother believed that the words implied they were about to be robbed. At that point, the van's sliding side door opened, and the complainant saw appellant inside the vehicle. The complainant's brother removed his valuables and shoes and placed them in his sandwich bag to hand over to the men in the van. But, the complainant was slow to offer up his own belongings. The complainant testified that the driver remarked to appellant, Get the AK, and threatened to shoot the complainant. The complainant claimed that appellant brandished a weapon, pointed it at the complainant, and remarked to the driver, Yeah, let's light one of them up. The complainant then placed his wallet and possessions in his sandwich bag and handed the items to appellant.1 At this point, two law enforcement officers happened to pull up behind the van, which was blocking a moving lane of traffic. The officers investigated the incident and learned from the complainant that the men in the van had taken items belonging to the complainant and his relatives. The officers recovered the items as well as a weapon that the officers referred to as an air rifle. The officers arrested appellant and the two other men in the van. Appellant was charged by indictment with the offense of aggravated robbery. The indictment provides, in relevant part, that while in the course of committing theft of property with intent to obtain and maintain control of that property, appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death and used and exhibited a deadly weapon, to wit: a BB rifle. The charge was enhanced by a prior felony conviction. Appellant pleaded not guilty to the charged offense. After a trial, the jury found appellant guilty of aggravated robbery and assessed his sentence at forty years' confinement.

1

The record does not indicate whether the complainant's cousin handed over items to the men in

the van. 2

ISSUES AND STANDARD OF REVIEW On appeal, appellant challenges the sufficiency of the evidence to support his conviction. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). Is the evidence insufficient because of a material variance between the indictment and proof at trial? In his second issue, appellant claims the evidence is insufficient to support his conviction because of a material variance between the charging instrument and the proof at trial. The indictment alleged use of a BB rifle as a deadly weapon. According to appellant, the air rifle actually produced at trial and the testimony amounts to a material variance from the allegation, as charged in the indictment, that he used a BB rifle in commission of the offense. A variance occurs when there is a discrepancy between the allegations made in a charging instrument and the proof presented at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). When faced with a challenge to the legal sufficiency of the
3

evidence based upon a variance between the indictment and the proof, only a material variance will render the evidence legally insufficient. Id. at 257. In determining whether a variance is material, we consider whether the charging instrument offers an accused enough notice of the charged offense to allow preparation of an adequate defense and precludes the accused from being prosecuted later for the same crime. See Fuller v. State, 73 S.W.3d 250, 253, 255 (Tex. Crim. App. 2002). A variance between the wording of an indictment and the evidence presented at trial is fatal only if it is material and prejudices the defendant's substantial rights. See Gollihar, 46 S.W.3d at 257; Hart v. State, 173 S.W.3d 131, 144 (Tex. App.--Texarkana 2005, no pet.). To determine whether an accused's substantial rights have been

prejudiced, we consider 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 whether the prosecution, under the deficiently drafted charging instrument, would subject the accused to the risk of being prosecuted later for the same offense. Gollihar, 46 S.W.3d at 248; Hart, 173 S.W.3d at 144. A variance that is not prejudicial to an accused's substantial rights is deemed immaterial. Gollihar, 46 S.W.3d at 247

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