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Date: 02-12-2021
Case Style:
Jarod Smith v. The State of Texas
Case Number: 03-19-00099-CR
Judge: Chari L. Kelly
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Plaintiff's Attorney: The Honorable Stacey M. Soule
The Honorable Jose Garza
Defendant's Attorney:
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Description:
- Criminal defense attorney represented Jarod Smith with a Take or Attempt to Take Weapon From Peace Officer charge.
Smith was charged by indictment with one count of forcibly attempting to take a
weapon from a peace officer. See id. The charge arose out of an altercation that occurred near a
homeless shelter in downtown Austin on August 8, 2018.
The State’s witnesses at trial included a community-health paramedic with
Austin-Travis County EMS, Craig Fairbrother. Fairbrother testified that he was outside the
shelter when he observed Smith yelling in “a threatening manner and tone” at a uniformed
security officer, later identified as Walter G. Herbert. Fairbrother then saw Smith shove and start
hitting Herbert, at which point Fairbrother and a second security officer, Richard Ornelas,
intervened to stop Smith. Fairbrother testified that during the struggle that followed, he saw
Smith reach for Ornelas’s holstered firearm and that “[i]t was an attempt to take [the firearm]
out.” Smith testified in his own defense and claimed that Herbert and Ornelas had initiated
the attack against him. See id. § 38.14(d) (providing defense when victim was using excessive
force). Smith also denied ever touching or attempting to take Ornelas’s weapon.
Upon the conclusion of the bench trial that followed, the trial court found
Smith guilty of the charged offense and sentenced him to two years’ confinement in the Texas
Department of Criminal Justice, Institutional Division. This appeal followed.
STANDARD OF REVIEW
In reviewing the sufficiency of the evidence to support a conviction, we consider
all of the evidence in the light most favorable to the verdict and determine whether a rational
3
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1973); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010) (plurality op.). We measure whether the evidence presented at trial was sufficient by
comparing it to “the elements of the offense as defined by the hypothetically correct jury charge
for the case.” Hernandez v. State, 556 S.W.3d 308, 312 (Tex. Crim. App. 2017) (quoting Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct jury charge is
“one that 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. The law “as
authorized by the indictment” generally refers to “the statutory elements of the offense . . . as
modified by the charging instrument.” Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App.
2012) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).
Here, Smith was charged with “attempting to take a firearm” under Section
38.14(b) of the Penal Code. This provision states:
A person commits an offense if the person intentionally or knowingly and with
force takes or attempts to take from a peace office, federal special investigator,
employee or official of a correctional facility, parole officer, community
supervision and corrections department officer, or commissioned security officer
the officer’s, investigator’s, employee’s, or official’s firearm, nightstick, stun gun,
or personal protection chemical dispensing device.
Tex. Penal Code § 38.14(b). The indictment against Smith alleged that:
[Smith], on or about the 8th day of August, 2018, . . . did then and there
intentionally and knowingly, with force, attempt to take from a peace officer, towit: R. ORNELAS, III, said officer’s firearm by attempting to take the firearm out
of its holster, with the intention of harming the officer or a third person[.]
4
(Emphasis added). The undisputed evidence presented at trial established that Ornelas is not a
“peace officer” but instead is a “commissioned security officer.”
2
Smith’s argument on appeal,
liberally construed, is that this “variance” between the allegations in the indictment and the
State’s proof renders the evidence against him insufficient as a matter of law.
A variance occurs when, as in this case, there is a discrepancy between the
allegations in the charging instrument and the evidence presented at trial. Johnson, 364 S.W.3d
at 294. “In a variance situation, the State has proven the defendant guilty of a crime but has
proven its commission in a manner that varies from the allegations in the charging instrument.”
Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). There are two types of variances
in an evidentiary-sufficiency analysis: material variances and immaterial variances. Thomas v.
State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014). A variance is material if it (1) fails to adequately
inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being
prosecuted later for the same crime. Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim.
App. 2018); Gollihar, 46 S.W.3d at 258. “Only material variances will affect the hypothetically
correct jury charge” and render the evidence legally insufficient. Hernandez, 556 S.W.3d at 312.
Whereas, “[a]llegations giving rise to immaterial variances may be disregarded in the
hypothetically correct [jury] charge.” Gollihar, 46 S.W.3d at 257.
2
In Section 38.14, “commissioned security officer” has the meaning assigned by
“Section 1702.002(5), Occupations Code.” Tex. Penal Code § 38.14(a)(3). Accordingly, the
phrase “commissioned security officer” under Section 38.14 of the Penal Code means “a security
officer to whom a security officer commission has been issued by the [Texas Department of
Public Safety].” Tex. Occ. Code § 1702.002(5). Although “peace officer” is not defined in
Section 38.14, when used in the Penal Code, “[p]eace officer” means “a person elected,
employed, or appointed as a peace officer under Article 2.12 [of the] Code of Criminal
Procedure or Section[s] 51.212 or 51.214 [of the] Education Code, or other law.” Tex. Penal
Code § 1.07(a)(36). At trial, Ornelas testified that he is a commissioned security officer and not
a peace officer.
5
A variance can occur in two different ways. Hernandez, 556 S.W.3d at 313. The
first way involves the statutory language that defines the offense and occurs when the State’s
proof at trial deviates from the statutory theory of the offense as alleged in the indictment. Id.
This type of variance—a statutory variance—is always material and renders the evidence legally
insufficient to support the conviction. Id. The second way a variance occurs is when the State’s
proof at trial deviates from a “non-statutory allegation that is descriptive of the offense in some
way.” Id. at 313-14 (quoting Johnson, 364 S.W.3d at 294). A non-statutory variance can be
either material or immaterial, depending on whether it would result in a different offense than
what the State alleged. Id. at 314.
In Johnson v. State, the Texas Court of Criminal Appeals distinguished between
statutory and non-statutory variances using hypotheticals. 364 S.W.3d at 296. The court
explained that a statutory variance occurs when “a statute specifies alternate methods by which
an offense could be committed, the charging instrument pleads one of those alternate methods,
but the State proves, instead, an unpled method.” Id. at 294. To illustrate this type of variance,
the court relied on the retaliation statute, which makes it a crime to threaten a “witness” or
“informant.” Id. The court explained that a statutory variance would occur under the retaliation
statute if the State pleaded only “witness” in the charging instrument and then proved only an
“informant” at trial. Id. On the other hand, a non-statutory variance would occur if the charging
instrument pleaded “Mary” as the victim, but the State proved “John” at trial, or if the charging
instrument pleaded that the offense was committed with a knife, but the State proved that a
baseball bat was used. Id.
Section 38.14(b) makes it a criminal offense to take or attempt to take a weapon
from certain persons related to or involved in law enforcement. Thus, the status of the targeted
6
person as one of the persons specified by the statute is a substantive element of the offense. In
part, Section 38.14 makes it a criminal offense to take or attempt to take a weapon from a “peace
officer” or, alternatively, from a “commissioned security officer.” Thus, a statutory variance
arises with respect to a conviction under Section 38.14 when, as in this case, the indictment
alleges only “peace officer” but the evidence at trial establishes only “commissioned security
officer.” Cf. Johnson, 364 S.W.3d at 294 (explaining that material variance under retaliation
statute occurs when one type of victim under statute is alleged in indictment but different type of
victim is proven at trial).
In response to Smith’s argument on appeal, the State does not dispute that the
evidence at trial established that Smith is a commissioned security officer and not a peace officer
and that, as a result, a variance exists in this case. Instead, the State asserts that the variance is
immaterial because Ornelas is an “officer” and because Smith was “able to prepare an adequate
defense at trial” and “would not be subject to another prosecution under the same facts.” The
State points out that Subsection (e)(2) states:
(e) An offense under [Section 38.14] is:
. . .
(2) a state jail felony, if the defendant attempted to take a weapon
described by Subsection (b) from an officer, investigator, employee, or
official described by that subsection.
Tex. Penal Code § 38.14(e)(2). The State argues that Section 38.14, when read in whole,
establishes that it is an offense to forcibly disarm or attempt to disarm “officers,” including peace
officers and commissioned security officers. Consequently, in the State’s view, the variance
between the indictment and the State’s proof is non-statutory and immaterial.
7
We disagree with the State’s interpretation of the statute and the statute’s use of
the term “officer.” Although subsection (e) uses the more generalized term “officer” to refer to
those officers specifically listed in subsection (b) and does not differentiate between “peace
officers” and “commissioned security officers” in assessing the offense as a state jail felony, we
do not construe subsection (e) as expanding or restricting the elements of the offense found in
subsection (b). The statute does not define the offense as forcibly disarming or attempting to
disarm “officers”; instead, the statute defines the offense as forcibly disarming or attempting to
disarm certain persons, which includes both “peace officers” and “commissioned security
officers.” Furthermore, the fact that the terms are statutorily defined refutes the notion that they
are generic interchangeable terms. See Tex. Penal Code §§ 1.07(a)(36) (defining term “[p]eace
officer”), 38.14(a)(3) (defining term “[c]ommissioned security officer”). Thus, the variance at
issue is properly characterized as a statutory variance, which as previously discussed, is always a
material variance. See Hernandez, 556 S.W.3d at 313.
Ornelas’s status as “peace officer” is an essential element of the offense of
forcibly attempting to take a firearm under Section 38.14 as charged in this case. See id. at 312
(discussing hypothetically correct charge); Cada v. State, 334 S.W.3d 766, 774 (Tex. Crim. App.
2011) (explaining that “if the State pleads one specific element from a penal offense that
contains alternatives for that element, the sufficiency of the evidence is measured by the element
that was actually pleaded, not any other statutory alternative element”). Because the evidence
is legally insufficient to support the judgment of conviction, we sustain appellant’s first issue
on appeal.3
Outcome: We reverse the trial court’s judgment of conviction and render a judgment of
acquittal.
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