author: SANDEE BRYAN MARION, Justice.

text:
    Darryl WELLS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-08-00668-CR.
    Court of Appeals of Texas, San Antonio.
    April 14, 2010.
    Discretionary Review Refused Oct. 13, 2010.

      Angela J. Moore, Chief Public Defender, San Antonio, TX, for Appellant.
    Kevin P. Yeary, Assistant Criminal District Attorney, San Antonio, TX, for Appel-lee.
    Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

A jury found appellant Darryl Wells guilty of the murder of Tim Davila and assessed punishment at sixty-five years’ confinement. On appeal, appellant asserts the trial court erred in (1) failing to grant his motion for speedy trial, (2) admitting a deceased witness’s statements through the decedent’s wife’s testimony, (3) admitting a deceased witness’s statement identifying appellant as a suspect through a police officer’s testimony, and (4) disallowing an accomplice as a matter of law instruction in the jury charge. Additionally, appellant asserts the evidence is legally and factually insufficient to support the jury’s verdict. We affirm.

RIGHT TO SPEEDY TRIAL

In his first issue on appeal, appellant argues the trial court erred in failing to grant his motion for speedy trial. See U.S. Const, amend. VI, XIV; Tex. Const. art. I, § 10; see also Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (Sixth Amendment right to speedy trial under federal constitution applies to states through Fourteenth Amendment). Appellant points out that the police department transferred Detective Robert Moffitt — the detective originally assigned to the case — to another unit and a “new officer sat on the case since he knew appellant was incarcerated.” Appellant argues law enforcement (1) failed to question him even though he waived extradition and (2) exhibited bad faith by waiting for his release from an Ohio prison and his return to Sulphur Springs, Texas, pursuant to a detainer before arresting and indicting him. As a result, appellant claims he was not afforded a speedy trial. This, appellant argues, resulted in the absence of a key witness, Marco Toledo, who died of unrelated causes and thus was unavailable for cross-examination by appellant. For these reasons, appellant concludes his conviction should be reversed.

A. The Barker Test

The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). However, the right to a speedy trial does not protect a defendant from all effects flowing from a delay before trial. United States v. Loud Hawk, 474 U.S. 302, 311, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). For example, it does not limit the length of a preindictment criminal investigation even though “the [suspect’s] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life.” Id. at 312, 106 S.Ct. 648 (quoting MacDonald, 456 U.S. at 9, 102 S.Ct. 1497).

To determine whether the State violated appellant’s right to a speedy trial under the state or federal constitution, we weigh and balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right; and (4) the prejudice to the accused. See Barker, 407 U.S. at 530, 92 S.Ct. 2182 (creating balancing test for reviewing speedy trial claims under federal constitution); Cantu v. State, 253 S.W.3d 273, 280 n. 16 (Tex.Crim.App.2008) (although speedy trial right under Texas Constitution exists independently of federal guarantee, claims of denial of State speedy trial right are analyzed under same four Barker factors). Once the Barker test is triggered, we analyze the speedy trial claim by first weighing the strength of the Barker factors and then balancing their relative weights in light of the conduct of both the prosecution and the defendant. Cantu, 253 S.W.3d at 281. None of the Barker factors is a necessary or sufficient condition to finding a speedy trial violation. Id. Rather, the factors are related and should be evaluated in conjunction with any other relevant considerations. Id. In reviewing the trial court’s ruling, we review the legal components de novo and review the factual components for an abuse of discretion. See id. at 282.

1. Length of Delay

The Barker test is triggered by a delay that is unreasonable enough to be “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); Cantu, 253 S.W.3d at 281. A delay approaching one year from formal accusation or arrest of the defendant until trial has generally been found to be presumptively prejudicial. Celestine v. State, — S.W.3d -, -(Tex.App.-Houston [14th Dist.] 2009, no pet.); see Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App.2003); see also United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (delay is measured from time of formal accusation or arrest to time defendant is brought to trial). Appellant argues “more than three years elapsed before [he] was ever indicted and six years since the death of Tim Davila by the time trial actually came to fruition.” The State, however, asserts any speedy trial analysis should not begin until the State executed appellant’s arrest warrant and he was taken into custody. We agree with the State.

The shooting death of Tim Davila occurred on January 26, 2003. On February 26, 2003, appellant was arrested in Cleveland, Ohio, on unrelated charges. While serving his time in Ohio, appellant alleges he waived extradition to Texas, which “would have made his return to Texas very easy.” However, in Texas, the “mere waiver of extradition does not rise to the level of an assertion of the right to a speedy trial.” Burton v. State, 805 S.W.2d 564, 573 (Tex.App.-Dallas 1991, pet. ref'd). Similarly, we do not believe that mere waiver of extradition starts the clock for purposes of measuring the length of the delay under Barker. As the United States Supreme Court has explained, “either a formal indictment or ... the actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provision of the Sixth Amendment.” Marion, 404 U.S. at 320, 92 S.Ct. 455; Cantu, 253 S.W.3d at 280 n. 15. Therefore, it is not enough that an accused voluntarily submit his person to restraint and holding by the State by waiving extradition while under confinement in another jurisdiction on other charges; rather, the invocation of the right to a speedy trial requires either actual restraint by the State or formal accusation. See Marion, 404 U.S. at 320, 92 S.Ct. 455; Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir.1991) (detainer does not constitute actual restraint for speedy trial considerations); see also United States v. Garner, 32 F.3d 1305, 1309-10 (8th Cir.1994) (arrest on one charge does not trigger right to speedy trial on another charge filed after arrest).

Here, Bexar County officials executed appellant’s arrest warrant and took appellant into custody on December 5, 2006. Appellant was then indicted on March 1, 2007. Appellant’s trial, however, was not until August 2008. Thus, for purposes of appellant’s speedy trial claim, we consider only the time period from appellant’s arrest in December 2006 until his trial in August 2008 — a delay of approximately twenty months. This delay exceeds one year and is therefore presumptively prejudicial — a conclusion the State does not dispute — and we proceed to the remaining Barker factors.

2. Reason for Delay

Once it has been determined that a presumptively prejudicial delay has occurred, the State bears the initial burden of providing a justification for the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App.1994); State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). Different reasons for the delay are assigned different weights: an intentional delay for tactical reasons is weighed heavily against the State; a neutral reason, such as overcrowded courts, is weighed less heavily against the State; a valid reason is not weighed against the State at all; and delay attributable to the defendant may constitute a waiver of the speedy trial claim. State v. Munoz, 991 S.W.2d 818, 822 (Tex.Crim.App.1999).

Here, the State points out that during the twenty-month period it filed only one motion for continuance, which was due to the unavailability of a key witness who was out of the country and thus unable to testify. Additionally, the State argues “appellant’s difficulties with his appointed counsel caused delays in his case coming to trial.” Our review of the record reveals the trial court first appointed an attorney to represent appellant on December 15, 2006 — ten days after Bexar County officials took appellant into custody. On February 16, 2007, appellant filed his first motion to dismiss appointed counsel, stating appellant “has already received ineffective assistance of counsel.” On March 30, 2007, appellant filed a second motion to dismiss appointed counsel, stating there existed “a great conflict of interest.... ” On May 22, 2007, defense counsel filed a motion to withdraw, which the trial court subsequently granted. On July 10, 2007, the trial court appointed appellant a second attorney. On February 26, 2008, appellant’s second attorney filed a motion to withdraw. The trial court granted the motion and, on the same day, appointed appellant a third attorney: James Tocci. Then, at a June 16, 2008, pretrial hearing, appellant argued before the court his previously-filed motions to dismiss for lack of speedy trial. The trial court informed appellant “it might have something to do with the fact that you have filed grievances or made accusations against your lawyers .... ” The trial court then concluded appellant was the primary cause of the delays and explained to appellant,

[I]n all fairness to the lawyers who have been appointed, they are entitled to have time to get ready for trial. They cannot be expected to go to trial even though you may be familiar with the facts of the case, they have an obligation and a duty to review the State’s file, especially in light of the charges....

Our review of the record supports the State’s claim that a substantial portion of the delay was attributable to appellant. But for appellant’s complaints against two of his attorneys and a subsequent motion to withdraw by his first attorney, there would have been no need for additional time to allow appellant’s new attorneys to prepare. Thus, the State has met its initial burden of providing a justification for the twenty-month delay: it was attributable to appellant. We therefore conclude that this delay tips the scales against appellant.

3.Assertion of the Right

The third Barker factor requires a determination of whether the defendant asserted his right to a speedy trial. Barker, 407 U.S. at 531, 92 S.Ct. 2182; Munoz, 991 S.W.2d at 825 (both stating defendant must assert or demand his right to speedy trial). A defendant’s assertion of that right is entitled to strong evidentiary weight when determining whether the defendant was deprived of his right to a speedy trial. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182; Zamorano v. State, 84 S.W.3d 643, 651 (Tex.Crim.App.2002).

Appellant asserts he “signed a waiver of extradition on February 26, 2003 based on the [arrest] warrant issued February 3, 2003.” As stated earlier, however, the “mere waiver of extradition does not rise to the level of an assertion of the right to a speedy trial.” Burton, 805 S.W.2d at 573. Nonetheless, after a review of the record, we conclude appellant properly asserted his right to a speedy trial, and, therefore, this factor weighs in his favor.

4. Prejudice

The fourth factor is prejudice to the defendant, which should be assessed in light of defendant’s interests. Barker, 407 U.S. at 532, 92 S.Ct. 2182; Munoz, 991 5.W.2d at 826. These interests are (1) preventing oppressive pretrial incarceration, (2) minimizing the anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. 2182; Munoz, 991 S.W.2d at 826. Of these interests, the most important is protecting a defendant’s ability to adequately prepare his case because compromise of this interest “skews the fairness of the entire system.” Munoz, 991 S.W.2d at 826 (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182). The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. When the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show that the defendant suffered “no serious prejudice beyond that which ensued from the ordinary and inevitable delay.” Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App.1973)).

Appellant asserts he was “severely” prejudiced because a key witness, Marco Toledo, died before trial. Appellant argues the State profited from the delay because the trial court admitted into evidence statements made by Toledo to other witnesses, even though appellant had no opportunity to cross-examine Toledo. Appellant also contends he was prejudiced because the testimony of a neighbor was unavailable.

In order to demonstrate prejudice due to the unavailability of a witness, a defendant must, among other things, present proof that the witness would have ben-efitted his defense. Harrison v. State, 282 S.W.3d 718, 722 (Tex.App.-Amarillo 2009, no pet.) Here, appellant has offered no proof that either Toledo or the neighbor would have benefitted his defense. Accordingly, the fourth Barker factor weighs against appellant.

B. Balancing the Barker Factors

While the presumption of an unreasonable delay and the assertion of a right to a speedy trial support appellant’s position, the State showed and the record supports that the delay after his arrest by Bexar County officials was mostly attributable to appellant. Although asserting a right to a speedy trial carries strong evidentiary weight in determining whether the appellant was deprived of the right, the other factors and circumstances weigh against him. Balancing these factors, we conclude the trial court did not err in denying appellant’s motion for speedy trial.

TESTIMONY OF CATHERINE HERNANDEZ

In his second issue on appeal, appellant argues the trial court erred in admitting testimony from Toledo’s wife, Catherine Hernandez. Hernandez testified that on December 4, 2007, Toledo died of heart disease. She then relayed the events of the evening of the murder: Hernandez was at home with Toledo when appellant, an acquaintance of Toledo, came to their apartment; she left the apartment to go to the laundromat; after finishing the laundry she went to her mother’s home to pick up her children, at which time she was told there had been a shooting at her apartment; upon returning to her apartment, police were present as well as her husband, who had zip ties on his wrists and duct tape on his ankles. Her testimony then relayed several statements made to her by Toledo; among other things, the testimony identified appellant as (1) the man who had a gun at the time Davila was shot and (2) one of two men who tied Toledo up and dragged him on his stomach into a back room. At trial, appellant raised hearsay objections to Hernandez’s testimony, which the trial court denied. On appeal, appellant asserts this testimony was improper hearsay and the excited utterance exception does not apply.

Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). In order for hearsay to be admissible, it must fit into an exception provided by a statute or the Texas Rules of Evidence. Tex.R. Evid. 802. One such exception is for an excited utterance. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001). The basis for the excited utterance exception is a psychological one — namely, the fact that when a person is in the instant grip of violent emotion, excitement, or pain, that person ordinarily loses the capacity for reflection necessary for fabrication, and the truth will come out. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event. Id.; Ricondo v. State, 475 S.W.2d 793, 796 (Tex.Crim.App.1971).

We review a trial court’s determination of whether evidence is admissible under the excited utterance exception to the hearsay rule for an abuse of discretion. Wall v. State, 184 S.W.3d 730, 743 (Tex.Crim.App.2006). In determining whether a hearsay statement is admissible as an excited utterance, the court may consider as factors the time elapsed and whether the statement was in response to a question. Salazar, 38 S.W.3d at 154. The critical determination, however, is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event at the time of the statement. Id. Stated differently, a reviewing court must determine whether the statement was made “under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.” Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App.1964).

Appellant cites First Southwest Lloyds Insurance Co. v. MacDowell, 769 S.W.2d 954 (Tex.App.-Texarkana 1989, writ denied), for the proposition that a “statement that is simply a narrative of past acts or events, as distinguished from a spontaneous utterance, does not qualify as an excited utterance regardless of how soon after the event ... it is made.” Id. at 959. In that case, the trial court refused to allow a testifying witness to recount what an eyewitness to a fire had told him. See id. The appellate court affirmed, noting that the eyewitness’s remarks to the testifying witness “constituted a narrative account, given after he had returned to the fire scene after chasing the fleeing vehicle. .. .’’Id.

We first note several distinguishing factors between First Southwest and the case at hand. First, the eyewitness in First Southwest left the scene of the crime and returned some time later to give his statement to an investigator. Id. Here, Toledo never left the scene and was telling his wife what had happened; that is, unlike the First Southwest witness, Toledo was not responding to questions from an investigator. Second, the First Southwest eyewitness was purely an eyewitness without any other meaningful involvement. See id. Toledo, on the other hand, was present during the murder, was restrained by the suspects, and still had duct tape across his ankles and zip ties on his wrists at the time he made the statements to his wife. Third, Hernandez testified that at the time Toledo spoke to her he was “completely out of it; just rambling on and didn’t make sense at the beginning. And then [he was] really just nervous and scared. Really scared.”

We conclude the trial court did not abuse its discretion by admitting under the excited utterances exception Hernandez’s testimony about what Toledo told her shortly after the murder occurred. First, it cannot reasonably be disputed that Toledo’s statement related to a startling event. See Tex.R. Evid. 803(2). Second, Hernandez testified Toledo was “completely out of it,” “rambling,” and “really ... nervous and scared,” and therefore, her testimony supports the contention that, at the time Toledo made the statements, he was still under the stress of excitement caused by the event. See id.

LEGAL AND FACTUAL SUFFICIENCY

In his fifth and sixth issues on appeal, appellant argues the evidence is both legally and factually insufficient to support his murder conviction. Specifically, appellant contends there is no evidence he shot Tim Davila; therefore, no rational trier of fact could have found beyond a reasonable doubt that he was the shooter, and his conviction was against the great weight and preponderance of the evidence.

We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999) (same); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony; therefore, reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App.1998).

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). Also, a “person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Id. § 7.01(a). A person is criminally responsible for the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.... ” Id. § 7.02(a)(2).

Here, ample evidence supported the State’s theory that on January 26, 2003, appellant was criminally responsible for the shooting death of Tim Davila. Appellant admitted to the police to being in the apartment when the shooting took place. Catherine Hernandez, who lived at the apartment where the shooting occurred, identified appellant and stated she saw him enter her apartment the evening of the shooting before she left for several hours to do laundry. Hernandez further testified that her late husband — Marco Toledo, who was present when the shooting occurred — told her (1) appellant had a gun at the time of the shooting and (2) appellant and another man tied Toledo’s hands with zip ties and his feet with duct tape and dragged him into another room. Police photographs confirm Toledo had zip ties around his wrists, duct tape on his ankles, and injuries consistent with rug burns on his stomach and knees.

Maurice Pineda, a friend of Tim Davila and an acquaintance of Toledo, set up the sale of marijuana from Davila to Toledo. Pineda testified two black men, one of whom he identified as appellant, were in Toledo’s apartment when he and Davila arrived. Davila had with him approximately fifty pounds of marijuana. Upon entering the apartment to make the sale, Pineda stated one of the two black men ran at him with what Pineda thought was a gun. Pineda shouted to Davila and then dropped to the floor for cover. He heard several shots fired and kept his eyes closed pretending to be dead. After a short time, he heard people leaving the apartment. He then heard Toledo — whom Pineda subsequently discovered was tied up in another room — say that they had gone. When he opened his eyes, Pineda saw Davila lying on the floor next to him shot in the head.

Six hours later, police arrested appellant and Donald Evans after a traffic stop in Sulphur Springs — a five to six hour drive from San Antonio. During a search of the vehicle, police found large amounts of cash, forty-five pounds of marijuana, duct tape, zip ties, and various firearms, including the murder weapon.

At trial, it was for the jury to determine the credibility of the witnesses and the weight to give their testimony and the evidence adduced. We conclude the evidence was legally and factually sufficient to sustain the conviction based on the State’s theory that appellant and Evans worked together to steal Davila’s marijuana, an act during the course of which either appellant or Evans shot and killed Davila.

TESTIMONY OF DETECTIVE MOFFITT

In response to a very brief and narrow line of questioning by the State, Detective Moffitt testified that Toledo identified appellant as a suspect. In his third issue on appeal, appellant argues the trial court erred in admitting testimony from Detective Moffitt regarding Toledo’s identification of appellant because its admission violated appellant’s right of confrontation under both the federal constitution and the Texas Rules of Evidence. The State does not dispute that Toledo’s statement was an out-of-court testimonial statement or that Toledo was never subjected to cross-examination. Instead, the State argues appellant left a false impression during his earlier cross-examination of another detective, Ramiro Alvear, the detective who investigated the murder the evening it took place:

Q: Did Marco Toledo ever tell you that he saw [appellant] shoot anybody?
A: No, sir, he did not.
Q: And it’s true that during the investigation the officers learned that Marco Toledo was not even present when the shooting occurred. Isn’t that true?
A: No, sir. I wasn’t aware of that.
So you’re not aware of that? <©
No, sir. >
Q: But the night this happened, Marco Toledo never told you [appellant] shot anybody.
A: That is correct.

The State asserts appellant’s cross-examination of Detective Alvear opened the door for the State to correct a false impression — namely, that Toledo never told anyone appellant was the shooter, and moreover, Toledo did not place appellant at the scene the night of the shooting. The State points out it attempted to correct the false impression during its redirect examination of Detective Alvear, but appellant lodged an objection under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). After a lengthy discussion between the trial court and the attorneys, the State agreed to withdraw the line of questions to Detective Alvear intended to correct the false impression. Therefore, the State argues, it was entitled to correct the false impression during its examination of Detective Moffitt.

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.... ” U.S. Const. amend. VI. The Confrontation Clause’s central concern is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact. Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Testimonial statements of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. However, otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered “opens the door,” but the party offering the evidence may not “stray beyond the scope of the invitation.” Schutz v. State, 957 S.W.2d 52, 71 (Tex.Crim.App.1997) (quoting Bush v. State, 773 S.W.2d 297, 301 (Tex.Crim.App.1989)). For instance, a party may open the door to the admission of otherwise inadmissible evidence to correct a false impression for which it was responsible. Renteria v. State, 206 S.W.3d 689, 697 (Tex.Crim.App.2006). This exception extends to the admission of evidence that may otherwise violate the Confrontation Clause. See Goodman v. State, 302 S.W.3d 462, 473 (Tex.App.-Texarkana 2009, pet. filed) (because defendant opened door to admission of testimonial evidence, no Confrontation Clause violation occurred); McClenton v. State, 167 S.W.3d 86, 94 (Tex.App.-Waco 2005, no pet.) (trial court properly admitted officer’s testimony relating co-defendant’s testimonial statement where defendant opened door). Because we review de novo whether a trial court’s admission of testimony violates Confrontation Clause rights, in this case we independently review whether appellant’s cross-examination of Detective Alvear opened the door to the State’s questions about Toledo’s statements to Detective Moffitt. See Lilly, 527 U.S. at 136-37, 119 S.Ct. 1887.

We hold defense counsel’s cross-examination of Detective Alvear called into question whether Toledo had affirmatively implicated appellant in the shooting. By asking Detective Alvear (1) if Toledo had told him whether Toledo saw appellant shoot anybody, and (2) whether officers had learned Toledo “was not even present when the shooting occurred,” defense counsel painted the picture that Toledo never implicated appellant in the shooting. Because these questions cast doubt on whether Toledo had named appellant as the shooter as well as whether Toledo had affirmatively implicated appellant, appellant created a false impression for the jury. Thus, appellant opened the door to the admission of questions regarding whether Toledo had identified appellant as a suspect, and the trial court did not err in allowing the State to ask Detective Moffitt the narrowly-tailored questions regarding the implication of appellant by Toledo. Because appellant opened the door to Detective Moffitt’s testimony regarding Toledo’s statements, its admission did not violate appellant’s right of confrontation.

JURY CHARGE

In his fourth issue on appeal, appellant argues the trial court erred when it refused to include an accomplice as a matter of law instruction in the jury charge regarding Maurice Pineda. Appellant claims Pineda’s “admitted involvement in this drug deal would have clearly implicated [him] as a party to the offense, and therefore an accomplice as a matter of law because he participated with another before, during, or after the crime.” Even assuming the trial court erred in not including the requested instruction, we conclude appellant was not harmed.

The degree of harm necessary for reversal depends on whether the error was preserved. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). Error properly preserved by an objection to the charge will require reversal as long as the error is not harmless. Id. This means any harm, regardless of degree, is sufficient to require reversal. Id. Here, because appellant properly preserved the alleged charge error, we must determine whether there was any harm, regardless of degree. Appellant argues that the error caused some harm because Pineda’s testimony was the “glue” that held the State’s case together. We disagree.

Before a conviction may rest upon an accomplice witness’s testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime. Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007). To determine whether accomplice testimony is sufficiently corroborated under the accomplice-witness rule, we must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the offense. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App.2001). Therefore, we exclude Pineda’s testimony and look to other corroborating evidence to determine if it connects appellant with the offense. See id. (corroborating evidence need not be sufficient by itself to establish guilt); Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) (if combined weight of non-accomplice evidence tends to connect defendant to offense, then requirement of Article 38.14 is fulfilled).

Here, there was no dispute that appellant was present in the apartment when Davila was shot and killed. Toledo— through Hernandez’s testimony — identified appellant as the man who had the gun. Toledo also identified appellant as one of the two men who restrained him with zip ties and duct tape and dragged him into another room. Within six hours of the shooting, police arrested appellant and Evans after a traffic stop and found large amounts of cash, forty-five pounds of marijuana, duct tape, zip ties, and the murder weapon. In sum, even if we exclude Pine-da’s testimony, the evidence is more than sufficient to connect appellant to the committed offense. Therefore, appellant was not harmed by the omission of an accomplice-witness instruction.

CONCLUSION

We overrule each of appellant’s issues on appeal, and we affirm the trial court’s judgment.

      . The record indicates the attorney withdrew because of a heavy caseload.

      . Pineda testified he thought one of the two black men who ran at him held a gun, but he did not identify appellant as the man with the gun and he did not identify which of the two black men shot Davila.


source: Caselaw Access Project

author: CATHERINE STONE, Chief Justice.

license: Public Domain

text:
    In re Maria Cristina Sada de BRITTINGHAM, Angel Eduardo Marroquin Brittingham, Daniel Milmo Brittingham, and Maria Cristina Lobeira Brittingham.
    No. 04-10-00175-CV.
    Court of Appeals of Texas, San Antonio.
    April 21, 2010.

      Sarah B. Duncan, Mike A. Hatchell, Locke Lord Bissell & Liddell LLP, Austin, TX, Thomas F. Loose, Locke Lord Bissell & Liddell, LLP, Dallas, TX, for Appellant.
    Donato D. Ramos, Law Offices of Dona-to D. Ramos, PLLC, Laredo, TX, Peter M. Kelly, Law Office of Peter M. Kelly, P.C., Houston, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by:

CATHERINE STONE, Chief Justice.

Real party in interest Kevin M. Mackie, Successor Administrator of the Estate of Juan Roberto Brittingham-McLean, Deceased, has moved to disqualify former Fourth Court of Appeals Justice Sarah Duncan and all of the members of her law firm, Locke Lord Bissell & Liddell LLP, from representing relators Maria Cristina Sada de Brittingham, Angel Eduardo Mar-roquin Brittingham, Daniel Milmo Brit-tingham, and Maria Cristina Lobeira Brit-tingham in this original proceeding. The basis asserted for the disqualification is the undisputed fact that Duncan served as a participating justice on the panel in Tijerina v. Mackie, No. 04-05-00213-CV, 2006 WL 397936 (Tex.App.-San Antonio 2006, no pet.) (affirming two trial court orders appealed from the same ancillary probate proceeding from which the instant proceeding arises).

Duncan asserts she and her firm should not be disqualified because: (1) the motion to disqualify does not establish a violation of Texas Disciplinary Rule of Professional Conduct 1.11(a); (2) Mackie consented to Duncan’s representation of relators; and (3) Mackie must establish prejudice and has failed to do so. We disagree with relators’ contentions and grant the motion to disqualify.

ANALYSIS

A. Violation of Texas Disciplinary Rule of Professional Conduct 1.11

Disqualification is a severe remedy because it can cause immediate harm by depriving a party of its chosen counsel and disrupting court proceedings. See In re Sanders, 153 S.W.3d 54, 57 (Tex.2004) (orig. proceeding) (per curiam); In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.2002) (orig. proceeding) (per curiam). As a result, courts must adhere to an exacting standard when considering motions to disqualify so as to discourage their use as a dilatory trial tactic. See In re Nitla, 92 S.W.3d at 422 (citing Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990) (orig. proceeding)). We look to the disciplinary rules to decide disqualification issues, but the disciplinary rules are merely guidelines and not controlling standards for motions to disqualify. Id.

Texas Disciplinary Rule of Professional Conduct 1.11 provides in relevant part as follows:

(a) A lawyer shall not represent anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official or law clerk to an adjudicatory official, unless all parties to the proceeding consent after disclosure.

Tex. Disciplinary R. Prof’l Conduct 1.11(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). Relators acknowledge Duncan participated personally and substantially as an adjudicatory official in Tijerina. See Tijerina, 2006 WL 397936. However, relators contend Duncan and her firm are not disqualified from representing relators under Rule 1.11(a) because the original proceeding before this court and Tijerina are not the same “matter” as required for disqualification under the rule. See Tex. Disciplinary R. Prof’l Conduct 1.11(a).

This is an issue of first impression in this court and we are aware of no other Texas court that has considered this issue. Rule 1.11 does not define the term “matter,” but the comment to Rule 1.11 provides that this rule generally parallels Rule 1.10. See id. cmt. 1. Rule 1.10(f)(1)-(2) defines the term “matter” as follows:

(1) Any adjudicatory proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge accusation, arrest or other similar, particular transaction involving a specific party or parties; and
(2) any other action or transaction covered by the conflict of interest rules of the appropriate government agency.

Id. 1.10(f)(l)-(2). Relators contend the definition of “matter” in Rule 1.10(f)(1) is completely circular in the context of appeals because appeals and original proceedings are both: (1) a part of the larger “adjudicatory proceeding” in the trial court; and (2) separate “adjudicatory proceedings” in the appellate court. Relators further assert an adjudicatory proceeding in the appellate court frequently involves discrete parties and issues even though it arises out of a larger trial court “adjudicatory proceeding.” Therefore, relators conclude a “matter” can only mean a discrete appeal or original proceeding. We disagree.

The definition of “matter” in Rule 1.10(f)(1) includes a “similar, particular transaction involving a specific party or parties.” See id. The underlying case giving rise to this original proceeding is an ancillary probate proceeding that has been ongoing since 2000. To date, fourteen appeals and original proceedings have been filed in this court, all arising out of the same ancillary probate proceeding in Trial Court Cause No.2000-PB-7000049-ll.

Furthermore, probate proceedings are different from other proceedings in that there is a need to review controlling, intermediate decisions before an error can harm later phases of the proceeding. See Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.App.-Austin 2000, pet. denied); see also In re Estate of Padilla, 103 S.W.3d 563, 565-66 (Tex.App.-San Antonio 2003, no pet.). One probate proceeding consists of a continuing series of events in which the probate court will make decisions at various points in the administration of the estate on which later decisions will be based. Id. As a result, multiple orders are entered on certain discrete issues and are final and appealable. See De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006). Nonetheless, these discrete appealable issues arise from one probate proceeding.

We conclude the term “matter” in Rule 1.11(a) in the appellate context includes a “similar, particular transaction involving a specific party or parties,” and in this particular case the “matter” is the ancillary probate proceeding and not each discrete appeal or original proceeding. See Tex. Disciplinary R. Prof’l Conduct 1.10(a) & 1.11(a). We conclude Duncan is representing relators “in connection with a matter in which [she] has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official or law clerk to an adjudicatory official.” See id. 1.11(a).

B. Consent

Because we hold that this original proceeding involves a matter in which Duncan participated personally and substantially as an adjudicatory official, Duncan and her firm are disqualified from representing relators unless “all parties to the proceeding consented] after disclosure.” See id. 1.11(a). Relators contend Mackie’s counsel has known of Duncan’s representation of relators since they filed Appellants’ Brief in Cause No. 04-09-00238-CV on November 23, 2009. We hold that simply listing Duncan on a brief in an appellate proceeding is not a proper “disclosure” of the conflict under Rule 1.11(a). Within the context of Rule 1.11(a), a disclosure requires the lawyer to inform the party that she participated in the matter personally and substantially as an adjudicatory official. The mere listing of an attorney in the signature block of an appellate brief does not constitute such a disclosure.

Relators contend Mackie’s counsel consented to the representation when he informed relators’ former counsel he did not oppose the motions to substitute Duncan and her firm as counsel for relators in Cause Nos. 04-09-00238-CV and 04-09-00810-CV. The motions to substitute were filed on February 25, 2010 and are still pending. Mackie responds that he was unaware Duncan was on the panel in Tijerina until March 2, 2010 when he reviewed this court’s opinion that listed Duncan as a justice participating on the panel. Although the affidavit from relators’ former counsel does state that Mackie did not oppose the motions to substitute, the affidavit does not establish that Duncan’s participation in Tijenna was disclosed to Mackie or his counsel when Mackie stated he would not oppose the substitution. Therefore, relators failed to establish that Mackie “consent[ed] after disclosure.” See id. 1.11(a).

C. Prejudice

Relators next assert Mackie must establish he has been prejudiced in order for disqualification to be required under Rule 1.11(a). See In re Sanders, 153 S.W.3d at 57; In re Nitla, 92 S.W.3d at 422. We disagree. In re Sanders involved the disqualification of a lawyer under Rule 3.08(a) based on the assertion that the lawyer would be serving in dual roles as an advocate and a witness. See 153 S.W.3d at 57. The comment to Rule 3.08 specifically provides that the rule “may furnish some guidance in those procedural disqualification disputes where the party seeking disqualification can demonstrate actual prejudice to itself resulting from the opposing lawyer’s service in the dual roles.” Tex. Disciplinaey R. Prof’l Conduct 3.08 cmt. 10. The Court determined that a “party requesting disqualification [under Rule 3.08(a) ] must demonstrate that the opposing lawyer’s dual roles as attorney and witness will cause the party actual prejudice.” In re Sanders, 153 S.W.3d at 57 (citing Ayres v. Canales, 790 S.W.2d 554, 558 (Tex.1990) (holding a showing of prejudice is required when disqualification is sought based on a lawyer’s dual roles as attorney and witness)).

In re Nitla involved a motion to disqualify the lawyer on the basis that the lawyer reviewed privileged documents he received from the trial court. See 92 S.W.3d at 422. The Court concluded there were no disciplinary rules or prior cases that provided guidance, and instead set out a test that included the requirement that the party seeking disqualification show prejudice. Id.

These cases are distinguishable from the case at hand because unlike In re Nitla, Rule 1.11 provides this court with guidance, and unlike In re Sanders, neither the rule nor the comment provides that the party seeking disqualification must show prejudice. To require the party seeking disqualification under Rule 1.11 to show prejudice would likely place an unattainable burden on that party because the party seeking disqualification does not know what insight an adjudicatory official has gained about the underlying case. In this case, Mackie would not be privy to discussions in which Duncan may have participated as a panel member in Tijerina. See Tijerina, 2006 WL 397936. Tijerina “was the fourth appeal [and fifth- proceeding] to [the Fourth] Court,” and stated that “[t]o understand where we are today, a brief review of the history of this case is necessary.” See Tijerina, 2006 WL 397936, at *1. From this statement, one could infer that the panel reviewed the entire history of the preceding appeals and original proceedings. Requiring Mackie to show that the confidential discussions among appellate court justices prejudiced him would be an impossible burden, and one we do not believe the rule does or should impose.

D. Waiver

Finally, relators contend Mackie waived his complaint by failing to exercise due diligence. See Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 468 (Tex.1994) (per curiam); Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex.1994) (per curiam); see also In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337-38 (Tex.1999) (Baker, J., concurring). Relators again rely on their assertion that Duncan first appeared in this court on November 23, 2009 with the filing of Appellants’ Brief in Cause No. 04-09-00238-CV. Again, we cannot say this was a proper disclosure that would place the burden on Mackie to pursue disqualification of Duncan at that time. As a result, we conclude Mackie did not waive his right to seek the disqualification of Duncan and her firm.

E. Disqualification of Firm

Having determined Duncan must be disqualified from further representation of relators in this original proceeding, we now turn to whether Locke Lord Bissell & Liddell LLP can continue representation of relators. Rule 1.11(c) provides an avenue by which a firm can continue to represent a party even if a lawyer at that firm is disqualified from representing the party. The Rule provides:

(c) If paragraph (a) is applicable to a lawyer, no other lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) the lawyer who is subject to paragraph (a) is screened from participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the other parties to the proceeding.

Tex. Disciplinary R. Prof’l Conduct 1.11(c). However, the parties do not dispute that Duncan and her firm have not complied with Rule 1.11(c). Therefore, Locke Lord Bissell & Liddell LLP is also disqualified from further representation of relators in this original proceeding.

CONCLUSION

As a result of the foregoing, we grant Mackie’s motion to disqualify Duncan and Locke Lord Bissell & Liddell LLP from further representation of relators in this original proceeding. Therefore, we abate the original proceeding for thirty days to allow relators to obtain new counsel.

      . See In re Brittingham, No. 04-10-00175-CV (filed Feb. 25, 2010) (discovery post-judgment); Brittingham-Sada v. Mackie, No. 04-09-00810-CV (filed Dec. 17, 2009) (appeal from judgment in favor of estate); In re Estate of Brittingham-McLean, No. 04-09-0023 8-CV (filed April 23, 2009) (appeal from order approving claim of Juan R. Brittingham Aguirre); In re Brittingham-Sada, 304 S.W.3d 507 (Tex.App.-San Antonio 2009, orig. proceeding) (motion to compel deposition of legislator regarding legislative continuance); In re Brittingham-Sada, No. 04-09-00488-CV, 2009 WL 2568341 (Tex.App.-San Antonio Aug. 19, 2009, orig. proceeding) (per curiam) (mem. op.) (motion to strike intervention of Tijerina); In re Brittingham-Sada, No. 04-09-00480-CV, 2009 WL 2517110 (Tex.App.-San Antonio Aug. 12, 2009, orig. proceeding) (per curiam) (mem. op.) (motion to strike intervention of Tijerina); In re Brittingham-Sada, No. 04-08-00688-CV, 2009 WL 263361 (Tex. App.-San Antonio Feb. 4, 2009, orig. proceeding [mand. denied]) (per curiam) (mem. op.) (forum nonconveniens); Global Fin. Servs., L.L.C. v. Estate of McLean, No. 04-07-00627-CV, 2008 WL 372521 (Tex.App.-San Antonio Feb. 13, 2008, no pet.) (mem. op.) (arbitration); Global Fin. Servs., L.L.C. v. Estate of McLean, Nos. 04-04-00854-CV & 04-05-00074-CV, 2007 WL 1759940 (Tex.App.-San Antonio June 20, 2007, no pet.) (mem. op.) (arbitration and plea in abatement); Tijerina v. Mackie, No. 04-05-00213-CV, 2006 WL 397936 (Tex.App.-San Antonio Feb. 22, 2006, no pet.) (mem. op.) (jurisdiction; appointment of Mackie as successor administrator; bond set for Mackie; and contingent fee contract between Mackie and law firm representing him in his capacity as administrator); In re Ayala, No. 04-01-00234-CV, 2006 WL 2682222 (Tex.App.-San Antonio Sept. 20, 2006, orig. proceeding) (per curiam) (mem. op.) (motion to quash subpoena); Ayala v. Mackie, 158 S.W.3d 568 (Tex.App.-San Antonio 2005, pet. denied) (appointment of successor administrator); Brittingham-Sada de Powers v. Ancillary Estate of Brittingham-McLean, 158 S.W.3d 518 (Tex.App.-San Antonio 2004, pet. denied) (personal jurisdiction); Ayala v. Brittingham, 131 S.W.3d 3 (Tex.App.-San Antonio 2003), rev'd, De Ayala v. Mackie, 193 S.W.3d 575 (Tex.2006) (admission of will to probate and appointment of executrix).


author: STEVEN C. HILBIG, Justice. REBECCA SIMMONS, Justice,

text:
    Lavonne BYRD, Appellant, v. The STATE of Texas, Appellee.
    No. 04-08-00226-CR.
    Court of Appeals of Texas, San Antonio.
    April 21, 2010.
    Discretionary Review Granted Sept. 15, 2010.

      Roderick B. Glass, Assistant Public Defender, San Antonio, TX, for appellant.
    Scott Roberts, Assistant Criminal District Attorney, San Antonio, TX, for appel-lee.
    Sitting en banc: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
   Opinion on ReheaRing En Banc

Opinion by

STEVEN C. HILBIG, Justice.

In an order dated March 4, 2009, a majority of this court granted Appellant Lavonne Byrd’s motion for rehearing en banc. The panel opinion and judgment dated January 14, 2009, are withdrawn, and this opinion and judgment are substituted. We affirm the trial court’s judgment.

Background

By way of an information, the State charged that Byrd “with intent to deprive the owner, Mike Morales, of property, namely: THREE (3) PAIRS OF PANTS, and ONE (1) DVD, did unlawfully, without the effective consent of the owner, appropriate said property....” The information was based on an alleged shoplifting incident at a Wal-Mart in San Antonio. The parties agree the State did not present any evidence proving Mike Morales was the owner of the property or his relationship to Wal-Mart. Rather, the State presented evidence that Wal-Mart was the owner. In accordance with the information, the jury was charged it could find Byrd guilty if the State proved beyond a reasonable doubt the property was appropriated without the effective consent of Mike Morales. Byrd argues the State was required to prove the person named as owner in the charging instrument was the actual owner of the. property and because it did not so prove, the evidence is legally insufficient to support the conviction.

Standard of Review

Byrd raises legal sufficiency challenges under both the federal and state constitutions. We review a federal due process challenge to the legal sufficiency of the evidence by determining whether a rational trier of fact could have found the “substantive elements of the offense as defined by state law” beyond a reasonable doubt. Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 324 n. 16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 546 U.S. 962, 126 S.Ct. 481, 163 L.Ed.2d 367 (2005) (stating sufficiency of evidence review requires viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt). However, when the legal sufficiency of the evidence is challenged under state law, we measure the evidentiary sufficiency against “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Fuller, 73 S.W.3d at 252 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997)); see Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001).

Federal Due Process — Substantive Elements of the Offense

Section 31.03 of the Texas Penal Code provides in relevant part:

§ 31.03 Theft
(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
(b) Appropriation is unlawful if:
(1) it is without the owner’s effective consent [.]

Tex. Penal Code Ann. § 31.03(a), (b) (Vernon Supp. 2009). The essential elements of theft are (1) a person (2) with intent to deprive the owner of property (3) unlawfully appropriates the property. Ex parte Luna, 784 S.W.2d 369, 371 (Tex.Crim.App.1990). Although the State must prove there is an owner from whom the property was unlawfully appropriated, the owner’s name is not a “substantive element” of the theft statute. See id.; see also Fuller, 73 S.W.3d at 253. The issue in Fuller was whether the State’s failure to prove the name of the 'victim as it appeared in the indictment for the offense of injury to an elderly individual rendered the evidence legally insufficient. The victim was identified as Olen M. Fuller in the indictment. At trial, the victim was referred to as either “Mr. Fuller” or “Buddy.” After reviewing the statutory definition of the offense, the Texas Court of Criminal Appeals concluded the name of the elderly individual was not a substantive element of the offense:

State law does not define the victim’s name as a substantive element of the offense by, for example, defining the offense as “injury to an elderly individual named Olen M. Fuller.”
The prosecution’s failure to prove the victim’s name exactly as alleged in the indictment does not, therefore, make the evidence insufficient to support appellant’s conviction under Jackson v. Virginia. The evidence that appellant injured the elderly victim by hitting him in the face with his fist satisfies the Jackson v. Virginia standard because it constitutes proof of every fact necessary to constitute the crime charged of “injury to an elderly individual.”

Id. In similar fashion, the theft statute does not define the offense of theft to be the unlawful appropriation of property with intent to deprive the owner Mike Morales of the property. Because the property owner’s name is not a substantive element of the offense of theft, the State’s failure to prove the name alleged in the information does not render the evidence legally insufficient under Jackson v. Virginia.

State Due Process — Elements of a Hypothetically Correct Charge

Under the state law sufficiency standard, Byrd’s claim of legal insufficiency is viewed as a variance issue — the evidence is different or varies from the allegations in the charging instrument. See Fuller, 78 S.W.3d at 253; Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex.Crim.App.2001). “A ‘variance’ occurs when there is a discrepancy between the allegations of the charging instrument and the proof at trial. 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, 46 S.W.3d at 246.

In determining whether the trial evidence is legally sufficient under state law, we measure the evidence against the “elements of the offense as defined by the hypothetically correct jury charge for the case.” Fuller, 73 S.W.3d at 252. “Allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included.” Gollihar, 46 S.W.3d at 257; see Fuller, 73 S.W.3d at 253. Only a material variance requires reversal because only a material variance prejudices a defendant’s substantial rights. Fuller, 73 S.W.3d at 253. We decide if the variance is material by determining “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 prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.” Gollihar, 46 S.W.3d at 257 (quoting U.S. v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)).

In Fuller, after holding the evidence was sufficient under Jackson v. Virginia because the name of the victim was not a substantive element of the offense, the Court of Criminal Appeals conducted a separate analysis of whether the evidence was legally sufficient under Texas law. The court of appeals had held the name of the victim must be included in a hypothetically correct jury charge. Fuller v. State, No. 10-98-019-CR, slip op. ¶ 4 n. 3 (Tex.App.-Waco May 27, 1998) (not designated for publication), available at http://www.10 thcoa.courts.state.tx.us/opinions/ HTMLopinion.asp?OpinionID=2585, reversed, Fuller v. State, 73 S.W.3d 250 (Tex. Crim.App.2002). The court of appeals concluded the evidence was insufficient to support appellant’s conviction because “the name of the complaining witness is material to an indictment and must be alleged and proven.” Id, slip op. ¶ 2. The Court of Criminal Appeals reversed, and affirmed the trial court judgment, holding the name of the victim was not required in a hypothetically correct jury charge because “the victim’s name is not a statutory element of the offense” and the variance between the indictment and the proof was not material:

There is no indication in the record that appellant did not know whom he was accused of injuring or that he was surprised by the proof at trial. See Gollihar, 46 S.W.3d at 257. Finally, the variance does not subject appellant to another prosecution for the same offense. See id

Fuller, 73 S.W.3d at 254.

Byrd does not complain the failure to prove the name of the owner as alleged in the information prejudiced her defense. And, as in Fuller, nothing in the record suggests Byrd was unaware that she was being accused of stealing from Wal-Mart. The State presented evidence that a group of women, in a coordinated effort, stole merchandise from Wal-Mart. Byrd’s defense was she did not knowingly take any property. Given this defense, the variance between the allegation of ownership and proof of ownership could not and did not prejudice her defense.

Because the indictment sufficiently informed Byrd of the charge against her, the variance is material only if it subjects Byrd to another prosecution for the same offense. The issue is whether excluding the owner’s name from the hypothetically correct jury charge would deny Byrd double jeopardy protection. Posed in a different manner, the question becomes: If Byrd’s conviction is affirmed, may the State successfully initiate a new proceeding charging Byrd with theft of the same items, but allege Wal-Mart as the owner of the property? If the answer is yes, the name of the owner as alleged in the information must be included in the hypothetically correct jury charge against which we measure legal sufficiency.

Double jeopardy protects a person in several ways: “(1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense.” Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex.Crim.App.2006). “The legislature, therefore, determines whether offenses are the same for double-jeopardy purposes by defining the ‘allowable unit of prosecution.’ ” Id. (quoting Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)). “The legislature also decides whether a particular course of conduct involves one or more distinct offenses under a given statute.” Id. To determine the allowable unit of prosecution, we look to the gravamen of the offense. See id. at 337. For example, the allowable unit of prosecution for burglary is the unlawful entry and not the complainant:

The allowable unit of prosecution for an assaultive offense is each complainant. Burglary, however, is not an assaultive offense; rather, its placement within Title 7 [of the Texas Penal Code] indicates that the legislature determined burglary to be a crime against property. Thus, the complainant is not the appropriate allowable unit of prosecution in a burglary, rather, the allowable unit of prosecution in a burglary is the unlawful entry. Applicant’s convictions [for burglary with intent to commit theft and burglary with intent to commit sexual assault, each count naming a different victim] violate double jeopardy because he was punished multiple times for a single unlawful entry.

Id. (citations omitted). The statutory definition of theft is also found in Title 7 of the Texas Penal Code entitled “Offenses Against Property.” The court in Cavazos found that placement of an offense in Title 7 indicated the intent of the legislature was to make that offense a crime against property. Id. The gravamen of the offense of theft is the acquisition or taking of the property. Because the legislature has indicated theft, as burglary, to be a crime against property, and the gravamen of the offense is the exercise of control over the property, the allowable unit of prosecution for double jeopardy purposes is the property taken. See Jones v. State, 285 S.W.3d 501, 505 (Tex.App.-Fort Worth 2009, pet. granted) (stating “[i]n theft, the allowable unit of prosecution is the object or objects stolen”).

Because the allowable unit of prosecution is the property taken, the State would not be able to prosecute Byrd again for the theft of the same items, alleging Wal-Mart as the owner. Any subsequent charge involving the same property would constitute the same offense. See Cavazos, 203 S.W.3d at 337; Gollihar, 46 S.W.3d at 258 (“Appellant is in no danger of being prosecuted again for theft of the same cart proved at trial.”); see also U.S. v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir.) (entire record may be reviewed to determine whether double jeopardy prevents subsequent prosecution), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988). Accordingly, the allegation of the name of the owner need not be included in the hypothetically correct jury charge in this case.

The dissent offers several arguments for including the name of the owner in the hypothetically correct jury charge. Initially, the dissent cites Freeman v. State, 707 S.W.2d 597 (Tex.Crim.App.1986), and Judge Odom’s dissent in Hudson v. State, 675 S.W.2d 507 (Tex.Crim. App.1984), for the proposition that “failure to establish ownership in the person or entity alleged as owner results in a failure of proof.” Dissent, at 112. However, both Freeman and Hudson were decided before the Court of Criminal Appeals rendered its decisions in Malik and Gollihar. Prior to these cases, the State was bound by the allegations in the charging instrument, regardless of the materiality of the allegations. See Freeman, 707 S.W.2d at 603 (“Of course, if the State alleges that such person is the ‘owner,’ it then has the burden of proof to establish that fact beyond a reasonable doubt, and a failure to prove that fact beyond a reasonable doubt will result in an acquittal being entered on behalf of the defendant.”); see also Commons v. State, 575 S.W.2d 518, 520 (Tex.Crim.App.1979) (holding that although State was not required by statute to allege the owner of property in prosecution for changing price tags on merchandise, when State chose to make a “descriptive averment” of that person, it was obligated to prove the allegation). The “rule” enunciated in each of these cases — legal sufficiency is measured by descriptive averments in the indictments and contained in the jury charge — was overruled by Malik and Gol-lihar, as acknowledged by the court in Fuller. See Fuller, 73 S.W.3d at 252; Gollihar, 46 S.W.3d at 256-57; Malik, 953 S.W.2d at 239-40. Rather, the sufficiency of the evidence is now measured by a hypothetically correct jury charge, which includes the statutory elements of the offense alleged in the indictment. Aver-ments in the charging instrument, other than the statutory elements, are not included in the hypothetically correct jury charge unless the allegations are material. Gollihar, 46 S.W.3d at 256-57.

In Gollihar, the court acknowledged it had not always considered materiality in determining whether a variance required reversal of a conviction. Id., 46 S.W.3d at 249 (“We have not been consistent in requiring materiality, but have sometimes reversed upon a finding of variance without exploring the further question of materiality.”) The court explained why a materiality component is appropriate in a legal insufficiency claim that is based upon a variance:

A materiality or harmless error-type requirement is not generally a component in traditional sufficiency of the evidence analysis, and we have never addressed why it has been required in the context of a variance-insufficiency claim. We would venture to say the explanation is two-fold. First, in a variance situation, unlike a standard insufficiency claim, the State, by all accounts, has proven that the defendant committed a crime. The only question is whether it has proven the details as it alleged in the indictment. Because a crime has admittedly been proven, acquittal does not seem appropriate without some inquiry into the materiality of the failed proof. Second, the materiality requirement appears to have been derived from the test traditionally applied by courts when viewing variance solely as a notice-related doctrine, distinct from sufficiency of the evidence. But materiality is not a concept wholly without basis in the sufficiency of the evidence context, given Jackson’s emphasis on notice and meaningful opportunity to defend.

Id. at 248 n. 7. Because Gollihar created a standard of review for legal sufficiency that includes a materiality component and measures legal sufficiency against a hypothetically correct jury charge rather than the actual charge given, the dissent’s reliance on Freeman and Hudson is misplaced.

Although agreeing the name of the owner of the property is not an element of the offense of theft, the dissent next cites article 21.09 of the Texas Code of Criminal Procedure and Freeman for the proposition that the name of property owner must be alleged and proven. The dissent accurately quotes Freeman as stating it is “axiomatic” the charging instrument in a theft case must name the owner of the property, but Freeman also states the article in the code of criminal procedure requiring allegations of ownership in the charging instrument “is a rule of pleading, ... and is not a part of the definition of the offense of theft.” Id. at 603. Because the identity of the owner is not part of the statutory definition of the offense of theft, it need not be included in an hypothetically correct jury charge unless it is pled in the charging instrument and determined to be material under a Gollihar analysis.

The dissent relies primarily on Bailey v. State, 87 S.W.3d 122 (Tex.Crim.App.2002), to argue the variance is material under the double-jeopardy prong of the Gollihar test. The dissent concludes the allowable unit of prosecution for theft offenses is the owner of the property and thus the name of the owner as alleged in the information must be included in a hypothetically correct jury charge to afford Byrd double jeopardy protections. However, the court in Bailey did not discuss the essential elements of the offense of theft, the allowable unit of prosecution for theft, or legal sufficiency. See Bailey, 87 S.W.3d at 126-29. Rather, the court held that when a defendant has been acquitted of an offense because of a variance between the charging instrument and the proof, double jeopardy does not bar a subsequent prosecution for a different offense based on the “same conduct.” Id. at 128-29.

The defendants in Bailey were originally charged with stealing money from the City of Houston. Id. at 123. The defendants worked for a construction company that had a contract with the city to complete various projects. Id. at 124. The workers completed time sheets to falsely indicate they were working and entitled to pay. Id. Rick Collins, the owner of the construction company, testified he issued paychecks to the defendants based on the time sheets and was later reimbursed by the city. Id. at 125. Several city officials testified the city was not responsible for paying any contractor’s employees; the city’s only obligation was to pay the contractor under the terms of the contract. Id. The trial court granted the defendants’ motion for acquittal on the ground the evidence demonstrated the money allegedly stolen belonged to the construction company and not to the city as alleged in the indictments. Id. The State subsequently re-indicted the defendants, alleging the same conduct, but listing Rick Collins as the owner of the money. Id. The defendants filed applications for writs of habeas corpus claiming double jeopardy. Id.

The Court of Criminal Appeals agreed with the State that double jeopardy did not bar the second prosecutions. The court first noted that “[tjraditionally, courts in Texas have held that an acquittal because of a variance between the pleading and the proof does not bar reprosecution on a new charge alleging that version of the offense which the State’s evidence proved in the first trial.” Id. at 126-27. Noting that the test is whether the subsequent charge involves the “same offense” rather than the “same conduct,” the court reasoned that theft of money from the City of Houston was not the same offense as theft of money from Rick Collins, and double jeopardy was not implicated. Id. at 126, 127; see also id. at 128-29 (the “same conduct” test for double jeopardy as formulated in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) was overruled in United States v. Dixon, 509 U.S. 688, 113 5.Ct. 2849, 125 L.Ed.2d 556 (1993)).

The dissent concludes from the Bailey opinion that the name of the owner of the property as alleged in the charging instrument must be included in a hypothetically correct jury charge to protect Byrd from double jeopardy. But Bailey is simply not applicable to this case. In Bailey, the Court of Criminal Appeals addressed the question whether a subsequent prosecution may be had if in the original prosecution there was a variance in the proof that resulted in legally insufficient evidence to support the charge. Bailey, and the other cases cited by the dissent for this principle, would apply only if Byrd had previously been acquitted due to a material variance. The reasoning and analysis in Bailey do not apply in determining if the variance in this case is material.

As discussed above, the owner’s name is not a statutory element of the offense of theft. And because (1) Byrd may not be prosecuted again for theft pursuant to an information that identifies the same property, but alleges a different owner, and (2) the variance between the information and the proof regarding the name of the owner did not deprive Byrd of adequate notice of the charge, the variance is not material. We therefore do not include the name of the owner alleged in the charging instrument in the hypothetically correct jury charge we use to measure the sufficiency of the evidence under state law.

Sufficiency of the Evidence

Having determined the property owner’s name was not a substantive element of the charged offense and was not required in a hypothetically correct charge, we review the evidence in the light most favorable to the verdict to determine if the State proved Byrd unlawfully appropriated the property with the intent to deprive the owner of the property.

Mr. Ricardo Salinas, a loss prevention officer employed by Wal-Mart, testified he saw two women meet with Byrd, who was pushing a shopping cart with a baby carrier on it. Salinas stated the two women took clothes and threw them under a blanket covering the carrier while Byrd acted as a lookout. He testified he also saw the women give Byrd store merchandise, which she then placed under the blanket. Byrd pushed the cart out of the store without paying for any of the items concealed by the blanket and baby carrier. Byrd was detained outside the store and numerous items from the store were found in her possession. After Salinas identified the property found in Byrd’s possession and testified to its value, he stated the property belonged to Wal-Mart and Wal-Mart did not give Byrd consent to take the property. Salinas also testified Byrd “basically admitted to the theft” and she intended to deprive Wal-Mart of its property-

Viewed in the light most favorable to the verdict, a rational jury could have found that Byrd, acting with the intent to deprive the owner of three pairs of pants and one DVD, unlawfully appropriated the property. The appropriation was unlawful because it was without the effective consent of the owner, Wal-Mart.

Conclusion

The disposition of this case is controlled by Fuller. Just as in Fuller, where the name of the victim was not an essential element of the offense of injury to an elderly individual, the name of the owner is not a substantive or statutory element of the offense of theft. The only point of variance in the proof at trial and the allegations in the information — the name of the owner — did not operate to deprive Byrd of the opportunity to prepare her defense and is not required to prevent the application of double jeopardy. Therefore the allegation of the name of the owner of the property is not required to be included in a hypothetically correct jury charge. The evidence is sufficient to sustain the jury’s verdict under the due process requirements of the constitutions of the United States and Texas. The judgment of the trial court is affirmed.

Dissenting opinion by

REBECCA SIMMONS, Justice,

joined by CATHERINE STONE, Chief Justice, and SANDEE BRYAN MARION, Justice.

Dissenting opinion by REBECCA SIMMONS, Justice, joined by CATHERINE STONE, Chief Justice, and SANDEE BRYAN MARION, Justice.

Although this misdemeanor case seems small, the ramification of the majority opinion is large. In this case the jury was charged to find the defendant guilty if the State proved, beyond a reasonable doubt, that Lavonne Byrd:

“with the intent to deprive the owner, Mike Morales, of property, ... did unlawfully, without the effective consent of the owner, Mike Morales, appropriate said property by acquiring and otherwise exercising control over said property ...

Without any evidence in the record identifying Mike Morales or linking Mike Morales to the property at issue, the jury returned a guilty verdict. This is an astonishing result. The consequence of the majority opinion is to permit the conviction of a defendant for theft without regard to the identity of the owner. I must respectfully dissent because I believe the case reflects a failure of proof rather than a variance. But even if the case is analyzed under variance parameters, the variance is material. The majority opinion reaches its conclusion that the variance is immaterial by misinterpreting the Court of Criminal Appeals’ opinion in Bailey v. State, 87 S.W.3d 122 (Tex.Crim.App.2002). In no recorded case has a court ever held a defendant guilty of theft absent proof of ownership as alleged and charged. There are plenty of cases to the contrary pointing out that failure to establish ownership in the person or entity alleged as owner results in a failure of proof. See Freeman v. State, 707 S.W.2d 597, 602 (Tex.Crim.App.1986); Hudson v. State, 675 S.W.2d 507, 513 (Tex.Crim.App.1984) (Odom, J., dissenting) (citing Compton v. State, 607 S.W.2d 246, 250 (Tex.Crim.App.1980)) (“[I]t is essential that the relationship of the alleged special owner to the property and its true owner be shown.”). But whether the error in this case is characterized as a material variance or a failure of proof, the case should be reversed.

BACKGROUND

As the majority sets out, the jury charge mirrored the information in naming Mike Morales as the owner of the property. However, at trial, the State presented evidence that Wal-Mart was the owner of the property but no evidence regarding Mike Morales or his relationship to Wal-Mart or to the property. On appeal, Byrd asserts the State was required to prove Mike Morales, the person named as owner in the charging instrument, was the actual owner of the property; and, because it did not so prove, the evidence is legally insufficient to support the conviction. I agree.

Argument and Authorities

A. Proof of Variance

I agree with the majority on the elements of theft: (1) a person (2) with intent to deprive the owner of property (3) unlawfully appropriates the property. Ex parte Luna, 784 S.W.2d 369, 371 (Tex.Crim.App.1990). I also agree with the majority that the State must prove that there is an owner, and that when known, “personal property alleged in an indictment shall be identified by name, kind, number, and ownership.” Tex.Code Crim. Proc. Ann. art. 21.09 (Vernon 2009) (emphasis added); see also Freeman, 707 S.W.2d at 602 (“It is now axiomatic that the name of the title owner of the property or the lawful possessor of the property from whom it was unlawfully taken must be alleged in the charging instrument.”). When a corporation owns property that has been stolen, the preferable pleading practice is to allege ownership in an individual acting for the corporation rather than alleging ownership in the corporation. Sowders v. State, 693 S.W.2d 448, 451 (Tex.Crim.App.1985); Commons v. State, 575 S.W.2d 518, 520 (Tex.Crim.App. [Panel Op.] 1978), overruled on other grounds by Johnson v. State, 606 S.W.2d 894 (Tex.Crim.App.1980).

In Gollihar, the court of criminal appeals addressed the sufficiency implications of a variation between the indictment and the evidence at trial. Gollihar v. State, 46 S.W.3d 243, 254-55 (Tex.Crim.App.2001). “A ‘variance’ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.” Gollihar, 46 S.W.3d at 246. In determining whether the evidence is legally insufficient, only a material variance inquires reversal because only a material variance prejudices a defendant’s substantial rights. Fuller v. State, 73 S.W.3d 250, 263 (Tex.Crim.App.2002) (Keasler, J., dissenting) (citing Gollihar, 46 S.W.3d at 247-48). In deciding if the variance is material, an appellate court looks to “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 prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.” Gollihar, 46 S.W.3d at 257 (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir.2000) (footnotes omitted)). Thus, the issue before the court in this case is: (1) whether the variance deprived the defendant of notice of the charges; or (2) whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. See id. at 257, Fuller, 73 S.W.3d at 253. The majority’s analysis fails to correctly analyze the second prong of this materiality analysis — the risk of later being prosecuted for the same offense.

B. Material Variance

1. Double Jeopardy

The Fifth Amendment provides that no person shall “be subject for the same of-fence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal or conviction. Reynolds v. State, 4 S.W.3d 13, 19 (Tex.Crim.App.1999); accord Ex parte Dixon, 964 S.W.2d 719, 722 (Tex.App.-Fort Worth 1998, pet. refd). It has long been held that an acquittal of a defendant on a charge of theft, because of a lack of proof of an alleged owner, does not bar the prosecution of the defendant on a subsequent charge of theft from the rightful owner. See Smotherman v. State, 415 S.W.2d 430, 431 (Tex.Crim.App.1967) (former acquittal did not bar subsequent prosecution where different owner alleged); Branch v. State, 20 Tex.App. 599 (1886) (appellant acquitted of stealing horse from Fabian Flores, subsequently indicted and convicted for the same horse theft, but from a different owner, Antonio Flores). In the more recent case of Bailey v. State, the court concluded that double jeopardy did not preclude the prosecution of the appellants for theft from the rightful owner when they were previously prosecuted for the same theft from an entity with no ownership interest. Bailey, 87 S.W.3d at 126-27. Despite the majority’s attempt to distinguish Bailey, it is precisely on point and controlling on the issue of double jeopardy.

In Bailey, the court had to determine “whether re-indicting appellants for the same course of conduct while alleging a different victim” constituted double jeopardy. Id. at 126. The State first indicted the defendants for engaging in organized criminal activity involving theft from the City of Houston. During trial, the court granted an acquittal because the State not only failed to put on evidence of the theft of money from the City of Houston, but rather, had introduced evidence that the theft was from a different owner — a contractor who was reimbursed by the City of Houston. Id. at 125. The State subsequently re-indicted the defendants for the same theft of property, but named the contractor as the owner of the property. The Court of Criminal Appeals rejected the argument that the second prosecution was barred by double jeopardy principles. “Evidence that appellants stole money from [the contractor] would not sustain a conviction under the indictment alleging the victim to be the City of Houston. In other words, proof of one will not prove the other. Thus, the offenses are not the same for double jeopardy purposes.” Id. at 127 (citation omitted). Under Bailey and its predecessors, and on the record before us, the State could prosecute Byrd for the same course of conduct by naming Wal-Mart or another employee as the owner.

The majority attempts to distinguish Bailey because it relies, in part, on cases decided prior to Malik and Gollihar, but Bailey was decided after Malik and Golli-har. Bailey clearly acknowledges that the owner of the stolen property may be used to distinguish one offense from another. Id. In double jeopardy parlance, the owner defines the “allowable unit of prosecution.” See Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). Although the majority characterizes theft as an offense against property with the gravamen of the offense “the property taken, not the victim involved,” clearly the owner likewise defines an allowable unit of prosecution. The majority may disagree with the Court of Criminal Appeals holding in Bailey, but its application to the present case cannot be avoided.

There is no question that this case presents a unique circumstance. Based on the evidence in the record, Morales has no relation to Wal-Mart. As the Bailey court explained, the evidence showing Byrd stole items from one victim will not sustain a conviction under an indictment alleging a different victim. Bailey, 87 S.W.3d at 127. “In other words, proof of one will not prove the other.” Id.; see also Ex parte Gonzalez, 147 S.W.3d 474, 477 (Tex.App.-San Antonio 2004, pet. ref'd) (‘With conduct-oriented statutes, each victim is the allowable unit of prosecution.”). Had the State proved that Morales was the manager of Wal-Mart and thus, a special owner, double jeopardy would have precluded any subsequent prosecution of Byrd for the same course of conduct. See Ex parte Coleman, 940 S.W.2d 96, 100 (Tex.Crim.App.1996).

2. Hypothetically Correct Jury Charge

Having determined the State’s allegation of Morales as owner was material and must be proven, Morales’ name must be included in the hypothetically correct jury charge. See Gollihar, 46 S.W.3d at 257 (allegations giving rise to material variances must be included in hypothetically correct jury charge). In the context of this case, the hypothetically correct jury charge mirrors the charge actually given to the jury that named Mike Morales as the owner. The State was, therefore, required to prove that Morales was the owner of the property. The State presented four witnesses — two police officers and two loss prevention officers from Wal-Mart. But the record is silent regarding Morales — there was no testimony regarding Morales’s identity, his employment with Wal-Mart, any description of his responsibilities with Wal-Mart, or that he possessed a greater right to the property than did Byrd. Although the State may have proved that the property was owned by Wal-Mart, the State failed to prove that Mike Morales was the owner of the property, or more specifically that Mike Morales had a greater right to possession of the property than did Byrd. Because the evidence is legally insufficient to convict Byrd under the standard set forth in Golli-har, I respectfully dissent.

      . In its brief, the State points out that a police report contained in die reporter's record as an exhibit lists Mike Morales as the Manager/Owner of the property. However, the State acknowledges the exhibit was never admitted into evidence.

      . Section 22.04 of the Texas Penal Code, entitled "Injury to a Child, Elderly Individual, or Disabled Individual,” provides in pertinent part:
      (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act, or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

      (3) bodily injury.
      Tex. Penal Code Ann. § 22.04(a) (Vernon Supp. 2009).

      . In McClain v. State, the Court of Criminal Appeals stated: "the gravamen of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent;” what the theft statute prohibits is the defendant's "exercise of control over [property], coupled with knowledge he did not have the respective owners' consent and his intent to deprive the owners of the [property].” 687 S.W.2d 350, 353 (Tex.Crim.App.1985).

      . The dissent asserts "Bailey [v. State, 87 S.W.3d 122 (Tex.Crim.App.2002) ] clearly acknowledges that the owner of the stolen property may be used to distinguish one offense from another” to support its contention that the unit of prosecution for theft is the owner rather than the property taken. Dissent, at 114. However, the court in Bailey was considering the theft of a sum of money. Money is a fungible asset. See Sabri v. U.S., 541 U.S. 600, 601, 124 S.Ct. 1941, 158 L.Ed.2d 891 (U.S.2004). As such, unless the State is able to identify the property stolen by the serial numbers on the currency, the only way to identify the property is by reference to the owner. This fact in no way detracts from the general rule that the allowable unit of prosecution in theft cases is the property appropriated and not the owner of the property.

      . The dissent also applies the wrong standard in its double jeopardy analysis. The dissent asserts "the State could prosecute Byrd for the same course of conduct by naming Wal-Mart or another employee as the owner.” Dissent, at 114 (emphasis added). The court in Bailey noted the proper test for double jeopardy is whether the two offenses constitute the "same offense,” not the same "course of conduct.” Bailey, 87 S.W.3d at 127.

      . We admit to a certain unease with the court's references in Bailey to cases decided before its decisions in Malik and Gollihar to justify the conclusion that the indictments represented different offenses. See, e.g. Nance v. State, 17 Tex.App. 385 (1885); Reynolds v. State, 58 Tex.Crim. 273, 124 S.W. 931 (1910); Fulmer v. State, 731 S.W.2d 943 (Tex.Crim.App.1987). Of course, the court’s citation of these cases in Bailey was for the principle that Texas has a “traditional” rule that double jeopardy does not bar reprosecution after an acquittal due to a variance. Based on the Court of Criminal Appeals’s decisions in Fuller, Gollihar, and Malik, it is questionable whether the variances in the cited cases would be held to be material under current law.

      . If the dissent were correct that the allowable unit of prosecution is the owner of the property, every shoplifter would face successive prosecutions for theft of the same item because the State could file successive prosecutions naming the corporation, the store manager, the security manager, and every employee at the store as the owner of the property.