Variance determined to be immaterial in aggravated assault case

Megan SolizVolume 50 Staff Member


The issue in this case was whether a variance between the specific deadly weapon pled in the aggravated assault with a deadly weapon indictment and the one proved at trial is material or immaterial. The Court of Criminal Appeals held that the variance between the pleading and proof in this case was immaterial under Johnson v. State.

In Hernandez v. State, Hernandez was charged with aggravated assault with a deadly weapon.  During an argument, Hernandez repeatedly struck Molien with his hands in her head/face region, and at one point, Hernandez used one hand to choke Molien while simultaneously pouring water from a jug down her throat.  The indictment charged that Hernandez assaulted Molien with a deadly weapon when he caused bodily injury to her by striking her head or body with his hands while using a deadly weapon, water, during the commission of the assault. On appeal, Hernandez challenged the conviction arguing that the State’s evidence was legally insufficient to show that the deadly weapon, water, was used as he was striking Molien. The Court of Appeals agreed with Hernandez and reformed the conviction to reflect a simple assault and remanded for a new punishment hearing. This court reversed concluding that the variance was immaterial under Johnson

This Court previously held in Johnson that a variance was immaterial because the specific aggravated assault charge at issue was a result-of-conduct offense.  In Johnson, this Court explained the two categories of variances: 1) when the State’s proof deviates from the statutory theory of the offense as alleged in the indictment, which is a material variance; and 2) a non-statutory allegation that is descriptive of the offense in some way, which can be a material or immaterial variance.

Here, the Court focused on the second category of variance and determined that the variance between the pleading and proof in this case was immaterial.  The Court held that although Hernandez caused Molien to suffer bodily injury with his hands, not by striking her, but by choking her, that did not make the aggravated assault proved at trial different than the aggravated assault pled in the indictment. Further, the indictment did not specify the precise injury that would be shown by the evidence.

The concurrence held there was no variance at all because the entire encounter constituted one continuous assaultive transaction.

Hernandez v. State, No. PD-1049-16 (Tex. Crim. Oct. 18, 2017).