Michael Anthony FULLER, Appellant, v. The STATE of Texas, 73 S.W.3d 250

OPINION HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, HOLCOMB and COCHRAN, JJ., joined. A jury convicted appellant of “injury to an elderly individual.” See

Section 22.04(a), Texas Penal Code. The Court of Appeals acquitted appellant after deciding that the evidence was insufficient to support his conviction. See Fuller v. State, slip op. at 2-3 (Tex.App.—Waco, No. 10-98-019-CR, delivered May 27, 1998, pet. granted) (nonpublished). We reverse. The indictment alleged that appellant committed the offense against “Olen M. Fuller” who is appellant’s father. The prosecution proved that appellant injured his elderly father by hitting him in the face with his fist. During trial, however, appellant’s father was only referred to as “Mr.

Fuller” or as “Buddy.” The prosecution presented no evidence that appellant’s father was “Olen M. Fuller.” Consistent with the indictment’s allegation, the charge instructed the jury to convict if it found appellant committed the offense against “Olen M. Fuller.” Appellant claimed on direct appeal that the evidence was insufficient to support his conviction because the prosecution failed to prove the victim’s name as alleged in the indictment. The Court of Appeals decided, as a matter of federal constitutional law under Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that 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.” See Fuller, slip op. at 2. The Court of Appeals also decided that a “hypothetically correct jury charge” required the prosecution to prove the victim’s name as alleged in the indictment. Fuller, slip op. at 3 fn 3. We granted the State Prosecuting Attorney’s discretionary review petition which claims this is not a Jackson v. Virginia case but, rather, a variance case.

The State Prosecuting Attorney, therefore, argues that the Court of Appeals erred in reversing appellant’s conviction without first making a materiality inquiry into whether the variance between the indictment’s allegation of “Olen M. Fuller” and the proof at trial of “Mr. Fuller” or “Buddy” prejudiced appellant. Appellant claims the evidence was insufficient to support his conviction as a matter of federal constitutional law under Jackson v. Virginia. Appellant, therefore, argues that it is unnecessary to consider the State’s variance claim. I. Jackson v.

Virginia sets out the federal constitutional due process standard by which to measure evidentiary sufficiency. This standard measures evidentiary sufficiency against the “substantive elements of the criminal offense as defined by state law.” See Jackson, 99 S.Ct. at 2792 fn. 16. We recently decided in Gollihar v. State that under Malik v. State evidentiary sufficiency should be measured against the “elements of the offense as defined by the hypothetically correct jury charge for the case” in all sufficiency cases. See Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex.Cr.App.2001); Malik v.

State, 953 S.W.2d 234, 240 (Tex.Cr.App.1997). Gollihar rejected the view that Malik was a federal constitutional decision which adopted only the Jackson v. Virginia evidentiary sufficiency standard. See Gollihar, 46 S.W.3d at 252-57, 255-56 fn. 20, 255. Gollihar further rejected the notion that Malik’s “hypothetically correct jury charge for the case” language did not apply in a sufficiency analysis unless the case involved a jury charge error like the one in Malik.

Compare Gollihar, 46 S.W.3d at 252-57, 255-56 fn. 20, 255 (.Malik’s “hypothetically correct jury charge for the case” language “controls sufficiency of the evidence analysis even in the absence of alleged jury charge error”) (emphasis in original), with Planter v. State, 9 S.W.3d 156, 159-61 (Tex.Cr.App.1999) (McCormick, P.J., dissenting) (setting out the view which Gollihar rejected). Gollihar thus made Malik’s evidentiary sufficiency standard into a purely state law standard that is “foreign to federal constitutional norms.” Compare Malik, 953 S.W.2d at 238; Bledsue v.

Johnson, 188 F.3d 250, 257-62 (5th Cir.1999) (characterizing Malik’s evidentiary sufficiency standard as a state law doctrine); Brown v. Collins, 937 F.2d 175, 182 (5th Cir.1991) (characterizing pre-Malik evi-dentiary sufficiency standard as a “state procedural nuance foreign to federal constitutional norms” even though our decisions claimed this standard was consistent with federal constitutional law). Gollihar’s standard of measuring evidentiary sufficiency against the “elements of the offense as defined by the hypothetically correct jury charge for the case” clearly is not the same as the Jackson v.

Virginia standard of measuring evidentiary sufficiency against the “substantive elements of the criminal offense as defined by state law.” Compare Jackson, 99 S.Ct. at 2792 fn. 16, with, Gollihar, 46 S.W.3d at 255. Gollihar, therefore, does not apply to appellant’s Jackson v. Virginia evidentiary sufficiency claim. The federal constitutional issue in this case is whether the victim’s name is a substantive element of the criminal offense as defined by state law. See Jackson, 99 S.Ct. at 2792 fn. 16.

State law, in relevant part, defines “element of the offense” as the forbidden conduct with the required culpability. See

Section 1.07(a)(22)(A) & (B), Texas Penal Code. State law in

Section 22.04(a)(3) further defines the offense as “injury to an elderly individual.” 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.” See

Section 1.07(a)(22);

Section 22.04(a)(3); Gollihar, 46 S.W.3d at 246 (Jackson v. Virginia standard “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged ”) (emphasis in original). II. We must now decide whether the evidence was sufficient to support appellant’s conviction under Gollihar’s state law sufficiency standard.

In addressing this claim, we must recognize that Gollihar also decided that a materiality inquiry should be made in all cases, like this one, that involve a “sufficiency of the evidence claim based upon a variance between the indictment and the proof’ and that only a “material” variance will render the evidence insufficient. See Gollihar, 46 S.W.3d at 257. In making a materiality inquiry applicable to all variance cases, Gollihar criticized our decision in Pedrosa v.

State, a similar variance case, which did not apply a materiality inquiry to the prosecution’s failure to prove the victim’s name exactly as alleged in the indictment. See Gollihar, 46 S.W.3d at 249 criticizing this Court’s failure to apply materiality inquiry in Pedrosa v. State, 155 Tex.Crim. 155, 232 S.W.2d 733, 735 (1950) (reversing defendant’s rape conviction because indictment alleged defendant raped “Seanda” but evidence showed rape victim’s name was “Se-naida”).

Gollihar also decided that this “materiality” inquiry requires a determination of whether the variance deprived the defendant of notice of the charges or whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. See Gollihar, 46 S.W.3d at 257.

And, finally, Gollihar also decided that a “hypothetically correct jury charge” takes into consideration the material variance doctrine, meaning that “[a]lle-gations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included.” See Gollihar, 46 S.W.3d at 257. III. In this case, the prosecution’s failure to prove the victim’s name exactly as alleged in the indictment does not make the evidence insufficient under Gollihar. The victim’s name is not a statutory element of the offense.

See Gollihar, 46 S.W.3d at 254 (“hypothetically correct jury charge” encompasses statutory elements of the offense as modified by the charging instrument). The variance between the indictment and the proof is also immaterial. 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. The judgment of the Court of Appeals is reversed and the case is remanded there for further proceedings.

KELLER, P.J., filed a concurring opinion. WOMACK, J., filed a concurring opinion in which KELLER, P.J., and JOHNSON, J., joined. KEASLER, J., filed a dissenting opinion. .

Section 22.04(a)(3) provides that 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 bodily injury." .

Since Gollihar recognized that a material variance usually presents only a notice problem and that a material variance does not, like a "standard insufficiency claim,” present a problem of &e government’s failure to prove the defendant guilty of the crime charged, this raises the question of whether we may apply our traditional state-law remedy of a remand for a new trial for a "material” variance. See Gollihar, 46 S.W.3d at 247-48 fn. 6, 248 fn. 7, 257; see also Burks v.

United States, 437 U.S. 1, 98 S.Ct. 2141, 2149-51, 57 L.Ed.2d 1 (1978) (requiring state appellate courts to provide a remedy tantamount to an appellate acquittal only when they determine that the evidence is insufficient to support a defendant's conviction "due to a failure of proof at trial” with "respect to the guilt or innocence of the defendant”); for pre-Burks cases that provided remedy of remand for a new trial following appellate reversal of conviction for a material variance under state law see Payne v. State, 487 S.W.2d 71, 74 (Tex.Cr.App.1972); Carlisle v.

State, 130 Tex.Crim. 246, 93 S.W.2d 730, 730-31 (App.1936); Morgan v. State, 128 Tex.Crim. 290, 80 S.W.2d 975, 976 (App.1935); Moore v. State, 84 Tex.Crim. 256, 206 S.W. 683, 684 (App.1918); Presley v. State, 24 Tex.App. 494, 6 S.W. 540 (1887).