Erin Ashlyn Moffatt v. State

Opinion issued June 30, 2011

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-10-00310-CR

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Erin Ashlyn Moffatt , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Case No. 08CR3041

MEMORANDUM OPINION

A

jury found Erin Ashlyn Moffatt guilty of the first degree felony offense of

murder of her mother, Jana Moffatt, and assessed punishment at 50 years’

confinement. [1] On appeal, Erin contends that the evidence is

legally insufficient to support the jury’s guilt finding because a fatal

variance exists between the indictment and the evidence at trial. Erin specifically asserts that the indictment

alleges strangulation by use of a cord, but that the evidence at trial

indicated strangulation by hand as the cause of death.

We affirm.

Background

Dina Sparkman, Jana’s sister,

reported Jana missing to police. Seven

days later and two days after Hurricane Ike made landfall in the surrounding

area, officers from the Brazoria County Sherriff’s Department discovered a body

in an open field. A plastic trash bag

had been tied over a portion of the body which had undergone significant

decomposition. In the days before

reporting her sister missing, Sparkman had repeatedly called Erin about Jana’s

disappearance. At one point, Erin asked

Sparkman, “[W]hat do you want me to do? Go out there and look for my mother

with a shovel.” Erin did not respond

when Sparkman questioned why she needed a shovel.

An officer with the League City

Police Department went to the trailer Jana shared with Erin. Erin told the officer that she had last seen

her mother on September 2, when they had fought and Erin had refused to buy her

mother methamphetamines. Detective Beyer

of the League City Police Department later took a formal statement from Erin,

at which time she continued to deny any knowledge of her mother’s whereabouts. Erin told Detective Beyer that while she did

not know her mother’s location, she had a bad feeling and admitted that she

told another person that she believed her mother was dead.

Based on his interviews with Erin

and several other subjects, Detective Beyer sought and received a search

warrant for Erin’s trailer. The officers

seized several feet of carpet from the trailer that had a conspicuous red

stain. The day after officers executed

the search warrant, Detective Beyer interviewed Michael Cory Lewis, Erin’s

boyfriend at the time of her mother’s disappearance. Lewis told Detective Beyer that Erin had

strangled her mother and that he had helped her dispose of the body in a

field. Lewis accompanied Detective Beyer

to the field where police found the body.

Detective Beyer issued a warrant

for Erin’s arrest. Upon her arrest, Erin

made a recorded confession to police that she had killed her mother. Erin claimed to have blocked the incident

from her memory, but stated that she had grabbed her mom and hurt her. She stated, “I strangled my mom,” and when

asked with what she stated, “A f — ing cord,” indentifying a white extension cord from the trailer. She further stated, “I pulled this cord, and

I don’t know what the hell . . . . I pulled it until she stopped breathing.”

She told police that Lewis had

helped her by holding Jana down while Erin strangled her. Believing that inserting air into a person’s

blood stream killed them faster, Erin admitted that she stabbed her mother in

the neck with a syringe. Erin described

how Jana bit her tongue almost completely off, causing her to bleed on the

carpet. After Jana stopped breathing,

Erin stated they covered her head in a black trash bag, wrapped her in a rug,

and loaded her into the trunk of a car.

They drove to an open grassy area and Lewis dumped Jana’s body.

At trial, the medical examiner, Dr.

Steven Pustilnik, testified that the body had decomposed significantly and that

he could not discern any evidence of trauma from an external examination of the

body. Dr. Pustilnik, however, identified

a fracture to the maxilla, which is the facial bone to the left of the nose,

and a fracture to the hyoid bones, which are two bones in the neck or voice

box. Dr. Pustilnik testified that a

break in the hyoid bones, which form a horseshoe shape, results from

strangulation by squeezing the neck by hand.

When asked if strangulation by a cord or rope would cause this type of

injury, Dr. Pustilnik responded:

A cord or rope generally

does not, does not exert the pressure by moving the end of the hyoid this way

and the end of the hyoid this way. It is

a circumferential ligature. So, you see

different injuries for those. You see

basically soft tissue injuries. And you

don’t see fractures of bones from a ligature [cord or similar strangulation

method] being put around somebody’s neck.

Dr. Pustilnik went on to say that he “possibly” saw

soft tissue injuries on the body, but could not be entirely sure because of the

extent of decomposition. Dr. Pustilnik

also testified that the damage to the thyroid cartilage was caused by something

sharp cutting across the voice box and that hypothetically a hypodermic needle

could cause such an injury.

Dr. Joan Bytheway testified as a

forensic anthropologist trained to identify injury patterns in skeletal remains. Dr. Bytheway testified that the “number one

cause of hyoid fractures is manual strangulation with the second cause being

ligature strangulation [use of a cord or other instrument]. . . .” Dr. Bytheway stated that she could not

exclude ligature strangulation, by cord or similar instrument, as a cause of

the hyoid break. She also testified that

she also could not exclude strangulation by hand or arm.

The

remaining witnesses at trial included investigating law enforcement officers

and several witnesses who testified to statements by Erin that she wanted to

get rid of her mother. One witness

testified to seeing Erin throw away what she believed to be a white rope in a

store parking lot. After Lewis invoked

his Fifth Amendment right not to testify, another witness testified to what

Lewis told him about the murder and corroborated Erin’s confession to

police. Erin’s testimony at trial

contradicted her confession, and she stated that Lewis strangled Jana by hand

before she helped him dispose of the body.

She also stated she had no memory of confessing to police.

Erin

moved for directed verdict at the close of the State’s case based on the

testimony of Drs. Pustilnik and Bytheway.

She asserted that the State had not proved an essential element as

alleged in the indictment, strangulation by cord. The trial court denied the motion. The jury found Erin guilty of murder and

assessed punishment at 50 years’ confinement.

Erin timely filed this appeal.

Fatal Variance

In her sole issue, Erin

contends that the evidence is legally insufficient to support the jury’s guilt

finding because a fatal variance exists between the indictment and the evidence

presented at trial. Specifically, she

asserts the evidence indicates Jana was strangulated by hands instead of

strangled with a cord as alleged in the indictment.

A. Standard

of Review

This court reviews sufficiency-of-the-evidence challenges

applying the same standard of review enunciated in Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979), regardless of whether an

appellant raises a legal or a factual sufficiency challenge. See Brooks v. State , 323 S.W.3d 893,

912 , 927–28 (Tex. Crim. App. 2010); see also Ervin v. State , 331 S.W.3d

49 , 52–55 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d) . Under this standard,

evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational fact finder

could have found that each essential element of the charged offense was proven

beyond a reasonable doubt. See

Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Laster v. State , 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). The sufficiency-of-the-evidence

standard gives full play to the responsibility of the fact finder to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson , 443

U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).

We apply the Jackson

standard to the hypothetically correct jury charge. Byrd v. State , 336 S.W.3d 242, 245 (Tex. Crim. App.

2011). A hypothetically correct jury

charge is one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily restrict the State’s theories of liability,

and adequately describes the particular offense for which the defendant was

tried.” Id . at 246 (quoting Malik v.

State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “But sometimes the words in the indictment do

not perfectly match the proof at trial.”

Id.

B. Fatal

Variance

“A

‘variance’ occurs whenever there is a discrepancy between the allegations in

the indictment and the proof offered at trial.”

Id. When a defendant raises a legal sufficiency

claim based upon a variance between the indictment and the evidence, the

variance must be material to render the evidence insufficient. Gollihar

v. State , 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). A material variance is one that is likely to

prejudice the defendant’s substantial rights by (1) failing to give the

defendant notice of the charges or (2) allowing a second prosecution for the

same offense. Byrd , 336 S.W.3d at 247 ; Fuller

v. State , 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). A court must conduct a materiality analysis

in all cases “that involve a sufficiency of the evidence claim based upon a

variance between the indictment and the proof.”

Fuller , 73 S.W.3d at 253

(quoting Gollihar , 46 S.W.3d at

257 ).

We analyze the materiality

of the variance and the sufficiency of the evidence by “looking to the

essential elements of the particular criminal offense — the gravamen of the offense — and the hypothetically correct jury charge

under the specific indictment or information.”

Byrd , 336 S.W.3d at 250 . For murder under Penal Code section

19.02(b)(1), “A person commits an offense if he . . . intentionally or

knowingly causes the death of an individual.”

Tex. Penal Code Ann. §

19.02(b)(1) (West 2003). The specific

indictment against Erin alleges, in relevant part, that she “intentionally or

knowingly cause[d] the death of an individual, namely, Jana Moffatt, by

strangling that said Jana Moffatt with a cord.”

The jury charge echoed the indictment language that Erin strangled Jana

with a cord.

Erin

asserts that the State failed to prove beyond a reasonable doubt that she

strangled her mother with a cord because the evidence at trial indicated

strangulation by hand. Erin relies on

the Dr. Pustilnik’s testimony that a cord or rope would not generally exert the

kind of pressure necessary for the hyoid break in Jana’s neck. Erin also relies on Dr. Bytheway’s testimony

that she could not exclude strangulation by cord or hand as a method for

causing the injuries at issue.

In addition to the testimony of the

medical examiner and forensic anthropologist, however, the trial court admitted

the video and audio recordings of Erin’s confession to police. In her confession, she stated that she

strangled her mom with “A f — ing cord .

. . . I pulled this cord, and I don’t know what the hell . . . . I pulled it

until she stopped breathing.” Erin

testified at trial that she had no memory of her confession, but the jury was

entitled to evaluate the weight and credibility to give her confession and

trial testimony respectively. See Clayton , 235 S.W.3d at 778 .

Further, Dr.

Pustilnik’s testimony that “generally” this type of hyoid injury is caused by

hand does not conclusively negate Erin’s confession or Dr. Bytheway’s testimony

that she could not exclude a cord as a strangulation method. The jury was free to resolve these conflicts

in the evidence. Edwards v. State , No. 01-05-00855-CR,

2006 WL 3513635 , at *1 (Tex. App.—Houston [1st Dist.] Dec. 7, 2006, no pet.)

(holding that jury free to resolve conflicts in evidence when indictment

alleged strangulation by hand and medical examiner testified the complainant

had been strangled by hand, but other witnesses testified defendant had used a

cord).

Erin relies on Wray v.

State , 711 S.W.2d 631, 633 (Tex. Crim. App. 1986), for the proposition that

the State must prove language in an indictment that is legally essential to charge

the offense in question. The indictment

in Wray alleged the offense of

aggravated assault by intentionally pointing a deadly-weapon at the

complainant, but the evidence at trial demonstrated that the defendant never

pointed the shotgun at the complainant. Id.

The Court found that pointing the deadly-weapon at the complainant was

necessary to elevate the assault to aggravated assault and satisfy the element

of “threatens another with imminent bodily injury.” Id.

at 634 . Here, the essential elements of

murder are “intentionally or knowingly

causes the death of an individual.” Tex. Penal Code Ann. §

19.02(b)(1). Unlike the threat element

of aggravated assault in Wray , proof

of the specific method of strangulation used to cause death is not an essential

element of murder.

We cannot say a variance exists

between the indictment and the evidence presented at trial. See

Megas v. State , 68 S.W.3d 234, 241 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d) (holding no fatal variance and not material when indictment alleged

death caused by collision with concrete barrier and testimony at trial showed

that collision caused car to flip and crush complainant) . Even assuming a variance

exists, such a variance was not material.

Id. The indictment fully apprised Erin that the

State accused her of murder by strangulation.

Nothing in the record indicates Erin did not have notice of the charged

offense or that she was surprised by the proof at trial, beyond her testimony

that she did not remember making the confession. See

Compton v. State , No. 01-06-00281-CR, 2007 WL 4462575 , at *4 (Tex.

App.—Fort Worth Dec. 20, 2007, no pet.) (holding defendant had notice of

charges when indictment alleged defendant struck complainant in head causing

victim to fall and at trial evidence showed defendant pushed complainant). Finally, such a variance between strangling

the same complainant by hand or by cord would not subject Erin to another

prosecution for the same offense. Compare Bailey v. State , 87 S.W.3d 122,

126, 129 (Tex. Crim. App. 2002) (affirming court of appeals holding that

defendant was subject to another prosecution under second indictment after

acquittal for fatal variance when second indictment listed a different owner of

stolen property), with Fuller , 73

S.W.3d at 254 (holding variance would not subject defendant to another

prosecution when indictment and jury charge for offense of injury of elderly

individual listed “Olen M. Fuller” as complainant and proof at trial only

referred to “Mr. Fuller” or “Buddy”).

Conclusion

We

overrule Erin’s sole issue and affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann . §19.02(b)(1)

(West 2003).