Burrell exception in Texas

2025When doing so, the Court also “reaffirm[ed] the fatal variance doctrine and overrule[d] surplusage law and the Burrell exception.” Id.

2025When doing so, the Court also “reaffirm[ed] the fatal variance doctrine and overrule[d] surplusage law and the Burrell exception.” Id.

2010Gollihar v. State , 46 S.W.3d 243, 256-57 (Tex.Crim.App. 2001); Santana v. State , 59 S.W.3d 187, 195 (Tex.Crim.App. 2001) (recognizing that the surplusage rule and the Burrell exception were overruled in Gollihar ); see Malik v. State , 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997).

2010Gollihar v. State , 46 S.W.3d 243, 256-57 (Tex.Crim.App. 2001); Santana v. State , 59 S.W.3d 187, 195 (Tex.Crim.App. 2001) (recognizing that the surplusage rule and the Burrell exception were overruled in Gollihar ); see Malik v. State , 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997).

2018Gollihar v. State In Gollihar , the Court of Criminal Appeals examined the viability of the general surplusage rule and Burrell exception when resolving evidence sufficiency questions in light of its holding in Malik v. State that sufficiency of the evidence is not measured against the jury charge actually given, but against a "hypothetically correct jury charge." Id. at 253 (citing Malik v. State , 953 S.W.2d 234 (Tex. Crim.

2018After surveying the variance cases decided after Malik , the Court of Criminal Appeals concluded, "In light of the principles underlying Malik and the above post- Malik cases, we hold that a hypothetically correct jury charge need not incorporate allegations that give rise to immaterial variances.... [I]n so holding, we reaffirm the fatal variance doctrine and overrule the surplusage law and the Burrell exception." Id. at 256 .

2012In its two very recent opinions involving variance law, the Court of Criminal Appeals made clear that the State's failure to prove the statutory elements it has chosen to allege cannot be an immaterial variance, Cada v. State, 334 S.W.3d 766, 776 (Tex.Crim.App. 2011), and that in a prosecution for theft, the State's failure to connect the person it plead as the property's owner to the property in any way is a failure of proof requiring acquittal, not an immaterial variance.

2012In its two very recent opinions involving variance law, the Court of Criminal Appeals made clear that the State’s failure to prove the statutory elements it has chosen to allege cannot be an immaterial variance, Cada v. State, 334 S.W.3d 766, 776 (Tex.Crim.App. 2011), and that in a prosecution for theft, the State’s failure to connect the person it plead as the property’s owner to the property in any way is a failure of proof requiring acquittal, not an immaterial variance.

2025Burrell Exception Still Applies As set out above, the Burrell exception explained that items included in a charging instrument that are not elements of the charged offense may not be deleted as surplusage when they are “descriptive of what is legally essential to the validity of” the charging instrument. 526 S.W.2d at 802 ; see Eastep, 941 S.W.2d at 134 n.7.

2025Burrell Exception Still Applies As set out above, the Burrell exception explained that items included in a charging instrument that are not elements of the charged offense may not be deleted as surplusage when they are “descriptive of what is legally essential to the validity of” the charging instrument. 526 S.W.2d at 802 ; see Eastep, 941 S.W.2d at 134 n.7.

2016See Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim.

2005However, under the “ Burrell exception” this general rule does not apply “when the unnecessary matter is descriptive of that which is legally essential to charge a crime” and the State must prove the “surplus allegation.” Curry , 30 S.W.3d at 399 ; Burrell , 526 S.W.2d at 802 .

2025Mayfield v. State, 117 S.W.3d 475 , 476 n.1, 477 (Tex. App.—Texarkana 2003, pet. ref’d) (determining that surplusage law, including Burrell exception, still applied in indictment cases following Gollihar); Hall v. State, 62 S.W.3d 918, 920 (Tex. App.—Dallas 2001, pet. ref’d) (concluding that “the material variance doctrine has no place in determining whether an alteration of an indictment is an abandonment or an amendment”); see also Gollihar, 46 S.W.3d at 260 n.12 (Keller, J., concurring) (distinguishing between sufficiency challenges and indictment alterations); Ramsey v. State, No. 08-03-00

2025Mayfield v. State, 117 S.W.3d 475 , 476 n.1, 477 (Tex. App.—Texarkana 2003, pet. ref’d) (determining that surplusage law, including Burrell exception, still applied in indictment cases following Gollihar); Hall v. State, 62 S.W.3d 918, 920 (Tex. App.—Dallas 2001, pet. ref’d) (concluding that “the material variance doctrine has no place in determining whether an alteration of an indictment is an abandonment or an amendment”); see also Gollihar, 46 S.W.3d at 260 n.12 (Keller, J., concurring) (distinguishing between sufficiency challenges and indictment alterations); Ramsey v. State, No. 08-03-00

2025Alston v. State, 175 S.W.3d 853, 855 (Tex. App.—Waco 2005, no pet.).

2025Alston v. State, 175 S.W.3d 853, 855 (Tex. App.—Waco 2005, no pet.).

2025See Briscoe v. State, 542 S.W.3d 109, 113 (Tex. App.—Texarkana 2018, pet. ref’d); Balentine v. State, 474 S.W.3d 682, 686 (Tex. App.—Beaumont 2013, pet. ref’d).

2025See Briscoe v. State, 542 S.W.3d 109, 113 (Tex. App.—Texarkana 2018, pet. ref’d); Balentine v. State, 474 S.W.3d 682, 686 (Tex. App.—Beaumont 2013, pet. ref’d).

2025Moreover, absent the Burrell exception, “the charging instrument may be altered to delete language which is not descriptive of what is legally essential to the validity of the indictment.” Id.

2025Moreover, absent the Burrell exception, “the charging instrument may be altered to delete language which is not descriptive of what is legally essential to the validity of the indictment.” Id.

2025See Briscoe v. State, 542 S.W.3d 109, 113 (Tex. App.—Texarkana 2018, pet. ref’d); Balentine v. State, 474 S.W.3d 682, 686 (Tex. App.—Beaumont 2013, pet. ref’d).

2025See Briscoe v. State, 542 S.W.3d 109, 113 (Tex. App.—Texarkana 2018, pet. ref’d); Balentine v. State, 474 S.W.3d 682, 686 (Tex. App.—Beaumont 2013, pet. ref’d).

2019Hebert further argues that because Burrell did not articulate specific facts 7 to support a reasonable suspicion that Hebert committed a traffic offense, the trial court erred by failing to suppress the evidence obtained as a result of the traffic stop, citing Mahaffey v. State, 364 S.W.3d 908, 914-15 (Tex. Crim.

2019See Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (noting that extraneous offense evidence may be relevant to rebut a defensive theory).

2015App. 1975), overruled byGollihar, 46 S.W.3d at 256-57 . 7The Burrell exception held that, if the unnecessary allegation described a way in which an element of thecrime was committed, the State was required to prove its case as alleged. 9 Gollihar, 46 S.W.3d at 257 ; Human v. State, 749 S.W.2d 832, 836 (Tex. Crim.

2014See Sattiewhite v. State, 600 S.W.2d 277 (Tex. Crim.

2014See Sattiewhite v. State, 600 S.W.2d 277 (Tex. Crim.

2012See York, 258 S.W.3d at 717 .

2012See York, 258 S.W.3d at 717 ; see also Davis, 329 S.W.3d at 823 .

2012See Jackson, 17 S.W.3d at 673-74 .

2012See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim.

2012See York, 258 S.W.3d at 717 ; see also Davis, 329 S.W.3d at 823 .

2006Gharbi v. State, 131 S.W.3d 481, 483 (Tex.Crim.App. 2003) (allegation which is not statutory element or "an integral part of an essential element of the offense” does not have to be included in hypothetically correct jury charge); see Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (allegation which is not statutory element does not have to be included in hypothetically correct jury charge); see also Gollihar v. State, 46 S.W.3d 243, 256 (Tex.Crim.App.2001) (explicitly overruling surplusage law and Burrell exception).

2006Gharbi v. State, 131 S.W.3d 481, 483 (Tex.Crim.App. 2003) (allegation which is not statutory element or "an integral part of an essential element of the offense” does not have to be included in hypothetically correct jury charge); see Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (allegation which is not statutory element does not have to be included in hypothetically correct jury charge); see also Gollihar v. State, 46 S.W.3d 243, 256 (Tex.Crim.App.2001) (explicitly overruling surplusage law and Burrell exception).

2005An unnecessary matter is “descriptive” of an element of the offense if it “define[s] the offense more narrowly, place[s] it in a specific setting, or describe[s] the method by which it was committed.” Curry , 30 S.W.3d at 399 (quoting Upchurch v. State , 703 S.W.2d 638, 641 (Tex. Crim.

2000Phelps v. State, 999 S.W.2d 512, 518 (Tex.App.Eastland 1999, no pet.), held that Malik overruled Burrell and its progeny.