70 Texas opinions name it 2 courts 1959–2025 8 in the last five years
The cases below were cited by Texas courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
Stevens v. Stategreen2 sentences2025In Stevens v. State, the Court held that the fatal variance doctrine is not applicable to pseudonym cases so long as the defendant’s due process right to notice is satisfied. 891 S.W.2d 649, 651 (Tex. Crim. 2025In Stevens v. State, the Court held that the fatal variance doctrine is not applicable to pseudonym cases so long as the defendant’s due process right to notice is satisfied. 891 S.W.2d 649, 651 (Tex. Crim. | 16 | 20 |
Gollihar v. Stategreen2 sentences2025When doing so, the Court also “reaffirm[ed] the fatal variance doctrine and overrule[d] surplusage law and the Burrell exception.” Id. 2018See Gollihar , 46 S.W.3d at 250, 256-57 (reaffirming the fatal variance doctrine and noting that surplusage generally is disregarded as an immaterial variance). | 10 | 23 |
Taylor v. Stategreen2 sentences2015Moore, 11 S.W.3d at 499 -500 (citing Taylor v. State, 592 S.W.2d 614, 615 (Tex.Crim.App. [Panel Op.] 1980)). 2011See Taylor v. State, 592 S.W.2d 614, 615 (Tex.Crim.App. 1980). | 6 | 6 |
Malik v. Stategreen2 sentences2018After 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 . 2010This is because the sufficiency of the evidence is measured by a hypothetically correct jury charge, and the hypothetically correct jury charge “will take into consideration the fatal variance doctrine and ... [a]llegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge.” Id.; see also Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997) (holding sufficiency of evidence is measured by hypothetically correct jury charge). | 4 | 5 |
cluster 22507green2 sentences2014Id. at 257 (quoting U.S. v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)). 2006Id. (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)). | 4 | 4 |
Human v. Stategreen2 sentences2001This limitation on the fatal variance doctrine was reaffirmed in Human v. State, 749 S.W.2d 832 (Tex.Crim.App.1988). 1995We approved this limitation on the fatal variance doctrine in Human v. State, 749 S.W.2d 832 (Tex.Cr.App.1988). | 3 | 5 |
Auldridge v. Stategreen2 sentences2009Id. at 257 ; see Auldridge v. State, 228 S.W.3d 258, 261 (Tex. App.–Fort Worth 2007, pet ref’d) (stating that “Texas law no longer speaks in terms of surplusage” when conducting legal sufficiency reviews). 5 “[W]hen faced with a sufficiency of the evidence claim based on a variance between the indictment and the proof, only a ‘material’ variance will render the evidence insufficient.” Gollihar, 46 S.W.3d at 257 . 2009Id. at 257 ; see Auldridge v. State , 228 S.W.3d 258, 261 (Tex. App.-Fort Worth 2007, pet ref'd) (stating that "Texas law no longer speaks in terms of surplusage" when conducting legal sufficiency reviews). "[W]hen faced with a sufficiency of the evidence claim based on a variance between the indictment and the proof, only a 'material' variance will render the evidence insufficient." Gollihar , 46 S.W.3d at 257 . | 2 | 2 |
Sallings v. Stategreen2 sentences2001Sailings v. State, 789 S.W.2d 408, 418 (Tex.App.—Dallas 1990, pet. ref'd). 1995See, Sailings v. State, 789 S.W.2d 408, 418 (Tex.App.—Dallas 1990). | 2 | 2 |
Chambers v. Stategreen2 sentences2001See Gollihar , 46 S.W.3d at 256-58 (hypothetically correct jury charge need not contain the serial number of stolen go-cart as alleged in the indictment, clarifying the fatal variance doctrine) and Chambers v. State , 738 S.W.2d 780, 783 (Tex. App. - Fort Worth 1987, no pet.)(variance between card number at trial and card number in indictment not a fatal variance when there was other evidence identifying card). 2001See Gollihar, 46 S.W.3d at 256-58 (hypothetically correct jury charge need not contain the serial number of stolen go-cart as alleged in the indictment, clarifying the fatal variance doctrine) and Chambers v. State, 738 S.W.2d 780, 783 (Tex.App.—Fort Worth 1987, no pet.)(variance between card number at trial and card number in indictment not a fatal variance when there was other evidence identifying card). | 2 | 2 |
Casey Dale Hammack v. Stategreen1 sentence2019App. 2001) (stating that a variance is fatal only if it operated to the defendant’s surprise or prejudiced him); see also Hammack v. State, 466 S.W.3d 302, 307 (Tex. App.— Texarkana 2015, no pet.) (“When reviewing a variance, we must determine whether the charging instrument, as written, informed the defendant of the charge against him or sufficiently allowed the defendant to prepare an adequate defense at trial and whether the prosecution under the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later for the same crime.”); Moore v. State, 11 S.W.3d | 1 | 1 |
Escamilla v. Stategreen1 sentence2005Legally Insufficient Evidence In her second issue, Mueshler contends that evidence that she committed theft by writing checks is legally insufficient to prove the allegations in the indictment that she committed theft of “cash money.” We review a claim that the evidence is legally insufficient by viewing “all of the evidence in the light most favorable to the verdict and then determining] whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Jackson v. Virginia, 443 U | 1 | 1 |
Luster v. Stategreen1 sentence2004Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App.2001) (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)); Luster v. State, 85 S.W.3d 865, 869 (Tex.App.-Eastland 2002, pet. ref'd). 4 . | 1 | 1 |
Fuller v. Stategreen1 sentence2003Fuller v. State , 73 S.W.3d 250, 253 (Tex. Crim. | 1 | 1 |
Rojas v. Stategreen1 sentence2000See Rojas v. State, 986 S.W.2d 241, 246 (Tex.Crim.App.1998). | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in Texas. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
Moore v. State
green
2 sentences2024Moore, 11 S.W.3d at 499 ; see Velez v. State, No. 05-16-00571-CR, 2017 WL 2774446 , at *1–3 (Tex. App.— Dallas June 27, 2017, no pet.) (mem. op.; not designated for publication) (applying fatal variance doctrine to motion to adjudicate). 2019App. 2001) (stating that a variance is fatal only if it operated to the defendant’s surprise or prejudiced him); see also Hammack v. State, 466 S.W.3d 302, 307 (Tex. App.— Texarkana 2015, no pet.) (“When reviewing a variance, we must determine whether the charging instrument, as written, informed the defendant of the charge against him or sufficiently allowed the defendant to prepare an adequate defense at trial and whether the prosecution under the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later for the same crime.”); Moore v. State, 11 S.W.3d | 9 | 2003–2024 |
Eastep v. State
green
2 sentences2016App. 2008); Gollihar, 46 S.W.3d at 250 ; Eastep, 941 S.W.2d at 134 n.7. ' However, the surplusage doctrine, and its exception, was overruled in Gollihar when the Court of Criminal Appeals held that a hypothetically correct charge need not incorporate allegations that give rise to immaterial variances and reaffirmed the fatal variance doctrine. 2009Id. at 257 ; see Auldridge v. State, 228 S.W.3d 258, 261 (Tex. App.–Fort Worth 2007, pet ref’d) (stating that “Texas law no longer speaks in terms of surplusage” when conducting legal sufficiency reviews). 5 “[W]hen faced with a sufficiency of the evidence claim based on a variance between the indictment and the proof, only a ‘material’ variance will render the evidence insufficient.” Gollihar, 46 S.W.3d at 257 . | 4 | 2001–2016 |
Greeno v. State
green
2 sentences2025Id. at 414 . 2025Id. at 414 . | 2 | 2025–2025 |
Taylor v. State
green
2 sentences2002Rather, appellant relies on Taylor v. State , 626 S.W.2d 543 (Tex. App.--Texarkana 1981, pet. ref'd), to illustrate the application of the fatal variance doctrine in a forgery case. 2002Rather, appellant relies on Taylor v. State, 626 S.W.2d 543 (Tex. App.—Texarkana 1981, pet. ref’d), to illustrate the application of the fatal variance doctrine in a forgery case. | 2 | 2002–2002 |
Mozley v. American General Insurance Company
green
2 sentences1980In Mozley v. American General Insurance Company, Tex.Civ.App., 324 S.W.2d 925 , writ ref’d., n.r.e., the court said: “This fatal variance in the claim presented to the Board and the one stated in the trial amendment should have been presented by special exception to the pleadings, rather than by a plea to the jurisdiction, inasmuch as the matter arose from the pleadings.” In the instant cause in both his original petition and his first amended original petition Welch pleaded that he sustained serious, painful and disabling personal injuries on or about April 27,1974, while in the course of his 1966In Mozley v. American General Insurance Company, Tex.Civ.App., 324 S.W.2d 925 , writ ref., n. r. e., the court said: “This fatal variance in the claim presented to the Board and the one stated in the trial amendment should have been presented by special exception to the pleadings, rather than by a plea to the jurisdiction, inasmuch as the matter arose from the pleadings.” We are of the opinion, as stated, that there was no fatal variance between the claim as presented to the Board and that prosecuted in court, and further that in the event it could be said that there was such variance appellan | 2 | 1966–1980 |
Spencer v. State
green
1 sentence2018Spencer v. State , 867 S.W.2d 81 (Tex. App.-Texarkana 1993, pet. ref'd). | 1 | 2018–2018 |
Brown v. State
green
1 sentence2012Id. | 1 | 2012–2012 |
Lankston v. State
green
1 sentence2012Id. | 1 | 2012–2012 |
Pye v. State
green
1 sentence2011But in the halcyon days of yore–before the 1985 constitutional and legislative changes–indictments were construed very strictly and almost any mistake in them was called “fundamental” and required reversal of a “void” conviction under an indictment with a mistake.37 Double 31.162 for a discussion of the traditional materiality law concerning variances. 36 See, e.g., Pye v. State, 154 S.W. 222 (Tex. Crim. | 1 | 2011–2011 |
Jackson v. Virginia
red
2 sentences2005Legally Insufficient Evidence In her second issue, Mueshler contends that evidence that she committed theft by writing checks is legally insufficient to prove the allegations in the indictment that she committed theft of “cash money.” We review a claim that the evidence is legally insufficient by viewing “all of the evidence in the light most favorable to the verdict and then determining] whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Jackson v. Virginia, 443 U 2005Legally Insufficient Evidence In her second issue, Mueshler contends that evidence that she committed theft by writing checks is legally insufficient to prove the allegations in the indictment that she committed theft of “cash money.” We review a claim that the evidence is legally insufficient by viewing “all of the evidence in the light most favorable to the verdict and then determining] whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Jackson v. Virginia, 443 U | 1 | 2005–2005 |
Ammex, Inc. v. United States
green
1 sentence2005Legally Insufficient Evidence In her second issue, Mueshler contends that evidence that she committed theft by writing checks is legally insufficient to prove the allegations in the indictment that she committed theft of “cash money.” We review a claim that the evidence is legally insufficient by viewing “all of the evidence in the light most favorable to the verdict and then determining] whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Jackson v. Virginia, 443 U | 1 | 2005–2005 |
Olivares v. Service Trust Company
green
1 sentence1966Olivares v. Service Trust Company, Tex.Civ.App. 1964, 385 S.W.2d 687 ; Baker v. Highway Ins. | 1 | 1966–1966 |
Jud v. City of San Antonio
green
2 sentences1959In Jud v. City of San Antonio, Tex.Com.App., 143 Tex. 303 , 184 S.W.2d 821, 822 , opinion adopted by the Supreme Court, Commissioner Hickman said: "By Texas Rule of Civil Procedure, No. 90, it is provided that a general demurrer shall not be used. 1959In Jud v. City of San Antonio, Tex.Com.App., 143 Tex. 303 , 184 S.W.2d 821, 822 , opinion adopted by the Supreme Court, Commissioner Hickman said: "By Texas Rule of Civil Procedure, No. 90, it is provided that a general demurrer shall not be used. | 1 | 1959–1959 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.