Michael Anthony Fuller v. State

Michael Anthony Fuller v. The State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-98-019-CR

     MICHAEL ANTHONY FULLER,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,433

O P I N I O N

      Michael Anthony Fuller was convicted by a jury of “injury to an elderly individual.” See Tex. Pen. Code Ann. § 22.04(a)(3) (Vernon 1994). With the State’s agreement, Fuller withdrew his election to have the jury assess punishment and the trial court sentenced him to five years in prison, probated for five years, plus a non-probated fine of $5,000 and ninety days in jail. Fuller appeals his conviction, complaining of legally-insufficient evidence and improper jury argument. We will reverse the judgment and enter an order of acquittal.

ISSUE PRESENTED

      Fuller’s first complaint is that the evidence is legally insufficient to sustain the jury’s verdict. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979). Specifically, he complains that there is no evidence that he caused bodily injury to Olen M. Fuller as alleged in the indictment and charged to the jury. He argues that, because “Mr. Fuller” was never asked to state his name and because he was only referred to as “Mr. Fuller” or “Buddy,” there is no evidence that he is Olen M. Fuller. We agree.

      One witness testified at trial. The witness stated that he was injured when the defendant intentionally hit him in the face with his fist. The witness never identified himself. The name of the complaining witness is material to an indictment and must be alleged and proven. Grant v. State, 944 S.W.2d 499, 501 (Tex. App.—Beaumont 1997, pet. granted) (citing Scott v. State, 905 S.W.2d 783, 785 (Tex. App.—Waco 1995, pet. ref’d)); Abu-Shabaam v. State, 848 S.W.2d 782, 785 (Tex. App.—Houston [14th Dist.] 1993), vacated on other grounds, 856 S.W.2d 436, 437 (Tex. Crim. App. 1993), reaffirmed, 859 S.W.2d 592, 593 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Gayton v. State, 732 S.W.2d 724, 724-25 (Tex. App.—Corpus Christi 1987, pet. ref'd). In Scott v. State, the defendant was acquitted where the indictment and the charge named Ray Gann as the complainant, but the evidence at trial showed him to be Roy Gann. 905 S.W.2d at 785. In Scott, the victim testified that he was sometimes mistaken as Ray Gann instead of Roy Gann. Here, there is not even evidence that the testifying witness had ever been known as Olen M. Fuller. Id. Because there is no evidence that the victim who testified was the person alleged in the indictment, the jury was not authorized to convict Fuller of injuring Olen M. Fuller. Issue one is sustained. We do not reach the second issue presented. Fuller’s conviction is reversed and a judgment of acquittal is rendered. See Tex. R. App. P. 43.2(c).

                                                                       BILL VANCE

                                                                       Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Reversed and acquittal ordered

Opinion delivered and filed May 27, 1998

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