                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00234-CR
        ______________________________


         THE STATE OF TEXAS, Appellant

                          V.

           MISTY LYNN DILL, Appellee




      On Appeal from the County Court at Law
              Fannin County, Texas
              Trial Court No. 45056




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                OPINION

         The State of Texas has appealed the grant of relief under an application for writ of habeas

corpus which was filed pretrial by Misty Lynn Dill. Dill had claimed that the State’s information

alleging misdemeanor theft was barred because it exposed her to double jeopardy. 1 Because we

find the State’s prosecution does not expose Dill to double jeopardy, we reverse the trial court’s

order.

Underlying Facts

         Dill was charged in trial cause number 44613 with theft, alleging that she had stolen ―food

and personal hygiene products‖ from Wal-Mart Supercenter and, with leave of the trial court,

amended the information to reflect the owner of the purloined property to be Shane Hilger. 2 At

trial, however, the testimony was that Dill had taken dog treats, dog nail clippers, a bottle of hair

coloring, and various items of makeup––secreting them on her person and about the scooter in

which she was riding while shopping––not paying for them. The trial court determined that the

State had failed to prove that Dill had taken the alleged food and personal hygiene products as

alleged in the information and granted Dill’s motion for a directed verdict of not guilty.



1
 See U.S. CONST. amend. V; TEX. CONST. art. I, § 14. The United States Constitution’s Fifth Amendment’s double
jeopardy protection applies to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784,
794 (1969). The United States and Texas Constitutions provide substantially identical double jeopardy protection.
See Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997).
2
 Hilger testified at Dill’s first trial that he was an asset protection manager for Wal-Mart. Such allegation of
ownership is permissible. See TEX. CODE CRIM. PROC. ANN. art. 21.08 (West 2009); Harrell v. State, 852 S.W.2d
521, 523 (Tex. Crim. App. 1993).

                                                       2
       Responding to the directed verdict, the State then filed a second information in trial cause

number 45056; this information once again alleged theft from Hilger on the same date as the first

information, but alleged that the stolen merchandise was makeup, not the items previously alleged.

       Dill filed a pretrial request for habeas corpus relief, claiming that the allegations in the

second information would involve the same evidence and proof of the same matters and conduct

that had resulted in the earlier directed verdict. Based on this, Dill claimed that she was being

subjected to double jeopardy. The trial court granted the requested relief and the State has

appealed that determination.

Same Offense?

       Dill argues that subjecting her to trial under the State’s second information (alleging theft

of makeup) would amount to trial for the same offense for which the trial court previously directed

a verdict of not guilty (i.e., the alleged theft of food and personal hygiene products). The Double

Jeopardy Clause protects against three different circumstances: (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the same offense after conviction; and

(3) multiple punishments for the same offense. Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim.

App. 2008).

       Based on the statements by the parties in the trial court during argument in the court below

and at oral argument before this Court, on the reporter’s record of the previous trial, and on the

parties’ briefs, it appears virtually certain that a second trial would involve evidence which was



                                                 3
almost identical to that presented in Dill’s first trial, a trial which ended with a directed verdict. In

order to meet the burden of proof for the second information, the State would have to prove that

Dill unlawfully appropriated makeup which had a value of $50.00 or more, but less than $500.00

from Hilger, without Hilger’s effective consent with the intent to deprive Hilger of the named

property. At the first trial, the State offered evidence of all those elements; the problem arose

because (using the apparently archaic phrase which was usually employed in civil cases) there

arose a ―fatal variance in the allegata and probata.‖ Amsler v. D. S. Cage & Co., 247 S.W. 669,

671 (Tex. Civ. App.—Beaumont 1923, no writ). That is, because the information upon which the

first trial was held alleged the property taken was food and personal hygiene products, but the

evidence proffered involved something other than food and personal hygiene products being

taken.

         It is unquestioned that Dill’s double jeopardy rights protect her against a subsequent

prosecution for the same offense following the trial court’s rendition of a directed verdict in her

favor. The central question to be resolved is whether trying Dill for theft of makeup (after

jeopardy had attached regarding the charge that she had taken food and personal hygiene products)

amounts to a prosecution for the same offense, where all of the thefts are alleged to have occurred

at the same time and place from the same owner.3 We find it would not. Accordingly, we will

reverse the trial court’s order.


3
 The crux of Dill’s argument, before the trial court and this Court, is that because the same items allegedly stolen, in
the same incident occurring at the same time, are the basis of the criminal allegations, the second information charges

                                                           4
            The defendants in Bailey v. State4 were accused of theft from the City of Houston. It was

alleged the defendants, workers on construction projects, committed theft 5 by falsifying time

sheets which they submitted. Although the indictment alleged that the City of Houston was the

theft victim, the evidence at trial instead proved that the owner of the company with whom the city

contracted (not the City of Houston) made payments to the defendants. Thus, the actual victim of

the thefts was the contractor, not the City of Houston. Bailey, 87 S.W.3d at 125. The State

subsequently reindicted, alleging the owner of the property to be the contractor. ―Traditionally,

courts in Texas have held that an acquittal because of a variance between the pleading and the

proof does not bar reprosecution on a new charge alleging that version of the offense which the

State’s evidence proved in the first trial.‖ Id. at 126–27 (citations omitted). The Bailey court

found the two allegations (the first charging the defendants with theft from the city and the second

charging them with theft from the contractor) were not the same offense for double jeopardy




the same conduct as was alleged in the first trial. Thus, argues Dill, she cannot be subjected to prosecution for the
same conduct as she was found not guilty of at the first trial. This ―same conduct‖ theory of double jeopardy
protection has been rejected by the United States Supreme Court. United States v. Dixon, 509 U.S. 688, 704, 711
(1993).
4
    87 S.W.3d 122 (Tex. Crim. App. 2002).
5
    The defendants were also charged with engaging in organized criminal activity. Id. at 124.


                                                           5
purposes. Id. at 127 (citing Fulmer v. State, 731 S.W.2d 943, 948 (Tex. Crim. App. 1987)

(Clinton, J., concurring) (opinion adopted by majority)).6

        Although not deciding a claim of double jeopardy, we also find instructive Byrd v. State,

336 S.W.3d 242 (Tex. Crim. App. 2011). Byrd was charged with stealing various items from

Morales; no evidence was presented at trial to connect Morales with Wal-Mart, the store from

which the items were stolen. Writing for the unanimous Texas Court of Criminal Appeals, Judge

Cochran discussed the importance and degrees of variances between allegations in charging

instruments and proof at trial: ―Variances are mistakes of one sort or another. Sometimes they

make no difference at all, sometimes they make all the difference.‖ Id. at 246. Proving a

defendant killed an entirely different victim than was named in the indictment would be ―a big

mistake.‖ Id. But if, instead, the proof amounted only to a slight difference in the victim’s

correct name (e.g., that the defendant killed Don McGrew when it was alleged the victim’s name

was Dan McGrew or Dan Magoo), such variances would be deemed ―little mistakes, generally not

likely to prejudice a defendant’s substantial rights by either (1) failing to give him notice of who it

was he allegedly killed, or (2) allowing a second murder prosecution for killing the same person

with a different spelling of his name.‖ Id. at 247. 7 The Texas Court of Criminal Appeals


6
  We obviously are aware of Judge Keasler’s thorough and reasoned dissent in Bailey, pointing out potential
inconsistencies with other cases and criticizing the majority’s reasoning and holding. Nonetheless, the Bailey
opinion, as well as United States v. Dixon, 509 U.S. 688 (1993), are the precedential authorities here.
7
  Cf. Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002) (defendant indicted for injuring Olen M. Fuller; the
witnesses, though, only referred to the victim as ―Mr. Fuller‖ or ―Buddy,‖ and the State offered no proof the victim
was Olen M. Fuller; held to be immaterial variance).

                                                         6
concluded that Byrd involved a failure of proof; in other words, the State failed to prove what it

had alleged. Id. at 258. Although double jeopardy was not the primary issue in the Byrd case,

the reasoning and some statements in the opinion strongly indicate that the State could prosecute

Byrd if it were to allege Wal-Mart as the victim.8

         We find that the State’s second information, charging Dill with theft of makeup, was not

barred by prosecution of the previous case against Dill. The allegation in the second information

charged Dill with a different theft than the theft alleged in the first information.9

         We reverse the trial court’s order and remand this case to that court for further proceedings

not inconsistent with this opinion.




                                                       Bailey C. Moseley
                                                       Justice

Date Submitted:            June 29, 2011
Date Decided:              July 21, 2011

Publish


8
 The court’s long discussion and reliance upon Bailey’s reasoning suggests this; as does the opinion’s statement that
the extant information, ―coupled with the trial transcript, [would not] prevent the State from charging [Byrd] with a
theft from Wal-Mart or one of the loss prevention officers who testified at trial.‖ Byrd, 336 S.W.3d at 254–55.
9
 See Swindel v. State, 32 Tex. 102, 103–04 (1869) (defendant acquitted for theft of horse; subsequent charge of theft of
gelding held not to be barred). Dill attempts to distinguish Swindel by saying, ―[T]here is no specific statute creating
a separate crime for the stealing of cosmetics as opposed to personal hygiene products as the trial court
understood. . . . The two are not separate parts of the statute as horse and gelding hence Swindel is not applicable.‖
We do not find this distinction persuasive.

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