Opinion issued June 30, 2011
Court of Appeals
First District of Texas
ERIN ASHLYN MOFFATT, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 08CR3041
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.
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
See TEX. PENAL CODE ANN. §19.02(b)(1) (West 2003).
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
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.
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.
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.
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.
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
―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).
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
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
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).
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
We overrule Erin‘s sole issue and affirm the judgment of the trial court.
Panel consists of Chief Justice Radack and Justices Sharp and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).