In the Matter of Z.B., A Juvenile--Appeal from 386th Judicial District Court of Bexar County

No. 04-00-00200-CV

IN THE MATTER OF Z. B.

Appellant

From the 386th District Court, Bexar County, Texas

Trial Court No. 1999-JUV-03070

Honorable Laura Parker, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: May 2, 2001

AFFIRMED

Z. B. was convicted by a jury of the offense of delinquent conduct by theft and placed on probation for one year. On appeal, Z. B. argues the trial court erred in denying an instructed verdict because there is a fatal variance between the description of the theft in the charging instrument and the evidence at trial. Because we hold there is no material variance between the State's petition and the evidence, we affirm the trial court's judgment.

Z. B. was arrested after a teacher found him alone in an unlighted classroom after school and a search of Z. B.'s backpack disclosed two items variously referred to as "calculators" or "CBLs." The State filed a petition charging Z. B. with theft of two "calculators." (1) Z. B. claims the petition is fatally defective because the evidence shows the items were "computer based labs" or "CBLs," not calculators.

Generally, a variance between the charging instrument and the evidence at trial is fatal to a conviction. Davila v. State, 956 S.W.2d 587, 588 (Tex. App.-San Antonio 1997, pet. ref'd) (citing Plessinger v. State, 536 S.W.2d 380 (Tex. Crim. App. 1976)). Due process guarantees the defendant notice of the charges against him, and due process is violated when there is a fatal variance between the charge and the proof offered at trial. Moore v. State, 11 S.W.3d 495, 499 (Tex. App.-Houston [14th Dist.] 2000, no pet.). However, only a material variance is fatal. A variance is material if it operates to the defendant's surprise or prejudices his rights. Id. at 500 (citing Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995)).

In this case, two science teachers testified the items in question were more specifically computers and should be called "CBLs," (2) but the items look like calculators and people often refer to them as calculators. The principal and interim principal both called the items "calculators." The San Antonio Independent School District police officer who made the initial report testified he called them calculators because the word "calculator" was on the item. Z. B. referred to the items as "calculators" in his testimony. He admitted to having the items in his backpack and to taking them out of the classroom storage space.

Given the testimony presented at trial, the jury could reasonably have found the State proved beyond a reasonable doubt that Z. B. stole two "calculators." Further, it is clear the use of the term "calculator" did not operate to Z. B.'s surprise or prejudice his rights. Accordingly, the variance, if any, was immaterial and, therefore, not fatal to the conviction. We affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Z. B. was also charged and convicted for possessing a weapon, a type of knife, on school property, but that conviction is not challenged in this appeal.

2. One teacher called them "calculator base labs," while the other called them "computer based labs."