Johnathan Irvin McKissick v. The State of Texas

Summary

The Eleventh Court of Appeals of Texas affirmed Johnathan Irvin McKissick’s conviction for first-degree felony injury to a child and ninety-nine-year sentence. The court rejected challenges based on variances between the victim’s name and the manner and means alleged in the reindictment and the evidence presented at trial. The court also held that McKissick waived his Article 39.14 discovery claim and that a postconviction habeas proceeding was the proper vehicle for addressing the undisclosed video.

Holdings

1. The variance was immaterial because the trial record established that the child proved at trial was the same child identified in the reindictment, and the variance did not expose Appellant to a subsequent prosecution for the same offense or otherwise prejudice his substantial rights.
2. Any variance between the manner and means alleged and the proof was immaterial because injury to a child is a result-oriented offense, and the precise act causing the serious bodily injury is not the focus or gravamen of the offense.
3. The Article 39.14 complaint was waived, and a postconviction habeas proceeding was the proper mechanism for addressing a disclosure violation involving evidence that did not come before the trial court. The appellate court therefore declined to consider the supplemental materials and overruled the motion to supplement the record.

Questions Presented

1. Whether the evidence was insufficient because the victim's name in the reindictment differed from the victim's name as proved at trial and created a material variance.
2. Whether the evidence was insufficient because the State failed to prove the specific manner and means alleged in the reindictment.
3. Whether the State violated Article 39.14 of the Texas Code of Criminal Procedure by disclosing a silent video after trial and whether the appellate court could consider that evidence.
4. Whether the appellate record should be supplemented with the postjudgment video and related correspondence.

Disposition

affirmed