Fatal Variance Doctrine Cases In Texas
The fatal variance doctrine stands for the proposition that a variance between the indictment and the evidence at trial may be fatal to a conviction because due process guarantees the defendant notice of the charges against him. See Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995).
The fatal variance doctrine is applicable to revocations of community supervision. See Taylor v. State, 592 S.W.2d 614 (Tex. Crim. App. 1980); Milo v. State, 663 S.W.2d 483 (Tex. App.--Beaumont 1983, no pet.). However, not every variance between the evidence at trial and the indictment is fatal; only a material variance is fatal. See Stevens, 891 S.W.2d at 650.
A variance between the charging instrument and the proof at trial is material only if it operated to the defendant's surprise or prejudiced his rights. See id.; Human v. State, 749 S.W.2d 832, 837 (Tex. Crim. App. 1988).