Casares v. State

While I agree with the majority that stare decisis mandates appellant’s acquittal, I am distressed that justice for the people of Texas can be so easily thwarted. But for the allegation that the appellant used his shoulder to attempt the entry into the residence, his conviction would be affirmed. The State did not have to allege how the appellant attempted the entry; yet, because such was alleged in the indictment, the law requires the State to prove that the appellant did in fact use his shoulder.1 Because the State did not do so, we are compelled to conclude that this variance between the…