Gollihar v. State

KEASLER, J.,

delivered this concurring and dissenting opinion, in which HERVEY, J„ joined.

I respect and appreciate the majority’s attempt to clarify an unclear area of the law. But I would resolve the issues differently.

I

The majority concludes that our variance law conflicts with our surplusage law and, therefore, overrules all surplusage law. Rather than overruling surplusage law, I would seize this opportunity to clarify variance law.

The problem with our variance caselaw is our failure to distinguish between two different issues — lack of notice and insufficient evidence. The word “variance”…