Adoption Name Changes & Material Variance: Why a Child’s Post-Incident Name Change Won’t Tank an Injury to a Child Case or Parallel Termination Proceeding
McKissick v. State, 11-24-00022-CR, February 20, 2026.
On appeal from the 244th District Court of Ector County.
Synopsis
The Eleventh Court of Appeals held that a variance between a child victim’s birth name alleged in an indictment and an adopted name proven at trial is not “material” when the defendant is not surprised or prejudiced in his defense. Furthermore, the court clarified that Article 39.14 discovery obligations are not breached when the defendant signs an express discovery waiver and fails to demonstrate that the State intentionally suppressed evidence discovered after the motion for new trial was overruled.
Relevance to Family Law
For practitioners navigating the intersection of Title 5 termination proceedings and parallel criminal prosecutions for injury to a child, McKissick provides critical clarity on the “identity” of the child across different legal instruments. In the context of a “Step-2” adoption following a termination of parental rights, a child’s name change is common; this ruling ensures that such a change does not create a technical loophole for a biological parent or significant other to escape criminal liability. It underscores that the legal identity of the victim remains constant for due process purposes, even when the nomenclature shifts via a decree of adoption.
Case Summary
Fact Summary
Johnathan Irvin McKissick was convicted of the first-degree felony offense of injury to a child involving a 21-month-old victim, A.N. The evidence showed that while A.N.’s mother, D.R., was in a hotel room with McKissick, security footage captured McKissick slamming the child onto a bed. The child subsequently suffered a catastrophic traumatic brain injury, resulting in permanent cognitive and physical impairments. Following the incident, D.R.’s parental rights were terminated, and A.N. was adopted by his paternal grandparents. At the time of the reindictment, the child was identified by his birth name, “Allen Norris.” However, by the time of trial, his name had been legally changed through adoption to “Adam Norris Nelson.” McKissick challenged the sufficiency of the evidence, arguing that the state failed to prove he injured the person named in the indictment. Additionally, McKissick raised a discovery challenge under the Michael Morton Act regarding evidence that surfaced after his motion for new trial was overruled.
Issues Decided
- Whether a material variance exists when a child victim’s name is changed via adoption between the date of the indictment and the date of trial.
- Whether the State violates the discovery mandates of Article 39.14 when evidence is disclosed after a motion for new trial is overruled by operation of law, particularly when a discovery waiver was signed.
Rules Applied
The court applied the Jackson v. Virginia sufficiency standard, measuring the evidence against a “hypothetically correct jury charge” as defined in Malik v. State. Regarding the variance issue, the court utilized the framework from Gollihar v. State and Ramjattansingh v. State, which categorizes variances into three types: (1) statutory allegations (always material), (2) non-statutory allegations descriptive of an element (sometimes material), and (3) non-statutory allegations unrelated to the unit of prosecution (never material). For the discovery issue, the court looked to the strict requirements of Article 39.14 of the Texas Code of Criminal Procedure and the necessity of showing “suppression” of evidence to trigger a violation.
Application
The court’s analysis centered on whether the variance in the child’s name prejudiced McKissick’s substantial rights. Because the indictment used a name substantially similar to the child’s birth name and the proof at trial clearly linked that identity to the newly adopted name, the court found no “surprise.” The record reflected that McKissick knew exactly which child was the subject of the prosecution; thus, the variance did not hinder his ability to prepare a defense. Furthermore, because the names were sufficiently linked, there was no risk that McKissick could be prosecuted again for the same conduct (double jeopardy).
Regarding the Article 39.14 claim, the court emphasized the procedural hurdles for an appellant. McKissick had signed a “certification of discovery” at the close of trial, expressly waiving further discovery. The court noted that Article 39.14 is not a “strict liability” statute for evidence discovered post-judgment; without a showing that the State possessed the evidence and purposefully withheld it, the claim could not survive, especially when the defendant had affirmatively waived his rights to additional production.
Holding
The Court of Appeals held that the variance between the birth name and the adopted name was immaterial. The court reasoned that the primary purpose of the naming requirement is to provide notice and prevent double jeopardy, both of which were satisfied here because the defendant was fully aware of the victim’s identity throughout the proceedings.
The court further held that there was no Article 39.14 violation. The court found that the defendant’s express waiver of discovery and the lack of evidence showing the State suppressed the information—which was only discovered after the motion for new trial was overruled—precluded a finding of error. The conviction and ninety-nine-year sentence were affirmed.
Practical Application
Family law litigators must be aware that a name change in a Decree of Adoption (Chapter 162) will not disrupt a pending criminal case against a perpetrator. However, to streamline the transition, counsel for the child or the adoptive parents should ensure that the District Attorney’s office is provided with a certified copy of the adoption decree. This allows the State to potentially amend the indictment or, at the very least, prepare the adoptive parents to testify regarding the “before and after” identity of the child to forestall any variance arguments at the close of the State’s case.
Checklists
Managing Name Changes in Parallel Proceedings
- Audit the Indictment: Compare the child’s name in the criminal charging instrument with the name in the Petition for Termination and the eventual Adoption Decree.
- Notice to Prosecution: Provide the State’s attorney with the Cause Number and Court of the adoption proceeding.
- Prepare the Witness: Ensure the adoptive parent is prepared to testify that “Child A” named in the indictment is the same “Child B” currently in their care.
- Document the Link: Keep a clear paper trail of the name change (e.g., birth certificate amendments) to offer as an exhibit if the defense moves for a directed verdict based on variance.
Article 39.14 Compliance for Litigators
- Review Waivers: Before signing a “Certification of Discovery” at the end of a trial, verify that all outstanding subpoenas and requests for production have been fully satisfied.
- Document Suppression: If evidence emerges post-trial, immediately file an affidavit detailing when the evidence was discovered and any indicators that the State had prior possession.
- Avoid Over-Broad Waivers: In high-stakes cases involving severe injury, resist signing global waivers that could potentially extinguish Michael Morton Act protections for newly discovered evidence.
Citation
McKissick v. State, __ S.W.3d __ (Tex. App.—Eastland 2026, no pet. h.) (No. 11-24-00022-CR).
Full Opinion
Family Law Crossover
This ruling is a powerful tool for a Petitioner in a termination or custody suit. If a parent is attempting to delay a family law bench trial by claiming that a name change for the child will “prejudice” their ongoing criminal defense, McKissick stands for the proposition that the criminal courts are perfectly capable of handling such variances. Furthermore, in “Best Interest” analyses under Holley v. Adams, this case reinforces that the finality of an adoption—and the stability of a new legal identity—takes precedence over the technical procedural preferences of an accused perpetrator. You can weaponize this to argue that the child’s need for a permanent, new identity through adoption outweighs any “variance” concerns the criminal defense might raise.
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