Merlin James v. State

Opinion issued April 19, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00693-CR

———————————

Merlin James , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1239442

CONCURRING OPINION

I

respectfully concur. I agree with the

majority’s conclusion that the evidence was sufficient to support appellant

Merlin James’s conviction for aggravated robbery. I also agree that the trial court did not err

in refusing to instruct the jury on the lesser-included offense of theft. However, I disagree with the majority’s

construction of the law governing corrections to an enhancement paragraph that

is not part of the charged offense in an indictment. Specifically, I disagree that immaterial corrections

in such an enhancement paragraph at the sentencing phase of a trial, over the

defendant’s objection, are error within the scope of article 28.10(b) of the

Code of Criminal Procedure. I would also

overrule this Court’s prior ruling in Boutte v. State ,

824 S.W.2d 322, 323 (Tex. App.—Houston [1st Dist.] 1992, pet ref’d ), which the majority relies upon, as erroneously

confusing the ministerial correction of an enhancement paragraph at the

sentencing phase of a trial with an amendment of the charged offense in the indictment

during trial that is subject to article 28.10(b).

Amended Enhancement Allegation in Indictment

In his third issue, James contends

that the trial court erred in allowing the State to amend an enhancement

allegation contained in the indictment at the beginning of the sentencing phase

of his trial, over his objection, in violation of Code of Criminal Procedure article

28.10. He contends that the erroneous amendment

entitles him to a new trial on punishment.

The original enhancement paragraph

in the indictment alleged that James had a previous conviction for the felony offense

of “INJURY OF THE ELDERLY” in the “377TH DISTRICT COURT of HARRIS County.” James had actually been previously convicted

of the offense of injury to a child in the 377th District Court of Victoria County. Twenty-seven days before the trial started,

the State filed and served on defense counsel a “Notice of Intention to Use

Prior Convictions and Extraneous Offenses,” which described the correct prior

conviction of “INJURY TO CHILD, ELDERLY, DISABLED [INDIVIDUAL]” in “VICTORIA /

377.” I agree with the majority that the

variance between “elderly” and “child” is not statutorily relevant because

injury to either constitutes the same offense under the Penal Code. See Tex. Penal Code Ann. § 22.04(a) (Vernon 2011). I disagree with the remainder of the

majority’s reasoning.

After trial on the merits, but

before the punishment phase began, James moved to quash the enhancement

allegation. The State orally moved for

leave to amend the enhancement paragraph to correct the offense title and

county information for the prior conviction.

Over James’s objection, the court granted the State’s motion and made a

handwritten, interlineal correction on the face of the indictment. James then pleaded true to the amended

enhancement paragraph. On appeal, James

contends that the trial court’s correction of the enhancement paragraph constituted

an impermissible trial amendment under Code of Criminal Procedure article

28.10(b) that was not subject to a harm analysis under controlling law.

Analysis

Amendments to an indictment are

governed by Code of Criminal Procedure article 28.10, which provides:

(a) After notice to the defendant, a matter of form or substance in

an indictment or information may be amended at any time before the date the

trial on the merits commences. On the

request of the defendant, the court shall allow the defendant not less than 10

days, or a shorter period if requested by the defendant, to respond to the

amended indictment or information.

(b) A matter of form or

substance in an indictment or information may also be amended after the trial

on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the

defendant’s objection as to form or substance if the amended indictment or

information charges the defendant with an additional or different offense or if

the substantial rights of the defendant are prejudiced.

Tex. Code

Crim. Proc. Ann. art. 28.10 (Vernon 2006) (emphasis added).

The majority relies upon Hillin v. State in determining that the trial

court’s interlineated correction of the title of James’s prior offense and the

county of his prior conviction in the enhancement paragraph was a trial

amendment subject to article 28.10(b). 808 S.W.2d 486 (Tex. Crim. App. 1991) (plurality op.). In Hillin , the trial court granted the State’s motion to amend

the indictment during trial on the merits over Hillin’s

objection, changing the charge from aggravated assault on a correctional

officer “by throwing porcelain” to aggravated assault “by throwing a commode.” Id. at 486–87. The court

of appeals affirmed, holding that Hillin’s

substantial rights had not been affected by the trial amendment. Id. at 487 . The Court

of Criminal Appeals reversed Hillin’s conviction and

remanded the case to the trial court. Id. at 489 .

The

Court of Criminal Appeals interpreted subsection (b) of article 28.10 as

providing a defendant who objects to a trial amendment to an indictment an

absolute veto over the amendment. Id.

The court also expressly rejected the application of the substantial

rights test set out in subsection (c) to a subsection (b) violation. Id. at 488 . It

stated:

The language and wording of Article 28.10(b ) . . . is clear and unambiguous and if

the defendant, after trial on the merits has commenced, interposes a timely

objection to the State’s proposed amendment, be it to form or substance, such

amendment is absolutely prohibited. It

appears the court of appeals was of the opinion that in regard to [s] ection (b) after a trial amendment, a “substantial

rights” analysis was to be performed pursuant to [s] ection (c)

which prohibits the State from amending the indictment if such amendment

transformed the allegations to additional or different offenses or prejudiced

the substantial rights of the defendant. We do not find such reasoning persuasive.

Article 28.10(c) prohibits

the State from amending the indictment over a defense objection if such

amendment results in an additional or different offense or if it adversely

prejudices the substantial rights of the defendant. Section (c) makes no mention as to

whether it applies to [s] ections (a) and (b) or

only to one of the preceding sections. We

conclude that an analysis pursuant to [s] ection (c)

could only be logically applied to an indictment amendment which falls under

the purview of Section (a). . . .

At first blush one might

suspect that the provisions of [s] ection (c) are

applicable to both [s] ections (a) and (b)

because of the structure of Article 28.10. However, as previously stated, a defendant

under the clear language of [s] ection (b) has an

absolute veto power over proposed amendments after trial on the merits has

commenced.

Id. at 488–89

(citations omitted).

In Boutte v. State , this Court extended the Court

of Criminal Appeals’ plurality holding in Hillin to prohibit an amendment to an enhancement paragraph in the

indictment made at the beginning of the punishment phase of a trial over the

defendant’s objection. See 824 S.W.2d 322 , 323–24 (Tex.

App.—Houston [1st Dist.] 1992, pet ref’d ) (holding

that amendment to enhancement paragraph that deleted word “aggravated” from

“aggravated robbery” in prior conviction was subject to defendant’s absolute

veto under article 28.10(b) and reversing and remanding for new trial on

punishment). The majority concludes,

pursuant to Boutte ,

that the corrections to the enhancement paragraph in this case were an improper

trial amendment that violated article 28.10(b), but it holds that James’s

substantial rights were not affected by the erroneous amendment, and, thus, it

affirms the judgment of the trial court. [1]

I

disagree with the majority’s decision to follow Boutte in holding that the correction of immaterial variances in prior

convictions alleged in enhancement paragraphs that are not part of the charged

offense in the indictment are amendments to the indictment subject to the

defendant’s absolute veto under article 28.10(b), rather than mere surplusage that may be corrected at trial without violating

article 28.10(b). I would overrule Boutte , and I

would follow our sister courts of appeals in distinguishing between ministerial

corrections to enhancement paragraphs that are not part of the State’s

case-in-chief and amendments to the charged offense in the indictment. S ee

Thomas v. State , 286 S.W.3d 109, 114

(Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that enhancement

allegation that is not part of State’s case-in-chief is not part of substance

of indictment; therefore, article 28.10, which grants defendant right to object

to amendment to indictment after trial has started, does not apply to amendment

of enhancement allegations at trial); Stautzenberger v.

State , 232 S.W.3d 323 , 327–28 (Tex. App.—Houston [14th Dist.] 2007, no

pet.) (holding that article 28.10 applies to amendments to indictment that

charge defendant “with an additional or different offense”; therefore, it does

not apply to enhancement paragraphs that are not part of State’s case-in-chief

and need not be pleaded on face of changing instrument, which are “mere surplusage ”); Johnson

v. State , 214 S.W.3d 157 , 158–59 (Tex. App.—Amarillo 2007, no pet.) (observing

that enhancements need not be pleaded in indictment and holding that granting

State’s motion to amend date of prior conviction in enhancement paragraph did

not violate article 28.10 where prior conviction was not required to be pleaded

in indictment, and, therefore, amounted to “mere surplusage ”

that was not essential to validity of indictment). The majority acknowledges these cases but determines

that “[w]e cannot follow the[ ] lead [of these courts] because

this court already has binding, on-point precedent in Boutte .” Slip Op. at 16.

The

trial amendment cases decided by the Court of Criminal Appeals after Hillin are

instructive. After deciding Hillin by a

plurality vote, the Court of Criminal Appeals later approved Hillin’s holding en

banc, stating, “[T]he clear import of our holding in Hillin was that the requisites of

Article 28.10(b), which inferentially prohibit trial amendments over objection,

are absolute.” Brown v. State , 828 S.W.2d 762, 763 (Tex.

Crim. App. 1991). In Brown , an arson case, the indictment

named “ Yolander Evette

Weeks” as the owner of the habitation at issue.

Id. Proof at trial demonstrated that the

complainant’s first name was actually “Yolanda,” and the State moved to strike

“ Yolander ” from the indictment as mere surplusage . Id.

The trial court did so, over Brown’s objection, and the jury charge

named “ Evette Weeks” as the owner of the habitation. Id. The Court of Criminal Appeals held that this

change was an impermissible trial amendment under article 28.10(b) that was

subject to defendant’s absolute veto and was not subject to harm analysis on

appeal. Id. at 763–64.

Subsequently, in Wynn v. State , however, the Court of

Criminal Appeals addressed the converse situation from that in Brown . 864 S.W.2d 539 , 540–41 (Tex.

Crim. App. 1993). Having held, in

Brown , that the correction of the complainant’s

name was an amendment to the indictment that implicated article 28.10, the

court held in Wynn that the

correction of the defendant ’s name in

the indictment to reflect his true name “does not constitute an amendment to

the indictment as perceived by article 28.10.”

Id. at 540 (quoting Kelley v. State , 823 S.W.2d 300, 302

(Tex. Crim. App. 1992)). Rather, it was

“a ministerial act under [article]

26.08.” Id. at 541 (emphasis added).

The court thus drew a distinction between the ministerial act of making

a correction at trial under article 26.08 of the Code of Criminal Procedure,

which permits the defendant to substitute his true name for that under which he

was indicted, and amending the charged offense in the indictment at trial under

article 28.10(b). Id. ; see Tex. Code Crim. Proc. Ann. art. 26.08

(Vernon 2009); id. art . 28.10.

In Wright v. State , the Court of Criminal

Appeals again addressed the scope of article 28.10. In that case, the indictment alleged that Wright

had murdered the complainant “on or about the 23rd day of March A.D. 1997 . . . .” 28 S.W.3d 526, 531 (Tex.

Crim. App. 2000). On May 16,

1997, the State filed a motion to amend the indictment, requesting that “21” be

substituted for “23” as the date of the offense, and the trial court subsequently

physically altered the indictment. Id.

Wright apparently did not realize that the date had been changed in the

indictment until the last week of voir dire in early

November 1997. Id. Thirteen days after the

conclusion of voir dire, he filed a motion to quash,

claiming he had not received proper notice of the amendment. Id. The State disputed that claim, but conceded,

after a hearing on Wright’s motion, that it had improperly given notice of the

change after the alteration was made, and it urged the court to continue on the

original indictment. Id.

Wright argued that the indictment would have to be amended again to

reinstate the original date of the offense and that he was entitled to a ten-day

continuance under article 28.10. Id.

The trial court denied the motion to quash but proclaimed that the

attempted amendment was not effective, and it presented the indictment to the jury

with the original language. Id.

The Court of Criminal

Appeals concluded that it did not need to determine whether the amendment to

the indictment was effective or whether the trial court had erred in denying Wright

ten days to prepare for trial. Id.

Rather than applying article 28.10, the court held that Wright was “not

harmed by these events.” Id . at 531–32. It observed that “the ‘on or about’ language

of an indictment allows the State to prove a date other than the one alleged as

long as the date proven is anterior to the presentment of the indictment and

within the statutory limitation period.”

Id. at 532 . Thus, “the indictment provided adequate

notice of proof for either date.” Id. The court also noted that the State had filed

its motion to amend the date in the indictment more than five months before

trial began. Id. at 532 n.6 . It overruled Wright’s issues. Id. at 532 .

Wright

is very similar to the instant case in that the “on or about” language in the

date in the original indictment allowed the State to prove a date other than

the one specifically alleged, which the amendment to a specific date two days

earlier did not materially change, whereas here the substitution of the correct

full name of the statute under which James was previously convicted for the

incorrectly truncated name of the statute did not change the section of the

Penal Code under which he had been convicted.

Rather, the correction is properly viewed in both cases as a merely

ministerial act. In this regard, this

case is also very similar to Wynn ,

which merely changed the defendant’s name from an incorrect name to a correct

one, as permitted by article 26.08. Moreover,

here, as in Wright , James was given

notice well before trial of the State’s intention to submit the enhancement

paragraph in the indictment in its correct form. Thus, he was not harmed.

If my construction of Wright and Wynn is correct, no case law other than Boutte supports the majority’s

conclusion that a correction of an enhancement paragraph that is not part of

the charged offense in an indictment is a trial amendment subject to the

defendant’s absolute veto under article 28.10(b), rather than a ministerial

correction of mere surplusage in the indictment that

may be made at trial without harm to the defendant.

I also note that, in

contrast to the majority in this case, a previous panel of this Court refused

to apply article 28.10 when an immaterial change was made to the enhancement

paragraph in an indictment. Simmons

v. State , 288 S.W.3d 72, 79 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d ). The majority

finds Simmons distinguishable

because, in that case, the record did not affirmatively show that the trial

court’s hand-written correction to the date of a prior conviction in an

enhancement paragraph in the indictment—from February 19, 1979 to February 8,

1979—was made after the trial had started. Slip Op. at 15. However, that was not the only relevant

ruling in Simmons . In addition, the Simmons court observed that “variances between an indictment and

the proof of cause numbers, courts, and dates of conviction in enhancement

paragraphs have been held not to be material.” Simmons ,

288 S.W.3d at 80 (citing Freda v. State ,

704 S.W.2d 41 , 42–43 (Tex. Crim. App. 1986)).

We also observed that, as here, the State had informed the defendant

well before trial of its intent to use the correct prior conviction in its

“Notice of Intention to Use Evidence of Prior Convictions and Extraneous

Offenses.” Id. We concluded that, “even

if the trial court had erred with respect to amending the indictment , . . . no surprise, prejudice, or harm

resulted.” Id. Thus, the variance was

immaterial and not fatal. Id. We therefore affirmed the judgment of the

trial court. [2] Id.

I agree with the State that Simmons is on point in vital respects.

There are numerous

indications in the record of this case that the corrections to the enhancement

paragraph made here were not prohibited trial amendments to the form or

substance of the indictment within the scope of article 28.10(b). Here, the correction in the title of the

offense from “Injury of the Elderly” to “Injury to Child, Elderly, Disabled

Individual” — the correct full title of

the statute under which James was previously convicted — was an immaterial variance, as even the

majority agrees, in that injury to either an elderly person or a child constitutes

the same offense under Penal Code section 22.04(a). See

Freda , 704 S.W.2d at 43 (holding that, in absence of surprise or prejudice,

variance between indictment and proof at trial was immaterial and not fatal

when indictment correctly alleged date of prior offense, cause number of prior

offense, court returning conviction for prior offense, location of convicting

court, and fact that offense was felony); see

also Wynn , 864 S.W.2d at 541 (holding correction of indictment at trial to

reflect true name of defendant did not constitute amendment within purview of

article 28.10 but was ministerial act under article 26.08); Simmons , 288 S.W.3d at 79–80 (holding undated

amendment of enhancement paragraph changing date of prior offense by eleven

days did not fall within scope of article 28.10 and observing that variance was

immaterial and appellant had notice of amendment).

Here, as in Wright and Simmons , the State filed with the trial court and served on James’s

counsel, twenty-seven days before trial, a “Notice of Intention to Use Prior

Convictions and Extraneous Offenses” that reflected the correct charge and

county information regarding James’s prior conviction, including the correct

full title of the prior conviction. See Wright ,

28 S.W.3d at 531 ; Simmons , 288 S.W.3d at 78–79. Therefore, I would conclude that James, like

the defendants in Wright and Simmons , had sufficient notice of the

prior conviction that the State intended to use against him as a punishment

enhancement and that James was not harmed by the corrections. See

Wright , 28 S.W.3d at 531–32 (holding

that attempted amendment to substitute “21” for “23” as the date of the offense , in place

of “on or about the 23rd day of March A.D. 1997 . . . .”

in original indictment was not harmful error when amendment provided adequate

notice of proof of either date and defendant had notice of substitution prior

to trial although actual amendment was sought and denied at trial); Simmons , 288 S.W.3d at 80 .

I would overrule Boutte , and I

would hold, in light of Wright, Wynn, and

Simmons and the holdings of those of our

sister courts that have considered corrections made to an enhancement paragraph

that is not part of the charged offense in an indictment, that the corrections

to the enhancement paragraph in this case to reflect the correct name of the

statute under which James was previously convicted and the correct county of

the previous conviction were ministerial acts that corrected

mere surplusage in the indictment, and, therefore,

the corrections do not fall within the scope of article 28.10 and, in the

absence of surprise or prejudice, were not harmful error. See

Thomas , 286 S.W.3d

at 114 ; Stautzenberger ,

232 S.W.3d at 327–28; Johnson , 214

S.W.3d at 158–59.

I would overrule James’s third

issue.

Conclusion

I would affirm the judgment of the

trial court.

Evelyn

V. Keyes

Justice

Panel consists of Justices Keyes, Higley, and

Massengale.

Justice Keyes, concurring.

Publish. Tex. R. App. P. 47.2(b).

[1] The

majority supports its decision to conduct a harm analysis by arguing that the

Court of Criminal Appeals implicitly overruled a successor case to Hillin — Sodipo v. State , 815 S.W.2d 551 (Tex. Crim.

App. 1990)—in Wright v. State , 28

S.W.3d 526 (Tex. Crim. App. 2000). The

issue of whether Wright overruled Sodipo and,

necessarily, Hillin

with regard to whether a harm analysis is appropriate for an article 28.10(b)

violation is, in my view, unnecessary to the disposition of this case and a

misleading distraction if, as I argue below, an amendment to an enhancement

paragraph in an indictment is a correction of mere surplusage

in the indictment and therefore does not fall within the scope of article

28.10(b). If my construction of Wright , discussed below, is correct, Wright holds that a harm analysis is

appropriate to determine whether a correction to mere surplusage

in an indictment is reversible error, not that a harm analysis is appropriate

when article 28.10(b) is violated. See 28 S.W.3d

at 531–32.

[2]

In Simmons , we also cited with approval the Amarillo Court of Appeals’

holding in Johnson v. State , 214

S.W.3d 157 , 158–59 (Tex. App.—Amarillo 2007, no pet.), that article 28.10 does

not apply to amendments of enhancement paragraphs because these allegations are

“unessential to the validity of the indictment” and, thus, are “comparable to surplusage .” Simmons v. State , 288 S.W.3d 72 , 80 n.6

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d ).