# Riney v. State > Court of Criminal Appeals of Texas · October 4, 2000 · 28 S.W.3d 561 URL: https://www.frixlaw.com/law-library/cases/9678023 ## Case - **Full name:** Grafton Leroy RINEY, Appellant, v. the STATE of Texas - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 4, 2000 - **Citations:** 28 S.W.3d 561; 2000 Tex. Crim. App. LEXIS 88; 2000 WL 1468409 - **Precedential status:** Published - **Opinion:** Concurrence by Johnson - **Judges:** Mansfield, McCormick, Keller, Womack, Keasler, Holland, Price, Johnson - **Cited by:** 252 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled in part by Gollihar v. State, 2001 Tex. Crim. App. LEXIS 36 (2001). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678023 ## How later opinions describe it (automated extraction) - holding that an interlineation on the original or a copy of the indictment is not the only acceptable method of accomplishing an amendment; however, the language of the amended indictment must be memorialized in a written document and the amendment must be granted by the trial… - explaining that “[a]n amendment is an alteration to the face of the charging instrument which affects the substance of the charging instrument,” and “[s]urplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument” - explaining that although court had previously decided that “only effective means of accomplishing an amendment was by interlineation,” there are other ways to effect amendment including proffering copy of amended version of original indictment - holding that physical interlineation of original indictment is not only means of effecting amendment to indictment and that amended photocopy of original indictment was official indictment - holding that physical interlineation of original indictment is acceptable method of amending indictment, as is amended photocopy of original indictment incorporated into record under direction of trial court ## Opinion text JOHNSON, J., filed a concurring opinion. I concur in the judgment of the court. It stands the system of justice of this state in good stead to require that there be a *567 written record of any change in an indictment. As the dissent notes, interlineation on the indictment “actually reduces the potential for confusion as to which document is the legally binding indict-ment_” Post, at 569 (Holland, J., dissenting). Physical interlineation on the face of an indictment is evidence that an amendment was made and that the defendant was given notice of the alleged offense which was the subject of the trial. Such notice is a well-settled element of due process. Rojas v. State, 986 S.W.2d 241, 246 (Tex.Crim.App.1998). The face of the indictment is also key in assessing legal sufficiency. See Malik v. State, 958 S.W.2d 234, 240 (Tex.Crim.App.1997) (sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge which, inter alia, is authorized by the indictment). That said, I do not agree with the dissent that, in order to satisfy the concerns that the requirement of physical interlineation addresses, it must be on the original indictment. If the intent of the ruling in Ward was to ensure proper notice to the defendant of any change in the accusations and a written record of the change, requiring that the change be made on the original indictment may be too stringent. Throughout Ward, the Court refers to “the indictment.” Except for a footnote that discusses a prior case, 1 1 can find no reference to “the original indictment.” This Court also noted in Ward that “the legislature did not attach any technical or particular meaning to the term ‘amend,’ and thus we will not frustrate legislative intent by applying a hypertechnical interpretation of the term.” Ward, 829 S.W.2d at 792. We thus may use the common understanding of “amend” as “change, correct, revise.” Id. at 791. Not so long ago, there was only one copy of an indictment. It was easy to distinguish between the original document and retyped, handwritten, or mimeographed copies. With the advent of photocopiers and, as in this case, carbonless pressure copies, which piece of paper is designated as the “original” is at least somewhat arbitrary. As the majority notes, our rules of evidence include in the definition of “original” “any counterpart intended to have the same effect by a person executing or issuing it.” Supra, at 563 n. 1; Tex.R. Evid. 1001(3). A duplicate is defined as “a counterpart” and includes photocopies (“by means of photography”) and carbonless pressure copies (“by chemical reproduction, or by other equivalent”). Tex.R. Evid. 1001(4). The reasons for requiring interlineation on the face of the indictment as set out in Ward still apply; the motion to amend and the grant of permission by the trial court to amend are the process by which an indictment may be amended, not the amendment itself. Only a physical change on the face of the indictment satisfies the requirement the defendant be apprized of the charges against him. This concern with proper written notice can be addressed by amending the face of a duplicate of the document designated as the “original indictment” and entering the amended copy into the court’s record. It would be wise to date the amended copy and the “original” so that there will be a lessened probability of confusion about which version is the one to be used at trial. While it might be better for the prosecutor to re-indict when seeking to amend the indictment as to matters of substance, the language of Tex.Code CRIM. PROC. art. 28.10 and, I believe, the language of Ward require only a physical amendment of the indictment, whether the original or a duplicate thereof. In the case before us, a duplicate of the pertinent part of the indictment was physically amended on its face and included in the court’s file. Appellant was present in *568 court at the time of the amendment and raised no objection to the amendment, even after questioning by the trial court. The intent of Ward and of the statute to provide proper notice and a written record of the amendment were fulfilled. Appellant can show no harm or surprise from the changes. He should not now be heard to complain. Because I believe that Wcmfrequires physical interlineation on the face of the charging document, but permits amendment by physical interlineation on the face of a duplicate of the charging document, which is then entered in the court’s file, I concur only in the judgment of the Court. HOLLAND, J., delivered a dissenting opinion in' which MEYERS and PRICE, JJ., joined. Today the majority overrules Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992), to the extent that it requires physical interlineation of the original indictment as the only means to accomplish an amendment. See supra at 565-66. Because the instant case “provides a defendant with the opportunity to subvert a process of which he was fully aware and had affirmatively acknowledged,” the majority impliedly concludes that the physical interlineation requirement described in Ward is “unworkable” or “badly reasoned.” Id. at 565. Apparently, the majority believes that principles of stare decisis should not be adhered to in this case. Because I do not find the majority’s reasons for overruling Ward compelling, I respectfully dissent. As the majority recognizes, “the doctrine of stare decisis should generally be followed, because it promotes judicial efficiency and consistency, it fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Ante. at 565 (citing Proctor v. State, 967 S.W.2d 840, 844-45 (Tex.Crim.App.1998)). “Often it is better to be consistent than right.” Malik v. State, 953 S.W.2d 234, 236 (Tex.Crim.App.1997). The interest in stare decisis is even more compelling when the rule of law involves a judicial interpretation of a legislative enactment on which parties rely for guidance. See Busby v. State, 990 S.W.2d 263, 267 (Tex.Crim.App.1999). “When the Legislature meets, after a particular statute has been judicially construed without changing the statute, we presume the Legislature intended the same construction should continue to be applied to that statute.” Id. (quoting Marin v. State, 891 S.W.2d 267, 271-72 (Tex.Crim.App.1994)). There are acceptable reasons for overruling precedent, however. For example, “[w]hen older precedent conflicts with a newer decision that is found to be more soundly reasoned, we may resolve the inconsistency in favor of the more soundly reasoned decision.” Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex.Crim.App.1998). Another factor to consider is whether the reasoning underlying the older precedent has been undercut by the passage of time. See id. Further factors that support the overruling of precedent include: 1) when the original rule of law is flawed from the outset; 2) when the rule produces inconsistency and confusion in the law; 3) when the rule consistently creates unjust results or places unnecessary burdens upon the system; and 4) when the rule creates differences between criminal and civil practice when a reason for the difference does not exist. See State v. Toney, 979 S.W.2d 642, 645-46 (Tex.Crim.App.1998) (Keller, J., concurring). In analyzing the precedential value of Ward , it should first be emphasized that the Texas Legislature has not changed the wording of either Art. 28.10 or Art. 28.11 of the Texas Code of Criminal Procedure since Ward was decided. See Tex.Code CRiM. PROG. Ann. Art. 28.10 & Art. 28.11. This weighs heavily in favor of retaining Ward , as the Legislature has had opportunities to change the statutes and has not done so. See Busby, 990 S.W.2d at 267 . If the Legislature had not approved of this *569 Court’s interpretation of the statutes in Ward , it could have re-written the statutes. Instead, the statutes remain as they were in 1992, and the rule of law in Ward has been consistently relied upon by this Court and other courts. See Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App.1997); White v. State, 890 S.W.2d 69, 71 (Tex.Crim.App.1994); Bates v. State, 15 S.W.3d 155, 161 (Tex.App.—Texarkana 2000); Westfall v. State, 10 S.W.3d 85, 91 (Tex.App.—Waco 1999); Richardson v. State, 973 S.W.2d 384, 388 (Tex.App.—Dallas 1998); Brooks v. State, 921 S.W.2d 875, 877 (Tex.App.—Houston [14th Dist.] 1996); Dixon v. State 932 S.W.2d 567, 571 (Tex.App.—Tyler 1995); Miller v. State, 909 S.W.2d 586, 588 (Tex.App.—Austin 1995); Collins v. State, 890 S.W.2d 893, 896 (Tex.App.—El Paso 1994); Blount v. State, 851 S.W.2d 359, 365 (Tex.App.—Houston [1st Dist.] 1993); McFarland v. State, 834 S.W.2d 481, 483 (Tex.App.—Corpus Christi 1992). In its brief, the State argues that the Ward court erroneously adopted a dictionary definition of “amend.” Assuming, ar-guendo, that this assertion is correct 1 the State does not show this definition of “amend” produces inconsistency or confusion within the amendment process. Further, the State does not show how the Ward rule of law places any unnecessary burdens upon the legal system. Ward does not conflict with newer, more sound law. And the Ward precedent has not been undercut by the passage of time. While the majority believes Ward allows this appellant “the opportunity to subvert a process of which he was fully aware and had affirmatively acknowledged,” the majority does not demonstrate that the War- drule of law consistently produces unjust results. Rather, Ward provides a clear standard for amending indictments — one in which the State and defendants can invariably rely upon. 2 Interlineation of the original indictment found in the court clerk’s file actually reduces the potential for confusion as to which document is the legally binding indictment in a pending case. Therefore, I believe that the doctrine of stare decisis requires this Court to refrain from overruling any part of Ward , and I would continue to hold that physical interlineation of the original indictment is the only way to accomplish an amendment. According to Ward , the indictment in the instant case was not properly amended. Therefore, the original indictment, which alleged that appellant possessed “amphetamine” in the amount of one gram or more but less than four grams, is the valid indictment. At trial, the State introduced evidence that appellant was arrested with “methamphetamine.” This evidence does not support appellant’s conviction as alleged in the indictment. Therefore, I would affirm the court of appeals’s judgment of acquittal in this case. Because the majority does not do so, I respectfully dissent. . Ward, 829 S.W.2d at 789 -90 n. 4 ("In Bartley [ v. State, 789 S.W.2d 288 (Tex.App.—Dallas 1990, pel. ref’d)] ... No interlineation was made on the indictment, and only the original indictment was included in the transcript.”). . The Ward court held that the dictionary definition of "amendment” was consistent with the Legislature’s intent. Ward, 829 S.W.2d at 792 (stating that because the Legislature did not testify regarding the amendment process, we should not "frustrate legislative intent by applying a hypertechnical interpretation to the term.”). The court also found the definition of "amend” to be consistent with Article I, section 10 of the Texas Constitution. See id. at 795 . . The majority appears to notice this clear standard by "strongly encourag[ing] ... any amendment via interlineation to be performed upon the copy of the indictment already present in the court clerk’s file.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678023. Public record. Not legal advice.