Brown v. State

OPINION ON THE STATE’S SECOND MOTION FOR REHEARING

Following the issuance of our withdrawn opinion of September 10, 1992, the State filed its second motion for rehearing. In that motion, the . State contends that the *715 issue of the amendment of the indictment is moot because of the decision of the court of criminal appeals in Ward v. State. See Ward, 829 S.W.2d at 787.

A.The State’s Contention

The State contends that under the record in this case there was no amendment to the indictment and, therefore, no violation of article 28.10.

The State points out that although the trial court overruled appellant’s objection and granted the State’s motion to strike the word “Yolander” from the indictment, the record does not contain a written order. Neither does the indictment contain an in-terlineation or marking that deletes the word “Yolander.” However, in the application paragraph of the jury charge, the complainant’s name appears as “Evette Weeks.”

Under Ward, an amendment means the actual alteration of the charging instrument. See Ward, 829 S.W.2d at 798. As the State correctly points out, the indictment itself must be physically altered. See Ward, 829 S.W.2d at 798. The State concludes that because of Ward, this Court cannot sustain appellant’s first point of error. We disagree.

B.What Ward Says

In Ward, on the day of trial, the State moved to amend the indictment to change the name of the complaining witness from “Seth Haller” to “Steve Scott.” Ward objected to the State’s motion, contending that to allow the amendment would charge him with a new, different, or additional offense. 3 The trial court overruled Ward’s objection. The trial court’s order stated, “The foregoing motion is hereby granted and the indictment is hereby amended.” Despite this language, the new complainant’s name was not interlined on the grand jury’s indictment.

In Ward, the court of criminal appeals held that the amendment of an indictment involves the interpretation of both articles 28.10 and 28.11. See Tex.Code Crim.Proc. Ann. arts. 28.10, 28.11 (Vernon 1989); Ward, 829 S.W.2d at 790. In essence, the court of criminal appeals held amending an indictment is a two-step process. The State must make a timely motion under article 28.10. If the trial court determines the proposed amendment is proper under article 28.10, the court may grant the motion to amend. The actual amendment is accomplished by following article 28.11. See Ward, 829 S.W.2d at 794.

C.Application of Ward to the Facts of this Case

It is true that under the facts of this case, there was not an effective amendment of appellant’s indictment. Ward, 829 S.W.2d at 794. However, Ward does not render appellant’s first point of error moot. His point complains the trial court’s grant of the State’s motion to amend was erroneous. His objection was good under article 28.10(b). See Tex.Code CRIM.Proc.Ann. art. 28.10(b) (Vernon 1989); Brown, 828 S.W.2d at 764. Brown teaches us that whether it be of form or substance, any attempt by the State to amend after the trial begins over a timely objection by a defendant is prohibited. The error appellant complains of is the trial court’s grant of the State’s motion to amend over his objection. That objection was timely and valid. It is reversible error not subject to a harm analysis. Brown, 828 S.W.2d at 764. We conclude Ward does not render this point moot.

. Ward did not object that article 28.10 does not permit the State to amend on the day of trial. See State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991).