stating that a defendant has an "absolute veto" over an amendment attempted later than the commencement of trial
How later courts described this case
- stating that a defendant has an "absolute veto" over an amendment attempted later than the commencement of trial
- involving the State being allowed, over objection, to amend the charging instrument on the day of trial prior to commencing trial in contravention of Article 28.10, V.A.C.C.P.
- finding a defendant preserved his claim by specifically objecting to the indictment error
- “We conclude that in order to give effect to the full meaning and intent of Article 28.10, ... the error complained of in the instant case, i.e., that the State should not be permitted to amend a charging instrument on the day of trial prior to commencing trial on the merits over the defendant’s objection, should not be subjected to a harm analysis.”
Written by the judges who cited it.
Later courts went against this
Overruled — as noted by a later court
This court has subsequently recognized that Sodipo has been implicitly overruled in that regard.
medium confidence
Distinguished
Distinguished by Sanchez v. State, 2004 Tex. Crim. App. LEXIS 1119 (2004)
And, Sodipo is distinguishable in another way: There, after the motion was made, but on the same day, the jury was impaneled and the trial actually commenced, unlike in the case at hand. 815 S.W.2d at 553; see Sanchez, at 701 (there is no indication, and the State did not argue, that any steps were taken to commence trial on the merits).
The opinion
OPINION ON STATE’S MOTION FOR REHEARING
OVERSTREET, Judge. '
This Court accepted for review the issue of whether the court of appeals had erred in holding that there was no reversible error in the trial court's action denying appellant an additional ten days to prepare for trial following amendment of the indictment. In an opinion decided September 12, 1990, we concluded that such denial was reversible error. On December 28, 1990, we granted the State’s motion for rehearing in order to reconsider our earlier decision.
On April 27, 1988, the State moved to amend the indictment in this cause. Over appellant’s objection, the indictment was amended as follows: “to change the enhancement paragraph cause number from 427424 to 427427.” (Emphasis in original.) 1 Appellant objected to the amendment and requested ten days to prepare for trial, pursuant to Article 28.10, V.A.C.C.P. 2 This entire episode occurred on the day of trial prior to jury selection.
A careful reading of Article 28.10 reveals that neither Subsection (a) or (b) addresses an indictment amendment on the date of trial prior to the commencement of trial on the merits. Subsection (a) contemplates a situation in which the amendment occurs before the date trial on the merits commences. In response to an amendment at that time, upon request a defendant must be allowed at least 10 days (or less upon such a request by the defendant) to respond to the amended instrument. Subsection (b) envisions an amendment after trial on the merits has commenced. Neither section provides for amendment on the date of trial prior to the commencement of trial on the merits. Therefore, discussion of Subsection (a) in our opinion on original submission was improvident. Although appellant objected and requested the 10 days of time to respond, which is mandated by Subsection (a), he was not entitled to the 10 days because the timing of the amendment did not fall within the parameters of Subsection (a). We must determine whether the absence of any specific criteria in Article 28.10 providing for amendments made on the date of trial but prior to commencement of trial on the merits acts as a prohi *556 bition against any amendments whatsoever during that time frame.
In State v. Murk, 815 S.W.2d 556 (Tex.Cr.App.1991), we held that the State is not permitted to amend an indictment on the day of trial prior to the trial commencing. 3 (However, in Murk , such error was waived by the defendant failing to object at trial to such amendment.) In the instant cause, appellant specifically objected in the manner noted at footnote 2. Thus, he properly preserved his claim of error. We therefore hold that the State was not permitted to amend the instant indictment on the date of trial prior to trial on the merits commencing. 4 Therefore, in light of our interpretation of Article 28.10, we conclude that the trial court, when faced with the State’s motion to amend, should have denied the motion. Since the trial court did not, error was committed.
We conclude that in order to give effect to the full meaning and intent of Article 28.10, which is written with clarity and is not ambiguous, the error complained of in the instant case, i.e., that the State should not be permitted to amend a charging instrument on the day of trial prior to commencing trial on the merits over the defendant’s objection, should not be subjected to a harm analysis.
The judgments of the trial court and the court of appeals are hereby reversed and the cause is remanded to the trial court for proceedings not inconsistent with this opinion.
McCORMICK, P.J., and WHITE, J., concur in result.
. The record does contain an instrument appearing to be virtually identical to the original indictment but which includes the precise change prayed for in the State’s motion to amend.
. Specifically, appellant stated, “[Tjhis being the date of trial in this matter ..., and we first being presented with the motion to amend on today, my client respectfully objects to the amendment and requests his ten days to prepare for trial, to which 28.10 states that he is allowed if a change is made in form or substance in the charging instruments on or before the date of trial,” and shortly thereafter added, "I renew my objection and state ... [t]hat [appellant] is entitled to ten days to prepare for trial and ten days’ notice of changes of form or substance, and we believe that the changes ... are changed in both form and substance and we would request respectfully our ten days’ notice.”
. If the State were allowed to amend at that time, it would not be subject to the constraints of either Subsection (a) or (b). Thus, a "window-of-opportunity” would be opened where a defendant would have neither the right to a 10 day continuance nor an absolute veto as he would have had had the amendment been earlier or later. Thus, the State would be rewarded by “hiding behind the log” and waiting until the "window” period to move to amend rather than doing so earlier when a defendant would have been entitled to 10 days to respond. We hold that the Legislature did not intend to open such a window.
. Article 28.10 clearly speaks to allow amendments at the two time frames discussed above. We hold that to amend at any other time is error.