Batiste v. State, 13-89-335-CR

• Decision Date: 21 February 1990
• Docket Number: No. 13-89-335-CR,13-89-335-CR
• Citation: 785 S.W.2d 432
• Parties: James BATISTE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 432

785 S.W.2d 432

James BATISTE, Appellant, v. The STATE of Texas, Appellee.

No. 13-89-335-CR.

Court of Appeals of Texas Corpus Christi.

Feb. 21, 1990.

Ken McLean, Houston, for appellant.

John D. Holmes, Jr., Dist. Atty., Houston, for appellee.

Before NYE, C.J., and KENNEDY and UTTER, JJ.

OPINION

KENNEDY, Justice.

A trial court found appellant, James Batiste, guilty of aggravated sexual assault (Tex. Penal Code Ann. § 22.021 (Vernon 1989)) and sentenced him to fifty years' confinement in the Texas Department of Corrections. By one point of error, appellant challenges his conviction, contending that Tex.Code Crim.Proc.Ann. art. 28.10 (Vernon 1989) violates both the Federal Constitution and the Texas Constitution as well as Tex.Code Crim.Proc.Ann. art. 1.05 (Vernon 1977). ¹ We affirm the trial court's judgment.

The sufficiency of the evidence is not questioned. Appellant's sole complaint originates from the State's amendment of his indictment. The indictment, as originally presented to the grand jury, included two enhancement allegations: a 1964 felony theft conviction and a 1976 felony burglary conviction. Prior to trial, the State moved to substitute a 1967 felony theft conviction in place of the 1964 conviction. The trial court allowed the amendment, and appellant filed his written objection. Subsequently, appellant pled "not true" to both enhancement allegations. The State introduced appellant's penitentiary packets reflecting eleven prior felony convictions, including the 1964, 1967, and 1976 convictions. The trial court found the enhancement allegations true and assessed punishment.

Appellant specifically complains that article 28.10, which allows the State to amend an indictment, is unconstitutional because it permits an indictment to be amended without further presentation to the grand jury in violation of U.S. Const. amend. V and Tex. Const. art. 1, § 10. Initially, we recognize that the grand jury provision of the Fifth Amendment of the United States Constitution does not extend to the states through the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). Such being the case, the proper complaint for our review is that the Texas Constitution prohibits the State's unilateral amendment of the indictment.

The Texas Constitution provides, in relevant part: "no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury...." Tex. Const. art. 1, § 10. Further, the Texas Constitution, as amended in 1985, states, "[t]he practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law." Tex. Const. art. 5, § 12(b) (emphasis added).

Deriving its authority from Tex. Const. art. 5, § 12, the Legislature enacted Tex.Code Crim.Proc.Ann. art. 28.10 (Vernon 1989):

(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....

....

(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. (emphasis added).

The purpose of an enhancement allegation in an indictment is to provide the defendant with notice of prior convictions that will be relied upon by the State to enhance his punishment. Coleman v. State, 577 S.W.2d 486, 488 (Tex.Crim.App.1979). Appellant does not challenge the amendment of his indictment on the basis of insufficient notice; it was amended well before commencement of trial. Also, the amended indictment did not charge appellant with an additional or different primary offense.

In Ex Parte Patterson, 740 S.W.2d 766, 775 (Tex.Crim.App.1987), modified, Ex Parte Beck, 769 S.W.2d 525 (Tex.Crim.App.1989), the Court recognized that an indictment serves a dual function: (1) as the written statement of a grand jury accusing a person of an offense, and (2) as the State's primary pleadings. Because appellant had adequate notice of the enhancement allegations on which the State was seeking increased punishment, the question presented does not involve the pleading function of an indictment; it involves the grand jury statement function of an indictment.

Appellant asserts that he has a right to have the grand jury specifically allege the substituted 1967 conviction. Thus, the narrow issue presented is whether the substantial rights of a defendant are prejudiced by the State's amendment of an indictment without the consent of the grand jury, substituting one prior felony conviction allegation for another. ²

Patterson concerned the pleading function of an indictment. The defendant raised a notice issue affecting the State's attempt to obtain a deadly weapon finding. The Court held that because an affirmative finding of use or exhibition of a deadly weapon affects the length of sentence served before a defendant becomes eligible for parole, the State must plead it. Patterson, 740 S.W.2d at 776. However, the Court expressly stated that although the deadly weapon allegation must be pled, it does not necessarily require inclusion in the indictment. Id.

Relative to the issue in the present case, the grand jury statement function of an indictment, Patterson stated:

'[e]very circumstance constituting a statutory offense which would affect the degree of punishment, must be alleged in the indictment.' Long v. The State, Tex. 6, 10 (1871). Thus, prior convictions to be used for enhancement of punishment under felony recidivist statutes must be pled in the indictment, and proof of an upheld prior conviction will not support an enhanced sentence. See Moore v. State, 154 Tex.Cr.R. 307, 227 S.W.2d 219 (1950).

Patterson, 740 S.W.2d at 776 (emphasis added). From the cited cases, the Court proceeded to base its holding upon an antecedent condition, namely, that if a matter affects the degree of punishment, a defendant is entitled to a specific grand jury determination of probable cause to support that fact. See Patterson, 740 S.W.2d at 776.

Long was decided in 1871, under the 1856 code of Criminal Procedure. Under the 1856 Code, an indictment was the only pleading of the State. In 1879, however, the Code was amended to read (as it does today) that the indictment is "the primary pleading in a felony criminal action." See Patterson, 740 S.W.2d at 775 n. 10 (emphasis added). Long held that an enhancement allegation must be contained in an indictment which, in 1871, was the only instrument in which any pleading could be made by the State. As a result, when the Long Court stated, "whatever matter affects the degree or kind of punishment, must be specially alleged" and later in the opinion stated, "alleged in the indictment," the indictment was the only possible place for the State to plead anything, enhancement or otherwise. See Long, 36 Tex. at 9-10.

The entire Long decision is couched in notice terms. Nowhere does the Long Court mention a right to a grand jury's determination of probable cause for the prior offense, as the Patterson Court suggests. Long stands for a notice proposition--that a defendant has a right to know every circumstance affecting the degree of punishment before he is called upon for a defense. See Long, 36 Tex. at 10. Long does not hold that a defendant has the right to a specific grand jury determination of probable cause to support an enhancement allegation. See Patterson, 740 S.W.2d at 778 (Miller, Campbell, White, J.J., concurring); see also Ex Parte Beck, 769 S.W.2d 525, 527 (Tex.Crim.App.1989).

In Moore, the defendant was charged with felony theft. His indictment contained allegations of two prior felony convictions. At trial, the State showed, in addition to the two prior felony convictions, seven other convictions. The trial court submitted a jury question necessitating a fact finding of three prior felony convictions. The Court held, "[o]nly the prior convictions pleaded were available to the State for the purpose of proving appellant to be [a] habitual...