Burrell v. State

• Decision Date: 11 June 1975
• Docket Number: No. 49128,49128
• Citation: 526 S.W.2d 799
• Parties: Richard Aldon BURRELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 799

526 S.W.2d 799

Richard Aldon BURRELL, Appellant, v. The STATE of Texas, Appellee.

No. 49128.

Court of Criminal Appeals of Texas.

June 11, 1975.

Rehearing Denied Sept. 23, 1975.

Charles W. Tessmer and Ronald L. Goranson, Dallas, on appeal only, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for assault with intent to murder a peace officer, wherein the punishment was assessed by the court at forty-five (45) years following a verdict of guilty.

The appellant Burrell and his co-defendant Chambless were both indicted for robbery by assault and assault to murder a peace officer. In a joint trial they were both convicted of robbery and the appellant was convicted of assault to murder a peace officer, but co-defendant Chambless was acquitted of this latter offense. The facts involving these offenses were set forth in the appeals from the robbery convictions. See Per Curiam opinion in Chambless and Burrell v. State 525 S.W.2d 193 (Tex.Cr.App.1975), wherein the convictions were affirmed.

Appellant Burrell complains, concerning his conviction for assault with intent to murder a peace officer, that the trial court erred in permitting the State to amend the indictment in the cause after the trial had commenced.

The record reflects that the trial of the four cases involved commenced on June 25, 1973. The jury was selected and empaneled, the indictments were read to the jury, pleas of not guilty were entered in each case, and the presentation of testimony began. The next day, June 26, the State's motion to amend the indictment in appellant Burrell's assault to murder case was granted by the court.

Prior to amendment, the indictment, omitting the formal parts, alleged that Burrell '. . . did unlawfully, voluntarily And with his malice aforethought, make an assault in and upon the person of J. P. Huckabay, hereinafter styled 'Injured Party', with the intent to kill said 'Injured Party' By shooting him with a gun, and said 'Injured Party', then and there being an officer, to-wit, a police officer of the City of Balch Springs, Texas, who was then and there engaging in the performance of his official duty and the said Defendant then and there knowing that the said 'Injured Party' was such police officer . . ..' (Emphasis Supplied)

The amendment of the indictment permitted by the court on the second day of trial struck or deleted from the indictment the words 'and with his malice aforethought' and 'by shooting him with a gun.' No objection was made to the amendment or the deleted words. No claim of variance between the proof and the deleted allegations is advanced. The court's charge did not require that the jury find the assault was committed 'with malice aforethought' or 'by shooting him with a gun.'

Appellant relies upon Article 28.10, Vernon's Ann.C.C.P., which provides:

'Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.' (Emphasis Supplied)

At the time of the indictment and the time of trial, Article 1160, Vernon's Ann.P.C., provided:

'Section 1. If any person shall assault another with intent to murder, he shall be confined in the penitentiary for not less than two (2) nor more than twenty-five (25) years, provided that if the jury finds that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three (3) years confinement in the penitentiary; and provided further that in cases where the jury finds such assault was committed without malice but was made with a Bowie knife or dagger as those terms are defined by law, or with any kind or type of a knife, or in disguise, or by laying in wait, or by shooting into a private residence, the penalty shall be doubled.

'Sec. 2. Upon the trial of any person for assault with intent to murder, the Court, in its charge to the jury, shall define malice aforethought and in a proper case murder without malice, and instruct the jury touching the application of the law to the facts.'

At the same time, Article 1160a, Vernon's Ann.P.C., provided:

'Section 1. In this Act, 'peace officer' means any person defined as a peace officer by Article 2.12, Code of Criminal Procedure, 1965.

'Sec. 2. A person who assaults a peace officer with intent to murder while said officer is in performance of his official duty, knowing that the person assaulted is a peace officer, is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for life or for any term of years not less than two.'

Appellant argues that the indictment returned by the grand jury in effect charged two offenses; that is, assault to murder with malice pursuant to Article 1160, supra, and assault to murder a peace officer pursuant to Article 1160a, supra. The punishment under each statute is different, the maximum under Article 1160, supra, being twenty-five (25) years if malice is alleged and proven, and the maximum under Article 1160a, supra, being any number of years. While malice is a necessary allegation under Article 1160, supra, if the punishment is in excess of three (3) years, Crowley v. State,150 Tex.Cr.R. 114, 199 S.W.2d 526 (1947), malice need not be alleged in an indictment under Article 1160a, supra, as it is not an element of the offense of assault to murder a peace officer. Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972). Further, while the means used to commit either offense need not be alleged, see Welcome v. State, 438 S.W.2d 99 (Tex.Cr.App.1969); Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971); Johnson v. State,384 S.W.2d 885 (Tex.Cr.App.1964), it is established that once alleged it has to be proven. Holloway v. State, 168 Tex.Cr.R. 264, 324 S.W.2d 886 (1959); Johnson v. State, supra; 1 Branch's Ann.P.C., 2d ed., Sec. 518, p. 497 (1956).

It appears from reading the one count indictment as returned by the grand jury that it was in that form duplicitous. ¹ Although there was no objection on this basis at trial and he is precluded from raising it for the first time on appeal, ² appellant contends that since one cannot tell which offense the grand jury intended to charge, and while allegations were the unnecessary ones, ³ the appellant was harmed by the amendment of substance of the indictment, decreasing the burden of proof upon the State and increasing the penalty by twenty (20) years in excess of that provided in Article 1160, supra. He observes that he received forty-five (45) years as punishment.

An amendment of an indictment may be made as to form If timely made before the announcement of ready by both parties, Article 28.10 Supra; Roberts v. State, 489 S.W.2d 113 (Tex.Cr.App.1972). See also Craig v. State,480 S.W.2d 680 (Tex.Cr.App.1972). After trial commences the indictment should not be amended as to form or substance. Jackson v. State, 419 S.W.2d 370 (Tex.Cr.App.1967). Appellant contends, however, that the amendment in the instant case involved a matter of substance.

We must first determine if appellant may now raise the question since he failed to object at the time the indictment was amended.

In the early case of Calvin v. Texas, 25 Tex. 789 (1860), where an allegation of ownership was stricken by agreement between the district attorney and defense counsel, the court noted the amendment involved substance and that neither counsel nor the district attorney and the prisoner, nor the trial court could materially alter the indictment in light of the statute (a forerunner of Article 28.10, Vernon's Ann.C.C.P. containing the same wording). See also Schenk v. State, 76 Tex.Cr.R. 235, 174 S.W. 357 (1915).

Jeters v. State, 128 Tex.Cr.R. 379, 82 S.W.2d 150 (1935), also made clear that an amendment as to the substance of the indictment cannot be made even if the parties consent. Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886 (1934), noted that an indictment cannot be Legally amended as to substance, and Rutherford v. State, 74 Tex.Cr.R. 617, 169 S.W. 1157 (1914), held that an indictment amended as to substance will not support a conviction. See Calvin v. Texas, supra; Edwards v. State, 10 Tex.App. 25 (1881). Hamilton v. State, 65 Tex.Cr.R. 508, 145 S.W. 348 (1912), observed that an exception to an amendment of an indictment as to substance could be made at any time. See also Jackson v. State, 419 S.W.2d 370 (Tex.Cr.App.1967); Clopton v. State, 408 S.W.2d 112 (Tex.Cr.App.1966).

Thus, it appears that appellant is not foreclosed from his failure to object at trial if the amendment does indeed involve a matter of substance. This is the next question to be determined.

It is well settled that '(a)llegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment are treated as mere surplusage, and may be entirely disregarded.' 1 Branch's Ann.P.C., 2d ed., Sec. 517, p. 497 (1956). Stated another way, it may be said that if not descriptive of that which is legally essential to the validity of the indictment, information or complaint, unnecessary words or allegations may be rejected as surplusage.

In Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973), this court said:

'When not descriptive of that which is legally essential to the validity of an indictment or information, unnecessary words may be rejected as surplusage.' See also Cohen v. State, 479 S.W.2d 950 (Tex.Cr.App.1972); Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29 (1957).

There is, however, a well recognized exception to the general rule discussed above, and that is where the unnecessary matter is descriptive of that which is legally essential to charge a crime it...