Craig v. State
| Decision Date | 06 June 2003 |
| Docket Number | No. 06-02-00151-CR.,06-02-00151-CR. |
| Parties | MICHAEL WAYNE CRAIG, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 8th Judicial District Court Franklin County, Texas Trial Court No. 7434.
Before Morriss, C.J., Ross and Carter, JJ.
Michael Wayne Craig was convicted by a jury of felony driving while intoxicated (DWI) on the June 2, 2001, with two prior felonies alleged for enhancements. The jury found he had been twice convicted and assessed punishment at life imprisonment. Craig appeals his conviction, alleging that the trial court erred in amending the indictment and by overruling the defense's motion for a directed verdict, and that he received ineffective assistance of counsel.
At 1:20 a.m. on June 2, 2001, Officer Jason Pierce of the Mount Vernon Police Department noticed a pickup truck driven by Craig. The vehicle stopped in the middle of the street and waited about a minute and a half or two minutes. Pierce approached the vehicle and saw two cases of beer in the bed of the truck. He noticed a beer can between the driver's legs, a strong odor of alcoholic beverage, the driver's eyes were bloodshot and glassy, and his speech was slurred. When asked if he had been drinking, Craig responded, "[Y]es, sir, all night." There were three other passengers in the vehicle who stated they had
also been drinking. Pierce asked Craig to perform field sobriety tests. Craig refused to conduct the tests and cursed the officer. Pierce then arrested Craig. Craig subsequently refused to take a breath test. He was charged with felony DWI with enhancements. The State used a prior 1985 misdemeanor DWI conviction and a prior 1999 misdemeanor DWI conviction to enhance the DWI to a felony under Section 49.09. See Tex. Pen. Code Ann. § 49.09 (Vernon 2003). A prior 1995 felony DWI and a prior 1989 involuntary manslaughter enhanced the sentence of the current felony DWI under Section 12.42(d) to a possible sentence of twenty-five years to life.(1) See Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003).
On February 19, 2002, after the jury was selected and sworn but two days before the trial on the merits began, the court considered pretrial motions. Craig had filed a motion to exclude certain judgments for enhancement purposes. Specifically, the motion stated that the allegation Craig was convicted in cause number 08250 in the County Court of Titus County of driving while intoxicated was erroneous. Craig further alleged that this flaw in the indictment was fatal and that paragraph should be excluded. At that time, the State filed a motion to amend the indictment to change the county in which Craig was convicted in cause number 08250 from Titus to Franklin. The amendment concerned a jurisdictional paragraph authorized by Section 49.09 of the Texas Penal Code to enhance the DWI to a felony. The court acknowledged that Craig had filed a pleading to exclude said allegation because it contained Titus County as the county of conviction instead of Franklin County in the indictment and stated that, "if you had notice of it the Court's going to overrule your objection." The court granted the motion and amended the indictment.
1. Did the court err in authorizing an amendment to the indictment and refusing Craig's request for a ten-day delay?
2. Did the court err in overruling Craig's motion for directed verdict?
3. Did Craig's attorney provide ineffective legal assistance?
On February 19, 2002, the State moved to amend the indictment to change the name of the county from which one of the prior indictments originated, Titus County, to Franklin County. At this point the jury had been selected and sworn. All other parts of the indictment, including the date, cause number, and the offense were identical. The trial court changed the indictment by interlining Franklin and crossing out Titus. Craig requested an additional ten days due to the amendment, which the court overruled. The trial began on February 21, 2002.
Article I, Section 10 of the Texas Constitution guarantees to an accused the right to be informed of the nature and cause of the accusation against him or her by a charging instrument. Tex. Const. art. I, § 10; Voelkel v. State, 501 S.W.2d 313, 314-15 (Tex. Crim. App. 1973). Article 28.10 of the Texas Code of Criminal Procedure provides:
(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. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.
(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object . . . .
Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 1989). Article 28.10 can be summarized as requiring ten days' notice for amendments before trial and prohibiting any amendments over objections which occur after the trial commences. The issue before us is whether the trial court violated Article 28.10 in amending the indictment on the nineteenth and, if so, whether the error requires reversal.
The State contends the trial court did not violate Article 28.10 because the article did not apply to the amendment in question. The State proposes two theories for its contention that Article 28.10 does not apply. First, it argues that the paragraph in question was not required to be included in the indictment and, thus, Article 28.10 does not apply. Second, the State argues that Article 28.10 does not apply because the alteration was simply a "ministerial act" and no "matter of substance" was changed.
The State contends Article 28.10 does not apply because the amended paragraph was an enhancement paragraph, which is not required to be alleged in the indictment. The State claims it included the paragraph in the indictment only for the purpose of giving notice to the defendant. Typically, enhancement allegations need not be included in an indictment. Enhancements under Section 12.42 of the Texas Penal Code do not need to be included in the indictment. Tex. Pen. Code Ann. § 12.42 (Vernon 2003); Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App. 1997). A defendant is entitled to notice of prior convictions to be used for enhancement under Section 12.42. Brooks, 957 S.W.2d at 33-34. The amended paragraph, however, involves an enhancement under Section 49.09 of the Texas Penal Code, which is used to increase the charge to a third-degree felony. Prior convictions used under Section 49.09 must be alleged in the indictment and proven at the guilt/innocence stage of the trial. Weaver v. State, 87 S.W.3d 557, 560 (Tex. Crim. App. 2002); see Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). These prior convictions, referred to as "jurisdictional paragraphs," are necessary for the offense of felony DWI under Section 49.09 of the Texas Penal Code and, thus, unlike enhancements under Section 12.42, must be alleged in the indictment.
In the alternative, the State argues Article 28.10 does not apply because the alteration was simply a "ministerial act" and no "matter of substance" was changed. In support of this contention, it cites a case where the correction of a mistake in a name was deemed a "ministerial act," rather than an amendment under Article 28.10. See Wynn v. State, 864 S.W.2d 539, 540 (Tex. Crim. App. 1993). We do not believe this case controls because the correction of a name in an indictment is governed by Article 26.08 of the Texas Code of Criminal Procedure rather than Article 28.10. However, not all changes to an indictment are considered amendments for the purposes of Article 28.10. An "amendment" is an alteration of the indictment which affects the substance of the indictment. Bates v. State, 15 S.W.3d 155, 161 (Tex. App.-Texarkana 2000, pet. ref'd). An alteration which does not affect the substance of an indictment is an "abandonment." Id.
Eastep recognized three situations in which altering the charging instrument constitutes an abandonment, rather than an amendment: 1) abandonment of one or more of the alternative means by which an offense may be committed; 2) abandonment of an allegation if the effect is to reduce the prosecution to a lesser included offense; and 3) abandonment of surplusage.(2)
Abandonments do not invoke the requirements of Article 28.10. Id. However, changing the name of the county where the 1999 DWI conviction occurred does not fall under one of the Eastep abandonment exceptions. Thus, the change is an amendment and is subject to Article 28.10.
Was Article 28.10 violated?
According to Article 28.10, an amendment cannot be made over the objection of counsel once the trial has commenced. The trial commences for the purposes of Article 28.10 when jeopardy attaches. Westfall v. State, 970 S.W.2d 590, 592-93 (Tex. App.-Waco 1998, pet. ref'd); Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.-Corpus Christi 1994, no pet.). Jeopardy attaches when the jury has been impaneled and sworn. Westfall, 970 S.W.2d at 592; Hinojosa, 875 S.W.2d at 342. Immediately before the consideration of the pretrial amendments, the jury had already been selected, seated, sworn, admonished, and released for the day. At this point, jeopardy had already attached and, thus, for the purposes of Article 28.10, trial had begun. No amendment should have been allowed over Craig's objection.(3) The trial court erred in allowing the State to amend the name of the county.
Does the court perform a harmless error analysis?
Craig argues that harm analysis is inappropriate for a violation of Article 28.10 and cites Sodipo v. State, 815 S.W.2d 551, 555 (Tex. Crim. App. 1990) (op. on reh'g). The State responds that the error is...
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