Curry v. State
| Decision Date | 20 September 2000 |
| Citation | 30 S.W.3d 394 |
| Parties | (Tex.Crim.App. 2000) STEVEN TROY CURRY, Appellant v. THE STATE OF TEXAS NO. 1521-99 |
| Court | Texas Court of Criminal Appeals |
Keasler, J., delivered the opinion of the Court, in which McCormick, P.J., and Mansfield, Keller, Price, Holland, and Womack, J.J., joined.
The State's indictment of Steven Curry charged him with aggravated kidnapping "by using and threatening to use deadly force namely, a firearm." Over Curry's objection, the trial court permitted the State to delete this phrase after trial began. We must decide whether the trial court erred in allowing this deletion, and whether a sufficiency analysis should include this allegation. We conclude that once the State made this allegation, it had to prove it. We also conclude that the sufficiency of the evidence must be analyzed by using this phrase. And in conducting this analysis, we find the evidence sufficient to support Curry's conviction.
FACTS
Jetterson Williams testified that he was in the parking lot of the Spices Nightclub at about 8 p.m. when Curry and two other individuals "put" him into a car and drove off. He testified that he did not want to be in the car. While in the car, Curry beat him up with his hands. Curry twisted Williams' knee and arm and punched Williams in the head. Williams did not recall the length of the beating, whether the car made any stops, whether Curry said anything to him, or whether Curry got a gun at any time. Williams admitted previously telling the police that Curry had dragged him to the car, that Curry and the other men had beaten him with a brick, that Curry had tied him up and put a plastic bag over his face, that Curry had gone by a friend's house and obtained a .38 pistol, that Curry had exited the car at one point and Williams had heard three gunshots, and that Curry had forbidden Williams to tell to anyone what had happened.
Williams then testified that he never told the police that Curry had a gun, that Curry had gotten out of the car, or that Curry had threatened him. The State impeached Williams' credibility with the statements that he had previously made to the police. On cross-examination, Williams testified that he had no recollection of anything he said to anyone from the time he was thrown in the car until the time he awoke at the hospital. On re-direct examination, Williams admitted that, after the incident, he was placed in a holdover cell with Curry and had been concerned for his safety. Later in the trial, Williams got back on the stand and testified that Curry was not the person who kidnapped him and beat him up.
Williams was found by emergency medical technicians in a warehouse district. He was tied up with his pants around his ankles and was shaking uncontrollably. He was hospitalized for a dislocated knee and elbow, trauma to the head, and gross instability.
Tracy Jacobs testified that he saw Curry that night getting out of a similar-looking car and holding a gun. Curry shot and killed another individual, then returned to the car and the car drove off. Other testimony revealed that Curry's home had been burglarized the day before. The burglars had broken into his home by breaking down the door. Curry suspected that Williams was responsible for the burglary. Williams was a petty thief who routinely sold stolen jewelry at the Spices Club. He had several theft convictions.
Curry presented an alibi defense. John McCalep testified that he was working on Curry's front door from about 5 p.m. to about 11 p.m. that night. He testified that Curry was either in the apartment or nearby the entire time. Curry testified similarly.
The State refuted that testimony with the testimony of Cynthia Floyd, Curry's girlfriend at the time. She testified that she was at the apartment the entire time while McCalep was working on the door, but Curry left the apartment around 7 or 8 p.m. and never returned. She also testified that Curry told her to say that she was with him that evening.
PROCEDURAL BACKGROUND
The State indicted Curry for aggravated kidnapping. The indictment alleged that Curry "abduct[ed] Jetterson Williams . . . without his consent, with intent to prevent his liberation by using and threatening to use deadly force namely, a firearm, on [Williams] and with intent to inflict bodily injury on [Williams] and to terrorize [Williams] and to violate and abuse [Williams] sexually."
After the State rested its case, it moved to delete the phrase "by using and threatening to use deadly force namely, a firearm, on [Williams]" from the indictment. The trial court granted that motion over Curry's objection.
On appeal, the court of appeals held that it was error under Art. 28.10(b) for the trial court to grant the State's motion, and the error harmed Curry.1 On Curry's sufficiency point, the court of appeals held that the evidence was sufficient to convict.2 Curry filed a petition for discretionary review in which he argued that the court of appeals erred in its sufficiency analysis by failing to apply Malik v. State.3 We agreed and remanded the case to the court of appeals to reconsider Curry's sufficiency point in light of Malik.4
On remand, the court of appeals again found that the trial court's ruling on the State's motion to amend the indictment was error and the error harmed Curry.5 In its sufficiency analysis, the court concluded that it was "bound by the theory alleged in the indictment as amended."6 Since neither the jury charge given nor the amended indictment required proof that Curry used a firearm, the court found the evidence sufficient to support a conviction.7
Both the State and Curry filed petitions for discretionary review, from which we granted three grounds. The State, through the State Prosecuting Attorney and the Harris County District Attorney, contends that the phrase at issue in the indictment was surplusage, unnecessary to the indictment, so the State was permitted to "abandon" the language even after trial began. Curry argues that the court of appeals erred in its sufficiency analysis, because under Malik, the hypothetically correct jury charge would have included the phrase which the State was improperly allowed to abandon. Since the resolution of Curry's claim depends on our resolution of the State's contention, we address the State's claim first.
MODIFICATION OF INDICTMENT
Initially, we note that this case does not really involve an "abandonment" of an allegation. The State was permitted to delete its specific allegation regarding the type of abduction it sought to prove. As a result, it was permitted at trial to prove either definition of abduction. Rather than "losing" the allegation it deleted, it essentially retained that allegation and added the alternative definition of abduction, giving it the opportunity to prove either one in order to obtain a conviction. By deleting the words it did, the State actually broadened the scope of the offense alleged so as to include both theories of abduction. This is not like a standard "abandonment," which results in the State limiting its theories at trial. We will refer to the deletion of the phrase in this case as a modification of the indictment, rather than an abandonment.
Legal Background
Both the U.S. Constitution and the Texas Constitution guarantee an accused the right "to be informed of the nature and cause of the accusation" against him.8 The charging instrument must convey sufficient notice to allow the accused to prepare a defense.9 The Legislature has provided some guidance as to the adequacy of notice through Chapter 21 of the Code of Criminal Procedure.10 In particular, Art. 21.03 provides that "[e]verything should be stated in an indictment which is necessary to be proved."11
An indictment is generally sufficient to provide notice if it follows the statutory language.12 But tracking the language of the statute may be insufficient if the statutory language is not completely descriptive, so that more particularity is required to provide notice.13 For example, when a statute defines the manner or means of commission in several alternative ways, an indictment will fail for lack of specificity if it neglects to identify which of the statutory means it addresses.14 On the other hand, the State need not plead evidentiary matters.15
Not every list of alternatives in a statute will constitute a "manner or means" of committing the offense. For example, in Thomas v. State, we held the State need not allege which statutory definition of "owner" it seeks to prove in a theft case.16 We reached this conclusion because the term "owner" did not "go to an act or omission of the defendant."17 Similarly, we held the State need not further define the phrase "without effective consent," as that phrase did not constitute an act or omission on the part of the defendant.18 In contrast, in Ferguson v. State, we held the State did need to allege, in the face of a motion to quash, which method of delivery it sought to prove in a delivery of controlled substance prosecution.19 This was because delivery was "the act by the [defendant] which constitute[d] the criminal conduct."20
More recently, in Saathoff v. State,21 we extended the concept beyond acts and omissions to conduct.22 There, we held that the State must allege, in the face of a motion to quash, which type of intoxication it seeks to prove in a prosecution for involuntary manslaughter.23 The State argued that intoxication was not an act or omission, but merely a condition. We held the State interpreted the concept of "act or omission" too narrowly.24 We concluded that "[i]f the prohibited conduct is statutorily defined to include more than one manner or means of commission," the State must allege, upon timely request, which manner or means it seeks to establish.25
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