Dawson v. State, No. 10-01-202-CR (Tex. App. 12/31/2003)
| Decision Date | 31 December 2003 |
| Docket Number | No. 10-01-202-CR,10-01-202-CR |
| Parties | ANTHONY LAROY DAWSON, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal From the 82nd District Court, Falls County, Texas, Trial Court # 7497.
Affirmed.
Before Chief Justice GRAY and Justice VANCE (former Chief Justice DAVIS not participating)2
A jury convicted Anthony Laroy Dawson of aggravated assault and assessed his punishment at ten years' imprisonment and a $7,500 fine. Dawson presents five issues in which he contends: (1) the evidence is factually insufficient to prove the allegations of the indictment; (2) the trial court erred by permitting the State to amend the indictment at trial over his objection; (3) he received ineffective assistance of counsel because trial counsel failed to object to evidence and argument by the State regarding his post-arrest silence; (4) the court erred by entering a deadly weapon finding in the judgment; and (5) the court erred by admitting evidence of his juvenile record during the punishment phase of trial.
The record shows that Dawson and the complainant Andrew Davis got into a verbal altercation on the date in question. According to Davis, Dawson began to walk away then turned "quickly" and began shooting at him with a .25 caliber pistol. As Davis ran away, he recalled that Dawson fired about five shots. Davis was hit in the genital area. Dawson's witnesses on the other hand testified that Dawson shot Davis only after Davis threatened to hit him with a liquor bottle. The jury rejected Dawson's self-defense claim and convicted him of shooting Davis.
Dawson alleges in his second issue that the trial court erroneously permitted the State to amend the indictment at trial. The State responds that the "amendments" at issue are actually allegations which it abandoned.
Article 28.10 of the Code of Criminal Procedure prohibits the amendment of an indictment at trial if the defendant objects. Tex. Code Crim. Proc. Ann. art. 28.10(b) (Vernon 1989). However, the State may abandon certain allegations in an indictment at trial without violating this prohibition. Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997), overruled in part on other grounds by Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000); Hardie v. State, 79 S.W.3d 625, 632 n.1 (Tex. App.—Waco 2002, pet. ref'd); Moore v. State, 54 S.W.3d 529, 546-47 (Tex. App.—Fort Worth 2001, pet. ref'd). Thus, the State may abandon: (1) the allegation of one or more alternative means of committing an offense; (2) an allegation which, if abandoned, reduces the prosecution to a lesser-included offense; or (3) surplusage. Id.
An amendment to an indictment must be memorialized by some writing in the trial court's file. See Riney, 28 S.W.3d at 565-66; Aguilera v. State, 75 S.W.3d 60, 63-64 (Tex. App.—San Antonio 2002, pet. ref'd); Hoitt v. State, 30 S.W.3d 670, 674 (Tex. App.—Texarkana 2000, pet. ref'd). Conversely, no writing is required to accomplish an abandonment. See Proctor v. State, 841 S.W.2d 1, 2, 4 (Tex. Crim. App. 1992).
The indictment presented by the grand jury alleges in pertinent part that Dawson did:
intentionally, knowingly or recklessly cause serious bodily injury to another, namely: Andrew Lee Davis by shooting Andrew Lee Davis in the groin; and, Anthony Laroy Dawson did then and there use and exhibit a deadly weapon, namely: . 25 caliber pistol, during the commission of said offense, and said weapon, in the manner of its use or intended use, was capable of causing serious bodily injury.
The State filed a pretrial motion to amend the indictment in three respects: (1) by striking the phrase "in the groin"; (2) by striking the word "serious" in describing the extent of Davis's injury; and (3) by replacing the phrase ". 25 caliber pistol" with the phrase "a firearm." At the conclusion of a hearing on the State's motion, the court signed an order granting the motion, nineteen days before trial.
On the second day of trial and before the reading of the indictment, Dawson advised the court that the State had not perfected its amendment of the indictment prior to the commencement of voir dire. The court had altered the indictment during the course of voir dire by interlining the previously approved amendments. Dawson asked the court to require the State to proceed on the original indictment, arguing that the amendment was not perfected in a timely fashion.
The original indictment alleged two different statutory means by which Dawson committed the offense: (1) by causing serious bodily injury to Davis; and (2) by using or exhibiting a deadly weapon during the assault. See TEX. PEN. CODE ANN. § 22.02(a) (Vernon 2003). By deleting the word "serious" in describing the extent of Davis's injury, the State effectively abandoned one of the alternative means of committing the offense originally alleged. No formal amendment was required to accomplish this. See Eastep, 941 S.W.2d at 135; Hardie, 79 S.W.3d at 632; Moore, 54 S.W.3d at 546-47.
"[A]llegations which are 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 surplusage." Gollihar v. State, 46 S.W.3d 243, 249-50 (Tex. Crim. App. 2001) (quoting Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990)). However, the Court in Gollihar "overrule[d] the surplusage rule." Id. at 256-57. This raises the question whether the third category of allegations which the State can abandon (i.e., "surplusage") under Eastep is still viable.
In Gollihar, the Court addressed the issue of whether the evidence presented at trial was sufficient to sustain the defendant's conviction in light of a variance between the allegations of the indictment and the proof at trial. Id. Two courts of appeals have thus concluded that the Court in Gollihar overruled the surplusage rule only insofar as it impacts a sufficiency-of-evidence analysis. Hall v. State, 62 S.W.3d 918, 920 (Tex. App.—Dallas 2001, pet. ref'd); Moore, 54 S.W.3d at 547. We agree with this analysis.
An indictment must allege "everything . . . which is necessary to be proved." TEX. CODE CRIM. PROC. ANN. art. 21.03 (Vernon 1989). Thus, an indictment must allege the elements of the offense charged. Weaver v. State, 87 S.W.3d 557, 560 (Tex. Crim. App. 2002). The elements of the offense are: "the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense." Id. at 561 (citing TEX. PEN. CODE ANN. § 1.07(a)(22) (Vernon 2003)).
Here, the "required result" is that Davis suffered bodily injury. The rule has long obtained that the indictment need not allege what part of the victim's body sustained the requisite injury. E.g., Mata v. State, 632 S.W.2d 355, 356 (Tex. Crim. App. 1982); McElroy v. State, 528 S.W.2d 831, 833 (Tex. Crim. App. 1975). Therefore, the allegation in the indictment as originally presented that Dawson shot Davis "in the groin" constitutes surplusage. See Gollihar, 46 S.W.3d at 249-50. Accordingly, the State could properly abandon this allegation without amending the indictment. See Eastep, 941 S.W.2d at 135; Hardie, 79 S.W.3d at 632; Moore, 54 S.W.3d at 546-47.
On the other hand, an allegation which describes a prohibited act or omission of the defendant is not surplusage. See Curry v. State, 30 S.W.3d 394, 398-99 (Tex. Crim. App. 2000). Here, the State had to prove that Dawson used or exhibited a deadly weapon when he caused bodily injury to Davis. To provide proper notice, an indictment must allege "a particular object or substance" which the State contends the defendant used or exhibited as a deadly weapon. See Narron v. State, 835 S.W.2d 642, 643 (Tex. Crim. App. 1992); Flenteroy v. State, 105 S.W.3d 702, 709 (Tex. App.—Austin 2003, pet. granted);1 Mata v. State, 939 S.W.2d 719, 727 (Tex. App.—Waco 1997, no pet.).
The indictment originally alleged that Dawson used or exhibited a ".25 caliber pistol" as a deadly weapon. The State's "motion to amend" sought to change this allegation to one that Dawson used or exhibited a "firearm." Contrary to the State's assertion, it did not seek to "abandon" the original allegation. Rather, it sought to replace it with another. This constitutes an "amendment." See Curry, 30 S.W.3d at 398.
The court improperly permitted the State to perfect this amendment at trial over Dawson's objection. See id. at 403; TEX. CODE CRIM. PROC. ANN. art. 28.10(b). We now must determine whether Dawson was harmed by this non-constitutional error. See Wright v. State, 28 S.W.3d 526, 531-32 (Tex. Crim. App. 2000); Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.—Fort Worth 2001, no pet.); Westfall v. State, 10 S.W.3d 85, 91 (Tex. App.—Waco 1999, no pet.). Such error does not require reversal unless it affected the defendant's "substantial rights." TEX. R. APP. P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002); Valenti, 49 S.W.3d at 598; Fowler v. State, 958 S.W.2d 853, 865 (Tex. App.—Waco 1997), aff'd, 991 S.W.2d 258 (Tex. Crim. App. 1999).
The essential purpose of the indictment is to provide an accused notice of the allegations against him. See Curry, 30 S.W.3d at 398. In this case, the original indictment put Dawson on notice that the State would attempt to prove that he shot Davis with a .25 caliber pistol. The State notified Dawson by pretrial motion that it intended to amend this allegation. The court granted the State's motion nineteen days before trial at the conclusion of a hearing in which Dawson's counsel participated. When Dawson's counsel objected to the attempted amendment to the indictment on the first day of trial, counsel conceded in a hearing outside the presence of the jury that he was prepared to proceed on the amended indictment and had...
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