Eastep v. State

• Citation: 941 S.W.2d 130
• Decision Date: 05 February 1997
• Docket Number: No. 368-96,368-96
• Parties: Daniel Joe EASTEP, Appellant, v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 130

941 S.W.2d 130

Daniel Joe EASTEP, Appellant, v. The STATE of Texas.

No. 368-96.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 5, 1997.

Martin Lenoir, Dallas, for appellant.

Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of theft of property with an aggregate value of $20,000 or more. Tex. Penal Code Ann. § 31.09. The jury assessed punishment at five years confinement and a $10,000.00 fine. The Court of Appeals affirmed. Eastep v. State, 919 S.W.2d 151 (Tex.App.--Dallas 1996). We granted appellant's petition for discretionary review to determine whether the State amended the indictment in violation of Tex.Code Crim. Proc. Ann. art. 28.10(a). We will affirm.

I.

The Grand Jury returned an indictment charging appellant with theft committed pursuant to a continuing course of conduct involving fifty separate appropriations. Appellant filed a "Motion to Quash" the indictment, contending nine of the fifty appropriations were beyond the statute of limitations. The State filed a "Motion to Amend the Indictment," deleting the appropriations of which appellant had complained, and the trial judge granted the State's motion without notice to appellant. Eastep, 919 S.W.2d at 152. Appellant learned of the State's motion and filed a "Motion to Quash the Amendment," contending he was entitled to notice of the amendment under Tex.Code Crim. Proc. Ann. art. 28.10. The trial judge denied appellant's motion. The Court of Appeals found a violation of art. 28.10 but found the error harmless. Eastep, 919 S.W.2d at 153.

II.

Article I, § 10 of the Texas Constitution guarantees an accused the right to be informed of the nature and cause of the accusation against him in a criminal prosecution. It has long been held that this information must come from the face of the charging instrument. Voelkel v. State, 501 S.W.2d 313, 315 (Tex.Cr.App.1973). This fundamental guarantee enables the accused to learn in advance of trial and with reasonable certainty with what he is being charged so that he can prepare his defense. Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975).

In Ward v. State, 829 S.W.2d 787 (Tex.Cr.App.1992), the State filed a motion to amend the indictment to change the name of the complainant. The trial judge granted the motion. However, because the face of the indictment was not actually altered, we held the indictment was never in fact amended. Id. at 795. In order to ensure the accused of his constitutional right to be informed, from the face of the charging instrument, of the nature and cause of the accusation against him, there must be an actual alteration to the charging instrument. Id. at 794. In sum, the amendment is the actual alteration of the charging instrument. Id. at 793; see also, Rent v. State, 838 S.W.2d 548, 551 (Tex.Cr.App.1992); McHenry v. State, 829 S.W.2d 803, 804 (Tex.Cr.App.1992); Montoya v. State, 841 S.W.2d 419, 423 (Tex.App.--Dallas 1992); McFarland v. State, 834 S.W.2d 481, 483-484 (Tex.App.--Corpus Christi 1992) and, Harris v. State, 866 S.W.2d 316, 324 (Tex.App.--San Antonio 1993).

III.

A.

While Ward dealt with the manner in which a charging instrument is amended, it did not otherwise define an amendment. This definition is important because not every alteration to the face of the charging instrument is an amendment. In certain situations such an alteration is an abandonment. In this case it is necessary to distinguish between an "amendment" and an "abandonment."

An amendment is an alteration to the face of the charging instrument which affects the substance of the charging instrument. For example, in Sodipo v. State, 815 S.W.2d 551, 555 (Tex.Cr.App.1990), we found the alteration of a cause number in an enhancement paragraph was an amendment. In Hillin v. State, 808 S.W.2d 486, 487 (Tex.Cr.App.1991), the alteration of a weapon in an aggravated assault indictment was an amendment. ¹ In Beebe v. State, 811 S.W.2d 604, 606 (Tex.Cr.App.1991), the addition of the manner and means of committing an offense was an amendment. ² In Garcia v. State, 928 S.W.2d 666 (Tex.App.--Corpus Christi 1996) the alteration of the alleged date was an amendment. ³ In McCoy v. State, 889 S.W.2d 354, 358 (Tex.App.--Houston [14th Dist.] 1994), the addition of a complainant was an amendment. The Court of Appeals in Hilton v. State, 879 S.W.2d 74, 78-79 (Tex.App.--Houston [14th Dist.] 1994), found the alteration of the indictment from "two facsimile machines" to "one facsimile machine" was an amendment. ⁴ In Hinojosa v. State, 875 S.W.2d 339, 341 (Tex.App.--Corpus Christi 1994), deleting "delivery" and replacing it with "possession" was an amendment.

In these situations the alterations to the face of the charging instrument were amendments and the requirements of arts. 28.10 and 28.11 were invoked. ⁵

B.

Conversely, an abandonment, even though accomplished by an actual physical alteration to the face of the charging instrument, does not affect its substance. We have recognized three situations where an alteration to the face of the charging instrument is an abandonment.

i.

Ways or means of committing an offense.

When a statute provides multiple means for the commission of an offense and those means are subject to the same punishment, the State may plead them conjunctively. However, the State is required to prove only one of the alleged means in order to support the conviction. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Cr.App.1991); and, Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Cr.App.1982)(opinion on rehearing). Therefore the State may abandon one or more of the alleged means.

For example, in Garcia v. State, 537 S.W.2d 930, 932 (Tex.Cr.App.1976), the State charged the defendant with escaping from custody after being "charged with and convicted of" a felony. The State abandoned "and convicted of." Because the alteration deleted an alternative means of committing the charged offense, we held the alteration was an abandonment, not an amendment. Id. at 933. See also, Yates v. State, 766 S.W.2d 286, 290 (Tex.App.--Dallas 1989); ⁶ Holder v. State, 837 S.W.2d 802, 806 (Tex.App.--Austin 1992); Ortiz Salazar v. State, 687 S.W.2d 502 (Tex.App.--Dallas 1985); and, Tooke v. State, 642 S.W.2d 514, 517 (Tex.App.--Houston [14th Dist.] 1982).

The face of the charging instrument provides the defendant with notice as to the means the State intends to prove the alleged offense. The abandonment of an alternative means does not change the alleged offense, it merely limits the State to the remaining means. Garcia, 537 S.W.2d at 932. Because the defendant is already on notice of all the alleged means for the commission of the alleged offense, the abandonment of an alternative means does not affect the defendant's notice or his ability to prepare his defense to the allegations within the charging instrument.

ii.

Trial of a lesser included offense.

Additionally, the State may alter the charging instrument if the effect of the alteration reduces the prosecution to a lesser included offense. Leonard v. State, 481 S.W.2d 117, 118 (Tex.Cr.App.1972). In Allison v. State, 618 S.W.2d 763, 764 (Tex.Cr.App.1981), the alteration to the charging instrument resulted in the original offense charged, burglary of a habitation, being reduced to burglary of a building. We held this type of alteration was an abandonment, not an amendment because:

... The greater offense ... necessarily includes all the lesser included offenses whether each of their constituent elements are alleged in the wording of the indictment on the greater offense or not.

Id., 618 S.W.2d at 764; see also, Thomas v. State, 451 S.W.2d 907, 909 (Tex.Cr.App.1970); White v. State, 890 S.W.2d 69, 72 (Tex.Cr.App.1994) (Baird, J., concurring); Babers v. State, 834 S.W.2d 467, 470 (Tex.App.--Houston [14th Dist.] 1992); Stockton v. State, 756 S.W.2d 873, 875 (Tex.App.--Austin 1988); Ruiz Avalos v. State, 764 S.W.2d 910 (Tex.App.--Corpus Christi 1989); and, Rickman v. State, 677 S.W.2d 271 (Tex.App.--Fort Worth 1984).

iii.

Surplusage.

Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument. Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973). In Whetstone v. State, 786 S.W.2d 361, 364 (Tex.Cr.App.1990), we held:

... The general rule is that allegations 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.

For example, in Malazzo v. State, 165 Tex.Crim. 441, 308 S.W.2d 29, 31 (App.1957), we held:

Where the value of property alleged to have been stolen does not determine whether the offense is a felony or a misdemeanor, nor control the punishment applicable to the theft, the allegation as to its value is not descriptive of the offense and need not be proven.

Therefore, the charging instrument may be altered to delete language which is not descriptive of what is legally essential to the validity of the indictment. ⁷ White, 890 S.W.2d at 72 (Baird, J., concurring)(citing Burrell v. State, 526 S.W.2d 799, 802 (Tex.Cr.App.1975)); see also, Franklin v. State, 659 S.W.2d 831, 833 (Tex.Cr.App.1983); Windham v. State, 638 S.W.2d 486, 487 (Tex.Cr.App.1982); Cohen v. State, 479 S.W.2d 950, 951 (Tex.Cr.App.1972). In these situations, the alteration is an abandonment, not an amendment.

iv.

We have recognized three situations where altering the charging instrument constitutes an abandonment: (1) abandonment of one or more of the alternative means in which an offense may be committed, Garcia, 537 S.W.2d at 932-933; (2) abandonment of an allegation in the charging instrument if the effect of such abandonment is to reduce the prosecution to a lesser included offense, Leonard, 481 S.W.2d at 118...