Flowers v. State

• Decision Date: 22 December 1994
• Docket Number: No. 08-88-00352-CR,08-88-00352-CR
• Citation: 890 S.W.2d 906
• Parties: Dearl FLOWERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 906

890 S.W.2d 906

Dearl FLOWERS, Appellant, v. The STATE of Texas, Appellee.

No. 08-88-00352-CR.

Court of Appeals of Texas El Paso.

Dec. 22, 1994.

Rehearing Overruled Feb. 8, 1995.

G. David Smith, Dallas, Charles Louis Roberts, El Paso, for appellant.

John W. Smith, Dist. Atty., Odessa, for appellee.

Before BARAJAS, C.J., and KOEHLER and LARSEN, JJ.

OPINION

KOEHLER, Justice.

Dearl Flowers appeals from a conviction for the offense of theft of oilfield equipment. See Acts 1985, 69th Leg., R.S., ch. 599, § 1, 1985 Tex.Gen.Laws 2244, 2244-46, amended by Acts 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex.Gen.Laws 3586, 3638 [former TEX.PENAL CODE § 31.03(e)(5)(A)(ii) ]. ¹ Upon a finding of guilt, the jury assessed punishment at imprisonment for a term of 4 years. This Court has twice reversed Appellant's conviction; the Court of Criminal Appeals has twice reversed the decisions of this Court and remanded the case for consideration of Appellant's remaining Points of Error Nos. Four, Six, Eight, Eleven, Twelve, Thirteen, and Fourteen. See Flowers v. State, 785 S.W.2d 890 (Tex.App.--El Paso 1990), rev'd, 815 S.W.2d 724 (Tex.Crim.App.1991); Flowers v. State, 824 S.W.2d 801 (Tex.App.--El Paso 1992), rev'd, 843 S.W.2d 38 (Tex.Crim.App.1992). We affirm the trial court's judgment.

I. AMENDMENT OF THE INDICTMENT.

In his fourth point of error, Appellant contends that his conviction is invalid because the trial court failed to physically alter the indictment after granting the State's motion to amend prior to trial. ² See Ward v. State, 829 S.W.2d 787, 794-95 (Tex.Crim.App.1992) (in order to effectively amend indictment, any changes to the indictment must be made by physical alteration on its face). Appellant makes three different arguments with regard to the effect of the failure to effectively amend the indictment: (1) that there was a fatal variance between the ownership allegation contained in the indictment and the proof at trial; (2) that he was deprived of due process and notice by being prosecuted under a document that was not a valid charging instrument; and (3) that the trial court erred in presenting a charge to the jury which varied from the indictment.

The original indictment alleged, in pertinent part, that Appellant, on or about January 6, 1988, did then and there:

"[I]ntentionally and knowingly did unlawfully appropriate property, namely ninety-two (92) joints of two and three eighths (2 3/8) inch upset tubing, said property belonging to the State of Texas, hereinafter styled the Complainant and in the custody of a law enforcement agency, namely, the Texas Department of Public Safety, and expressly represented by a law enforcement officer, Special Texas Ranger Dick Chenault to the Defendant as being stolen, and said property being equipment designed for use in exploration and production of natural gas or crude petroleum oil, with intent to deprive the Complainant of the property,...."

The order purportedly amending the indictment alleged that Appellant, on or about January 6, 1988, did then and there:

"intentionally and knowingly [did] unlawfully appropriate property, namely ninety-two (92) joints of two and three eighths (2 3/8) inch upset tubing, said property [belonging to the State of Texas] owned by George Autrey, hereinafter styled the Complainant and in the custody of a law enforcement agency, namely, the Texas Department of Public Safety, and [expressly] explicitly represented by a law enforcement officer, Special Texas Ranger Dick Chenault to the Defendant as being stolen, and the Defendant did appropriate the property believing it was stolen by another, and said property being equipment designed for use in exploration and production of natural gas or crude petroleum oil, with intent to deprive the Complainant of the property,...."

The brackets reflect the words deleted by the attempted amendment while the underlined portions reflect the additions sought to be made by the amendment.

The jury instructions and the application paragraph of the charge set forth the allegations contained in the State's motion to amend the indictment rather than the allegations found in the original indictment.

1. Sufficiency of the evidence

The State, citing Montoya v. State, 841 S.W.2d 419 (Tex.App.--Dallas 1992, pet. granted) ³ and McHenry v. State, 841 S.W.2d 455 (Tex.App.--Dallas 1992, pet. granted), ⁴ argues that we must measure sufficiency of the evidence against the charge given. However, since the Dallas Court of Appeals decided these cases, the Court of Criminal Appeals announced new rules for measuring sufficiency of the evidence when the charge varies from the indictment. Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App.1994) (not yet reported). Although Fisher did not involve an ineffective amendment of the indictment, its rules govern whether we may measure sufficiency of the evidence against the charge given. We find the sufficiency analyses employed in Montoya and McHenry questionable in light of Fisher, and we decline to follow them here.

The indictment in Fisher alleged that the defendant delivered more than 28 grams but less than 400 grams of amphetamine. However, the allegation concerning aggregate weight did not specify that the weight alleged included "adulterants and dilutants". As such, the State was required to prove that the controlled substance, in its pure form, weighed the amount alleged. See Farris v. State, 811 S.W.2d 577 (Tex.Crim.App.1990); Reeves v. State, 806 S.W.2d 540 (Tex.Crim.App.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). Nevertheless, over the defendant's objection, the charge permitted the jury to consider any adulterants or dilutants in determining whether the defendant had delivered more than 28 grams of amphetamine. See Fisher, 887 S.W.2d at 51-52. The evidence at trial showed that the amphetamine weighed a total of 59.32 grams, but because it was only 31 percent pure, just 18.38 grams were pure amphetamine. The Fort Worth Court of Appeals found that the jury instruction permitted the jury to convict Appellant on a theory not alleged in the indictment and held that the evidence was insufficient to convict Appellant of the offense alleged in the indictment. Id. at 52. The issue presented on discretionary review to the Court of Criminal Appeals was whether the Fort Worth Court of Appeals erred in measuring sufficiency against the indictment.

The Court of Criminal Appeals began its analysis by noting that our concept of reviewing sufficiency of the evidence is inextricably bound with due process principles of notice and opportunity to defend. Fisher, 887 S.W.2d at 52-53. It was established in Benson v. State that sufficiency of the evidence must be measured against the charge given. See Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982) (opinion on State's second motion for reh'g). However, by stating in Benson that a reviewing court must compare "the evidence to the indictment as incorporated into the charge," the Court meant an indictment that has been properly incorporated into the instruction. Fisher, 887 S.W.2d at 57. It would violate due process for a reviewing court to analyze sufficiency based upon an instruction broadening the basis upon which the State could obtain a conviction under a facially valid indictment. Fisher, at 57.

The Court held that where the indictment facially alleges a complete offense (either initially or after amendment), the State is bound by the theory alleged in the indictment, as is the reviewing court in its sufficiency analysis. Fisher, at 56-57. If the instruction broadens the basis upon which the State can obtain a conviction, the reviewing court shall review sufficiency by comparing the evidence to the indictment as properly incorporated into the instruction, disregarding any language contained in the instruction which expands upon the theory set forth in the indictment. Fisher, at 57-58. The reviewing court may only disregard matters contained in the instruction that would normally have to be pled in the indictment, but were not. Fisher, at 57-58. A reviewing court may also measure sufficiency of the evidence against the charge given where the indictment does not on its face allege a complete offense, but the defendant does not object to the indictment, and the charge properly alleges all of the elements of the offense as determined by looking to the defective indictment and the controlling penal provision. Fisher, 887 S.W.2d at 57-58.

Following these rules, the Court found that the indictment was facially complete, but that the additional phrase "excluding adulterants or dilutants" contained in the jury charge broadened the basis upon which the State could obtain a conviction. Fisher, 887 S.W.2d at 60. Accordingly, the Court excluded the improperly added phrase from its sufficiency review and found the evidence insufficient. Fisher, 887 S.W.2d at 60. The Court rejected the State's contention that the case should be remanded for a new trial due to trial error since the State failed to object to the erroneous charge. Id. at 60-61, n. 17.

Applying Fisher to this case, we must first determine whether the indictment was facially complete. In order to charge the offense of theft, the State need only allege that the person (1) "unlawfully" appropriated property (2) with the intent to deprive the owner of the property. Ex parte Luna, 784 S.W.2d 369, 371 (Tex.Crim.App.1990); TEX.PENAL CODE ANN. § 31.03(a) (Vernon 1994). ⁵

The indictment, which stated that Appellant "unlawfully appropriated property" adequately alleged the first element set forth above. The fact that the indictment went further than required and also alleged a portion of the Section 31.03(b)(3) definition of "appropriate" ⁶ does not render it incomplete since that definition is not an element of theft which must be alleged in the indictment. TEX.PENAL CODE ANN. § 31.03(b)(3) (Vernon 1994); see Flowers II, 815 S.W.2d at...