Hillin v. State

• Decision Date: 01 May 1991
• Docket Number: 1434-89,Nos. 1433-89,s. 1433-89
• Citation: 808 S.W.2d 486
• Parties: James W. HILLIN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 486

808 S.W.2d 486

James W. HILLIN, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 1433-89, 1434-89.

Court of Criminal Appeals of Texas En Banc.

May 1, 1991.

William F. Carter, Madisonville, for appellant.

Mark Patterson, Asst. Sp. Prosecutor, Huntsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

A jury convicted appellant of aggravated assault on a correctional officer, alleged to have been committed on March 1, 1986, in two separate indictments pursuant to V.T.C.A. Penal Code, § 22.02(a)(2), and the trial court assessed punishment at eight years imprisonment for each conviction on February 1, 1987. The Tenth Court of Appeals affirmed each conviction in a single opinion, Hillin v. State, Nos. 10-87-108-CR and 10-87-109-CR (Tex.App.--Waco, delivered September 28, 1989). In the court of appeals, as well as in the trial court, the appellant assailed the State's amendment to both indictments as being in contravention of the dictates of Article 28.10, V.A.C.C.P. The court of appeals rejected all of appellant's contentions and affirmed appellant's convictions. We granted review to determine the correctness of their decision.

The material portion of each indictment alleged that the appellant committed the offense of aggravated assault on a correctional officer by knowingly and intentionally causing the bodily injury to the victim officer "... by throwing porcelain." During the first day of the trial on the merits, appellant directly attacked the allegation which described the substance utilized to commit the aggravated assault. In direct response to appellant's strategy on the second day of trial, the State sought to amend the indictments by alleging that the manner and means used to accomplish the aggravated assault was "by throwing a commode." The trial court granted the State's motion to amend and amended the indictments by delineation. To the amendment appellant interposed a timely objection in accordance with the provisions of Article 28.10, supra. The full text of Article 28.10, supra, reads:

(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.

(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

In the court of appeals, appellant assailed the trial court in permitting the State to amend the indictment after the trial had commenced on the merits. First, he argued that under Article 28.10(b), such an amendment was absolutely prohibited once the trial on the merits had commenced and the defendant objected. Second, notwithstanding the absolute prohibition in Section (b), appellant was, at the very least, entitled to a ten day continuance to respond to the amended indictment as mandated by Section (a). Finally, appellant asserted that under Section (c), the trial court amendment had the effect of prejudicing his substantial rights.

In answer to all of appellant's claims, the court of appeals opined:

In the cases before us the amendments of the indictment after trial had commenced did not prejudice appellant's substantial rights. He still faced trial for the same offenses against the same victims. The record does not show any substantial harm to appellant by the amendments. However, failing to grant appellant ten days to respond violated the mandatory language of article 28.10(a). Because the trial court erred in failing to grant appellant ten days to respond we must look to the standard for harmful error, Rule 81(b)(2), Tex.Rules App.Proc., supra, to determine whether or not the error contributed to the conviction or punishment.

Evidence at the hearing on appellant's motion for new trial showed that his defense was that the toilet pieces he was accused of throwing were not "porcelain". Experts hired by appellant had examined the toilets at the prison unit and concluded that the toilet appellant was accused of throwing was not porcelain. They were prepared to testify at the trial. Because the only defense considered by appellant prior to trial was that the toilet was not porcelain, a good defense at that time, further investigation was required to seek new defenses following the changes in the indictments. Appellant's counsel, who was also his trial counsel, argued at the hearing on the motion for new trial, as he does here, that without the ten days to seek new defenses appellant received ineffective counsel at trial that contributed to his conviction. However, there was no evidence adduced at the trial or at the posttrial hearing that any other defense would have been developed if appellant's request for the ten days provided in article 28.10(a) had been granted. Thus, we conclude from the record beyond a reasonable doubt that the denial of the ten days did not contribute to appellant's conviction or punishment. This harm analysis and the conclusion of no harm apply equally to appellant's asserted violation of article 28.10(b)....

The entire analysis performed by the court of appeals in respect to Article 28.10 and its three sections should be and is hereby rejected. Section (a) of Article 28.10, supra, specifically deals with the amendment of the indictment "at any time before the date the trial on the merits commences." It would therefore appear that by the clear and precise language of this provision that it is in lock-step with Article 1.14(b), V.A.C.C.P., which requires that the defendant object to any defect or irregularity in the indictment before the date on which the trial on the merits commences. Put simply, the State amended the indictment in this case on the second day of the trial and during its case in chief, what transpired was not before the trial commenced; therefore Section (a) is totally inapplicable.

The applicable provision of Article 28.10, supra, under these circumstances is Section (b). This provision allows the State to amend the indictment after the trial on the merits has commenced unless the defendant has interposed a timely objection to the attempted amendment. The language and wording of Article 28.10(b), supra, is clear and unambiguous and if the defendant, after trial on the merits has commenced, interposes a timely objection to the State's proposed amendment, be it to form or substance, such amendment is absolutely prohibited. It appears the court of appeals was of the opinion that in regard to Section (b) after a trial amendment, a "substantial rights" analysis was to be performed pursuant to Section (c) which prohibits the State from amending the indictment if such amendment transformed the allegations to additional or different offenses or prejudiced the substantial rights of the defendant. We do not find such reasoning persuasive.

Article 28.10(c) prohibits the State from amending the indictment over a defense objection if such amendment results in an additional or different offense or if it adversely prejudices the substantial rights of the defendant. Section (c) makes no mention as to whether it applies to Sections (a) and (b) or only to one of the preceding sections. We conclude that an analysis pursuant to Section (c) could only be logically applied to an indictment amendment which falls under the purview of Section (a). Close scrutiny to the wording reflects that provisions of Section (c) are similar to preexisting law which was in effect prior to the 1985 amendments of Article V, § 12 of the Texas Constitution and the implementing legislation which amended Article 28.10, supra, which set out the procedure for amending indictments. ¹ For instance, this Court has long held that the State could not amend the indictment to such an extent that an amended indictment charges the commission of a different offense under the penal statutes as was charged in the original indictment. See Bowie v. State, 401 S.W.2d 829 (Tex.Cr.App.1966). Additionally, this Court, in construing Article 21.19, V.A.C.C.P., ² has held that notice defects in indictments are matters of form and if an indictment contains allegations regarding all essential elements of the offense and the defendant seeks additional factual allegations, then the defect raised is one of form. See Janecka v. State, 739 S.W.2d 813, 819 (Tex.Cr.App.1987). In order to prejudice the substantial rights of the defendant such defect must be to such a degree that the accusation fails to give adequate notice to the defendant so as to allow him to prepare a defense. ³ As stated in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), the object of the requirement of notice from the accusation is to secure the defendant's right to know the nature of the charges against him. The point being that the addition of Section (c) made no substantial change to existing indictment law unless the section would apply to Section (b) which permits trial amendments.

At first blush one might suspect that the provisions of Section (c) are applicable to both Sections (a) and (b) because of the structure of Article 28.10. However, as previously stated, a defendant under the clear language of Section (b) has an absolute veto power over proposed amendments after trial on the merits has commenced. Therefore, we conclude that the court of appeals was erroneous in its determination under the facts of this case that the harmless...