Johnson v. State
| Decision Date | 16 January 2007 |
| Docket Number | No. 07-06-0191-CR.,07-06-0191-CR. |
| Citation | 214 S.W.3d 157 |
| Parties | Lindsey Dwain JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Arnold N. Miller, Miller, Johnston, Cross, Blakley & Harris, P.C., Amarillo, for appellant.
John L. Owen, Assistant District Attorney, Amarillo, for appellee.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Lindsey Dwain Johnson, a felon, appeals his conviction for a felon unlawfully possessing a firearm. His two issues on appeal concern the propriety of an oral amendment to an enhancement paragraph in the indictment. He contends that because the actual wording of the paragraph in the indictment was not physically altered, the amendment was invalid, and the trial court could not include the modification in its charge to the jury. We affirm the judgment.
Through enhancement paragraph one of the indictment, the State alleged that appellant had been convicted of felonious stealing in Missouri on May 15, 1991. The actual year of conviction, however, was 1981. The State sought to correct the error by orally moving to amend the paragraph and incorporate the true date. The motion was granted but nothing was written on the indictment itself, or a copy of it, memorializing the change.
Statute provides for the means of amending an indictment. See TEX.CODE CRIM. PROC. ANN. art. 28.10 (Vernon 2006) (). It is the purported failure to comply with that provision which underlies both of appellant's issues. Moreover, we note that authority holds an oral motion to amend coupled with the trial court's decision to grant it falls short of a valid amendment under art. 28.10. Instead, the two acts, when combined, simply grant permission to undertake an amendment. Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim.App.2000); Valenti v. State, 49 S.W.3d 594, 597 (Tex.App.-Fort Worth 2001, no pet.). The actual amendment occurs when the charging instrument (or a copy of it) is physically altered by the insertion or deletion of language on the face of the document. See Riney v. State, 28 S.W.3d at 565-66 (); Valenti v. State, 49 S.W.3d at 597-98 (). As mentioned earlier, the record before us contains no written alteration to the indictment or any similar document.
Yet, authority also holds that while prior convictions used for enhancement purposes must be pled in some form, they need not be pled in the indictment. Villescas v. State, 189 S.W.3d 290, 292-93 (Tex.Crim.App.2006); Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App.1997). So too are we told not only that the...
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Rodriguez v. State
...While prior convictions used for enhancement purposes must be plead in some form, they need not be plead in the indictment. Johnson v. State , 214 S.W.3d 157, 158 (Tex. App.—Amarillo 2007, no pet.) (citing Villescas v. State , 189 S.W.3d 290, 292-93 (Tex. Crim. App. 2006) ). "Since enhancem......
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...[14th Dist.] 2009, no pet.); Stautzenberger v. State, 232 S.W.3d 323, 327–28 (Tex.App.-Houston [14th Dist.] 2007, no pet.); Johnson v. State, 214 S.W.3d 157, 158–59 (Tex.App.-Amarillo 2007, no pet.). We cannot follow their lead because this court already has binding, on-point precedent in B......
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Johnson v. State, No. 10-07-00315-CR (Tex. App. 7/8/2009)
...enhancement paragraphs are unessential to the indictment's validity, the State could abandon the language as surplusage. See Johnson v. State, 214 S.W.3d 157, 158-59 (Tex. App.-Amarillo 2007, no pet.); see also Stautzenberger v. State, 232 S.W.3d 323, 328 (Tex. App.-Houston [14th Dist.] 200......
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