McFarland v. State

• Decision Date: 18 June 1992
• Docket Number: No. 13-90-397-CR,13-90-397-CR
• Parties: Johnny Ray McFARLAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 481

834 S.W.2d 481

Johnny Ray McFARLAND, Appellant, v. The STATE of Texas, Appellee.

No. 13-90-397-CR.

Court of Appeals of Texas Corpus Christi.

June 18, 1992.

Rehearing Overruled July 30, 1992.

Larry Walsh, Brownsville, Larry Warner, Harlingen, for Appellant.

Luis V. Saenz, County Atty., Crim. Dist., Brownsville, for Appellee.

Before NYE, C.J., and SEERDEN and GILBERTO HINOJOSA, JJ.

OPINION

NYE, Chief Justice.

A jury found appellant guilty of murder. After making an affirmative finding that the appellant used a deadly weapon, the trial court sentenced him to life in prison. Appellant raises twenty-one points of error. We affirm the trial court's judgment. We briefly review the facts.

Appellant owns his own truck and delivers furniture throughout the country for a company based in North Carolina. The victim, Donald Ray Gurley, accompanied appellant on a delivery to South Texas. On the highway between Harlingen and Edinburg, a motorist saw appellant's truck on the roadside, and saw a man meeting appellant's description chase another man to the back of the truck and shoot him with a handgun. He then saw the first man bending over the victim, but the witness could not discern what the man was doing. The motorist drove to Santa Rosa and notified police. Appellant was apprehended the next day. Appellant made a confession in which he stated that, while they were driving, he threatened to kill Gurley. Appellant pulled over, and Gurley jumped out of the truck. Taking a pistol which he kept in the truck, appellant chased Gurley to the back of the truck where he shot Gurley in the back and in the head.

By his first point of error, appellant claims insufficient evidence exists to convict him because of a fatal variance between the indictment and proof. The indictment alleged that appellant caused the death of Donald Ray Gurley by shooting him. Before trial, the State moved to amend the indictment by adding the allegation that appellant used a deadly weapon. The trial court's order granting the motion recited the victim's name as Donald Ray Gunley. The previous indictment, as well as the State's motion to amend, alleged that the victim's name was Donald Ray Gurley. The charge and all of the evidence at trial established that the victim was Donald Ray Gurley. Appellant argues that the variance is fatal due to the doctrine of idem sonans, and therefore an acquittal should be entered.

A material variance between the name of the victim as alleged and as proved will render the evidence insufficient to sustain the conviction. Gayton v. State, 732 S.W.2d 724, 725 (Tex.App.--Corpus Christi 1987, pet. ref'd). According to the doctrine of idem sonans, if the name alleged and the name proven can be sounded the same, a variance in spelling is immaterial. Gayton, 732 S.W.2d at 725. A question involving the rule of idem sonans must be raised at trial or it is waived. Martin v. State, 541 S.W.2d 605, 608 (Tex.Crim.App.1976); See Gayton, 732 S.W.2d at 725; see also Gayton, 732 S.W.2d at 727 (Nye, C.J. dissenting). Appellant did not object at any time to any defect in either the form or substance of the indictment. TEX.CODE CRIM.PROC. art. 1.14(b) (Vernon Supp.1992). His contention has been waived. However, we discuss the merits of the issue raised because it is relevant to other points.

Here, no variance exists because the trial court's order did not amend the indictment. Our Court of Criminal Appeals has recently held that an order is not sufficient to effect an amendment to an indictment. The indictment itself must be physically altered. Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992) ; McHenry v. State, 829 S.W.2d 803 (Tex.Crim.App.1992). Since the face of appellant's indictment was never altered, the original indictment controls. Thus, appellant was charged with and was convicted of murdering Donald Ray Gurley. Point one is overruled.

By point seven, appellant contends that the trial court erred in affirmatively finding that appellant used a deadly weapon in committing the offense because the indictment did not contain that allegation. An affirmative finding of use or exhibition of a deadly weapon must be supported by a written pleading, albeit not necessarily in the indictment. Luken v. State, 780 S.W.2d 264, 266 (Tex.Crim.App.1989). The indictment here alleged that appellant caused Gurley's death by shooting him, but it did not name the implement used. The State filed a separate pleading entitled "Notice of Intention to Seek Affirmative Finding that a Deadly Weapon was Used." In this document, the State declared it would seek an affirmative finding that appellant used a firearm. We find that the State's notice served as a sufficient pleading to support the affirmative finding under Luken. See Hubbard v. State, 809 S.W.2d 316, 323 (Tex.App.--Fort Worth 1991, pet. granted). ¹

Appellant also complains he did not receive notice that the State would seek the affirmative finding. He did not object to any lack of notice at trial. Nor does he now claim surprise. An accused is entitled to notice that the State will pursue an affirmative finding that the defendant used or displayed a deadly weapon. Luken, 780 S.W.2d at 266. The record shows that the State hand-delivered a copy of the requested amendment to appellant's counsel. Moreover, the record contains the State's motion to amend the indictment and the trial court's order amending the indictment. Each clearly showed that the State was seeking a deadly weapon affirmative finding. As previously discussed, these documents were ineffective to amend the indictment. However, we find that these documents, appearing in the record with the State's "Notice of Intent to Seek Affirmative Finding," put appellant on notice that the use of a firearm as a deadly weapon was at issue. "[The] accused is only entitled to notice, in some form, that use of a deadly weapon will be a fact issue at trial." Grettenberg v. State, 790 S.W.2d 613, 615 (Tex.Crim.App.1990) (although the State abandoned the portion of the two-count indictment containing the deadly weapon allegation, the prosecution's facts were so interrelated that the abandonment of one count did not vitiate notice given under the original indictment). Appellant was provided notice as required under Luken. We overrule point seven.

By points five and six, appellant claims the trial court erred in amending the indictment to specify the manner and means of the killing and to specify a different victim. Since the face of the indictment was never altered, it was never effectively amended. The victim's name, as it appeared in the original indictment, was unchanged (see point one, supra ). Although not specified in the original indictment, the manner and means of the killing--shooting with a firearm--was properly charged and proven. The original indictment alleged that appellant caused Gurley's death by shooting. The State sought an amendment in order to obtain a deadly weapon affirmative finding, and appellant received notice of the State's intent to seek the finding. (See point seven, supra ). The proposed amendment specified that appellant used a firearm to cause Gurley's death. The charge required the jury to find that appellant caused Gurley's death by shooting him with a firearm. The State's burden was not decreased by the charge. The jury was required to find and did find, every allegation appearing in the indictment. The charge merely required a more specific finding on the manner and means. The affirmative finding was made pursuant to proper pleading, notice, and proof. It was entered properly upon the decision of the trier of fact. Polk v. State, 693 S.W.2d 391, 394-95 (Tex.Crim.App.1985); see Brown v. State, 740 S.W.2d 45, 47 (Tex.App.--Houston [14th Dist.] 1987, no pet.) (It was not error for the court to submit the deadly weapon special issue at the guilt/innocence phase when the defendant had elected for the trial court to assess punishment). Points five and six are overruled.

By point two, appellant claims that the trial court erred in failing to suppress the items police retrieved from his truck. Appellant was pulled-over and arrested by Elsa police. The Cameron County Sheriff intervened during the arrest, read appellant his rights, and took him into custody. Appellant gave the Sheriff a signed consent to search. During the search, appellant told the officers that the gun he had used to shoot Gurley was under the truck's radio. Appellant claims that his statement telling officers the location of his gun, and his consent to their search, were tainted by the illegality of the arrest and were involuntary because they were obtained while appellant was in custody.

The police had a warrant for appellant's arrest, but did not have a search warrant. At the suppression hearing, appellant argued that no affidavit accompanied the arrest warrant; therefore the warrant was invalid and the arrest illegal. Appellant complains on appeal that the affidavit to the arrest warrant wholly failed to support a finding of probable cause because it stated no facts and was only conclusory. The two objections differ. When the argument on appeal does not comport with that raised at trial, the complaint has been waived. Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986); Vanderbilt v. State, 629 S.W.2d 709, 721 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982); Baldonado v. State, 745 S.W.2d 491, 496 (Tex.App.--Corpus Christi 1988, pet. ref'd).

Appellant's third point of error states contentions similar to points two and thirteen. His argument ends in mid-paragraph, leaving a blank page. A point of error must be supported by argument, authority, and citations to the record or it is waived. Tex.R.App.P. 74. (f).

By point thirteen, appellant challenges the voluntariness of appellant's consent to search. Before consent can be effective, the State must prove by clear and convincing evidence that...