Miller v. State

• Decision Date: 11 October 1995
• Docket Number: No. 03-94-00043-CR,03-94-00043-CR
• Citation: 909 S.W.2d 586
• Parties: Robert Sterling MILLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 586

909 S.W.2d 586

Robert Sterling MILLER, Appellant, v. The STATE of Texas, Appellee.

No. 03-94-00043-CR.

Court of Appeals of Texas,

Austin.

Oct. 11, 1995.

Verna Victoria Langham, New Braunfels, for appellant.

Bill M. Reimer, District Attorney, Dib Waldrip, Assistant District Attorney, New Braunfels, for appellee.

Before POWERS, B.A. SMITH and ONION, ^* JJ.

JOHN F. ONION, Jr., Presiding Justice.

This appeal is taken from a conviction for aggregated felony theft where the value of the legal currency of the United States stolen was more than $20,000. Tex.Penal Code Ann. §§ 31.03(a), (b), 31.09 (West 1994). ¹ The offense was a second degree felony at the time of its commission. ² After the jury found appellant Robert Sterling Miller guilty, it assessed his punishment at 16 years' imprisonment and a fine of $10,000.

VALIDITY OF INDICTMENT

Appellant advances fifteen points of error. First, appellant contends that the "verdict in this cause cannot be sustained because appellant was tried without the authority of a proper indictment which violates Art. I, § 10 of the Texas Constitution." The original indictment was quashed or set aside by the first trial judge. The State attempted to amend the indictment and got as far as obtaining a court's order approving the amendment, but the indictment was not effectively amended by making the alterations on the face of the indictment as required. Ward v. State, 829 S.W.2d 787, 793 (Tex.Crim.App.1992).

The scenario of the instant case is somewhat unusual. On September 2, 1992, the indictment was presented. In pertinent part, it alleged that appellant:

On or about 1st day of June, A.D., 1991, and up to and including the 30th day of June, A.D., 1992, and before the presentment of this indictment, in the County and State aforesaid, did then and there knowingly appropriate, by acquiring and exercising control over, property, to-wit: LEGAL CURRENCY OF THE UNITED STATES, of the value of more than $20,000.00 from the owner, DAN FRITZ, MIDWAY MOBILE HOMES, 974 LOOP 337, New Braunfels, Comal County, Texas, without the effective consent of the owner and with intent to deprive said owner of the property:

AND ALL OF SAID AMOUNTS WERE OBTAINED, as alleged in one scheme and continuing course of conduct, and the aggregate amounts stolen was of the value of at more than $20,000.00; .... ³

On March 30, 1993, the trial court conducted a hearing on appellant's first amended motion to quash or set aside the indictment. In that motion, appellant contended, inter alia, that the indictment failed to inform him of the nature and cause of the accusation against him as required by article I, section 10 of the Texas Constitution. In addition, appellant urged that the indictment (1) was not in plain and intelligible language; (2) did not allege an offense; (3) did not follow the language of section 31.09 of the Texas Penal Code; (4) did not allege the essential acts necessary to constitute a violation of that statute; and (5) that any conviction based on the indictment could not be used in a plea in bar to a subsequent prosecution for the same offense because each theft allegation must be separately alleged in order to be used in aggregation under section 31.09.

At the conclusion of the hearing on the motion, the trial court granted the motion to quash or set aside the indictment. The court's order contained a notation about "the need to amend to show dates [sic] specific amounts taken." If a record was made of the hearing, no statement of facts appears in the appellate record. Thus, the basis for the trial court's ruling is not altogether clear. ⁴

On April 13, 1993, the State filed a motion for leave to file an amended indictment. On the same date, the trial court granted the motion and ordered the indictment to be amended. The proposed amendment contained in the trial court's order alleged in pertinent part that Robert Sterling Miller on or about July 1, 1991 and up to and including May 31, 1993:

did then and there knowingly appropriate, by acquiring and exercising control over, property, to-wit: LEGAL CURRENCY OF THE UNITED STATES, of the value of more than $20,000.00, from the owner, DAN FRITZ, MIDWAY MOBILE HOMES, 974 LOOP 337, New Braunfels, Comal County, Texas, without the effective consent of the owner and with intent to deprive said owner of the property, to wit:

JULY 1ST TO JULY 31ST, 1991, theft over $750.00 but less than $20,000.00;

AUGUST 1ST TO AUGUST 31ST, 1991, theft over $20,000.00 but less than $100,000.00;

SEPTEMBER 1ST TO SEPTEMBER 30TH, 1991, theft over $750.00 but less than $20,000.00;

OCTOBER 1ST TO OCTOBER 31ST, 1991, theft over $750.00 but less than $20,000.00;

NOVEMBER 1ST TO NOVEMBER 30TH, 1991, theft over $750.00 but less than $20,000.00;

DECEMBER 1ST TO DECEMBER 31ST, 1991, theft over $20,000.00 but less than $100,000.00;

JANUARY 1ST TO JANUARY 31ST, 1992, theft over $750.00 but less than $20,000.00;

FEBRUARY 1ST TO FEBRUARY 28TH, 1992, theft over $750.00 but less than $20,000.00;

MARCH 1ST TO MARCH 31ST, 1992, theft over $750.00 but less than $20,000.00;

APRIL 1ST TO APRIL 30TH, 1992, theft over $750.00 but less than $20,000.00;

MAY 1ST TO MAY 31ST, 1992, theft over $750.00 but less than $20,000.00;

AND ALL OF SAID AMOUNTS WERE OBTAINED PURSUANT TO ONE SCHEME AND CONTINUING COURSE OF CONDUCT WHICH BEGAN ON OR ABOUT THE 1ST DAY OF JULY, A.D., 1991, AND CONTINUING UNTIL ON OR ABOUT THE 31ST DAY OF MAY, 1992.

The face of the original indictment was never physically altered in any manner. Appellant filed a second motion and a third motion to quash the indictment directed at the proposed amendment, neither of which questioned the finality of the proposed amendment. We do not find a ruling on the second motion, but the third motion was overruled.

On November 8, 1993, the district attorney read to the jury the original indictment which had been set aside. Appellant entered a plea of not guilty, but immediately objected, in the jury's absence, that the indictment had not alleged separate theft offenses as required for aggregation under section 31.09, and that the dates were not distinctly alleged. The district attorney informed the trial court that these objections had been raised in three motions to quash the indictment "all of which were denied." At the time, no one bothered to tell the trial court that the original indictment had been set aside by another trial judge or that the State had attempted an amendment of the indictment. The trial court overruled appellant's objections to the indictment.

After the State's second witness had testified, the district attorney informed the trial court that a secretary had pointed out to him that a motion for leave to amend the indictment had been filed. He asked to examine the court's file to determine if the motion had been granted. Finding the order granting In Ward, the Court of Criminal Appeals held that an amendment of a charging instrument requires the actual alteration in the charging instrument itself. Ward, 829 S.W.2d at 793; Harris v. State, 866 S.W.2d 316, 324 (Tex.App.--San Antonio 1993, pet. ref'd). If the State wishes to amend the pleadings, it must first request the trial court's permission by a "motion for leave to amend." Ward, 829 S.W.2d at 793. But neither the motion nor the trial court's subsequent order granting the motion and setting forth the proposed amendment is "the amendment." Id. "The amendment ... is the actual alteration of the charging instrument." Id.; see also Rent v. State, 838 S.W.2d 548, 551 (Tex.Crim.App.1992); McHenry v. State, 829 S.W.2d 803, 804 (Tex.Crim.App.1992); McCoy v. State, 889 S.W.2d 354, 358 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd); Harris, 866 S.W.2d at 324; Brown v. State, 843 S.W.2d 709, 715 (Tex.App.--Dallas 1992, pet. ref'd); McFarland v. State, 834 S.W.2d 481, 483-84 (Tex.App.--Corpus Christi 1992, no pet.).

                leave and ordering an amendment, the district attorney asked to read this order to the jury.  Appellant objected that the jury had been impanelled, the indictment had been read, a plea had been entered, and that evidence had been heard.  He argued that jeopardy had attached.  The district attorney responded that the indictment had been quashed, "eradicated for all purposes," that any reading thereof was "a totally ineffective reading of the indictment," and that double jeopardy would not attach to "an invalid or nonexistent instrument."   The trial court overruled the objection and permitted the district attorney to read to the jury as the State's pleading the court's order approving the amendment to the indictment.  Appellant again pleaded not guilty.  Both parties stipulated that the testimony of the first two witnesses would be the same.  At the conclusion of the guilt stage of the trial, the trial court submitted the case to the jury on the basis of the trial court's pretrial order approving the amendment to the indictment.  The jury returned a verdict finding appellant guilty "as charged in the indictment."
                

The requirement of an actual alteration on the face of the indictment or information is consistent with the state constitutional guarantee that an accused has the right to be informed of the nature and cause of the accusation against him. Tex. Const. art. I, § 10; Ward, 829 S.W.2d at 794. It has long been held that this information must come from the face of the indictment. See, e.g., Benoit v. State, 561 S.W.2d 810, 813 (Tex.Crim.App.1977). It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Id. Thus, concluding that "amendment" means an actual alteration to the document charging an offense assures an 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. Ward, 829 S.W.2d at 794. The...