Rent v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: PER CURIAM; W.C. DAVIS; MILLER; McCORMICK, P.J., and WHITE; BENAVIDES
• Citation: Rent v. State, 838 S.W.2d 548 (Tex. Crim. App. 1990)
• Decision Date: 12 September 1990
• Docket Number: No. 1090-89,1090-89
• Parties: Clayton Anthony RENT, Appellant, v. The STATE of Texas, Appellee.

Page 548

838 S.W.2d 548

Clayton Anthony RENT, Appellant, v. The STATE of Texas, Appellee.

No. 1090-89.

Court of Criminal Appeals of Texas En Banc.

Sept. 12, 1990.

Rehearing Granted June 19, 1991.

Opinion on Motion for Rehearing March 18, 1992.

Rehearings Denied Sept. 23, 1992 and Sept. 30, 1992.

Thomas F. Clayton, Dallas, for appellant.

John Vance, Dist. Atty., and Pamela Sullivan Berdanier, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of promoting obscene material and his punishment was assessed at five days confinement and a fine of $1,500. The conviction was reversed and remanded for new trial. Rent v. State, 771 S.W.2d 723 (Tex.App.--Dallas, 1989). We granted review to determine whether the Court of Appeals erred in holding that appellant was entitled to ten days notice after the physical amendment of the information in this case and whether a harmless error analysis should have been conducted. See Article 28.10(a), V.A.C.C.P.

After careful review of the State's petition, the record before us, and the parties' briefs, we have determined that this case is governed by our decision in Sodipo v State, 815 S.W.2d 551 (Tex.Cr.App., No. 1390-88), this day decided, and therefore the judgment of the court of appeals is affirmed.

W.C. DAVIS, J., not participating.

OPINION ON STATE'S MOTION FOR REHEARING

MILLER, Judge.

Appellant was convicted of obscenity upon his plea of nolo contendere. V.T.C.A. Penal Code § 43.23. Pursuant to a plea bargain, the trial judge sentenced appellant to five days in jail and a $1500 fine. The court of appeals reversed the trial court's judgment and remanded this cause for a new trial. Rent v. State, 771 S.W.2d 723 (Tex.App.--Dallas 1989). This Court granted the State's petition for discretionary review on two grounds, to-wit: whether the court of appeals erred in reversing appellant's conviction due to a violation of Art. 28.10(a), V.A.C.C.P., without conducting a harmless error analysis and whether the court of appeals erred in holding appellant was allowed ten days notice after the physical amendment of the information.

In this Court's opinion on original submission, we affirmed the judgment of the court of appeals, determining this case was governed by Sodipo v. State, 815 S.W.2d 551 (Tex.Crim.App.1990), which interpreted Art. 28.10 as prohibiting the State from amending a charging instrument, over the defendant's objection, on the day of trial prior to commencing trial on the merits and held that the error resulting from allowing an amendment at that time was not subject to a harmless error analysis. Rent v. State, 838 S.W.2d 548 (Tex.Crim.App.1990). The State raises two grounds in its motion for rehearing, the first asserting this Court failed to address its second ground for review in our opinion on original submission, and the second asserting this Court erred in upholding the appellate court's reversal without conducting any harm analysis. We granted the State's motion for rehearing on the first ground ¹.

A recitation of the procedural facts in this case is necessary for its disposition. The State filed a pretrial motion to amend the information ² in this cause. The State requested leave of the court to add to the information, after the words "patently offensive representations of or descriptions of," the words "oral and anal." The trial court granted the State's motion on April 6, 1988, and the trial court's order reflects "the foregoing Motion is hereby granted and the information is hereby amended." The order is attached to the State's Motion To Amend Information.

On May 23, 1988, the trial judge held a pretrial hearing in this cause. ³ When considering appellant's motion to quash the information, the trial judge noted the State filed its motion to amend the information on April 1, 1988, and the trial judge granted the State leave to amend on April 6, 1988. Appellant's counsel then moved for a pretrial hearing ten days from the date of the amended information and in advance of the trial on the merits. ⁴ Counsel asserted he did not have notice of the "actual complaint or information" upon which the appellant was being tried. Counsel admitted, however, that he had received on April 6, 1988, the motion to amend the information. The trial judge responded that he had instructed appellant's co-counsel "well before April 11, 1988[,]" that the motion to amend would be granted. Nevertheless, appellant argued he did not know whether the State was waiving its motion to amend or withdrawing its motion to amend until the information had been physically amended that morning (May 23, 1988). The trial judge then instructed the prosecutor and appellant's counsel to initial and date the amendments which were physically made to the information that morning of the pretrial hearing. ⁵ Stating for the record that notice of the amendment to the information was given on April 6, 1988, or at the latest April 11, 1988, the trial judge denied appellant's request for an additional ten days to respond to the amended information. Appellant entered his plea of nolo contendere to the amended information, and was convicted thereon, on May 31, 1988.

On direct appeal, appellant contended the trial court erred in refusing to give him ten days to prepare and file written pleadings after the information was amended. ⁶ The crucial inquiry, as the court of appeals found, was "precisely when the information was amended[,]" viz, the date of the order or the date of the actual interlineation. Rent, 771 S.W.2d 723, 727. The court of appeals concluded that, for purposes of Arts. 27.11 and 28.10, the amendment to the information was effective May 23, 1988, the date of the physical interlineation of the document. The court of appeals recognized that by April 11, 1988, appellant "at the very least" had some notice of what the amended charge against him would be, but nevertheless found the notice insufficient because the trial judge's order itself did not set out the amendment which he granted. Id. at 727 (emphasis in original). The court reasoned that the motion set out the amendment the State desired but not the amendment the trial judge would allow; therefore, the "defendant would not have notice of the amended charges against him unless the trial court's order set out the substance of the amendment or until the indictment itself was physically changed." Id. The information in this cause was not physically amended by interlineation until May 23, 1988. At that time, according to the court of appeals' decision, the amendment became effective and appellant was entitled, upon his request, to the statutory ten days for trial preparation. Id. Thus, the court of appeals held the trial court erred in denying appellant his statutory ten days and setting the plea hearing on May 31, 1988. The trial court's judgment was reversed on this basis, and the cause was remanded for a new trial. Id. at 730.

On the State's petition to this Court, the judgment of the court of appeals was affirmed on the basis of the Court's recent opinion in Sodipo, 815 S.W.2d 551 (Opinion on State's Motion for Rehearing). In Sodipo, on the day of trial but prior to jury selection, the State amended the indictment to reflect the correct cause number in an enhancement paragraph. The defendant objected to the amendment and requested ten days to prepare for trial pursuant to Art. 28.10. Finding that Art. 28.10 did not encompass an amendment made on the date of trial but prior to commencement of trial on the merits ⁷, this Court held the trial court erred in permitting the State, at that time, to amend the indictment over the defendant's objection. Id. at 556; see also Murk v. State, 815 S.W.2d 556 (Tex.Crim.App.1991). This Court also concluded that in order to give effect to the full meaning of Art. 28.10, this type of error should not be subjected to a harm analysis under Tex.R.App.Proc. 81(b)(2). Sodipo, 815 S.W.2d at 556.

As applied to the case at bar, Sodipo resolved the State's ground for review of whether the court of appeals erred in failing to conduct a harmless error analysis after determining the trial court erroneously denied appellant ten days to prepare for trial after the physical amendment of the information. As noted above, under Sodipo the error was not subject to a harm analysis. Sodipo, however, did not resolve the issue of when a charging instrument is amended for purposes of Art. 28.10. The State's second ground for review in this cause addressed that question, viz: was the information amended via the trial judge's order which granted the State's motion to amend, or was the information amended when the State made the actual interlineation? We granted the State's motion for rehearing to resolve this question presented in its second ground for review.

This same issue was raised and resolved in Ward v. State, 829 S.W.2d 787 (Tex.Crim.App. No. 207-91, delivered this day). In Ward, we concluded that "amend," as used in Arts. 28.10 and 28.11, V.A.C.C.P., meant an actual alteration on the face of the charging instrument. Ward, at 794. We therefore concluded that a trial court's order granting the State's motion to amend was not the actual "amendment" but rather an appropriate vehicle by which to initiate the amending process. Id.

In the Ward case, the State moved to amend the indictment by changing the name of the complaining witness. Specifically, the State's motion requested permission of the trial court to "change the name of the complaining witness from 'Seth Haller' to 'Steve Scott.' " The trial court granted the State's motion and entered an order stating the indictment was "hereby amended." The State's motion and the trial court's order were...