Rent v. State

• Court: Texas Court of Appeals
• Writing for the Court: THOMAS; BAKER
• Citation: Rent v. State, 771 S.W.2d 723 (Tex. App. 1989)
• Decision Date: 30 May 1989
• Docket Number: No. 05-88-00739-CR,05-88-00739-CR
• Parties: Clayton Anthony RENT, Appellant, v. The STATE of Texas, Appellee.

Page 723

771 S.W.2d 723

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

No. 05-88-00739-CR.

Court of Appeals of Texas Dallas.

May 30, 1989.

Rehearing Denied June 23, 1989.

Thomas F. Clayton, Dallas, for appellant.

Pamela Sullivan Berdanier, Dallas, for appellee.

Before WHITHAM, BAKER and THOMAS, JJ.

THOMAS, Justice.

Clayton Anthony Rent was convicted of promoting obscene material upon his plea of nolo contendere and sentenced to five days in jail and payment of a fine of $1,500. He raises three points of error, contending that the trial court erred in: 1) refusing to give him ten days after the information was amended to prepare and file written pleadings; 2) denying his motion to quash on the grounds that the information failed to allege the requisite mental state as well as the specific acts or omissions depicted which were obscene; and 3) refusing to declare the obscenity statute unconstitutional. Although we find no merit in points two and three, we conclude that Rent was entitled to ten days after amendment of the information in which to respond to the information. Accordingly, we reverse and remand for new trial.

We must first consider the State's contention that Rent has waived all nonjurisdictional defects. The State avers that because the plea of nolo contendere was not entered pursuant to a plea bargain, Rent has waived all error. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972). Rent states in his brief that the plea was entered pursuant to a plea bargain. The State responds that the record does not reflect a plea bargain.

There is no document in the record which sets out a plea pursuant to a plea bargain. However, there is a hand-written notation on the State's announcement of ready for trial, which reads: "5/26/88. 5 days & $1500 per Howard Blackman JRF if pled before 5/31/88." At the hearing on the plea of nolo contendere, the following colloquy between Rent and the trial judge occurred:

THE COURT: Do you understand that by law in Dallas County, if I was not going to follow the plea bargain I would give you advance notice of that?

RENT: Yes.

THE COURT: Under the plea bargain, is five days in confinement in the Dallas County Jail, and a $1,500.00 fine plus court cost.

RENT: Okay.

THE COURT: Is that your understanding?

RENT: Right.

(Emphasis added.) Neither the State, nor Rent contested the court's statement of the existence of the plea bargain. We conclude that the record does reflect a plea of nolo contendere pursuant to a plea bargain. Thus, we conclude that Rent has not waived all nonjurisdictional defects under Helms.

In his first point of error, Rent contends that the trial court erred in refusing to allow Rent ten days after the information was amended to prepare and file written pleadings. He relies upon article 27.11 of the Texas Code of Criminal Procedure: "In all cases the defendant shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and during the term of the court, to file written pleadings." TEX.CODE CRIM.PROC.ANN. art. 27.11 (Vernon 1966).

In the case at bar, the information was filed on September 16, 1987. On March 25, 1988, Rent filed a motion for pretrial hearing in which he invoked the provisions of article 27.11 and requested the court to set the cause for a pretrial hearing "and after ten (10) days from the date of the presentment of the information and in advance of any trial upon the merits," to consider certain enumerated pretrial matters. On April 1, 1988, the trial court held a pretrial hearing as requested. On April 6, 1988, the State filed a motion to amend the information to add the words "oral and anal" before the phrase "deviate sexual intercourse." The certification of service signed by the assistant district attorney averred that the motion had been mailed to defense counsel on that date. Defense counsel stated on the record that he did not deny receiving the copy of the motion.

Directly under the certification of service is an order signed by the trial judge which reads as follows: "On this, the 6 day of April, 1988, the foregoing Motion is hereby granted and the information is hereby amended." The trial court stated on the record that "well before April 11, 1988," he informed cocounsel that "that motion to amend the information would be granted." On April 14, 1988, Rent filed a new motion for pretrial hearing, again invoking article 27.11 and requesting the hearing to be set ten days "from the date of presentment of the information or amended information."

On May 23, 1988, the trial court conducted a hearing on pretrial matters. At the hearing the trial court stated, "Motion to Amend Information, this was State's Motion number one filed April 1, 1988. For record purposes, that Motion to Amend the Information, the Court gave leave of the State to amend the Information on April 6, 1988, that was granted." The words "oral and anal" were hand-written on the information, and the trial court, defense counsel and assistant district attorney initialed the change.

At the May 23 hearing, the trial court denied Rent's April 14 motion for an additional ten days from the date of presentment of the amended information. On May 31, 1988, Rent entered his plea of nolo contendere pursuant to a plea bargain and that plea was accepted by the court.

Rent contends that the mandatory provisions of article 27.11 granted him the right to an additional ten days after the information was amended. He relies upon Oliver v. State, 646 S.W.2d 242 (Tex.Crim.App.1983). The State contends that article 27.11 does not require that a defendant be given an additional ten days each time an information is amended. The State argues that Oliver is distinguishable because in that case the information was dismissed and a new information was filed on the day of trial.

We agree that Oliver is not directly on point in the instant case. However, we consider Oliver instructive on the purposes of article 27.11:

The general and perhaps most basic premise of the long-standing "right to time" statute is that it was enacted by the Legislature of this State to afford the accused or his counsel a right to carefully examine the formal accusation and to prepare and file any necessary pleadings pertaining thereto. [Citations omitted.] Such time allowed an accused is both a precious and valuable right.

Oliver, 646 S.W.2d at 245. Thus, the statute affords a defendant ten full days in which to familiarize himself with the charges against him so that he may respond to those charges appropriately. When those charges are modified by amendment, it would seem that a defendant would still need that "precious and valuable" time to examine the amended charges and to prepare and file any necessary pleadings.

The legislature has recognized that a defendant may need additional time after an amendment to an information. Article 28.10 provides: "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." TEX.CODE CRIM.PROC.ANN. art. 28.10(a) (Vernon Pamph.Supp.1989) (emphasis added). Thus, we conclude that, whether article 27.11 or article 28.10 is applicable, Rent was entitled to his requested ten days from the date of the amendment before he could be put to trial.

The crucial issue in this case, then, is precisely when the information was amended. Rent contends that the information was amended on May 23, 1988, when the information itself was changed by the addition of the hand-written notation of the words "oral and anal" before "deviate sexual intercourse." If Rent is correct, he was not given ten days before trial commenced on May 31. The State's argument appears to be that the information was amended on April 6, 1988, when the trial court granted its motion to amend, or at the latest on April 11, 1988, when cocounsel was informed that the trial court was granting the motion. If the State is correct, Rent was afforded his statutorily-mandated ten days.

There is scant authority concerning the mechanics of amending a charging instrument. One venerable case seems to support Rent's argument that something more than an order to amend is required. In Robins v. State, 9 Tex.App. 666 (1880), the court stated, "Simply to order an indictment amended is not sufficient; the record must show affirmatively that the amendment was in fact made." Id. at 668. This holding is dicta; the court first held that allegations of venue were not matters amendable and then held that such amendment never occurred because the order to amend was not sufficient. Further, the court cited as support Cox v. State, 7 Tex.App. 495 (1879) and Turner v. State, 7 Tex.App. 596 (1880). In Turner, the court held that a new indictment had not been properly substituted for a lost indictment because there was "no order of record showing that fact." Id. at 598. Cox involved the amendment of the minutes showing presentment of the indictment. Although the court granted the State's motion to amend the minutes, "the record itself was never amended or corrected." Cox, 7 Tex.App. at 498.

These cases involve the requirement that the record reflect amendment, not the requirements for the amendment itself. The record in this case does reflect the actual amendment, so the requirement of Robins is met. Robins does not, however, resolve the issue of whether an amendment is effective for purposes of articles 27.11 and 28.10 as of the date of the order or of the actual interlineation.

The State's argument that the amendment is effective as of the date of the order is facially appealing. By April 11, Rent was aware, at the very least, that the State intended, and that the court would allow, an amendment of the charge. The April 6 motion set out the amendment that the State desired. Thus, by April 11, 1989, Rent had some notice of what the new charge against him...