Valenti v. State

• Decision Date: 14 June 2001
• Docket Number: No. 2-00-246-CR,2-00-246-CR
• Citation: 49 S.W.3d 594
• Parties: (Tex.App.-Fort Worth 2001) GEORGE JOSEPH VALENTI, APPELLANT v. THE STATE OF TEXAS, STATE
• Court: Texas Court of Appeals

Page 594

49 S.W.3d 594 (Tex.App.-Fort Worth 2001)

GEORGE JOSEPH VALENTI, APPELLANT v. THE STATE OF TEXAS, STATE

No. 2-00-246-CR

Court of Appeals of Texas, Fort Worth

June 14, 2001

FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

[Copyrighted Material Omitted]

PANEL F: DAUPHINOT, HOLMAN, and GARDNER, JJ.

OPINION

DIXON W. HOLMAN, JUSTICE

Appellant George Joseph Valenti appeals his conviction for felony driving while intoxicated (DWI). A jury found appellant guilty of the offense, and the trial court assessed punishment at seven years' confinement and a $10,000 fine. On appeal, he complains that variances between the pleading and proof rendered the evidence legally insufficient to support the jury's verdict and that the trial court erred by allowing an amendment to the indictment on the day of trial. We affirm.

In the indictment in this case, the State alleged that on or about May 22, 1999, George Joseph Valinti was driving while intoxicated and that he had been previously convicted of DWI on April 19, 1995 and August 25, 1996. The State subsequently moved to amend the indictment to correct the date of the August 25 conviction to August 15, 1996. On May 11, 2000, ten days before trial was originally set to start, both parties agreed that the correct date of the prior conviction was August 15, 1996, and that the indictment should be amended accordingly. The trial court granted the State's motion and signed an undated order to amend the indictment.¹ The order, however, still reflected the August 25, 1996 date for the conviction.

The case was subsequently transferred to the Honorable David Garcia by assignment. On May 30, 2000, before trial began, it was brought to the trial court's attention that the attempted amendment had not been made to the indictment and that the trial court's order purporting to amend the indictment incorrectly stated the date of appellant's prior conviction as August 25, 1996. The trial court was also informed that the correct spelling of appellant's last name was Valenti. Appellant agreed that the correct spelling of his last name was V-a-l-e-n-t-i, and, without objection, the trial court interlineated the order to show his true last name. The trial court also heard evidence and argument from the parties about their intent on May 11 concerning the amendment of the indictment to reflect the correct date of the prior DWI. Defense counsel acknowledged that on May 11 he had no objection to the amendment and that he had known all along that the State was attempting to plead and prove the August 25, 1996 conviction. He argued, however, that the amendment had not been made and that it was too late to make the amendment over his objection on the day of trial. The trial court determined that the defense was not surprised by the amendment, had agreed to the amendment, and that the August 25, 1996 date was merely a clerical error in the order. The court then interlineated the order to reflect the proper date for the prior conviction. There was no physical interlineation of the original indictment; however, the language of the original indictment was reproduced in the order granting the State's motion to amend.

At trial, the State produced evidence that George Joseph Valenti was driving while intoxicated on May 22, 1999, and that George Joseph Valenti had been finally convicted of DWI on April 19, 1995 and August 15, 1996.

In his first two points, appellant contends that because the two amendments "were never made to the indictment," the evidence was legally insufficient to show that George Joseph Valinti committed the instant DWI or that George Joseph Valinti had a prior felony conviction for August 15, 1996 as alleged in the original indictment. Appellant states that the only portion of the indictment that was effectively amended was the caption on the original indictment where his last name was changed from Valinti to Valenti on the face of the indictment itself. We construe appellant's argument to be that physical interlineation of the original indictment is required to accomplish an amendment to the indictment.

The Texas Constitution guarantees to criminal defendants the right to indictment by a grand jury for all felony offenses. Riney v. State, 28 S.W.3d 561, 564-65 (Tex. Crim. App. 2000); see also Tex. Const. art. I, § 10. "An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense." Tex. Const. art. V, § 12(b). Indictment by grand jury protects citizens against arbitrary accusations by the government. Riney, 28 S.W.3d at 565. An indictment is essential to vest the trial court with jurisdiction and provides a defendant notice of the offense charged so that he may prepare, in advance of trial, an informed and effective defense. Id. Notice of the nature and cause of the accusation must come from the face of the indictment. Id. The inquiry is whether the charge, in writing, furnished that information in plain and intelligible language. Id.

Articles 28.10 and 28.11 of the code of criminal procedure provide the State with the opportunity to amend the indictment. Id.; see also Tex. Code Crim. Proc. Ann. arts. 28.10, 28.11 (Vernon 1989).² However, neither the State's motion to amend nor the trial judge's granting thereof is an amendment; rather, the two comprise the authorization for the eventual amendment of the charging instrument pursuant to article 28.10. Riney, 28 S.W.3d at 565; Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992), overruled on other grounds by Riney, 28 S.W.3d at 566. The court of criminal appeals has held that actual, physical alteration of the face of the original indictment is not the only means to accomplish an amendment. Riney, 28 S.W.3d at 565-66. Physical interlineation of the original indictment is an acceptable but not the exclusive means of effecting an amendment to the indictment. Id. at 565. In Riney, the court held that an amended photocopy of the original indictment incorporated into the record under the direction of the court with the knowledge and consent of the defense satisfied the statutory requisites and preserved the functions of an indictment. Id. at 565-66.

Here, the language of the original indictment charging appellant with the offense of felony DWI was reproduced in the order granting the State's motion to amend. Given the circumstances of this case, we conclude that the trial court could properly amend the indictment by physical interlineation of the written order granting the State's motion to amend, in which the language of the original indictment was reproduced. The trial court retained its jurisdiction and appellant was kept abreast of the charges against him and had adequate information to prepare his defense. See id. at 566. Because the method used by the trial court to amend the indictment was appropriate, there is no variance between the pleading and proof at trial, and the evidence was legally sufficient to establish appellant drove while intoxicated on May 22, 1999, and was twice previously convicted of DWI on April 19, 1995 and August 15, 1996. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

Even assuming the amendment in this instance was ineffective, a variance between the allegations and the proof will not render the evidence insufficient if the defendant was not surprised or prejudiced by the variance. See Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998); Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988) (op. on reh'g); see also Tex. R. App. P. 44.2(b). First,...