Ward v. State

• Decision Date: 18 March 1992
• Docket Number: No. 207-91,207-91
• Parties: James Howard WARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 787

829 S.W.2d 787

James Howard WARD, Appellant, v. The STATE of Texas, Appellee.

No. 207-91.

Court of Criminal Appeals of Texas En Banc.

March 18, 1992.

Rehearing Denied May 20, 1992.

R.K. Weaver, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty., and Patricia Poppoff Noble and Mark Nancarrow, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted in a bench trial of burglary of a building. V.T.C.A. Penal Code § 30.02. Appellant pled "true" to the two enhancement allegations in the indictment, and the trial judge sentenced appellant to 25 years confinement in the Texas Department of Corrections. ¹ The court of appeals overruled appellant's sole point of error, challenging the sufficiency of the evidence, and affirmed the conviction. Ward v. State, 804 S.W.2d 204 (Tex.App.--Texarkana 1991). We granted the appellant's petition for discretionary review on three grounds to determine whether the court of appeals erred in holding: (1) that the evidence was sufficient to support the verdict; (2) that appellant failed to preserve the issue of sufficiency of the evidence for appellate review; and (3) that appellant was challenging the propriety of the attempted amendment of the indictment in this cause. We will reverse the judgment of the court of appeals.

The indictment in this cause alleged, in pertinent part, that appellant did

unlawfully, knowingly and intentionally enter a building not then and there open to the public, without the effective consent of SETH HALLER, the owner thereof, with the intent to commit theft[.]

On August 17, 1989, the day of trial, the State filed a motion to amend the indictment, pursuant to Art. 28.10, V.A.C.C.P., to change the name of the complaining witness from "Seth Haller" to "Steve Scott." Appellant objected that allowing the amendment caused the indictment to charge him with a "new or different or additional" offense as prohibited by Art. 28.10(c). The trial judge overruled the objection and granted the State's motion. The motion reflects the desired change in the complainant's name and incorporates the trial judge's order granting the State's motion. The order simply states "[t]he foregoing Motion is hereby granted and the indictment is hereby amended." In spite of the language of the court's order, no interlineation regarding the complainant's name was made on the grand jury's indictment. After ruling on several defense motions, the trial judge proceeded to the trial on the merits.

Briefly, the evidence showed that appellant and two cohorts burglarized the Radio Shack store in the Richardson Heights shopping center in Dallas County. Steve Scott testified that he was the manager of the Richardson Heights store at the time of the offense, and that Seth Haller was the manager of the Radio Shack store at the Campbell Road center. At the conclusion of the State's case-in-chief, appellant moved for a verdict of acquittal, arguing the State failed to prove he entered the Radio Shack store at a time when it was not open to the public. No argument was made regarding the evidence to support the complaining witness allegation. The trial court obviously denied the motion and subsequently found the appellant guilty.

On direct appeal to the court of appeals, appellant contended the evidence was insufficient to sustain his conviction because the State failed to prove that he did not have the permission of the named complainant, Seth Haller, to enter the Radio Shack store. Appellant argued that although the State "sought and received permission to amend the indictment[,] ... it did not in fact make the permitted amendment." Appellant's brief at p. 4. Citing old caselaw ², appellant asserted the record must affirmatively show that an actual physical amendment was made on the face of the indictment by the State, and that the trial court's order in this cause was insufficient for that purpose. Under Art. 28.11, V.A.C.C.P., appellant contended, amendments to indictments are not made by the trial court, but rather are made "with leave of court and under its direction." (emphasis added). According to appellant, the State thus proceeded to trial on the indictment handed down by the grand jury, which alleged Seth Haller as the complainant, resulting in a fatal variance between the State's pleading and its proof.

The court of appeals affirmed appellant's conviction, holding the indictment was amended and that appellant failed to preserve for review a claim concerning any defect in the indictment. Ward, 804 S.W.2d at 205. The court of appeals concluded the trial court's order, providing "the indictment is hereby amended," was sufficient record of the amendment. In so concluding, the appellate court distinguished Robins, Cox, and Turner as requiring that the record reflect an amendment, and not as providing requirements for the amendment itself. The court determined these three cases were not inconsistent with its holding that the record in this cause showed the indictment was amended. Ward, 804 S.W.2d at 206. The court also distinguished two apparently conflicting decisions from the Fifth Court of Appeals ³ as holding that a defendant does not have notice of an amendment to the indictment until the charging instrument is physically altered or the court's order granting the motion to amend, or some other formal order setting out the substance of the amendment, appears in the record. Id. In neither Bartley, Rent, nor this cause was there any physical change or interlineation on the face of the charging instrument. ⁴ However, the court found dispositive in this case that the trial court's order was written on the same instrument which asked that the complaining witness's name be changed in the indictment, and this "constituted a sufficient order memorializing the substance of the amendment. The indictment was effectively amended." ⁵ Ward, 804 S.W.2d at 206.

Appellant also argued in the court of appeals that Art. 28.11, V.A.C.C.P., prohibited the trial court from actually amending the indictment, i.e., that the trial court's order granting the State's motion to amend was ineffective as an "amendment." Relying on Cuesta v. State, 763 S.W.2d 547, 549-550 (Tex.App.--Amarillo 1988, no pet.), and Etchieson v. State, 653 S.W.2d 930, 934-35 (Tex.App.--Dallas 1983, pet. ref'd.), and without further analysis, the court of appeals concluded the trial court itself can amend an indictment. Ward, 804 S.W.2d at 206. The court also stated, however, that even if it were incorrect in this holding, it would affirm appellant's conviction because he failed to preserve his claim that the indictment was defective under Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990), and Art. 1.14(b), V.A.C.C.P. Id. at 206-207.

As noted supra, we granted the appellant's petition for discretionary review on three grounds: whether the court of appeals erred in holding (1) that the evidence was sufficient; (2) that appellant failed to preserve for review the issue of sufficiency of the evidence; and (3) that appellant was challenging the propriety of the amendment since the only issue raised on direct appeal was the sufficiency of the evidence. The three grounds for review are interrelated, and appellant has consolidated in his brief his arguments and authorities in support of these grounds.

The Meaning of the Term "Amend"

Appellant's first ground for review asserts "the court of appeals erred in holding that the evidence is insufficient [sic] to support the instant verdict since the instant indictment was not in fact amended." This ground for review requires this Court to interpret the provisions of Arts. 28.10 and 28.11, V.A.C.C.P., and determine precisely when an indictment is "amended" as that term is used in the statutes. The two statutes provide in full:

Art. 28.10. Amendment of Indictment or Information

(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. 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.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

Art. 28.11. How Amended

All amendments of an indictment or information shall be made with the leave of the court and under its direction.

In interpreting statutes, this Court attempts to effectuate the collective intent or purpose of the legislature. Dillehey v. State, 815 S.W.2d 623 (Tex.Crim.App.1991), citing Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App.1989) (most common rule of statutory construction is for judiciary to attempt to effectuate intent of legislature). We are also mindful of the statutory construction aids provided in § 311.023 of the Government Code ⁶ for our interpretive analysis. Moreover, in determining the meaning of a word employed in a statute, "the inquiry is not as to its abstract meaning, but as to the sense in which it is used when the legislative purpose so requires." Camacho v. State, 765 S.W.2d 431, 433 (Tex.Crim.App.1989). Typically, a word is construed according to its plain meaning, but a word may be given a broader or a narrower meaning than that which it has in ordinary usage. Id., citing Baldridge v. State, 167 Tex.Cr.R. 519, 321 S.W.2d 309, 310 (1959). The principal rule is that a statute, when susceptible to...