Westmoreland v. State

• Decision Date: 28 September 2005
• Docket Number: No. 12-03-00224-CR.,12-03-00224-CR.
• Citation: 174 S.W.3d 282
• Parties: William Mark WESTMORELAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

174 S.W.3d 282

William Mark WESTMORELAND, Appellant, v. The STATE of Texas, Appellee.

No. 12-03-00224-CR.

Court of Appeals of Texas, Tyler.

May 25, 2005.

Discretionary Review Refused September 28, 2005.

COPYRIGHT MATERIAL OMITTED

Douglas Scott Williams, Athens, for appellant.

Donna R. Bennett, Athens, Shari Moore, for state.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.

OPINION

SAM GRIFFITH, Justice.

Appellant William Mark Westmoreland was convicted by a jury of murder. The jury assessed his punishment at imprisonment for forty-five years and a ten thousand dollar fine. He raises three issues on appeal. We affirm.

BACKGROUND

Appellant and his wife, Debra (now Debra Westmoreland Pierce), separated on December 6, 2000. Debra moved from their home, assisted by the decedent, Kenneth Zoch. Appellant was to be away from the house during the move, but came home early. Words were exchanged, and Appellant shot Zoch twice, killing him.

On February 14, 2003, more than two months before trial, the State filed a motion to amend Appellant's indictment. Appellant did not object to the amendment. The court entered a written order amending the indictment, but the changes were never interlineated on the indictment.

Prior to trial, Appellant filed a motion in limine to exclude certain extraneous conduct. The trial court granted the motion. However, during the trial, two State's witnesses violated the motion in limine by mentioning two extraneous offenses alleged to have been committed by Appellant. Appellant objected to the admission of the testimony.

After the trial, it was determined that a juror who sat on the case was not the same "Robert Bruce Bankhead" who had been summoned. At the hearing on Appellant's motion for new trial, Appellant developed testimony that the wrong Robert Bankhead had served on the jury. Rather, the Robert Bankhead who sat as a juror was the father of the summoned person, Robert Bankhead, III.

The jury convicted Appellant of murder, sentenced him to imprisonment for forty-five years, and assessed a fine of ten thousand dollars.

. AMENDMENT OF INDICTMENT

In his first issue, Appellant contends the trial court erred in denying Appellant's motion for continuance and proceeding to trial on the "amended" indictment because the amendment was not effective.

Relevant Facts

Appellant was indicted for the murder of Kenneth "Zock" by shooting him in the chest. On February 14, 2003, the State filed a motion to amend the indictment. The State requested several alterations of the indictment, including a change in the victim's name from "Zock" to "Zoch" and a change in the manner of committing the act of murder from "shooting Kenneth Zock in the chest" to "shooting Kenneth Zoch in the buttocks and in the arm and through the chest." Appellant did not object to the amendment, and the court signed an order granting the motion.

On April 28, 2003, during the jury selection process, the court recounted the facts of the February 14 hearing.¹ The court noted that Appellant and his attorneys were present at the hearing on the State's motion to amend the indictment and that Appellant did not object to the State's motion. The court also noted that it had granted the motion and signed an order reflecting its ruling. The trial court acknowledged that it did not personally interlineate the changes on the original indictment; rather, the court stated that it most likely instructed the court clerk to do so. The clerk did not make the changes on the original indictment.

Appellant objected that the amendment was not effective because the changes had not been made on the original indictment and the order granting the State's motion to amend the indictment was insufficient to amend the indictment. The court noted that at the hearing on the motion, which occurred on February 14, 2003, Appellant was given notice of the order granting the State's motion and made no objection to the order. Appellant then contended that he had not been actually served with the order on the motion to amend. Appellant claimed that he was entitled to two days notice of the amendment according to Texas Code of Criminal Procedure, article 26.03. See TEX.CODE CRIM. PROC. ANN. art. 26.03 (Vernon 1989). The court responded that Appellant had been given a copy of the order on February 14, 2003 and proceeded to arraign Appellant on the amended indictment. When the court asked for announcements, Appellant announced not ready on the amended indictment, due to the objections previously stated, but announced ready on the original indictment. The court overruled Appellant's announcement. Appellant filed a verified motion for continuance, which the trial court overruled.

Applicable Law

A criminal defendant is guaranteed the right to know the allegations against him contained in an indictment returned by a grand jury and to have a copy of the indictment. TEX. CONST. art. I, § 10. An indictment vests the trial court with jurisdiction and provides the defendant with notice of the offense with which he is charged so that he may prepare, in advance of trial, an informed and effective defense. Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App.2000).

Texas Code of Criminal Procedure, article 28.10 prescribes the following procedure for amending an indictment:

(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 of 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.

. . . .

(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.

TEX.CODE CRIM. PROC. ANN. art. 28.10(a), (c) (Vernon 1989). All amendments of an indictment or information must be made with leave of the court and under its direction. Id. art. 28.11.

Prior to 2000, the recognized procedure for amending an indictment required the State to either return to the grand jury to obtain a subsequent indictment or request an amendment of the indictment through a motion to the court. The motion to amend the indictment, taken together with the trial court's granting of the motion to amend and signing the order on the amendment, comprised the authorization for the eventual amendment of the charging instrument pursuant to article 28.10. Ward v. State, 829 S.W.2d 787, 793 (Tex.Crim.App.1992). The Ward court noted that "amend" means an actual alteration of the charging instrument itself. Id. The amendment, then, was the actual alteration of the charging instrument. Id. Consequently, where the State moved to amend the indictment and the trial court granted the motion, the court physically interlineated the changes on the original indictment. See id. at 793-94. Appellant relies on Ward to support his argument that written alteration of the indictment was necessary in the case at bar to make the amendment effective.

In 2000, the court of criminal appeals addressed whether it was necessary to physically interlineate the changes in order to amend an indictment. See Riney, 28 S.W.3d at 564. In Riney, the court overruled Ward and the cases relying on it, to the extent they required physical interlineation of the original indictment as the only means to amend an indictment. See id. at 566. The court emphasized that the amended indictment was where the defendant could find notice of the specific charges against him in order to prepare his defense. Id. Therefore, the court held, the "physical interlineation of the original indictment is an acceptable but not the exclusive means" of amending an indictment. Id. at 565-66. Based upon the holding in Riney, at least one court has held that a written order granting the State's motion to amend, in which the language of the original indictment with the amendment is reproduced, constitutes an effective amendment. See Aguilera v. State, 75 S.W.3d 60, 64 (Tex.App.-San Antonio 2002, pet. ref'd).

Application

In the present case, the State filed a motion to amend the indictment, which contained both the language of the original indictment and the amending language it requested. Appellant was present at the February 14, 2003 hearing, had notice of the intended amendment, and had no objection to the amendment. The order granting the motion included the language of the original indictment, amended as requested in the State's motion. Consequently, we hold that the order was sufficient to amend the indictment and to put Appellant on notice of the amended language in the indictment. See Riney, 28 S.W.3d at 565-66; Aguilera, 75 S.W.3d at 64. Because the amendment of the indictment was effective, the trial court did not err in denying Appellant's motion for continuance and proceeding to trial on the amended indictment. We overrule Appellant's first issue.

MOTION FOR NEW TRIAL

In his second issue, Appellant contends that the trial court erred in failing to grant a new trial after Appellant had established at the hearing on the motion for new trial that the wrong "Robert Bankhead" had served as a juror.

Relevant Facts

At the hearing on Appellant's motion for new trial, the trial court determined that the person who had actually been summoned for the jury panel was Robert Bankhead, III, who was born on May 24, 1981, and had shown as his mailing address his father's residence. His father, Robert Bankhead, Jr., was born May 21, 1956. Due to a lack of space, the jury summons did not include Robert Bankhead's entire name, nor did it include whether the summoned person was "Jr." or "III." The father, Robert Bankhead, Jr., responded to the jury summons, was petit juror number thirty-six, and was...