White v. State, B14-92-00689-CR

• Court: Texas Court of Appeals
• Writing for the Court: DRAUGHN
• Citation: White v. State, 874 S.W.2d 229 (Tex. App. 1994)
• Decision Date: 24 March 1994
• Docket Number: No. B14-92-00689-CR,B14-92-00689-CR
• Parties: Arness WHITE, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)

Page 229

874 S.W.2d 229

Arness WHITE, Appellant, v. The STATE of Texas, Appellee.

No. B14-92-00689-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 24, 1994.

Rehearing Overruled April 21, 1994.

Brian W. Wice, Houston, for appellant.

Rikke Graber, Houston, for appellee.

Before MURPHY, SEARS and DRAUGHN, JJ.

OPINION ON MOTION FOR REHEARING

DRAUGHN, Justice.

After consideration of appellant's motion for rehearing, we withdraw our previous opinion and replace it with the following.

A jury found appellant guilty of aggravated robbery. After finding both of the two enhancement paragraphs true, the trial court assessed punishment at sixty-five years imprisonment. In ten points of error, appellant asserts the trial court improperly permitted the state to amend the indictment against appellant; the trial court committed reversible error in denying appellant's motion to suppress a knife and certain oral statements obtained as the result of an improper frisk and custodial interrogation; and the trial court erred in failing to file written findings of fact and conclusions of law with regard to the oral statements. Appellant further makes certain Batson challenges under the U.S. and Texas Constitutions, and claims the trial court permitted the state to indulge in improper jury argument. Finally, appellant asserts that he was improperly denied the opportunity to present a videotape of the identification lineup, in order to cross-examine the complainant about the individuals other than appellant who participated in the lineup. We overrule all points of error, and affirm the verdict.

The record reflects that around midnight on July 31, 1991, Ms. Tammy Pinson drove to a small convenience store to purchase milk for her two-year-old son. She and her two children were spending the night with her mother. Upon arriving at the store, Ms. Pinson approached the front door, as the lights were on and she saw employees inside. However, upon attempting to enter, she found that the store had already been closed for the night. As she returned to her truck, two men came toward her from the side of the store. Appellant threw a bicycle in the back of Pinson's truck, and proceeded to enter the truck on the passenger side. He held a large folding knife to Ms. Pinson's neck as the other man cursed her and told her to move over so that he could get in the driver's seat. This placed Ms. Pinson between the two men.

Ms. Pinson testified that as they drove away in her truck, she believed she was in great danger and was going to die. The men continued to curse her, and hit her several times. They repeatedly threatened that she "had better have some money." Appellant pulled on her head, and held the large knife in his hand throughout the incident.

The driver eventually pulled the truck off the road near a trash dump. Appellant ordered Ms. Pinson out of the truck. He led her to the rear of the vehicle while the driver remained at the wheel. Appellant, knife in hand, then asked Ms. Pinson to remove her clothes. Apparently she did not do so, and appellant eventually pulled them off himself and fondled her breast. The driver became impatient and related his urgency to appellant. The two men argued, but finally appellant returned Ms. Pinson's clothes and the two men drove away.

Ms. Pinson dressed and ran to find help. A woman driving down the street saw her and returned her to her mother's house, where her mother called the police.

Around 3:15 a.m. that same night, the police located her truck parked in front of a known crack house. After being dusted for fingerprints, the truck was returned to Ms. Pinson.

The next night, August 2nd, Houston Police Officer N.R. Coon picked up an informant who told him that he knew someone that might have information about the case. The informant accompanied Officer Coon in the patrol car, and identified appellant, who was riding a bicycle, as the person with the information.

Officer Coon stopped to talk with appellant, who, upon being asked, said his name was Ernest Brown, but had no identification to confirm this. The officer asked if he had any knowledge about who had been driving Ms. Pinson's truck. Appellant said that he did, and offered to take Officer Coon to a person by the name of Mickey Thompson. Since appellant would be riding in the patrol car, Officer Coon performed a frisk pursuant to police department procedure, in order to insure no weapons were carried into the car. This frisk produced a large folding knife, which was found in appellant's back pocket.

Appellant then took Officer Coon to a house located at 7633 Sundown Street, and told him that Mickey Thompson could be found there. Coincidentally, Officer Coon was acquainted with the occupants of that home and knew that no one lived there by that name.

Officer Coon then told appellant he needed to substantiate his identity. Appellant took him to, 8311 Dockal Street, to speak to his wife. However, appellant's wife informed the policeman that his name was not Ernest Brown, but was, instead, Ricky White. This conflict made Officer Coon suspicious of appellant, but he still had no probable cause to arrest him for the robbery. Officer Coon decided to arrest him for the offense of riding a bicycle at night without a headlight. Later that day, appellant participated in a lineup at which Ms. Pinson unequivocally identified appellant as the perpetrator.

In point of error one, appellant contends the trial court committed reversible error when, prior to voir dire, it permitted the prosecution to delete the words "use a" from the indictment. Appellant argues that this deletion results in an amendment to the indictment, entitling appellant's counsel to a ten-day notice period pursuant to TEX.CODE CRIM.PROC.ANN. art. 28.10 (Vernon 1989). The state contends this deletion was not an amendment which changes or alters the offense charged, but merely an abandonment of one of the allegations.

Prior to the deletion of those words, the indictment read in pertinent part:

[w]hile in the course of committing theft of property owned by TAMMY PINSON and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] TAMMY PINSON in fear of imminent bodily injury and death, and the Defendant did then and there use a exhibit a deadly weapon, to wit, A KNIFE. (emphasis added).

At the arraignment, the state moved to delete the words "use a" from the indictment, by bracketing those words and handwriting the word "abandoned" underneath them. The trial court granted this request over appellant's ardent objections.

Appellant argues that the writing of the word "abandoned" on the charging instrument effected an amendment to the indictment. Generally, an amendment becomes effective when the charging instrument is physically altered to reflect the change sought to be made. See Rent v. State, 771 S.W.2d 723, 727 (Tex.App.--Dallas 1989) aff'd per curiam, 838 S.W.2d 548 (Tex.Crim.App.1990).

Appellant cited in his brief and during oral argument many cases upon which he relies to support his position that the deletion or abandonment of the words "use a" constituted an amendment entitling him to ten days notice. However, appellant's reliance on these cases is misplaced. In the cases cited by appellant, there was no question that an actual amendment was being sought, and furthermore, each of those cases dealt with clear changes and amendments which affected substantially the charges against the defendants. See e.g., State v. Murk, 815 S.W.2d 556 (Tex.Crim.App.1991) (Amendment to delete portions of indictment resulted in a failure to allege the essential element of intent to commit the crime); Hillin v. State, 808 S.W.2d 486 (Tex.Crim.App.1991) (State attempted to make a trial amendment after trial on the merits had commenced); Boutte v. State, 824 S.W.2d 322 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd) (Attempted deletion of the word "aggravated" in an enhancement paragraph during the punishment phase of the trial resulted in improper amendment requiring reversal); Rent, 771 S.W.2d at 727 (State attempted to add the words "oral and anal" before the words "deviate sexual intercourse," significantly altering the original indictment).

It is clear from the wording of the original indictment that what was intended was "use and exhibit." It has long been established in Texas that when a charging instrument alleges an offense in the conjunctive, as with the use of the word "and," it is proper to charge the jury in the disjunctive form by using the word "or." Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); Robinson v. State, 596 S.W.2d 130, 133-34 (Tex.Crim.App.1980). The decision to abandon one of two alternative allegations as to the manner of committing the offense is not an amendment of the indictment within the meaning of TEX.CODE CRIM.PROC.ANN. art. 28.10 (Vernon 1989). Garcia v. State, 537 S.W.2d 930, 933 (Tex.Crim.App.1976); Holder v. State, 837 S.W.2d 802, 806 (Tex.App.--Austin 1992, pet. ref'd). Subsection (c) of art. 28.10 provides:

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.

In the present case, the alleged amendment neither charged appellant with a new offense nor prejudiced any of his substantial rights. Since the jury could have been charged in the disjunctive, the state would have had the option to prove only that appellant "exhibited" a knife during the commission of the crime. In fact, the state's burden may have been heavier after the deletion of the words "use a" because the state then only had one theory on which to convict appellant, as opposed to giving the jury two possible choices from which to pick. We hold that the deletion and abandonment of the words "use a"...