Sergio Linares v. State ( 2001 )

No. 04-98-00047-CR Sergio LINARES, Appellant v. The STATE of Texas, Appellee From the 49th Judicial District Court, Webb County, Texas Trial Court No. 89-CRA-00251-DI Honorable Manuel Flores, Judge Presiding

Opinion by: Alma L. López, Justice

Sitting: Alma L. López, Justice
Paul W. Green, Justice
Karen Angelini, Justice

Delivered and Filed: June 20, 2001

AFFIRMED

Sergio Linares appeals from his conviction of attempted murder. Linares complains in four issues that the trial court committed error by granting leave to amend the indictment in his absence, by not physically altering the indictment to reflect the amendment, by not re-arraigning him outside the presence of the jury on the amended indictment, and by subjecting him to a trial on an indictment that was never physically altered. For the reasons set forth below, we overrule Linares's four issues and affirm his conviction.

The Original Indictment & Amendment

On June 15, 1989, Linares was indicted for attempted murder and pled not guilty to the charge. The case was tried to a jury which returned a verdict of guilty and assessed punishment at twenty years imprisonment in the Texas Department of Criminal Justice-Institutional Division and a fine of $20,000. The original indictment presented to the grand jury in March 1989 stated that Linares "did then and there attempt to cause the death of an individual, the said Alfonso Quiroz, by shooting him with a firearm." On July 6, 1989, the State submitted a motion to amend the indictment, requesting that the general statement of the offense contained in the indictment be replaced with a specific definition of attempted murder. The proffered amendment stated: "that Linares intentionally and knowingly, with the specific intent to commit the offense of murder did then and there attempt to cause the death of an individual, Alfonso Quiroz, by shooting him with a deadly weapon, a firearm, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended."

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. Tex. Crim. Proc. Code Ann. § 28.10(a) (Vernon 1989). Furthermore, all amendments of an indictment or information shall be made with leave of the court and under its discretion. Id. at § 28.11.

In his first issue Linares contends that the trial court erred in granting leave to amend the indictment in his absence. The record on appeal contains a signed and dated certificate of service indicating that the State notified Linares's counsel of the motion to amend the indictment the same day it was presented to the trial court. However, the three-page trial transcript of the proceeding lacks any indication that the motion to amend the indictment was heard or granted by the court. The trial transcript consists of a discussion between the State's attorney, defense counsel, and the trial judge as to whether Linares was in jail and could be brought to the court room for a hearing on the motion to amend. Although the transcript of the proceeding is seemingly incomplete, an order granting the State's motion to amend was issued on August 14, 1989. To determine if Linares was in fact present when the motion to amend the indictment was heard, the trial court held an evidentiary hearing on July 2, 1998. ⁽¹⁾ The trial court issued findings of fact which suggest that while Linares may not have been present when the motion to amend was first called, he was present when the motion was heard and granted by the trial judge. ⁽²⁾ Because Linares was given prior notice of the motion to amend the indictment and said motion was made in Linares's presence in open court, we find that the trial court did not err by granting leave to amend the indictment, and therefore overrule Linares's first issue. Alteration of the Indictment & Additional Time to Prepare  

Linares contends in his second issue that the trial court committed error by failing to order an actual, physical alteration of the indictment. An indictment provides a defendant notice of the offense charged so that he may prepare, in advance of trial, an informed and effective defense. See Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998). It is well established that notice of the nature and cause of the accusation must come from the face of the indictment, not from a motion or a trial court order attached thereto; and an effective means of accomplishing an amendment of the indictment is by interlineation - the actual physical alteration of the face of the charging instrument. See, e.g., Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997); Ward v. State, 829 S.W.2d 787, 794 (Tex. Crim. App. 1992)Rent v. State, 838 S.W.2d 548, 550 (Tex. Crim. App. 1990); Labelle v. State, 720 S.W.2d 101, 110 (Tex. Crim. App. 1986); Voelkel v. State, 501 S.W.2d 313, 315 (Tex. Crim. App. 1973). However, the Texas Court of Criminal Appeals recently held that physical interlineation of the charging instrument is only one means to accomplish an amendment. Physical interlineation of the original indictment is not the exclusive means of effecting an amendment to the indictment. See Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000).    The Court of Criminal Appeals overruled Ward v. State and those cases relying on it to the extent they require physical interlineation of the original indictment as the only means to accomplish an amendment. ^{(3) The court specifically noted that Ward v. State continues to stand for the proposition that "neither the 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." See Riney, 28 S.W.3d at 566.}

Turning to the case at bar, we must determine whether the amendment came within the directive announced in Riney. See id. The original indictment charging Linares with attempted murder was not actually physically altered to reflect the amendment. Yet, the order amending the indictment restated the original indictment in its entirety and simply incorporated the amended language into the body of the indictment. Due to its specificity, the order became the amended indictment. This was an appropriate means of effecting an amendment to the indictment. Moreover, the record reveals that Linares did not object to the failure to physically alter the indictment before the trial on the merits began. "If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any postconviction proceeding." Tex. Crim. Proc. Code Ann. §1.14(b) (Vernon Supp. 2000). Furthermore, Linares filed a motion for new trial in June of 1990 and failed to show as grounds that the indictment had not been physically altered, demonstrating yet again that Linares waived his right to object to any error of form in the indictment. Because the record does not reflect that an objection was made regarding a defect, error, or irregularity in the indictment (i.e., that it was not physically altered) before the trial began, we find that Linares waived his right to object and therefore overrule his second issue.

Linares further asserts that the trial court committed error by failing to afford him ten days to prepare for trial after the indictment was amended. If an indictment is amended before trial, the defendant has an absolute right to request ten days in which to respond to the amended indictment. Tex. Crim. Proc. Code Ann. § 28.10(a) (Vernon 1989). The record reflects that the motion to amend the indictment was granted on August 14, 1989, and that the trial on the merits did not commence until April 16, 1990, nine months after the motion to amend was granted. The record does not indicate that Linares requested ten additional days of preparation at any time after the motion to amend was granted and prior to the commencement of the trial. A prerequisite to presenting a complaint for appellate review is that the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint; and that the trial court ruled on the request, objection, or motion either expressly or implicitly. Tex. R. App. P.33.1(a). Since Linares did not request ten additional days of preparation time prior to trial and because he failed to object, we find that Linares failed to preserve any error for appellate review.

Arraignment

In Linares's third issue, he contends that the trial court erred by failing to re-arraign him on the amended indictment outside the presence of the jury. The arraignment hearing was conducted on August 14, 1989, the same day that the trial court heard and granted the motion to amend the indictment. Due to a seemingly incomplete transcript of the arraignment proceeding, we are unable to determine whether Linares was re-arraigned on the amended indictment in open court and outside the presence of the jury after the motion to amend the indictment was granted. However, Rule 44.24 of the code of criminal procedure states in pertinent part that "the Court of Criminal Appeals shall presume that...the defendant was arraigned...unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record." Tex. Crim. Proc. Code Ann. § 44.24(a) (Vernon 1979); see Garcia v. State, 629 S.W.2d 196, 199 (Tex. App.-Corpus Christi 1982, pet. ref'd). Furthermore, Linares did not raise this issue prior to the commencement of the trial on the merits, during the trial on the merits, or in his motion for new trial. Because Linares did not present a timely request, objection, or motion to the trial court concerning re-arraignment on the amended indictment outside of the presence of the jury, Linares failed to preserve the error for appellate review. See Tex. R. App. P.33.1(a).

In Linares's fourth issue, he asserts that the trial court erred by subjecting him to a trial on an amended indictment that was never physically altered. The amended indictment which was read to the empaneled jury and to which Linares pled not guilty, is in accord with the charge submitted by the trial judge to the jury. In other words, there is no discrepancy between the amended indictment and the jury charge. Furthermore, "an indictment shall not be held insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant." Tex. Crim. Proc. Code Ann. § 21.19 (Vernon 1989). We find that the amended indictment sufficiently provided Linares with the required notice of the charge against him. Moreover, the amended indictment provided a specific definition of attempted murder, and thus enhanced Linares's ability to prepare an informed and effective defense. See Garcia, 981 S.W.2d at 685. Linares's substantial rights were not affected by subjecting him to a trial on the amended indictment for which he had ample time to prepare a defense. Thus, we overrule Linares's fourth issue. The trial court's judgment is affirmed.

Alma L. Lopez, Justice

Do Not Publish

1. The Texas Court of Criminal Appeals granted Linares an out of time appeal in December 1997.

2.

The court found that Linares was not present at the time the case was called, but that Linares was present at some point because he testified that there was a discussion about the motion to amend and that an objection was made but that he did not remember the nature of the objection. The trial court further found that there was an order that was signed granting the motion to amend the indictment and that the motion to amend only added the specific definition of attempt and did not change the character of the indictment or allege a new offense.

3. ³ Riney v. State overruled Ward v. State and Eastep v. State, and abrogated Rent v. State.