Hoisager, James Dwayne ( 2015 )

PD-1279-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/28/2015 10:57:31 AM
Accepted 11/2/2015 10:58:35 AM
ABEL ACOSTA
No. PD-1279-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
James Dwayne Hoisager,
Appellant
v.
November 2, 2015
The State of Texas
Appellee
On Appeal from the 424th District Court of Burnet County, Texas
Cause No. 39,332, The Honorable Daniel H. Mills, Judge Presiding
On Petition from Discretionary Review from Case Number 03-13-00328-CR
In the Court of Appeals For the Third Judicial District of Texas at Austin
Appellant’s Petition for Discretionary Review
Submitted by:
David K. Chapman
Attorney at Law
State Bar Number 04121500
Post Office Box 427
Karnes City, Texas 78118-0427
Tel. (830) 780-3472
Fax: (210) 428-6479
heartregardless@gmail.com
Attorney for James Dwayne Hoisager
ORAL ARGUMENT IS REQUESTED
Identity of Parties and Counsel
Pursuant to Rule 38.1(a), Texas Rules of Appellate Procedure, the following
is a complete list of the names and addresses of all parties to the trial court’s final
judgment and their counsel in the trial court, as well as appellate counsel, so the Court
may at once determine whether they are disqualified to serve or should recuse
themselves from participating in the decision of the case and the Clerk of the Court
may properly notify the parties to the trial court’s final judgment or their counsel, if
any, of the judgment and all orders of the Court of Appeals.
Trial Court
Hon. Daniel H. Mills, District Judge
424th Judicial District
Burnet County, Texas
1701 E. Polk Street, Suite 74
Burnet, Texas 78611
Appellant
James Dwayne Hoisager
TDCJ #01857172
A.M. "Mac" Stringfellow Unit
1200 FM 655
Rosharon, TX 77583
Trial Counsel Appellate Counsel
David Sprinkle David K. Chapman
SBN 00788452 Attorney at Law
Michelle Moore SBN 04121500
SBN 00798294 P.O. Box 427
Burnet Co. Public Defenders Office Karnes City, Texas 78118
1008 N. Water St.
Burnet, Texas 78611
i
Appellee
The State of Texas
Trial and Appellate Counsel
Hon. Wiley P. McAfee
District Attorney
33 and 424th Judicial Districts
rd
P.O. Box 725
Llano, Texas 78643
Trial Counsel Appellate Counsel
Claire Carter Gary W. Bunyard
SBN 00792397 SBN 03353500
Assistant District Attorney
Blake Ewing P.O. Box 725
SBN 24076376 Llano, Texas 78643
Assistant District Attorneys
P.O. Box 725 Lisa C. McMinn
Llano, Texas 78643 SBN 13803300
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
ii
Table of Contents
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Issues for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
ISSUE ONE: Did the Court of Appeals Erred by Failing to Address
Appellant’s Double Jeopardy Claim, and Should This Court Do So on
Discretionary Review?
ISSUE TWO: Did the Court of Appeals Err by Holding That the
Alteration to the Amendment Was an Abandonment Rather than an
Amendment?
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Appellant’s Arguments in the Court of Appeals . . . . . . . . . . . . . . . . . . . . . 3
The Opinion of the Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issue One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issue Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iii
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Certificate of Service and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Appendix – Opinion of the Court of Appeals
iv
Index of Authorities
Federal Cases Pages
Blockburger v. United States, 284 U.S. 299 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 5
Missouri v. Hunter, 459 U.S. 359 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State Cases Pages
Aekins v. State, 447 S.W.3d 270 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . 5, 6
Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . 7, 8
Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975) . . . . . . . . . . . . . . . . . . . 4
Chen v. State, 410 S.W.3d 394
(Tex. App. – Houston [1st Dist.] 2013, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . 14
Curry v. State, 30 S.W.3d 394 (Tex. Crim. App.) . . . . . . . . . . . . . . . . . . . . . . 4, 14
Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997) . . . . . . . . . 10, 12, 13, 14
Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . 7
Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010). . . . . . . . . . . . . . 5, 6, 7
Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . 8
Ex Parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . 6
Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . 5
Ex parte Marascio, Nos. WR-80,939-01, WR-80,939-02, WR-80,939-03
(Tex. Crim. App. Oct. 7, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . 5, 6, 7
v
Gollihar v. State, 46 S.W.3d 3d 243 (Tex. Crim. App. 2001) . . . . . . . . . 4, 8, 9, 10
Hall v. State, 62 S.W.3d 918 (Tex. App. - Dallas 2001, pet. ref’d) . . . . . . . . . . . . 9
Hoisager v. State, No. 03-13-00328-CR, 2015 Tex. App. LEXIS 7402
(Tex. App. - Austin July 17, 2015)
(mem. op., not designated for publication);
Mem. Op. (Tex. App. - Austin July 17, 2015) . . . . . . . . . . . . . . . . . . . . 3, 4, 8, 12
Mason v. State, 740 S.W.2d 517
(Tex. App. - Houston [1st Dist.] 1987, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . 12
Mason v. State, 905 S.W.2d 570 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . 14
Moore v. State, 54 S.W.3d 529 (Tex. App. – Fort Worth 2001, pet. ref’d) . . . . . . 9
Prudholm v. State, 330 S.W.3d 590 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . 14
Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . 10
Studer v. State, 799 S.W.3d 263 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . 12
Federal Constitution Pages
U.S. Const. am. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7
U.S. Const. am. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. am. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15
Texas Constitution, Statutes, and Rules Pages
Tex. Const. art. I, §10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15
Tex. Code Crim. P. art. 1.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
vi
Tex. Code Crim. P. art. 28.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 10, 15
Tex. Code Crim. P. art. 28.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statement Regarding Oral Argument
The Court’s opinions in Ex parte Marascio, Nos. WR-80,939-01, WR-80,939-
02, WR-80,939-03(Tex. Crim. App. Oct. 7, 2015) make it clear that oral argument can
add nothing of importance on the issue of double jeopardy. However, Appellant urges
that the Court entertain argument on the issue of amendments to and abandonments
from indictments. The purpose of these categories was to assure that the substance of
indictments be respected. Although Appellant contends his indictment was harmfully
amended even under current law, Appellant questions whether the categorical
approach to abandonments has overshadowed the emphasis on substance, first set out
in Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997), overruled on other
grounds in Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) and Gollihar v.
State, 46 S.W.3d 3d 243 (Tex. Crim. App. 2001).
Statement of the Case
Appellant was charged in a two-count indictment with the aggravated
kidnapping and aggravated assault of his ex-wife (CR 5-6). A jury found him guilty
of both charges, made an affirmative finding of a deadly weapon as to both, and
vii
assessed his punishment at 10 years imprisonment on each count (CR 40-43, 51-52).
The court ordered that the sentences were to run concurrently (CR 53, 55). Notice of
appeal was timely filed (CR 53, 55, 59).
Statement of Procedural History
On October 25, 2013, Appellant filed his original brief. The State filed its reply
brief on November 14, 2013. On November 22, 2013, the court of appeals received
Appellant’s supplemental brief in which, for the first time, he argued the double
jeopardy ground he presents in this petition; on the same date the Court filed his
motion for leave to file that brief. On December 2, 2013, the Court denied Appellant’s
motion for leave to file Appellant’s supplemental brief.
On July 17, 2015, the court of appeals affirmed Appellant’s case. Hoisager v.
State, No. 03-13-00328-CR, 2015 Tex. App. LEXIS 7402 (Tex. App. - Austin July
17, 2015) (mem. op., not designated for publication). On August 3, 2015, Appellant
filed a timely motion for rehearing. The motion was overruled on August 28, 2015.
This petition is timely if filed, after one of extension of time, on or before October 28,
2015.
viii
Issues for Review
ISSUE ONE: Did the Court of Appeals Erred by Failing to Address Appellant’s
Double Jeopardy Claim, and Should This Court Do So on Discretionary Review?
GROUND TWO: Did the Court of Appeals Err by Holding That the Alteration to the
Indictment Was an Abandonment Rather than an Amendment?
ix
No. PD-1279-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
James Dwayne Hoisager,
Appellant
v.
The State of Texas,
Appellee
On Appeal from the 424th District Court of Burnet County, Texas
Cause No. 39,332, The Honorable Daniel H. Mills, Judge Presiding
On Petition from Discretionary Review from Case Number 03-13-00328-CR
In the Court of Appeals For the Third Judicial District of Texas at Austin
Appellant’s Petition for Discretionary Review
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES James Dwayne Hoisager, Appellant, through David K.
Chapman, his attorney of record, and respectfully presents his Petition for
Discretionary Review, in which he would show the Court as follows:
1
Argument
FACTUAL BACKGROUND
The evidence showed that Appellant went to his ex-wife’s home, threatened her
with a knife, kept her at her home with the aid of that knife, then took her to a church
with the knife close at hand, where they spoke with the minister. RR3:40-41, 49, 52-
56, 62-67, 72-74, 78, 80-84; RR4: 11.
THE INDICTMENT
The two-count indictment charged Appellant with the aggravated kidnapping
and aggravated assault of his ex-wife, both offenses alleged to have arisen on the
same date from the same events:
[Appellant] “did then and there intentionally and knowingly abduct
[complainant] with the intent to prevent the liberation of [complainant] by
using and threatening to use deadly force against [complainant] and
[Appellant] did then and there restrain [complainant] by restricting the
movements of [complainant] without the consent of [complainant] so as to
interfere substantially with the liberty of [complainant] by confining
[complainant] to her home, and [Appellant] did then and there use and exhibit
a deadly weapon, to-wit: a knife, during the commission of the said offense.
[Appellant] “did then and there intentionally and knowingly threaten
[complainant] with imminent bodily injury, and [Appellant] did then and there
use and exhibit a deadly weapon, to-wit: a knife, during the commission of said
offense”.
CR:5-6 (Emphasis and omissions added).
2
Appellant’s first issue relies on the italicized language in both counts of the
indictment; the second, on the bold-faced language in count one. Both deal with the
State’s misuse of the indictment process to deprive Appellant of a fair trial.
APPELLANT’S ARGUMENTS IN THE COURT OF APPEALS
Appellant argued that the trial court erred by granting the State’s request to
amend the indictment and refusing his request for ten days to respond. See Tex. Code
Crim. P. 28.10(b). Br. of Appellant at 5-18.
For the first time in a supplemental brief1 Appellant contended that his
conviction for aggravated assault was barred by his conviction for aggravated
kidnapping.2 Supp. Br. of Appellant at 2-11.
THE OPINION OF THE COURT OF APPEALS
The court held that the alteration of the indictment was an abandonment, not
an amendment, and affirmed Appellant’s conviction. Hoisager v. State, No. 03-13-
00328-CR, 2015 Tex. App. LEXIS 7402 at *6-9 (Tex. App. - Austin July 17, 2015)
(mem. op., not designated for publication); mem. op. at 3-7.3 It concluded that this
1
The court of appeals denied leave to file this brief.
2
There was no request for a jury charge on this issue. RR5:23.
3
This citation is to the court’s memorandum opinion on its website, not to that of
Westlaw or LEXIS.
3
Court’s opinion in Gollihar v. State, 46 S.W.3d 3d 243 (Tex. Crim. App. 2001),
implicitly overruled Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App.), on which
Appellant relied in part. According to the Court, this was because Gollihar explicitly
overruled Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), and Burrell
was the only foundation for Curry. Hoisager, id. The court did not address
Appellant’s double jeopardy claim.
ANALYSIS
ISSUE ONE: Did the Court of Appeals Erred by Failing to Address Appellant’s
Double Jeopardy Claim, and Should This Court Do So on Discretionary Review?
This double jeopardy claim provides the Court with a means of deciding the
issues left unresolved by Ex parte Marascio, Nos. WR-80,939-01, WR-80,939-02,
& WR–80,939-03 (Tex. Crim. App. Oct. 7, 2015).
The Court should grant review for four reasons in addition to the primary one
of addressing the issues raised in Marascio: the jeopardy issue was not raised in the
trial court, making it analogous to Marascio; the double jeopardy violation is clearly
apparent from the face of the record; 4 enforcement of the usual rules of procedural
default serves no legitimate State interest; and the lower court’s refusal to consider
4
Cf. Ex parte Marascio, Nos. WR-80,939-01, WR-80939-02, WR-80,939-03 (Tex. Crim.
App. Oct. 7, 2015), Richardson, J., concurring, slip op. at 1 (double jeopardy violation not clearly
apparent on face of record).
4
the issue ignored this Court’s holding on the merits in Girdy v. State, 213 S.W.3d 315
(Tex. Crim. App. 2006), aff’g 175 S.W.3d 877 (Amarillo 2005).
The Double Jeopardy Clause of the United States Constitution is applicable to
the states through the Fourteenth Amendment and protects Appellant from multiple
punishments. In a case involving double punishments, the Court determines legal
sameness by applying the same-elements test and by discerning whether the
Legislature intended to authorize multiple punishments for the same act. Blockburger
v. United States, 284 U.S. 299, 304 (1932); Missouri v. Hunter, 459 U.S. 359, 368
(1983); Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999)(applying Hunter’s
multiple punishments test to Texas).
In deciding whether one offense is a lesser included offense for double
jeopardy purposes, one compares the statutory elements of the greater offense, as
alleged in the charging instrument of that offense, with the statutory elements of the
lesser-included offense, regardless of how the elements of the latter have been
alleged. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010). Article
37.09 of the code of criminal procedure is also to be considered. Aekins v. State, 447
S.W.3d 270, 274 (Tex. Crim. App. 2014).
In this case, article 37.09(1) applies as it did in Girdy, 213 S.W.3d at 319: the
lesser included offense of aggravated assault was established by same or less than all
5
the facts required to prove aggravated kidnapping, and the test set out in Ex parte
Amador has also been satisfied.
When one offense is a lesser offense is a lesser included offense of another, the
double jeopardy clause prohibits punishment for both. Ex Parte Denton, 399 S.W.3d
540, 546 (Tex. Crim. App. 2013); Girdy, 213 S.W.3d at 319.
When two such offenses occur in “a single continuous act, with a single
impulse, in which several different statutory provisions are necessarily violated,” the
defendant may be punished only once. Aekins, 447 S.W.3d at 275
“Because of the fundamental nature of the double-jeopardy protections, a
double-jeopardy claim may be raised for the first time on appeal or on collateral
attack if two conditions are met: 1) the undisputed facts show that the double-
jeopardy violation is clearly apparent on the face of the record; and 2) when
enforcement of the usual rules of procedural default serves no legitimate state
interest.” Ex Parte Denton, 399 S.W.3d at 544.
A double jeopardy claim is apparent on the face of the trial record if resolution
of the claim does not require further proceedings for the purpose of introducing
additional evidence in support of the double-jeopardy claim. Ex part Denton, 399
S.W.3d at 544-45. And while the State may ordinarily have an interest in maintaining
the finality of a conviction, it has “no legitimate interest in maintaining a conviction
6
when it is clear on the face of the record that the conviction was obtained in
contravention of constitutional double-jeopardy protections.” Id. at 545.
The double jeopardy violation in this case is apparent on the face of the record,
just as it was in Girdy. There are no additional facts needed to establish the violation.
The State alleged the statutory elements and facts essentially identical 5 to those in
Girdy, and the facts proved - aggravated kidnapping and aggravated assault at knife-
point - are also strikingly similar. Girdy, 213 S.W.3d at 316. And his claim arises in
the area in which multiple punishment claims can be addressed, in which the
defendant is punished for one criminal act twice under two different statutes when the
legislature intended the conduct to be punished only once. Bigon v. State, 252 S.W.3d,
360, 370 (Tex. Crim. App. 2008); Girdy, 213 S.W.3d at 319.
In this case, the jury found Appellant guilty of both offenses, entered a deadly
weapon finding as to each, and assessed identical punishments of ten years, which the court
ordered to be served concurrently. CR: 40-43, 51-53. The imposition of concurrent
sentences does not eliminate the bar of double jeopardy, however. Evans v. State, 299
S.W.3d 138, 141 (Tex. Crim. App. 2009). In such cases the greater offense is to be
retained; the lesser vacated. Id.
5
The indictment in the present case was not as bare-bones as that in Girdy, but that is not
material, as Ex parte Amador, 326 S.W.3d at 206 n.5 makes clear.
7
When a defendant has been punished for both a greater and lesser included offense,
the offense to be vacated is the less serious of the two, as measured by the comparative
sentences assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006).
When the sentences are identical, as they are here, and one is an offense of a greater degree
than the other, the lower of the two is to be vacated. Bigon, 252 S.W.3d at 369. Aggravated
kidnapping is a first degree felony. Aggravated assault is a second degree felony. Tex.
Penal Code ann. §§ 20.04(c); 22.02(b). Accordingly, the aggravated assault conviction
must be vacated. The Court should take review, determine that Appellant’s double
jeopardy claim can be considered by the Court, and vacate the conviction and sentence for
aggravated assault.
ISSUE TWO: Did the Court of Appeals Err by Holding That the Alteration to the
Indictment Was an Abandonment Rather than an Amendment?
After the jury had been impaneled and sworn, the trial court overruled Appellant’s
objection to the State’s deletion of the phrase “to her home” from the indictment and
denied his request for ten days to respond to the amendment. RR2: 133; RR3: 23-30.
Relying primarily on Gollihar, 46 S.W.3d at 256-57, the court of appeals held that
the language deleted from the indictment was surplusage, and therefore an abandonment.
Hoisager, 2015 Tex. App. LEXIS 7402 at *6-9; mem. op. at 4-7.
8
The reasons for granting review of this issue, in addition to the error itself are: the
court erroneously applied Gollihar to issues of notice as defined in Tex. Code Crim. P. art.
28.10 in conflict with decisions of other courts; the court of appeals fell into the trap of
examining whether the deletion from the indictment was an abandonment before deciding
whether it affected the substance of the indictment; because the deletion from the
indictment seriously affected a matter of substance, it was not an abandonment; the deleted
language was descriptive of a necessary element of the offense and was an amendment; the
deletion removed the language placing an element of the offense in a specific setting.
In Hall v. State, 62 S.W.3d 918, 920 (Tex. App. - Dallas 2001, pet. ref’d) and
Moore v. State, 54 S.W.3d 529, 547 (Tex. App. – Fort Worth 2001, pet. ref’d),the courts
held that Gollihar does not apply to matters of notice, a direct conflict with the decision
below. As the court of appeals said in Hall:
However, our review of Gollihar reveals that surplusage law was only overruled
insofar as it relates to the sufficiency of the evidence to support a conviction.
Specifically, the only issue before the court was how to dispose of sufficiency of the
evidence questions in light of Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.
1997), and in particular, what constituted a hypothetically correct jury charge. There
is nothing in the reasoning of Gollihar that would suggest the court of criminal
appeals intended to overrule surplusage law as it pertains to article 28.10 of the code
of criminal procedure.
Hall, 62 S.W.3d at 920.
This conflict makes the present case worthy of review.
9
The confusion between notice under article 28.10 and sufficiency of the evidence
helped lead the lower court into two other analytical errors, which provide further
justification for this Court’s consideration of issue two.
Because of its misinterpretation of Gollihar, the court rejected authorities
supporting Appellant’s claim that the deletion from the indictment was a matter of
substance. This was due not only to its mistaken analogy to that case, but also because it
incorrectly interpreted Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997),
overruled on other grounds in Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) and
Gollihar v. State, supra.
In Eastep, the Court began its analysis with a discussion of a defendant’s
constitutional right to notice,6 to be received through the charging instrument. Eastep, 941
S.W.2d at 132. It then emphasized the requirement that an amendment to be made on the
face of the charging instrument. Id. Next, the Court pointed out that the significant issue
in the case was whether the alteration affected the substance of the charging instrument.
Id. The Court made it clear that the answer to this primary question of substance is whether
the alteration was an amendment or an abandonment. Id.
The Court provided examples of amendments from Texas cases requiring the
application of articles 28.10 and 28.11 of the code of criminal procedure. Id. at 132-33.
6
This right is conferred by Tex. Const. Art. I, §10.
10
Prior to this time, there was no judicial rule of what an amendment was; the Court was
creating one in Eastep by a gathering of historical authorities. Id.
The Court then held that an alteration made on the face of the charging instrument
which did not affect its substance was an abandonment, not an amendment, and did not
violate the defendant’s right to notice. Id. at 133. As with amendments, the principal
inquiry was substance first, abandonment second. Id. Once again relying on past cases, the
Court created three categories of abandonments: where the State abandons one of multiple
means of the committing the alleged offense; where it replaces the alleged offense with a
lesser offense; or where it removes language which is not descriptive of what is legally
essential to the validity of the indictment and may therefore be treated as surpusage. Id. at
133-35.
All three forms of abandonment can be seen to have the following qualities in
common. They give the State no advantage in convicting the defendant, they enhance the
defendant’s ability to defend against the original charge, they have a neutral effect, or they
possess some combination of these three.
Accordingly, the first question must be whether the deletion affects a matter of
substance. If it gives the State a significant advantage in convicting the defendant or puts
the defendant at a disadvantage, it should be deemed an amendment of a matter of
11
substance, not an abandonment. This should be the first query under Eastep. The Court
should take review to so hold.
The three categories of abandonments serve a crucial function, but they are best seen
as part of a scheme, made coherent in 1985, to balance both parties’ right to have
challenges to an indictment made with diligence, notice, and fairness. Studer, 799 S.W.2d
263, 265-72 (Tex. Crim. App. 1990); Mason v. State, 740 S.W.2d 517, 519-20 (Tex. App. -
Houston [1st Dist.] 1987, pet. ref’d)(discussion of changes in indictment law as part of
decision of misjoinder issue). Part of the purpose of these changes was to avoid
“fundamental errors” raised for the first time on appeal, depriving the State of notice, and
likewise providing the defendant with notice. Studer, 799 S.W.2d at 568
The essence of the analytical construct created in Eastep is that the court’s first duty
is to ask whether the alteration of the face of the indictment was a matter of substance, not
whether it was an abandonment. 941 S.W.2d at 132. This fits with the purpose of the 1985
changes. The court of appeals took the opposite view; it viewed its paramount duty to seek
out grounds for calling the alteration an abandonment. That is, after making giving lip
service to the requirement of substance, the court proceeded almost directly to the
assumption that it was surplusage and therefore an abandonment. Hoisager, 2015 Tex.
App. LEXIS 7502 at *5; mem. op. at 4. In doing so, it noted, contrary to Appellant’s
argument, that the form of abandonment in this case was a deletion of surplusage, the third
12
form of abandonment. Id. at *6. The lower court’s approach was thus the reverse of the
process that Eastep requires. Accordingly, it led the court to find an abandonment where
none existed.
What happened in Appellant’s case was the converse of the former rule that allowed
reversal for “fundamental errors” raised for the first time on appeal, a rule changed by the
1985 constitutional and statutory amendments mentioned above. The amendment of the
substance of the indictment in this case gave the State the kind of advantage defendants
formerly received when cases were reversed on appeal with no notice to the State in the
trial court.
It follows that the Court should take review for the purpose of recognizing that a
deletion may be an amendment even if it does not fit with any of the three categories
created in Eastep. Any deletion that significantly and adversely impacts the defendant’s
ability to defend his case, or that makes it easier for the State to prosecute him, should be
deemed a change in the substance of the indictment, a more important consideration than
whether it is within one of the three categories. This is because it addresses the issue of
substance, deemed primary in Eastep.
However, because the deletion of the language in Appellant’s case removed
language that was descriptive of a necessary element of the offense, it also constitutes error
13
showing why this particular deletion from his indictment is an amendment, not an
abandonment.
In Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995), the Court held that
“kidnapping becomes a completed offense when a restraint is accomplished” and “the State
[has] the burden to prove that a restraint was completed.” Mason thereby makes restraint
a necessary element of kidnapping. See also Prudholm v. State, 330 S.W.3d 590, 599 (Tex.
Crim. App. 2011)(stating that restraint is an element of aggravated kidnapping in
determining whether it was comparable to the restraint element in the California offense
of sexual battery). Here, the complainant’s home is where the restraint was alleged to have
been first effectuated and “to her home” is necessarily descriptive of restraint.
The deletion was also an amendment because it removed the placement of the
necessary element of restraint from a specific setting. Curry, 30 S.W.3d at 399, cited with
approval in Chen v. State, 410 S.W.3d 394, 396 (Tex. App. – Houston [1st Dist.] 2013, pet.
ref’d).
The impact of the amendment was serious. It allowed the State to expand its range
of proof, not limit it, as is the case with true abandonments. See Eastep, 941 S.W.2d at 132-
35. Thus, for example, when the court allowed the State to amend the indictment, it not
only allowed the prosecution to broaden the scope of the evidence it could rely on for
conviction; it also permitted proof that the offense was committed in a county other than
that alleged in the indictment. The indictment alleged that the offense occurred in Burnet
County, but the victim’s home was in Llano County. CR: 5-6; RR3: 97, 106. It likewise
diminished Appellant’s ability to cross-examine or argue to the jury about this discrepancy
between counties. See U.S. Const. am. 6, 14; Tex. Const. art I. §10; Tex. Code Crim. P.
1.05.
The improper amendment of the indictment over objection, coupled with the denial
of Appellant’s request for ten additional days to prepare, likewise denied by the trial court,
harmfully deprived Appellant of the notice required buy article 28.10(b).
Prayer
Appellant prays that the Court grant review, vacate his conviction for aggravated
assault on the grounds of double jeopardy, and reverse his conviction for aggravated
kidnapping because the trial court allowed the State to amend the indictment after trial
began and denied Appellant ten days to respond.
Respectfully submitted,
/s/ David K. Chapman
David K. Chapman
State Bar No. 04121500
P.O. Box 427
Karnes City, Texas 78118-0427
830-780-3472 Telephone
210-428-6479 Facsimile
heartregardless@gmail.com
Attorney for James Dwayne Hoisager
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CERTIFICATE OF COMPLIANCE AND SERVICE
On this 28th day of October, 2015 I filed a copy of this document through
EFILETEXAS.GOV, using an approved service provider, File & ServeXpress, which
provided a copy to the attorneys for Appellee, Hon. Gary W. Bunyard, Assistant District
Attorney, 33rd and 424th Judicial District, P.O. Box 725, Llano, Texas 78643,
g.bunyard@co.llano.tx.us, and Lisa C. McMinn, State Prosecuting Attorney, P.O. Box
13046, Austin, Texas, 78711-3046, information@spa.texas.gov. I also sent copies of this
document to opposing counsel at these email addresses independently of my email filing
service. I certify that this document was prepared on WordPerfect™WPx6, contains a total
of 3422 words, and otherwise complies with the Texas Rules of Appellate Procedure, as
amended effective January 1, 2014. I also
/s/ David K. Chapman
David K. Chapman
16
APPENDIX
OPINION OF THE COURT OF APPEALS
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00328-CR
James Dwayne Hoisager
v.
The State of Texas
FROM THE 424TH DISTRICT COURT OF BURNET COUNTY, TEXAS
NO. 39332, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found Appellant, James Dwayne Hoisager, guilty of the aggravated kidnapping
and aggravated assault of his ex-wife, Brenda Hoisager (“Brenda”). On appeal, Appellant complains
that the trial court erroneously allowed the State to amend the aggravated kidnapping indictment and
erroneously denied his request for ten days to respond to the amendment. For the reasons that
follow, we affirm both convictions.
BACKGROUND
On the morning of July 8, 2011, Appellant went to Brenda’s condominium, with her
permission, to attend to some business on behalf of their daughter and to do his laundry. Although
their daughter lived in the condominium with Brenda, Brenda and Appellant were alone that
morning. Appellant became upset, having recently learned that Brenda was romantically involved
with another man. When Brenda asked Appellant to leave he refused, prevented her from calling
the police, held a knife to her throat, told her that they were going to go see God that night, and told
her that he had paid someone to kill both of them.
Appellant held Brenda in the condominium at knife point for several hours or more.
They struggled over Brenda’s loaded pistol during this time, with Appellant gaining control and
putting it out of Brenda’s reach. At some point in the afternoon, Appellant drove Brenda to their
church for a counseling session with their pastor, Ross Chandler. Brenda testified that she did not
go to the church willingly and that Appellant kept the knife on hand during the drive. Appellant and
Brenda met Chandler at their church and spoke about their relationship for approximately two hours
before Chandler realized that something was amiss and removed Brenda from the situation. Brenda
reported the incident to the police, who arrested Appellant.
Appellant was charged with aggravated kidnapping and aggravated assault with a
deadly weapon. Count I of the indictment—which charged Appellant with aggravated
kidnapping—originally read:
Defendant . . . did . . . intentionally and knowingly abduct Brenda Hoisager by
restraining the said Brenda Hoisager with the intent to prevent the liberation of the
said Brenda Hoisager by using and threatening to use deadly force against the said
Brenda Hoisager, and the said Defendant did then and there restrain the said Brenda
Hoisager by restricting the movements of the said Brenda Hoisager without the
consent of the said Brenda Hoisager so as to interfere substantially with the liberty
of the said Brenda Hoisager by confining the said Brenda Hoisager to her home, and
the said Defendant did then and there use and exhibit a deadly weapon, to-wit: a
knife, during the said offense.
Trial commenced on April 29, 2013. The jury was empaneled and sworn in the early
afternoon and then released for a lunch break, at which point the State expressed its intention to
2
delete the words “to her home” from the indictment. After the lunch break, the State made a formal
motion to delete the words “to her home,” which the court granted over Appellant’s objection.
Appellant requested ten additional days to prepare in light of the alteration to the indictment, which
the trial court denied. The State read the amended version of the indictment to the jury. The jury
returned a guilty verdict on both counts and assessed a punishment of ten years for each count, which
the trial court ordered to be served concurrently.
ANALYSIS
Appellant contends that the trial court erred (1) by allowing the State to amend the
indictment over his objection and (2) by denying his request to delay trial for ten days to allow him
to respond to the amendment. We disagree.
LEGAL OVERVIEW
“Article I, Section 10 of the Texas Constitution guarantees an accused the right to be
informed of the nature and cause of the accusation against him in a criminal prosecution. It has long
been held that this information must come from the face of the charging instrument.” Eastep
v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State,
28 S.W.3d 561 (Tex. Crim. App. 2000), and Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.
2001). The Texas Code of Criminal Procedure provides that:
(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.
3
(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.
Tex. Code Crim. Proc. art. 28.10.
The Trial Court did not Err in Allowing the State to Alter the Indictment
Appellant argues that the trial court disregarded article 28.10(b) of the Texas Code
of Criminal Procedure by allowing an amendment to the indictment after trial had commenced
despite Appellant’s objection. See Tex. Code Crim. Proc. art. 28.10(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”) (emphasis added); Sanchez v. State, 138 S.W.3d 324,
329 (Tex. Crim. App. 2004) (for purposes of article 28.10, trial on merits commences when jury is
empaneled and sworn). The State contends that article 28.10(b) does not apply because the words
“to her home” were mere surplusage, so their deletion did not constitute a substantive amendment.
Not every alteration to the face of an indictment is an amendment for the purpose of
article 28.10. Only changes that affect the substance of the indictment qualify as amendments.
Eastep, 941 S.W.2d at 132. A modification that does not affect the substance of the indictment is
a mere abandonment that does not trigger article 28.10. Id. at 133. The court of criminal appeals
has recognized three types of language in an indictment that can be abandoned without constituting
an amendment: (1) allegations of one or more alternative means of committing the alleged offense,
4
(2) allegations of a greater offense than remains in the indictment, and (3) surplusage. Id.
“Surplusage is unnecessary language not legally essential to constitute the offense alleged in the
charging instrument.” Id. at 134.
Appellant argues that “to her home” was not surplusage, citing Curry v. State for the
contention that unnecessary language is not surplusage if it is descriptive of a necessary element of
a charged offense. Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000) (citing Burrell
v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), overruled by Gollihar, 46 S.W.3d at 256-57).
This exception to the surplusage rule—often referred to as the Burell exception—applies to language
that (1) places an offense in a specific setting, (2) defines the method by which the offense was
committed, or (3) describes the offense more narrowly. Id. According to Appellant, the phrase “to
her home” was substance rather than surplusage because it (1) put the offense in the specific setting
of Brenda’s condominium, (2) described the method of abduction, which is a necessary element of
aggravated kidnapping,1 and (3) narrowed the scope of the offense.
Appellant’s reliance on Curry—and through it Burrell—is misplaced. The court of
criminal appeals explicitly overruled the Burell exception in Gollihar, rendering Appellant’s
argument invalid. 46 S.W.3d at 256-57. The relevant question is whether the phrase “to her home”
is legally essential to constitute the offense alleged. See Eastep, 941 S.W.2d at 134. A review of
the indictment and the statutory elements of aggravated kidnapping leads us to conclude that the
words “to her home” are not essential to this offense.
1
Tex. Penal Code § 20.04.
5
The indictment originally stated that Appellant abducted and restrained Brenda by
confining her to her home. The revised indictment stated that he abducted and restrained her by
confining her, without specifying the location of confinement. That location, however, is not legally
essential to the offense of aggravated kidnapping.
A person commits an offense [of aggravated kidnapping] if he intentionally or
knowingly abducts another person with the intent to: (1) hold him for ransom or
reward; (2) use him as a shield or hostage; (3) facilitate the commission of a felony
or the flight after the attempt or commission of a felony; (4) inflict bodily injury on
him or violate or abuse him sexually; (5) terrorize him or a third person; or (6)
interfere with the performance of any governmental or political function.
Tex. Penal Code § 20.04 (emphasis added). Under the Texas Penal Code, abduction, which is
legally essential to the offense of aggravated kidnapping, “means to restrain a person with intent to
prevent his liberation by (A) secreting or holding him in a place where he is not likely to be found;
or (B) using or threatening to use deadly force.” Id. at § 20.01(2) (emphasis added). “‘Restrain’
means to restrict a person’s movements without consent . . . by moving the person from one place
to another or by confining the person.” Id. at § 20.01(1) (emphasis added). While the Texas Penal
Code requires abduction and restraint, it does not require that restraint by confinement take place in
the victim’s home or any other particular location. Id. at § 20.01. Consequently the text “to her
home” was not legally essential to the offense of aggravated kidnapping, rendering it mere
surplusage. The removal of this surplusage was, therefore, not an amendment for the purpose of
article 28.10. See Eastep, 941 S.W.2d at 136. The trial court did not err in allowing the State to
remove this text from the indictment. We overrule Appellant’s first point of error.
6
The Trial Court did not Err in Denying Appellant’s Request for Additional Time
In the alternative, Appellant argues that the trial court erroneously disregarded article
28.10(a) by denying his request for ten additional days to respond to the amended indictment. If the
State amends the indictment prior to the day that trial commences, article 28.10(a) requires the court
to allow the defendant up to ten additional days to respond to the amended indictment. Tex. Code
Crim. Proc. art. 28.10. Appellant’s argument fails because there was no amendment. As discussed
above, “to her home” was surplusage, and article 28.10 does not does not apply when the State
deletes surplusage. Accordingly, the trial court did not err in denying Appellant’s request for a ten-
day continuance. We overrule Appellant’s second point of error.
CONCLUSION
Having concluded that the trial court did not err, we affirm the judgments of
conviction for aggravated kidnapping and aggravated assault.
_________________________________________
Cindy Olson Bourland, Justice
Before Justices Pemberton, Field, and Bourland
Affirmed
Filed: July 17, 2015
Do Not Publish
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