Brian Keith Balentine v. State , 2013 Tex. App. LEXIS 1676 ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-09-00354-CR
_________________
BRIAN KEITH BALENTINE, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________ ___
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 08-05-04682 CR
_______________________________________________________________ ______
OPINION
On original submission, this Court affirmed Brian Keith Balentine’s
conviction for robbery. In addressing one of the issues, we held that the deletion of
a phrase in the indictment at trial was permissible. See Balentine v. State, No. 09-
09-00354-CR, 2011 WL 2732146 (Tex. App.—Beaumont July 13, 2011), rev’d by
Balentine v. State, No. PD-1102-11, 2012 WL 4044895 (Tex. Crim. App. Sept. 12,
2012) (unpublished opinion). On petition for review from our decision, the Court
of Criminal Appeals held that the phrase was not an alternate manner and means
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averment. Balentine, 2012 WL 4044895, at *2. The Court reversed our judgment,
and remanded the case for this Court’s consideration of “whether the phrase was
permissibly abandoned on any other theory.” See id.
We conclude that the phrase was needlessly pleaded and, under the
circumstances presented, the unnecessary language could be abandoned by the
State. The defendant received sufficient notice of the offense charged and was not
surprised or misled. The deletion was not material and did not prejudice the
defendant’s substantial rights. We therefore affirm the judgment of the trial court.
THE APPELLANT’S ARGUMENT
The focus of the offense of robbery is the assaultive conduct against the
victim. Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010) (citing Ex
parte Hawkins, 6 S.W.3d 554, 559-60 (Tex. Crim. App. 1999)). The robbery
indictment in this case initially read as follows: Brian Keith Balentine “did then
and there, while in the course of committing theft of property and with intent to
obtain or maintain control of said property, intentionally, knowingly, or recklessly
cause bodily injury to Robert Rhodes, by resisting arrest by Robert Rhodes and
causing Robert Rhodes hand to be sprained during the resisting.” During trial, the
State sought to delete the phrase “and causing Robert Rhodes[’s] hand to be
sprained during the resisting,” and Balentine objected. The trial court permitted the
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deletion. Balentine argues the deletion of the hand-sprain language “deprived him
of proper notice of the cause of the accusation against him.”
The Sixth Amendment provides in part that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be informed of the nature and cause of the
accusation . . . .” U.S. Const. amend. VI. The Texas Constitution has a similar
provision. See Tex. Const. art. I, § 10. Notice of the nature of the accusation must
be given with sufficient clarity and detail to enable the defendant to anticipate the
State’s evidence and prepare a defense. See State v. Moff, 154 S.W.3d 599, 601
(Tex. Crim. App. 2004).
Balentine argues the deletion from the indictment was an amendment, not an
abandonment. An amendment to an indictment affects the indictment’s substance.
Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled in part on
other grounds by Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000), and
overruled in part by Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex. Crim. App.
2001). Article 28.10(c) of the Code of Criminal Procedure provides that after trial
begins, “[a]n 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
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the defendant are prejudiced.” Tex. Code Crim. Proc. Ann. art. 28.10(c) (West
2006).
Rather than a substantive alteration, an abandonment is the deletion of
unnecessary language from the indictment. See Curry v. State, 30 S.W.3d 394, 399
(Tex. Crim. App. 2000) (“unnecessary language that need not be proved”) (citing
Eastep, 941 S.W.2d at 135). If the change is an abandonment of unnecessary
language, the requirements of article 28.10 of the Code of Criminal Procedure do
not apply. Eastep, 941 S.W.2d at 133, 136.
ANALYSIS
Though exceptions exist, generally an indictment that tracks the statutory
language defining the criminal offense satisfies constitutional and statutory notice
requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998)
(“[s]ubject to rare exceptions . . . .”). When recklessness is charged, article 21.15
requires that the charging instrument include an allegation, with reasonable
certainty, of the act or acts relied upon to constitute recklessness. See Tex. Code of
Crim. Proc. Ann. art. 21.15 (West 2009); Smith v. State, 309 S.W.3d 10, 14 (Tex.
Crim. App. 2010).
Balentine relies on Garza v. State, 50 S.W.3d 559, 563 (Tex. App.—
Houston [1st Dist.] 2001, no pet.). In Garza, the defendant was charged with
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recklessly discharging a firearm into the ground in a crowd of people. Id. at 561.
The trial court allowed the prosecutor to delete the words “in a crowd of people”
shortly before jury selection. Id. at 562. The court of appeals held that the deletion
was an improper amendment, not a permissible abandonment, because “the
deletion did not merely drop an alternative reckless act: it created a different
reckless act.” Id. at 564.
In Balentine’s case, the hand-sprain deletion was a description of the result
of the alleged reckless act, not the act itself. The reckless act was described as
“resisting arrest.” Deletion of the phrase “and causing Robert Rhodes hand to be
sprained during the resisting” did not change the nature of the manner and means
(“by resisting arrest”). See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App.
2002); Auldridge v. State, 228 S.W.3d 258, 262 (Tex. App.—Fort Worth 2007, pet.
ref’d). Unlike Garza, the deletion did not result in the pleading of a different
reckless act at trial.
Balentine argues this case is like Curry v. State because, he says, the phrase
deleted is descriptive of the bodily injury element, and the deletion lessens the
State’s burden of proof. See Curry, 30 S.W.3d 394. In Curry, the phrase deleted
“was not merely descriptive of an element of the offense; it was a manner or means
of committing an element of the offense.” Id. at 403. As the Court in Curry also
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noted, under a standard abandonment, the State limits its theories at trial. Id. at
398. While the State did not limit itself by the deletion in Balentine’s case, it did
not expand the reckless acts described either. Nonetheless, Balentine’s position
appears to be that, as in Curry, the deletion essentially broadened the scope of the
offense alleged and lessened the State’s burden of proof. See id.
Curry cited Burrell v. State, which noted that “allegations ‘not essential to
constitute the offense, and which might be entirely omitted without affecting the
charge against the defendant, and without detriment to the indictment are treated as
mere surplusage, and may be entirely disregarded.’” Curry, 30 S.W.3d at 399
(quoting Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975)). In
Burrell, the Court of Criminal Appeals stated an exception to this general
surplusage rule, and held that when an indictment describes a necessary person,
place, or thing with unnecessary particularity, the State must prove all
circumstances of the description. Burrell, 526 S.W.2d at 802-03. In effect, under
the Burrell exception, where an unessential allegation of this nature was made, it
was not to be rejected as surplusage.
In Gollihar v. State, the Court of Criminal Appeals overruled Burrell and the
Burrell exception in the context of a claim of variance between the indictment and
the proof at trial and insufficiency of the evidence. See Gollihar, 46 S.W.3d at 246,
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256-57. The test for variance is whether the questioned language is material, rather
than whether it is surplusage. Id. at 257 & n.21; compare Auldridge, 228 S.W.3d at
261 (“But this change applies only in a sufficiency analysis.”). As part of the
analysis, a court determines whether the indictment, as written, informs the
defendant of the charge against him sufficiently to allow him to prepare an
adequate defense at trial, and whether prosecution under a deficiently drafted
indictment will subject the defendant to the risk of being prosecuted later for the
same crime. Gollihar, 46 S.W.3d at 257.
Balentine does not argue that the deletion would subject him to being
prosecuted later for the same crime. He focuses on the notice requirement. See id.
at 257 n.24. In order to determine whether the indictment provides adequate notice,
a court first identifies the offense elements, which include the forbidden conduct,
any required culpability, any required result, and the negation of any exception to
the offense. State v. Barbernell, 257 S.W.3d 248, 255 (Tex. Crim. App. 2008);
Tex. Penal Code Ann. § 1.07(a)(22) (West Supp. 2012). The indictment tracked the
statute, and gave notice that Balentine caused bodily injury and that he caused
injury to the officer by the act of resisting arrest. See generally Mata v. State, 632
S.W.2d 355, 356 (Tex. Crim. App. 1982) (An indictment for aggravated assault
that did not identify the specific part of the body injured was not fundamentally
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defective.). The deleted phrase was not essential to notify Balentine of the offense
with which he was charged. See generally Alston v. State, 175 S.W.3d 853, 854-55
(Tex. App.—Waco 2005, no pet.) (abandonment).
But, as Balentine notes, the deleted phrase is a specific description of a
bodily injury, and the offense of robbery, as pleaded here, contains the element of
bodily injury. He asserts that defense counsel was prepared at trial to show there
was no “sprained hand,” and he contends the State sought to delete from the
indictment what it could not prove.
When the State requested permission to delete the language, Balentine
objected, although counsel noted he “was aware of it[.]” Explaining his objection,
defense counsel stated:
But it tells us where he was injured. Now, it’s just bodily injury.
Where? Did he hurt his arm? His leg? His hand?
The State responded:
Judge, I can represent to the Court that the evidence in this case hasn’t
changed. The injury that we’re referring to is the injury to Robert
Rhodes’s hand. The defendant cannot complain of any notice problem
with this indictment. And that would be the only valid objection that
he could have and I don’t see that.
Defense Counsel responded:
I don’t know if I see that I have a valid objection. But anyways,
Judge, I just wanted to get that on the record.
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The injuries sustained by Rhodes were a bruise on his palm, a sore thumb, and
scratches on his hand. The evidence of injury at trial was as follows:
Q. [State’s Counsel]: Tell the jury how you were injured. Describe
what happened?
A. [Rhodes]: It was my right hand. Like the interior, inside of my
hand it was bruised. My thumb had gotten pulled back.
Q. Was it your hand scratched up or anything like that?
A. If I remember correctly, there was two scratches on my hand.
Q. Do you remember where?
A. One was on the back of the hand, and one was on the front.
Q. Now, you mentioned your thumb got hurt. Was your hand -- let
me think of a better way to phrase this. Did it hurt for any
amount of time or anything like that?
A. About three or four days, sir.
Q. So, did you feel actual physical pain --
A. Yes, sir.
Q. -- during this time?
A. Yes, sir.
Q. What did you do with your hand when you got back to the
office?
A. I remember shaking it and holding onto it because it was
hurting.
Q. Did you clean it or anything like that?
A. There was antibacterial type of lotion to try to clean the cuts out
with a hand sanitizer.
Q. Do you remember exactly how your thumb got hurt?
A. No, sir, I don’t. I just remember it hurt like heck.
Q. But it was -- did it happen --
A. During the struggle.
Q. During that struggle?
A. Yes, sir.
Q. The injury to the hand, did that affect how you did your job for
the next few days?
A. I wouldn’t have been able to really utilize the hand to stop
anybody.
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The testimony did not identify a part of the body different from that referred to in
the deleted phrase. Although the evidence establishes the injury was to the victim’s
hand, as the indictment originally alleged, the record contains no medical diagnosis
of a sprain. The difference concerns the degree or character of the injury to the
hand: bruising, cuts, and soreness rather than a sprain.
In Lane v. State, while discussing the definition of “bodily injury” in
determining the sufficiency of the evidence to establish the offense of robbery, the
Court of Criminal Appeals stated that although the injury may be minor, but yet
beyond “mere offensive touching,” the definition does not require consideration of
“fine distinctions as to the degree or character of the physical force exerted.” 763
S.W.2d 785, 786-87 (Tex. Crim. App. 1989). The Court explained as follows, in
part:
“Bodily injury” is defined as “physical pain, illness, or any
impairment of physical condition.” This definition appears to be
purposefully broad and seems to encompass even relatively minor
physical contacts so long as they constitute more than mere offensive
touching. In fact, the degree of injury sustained by a victim and the
“type of violence” utilized by an accused appear to be of no moment,
contrary to the court of appeals opinion here. We have previously held
the evidence sufficient to establish the element of bodily injury when
a complainant testified she suffered physical pain when the defendant
grabbed her briefcase and twisted her arm back, causing her to sustain
a small bruise during the struggle.
....
We conclude that so long as the “violence” is clearly
perpetrated against another “for the purpose of . . . preventing or
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overcoming resistance to theft,” it does not serve the legislative intent
to engage in fine distinctions as to degree or character of the physical
force exerted.
Id. (footnotes omitted). Considering the definition of “bodily injury” and the
record, we conclude that the “degree or character” of the injury to the hand is of
“no moment” in this case. See id. at 786.
We conclude the indictment informed the defendant of the charge against
him sufficiently to allow him to prepare an adequate defense. Gollihar, 46 S.W.3d
at 257; Lord v. State, 63 S.W.3d 87, 92 (Tex. App.—Corpus Christi 2001, no pet.).
Balentine could not have been surprised that the victim testified his hand was
injured, because that is what the original indictment alleged. Although the nature
of the hand injury was bruising, cuts, and soreness, the injury involved the same
body part as that alleged by the language deleted at trial. The State did not attempt
to broaden the scope of the offense; the deletion did not result in Balentine being
charged with an additional or different offense. Whether a sore thumb, bruises, and
scratches to the hand or a true sprain to the hand resulted from the struggle is
immaterial to the offense of robbery for which Balentine was charged.
We hold that the deletion of the unnecessarily pleaded language was not
material, did not prejudice defendant’s substantial rights, and was a permissible
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abandonment. Having overruled the only issue presented for consideration on
remand of the case to this Court, we affirm the judgment of the trial court.
AFFIRMED.
_________________________________
DAVID GAULTNEY
Justice
Submitted on November 5, 2012
Opinion Delivered February 20, 2013
Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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