Torrey Ladarius Gray v. the State of Texas ( 2022 )

Affirmed and Opinion Filed July 22, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00121-CR
TORREY LADARIUS GRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-76009-Q
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Osborne
Appellant Torrey Ladarius Gray was indicted for the first degree felony
offense of aggravated assault of a public servant. TEX. PENAL CODE § 22.02. The
trial court accepted appellant’s open plea of guilty, found appellant guilty beyond a
reasonable doubt, made an affirmative finding that a deadly weapon (a firearm) was
used, and sentenced appellant to twenty-five years’ confinement.
After appellant’s counsel filed a brief in accordance with Anders v. California,
386 U.S. 738, 744 (1967), we concluded that there was at least one arguable ground
for appeal. Gray v. State, No. 05-20-00121-CR, 2021 WL 3042667, at *2–3 (Tex.
App.—Dallas July 19, 2021, no pet.) (mem. op., not designated for publication). We
remanded the cause for appointment of new appellate counsel to “investigate the
record and file a brief on behalf of appellant that addresses all plausible grounds for
appeal.” Id. at *3.
New counsel has been appointed and has filed a brief asserting that the trial
court erred by granting the State’s motion to amend the indictment filed four days
after appellant was sentenced. Concluding that any error was not harmful, we affirm
the trial court’s judgment.
BACKGROUND
The original July 26, 2019 indictment alleged that appellant committed the
offense “on or about the 25th day of June, 2019.” At the January 23, 2020, hearing
on appellant’s open plea, however, the State offered evidence showing the offenses
at issue1 occurred on May 9 and 10, 2019.
Dallas police officer Alan Hovis testified that on May 9, 2019, he responded
to a complaint about drugs being sold from a car in a parking lot in Dallas County.
The car’s owner also had a felony warrant for burglary of a habitation. Hovis and
his partner first found the car unoccupied, then found the car at a 7-11 on Skillman
Street later the same evening. When Hovis approached the car, he noticed the
occupants moving in a manner consistent with hiding things. Appellant was in the
1
This case was tried together with cause number F19-54568-Q (aggravated robbery), and cause
numbers F19-75964-Q, F19-76047-Q, and F19-76008-Q (aggravated assault against a public servant).
Appellant’s convictions in these cases have been affirmed on appeal. Gray v. State, Nos. 05-20-00117-CR,
05-20-00118-CR, 05-20-00119-CR, and 05-20-00120-CR, 2021 WL 3042673 at *1–2 (Tex. App.—Dallas
July 19, 2021, no pet.) (mem. op., not designated for publication).
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driver’s seat and at least two other people were in the car. The car’s owner, Francise
Coker, was inside the the 7-11, and the officers arrested him there.
As the officers left the store with Coker, the car’s occupants fled to a nearby
apartment complex. Hovis and his partner stood outside their squad car trying to
search Coker and confirm the warrant when a shot was fired toward them. Other
officers arrived at the 7-11, including officer Landon Cooksey, who also testified at
the hearing. About 22 seconds after the first shot, four more shots were fired at the
officers from the apartment complex where the car’s occupants had fled. There were
three sets of shots fired at the officers. Hovis’s squad car was struck by a bullet and
other damage was found later.
At trial, appellant testified that he fired one of the shots, and also admitted to
holding the gun during a subsequent aggravated robbery and carjacking. Appellant
was driving the stolen car when he was arrested.
Like the original indictment, appellant’s judicial confession and the judgment
of conviction reflect the date of offense as June 25, 2019. The judicial confession
and the judgment of conviction are both dated January 23, 2020, the same date as
the hearing.
On January 27, 2020, the State filed a motion to amend the indictment to
“[r]eplace the ‘on or about the 25th day of June, 2019’ with ‘on or about the 10th
day of May, 2019.’” The motion recited that “defense counsel does not object to this
change since this change does not change the charge on the indictment,” and the
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certificate of service reflects that a copy of the motion was emailed to “Attorney for
the Defendant.” The trial court signed an order granting the State’s motion on
January 27, 2020.
In our previous opinion, we noted several concerns regarding the State’s
motion: (1) it was filed by the State and granted by the trial court four days after the
court had already sentenced appellant, (2) despite the recitation that defense counsel
did not object, the motion was not signed by appellant, appellant’s trial counsel, or
appellant’s appellate counsel, and (3) nothing in the record showed that appellant
himself was notified of the State’s motion. See Gray, 2021 WL 3042667, at *2.
In one issue, appellant contends the trial court erred by granting the State’s
motion to amend the indictment four days after appellant was sentenced. We review
a trial court’s decision to permit amendment of an indictment de novo. See Smith v.
State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010) (“The sufficiency of a charging
instrument presents a question of law.”).
DISCUSSION
Amendments to charging instruments are governed by code of criminal
procedure article 28.10. TEX. CODE CRIM. PROC. art. 28.10. “A matter of form or
substance in an indictment” may be “amended after the trial on the merits
commences if the defendant does not object.” TEX. CODE CRIM. PROC. art. 28.10(b).
But an indictment “may not be amended over the defendant’s objection as to form
or substance” if it “charges the defendant with an additional or different offense” or
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prejudices the defendant’s “substantial rights.” Id. art. 28.10(c). All amendments of
an indictment “shall be made with the leave of the court and under its direction.” Id.art. 28.11.
The code of criminal procedure also specifies the requisites of an indictment.
TEX. CODE CRIM. PROC. art. 21.02. Section six of article 21.02 provides, “The time
mentioned must be some date anterior to the presentment of the indictment, and not
so remote that the prosecution of the offense is barred by limitation.” Id. art. 21.02,
§ 6. “It is well settled that the ‘on or about’ language of an indictment allows the
State to prove a date other than the one alleged as long as the date is anterior to the
presentment of the indictment and within the statutory limitation period.” Sledge v.
State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).
Appellant contends the trial court erred by granting the motion to amend the
indictment because “[n]othing in the record shows that Gray, his trial counsel, or his
initial appellate counsel was given the opportunity to object to the State’s untimely
motion.” He argues that the record does not reflect either approval by his counsel or
personal notice to him. And he argues that article 28.10(b) does not specifically
provide for amendment of an indictment after sentencing. Further, he contends the
evidence admitted at trial shows that the date of the offense was May 9, 2019, not
May 10, 2019, the date in the State’s motion. He concludes that because the trial
court erred by granting the motion to amend, the offense date in the judgment should
not be changed to May 9, 2019, because the indictment and the judicial confession
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presented to support his guilty plea show that the offense occurred on June 25, 2019,
and the judgment should conform to those instruments. But he “acknowledges that
the testimony at trial, and the judgments and judicial confessions in the other three
aggravated assault/public servant cases, show that the offense occurred on May 9,
2019.”
The State responds that even if the trial court erred by granting the State’s
motion and amending the indictment after appellant’s sentencing, appellant’s
conviction should be affirmed because (1) the amendment did not harm appellant,
and (2) the original indictment properly charged appellant and included a date within
the applicable statute of limitations and anterior to presentment of the indictment. In
Dukes v. State, 239 S.W.3d 444, 447 (Tex. App.—Dallas 2007, pet. ref’d), we
explained that “we do not reverse for error under article 28.10 unless the record
shows reversible error under rule 44.2,” and error in amending an indictment on the
day of trial over appellant’s objection is statutory, not constitutional. Under appellate
procedure rule 44.2, any statutory “error, defect, irregularity or variance that does
not affect substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b); Dukes,
239 S.W.3d at 447.
“To determine whether the error affected a substantial right, we consider
whether the [indictment], as written, informed the defendant of the charge against
him sufficiently to allow him to prepare an adequate defense at trial and whether
prosecution under the erroneous information would subject the defendant to the risk
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of being prosecuted later for the same crime.” Dukes, 239 S.W.3d at 447. “A
charging instrument that tracks the language of a criminal statute generally possesses
sufficient specificity to provide a defendant with notice of a charged offense.” Id. at
448.
Appellant was charged with aggravated assault against a public servant “on or
about the 25th day of June, 2019.” The indictment, filed on July 26, 2019, provided:
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF
TEXAS:
The Grand Jury of Dallas County, State of Texas, duly organized at the
July Term, A.D., 2019 of the 291st Judicial District Court for said
County, upon its oath do present in and to said Court at said term,
That TORREY LADARIUS GRAY, hereinafter called Defendant, on
or about the 25th day of June, 2019 in the County of Dallas, State of
Texas, did unlawfully then and there intentionally and knowingly
threaten L. COOKSEY, hereinafter called complainant, with imminent
bodily injury, and said defendant did use and exhibit a deadly weapon
to-wit: FIREARM, during the commission of the assault, and said
complainant was at the time of the offense a public servant, namely, a
City of DALLAS Police Officer engaged in the lawful discharge of an
official duty, and said defendant knew that complainant was a public
servant,
Against the peace and dignity of the State.
The indictment meets article 21.02’s requirements, see TEX. CODE CRIM. PROC. art.
21.02, §§ 1–9, and appellant pleaded guilty to these charges.
The amendment did not change the statutory offense charged. Cf. TEX. CODE
CRIM. PROC. art. 28.10(c) (indictment may not be amended over objection if it
charges defendant with additional or different offense). Both the original date
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alleged and the amended date were “anterior to the presentment of the indictment,
and not so remote that the prosecution of the offense [was] barred by limitation.”
See id. art. 21.02, § 6. The record reflects that the indictment was filed on July 26,
2019, less than three months after the offense. As we have noted, the State was not
required to prove that the offense occurred on a specific date. See Sledge, 935
S.W.2d at 255–56. Consequently, changing the date in the indictment did not expose
appellant to the risk of being prosecuted again for the same offense, see id., and
nothing in the record suggests that appellant could not prepare for trial on the offense
charged. Accordingly, we conclude that any error in amending the indictment was
not harmful. See Dukes, 239 S.W.3d at 447. We decide appellant’s issue against him.
CONCLUSION
The trial court’s judgment is affirmed.
200121f.u05 /Leslie Osborne//
Do Not Publish LESLIE OSBORNE
TEX. R. APP. P. 47.2(b) JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TORREY LADARIUS GRAY, On Appeal from the 204th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1976009-Q.
No. 05-20-00121-CR V. Opinion delivered by Justice
Osborne. Justices Schenck and Smith
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 22nd day of July, 2022.
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