Charles Johnson v. State

NUMBER 13-10-00625-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLES JOHNSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Charles Johnson, pro se, challenges his conviction by a jury for
possession of a prohibited substance in a correctional facility. See TEX. PENAL CODE
ANN. § 38.11(d)(1) (West Supp. 2010). On appeal, Johnson argues that the trial court
erred in allowing the State, over Johnson's objection, to amend the indictment on the day
of trial. We affirm.
I. BACKGROUND
Johnson was indicted for possession of marihuana while in a correctional facility.
See id. The indictment contained an enhancement paragraph noting that Johnson was
previously "convicted of the felony offense of Capital Murder." Johnson pleaded not
guilty to the offense, and the case proceeded to trial. On the day of trial, before the
empanelling of the jury and voir dire, the State moved to amend the enhancement
paragraph of the indictment to reflect that Johnson's prior felony conviction was for
attempted capital murder.1 Johnson, who represented himself at trial, objected to the
amendment, arguing that the State was prohibited from amending the indictment on the
day of trial. The trial court overruled Johnson's objection and granted the State's motion
to amend the enhancement paragraph. The jury then convicted Johnson, sentenced
him to eight years' incarceration, and the court ordered the sentence to run consecutively
with his underlying sentence for attempted capital murder. This appeal followed.
II. DISCUSSION
By two issues, which we consider as one, Johnson urges us to reverse his
conviction because, on the day of trial, the trial court allowed the State to amend the
enhancement portion of the indictment despite Johnson's objection, which he contends
violated article 28.10 of the code of criminal procedure. See TEX. CODE CRIM. PROC.
ANN. art. 28.10 (West 2006). Article 28.10 provides as follows:
(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,
1
Johnson agreed that his earlier conviction was for attempted capital murder, not capital murder as
originally alleged in the indictment.
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or a shorter period if requested by the defendant, to respond to the
amended indictment or information.
(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.
Id.
However, enhancements need not be pled in the indictment to be effective. See
Johnson v. State, 214 S.W.3d 157, 158 (Tex. App—Amarillo 2007, no pet.) (citing
Villescas v. State, 189 S.W.3d 290, 292-93 (Tex. Crim. App. 2006); Brooks v. State, 957
S.W.2d 30, 34 (Tex. Crim. App. 1997)). As such, their inclusion in the indictment is mere
surplusage, and changes to the surplusage parts of an indictment fall outside the scope of
article 28.10. See id. (citations omitted). In other words, article 28.10's prohibition
against day-of-trial amendments does not apply to amendments to enhancement
paragraphs. See id. at 158-59; see also Thomas v. State, 286 S.W.3d 109, 114 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (holding that the enhancement allegation is not
part of the State's case-in-chief, is therefore not part of the "substance" of the indictment,
and for that reason, article 28.10 does not apply to the amendment of enhancement
paragraphs); Cuvillier v. State, No. 13-99-00662-CR, 2001 WL 715877, at *1 (Tex.
App.—Corpus Christi June 21, 2001, no pet.) (mem. op., not designated for publication)
(holding that changes to enhancement paragraphs are "not [] amendment[s] subject to
article 28.10"). In this case, then, the State was permitted to amend the enhancement
paragraph of Johnson's indictment on the day of trial, regardless of Johnson's objection,
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and the trial court did not err in allowing the State to amend the indictment in this regard
over Johnson's objection. Johnson's issue is overruled.
IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
18th day of August, 2011.
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