Opinion
NO. 14-18-00935-CR
08-25-2020
Derrick Latroy FURY, Appellant v. The STATE of Texas, Appellee
Appellant Derrick Latroy Fury appeals his conviction for assault on a public servant. A jury found appellant guilty and assessed his punishment at 50 years in prison. In three issues, appellant contends that the trial court erred in (1) permitting the State to alter the indictment during trial, (2) permitting the State to reopen evidence after resting, and (3) refusing to instruct the jury on self-defense. We affirm.
Background
Appellant was indicted for assault on a public servant as follows:
DERRICK LA TROY FURY, on or about the 8th day of March, 2017 ... did then and there intentionally, knowingly, or recklessly cause bodily injury to Officer Cypert by kicking Officer Cypert with the defendant's foot, and the defendant did then and there know that the said Officer Cypert was then and there a public servant, to-wit: police officer with the City of La Marque, and that the said Officer Cypert was then and there lawfully discharging an official duty, to-wit: escorting the defendant to be magistrate [sic] at the La Marque jail.
Cypert's testimony. At trial, Detective Matthew Cypert of the La Marque Police Department testified that on March 8, 2017, he was a patrol officer working at the La Marque jail. One of his duties was to assist with the magistration process by escorting inmates and providing security. On the day in question, appellant was in a holding cell because the night before he had been combative and damaged another cell. According to Cypert, officers believed appellant presented a safety concern because he was cursing and yelling while other inmates were being magistrated. For that reason, rather than escort appellant to appear before the magistrate judge, the judge came to the door of appellant's holding cell.
After the judge read appellant his rights, the judge informed Cypert that appellant would need to sign an acknowledgement form. The cell door was solid with a viewing window, so Cypert unlocked the door for appellant to sign the form. According to Cypert, appellant was cooperative until Cypert told him he would need to go back into the cell. Cypert said that at the time, he was wearing his patrol uniform with his badge, patches, and patrol gear, and appellant had previously referred to him as "Officer Cypert." After signing the form, appellant indicated that he thought he was free to leave, but Cypert told him to get back in his cell.
Cypert said that appellant then gave him a look that told Cypert that appellant was not going to go willingly back into the cell. Cypert put his hand on the back of appellant's elbow to guide him and repeated that it was time to reenter the cell. Appellant pulled away, fell to the floor, and became "deadweight." Around this time, Sergeant Joshua Human arrived at the cell and both officers gave appellant commands to reenter the cell, but appellant remained noncompliant. Officer Dashel Cantu then arrived, and the three officers tried to grab appellant's arms to get him into the cell, but appellant actively resisted and grabbed onto the doorframe.
When Cypert tried to grab appellant's legs, appellant raised one leg in an upward motion and appellant's foot struck Cypert in the eye. Appellant was barefoot, and Cypert said that appellant's toenail went into the eye. Cypert felt an immediate, painful, burning sensation that lasted for about 30 minutes and had blurred vision for about 30 seconds; however, Cypert did not sustain a significant injury because of the impact.
At some point during the struggle, appellant was able to grab onto Cantu's legs and Cantu fell to the floor. At this point, Human deployed his taser against appellant, but appellant continued to hold onto Cantu's legs until he had been tasered two more times. Only then were the officers able to get appellant into the cell and shut the door. Once inside, appellant continued yelling and began smearing his feces on the door and walls.
Cypert further recounted that around the time appellant started to resist going back into his cell, Cypert activated his body camera. The approximately five-minute video, which was shown to the jury, shows the latter stages and immediate aftermath of the encounter. Although Cypert explained that the video begins after he was kicked in the eye, the video shows Cypert wiping or dabbing at his right eye numerous times. Photographs of Cypert taken on the day of the offense were also admitted into evidence. They show Cypert with significant reddening on the inner half of his eye and what he described as a small cut on the bridge of his nose. Cypert neither sought nor received medical care related to this event.
Other officer's testimony. Cypert's testimony was generally supported by that of Officer Cantu and Sergeant Human. Cantu testified that he did not remember seeing Cypert get kicked because he was paying attention to appellant and not the other officers during the encounter. Cantu said, however, that Cypert was holding his eye afterwards and saying appellant had kicked him. Sergeant Human stated that he, too, was concentrating mainly on appellant but did observe—on the periphery of his vision—appellant's leg rise up and then Cypert stand up holding his eye. Human could not say for sure that he saw the impact, but he said it appeared Cypert had been assaulted. Both Cantu and Human stated that when appellant pulled Cantu to the ground, it looked like appellant was going to bite Cantu's leg. It was then that Human first deployed his taser against appellant.
Mid-trial motions. During a break in Cantu's testimony, the State moved "to abandon surplus language in the indictment." Specifically, the prosecutor requested to remove three words: "to be magistrate," which was part of the language describing the duty Cypert was performing when allegedly assaulted. Defense counsel objected, asserting that the State was not entitled to make the requested alteration because having described the duty in more particularity, the State was required to prove the allegation as stated. The trial court granted the State's motion.
After the officers testified, the State rested. Defense counsel then moved for an instructed verdict on the ground that the indictment alleged that at the time of the offense, appellant was being escorted "to be magistrate[d]," but the evidence showed the incident in question occurred only after appellant had been magistrated, when he was being returned to the holding cell. The trial judge denied the motion.
Appellant's testimony. Appellant testified that he was in jail on March 7, 2017 for allegedly driving with a suspended license, an allegation which he denied. That night he wanted to go to the hospital or see an EMT for his blood pressure, but the officers ignored him. According to appellant, he was attempting to complain to the magistrate judge about jail conditions and the fact he had not been able to contact his family when the altercation occurred. Appellant asserted that Cypert pushed him in the chest several times as appellant was standing near the doorway but inside the cell. The officers then beat and kicked him and slammed his arm with the door, so he grabbed the door jam. Appellant further stated that he grabbed Cantu's legs to stop Cantu from kicking the top of his head. Appellant passed out and lost control of his bowels when Human tasered him. Appellant said that he did not become hostile until he was kicked and pushed, but he explicitly denied kicking anyone during the encounter, explaining that he was lying on the ground the whole time while the officers were all standing.
During cross-examination, appellant denied being convicted of felony possession of cocaine on February 13, 2014, asserting instead that the conviction was for the possession of drug paraphernalia. When the prosecutor offered a judgment of conviction into evidence, the judge sustained defense counsel's objection, telling the prosecutor that she needed to bring a witness to prove up the judgment through fingerprint analysis. The prosecutor further cross-examined appellant about several other felony convictions, including for possession of cocaine and multiple assaults and aggravated assaults. Appellant denied these convictions occurred. Appellant also denied that he had ever been placed in the jail cell that was allegedly damaged or that he had been combative before being magistrated. Reopening of State's case. After the defense rested and the jury left the courtroom before the charge conference, the prosecutor moved to reopen evidence in order to present a rebuttal witness. The judge granted the motion. When the jury was then brought back into the courtroom, the prosecutor again moved to reopen evidence, and the following exchange occurred:
THE JUDGE: That's been granted.... You may proceed.
[Defense Counsel]: Just for the record may I state my objection to the state's reopening?
THE JUDGE: Make it brief we did this outside the presence of the jury. Go ahead make your objection.
[Defense Counsel]: That's it. Simply objection.
THE JUDGE: Overruled. Go right ahead.
The State then presented Sergeant William Kilburn of the Galveston County Sheriff's Office. The defense agreed to stipulate that Kilburn was a fingerprint expert. Kilburn testified that the fingerprints on several judgments of conviction belonged to appellant. The judgments were then admitted into evidence.
During the charge conference, the defense requested a self-defense instruction, which the trial court denied. The jury found appellant guilty and subsequently assessed his punishment at 50 years in prison.
Alteration of Indictment
In his first issue, appellant contends that the trial court erred in permitting the State to alter the indictment during trial over his objection. Appellant insists that the alteration in question constituted an amendment of language in the indictment rather than a mere abandonment. See Tex. Code Crim. Proc. art. 28.10(b) ("A matter of form or substance in an indictment or information may ... be amended after the trial on the merits commences if the defendant does not object."). The State maintains that the alteration was merely an abandonment of surplusage and thus did not invoke article 28.10. We agree with the State.
Article 28.10 provides in full:
(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.
(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.
Amending an indictment requires a motion from the State, an order from the trial court, and documentation in the record reflecting the changes to the indictment sufficient to give the defendant fair notice of the charges against him. See Perez v. State , 429 S.W.3d 639, 642–43 (Tex. Crim. App. 2014). However, not all alterations of an indictment are amendments. An amendment is an alteration to the face of a charging instrument that affects the substance of the charging instrument. See, e.g., Eastep v. State , 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled on other grounds by Gollihar v. State , 46 S.W.3d 243, 256 (Tex. Crim. App. 2001) and Riney v. State , 28 S.W.3d 561, 565 (Tex. Crim. App. 2000). An abandonment, on the other hand, does not affect the substance of the charging instrument. Id. at 133. An alteration may be considered merely an abandonment rather than an amendment if it removes from the charging instrument: (1) one or more alternative means of committing an offense; (2) an allegation, such that the charged offense is thereby reduced to a lesser included offense; or (3) "surplusage." Id. "Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument." Id. at 134. The restrictions and requirements of article 28.10 do not apply to abandonments. See id. at 134–35 ; Stautzenberger v. State , 232 S.W.3d 323, 328 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
To establish assault on a public servant, the State was required to prove that the defendant intentionally, knowingly, or recklessly caused bodily injury to a person whom the defendant knew was a public servant, while the public servant was lawfully discharging an official duty. See Tex. Pen. Code § 22.01(a), (b). As described above, the alteration here involved removing the phrase "to be magistrate" from the description of the duty that Officer Cypert was performing at the time of the alleged assault: "Officer Cypert was then and there lawfully discharging an official duty, to-wit: escorting the defendant to be magistrate at the La Marque jail." With the deletion, the final portion of the description read: "escorting the defendant at the La Marque jail."
Appellant contends that this alteration constituted an amendment because the removed language either (1) described a specific means of committing the charged offense (citing Curry v. State , 966 S.W.2d 203, 206 (Tex. App.—El Paso 1998) ("Because the abandoned language was pleaded as a specific means of abduction, it cannot be surplusage."), vacated , 975 S.W.2d 629, 630 (Tex. Crim. App. 1998) ), or (2) described that which was legally essential to charge a crime and therefore had to be proven even though needlessly stated (citing Wray v. State , 711 S.W.2d 631, 633 (Tex. Crim. App. 1986) ). We reject both contentions.
First, contrary to appellant's suggestion, the language at issue did not describe a specific means of committing the offense but instead was descriptive of why appellant was being escorted at the time of the alleged assault. The description of means in the indictment alleged appellant used his foot to kick Cypert. Appellant's first argument is therefore without merit.
Second, appellant's assertion that the language describes that which was legally essential to charge a crime and therefore had to be proven refers to what has been called the " Burrell exception." See Gollihar , 46 S.W.3d at 250 (citing Burrell v. State , 526 S.W.2d 799 (Tex. Crim. App. 1975) ); Eastep , 941 S.W.2d at 134 n.7 (same). Under that exception to the surplusage rule, when an indictment described a necessary person, place, or thing with unnecessary particularity, the State was required to prove all circumstances of the description. See Gollihar , 46 S.W.3d at 250 ; Eastep , 941 S.W.2d at 134 n.7. Under the exception, dropping such descriptive language from a charging instrument would generally constitute an amendment rather than an abandonment. See Eastep , 941 S.W.2d at 134 & n.7. Extra language describes an element of the offense if the language defines the offense more narrowly, places it in a specific setting, or describes the method by which it was committed. Curry v. State , 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). Here, the use of the words "to be magistrate" in the original indictment served none of these purposes. It did not define the scope of the offense, place the offense in a specific setting, or describe the method by which the assault on the public servant was committed. Cf. Eastep , 941 S.W.2d at 134–35 (holding that the deletion of nine alleged appropriations from a theft indictment could be considered as an abandonment of surplusage); Chen v. State , 410 S.W.3d 394, 396–97 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (holding that the deletion of a word describing a computer mouse that the defendant unlawfully appropriated constituted the abandonment of surplusage). Here, the deleted language merely described the purpose for which appellant was being escorted at the time of the alleged assault.
The Burrell exception, however, predates the Court of Criminal Appeals opinion in Gollihar. In Gollihar , the Court expressly rejected the idea that the State is required to prove an unnecessarily specific description in an indictment. 46 S.W.3d at 256-57 & n.21. Although the issue in Gollihar concerned the standards to apply in assessing sufficiency of the evidence, some courts of appeals have concluded based on the reasoning in Gollihar that the Burrell exception is no longer good law, including in the indictment-alteration context. See, e.g., Briscoe v. State , 542 S.W.3d 109, 112–15 (Tex. App.—Texarkana 2018, pet. ref'd) ; Alston v. State , 175 S.W.3d 853, 855 (Tex. App.—Waco 2005, no pet.). We need not reach that question here because we conclude that even if the Burrell exception is still good law in the indictment-alteration context, it does not apply under the circumstances of this case.
Deleting the three words—"to be magistrate"—did not remove any allegation necessary to describe the charged offense. After the deletion, the remaining words identified the official duty that Officer Cypert was lawfully discharging: "escorting the defendant at the La Marque jail." Deleting these words did not affect the indictment's substance and constituted an abandonment, not an amendment. See Eastep , 941 S.W.2d at 134–35. Because this alteration to the indictment constituted an abandonment, article 28.10's requirements did not apply, and the trial court did not err in allowing the alteration over appellant's objection. Accordingly, we overrule appellant's first issue.
Reopening of Evidence
In issue two, appellant contends the trial court erred in permitting the State to reopen its case after both sides had rested during the guilt-innocence phase of trial. Citing Texas Code of Criminal Procedure article 36.02, appellant argues that the additional evidence offered by the State—Sergeant Kilburn's fingerprint testimony and several prior judgments of conviction—did not materially affect any issues relating to his guilt or innocence and therefore should not have been admitted after both sides had rested.
We first consider whether appellant preserved this argument in the trial court. As recounted above, when the defense rested and the jury left the courtroom for the charge conference, the prosecutor moved to reopen evidence, and defense counsel did not make any objection. The judge granted the motion, but for some reason, when the jury was brought back into the courtroom, the prosecutor again raised the same motion. The judge noted that the motion had already been granted and instructed the prosecutor to proceed. Defense counsel then asked if he could state an objection, and the judge said, "Go ahead." Defense counsel then said, "That's it. Simply objection." The trial judge denied the objection. To preserve a complaint for appellant review, a party must make a timely request, objection, or motion that states the grounds for the ruling sought from the trial court "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context." Tex. R. App. P. 33.1(a) ; Resendez v. State , 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) ; Kuether v. State , 523 S.W.3d 798, 806 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). Here, even assuming defense counsel's objection was timely, counsel simply stated "objection" and even resisted the trial court's invitation to state the nature of the objection. Further, the nature of the objection was not clear from the context of the proceedings. Consequently, appellant did not preserve this issue for appellate review.
Moreover, even if appellant had preserved his complaint, he has failed to establish that the trial court erred in permitting the State to reopen evidence. Appellant is correct that we generally review a trial court's decision on a motion to reopen under an abuse of discretion standard. See, e.g., Peek v. State , 106 S.W.3d 72, 79 (Tex. Crim. App. 2003) ; Swanner v. State , 499 S.W.3d 916, 920 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Appellant's reliance on article 36.02, however, is misguided. That article states in full: "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Art. 36.02. The Court of Criminal Appeals has interpreted the phrase "due administration of justice" in article 36.02 to require a trial court to reopen evidence if the additional evidence "would materially change the case in the proponent's favor." Peek , 106 S.W.3d at 79.
As stated, appellant argues that the State's additional evidence in this case did not materially affect any issue relating to his guilt or innocence. We addressed a similar argument under similar circumstances in Swanner. In that case, we explained that article 36.02 "merely mandates certain circumstances in which a trial court is required to reopen the evidence before argument is concluded." Swanner , 499 S.W.3d at 920 (emphasis in original). In other words, the article "addresses only how a trial court could abuse its discretion in refusing to reopen a case"; it "does not limit a trial court's discretion to reopen a case at any time before argument has concluded." Id.
Because the trial court granted the State's request to reopen evidence, the requirements of article 36.02 are inapplicable to this case. See id. Appellant does not state any other grounds to support his contention that the trial court abused its discretion in permitting the State to reopen evidence. Accordingly, we overrule appellant's second issue.
Instruction on Self-Defense
In his third issue, appellant asserts that the trial court erred in refusing to instruct the jury on self-defense. A defendant is entitled to a self-defense jury instruction when the issue is raised by the evidence, "whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Gamino v. State , 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). In evaluating the trial court's ruling, we view the evidence in the light most favorable to the defendant's requested submission. Id. A trial court errs in denying a self-defense instruction if there is some evidence, from any source, that will support the elements of self-defense. Id. A person generally is justified in using deadly force against another in self-defense if, among other things, that person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful deadly force. See Jordan v. State , 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Tex. Penal Code §§ 9.31, 9.32 ).
Self-defense is a "confession and avoidance" or "justification" defense, requiring that the defendant admit to the otherwise illegal conduct before he may assert the defense. See id. ; Shaw v. State , 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). A defendant cannot both flatly deny the charged conduct and invoke self-defense. See Jordan , 593 S.W.3d at 343 ; Gamino , 537 S.W.3d at 511–12.
Here, appellant explicitly denied in his testimony that he kicked Officer Cypert. That was the charged conduct, and appellant denied committing it. Although appellant acknowledged grabbing Officer Cantu's legs—because, he said, Cantu was kicking him in the head—appellant denied kicking Cypert or any other officer. Because he did not admit to the charged conduct, appellant was not entitled to a jury instruction on self-defense. Although appellant argues that the jury should have been permitted to consider whether appellant kicked Cypert in response to Cypert first using force or, at least, touching appellant, the Court of Criminal Appeals has been very clear on this issue. See Jordan , 593 S.W.3d at 343 ; Gamino , 537 S.W.3d at 511–12. Accordingly, we overrule appellant's third issue.
We affirm the trial court's judgment.
( Frost, C.J., concurring).
CONCURRING OPINION
Kem Thompson Frost, Chief Justice
The trial court did not err in allowing the alteration of the indictment as an abandonment of surplusage. Parting ways with the majority on its analysis of the first issue but agreeing that this court should affirm the trial court's judgment, I concur in today's judgment, but I respectfully decline to join the majority opinion.
The Indictment
Appellant was indicted for assault on a public servant as follows:
DERRICK LATROY FURY, on or about the 8th day of March, 2017 ... did then and there intentionally, knowingly, or recklessly cause bodily injury to Officer Cypert by kicking Officer Cypert with the defendant's foot, and the defendant did then and there know that the said Officer Cypert was then and there a public servant, to-wit: police officer with the City of La Marque, and that the said Officer Cypert was then and there lawfully discharging an official duty, to-wit: escorting the defendant to be magistrate [sic] at the La Marque jail.
During the guilt/innocence phase of the trial, the State moved to abandon as surplusage the three words "to be magistrate" in the indictment. Over appellant's objection, the trial court granted the State's motion and crossed out these three words on the face of the indictment.
The Issue Presented
In his first issue, appellant asserts that the trial court erred in permitting the State to alter the indictment during trial over his objection. Appellant insists that the alteration in question constituted an amendment of language in the indictment rather than an abandonment. The State asserts that the alteration constituted an abandonment of surplusage.
Texas Code of Criminal Procedure article 28.10, which governs amendments to the charging instrument, provides:
(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.
(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(b) (West, Westlaw through 2019 R.S.).
Abandonment, Not Amendment
An amendment is a change to the charging instrument that affects the substance of the charging instrument. Conversely, an abandonment does not affect the substance of the charging instrument, even if the trial court or the lawyer for the State accomplishes the abandonment by physically altering the charging instrument's face. The Court of Criminal Appeals has identified three situations in which an alteration to the face of the charging instrument does not amount to an amendment: (1) abandonment of one or more alternative ways or means of committing an offense; (2) abandonment of an allegation if the effect is to reduce the prosecution to a lesser included offense; and (3) abandonment of surplusage. In these scenarios, the alteration is an abandonment, not an amendment, and it does not invoke article 28.10's requirements.
Eastep v. State , 941 S.W.2d 130, 132–33 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State , 28 S.W.3d 561 (Tex. Crim. App. 2000).
Id. at 133.
Id. at 135.
Id. at 134–35.
Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument. To establish assault on a public servant, the State must prove that the defendant intentionally, knowingly, or recklessly caused bodily injury to a person whom the defendant knew was a public servant, while the public servant was lawfully discharging an official duty. Deleting three words — "to be magistrate" — did not remove any allegation necessary to describe the charged offense. After the deletion, the remaining words identified the official duty that Officer Cypert was lawfully discharging — "escorting the defendant at the La Marque jail." Deleting these three words did not affect the indictment's substance and constituted an abandonment, not an amendment. Because this alteration to the indictment constituted an abandonment, article 28.10's requirements did not apply, and the trial court did not err in allowing the alteration over appellant's objection. Appellant cites a case involving an exception to the rule that a charging instrument may be altered to delete language unnecessary to constitute the offense alleged. The Court of Criminal Appeals has held, "Where the unnecessary matter is descriptive of that which is legally essential to charge a crime, the State must prove it as alleged though needlessly pled." Appellant argues that the three deleted words described an essential element of the charged offense—that Officer Cypert was lawfully discharging an official duty.
Id. at 134.
See Tex. Pen. Code Ann § 22.01(a),(b) (West, Westlaw through 2019 R.S.).
See Chen v. State , 410 S.W.3d 394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
See Eastep , 941 S.W.2d at 134–35 ; Chen , 410 S.W.3d at 395–96.
See Eastep , 941 S.W.2d at 134–35 ; Chen , 410 S.W.3d at 395–96.
See Wray v. State , 711 S.W.2d 631, 633 (Tex. Crim. App. 1986).
Eastep , 941 S.W.2d at 134 n.7.
Extra language describes an element of the offense if the language defines the offense more narrowly, places it in a specific setting, or describes the method by which it was committed. Here, the use of the words "to be magistrate" in the original indictment served none of these purposes. It did not define the scope of the offense. It did not place the offense in a specific setting. It did not describe the method by which the assault on the public servant was committed. The words "to be magistrate" were not legally essential to charge the crime, and the trial court did not err in allowing the alteration of the indictment to effect the abandonment of these three words.
Curry v. State , 30 S.W.3d 394, 399 (Tex. Crim. App. 2000).
See Chen , 410 S.W.3d at 396–97.
Id.
Id.
See Eastep , 941 S.W.2d at 134–35 (holding that the deletion of nine alleged appropriations from a theft indictment could be considered as an abandonment of surplusage); Chen , 410 S.W.3d at 395–96 (holding that the deletion of a word describing the mouse that the defendant unlawfully appropriated constituted the abandonment of surplusage).
The court should overrule the first issue based on the analysis set forth above.