Opinion
PD-0677-21
07-27-2022
HAROLD GENE JEFFERSON, Appellant v. THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE ELEVENTH COURT OF APPEALS TAYLOR COUNTY
OPINION
KELLER, P.J.
Appellant was indicted for one count of sexual assault and one count of indecency with a child. The State amended the indictment to add two more sexual-assault counts. On appeal, Appellant complained that the trial court erred in allowing the amendment and that counsel was ineffective for failing to object to the amendment or otherwise preserve error. The first two questions in this case are whether adding a count constitutes adding an additional offense to the indictment and whether counsel should have known that. We answer both of those questions "yes." We also conclude that the court of appeals erred in its ineffective-assistance analysis in several other respects. Consequently, we reverse the judgment of the court of appeals and remand for further proceedings.
I. BACKGROUND
A. The Indictments
Appellant was indicted for sexual assault by intentionally and knowingly penetrating the sexual organ of the child victim with his sexual organ. Appellant was also indicted for indecency with a child by touching the child's breast.
The State later moved to amend the indictment to add two new sexual assault counts. In addition to the original sexual assault count, the State sought to charge Appellant with (1) intentionally and knowingly causing the child victim's mouth to contact Appellant's sexual organ and (2) intentionally and knowingly causing the victim's sexual organ to contact Appellant's mouth. The trial court granted the State's motion to amend. As a result of the amendment, the number of counts charged by the indictment increased from two to four. The record does not reveal an objection by defense counsel to the amendment. Defense counsel requested ten additional days to prepare as a result of the change in the indictment. The trial court granted that request.
The grounds for review are the following: 1) Whether "[t]he 11th Court of Appeals erred where it decided an important question of state law, specifically what constitutes an 'additional or different offense' in the context of Texas Penal Code section 22.011 (a)(2), based on erroneous statutory interpretation that conflicts with decisions of the Court of Criminal Appeals"; and 2) whether "[t]he 11th Court of Appeals erred when it applied an incomplete, and therefore wrong standard to dispose of Appellants ineffective assistance of counsel claim."
At a motion for new trial hearing, defense trial counsel testified that he objected to the amendment in a hearing on the matter. But the reporter's record does not include a transcript of any such hearing, and the record does not otherwise corroborate trial counsel's claim that he objected. The trial court denied the motion for new trial.
B. Appeal
Among other things, Appellant complained on appeal that the trial court erred to amend the indictment to include the two new counts. He claimed that the convictions on the new counts were void because he was not indicted by a grand jury for the new counts. He relied on Nix v. State, which indicated that a judgment is void if a document purporting to be a charging instrument does not satisfy the constitutional requisites of a charging instrument. Appellant contended, "The Texas Constitution requires that, unless waived by the defendant, the State must obtain a grand jury indictment in a felony case." He further argued, "Absent an indictment or valid waiver, a district court does not have jurisdiction over the case." And he pointed out that it was undisputed that the grand jury did not indict Appellant on the new counts, but that the charges "were added by the District Attorney's Office without authorization from the grand jury."
65 S.W.3d 668 (Tex. Crim. App. 2001).
Waiver occurs when a known right is purposefully given up. Forfeiture is what occurs when a right that must be preserved by objection is not so preserved. See Ex parte Beck, 541 S.W.3d 846, 850 n. 6 (Tex. Crim. App. 2017) ("Whereas rights that are subject to forfeiture may be lost by inaction alone, rights that are subject to waiver cannot be lost by mere inaction and instead must be expressly waived by a defendant.").
In addressing the complaint that his convictions in the added counts were void, the court of appeals held that the failure to object waives any error with respect to an amended indictment. The court indicated that the right to a grand jury indictment is a waivable right. Because the right is waivable, the court concluded that convictions on counts added by amending an indictment are not void.
Jefferson v. State, No. 11-18-00184-CR, 2021 WL 2462155, *2 (Tex. App.-Eastland June 17, 2021) (not designated for publication).
See also Tex. Code Crim. Proc. art. 1.141 ("A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony."). This provision is consistent with Woodard's characterization of the right for felony charges to be screened by a grand jury as a waiver-only right. See King v. State, 473 S.W.2d 43, 51 (Tex. Crim. App. 1971) (holding that the then-newly minted Article 1.141's waiver-of-indictment provision did not violate Article I, Section 10, of the Texas Constitution); Duron v. State, 956 S.W.2d 547, 550, n.2 (Tex. Crim. App. 1997) ("[W]e have held that a defendant's art. I, § 10 rights to a grand jury indictment are not forfeited by a failure to object.").
Id. (citing Trevino v. State, 470 S.W.3d 660, 663 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd), quoting Woodard v. State, 322 S.W.3d 648, 657 (Tex. Crim. App. 2010)).
Id. at *3.
Appellant also complained that counsel was ineffective for failing to object to the amendment or failing to have that objection memorialized in the record. Although trial counsel testified that he objected in a hearing on the motion to amend, Appellant contended that the court reporter's record refuted that testimony by showing that no such hearing occurred. And Appellant contended, "Even if a hearing existed as trial counsel claims, trial counsel failed to preserve an objection to an amendment by requiring the hearing to be recorded or objecting in writing to the lack of a court reporter."
The court of appeals cited an unpublished court-of-appeals opinion holding that an amended indictment does not allege a different or additional offense if it adds another count of the same charged offense. The court of appeals also found that there was a factual dispute about whether counsel objected to the amendment and that it must be assumed that the trial court resolved that conflict in support of its ruling denying Appellant's motion for new trial. The court of appeals further suggested that, even if counsel did not oppose the amendment, he might have had a strategic reason for that lack of opposition. And the court pointed to the State's contention that Appellant's defensive theory was the same for all offenses.
Id. at *5 (citing Duran v. State, No. 07-07-0110-CR, 2008 WL 794869, at *3-4 (Tex. App.-Amarillo Mar. 26, 2008, pet. ref'd) (not designated for publication)) (discussing Tex. Code Crim. Proc. art. 28.10(c)).
Id.
Id. ("Even if we assume that trial counsel did not oppose the amendment, the State cites Stewart v. State . . . for the proposition that trial counsel might have a strategic reason for not opposing a requested amendment. In Stewart, the Dallas Court of Appeals noted that trial counsel might not want to oppose a requested amendment in order to avoid unnecessary delay.").
Id.
II. ANALYSIS
A. Amendment of the Indictment
In his first ground for review, Appellant criticizes the court of appeals's reliance on the unpublished opinion its cites. Appellant contends that, because of their elements, the offenses at issue here have been construed for double-jeopardy purposes to be separate offenses, and consequently, their addition to the indictment did in fact result in the allegation of additional offenses.
In his petition, the ground for review reads: "The 11th Court of Appeals erred where it decided an important question of state law, specifically what constitutes an 'additional or different offense' in the context of Texas Penal Code section 22.011 (a)(2), based on erroneous statutory interpretation that conflicts with decisions of the Court of Criminal Appeals."
1. Preservation
The State contends that Appellant's current argument was not raised before the trial court or the court of appeals. The State argues that Appellant seeks for the first time to have this Court construe the meaning of Article 28.10, which prohibits an amendment over defense objection that results in an "additional or different offense" in the indictment. The State contends that Appellant did not raise this issue at trial or in his motion for new trial and that Appellant's argument on appeal was that the judgments for the new offenses were void under Nix.
It is true that Appellant's claim does not appear in the trial record. But Appellant did claim on appeal that counsel was ineffective for failing to preserve error with respect to the new counts in the amended indictment, and the court of appeals addressed that claim in part by relying upon an unpublished court-of-appeals opinion construing Article 28.10. Whether the court of appeals's reliance upon that opinion was correct is directly relevant to its resolution of Appellant's ineffective-assistance claim.
The status of an added count as a separate offense might also be relevant to Appellant's claim before the court of appeals that the trial court erred in allowing the amendment. We need not address that issue here.
2. Merits
We shall first address the court of appeals's reliance on Duran for the proposition that a count can be added to an indictment if it alleges the same statutory offense as a count originally in the indictment. Article 28.10 provides, "An indictment . . . may not be amended over the defendant's objection . . . if the amended indictment . . . charges the defendant with an additional or different offense." Duran relied on our earlier holding in Flowers v. State that an amendment could authorize a change in elements if the statutory offense remains the same. The Duran court also concluded that the amendment in that case merely split one count that included two methods of committing sexual assault (penetration "of the anus or sexual organ") into two counts.
Id.
Duran, 2008 WL 794869, at *2-3 (citing Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991).
Id. at *2-3.
An attorney's failure to raise a claim is not deficient if the law is unsettled, but an unpublished court-of-appeals opinion in a criminal case does not constitute precedent, so it cannot create an uncertainty when the law is otherwise clear. In Martinez v. State, we held that an indictment cannot authorize more convictions than there are counts. This is because a "count" is the statutory method of alleging a separate offense in an indictment. So when the State amends an indictment to add counts, it is adding allegations of separate offenses to the indictment. The original indictment in this case authorized only two convictions. The fact that the State obtained four convictions under the amended indictment necessarily means the State added offenses to the indictment.
State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013).
225 S.W.3d 550, 554 (Tex. Crim. App. 2007).
Id.
If Duran held that Flowers authorized additional counts of the same statutory offense, it read too much into Flowers. The concern in Flowers was that too expansive a reading of the words "different offense" in the amendment statute (Article 28.10) would cause every substantive change in an indictment to be a prohibited different offense. But Article 28.10 also prohibits amendments over objection that charge an "additional" offense, and adding a count, even of the same statutory offense as a count already in the indictment, would constitute an additional offense.
Flowers, 815 S.W.2d at 729.
Art. 28.10(c); Flowers, supra at 728-29.
Moreover, Duran is distinguishable because the court there essentially held that two separate offenses had been improperly pled as part of a single count and so could be split into separate counts. In this case, however, only one method of committing sexual assault was alleged in the original indictment.
We need not address whether court of appeals was correct in that regard, but we note that the two different methods of committing sexual assault were joined in the indictment in the disjunctive (with an "or") instead of the conjunctive (with an "and").
B. Ineffective-Assistance Issues
In his second ground for review, Appellant contends that the court of appeals's ineffective-assistance analysis was incomplete and erroneous for a variety of reasons. First, he takes issue with the court of appeals's conclusion that the trial court could have found that trial counsel objected to the amendment. Appellant argues that the record conclusively refutes trial counsel's testimony to that effect. Second, Appellant contends that the court of appeals erred in attributing strategy to counsel for not objecting when counsel testified that he did object. He also contends that the court of appeals erred in its prejudice analysis. In evaluating his contentions, we keep in mind the standard of showing deficient performance and prejudice outlined in Strickland v. Washington.
The ground for review reads: "The 11th Court of Appeals erred where it applied an incomplete, and therefore wrong standard to dispose of Appellant's ineffective assistance of counsel claim."
466 U.S. 668, 687 (1984).
1. Error Preservation and Deficient Performance
The court of appeals concluded that the trial court could have found that trial counsel did in fact object, and so he was not deficient for failing to object. We find this problematic for two reasons. First, this conclusion conflicts with the court of appeals's disposition of another point of error. Appellant had both a stand-alone claim that the indictment was erroneously amended and an ineffective assistance claim faulting counsel for failing to preserve this error. Because Appellant perceived that the error was not preserved, his stand-alone claim could succeed only if he did not need to preserve error. So he claimed that the error was of the sort to render the judgment void.
Showing that a judgment was void is one way to show that error need not be preserved but is not the only way. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001). It would be enough on direct appeal to show that the right in question was waivable only and was not waived. Proenza v. State, 541 S.W.3d 786, 798 (Tex. Crim. App. 2017) (A right that is waivable only is not "forfeitable by a party's inaction."). The court of appeals indirectly cited Woodard for the proposition that the right to a grand jury indictment is waivable, see supra at n.4, but Woodard does not merely say the right is "waivable" but also says it is waivable only. Woodard, 322 S.W.3d at 657 ("The right to a grand jury indictment under state law is a waivable right, which 'must be implemented by the system unless expressly waived.'"). The court of appeals did not address the implications of the complete statement in Woodard and whether it would have allowed the court to reach the merits of Appellant's grand-jury claim. Appellant does not raise that issue before us, however.
But he was still making a claim of trial court error, and if error was preserved, then the claim should have been addressed on the merits. It was improper to reject the ineffective-assistance claim by suggesting that error was preserved without addressing what happens to the related trial court error claim if error was indeed preserved.
The second problem with the court of appeals's preservation analysis is that it did not address Appellant's claim that, if counsel objected, he still failed to preserve error because he failed to memorialize that objection on the record. Although he focuses on his claim that the record shows that counsel did not object, Appellant notes in his petition for discretionary review that trial counsel "stated on the record that he did object to the amendments, but no record of such an objection exists." Appellant claimed on appeal that there was no hearing on the motion to amend (and so no objection), but if there were, the hearing was not recorded, and "trial counsel failed to preserve an objection to the amendment by requiring the hearing to be recorded or objecting in writing to the lack of a court reporter." If a failure to object forfeits the indictment error at issue here, the failure to memorialize the objection in a recorded hearing would also forfeit error, since an objection on the record would not be shown, even if it occurred. The court of appeals's holding that the trial court was within its discretion to find that counsel objected did not address the claim that counsel failed to memorialize the objection.
See Davis v. State, 345 S.W.3d 71, 77 (Tex. Crim. App. 2011) ("[O]ur case law also imposes an additional, independent burden on the appealing party to make a record demonstrating that error occurred in the trial court.").
2. Strategy
We next address the court of appeals's suggestion that, if trial counsel did not object, he might have had a strategic reason for not opposing an amendment. Counsel's testimony that he did object seems at odds with the claim that he might have had a strategy for not objecting. Since counsel's testimony occurred shortly after trial at a motion-for-new-trial hearing, the dimming of memory resulting from the passage of time would not seem to be an issue. We think more explanation is required to resolve this apparent inconsistency than what was given by the court of appeals. Also, Appellant's claim that counsel failed to memorialize any objection needs to be considered here. If the conclusion is that counsel objected but failed to memorialize the objection, then the question would be whether counsel had a strategy for that conduct.
3. Prejudice
We turn to the court of appeals's remark that Appellant's "defensive theory was the same for all offenses." This seems to be an implicit conclusion that Appellant suffered no prejudice. But there is a potential harm that the court of appeals did not consider-Appellant being convicted of more counts than the indictment allowed. The court of appeals should address that sort of harm and decide whether Appellant was prejudiced under Strickland.
Id.
See Martinez, 225 S.W.3d at 555 ("The error here was not harmless, because appellant was convicted of more offenses than were authorized by the indictment. As such, even if viewed as a purely statutory violation, it affected appellant's substantial rights.").
C. Disposition
We reverse the judgment of the court of appeals and remand the case for further proceedings consistent with this opinion.
Yeary, J., filed a concurring opinion.
I join the Court's opinion. I write further only to stress what the Court has not been called upon to decide today.
Appellant raised two issues on direct appeal, only one of which did he perpetuate by his petition for discretionary review. In his first point of error on direct appeal, Appellant argued that his trial counsel was constitutionally ineffective for, among other things, failing to preserve error under Article 28.10(c) of the Texas Code of Criminal Procedure. See Jefferson v. State, No. 11-18-00184-CR, 2021 WL 2462155, at *6 (Tex. App.-Eastland June 17, 2021) (mem. op., not designated for publication); Tex. Code Crim. Proc. art. 28.10(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."). In his second point of error, he argued that his convictions under two counts of the indictment were invalid because the amendment by which those two counts were added to the indictment did not involve returning to the grand jury, which, he claimed, rendered the added counts "void." Jefferson, 2021 WL 2462155 at *2-3.
In his petition for discretionary review, Appellant raises two claims that implicate the court of appeals' holding with respect to his first point of error, raising ineffective assistance of counsel.1 Because the Court properly disposes with these grounds for review, I join its opinion. Appellant does not bring a claim in his petition before this Court that the court of appeals erred in its resolution of his second appellate claim. That is unfortunate.
I am troubled by the court of appeals' resolution of Appellant's second appellate claim. Had Appellant challenged the court of appeals' treatment of his second claim, it might even have mooted his ineffective assistance of counsel claim.
The court of appeals rejected Appellant's second point of error, claiming that he could not be convicted under the added counts of the indictment, on the ground that such a claim is in the nature of a "waiver only" right, and Appellant "waive[d] any error to an amended indictment by failing to object to it at trial" under Article 28.10(c) of the Code of Criminal Procedure. Jefferson, 2021 WL 2462155 at *2-3. Of course, this approach improperly conflates the concepts of waiver and forfeiture.2What is more, it undervalues Appellant's constitutional right to be charged by a grand jury for a felony offense under Article I, Section 10 of the Texas Constitution. Tex. Const. art. I, § 10.
Article 28.10(c) prohibits the trial court from amending an indictment "with an additional or different offense"-but only, it seems, if the defendant objects to the amendment. Tex. Code Crim. Proc. art. 28.10(c). The Court today rightly regards the two offenses that were added to Appellant's indictment to be at least "additional" (if not "different") offenses for purposes of Article 28.10(c). Majority Opinion at 6-7. On its face, then, it would seem that Article 28.10(c) would apply to require an objection to preserve the error. And, indeed, that is the assumption that underlies the Court's resolution of Appellant's ineffective assistance of counsel claim today-whether trial counsel properly preserved an objection to the added counts.
It is not clear to me, however, that the Legislature may constitutionally require an objection if the claim is that the added counts were for felony offenses, thus implicating the requirement of Article I, Section 10, of the Texas Constitution. See Tex. Const art I, § 10 ("[N]o person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, other than in the penitentiary[]") This Court has observed that this grand jury screening requirement creates at least a "waiver-only" right, under the rubric of Marin See Woodard v State, 322 S.W.3d 648, 657 (Tex Crim App 2010) ("The right to a grand jury indictment under state law is a waivable right, which 'must be implemented by the system unless expressly waived' See Marin v State, 851 S.W.2d 275, 279 (Tex Crim App 1993); Trejo [v State], 280 S.W.2d [258,] at 263 (Keller, PJ, concurring in the judgment) ('unless waived, an indictment is necessary to vest the trial court with personal jurisdiction in a felony case').").3
What that means is that, absent a waiver of the right to grand jury screening that is spread upon the record, Appellant should be able to complain-even for the first time on appeal-that the addition of new offenses to his indictment violated his right to a grand jury screening of the charges against him. But the failure to object is a forfeiture, not a waiver. The court of appeals seems to have confused the two. And to the extent that Article 28.10(c) would render Appellant's claim subject to forfeiture, as opposed to waiver, it is at least arguably unconstitutional. Had Appellant actually re-raised this more-jurisprudentially-significant issue on discretionary review, this might very well have been the case in which to address it.