Opinion
NO. 01-17-00173-CR
04-05-2018
TOMMY LEE KITCHEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas
Trial Court Case No. 1507671
MEMORANDUM OPINION
A jury convicted appellant, Tommy Lee Kitchen, of the third-degree felony offense of assault on a public servant and, after appellant pleaded true to the allegations in two enhancement paragraphs, assessed his punishment at thirty-five years' confinement. In his sole issue on appeal, appellant contends that the trial court erred by permitting the State to amend one of the enhancement paragraphs in the indictment over his objection.
See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2017).
We affirm.
Background
A. Factual Background
On April 25, 2016, Houston Police Department officers conducted an undercover investigation of "bank jugging" in the Heights area of Houston. "Bank jugging" involves suspects who park in front of a bank, watch customers leave the bank, and then follow the customers in an attempt to commit a theft or robbery.
As part of the operation, an undercover officer came out of a Wells Fargo bank carrying a cash envelope and walked to her car, which was parked in front of the bank. The officer left the cash envelope in her purse on the front seat and then went into a nearby Walgreens to pose as a customer. Other officers conducting surveillance in support of the operation observed appellant look into the undercover officer's vehicle and pull on the locked door handle. The officers did not confront appellant at that time.
Later that same day, the undercover officer came back to the bank in a different vehicle and wearing different clothing. She again walked out of the bank carrying a cash envelope, but this time she drove away from the bank, and appellant, accompanied by a male passenger, followed the officer's vehicle. The undercover officer drove a short distance away, parked in a parking lot, and left her vehicle unlocked and with her purse sitting on the front seat. After appellant circled the parking lot in his vehicle, his passenger opened the front door of the officer's vehicle and attempted to steal the purse, which was secured to the vehicle by a steel cable. Appellant and the passenger realized that a sting operation was occurring, and they fled from the officers who were, by this point, attempting to conduct a traffic stop.
A chase ensued throughout a nearby neighborhood, and appellant's vehicle finally came to a stop after running over a spike strip deployed by the officers. Appellant and the passenger then fled on foot. Officer M. Rocchi followed appellant until appellant reached a fence that he could not jump over. Appellant then ran towards Officer Rocchi, grabbed his bullet-proof vest, and punched Rocchi in the ribcage. This punch "knocked the wind out of" Officer Rocchi, who punched appellant in the face and kicked him when appellant tried to grab his legs. While Officer Rocchi was catching his breath, his partner arrived and detained appellant. Officer Rocchi felt pain in his abdominal area, and he ultimately went to the emergency room two days after the incident where doctors tested him for internal bleeding. Officer Rocchi was discharged and he returned to work the next day. B. Procedural Background
A grand jury indicted appellant for the offense of assault on a public servant. The indictment contained the following enhancement paragraphs:
Before the commission of the offense alleged above, (hereafter styled the primary offense), on OCTOBER 13, 1992, in Cause Number 0633901, in the 208TH DISTRICT COURT of HARRIS County, Texas, the Defendant was convicted of the felony of ATTEMPTED MURDER.
Before the commission of the primary offense, and after the conviction in Cause Number 0633901 was final, the Defendant committed the felony of FELON IN POSSESSION OF A WEAPON and was finally convicted of that offense on JANUARY 4, 2013, in Cause Number 1349569, in the 338TH DISTRICT COURT of HARRIS County, Texas.
On the morning that trial was scheduled to begin, the State presented a motion to amend the indictment, arguing that the first enhancement paragraph should be corrected to read that appellant had previously been convicted of the felony of aggravated robbery, instead of attempted murder. This was the only change that the State requested to the indictment: it contended that the date of the prior conviction, the cause number, and the trial court were all correctly named in the indictment.
Defense counsel moved for a continuance of ten days, arguing that she received notice of the State's motion on the day before trial and therefore the motion was not timely. Counsel further argued:
I also would state that it is material to my defense and would ask for the 10 days so that I could, therefore, prepare an adequate defense in this case because it does affect my client. I believe that the enhancement
paragraph, which I relied on this whole time after being announced ready for trial, is now being changed at the last moment. And so, therefore, there was a defense to that enhancement paragraph because [the defendant] has never been convicted of attempted murder. And so, therefore, we would ask for our 10 days to properly prepare for this case.The trial court overruled defense counsel's objection and denied the request for a ten-day continuance. The trial court signed an order granting the State's motion to amend the indictment; however, no change was made to the physical indictment that appears in the record.
The case proceeded to trial and the jury found appellant guilty of the offense of assault on a public servant. At the beginning of the punishment phase, the State read the corrected enhancement paragraphs and appellant pleaded true to the allegations in both paragraphs. The trial court admitted into evidence appellant's written stipulation to both prior convictions, and it also admitted, without objection, the judgment of conviction reflecting that appellant had been convicted of aggravated robbery in 1992. The jury ultimately assessed appellant's punishment at thirty-five years' confinement. This appeal followed.
Amendment of Indictment
In his sole issue, appellant contends that the trial court erred by allowing the State to amend one of the enhancement paragraphs in the indictment over his objection. Specifically, appellant complains that the trial court allowed the State to amend the name of the offense alleged in one enhancement paragraph from attempted murder to aggravated robbery. A. Applicable Law
Code of Criminal Procedure article 28.10 governs the amendment of a charging instrument and 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.TEX. CODE CRIM. PROC. ANN. art. 28.10 (West 2006). "All amendments of an indictment or information shall be made with the leave of the court and under its direction." Id. art. 28.11 (West 2006). The Court of Criminal Appeals and this Court have previously held that article 28.10 gives a defendant "an absolute veto power" over amendments to the indictment after trial begins. Hamann v. State, 428 S.W.3d 221, 225 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); James v. State, 425 S.W.3d 492, 499 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (quoting Hillin v. State, 808 S.W.2d 486, 489 (Tex. Crim. App. 1991) (plurality op.)). This Court has further held that an amendment to an enhancement paragraph in the indictment is also subject to the defendant's veto under article 28.10. Hamann, 428 S.W.3d at 225; James, 425 S.W.3d at 500 (citing Boutte v. State, 824 S.W.2d 322, 323 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd)).
(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.
Violations of article 28.10 are subject to harmless error review. Hamann, 428 S.W.3d at 225; James, 425 S.W.3d at 500. We therefore disregard an article 28.10 violation unless the error affects the defendant's substantial rights. Hamann, 428 S.W.3d at 225; see TEX. R. APP. P. 44.2(b); James, 425 S.W.3d at 500. An error affects a defendant's substantial rights when the error had a substantial and injurious effect or influence in determining the jury's verdict. Hamann, 428 S.W.3d at 225 (quoting Trejos v. State, 243 S.W.3d 30, 41 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd)). If, when looking at the record as a whole, it appears that the error did not influence the jury or had but a slight effect, we must consider the error harmless and allow the conviction to stand. Id. at 226 (quoting Trejos, 243 S.W.3d at 41-42). To determine whether the error affected a substantial right, we examine the possible outcomes had the indictment not been erroneously amended. Id. (quoting Trejos, 243 S.W.3d at 42). "The critical inquiry is whether the indictment as written sufficiently informed the defendant of the charge against him to allow him to prepare an adequate defense at trial and whether prosecution under the original indictment would subject the defendant to the risk of being prosecuted later for the same crime." Id. B. Analysis
In this case, the original indictment included two enhancement paragraphs. One of these enhancement paragraphs alleged the correct cause number, the correct trial court, the correct county, and the correct date of conviction, but mistakenly identified the name of the previous offense as attempted murder, instead of aggravated robbery. Two days before trial began, the State moved to amend the indictment to correct the name of the offense of appellant's prior conviction to aggravated robbery. Defense counsel objected and requested a ten-day continuance to prepare, arguing that the issue was material to her defense because she had relied on the original enhancement paragraph and appellant had a defense to that enhancement paragraph because he had never been convicted of attempted murder. The trial court overruled defense counsel's objection and denied counsel's request for a ten-day continuance.
"It is well settled that it is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense." Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd). Absent proof of prejudicial surprise, a variance between the allegations in an enhancement paragraph in an indictment and the proof presented at trial is not material and does not require reversal. Williams, 980 S.W.2d at 226; see Freda, 704 S.W.2d at 43 (holding that defendant must demonstrate that variance "surprised him to his prejudice" for variance to be fatal and material). Courts have consistently held that a variance between the name of a prior offense as alleged in an enhancement paragraph and the name of a prior offense as proved at trial is not a fatal and material variance requiring reversal if the variance does not cause prejudicial surprise. See Freda, 704 S.W.2d at 43 (holding that variance between name of prior offense alleged in indictment—bank robbery—and name of prior offense proved at trial—conspiracy to commit bank robbery—was not fatal or material when defendant did not establish that variance surprised him to his prejudice); Hamann, 428 S.W.3d at 226 (holding that variance between name of prior offense alleged in original indictment—assault against someone with whom defendant was in dating relationship—and prior offense alleged in amended indictment—assault against family member—was immaterial and trial court's error in amending indictment over defendant's objection was harmless); Williams, 980 S.W.2d at 226-27 (holding same when prior offense alleged in indictment—grand theft auto—varied from prior offense proved at trial—taking of vehicle without owner's consent).
Appellant argues that the amendment to the enhancement paragraph affected his substantial rights because defense counsel had relied on the enhancement paragraph mistakenly alleging a prior conviction of attempted murder and "had not prepared to litigate the aggravated robbery conviction." Specifically, appellant argues that his counsel "had no reason to investigate the details of the aggravated robbery conviction" and was "denied the time to investigate the legality of the aggravated robbery prior conviction." Appellant points out that the "pen packet" for the aggravated robbery conviction, which was admitted into evidence without objection during the punishment phase, contains a judgment for an aggravated robbery conviction from 1992 "but does not contain[] the underlying indictment or plea papers necessary to support the judgment."
The enhancement paragraph in the original indictment stated the correct cause number, the correct trial court, the correct county, and the correct date of conviction, and it correctly stated that appellant's prior conviction was for a felony. Despite incorrectly naming the prior offense for which appellant was convicted as "attempted murder" instead of "aggravated robbery," the original indictment included enough correct details about the offense to provide appellant with proper notice of the prior conviction that the State intended to use to enhance his punishment. See Hamann, 428 S.W.3d at 226 (stating that "critical inquiry" in determining harm from trial court's error in amending indictment over defendant's objection is "whether the indictment as written sufficiently informed the defendant of the charge against him to allow him to prepare an adequate defense at trial"); Tenner v. State, 850 S.W.2d 818, 821 (Tex. App.—El Paso 1993, no pet.) ("Although the enhancement allegation in the indictment incorrectly stated that [the defendant] had been convicted of 'aggravated' robbery with a deadly weapon [as opposed to 'robbery'], the presence of other correct details provided [the defendant] with proper notice of his prior conviction."); see also Freda, 704 S.W.2d at 42 (stating that object of variance doctrine is to avoid surprise to defendant, thus, "only if the variance was such as to mislead the defendant to his prejudice would it be found material and require reversal").
At trial, defense counsel argued that the proposed amendment to the enhancement paragraph was "material to [her] defense" because she had relied on the original enhancement paragraph and appellant had a defense to that paragraph "because he has never been convicted of attempted murder." An investigation of the prior conviction alleged in the original enhancement paragraph would have revealed that the indictment mistakenly identified this prior offense as a conviction for aggravated robbery instead of attempted murder. Defense counsel's statements at trial indicate that she was aware of this mistake and planned to use this mistake to appellant's advantage. See Chavis v. State, 177 S.W.3d 308, 312 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (stating, in case in which State moved to abandon convicting court number alleged in enhancement paragraph in indictment, that no fatal variance occurred in part because defendant's "trial counsel explicitly stated that the court numbers were the reason that [defendant] had entered a plea of not true to the second enhancement paragraph, thereby demonstrating [defendant's] awareness of the details of his prior conviction"). We conclude that the variance between the name of the offense in the original enhancement paragraph and the name of the offense in the amended enhancement paragraph did not surprise appellant and therefore was immaterial and not fatal. See Hamann, 428 S.W.3d at 226; Tenner, 850 S.W.2d at 821. We cannot conclude that appellant's substantial rights were prejudiced, and thus we hold that the trial court's error in amending the enhancement paragraph to correct the name of the prior offense was harmless. See Hamann, 428 S.W.3d at 226.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Jennings, Keyes, and Higley. Do not publish. TEX. R. APP. P. 47.2(b).