No. 05-09-01441-CR
Opinion issued July 5, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F09-52099-I.
Before Justices MORRIS, BRIDGES, and FRANCIS.
Opinion By Justice MORRIS.
At trial, a jury convicted Tan Phu Nguyen of burglary of a vehicle. He now complains on appeal that the trial court erred by permitting the State to amend the indictment after trial had begun and denying his request for a ten-day continuance once the indictment was amended. We affirm the trial court's judgment.
Factual Background
After appellant entered his plea but before jury selection in appellant's case began, the trial court granted the State's motion to amend the indictment to reflect the complainant's last name as "Mehall" rather than "Melthall." The prosecutor explained that the change was necessary because the indictment had reflected a misspelling originating in the police report for the case. The complainant had made clear to the prosecutor that his last name was actually Mehall. The trial court granted the amendment on the basis of idem sonans after the prosecutor agreed that the two names sounded similar. After the trial court amended the indictment, the defense requested a ten-day continuance of the trial. The State argued that the name change was not prejudicial to the defense. Defense counsel argued, however, that "a name change strictly as to the complaining witness is substantial to the indictment. They have to prove every element of the indictment, and Meltall and Mehall are two totally different names, two totally different complainants." Appellant did not offer any specific argument showing how he would be prejudiced if he did not receive the additional ten days to prepare for trial. Granting appellant a running objection on the matter, the trial court denied appellant's motion for continuance. During the trial it was revealed that Mehall was not acquainted with appellant in any way and did not even know his car had been burglarized until after being awakened by police officers between 4:00 and 5:00 a.m., the same time a neighbor also came by to tell him his car alarm was sounding. Not long after, police found appellant crouched down in a car with a broken window three blocks from Mehall's home. They discovered a GPS device, a "GPS suction cup," and a couple of screwdrivers in appellant's pockets. When police showed the GPS to Mehall, he stated that it appeared to be the one he owned. When Mehall clicked "home" on the GPS, the device displayed Mehall's home address. Police did not fingerprint Mehall's car or canvas the area for other suspects. Appellant's defense as argued by counsel in the case was that he was simply found with the GPS device, but there was no proof he had been the person who took it from Mehall's car. Discussion
In two related issues, appellant complains the trial court should not have granted the motion to amend the indictment on the day of trial and — having amended the indictment — should have granted him the ten-day continuance mandated by statute. Under article 28.10 of the Texas Code of Criminal Procedure, a matter of form or substance in an indictment may be amended after the trial on the merits commences only if the defendant does not object. See Tex. Code Crim. Proc. Ann. art. 28.10(c) (West 2006). Under that same article, after an amendment of the indictment, on the request of the defendant, the court shall allow the defendant not less than ten days, or a shorter period if requested by the defendant, to respond to the amended indictment. See id. art. 28.10(a). Appellant contends that because the trial had already commenced, the State was not permitted to amend the indictment over his objection. He further contends that because the amendment was nevertheless granted he was entitled to the ten-day continuance he requested to respond to the amendment. Assuming the trial had commenced before jury selection, appellant was unharmed by either the amendment or the trial court's refusal to grant him the ten-day continuance. Nothing in the record before us shows how the change of this misspelling adversely affected appellant's ability to present his defense. Appellant's attorney did not offer any argument establishing how the change in the complainant's name had undermined the defense strategy, nor did he argue that a continuance would be necessary for the defense to investigate Mehall. Mehall had never met appellant nor had he ever identified him as the burglar. He had not even initiated his contact with the police. Thus, the defense had little need of impeachment evidence against him. As demonstrated at trial, the defense theory was that appellant's possession of the stolen equipment did not conclusively prove he had burglarized Mehall's vehicle. Appellant argues that any violation of article 28.10 is immune from a harm analysis and therefore is reversible error under caselaw from the Texas Court of Criminal Appeals. See, e.g., Sodipo v. State, 815 S.W.2d 551, 556 (Tex. Crim. App. 1990). But as noted by this Court in Dukes v. State, the court of criminal appeals has more recently determined that, except for certain federal structural errors, no error is categorically immune to a harmless error analysis. 239 S.W.3d 444, 447 (Tex. App.-Dallas 2007, pet. ref'd). Thus, any statutory error under article 28.10 must be disregarded unless it affected appellant's substantial rights. See id.; see also Tex. R. App. P. 44.2(b); Wright v. State, 28 S.W.3d 526, 531-32 (Tex. Crim. App. 2000). Appellant's substantial rights were not affected in this case. We therefore resolve appellant's first and second issues against him. We affirm the trial court's judgment.