Opinion
No. 05-06-01707-CR
Opinion Filed June 19, 2008. DO NOT PUBLISH TEX. R. APP. P. 47.2(b)
On Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F05-72418-N.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS. Opinion By Justice MOSELEY.
MEMORANDUM OPINION
A jury convicted appellant Eric Vernard Allen of delivery of a controlled substance, cocaine, in an amount of four grams or more but less than two hundred grams. The jury found the offense occurred within 1000 yards of a school, and Allen pled true to two enhancement paragraphs. The trial court assessed punishment at forty years' imprisonment. In two points of error, Allen contends the indictment was improperly amended to strike the letter "T." from the complaining witness's name and the evidence was legally insufficient to prove delivery to the person named in the original indictment, and that trial counsel was ineffective for not objecting to the amendment of the indictment after trial began. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. The indictment alleged that Allen delivered cocaine to "T. Castanon" on or about May 11, 2005 in Dallas County, Texas. At trial, Dallas Police Narcotics Officer Mario Castanon testified he was working undercover and met Allen through an informant. Castanon went with the informant to meet Allen and purchased the drugs. After the State rested, it requested, outside the jury's presence, that the indictment be amended to delete the initial "T." Without objection, the trial court struck through the "T." in the indictment. The defense did not present any additional evidence and rested. The jury charge did not include the "T." in Castanon's name. In his first point of error, Allen contends the evidence was legally insufficient to convict him because the State offered no evidence that he delivered cocaine to "T. Castanon," as alleged in the original indictment. Allen further contends that the amendment of the indictment after the trial began was illegal because it was done when Allen was not present, so he did not have notice of the amendment and did not have the chance to object. See Tex. Code Crim. Proc. Ann. arts. 28.10, 28.11 (Vernon 2006). The State responds that the trial court properly allowed the State to abandon the "T." included in the indictment, as that term was not an element of the offense, but was only surplusage. The State further argues that the presence of the "T." did not constitute a fatal variance between the indictment and the proof at trial. Allen does not challenge the legal sufficiency of the evidence under the federal due process standard announced in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Rather, Allen complains of the sufficiency of the evidence based upon a variance between the indictment and the proof. Thus, we review his complaint under state law. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). Under Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App. 2001) and Malik v. State, 953 S.W.2d 234, 236-40 (Tex.Crim.App. 1997), evidentiary sufficiency should be measured against the "elements of the offense as defined by the hypothetically correct jury charge for the case" in all sufficiency cases. See Fuller, 73 S.W.3d at 252 (" Gollihar thus made Malik's evidentiary sufficiency standard into a purely state law standard that is 'foreign to federal constitutional norms.'"). We conduct a materiality inquiry in all cases that involve a "sufficiency of the evidence claim based upon a variance between the indictment and the proof"; only a "material" variance will render the evidence insufficient. See Fuller, 73 S.W.3d at 253. This inquiry requires a determination of whether the variance deprived the defendant of notice of the charges and whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. See id. The "hypothetically correct jury charge" analysis takes into consideration the material variance doctrine; in the hypothetically correct charge "[a]llegations giving rise to immaterial variances may be disregarded . . . but allegations giving rise to material variances must be included." See id. (quoting Gollihar, 46 S.W.3d at 257). The State was required to prove only that Allen knowingly delivered to another a controlled substance in an amount of four grams or more but less than 200 grams. Tex. Health Safety Code Ann. § 481.12(a), (d) (Vernon 2003). The name of the complainant is not a statutory element of the offense. See Fuller, 73 S.W.3d at 254; Gollihar, 46 S.W.3d at 254 ("hypothetically correct jury charge" encompasses statutory elements of the offense as modified by the charging instrument). Here, the indictment originally read that Allen sold the drugs to "T. Castanon" on May 5, 2005, in Dallas County, while the proof at trial showed that Allen sold the drugs at that date and location to Mario Castanon. The variance between the indictment and the proof at trial is immaterial. There is no indication in the record that Allen did not know to whom he was accused of selling the cocaine or that he was surprised by the proof at trial. See Gollihar, 46 S.W.3d at 257. Finally, the variance does not subject Allen to another prosecution for the same offense. See id. We overrule Allen's first point of error. In his second point of error, Allen contends his trial counsel provided ineffective assistance when he did not object to the allegedly illegal interlineation of the indictment by removal of the "T." after the trial began. The State argues that Allen's trial counsel was not ineffective for failing to object to the abandonment of the "T." from the indictment because it was a proper act by the State and any objection would not have been sustained by the court. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999)). Counsel's conduct is reviewed with great deference and without the distorting effects of hindsight. Id. Direct appeal is usually an inadequate vehicle for ineffective assistance claims because the record is generally undeveloped and does not reveal counsel's reasons for failing to do something. Id. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). The record is silent as to reasons counsel did not object to the interlineation of the indictment. Although Allen filed a motion for new trial, he did not allege in that motion that his counsel was ineffective and did not otherwise develop a record explaining why counsel failed to object to amendment of the indictment. See Goodspeed, 187 S.W.3d at 391. This Court will not speculate as to what counsel's trial strategy might have been with regard to the alleged error. Moreover, we cannot say that the challenged conduct was "so outrageous that no competent attorney would have engaged in it." See Goodspeed, 187 S.W.3d at 392. Therefore, Allen has failed to rebut the strong presumption in favor of effectiveness of counsel. Furthermore, in addressing Allen's first point of error we held that the variance between the indictment and the proof at trial was not material. Thus, we fail to see how counsel's failure to object to the amendment prejudiced Allen. Given the record before us, we cannot conclude counsel's performance was deficient. We overrule Allen's second point of error. We affirm the judgment of the trial court.
Although the point of error is labeled as a legal sufficiency issue, Allen's first point could be read as raising a procedural error argument that amending the indictment when he was not physically present violated articles 28.10 and 28.11 of the Texas Rules of Criminal Procedure. However, as set forth above, the amendment did not lead to a material variance under Fuller and Gollihar. Assuming without deciding the amendment was improper, we therefore conclude beyond a reasonable doubt that any error in striking the initial "T." from the indictment did not contribute to the conviction or affect Allen's substantial rights. See Tex. R. App. P. 44.2(a), (b) (Vernon 2003).