This exception to the surplusage definition is found in Burrell, 526 S.W.2d at 802. See Alston v. State, 175 S.W.3d 853, 855 (Tex.App.-Waco 2005, no pet.) ( Burrell exception "provides that when an unnecessary allegation `is descriptive of that which is legally essential to charge a crime, the State must prove it as alleged though needlessly pleaded'"). In Alston, the complaint and information alleged that Alston unlawfully appropriated property from the "Marlin Volunteer Fire Department" while he was "a fireman with the Marlin Volunteer Fire Department."

Both parties agree that Article 28.10 does not apply to abandonment, so the first question is whether the State abandoned a portion of its indictment, or whether it amended it. See Alston v. State, 175 S.W.3d 853, 854 (Tex.App.--Waco 2005, no pet.)(noting abandonment does not invoke right to continuance). Amendment or Abandonment?

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.

But the case that appellant cites does not support the proposition. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) (holding that allegations "giving rise to immaterial variances may be disregarded in the hypothetically correct charge"); see also Alston v. State, 175 S.W.3d 853, 855 (Tex. App.—Waco 2005, no pet.) (recognizing that in Gollihar, the court overruled the surplusage rule, including the "needlessly pleaded" exception to that rule). --------

Allegations may be abandoned from an indictment without giving the defendant additional time to prepare. Alston v. State, 175 S.W.3d 853, 854 (Tex. App.—Waco 2005, no pet). Unlike an amendment, an abandonment of surplusage does not affect the substance of the charging instrument. Chen v. State, 410 S.W.3d 394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (citing Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997), overruled on other grounds by Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) and by Riney, 28 S.W.3d at 566).

The deleted phrase was not essential to notify Balentine of the offense with which he was charged. See generally Alston v. State, 175 S.W.3d 853, 854–55 (Tex.App.-Waco 2005, no pet.) (abandonment). But, as Balentine notes, the deleted phrase is a specific description of a bodily injury, and the offense of robbery, as pleaded here, contains the element of bodily injury.

Moreover, the State may abandon allegations of alternative means of committing an offense. Alston v. State, 175 S.W.3d 853, 854-55 (Tex.App.-Waco 2005, no pet.). For the foregoing reasons, we hold that the court did not err by excluding the allegation that Oduol committed the offense "by walking away" from the jury charge.