Opinion
No. 06-06-00031-CR
Submitted: October 16, 2006.
Decided: October 31, 2006. DO NOT PUBLISH.
On Appeal from the 102nd Judicial District Court, Red River County, Texas, Trial Court No. CR00677.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
In Roger Gene Aubrey's trial for sexual assault, a jury had been selected, sworn, and seated for trial, before the State moved to amend the indictment. Over Aubrey's objection, the State was allowed to amend the indictment to allege that the victim's age was less than fourteen years, instead of less than seventeen years as previously alleged. This amendment changed the charge against Aubrey from sexual assault, under Section 22.011, to aggravated sexual assault under Section 22.021 of the Texas Penal Code. The jury subsequently found Aubrey guilty of aggravated sexual assault, as alleged in the amended indictment, and sentenced him to thirty years' imprisonment. On appeal, Aubrey contends the trial court erred by permitting the State to amend the indictment, over Aubrey's objection, after the jury had been empaneled and sworn. We agree the trial court erred, conclude the error affected Aubrey's substantial rights, vacate the conviction, and remand the case for a new trial. (1) The Post-Voir Dire Change Was a Substantive Amendment to the Indictment The Texas Code of Criminal Procedure authorizes the amendment of an indictment or information "at any time before the date the trial on the merits commences" after notice has been given to the accused. TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (Vernon 2006). The Code also authorizes the indictment or information to be amended as to "form or substance . . . after the trial on the merits commences if the defendant does not object." TEX. CODE CRIM. PROC. ANN. art. 28.10(b) (Vernon 2006) (emphasis added). But, "[a]n 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." TEX. CODE CRIM. PROC. ANN. art. 28.10(c) (Vernon 2006) (emphasis added). "[I]f the defendant, after trial on the merits has commenced, makes a timely objection to the State's amendment, be it to form or substance, such amendment is absolutely prohibited." Hilton v. State, 879 S.W.2d 74, 78 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd); see also Brown v. State, 843 S.W.2d 709, 711 (Tex.App.-Dallas 1992, pet. ref'd) (citing Hillin v. State, 808 S.W.2d 486, 488 (Tex.Crim.App. 1991)). When, over the defendant's objection, the trial court permits the State to amend the indictment on the day of trial and after the jury has been sworn, the trial court errs. Sodipo v. State, 815 S.W.2d 551, 555-56 (Tex.Crim.App. 1990) (op. on reh'g). The question then becomes whether the changes sought in this case by the State constituted an "amendment" as that term is generally understood. There are three exceptions to Article 28.10. Brown, 843 S.W.2d at 712. "These are when the State moves to: (1) change allegations in the indictment to abandon one of the ways or means by which an accused may commit an offense; (2) abandon an allegation in the indictment if the effect of the abandonment is to try the accused on a lesser-included offense; or (3) delete surplusage." Id.; see also Eastep v. State, 941 S.W.2d 130, 133-35 (Tex.Crim.App. 1997); Mayfield v. State, 117 S.W.3d 475, 476 (Tex.App.-Texarkana 2003, pet. ref'd). If the change sought by the State fits within any of these exceptions, the change does not constitute an impermissible amendment. But the change allowed here does not fit any of these exceptions. The change in this case amounted to a prohibited substantive amendment, for two reasons. First, the State's proposed change resulted in altering the charged offense from sexual assault — where the alleged victim is under seventeen years of age — to aggravated sexual assault as set out in a different section of the Texas Penal Code — because the victim is now alleged to have been under fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A), (B) (Vernon Supp. 2006). Second, as the trial court properly noted before allowing the State's proposed change, the amendment increases the applicable punishment range from that provided for second-degree felony offenses to that provided for first-degree felony offenses. Compare Tex. Penal Code Ann. § 22.011(f) and § 22.021(e). Because the change constituted an erroneous amendment, we must now determine whether the error was harmful. (2) The Error Harmed Aubrey's Substantial Rights Before 1997, a violation of Article 28.10 of the Texas Code of Criminal Procedure required automatic reversal of the conviction, without regard to harm analysis. See, e.g., Sodipo, 815 S.W.2d at 556; Hilton, 879 S.W.2d at 79; Brown, 843 S.W.2d at 711. But beginning September 1, 1997, the effective date of the new Rules of Appellate Procedure, the general rule regarding harm analysis changed. See Curry v. State, 1 S.W.3d 175, 178 (Tex.App.-El Paso 1999), aff'd, 30 S.W.3d 394 (Tex.Crim.App. 2000). The current rule provides,
(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.TEX. R. APP. P. 44.2. Errors no longer result in automatic reversal. Instead, the reviewing court must classify the error and conduct the appropriate harm analysis. The error in this case stems from a violation of a procedural statute, not a violation of a constitutional requirement. The appropriate standard of harm analysis is under Rule 44.2(b). Cf. Craig v. State, No. 06-02-00151-CR, 2003 Tex. App. LEXIS 4788, at *12-13 (Tex.App.-Texarkana June 6, 2003, no pet.) (mem. op., not designated for publication). Under Rule 44.2(b), we are to disregard all nonconstitutional errors that do not affect an accused's substantial rights. To do this, we must decide whether the error had a substantial or injurious effect on the jury's verdict. Llamas v. State, 12 S.W.3d 469, 471 n. 2 (Tex.Crim.App. 2000). "A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); see also King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Given the record before us, the erroneous amendment had a significant effect on the jury's verdict and the resulting judgment. The amendment raised the offense from a second- to a first-degree felony. After the jury found Aubrey guilty under the erroneously amended indictment, it assessed Aubrey's sentence at thirty years' imprisonment — ten years more than the maximum sentence he faced before the State's improper amendment. The trial court sentenced him accordingly. Such error clearly had much more than a slight effect. Accordingly, we sustain Aubrey's point of error. In Curry, the Eighth Court of Appeals held the trial court erred by permitting the State to amend the indictment over the accused's objection after trial had begun. 1 S.W.3d at 180-81. But because Curry had also challenged the legal sufficiency of the evidence to support the underlying conviction — and because sustaining such a challenge would result in an acquittal — the El Paso Court of Appeals also assessed the legal sufficiency of the evidence. In this case, Aubrey has neither challenged the legal sufficiency of the evidence to support a conviction for either sexual assault or aggravated sexual assault, nor does he raise any other issues that, if sustained, would require a judgment of acquittal. The appropriate disposition of this case is remand for a new trial. Because the error resulted in harm to Aubrey's substantial rights, and because such error occurred during the guilt/innocence phase of the trial, we reverse the trial court's judgment and remand the case for a new trial under the original charge, in accordance with this opinion. See id. at 181.
The indictment alleged Aubrey committed a criminal offense by "intentionally or knowingly caus[ing] the penetration of the sexual organ of [A.H.], a child who was then and there younger than 17 years of age and not the spouse of the defendant, by defendant's finger." Such conduct is prohibited by Texas' general sexual assault statute. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (offense criminalized), § 22.011(c)(1) (Vernon Supp. 2006) (defining "child" as "person younger than 17 years of age who is not the spouse of the actor"). Sexual assault is a second-degree felony, punishable by imprisonment of between two and twenty years, a fine of not more than $10,000.00, or both imprisonment and a fine. TEX. PENAL CODE ANN. § 12.33 (Vernon 2003), § 22.011(f) (Vernon Supp. 2006). Sexual assault becomes a first-degree felony if it is alleged and shown that the victim was a person whom the accused was prohibited from marrying (or purporting to marry) under the statute outlawing bigamy. TEX. PENAL CODE ANN. § 22.011(e) (Vernon Supp. 2006). The original indictment in this case contained no such enhancement allegation. Therefore, the offense, as originally charged, was a second-degree felony. Cf. Garcia v. State, 911 S.W.2d 866, 869-70 (Tex.App.-El Paso 1995, no pet.) (indictment failed to allege aggravating factors; trial court erred in entering conviction for aggravated sexual assault; judgment reformed to sexual assault).
During its voir dire, the State appears to have used the terms "aggravated sexual assault," "child sexual assault," and "sexual assault" interchangeably. But the State did, during voir dire, suggest the applicable punishment range for Aubrey's crime was up to, and including, imprisonment for life.
See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2006).
On further appeal of Curry to the Texas Court of Criminal Appeals, that court ruled a legal sufficiency review should be made against the hypothetically correct jury charge based on the original charge, not based on the erroneously amended one. Curry, 30 S.W.3d at 404.
See Nichols v. State, 52 S.W.3d 501, 504-05 (Tex.App.-Dallas 2001, no pet.) (erroneous amendment of charge, retrial on unamended charge).