Opinion
Nos. 05-05-01326-CR, 05-05-01327-CR, 05-05-01328-CR
Opinion Filed June 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court # 9, Dallas County, Texas, Trial Court Cause No. MA04-47803-K, MA04-47804-K, MA04-47805-K. Affirm.
Before Justices MORRIS, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Appellant appeals three convictions for cruelty to animals. After a jury found appellant guilty of the offenses, the trial court assessed punishment at 365 days' confinement in each case. In two points of error, appellant contends (1) the informations in each case were "illegally amended," and (2) double jeopardy bars two of the convictions. For the following reasons, we affirm. Keller police received a complaint regarding appellant's treatment of his dogs. When police responded to the call, they found four dogs chained in appellant's yard. One of the dogs was dead and two others were malnourished. Appellant was charged by information with three counts of cruelty to animals. Each information originally alleged appellant failed "to provide necessary food, care, and shelter for an animal, to wit; a DOG, in [appellant's] custody." However, the informations in our record contain additional handwritten notations identifying the respective dogs as "A" "B" and "C." In his first point of error, appellant contends the handwritten notations were "amendments" that were illegally made because (1) the State did not file a motion to amend, (2) the record does not show the amendments were made with leave of court under the direction of the court, and (3) he neither had notice of nor consented to the amendments. The record does not establish who caused the notations to be added or when they were added. However, based on certain statements in the clerk's record, it appears the notations were added sometime after trial began solely to differentiate between the three dogs. The designations were subsequently included in the jury charges without objection. We will assume for purposes of this opinion that appellant is correct and the informations were "illegally amended." However, any improper amendment was harmless under the facts of this case. Specifically, appellant has at most shown the amendments were a "legal nullity." See Howard v. State, 667 S.W.2d 524, 526 (Tex.Crim.App. 1984). Thus, appellant was effectively tried under the original informations. However, appellant does not contend the original informations were fundamentally defective or that the proof in any way failed under the original informations. Therefore, even if appellant is correct, he presents no reversible error. See Howard, 667 S.W.2d at 526. Further, to the extent appellant suggests the original informations did not provide adequate notice, he waived any such complaint by failing to object in the trial court. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Ex parte Smith, 178 S.W.3d 797, 808 (Tex.Crim.App. 2005). We overrule appellant's first point of error. In his second point of error, appellant contends double jeopardy bars punishment for two of the offenses because all three informations, without the amendments, are identical. He relies on the Blockburger test to show the three offenses are the same for jeopardy purposes. See Blockburger v. United States, 284 U.S. 299 (1932). There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App. 2006). In this case, appellant is alleging he is being punished multiple times for the "same offense." However, for double jeopardy purposes, the "same offense" means the identical criminal act or omission. See Doggett v. State, 93 S.W.2d 399, 405 (Tex.Crim.App. 1935). If the conduct for which a defendant is punished is not the same, the Blockburger test is inapplicable. See Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App. 1999). Here, appellant was convicted and punished because of separate omissions towards three different animals. Therefore, appellant was not punished multiple times for the "same offense." We overrule appellant's second point of error. We affirm the trial court's judgment.