Opinion
No. 05-01-01402-CR.
Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F01-73069-SH. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG.
OPINION
Bernard Rena Clemons appeals his conviction for arson. After the jury found appellant guilty, it assessed punishment, enhanced by two previous felony convictions, at thirty years' confinement. In a single point of error, appellant contends the trial court erred by denying his motion to quash the indictment. The State maintains the trial court properly denied appellant's motion to quash as untimely. Initially, we question whether appellant's motion, which was filed before the date the trial commenced but was not presented to the trial court until the day of trial, was timely. See Mills v. State, 941 S.W.2d 204, 208 (Tex.App.-Corpus Christi 1996, pet. ref'd). However, we need not determine if appellant's motion was timely because even assuming it was and assuming that appellant was entitled to notice of the particular manner and means the State alleged appellant used to "start a fire," we cannot conclude appellant was harmed. The failure to provide proper notice in a charging instrument is not reversible error unless the error affects the defendant's ability to prepare a defense. See Chambers v. State, 866 S.W.2d 9, 17 (Tex.Crim.App. 1993); Adams v. State, 707 S.W.2d 900, 903 (Tex.Crim.App. 1986); Flores v. State, 33 S.W.3d 907, 919 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In making this determination, we consider the complete record. Flores, 33 S.W.3d at 919. We consider such circumstances as whether: (1) appellant received the information from a different source; (2) no defense was presented; (3) the defense strategy did not relate to the omission; (4) appellant indirectly received the omitted information, i.e., it was the only logical deduction to be made from the circumstances; and (5) no objection or expression of surprise was expressed at trial. Geter v. State, 790 S.W.2d 703, 705 (Tex.App.-Tyler 1990, no pet.) (citations omitted). Here, the record shows that appellant was appointed an investigator several weeks before trial. Appellant had access to the arson investigator's report. That report contained statements by Dorothy Perry, appellant's girlfriend, that appellant told her he was going to burn the house down and that he went outside to the car, got a gasoline can, broke the window, stuffed a blanket into the broken window, poured gasoline on the blanket, and then lit the blanket on fire with a cigarette lighter. She then poured water on the blanket to put out the fire. After appellant consented to a search of his car, police found a gas can in the trunk. Prior to trial, appellant filed a motion to suppress the gas can. His defensive theory was to deny setting the blanket on fire, suggesting the window was burned previously. Thus, appellant's defense strategy did not relate to the omission of the manner and means of starting the fire. Moreover, when the State presented evidence regarding the alleged manner and means of starting the fire, appellant did not object or otherwise indicate any surprise at the State's theory of the case. After reviewing the entire record, we cannot conclude that the State's failure to provide notice of the specific manner and means of "starting a fire" affected appellant's ability to prepare a defense. We overrule appellant's sole point of error. Accordingly, we affirm the trial court's judgment.
The written motion to suppress does not specifically name the gas can, but rather "evidence seized from the car." However, at trial, appellant's attorney characterized it as a motion to suppress "the gas can in the car."