The record shows that the jury did not send out any notes or questions expressing confusion about the parole instruction or indicating the possible application of good conduct time or the parole law to Addison, and nothing in the record "suggests that the jury discussed, considered or tried to apply (despite the judicial admonition not to apply) what they were told about good conduct time and parole." See Duenas v. State, No. 05-14-00192-CR, 2015 WL 1243345, at *8 (Tex. App.—Dallas Mar. 16, 2015, no pet.) (mem. op., not designated for publication). Addison has presented no contrary evidence.
This constituted an abandonment of a greater charge in favor of a lesser included offense. Eastep, 941 S.W.2d at 134-35; Grey v. State, 298 S.W.3d 644, 650 (Tex. Crim. App. 2009) (stating that the State can abandon an element of the charged offense without prior notice and proceed to prosecute a lesser included offense); see also Duenas v. State, No. 05-14-00192-CR, 2015 WL 1243345, at *5 (Tex. App.—Dallas March 16, 2015, no pet.) (not designated for publication) (holding that the State properly abandoned language in an indictment for continuous sexual abuse of a child which reduced the charged offense to the lesser included offense of indecency with a child without the necessity of an amendment to the indictment). The trial court did not err by allowing the State to proceed to trial on the lesser included offense.
The State can abandon an allegation in the indictment without triggering Code of Criminal Procedure articles 28.10 and 28.11 if the effect is to reduce the charged offense to a lesser included offense. Duenas v. State, No. 05-14-00192-CR, 2015 WL 1243345, at *4 (Tex. App.—Dallas Mar. 16, 2015, no pet.) (mem. op., not designated for publication). "In fact, the State can abandon an element of the charged offense without prior notice and proceed to prosecute a lesser-included offense."
Our first duty in analyzing alleged jury charge error is to decide whether error exists. See, e.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Duenas v. State, No. 05-14-00192-CR, 2015 WL 1243345, at *6 (Tex. App.-Dallas Mar. 16, 2015, no pet.) (mem. op., not designated for publication) (citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal.
Our first duty in analyzing alleged jury charge error is to decide whether error exists. See, e.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Duenas v. State, No. 05-14-00192-CR, 2015 WL 1243345, at *6 (Tex. App.—Dallas Mar. 16, 2015, no pet.) (mem. op., not designated for publication) (citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal.
"An amendment is an alteration to the face of the charging instrument which affects the substance of the charging instrument." Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled on other grounds by Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) and by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000); see also Moore v. State, 54 S.W.3d 529, 546 (Tex. App.—Fort Worth 2001, pet. ref'd); Duenas v. State, No. 05-14-00192-CR, 2015 WL 1243345, at *4 (Tex. App.—Dallas Mar. 16, 2015, no pet.) (mem. op., not designated for publication). An abandonment, on the other hand, does not affect the substance of the charging instrument.