Summary
holding that a trial court's order, affixed and incorporated into the State's motion containing the amended language, was sufficient to amend an indictment
Summary of this case from Shumate v. StateOpinion
No. 05-07-00453-CR
Opinion Filed June 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-00261-UN.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
After a trial before the court, Anthony Damonray Harrison was convicted of robbery and sentenced to twenty years in prison. In four issues, he contends the State's amendment of the indictment was invalid, the trial court erred in finding him guilty of robbery when the erroneous amendment left him charged only with theft, and the evidence is both legally and factually insufficient to convict him when measured against the original indictment. We affirm. In his first issue, appellant contends the State's filing of a motion to amend and the trial court's order granting the amendment were insufficient to amend the indictment. We conclude the actions taken were sufficient to effect the amendment. Appellant was charged with aggravated robbery after he and an accomplice allegedly stole the complainant's vehicle at gunpoint and then collided with another vehicle while attempting to allude a pursuing police officer. The indictment alleged appellant used the stolen car as a deadly weapon to injure G.R., the person driving the other vehicle involved in the collision. Appellant filed a motion to quash the indictment for failing to provide notice or charge an offense. The State then moved to amend the indictment to strike the allegation of G.R.'s injuries and replace it with an allegation that appellant did "threaten and place complainant in fear of imminent bodily injury and death. . . ." After reciting the proposed changes, the State's motion restated the substantive portions of the amended motion. The trial court granted the State's motion, but did not physically interlineate the original indictment. Before trial, the State struck the deadly weapon allegation, thus reducing the charge against appellant to robbery. Appellant contends the filing of the motion and the trial court's order granting the motion are not sufficient acts to constitute an amendment to the original indictment. We disagree. Physically interlineating the indictment is an acceptable, but nonexclusive, means of amending it. Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App. 2000). In Riney, the court of criminal appeals approved the filing of an interlineated photocopy of the indictment as a sufficient amendment. See id. Pointing to Riney and a handful of its progeny, appellant contends that because the method used in this case does not correspond to one of the approved methods, the amendment was invalid. We disagree with appellant's analysis. Riney overturned previous authorities requiring actual physical interlineation of the original indictment. See id. We interpret Riney as allowing flexibility in amending indictments provided that the method of amendment employed produces an amended copy of the indictment incorporated into the record under the direction of the trial court sufficient to give the defendant fair notice of the charges. See id. at 565-66. In this case, the State's motion contained a copy of the amended indictment language and an order signed by the trial court. Although appellant moved to quash the original indictment, the record does not show that he objected to the method of amendment used, and before trial, he affirmed to the trial court that he had reviewed the indictment with counsel and understood the charges against him. Appellant's counsel waived arraignment and reading of the indictment. We conclude the trial court's order, affixed and incorporated into the State's motion containing the amended language, sufficed to meet the objectives for an amendment laid out in Riney. See Barfield v. State, 202 S.W.3d 912, 920-21 (Tex.App.-Texarkana 2006, pet. ref'd) (upholding amendment made by attaching copy of language from State's motion to order granting amendment); Westmoreland v. State, 174 S.W.3d 282, 287 (Tex.App.-Tyler 2005, pet. ref'd) (order granting motion to amend that contained both the original and revised charge sufficed to amend indictment). We overrule appellant's first issue. In his second issue, appellant contends the trial court erred in finding him guilty of robbery after it granted the State's motion to amend the indictment. Building upon the argument in his first issue, appellant contends the result of the State's botched attempt to amend the indictment was the deletion from the indictment of the allegation that he caused bodily injury to G.R. with a deadly weapon. Without the deleted language, and without the language the State attempted to substitute, appellant argues the remnant of the indictment charges him only with theft. Because we have already concluded the State's amendment was effective, we overrule appellant's second issue. See Riney, 28 S.W.3d at 565-66. In his third and fourth issues, appellant contends the evidence is legally and factually insufficient when measured against the allegations in the original indictment. Appellant alleges insufficiency of the evidence to show G.R. suffered bodily injury, the stolen car collided with G.R.'s vehicle, and that G.R.'s injuries occurred while he was in the course of taking the complainant's property. In making these contentions, appellant assumes the Court agrees with him that the amendment to the indictment was invalid. Because we have already concluded the indictment was amended properly, we conclude the evidence appellant suggests is insufficient is immaterial. We further conclude the evidence is both legally and factually sufficient to support the judgment. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). In reviewing a factual sufficiency challenge, we determine whether the evidence is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert denied., 128 S.Ct. 87 (2007). Both standards require the reviewing court to consider all the evidence, but legal sufficiency review requires the court to defer to the fact finder's determinations on the credibility and weight of the evidence while in a factual sufficiency review the reviewing court may substitute, to a very limited degree, its own judgment for the fact finder's judgment on such matters. Rollerson, 227 S.W.3d at 724. Thus, the two reviews are barely distinguishable from each other. Id. As amended, the indictment charged appellant with robbery of the complainant by intentionally and knowingly threatening and placing her in fear of imminent bodily injury. See Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). To prove its case, the State presented the testimony of the complainant and two Dallas police officers. The State's evidence was that appellant and his accomplice, John Dates, approached the complainant and her young nephew in an apartment complex parking lot. Dates prodded the complainant's stomach with a large gun and demanded her car keys while appellant demanded her money and wallet. The complainant, in pain because she had recently undergone abdominal surgery and fearful for herself and her nephew, gave her car keys to Dates and her cash to appellant. Appellant told her to walk toward the street rather than into the apartments. The two robbers then got into the complainant's car and left. The complainant was able to identify appellant, in a photographic lineup and in open court, as the man who demanded her money. About an hour after the robbery, patrol officer Steve Oliphant found the stolen car and tried to get the driver to pull over. Dates was driving and appellant was a passenger. Dates sped off and led police on a one-hundred-mile-per-hour chase before colliding with another vehicle; Dates was captured after the crash. As for the appellant, Oliphant caught and arrested him, then transported him to the hospital due to injuries he received from the crash; appellant had no money on him when he was arrested. The State did not put on evidence about G.R.'s injuries until the punishment phase of trial. A detective who searched the car recovered a Desert Eagle pellet gun, a CO2 magazine, and magazine box. The detective testified that he owned a Desert Eagle handgun and the pellet gun so closely resembled the real weapon that he initially thought it was an actual handgun. Appellant testified he met Dates at a bus stop and Dates said he wanted a vehicle. Appellant followed Dates to the apartment parking lot where Dates pulled out a gun and took the complainant's keys. Dates told appellant to get into the car and he complied. Appellant denied knowing Dates had a gun or planned to rob the complainant and denied asking for or receiving money from the complainant. Appellant admitted the stolen car rammed into the rear of another car. Appellant told the court he ran from the police after the accident because he was on parole and had an outstanding warrant for an aggravated assault charge. Appellant does not dispute being at the scene at the time of the offense or that he got into the stolen car with Dates after watching Dates rob the complainant at gunpoint. Under either standard of review, the State presented evidence showing appellant knowingly participated in the robbery. The trial court was free to reject appellant's testimony and accept the complainant's version of events. We conclude the evidence is both legally and factually sufficient to support the trial court's judgment. See Rollerson, 227 S.W.3d at 724. We overrule appellant's third and fourth issues. We affirm the trial court's judgment.