Opinion
No. 10-03-00229-CR
Opinion delivered and filed February 2, 2005. DO NOT PUBLISH.
Appeal from the 194th District Court, Dallas County, Texas, Trial Court # F02-43228. Affirmed.
Donald R. Scroggins, Attorney at Law, Dallas, TX, for Appellant/Relator. Bill Hill, Dallas County District Attorney, Cheryl Holder, Dallas County Asst. District Attorney, Dallas, TX, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Ramsis R. Maddison was charged by indictment with aggravated sexual assault of a child under fourteen. TEX. PEN. CODE ANN. § 22.021(a)(B)(i) (Vernon Supp. 2004-05). The morning of trial, but prior to trial commencing, the State filed a motion to amend the indictment to a charge under TEX. PEN. CODE ANN. § 22.021(a)(B)(iii). The State's motion was granted, and Maddison pled guilty to this amended indictment. The judge assessed punishment at forty years in prison. Maddison appeals in four issues: (1) must the Defendant object to an unlawful motion to amend an indictment to preserve a complaint; (2) error when a magistrate granted the State's motion to amend the indictment; (3) error in admitting the video taped confession without the prosecutors' having provided the tape to the defense twenty days prior to the plea hearing; and (4) error in conducting a portion of the trial without the presence of the defendant. We will overrule all issues and affirm the judgment.
Appellant was charged with another offense of aggravated sexual assault of a child under the age of fourteen (trial cause number F02-43288, our cause number 10-03-00230-CR). The trial court heard both at the same time.
INDICTMENTS AND CONFESSION
The original indictment stated that Maddison:did unlawfully then and there intentionally and knowingly cause the contact and penetration of the anus of JOHN PSEUDONYM (PSEUDONYM), a child, who was not then the spouse of the defendant, by an object, to-wit: the sexual organ of the defendant, and, at the time of the offense, the child was younger than 14 years of age.The certificate of service on the motion to amend indictment states that it was hand delivered to "Defendant's attorney at CDC 2 on the 29th day of April, 2003." This motion was approved by the judge on April 29, 2003. The amended indictment states that Maddison:
did unlawfully then and there intentionally and knowingly cause the sexual organ of John Pseudonym (pseudonym), a child who was not then the spouse of the defendant, to contact and penetrate the anus of the defendant, and, at the time of the offense, the child was younger than 14 years of age.Maddison stated in his judicial confession, which was modified before being signed for a second time on April 29, 2003, that he:
unlawfully then and there intentionally and knowingly cause the contact and penetration of the anus of defendant by an object, to wit: the sexual organ of the John Pseudonym (Pseudonym), a child, who was not then the spouse of the defendant, and, at the time of the offense, the child was younger than 14 years of age.
ISSUE ONE: OBJECTION TO MODIFIED INDICTMENT
Maddison admits that defense counsel did not object to the motion to amend indictment. He argues that an objection is not mandatory to preserve error on appeal. The State argues that an objection is mandatory, and because Maddison did not object, he failed to preserve his complaint for appellate review. The State filed its motion to amend indictment the day of but prior to the commencement of trial. The State sought to amend the indictment to charge Maddison with a different manner and means of committing the offense. The record does not show an objection by defense counsel after being served with the motion or even after the motion was granted. An indictment 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 1989). In a case with very similar facts regarding the timing of amending the indictment, the Texas Court of Criminal Appeals has stated: Procedures regarding amendments to charging instruments are governed by Article 28.10, V.A.C.C.P. Article 28.10(a) relates to amendments "before the date the trial on the merits commences." Article 28.10(b) relates to amendments "after the trial on the merits commences." Article 28.10 does not provide for procedures when an amendment is made on the day of trial but prior to the trial commencing. Section (a) does provide for amendment over a defendant's objection, while Section (b) allows for amendment if the defendant does not object at all. The State amended the indictment at a time[,] reading the clear language of Article 28.10(a) and (b), V.A.C.C.P., when such was not contemplated and/or addressed by said statute. Quite simply, the State amended the indictment not in compliance with the applicable statute. The window of opportunity used by the State is not permissible under Article 28.10(a) nor (b). While the State is permitted to amend with notice up until the day before trial commences and after the trial commences the statute does not address day of, but before the trial commences. The statute may be termed permissive because it allows amendments and mandatory because it mandates when changes are permitted. At any rate, the State did what was not permitted nor did it follow the mandates of a clear statute. Even though the appellant acquiesced, error is error. If one is inclined to complain of error on appeal, the rule is to raise it at trial or it is waived on appeal. Tex.R.App.Proc. 52(a). State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App. 1991). The Court held that the state's amendment was improper, but appellant's failure to object at trial constituted a waiver. Id. Accordingly, we find that the State's motion to amend the indictment was improper, but without an objection by defense counsel, Maddison waived his right to complain of this error on appeal. See id. An objection to an improper amendment to an indictment is required to preserve the complaint. See id. We overrule issue one.ISSUE TWO: MAGISTRATE SIGNING AMENDED INDICTMENT
Maddison argues that it was reversible error for the magistrate to sign the order granting the State's motion to amend the indictment without district court authorization. The State argues that Maddison's claim is without merit because the magistrate did not sign the amendment. We agree with the State. It is clear from the record that the magistrate did not sign the order granting the amendment; the "JUDGE" did. Thus, we overrule issue two.ISSUE THREE: VIDEOTAPED CONFESSION
Maddison argues that the State should have provided him with the videotape at least twenty days prior to the plea hearing and sentencing hearing. The State argues that this issue is not preserved for argument on appeal. The following dialogue occurred at the sentencing hearing:MR. CORRIGAN [for the State]: To begin with, Judge, we'll offer State's Exhibit Number 1, the videotape of the confession of the defendant, which I showed to counsel yesterday.
THE COURT: Any objection?
MR. PHILLIPS [defense counsel]: No, Your Honor.
THE COURT: State's Exhibit 1 is admitted into evidence. How long does this take?Therefore, it is clear from the record that defense counsel did not object to the admission of the videotaped confession. Once evidence is admitted without objection, such evidence enjoys a status equal to that of all other admissible evidence. Marin v. State, 851 S.W.2d 275, 278-79 (Tex.Crim.App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Accordingly, we find that Maddison did not preserve a complaint relating to failing to provide the videotape to him twenty days in advance. See Tex.R.App.P. 33.1; Marin, 851 S.W.2d at 278-79. We overrule issue three.
ISSUE FOUR: RIGHT OF CONFRONTATION
Maddison argues that the trial court's viewing of his videotaped confession alone in chambers violated his right to be present during his trial (right of confrontation). The State also argues that this issue is not preserved for argument on appeal. The dialogue at the sentencing hearing continued:THE COURT: State's Exhibit 1 is admitted into evidence. How long does this take?
MR. CORRIGAN [for the State]: About 35 to 40 minutes.
THE COURT: I'm not going to watch it in here.
MR. CORRIGAN: Do you just want to watch it in chambers?
THE COURT: Yes.
MR. CORRIGAN: I will take it back.
THE COURT: Anything else?
MR. CORRIGAN: Yes, Judge. So do all the witnesses, and you'll watch this at a later time?
THE COURT: Right?
MR. CORRIGAN: Okay. Fair enough.
THE COURT: Before I make my ruling.
MR. CORRIGAN: We'll call Maria Chacon.
THE COURT: Thank you.
. . .
THE COURT: All right. I need to review the videotape, and I have a meeting that I must attend at noon. I'll be back and have reviewed the videotape by 1:30, and I'll make my decision at that time.
MR. PHILLIPS [defense counsel]: Thank you.
(Court in recess).Therefore, it is clear from the record that defense counsel did not object to the judges' viewing of the videotaped confession in his chambers. A defendant waives an alleged violation of his right to confrontation by failing to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990). Accordingly, we find that Maddison did not preserve his complaint regarding a violation of his right to confrontation. See TEX. R. APP. P. 33.1; Briggs, 789 S.W.2d at 924. We overrule issue four.