Opinion
No. 05-17-00701-CR
06-26-2018
TYRAN DARNELL SHUMATE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1575398-Q
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Lang-Miers
Appellant Tyran Darnell Shumate was convicted of sexual assault of a child and sentenced to five years' imprisonment, probated for ten years. On appeal, appellant claims that the trial court's charge to the jury was erroneous, and that he was egregiously harmed, because the indictment, although amended orally, was never actually amended. The State asks that this Court modify the judgment to correct errors in it and to affirm as modified. We affirm as modified.
Background
Appellant was originally indicted for aggravated sexual assault of a child on July 27, 2015. TEX. PENAL CODE §22.021 (a)(1)(B)(i), (a)(2)(B). That indictment read as follows:
That TYRAN DARNELL SHUMATE, hereinafter called Defendant, on or about 1st day of May, 2011 in the County of Dallas, State of Texas, did unlawfully then and there intentionally and knowingly cause the penetration of the female sexual organ of ... (S.G.) ..., a child, who was not then the spouse of defendant, by an object, to-wit: the finger of defendant, and at the time of the offense, the child was younger than fourteen years of age.The offense was aggravated due solely to the allegation that the complainant was younger than fourteen years of age. TEX. PENAL CODE §22.021 (a)(2)(B).
On May 5, 2017, the State filed a written motion to amend the indictment, abandoning the first-degree felony allegation of aggravated sexual assault of a child under fourteen years of age in favor of the lesser included second-degree felony offense of sexual assault of a child younger that seventeen years of age. TEX. PENAL CODE §22.011 (a)(2)(A), (c)(1). The motion stated as follows:
The indictment currently states that the child was younger than fourteen years of age. The State moves to strike that language and have the indictment read as follows: did unlawfully then and there intentionally and knowingly cause the penetration of the female sexual organ of ... (S.G.)..., a child younger than 17 years of age, by an object ...In that motion, the State pled that the "amendment causes the charge to change to a lesser included offense, and it does not prejudice the substantial rights of the Defendant." The trial court granted the motion, in writing, on that same day. However, the text of the actual indictment was not changed on the face of the indictment.
Immediately prior to voir dire of the venire, an off-the-record discussion took place. When the trial court went back on the record, the judge said as follows:
THE COURT: [W]hile we were off the record, the State made an oral amendment to the indictment, and it should read as follows, which the Court has granted:
That Tyran Darnell Shumate hereinafter called defendant on or about the first day of May, 2011, in the County of Dallas, State of Texas, did unlawfully then and there intentionally and knowingly cause the penetration of the female sexual organ of ... (S. G.) ... a child, who was not then the spouse of Defendant, by an object, to wit; the finger of Defendant, and at the time of the offense, the child was younger than 17 years of age.
That's the amendment.The trial court asked if the defense had any objections; defense counsel replied: "No, judge."
Appellant was arraigned before the jury on the second-degree felony charge of sexual assault and entered a plea of not guilty. The State proceeded to trial on the lesser charge, telling the jury: "You've been called here today to listen to a second-degree felony, which is the sexual assault of a child" and "So the Defendant is charged with sexual assault of a child, which is a second-degree felony."
At the conclusion of the trial, the jury was instructed in the application paragraph of the jury charge as follows:
Now, bearing in mind the foregoing instructions, if you find and believe from the evidence beyond a reasonable doubt that on or about the 1st day of May, 2011, the defendant, TYRAN DARNELL SHUMATE, intentionally or knowingly caused the penetration of the female sexual organ of ... (S. G.) ..., a person younger than seventeen years of age and not his spouse by placing his finger in the female sexual organ of ... (S.G.) ..., then you will find the defendant guilty of sexual assault, as charged in the indictment.When the trial court judge asked if appellant had any objections to the charge, defense counsel replied: "No objections."
If you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.
The second-degree sexual assault of a child was the only offense on which the jury was instructed. The jury returned the following verdict: "We, the jury, find the defendant, TYRAN DARNELL SHUMATE, GUILTY of Sexual Assault of a Child as included in the indictment."
Appellant's Allegations
Appellant couches his issue on appeal as one of jury charge error. Appellant claims that, although the trial court granted both the State's written and oral motions to amend the indictment, those orders merely granted the State leave to amend the indictment; they did not actually amend the indictment. Appellant argues that, because the indictment was never properly amended, the trial court erred by including language in the jury charge that did not track the language of the indictment. Appellant further argues that the error was harmful because it expanded the age range in which the jury could have convicted appellant; this was important because S.G. could not remember how old she was when the assault occurred but testified that she was in the eighth grade and thought she was thirteen or fourteen. Appellant asks this Court to vacate the trial court's verdict and to order a new trial.
The State responds that appellant has waived any complaint because he did not object to the amended indictment. In the alternative, the State argues that, rather than actually amending the indictment, the State's motion, made prior to trial, constituted an abandonment of the first-degree felony in favor of proceeding on the lesser included offense of second-degree sexual assault of a child. The State further claims that appellant has suffered no egregious harm.
Amendment or Abandonment
The Code of Criminal Procedure provides that, after notice to the defendant, "a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences." TEX. CODE CRIM. PROC. art. 28.10 (a). The Code further provides that "[a]ll amendments of an indictment or information shall be made with the leave of the court and under its direction." TEX. CODE CRIM. PROC. art. 28.11. Amending an indictment requires a motion from the State requesting the amendment, an order from the trial court granting the amendment, and documentation in the record reflecting the changes to the indictment sufficient to give the defendant fair notice of the charges against him. See Perez v. State, 429 S.W.3d 639, 642-43 (Tex. Crim. App. 2014); Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000).
Traditionally, an amendment could be accomplished only by the actual, physical alteration of the charging instrument. Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992). The Court of Criminal Appeals partially overruled Ward to the extent that Court determined physical "pen and ink" alteration of the indictment is not the exclusive method of accomplishing an amendment. Riney, 28 S.W.3d at 565-66 (concluding that an interlineated photocopy of the indictment was a sufficient amendment); see also Perez, 429 S.W.3d at 643 (concluding that a motion to replace eleven existing counts in an indictment with five counts in an attached exhibit was a sufficient amendment). A variety of other methods to amend an indictment have been upheld. See, for example, Barfield v. State, 202 S.W.3d 912, 920-21 (Tex. App.—Texarkana 2006, pet. ref'd) (upholding an amendment made by attaching a copy of language from State's motion to the order granting the amendment); Westmoreland v. State, 174 S.W.3d 282, 287 (Tex. App.—Tyler 2005, pet. ref'd) (concluding that an order granting a motion to amend that contained both the original and revised charge sufficient to amend the indictment); Aguilera v. State, 75 S.W.3d 60, 64 (Tex. App.—San Antonio 2002, pet. ref'd) (holding that a written order granting the State's motion to amend, in which the language of the original indictment is reproduced, is an effective amendment); Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.—Fort Worth 2001, no pet.) (holding that a written order granting the State's motion to amend, in which the language of the original indictment is reproduced, is an effective amendment); Harrison v. State, No. 05-07-00453-CR, 2008 WL 2514333, at *1 (Tex. App.—Dallas June 25, 2008, no pet.) (not designated for publication) (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).
Not all alterations of an indictment, however, are amendments. Courts have held that 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, 256 (Tex. Crim. App. 2001) and by Riney, 28 S.W.3d at 565; see also Moore v. State, 54 S.W.3d 529, 546 (Tex. App.—Fort Worth 2001, pet. ref'd). An abandonment, on the other hand, does not affect the substance of the charging instrument. Eastep, 941 S.W.2d at 133; Moore, 54 S.W.3d at 546-47. A change of language in an indictment is appropriate to (1) abandon one or more alternative means of committing the offense, (2) abandon an allegation if the effect is to reduce the charged offense to a lesser included offense, or (3) eliminate surplusage. Eastep, 941 S.W.2d at 135; Moore, 54 S.W.3d at 547; see also Chen v. State, 410 S.W.3d 394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd). In these situations, an alteration to an indictment is an abandonment, not an amendment, and the restrictions of Articles 28.10 and 28.11 do not apply. Eastep, 941 S.W.2d at 134-35; Moore, 54 S.W.3d at 547; Chen, 410 S.W.3d at 396.
To resolve this appeal, we need not decide if the indictment was properly amended. Although the State presented its action as an amendment to the indictment, the State's motion to amend was, in fact, an abandonment of the first-degree felony allegation of aggravated sexual assault of a child in favor of the lesser included offense of second-degree sexual assault of a child younger that seventeen years of age. Perez v. State, No. 05-15-00163-CR, 2016 WL 4546026, at *5 (Tex. App.—Dallas August 30, 2016, no pet.) (not designated for publication).
An offense is a lesser included offense if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." TEX. CODE CRIM. PROC. art. 37.09(1). Sexual assault is a lesser included offense of aggravated sexual assault. TEX. PENAL CODE §§ 22.011(a)(2)(A), (c)(1); 22.021(a)(1)(B), (a)(2)(B). Because the greater offense necessarily includes all the lesser included offenses, when an indictment alleges an offense which includes lesser offenses, the defendant may be tried and convicted of a lesser offense. Allison v. State, 618 S.W.2d 763, 764-65 (Tex. Crim. App. 1981); Woodard v. State, No. 05-02-00698-CR, 2003 WL 203520, at *1 (Tex. App.—Dallas Jan. 31, 2003, pet. ref'd) (not designated for publication).
The original indictment was already, without the necessity of an amendment, sufficient to authorize conviction for the second-degree felony of sexual assault of a child younger than seventeen years of age. Puente v. State, 320 S.W.3d 352, 357 (Tex. Crim. App. 2010) (noting that a victim who is younger than fourteen years of age is also, by definition, younger than seventeen years of age and sexual assault of a seventeen year old is, in essence, a lesser included offense of sexual assault of a fourteen year old); Hardie v. State, 79 S.W.3d 625, 631-32 (Tex. App.—Waco 2002, pet. ref'd) (holding that an indictment need not be amended or altered at all to support a conviction for a lesser included offense); Woodard, 2003 WL 203520, at *1 (concluding that the action of the State which abandoned the aggravating element that the child was younger than fourteen in an indictment for aggravated sexual assault did not affect the substance of the indictment because it resulted in a trial on a lesser included offense).
The changes to the indictment sought by the State, and approved by the trial court, did not change the substance of the indictment, but merely altered the age of the child complainant. 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 set out to prosecute appellant for the lesser included offense of second-degree sexual assault of a child under the age of seventeen. Appellant was fully apprised of this change to the original prosecution for aggravated sexual assault of a child under the age of fourteen and had no objection to it. All parties in the trial court - the court, appellant, the State, the jury - understood that appellant was being tried for the lesser offense. The jury, in its verdict, found appellant guilty of sexual assault of a child as included in the indictment.
The jury charge, which followed the language of the State's abandonment of the greater charge of aggravated sexual assault of a child under the age of fourteen in favor of the lesser included offense of sexual assault of a child under the age of seventeen, properly set out the law applicable to the case. See TEX. CODE CRIM. PROC. art. 36.14. Consequently, there is no error in the jury charge. And, even if there was error, appellant was not harmed because the abandonment subjected him to a less severe punishment and allowed him to be considered for community supervision, which was, in fact, recommended by the jury and granted by the trial court.
The punishment range for a first-degree felony of aggravated sexual assault is imprisonment for life or for a term of not more than 99 years or less than 5 years with an optional fine not to exceed $10,000.00. TEX. PENAL CODE §§ 12.32; 22.021 (e). The punishment range for a second-degree felony of sexual assault is imprisonment for a term of not more than twenty years or less than two years with an optional fine not to exceed $10,000.00. TEX. PENAL CODE §§ 12.33; 22.011 (f). Appellant's conviction for the lesser included offense, as well as his lack of a prior criminal record, made him eligible for jury recommended community supervision. TEX. CODE CRIM. PROC. arts. 42A.055, 42A.056. Had appellant been convicted of aggravated sexual assault of a child under the age of fourteen, he would not have been eligible for community supervision. TEX. CODE CRIM. PROC. art. 42A.056 (4).
Modification of Judgment
In a cross-point, the State asks this Court to modify the judgment to reflect the correct offense, degree of offense, and statutory violation of which appellant was convicted.
The judgment recites that appellant was convicted of the first-degree felony of aggravated sexual assault of a child under TEX. PENAL CODE § 22.021. However, the record shows that appellant was convicted of the second-degree felony convicted of sexual assault of a child under TEX. PENAL CODE § 22.011.
We have the authority to modify an incorrect judgment when the evidence necessary to correct that judgment appears in the record. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
Accordingly, we modify the section of the judgment entitled "Offense for which Defendant Convicted" to show the offense was "Sexual Assault of a Child." We modify the section of the judgment entitled "Statute for Offense" to show the correct statute is "22.011 Penal Code." We further modify the section of the judgment entitled "Degree of Offense" to show the degree of the offense was "2nd Degree Felony."
Conclusion
As modified, we affirm the trial court's judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 170701F.U05
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1575398-Q.
Opinion delivered by Justice Lang-Miers. Justices Evans and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The section of the judgment entitled "Offense for Which Defendant Convicted" is modified to show the offense was "Sexual Assault of a Child."As REFORMED, the judgment is AFFIRMED. Judgment entered this 26th day of June, 2018.
The section of the judgment entitled "Statute for Offense" is modified to show "22.011."
The section of the judgment entitled "Degree of Offense" is modified to show "2nd Degree Felony."