No. 05-02-00698-CR.
Opinion Filed January 31, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-56386-LM. AFFIRM.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
Opinion By Justice RICHTER
A jury convicted Jesse Renea Woodard of sexual assault of a child and assessed punishment, enhanced by two prior convictions, at life in prison. On appeal, appellant raises two issues, contending first, that the trial court erred in denying his motion for continuance and, second, that the court erred in admitting, over objection, certain evidence. We affirm. Because the sufficiency of the evidence is not challenged and the parties are familiar with the facts, we recite only those facts necessary for the disposition of the appeal.
Motion for Continuance
Appellant, age thirty-seven at trial, was initially charged with aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2003). Specifically, the indictment alleged appellant "intentionally and knowingly cause[d] the contact and penetration of the female sexual organ of [B.L.], a child, who was not then [appellant's] spouse . . . by . . . [appellant's] sexual organ, and, at the time of the offense, the child was younger than 14 years of age." See id. § 22.021(a)(1)(B)(i), (2)(B). However, on the day of trial, before voir dire, the State moved to abandon the aggravating element that the child was younger than fourteen. When the trial court accepted the abandonment and struck the relevant portion of the indictment, appellant moved for a ten-day continuance, contending the abandonment was a substantive alteration affecting his substantial rights and entitling him to the continuance pursuant to article 28.10 of the code of criminal procedure. Finding the "abandonment would be the same as a lesser included offense [of sexual assault]," see id. § 22.011(a)(2)(A), the court denied appellant's motion. Appellant now contends this ruling was error. We disagree. An alteration to the face of an information or indictment is subject to the limitations set forth in article 28.10 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989). Under article 28.10, an alteration to the face of the indictment that affects the substance of the charging instrument is an amendment, entitling the defendant, upon his request, to a minimum of ten days, or a shorter period if requested, to respond. Id.; Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex.Crim.App. 2000). An alteration resulting in the defendant being charged with an additional or different offense or prejudicing the defendant's substantial rights is prohibited if the defendant objects. Tex. Code Crim. Proc. Ann. art. 28.10(c). Where the alteration results in the prosecution of a lesser included offense, it is an abandonment and does not fall within the scope of article 28.10. Eastep, 941 S.W.2d at 133, 134. Although this might appear to violate the prohibition against amending an indictment to charge a different offense, the court of criminal appeals has justified this on the ground that "the greater offense . . . necessarily includes all the lesser included offenses whether each of their constituent elements are alleged in the wording of the indictment on the greater offense." White v. State, 890 S.W.2d 69, 72 n. 3 (Tex.Crim.App. 1994) (Baird, J, concurring). 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. See Hardie v. State, 79 S.W.3d 625, 632 (Tex.App.-Waco 2002, pet. ref'd) (citing Allison v. State, 618 S.W.2d 763, 764 (Tex.Crim.App. 1981)). Under article 37.09 of the code of criminal procedure, 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." See Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981). Generally, sexual assault is a lesser included offense of aggravated sexual assault. Compare Tex. Pen. Code Ann. § 22.011(a)(2)(A) (sexual assault) with Tex. Pen. Code Ann. § 22.021(a)(1)(B), (a)(2)(B) (aggravated sexual assault); see also Nevels v. State, 954 S.W.2d 154, 161 (Waco 1997, pet. ref'd) (citing Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App. 1993)); McGahey v. State, 744 S.W.2d 695, 696 (Tex.App.-Fort Worth 1988, pet. ref'd). In arguing the court erred in denying him a continuance, appellant does not dispute the alteration resulted in the prosecution of a lesser included offense. Rather, appellant maintains he was entitled to a continuance because he needed time to consider "an entirely new defense" — the defense of being within three years in age of the at-least-fourteen-year-old-complainant — made available to him by the alteration. See Tex. Pen. Code Ann. § 22.011(e). Although recognizing testimony showed this defense was actually inapplicable to him because of his age, appellant argues he was nonetheless entitled to a continuance because the justification for allowing the abandonment of an allegation resulting in the prosecution of a lesser included offense without invoking article 28.10 is that the defenses available in both the greater and lesser included offenses are the same. However, as stated, the justification is that the greater offense necessarily includes all the lesser offenses. White, 890 S.W.2d at 72 n. 3. Appellant's argument fails because the indictment alleging the greater offense of aggravated sexual assault necessarily put him on notice of all the lesser included offenses and, as a result, of all the defenses relevant to either the greater or lesser included offenses. See Hardie, 79 S.W.3d at 632; Ford v. State, 38 S.W.3d 836, 841 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). That appellant's attorney may have failed to consider the possibility in this case of the lesser included offense of sexual assault and may have been "surprised" by the "newly available" defense does not render the trial court's ruling erroneous. We resolve appellant's first issue against him. Admissibility of Evidence
In his second issue, appellant complains about the admission of State's Exhibit No. 7, the complainant's therapy records. These records include various statements concerning the assault, made by the complainant to different law enforcement and children's protective services personnel. Appellant maintains these statements were inadmissible hearsay and the court erred in admitting them over his objection. In response, the State argues, inter alia, any error was harmless because the same evidence had already been admitted. We agree with the State. It is well settled that any error in the admission of evidence "is cured where the same evidence comes in elsewhere without objection." Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim. App. 1984). In this case, the record reflects several witnesses, including the complainant and her mother, testified similarly and without objection to the complained-of statements. Accordingly, any error was harmless. We resolve appellant's second issue against him. We affirm the trial court's judgment.