Delmiro Lichtenberger v. State

• Court: Court of Appeals of Texas
• Decided: February 6, 2002
• Docket: 04-99-00661-CR
• Status: Published

Opinion

No. 04-99-00661-CR

Delmiro LICHTENBERGER,

Appellant

v.

STATE of Texas,

Appellee

From the 79th Judicial District Court, Jim Wells County, Texas

Trial Court No. 98-01-0720-CRSI

Honorable Woody Densen, Judge Presiding

Memorandum Opinion

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Paul W. Green, Justice

Delivered and Filed: February 6, 2002

AFFIRMED

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. Even assuming the action taken by the State constituted a trial date amendment to the indictment, the supplementation of the term and year of the Grand Jury indicting Lichtenberger was harmless error. Tex. R. App. P. 44.2; see Phillips v. State, 615 S.W.2d 756, 757 (Tex. Crim. App. 1981) (holding "an allegation in the indictment as to the term of court or the grand jury is unnecessary and need not be stated in the indictment"); Guerra v. State, 478 S.W.2d 483, 484 (Tex. Crim. App. 1972) (overruling defendant's motion to quash the indictment for failure to state the term and year of grand jury); Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.-Fort Worth 2001, no pet.). We overrule Lichtenberger's first issue on appeal.

2. Because Lichtenberger failed to cease his disruptive outbursts despite the trial court's warnings, the trial court did not violate his due process rights in removing him from the courtroom during the punishment phase of trial. Illinois v. Allen, 397 U.S. 337, 343 (1970); Dotson v. State, 785 S.W.2d 848, 854 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd) (finding "no abuse of discretion by the trial judge in removing appellant from the courtroom without subsequently inquiring of the defendant whether he would behave if he returned to the courtroom"). We overrule Lichtenberger's second issue on appeal.

The judgment is affirmed.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH