Gary Edwin Wheeler v. State

• Court: Court of Appeals of Texas
• Decided: December 21, 2000
• Docket: 03-00-00269-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00269-CR

Gary Edwin Wheeler, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. A-99-0054-S, HONORABLE BEN WOODWARD, JUDGE PRESIDING

A jury found appellant Gary Edwin Wheeler guilty of felony driving while

intoxicated. See Tex. Penal Code Ann. §§ 49.04(a), .09(b) (West Supp. 2000). The district court

assessed punishment at imprisonment for three years and a $1500 fine. We will affirm.

Appellant contends his trial counsel rendered ineffective assistance because he did

not object to the amendment of the indictment after trial began. The amendment concerned one

of the two previous convictions alleged to elevate the offense to a felony. See id. § 49.09(b). The

indictment as filed alleged that appellant had previously been convicted of driving while

intoxicated in the County Court of Gregg County, Texas, on November 22, 1992, in cause

number 75942. After the jury was selected, the State was permitted without objection to amend

this allegation to change the date of conviction to January 22, 1992. See Tex. Code Crim. Proc.

Ann. art. 28.10(b) (West 1989) (indictment may be amended after trial commences if defendant does not object). Appellant argues that the State could not have proved the Gregg County

conviction as alleged and, but for the amendment, could not have secured a felony conviction.

Appellant urges that his attorney’s failure to object to the amendment was error that prejudiced

him to such a degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U. S.

668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (test for

ineffectiveness of counsel). He asserts that the proper remedy is to reform the judgment to reflect

a misdemeanor conviction.

As regards previous convictions, a slight or immaterial variance between the

allegations of the indictment and the proof at trial will not render the evidence insufficient.

Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988). Where the county of conviction,

court, and cause number are proved as alleged, and the only variance concerns the date of

conviction, the proof is sufficient. See Lopez v. State, 805 S.W.2d 882, 885 (Tex. App.— Corpus

Christi 1991, no pet.); Zimmerlee v. State, 777 S.W.2d 791, 792 (Tex. App.— Beaumont 1989, no

pet.). Appellant’s trial counsel testified at the new trial hearing that he was not misled by the

indictment and was fully aware of appellant’s previous convictions. We hold that counsel’s failure

to object to the amendment of the indictment did not constitute ineffective assistance of counsel.

There is no basis for the reformation of the judgment sought by appellant.

At trial, appellant stipulated to the two previous driving while intoxicated

convictions. He now contends he is entitled to a new trial because there was no written consent

to stipulate. Appellant relies on article 1. 15, which he concedes does not apply to trials before

a jury. See Tex. Code Crim. Proc. Ann. art. 1.15 (West Supp. 2000). “Stipulations, oral or

2 written, in criminal cases where the plea of not guilty is entered before the jury do not have to

comply with Article 1.15, V.A. C.C.P.” Messer v. State, 729 S.W. 2d 694, 699 (Tex. Crim.

App. 1987) (op. on reh’g) (emphasis deleted). No error is presented.

The judgment of conviction is affirmed.

__________________________________________

J. Woodfin Jones, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed: December 21, 2000

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