Riney v. State

28 S.W.3d 561, 2000 Tex. Crim. App. LEXIS 88, 2000 WL 1468409

• Court: Court of Criminal Appeals of Texas
• Decided: October 4, 2000
• Docket: 800-99
• Status: Published

Opinions

OPINION

MANSFIELD, J.,

delivered the opinion of the Court in which

McCORMICK, P.J., KELLER, WOMACK, & KEASLER, J.J., joined.

In response to the State’s petition for discretionary review, we consider the continuing precedential value of Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992), and its progeny.

Factual and Procedural History

Appellant, Grafton Leroy Riney, was arrested on April 7, 1996, for possession of a controlled substance. A Dallas County grand jury later presented to the trial court a two-page indictment. The first page formally accused appellant of the unlawful possession of amphetamine in an amount of one gram or more but less than four grams. The second page of the indictment contained two enhancement paragraphs. Upon presentment, the indictment consisted of four identical, attached copies. See, by analogy, Tex.R. Evid. 1001(3),(4).¹ Each copy indicated it was to be distributed to the “COURT,” the “DEFENDANT/COURT,” the “TEXAS DEPARTMENT OF CORRECTIONS/COURT,” and the “DISTRICT ATTORNEY.”

On November 1, 1996, just before trial, the State filed a Motion to Amend the Indictment, asking the trial court for permission to change the substance allegedly possessed to methamphetamine and the amount allegedly possessed to less than one gram. See Art. 28.10.² The State attached to its motion a photocopied duplicate of the first page of its copy of the indictment. The trial court granted the State’s motion. See Art. 28.11.³ The briefs and the court record indicate this photocopy of the State’s indictment was interlineated, but the record fails to reveal who performed the physical act of interli-neating that photocopy. The trial court judge, the Honorable Charles Campbell, read the changes into the record, and the amended photocopy of the indictment was incorporated into the court clerk’s file. Immediately afterward, appellant and his counsel were specifically asked whether they had any objections to the amendments. Both replied they did not:

TRIAL COURT: All right. Let’s take up the indictment first before we get into the motion to suppress. Mr. Le-chtenberger (defense counsel), it looks like the defendant was at one time indicted for possession of amphetamine in an amount of one gram or more but less than four grams, and the State has filed a motion to amend the indictment to change amphetamine to methamphetamine and to change the amount of one gram or more but less than four grams to less than one gram.

Let me ask you first, Mr. Lechtenber-ger, do you have any opposition to the State amending the indictment.

DEFENSE COUNSEL: No, judge, we do not.

TRIAL COURT: Now, Mr. Riney (appellant), let me address you personally, sir. Under the Texas law, under Article 28.10, in the Code of Criminal Procedure, an indictment may not be amended over your objection as to form or substance. Especially if it changes the nature of the offense, which this one does. Which basically means I have to have your consent for the State to amend the indictment. Do I have your consent, sir?

APPELLANT: Yes, sir.

Appellant also expressly agreed to waive the ten day continuance offered by Article 28.10 to prepare for the newly amended indictment. Afterwards, the trial court judge formally arraigned appellant by reading from the amended indictment in open court, to which appellant pleaded not guilty.

The jury found appellant guilty of possession of methamphetamine, and, following pleas of true to the enhancement paragraphs, he was sentenced to five years confinement. On appeal to the Fifth Court of Appeals, appellant presented three points of error. The only point addressed by that court complained that a variance in the pleading and proof rendered the evidence legally insufficient. More specifically, appellant argued the indictment was improperly amended because only a photocopy of the State’s indictment, which had been attached to the State’s motion to amend, was interlineated. As a result, appellant argued, the amendment was invalid, and the evidence, therefore, had to be measured against the original, unamended indictment. In an unpublished opinion, the Court of Appeals agreed the amendment was inadequate, writing that, while “[t]he trial court signed an order granting the State’s motion to amend, ... the face of the original indictment was never interlined.” Therefore, the court held, the evidence demonstrating appellant possessed methamphetamine was insufficient as measured against the original, unaltered version of the indictment accusing appellant of possession of amphetamine. The Court of Appeals reversed the judgment of the trial court and entered a judgment of acquittal.

The grounds granted for review in the State’s petition specifically concern the adequacy of the mechanics undertaken to incorporate an amendment into the indictment. The State contends its motion and interlineated photocopy of the indictment satisfied statutory requirements and Ward v. State, 829 S.W.2d 787. However, should we find those efforts to amend the indictment inadequate, the State alternatively asks this Court to reconsider the continuing precedential value of Ward. Appellant responds that merely interlineating a copy of the State’s original indictment was insufficient to satisfy the requirements of Ward, and the amended version of the indictment was, therefore, invalid. For reasons to be explained, we will overrule, in part, our decision in Ward v. State, reverse the decision of the Court of Appeals and remand for further consideration.⁴

Relevant Case Law

The Texas Constitution guarantees to defendants the right to indictment by a grand jury for all felony offenses. Cook v. State, 902 S.W.2d 471, 475 (Tex.Crim.App.1995); Tex. Const, art. I, § 10.⁵ “An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense.” Tex. Const, art. V, § 12(b). Indictment by grand jury protects citizens against arbitrary accusations by the government. King v. State, 473 S.W.2d 43, 45 (Tex.Crim.App.1971). An indictment is essential to vest the trial court with jurisdiction, Cook v. State, 902 S.W.2d at 475, and an indictment provides a defendant notice of the offense charged so that he may prepare, in advance of trial, an informed and effective defense. Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App.1998). “It has long been held that [notice of the nature and cause of the accusation] must come from the face of the indictment. Indeed, the accused is not required to look elsewhere.” Ward v. State, 829 S.W.2d at 794. See also Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App.1997); Labelle v. State, 720 S.W.2d 101, 110 (Tex.Crim.App.1986) (Article I, section 10 of the Texas Constitution mandates that notice must come from the face of the indictment); Voelkel v. State, 501 S.W.2d 313, 315 (Tex.Crim.App.1973). And it is not sufficient to say that the accused knew with what offense he was charged. The inquiry must be whether the charge, in writing, furnished that information in plain and intelligible language. Benoit v. State, 561 S.W.2d 810, 813 (Tex.Crim.App.1977).

Articles 28.10 and 28.11 provide the State with the opportunity to amend an indictment. However, “[njeither the[State’s] motion [to amend] nor the trial judge’s granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10.” Ward v. State, 829 S.W.2d at 793. This Court has further held that the only effective means of accomplishing an amendment was by interlineation; the actual, physical alteration of the face of the charging instrument. Eastep v. State, 941 S.W.2d at 132; Ward v. State, 829 S.W.2d at 794. See Rent v. State, 838 S.W.2d 548, 550 (Tex.Crim.App.1990) (charging instrument is not amended for purposes of Article 28.10 until actual interlineation of the original occurs).

Analysis

We recognize that the doctrine of stare decisis should generally be followed, because it promotes judicial efficiency and consistency, it fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Proctor v. State, 967 S.W.2d 840, 844-45 (Tex.Crim.App.1998). But when governing decisions of this Court are unworkable or badly reasoned, we are not constrained to follow precedent. Id. at 845. The instant case demonstrates that resolutely clinging to the notion that an amendment can be accomplished only by the physical interlineation of the original indictment provides a defendant with the opportunity to subvert a process of which he was fully aware and had affirmatively acknowledged. For this reason, requiring physical inter-lineation of the original as the only means to accomplish an amendment is unwarranted. Physical interlineation of the original indictment is an acceptable but not the exclusive means of effecting an amendment to the indictment. A plain and common sense reading of Articles 28.10 and 28.11 supports this determination. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991); Tex. Gov’t Code. 311.023. Neither statute can be interpreted to direct that amendment be performed only by physical interlineation. It is acceptable for the State to proffer, for the trial court’s approval, its amended version of a photocopy of the original indictment. If approved, the amended photocopy of the original indictment need only he incorporated into the record under the direction of the court, pursuant to Article 28.11, with the knowledge and affirmative assent of the defense. This version of the indictment would then become the “official” -indictment in the case, and it would continue to state, presumably in “plain and intelligible” language, the nature and cause of the accusation. Garcia v. State, 981 S.W.2d at 685; Benoit v. State, 561 S.W.2d at 813. Such steps comply with all statutory requisites and faithfully preserve the functions of an indictment, i.e., the trial court retains its jurisdiction, and the defendant is still kept abreast of the charges against him/ her and has adequate information to prepare an appropriate defense. We note that Ward v. State continues to stand for the proposition that “[njeither the motion [to amend] itself nor the trial judge’s granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10.” However, to the extent Ward v. State, and those case relying upon it, require physical interlineation of the original indictment as the only means to accomplish an amendment, those cases are overruled.

We now apply this holding to the case at bar. When the State produced a copy of the original indictment, it was in-terlineated and incorporated into the court clerk’s file, all with appellant’s specific knowledge and express approval. At that point, that amended portion of the indictment became the “official” indictment in the case.⁶ This was the indictment appellant knew he could reference, from that point, to provide notice of the specific charge that would enable him to properly prepare his defense. Appellant and his counsel were specifically asked whether they harbored any objections to the amendments. Both replied they did not. The trial court then formally arraigned appellant by reading the amended indictment in open court, to which appellant pleaded not guilty. Under the circumstances present in the case at bar, no error occurred in the amendment process.

As a final matter, appellant attempts to support his position by arguing that the amended copy of the indictment was inadequate because it failed to contain the valid signature of the grand jury’s foreperson.⁷ See Art. 21.02(9). The lack of a signature is of no consequence in this matter, and is, in fact, not essential to the validity of an indictment. Tatmon v. State, 815 S.W.2d 588, 589 (Tex.Crim.App.1991); McCullough v. State, 425 S.W.2d 359, 360 (Tex.Crim.App.1968). The record adequately demonstrates that the indictment used to charge appellant was properly returned by a grand jury and subsequently amended without objection.

Finding no error in the amendment of the indictment in the instant case, we reverse the decision of the Court of Appeals and remand for consideration of appellant’s remaining points of error.

HOLLAND, J., dissented with an opinion in which MEYERS & PRICE, J.J., joined. JOHNSON, J., concurred in the judgment only with an opinion.

1 . "An ‘original’ of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it....” Tex.R. Evid. 903(3).

"A ‘duplicate’ is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent.” Tex.R. Evid. 903(4).

2 . Article 28.10 reads:

(a)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. On the request of the defendant, the court shall allow the defendant not less

than ten days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information 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.

3 .Article 28.11 reads:

All amendments to an indictment or information shall be made with leave of the court and under its direction.

4 . We granted two additional grounds for review in this petition in which the State argues the Court of Appeals erroneously rendered its decision to acquit in violation of Article 21.19 and Rules 44.2 and 44.4 of the Texas Rules of Appellate Procedure. Because of our disposition of the first two grounds for review, we need not address these final two grounds in this opinion, and they are dismissed as moot.

5 . Article I, Section 10 of the Texas Constitution provides in relevant part:

In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof....

6 . We are aware this leaves open the question regarding the status of the enhancement paragraphs, which were not included in the amended version of the indictment. We offer no guidance in this matter and leave resolution of this issue to the Court of Appeals upon remand.

7 . The foreperson’s signature on the original indictment in this case was placed on the second page containing the enhancement paragraphs. As mentioned, a copy of this second page was not included with the State's motion to amend the indictment.