Roderick Okeith Smith v. the State of Texas

Opinion

Court of Appeals

Tenth Appellate District of Texas

10-25-00221-CR

10-25-00222-CR

Roderick Okeith Smith,

Appellant

v.

The State of Texas,

Appellee

On appeal from the

278th District Court of Leon County, Texas Judge Tracy Sorensen, presiding Trial Court Cause No. 23-145-DCCR-0173; 23-145-DCCR-0174

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Following a bench trial, the trial court found Roderick Okeith Smith guilty of the felony offenses of failure to comply with registration requirements and failure to comply with sex offender duty to register with a previous conviction. TEX. PENAL CODE ANN. § 62.102. After finding the two allegations of prior felony convictions true on each charge, the trial court assessed Smith’s punishment at seventy-five years’ confinement on each charge and sentenced

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him accordingly. TEX. PENAL CODE ANN. §§ 12.34, 12.42. This appeal ensued. We will affirm.

In his sole issue, Smith argues that the trial court failed to effectively amend the first enhancement paragraph in the indictments.

The specific section of the indictments at issue here is the first enhancement paragraph, which is the same in each cause. In the indictment, the first enhancement paragraph read:

And it is further presented that, prior to the commission of the charged offense (hereafter styled the primary offense), the defendant was finally convicted of an offense under Article 62.102 of the Texas Code of Criminal Procedure on the 15th day of June, 1987, in cause number 449025 in the 232nd District Court of Harris County, Texas, the defendant was finally convicted of the offense of AGGRAVATED SEXUAL ASSAULT.

Prior to the start of the punishment hearing, the State moved to amend the paragraph, asking that the offense be changed to aggravated assault with a deadly weapon and that the cause number be changed to 426177. Smith did not object to the changes and the trial court ordered that the changes be made. Smith then waived the reading of the enhancement paragraphs. The trial court swore in Smith and asked, “Is it true or not true that prior to the

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commission of this offense, you were finally convicted of – in – on June 15th, 1987, in Harris County, Texas, of the offense of aggravated assault?” to which Smith pled true.

The first clerk’s record filed with this Court did not contain the interlineated indictment reflecting the changes ordered by the trial court. Two days after Smith filed his first appellant’s brief, the Leon County District Clerk filed a Supplemental Clerk’s Record which contained the interlineated indictment that accurately reflects the changes ordered by the trial court. Smith then filed an amended brief.

Smith argues that because the interlineated indictment in the Supplemental Clerk’s Record does not reflect when the indictment was amended or by whom it was amended, the trial court failed to effectively amend the first enhancement paragraph as required by Article 28.10. Smith further contends that since the indictment was not effectively amended, the record affirmatively shows that the first enhancement paragraph, in its original form, is itself improper because the aggravated sexual assault is the same offense used as the “reportable conviction” in the primary offense in the indictment. If the first paragraph is improper, Smith argues that the second enhancement paragraph would only operate to enhance the primary offense to a second- degree felony, which cannot support his seventy-five-year sentence.

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The Texas Code of Criminal Procedure provides for the means of amending an indictment. See TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon 2006) (specifying how an indictment must be amended). Amending an indictment requires (1) a motion from the State, (2) an order from the trial court, and (3) 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). The actual amendment occurs when the charging instrument is physically altered by the insertion or deletion of language on the face of the document. Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000).

However, authority also holds that while prior convictions used for enhancement purposes must be pled in some form, they need not be pled in the indictment. Villescas v. State, 189 S.W.3d 290, 292–93 (Tex. Crim. App. 2006); Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). Since enhancement paragraphs need not be pled in the indictment, it logically follows that they are unessential to the validity of the indictment and comparable to surplusage for purposes of Article 28.10. Johnson v. State, 214 S.W.3d 157, 158 (Tex. App.— Amarillo 2007, no pet.). As a result, we conclude that modifying the enhancement paragraph here does not implicate Article 28.10, and, therefore, the trial court did not violate the terms of that provision. 1 Therefore, we overrule Smith’s sole issue.

Having overruled Smith’s sole issue, we affirm the trial court’s judgment.

MATT JOHNSON

Chief Justice

OPINION DELIVERED and FILED: August 27, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CRPM

1 Smith does not complain about lacking notice of the substance of the changes; thus, we do not consider that matter or its potential peripheral issues.

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