Shaquan D. Campbell v. State

• Court: Court of Appeals of Texas
• Decided: February 28, 2019
• Docket: 03-17-00515-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00515-CR

Shaquan D. Campbell, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 75719, THE HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Shaquan D. Campell of aggravated assault with a deadly

weapon for inflicting injuries on his former girlfriend, who is the mother of his nine-year-old

daughter, during an altercation. See Tex. Penal Code § 22.02(a)(2). Appellant elected to have the

trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge

assessed appellant’s punishment, enhanced by a prior felony conviction, see Tex. Penal Code

§ 12.42(b), at confinement for 50 years in the Texas Department of Criminal Justice, see id. § 12.32.

In a single point of error on appeal, appellant challenges the sufficiency of the evidence relating to

the prior conviction used to enhance his punishment. We affirm the trial court’s judgment

of conviction. DISCUSSION1

Appellant was charged by indictment with aggravated assault with a deadly weapon,

a second degree felony. See id. § 22.02(b). The indictment contained two enhancement paragraphs

alleging that appellant had been previously convicted of felony offenses: the first enhancement

paragraph alleged a 2011 prior conviction for aggravated assault with a deadly weapon; the second

enhancement paragraph alleged a 2011 prior conviction for possession of a controlled substance.

Under the repeat-offender provision of the Penal Code, proof of either of these prior felony

convictions enhanced the punishment range upon conviction to that of a first degree felony. See id.

§ 12.42(b).

During a pretrial hearing, the prosecutor orally moved to amend the first enhancement

paragraph of the indictment, asking that the month of the date of conviction for the prior aggravated

assault be changed from March to April. Appellant expressed that he did not object to the

amendment, and the trial court granted the motion. The trial court offered appellant additional time

to prepare for trial, see Tex. Code Crim. Proc. art. 28.10, but appellant waived the additional time,

indicating that the change was “not that material.”

After the jury found appellant guilty of the charged aggravated assault, the

enhancement paragraphs were read aloud in open court.2 Appellant pled “not true” to the first

enhancement paragraph but “true” to the second enhancement paragraph. The trial court accepted

1 Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we do not recite them in this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. 2 When the prosecutor read the first enhancement paragraph, the amended date was used.

2 appellant’s pleas. Because appellant had elected to have the court assess his punishment, the trial

court ordered a presentence investigation and reset the case for sentencing.

At the beginning of the sentencing hearing, the prosecutor noted that the report from

the presentence investigation documented the conviction alleged in the first enhancement paragraph

and offered appellant the opportunity to change his plea. Otherwise, the prosecutor indicated, the

State would bring in a fingerprint expert to fingerprint appellant and make a comparison to the

judgment of conviction for that prior conviction. After discussion with his attorney, appellant

changed his plea to the first enhancement paragraph to “true.”3 Relying on appellant’s plea of true,

the State did not call the fingerprint expert to prove up the prior conviction alleged in the first

enhancement paragraph.

In his sole point of error, appellant argues that the evidence is insufficient to establish

the prior conviction alleged in the first enhancement paragraph. He asserts that the amendment of

the enhancement paragraph of the indictment did not comply with articles 28.10 and 28.11 of the

Code of Criminal Procedure and, therefore, had no effect. Thus, he contends, because the

enhancement paragraph of the indictment was not properly amended, he pled true to a “false”

enhancement allegation. He maintains that, under this circumstance, his plea of true did not dispense

with the State’s need to offer proof of the prior conviction alleged in the enhancement paragraph.

3 The record indicates that appellant was initially confused about the prior conviction alleged in the first enhancement paragraph because he had received deferred adjudication community supervision for that offense. However, his community supervision was later revoked and appellant was adjudicated guilty. Appellant changed his plea to “true” because, after explanation from his attorney, appellant understood that he had been convicted when his community supervision was revoked and he was adjudicated guilty.

3 Consequently, he contends, because the State did not offer separate proof of the prior conviction, the

evidence—his plea of true to a “false” allegation—was insufficient to support the trial judge’s

finding that the first enhancement paragraph was true.

The Code of Criminal Procedure allows for amendment of an indictment and supplies

the procedure to be followed for successful amendment. See Tex. Code Crim. Proc. arts. 28.10

(specifying procedures for seeking leave to amend indictment), 28.11 (providing that all amendments

of charging instrument “shall be made with the leave of the court and under its direction”). Neither

the motion to amend itself nor the trial court’s granting of that motion is an amendment; rather, the

two together comprise the authorization for the eventual amendment of the charging instrument

pursuant to article 28.10 of the Code of Criminal Procedure. Puente v. State, 320 S.W.3d 352, 358

(Tex. Crim. App. 2010); Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000); Ward v. State,

829 S.W.2d 787, 793 (Tex. Crim. App. 1992), overruled in part by Riney, 28 S.W.3d at 566. A

number of methods to amend an indictment have been approved by Texas courts. See, e.g., Riney,

28 S.W.3d at 565–66 (holding that physical interlineation of original indictment is acceptable

method of amending indictment, as is amended photocopy of original indictment incorporated into

record under direction of trial court); Barfield v. State, 202 S.W.3d 912, 920–21 (Tex.

App.—Texarkana 2006, pet. ref’d) (upholding amendment made by attaching document with text

of amended charging language, which included language from State’s motion to amend, to order

granting amendment); Westmoreland v. State, 174 S.W.3d 282, 287 (Tex. App.—Tyler 2005, pet.

ref’d) (concluding that order granting motion to amend that included language of original indictment,

amended as requested in State’s motion, was sufficient to amend indictment).

4 Regardless of the method used, however, to be valid, the amendment must be granted

by the trial court and the language of the amended indictment must be memorialized in written form

in the record. See Guerrero-Acosta v. State, No. 13-17-00560-CR, 2018 WL 5832097, at *5 (Tex.

App.—Corpus Christi Nov. 8, 2018, no pet.) (mem. op., not designated for publication) (“While the

methods for amending an indictment may vary, it is clear that a written amendment, standing alone

or incorporated into the motion or order, must be included in the record for the amendment to be

valid.”); Tata v. State, 446 S.W.3d 456, 461 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (“A

written amendment must be submitted to the trial court and included in the record to be valid.”);

Hendricks v. State, No. 06-11-00037-CR, 2011 WL 3612276, at *2 (Tex. App.—Texarkana Aug.

18, 2011, pet. ref’d) (mem. op., not designated for publication) (“While it is no longer required that

the original indictment be interlineated, the authorities require that amendments be written

documents filed in the record. . . . While there may be [multiple] ways to amend an indictment,

present law requires that the amendment be memorialized in a written document.”); Head v. State,

299 S.W.3d 414, 437 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“[T]he language of the

amended indictment must be memorialized in a written document and the amendment must be

granted by the trial court.”).

Here, the State made an oral request to amend the first enhancement paragraph of

appellant’s indictment, appellant did not object, the trial court orally granted the request on the

record, and appellant later entered a plea of true to the amended allegation in open court. Appellant

contends, though, that the indictment was never amended because “no written amendment to the

indictment, in whatever form, was submitted to the trial court for approval and included in the

5 record.” See Johnson v. State, 214 S.W.3d 157, 158 (Tex. App.—Amarillo 2007, no pet.) (“[W]e

note that authority holds an oral motion to amend coupled with the trial court’s decision to grant it

falls short of a valid amendment under article 28.10.”); Valenti v. State, 49 S.W.3d 594, 597–98

(Tex. App.—Fort Worth 2001, no pet.) (holding same).

Appellant, however, appears to have overlooked the amended indictment in the

clerk’s record. The clerk’s record initially submitted to this Court omitted the amended indictment.

However, the State brought the omission to the district clerk’s attention, see Tex. R. App. P.

34.5(c)(1) (providing that party may direct trial court clerk to prepare, certify, and file in appellate

court supplement containing relevant item omitted from clerk’s record), and a supplemental record

was filed in this Court. The supplemental clerk’s record contains a copy of the indictment upon

which the trial judge marked through the word “March,” which was at the end of a line, wrote the

word “April” in the margin of the page next to the marked through “March,” and also wrote her

initials and the date of the amendment (the date the court granted the State’s oral motion to amend

on the record) next to the alteration.4

Interlineation—the actual, physical alteration of the face of the charging

instrument—is one of the effective means of accomplishing an amendment. See Riney, 28 S.W.3d

at 566; Ward, 829 S.W.2d at 794. We therefore conclude that the enhancement paragraph of the

indictment was properly amended in this case. Once amended and properly incorporated into the

record, the amended indictment became the official indictment. See Tata, 446 S.W.3d at 461–62;

4 In a letter accompanying the supplemental clerk’s record, the clerk explained that the clerk’s office inadvertently selected the scanned copy of the original indictment instead of the scanned copy of the amended indictment when preparing the clerk’s record for this appeal.

6 cf. Riney, 28 S.W.3d at 565–66. Therefore, appellant’s plea of true to the first enhancement

paragraph of the amended indictment constituted sufficient evidence of the prior conviction alleged.

Wood v. State, 486 S.W.3d 583, 587 (Tex. Crim. App. 2016) (reaffirming that “[a] plea of ‘true’ will

satisfy the State’s burden of proving an enhancement allegation” if there is affirmative evidence in

record showing defendant’s plea of true); Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App.

1984) (“If, however, a defendant pleads ‘true’ to the enhancement paragraph[,] the State’s burden

of proof is satisfied. The plea of ‘true’ is sufficient proof.”); Ricks v. State, No. 03-04-00044-CR,

2005 WL 910186, at *1 (Tex. App.—Austin Apr. 21, 2005, pet. ref’d) (mem. op., not designated for

publication) (“A plea of true to an enhancement allegation constitutes evidence and is in itself

sufficient to satisfy the State’s burden of proof.”). Accordingly, we overrule appellant’s sole point

of error.

CONCLUSION

Concluding that the evidence was sufficient to establish the prior conviction alleged

in the amended enhancement paragraph of the indictment, we affirm the trial court’s judgment

of conviction.

__________________________________________ Edward Smith, Justice

Before Justices Baker, Triana, and Smith

Affirmed

Filed: February 28, 2019

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