White v. State

890 S.W.2d 69, 1994 Tex. Crim. App. LEXIS 143, 1994 WL 706963

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 1994
• Docket: 553-94
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of the offense of aggravated robbery. See TEX-PENAL CODE ANN. § 29.03. The trial court found both of the enhancement allegations against appellant to be true, and assessed his punishment at 65 years’ confinement in the Texas Department of Criminal Justice, Institutional Division. See § 12.42(d). Appellant pursued an appeal of his conviction and sentence. The Court of Appeals affirmed his conviction. White v. State, 874 S.W.2d 229 (Tex.App.— Houston [14th Dist.] 1994).

In that appeal, appellant argued the trial court erroneously permitted the State to delete the words “use a” from the indictment at his arraignment.¹ Appellant asserted this constituted an amendment of the indictment, and that he was therefore entitled to the ten-day notice provision of TEX.CODE CRIM.PROC.ANN. Art. 28.10. The Court of Appeals held:

“It is clear from the wording of the original indictment that what was intended was “use and exhibit.” ... when a charging instrument alleges an offense in the conjunctive, as with the use of the word “and,” it is proper to charge the jury in the disjunctive form by using the word “or.” (citations omitted) The decision to abandon one of two alternative allegations as to the manner of committing the offense is not an amendment of the indictment within the meaning of Art. 28.10.”

White v. State, at 232. The Court of Appeals explained the deletion “was merely an abandonment of one of the alternative theories as to how the crime was committed.” White, at 233. The Court of Appeals distinguished the instant case from cases wherein changes in indictments were considered to be amendments because the latter were “clear changes and amendments which affected substantially the charges against the defendants.” White v. State, 874 S.W.2d, at 232. In the instant case, the deletion “neither charged appellant with a new offense nor prejudiced any of his substantial rights.” White, at 233.

This Court granted appellant’s petition for discretionary review on the ground:

“Whether the Court of Appeals erred in holding that the trial court did not err in permitting the State, over defense counsel’s objection, to amend the indictment on the day of trial by deleting the words “use a” from the indictment in violation of Article 28.10, V.A.C.C.P.”

After earefijl consideration of the record of this case, of the briefs filed by both parties, and of the opinion of the Court of Appeals, we find that appellant’s petition was improvidently granted. TEX.R.APP.PROC. Rule 202(k).

Appellant’s petition for discretionary review is hereby dismissed.

1 . The section of the indictment at issue, before the deletion, read, "... the Defendant did then and there use a exhibit a deadly weapon, to wit, A KNIFE." After the deletion, it read, "... the Defendant did then and there exhibit a deadly weapon, to wit, A KNIFE.”