Opinion issued June 10, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00425-CR
GENE ROGER GRIFFIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 916340
MEMORANDUM OPINION
Appellant, Gene Roger Griffin, pleaded no contest to the charge of attempted indecency with a child. See Tex. Pen. Code Ann. §§ 15.01(a), 21.11(a) (Vernon 2003). In accordance with the parties’ plea agreement, the trial court deferred adjudication of guilt and placed appellant on community supervision for five years. We determine whether the trial court erred, under Texas statute or Constitution, in allowing the State to alter the indictment over appellant’s objection. See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 28.10(c) (Vernon 1989). We affirm.
Facts
The complainant, P.D., was seven years old at the time of the offense. The indictment alleged in pertinent part:
Gene Roger Griffin, hereafter styled the Defendant, heretofore on or about May 22, 2002, did then and there unlawfully, intentionally, with the specific intent to commit the offense of Indecency With A Child, of [P.D.], hereafter styled the Complainant, do an act, to-wit: RUBBING THE COMPLAINANT’S SKIN NEAR HER VAGINA WITH HIS HAND . . . .” (Emphasis added.)
Before trial, appellant moved to quash the indictment, claiming, among other things, that the indictment designated an unnamed child of P.D. as the complainant, thus rendering the indictment vague and failing to give appellant fair notice of the charges against him. Over appellant’s objection, the State moved for leave to amend the indictment to remove the word “of” in the portion of the indictment italicized above. The trial court denied appellant’s motion to quash, granted the State’s motion to amend, and allowed the indictment to be amended by crossing out the preposition “of” that appeared before “P.D.” After amendment, the indictment alleged, “Gene Roger Griffin, . . . on or about May 22, 2002, did then and there unlawfully, intentionally, with specific intent to commit the offense of Indecency With A Child, P.D., hereafter styled the Complainant, do an act . . . .” (Emphasis added.) Appellant then pleaded no contest.
Amended Indictment
In his sole issue, appellant contends that the trial court violated his rights under Texas Code of Criminal Procedure article 28.10 and under article I, section 10 of the Texas Constitution by allowing the State to amend the indictment.
Texas Constitution article I, section 10 provides, “[N]o person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, . . . [except in certain cases not applicable here].” Tex. Const. art. I, § 10. Code of Criminal Procedure article 28.10 provides, “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.” Tex Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989). However, “[a]n 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.” Id. art. 28.10(c). “Different offense” means a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991).
Not every alteration to a charging instrument is an amendment subject to article 28.10, however. See Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561, 565-66 (Tex. Crim. App. 2000) (overruling requirement that amendment be by interlineation on face of original indictment) and by Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex. Crim. App. 2001) (overruling surplusage doctrine in context of legal sufficiency of evidence). An amendment is an alteration to the face of the charging instrument that affects the instrument’s substance. Eastep, 941 S.W.2d at 132. An amendment invokes the requirements of article 28.10. See id. at 133. In contrast, “an abandonment, even though accomplished by an actual physical alteration to the face of the charging instrument, does not affect its substance.” Id. One of three situations in which an alteration is an abandonment, rather than an amendment, is when surplusage is deleted. Id. at 135. “Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument.” Id. at 134. An abandonment does not invoke the requirements of article 28.10. See id. at 135.
Appellant claims that the original indictment charged him with attempting to commit indecency with an unnamed child of P.D., rather than with attempting to commit indecency with a child named P.D. Appellant thus argues that the alteration to the indictment was an amendment, rather than an abandonment, and that that amendment charged him with a different offense by changing the complainant’s identity.
We hold that the trial court did not err if it concluded that the word “of” was surplusage, the deletion of which was an abandonment, not an amendment. The phrase “of P.D.” was set off by commas and appeared immediately after “Child.” Such a structure usually indicates that the set-off words constitute a non-restrictive phrase, i.e., a phrase that describes or merely adds information about the immediately preceding noun, but by way of parenthetical comment that is not essential to the preceding noun’s meaning. See, e.g., Margaret Shertzer, The Elements of Grammar 7, 87 (1st ed. 1986); Manual on Usage, Style, & Editing B:4:1 (9th ed. 2002). The phrase appearing between the commas thus explained who the “Child” mentioned immediately before was, without restricting or qualifying the term’s meaning. The phrase set off by commas should obviously have read only “P.D.”—that is, it should have read “the offense of Indecency With A Child, P.D., hereafter styled the Complainant”—rather than “of P.D.” The preposition “of” made no sense within the set-off phrase, but its mistaken inclusion did not change the fact that the phrase was non-restrictive and could thus not have meant what appellant claims. Accordingly, “of” was mere surplusage or a typographical error, and its deletion was not an amendment to which article 28.10(c)’s requirements applied. See Eastep, 941 S.W.2d at 134-35. For the same reasons, even if the deletion of “of” had been an amendment, that amendment could not have resulted in the charging of a different offense. Compare Tex Code Crim. Proc. Ann. art. 28.10(c). Because the alteration was not an amendment—and would not have charged a different offense even had it constituted an amendment—the alteration could not have violated either article 28.10(c) or Texas Constitution article I, section 10.
Accordingly, we hold that the trial court did not err in allowing the State to alter the indictment over appellant’s objection. We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel Consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).