AT AUSTIN
NO. 3-91-309-CR
KEITH LYNN LEAVENGOOD,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 39,787, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of burglary of a building. Tex. Penal Code Ann. § 30.02 (1989). The trial court assessed punishment at imprisonment for ten years. We will affirm the conviction.
In point of error one, appellant argues that the trial court erred in granting the State's motion to amend the indictment. The State alleged in its original indictment that appellant burglarized a building owned by Donnie Ray Bradley. Before trial, the State moved to amend the indictment to reflect that Ken Wilkinson owned the building. Tex. Code Crim. Proc. Ann. art. 28.10 (1989). The trial court granted the motion.
Article 28.10(a) permits the State to amend a matter of form or substance in an indictment, after notice to the defendant, any time before trial begins. To preserve error under art. 28.10, a defendant must specifically object. Villalon v. State, 805 S.W.2d 588 (Tex. App. 1991, no pet.); see also Tex. R. App. P. Ann. 52(a) (Pamph. 1991). Appellant concedes that he did not object to the State's motion to amend the indictment. Thus, appellant presents nothing for review.
Assuming appellant had objected, art. 28.10(c) would prohibit the amendment only if the amended indictment charged a different offense or prejudiced substantial rights of appellant. To charge a "different offense" means to charge a different statutory offense. Flowers v. State, 815 S.W.2d 724 (Tex. Crim. App. 1991). Changing an element of an offense, such as the complainant's name in a theft indictment, does not charge a different offense. Id. at 728-29. Similarly, the amendment to this indictment changing the name of the owner of the burglarized building did not charge a different offense.
To determine whether the amendment prejudiced appellant's substantial rights, this Court must review the record. Id. at 729. However, appellant has failed to bring forward a transcription of the hearing on the motion to amend the indictment. See Tex. R. App. P. Ann. 50(d) (Pamph. 1991). Without a statement of facts from the hearing, appellant cannot show error requiring reversal. We overrule point one.
In point of error two, appellant contends that the trial court erred in permitting his ex-wife to testify in violation of the confidential communication privilege. Tex. R. Crim. Evid. Ann. 504(1) (Pamph. 1991). In general, Rule 504(1) allows a person who has made a confidential communication to his spouse while they were married to prohibit its disclosure. (1) Appellant complains of the testimony of Catrina Canon, who was married to appellant when the offense occurred.
Canon testified that at midnight just before the burglary, she and appellant were driving around when they began to argue about money. Appellant drove into a gas station, took a tire tool from the truck, and broke the window of the station's front office. He then leaned inside and lifted out the cash register. Appellant threw the register into Canon's lap and said, "Here's your money." Appellant objects only to Canon's testimony about his statement and not to her description of his actions, which do not qualify as "communication." Sterling v. State, 814 S.W.2d 261 (Tex. App. 1991, pet. ref'd).
Before the adoption of the Rules of Criminal Evidence, the admissibility of marital communications in criminal trials was governed by 1973 Tex. Gen. Laws, ch. 399, § 2(A), at 972 (Tex. Code Crim. Proc. Ann. art. 38.11, repealed effective Sept. 1, 1986). (2) The court of criminal appeals held under that statute that statements made by a defendant to his spouse during the commission of an offense were not privileged communications, but were part of the res gestae of the offense. Butler v. State, 645 S.W.2d 820 (Tex. Crim. App. 1983); see also Cole v. State, 88 S.W. 341 (Tex. Crim. App. 1905) (same result obtained under predecessor to Tex. Code Crim. Proc. art. 38.11).
Apart from broadening the exceptions to the marital-communication privilege, Rule 504(1) largely incorporates the prior law concerning the privilege. See 33 Steven Goode et al., Guide to the Texas Rules of Evidence: Civil and Criminal §§ 504.1, .4 (Texas Practice 1988). The language of Rule 504(1) does not preclude treating appellant's statement as res gestae, and we see no reason not to follow the holding in Butler. We therefore hold that appellant's statement to Canon during the burglary was admissible as res gestae of the offense.
In addition, Canon testified about each physical action that appellant took to commit the burglary. We fail to see how admitting the verbal statement appellant made harmed him. Tex. R. App. P. Ann. 81(b)(2) (Pamph. 1991). We overrule point two.
The judgment of conviction is affirmed.
[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]
Affirmed
Filed: February 12, 1992
[Do Not Publish]
1.
1 Texas R. Crim. Evid. Ann. 504(1) (Pamph. 1991) provides:
(b) General Rule of Privilege. A person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during their marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to his spouse while they were married.
2. 2 Former Tex. Code Crim. Proc. art. 38.11 provided in part:
Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married. Neither husband nor wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communication made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or by the husband to the wife goes to extenuate or justify the offense.
1973 Tex. Gen. Laws, ch. 399, § 2(A), at 972.