IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY 16, 2007
______________________________LINDSEY DWAIN JOHNSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 52,105-E; HON. ABE LOPEZ, PRESIDING _______________________________
Opinion _______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Lindsey Dwain Johnson, a felon, appeals his conviction for a felon unlawfully possessing a firearm. His two issues on appeal concern the propriety of an oral amendment to an enhancement paragraph in the indictment. He contends that because the actual wording of the paragraph in the indictment was not physically altered, the amendment was invalid, and the trial court could not include the modification in its charge to the jury. We affirm the judgment.
Through enhancement paragraph one of the indictment, the State alleged that appellant had been convicted of felonious stealing in Missouri on May 15, 1991. The actual year of conviction, however, was 1981. The State sought to correct the error by orally moving to amend the paragraph and incorporate the true date. The motion was granted but nothing was written on the indictment itself, or a copy of it, memorializing the change.
Statute 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). It is the purported failure to comply with that provision which underlies both of appellant's issues. Moreover, we 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 art. 28.10. Instead, the two acts, when combined, simply grant permission to undertake an amendment. Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000); Valenti v. State, 49 S.W.3d 594, 597 (Tex. App.- Fort Worth 2001, no pet.). The actual amendment occurs when the charging instrument (or a copy of it) is physically altered by the insertion or deletion of language on the face of the document. See Riney v. State, 28 S.W.3d at 565-66 (finding it acceptable for the State to offer an amended version of a photocopy of the indictment); Valenti v. State, 49 S.W.3d at 597-98 (holding that the physical interlineation of the written order granting the motion to amend in which the language of the original indictment was produced was sufficient to amend the indictment). As mentioned earlier, the record before us contains no written alteration to the indictment or any similar document.
Yet, 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). So too are we told not only that the deletion of surplusage from an indictment falls outside the requirements of art. 28.10 but also that surplusage encompasses language unessential to the validity of the indictment. Kenley v. State, No. 2-06-0127-CR, 2006 at *22 Tex. App. Lexis 8864 (Tex. App.-Fort Worth October 12, 2006, no pet.). 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 art. 28.10. As a result, we conclude that modifying the date in the enhancement paragraph here does not implicate art. 28.10, and, therefore, the trial court did not violate the terms of that provision. (1)
We affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Publish.
1. Appellant does not complain about lacking notice of the substance of the change; thus, we do not
consider that matter or its peripheral issues.
/span>At trial, the officer that responded to the call, Joe Pinson, testified. Pinson testified that he was a certified police officer with the Slaton Police Department for 13 years. He testified that he spoke with Ramirez about the incident in the afternoon following its occurrence and photographed her injuries. Based on information he received from Ramirez as well as his personal observation of Ramirez’s injuries, Pinson testified about the manner in which appellant had used the belt and belt buckle. Over appellant’s objection, Pinson testified that a belt and belt buckle used in the manner in which appellant used them would be considered a deadly weapon.
By one issue, appellant challenges the judgment. Appellant’s sole issue contends that the trial court erred in overruling appellant’s objection that Pinson testified as an expert witness regarding what constitutes a deadly weapon without the State designating Pinson as an expert witness in accordance with the trial court’s local rules.
Analysis
Appellant contends that the trial court erred in overruling his objection to Pinson testifying as an expert when the State failed to provide notice of its intent to offer his expert testimony, as required by the local rules of the court. According to appellant’s brief, under “the local rules of the 137th District Court of Lubbock County[,] both Defense and Prosecution are required to give notice to the other if they plan to call an expert witness to the stand during trial.” However, appellant does not provide a verifiable citation to this purported local rule and no copy of the purported local rule is included in the record or attached to appellant’s brief. Our review of the local rules applicable to the Lubbock County District Courts does not include any rule which requires designation of expert witnesses. See Local Administrative Rules of the District Courts and County Courts-At-Law of Lubbock County, Texas, http://www.co.lubbock.tx.us/DClerk/PDF/localrules.pdf; Local Procedural Rules, Criminal Cases, Lubbock County, Texas (2004), http://www.co.lubbock.tx.us/DCrt/PDF/LocalProceduralRules.pdf; Lubbock County Local Fair Defense Act Plan and Rules Sections of the Local Administrative Rules (2004), http://www.co.lubbock.tx.us/DCrt/PDF/FairDefenseActAmen.pdf. Without substantive argument or supporting authorities, an issue cannot be adequately evaluated, and will be overruled. Tex. R. App. P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997). As appellant’s sole citation to supporting authority is to a purported local rule that cannot be verified by this Court, we overrule appellant’s issue.
We are, however, mindful that the Texas Code of Criminal Procedure provides,
On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party . . . .
Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon 2005). The objection appellant raised at trial to Pinson’s testimony was that, “He wasn’t designated, based on the Court’s order that they designate their experts, if he is going to make an expert opinion as to what is or is not a deadly weapon. And I would object to that for lack of notice.” However, a review of the clerk’s record reveals neither a motion for identification of expert witnesses nor an order from the trial court requiring the State to designate expert witnesses. Thus, there is nothing in the record to indicate that the State was under any obligation to designate any expert witness that it intended to call at trial.
However, even were we to find that the trial court’s ruling was in error because it violated a local rule, trial counsel objected on the basis that Pinson’s testimony violated a prior order of the trial court. If the complaint on appeal does not correlate to the objection made at trial, the complainant has not preserved error. Tex. R. App. P. 33.1(a); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). Because appellant’s argument on appeal does not comport with the objection raised at trial, any error in the State’s failure to designate Pinson as an expert witness was not preserved.
Conclusion
For the foregoing reasons, we overrule appellant’s sole issue.
Mackey K. Hancock
Justice
Do not publish.