IN THE
TENTH COURT OF APPEALS
No. 10-13-00119-CR
DANNY DEMON AUSTIN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. C34404-CR
DISSENTING OPINION
The second issue is not, in my opinion, a question of preservation of an issue by
making an objection to the indictment. Rather, it is a question of whether the
indictment was properly amended. There was nothing substantively wrong with the
indictment before it was amended. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West
2005) (“If the defendant does not object to a defect, error, or irregularity of form or substance
in an indictment or information before the date on which the trial on the merits
commences, he waives and forfeits the right to object….”) (emphasis added). It simply
alleged a crime the State was never going to be able to prove. Surely we are not yet at
the state of compelling the defendant to make an objection to the indictment to draw the
court’s attention to the fact that the State cannot possibly prove the crime for which the
defendant has been indicted. What would the objection have been? And to what action
of the trial court would the objection have been made? And when would the objection
have been made?
It is the State’s duty to make sure the defendant is indicted for a crime that the
State believes is supported by the admissible evidence that can be introduced at trial.
The trial court has no duty to determine if the indictment against the defendant charges
a crime the State can prove.
In this instance, the indictment was simply not properly amended. This is
because the only indication in the record before us that the indictment was amended
was a docket notation of a ruling made at a hearing granting the motion to amend. We
have been provided no reporter’s record for the hearing. The hearing occurred during
the absence of the defendant, although it appears his attorney was present. The
attorney had a pending motion to withdraw, and when the defendant finally arrived for
the hearing, that attorney was then allowed to withdraw. A written order allowing the
attorney to withdraw and appointing a new attorney to represent the defendant is part
of the record. A written order, or even a record of a hearing held in open court, that the
indictment had been amended or what that amendment was is not part of the appellate
record.
Austin v. State Page 2
By way of comparison, the indictment had already been amended once in
response to a motion by the State. In that instance, the State moved to amend the
indictment to change the drug that Austin was in possession of from methamphetamine
to cocaine. The full text of the indictment as amended was set out in trial court’s
written order granting that amendment to the indictment. It is clear this method is fully
compliant with the post-Ward case law. See Ward v. State, 829 S.W.2d 787 (Tex. Crim.
App. 1992); Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000); Perez v. State, 429
S.W.3d 639 (Tex. Crim. App. 2014). There is no suggestion that such a procedure is
inadequate to amend an indictment. But a docket entry simply noting the motion to
amend the indictment is granted, alone, cannot be adequate.
Potentially, the defendant might have been made aware that the charges for
which he was about to be tried had been amended when the “indictment” was read at
the commencement of the trial and it contained the element that the drug free zone was
due to the presence of a youth center rather than a school as indicted by the grand jury.
If that was sufficient to put him on notice that the charge in the indictment had been
amended, then possibly he should have lodged an objection to the amendment
procedure or filed a motion for a continuance to allow adequate time to prepare in
response to having learned that the charges upon which he was about to be tried had
been changed. See TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (West 2006) (“On the
request of the defendant, the court shall allow the defendant not less than 10 days, or a
shorter period if requested by the defendant, to respond to the amended
Austin v. State Page 3
indictment….”). Nevertheless, that still begs the question of whether the indictment
was properly amended. I contend it was not.
The evidence proved only that the possession was in a drug free zone by being
within 1000 feet of a youth center, one way the statute is violated, and not that it was
within 1000 feet of a school (which by definition includes day-care facilities), another
way the statute could be violated and as alleged in the first amended indictment. See
TEX. HEALTH & SAFETY CODE ANN. § 481.134 (West Supp. 2013). Under Malik and its
progeny, the State failed to meet its burden to prove the element as contained in the
hypothetically correct jury charge which must be based on the first amended indictment
and not upon the ineffective attempt to amend the indictment a second time. See Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The Court pushes the minimum requirements to properly amend an indictment
beyond the logical boundaries of Ward and the subsequent cases that have loosened, but
not abandoned, the methods allowed to effectively amend the indictment. The
judgment should be reformed to convict Jones for the lesser included offense of simple
possession and remanded to the trial court for a new punishment hearing. Accordingly,
I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed July 31, 2014
Austin v. State Page 4