This is an appeal from a conviction for delivery of one-fourth ounce or less of marihuana. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.05(a), (b)(1) (Vernon Supp. 1987). After a jury trial, the court assessed punishment at six months' confinement and a fine of $1,000.00.
In one point of error appellant argues error occurred when the trial court permitted an "amended information" to be filed over his objection during trial. Under this assignment appellant presents evidence to show the complaint forming the basis for the "amended information" was first sworn to and filed after the original (first) information had been filed. An apt statement of the contention would be: the information was not based upon a valid complaint.
The instruments show that the first complaint was sworn to on the 12th day of November, 1985, and filed on December 2, 1985. The first information was properly filed on December 2, 1985. The complaint alleged the offense occurred on or about October 14, 1985, but the information alleged the date as October 15, 1985.
Following a hearing on appellant's motion to quash the information, the court ordered the complaint amended. Instead of an amendment, a different complaint was sworn to and filed on February 18, 1986.
When the State rested at trial, appellant objected to the trial court permitting the State to file an "amended information." Thereafter, on April 15, 1986, at 12:10 p.m., the "Amended Information" was filed. The objection was, in part:
The records . . . reflect that the information in this case, that the complaint in this case was filed following the filing of the information in this case.
The State contended that under the "inception doctrine" the amended complaint went back to the inception of the original complaint.
TEX.CODE CRIM.PROC.ANN. art. 21.22 (Vernon Pamphlet Supp. 1987) provides:
No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have the power to administer the oath, or it may be made before an officer authorized by law to administer oaths.
It is plain that the delivery case proceeded to trial on an entirely new complaint which was sworn to and filed after the information upon which the State based its proof was filed. Stated differently, the information was filed (presented) on December 2, 1985, while the supporting complaint was not sworn to and filed until the following February 13, 1986. It follows that the complaint was not in existence when the information was presented on December 2, 1985. Billingslea v.State, 160 Tex.Crim. 244, 268 S.W.2d 668, 669 (Tex.Crim.App. 1954). The law requires that the information must be preceded by, or accompanied by, a valid complaint. *Page 24 Baker v. State, 159 Tex.Crim. 491, 265 S.W.2d 600 (1954).
In this case the complaint could have been amended to reflect the correct date because that is a matter of form, which was brought to the trial court's attention by the motion to quash. The amendment would have left the same instrument intact. Only the date would have been changed to the 14th of October, 1985, thereby preserving the complaint with its dates of swearing and filing preceding the information upon which the trial was based. See, e.g., Billingslea, supra 268 S.W.2d at 669, noting that the affiant's name in the body of that complaint, different from the name erroneously placed in the jurat, was subject to correction by amendment of the complaint.
Cases relied upon by the State further confirm what is meant by amending a complaint. In Hampton v.State, 157 Tex.Crim. 244, 248 S.W.2d 488 (1952) the county attorney was permitted to amend the complaint byinserting therein the date "5th day of September 1951." Thus, Hampton's amended complaint was the original and only complaint in the trial. In Chapman v.State, 135 Tex.Crim. 298, 119 S.W.2d 1047 (1938) the trial court permitted the complaint to be amended by filling inthe date it had been sworn to. This was upheld on appeal. After noting that the signatures of all parties were properly on the complaint and information and all that was needed was to fill in the date, the court wrote:
The pleadings recited the date of the offense as of date September 11, 1937, and anterior to the making and filing of such pleading. The court merely allowed such complaint and information to be dated, the jurat on the complaint, showing the same to have been sworn to by the affiant already being thereon. This was a mere matter of form and not of substance, and the court's ruling thereon was correct.
Again, the only complaint in existence in Chapman was the original complaint, amended by filling in the date. That same method of amendment would have been proper in the present case. However, in this case the original complaint no longer existed after February 13, 1986. It was not amended; rather, it was fully extinguished.
While we concur with the State's contention that an information may be amended at trial now under certain circumstances, see TEX.CODE CRIM.PROC.ANN. art. 28.10 (Vernon Supp. 1987), we are compelled to find there was no amendment either of the complaint or of the information. The case proceeded to trial upon an invalid information since it was not preceded by nor accompanied by a valid complaint, one which had been filed prior to or at the same time as the information. It follows that appellant was put on trial on an information which was not based upon a valid complaint. The new information, sworn to and filed after the State presented its case in chief, did not cure the error.
A complaint sworn to after the information has been presented will not support a conviction. Marlar v. State, 364 S.W.2d 384 (Tex.Crim.App. 1963). Further, an information not based upon a valid complaint is fatally defective. Bakerv. State, supra.
Because the information upon which the State went to trial and based its entire proof was presented before the complaint in this case was in existence, the case must be reversed.
The judgment is reversed and the cause remanded.