LOPEZ v. STATE (2010)

OPINION

A jury convicted Ismael Ruben Lopez of aggravated assault by using a deadly weapon and causing serious bodily injury to a member of his family. Lopez pleaded “true” to an enhancement allegation, and the jury assessed his punishment at thirty-five years' imprisonment. Lopez contends in three issues that the court erred by: (1) overruling his motion for mistrial after his mother testified that he previously “went to TYC”; (2) charging the jury on the punishment for a first degree offense because the indictment alleges only a second degree offense and was never amended; and (3) submitting an erroneous parole-law instruction in the punishment charge. We will reverse and remand.

The original indictment alleges in pertinent part that Lopez did “intentionally, knowingly, or recklessly cause bodily injury to Adela Lopez by burning her, and the Defendant did then and there use or exhibit a deadly weapon, to-wit: gasoline, during the commission of said assault.”¹ The original indictment thus alleges a second degree felony. See Tex. Pen.Code Ann. § 22.02(a)(2), (b) (Vernon Supp.2009).

The State filed a motion to amend the indictment to allege that: (1) Lopez caused serious bodily injury; and (2) Adela “was a member of the defendant's family, as described by Section 71.003, Family Code.” These amendments would cause the indictment to allege a first degree felony. Id. § 22.02(b)(1). However, the record contains no order granting the State's motion to amend. Nevertheless, the parties tried the case under the allegations presented in the motion to amend the indictment.

Lopez contends in his second issue that the amendment was never effectuated and thus the court did not properly charge the jury on the applicable range of punishment. But if the indictment was not amended, the court's charge on guilt-innocence submitted the wrong offense to the jury, and as a result Lopez was convicted of an offense for which he had not been indicted.

“Appellate courts have the jurisdiction and authority to review unassigned error.” Bigon v. State, 252 S.W.3d 360, 369 (Tex.Crim.App.2008). When a “[n]ovel constitutional issue” is involved, an appellate court must afford the parties an opportunity to brief the issue. See Pena v. State, 191 S.W.3d 133, 138 (Tex.Crim.App.2006); accord Vasquez v. State, 225 S.W.3d 541, 544 n. 2 (Tex.Crim.App.2007). Nevertheless, “many, if not most, of the types of error that would prompt sua sponte appellate attention need not be assigned because the error involved constitutes an obvious violation of established rules.” Pena, 191 S.W.3d at 136. The issue of whether the guilt-innocence charge submitted the wrong offense to the jury (because the indictment was not amended) fits within this category of “obvious” errors.² See Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App.2006) (“The court of appeals did not err to [address a “jury-charge error”] as unassigned fundamental error on appeal.”).

In 1992, the Court of Criminal Appeals concluded that the amendment of an indictment or information could be effectuated only by “the actual alteration of the charging instrument.” Ward v. State, 829 S.W.2d 787, 793 (Tex.Crim.App.1992). “Neither the motion [to amend] nor the trial judge's granting thereof is the amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument.” Id. The Court later revisited Ward and held that the requisite alteration may be accomplished by alteration of the original indictment³ or by proffer of “a photocopy of the original” reflecting the amendment(s) sought. Riney v. State, 28 S.W.3d 561, 565-66 (Tex.Crim.App.2000). To be effective, such a photocopy must be “incorporated into the record under the direction of the court, pursuant to Article 28.11, with the knowledge and affirmative assent of the defense.” Id. at 566. The Court reaffirmed Ward for the proposition that neither the State's motion nor the trial court's order constitutes an amendment. Id.

Following Riney, courts have identified essentially three mechanisms to effectuate the amendment of an indictment: (1) physical interlineation of the original indictment; (2) filing a copy of the indictment or another document reflecting the amendment; or (3) including the language of the amended indictment in the order granting the amendment. See id. at 565-66; Garza v. State, 269 S.W.3d 300, 301 (Tex.App.-Amarillo 2008, pet. granted); Aguilera v. State, 75 S.W.3d 60, 64 (Tex.App.-San Antonio 2002, pet. ref'd); Serna v. State, 69 S.W.3d 377, 379 (Tex.App.-El Paso 2002, no pet.).

Here, the only document filed of record with respect to the amendment of the indictment was the State's motion to amend. There is no oral or written order granting the motion and no written document (aside from the motion itself and the jury charge) reflecting the requested amendments. Therefore, the indictment was never amended. See Garza, 269 S.W.3d at 301; Johnson v. State, 214 S.W.3d 157, 158 (Tex.App.-Amarillo 2007, no pet.); Serna, 69 S.W.3d at 380-81; State v. York, 31 S.W.3d 798, 800 n. 1 (Tex.App.-Dallas 2000, pet. ref'd).

The guilt-innocence charge instructed the jury to determine whether Lopez was guilty of the offense alleged in the purportedly amended indictment. This was error because the indictment was never amended.

“The charge must ․ contain all of the essential elements of the offense and ‘should correspond with and incorporate the allegations in the indictment.’ ” Fisher v. State, 887 S.W.2d 49, 53 (Tex.Crim.App.1994) (quoting Benson v. State, 661 S.W.2d 708, 713 (Tex.Crim.App.1983) (second op. on reh'g)). According to more recent decisions, a hypothetically correct jury charge must be authorized by the indictment. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.2009). If an indictment is not properly amended, then the hypothetically correct charge must be based on the original indictment rather than the purportedly amended one. Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000).

Here, the charge was erroneous because it submitted a different offense than that alleged in the original indictment. See id. Because Lopez did not object to this error, his conviction may be reversed only if the error caused “egregious harm.” Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App.2005) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g)). “[J]ury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Sanchez, 209 S.W.3d at 121.

Lopez was convicted of a different offense than the one for which he had been indicted.⁴ Thus, the error in the guilt-innocence charge “affect[ed] the very basis of the case.” See id.; see also Williams v. State, 612 S.W.2d 934, 935 (Tex.Crim.App.1981) (error in charge required reversal because “it authorized the jury to convict appellant upon the finding of facts that have not been alleged”); Garza, 269 S.W.3d at 302 (reversing judgment “wherein the trial court convicted appellant for a crime other, and much greater, than that contained in the charging instrument”).

We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

FELIPE REYNA, Justice.

(Chief Justice GRAY dissenting with note).*