RODNEY JAMES LEWIS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

RODNEY JAMES LEWIS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–00191–CR

Decided: June 21, 2012

Before Justices Bridges, Francis, and Lang

MEMORANDUM OPINION

Opinion By Justice Bridges

Appellant Rodney James Lewis was convicted on an open plea of guilty for his third driving while intoxicated offense, a third degree felony, and sentenced to eight years' imprisonment.   On appeal, appellant contends:  (1) the case should be abated so that the indictment may be properly amended;  (2) the judgment should be corrected to reflect the proper section of the penal code;  and (3) the judgment should be corrected to reflect the proper State's attorney.   We reform the judgment to accurately reflect the proper section of the penal code and the proper State's attorney and, in all other respects, affirm the judgment of the trial court.

Analysis

In his first issue, appellant contends the trial court authorized an amendment to the indictment, but the amendment was never made.   Appellant seeks to abate the appeal to the trial court with instructions to either amend the face of the indictment by interlineation or incorporate into the trial court's file a separate document with the text of the amended indictment.

Prior to trial, the State filed a written motion to strike words or paragraphs of the indictment, seeking to strike the enhancement paragraph.   Although the trial court signed the written motion, the court did not check the box indicating whether the motion was granted or denied.   However, the trial court did state the motion was granted at the commencement of appellant's trial as follows:

THE COURT:  Mr. Lewis, you stand charged by indictment with the third-degree offense of driving while intoxicated, sir.   And the range of punishment on that offense is two to ten years;  however, there is an enhancement paragraph-or was, and the enhancement paragraph would have made it two to 20 years.   And the State has filed a motion to reduce-or to strike that paragraph, and I am going to grant that motion at this time.   Do you understand, sir, that you are now charged with the original third-degree offense of DWI and the range of punishment is two to ten years in the Texas Department of Corrections?

THE DEFENDANT:  Yes, ma‘am.

Furthermore, the record reflects the plea agreement was left blank concerning any plea to the enhancement paragraphs.   The record also includes appellant's judicial confession, which strikes the enhancement paragraph.   Finally, the judgment indicates the enhancement paragraphs are “N/A.”

Appellant refers this Court to the concurring opinion in Riney to support his proposition that “[a]n indictment may be properly amended by interlineation on the face of the charging instrument, or by incorporating into the trial court's file a separate document with the text of the amended charging language.”   See Riney v. State, 28 S.W.3d 561, 568 (Tex.Crim.App.2000).   The concurring justice in Riney relied upon article 28.10 (Amendment of Indictment or Information) and the Ward decision,1 which was overruled by the majority in Riney.   See Riney, 28 S.W.3d at 566;  Tex.Code Crim. Proc. Ann. Art. 28.10;  Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992).

We conclude the Riney concurrence is inapplicable to this case, because article 28.10 does not apply here.   An enhancement allegation that is not part of the State's case-in-chief is not part of the “substance” of the indictment.   See Thomas v. State, 286 S.W.3d 109, 114 (Tex.App.-Houston [14 Dist.] 2009, no pet.).   Thus, article 28.10 does not apply to the amendment of enhancement allegations.   See id. (citing Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex.App.-Houston [14th Dist.2007, no pet.) (noting that “enhancement allegations are mere surplusage” and abandoning surplusage “does not invoke the requirements of Article 28.10(c)”);  Johnson v. State, 214 S.W.3d 157, 158–59 (Tex.App.-Amarillo 2007, no pet.) (holding that changing the date in enhancement paragraph did not implicate article 28.10)).

Given the fact that the judgment before us accurately reflects the inapplicability of the enhancement paragraph, coupled with the fact that article 28.10 does not apply to the amendment of enhancement allegations, we conclude no amendment is necessary in this case.   We overrule appellant's first issue.

In his second and third issues, appellant contends the judgment should be corrected to reflect the proper section of the penal code which appellant was convicted of violating and to reflect the proper attorney for the State.   The State does not object to appellant's second or third issues.   Therefore, we sustain appellant's second and third issues and reform the judgment to reflect appellant violated section 49.04 of the penal code (not section 49.03) and that counsel for the State

was Don Guidry (not Layne Jackson).   See Tex.R.App. P. 43.2(b).  We affirm the trial court's

judgment in all other respects.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

RODNEY JAMES LEWIS, Appellant

No. 05–11–00191–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 203 rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–24800–P).

Opinion delivered by Justice Bridges, Justices Francis and Lang.

Based on the Court's opinion of this date, we REFORM the trial court's judgment to state appellant violated section 49.04 of the penal code and that counsel for the State was Don Guidry.   As reformed, we AFFIRM the trial court's judgment.

Judgment entered June 21, 2012.

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE

FOOTNOTES

FN1. The Ward court also relied on article 28.10 in reaching its decision..  FN1. The Ward court also relied on article 28.10 in reaching its decision.

DAVID L. BRIDGES JUSTICE

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