AFFIRMED; Opinion Filed June 25, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-00917-CR

                           MAXIMO MARTINEZ, Appellant
                                                 V.
                           THE STATE OF TEXAS, Appellee

                        On Appeal from the Criminal District Court No. 7
                                     Dallas County, Texas
                             Trial Court Cause No. F11-33935-Y

                               MEMORANDUM OPINION
                           Before Justices Moseley, Francis, and Lang
                                  Opinion by Justice Moseley

       A jury convicted Maximo Martinez of felony driving while intoxicated and assessed

punishment at thirty-five years’ confinement. Martinez raises six issues on appeal, complaining

the trial court improperly amended the indictment over his objection, the trial court made an

improper comment on the weight of the evidence in response to a jury note during deliberations,

and the evidence is legally insufficient to support the assessment of court costs.

       The background of the case and the evidence adduced at trial are well known to the

parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial

court’s judgment.

       Martinez’s first four issues relate to the amendment of the indictment. The original

indictment alleged Martinez committed DWI on or about February 25, 2011 and had two prior
DWI convictions from Dallas County, both dated October 23, 1985. Several months before trial,

the State filed a motion to amend the indictment. The amendment sought to delete the two prior

Dallas County DWI convictions, and replace them with two DWI convictions from Travis

County, both dated December 20, 1990. The record does not indicate the motion was ruled on

before trial.

        Before voir dire and outside the presence of the jury panel, the State read the original

indictment on the record and Martinez entered his plea of not guilty. After the jury was selected

and sworn, the trial court recessed until the next day. The next morning, the court held a hearing

outside the presence of the jury about whether defense counsel had received a copy of the motion

to amend the indictment. Based on the certificate of service on the motion and after contacting

the prosecutor who filed the motion to amend, the court denied a “motion” 1 and instructed the

State to read the amended indictment to the jury. The prosecutor read the amended form of the

indictment with the allegation of the two prior DWI convictions from Travis County. The

defendant entered his plea of not guilty to the amended indictment without objecting to the

amendment.

        Martinez argues the indictment was not amended because there is no written order

granting the motion to amend and the original indictment was never interlined with the

amendment. The record indicates the trial court denied the defense motion, which apparently

related to a lack of notice of the motion to amend, and then directed the State to read the

amended indictment before the jury. The State did so and defendant entered his plea of not

guilty before the jury. During a recess, the trial court stated a question had come up about

whether he had signed or granted the motion to amend the indictment. The trial court expressly


        1
           The record is unclear as to the exact nature of the motion denied. There is no written motion by the
defense regarding the motion to amend the indictment. It appears the court was referring to an oral motion made off
the record complaining of lack of notice of the motion to amend the indictment.


                                                       –2–
stated on the record that he granted the motion.

        Physically interlineating the indictment is an acceptable, but nonexclusive, means of

amending it. Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000). 2                          Riney allows

flexibility in amending indictments provided that the method of amendment employed produces

an amended copy of the indictment incorporated into the record under the direction of the trial

court sufficient to give the defendant fair notice of the charges. See id. at 565–66; Harrison v.

State, No. 05-07-00453-CR, 2008 WL 2514333, at *1 (Tex. App.—Dallas June 25, 2008, no

pet.) (not designated for publication) (trial court’s order, affixed and incorporated into the State’s

motion containing the amended language, sufficed to meet the objectives for an amendment laid

out in Riney).

        Here, the motion to amend includes the language to be deleted and the language to be

added to the indictment. The trial court granted the motion to amend on the record and expressly

directed the State to read the amended indictment to the jury, thereby incorporating it into the

record. See Perez, 2014 WL 1909500, at *3–4; see also TEX. CODE CRIM. PROC. ANN. art. 28.11

(West 2006). We conclude the indictment was effectively amended. We overrule appellant’s

first issue.

        Martinez next contends the trial court erred by allowing the amendment after the

beginning of trial over his objection. Amendment of an indictment is governed by articles 28.10

and 28.11 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. arts. 28.10,

28.11. The court of criminal appeals has held that under the language of article 28.10(b) a

defendant has “an absolute veto power over proposed amendments after trial on the merits has


        2
           The court of criminal appeals recently affirmed that interlineation or including a photocopy of the
amended indictment in the record are not exclusive means of amending the indictment. See Perez v. State, No. PD-
1380-13, 2014 WL 1909500, at *3–4 (Tex. Crim. App. May 14, 2014) (State’s written motion containing the
amended language, written order signed by trial court granting amendment, reading of amended indictment into
record before the jury, and entry of plea to the amended indictment as read satisfied requirements for amendment of
indictment).


                                                       –3–
commenced.” Hillin v. State, 808 S.W.2d 486, 489 (Tex. Crim. App. 1991) (plurality op.). This

power is triggered when, after trial on the merits has commenced, the defendant makes a timely

objection to the form or substance of the State’s proposed amendment. Id. at 488.

       In Sodipo v. State, 815 S.W.2d 551, 556 (Tex. Crim. App. 1990) (op. on reh’g), the court

concluded that the State could not amend the charging instrument on the day of trial prior to

commencing trial on the merits over the defendant’s objection and that the error was not subject

to a harm analysis. We have recognized that after the decision in Sodipo, the court of criminal

appeals held that an amendment of an indictment in violation of article 28.10 is subject to a harm

analysis.   See Dukes v. State, 239 S.W.3d 444, 447 (Tex. App.—Dallas 2007, pet. ref’d)

(discussing Wright v. State, 28 S.W.3d 526, 531–32 (Tex. Crim. App. 2000), superseded on

other grounds by statute, TEX. CODE CRIM. PROC. ANN. art. 37.071 (West Supp. 2013), and Cain

v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), superseded on other grounds by rule,

TEX. R. APP. P. 44.2). In Cain, the court of criminal appeals held that except for certain

structural federal constitutional errors, no error is “categorically immune to a harmless error

analysis.” Cain, 947 S.W.2d at 264.

       Thus, we do not reverse for error under article 28.10 unless the record shows reversible

error under TEX. R. APP. P. 44.2. Because a violation of article 28.10 is a statutory error, the

appropriate harmless error standard is TEX. R. APP. P. 44.2(b). Dukes, 239 S.W.3d at 447. Any

error that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b). To

determine whether the error affected a substantial right, we consider whether the indictment, as

written, informed the defendant of the charge against him sufficiently to allow him to prepare an

adequate defense at trial and whether prosecution under the amended indictment would subject

the defendant to the risk of being prosecuted later for the same crime. Dukes, 239 S.W.3d at

447.

       The State concedes the actual amendment occurred after the commencement of trial, i.e.,

                                               –4–
after the jury was sworn. The State contends, however, that Martinez did not timely object to the

form or substance of the amendment. His only objection was that his counsel did not recall

receiving the motion to amend.

       The record does not reflect that Martinez objected to the form or substance of the

amendment. The only discussion on the record was about whether defense counsel had received

the motion to amend. The trial court clearly understood the complaint to be about notice.

During the recess and after the amended indictment was read to the jury, the trial court said there

was some question about whether he had signed the amended indictment or granted it. The court

said the issue was notice, not whether he granted the amendment. He concluded, “I grant the

amendment, but the issue is notice, not whether I granted it or not.” We can only conclude from

the record that defendant’s complaint about the amendment was for lack of notice, not an

objection to the form or substance of the amendment.

       However, assuming Martinez objected to more than lack of notice of the motion, we

conclude the error in amending the indictment did not affect his substantial rights. Martinez was

charged with committing felony DWI on a certain date in Dallas County. The amendment to the

indictment does not change the statutory offense charged.        Nothing in the record suggests

Martinez was not aware of or unable to prepare for evidence of the two prior DWI convictions

from Travis County. The trial court expressly rejected defense counsel’s objection to lack of

notice of the motion to amend based on the certificate of service on the motion and a

conversation with the prosecutor who signed the motion. In addition, the State listed the two

prior Travis County convictions in its notice of extraneous offenses filed on February 8, 2012.

Thus, the records indicates appellant had notice of the State’s intent to prove the prior Travis

County DWI convictions. Nor is there a risk that Martinez will be prosecuted later for the same

offense of DWI. See Dukes, 239 S.W.3d at 447–48. The amendment merely changed the

allegations regarding prior DWI convictions and did not change the offense with which Martinez

                                               –5–
was charged. We conclude any error in amending the indictment did not affect Martinez’s

substantial rights. See TEX. R. APP. P. 44.2(b). We overrule appellant’s second issue.

       Next, Martinez argues the trial court should have granted his motion for directed verdict

when the State failed to prove the two prior Dallas County convictions or that we should reform

the judgment to reflect a conviction for the lesser included offense of misdemeanor DWI. Both

arguments are premised on Martinez’s contention that the indictment was not effectively

amended and the original indictment remained effective. We have concluded the indictment was

effectively amended and the amendment did not affect Martinez’s substantial rights. Therefore,

we reject both arguments. We overrule appellant’s third and fourth issues.

       In his fifth issue, Martinez contends the trial court commented on the weight of the

evidence in its response to a jury note during deliberations on guilt or innocence.

       The jury sent a note requesting the exhibits “regarding the two convictions in 1990” and

saying, “We also do not understand how they occurred on the same day.” The trial court

proposed to tell the jury that “the allegations are that the cases were disposed of on the same day,

not that they occurred on the same day.” When asked if he had any objection, defense counsel

said “Yes” and requested only an instruction that the jury had all the evidence before them and to

continue their deliberations. The trial court denied the defense request. 3

       Martinez argues the trial court’s instruction improperly commented on the weight of the

evidence because the State had the burden to prove two prior convictions and its was disputed

whether Martinez had one or two prior convictions. The State counters that the trial court merely

gave a straightforward response to the jury’s narrow and straightforward question about the prior

convictions and did not comment on the weight of the evidence.

       We agree with the State. The jury in its question singled out that there were two


       3
           The actual jury notes and the trial court’s written responses are not in the record.


                                                          –6–
convictions in 1990.      See Lucio v. State, 353 S.W.3d 873, 877 (Tex. Crim. App. 2011)

(concluding general rule that court may not single out particular evidence in jury instructions

given before deliberations does not necessarily apply when court responds to jury question about

a subject identified by the jury alone). The trial court’s instruction was neutral and merely

pointed out for the jury that the allegations were the cases were disposed of on the same day, not

that the offenses occurred the same day. The trial court did not assume the allegations were true

or give a personal estimation of the strength or credibility of the evidence supporting the

allegations. We conclude the trial court did not improperly comment on the weight of the

evidence. See id. (court’s response did not covey personal estimation of strength or credibility of

evidence, was neutral, and a correct statement of the applicable law); Green v. State, 912 S.W.2d

189, 193 (Tex. Crim. App. 1995) (narrow and straightforward answer responsive to narrow and

straightforward question from jury was not an improper comment on the weight of the evidence).

We overrule appellant’s fifth issue.

       Appellant’s sixth issue contends the evidence is insufficient to support the amount of

court costs in the judgment. The record before us contains a supplemental record containing the

bill of costs. Appellant’s complaint has been addressed and rejected. See Johnson v. State, 423

S.W.3d 385, 391–96 (Tex. Crim. App. 2014); Coronel v. State, 416 S.W.3d 550, 555–56 (Tex.

App.—Dallas 2013, pet. ref’d). We overrule appellant’s sixth issue.

       We affirm the trial court’s judgment.




                                                     /Jim Moseley/
                                                     JIM MOSELEY
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
120917F.U05


                                               –7–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

MAXIMO MARTINEZ, Appellant                            On Appeal from the Criminal District Court
                                                      No. 7, Dallas County, Texas
No. 05-12-00917-CR         V.                         Trial Court Cause No. F11-33935-Y.
                                                      Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee                          Justices Francis and Lang participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 25th day of June, 2014.




                                                      /Jim Moseley/
                                                      JIM MOSELEY
                                                      JUSTICE




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