                                   NO. 07-06-0191-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                        PANEL D

                                JANUARY 16, 2007
                         ______________________________

                             LINDSEY DWAIN JOHNSON,

                                                               Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 52,105-E; HON. ABE LOPEZ, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Lindsey Dwain Johnson, a felon, appeals his conviction for a felon unlawfully

possessing a firearm.     His two issues on appeal concern the propriety of an oral

amendment to an enhancement paragraph in the indictment. He contends that because

the actual wording of the paragraph in the indictment was not physically altered, the

amendment was invalid, and the trial court could not include the modification in its charge

to the jury. We affirm the judgment.
       Through enhancement paragraph one of the indictment, the State alleged that

appellant had been convicted of felonious stealing in Missouri on May 15, 1991. The

actual year of conviction, however, was 1981. The State sought to correct the error by

orally moving to amend the paragraph and incorporate the true date. The motion was

granted but nothing was written on the indictment itself, or a copy of it, memorializing the

change.

       Statute provides for the means of amending an indictment. See TEX . CODE CRIM .

PROC . ANN . art. 28.10 (Vernon 2006) (specifying how an indictment must be amended).

It is the purported failure to comply with that provision which underlies both of appellant’s

issues. Moreover, we note that authority holds an oral motion to amend coupled with the

trial court’s decision to grant it falls short of a valid amendment under art. 28.10. Instead,

the two acts, when combined, simply grant permission to undertake an amendment. Riney

v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000); Valenti v. State, 49 S.W.3d 594, 597

(Tex. App.– Fort Worth 2001, no pet.). The actual amendment occurs when the charging

instrument (or a copy of it) is physically altered by the insertion or deletion of language on

the face of the document. See Riney v. State, 28 S.W.3d at 565-66 (finding it acceptable

for the State to offer an amended version of a photocopy of the indictment); Valenti v.

State, 49 S.W.3d at 597-98 (holding that the physical interlineation of the written order

granting the motion to amend in which the language of the original indictment was

produced was sufficient to amend the indictment). As mentioned earlier, the record before

us contains no written alteration to the indictment or any similar document.




                                              2
        Yet, authority also holds that while prior convictions used for enhancement purposes

must be pled in some form, they need not be pled in the indictment. Villescas v. State, 189

S.W.3d 290, 292-93 (Tex. Crim. App. 2006); Brooks v. State, 957 S.W.2d 30, 34 (Tex.

Crim. App. 1997). So too are we told not only that the deletion of surplusage from an

indictment falls outside the requirements of art. 28.10 but also that surplusage

encompasses language unessential to the validity of the indictment. Kenley v. State, No.

2-06-0127-CR, 2006 at *22 Tex. App. LEXIS 8864 (Tex. App.–Fort Worth October 12,

2006, no pet.). Since enhancement paragraphs need not be pled in the indictment, it

logically follows that they are unessential to the validity of the indictment and comparable

to surplusage for purposes of art. 28.10. As a result, we conclude that modifying the date

in the enhancement paragraph here does not implicate art. 28.10, and, therefore, the trial

court did not violate the terms of that provision.1

        We affirm the judgment of the trial court.



                                                        Brian Quinn
                                                        Chief Justice



Publish.




        1
         Appellant does not complain about lacking notice of the substance of the change; thus, we do not
consider that matter or its peripheral issues.

                                                   3
