                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-09-00354-CR
                              _________________

                    BRIAN KEITH BALENTINE, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
__________________________________________________________________               ___

                    On Appeal from the 359th District Court
                         Montgomery County, Texas
                       Trial Cause No. 08-05-04682 CR
_______________________________________________________________              ______

                                    OPINION

      On original submission, this Court affirmed Brian Keith Balentine’s

conviction for robbery. In addressing one of the issues, we held that the deletion of

a phrase in the indictment at trial was permissible. See Balentine v. State, No. 09-

09-00354-CR, 2011 WL 2732146 (Tex. App.—Beaumont July 13, 2011), rev’d by

Balentine v. State, No. PD-1102-11, 2012 WL 4044895 (Tex. Crim. App. Sept. 12,

2012) (unpublished opinion). On petition for review from our decision, the Court

of Criminal Appeals held that the phrase was not an alternate manner and means

                                         1
averment. Balentine, 2012 WL 4044895, at *2. The Court reversed our judgment,

and remanded the case for this Court’s consideration of “whether the phrase was

permissibly abandoned on any other theory.” See id.

      We conclude that the phrase was needlessly pleaded and, under the

circumstances presented, the unnecessary language could be abandoned by the

State. The defendant received sufficient notice of the offense charged and was not

surprised or misled. The deletion was not material and did not prejudice the

defendant’s substantial rights. We therefore affirm the judgment of the trial court.

                           THE APPELLANT’S ARGUMENT

      The focus of the offense of robbery is the assaultive conduct against the

victim. Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010) (citing Ex

parte Hawkins, 6 S.W.3d 554, 559-60 (Tex. Crim. App. 1999)). The robbery

indictment in this case initially read as follows: Brian Keith Balentine “did then

and there, while in the course of committing theft of property and with intent to

obtain or maintain control of said property, intentionally, knowingly, or recklessly

cause bodily injury to Robert Rhodes, by resisting arrest by Robert Rhodes and

causing Robert Rhodes hand to be sprained during the resisting.” During trial, the

State sought to delete the phrase “and causing Robert Rhodes[’s] hand to be

sprained during the resisting,” and Balentine objected. The trial court permitted the

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deletion. Balentine argues the deletion of the hand-sprain language “deprived him

of proper notice of the cause of the accusation against him.”

      The Sixth Amendment provides in part that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be informed of the nature and cause of the

accusation . . . .” U.S. Const. amend. VI. The Texas Constitution has a similar

provision. See Tex. Const. art. I, § 10. Notice of the nature of the accusation must

be given with sufficient clarity and detail to enable the defendant to anticipate the

State’s evidence and prepare a defense. See State v. Moff, 154 S.W.3d 599, 601

(Tex. Crim. App. 2004).

      Balentine argues the deletion from the indictment was an amendment, not an

abandonment. An amendment to an indictment affects the indictment’s substance.

Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled in part on

other grounds by Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000), and

overruled in part by Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex. Crim. App.

2001). Article 28.10(c) of the Code of Criminal Procedure provides that after trial

begins, “[a]n indictment or information may not be amended over the defendant’s

objection as to form or substance if the amended indictment or information charges

the defendant with an additional or different offense or if the substantial rights of




                                         3
the defendant are prejudiced.” Tex. Code Crim. Proc. Ann. art. 28.10(c) (West

2006).

      Rather than a substantive alteration, an abandonment is the deletion of

unnecessary language from the indictment. See Curry v. State, 30 S.W.3d 394, 399

(Tex. Crim. App. 2000) (“unnecessary language that need not be proved”) (citing

Eastep, 941 S.W.2d at 135). If the change is an abandonment of unnecessary

language, the requirements of article 28.10 of the Code of Criminal Procedure do

not apply. Eastep, 941 S.W.2d at 133, 136.

                                     ANALYSIS

      Though exceptions exist, generally an indictment that tracks the statutory

language defining the criminal offense satisfies constitutional and statutory notice

requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998)

(“[s]ubject to rare exceptions . . . .”). When recklessness is charged, article 21.15

requires that the charging instrument include an allegation, with reasonable

certainty, of the act or acts relied upon to constitute recklessness. See Tex. Code of

Crim. Proc. Ann. art. 21.15 (West 2009); Smith v. State, 309 S.W.3d 10, 14 (Tex.

Crim. App. 2010).

      Balentine relies on Garza v. State, 50 S.W.3d 559, 563 (Tex. App.—

Houston [1st Dist.] 2001, no pet.). In Garza, the defendant was charged with

                                          4
recklessly discharging a firearm into the ground in a crowd of people. Id. at 561.

The trial court allowed the prosecutor to delete the words “in a crowd of people”

shortly before jury selection. Id. at 562. The court of appeals held that the deletion

was an improper amendment, not a permissible abandonment, because “the

deletion did not merely drop an alternative reckless act: it created a different

reckless act.” Id. at 564.

       In Balentine’s case, the hand-sprain deletion was a description of the result

of the alleged reckless act, not the act itself. The reckless act was described as

“resisting arrest.” Deletion of the phrase “and causing Robert Rhodes hand to be

sprained during the resisting” did not change the nature of the manner and means

(“by resisting arrest”). See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App.

2002); Auldridge v. State, 228 S.W.3d 258, 262 (Tex. App.—Fort Worth 2007, pet.

ref’d). Unlike Garza, the deletion did not result in the pleading of a different

reckless act at trial.

       Balentine argues this case is like Curry v. State because, he says, the phrase

deleted is descriptive of the bodily injury element, and the deletion lessens the

State’s burden of proof. See Curry, 30 S.W.3d 394. In Curry, the phrase deleted

“was not merely descriptive of an element of the offense; it was a manner or means

of committing an element of the offense.” Id. at 403. As the Court in Curry also

                                          5
noted, under a standard abandonment, the State limits its theories at trial. Id. at

398. While the State did not limit itself by the deletion in Balentine’s case, it did

not expand the reckless acts described either. Nonetheless, Balentine’s position

appears to be that, as in Curry, the deletion essentially broadened the scope of the

offense alleged and lessened the State’s burden of proof. See id.

       Curry cited Burrell v. State, which noted that “allegations ‘not essential to

constitute the offense, and which might be entirely omitted without affecting the

charge against the defendant, and without detriment to the indictment are treated as

mere surplusage, and may be entirely disregarded.’” Curry, 30 S.W.3d at 399

(quoting Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975)). In

Burrell, the Court of Criminal Appeals stated an exception to this general

surplusage rule, and held that when an indictment describes a necessary person,

place, or thing with unnecessary particularity, the State must prove all

circumstances of the description. Burrell, 526 S.W.2d at 802-03. In effect, under

the Burrell exception, where an unessential allegation of this nature was made, it

was not to be rejected as surplusage.

      In Gollihar v. State, the Court of Criminal Appeals overruled Burrell and the

Burrell exception in the context of a claim of variance between the indictment and

the proof at trial and insufficiency of the evidence. See Gollihar, 46 S.W.3d at 246,

                                         6
256-57. The test for variance is whether the questioned language is material, rather

than whether it is surplusage. Id. at 257 & n.21; compare Auldridge, 228 S.W.3d at

261 (“But this change applies only in a sufficiency analysis.”). As part of the

analysis, a court determines whether the indictment, as written, informs the

defendant of the charge against him sufficiently to allow him to prepare an

adequate defense at trial, and whether prosecution under a deficiently drafted

indictment will subject the defendant to the risk of being prosecuted later for the

same crime. Gollihar, 46 S.W.3d at 257.

      Balentine does not argue that the deletion would subject him to being

prosecuted later for the same crime. He focuses on the notice requirement. See id.

at 257 n.24. In order to determine whether the indictment provides adequate notice,

a court first identifies the offense elements, which include the forbidden conduct,

any required culpability, any required result, and the negation of any exception to

the offense. State v. Barbernell, 257 S.W.3d 248, 255 (Tex. Crim. App. 2008);

Tex. Penal Code Ann. § 1.07(a)(22) (West Supp. 2012). The indictment tracked the

statute, and gave notice that Balentine caused bodily injury and that he caused

injury to the officer by the act of resisting arrest. See generally Mata v. State, 632

S.W.2d 355, 356 (Tex. Crim. App. 1982) (An indictment for aggravated assault

that did not identify the specific part of the body injured was not fundamentally

                                          7
defective.). The deleted phrase was not essential to notify Balentine of the offense

with which he was charged. See generally Alston v. State, 175 S.W.3d 853, 854-55

(Tex. App.—Waco 2005, no pet.) (abandonment).

      But, as Balentine notes, the deleted phrase is a specific description of a

bodily injury, and the offense of robbery, as pleaded here, contains the element of

bodily injury. He asserts that defense counsel was prepared at trial to show there

was no “sprained hand,” and he contends the State sought to delete from the

indictment what it could not prove.

      When the State requested permission to delete the language, Balentine

objected, although counsel noted he “was aware of it[.]” Explaining his objection,

defense counsel stated:

      But it tells us where he was injured. Now, it’s just bodily injury.
      Where? Did he hurt his arm? His leg? His hand?

The State responded:

      Judge, I can represent to the Court that the evidence in this case hasn’t
      changed. The injury that we’re referring to is the injury to Robert
      Rhodes’s hand. The defendant cannot complain of any notice problem
      with this indictment. And that would be the only valid objection that
      he could have and I don’t see that.

Defense Counsel responded:

      I don’t know if I see that I have a valid objection. But anyways,
      Judge, I just wanted to get that on the record.

                                         8
The injuries sustained by Rhodes were a bruise on his palm, a sore thumb, and

scratches on his hand. The evidence of injury at trial was as follows:

      Q.     [State’s Counsel]: Tell the jury how you were injured. Describe
             what happened?
      A.     [Rhodes]: It was my right hand. Like the interior, inside of my
             hand it was bruised. My thumb had gotten pulled back.
      Q.     Was it your hand scratched up or anything like that?
      A.     If I remember correctly, there was two scratches on my hand.
      Q.     Do you remember where?
      A.     One was on the back of the hand, and one was on the front.
      Q.     Now, you mentioned your thumb got hurt. Was your hand -- let
             me think of a better way to phrase this. Did it hurt for any
             amount of time or anything like that?
      A.     About three or four days, sir.
      Q.     So, did you feel actual physical pain --
      A.     Yes, sir.
      Q.     -- during this time?
      A.     Yes, sir.
      Q.     What did you do with your hand when you got back to the
             office?
      A.     I remember shaking it and holding onto it because it was
             hurting.
      Q.     Did you clean it or anything like that?
      A.     There was antibacterial type of lotion to try to clean the cuts out
             with a hand sanitizer.
      Q.     Do you remember exactly how your thumb got hurt?
      A.     No, sir, I don’t. I just remember it hurt like heck.
      Q.     But it was -- did it happen --
      A.     During the struggle.
      Q.     During that struggle?
      A.     Yes, sir.
      Q.     The injury to the hand, did that affect how you did your job for
             the next few days?
      A.     I wouldn’t have been able to really utilize the hand to stop
             anybody.

                                          9
The testimony did not identify a part of the body different from that referred to in

the deleted phrase. Although the evidence establishes the injury was to the victim’s

hand, as the indictment originally alleged, the record contains no medical diagnosis

of a sprain. The difference concerns the degree or character of the injury to the

hand: bruising, cuts, and soreness rather than a sprain.

        In Lane v. State, while discussing the definition of “bodily injury” in

determining the sufficiency of the evidence to establish the offense of robbery, the

Court of Criminal Appeals stated that although the injury may be minor, but yet

beyond “mere offensive touching,” the definition does not require consideration of

“fine distinctions as to the degree or character of the physical force exerted.” 763

S.W.2d 785, 786-87 (Tex. Crim. App. 1989). The Court explained as follows, in

part:

              “Bodily injury” is defined as “physical pain, illness, or any
        impairment of physical condition.” This definition appears to be
        purposefully broad and seems to encompass even relatively minor
        physical contacts so long as they constitute more than mere offensive
        touching. In fact, the degree of injury sustained by a victim and the
        “type of violence” utilized by an accused appear to be of no moment,
        contrary to the court of appeals opinion here. We have previously held
        the evidence sufficient to establish the element of bodily injury when
        a complainant testified she suffered physical pain when the defendant
        grabbed her briefcase and twisted her arm back, causing her to sustain
        a small bruise during the struggle.
              ....
              We conclude that so long as the “violence” is clearly
        perpetrated against another “for the purpose of . . . preventing or
                                          10
      overcoming resistance to theft,” it does not serve the legislative intent
      to engage in fine distinctions as to degree or character of the physical
      force exerted.

Id. (footnotes omitted). Considering the definition of “bodily injury” and the

record, we conclude that the “degree or character” of the injury to the hand is of

“no moment” in this case. See id. at 786.

      We conclude the indictment informed the defendant of the charge against

him sufficiently to allow him to prepare an adequate defense. Gollihar, 46 S.W.3d

at 257; Lord v. State, 63 S.W.3d 87, 92 (Tex. App.—Corpus Christi 2001, no pet.).

Balentine could not have been surprised that the victim testified his hand was

injured, because that is what the original indictment alleged. Although the nature

of the hand injury was bruising, cuts, and soreness, the injury involved the same

body part as that alleged by the language deleted at trial. The State did not attempt

to broaden the scope of the offense; the deletion did not result in Balentine being

charged with an additional or different offense. Whether a sore thumb, bruises, and

scratches to the hand or a true sprain to the hand resulted from the struggle is

immaterial to the offense of robbery for which Balentine was charged.

      We hold that the deletion of the unnecessarily pleaded language was not

material, did not prejudice defendant’s substantial rights, and was a permissible




                                         11
abandonment. Having overruled the only issue presented for consideration on

remand of the case to this Court, we affirm the judgment of the trial court.

      AFFIRMED.

                                              _________________________________
                                                        DAVID GAULTNEY
                                                            Justice

Submitted on November 5, 2012
Opinion Delivered February 20, 2013
Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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