                                 NO. 07-09-0372-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                                    JULY 16, 2010


                        LEONARDO PALOMERES LEDEZMA,

                                                               Appellant
                                           v.

                               THE STATE OF TEXAS,

                                                                Appellee
                         _____________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

         NO. 59,457-E; HONORABLE DOUGLAS WOODBURN, PRESIDING


                               Memorandum Opinion


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

      Judgment was entered against Leonardo Palomeres Ledezma for possessing a

controlled substance (methamphetamine) with intent to deliver.       The offense, as

described in the indictment, encompassed a substance between the amount of four

grams or more but less than 200 grams. Prior to trial, however, the State orally sought

permission to amend the indictment and allege that the amount of contraband

possessed was 400 grams or more. Though the request was granted, there was no

written memorialization of the amendment of the indictment.        Moreover, the jury
returned a verdict convicting appellant of “the offense as charged in the indictment.”

Thereafter, the trial court entered judgment reflecting that appellant was convicted of

possessing an amount equal to 400 grams or more. Before us, he contends that the

judgment should be reformed to reflect a conviction for possessing an amount ranging

from four to 200 grams. He also asks that the sentence be voided and the cause

remanded for a new punishment hearing. We modify the judgment and affirm it as

modified.

      Analysis

      The language of an amended indictment must be memorialized in a written

document. Head v. State, 299 S.W.3d 414, 437-38 (Tex. App.–Houston [14th Dist.]

2009, pet. ref’d). A motion to amend and the granting of it is not itself a perfected

amendment but merely authorization for the amendment. Ward v. State, 829 S.W.2d

787, 793 (Tex. Crim. App. 1992), overruled in part on other grounds by Riney v. State,

28 S.W.3d 561 (Tex. Crim. App. 2000). The latter actually occurs through alteration of

the charging instrument by means such as handwriting, typing, interlining, redacting, id.

n.14, or even incorporating an amended photocopy of the instrument into the record.

Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000). None of that happened

here, as the State concedes. It further acknowledges that the operative allegations

were those contained in the unaltered charging instrument and encompassing an

amount of contraband of at least four grams but less than two hundred. See Scott v.

State, 253 S.W.3d 736, 740-41 (Tex. App.–Amarillo 2007, pet. ref’d) (stating that the

original indictment is in effect if it is not amended); Serna v. State, 69 S.W.3d 377, 381

(Tex. App.–El Paso 2002, no pet.) (stating the same). We therefore agree that the

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judgment should be modified to reflect that appellant was convicted of the lesser

offense as argued by appellant.

         As for another punishment hearing, we find that unnecessary.                        This is so

because the error at issue was harmless.1 Both the crime for which appellant was

indicted and for which he was convicted are felonies of the first degree. TEX. HEALTH &

SAFETY CODE ANN. §481.112(d) & (f) (Vernon 2010). Though their respective ranges of

punishment differ, they do only on the low end. That is, both carry a maximum of life or

99 years imprisonment. Id. §491.112(f); TEX. PENAL CODE ANN. §12.32 (Vernon Supp.

2009).       However, the minimum term for possessing 400 or more grams of

methamphetamine is fifteen years, TEX. HEALTH & SAFETY CODE ANN. §481.112(f)

(Vernon 2010), while that for exercising control over less than 200 grams is five years.

TEX. PENAL CODE ANN. §12.32 (Vernon Supp. 2009). Here, the trial court levied a thirty

five-year sentence, which is not only within the range applicable to both but also

obviously far from the ends of either range.

         More importantly, the term was so set after the trial court uttered: “ . . . that was

an awfully large quantity of drugs that you were transporting . . . .” From this statement,

one can only reasonably deduce that the quantity involved influenced the trial court’s

decision, and the quantity appellant actually possessed remained the same irrespective

of whether his conviction reflected the crime described in the indictment or the

attempted amendment. So, there is little to suggest that the term of imprisonment

         1
          Though appellant contends that the error is constitutional because several of his issues
mentioned double jeopardy and the denial of his right to a trial by jury, the mistake nevertheless entails
the failure to properly amend the charging instrument and the effect thereof. That is not constitutional in
nature. Thus, whether the mistake is harmful and warranting a new punishment hearing depends on
whether a substantial right was affected. TEX. R. APP. P. 44.2(b).

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would have differed had the trial court realized that appellant could only have been

convicted of possessing less than 200 grams. And, we have been cited to no authority

prohibiting a trial court from levying a high sentence due to the actual amount of drugs

involved as opposed to the amount mentioned in the indictment, so long as the

sentence falls within the statutory range.

         Also of note is that appellant fails to question the fact that the State proved he

possessed 400 or more grams of methamphetamine. Consequently, we cannot say

that because the evidence of what appellant possessed may have been less than

strong, the sentence could differ.

         Finally, the authority cited by appellant as purportedly mandating a new

punishment hearing is inapposite. In Soto v. State, No. 04-04-00630-CR, 2005 Tex.

App. LEXIS 4167 (Tex. App.–San Antonio, June 1, 2005, no pet.) (not designated for

publication) the range of punishment exceeded that allowed by statute. Id. at *5-6.

Such is not true here. Furthermore, the court stated that nothing of record permitted

one to infer that the sentence would have remained the same had the trial court been

aware of the lesser nature of the actual crime committed. Id. at *6-7. Yet, we have

such evidence here, it being the trial court’s own comment about the large quantity of

drugs possessed and its levy of a sentence far from the minimum applicable to either

crime.

         As for Lockette v. State, 874 S.W.2d 810 (Tex. App.–Dallas 1994, pet. ref’d), the

crimes involved there, aggravated robbery versus robbery, were different types of

felonies. The former was a felony of the first degree while the latter was a second

degree felony. Id. at 818. Additionally, what caused the court to reduce Lockette’s

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conviction from aggravated robbery to robbery was the State’s failure to prove the

aggravated circumstance, i.e. the use of a deadly weapon. Here, however, we have the

inverse. The prosecutor actually established what could be viewed as the aggravating

factor, that being a quantity of drugs far greater than the weight mentioned in the

indictment. And, unlike the situation in Lockette, both crimes were felonies of the first

degree here. Next, it may be reasonable to deduce that the absence of an aggravating

factor and the difference in the categorization of the crimes may influence a trial judge

to alter its sentence, as the reviewing court apparently thought in Lockette. But, without

those circumstances, one can only guess at whether the Lockette panel would have

held the same if confronted with the circumstances before us. And, we conclude that

those circumstances make all the difference.

      Accordingly, the judgment is modified to show that appellant was convicted of

possessing a controlled substance of at least four grams but less than 200 (or an

offense under §481.112(d) of the Health & Safety Code) and, as modified, is affirmed.



                                                Brian Quinn
                                                Chief Justice

Do not publish.




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