Opinion issued January 30, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00591-CR
                           ———————————
                     MATTHEW HAMANN, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 180th District Court
                          Harris County, Texas
                      Trial Court Case No. 1326875


                                 OPINION

     A jury convicted appellant, Matthew Hamann, of assault against a person

with whom he had a dating relationship, second offense,1 and the trial court


1
     See TEX. PENAL CODE ANN. § 22.01(a) (Vernon Supp. 2013) (defining offense of
     assault); id. § 22.01(b)(2)(A) (providing that assault of family member, person
assessed his punishment at twenty-five years’ confinement. In three points of

error, appellant argues that: (1) the trial court erred in allowing the State to amend

the indictment on the day of trial; (2) the evidence was insufficient to support his

conviction; and (3) the trial court improperly allowed the State’s fingerprint expert

to testify because the State had failed to disclose the expert’s name.

      We affirm.

                                    Background

      On November 12, 2011, Houston Police Officers E. DeLeon and S.

Maldonado answered a call for an assault in progress at 8601 Winkler, an

apartment complex near the Gulf Freeway in southeast Houston, and found

appellant in the complex’s parking lot, standing over Toni Caseras, the

complainant, and yelling at her as she huddled in a fetal position on the ground.

After restraining appellant, the officers found that Caseras was severely shaken,

that she had a “busted lip,” and that her abdomen was “very red,” signs the officers

thought were consistent with her having been assaulted.

      Caseras testified that she had met appellant the year before, when both were

employees at Kelly’s Country Cooking. The two began dating and moved in

together in early 2011. By November, Caseras and appellant had been living

      with whom appellant has dating relationship, or member of his household is third
      degree felony if appellant had previous conviction for assault against family
      member, person with whom he had a dating relationship, or member of his
      household).
                                          2
together for eight months. On the evening of November 11, they went to a co-

worker’s barbecue, but, because Caseras was concerned about appellant’s drinking,

they left the barbecue early and returned home. On the way back, an argument

erupted, and, when they arrived home, Caseras ran out of the car and “took a

walk,” hoping that appellant would calm down by the time she returned. When she

came back around midnight, appellant was gone, so she went to bed.

      Appellant woke her shortly thereafter by punching her repeatedly, dragging

her from the bed, and throwing her on the floor. He kicked her, grabbed her by the

hood of her sweatshirt, and dragged her to the front of the apartment to throw her

outside. When she begged to be allowed to get her shoes, he let her go back to the

bedroom, where she grabbed her cell phone. Appellant then threw her out of the

apartment and went back inside to get another beer. When he came back outside,

he found Caseras dialing 9-1-1 on her cell phone. He said, “I’m going to kill you”

and charged at her just as the first squad car pulled into the parking lot.

      Appellant was arrested and charged with assault involving dating violence,

second offense. The original indictment alleged that, prior to the instant offense,

appellant, “on July 11, 2007, in the 230th District Court of Harris County, Texas,

in Cause Number 1122012, was convicted of assault which was committed against

a person with whom defendant had a dating relationship.” Following the jury’s

impanelling, but before it was sworn, the State moved to modify the indictment to

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reflect that the July 11, 2007 conviction was an “assault [against a] family

member.” The trial court granted the State’s motion to amend the indictment over

appellant’s objection. Previously, approximately one month before the trial, the

State had filed its notice of intent to use evidence of prior convictions and

extraneous offenses that properly identified the July 11, 2007 conviction that was

used in the indictment. The notice also included a November 20, 2008 conviction

for assault involving family violence, two additional convictions for assault

involving family violence, a conviction for engaging in organized criminal activity,

and seven misdemeanor offenses, including criminal trespass, burglary of a motor

vehicle, and possession of marijuana.

      In order to confirm that appellant was convicted of assault of a family

member in 2007, the State called Roy Glover, a fingerprint expert for Harris

County, who matched appellant’s fingerprint to that on the 2007 judgment.

Despite appellant’s request for notice of all expert witnesses pursuant to Code of

Criminal Procedure article 39.14, the State had not previously disclosed Glover’s

name. Rather, the State identified only a “fingerprint identification expert” in its

subpoena list.

      The jury convicted appellant of assault and this appeal followed.




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                           Amendment of Indictment

      In his first point of error, appellant argues that the trial court erred in

allowing the State to amend the indictment on the day of trial to correct the name

of his previous conviction from “assault which was committed against a person

with whom defendant had a dating relationship” to “assault-family violence.”

      Code of Criminal Procedure article 28.10 provides the guidelines for

amending an indictment:

      (a) After notice to the defendant, a matter of form or substance in
      an indictment or information may be amended at any time before the
      date the trial on the merits commences. On the request of the
      defendant, the court shall allow the defendant not less than 10 days, or
      a shorter period if requested by the defendant, to respond to the
      amended indictment or information.

      (b) A matter of form or substance in an indictment or information
      may also be amended after the trial on the merits commences if the
      defendant does not object.

      (c) An 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 the defendant are
      prejudiced.

See TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon 2006).             The Court of

Criminal Appeals and this Court have previously held that article 28.10 gives a

criminal defendant “an absolute veto power” over amendments to the indictment

after trial begins. See James v. State, No. 01-10-00693-CR, 2012 WL 1355731, at

*5–6 (Tex. App.—Houston [1st Dist.] Apr. 19, 2012, pet. ref’d) (opinion

                                         5
designated for publication) (citing Hillin v. State, 808 S.W.2d 486, 488–89 (Tex.

Crim. App. 1991)). Furthermore, this Court has held that an amendment to an

enhancement paragraph in the indictment is likewise subject to the defendant’s

veto under article 28.10. See id. at *6 (citing Boutte v. State, 824 S.W.2d 322, 323

(Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)).

      Here, it is undisputed that the State moved to amend the enhancement

paragraph in the indictment after trial on the merits began and that the trial court

effectuated the amendment over appellant’s objection. Therefore, following Hillin,

Boutte, and James, we hold that the trial court erred in granting the State’s

amendment over appellant’s objection.

      Appellant argues that violations of article 28.10 are not subject to harmless-

error review, relying on the Court of Criminal Appeals’ holding to that effect in

Sodipo v. State, 815 S.W.2d 551 (Tex. Crim. App. 1991). However, as this Court

recognized in James, that holding was impliedly overruled in Wright v. State, 28

S.W.3d 526, 531–32 (Tex. Crim. App. 2000). In James, we held that violations of

article 28.10 are subject to harmless-error review. 2012 WL 1355731, at *7.

      We disregard an article 28.10 violation unless the trial court’s error affects

the defendant’s substantial rights. See TEX. R. APP. P. 44.2(b); Gray v. State, 159

S.W.3d 95, 98 (Tex. Crim. App. 2005) (stating that statutory violation claims are

treated as non-constitutional errors for purposes of conducting harm analysis);

                                         6
James, 2012 WL 1355731, at *7. An error affects a substantial right “when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict.” Trejos v. State, 243 S.W.3d 30, 41 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997)). If, looking at the record as a whole, it appears the error “‘did not influence

the jury, or had but a slight effect,’ we must consider the error harmless and allow

the conviction to stand.” Id. at 41–42 (quoting Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998)).       “To determine whether the trial court’s error

affected a substantial right, we examine the possible outcomes had the indictment

not been erroneously amended.” Id. at 42. The critical inquiry is whether the

indictment as written sufficiently informed the defendant of the charge against him

to allow him to prepare an adequate defense at trial and whether prosecution under

the original indictment would subject the defendant to the risk of being prosecuted

later for the same crime. Id. (citing Gollihar v. State, 46 S.W.3d 243, 248 (Tex.

Crim. App. 2001)).

      Here, the original indictment included an enhancement paragraph identifying

appellant’s previous conviction for family assault as an assault against someone

with whom appellant was in a dating relationship. The date of conviction, cause

number, and trial court were all identified correctly in the original indictment.

Both crimes—assault against a person with whom a defendant had a dating

                                          7
relationship and assault against a family member—are covered by the same

subsection of the Penal Code, and either could have supported appellant’s

indictment for assault against a person with whom he had a dating relationship as a

second offender. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (Vernon Supp.

2013) (providing that assault of family member, person with whom appellant has

dating relationship, or member of his household is third degree felony if appellant

had previous conviction for assault against family member, person with whom he

had a dating relationship, or member of his household). Furthermore, the State

properly identified the previous conviction in the notice of intent to use evidence of

prior convictions and extraneous offenses that it sent to appellant a month before

trial.

         Thus, the record demonstrates that the original indictment sufficiently

informed appellant of the charge against him to allow him to prepare an adequate

defense, and it also demonstrates that appellant’s prosecution under the original

indictment would not subject him to the risk of later prosecution for the same

offense. See Trejos, 243 S.W.3d at 42. Had the indictment not been amended, the

State could have still presented evidence of appellant’s previous conviction, in

spite of the fact that it was a conviction for assault against a family member, rather

than an assault against someone with whom appellant had a dating relationship.

Such a variance between the indictment and the proof offered at trial is considered

                                          8
immaterial. See Freda v. State, 704 S.W.2d 41, 42–43 (Tex. Crim. App. 1986)

(holding there was no fatal variance between facts alleged in indictment and facts

proved at trial when indictment alleged appellant was previously convicted of

felony bank robbery and appellant was not surprised to his prejudice when actual

proof at trial instead demonstrated prior conviction for conspiracy to commit bank

robbery); Simmons v. State, 288 S.W.3d 72, 80 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (recognizing that “variances between an indictment and the proof

of cause numbers, courts, and dates of conviction in enhancement paragraphs have

been held not to be material”).       Thus, we cannot conclude that appellant’s

substantial rights were prejudiced under these circumstances.

      We overrule appellant’s first point of error.

                            Sufficiency of the Evidence

      In his second point of error, appellant argues that the evidence supporting his

conviction was legally insufficient because the State did not present evidence of a

previous conviction for assault “which was committed against a person with whom

the defendant had a dating relationship,” as alleged in the original indictment.

      When reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also


                                          9
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Brooks, 323 S.W.3d at 899.

      In challenging the evidence supporting his conviction for the assault against

Caseras, appellant argues only that, because the State’s evidence of his July 11,

2007 conviction for assault in cause number 1122012 established that it was a

conviction for assault of a family member, it was legally insufficient to establish

that he was previously convicted of an assault against a person with whom he had a

dating relationship, as alleged in the original indictment.

      This Court has recognized that “variances between an indictment and the

proof of cause numbers, courts, and dates of conviction in enhancement paragraphs

have been held not to be material.” Simmons, 288 S.W.3d at 80 (citing Freda, 704

S.W.2d at 42–43). In Freda, the Court of Criminal Appeals held that a variance

between the name of a prior offense alleged in an enhancement paragraph of the

indictment and the name of the prior offense proved at trial will not be material or

require reversal without a showing of surprise or prejudice. 704 S.W.2d at 43.

The record here does not reveal that appellant was surprised or prejudiced by the

variance between the offense originally named in the enhancement paragraph of

his indictment and the offense as proved at trial. The original indictment correctly

                                          10
identified his prior conviction by date, cause number, and convicting court, and the

State properly identified the previous conviction in its notice of intent to use

evidence of previous convictions and extraneous offenses. Appellant does not

argue that the State failed to provide adequate proof of his previous conviction for

an assault against a family member. Thus, the variance between the name of the

prior offense originally alleged in the indictment and the name of the prior offense

proved at trial is not material here and does not require reversal. See id.

      We overrule appellant’s second point of error.

                             Failure to Disclose Witness

      In his third point of error, appellant contends that the trial court erred in

allowing Roy Glover, fingerprint expert for Harris County, to testify after the State

failed to disclose his name in its witness list.

      Generally, notice of the State’s witnesses must be given upon request by the

defense. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993). If the trial

court allows a witness who was not on the State’s list to testify, we review that

decision for an abuse of discretion. See id.; Hardin v. State, 20 S.W.3d 84, 88

(Tex. App.—Texarkana 2000, pet. ref’d). Among the factors a reviewing court

considers in determining whether a trial court abused its discretion by allowing a

witness who is not on the State’s witness list to testify are (1) whether the State’s

actions in calling a previously undisclosed witness constituted bad faith, and (2)


                                           11
whether the defendant could have reasonably anticipated that the witness would

testify. Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000) (citing Nobles

v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992)).           In determining

whether the State acted in bad faith, the principal area of inquiry is whether the

defense shows that the State intended to deceive the defendant by failing to provide

the defense with a witness’s name. See Nobles, 843 S.W.2d at 515. In examining

whether the defense could have reasonably anticipated that the State would call the

witness, reviewing courts generally examine (1) the degree of surprise to the

defendant; (2) the degree of disadvantage inherent in that surprise (i.e., the

defendant was aware of what the witness would say, or the witness testified about

cumulative or uncontested issues); and (3) the degree to which the trial court was

able to remedy that surprise (i.e., by granting the defense a recess, postponement,

or continuance, or by ordering the State to provide the witness’s criminal history).

See Martinez, 867 S.W.2d at 39; Nobles, 843 S.W.2d at 515; Martinez v. State, 131

S.W.3d 22, 29 (Tex. App.—San Antonio 2003, no pet.); Hardin v. State, 20

S.W.3d 84, 88 (Tex. App.—Texarkana 2000, pet. ref’d).

      Here, there is no evidence that the State acted in bad faith.       It timely

disclosed a list of its witnesses that provided generally that it intended to call a

fingerprint identification expert, and there is no evidence that appellant inquired

further as to the identity of the expert witness at a time when the State would know

                                        12
the witness’s identity. In Young v. State, the Court of Criminal Appeals addressed

a similar situation in which the State did not provide the names of its witnesses for

the punishment phase of trial because it did not know which witnesses it would

call. 547 S.W.2d 23, 27 (Tex. Crim. App. 1977). The court found that because

Young did not inquire further as to which witnesses the State would call at a time

when the State would know, the trial court did not abuse its discretion in admitting

the testimony. Id. Thus, we conclude that appellant has failed to show that the

State intended to deceive him by failing to provide him with Glover’s name. See

Nobles, 843 S.W.2d at 515.

      Furthermore, the record demonstrates that appellant could have reasonably

anticipated that the fingerprint expert would testify. See Martinez, 867 S.W.2d at

39; Nobles, 843 S.W.2d at 515. While the fact that Glover was the designated

fingerprint expert was a surprise to appellant, the degree of disadvantage inherent

in that surprise was minimal because appellant was aware that the State would call

a fingerprint expert to testify and that the State intended to introduce evidence of

his previous convictions. See Gowin v. State, 760 S.W.2d 672, 674 (Tex. App.—

Tyler 1988, no pet.) (holding that, when State failed to identify fingerprint expert

by name until morning of trial, trial court did not abuse its discretion in allowing

expert’s testimony because defendant knew that State intended to prove prior DWI

convictions and should have reasonably anticipated that State would call expert

                                         13
fingerprint witness to do so). And the trial court allowed appellant to question

Glover before he testified, effectively remedying any surprise regarding the

expert’s identity. See Stoker v. State, 788 S.W.2d 1, 14–16 (Tex. Crim. App. 1989)

(concluding that trial court did not err in allowing unnamed witness to testify as to

identity of illicit substance in part because trial court granted brief continuance

during trial for defense counsel to interview witness), disapproved of on other

grounds by Leddy v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998). Thus, we

conclude that the trial court did not abuse its discretion in allowing Glover to

testify. See Martinez, 867 S.W.2d at 39; Nobles, 843 S.W.2d at 515.

      Appellant cites Oprean v. State to support his argument that the trial court

erred in allowing Glover to testify. However, Oprean is distinguishable because it

involved the State’s willful refusal to obey a discovery order. See 201 S.W.3d 724,

727–28 (Tex. Crim. App. 2006) (holding that State willfully withheld video tape

depicting one of defendant’s prior offenses, despite multiple requests and

opportunities to produce it, and remanding case to trial court to determine whether

defendant suffered any harm from tape’s admission). Here, as we stated above,

there is no indication in the record that the State willfully withheld Glover’s name

or otherwise acted in bad faith. The State timely disclosed its intention to use a

fingerprint identification expert and its intention to use evidence of appellant’s

prior convictions for family-violence assault.

                                         14
      We overrule appellant’s third point of error.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice


Panel consists of Justices Keyes, Higley, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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