Opinion issued July 30, 2013




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                               NO. 01-12-00424-CR
                          ———————————
                               JI CHEN, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1773682



                                  OPINION

     A jury convicted appellant, Ji Chen, of theft of property valued more than

$50 and less than $500.1 The trial court assessed his punishment at 120 days’


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     See TEX. PENAL CODE ANN. § 31.03(a), (e)(2) (Vernon 2011).
confinement in the Harris County Jail and a fine of $2,000. In his sole issue,

appellant argues that the trial court erred in denying him a ten-day continuance

pursuant to Texas Code of Criminal Procedure article 28.10 after allowing the

State to delete a descriptive word from the charging instrument on the morning of

trial.

         We affirm.

                                    Background

         T.J. Tolleson, the complainant, was employed as a loss-prevention officer

for the Apple retail store at Memorial City Mall. Tolleson observed appellant

conceal a mouse and two other computer accessories in his pocket and leave the

store without attempting to pay for the items. Tolleson followed appellant out of

the store, identified himself as the loss-prevention officer, and recovered the three

items appellant had removed from the store. The Apple mouse was marked with a

retail value of $69.

         Appellant was originally charged by information that stated he “unlawfully

appropriated . . . property, namely, AN IPOD MOUSE.” On the day of trial,

immediately prior to the start of voir dire, the State moved to abandon the word

“ipod” so that the information charged appellant with stealing “a mouse.”

Appellant objected, arguing that the State had an obligation to prove the theft of

the specific item described in the information, and it should not be able to “get


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around” that obligation by striking a portion of what it had pled. Appellant also

filed a formal bill of exceptions, which was approved by the trial court, stating that

he objected to the alteration in open court, argued that the change was an

amendment of the information rather than an abandonment of surplusage, and

requested a ten-day continuance pursuant to article 28.10. The trial court overruled

appellant’s objection and denied his request for a continuance.

       The jury convicted appellant of theft of property valued between $50 and

$500. This appeal followed.

                                      Analysis

       In his sole issue, appellant argues that the trial court erred in denying his

request for a continuance in light of the State’s amendment of the information on

the day of trial.

       An amendment to the charging instrument is subject to Code of Criminal

Procedure article 28.10, which provides:

       (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.



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      (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.

TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon 2006).

      “An amendment is an alteration to the face of the charging instrument which

affects the substance of the charging instrument.” Eastep v. State, 941 S.W.2d

130, 132–33 (Tex. Crim. App. 1997) (identifying as examples of “amendments”

alteration of weapon in aggravated assault indictment and additional manner and

means of committing offense), overruled on other grounds by Riney v. State, 28

S.W.3d 561 (Tex. Crim. App. 2000). Conversely, an abandonment does not affect

the substance of the charging instrument. Id. at 133. The Court of Criminal

Appeals identified three situations where an alteration to the face of the charging

instrument does not amount to an amendment: (1) abandonment of one or more

alternative ways or means of committing an offense; (2) abandonment of an

allegation if the effect is to reduce the prosecution to a lesser included offense; and

(3) abandonment of surplusage. Id. at 135. “Surplusage is unnecessary language

not legally essential to constitute the offense alleged in the charging instrument.”

Id. at 134; see Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). In

these situations, the alteration is an abandonment, not an amendment, and it does

not invoke article 28.10’s requirements. Eastep, 941 S.W.2d at 134–35; see also


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Chavis v. State, 177 S.W.3d 308, 311 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d) (holding that abandonment of surplusage does not invoke requirements of

article 28.10).

      To establish theft, the State is required to prove that the defendant

unlawfully appropriated property with the intent to deprive the owner of the

property. See TEX. PENAL CODE ANN. § 31.03(a). The offense of theft is a Class B

misdemeanor if the value of the property stolen is $50 or more but less than $500.

Id. § 31.03(e)(2). The deletion of the word “ipod” did not delete any allegation

necessary to describe the charged offense, as the remaining words, “a mouse,”

identified the property stolen, and the value of the mouse fell within the range

alleged in the information. See Curry, 30 S.W.3d at 399; Eastep, 941 S.W.2d at

134. We conclude that the State’s deletion of the word “ipod” did not affect the

substance of the indictment and constituted an abandonment, not an amendment,

and, thus, it did not invoke article 28.10’s requirements. See Curry, 30 S.W.3d at

399; Eastep, 941 S.W.2d at 134; Chavis, 177 S.W.3d at 311.

      Appellant cites an exception to the rule that a charging instrument may be

altered to delete language unnecessary to constitute the offense alleged. The Court

of Criminal Appeals has held, “Where the unnecessary matter is descriptive of that

which is legally essential to charge a crime, the State must prove it as alleged

though needlessly pled.” Eastep, 941 S.W.2d at 134 n.7; see also Curry, 30

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S.W.3d at 399–400 (holding that such descriptive language must be proven as

alleged, even though needlessly stated). Appellant argues that because the Code of

Criminal Procedure requires the State to describe the personal property stolen by

“name, kind, number, and ownership,” the description of the property stolen as “an

ipod mouse” was alleged, even if unnecessarily, the State was required to prove the

theft as alleged, and any subsequent alteration of the description of the property

implicated article 28.10’s requriements. See TEX. CODE CRIM. PROC. ANN. art.

21.09 (Vernon 2009) (requiring State to describe personal property stolen by

“name, kind, number, and ownership”); Byrd v. State, 336 S.W.3d 242, 251 n.48

(Tex. Crim. App. 2011) (citing pleading requirements of article 21.09).

      “[E]xtra language is ‘descriptive’ of an element of the offense if it ‘define[s]

the offense more narrowly, place[s] it in a specific setting, or describe[s] the

method by which it was committed.’” Curry, 30 S.W.3d at 399 (quoting Upchurch

v. State, 703 S.W.2d 638, 641 (Tex. Crim. App. 1985)). Here, the use of the word

“ipod” in the original information served none of these three functions—it did not

define the scope of the offense, place it in a specific setting, or describe the method

by which the theft was committed. See id. Thus, we disagree with appellant that

the word “ipod” was legally essential to charge the crime. See Eastep, 941 S.W.2d

at 135 (holding that abandonment of some appropriations in theft indictment was




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permissible where aggregate value of remaining appropriations was still over

$20,000).

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.



                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Higley, and Bland.

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




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