      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00333-CR



                                     Rogelio Alaniz, Appellant

                                                   v.

                                    The State of Texas, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-11-0520, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Rogelio Alaniz was charged with three counts of aggravated assault. See Tex. Penal

Code § 22.02. On the day that the trial began, the State moved to alter the allegations in the indictment

by removing the word “serious” from all three counts. In response, Alaniz objected to the proposed

changes and, alternatively, requested additional time to respond. See Tex. Code Crim. Proc. art. 28.10.

At the end of the hearing, the district court overruled Alaniz’s objections, denied Alaniz’s request

for additional time to respond, and agreed to grant the State’s motion to alter the indictment. After

a trial, the jury found Alaniz guilty of all three crimes and sentenced him to 25 years’ imprisonment

for each count. Alaniz appeals his judgment of conviction. We will affirm his conviction.


                                            DISCUSSION

                On appeal, Alaniz presents three issues. First, he argues that the district court erred

by making the alterations to his indictment. Second, he contends that the modifications violated his
due-process rights. Finally, he asserts that the district court’s “failure to interlineate” the changes

into “the indictment constitutes reversible error.”


Abandonment of Charge in Indictment

                As mentioned above, in his first issue, Alaniz contends that the district court erred

by agreeing to make the changes to the indictment that were requested by the State. As support for

this argument, Alaniz refers to article 28.10 of the Code of Criminal Procedure, which sets out the

procedures for amending an indictment. See Tex. Code Crim. Proc. art. 28.10; see also id. art. 28.11

(providing that “[a]ll amendments of an indictment or information shall be made with the leave of

the court and under its direction”). In particular, article 28.10 authorizes amendments before a trial

has commenced but also requires the trial court to provide the defendant with time to respond to an

amendment if he requests. Id. art. 28.10(a). Further, article 28.10 explains that “[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.” Id. art. 28.10(b). In addition, article 28.10 provides

that an indictment “may not be amended over the defendant’s objection as to form or substance if

the” amendment “charges the defendant with an additional or different offense or if the substantial

rights of the defendant are prejudiced.” Id. art. 28.10(c). In light of these statutory provisions, Alaniz

contends that the district court erred by amending the indictment on the day of trial over his objection

and by failing to provide him with time to respond to the amendments.

                “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), overruled on other grounds by Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App.

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2000). Conversely, if an alteration to an indictment does not affect the indictment’s substance, then

it is not an amendment. Id. at 133. Importantly, if an alteration is not an amendment, then the

change does not invoke the requirements of article 28.10 of the Code of Criminal Procedure

mentioned above, Chen v. State, 410 S.W.3d 394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d), including the need to provide a defendant with time to respond if he requests it, see Tex. Code

Crim. Proc. art. 28.10(a). When exploring the boundaries of what constitutes an amendment, the

court of criminal appeals has identified three types of alterations that do not constitute amendments:

“(1) abandonment of one or more of the alternative means in which an offense may be committed;

(2) abandonment of an allegation in the charging instrument if the effect of such abandonment is to

reduce the prosecution to a lesser included offense; or, (3) abandonment of surplusage.” Eastep,

941 S.W.2d at 135 (internal citations omitted); see Chen, 410 S.W.3d at 396; see also Barron v.

State, No. 03-11-00519-CR, 2013 Tex. App. LEXIS 9268, at *20 n.3 (Tex. App.—Austin 2013, no

pet.) (mem. op., not designated for publication) (concluding that analysis in Eastep regarding

surplusage in indictment “remains good law” even though appellate courts have questioned its

continuing validity because court of criminal appeals continues to refer to that analysis in Eastep

with approval).

               In order to determine whether there was error, we must first decide whether

the changes made to the indictment were amendments. The indictment was titled “OFFENSE:

AGGRAVATED ASSAULT WITH A DEADLY WEAPON [SERIOUS BODILY INJURY]” and

initially alleged, in relevant part, that Alaniz committed the following three criminal acts:




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        did then and there intentionally, knowingly and recklessly cause serious bodily
        injury to Michael Rodriguez by use of a deadly weapon, to wit: a gun, by shooting
        Michael Rodriguez on or about the arm and leg;

        did then and there intentionally, knowingly and recklessly cause serious bodily
        injury to Katherine Hubbard by use of a deadly weapon, to wit: a gun, by shooting
        Katherine Hubbard on or about the arm; [and]

        did then and there intentionally, knowingly and recklessly cause serious bodily
        injury to Oscar Falcon by use of a deadly weapon, to wit: a gun, by shooting
        Oscar Falcon on or about the arm.


When the State sought to alter the indictment, it asked the district court to remove the word “serious”

from the phrase “serious bodily injury” in all three counts, and the district court agreed to make the

requested changes. As a result, the modified indictment alleged that Alaniz committed three acts

of aggravated assault by “intentionally, knowingly and recklessly caus[ing] bodily injury . . . by use

of a deadly weapon, to wit a gun.”

                A similar issue regarding the deletion of the word “serious” from an indictment was

confronted by another court of appeals. See Dawson v. State, No. 10-01-00202-CR, 2003 Tex. App.

LEXIS 10873 (Tex. App.—Waco Dec. 31, 2003, no pet.) (mem. op., not designated for publication).

The indictment at issue in Dawson originally alleged, in pertinent part, that Dawson:


        intentionally, knowingly or recklessly cause[d] serious bodily injury to another,
        namely: Andrew Lee Davis by shooting Andrew Lee Davis in the groin; and,
        Anthony Laroy Dawson did then and there use and exhibit a deadly weapon, namely:
        .25 caliber pistol, during the commission of said offense, and said weapon, in the
        manner of its use or intended use, was capable of causing serious bodily injury.


Id. at *3-4. The trial court in Dawson granted the State’s request to delete “serious” from the phrase

“serious bodily injury.” In discussing the language of the indictment, the court stated that by including

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the word “serious,” the State had “alleged two different means by which Dawson committed the

offense” of aggravated assault as set out in the Penal Code. Id. at *4-5.

               Under the Penal Code, there are various ways by which an individual can be guilty

of committing assault and aggravated assault. See Tex. Penal Code §§ 22.01(a), .02(a). The statutory

provisions at issue in this case as well as in Dawson provide that a person commits an assault if he

“intentionally, knowingly, or recklessly causes bodily injury to another” and that a person commits

aggravated assault if he “commits assault” and either “causes serious bodily injury to another” or

“uses or exhibits a deadly weapon during the commission of the assault.” Id. §§ 22.01(a)(1), .02(a).

In light of this statutory language, the court in Dawson concluded that the indictment alleged that

Dawson committed aggravated assault both by causing serious bodily injury and by using a deadly

weapon during an assault. Dawson, 2003 Tex. App. LEXIS 10873, at *5. Therefore, the court

explained that by requesting the alteration “the State effectively abandoned one of the alternative

means of committing the offense originally alleged.” Id. Accordingly, the court in Dawson concluded

that the alteration was not an amendment. Id.

               We find the logic in Dawson persuasive. When the word “serious” was removed

from the indictment, the remaining wording tracked the language from the Penal Code by alleging

that Alaniz was guilty of the crime of aggravated assault by use of a deadly weapon. See Tex. Penal

Code §§ 22.01(a)(1), .02(a)(2). In other words, by requesting the alteration, the State effectively

abandoned the serious-bodily-injury means of committing aggravated assault. See id. § 22.02(a)(1).

In reaching this result, we are mindful of Alaniz’s assertion that the deletion cannot constitute an

abandonment of an alternative means because the language of the indictment does not use the word



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“or” to link the alternative means of committing aggravated assault. Although we recognize that the

indictment was not pleaded in the disjunctive, that same type of language was present in Dawson and

in other cases in which the courts have concluded that the deletion was an effective abandonment.

See, e.g., Garcia v. State, 537 S.W.2d 930, 932-33 (Tex. Crim. App. 1976) (concluding that removal

of “and convicted of” from phrase in indictment “charged with and convicted of” was “proper

abandonment” of one theory under statute governing crime of escaping custody, which at that time

required proof that person was “arrested for, charged with, or convicted of an offense” before

escaping custody) (emphasis added).

               For these reasons, we conclude that the requested alterations were abandonments of

alternative means and not amendments. Accordingly, we also conclude that the district court did not

err by making the requested changes or by denying Alaniz an opportunity to respond to them.

Therefore, we overrule Alaniz’s first issue on appeal.


No Due Process Violation

               In his second issue, Alaniz contends that his due-process rights were violated by the

district court’s decision to allow the alterations to the indictment. In particular, Alaniz argues that

his trial preparation, including his review of various medical records, centered on contradicting the

State’s assertions that the three victims had suffered “serious” bodily injury. Moreover, Alaniz

notes that the changes were not made until after voir dire was completed and contends that his

jury selection was framed by “the charges as alleged in the indictment.” For these reasons, Alaniz

asserts that he “was not afforded adequate notice to prepare an informed and effective defense.”




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                As a preliminary matter, we note that other than referring to a case for the general

proposition that an indictment should inform the defendant of the charges against him, see Garcia

v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998) (explaining that indictment must provide

notice of accusations against defendant), Alaniz does not cite any legal authority supporting his

due-process claim. See Tex. R. App. P. 38.1(i) (requiring party to file brief with appropriate citations

to authority); see also Rodriguez v. State, 329 S.W.3d 74, 81 (Tex. App.—Houston [14th Dist.]

2010, no pet.) (explaining that failure to cite authority for appellate issue can result in waiver).

                In any event, we are not persuaded that the type of indictment changes at issue in this

case could have violated Alaniz’s due-process rights. As suggested by Alaniz, the purpose of an

indictment is to provide the defendant with “notice of the offense charged so that he may prepare,

in advance of trial, an informed and effective defense.” Riney, 28 S.W.3d at 565. In other words,

the function of the indictment is to inform the defendant of the charges against him and to provide

him with “adequate information to prepare an appropriate defense.” Id. at 566. In this case, the

indictment informed Alaniz that he was being charged with three counts of aggravated assault, set

out the manner in which he allegedly committed the acts, stated who the victims were, and gave a

description of how and when the victims were injured. Although the modifications requested by the

State altered the degree of the harm alleged, the modifications did not otherwise affect the substance

of the allegations against Alaniz.

                Based on the preceding, we overrule Alaniz’s second issue on appeal.


The Changes were Interlineated into the Indictment

                In his final issue on appeal, Alaniz contends that the district court erred by failing to

physically alter “the face” of the indictment. When presenting this argument, Alaniz argues that “he

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was denied fair notice of the charges against him because there was no actual physical alteration to

the face of the indictment, nor was there a photocopy of the original indictment with the amendment

entered into the written record.” See id. at 565-66 (explaining that although court had previously

decided that “only effective means of accomplishing an amendment was by interlineation,” there are

other ways to effect amendment including proffering copy of amended version of original indictment).

               However, the supplemental clerk’s record, which was filed after Alaniz filed

his appellate brief, shows that the alterations were interlineated on the face of the indictment.

Accordingly, we overrule Alaniz’s final issue on appeal.


                                         CONCLUSION

               Having overruled all of Alaniz’s issues on appeal, we affirm the district court’s

judgment of conviction.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: July 9, 2014

Do Not Publish




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