                             NUMBER 13-10-00625-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

CHARLES JOHNSON,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                       Appellee.


                       On appeal from the 156th District Court
                              of Bee County, Texas.


                           MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
       Appellant Charles Johnson, pro se, challenges his conviction by a jury for

possession of a prohibited substance in a correctional facility. See TEX. PENAL CODE

ANN. § 38.11(d)(1) (West Supp. 2010). On appeal, Johnson argues that the trial court

erred in allowing the State, over Johnson's objection, to amend the indictment on the day

of trial. We affirm.
                                            I. BACKGROUND

        Johnson was indicted for possession of marihuana while in a correctional facility.

See id. The indictment contained an enhancement paragraph noting that Johnson was

previously "convicted of the felony offense of Capital Murder." Johnson pleaded not

guilty to the offense, and the case proceeded to trial. On the day of trial, before the

empanelling of the jury and voir dire, the State moved to amend the enhancement

paragraph of the indictment to reflect that Johnson's prior felony conviction was for

attempted capital murder.1 Johnson, who represented himself at trial, objected to the

amendment, arguing that the State was prohibited from amending the indictment on the

day of trial. The trial court overruled Johnson's objection and granted the State's motion

to amend the enhancement paragraph. The jury then convicted Johnson, sentenced

him to eight years' incarceration, and the court ordered the sentence to run consecutively

with his underlying sentence for attempted capital murder. This appeal followed.

                                             II. DISCUSSION

        By two issues, which we consider as one, Johnson urges us to reverse his

conviction because, on the day of trial, the trial court allowed the State to amend the

enhancement portion of the indictment despite Johnson's objection, which he contends

violated article 28.10 of the code of criminal procedure. See TEX. CODE CRIM. PROC.

ANN. art. 28.10 (West 2006). Article 28.10 provides as follows:

        (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,

        1
           Johnson agreed that his earlier conviction was for attempted capital murder, not capital murder as
originally alleged in the indictment.
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              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.

Id.

       However, enhancements need not be pled in the indictment to be effective. See

Johnson v. State, 214 S.W.3d 157, 158 (Tex. App—Amarillo 2007, no pet.) (citing

Villescas v. State, 189 S.W.3d 290, 292-93 (Tex. Crim. App. 2006); Brooks v. State, 957

S.W.2d 30, 34 (Tex. Crim. App. 1997)). As such, their inclusion in the indictment is mere

surplusage, and changes to the surplusage parts of an indictment fall outside the scope of

article 28.10. See id. (citations omitted). In other words, article 28.10's prohibition

against day-of-trial amendments does not apply to amendments to enhancement

paragraphs. See id. at 158-59; see also Thomas v. State, 286 S.W.3d 109, 114 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (holding that the enhancement allegation is not

part of the State's case-in-chief, is therefore not part of the "substance" of the indictment,

and for that reason, article 28.10 does not apply to the amendment of enhancement

paragraphs); Cuvillier v. State, No. 13-99-00662-CR, 2001 WL 715877, at *1 (Tex.

App.—Corpus Christi June 21, 2001, no pet.) (mem. op., not designated for publication)

(holding that changes to enhancement paragraphs are "not [] amendment[s] subject to

article 28.10"). In this case, then, the State was permitted to amend the enhancement

paragraph of Johnson's indictment on the day of trial, regardless of Johnson's objection,
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and the trial court did not err in allowing the State to amend the indictment in this regard

over Johnson's objection. Johnson's issue is overruled.

                                     IV. CONCLUSION

       We affirm the judgment of the trial court.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of August, 2011.




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