                                  IN THE
                          TENTH COURT OF APPEALS

                                No. 10-17-00154-CR

SAMUEL TUCKER,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 12th District Court
                             Walker County, Texas
                             Trial Court No. 27898


                          MEMORANDUM OPINION

      Appellant Samuel Alan Tucker was found guilty by a jury of the offense of bail

jumping and failure to appear. The jury found an enhancement accusation true and

assessed Tucker’s punishment at seventeen years’ incarceration. Tucker appeals in three

issues. We will affirm.

                                        Issues

      Tucker asserts that his conviction should be overturned for the following reasons:
        1)        The trial court erred in permitting the State to amend the indictment
                  over Tucker’s objection after trial had commenced;

        2)        The trial court abused its discretion in denying Tucker’s request to
                  redact a State exhibit to remove the initials “FTA;” and

        3)        The evidence is insufficient to support the jury’s verdict.

                                           Background

        Tucker was convicted by a jury in Cause Number 27,546 of evading arrest or

detention with a vehicle and sentenced to fifteen years’ incarceration. Prior to trial in that

case, Tucker was released on bail. Although Tucker was present on the first day of trial,

he did not appear for the remainder of the trial. The trial court issued a warrant for

Tucker’s arrest. Deputy Byron Bush with the Walker County Sheriff’s department

testified about his attempts to locate Tucker locally and his inability to find him. Bush

contacted the Gulf Coast Violent Offender and Fugitive Task Force for assistance. The

Task Force apprehended Tucker in Alabama, and Tucker was subsequently returned to

Walker County. Tucker was then indicted in the present case for bail jumping and failure

to appear.

                                   Sufficiency of the Evidence

        In his third issue, Tucker argues that the evidence introduced at trial was

insufficient to support his conviction. Specifically, Tucker argues that the evidence did

not show that he knew that he was obligated to return to court after the first day of trial.

In support, Tucker points to the testimony of Ron Voyles, the attorney who represented

him on the evading arrest charge. Voyles testified that he did not know if Tucker was

aware of his obligation to appear again after the first day of trial had concluded.

Tucker v. State                                                                           Page 2
        The Court of Criminal Appeals has expressed our constitutional standard of

review of a sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319, 99 S.Ct. 2781. “Each fact need not point directly and independently to
        the guilt of the appellant, as long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction.”
        Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). If the record supports conflicting inferences,

we must presume that the factfinder resolved the conflicts in favor of the prosecution and

therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793. Further,

direct and circumstantial evidence are treated equally: “[c]ircumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it

is well established that the factfinder “is entitled to judge the credibility of witnesses, and

can choose to believe all, some, or none of the testimony presented by the parties.”
Tucker v. State                                                                            Page 3
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Gerron v. State, 524 S.W.3d

308, 317 (Tex. App.—Waco 2016, pet. ref’d).

        We measure the sufficiency of the evidence by the elements of the offense as

defined in a hypothetically correct jury charge for the case. Cada v. State, 334 S.W.3d 766,

773 (Tex. Crim. App. 2011). Such a charge would be one that accurately sets out the law,

is authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried. Id.; Gollihar v. State, 46 S.W.3d

243, 253 (Tex. Crim. App. 2001). The law as authorized by the indictment means the

statutory elements of the charged offense as modified by the charging instrument.

Gollihar, 46 S.W.3d at 254.

        In order to convict a defendant of the offense of bail jumping and failure to appear,

the state is required to prove beyond a reasonable doubt that the defendant (1) was

lawfully released from custody, with or without bail; (2) on the condition that he

subsequently appear; and (3) that he intentionally or knowingly failed to appear in

accordance with the terms of his release. Ferguson v. State, 506 S.W.3d 113, 115 (Tex.

App.—Texarkana 2016, no pet.); see TEX. PENAL CODE ANN. § 38.10(a) (West 2016). The

culpable mental state cannot be shown “absent proof the defendant had notice of the

proceeding at which he failed to appear.” Richardson v. State, 699 S.W.2d 235, 238 (Tex.

App.—Austin 1985, pet. ref’d) (per curiam) (op. on reh’g). Proof that a defendant is free


Tucker v. State                                                                        Page 4
under an instanter bond is prima facie proof of notice to appear. Johnson v. State, 416

S.W.3d 602, 606 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Euziere v. State, 648

S.W.2d 700, 702 (Tex. Crim. App. 1983). In order to be adequate proof, the bond must

state whether the defendant is charged with a misdemeanor or felony and must set forth

the time, place, and court where the defendant is required to appear. Ferguson, 506

S.W.3d at 116; TEX. CODE CRIM. PROC. ANN. art. 17.08 (West 2015).

        At trial, the State offered a copy of Tucker’s appearance bond into evidence, which

provides, in pertinent part:

                CONDITIONED that whereas, the said Samuel A. Tucker stands
        charged by indictment with a felony, to wit: evading arrest det,
        w/veh./FTA.
                Now, if the said Samuel A. Tucker shall well and truly make his
        personal appearance before the District Court of Walker County, Texas,
        instanter, at the next term of said Court, at Huntsville, Texas and there
        remain from day to day and term to term, until discharged by due course
        of law, then and there to answer said accusation and any and all subsequent
        proceedings had relative to the charge against, [sic] him, then this
        obligation shall become null and void; otherwise to remain in full force and
        effect.

State’s Exhibit 5. The bond notified Tucker that he was charged with a felony, that he

was to appear before the district court of Walker County, Texas, instanter, and to remain

there “until discharged by due course of law.” The bond itself satisfies the State’s burden

of proving the requisite mental state unless Tucker establishes evidence to the contrary.

Johnson, 416 S.W.3d at 607.

        It is a defense to prosecution that a defendant has a reasonable excuse for his

failure to appear in accordance with the terms of his release. TEX. PENAL CODE ANN. §
Tucker v. State                                                                        Page 5
38.10(c). Tucker provided no excuse for his failure to appear. While there was evidence

that neither the trial court nor Tucker’s trial counsel specifically informed him that he

was required to return to court the second day of trial, there is also no evidence that

Tucker was “discharged by due course of law” after the first day of trial. Nor was there

any evidence that Tucker was given directions by the trial court, his attorney or his

bondsman contrary to the terms of the bond agreement. Based on this record, a rational

jury could have believed that Tucker intentionally and knowingly failed to appear in

accordance with the terms of his release. Accordingly, Tucker’s third issue is overruled.

                                     Amended Indictment

        In his first issue, Tucker asserts that the trial court erred in granting the State leave

to amend the indictment over his objection and that the error cannot be considered

harmless.     After the jury was selected and sworn, the State moved to amend the

indictment to reflect the correct dates the evading arrest trial occurred and to delete

Exhibit A. Although Tucker objected, the trial court granted the State’s request. The State

concedes that the trial court’s ruling was incorrect, but argues that the error was harmless.

        Article 28.10 of the Code of Criminal Procedure provides, in pertinent part, that a

matter of form or substance in an indictment may be amended after the trial on the merits

commences if the defendant does not object. TEX. CODE CRIM. PROC. ANN. art. 28.10(b)

(West 2006). Article 28.10 in effect gives a defendant “an absolute veto power” over

amendments to the indictment after trial begins. Hamann v. State, 428 S.W.3d 221, 225

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). Assuming without deciding that the

trial court’s ruling was erroneous, we conclude that any error was harmless.

Tucker v. State                                                                           Page 6
        Except for certain federal constitutional errors deemed structural by the United

States Supreme Court, no error is categorically immune to a harmless error analysis. Cain

v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); see also Brock v. State, 495 S.W.3d 1, 15

(Tex. App.—Waco 2016, pet. ref’d). We treat error as structural only if the United States

Supreme Court has labeled it as such. Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim. App.

2017). The error presented by Tucker involves a statutory violation, not a structural or

constitutional one, thereby mandating a harmless error analysis. See Gray v. State, 159

S.W.3d 95, 98 (Tex. Crim. App. 2005) (“when only a statutory violation is claimed, the

error must be treated as non-constitutional for the purpose of conducting a harm

analysis”).

        Tucker argues that prior authority from the Court of Criminal Appeals precludes

a harmless error analysis in cases involving violations of art. 28.10. See Sodipo v. State, 815

S.W.2d 551, 556 (Tex. Crim. App. 1991) (op. on reh’g) and Hillin v. State, 808 S.W.2d 486,

488 (Tex. Crim. App. 1991) (plurality op.).        However, both Sodipo and Hillin were

impliedly overruled in Wright v. State, 28 S.W.3d 526, 531-32 (Tex. Crim. App. 2000)

(superseded by statute on other grounds). See Hamann, 428 S.W.3d at 225; see also Dukes

v. State, 239 S.W.3d 444, 447 (Tex. App.—Dallas 2007, pet. ref’d); Padilla v. State, 278

S.W.3d 98, 102 n.2 (Tex. App.—Texarkana 2009, pet. ref’d). Further, the harmless error

standard is also mandated by Rule 44.2, which was amended subsequent to both Sodipo

and Hillin. Padilla, 278 S.W.3d at 102. Specifically in regard to an alleged violation of art.

28.10(b), this Court and other intermediate courts of appeal have determined a harmless

error analysis is appropriate. See Westfall v. State, 970 S.W.2d 590, 596 (Tex. App.—Waco

Tucker v. State                                                                          Page 7
1998, pet. ref’d); see also Mason v. State, No. 10-05-00053-CR, 2006 WL 348578, at *2-3 (Tex.

App.—Waco Feb. 15, 2006, pet. ref’d) (mem. op., not designated for publication); accord

Padilla, 278 S.W.3d at 102; Trejos v. State, 243 S.W.3d 30, 41 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d); Scoggins v. State, No. 03-04-00555-CR, 2006 WL 1126185, at *2 (Tex.

App.—Austin Apr. 27, 2006, pet. ref’d) (mem. op., not designated for publication).1 We

conclude that a violation of art. 28.10(b) is subject to a harmless error analysis. We next

consider whether the trial court’s error was harmless.

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

defendant’s substantial rights. TEX. R. APP. P. 44.2(b). An error affects a defendant’s

substantial rights when the error has a substantial and injurious effect or influence in

determining the jury’s verdict. Hamann, 428 S.W.3d at 225. If, when looking at the record

as a whole, it appears that 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 226. “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.

        In the present case, Tucker was aware of the dates of his prior trial as he was

present on the day the trial began. He could not, therefore, have been surprised by the


1
  Under Rule 47.7(a) of the Rules of Appellate Procedure, unpublished memorandum opinions not
designated for publication, including those from sister courts, have no precedential value but may be cited
with the notation, “(not designated for publication).” Brock v. State, 495 S.W.3d 1, 8 (Tex. App.—Waco 2016,
pet. ref’d). Unpublished memorandum opinions are persuasive rather than binding precedent that the
court may follow or reject. Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
Tucker v. State                                                                                      Page 8
State’s request to amend the indictment to include the correct dates. Also, Tucker did not

request additional time to prepare a defense, nor has he identified any evidence or

defenses that were made unavailable due to lack of sufficient notice. Finally, “[t]he

indictment alleged the prior conviction with sufficient specificity, by including the correct

county, court, offense, cause number, month and year to put appellant on notice to

prepare for proof of the conviction.” Valenti v. State, 49 S.W.3d 594, 599 (Tex. App.—Fort

Worth 2001, no pet.). As to the second ground, the specificity in the indictment, as well

as the entire trial record, were sufficient to enable Tucker to raise a defense of double

jeopardy if the State attempted to try him again for the same offense. See Gollihar, 46

S.W.3d at 258.    We conclude that the amendment to the indictment over Tucker’s

objection did not affect Tucker’s substantial rights. Tucker’s first issue is overruled.

                                    Evidentiary Ruling

        In his second issue, Tucker argues that the trial court erred by admitting State’s

Exhibit 5 without redacting the initials “FTA.” We review a trial court’s admission of

evidence for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim.

App. 2018). As long as the trial court’s ruling falls within the zone of reasonable

disagreement, we will affirm that decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003). We will uphold a trial court’s ruling if it is reasonably supported by the

record and correct under any theory of law applicable to the case. State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006).

        The trial court directed that State’s Exhibit 5 be redacted to remove any

highlighting, but did not direct removal of the initials “FTA.” The discussion by counsel

Tucker v. State                                                                        Page 9
with the trial court indicates that Tucker had failed to appear at some point during his

prosecution in Cause Number 27,546, and an additional bond was set. The new bond

added the initials “FTA” to the other charges against Tucker for evading arrest or

detention with a vehicle. State’s Exhibit 5 has “FTA” written in two separate places—

pages 1 and 3. On both pages, “FTA” appears as part of the offense for which Tucker was

released on bail—“Evading Arrest Det w/Vehicle/FTA.” After Exhibit 5 was admitted,

the State published the exhibit to the jury. “FTA” was never defined or explained to the

jury, and there were no references to the “FTA” initials on Exhibit 5 by either the

witnesses who testified or the State’s attorney in closing argument.

        Even assuming that the trial court erred by admitting State’s Exhibit 5 without

redaction, we conclude any error was harmless. Error in the admission of evidence is

nonconstitutional error. Gonzalez, 544 S.W.3d at 373; see also Luna v. State, 301 S.W.3d 322,

326 (Tex. App.—Waco 2009, no pet.). As previously noted, nonconstitutional errors

require reversal only if they affect an appellant’s substantial rights, and an error affects a

defendant’s substantial rights when the error has a substantial and injurious effect or

influence in determining the jury’s verdict. Hamann, 428 S.W.3d at 225. If, when looking

at the record as a whole, it appears that 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 226. Considering the clear evidence of Tucker’s guilt, we conclude that the undefined

and unexplained “FTA” had no, or at most a slight, effect on the jury’s verdict. Any error

in the trial court’s decision to admit State’s Exhibit 5 without redaction did not, therefore,

affect Tucker’s substantial rights. Tucker’s second issue is overruled.

Tucker v. State                                                                        Page 10
        Having overruled all of Tucker’s issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 12, 2018
Do not publish
[CR25]




Tucker v. State                                                                     Page 11
