                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-432-CR


RYAN ADAM FRITZ                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      Appellant Ryan Adam Fritz appeals his conviction for five counts of online

solicitation of a minor. See Tex. Penal Code Ann. § 33.021 (Vernon Supp.

2008).     In two related points, he asserts that the trial court erred when it

granted the State’s motion to amend the original indictment and when it denied

his motions to quash both the original and the amended indictments.         We

affirm.


      1
          … See Tex. R. App. P. 47.4.
                               Background Facts

      A grand jury indicted appellant for five counts of online solicitation of a

minor. The indictment specified the statutory provision appellant had violated

as section 33.021 of the penal code; it also related the dates of each separate

offense and, in all but Count IV, the .jpg file names of the explicit material that

appellant had distributed. The indictment used mostly identical wording from

the statute. Counts I, II, III, and V stated that appellant,

      on or about [date], and anterior to the presentment of this
      Indictment, in [Denton County], did then and there, being a person
      who was 17 years of age or older, with the intent to arouse or
      gratify the sexual desire of the defendant, intentionally distribute
      over the Internet or by electronic mail or by a commercial online
      service in a sexually explicit manner, to-wit: “[file name].jpg” to an
      individual whom the defendant believes to be younger than 17
      years of age or an individual who represents himself to be younger
      than 17 years of age.2

Appellant filed a motion to quash the indictment, contending that it did not give

him adequate notice of the nature of the charges or apprise him of when he

allegedly committed the offenses (for the purpose of pleading double jeopardy).

      The State moved to amend the indictment, stating in its motion,

      [T]he words “in a sexually explicit manner” should be deleted; and
      the words “sexually explicit material” should be substituted, so as



      2
       … Count IV, related to appellant’s attempt to meet someone under
seventeen for sexual purposes, was slightly different and was not amended by
the State.

                                        2
      to make the Indictment, in pertinent part, read as follow[s]: “. . .
      intentionally distribute over the Internet or by electronic mail or by
      a commercial online service sexually explicit material, to-wit: . . .”

            The State would show that said amendment does not charge
      the Defendant with an additional or different offense, nor does it
      prejudice the substantial rights of the Defendant.

The trial court granted the motion to amend through an order and by making

changes on the face of the indictment. Appellant filed a motion to quash the

amended indictment for reasons similar to those in his first motion.3 The trial

court denied appellant’s motion.

      Months later, appellant pled guilty to all counts. The trial court convicted

appellant of all counts, and appellant timely filed his notice of this appeal.

                           Applicable Law and Analysis

Allowing the State to amend its indictment

      In his first point, appellant contends that the original indictment did not

allege any crime, that the trial court therefore did not have jurisdiction to allow

the State to amend the indictment, and that even if the trial court did have



      3
          … In his second motion, appellant asserted,

      To perform the duty to investigate, prepare, and establish possible
      defenses, Defendant is entitled to a specific allegation of what the
      State will rely upon to convict. Defendant is not required to
      anticipate any and variant facts that the State might hypothetically
      seek to establish. The presumption of innocence coupled with the
      right to notice require that Defendant be given such notice.

                                        3
jurisdiction, it violated article 28.10 of the code of criminal procedure by

allowing the amendment. See Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon

2006).

      To determine whether the trial court had jurisdiction over this case, we

must look to the indictment as a whole, not to its specific formal requisites, to

decide if the State accused appellant with enough clarity and specificity for him

to identify the charge of online solicitation of a minor, even if the indictment is

otherwise defective. See Teal v. State, 230 S.W.3d 172, 180–81 (Tex. Crim.

App. 2007); Duron v. State, 956 S.W.2d 547, 550–51 (Tex. Crim. App.

1997); see also Ex parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. 1990)

(orig. proceeding) (explaining that “if the instrument comes from the grand jury,

purports to charge an offense and is facially an indictment, then it is an

indictment . . . and its presentation by a State’s attorney invests the trial court

with jurisdiction to hear the case”); Ex Parte Jessep, 281 S.W.3d 675, 681

(Tex. App.—Amarillo 2009, pet. filed) (stating that “[i]f the allegations in it are

clear enough that one can identify the offense alleged, the indictment is

sufficient to confer subject matter jurisdiction”). The right to notice of the

charges contained in an indictment is constitutional in nature. See Smith v.

State, No. AP-75479, 2009 WL 1212500, at *3 (Tex. Crim. App. May 6,

2009); Ahmad v. State, No. 02-08-00008-CR, 2009 WL 1507052, at *11

                                        4
(Tex. App.—Fort Worth May 28, 2009, no pet. h.); Perez v. State, 261 S.W.3d

760, 769 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).

      Section 33.021 of the penal code states in pertinent part,

      (b) A person who is 17 years of age or older commits an offense
      if, with the intent to arouse or gratify the sexual desire of any
      person, the person, over the Internet, by electronic mail or text
      message or other electronic message service or system, or through
      a commercial online service, intentionally:

            (1) communicates in a sexually explicit[4 ] manner with
            a minor;[5 ] or

            (2) distributes sexually explicit material to a minor.

      (c) A person commits an offense if the person, over the Internet, by
      electronic mail or text message or other electronic message service
      or system, or through a commercial online service, knowingly
      solicits a minor to meet another person, including the actor, with
      the intent that the minor will engage in sexual contact, sexual
      intercourse, or deviate sexual intercourse with the actor or another
      person.

Tex. Penal Code Ann. § 33.021(b)–(c) (emphasis added). Here, the allegations

in the original indictment signaled to appellant that he was charged with, under

section 33.021 of the penal code, distributing particularly designated sexually



      4
       … A communication is sexually explicit when it relates to or describes
sexual conduct as defined by section 43.25 of the penal code. See Tex. Penal
Code Ann. § 33.021(a)(3), § 43.25(a)(2) (Vernon Supp. 2008).
      5
       … The statute defines “minor” as someone who represents himself or
herself to be younger than seventeen or who the defendant believes to be
younger than seventeen. Tex. Penal Code Ann. § 33.021(a)(1).

                                       5
explicit .jpg files over the internet to an individual he believed to be, or who

represented himself to be, younger than seventeen.

      While the original indictment used the word “manner” (a term used in

subsection (b)(1) of the statute) rather than “material” (a term used in

subsection (b)(2)), it was still clear enough to allege a crime under subsection

(b)(2), because it focused on distributing and not communicating (which is the

verb used in subsection (b)(1)), and it specifically described the .jpg files that

appellant distributed. Thus, we hold that the trial court had jurisdiction on the

basis of the original indictment.

      We must also overrule the remainder of appellant’s first point, regarding

the trial court’s compliance with article 28.10. Article 28.10 prescribes the

following procedure 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,[6 ] 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.



      6
      … Appellant does not complain about the amount of time he had to
respond to the amended indictment. The trial court amended the indictment in
November 2007, and appellant did not plead guilty until July 2008.

                                        6
      (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. A “different offense” under article

28.10(c) means a different statutory offense. Brown v. State, 155 S.W.3d

625, 628 (Tex. App.—Fort Worth 2004, pet. ref’d). A change in an element

of an offense, proof, or victim does not constitute charging a different statutory

offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991);

Brown, 155 S.W.3d at 628 (concluding that burglary with intent to commit

assault and burglary with attempted or completed assault are not different

offenses); Garth v. State, 3 S.W.3d 218, 222–23 (Tex. App.—Dallas 1999, no

pet.) (concluding that changing the value of stolen property in a theft

information, although clarifying the level of offense, did not change the nature

of the statutory offense); Bynum v. State, 874 S.W.2d 903, 905–06 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d) (involving a different victim).

      Here, the amended indictment, by merely changing the word “manner”

to “material” to precede the description of the electronic file name in four of the

indictment’s counts, did not charge appellant with a new or different offense.

As explained above, the original indictment adequately described an offense




                                        7
under section 33.021(b)(2), and the amended indictment charged him with that

same offense.

      Also, appellant does not dispute that he distributed the electronic files or

that distributing the electronic files under the circumstances of his distribution

(whether the files were defined as “manner” or “material”) comprised a violation

of the law,7 even if the other specific verbiage in the indictment was initially

incorrect. See Posey v. State, 545 S.W.2d 162, 163 (Tex. Crim. App. 1977);

Rotenberry v. State, 245 S.W.3d 583, 586 (Tex. App.—Fort Worth 2007, pet.

ref’d).

      Finally, appellant’s substantial rights were not prejudiced because he

knew before and after the amendment (1) the general section of the penal code

where the offense was located, (2) the dates that he committed his crimes, and

(3) the names of the sexually explicit files that he distributed. See Tex. Code

Crim. Proc. Ann. art. 28.10(c). We overrule appellant’s first point.

Denying appellant’s motion to quash

      In his second point, appellant argues that the trial court erred when it

denied his motions to quash the indictment. We disagree.




      7
        … In pleading guilty, appellant affirmed that he understood the charge
contained in the indictment and confessed that he committed the acts alleged
in the indictment.

                                        8
      When reviewing a trial court’s decision to deny a motion to quash an

indictment, we apply a de novo standard of review. Lawrence v. State, 240

S.W.3d 912, 915 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2056

(2008); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)

(explaining that the sufficiency of an indictment is a question of law). “Upon

the filing of a timely motion to quash, an indictment must be analyzed to

determine whether it states on its face the facts necessary to allege that an

offense was committed, to bar a subsequent prosecution for the same offense,

and to give the accused notice of the precise offense with which he is

charged.“ Rotenberry, 245 S.W.3d at 586.

      The indictment must state facts which, if proved, show a violation of the

law; the indictment must be dismissed if such facts would not constitute a

criminal offense. Id.; see Posey, 545 S.W.2d at 163. When a motion to quash

is overruled, a defendant suffers no harm unless he did not, in fact, receive

notice of the State’s theory against which he would have to defend. Moff, 154

S.W.3d at 601, 603; see also Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon

2009) (“An indictment shall not be held insufficient, nor shall the trial, judgment

or other proceedings thereon be affected, by reason of any defect of form

which does not prejudice the substantial rights of the defendant.”).




                                        9
      Appellant argues that the State’s amended indictment is defective

because it is not specific enough. Specifically, he asserts that the indictment

did not limit itself to alleging only one of the ways that he could have

distributed the .jpg files:   over the internet or by electronic mail or by a

commercial online service under penal code section 33.021(b); that the

indictment was required to exactly define the nature of the explicit material

(whether it was a “communication, language, or material, including a

photographic or video image”) under penal code section 33.021(a)(3); and that

the indictment was also required to specify which category of sexual conduct

the .jpg files related to under penal code section 43.25.8

      However, in most cases, “an indictment is legally sufficient if it delineates

the penal statute in question.” See Moff, 154 S.W.3d at 602; Roberts v. State,

278 S.W.3d 778, 792 (Tex. App.—San Antonio 2008, pet. filed); see also

DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988) (explaining

that a “motion to quash should be granted only where the language concerning

the defendant’s conduct is so vague or indefinite as to deny the defendant

effective notice of the acts he allegedly committed”); State v. Laird, 208


      8
       … Under section 43.25, sexual conduct is “sexual contact, actual or
simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the
anus, or any portion of the female breast below the top of the areola.” Tex.
Penal Code Ann. § 43.25(a)(2).

                                       10
S.W.3d 667, 669 (Tex. App.—Fort Worth 2006, no pet.) (same). And although

the State in some circumstances is required to go further by specifying manners

and means of committing an offense in its indictment, it is entitled to,

conjunctively or disjunctively, allege any or all of the statutorily defined types

of conduct. See State v. Winskey, 790 S.W.2d 641, 642 (Tex. Crim. App.

1990) (explaining that if “a statute provides more than one way for the

defendant to commit the act or omission, then on timely request the State must

allege the manner and means it seeks to establish, either separately or in some

disjunctive combination”) (emphasis added); Queen v. State, 662 S.W.2d 338,

341 (Tex. Crim. App. 1983); Ferguson v. State, 622 S.W.2d 846, 851 (Tex.

Crim. App. 1981) (op. on reh’g); Hartis v. State, 183 S.W.3d 793, 801 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). Also, the indictment is not required

to contain matters that are only evidentiary, such as the specific manner of

contact in an indecency with a child case. See State v. Shuck, 222 S.W.3d

113, 115–16 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

      Here, the amended indictment delineated section 33.021 of the penal

code, and it further informed appellant of the acts that the State alleged he

committed by stating the manner of distribution in a disjunctive format, by

naming the specific .jpg files at issue (which defined the nature of the sexually

explicit material with more particularity than section 33.021(a)(3) does), and by


                                       11
giving the dates of the files’ distributions. We therefore hold that appellant did

not lack notice of the offense he was charged with and that the indictment

properly explained the offense. See also Gray v. State, 980 S.W.2d 772, 775

n.2 (Tex. App.—Fort Worth 1998, no pet.) (explaining that “[a]lternative

pleading of differing methods of committing one offense may be charged in one

indictment”); Braughton v. State, 749 S.W.2d 528, 530 (Tex. App.—Corpus

Christi 1988, pet. ref’d) (relating that the “State need not elect between various

theories”).

      Next, neither appellant’s motion to quash the original indictment nor his

motion to quash the amended indictment adequately set forth the manner in

which the indictments’ notice was allegedly deficient9 (as appellant now

attempts to do in his brief, as related above), so the State was not required to

give him any more detailed notice even if the original notice was deficient. See

DeVaughn, 749 S.W.2d at 69–70; State v. Goodman, 221 S.W.3d 116, 120

(Tex. App.—Fort Worth 2006, no pet.).



      9
       … The first motion merely stated that the State’s indictment was “fatally
deficient in that Defendant is not given adequate notice of the manner and
means by which the State alleges that Defendant (allegedly) violated any
offense.” The second motion included that same statement and then argued
only that the amended indictment was “fatally deficient in that Defendant is not
given any notice of one of the elements of the offense sought to be charged.”
It then went on to allege what the evidence would show and that section
33.021 is unconstitutional.

                                       12
      Finally, even if the amended indictment was deficient and appellant’s

motions adequately demonstrated such, appellant cannot show harm based on

the trial court’s denial of his motions because he pled guilty to the offenses in

the amended indictment and he has not directed us to any portion of the record

indicating that he would not have done so if the indictment had been more

specific.10 See Tex. Code Crim. Proc. Ann. art. 21.19; Adams v. State, 707

S.W.2d 900, 903 (Tex. Crim. App. 1986) (requiring an appellant to show

prejudice to substantial rights from the lack of notice in an indictment); Weaver

v. State, No. 01-99-00966-CR, 2001 WL 722839, at *1 (Tex. App.—Houston

[1st Dist.] June 28, 2001, pet. ref’d) (not designated for publication); Hodge

v. State, 756 S.W.2d 353, 357 (Tex. App.—Dallas 1988, no pet.) (explaining

that by pleading guilty, the appellant had no “need to defend himself and

thereby no longer stood to profit trial-wise from [the indictment’s] additional

specifications”).

      For all of these reasons, we hold that the trial court did not err by denying

appellant’s motions to quash, and we overrule appellant’s second point.




                                   Conclusion



      10
       … Again, appellant affirmed that he understood the charges in the
indictment while pleading guilty.

                                       13
     Having overruled both of appellant’s points, we affirm the trial court’s

judgment.


                                         TERRIE LIVINGSTON
                                         JUSTICE

PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 16, 2009




                                    14
