                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-19-00075-CR


                            LUIS ALBERTO OLIVAS, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 47th District Court
                                      Potter County, Texas
                  Trial Court No. 70,087-A, Honorable Dan L. Schaap, Presiding

                                          April 28, 2020

                                MEMORANDUM OPINION
                           Before PIRTLE and PARKER and DOSS, JJ.


      A Potter County jury found appellant, Luis Alberto Olivas, guilty of murder.1 It

assessed a sentence of thirty-five years’ confinement in the Texas Department of Criminal

Justice and a fine of $10,000. In this appeal, appellant raises two issues challenging an

amendment to the indictment and two issues challenging the jury charge. We affirm.




      1   See TEX. PENAL CODE ANN. § 19.02(b), (c) (West 2019).
                                          Background


       Appellant does not challenge the sufficiency of the evidence to support his

conviction. Therefore, we relate only those facts necessary to provide context for our

resolution of his issues on appeal.


       In 2015, appellant was charged with murder by an indictment that alleged he

caused the death of Joanna Salinas-Cardona “by impeding her breathing or circulation

by an unknown manner and means.” On January 2, 2019, the State filed a motion to

amend the indictment. The requested amendment was to change “by an unknown

manner and means” to “by applying pressure to her throat or neck with a lanyard or

[appellant’s] hand or a combination thereof.” The trial court signed an order granting the

amendment. Appellant filed a motion to set the indictment aside, asserting that the

amendment prejudiced his right to an indictment by a grand jury. The trial court denied

appellant’s motion.


       The case proceeded to trial in February of 2019. At the conclusion of the four-day

trial, the jury found appellant guilty.


                                   Discussion and Analysis


Amendment of the Indictment


       In his first issue, appellant contends that the trial court erred by allowing the

amendment to the indictment. Appellant asserts that, because he was tried and convicted

under an indictment not voted on and returned by a properly empaneled grand jury, his

constitutional right to a grand jury indictment was violated.


                                              2
       Article 28.10 of the Texas Code of Criminal Procedure allows the State to amend

an indictment, specifically providing that, “[a]fter 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.” TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (West

2006). But “[a]n 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. art. 28.10(c).


       Appellant does not contend that he received insufficient notice of the amendment;

the motion to amend the indictment was granted more than one month before trial began.

Nor does he contend that the amended indictment charged him with an additional or

different offense. Both indictments charged him with the offense of murder; the effect of

the amendment was only to identify a more specific “manner and means” by which the

State alleged appellant committed the murder. Appellant’s contention is that his rights

were violated because the grand jury did not pass on the amendment to the indictment.


       In Ex parte Patterson, the Court of Criminal Appeals recognized that an indictment

serves two functions: it is both (1) the written statement of a grand jury accusing a person

of an offense and (2) the State’s primary pleading. Ex parte Patterson, 740 S.W.2d 766,

775 (Tex. Crim. App. 1987), modified, Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App.

1989). In this case, appellant’s complaint goes to the indictment’s function as a grand

jury statement. Appellant asserts that the State and the court usurped the grand jury’s

place by amending the indictment. Thus, the question we must address is whether



                                              3
appellant’s right to grand jury review was prejudiced by the State’s amendment of the

indictment.


       The purpose of the grand jury is to protect citizens from arbitrary or unreasonable

felony prosecution by the State. Batiste v. State, 785 S.W.2d 432, 436 (Tex. App.—

Corpus Christi 1990, pet. ref’d). However, the grand jury does not necessarily need to

pass on matters that are purely evidentiary. Flowers v. State, 815 S.W.2d 724, 729 (Tex.

Crim. App. 1991). “An amendment that changes the evidence needed to prove the

offense, so long as it is made on the basis of the same incident upon which the original

indictment was based, does not affect a defendant’s substantial rights or deny him grand

jury review in most cases.” Uribe v. State, No. 05-18-00001-CR, 2019 Tex. App. LEXIS

2175, at *4-5 (Tex. App.—Dallas Mar. 20, 2019, pet. ref’d) (mem. op., not designated for

publication).


       Here, the amendment changed the manner and means of committing the offense

from “unknown” to the more specific “by applying pressure to her throat or neck with a

lanyard or his hand or a combination thereof.” The indictment remained predicated on

the same incident upon which the original indictment was based. Therefore, the offense

had been subjected to grand jury review. See, e.g., Duran v. State, No. 07-07-00110-

CR, 2008 Tex. App. LEXIS 2160, at *7-8 (Tex. App.—Amarillo Mar. 26, 2008, pet. ref’d)

(mem. op., not designated for publication) (holding that defendant was not denied grand

jury review of the charges against him where the amended indictment merely separated

the different means of committing the same offense into two different counts). We

conclude that the amendment did not deny appellant grand jury review of the charge

against him. Appellant’s first issue is overruled.

                                             4
Constitutionality of Article 28.10


        Appellant’s second issue presents a constitutional challenge to article 28.10 of the

Texas Code of Criminal Procedure. He argues that, even if the amendment to the

indictment was allowed pursuant to article 28.10, the statute is unconstitutional as applied

to him because “it effectively eliminated [his] right to an indictment returned by a properly

empaneled grand jury, in favor of a collaboration between the government’s lawyer and

the presiding officer of the court.” Appellant broadly asserts that the amendment deprived

him of his rights to due process and due course of law under the Fourth, Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution, 2 and Article 1, Section 10 of

the Texas Constitution. See U.S. CONST. amend. IV, V, VI, XIV; TEX. CONST. art. I, § 10.


        As we explained in Bibbs v. State, the United States Supreme Court has

consistently held that a defendant in state court has no Fifth Amendment right to a grand

jury indictment. Bibbs v. State, 371 S.W.3d 564, 568-69 (Tex. App.—Amarillo 2012, pet.

ref’d) (citing Apprendi v. New Jersey, 530 U.S. 466, 476 n.3, 120 S. Ct. 2348, 147 L. Ed.

2d 435 (2000); Branzburg v. Hayes, 408 U.S. 665, 688 n.25, 92 S. Ct. 2646, 33 L. Ed. 2d

626 (1972); Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 28 L. Ed. 232 (1884)).

Because the grand jury provision of the Fifth Amendment does not extend to the states

through the Fourteenth Amendment, the proper complaint for our review is whether the

Texas Constitution prohibits the State’s amendment of the indictment in this particular

case.



        2 Although this reference to multiple constitutional amendments suggests multiple claims, appellant

has not offered any legal authority, references to the record, or substantive analysis in support of any claim
other than the one related to his right to a grand jury indictment. Therefore, we consider any other
complaints to be waived as inadequately briefed. See TEX. R. APP. P. 38.1.

                                                      5
       “A litigant raising only an ‘as applied’ challenge concedes the general

constitutionality of the statute, but asserts that the statute is unconstitutional as applied

to his particular facts and circumstances.” State ex rel. Lykos v. Fine, 330 S.W.3d 904,

910 (Tex. Crim. App. 2011). In making such a challenge, a litigant must show that, in its

operation, the challenged statute was unconstitutionally applied to him; it matters not

whether the statute may be unconstitutional as to others. Id.


       The portion of the Texas Constitution at issue states: “no person shall be held to

answer for a criminal offense, unless on an indictment of a grand jury . . . .” TEX. CONST.

art. I, § 10. The Texas Constitution further provides that “[t]he practice and procedures

relating to the use of indictments and informations, including their contents, amendment,

sufficiency, and requisites, are as provided by law.” TEX. CONST. art. V, § 12(b).


       Our Legislature enacted article 28.10 of the Texas Code of Criminal Procedure

pursuant to its authority under this constitutional provision. See Batiste, 785 S.W.2d at

434. Where a defendant has been originally indicted by a grand jury as required by Article

I, section 10 of the Texas Constitution, an amendment to that indictment made as

contemplated by Article V, section 12(b) of the Texas Constitution and article 28.10 of the

Code of Criminal Procedure is constitutionally permissible. See Cuesta v. State, 763

S.W.2d 547, 550 (Tex. App.—Amarillo 1988, no pet.).


       Appellant has not explained or produced evidence specifically demonstrating how

article 28.10, while facially valid, is nevertheless unconstitutional as applied to him. He

has not shown that operation of the statute affects him differently than it affects other

criminal defendants, resulting in a deprivation of his rights. Therefore, appellant did not



                                             6
meet his burden to demonstrate that the law in question, article 28.10 of the Code of

Criminal Procedure, is unconstitutional as applied to him. We overrule his second issue.


Jury Charge Error


        In his third issue, appellant asserts that the trial court erred by failing to explain in

the jury charge that good conduct time was inapplicable to him. When reviewing an

alleged jury charge error, we first determine whether there was error. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we find error, we then determine

whether “sufficient harm resulted from the error to compel reversal.” Id.


        Trial judges are required to deliver to the jury “a written charge distinctly setting

forth the law applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West

2007). Here, the trial court included in the punishment charge the legislatively-mandated

language contained in the version of article 37.07 of the Texas Code of Criminal

Procedure in effect at the time. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4 (West

2019).3


        Appellant objected that the court’s jury charge on punishment included this

language regarding parole law and good conduct time. His objection was overruled.


        Section 4 of article 37.07 provides the instructions that trial courts are required to

give juries to inform them about parole law. See id. As the Court of Criminal Appeals

explained in Luquis v. State, the Texas Legislature enacted legislation that requires the



         3 This provision was amended by Act of May 28, 2019, 86th Leg., R.S., ch. 260, § 1, 2019 Tex.

Gen. Laws 260, 260. However, this amendment did not become effective until September 1, 2019. The
trial court’s punishment charge in the present case tracked the applicable statute effective at the time of
appellant’s trial.

                                                    7
trial judge to instruct the jury using the precise wording that article 37.07, section 4 recites.

Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). Further, “[t]he Legislature

prefaced its instruction language with directions that ‘the court shall charge the jury in

writing as follows: . . .,’” indicating that trial courts have a mandatory duty to issue the

instruction as written. Id.


       The jury charge in this case correctly set forth the instructions mandated by article

37.07, including the references to good conduct time. Because the trial court instructed

the jury according to the dictate expressed in the statute, the trial court did not err. See

id. We overrule appellant’s third issue.


Constitutionality of Article 37.07


       By his final issue, appellant claims that article 37.07 of the Texas Code of Criminal

Procedure is unconstitutional. He alleges that, by instructing the jury in accordance with

the statutory language, the trial court violated his constitutional rights.


       The Court of Criminal Appeals has previously determined that the instruction on

parole law and good conduct time does not violate the federal constitution’s due process

clause or the Texas constitution’s due course of law provisions. See Luquis, 72 S.W.3d

at 365; Muhammad v. State, 830 S.W.2d 953, 956 (Tex. Crim. App. 1992) (en banc). In

Luquis, the high court described article 37.07 as a statute that “informs the jury of the

existence of good conduct time, briefly describes that concept, and explicitly tells the jury




                                               8
not to apply that concept to the particular defendant . . . .” Luquis, 72 S.W.3d at 365. The

court then concluded that the statute was constitutionally sound.4


         Under principles of stare decisis, this Court is bound to follow the precedent

established by the Court of Criminal Appeals. Adams v. State, 502 S.W.3d 238, 244 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d). Therefore, we overrule appellant’s final

issue.


                                             Conclusion


         We have overruled each of appellant’s issues on appeal. Accordingly, we affirm

the judgment of the trial court.




                                                                Judy C. Parker
                                                                   Justice


Do not publish.




         4
         Like the defendant in Luquis, appellant makes no distinction between his rights under the Texas
and federal constitutions. We therefore follow the Court of Criminal Appeals and treat them as being the
same in this context. See Luquis, 72 S.W.3d at 364.

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