                                 NO. 07-07-0110-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                  MARCH 26, 2008

                        ______________________________


                           RAMON DURAN, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

         FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

              NO. CR-061-109; HONORABLE ROLAND SAUL, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Following a plea of not guilty, Appellant, Ramon Duran, was convicted by a jury of

one count of aggravated sexual assault and three counts of sexual assault. The jury

assessed a forty-eight year sentence and a $5,000 fine on the aggravated sexual assault

conviction and a twenty year sentence and a $2,000 fine on each of the three counts of
sexual assault. Appellant presents two issues on appeal. By issue one, he contends (1)

the trial court committed reversible error in granting, over his objections, the State’s motion

to amend the indictment. As subparts of issue one, Appellant maintains that not only was

he denied a grand jury review of the new offense, the trial court’s error introduced a new

and different offense for the jury to consider. By his second issue, Appellant asserts the

trial court erred in admitting into evidence, over his objections, a statement written by the

interrogating officer in violation of article 38.22(3)1 of the Texas Code of Criminal

Procedure. We affirm.


                                      Factual Background


       According to A.H.’s2 testimony, Appellant, his brother, and another individual

sexually assaulted her in the early morning hours of June 14, 2006. She had spent the

evening of June 13th with friends, and after she dropped them off and was driving home

alone, she heard a man, whom she mistook for one of her friends, call out to her. She

pulled up beside the man and recognized him but did not know him. She testified that he

asked for a ride and entered her truck from the passenger’s side. The victim testified that

the man who called out to her and entered her truck was Appellant’s brother, Johnny Joe

Duran. Two men then opened the driver’s side door of her truck, pulled her out, and


       1
       Although incorrectly denominated as article 38.22(3), we understand Appellant’s
issue to address consideration of article 38.22, § 3(a) of the Texas Code of Criminal
Procedure.
       2
           To protect the victim’s privacy, we refer to her by initials.

                                                  2
dragged her to the side of an apartment. There, she was forced to her hands and knees

while all three men took turns sexually assaulting her both vaginally and anally. They also

penetrated her mouth with their penises. She convinced them to let her go by telling them

she would bring back another girl. Because Appellant does not challenge the sufficiency

of the evidence, only details necessary to disposition of his issues will be discussed.


                             Amendment of the Indictment


       By his first issue, Appellant maintains the trial court committed reversible error in

permitting the State to amend the indictment over his objection because it introduced a

new and different offense for the jury to consider and denied him a grand jury review of the

new count.3 We disagree.


       On September 6, 2006, the Deaf Smith County Grand Jury returned the original

indictment charging Appellant with three counts, to-wit:


                                          Count I


       THE GRAND JURORS, . . . present in and to said Court that RAMON
       DURAN . . . on or about the 14th day of June, 2006, . . . did then and there
       intentionally and knowingly act in concert with Juan Daniel Morales by
       pushing the head of A.H. onto the sexual organ of Juan Daniel Morales, and
       during the course of the same criminal episode, the said Juan Daniel
       Morales did intentionally and knowingly cause the penetration of the mouth


       3
         Although the State points out that Appellant did not adequately brief all his
complaints under this issue, we nevertheless review all his complaints in the interest of
justice.

                                             3
      of A.H. by the sexual organ of the said Juan Daniel Morales, without the
      consent of A.H.


                                        Count II


      And it is further presented in and to said Court that on or about the 14th day
      of June, 2006, . . . [Ramon Duran] did then and there intentionally or
      knowingly cause the penetration of the anus or sexual organ of A.H. by
      [Ramon Duran’s] sexual organ, without the consent of A.H.


                                        Count III


      And it is further presented in and to said Court that on the 14th day of June,
      2006, . . . [Ramon Duran] did then and there intentionally or knowingly cause
      the penetration of the mouth of A.H. by [Ramon Duran’s] sexual organ,
      without the consent of A.H., against the peace and dignity of the State.




      On March 2, 2007, the trial court granted the State’s Motion to Amend the

Indictment. As amended, the indictment charged Appellant with four counts, to-wit:


                                         Count I


      THE GRAND JURORS, . . . present in and to said Court that RAMON
      DURAN . . . on or about the 14th day of June, 2006, . . . did then and there
      intentionally or knowingly act in concert with Juan Jose Duran aka Johnny
      Joe Duran by restraining A.H., and during the course of the same criminal
      episode, the said Juan Jose Duran aka Johnny Joe Duran did intentionally
      and knowingly cause the penetration of the sexual organ of A.H. by Juan
      Jose Duran aka Johnny Joe Duran’s sexual organ, without the consent of
      A.H.




                                            4
                                          Count II


       And it is further presented in and to said Court that on or about the 14th day
       of June, 2006, . . . [Ramon Duran] did then and there intentionally or
       knowingly cause the penetration of the sexual organ of A.H., by [Ramon
       Duran’s] sexual organ, without the consent of A.H.


                                         Count III


       And it is further presented in and to said Court that on or about the 14th day
       of June, 2006, . . . [Ramon Duran] did then and there intentionally or
       knowingly cause the penetration of the anus of A.H. by [Ramon Duran’s]
       sexual organ, without the consent of A.H.


                                         Count IV


       And it is further presented in and to said Court that on or about the 14th day
       of June, 2006, . . . [Ramon Duran] did then and there intentionally or
       knowingly cause the penetration of the mouth of A.H. by [Ramon Duran’s]
       sexual organ, without the consent of A.H., against the peace and dignity of
       the State.


       Article 28.10(c) of the Texas Code of Criminal Procedure Annotated (Vernon 2005)

provides that an indictment may not be amended over a defendant’s objection if it charges

the defendant with an additional or different offense or if the substantial rights of the

defendant are prejudiced. See Flowers v. State, 815 S.W.2d 724, 725-727 (Tex.Crim.App.

1991). Appellant argues that the amendment of Count I and the addition of Count III

charged Appellant with an additional or different offense in violation of article 28.10(c).




                                             5
                              “Additional or Different Offense”


       The phrase “an additional or different offense” is not defined in the Code. In

Flowers, the Court held that “an additional or different offense” under article 28.10(c)

means a different statutory offense. 815 S.W.2d at 728. The Court concluded that a

change in an element of an offense changes the evidence required to prove that offense,

but it is still the same offense. Id.


       Count I of the original indictment alleged that Appellant acted in concert with Juan

Daniel Morales in pushing the victim’s head onto Morales’s sexual organ while Count I of

the amended indictment alleged that Appellant acted in concert with Johnny Joe Duran by

restraining the victim while Johnny Joe Duran penetrated her sexual organ with his sexual

organ. Although the co-defendant’s name and the sexual act committed were changed,

Count I of the amended indictment did not charge a different offense. It alleged a different

means of committing aggravated sexual assault and merely changed the evidence required

to prove the offense. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(i) and (ii) and

(a)(2)(A)(v).


       Count II of the original indictment filed by the grand jury charged Appellant with

penetration of A.H.’s sexual organ or anus by his sexual organ. (Emphasis added). Thus,

the grand jury reviewed both means of committing one offense, to-wit: (1) penetration of

the victim’s anus and (2) penetration of the victim’s sexual organ. See Tex. Penal Code



                                             6
Ann. § 22.011(a)(A). See also Cuesta v. State, 763 S.W.2d 547, 550 (Tex.App.–Amarillo

1988, no pet.).


       Count II of the amended indictment charged Appellant with penetration of A.H.’s

sexual organ, while Count III of the amended indictment charged Appellant with penetration

of A.H.’s anus. The amended indictment did not charge an additional or different offense;

it merely separated the different means of committing the same offense, sexual assault,

into different counts. See generally Tex. Code Crim. Proc. Ann. art. 21.24(a) (permitting

two or more offenses to be joined in a single indictment with each offense being stated in

a separate count if the offenses arise out of the same criminal episode as defined in § 3.01

of the Penal Code).4 Appellant was therefore not denied grand jury review of the charges

against him as required by article I, § 10 of the Texas Constitution.


       We have not overlooked Appellant’s reliance on Nichols v. State, 52 S.W.3d 501

(Tex.App.–Dallas 2001, no pet.). In Nichols, the court concluded that allowing the State

to amend an indictment interchanging among any of the nine subsections and over one

hundred complex chemical structures individually composing Penalty Group 1 would

constitute charging a different statutory offense because it directly contravened the

legislative intent behind the statute. Id. at 503. However, Nichols involves the amendment

of an indictment alleging an offense under the Texas Controlled Substances Act. See Tex.


       4
       This procedure ensures jury unanimity–every juror agrees that the defendant
committed the same, single, specific criminal act. See Ngo v. State, 175 S.W.3d 738, 745
(Tex.Crim.App. 2005).

                                             7
Health & Safety Code Ann. §§ 481.101-.105 (Vernon 2003 and Supp. 2007).                  We

respectfully decline to apply the Dallas Court of Appeals’s analysis of the Texas Controlled

Substances Act to the sexual assault statute of the Penal Code. See Delamora v. State,

128 S.W.3d 344, 359 (Tex.App.–Austin 2004, pet. ref’d) (a court of appeals is not bound

by the decision of a sister court). Albeit Flowers involved theft, and not sexual assault, we

are bound by the decisions of our State’s highest criminal court. See Purchase v. State,

84 S.W.3d 696, 701 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d).


       We conclude the amended indictment did not allege a different statutory offense

and thus, did not run afoul of the “additional or different offense” provision contained in

article 28.10(c) of the Texas Code of Criminal Procedure. Our conclusion, however, does

not end our analysis. Even if an amended indictment does not charge an additional or

different offense, it may nonetheless be improper if it prejudices the substantial rights of

the defendant. See Flowers, 815 S.W.2d at 729.


                          “Substantial Rights of the Defendant”


       In Adams v. State, 707 S.W.2d 900 (Tex.Crim.App. 1986), the Court of Criminal

Appeals discussed the analysis of prejudice to the “substantial rights” of a defendant in the

context of a notice defect in a charging instrument under article 21.19 of the Texas Code

of Criminal Procedure. In Flowers the Court determined that a similar review was

appropriate under the “substantial rights” provision of article 28.10(c) to determine and

evaluate prejudice. 815 S.W.2d at 729. In that context, the Court determined that a review

                                             8
of the record was appropriate to decide whether the error in failing to convey notice had

an impact on the defendant’s ability to prepare a defense.


       Appellant argues for reversal based on error of constitutional dimension because

the amendment contributed to his conviction and punishment. However, we have already

concluded that there was no error, constitutional or otherwise, in amending the indictment

over Appellant’s objections. The acts alleged in the original indictment and the acts alleged

in the amended indictment arose out of the same criminal episode. Even though the

amended indictment introduced a new and different co-defendant, i.e., Juan Jose Duran

instead of Juan Daniel Morales, the State’s theory of the case did not change. The same

parties were involved in the same criminal episode. Therefore, after reviewing the entire

record, we conclude that Appellant’s ability to prepare a defense was not affected by the

amended indictment. Issue one is overruled.


                            Appellant’s Voluntary Statement


       By his second issue, Appellant maintains the trial court erred in failing to suppress

a statement written by the interrogating officer because no electronic recording was made

in violation of article 38.22, § 3 of the Texas Code of Criminal Procedure. The State

responds that the trial court did not abuse its discretion because the statement in question

is a written statement, subject to the provisions of article 38.22, § 2, not an oral statement

subject to the provisions of article 38.22, § 3. We agree with the State.



                                              9
       Article 38.22, § 3 provides in part:


       [n]o oral or sign language statement of an accused made as a result of
       custodial interrogation shall be admissible against the accused in a criminal
       proceeding unless:
              (1) an electronic recording, which may include motion picture,
              video tape, or other visual recording, is made of the statement
              ....
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1) (Vernon 2005).


       State’s Exhibit 23 is a written document entitled “Voluntary Statement,” which

Appellant signed, that describes the acts committed against the victim. In the statement,

Appellant asserted the victim was a willing participant in the sexual acts. Detective Robin

Ruland testified that he took Appellant’s oral statement. Ruland then physically transcribed

Appellant’s own words onto the Voluntary Statement form. He also testified that Appellant

read the statement before signing it and did not question it.


       Article 38.22, § 1 provides that a written statement of an accused means a

statement signed by the accused or a statement made by the accused in his own

handwriting . . . . (Emphasis added). This section provides that, for those situations where

a statement is written by someone other than the accused, the statement must be signed

by the accused. Thus, the statement in question is not an oral statement.


       Article 38.22, § 2 provides, “[n]o written statement made by an accused as a result

of custodial interrogation is admissible against him in any criminal proceeding unless it is

shown on the face of the statement that” certain constitutional rights were given. See art.

                                              10
38.22, §2 (a). There is no requirement in article 38.22 that a written statement be

electronically recorded.


       State’s Exhibit 22, entitled “Officers Warning of Constitutional Rights,” bears

Appellant’s signature and also reflects his initials by each of the four required admonitions.

Detective Ruland testified that per his customary practice, he read Appellant his

constitutional rights and instructed him to initial each right if he understood it. In Detective

Ruland’s opinion, Appellant understood his rights and voluntary signed the form and

initialed each warning.


       Appellant does not dispute that he voluntarily signed the “Officer’s Warning of

Constitutional Rights” and the “Voluntary Statement” transcribed by Detective Ruland.

Thus, we find that Appellant’s statement constituted a written statement controlled by

article 38.22, § 2, not by article 38.22, § 3, and hence, there was no requirement that it be

electronically recorded. We conclude the trial court did not abuse its discretion in denying

Appellant’s motion to suppress the “Voluntary Statement.” See Balentine v. State, 71

S.W.3d 763, 768 (Tex.Crim.App. 2002). Issue two is overruled.


       Accordingly, the trial court’s judgment is affirmed.




                                                   Patrick A. Pirtle
                                                       Justice

Do not publish.

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