                                        NO. 12-18-00139-CR

                                IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

 KAMORI NICOLE HENRY,                                    §       APPEAL FROM THE
 APPELLANT

 V.                                                      §       COUNTY COURT

 THE STATE OF TEXAS,
 APPELLEE                                                §       ANDERSON COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Kamori Nicole Henry appeals her conviction for failure to identify while a fugitive from
justice. Appellant raises four issues challenging the validity of the information, the trial court’s
amendment of the information without notice to Appellant, the trial court’s failure to grant
Appellant ten days to respond to the amended information, and one of her conditions of community
supervision. We affirm.


                                               BACKGROUND
       The evidence in this case shows that at the time of the offense, there were five warrants for
Appellant’s arrest. The police called Appellant three times asking her to surrender herself at the
sheriff’s office. She responded, “Good luck.” The police later located Appellant outside her
apartment. When they asked for identification, Appellant gave the name “Kamori Folk.”
       Appellant was charged by information with failure to identify by giving a false name to a
peace officer who lawfully detained her, a Class B misdemeanor.1 Subsequently, the State moved
to amend the information to allege additionally that Appellant was a fugitive from justice at the
time of the offense, raising the offense level to a Class A misdemeanor.2 Without a hearing on the

       1
           TEX. PENAL CODE ANN. § 38.02(b)(2), (c)(2) (West 2016).
       2
           Id. § 38.02(b)(2), (d)(2).
matter, the trial court granted the motion in an order containing the amended language and stating
that “the Information is hereby amended.”
       At trial several months later, after the jury was empaneled, the State read the amended
information. Appellant pleaded “not guilty” and then noted that she did not receive prior notice
that the trial court granted the motion to amend. She objected to the amendment on grounds that
it was made without a hearing or opportunity for her to respond and it created a fatal variance
between the complaint and information. The trial court overruled the objection, and the matter
proceeded to trial.
       Ultimately, the jury found Appellant “guilty” of failure to identify while a fugitive from
justice. The trial court assessed her punishment at confinement for one year, suspended the
sentence, and placed her on community supervision for a term of fifteen months. This appeal
followed.


                                       FATAL VARIANCE
       In Appellant’s first issue, she argues that there is a fatal variance between the complaint
and information. She observes that the complaint was not amended to include the fugitive
allegation and contends the resulting variance between the complaint and the amended information
is fatal to the information’s validity. In support of her contention, she cites Ray v. State, 433
S.W.2d 434 (Tex. Crim. App. 1968) and Acevedo v. State, 483 S.W.2d 459 (Tex. Crim. App.
1972). In Ray, the complaint and information charged the defendant with different statutory
offenses. See Ray, 433 S.W.2d at 435. The court of criminal appeals held that the variance was
fatal to the information and reversed the conviction. See id. Similarly, in Acevedo, the court of
criminal appeals held that a variance between the complaint and information regarding the offense
date was fatal to the validity of the information and reversed the conviction. See Acevedo, 483
S.W.2d at 460. We acknowledge the similarity between these cases and the one at hand. However,
the law regarding validity of charging instruments has changed since the time of Ray and Acevedo.
       Before 1985, the court of criminal appeals held that an invalid complaint or information
constitutes fundamental jurisdictional error and necessitates reversal of a conviction. Ramirez v.
State, 105 S.W.3d 628, 629 (Tex. Crim. App. 2003). In 1985, however, the Texas Constitution
was amended to provide that “[t]he presentment of an indictment or information to a court invests
the court with jurisdiction of the cause.” See TEX. CONST. art. V, § 12(b); Ramirez, 105 S.W.3d



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at 629. Now, the mere presentment of an information to a trial court invests that court with
jurisdiction over the person of the defendant, regardless of any defect that might exist in the
underlying complaint. Ramirez, 105 S.W.3d at 629. Thus, defects in complaints are no longer
jurisdictional. Id. at 630. Consequently, even if the complaint in this case is defective for failing
to allege that Appellant was a fugitive at the time of the offense, the information is not rendered
invalid by the defective complaint. See id. We overrule Appellant’s first issue.


                                       ARTICLE 28.10 VIOLATIONS
       In Appellant’s second and third issues, she argues that the trial court violated Texas Code
of Criminal Procedure Article 28.10 by granting the State’s motion to amend the information
without notice to her and without allowing her time to respond to the amended information.
Lack of Notice
       In Appellant’s second issue, she argues that the trial court violated Article 28.10 by
amending the information without notice to the defense. We disagree.
       Article 28.10 provides the following:


       (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, 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.


TEX. CODE CRIM. PROC. ANN. art. 28.10 (West 2006).
       Appellant acknowledges that she received notice of the State’s motion to amend but
contends her lack of subsequent notice of the amendment violates Article 28.10. The State does
not dispute that Appellant received no subsequent notice of the amendment. Although the statute
does not explicitly state whether notice of the motion to amend is sufficient or subsequent notice
of the amendment is required, its sentence structure implies that notice of the motion is sufficient.
See State v. Velasquez, 539 S.W.3d 289, 292 (Tex. Crim. App. 2018) (we ordinarily give effect to
the plain meaning of statutory text). Because the statute reads, “After notice . . . a matter . . . may



                                                        3
be amended,” it implicitly requires notice before the amendment, not after it. Therefore, based on
the statute’s plain language, we conclude that the trial court did not violate Article 28.10 by          Commented [KH1]: If you can find a CCA case saying we
                                                                                                         interpret statutes according to their plain language, I think it would
amending the information without subsequent notice to Appellant. See id.                                 be good to cite to it.

          Additionally, in Appellant’s second issue, she asserts that the trial court’s order granting
the motion to amend “rais[ed] the offense from a Class B Misdemeanor to a Class A, in direct
conflict with Article 28.10(c).” At trial, Appellant asserted that the order “change[d] the offense
from a Class B to a Class A offense, which clearly prejudices the right of the defendant.” Even
assuming Appellant’s substantial rights were prejudiced by the amendment, we cannot grant her
relief.
          If a defendant does not object to a defect, error, or irregularity in an information or
indictment before the first day of trial, she waives and forfeits the right to object to the defect,
error, or irregularity and may not raise the objection on appeal. Id. art. 1.14(b) (West 2005); see
also Teal v. State, 230 S.W.3d 172, 176 (Tex. Crim. App. 2007). The court of criminal appeals
followed this rule and upheld a felony conviction when the indictment omitted an element that
raised the offense from a misdemeanor to a felony. See Teal, 230 S.W.3d at 182. In Teal, the
appellant was indicted for hindering apprehension, but the indictment failed to allege that he knew
the person he was helping was a felony fugitive. See id. at 173. Absent such knowledge, the
appellant was guilty of only a misdemeanor rather than a felony. See id. The appellant waited
until after the jury was empaneled to object to the trial court’s lack of jurisdiction over the
misdemeanor. See id. at 173. The trial court overruled the objection, and the appellant was
convicted of the felony. See id. On appeal, the court of appeals held that the indictment failed to
vest the district court with subject matter jurisdiction. See id. But the court of criminal appeals
held that the appellant forfeited his right to object to the defect, stating that “[i]f appellant was
confused about whether the State did or intended to charge him with a felony, he could have and
should have objected to the defective indictment before the date of trial.” See id. at 182. Similarly,
here, if Appellant was unsure of the information’s amendment status and whether she was charged
with a Class A or Class B misdemeanor, she should have inquired and objected before the first day
of trial. See id. Because Appellant had notice of the State’s motion to amend and did not object
before the first day of trial, we conclude that she forfeited her right to object to the amended
information. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b); see also Teal, 230 S.W.3d at 182.




                                                   4
       Having concluded that the trial court did not violate Article 28.10 by amending the
information without subsequent notice to Appellant and that Appellant forfeited her right to object
to the amended information, we overrule Appellant’s second issue.
Failure to Grant Time to Respond
       In Appellant’s third issue, she argues the trial court violated Article 28.10 by not allowing
her ten days to respond to the amended information. Article 28.10 allows a defendant ten days to
respond to an amended information “[o]n the request of the defendant.” TEX. CODE CRIM. PROC.
ANN. art. 28.10(a). The record in this case shows that Appellant never requested any time to
respond to the amended information. Therefore, we conclude that the trial court did not err by
failing to give Appellant time to respond to the amended information. Accordingly, we overrule
Appellant’s third issue.


                           CONDITION OF COMMUNITY SUPERVISION
       In Appellant’s fourth issue, she argues that the trial court erred by requiring her to
reimburse her court appointed attorney’s fees as a condition of community supervision after
finding her indigent. We do not address the merits of this complaint because we conclude that
Appellant failed to preserve it for our review.
       A trial court has the authority to impose any reasonable condition of community
supervision that is designed to protect or restore the community, protect or restore the victim, or
punish, rehabilitate, or reform the defendant. Id. art. 42A.301(a) (West 2018). The trial court may
impose a condition requiring the defendant to reimburse the county for her court appointed
attorney’s fees if and to the extent that it determines she is financially able to do so. Id. art.
42A.301(b)(11) (West 2018).
       When community supervision is granted, a contractual relationship is created between the
trial court and the defendant. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999).
Conditions of community supervision that are not objected to are affirmatively accepted as terms
of the contract. Id. at 534. A defendant who benefits from the contractual privilege of community
supervision, the granting of which does not involve a systemic right or prohibition, must complain
at trial to conditions she finds objectionable. Id. To be subject to procedural default under these
circumstances, the defendant must be aware of the condition of community supervision in time to
object at trial. Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014).



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         Here, the trial court stated the following during sentencing:


         I’m going to assess you one year in the county jail. I’m going to probate that for a period of 15
         months. Under the standard terms and conditions of [sic] there’s a $50 monthly probation fee, $50
         to Crime Stoppers. I’m going to fine you $500. I’m going to give you 13 months to pay. And, it
         will be whatever attorney’s fees that you had in this case for your court appointed attorney.



Appellant did not object. Because Appellant was aware of the condition of community supervision
and failed to object at trial, we conclude that she failed to preserve her complaint for our review.
See id.; Speth, 6 S.W.3d at 534. Accordingly, we overrule Appellant’s fourth issue.


                                                   DISPOSITION
         Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial
court’s judgment.



                                                                       JAMES T. WORTHEN
                                                                          Chief Justice

Opinion delivered January 9, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           JANUARY 9, 2019


                                         NO. 12-18-00139-CR


                                    KAMORI NICOLE HENRY,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                    Appeal from the County Court
                           of Anderson County, Texas (Tr.Ct.No. 64135)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
