                                                                               PD-1057-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
September 8, 2015                                             Transmitted 9/3/2015 3:35:56 PM
                                                               Accepted 9/8/2015 11:10:54 AM
                                                                               ABEL ACOSTA
                               NO. PD-1057-15                                          CLERK

                       COURT OF CRIMINAL APPEALS

           TEXAS RULES OF APPELLATE PROCEDURE, RULE 68.4



                              ISMAEL TREVINO

                                      v.

                            THE STATE OF TEXAS



                      On Petition for Discretionary Review
                    from the Fourteenth Court of Appeals in
                        No. 14-14-00262-CR Affirming the
                       Conviction in No. 1416917 from the
                          180th Judicial District Court
                             of Harris County, Texas



                        APPELLANT’S PETITION FOR
                         DISCRETIONARY REVIEW



                                           ALLEN C. ISBELL
                                           2016 Main St., Suite 110
                                           Houston, Texas 77002
                                           713-236-1000
                                           Fax No. 713-236-1809
                                           STATE BAR NO. 10431500
                                           Email: allenisbell@sbcglobal.net

                                           COUNSEL ON APPEAL
              NAMES AND ADDRESSES OF ALL PARTIES
              AT THE TRIAL COURT’S FINAL JUDGMENT


Trial Judge

     Honorable Catherine Evans, Visiting Judge Presiding
     180th District Court
     1201 Franklin, 18th Fl., Houston, Texas 77002


Appellant/Defendant

     Mr. Ismael Trevino
     #01915338
     Garza West Unit, 4250 Hwy. 202, Beeville, Texas 78102


Appellant’s Counsel

     Mr. Allen C. Isbell - Counsel on Appeal
     2016 Main St., Suite 110, Houston, Texas 77002

     Mr. Raul Rodriguez - Counsel Attorney at Trial
     3801 Barnett St., Houston, Texas 77017


Attorneys for the State of Texas

     Mr. Alan Curry - Assistant District Attorney on Appeal
     1201 Franklin, Ste. 600, Houston, Texas 77002

     Mr. Cory Scott - Assistant District Attorney at Trial
     1201 Franklin, 6th Fl., Houston, Texas 77002




                                                              ii
                                   TABLE OF CONTENTS

                                                                                                     PAGE

      Names and Addresses of All Parties at the Trial Court’s Final Judgment
           . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

      Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

      Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . iv

      Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

      Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ground for Review
    Whether the Court of Appeals Opinion Is Correct That the
    Sufficiency of the Evidence Is Measured by an Indictment Which
    Has Been Impermissibly Amended on the Day of Trial, Rather than
    by the Original Unamended Indictment, Unless the Accused
    Objects to the Impermissibly Amended Indictment? . . . . . . . . 1-2

      Brief Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

      Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

      Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

      Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




c:\appeals\trevino\pdr                                                                                       iii
                             INDEX OF AUTHORITIES

CASES                                                                              PAGE

Curry v. State, 305 S.W.3d 394 (Tex.Crim.App. 2000) . . . . . . . . . . . . . 2-3


STATUTES

Texas Rules of Appellate Procedure, Rule 66.3(c) . . . . . . . . . . . . . . . . . . 3

Texas Code of Criminal Procedure, 28.10 . . . . . . . . . . . . . . . . . . . . . . . . . 2

Texas Rules of Appellate Procedure, Rule 33.1 . . . . . . . . . . . . . . . . . . . . . 2


                STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is waived.




c:\appeals\trevino\pdr                                                                   iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      COMES NOW ISMAEL TREVINO, appellant in the above entitled and

numbered cause, by and through his appointed counsel, ALLEN C. ISBELL,

and petitions the Court of Criminal Appeals to review the opinion by the

Fourteenth Court of Appeals, and respectfully shows this Court the following

in support of his petition.

                              Statement of the Case

      This appeal is from a conviction for Aggravated Assault of a Household

Member arising out of the 180th District Court of Harris County, Texas, the

Honorable Catherine Evans, Visiting Judge Presiding.             The jury found

appellant guilty. The jury assessed punishment at twenty-seven (27) years

imprisonment in the Texas Department of Criminal Justice, Institutional

Division.

                         Statement of Procedural History

      The Fourteenth Court of Appeals handed down an opinion affirming the

conviction on July 23, 2015. Appellant filed a Motion for Extension of Time to

file the petition. This petition is filed within the time allowed by law.

                               Ground for Review

Whether the Court of Appeals Opinion Is Correct That the Sufficiency of


c:\appeals\trevino\pdr                                                        1
the Evidence Is Measured by an Indictment Which Has Been

Impermissibly Amended on the Day of Trial, Rather than by the Original

Unamended         Indictment,   Unless   the   Accused      Objects    to   the

Impermissibly Amended Indictment?

                                Brief Argument

      On appeal, appellant argued that because the State amended the

indictment on the day trial began, which is a legally prohibited act under the

Texas Code of Criminal Procedure, 28.10, the amendment was a legal nullity.

If the amended indictment is a legal nullity, the only valid indictment was the

unamended, original indictment.       Consequently, the sufficiency of the

evidence should be reviewed by the allegations in the unamended, original

indictment, not by the legally impermissible amended indictment.

      The Court of Appeals held that appellant failed to meet the preservation

requirements of Texas Rules of Appellate Procedure, Rule 33.1 by failing to

object to the erroneous amendment. The Court of Appeals relied on Curry v.

State, 305 S.W.3d 394 (Tex.Crim.App. 2000), in which the accused objected

when the trial court permitted the State to amend the indictment after the trial

had commenced.

      Curry v. State does not answer the question raised in this appeal


c:\appeals\trevino\pdr                                                        2
because the accused in Curry objected. In Curry, the Court of Criminal

Appeals’ opinion did not discuss whether an objection is required because

that issue was not before the Court.

      The Court of Criminal Appeals should address the issue raised in this

case: whether an impermissible amendment to an indictment on the day of

trial is legal nullity, and if it is a legal nullity, should the sufficiency of the

evidence be measured by the original unamended indictment? Texas Rules

of Appellate Procedure, Rule 66.3(c).

                            Conclusion and Prayer

      Appellant prays that this Court grant his Petition for Discretionary

Review. Following the grant of review, appellant prays that this Court reverse

the judgment of the Court of Appeals and remand the case to that Court for

a proper analysis of the issues.

                                            Respectfully submitted,

                                            /s/ Allen C. Isbell
                                            ALLEN C. ISBELL
                                            2016 Main St., Suite 110
                                            Houston, Texas 77002
                                            713-236-1000
                                            Fax No. 713-236-1809
                                            STATE BAR NO. 10431500
                                            Email: allenisbell@sbcglobal.net

                                            COUNSEL ON APPEAL

c:\appeals\trevino\pdr                                                           3
                           Certificate of Service

      I hereby certify that on this 3rd day of September, 2015, a true and

correct copy of the foregoing was sent to the District Attorney’s Office,

Appellate Division, to the State Prosecuting Attorney and to Mr. Ismael

Trevino, appellant.


                                         /s/ Allen C. Isbell
                                         ALLEN C. ISBELL

                         Certificate of Compliance

      The undersigned attorney on appeal certifies this petition is computer

generated and consists of 956 words. Counsel is relying on the word count

provided by the Word Perfect computer software used to prepare the petition.


                                         /s/ Allen C. Isbell
                                         ALLEN C. ISBELL




c:\appeals\trevino\pdr                                                    4
Affirmed and Opinion filed July 23, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00262-CR

                        ISMAEL TREVINO, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1416917

                                OPINION

      A jury convicted appellant Ismael Trevino of aggravated assault of a
household member and assessed punishment at twenty-seven years’ confinement.
See Tex. Penal Code Ann. § 22.02(a)(b)(1). In two issues, appellant contends
(1) the evidence is legally insufficient to prove that the complainant was a member
of appellant’s family, and (2) appellant suffered egregious harm from an allegedly
erroneous jury instruction that authorized a conviction if appellant assaulted a
member of appellant’s household.
       The resolution of both of appellant’s issues depends on the alleged voidness
of the amendment of the indictment on the day of trial, before jury selection, to
replace the word “family” with the word “household” when describing appellant’s
relationship with the complainant.1 Appellant contends the hypothetically correct
jury charge for measuring the sufficiency of the evidence would require proof that
the complainant was a member of appellant’s family as alleged in the original
indictment because the amendment was “void”; and appellant contends the jury
charge was erroneous because it authorized a conviction if the State proved that the
complainant was a member of appellant’s household. It is undisputed that there is
evidence the complainant was a member of appellant’s household and not a
member of appellant’s family.

       We first address whether the amended indictment was void and then address
appellant’s two issues. Ultimately, we affirm the trial court’s judgment.

                    I.      AMENDED INDICTMENT WAS NOT VOID

       Amendments to indictments are governed by Article 28.10 of the Texas
Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 28.10. A plain
reading of the statute does not contemplate the amendment of an indictment on the
day of trial prior to the commencement of the trial. See Sodipo v. State, 815
S.W.2d 551, 556 n.3 & n.4 (Tex. Crim. App. 1990) (op. on reh’g). Thus, a trial
court errs by allowing the State to amend the indictment on the day of trial before
jury selection. See id. at 555–56; see also Hicks v. State, 864 S.W.2d 693, 694
(Tex. App.—Houston [14th Dist.] 1993, no pet.) (“The Court of Criminal Appeals

       1
         It is undisputed that the State sought and obtained leave to amend the indictment about
two weeks before trial, but the State failed to physically amend the indictment at that time. We
do not reach the State’s argument that obtaining leave, itself, constituted an amendment of the
indictment under Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014). See Tex. R. App. P.
47.1.

                                               2
has construed Article 28.10 to be an absolute prohibition against amendments to
the indictment on the day of trial before the commencement [of] the trial on the
merits.”).

        However, a defendant waives this error by failing to object to the
amendment. Sodipo, 815 S.W.2d at 556 (citing State v. Murk, 815 S.W.2d 556
(Tex. Crim. App. 1991)). In Murk, the Court of Criminal Appeals held that the
defendant waived this error by not complaining about the error at trial, citing the
predecessor to Rule 33.1 of the Texas Rules of Appellate Procedure. See Murk,
815 S.W.2d at 558; see also Tex. R. App. P. 33.1.

        If a complaint regarding the amendment of the indictment on the day of trial
may be waived by failing to preserve error in the trial court, such an amendment is
merely voidable—it is not void. See Ex parte Patterson, 969 S.W.2d 16, 19–20
(Tex. Crim. App. 1998) (holding that when the indictment is voidable, rather than
void, the defendant must object to the indictment to prevent waiver of the error).

        Having determined that the amended indictment was not void, we now
address appellant’s two issues.2

  II.       SUFFICIENCY OF THE EVIDENCE MEASURED BY AMENDED INDICTMENT

        In his first issue, appellant contends the evidence is insufficient to prove his
guilt under the hypothetically correct jury charge based on the original indictment.



        2
          Appellant does not contend that he objected to the trial court’s allowing the indictment
to be amended, nor does he assert that the amendment itself created reversible error. The record
reflects that when the trial court asked the State if it was amending the indictment on the first day
of trial before jury selection, appellant’s trial counsel responded, “And, Judge, I have to
objection to that.” The trial court said, “Very good, thank you.” In his brief, appellant adds the
word “(sic)” after the first use of the word “to,” and appellant argues that the amended
indictment was void “even if trial counsel expressed no objection.” The State similarly asserts
that appellant’s counsel actually stated he had “no objection.”

                                                 3
      The sufficiency of the evidence is measured against the hypothetically
correct jury charge, which is a charge “authorized by the indictment.” Curry v.
State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When an appellate court
concludes that an indictment has been erroneously amended over the defendant’s
objection, “the hypothetically correct jury charge must be one which is authorized
by the original indictment, not the amended indictment.” Id.

      However, in Curry the defendant objected to the amendment, and the Court
of Criminal Appeals reviewed the merits of the preserved error before addressing
the sufficiency of the evidence in light of the original indictment. See id. at 397
(noting objection); id. at 398–403 (reviewing amendment error).

      Appellant cites no authority to suggest that this court should review the
sufficiency of the evidence based on the original indictment when the defendant
fails to preserve error related to the amendment of the indictment, and we have
found none. Nothing in Curry suggests that the court would have referred to the
original indictment even if the defendant had failed to preserve error related to the
amendment.

      Here, because the amendment was not void, the hypothetically correct jury
charge should be based on the amended indictment, which alleged that the
complainant was a member of appellant’s household. But appellant does not
challenge the sufficiency of the evidence under the amended indictment; he
challenges only the sufficiency of the evidence of the complainant’s status as a
member of appellant’s family.          Because appellant has not challenged the
sufficiency of the evidence to support his conviction under the amended
indictment, we overrule his first issue. 3

      3
         The State does not contend that any variance between the original indictment and
evidence at trial regarding the complainant’s status as a family or household member was
                                             4
           III.   JURY CHARGE DETERMINED BY AMENDED INDICTMENT

       In his second issue, appellant contends he suffered egregious harm because
the trial court charged the jury pursuant to the amended indictment, rather than the
original indictment.

       Generally, a jury charge “must not enlarge the offense alleged and authorize
the jury to convict the defendant on a basis or theory permitted by the jury charge
but not alleged in the indictment.” Castillo v. State, 7 S.W.3d 253, 258 (Tex.
App.—Austin 1999, pet. ref’d) (collecting cases). 4 And, “an unobjected-to and
unwaived submission of an unindicted offense in the jury charge followed by a
conviction of that offense meets Almanza’s ‘egregious harm’ standard.” Woodard
v. State, 322 S.W.3d 648, 658 (Tex. Crim. App. 2010) (emphasis added). But, the
“right to a grand jury indictment under state law is a waivable right.” Id. at 657.

       As discussed above, error related to the amendment of an indictment is
“waived by the defendant failing to object at trial to such amendment.” Sodipo,
815 S.W.2d at 556. As discussed above, because the amendment in this case was
not void, appellant waived the error by failing to object and obtain a ruling. See
Tex. R. App. P. 33.1. Therefore, we use the amended indictment for purposes of
analyzing appellant’s second issue.

       The jury charge accurately followed the amended indictment, which alleged
that the complainant was a member of appellant’s household. The trial court did
not err by submitting a jury charge in accordance with the amended indictment.

immaterial for purposes of a sufficiency analysis, so we do not reach that potential issue. See
generally Gollihar v. State, 46 S.W.3d 243, 256–58 (Tex. Crim. App. 2001) (discussing material
variance doctrine; holding that immaterial variances are disregarded under the hypothetically
correct jury charge).
       4
        Again, the State does not contend that any variance between the indictment and jury
charge related to the complainant’s status as a family member or household member was
immaterial. See supra note 3.

                                              5
      We overrule appellant’s second issue.

                               IV.   CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.


                               /s/            Sharon McCally
                                              Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — Tex. R. App. P. 47.2(b).




                                        6
