                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00068-CR
         ______________________________


       CHARLES RANDALL KAY, Appellant

                         V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 8th Judicial District Court
              Franklin County, Texas
               Trial Court No. F8162




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION

       In a jury trial, Charles Randall Kay was convicted of theft of property (copper) valued at

between $1,500.00 and $20,000.00. The conviction was enhanced from a state jail felony to a

second-degree felony due to two prior felony convictions, and Kay was sentenced to twenty years'

imprisonment and a $10,000.00 fine.

           Kay raises a single issue on appeal: that the trial court committed reversible error when,

after voir dire was complete, it granted the State's motion to amend the indictment to include an

element of the offense.

       The indictment, complete with the later interlineations and an addition shown in brackets,

eventually charged that Kay

       did then and there unlawfully appropriate, by acquiring or otherwise exercising
       control over, property, to-wit: copper, of the value of $1,500 or more but less than
       $20,000, from Eric Earl Gordon Hale, the owner thereof, [with intent to deprive the
       owner of the prop.].

       Kay argues that the trial court committed reversible error by allowing this late amendment.

The voir dire took place Tuesday, January 22, 2008. On the afternoon of January 25, 2008, the State

filed a motion to amend the indictment to add the language; the motion was granted a few minutes

later. Trial began the following Monday, January 28, 2008.1

       1
        We take this opportunity to point out to the court reporter that the failure to transcribe the
reading of the indictment, and instead merely stating "indictment read" means that we cannot
determine with certainty whether the original, or the amended, indictment was read to the jury. As
no party has suggested that the original indictment was read rather than the amended one, we need
not further address that matter, but we strongly suggest that, in the future, the entirety of the

                                                  2
       Clearly, the indictment was amended. The record contains a copy of the motion to amend,

and Assistant District Attorney Samantha Crouch stated in the attached certificate of service that a

copy of the motion was forwarded to Kay's counsel on that date via facsimile. A certification by an

attorney of record showing service of a notice is prima facie evidence that service was made. TEX .

R. CIV . P. 21a. Anyone contending that such a notice was not received has the burden to show that

the notice was not received. Because a certificate of service creates a presumption that the notice

was served, without evidence to the contrary,2 proof of service has been made. Cliff v. Huggins, 724

S.W.2d 778, 780 (Tex. 1987); Krchnak v. Fulton, 759 S.W.2d 524 (Tex. App.—Amarillo 1988, writ

denied).

       The reporter's record states that the indictment was read in open court when Kay was

arraigned January 28. Because the court reporter in this case did not transcribe the reading of the

indictment, but merely noted, "Indictment read," the record does not reflect that the amended

indictment was read. We assume, however, that the trial court read the indictment as it existed at


proceedings be transcribed.
       2
         To his brief, appellate counsel attached an affidavit by Kay's counsel stating that he never
received either the motion or the order, and was thus given no opportunity to request any relief. In
Yarbrough v. State, 57 S.W.3d 611 (Tex. App.—Texarkana 2001, pet. ref'd), we held that, under
Rule 34.1 of the Texas Rules of Appellate Procedure, we are not permitted, in a direct appeal, to
consider affidavits not before the trial court, except regarding matters affecting our jurisdiction. Id.
at 615; see TEX . R. APP . P. 34.1. Rule 34.1 defines the contents of an appellate record, limiting them
to the clerk's record and the reporter's record. TEX . R. APP . P. 34.1. Affidavits filed solely in the
appellate court do not properly fall into either part of the record and, therefore, cannot properly be
considered by a court of appeals. Hernandez v. State, 84 S.W.3d 26, 32 (Tex. App.—Texarkana
2002, pet. ref'd); Yarbrough, 57 S.W.3d at 616.

                                                   3
the time of the reading, that is, amended. See Hardeman v. State, 552 S.W.2d 433 (Tex. Crim. App.

1977) (presumption of regularity).

       By statutory requirement, a defect of substance in an indictment is waived if the defendant

does not object before the date trial begins. TEX . CODE CRIM . PROC. ANN . art 1.14(b); State v.

Turner, 898 S.W.2d 303, 306 (Tex. Crim. App. 1995), overruled on other grounds by Proctor v.

State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998). Although we would not read this requirement

so narrowly as to make an objection made on the morning of trial ineffective under these

circumstances, in this case no objection was made at any point.3

       Accordingly, it appears that the complaint was not preserved for our review.

       We affirm the judgment.



                                                       Josh R. Morriss, III
                                                       Chief Justice

Date Submitted:        May 5, 2009
Date Decided:          May 6, 2009

Do Not Publish




       3
        We also note that the charge in the record has the amended language in it. This was the
charge apparently read to the jury, although the court reporter, here too, did not transcribe the actual
reading of the charge, opting to report "Charge read." Before the charge was read to the jury, Kay's
counsel had affirmatively said, "no objection" to it.


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