                            NUMBER 13-11-00020-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

CODY DAVIS HUNT,                                                           Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      Following a bench trial, appellant Cody Davis Hunt was convicted of deadly

conduct involving the discharge of a firearm, a third-degree felony. See TEX. PENAL

CODE ANN. § 22.05(b) (West 2003). He was sentenced to two years’ imprisonment in

the Institutional Division of the Texas Department of Criminal Justice. By a single issue

on appeal, Hunt argues that the trial court erred by granting the State’s oral motion to

amend the indictment. We affirm.
                                     I. BACKGROUND

      Hunt was indicted by a San Patricio County grand jury on July 13, 2010. The first

count in the indictment alleged that Hunt, on or about April 9, 2010, ―knowingly

discharge[d] a firearm at or in the direction of a habitation‖ and ―was then and there

reckless as to whether the habitation was occupied.‖ See id. § 22.05(b)(2) (―A person

commits an offense if he knowingly discharges a firearm at or in the direction of . . . a

habitation, building, or vehicle and is reckless as to whether the habitation, building, or

vehicle is occupied.‖). The first count specified that Hunt ―discharged a firearm in the

direction of the occupied residence of Janie Hunt Meadows.‖

      The second count of the indictment alleged that Hunt, on the same date,

―knowingly discharge[d] a firearm at or in the direction of a vehicle‖ and ―was then and

there reckless as to whether the vehicle was occupied.‖ See id. The second count

specified that Hunt ―drove by and discharged a firearm at a vehicle owned by Joseph

Mitchell which was located at Joseph Mitchell’s residence.‖

      Hunt pleaded not guilty to both counts and the case was called for non-jury trial

on October 6, 2010. The following exchange then occurred:

      THE COURT:           The next case for hearing this afternoon is State of
                           Texas versus Cody Davis Hunt, Cause Number S-10-
                           3207-CR. [Prosecutor], you are here on behalf of the
                           State. Are you ready to proceed?

      [Prosecutor]:        Yes, Your Honor. The State does have one oral
                           motion to amend the indictment. The names are
                           switched. Count one has Ms. Janie Hunt Meadows.
                           It should be Janie Hunt Mitchell. Count 2 has Joseph
                           Mitchell in two places and it should be Joseph
                           Meadows.

      [Defense counsel]: Your Honor, I’m going to object to the amendment of
                         the indictment. The grand jury came back with the
                         names in one fashion and I think the case ought to
                                            2
                                   proceed in that fashion, Your Honor, and I have not
                                   been given any notification that they were going to
                                   change the names so I’m going to object to the
                                   amendment of the indictment on the State’s own
                                   motion.

       [Prosecutor]:               Judge, I don’t think he’s entitled to object to the
                                   amendment. I think he’s entitled to 10 days for
                                   preparation and if he’s asking for those 10 days, then
                                   he can have that.

                                   ....

       THE COURT:                  The Court is going to grant the amendment as prayed
                                   for. However, you do have a right, if you wish to,
                                   [defense counsel], to have a continuance in this case.
                                   Are you requesting a continuance in this case?

                                   ....

       [Defense counsel]: Right now, Your Honor, we’ll waive our 10 days.

The trial court then asked Hunt directly whether he wished to waive the right to have ten

additional days to prepare for trial; Hunt responded ―Yes, Your Honor; I do.‖

       After hearing evidence, the trial court found Hunt guilty of the first count and not

guilty of the second count. Hunt was sentenced to two years’ imprisonment. This

appeal followed.

                                                II. DISCUSSION

       Hunt contends on appeal that the trial court erred by granting the State’s oral

motion to amend the indictment. Instead, according to Hunt, the trial court should have

compelled the State to ―resubmit the indictment to the grand jury for correction.‖1


       1
           Hunt’s argument with respect to this issue, in its entirety, is as follows:

       Art. 21.09 of the Texas Code of Criminal Procedure specifically states that personal
       property involved in an indictment must be identified by ownership. In this particular case
       the initial indictment to which the Defendant plead Not Guilty specifically stated that the
       house in question was owned by Janie Hunt Meadows when in fact it was owned by
       Janie Hunt Mitchell. If the wrong name had been used, the State’s burden would have
                                                        3
        Article 28.10(c) of the Texas Code of Criminal Procedure provides that ―[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.‖ TEX. CODE CRIM. PROC. ANN. art. 28.10(c) (West 2006).

        The Texas Court of Criminal Appeals has held that ―a different offense‖ in the

context of article 28.10(c) ―means a different statutory offense.‖ Flowers v. State, 815

S.W.2d 724, 728 (Tex. Crim. App. 1991); see Tenorio v. State, 94 S.W.3d 719, 722

(Tex. App.—San Antonio 2002, no pet.); Bynum v. State, 874 S.W.2d 903, 906 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d). ―A change in an element of an offense

changes the evidence required to prove that offense, but it is still the same offense.‖

Flowers, 815 S.W.2d at 728; Tenorio, 94 S.W.3d at 722; Bynum, 874 S.W.2d at 906.

Here, the alteration of the indictment requested by the State and granted by the trial

court merely switched the names of Meadows and Mitchell. Hunt was charged with

deadly conduct involving the discharge of a firearm under both the original and

amended indictments. These are the same statutory offenses; thus, this amendment




        been to present the case to the grand jury for a new indictment to correct the name of the
        owner of the house in question. Under Art. 1.141, of the Texas Code of Criminal
        Procedure, the Defendant in this case never waived his right to be accused by an
        indictment. Instead, the Court proceeded to correct the wrong last names of the alleged
        victims and insert the correct last names over the objection of the Defendant.

        After judgment vests, Defendant has a duty to object to any defect of form or substance
        of the indictment or else that defect is waived. [Ex parte Long, 910 S.W.2d 485 (Tex.
        Crim. App. 1995)].

Hunt’s brief does not comply with the Texas Rules of Appellate Procedure in that it does not ―contain a
clear and concise argument for the contentions made, with appropriate citations to authorities and to the
record.‖ TEX. R. APP. P. 38.1(i). Nevertheless, out of an abundance of caution and in our sole discretion,
we choose to address the merits of Hunt’s issue.
                                                    4
does not violate the ―different offense‖ prohibition in article 28.10. See Flowers, 815

S.W.2d at 728; Tenorio, 94 S.W.3d at 722; Bynum, 874 S.W.2d at 906.

         We further find that Hunt’s substantial rights were not prejudiced by the

amendment. The record reflects that Hunt gave a voluntary written statement to police

in which he acknowledged that Janie Mitchell is his aunt and that he knew Janie Mitchell

resided at the house which was shot. Moreover, Hunt specifically informed the trial

court that he wished to waive any additional time to prepare for trial. See TEX. CODE

CRIM. PROC. ANN. art. 28.10(a) (―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.‖). There is no indication that Hunt

was unable to adequately prepare his defense because of the amendment to the

indictment. See Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986) (―The

important question [in determining whether a defendant’s substantial rights were

prejudiced] is whether a defendant had notice adequate to prepare his defense.‖).

Under these circumstances, we cannot say that Hunt’s substantial rights were

prejudiced by the trial court’s decision to allow the amendment. We overrule Hunt’s

issue.

                                       III. CONCLUSION

         The judgment of the trial court is affirmed.


                                                   DORI CONTRERAS GARZA
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
29th day of August, 2011.

                                               5
