                                   NO. 07-06-0404-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   MAY 16, 2007
                          ______________________________

                             DANIEL DOMINIQUE JAQUEZ,

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 53,032-D; HON. DON EMERSON, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________


Before QUINN, CJ., and CAMPBELL and HANCOCK, JJ.

       Daniel Dominique Jaquez appeals his conviction for burglary of a habitation. In one

issue, he contends that the trial court erred in permitting the State to amend the indictment

on the day of trial. The amendment consisted of correcting the date of a prior conviction

pled for enhancement purposes. We affirm the judgment.

       As previously mentioned, the State sought to amend the indictment to correct the

date of the prior conviction pled in the enhancement paragraph. Notice of its intent to do
so was sent to appellant’s trial counsel, and the latter admitted to having received it ten

days before trial. Nonetheless, appellant objected when effort was made, on the day of

trial, to formally amend the charging instrument. Before us, he asserts that the effort failed

to comply with art. 28.10 of the Texas Code of Criminal Procedure for the provision does

not allow amendment on the day of trial. We overrule the issue.

       Authority also holds that while prior convictions used for enhancement purposes

must be pled in some form, they need not be pled in the indictment. Villescas v. State, 189

S.W.3d 290, 292-93 (Tex. Crim. App. 2006); Brooks v. State, 957 S.W.2d 30, 34 (Tex.

Crim. App. 1997); Johnson v. State, 214 S.W.2d 157, 158 (Tex. App.–Amarillo 2007, no

pet.). So too are we told not only that the deletion of surplusage from an indictment falls

outside the requirements of art. 28.10 but also that surplusage encompasses language

unessential to the validity of the indictment. Johnson v. State, 214 S.W.3d at 158. Since

enhancement paragraphs need not be pled in the indictment, it logically follows that they

are unessential to the validity of the instrument and comparable to surplusage for purposes

of art. 28.10. Id. As a result, we conclude that modifying the date in the enhancement

paragraph here does not implicate art. 28.10 and, therefore, the trial court did not violate

the terms of that provision. Id.

       Accordingly, we affirm the judgment.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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