                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-13-00119-CR

DANNY DEMON AUSTIN,
                                                                Appellant
v.

THE STATE OF TEXAS,
                                                                Appellee


                               From the County Court
                                Navarro County, Texas
                              Trial Court No. C34404-CR


                             DISSENTING OPINION


       The second issue is not, in my opinion, a question of preservation of an issue by

making an objection to the indictment.           Rather, it is a question of whether the

indictment was properly amended. There was nothing substantively wrong with the

indictment before it was amended. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West

2005) (“If the defendant does not object to a defect, error, or irregularity of form or substance

in an indictment or information before the date on which the trial on the merits

commences, he waives and forfeits the right to object….”) (emphasis added). It simply

alleged a crime the State was never going to be able to prove. Surely we are not yet at
the state of compelling the defendant to make an objection to the indictment to draw the

court’s attention to the fact that the State cannot possibly prove the crime for which the

defendant has been indicted. What would the objection have been? And to what action

of the trial court would the objection have been made? And when would the objection

have been made?

        It is the State’s duty to make sure the defendant is indicted for a crime that the

State believes is supported by the admissible evidence that can be introduced at trial.

The trial court has no duty to determine if the indictment against the defendant charges

a crime the State can prove.

        In this instance, the indictment was simply not properly amended.         This is

because the only indication in the record before us that the indictment was amended

was a docket notation of a ruling made at a hearing granting the motion to amend. We

have been provided no reporter’s record for the hearing. The hearing occurred during

the absence of the defendant, although it appears his attorney was present.           The

attorney had a pending motion to withdraw, and when the defendant finally arrived for

the hearing, that attorney was then allowed to withdraw. A written order allowing the

attorney to withdraw and appointing a new attorney to represent the defendant is part

of the record. A written order, or even a record of a hearing held in open court, that the

indictment had been amended or what that amendment was is not part of the appellate

record.




Austin v. State                                                                     Page 2
        By way of comparison, the indictment had already been amended once in

response to a motion by the State. In that instance, the State moved to amend the

indictment to change the drug that Austin was in possession of from methamphetamine

to cocaine. The full text of the indictment as amended was set out in trial court’s

written order granting that amendment to the indictment. It is clear this method is fully

compliant with the post-Ward case law. See Ward v. State, 829 S.W.2d 787 (Tex. Crim.

App. 1992); Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000); Perez v. State, 429

S.W.3d 639 (Tex. Crim. App. 2014). There is no suggestion that such a procedure is

inadequate to amend an indictment. But a docket entry simply noting the motion to

amend the indictment is granted, alone, cannot be adequate.

        Potentially, the defendant might have been made aware that the charges for

which he was about to be tried had been amended when the “indictment” was read at

the commencement of the trial and it contained the element that the drug free zone was

due to the presence of a youth center rather than a school as indicted by the grand jury.

If that was sufficient to put him on notice that the charge in the indictment had been

amended, then possibly he should have lodged an objection to the amendment

procedure or filed a motion for a continuance to allow adequate time to prepare in

response to having learned that the charges upon which he was about to be tried had

been changed. See TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (West 2006) (“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


Austin v. State                                                                    Page 3
indictment….”). Nevertheless, that still begs the question of whether the indictment

was properly amended. I contend it was not.

        The evidence proved only that the possession was in a drug free zone by being

within 1000 feet of a youth center, one way the statute is violated, and not that it was

within 1000 feet of a school (which by definition includes day-care facilities), another

way the statute could be violated and as alleged in the first amended indictment. See

TEX. HEALTH & SAFETY CODE ANN. § 481.134 (West Supp. 2013). Under Malik and its

progeny, the State failed to meet its burden to prove the element as contained in the

hypothetically correct jury charge which must be based on the first amended indictment

and not upon the ineffective attempt to amend the indictment a second time. See Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

        The Court pushes the minimum requirements to properly amend an indictment

beyond the logical boundaries of Ward and the subsequent cases that have loosened, but

not abandoned, the methods allowed to effectively amend the indictment.             The

judgment should be reformed to convict Jones for the lesser included offense of simple

possession and remanded to the trial court for a new punishment hearing. Accordingly,

I respectfully dissent.



                                          TOM GRAY
                                          Chief Justice

Dissenting opinion delivered and filed July 31, 2014




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