                                  NO. 07-03-0441-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   AUGUST 19, 2004

                         ______________________________


                          CHARLES R. SYKES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

         FROM THE 258TH DISTRICT COURT OF SAN JACINTO COUNTY;

                NO. 8674; HONORABLE JAMES H. KEESHAN, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      Following his plea of not guilty, appellant Charles R. Sykes was convicted by a jury

of delivery of a controlled substance, enhanced, and punishment was assessed at four

years confinement. Presenting four points of error, appellant asserts (1) the trial court

erred in granting the State leave to amend its indictment over his objection after the jury
was seated and sworn; (2) the trial court committed clear error of constitutional magnitude

and acquittal is mandatory under the Double Jeopardy Clause of the Fifth Amendment; (3)

the trial court’s error in granting leave to amend the indictment after jeopardy attached was

not harmless and affected appellant’s substantial rights; and (4) the constitutionally

impermissible amendment requires the sufficiency of the evidence to be measured by the

original indictment. We affirm.


        After it had come to the attention of agents of the Drug Enforcement Administration

that appellant was engaged in drug trafficking, Special Agent Michael T. Bostick arranged

an undercover buy of cocaine. Originally, Bostick and appellant had agreed to meet at a

shopping center, but when Bostick telephoned him from the pre-arranged location,

appellant told him to come to his residence because he was still processing the cocaine.

Bostick was familiar with appellant’s residence from previous transactions and proceeded

to his address.


        Bostick testified that when he arrived, appellant was waiting for him in the front yard.

Bostick exited his vehicle and he and appellant engaged in small talk. During their

conversation appellant gave him a clear plastic bag containing crack cocaine in exchange

for $200. Based on his experience, Bostick knew the cocaine had been recently prepared

because it was still wet and damp. Following the buy and the brief conversation, Bostick

left.




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       Appellant was indicted for knowingly delivering “by actual transfer, to Michael

Bostick, a controlled substance, namely cocaine, in an amount of four grams or more but

less than 200 grams.” Approximately 13 days prior to trial, however, after realizing the

weight of the cocaine was less than four grams, the State filed a motion to amend the

indictment to allege a second degree instead of a first degree felony. Written objections

were filed to the motion. Following a pretrial hearing on the matter on the date of trial, the

trial court overruled appellant’s objections and approved altering the indictment to reflect

an allegation of delivery of cocaine in an amount of “one gram or more but less than four.”


       After the jury was seated and sworn, the issue of amending the indictment was

presented again outside the jury’s presence and appellant’s objections were again

overruled. After the jury was brought in, the State read the indictment alleging that

appellant delivered cocaine to Michael Bostick in an “amount of one gram or more but less

than four.”


       By his first three points of error appellant asserts harmful error by the trial court in

granting leave to the State over his objections to amend the indictment after the jury was

seated and sworn. He asserts the trial court’s action violated his constitutional right to not

twice be put in jeopardy for the same offense. We disagree.


       Article 28.10 of the Texas Code of Criminal Procedure provides the manner in which

an indictment may be amended. Not every change, however, to the face of an indictment

is an amendment. Mayfield v. State, 117 S.W.3d 475, 476 (Tex.App.–Texarkana 2003, pet.

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ref’d), citing Eastep v. State, 941 S.W.2d 130, 132 (Tex.Cr.App. 1997), overruled on other

grounds, Riney v. State, 28 S.W.3d 561, 566 (Tex.Cr.App. 2002). In some instances, a

particular change is merely an abandonment. Eastep, 941 S.W.2d at 133-34. If a change

to an indictment is an abandonment, the requirements of article 28.10 do not apply and

there has been no statutory violation. Id. at 133.


       There are three situations in which an alteration to the face of a charging instrument

constitutes an abandonment, to-wit: (1) ways or means of committing the offense; (2) trial

of a lesser included offense; and (3) surplusage. Id. at 133-34. In the instant case,

appellant was originally charged with delivery of cocaine in an amount of four grams or

more but less than 200 grams, a first degree felony. See Tex. Health & Safety Code Ann.

§ 481.112(d). After the indictment was altered, appellant was charged with delivery of

cocaine of one gram or more but less than four grams, a second degree felony. See §

481.112(c). An offense is a lesser included offense if it is established by proof of the same

or less than all the facts required to establish the commission of the offense charged. Tex.

Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981). The only alteration to the indictment

being the weight of the cocaine, the effect of the change was to charge appellant with a

lesser included offense. Thus, the change constituted an abandonment and not an

amendment subject to the requirements of article 28.10. See Leonard v. State, 481 S.W.2d

117, 118 (Tex.Cr.App. 1972). The trial court did not err in allowing the State to abandon

the greater offense and altering the indictment to reflect that appellant was charged with

a lesser offense.

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       Appellant further argues that the trial court’s action in permitting the indictment to be

altered after the jury was seated and sworn violated the Double Jeopardy Clause of the

Fifth Amendment and Article 1, Section 14 of the Texas Constitution. The only limitation

on the State’s right to abandon a portion of an indictment is that it is then barred from later

prosecuting the defendant for the abandoned allegation. Ex parte Preston, 833 S.W.2d

515, 517 (Tex.Cr.App 1992) (en banc); Jackson v. State, 50 S.W.3d 579, 596

(Tex.App.–Fort Worth 2001, pet. ref’d). When the issue of double jeopardy is raised, our

inquiry begins with the question of whether the defendant was ever first placed in jeopardy.

Crist v. Bretz, 437 U.S. 28, 33-34, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Double jeopardy

prohibits a subsequent trial on a lesser offense after the defendant has been previously

tried and acquitted for the greater offense.       Privett v. State, 635 S.W.2d 746, 752

(Tex.App.–Houston [1st Dist.] 1982, pet. ref’d) (on reh’g). Nothing in the record before us

indicates appellant was tried for the greater offense of delivery of cocaine in the amount of

four grams or more but less than 200 grams. Thus, the prohibition against double jeopardy

has not been implicated. Points of error one, two, and three are overruled.


       By his fourth point of error, appellant contends the evidence is legally and factually

insufficient to support his conviction. He further urges that the evidence should be

measured by the original indictment charging him with delivery of four grams or more but

less than 200 grams of cocaine because the trial court erroneously permitted the indictment

to be altered. Having previously concluded that the trial court did not err in permitting the

State to abandon the greater offense and charge appellant with a lesser offense, we review

                                               5
the sufficiency of the evidence against the allegation of delivery of cocaine in the amount

of one gram or more but less than four. Based on our review of the following evidence

under the appropriate standards of review we disagree with appellant that the evidence is

insufficient to support his conviction.


       When both the legal and factual sufficiency of the evidence are challenged, we must

first determine whether the evidence is legally sufficient to support the verdict. Clewis v.

State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a fundamental rule of criminal law

that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that

the defendant committed each element of the alleged offense. U.S. Const. amend. XIV;

Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004); Tex. Pen. Code Ann. § 2.01

(Vernon 2003). In conducting a legal sufficiency review, we must determine whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v.

State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v.

State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). As an appellate court, we may not sit as

a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by

more than a mere modicum of evidence.              Moreno v. State, 755 S.W.2d 866, 867

(Tex.Cr.App. 1988).




                                               6
       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis, 922 S.W.2d at 133. The Court of Criminal Appeals has

directed us to ask whether a neutral review of all the evidence, both for and against the

finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the fact finder’s determination, or the proof of guilt, although adequate if

taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11

(Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulation); see also King

v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000). Accordingly, we will reverse the fact

finder’s determination only if a manifest injustice has occurred. Johnson, 23 S.W.3d at 12.

In conducting this analysis, we may disagree with the jury’s determination, even if probative

evidence supports the verdict, but must avoid substituting our judgment for that of the fact

finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997).


       Before determining whether the evidence is legally sufficient to sustain the

conviction, we first review the essential elements the State was required to prove. A

person commits delivery of a controlled substance, i.e., cocaine, if he (1) intentionally or

knowingly (2) delivers (3) a controlled substance. See Tex. Health & Safety Code Ann. §§

481.102(3)(D) & 481.112(c) (Vernon 2003). Deliver means to transfer, knowingly or

intentionally, to another a controlled substance. See § 481.002(8).


       The State established that Agent Bostick had planned to buy cocaine from appellant

at a pre-arranged location. The undisputed evidence showed that when Bostick telephoned


                                             7
appellant about the buy, appellant told him he was in the process of preparing the cocaine

for use and that he should come to his residence instead. In exchange for $200, appellant

delivered to Bostick a clear bag containing cocaine. A forensic chemist confirmed after

performing three reliable tests that the substance Bostick purchased was 3.9 grams of

cocaine and lidocaine. We find the evidence is legally sufficient to support appellant’s

conviction. See Silva v. State, 989 S.W.2d 64, 69 (Tex.App.–San Antonio 1998, pet. ref’d).


       We must now determine, after a neutral review of all the evidence, whether it is

factually sufficient to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive

province of the fact finder to determine the credibility of the witnesses and the weight to be

given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978);

Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).


       In addition to Bostick’s testimony, Agent Patrick Starks, who was on the surveillance

team on the day of the buy, testified that although he did not witness the exchange

between Bostick and appellant, he had driven by appellant’s residence and noticed him

standing outside. Starks also testified that he was the evidence custodian on that day and

had processed and sealed the substance purchased by Bostick. After reviewing all the

record evidence under Johnson, 23 S.W.3d at 11, and without substituting our own

judgment, we conclude the evidence is factually sufficient to support the verdict. Point of

error four is overruled.


       Accordingly, the judgment of the trial court is affirmed.

                                              8
                  Don H. Reavis
                    Justice

Do not publish.




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