                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-15-00396-CR


                                   JULIAN BAEZ, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 251st District Court
                                      Randall County, Texas
                    Trial Court No. 25,304-C, Honorable Ana Estevez, Presiding

                                       September 20, 2016

                                 MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Julian Baez, was indicted for the offense of aggravated robbery.1

Following the return of the original indictment by the grand jury, the State filed a motion

requesting the trial court’s approval to amend the indictment. The trial court approved

the State’s amendment to the indictment and appellant was tried on the amended

indictment.      Following the jury’s guilty verdict, the same jury assessed appellant’s




       1
           See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
punishment at confinement in the Institutional Division of the Texas Department of

Criminal Justice (ID-TDCJ) for 45 years.


       Appellant has perfected his appeal and presents four issues for our

consideration. First, appellant contends that the indictment as amended deprived the

trial court of subject matter jurisdiction. Second, appellant contends that, because there

was no notice of amendment to the indictment, he is entitled to a new trial. Third, the

amended indictment alleged only the misdemeanor offense of theft with a deadly

weapon.    Therefore, the sentence of 45 years was beyond the statutory range of

punishment and the case must be remanded for a new punishment hearing. Finally, in

the alternative to issue three, appellant contends that the trial court’s charge on the

range of punishment—five to 99 years’ confinement—caused egregious harm because

that range of punishment was beyond the range for the offense of theft of which

appellant was actually convicted.      Disagreeing with appellant, we will affirm the

judgment entered by the trial court.


                           Factual and Procedural Background


       Appellant does not contest the sufficiency of the evidence to support the jury’s

verdict. Accordingly, we will only address as much of the factual background as is

necessary to address the issues raised. Appellant was originally indicted for the offense

of aggravated robbery on July 23, 2014.          The original indictment, omitting the

formalities, reads as follows:


       JULIAN BAEZ, hereinafter called the defendant, on or about the 2nd day
       of February, 2012, A.D. and before the presentment of this indictment, in
       said County and State, did then and there while in the course of
       committing theft and with the intent to obtain or maintain control of the

                                            2
       property, intentionally and knowingly threaten or place William Yarbrough
       in fear of imminent bodily injury or death, and the defendant did then and
       there use or exhibit a deadly weapon, to-wit: a firearm. . . .
The indictment then contains two enhancement paragraphs alleging prior felony

convictions. Subsequently, on June 19, 2015, the State filed a motion to amend the

indictment. The trial court granted the State’s request by entering the order amending

the indictment on the same day. The amended indictment reads, again omitting certain

of the formalities, as follows:


       JULIAN BAEZ, hereinafter called the defendant, on or about the 2nd day
       of February, 2012, A.D. before the presentment of this indictment, in said
       County and State, did then and there while in the course of committing
       theft, intentionally and knowingly threaten or place William Yarborough in
       fear of imminent bodily injury or death, and the defendant did then and
       there use or exhibit a deadly weapon, to-wit: a firearm. . . .

       At the time of his original indictment, appellant was incarcerated at a federal

correctional institution in Kentucky. After the State had provided notice of the detainer

placed on appellant, appellant began requesting a final disposition of the aggravated

robbery charge. The first request for a “final disposition” was filed on July 21, 2014,

after a complaint had been filed but before the grand jury indictment had been returned.

Appellant’s first request for final disposition does not appear to comport with the

requirements of the Interstate Agreement on Detainers. See TEX. CODE CRIM. PROC.

ANN. art. 51.14 (West 2006).2 Appellant filed a second request for final disposition on

September 20, 2014. Ultimately, appellant was returned to Texas from federal custody

to stand trial on July 2, 2015. Throughout the process of requesting final disposition,

appellant consistently referred to the pending charge of aggravated robbery. Appellant


       2
          Further reference to the Texas Code of Criminal Procedure will be by reference to “Article
____,” “article ____,” or “art. ____.”

                                                 3
appeared before a magistrate and received his magistrate’s warnings on July 3, 2015.

See art. 15.17. At the time of the magistrate’s warning, appellant was advised of the

charge against him—aggravated robbery.


       Trial counsel was appointed to represent appellant on July 16, 2015. On July 17,

2015, the State provided notice of compliance with article 39.14, the discovery statute.

See art. 39.14. Among the enumerated items that the State furnished to appellant’s trial

counsel was the indictment.


       The case was tried before a jury September 21–23, 2015. The jury returned a

verdict of guilty and assessed appellant’s punishment at confinement for 45 years in the

ID-TDCJ. Appellant now appeals through four issues. We disagree with appellant’s

issues and will affirm the judgment entered by the trial court.


                 Amended Indictment and Jurisdiction of the Trial Court


       By his first issue, appellant complains about lack of notice regarding the

amendment of the language in the indictment. This, according to appellant’s theory,

relieves him of the burden of complaining about the defect he sees in the indictment

before the trial on the merits of his case commenced. See art. 1.14(b) (West 2005). In

turn, the result is that appellant is able to complain, for the first time on appeal, that the

trial court did not have jurisdiction to hear the case. See id.


       Under appellant’s analysis, the lynchpin to his entire argument must be the

failure of notice of the amendment to the language of the indictment.            To properly

analyze this part of the issue, we turn to the record before us.



                                              4
      To begin with, appellant’s trial counsel was appointed on July 16, 2015. The

original indictment was returned on July 23, 2014, and the motion to amend and the

order amending the indictment were filed on June 19, 2015, approximately a month

before trial counsel was appointed. In all of the various documents filed by appellant

that are noted in the supplemental clerk’s record, it is abundantly clear that appellant

knows that he is charged with aggravated robbery. On July 17, 2015, the State filed a

document styled “Notice of Compliance with C.C.P. Article 39.14.”         See art. 39.14.

Article 39.14 is the “Discovery” article provided for in the Texas Code of Criminal

Procedure. One of the items provided in the “Notice of Compliance” document was

noted as “indictment.pdf.”    The only indictment operative at the time the “Notice”

document was filed was the amended indictment of June 19, 2015. When we apply the

presumption of regularity to the record before us, we find that there is no evidence

suggesting that the indictment provided to appellant’s trial counsel was anything other

than the amended indictment, and therefore, appellant did have notice of the amended

indictment. See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (en banc)

(providing that the presumption of regularity is a judicial construct that requires a

reviewing court, absent evidence of impropriety, to indulge every presumption in favor of

the proceedings and documents in the lower court).


      Appellant also contends that the motion to amend the indictment and the order of

amendment does not contain any certificate of service on appellant or his counsel.

Addressing lack of notice to counsel first, we note that trial counsel was not appointed

until after the indictment was amended. Therefore, there could not have been any

certificate of service on trial counsel. Regarding notice to appellant, the record reflects


                                            5
that he was given his magistrate warnings in person on July 3, 2015, after being

returned to Texas from incarceration in a federal prison in Kentucky. Appellant was not

present in Randall County at the time of the amendment and, it appears from the

record, there was no practical way to serve notice of the amendment on appellant. The

top of the magistrate warning advises that the charge against appellant was

“Aggravated Robbery, Enhanced.” Applying the same presumption of regularity to this

document and these proceedings leads us to conclude that appellant had knowledge of

the indictment charging him with the offense of aggravated robbery.           See id.    To

reiterate, the only indictment pending against appellant on July 3, 2015, was the

amended indictment. Finally, we note that the amended indictment was part of the

clerk’s record and, as such, was part of the public record. Trial counsel, if he truly was

not furnished a copy of the amended indictment in the “Discovery” documents, could

easily have reviewed the official clerk’s record as part of his trial preparation. It is

noteworthy that appellant’s reply brief acknowledges the time line set forth above and

ends with the notation that, “[o]n reflection, the notice of the modification appears to

have been proper.”


       Appellant argues that appellate counsel has spoken to trial counsel who has

looked through his records and found no paper or electronic copy of the motion to

amend the indictment or of the amended indictment. The problem with appellant’s

position is that the record contains nothing to support the allegations that trial counsel

had no notice. The extra-judicial statements attributed to trial counsel are not part of the

record before this Court and we cannot consider them. See Whitehead v. State, 130

S.W.3d 866, 872 (Tex. Crim. App. 2004) (holding that the general proposition is that an


                                             6
appellate court may not consider factual assertions that are outside the record). With

these facts and case law in mind, we conclude that trial counsel had received the

amended indictment. See Light, 15 S.W.3d at 107.


       Inasmuch as we have disagreed with appellant regarding the issue of notice of

the amended indictment, we next turn to the issue of the failure of appellant to attack

the indictment prior to the commencement of trial. Article 1.14(b) provides, in pertinent

part, as follows:


       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 trial on
       the merits commences, he waives and forfeits the right to object to the
       defect, error, or irregularity and he may not raise the objection on
       appeal. . . .
       The record before the Court clearly demonstrates that there was nothing filed

with the trial court prior to commencement of the trial objecting to any defect, error, or

irregularity in the indictment. Accordingly, appellant, pursuant to the statute, has waived

his right to now complain on appeal about any perceived defect, error, or irregularity.

See art. 1.14(b).


       But, appellant contends that he can raise this precise issue because, under his

analysis, the perceived defect, error, or irregularity goes to the issue of the trial court’s

acquisition of jurisdiction over this action. Under appellant’s theory, the indictment, after

amendment, alleges not aggravated robbery, but, rather, an offense that appellant

terms “theft by firearm” and that offense would be a misdemeanor offense. Thus the

district court in which the case was tried lacked jurisdiction over the misdemeanor

offense. And, because a question of subject matter jurisdiction may be raised for the

first time on appeal, the strictures of article 1.14(b) do not apply.

                                               7
      However, appellant is mistaken in his analysis. Appellant fails to consider that

the constitution of Texas defines an indictment as a written instrument presented to a

court by a grand jury charging a person with commission of an offense. TEX. CONST. art.

V, § 12(b). Additionally, article 28.10 provides that an indictment may be amended, as

to form or substance, after notice to the defendant. Art. 28.10. Finally, as noted above,

any perceived defect, error, or irregularity in an indictment must be brought to the

attention of the trial court before the date upon which trial on the merits commences.

Art. 1.14(b). A review of appellant’s arguments reveals that his complaint is not that he

did not have notice of the amendment, but rather, that the effect of the amendment was

to remove the mens rea requirement from the theft portion of the indictment.


      We cannot analyze the effect of the amendment of the indictment in the

piecemeal manner suggested by appellant. Instead, we must look at the indictment as

a whole and ask the question whether the allegations in the indictment are clear enough

that one can identify the offense alleged. See Teal v. State, 230 S.W.3d 172, 180 (Tex.

Crim. App. 2007). When this holistic approach is taken, the ultimate question is whether

the indictment accuses someone of a crime with enough clarity and specificity to identify

which penal statute the State intends to prosecute. See id. at 181.


      In the amended indictment before the Court, it is alleged that appellant, while in

the course of committing theft, intentionally and knowingly threatened or placed the

complainant in fear of imminent bodily injury or death by the use or exhibition of a

firearm. From a holistic approach, it is clear that appellant was charged with aggravated

robbery even though the indictment left out the mens rea for theft—with intent to obtain

or maintain control over property.    See id.    Having reviewed the various reasons

                                            8
appellant contends that the trial court did not have jurisdiction over appellant’s trial and

found that none of them are persuasive, we overrule appellant’s first issue.


                                      Apprendi Issue


       By his second issue, appellant contends that, even if aggravated robbery was still

the offense for which appellant was tried, because the amended indictment left out the

mens rea element for the theft component, a new trial is required under the United

States Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.

Ct. 2348, 147 L. Ed. 2d 435 (2000).


       Appellant’s argument is founded upon the position that trial counsel did not have

any notice of the change in allegations in the amended indictment. We have previously

addressed this issue in connection with appellant’s argument on the first issue. We

reiterate that the record does not support appellant’s contention. Because of the state

of the record, appellant was required to present this argument to the trial court in order

to preserve the issue for appellate review. See TEX. R. APP. P. 33.1(a); Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (holding that the preservation requirement

applies to alleged constitutional errors). Because appellant failed to preserve the issue

now presented, we find nothing to review. Appellant’s second issue is overruled.


                              Reformation of the Judgment


       Appellant’s third issue posits that, because of the amendment to the indictment,

the jury could have only found appellant guilty of the offense of theft with a deadly

weapon.     Thus, the sentence entered in the judgment, based upon the jury’s

punishment verdict, 45 years’ incarceration in the ID-TDCJ, was beyond the statutory

                                             9
range permitted and is an illegal sentence. Accordingly, appellant asks that we reform

the judgment or remand for resentencing.


       Insofar as appellant’s issue is simply contending that the only possible verdict

was guilty of theft, we have previously discussed the underlying law and applicable facts

concerning such a contention in the first issue. As stated therein, the indictment when

read as a whole charged appellant with aggravated robbery. See Teal, 230 S.W.3d at

181. As such, the sentence was within the range of punishment for the offense of

aggravated robbery. See TEX. PENAL CODE ANN. §§ 12.32 (West 2011), 29.03. To the

extent that this is appellant’s issue, it is overruled.


                                       Egregious Harm


       By his fourth issue, appellant contends that range of punishment set forth in the

court’s punishment charge to the jury inappropriately listed a range of from five to 99

years’ incarceration for the aggravated robbery enhanced by two prior felony offenses.

Appellant posits that this is egregious harm because the possible punishment range

was, at most, that of a state-jail felony punishment for the theft offense.


       Again, appellant’s basis for his contention is that the amended indictment alleged

nothing more than a theft while using a deadly weapon. This issue has been thoroughly

discussed above, and we remain convinced that the indictment, as amended, alleges

the offense of aggravated robbery. Accordingly, there is no error in the punishment

charge. Appellant’s issue is overruled.




                                               10
                                     Conclusion


      Having overruled each of appellant’s issues, we affirm the judgment of conviction

as entered.


                                       Mackey K. Hancock
                                           Justice


Do not publish.




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