
NO. 07-04-0571-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 18, 2005

______________________________


JOSHUA LEE ADAMS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 15,535-A; HONORABLE HAL MINER, JUDGE

_______________________________


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

OPINION
 
	Following a plea of not guilty, appellant Joshua Lee Adams was convicted by a jury
of intoxication manslaughter with a deadly weapon and sentenced to eight years
confinement and a $7,000 fine.  Presenting five points of error, appellant contends the trial
court erred by (1) permitting the State to amend its indictment on the day of trial, (2) failing
to physically alter the indictment after permitting the State's amendment, (3) admitting
evidence of prior bad acts under Rule 404(b), (4) inserting the phrase "intoxication by
alcohol" in the jury charge when there was no evidence of alcohol intoxication, (1) and (5)
overruling an objection to the State's jury argument suggesting a lesser burden for the
State to convict.  We affirm.
	Gerald Grooms was killed when his motorcycle was struck from behind by a vehicle
driven by appellant.  Witnesses testified appellant's behavior after the collision was
consistent with intoxication by drugs, and evidence indicated he routinely ingested
excessive quantities of Coricidin medication to get high.  Appellant was subsequently
charged with intoxication manslaughter for being under the influence of Coricidin at the
time of the collision.
Indictment
	By his first point of error, appellant contends the trial court erred by allowing the
State to amend its indictment on the day trial commenced thereby depriving him of due
process of law.  We disagree.  Article 28.10 of the Code of Criminal Procedure governs the
procedure for amending an indictment.  Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon
1989).  Subsection (a) provides that "an indictment or information may be amended at any
time before the date the trial on the merits commences."  Id. at (a).  Upon request, the
defendant is entitled to ten days to respond to a proposed amendment.  Id.  Subsection
(b) allows an indictment to be amended after trial commences if the defendant does not
object.  However, the statute does not provide for amendments to an indictment made on
the date of trial prior to jury selection.  Sodipo v. State, 815 S.W.2d 551, 555 (Tex.Cr.App.
1990).  This omission has been interpreted to preclude the State from amending an
indictment on the date of trial over a defendant's objection.  Id. at 556; State v. Murk, 815
S.W.2d 556, 558 (Tex.Cr.App. 1991).      
	In the present case, appellant was indicted for intoxication manslaughter on October
1, 2003.  On October 27, 2004, the State filed a motion to amend the indictment and a
copy was mailed to appellant's counsel.  Later that day, the motion was granted and an
order amending the indictment was signed by a district judge.  On October 28, 2004, the
State filed a second motion to amend the indictment which included a notice of intent to
seek an affirmative finding of the use or exhibition of a deadly weapon.  This time, the
State faxed a copy of the motion to appellant's counsel, and a second order amending the
indictment was signed by a district judge that afternoon.
	Appellant's trial began on November 8, 2004.  Prior to voir dire, appellant objected
to the second motion and order amending the indictment claiming (1) the amendment was
granted on the same day it was received, thereby denying him the ability to respond or
argue the merits of the motion, and (2) the notice of intent to seek an affirmative finding of
a deadly weapon was a material allegation which needed to be presented to a grand jury. 
Following considerable discussion from both sides, the court overruled appellant's
objection and upheld the order amending the indictment.
	A review of the record shows appellant failed to object or otherwise direct the court's
attention to the complaint he raises on appeal that an indictment may not be amended on
the date trial commences.  See Tex. R. App. P. 33.1(a).  Under similar circumstances, the
Court in Murk held that any error is waived on appeal when a defendant fails to object to
such an amendment at trial.  Cf. Sodipo, 815 S.W.2d at 556 (finding a defendant preserved
his claim by specifically objecting to the indictment error).  Similarly, because appellant
failed to preserve any error, his first point presents nothing for review and is overruled.
	By his second point, appellant contends the trial court deprived him of due process
of law by not actually altering the indictment after permitting the State's amendment.  We
disagree.  In order to complain of a defect of form or substance in an indictment, a
defendant must object to the defect at trial.  Tex. Code Crim. Proc. Ann. art. 1.14(b)
(Vernon 2005).  See also Tex. R. App. P. 33.1(a).  Because no objection was made at trial,
the court's alleged error in failing to properly amend the indictment was waived.  See Tex.
Code Crim. Proc. Ann. art. 1.14(b).  Appellant's second point is overruled.Evidence of Prior Bad Act
	By his third point, appellant contends the trial court abused its discretion by allowing
three witnesses to testify concerning his use of Coricidin on a prior occasion in 2001 and
its observed effects on his physical and mental condition.  Appellant claims this
erroneously admitted testimony deprived him of equal protection and due process of law. 
We disagree.
	Whether evidence is admissible is within the sound discretion of the trial judge. 
Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1990).  Therefore, the standard
of review for admission or exclusion of evidence is abuse of discretion.  Erdman v. State,
861 S.W.2d 890, 893 (Tex.Cr.App. 1993).  A trial judge does not abuse his discretion
unless he has "acted arbitrarily and unreasonably, without reference to any guiding rules
and principles."  Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.-Amarillo 1991, pet.
ref'd).  As long as the trial court's ruling was within the " zone of reasonable disagreement,"
there is no abuse of discretion and the trial court's ruling will be upheld.  See Rachal v.
State, 917 S.W.2d 799, 807 (Tex.Cr.App.1996).  But, if it cannot be concluded from
common, reasonable experience that the evidence has a tendency to make the existence
of a fact of consequence more or less probable, then the trial court's decision was not
within the zone of reasonable disagreement and was an abuse of discretion.  Id. 
	Therefore, the discretion to admit or exclude evidence is not absolute.  For example,
extraneous offense or character evidence is generally inadmissible.  Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith.  Tex. R. Evid. 404(b).  It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or accident.  Id.  In determining whether the trial
court abused its discretion, we will review the witnesses' testimony separately.   
Larry Adams
	Mr. Adams testified to appellant's use of Coricidin on a prior occasion in September
2001.  Prior to the testimony, appellant objected that it was "highly prejudicial" and that its
prejudicial effect on the jury outweighed any probative value.  The court overruled the
objection and allowed the witness to testify.     
	A timely and reasonably specific objection is required to preserve error for appellate
review.  Tex. R. App. P. 33(a)(1); Butler v. State, 872 S.W.2d 227, 236 (Tex.Cr.App. 1994).
Where the alleged error relates to the admission of evidence, a timely objection must be
made stating the specific ground of objection.  Tex. R. Evid. 103(a)(1); Higgins v. State,
924 S.W.2d 739, 745 (Tex.App.-Texarkana 1996, pet. ref'd).  In addition, the objection at
trial must comport with the error complained of on appeal.  Goff v. State, 931 S.W.2d 537,
551 (Tex.Cr.App. 1996).  No objection was raised at trial regarding error under Rule 404(b);
therefore, the issue was not preserved for appeal.  Tex. R. App. P. 33(a)(1).Abbey O'Brien and Michael Ecker
	Ms. O'Brien intended to testify to appellant's prior use of Coricidin over a one year
period and its effects on his mental and physical condition.  Appellant objected that the
testimony was not relevant to the offense charged and requested that the court hold a
hearing outside the presence of the jury to determine relevancy.  Following the hearing,
appellant argued the testimony should be excluded under Rule 404(b) as an attempt to
show bad conduct, and under Rule 403 because it was more prejudicial than probative. 
The court overruled appellant's objection and found the testimony to be relevant, but
limited the witness's testimony to appellant's use of Coricidin on one occasion in
September 2001. 
	Similarly, Mr. Ecker testified to his observations regarding appellant's mental and
physical condition after ingesting Coricidin on the occasion in September 2001.  Appellant
objected under Rules of Evidence 404(b) and 403.  The court overruled the objections and
allowed the testimony to be admitted for the limited purpose of demonstrating the physical
effects of Coricidin on appellant.   Prior to the testimony, at the request of appellant, the
court orally instructed the jury as follows:
	The defendant is on trial solely on the charge contained in the indictment. 
In reference to evidence, if any, that the defendant has previously
participated in transactions or acts, other than but similar to that which is
charged in the indictment in this case, you are instructed that you cannot
consider such other transactions or acts, if any, for any purpose unless you
find and believe beyond a reasonable doubt that the defendant participated
in such transactions or committed such acts, if any.  And even then, you may
only consider the same for the purpose of the sole issue of the effect of
Coricidin on the physical abilities of the defendant, and no other purpose.

The jury was further instructed that this instruction also applied to the testimony of Larry
Adams and Abbey O'Brien.  The instruction was also included in the final jury charge.
	Assuming arguendo that the witnesses' testimony should not have been admitted,
a harm analysis must be conducted, pursuant to Tex. R. App. P. 44.2(b).  The rule requires
us to disregard an error that is not constitutional error unless it affects a "substantial right"
of appellant.  Tex. R. App. P. 44.2(b). A substantial right is affected when an error has a
substantial and injurious effect or influence on the jury's verdict.  King v. State, 953 S.W.2d
266, 271 (Tex.Cr.App. 1997).  Although appellant asserts there was a violation of equal
protection and due process, violations of the evidentiary rules resulting in the erroneous
admission of evidence are generally held not to be constitutional error.  Tate v. State, 988
S.W.2d 887, 890 (Tex.App.-Austin 1999, pet. ref'd).  Furthermore, we generally presume
that the jury follows the trial court's instructions, including a limiting instruction regarding
certain testimony. See Waldo v. State, 746 S.W.2d 750 (Tex.Cr.App. 1988).
	Here, other witnesses testified to appellant's behavior following the collision and
their belief that he was under the influence of intoxicating drugs.  Considering the other
evidence admitted and the court's limiting instructions, we find the testimony concerning
appellant's use of Coricidin on a prior occasion in September 2001, even if inadmissible,
did not have a substantial and injurious effect or influence on the jury's verdict.  We hold
the trial court did not abuse its discretion in allowing the testimony for a limited purpose and
overrule appellant's third point of error.

Improper Jury Argument
	By his fifth point, appellant contends the trial court erred in overruling his objection
to the State's jury argument suggesting a lesser burden for intoxication manslaughter. 
	The following exchange occurred during the State's closing argument:
	State:		If he - - if it's true that he operated that motor vehicle while he
was intoxicated, stoned on Coricidin, and his operation of the
vehicle while intoxicated caused this man's death, then he is
guilty.
			Defense: 	Your Honor, the charge specifically says that the intoxication
caused the death, and I think he is misrepresenting the charge
to the jury.
	 The Court:	No, I don't think it says that.  Overruled.

	Appellant maintains that the State's characterization of the law denies him due
process.  We disagree.  Appellate courts have consistently held that prosecutorial
misstatements of law are not constitutional in nature.  Coggeshall v. State, 961 S.W.2d
639, 643 (Tex.App.-Fort Worth 1998, pet. ref'd).  In conducting a harm analysis under Rule
44.2(b), we disregard nonconstitutional errors unless appellant's substantial rights are
affected.  As previously noted, a substantial right is affected when error has a substantial
and injurious effect or influence on the jury's verdict.  King v. State, 953 S.W.2d 266 at 271. 
To determine whether a prosecutor's misstatement of law had a substantial and injurious
effect or influence on the jury's verdict, we look at all the evidence and the court's charge,
as well as the misstatement.  Herrera v. State, 11 S.W.3d 412, 415 (Tex.App.-Houston
[1st Dist.] 2000, pet. ref'd).  Absent evidence to the contrary, a jury is presumed to follow
the instructions set forth in the court's charge.  Hutch v. State, 922 S.W.2d 166, 172
(Tex.Cr.App. 1996).  However, such presumption can be rebutted.  See Resendiz v. State,
112 S.W.3d 541, 546 (Tex.Cr.App. 2003).
	Here, the jury charge correctly stated the elements of intoxication manslaughter. 
The charge provided that a person commits the offense when he operates a motor vehicle
in a public place, is intoxicated, and by reason of that intoxication, causes the death of
another by accident or mistake.  See also Tex. Pen. Code Ann. § 49.08(a) (Vernon 2003). 
The State claims that it "essentially argued" that appellant's intoxication, not just his
operation of a motor vehicle, caused the death of the victim.  However, we disagree and
accept appellant's contention that the State misstated the law regarding the evidence on
which the jury could convict.
	Even so, we fail to find anything in the record suggesting that this misstatement had
a substantial and injurious effect or influence on the jury's verdict.  The elements required
to convict were correctly stated in the charge, and appellant fails to direct us to any
evidence that the jury failed to properly follow the charge.  Therefore, we hold the error is
harmless.  See Tex. R. App. P. 44.2(b).  Appellant's fifth point is overruled.
	Accordingly, the judgment of the trial court is affirmed.


						Don H. Reavis
						    Justice
Publish.       
1. Appellant waived his fourth point of error during oral argument and will not be
addressed below.
