                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00313-CR
                               __________________


                         JOSEPH LATULAS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

               On Appeal from the 356th District Court
                       Hardin County, Texas
                       Trial Cause No. 23714
__________________________________________________________________

                          MEMORANDUM OPINION

      Joseph Latulas 1 pleaded guilty to murder, and a jury assessed his punishment

at life in prison. On appeal, Latulas’s sole issue is whether the trial court erred by

overruling his objections to the State’s motion to amend his indictment. For the

reasons explained below, we affirm.


      1 The record shows that Joseph Latulas is also known as Joseph Anthony
Latulas.
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                                     Background

      In January 2016, Latulas stabbed his ex-girlfriend, Wendi Warner, to death

with a knife. 2 A month later, a grand jury indicted Latulas for murder, alleging he

“INTENTIONALLY OR KNOWINGLY CAUSE[D] THE DEATH OF, WENDI

WARNER, BY STABBING HER WITH A KNIFE.” More than two years after the

grand jury indicted Latulas, the State moved to amend the indictment. In its motion,

the State sought to add language to the indictment to allege Latulas used the knife as

a deadly weapon. The trial court granted the State’s motion and allowed the State to

amend Latulas’s indictment. As amended, the indictment alleges Latulas

“INTENTIONALLY OR KNOWINGLY CAUSE[D] THE DEATH OF, WENDI

WARNER, BY STABBING HER WITH A KNIFE, A DEADLY WEAPON.”

      Around two months later, Latulas lodged two objections to the amended

indictment.3 Latulas first argued the amended indictment did not specify the manner

or means the State claimed he used to commit the murder. According to Latulas,

without the benefit of that information, the State failed to provide him with sufficient

notice of what it intended to prove during his trial. Second, Latulas argued that to


      2  See Tex. Penal Code Ann. § 19.02(b)(1).
       3 Before the trial court granted the State’s motion to amend the grand jury’s

indictment, Latulas moved to dismiss the original indictment that issued in his case.
The motion to dismiss advances arguments like the ones Latulas made in the hearing
the trial court conducted just before Latulas’s trial. The record, however, does not
show the trial court ever signed an order denying the motion to dismiss.
                                          2
amend the indictment, the State had to resubmit the case to the grand jury and could

not amend it by a motion seeking to add a deadly weapon allegation to the

indictment.4

      In response, the State argued both indictments notified Latulas it intended to

seek a deadly weapon finding in his trial based on the manner he used the knife when

committing the murder. The State also argued that it could notify a defendant that it

intended to seek a deadly weapon finding by moving to amend the indictment

without resubmitting the case to the grand jury, explaining that doing so did not

violate any of Latulas’s rights to have a grand jury indict him for murder. In other

words, the State argued the amended indictment notified Latulas it would seek a

deadly weapon finding when the trial court called his case to trial. The trial court

agreed, overruled Latulas’s objection, and signed an order granting the State’s

motion.

      About seven weeks after the trial court granted the State’s motion, Latulas

pleaded guilty to the allegations in the amended indictment. After Latulas elected to

have a jury assess his punishment, the jury assessed a life sentence for the murder.

The judgment the trial court signed follows the jury’s verdict. After that, Latulas

filed an appeal. To support the appeal, Latulas filed a brief raising one issue, which



      4   See Tex. Const. art. I, § 10.
                                          3
argues that the original indictment did not allege the elements required to prove

murder and that amending it required the State to submit his case to a grand jury to

avoid violating his rights.

                                      Analysis

      A reviewing court uses a de novo standard to review a trial court’s ruling on

a motion to quash an indictment. 5 In his brief, Latulas raises two arguments. We

address each in turn.

      First, Latulas suggests the amended indictment fails to provide sufficient

notice of the manner and means the State intended to use in his trial to prove he

committed murder. We disagree. The amended indictment tracks the statute defining

murder,6 so it satisfies the requirements of the United States and Texas Constitutions

of due process.7

      To provide fair notice, a defendant’s indictment “must be specific enough to

inform the accused of the nature of the accusation against him so that he may prepare

a defense.”8 In most cases, when the indictment tracks the language of the statute

codifying the offense, the indictment satisfies all constitutional and statutory

requirements of notice, as it need not include facts when they are merely evidentiary


      5 Smith v. State, 309 S.W.3d 10, 14 (Tex. Crim. App. 2010).
      6 See Tex. Penal Code Ann. § 19.02(b)(1).
      7 See State v. Ross, 573 S.W.3d 817, 820 (Tex. Crim. App. 2019).
      8 State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

                                        4
about the alleged crime. 9 That said, this construct applies only when “the language

of the statute” completely describes the offense. 10 When a statute fails that test, but

defines the offense in ways that would allow the State to prove the defendant

committed the crime by alternate means, the construction we have just discussed

does not apply.11

      In Latulas’s case, the language in both of his indictments closely tracks the

language defining murder in section 19.02(b)(1) of the Penal Code. 12 Under section

19.02(b)(1), the State may prove a defendant committed murder by showing he

“intentionally or knowingly cause[d] the death of an individual[.]” 13 While the State

may choose to include language in an indictment that exceeds the allegations that it

must prove in the defendant’s trial, nothing in section 19.02(b)(1) requires the State

to prove that the defendant used an object, such as a knife, to show the defendant is

guilty of committing murder. 14 Stated another way, the State may prove a murder

occurred under section 19.02(b)(1) by proving the defendant intentionally or

knowingly caused the death of an individual. Here, each indictment alleges Latulas

committed murder.


      9 State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
      10 Id. (cleaned up).
      11 Id. at 407.
      12 Tex. Penal Code Ann. § 19.02(b)(1).
      13 Id.
      14 Id.

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      The record from the court below shows Latulas’s original indictment alleges:

“Latulas . . . on or before January 10, 2016 in Hardin County, Texas[,] did . . . THEN

AND THERE, INTENTIONALLY OR KNOWINGLY CAUSE THE DEATH OF,

WENDI WARNER, BY STABBING HER WITH A KNIFE[.]” The amended

indictment simply added the phrase a deadly weapon right after the last word in the

original indictment. Thus, both the original and amended indictment closely track

the elements required to prove the crime of murder under section 19.02(b)(1), and

the section is not ambiguous.15 The fact a defendant uses an object to commit the

murder or uses an object as a deadly weapon are not elements of the crime of murder

under section 19.02(b)(1). 16 Stated another way, a conviction for the crime of murder

does not hinge on the grand jury having found (or not found) the defendant used a

deadly weapon during the murder because the use of a deadly weapon is not an

element of the crime. 17 As a result, Latulas had no right to have a deadly weapon

allegation in his indictment rather than in some other pleading. 18

      Second, Latulas had no right to have the grand jury return an indictment

alleging he used the knife as a deadly weapon to commit the crime. The use of a

deadly weapon is not one of the elements required to prove murder, and the record


      15 Id.
      16 See Mays, 967 S.W.2d at 406-07.
      17 See Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997).
      18 Id. at 34.

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shows the State notified Latulas more than seven weeks before his trial it would seek

a deadly weapon finding when the trial court called the case. So Latulas received

written notice that the State intended to secure a deadly weapon finding in his trial.19

Latulas has not even argued the State did not provide him with sufficient written

notice in some form that it intended to seek a deadly weapon finding in his trial. 20

      For the reasons explained above, we overrule Latulas’s sole issue and affirm

the trial court’s judgment.

      AFFIRMED.


                                                      _________________________
                                                           HOLLIS HORTON
                                                                Justice


Submitted on November 19, 2019
Opinion Delivered April 29, 2020
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




      19See Ex parte Minott, 972 S.W.2d 760, 761 (Tex. Crim. App. 1998).
      20See Brooks, 957 S.W.2d at 34; Ex parte Patterson, 740 S.W.2d 766, 776
(Tex. Crim. App. 1987), overruled on other grounds by Ex parte Beck, 769 S.W.2d
525 (Tex. Crim. App. 1989).

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