                                  NO. 07-12-0310-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  FEBRUARY 5, 2013


                                LEROY SCOTT ROACH,

                                                                   Appellant
                                            v.

                                THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

          FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY;

      NO. 11-012-K26; HONORABLE BILLY RAY STUBBLEFIELD, PRESIDING


                                Memorandum Opinion


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

      Leroy Scott Roach was adjudicated guilty of assault on a family member and

sentenced to thirty years imprisonment and assessed a fine of $5,000. The trial court

initially deferred the adjudication of his guilt and placed him on community supervision.

Thereafter, the State moved the court to adjudicate guilt, which the trial court did. Now

appellant asserts that the trial court erred in permitting the State to amend one of the

allegations in its motion to adjudicate. We affirm the judgment.
       Among other things, the State alleged, in its motion to adjudicate, that “[o]n or

about the 21st day of May, 2011, . . . the [appellant] intentionally, knowingly or recklessly

caused bodily injury to Lorraine Anna Cortez, a member of the defendant’s family or

household, or a person with whom the defendant had a dating relationship, by impeding

the normal breathing or circulation of the blood of the [sic] by applying pressure to her

throat or neck by blocking her nose or mouth.”                    (Emphasis added.)          At the

commencement of the hearing on the motion, the State sought permission to remove

the highlighted words “of the.” Appellant objected on the basis that it constituted an

amendment and that the allegation failed to give him notice of whose breathing or

circulation had been impeded. 1

       Surplusage is unnecessary language that is not legally necessary to constitute

the offense in the charging instrument. Whetstone v. State, 786 S.W.2d 361, 364 (Tex.

Crim. App. 1990). Its removal from the instrument is not prohibited unless it describes

an element of the offense. Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000).

       Next, when the State seeks to revoke probation because the defendant allegedly

committed another offense, it need not describe the offense within its motion with the

same specificity applicable to averring an offense in an indictment. See Bradley v.

State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980). Here, the only language being

deleted is “of the” which is not in itself an element of the offense. With the language

deleted, the allegation is that appellant impeded the normal breathing or circulation of

the blood by applying pressure to her throat or neck by blocking her nose or mouth.

Each reference to “her” clearly refers to Lorraine Cortez and thus, the deleted language

       1
       Such a contention leads one to wonder whether there were others whom he tried to injure on the
same day via the same method.
                                                 2
necessarily refers to the circulation of Lorraine’s blood, is mere surplusage, and is not

descriptive of an element. Simply put, the accusation was more than ample to afford

appellant fair notice of the offense alleged and whom he tried to injure.

       More importantly, it matters not to the disposition of this appeal whether the trial

court's decision at issue was right or wrong. This is so because the State alleged and

the trial court found that appellant violated numerous conditions of his community

supervision.   None of the findings, other than that addressed above, have been

questioned here. Given that one ground is sufficient to support the adjudication of

appellant’s guilt, Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980),

appellant's conviction must stand irrespective of any complaint regarding the one

amended allegation.

       Accordingly, the judgment is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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