                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00119-CR

DANNY DEMON AUSTIN,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                             From the County Court
                              Navarro County, Texas
                            Trial Court No. C34404-CR


                       MEMORANDUM OPINION


      Appellant, Danny Demon Austin, was convicted of unlawful possession of a

controlled substance in an amount less than one gram in a drug-free zone and was

sentenced to a sixteen-year prison term in the Institutional Division of the Texas

Department of Criminal Justice. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(d) (West

Supp. 2014). On original submission, this Court affirmed the judgment of the trial court.

See generally Austin v. State, No. 10-13-00119-CR, 2014 Tex. App. LEXIS 8318 (Tex. App.—

Waco July 31, 2014), rev’d, No. PD-1431-14 (Tex. Crim. App. Mar. 18, 2015). The Court of
Criminal Appeals reversed this Court’s decision and remanded for a consideration of the

sufficiency of the evidence supporting appellant’s conviction and, as a threshold matter,

whether the second indictment was successfully amended in this case. Austin v. State,

No. PD-1431-14 (Tex. Crim. App. Mar. 18, 2015). Because we conclude that the second

indictment was properly amended and that the evidence supporting appellant’s

conviction is sufficient, we affirm the judgment of the trial court.

                                       I.   THE INDICTMENTS

        On original submission and in the Court of Criminal Appeals, appellant

contended that the evidence supporting his conviction is insufficient because the second

indictment        was not   properly    amended to    reflect   that   appellant   possessed

methamphetamine within 1,000 feet of the “Boys & Girls Club of Navarro County,” and

because the State did not present any evidence indicating that appellant possessed

methamphetamine within 1,000 feet of the Little Angels Daycare. See Austin, 2014 Tex.

App. LEXIS 8318, at **11-12. Appellant emphasized that the record does not sufficiently

demonstrate that the indictment was properly amended; and as such, the original

indictment did not provide accurate information regarding the charges against him, as

required by article 1, section 10 of the Texas Constitution. See TEX. CONST. art. 1, § 10. In

essence, the threshold question before this Court is whether the second indictment, which

referenced the “Boys & Girls Club of Navarro County,” successfully amended the prior

indictment, which referenced the Little Angels Daycare.




Austin v. State                                                                        Page 2
A.      Amending an Indictment

        Under the Texas Constitution, a defendant has the right to be charged by

indictment for felony offenses. Id.; see Riney v. State, 28 S.W.3d 561, 564 (Tex. Crim. App.

2000). Article 28.10 of the Code of Criminal Procedure states that: “After notice to the

defendant, a matter of form or substance in an indictment may be amended at any time

before the trial on the merits commences.” TEX. CODE CRIM. PROC. ANN. art. 28.10(a)

(West 2006). The article further notes: “An indictment or information may not be

amended over the defendant’s objection as to form or substance if the amended

indictment or information charges the defendant with an additional or different offense

or if the substantial rights of the defendant are prejudiced.” Id. art. 28.10(c). With regard

to the method of amendment, article 28.11 provides that: “All amendments of an

indictment or information shall be made with the leave of the court and under its

direction.” Id. art. 28.11 (West 2006).

B.      Ward v. State

        In Ward, the Court of Criminal Appeals addressed how an indictment should be

amended. See generally 829 S.W.2d 787 (Tex. Crim. App. 1992). The Ward Court reasoned

that, pursuant to article 28.11, when the State wishes to amend a pleading, it must get the

trial court’s permission. See id. at 793 (citing TEX. CODE CRIM. PROC. ANN. art. 28.11).

Accordingly, the motion is but only a request, not an amendment. See Perez v. State, 429

S.W.3d 639, 642 (Tex. Crim. App. 2014). Moreover, “[t]he ruling on the motion is only the

court’s leave to amend, and is not the amendment.” Id. (citing Ward, 829 S.W.2d at 793).

Ultimately, the Ward Court held that the amendment is the actual alteration of the

Austin v. State                                                                        Page 3
charging instrument and that the physical alteration of the charging instrument is

consistent with the accused’s right to be informed of the nature of the charges against

him from the face of the indictment. Id. (citing Ward, 829 S.W.2d at 793-94).

C.      Riney v. State

        In 2000, the Court of Criminal Appeals reexamined its holding in Ward. See Riney,

28 S.W.3d at 563. The Riney Court stated that “resolutely clinging to the notion that an

amendment can be accomplished only be the physical interlineation of the original

indictment provides a defendant with the opportunity to subvert a process of which he

was fully aware and had affirmatively acknowledged.” Id. at 565. Essentially, the Riney

Court overruled Ward to the extent that Ward required physical interlineation to be the

only method of amending an indictment. Id. at 566. Instead, the Court of Criminal

Appeals determined that the proffering of an amended photocopy of the indictment was

an acceptable method of amending an indictment. Id.

D.      Perez v. State

        The Court of Criminal Appeals revisited this issue in 2014 with Perez. See generally

429 S.W.3d at 639. In Perez, the appellant was originally charged in an eleven-count

indictment. Id. at 640. On the day before trial, the State moved to amend the indictment

by replacing the existing eleven counts with five counts. Id. Included in the motion was

the following statement: “The Defendant, by and through his attorney of record, has been

notified that the State is seeking amendment of the indictment, agrees to the amendment

and waives ten (10) days[‘] notice to prepare for trial . . . .” Id. The motion was signed by

appellant and his attorney as “Agreed.” Id. At the hearing on the motion, appellant’s

Austin v. State                                                                        Page 4
trial counsel stated that he had no objections to the amendments and announced that they

were waiving the statutorily-allowed extra time. Id. Despite counsel’s statements, the

trial court swore in and took testimony from appellant, wherein he indicated his

agreement with the motion. Id. at 640-41. With regard to the method of amendment, the

parties had a discussion, which culminated in the trial court stating that: “I think at the

point we get to the reading of the indictment in front of the jury, we can just read the very

beginning part and then just flip back to the replacement page.” Id. at 641.

        On appeal, Perez objected for the first time to the indictment’s amendment. Id.

Specifically, he argued that the indictment was not properly amended because there was

no physical alteration or interlineation on the actual face of the indictment, and because

there was no copy of the indictment. Id. at 641, 643. Perez urged the Court of Criminal

Appeals to retreat from Riney back to Ward’s strict holding. Id. at 643. In declining to do

so, the Perez Court concluded,

        We are persuaded by the State. None of the dangers that Ward sought to
        prevent are present in this case. The appellant was given actual notice of
        the proposed amendments and very clearly stated that he had no
        objections. These charges did not add any new charges or alter the
        language of the old charges. Instead, they eliminated six counts (possibly
        to the benefit of the appellant) and reorganized those remaining. Such
        alterations do not invade the province of the grand jury because the grand
        jury returned a true bill on all of the charges for which the appellant was
        tried and ultimately convicted.

Id.

E.      Discussion

        Here, the State charged appellant with unlawful possession of a controlled

substance in an amount less than one gram in a drug-free zone. See Austin, 2014 Tex.

Austin v. State                                                                        Page 5
App. LEXIS 8318, at **2-3.            However, the initial indictment alleged that appellant

unlawfully possessed cocaine in an amount less than one gram and within 1,000 feet of

the Little Angels Daycare located at 219 North 5th Street in Corsicana, Texas. Id. at **2-3.

On June 29, 2012, the State filed a motion to amend the indictment to reflect that the

controlled substance in question was methamphetamine, not cocaine. Id. at *3. The trial

court granted this motion to amend the indictment. Id.

        Subsequently, on November 27, 2012, the State filed a second motion to amend the

indictment to reflect that the offense was committed within 1,000 feet of the “Boys & Girls

Club of Navarro County, located at 1000 G.W. Jackson Ave.,” rather than the Little Angels

Daycare. Id. This motion and the accompanying proposed amended indictment were

served on appellant’s counsel on November 27, 2012. Thereafter, on December 12, 2012,

the trial court conducted a hearing on the State’s second motion to amend the indictment.

Though not included in the record on original submission, the reporter’s record of the

hearing indicates that the trial court granted the State’s second motion to amend over

appellant’s objection.1 Additionally, as we noted on original submission, the docket sheet




        1In response to the State’s assertion on remand that a transcript of the hearing on the State’s second
motion to amend the indictment exists, we ordered the court reporter to produce the transcript from the
hearing. For some unknown reason, this transcript was not included in the record on original submission.

         In any event, the transcript from the hearing shows that appellant objected to the State’s second
motion to amend the indictment on the ground that the amendment would charge him with a different
offense and thereby prejudiced his substantial rights. The State argued that the amendment merely shifted
from the subsection addressing daycare centers to the subsection pertaining to youth centers—both of
which are considered drug-free zones. See generally TEX. HEALTH & SAFETY CODE ANN. § 481.134 (West
Supp. 2014). After the State explained that it merely sought to change the portion of the indictment relating
to the location of the offense, and after affirming that the “Boys & Girls Club of Navarro County” was
discussed in the offense report, the trial court granted the State’s second motion to amend the indictment.

Austin v. State                                                                                        Page 6
indicated that the trial court granted the State’s second motion to amend the indictment.

Id. at *12. And though “no formal amendment was made by changing the indictment

itself,” see id., the Clerk’s Record contains the State’s second motion to amend the

indictment, which included a copy of the amended indictment.

          Based on our review of the record, we conclude that the State complied with the

appropriate provisions for amending an indictment, as contained in article 28.10 of the

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 28.10.2 Furthermore,

similar to Riney, the State in this case proffered an amended photocopy of the indictment

with their second motion to amend the indictment, and after a hearing in which appellant

participated, the trial court granted the State’s motion. See 28 S.W.3d at 565-66.3 And like



    2   Article 28.10 of the Code of Criminal Procedure provides that:

    (a) After notice to the defendant, a matter of form or substance in an indictment or information
        may be amended at any time before the date the trial on the merits commences. On the
        request of the defendant, the court shall allow the defendant not less than 10 days, or a
        shorter period if requested by the defendant, to respond to the amended indictment or
        information.

    (b) A matter of form or substance in an indictment or information may also be amended after
        the trial on the merits commences if the defendant does not object.

    (c) An indictment or information may not be amended over the defendant’s objection as to
        form or substance if the amended indictment or information charges the defendant with
        an additional or different offense or if the substantial rights of the defendant are
        prejudiced.

TEX. CODE CRIM. PROC. ANN. art. 28.10 (West 2006).

          3   The Riney Court specifically stated:

          It is acceptable for the State to proffer, for the trial court’s approval, its amended version
          of a photocopy of the original indictment. If approved, the amended photocopy of the
          original indictment need only be incorporated into the record under the direction of the
          court, pursuant to Article 28.11, with the knowledge and affirmative assent of the defense.

Austin v. State                                                                                            Page 7
Perez, we are not convinced that any of the dangers that Ward sought to prevent are

present in this case. See 429 S.W.3d at 643. Appellant was given actual notice of the

proposed amendment, and at a hearing, appellant articulated his objection to the

amendment; therefore, we reject his arguments on appeal that he did not know whether

the indictment was amended and that he was not properly noticed of the extent of the

amendment. Accordingly, we conclude that the indictment was properly amended for a

second time in this case. See Perez, 429 S.W.3d at 643; Riney, 28 S.W.3d at 566; Ward, 829

S.W.2d at 793-94.

                                    II.      SUFFICIENCY OF THE EVIDENCE

        Because we have concluded that the indictment was properly amended, we must

now analyze appellant’s sufficiency argument under the amended indictment, which

stated that the offense occurred within 1,000 feet of the “Boys & Girls Club of Navarro

County, located at 1000 G.W. Jackson Ave.”

A.      Applicable Law

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that

        This version of the indictment would then become the “official” indictment in the case,
        and it would continue to state, presumably in “plain and intelligible” language, the nature
        and cause of the accusation. Such steps comply with all statutory requisites and faithfully
        preserve the functions of an indictment, i.e., the trial court retains its jurisdiction, and the
        defendant is still kept abreast of the charges against him/her and has adequate information
        to prepare an appropriate defense.

28 S.W.3d 561, 565-66 (Tex. Crim. App. 2000).

Austin v. State                                                                                            Page 8
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:      “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

Austin v. State                                                                               Page 9
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.      Discussion

        To prove unlawful possession of a controlled substance, the State must prove that:

(1) the accused exercised control, management, or care over the substance; and (2) the

accused knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d

402, 405 (Tex. Crim. App. 2005); see also TEX. HEALTH & SAFETY CODE ANN. § 481.115(b)

(West 2010). Furthermore, to prove appellant committed this offense in a drug-free zone,

the State was required to prove that the offense was committed “in, on, or within 1,000

feet of the premises of a school, the premises of a public or private youth center, or a

playground . . . .” See TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1).

        On the day in question, narcotics officers from the Navarro County Drug Task

Force were assisting other officers with an incident at 113 North 4th Street in Corsicana,

Texas. While at the scene, two of the narcotics officers, Sergeant Clint Andrews and

Detective Garrett Harrell, observed appellant standing across the street. Both Sergeant

Andrews and Detective Harrell were familiar with appellant from prior encounters.

Furthermore, both Sergeant Andrews and Detective Harrell testified at trial that they

knew that appellant had a warrant out for his arrest. This knowledge was based on a

warrant list that was distributed at the police department and based on confirmation with

dispatch.



Austin v. State                                                                    Page 10
        Subsequently, Sergeant Andrews and Detective Harrell made contact with

appellant. The officers confirmed appellant’s arrest warrant with dispatch and notified

appellant that there was a warrant out for his arrest. Thereafter, the officers arrested

appellant; however, while in the process of the arrest, appellant pulled items from his

pocket and attempted to give the items to his girlfriend. Among those items was a

Marlboro black box of cigarettes. Sergeant Andrews intervened and seized the cigarette

box.    Inside the cigarette box, Sergeant Andrews located several blue baggies that

resembled “narcotics baggies” with “king’s crown” logos. The officers believed that one

of the baggies contained methamphetamine. Subsequent testing revealed that one of the

baggies contained a trace amount of methamphetamine.               Additionally, the State

presented witnesses who identified the “Boys & Girls Club of Navarro County” and who

testified that appellant was in possession of the methamphetamine within 1,000 feet of

the “Boys & Girls Club of Navarro County.”

        Based on the foregoing, we conclude that the record contains sufficient evidence

to demonstrate that appellant knowingly exercised control, management, and care over

the methamphetamine within 1,000 feet of the “Boys & Girls Club of Navarro County”—

a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1); see also Jackson,

443 U.S. at 318-19, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We

therefore overrule appellant’s second issue on appeal.

                                   III.   MOTION TO SUPPRESS

        On remand, appellant elected to rely on his original briefing. The State, on the

other hand, opted to file supplemental briefing in light of the Court of Criminal Appeals’s

Austin v. State                                                                       Page 11
decision on original submission.       Nevertheless, in his original brief, appellant also

challenged the trial court’s denial of his motion to suppress, arguing that the State cannot

rely on the inventory exception to the probable-cause requirement because the State

failed to produce a warrant authorizing appellant’s arrest. We have already addressed

this issue on original submission, and our analysis has not been challenged by appellant

at the Court of Criminal Appeals or on remand. See Austin, 2014 Tex. App. LEXIS 8318,

at **5-11. Therefore, in the interest of judicial economy, we stand on our initial analysis

of this issue and, as such, overrule appellant’s first issue. See id.

                                        IV.     CONCLUSION

        We affirm the judgment of the trial court.




                                                   AL SCOGGINS
                                                   Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 10, 2015
Do not publish
[CR25]




Austin v. State                                                                      Page 12
