Affirmed and Opinion filed July 23, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00262-CR

                        ISMAEL TREVINO, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1416917

                                OPINION

      A jury convicted appellant Ismael Trevino of aggravated assault of a
household member and assessed punishment at twenty-seven years’ confinement.
See Tex. Penal Code Ann. § 22.02(a)(b)(1). In two issues, appellant contends
(1) the evidence is legally insufficient to prove that the complainant was a member
of appellant’s family, and (2) appellant suffered egregious harm from an allegedly
erroneous jury instruction that authorized a conviction if appellant assaulted a
member of appellant’s household.
       The resolution of both of appellant’s issues depends on the alleged voidness
of the amendment of the indictment on the day of trial, before jury selection, to
replace the word “family” with the word “household” when describing appellant’s
relationship with the complainant.1 Appellant contends the hypothetically correct
jury charge for measuring the sufficiency of the evidence would require proof that
the complainant was a member of appellant’s family as alleged in the original
indictment because the amendment was “void”; and appellant contends the jury
charge was erroneous because it authorized a conviction if the State proved that the
complainant was a member of appellant’s household. It is undisputed that there is
evidence the complainant was a member of appellant’s household and not a
member of appellant’s family.

       We first address whether the amended indictment was void and then address
appellant’s two issues. Ultimately, we affirm the trial court’s judgment.

                    I.      AMENDED INDICTMENT WAS NOT VOID

       Amendments to indictments are governed by Article 28.10 of the Texas
Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 28.10. A plain
reading of the statute does not contemplate the amendment of an indictment on the
day of trial prior to the commencement of the trial. See Sodipo v. State, 815
S.W.2d 551, 556 n.3 & n.4 (Tex. Crim. App. 1990) (op. on reh’g). Thus, a trial
court errs by allowing the State to amend the indictment on the day of trial before
jury selection. See id. at 555–56; see also Hicks v. State, 864 S.W.2d 693, 694
(Tex. App.—Houston [14th Dist.] 1993, no pet.) (“The Court of Criminal Appeals

       1
         It is undisputed that the State sought and obtained leave to amend the indictment about
two weeks before trial, but the State failed to physically amend the indictment at that time. We
do not reach the State’s argument that obtaining leave, itself, constituted an amendment of the
indictment under Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014). See Tex. R. App. P.
47.1.

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has construed Article 28.10 to be an absolute prohibition against amendments to
the indictment on the day of trial before the commencement [of] the trial on the
merits.”).

        However, a defendant waives this error by failing to object to the
amendment. Sodipo, 815 S.W.2d at 556 (citing State v. Murk, 815 S.W.2d 556
(Tex. Crim. App. 1991)). In Murk, the Court of Criminal Appeals held that the
defendant waived this error by not complaining about the error at trial, citing the
predecessor to Rule 33.1 of the Texas Rules of Appellate Procedure. See Murk,
815 S.W.2d at 558; see also Tex. R. App. P. 33.1.

        If a complaint regarding the amendment of the indictment on the day of trial
may be waived by failing to preserve error in the trial court, such an amendment is
merely voidable—it is not void. See Ex parte Patterson, 969 S.W.2d 16, 19–20
(Tex. Crim. App. 1998) (holding that when the indictment is voidable, rather than
void, the defendant must object to the indictment to prevent waiver of the error).

        Having determined that the amended indictment was not void, we now
address appellant’s two issues.2

  II.       SUFFICIENCY OF THE EVIDENCE MEASURED BY AMENDED INDICTMENT

        In his first issue, appellant contends the evidence is insufficient to prove his
guilt under the hypothetically correct jury charge based on the original indictment.



        2
          Appellant does not contend that he objected to the trial court’s allowing the indictment
to be amended, nor does he assert that the amendment itself created reversible error. The record
reflects that when the trial court asked the State if it was amending the indictment on the first day
of trial before jury selection, appellant’s trial counsel responded, “And, Judge, I have to
objection to that.” The trial court said, “Very good, thank you.” In his brief, appellant adds the
word “(sic)” after the first use of the word “to,” and appellant argues that the amended
indictment was void “even if trial counsel expressed no objection.” The State similarly asserts
that appellant’s counsel actually stated he had “no objection.”

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      The sufficiency of the evidence is measured against the hypothetically
correct jury charge, which is a charge “authorized by the indictment.” Curry v.
State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When an appellate court
concludes that an indictment has been erroneously amended over the defendant’s
objection, “the hypothetically correct jury charge must be one which is authorized
by the original indictment, not the amended indictment.” Id.

      However, in Curry the defendant objected to the amendment, and the Court
of Criminal Appeals reviewed the merits of the preserved error before addressing
the sufficiency of the evidence in light of the original indictment. See id. at 397
(noting objection); id. at 398–403 (reviewing amendment error).

      Appellant cites no authority to suggest that this court should review the
sufficiency of the evidence based on the original indictment when the defendant
fails to preserve error related to the amendment of the indictment, and we have
found none. Nothing in Curry suggests that the court would have referred to the
original indictment even if the defendant had failed to preserve error related to the
amendment.

      Here, because the amendment was not void, the hypothetically correct jury
charge should be based on the amended indictment, which alleged that the
complainant was a member of appellant’s household. But appellant does not
challenge the sufficiency of the evidence under the amended indictment; he
challenges only the sufficiency of the evidence of the complainant’s status as a
member of appellant’s family.          Because appellant has not challenged the
sufficiency of the evidence to support his conviction under the amended
indictment, we overrule his first issue. 3

      3
         The State does not contend that any variance between the original indictment and
evidence at trial regarding the complainant’s status as a family or household member was
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           III.   JURY CHARGE DETERMINED BY AMENDED INDICTMENT

       In his second issue, appellant contends he suffered egregious harm because
the trial court charged the jury pursuant to the amended indictment, rather than the
original indictment.

       Generally, a jury charge “must not enlarge the offense alleged and authorize
the jury to convict the defendant on a basis or theory permitted by the jury charge
but not alleged in the indictment.” Castillo v. State, 7 S.W.3d 253, 258 (Tex.
App.—Austin 1999, pet. ref’d) (collecting cases). 4 And, “an unobjected-to and
unwaived submission of an unindicted offense in the jury charge followed by a
conviction of that offense meets Almanza’s ‘egregious harm’ standard.” Woodard
v. State, 322 S.W.3d 648, 658 (Tex. Crim. App. 2010) (emphasis added). But, the
“right to a grand jury indictment under state law is a waivable right.” Id. at 657.

       As discussed above, error related to the amendment of an indictment is
“waived by the defendant failing to object at trial to such amendment.” Sodipo,
815 S.W.2d at 556. As discussed above, because the amendment in this case was
not void, appellant waived the error by failing to object and obtain a ruling. See
Tex. R. App. P. 33.1. Therefore, we use the amended indictment for purposes of
analyzing appellant’s second issue.

       The jury charge accurately followed the amended indictment, which alleged
that the complainant was a member of appellant’s household. The trial court did
not err by submitting a jury charge in accordance with the amended indictment.

immaterial for purposes of a sufficiency analysis, so we do not reach that potential issue. See
generally Gollihar v. State, 46 S.W.3d 243, 256–58 (Tex. Crim. App. 2001) (discussing material
variance doctrine; holding that immaterial variances are disregarded under the hypothetically
correct jury charge).
       4
        Again, the State does not contend that any variance between the indictment and jury
charge related to the complainant’s status as a family member or household member was
immaterial. See supra note 3.

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      We overrule appellant’s second issue.

                               IV.   CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.


                               /s/            Sharon McCally
                                              Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — Tex. R. App. P. 47.2(b).




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