                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-17-00164-CR

RICKY LAYFIELD A/K/A RICKEY LAYFIELD,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                            From the 52nd District Court
                               Coryell County, Texas
                            Trial Court No. Fisc 14-22143


                           MEMORANDUM OPINION


       In two issues, appellant, Ricky Layfield a/k/a Rickey Layfield, challenges his

conviction for aggravated sexual assault of a child.        See TEX. PENAL CODE ANN. §

22.021(a)(2)(B) (West Supp. 2018). Specifically, Layfield contends that the trial court erred

by: (1) allowing the State to amend the indictment over his objection and then refusing

to grant him a ten-day reset of the trial; and (2) denying his oral motion to suppress.

Because we overrule both issues, we affirm.
                                    I.      THE INDICTMENT

        In his first issue, Layfield argues that the trial court erred by allowing the State to

amend the indictment on the day of trial to reflect a name change—from “Michael J.

Gardner, Jr.” to “Ricky Layfield.” According to Layfield, this change constituted an

amendment to the indictment and entitled him to a ten-day reset of the trial.

        On February 25, 2014, an indictment was issued against Michael J. Gardner, Jr.,

charging him with the aggravated sexual assault of K.H. The caption, however, stated

that the indictment referred to Ricky Layfield.

        Following his arrest on this charge, Layfield filed a Waiver of Arraignment, which

was dated February 28, 2014, and was styled “The State of Texas vs. Ricky Layfield.”

Additionally, the waiver also noted the following: “Defendant would further state to the

Court that the Defendant’s name is correctly set forth and spelled as follows: Ricky

Layfield.”

        Thereafter, the State filed a motion to amend the indictment, seeking to change the

name on the indictment from “Michael J. Gardner, Jr.” to “Ricky Layfield.” This motion

was not ruled on by the trial court until trial.

        Two trial settings occurred in the interim, and Layfield did not object to the

indictment at either setting. On February 14, 2017, prior to the State’s opening statement,

the State requested that the trial court address the pending motion to amend the

indictment. In particular, the State argued that the indictment should be corrected to


Layfield v. State                                                                        Page 2
reflect Layfield’s true name pursuant to article 26.08 of the Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 26.08 (West 2009).

        Layfield objected to the State’s attempt to amend the indictment, arguing that the

change constituted an amendment to the indictment pursuant to article 28.10 of the Code

of Criminal Procedure and, thus, entitled him to a ten-day reset of the trial. See id. art.

28.10 (West 2006). The State countered that there was no reason to delay the trial court

because the case had been pending for two-and-a-half to three years and Layfield could

not have been surprised by the State’s request.

        Ultimately, the trial court granted the State’s request to amend the indictment and

denied Layfield’s request for a ten-day reset of the trial. Specifically, in its order, the trial

court noted the following:

        On the 3 day of Feb., 2017, the State’s Motion to Amend Indictment was
        considered by the Court and the defendant waived any objection to the
        amended indictment.

                IT IS THEREFORE ORDERED THAT the State’s Motion to Amend
        Indictment is GRANTED and that the original indictment shall be read as
        set forth in the State’s Motion to Amend the Indictment.

Thereafter, the State interlineated Layfield’s name in place of Gardner’s. Afterwards, the

indictment was read to Layfield, who pleaded “Not guilty” to the charge.

        The purpose of naming the accused in the indictment is for identification, which

is “a matter of form which can easily be altered at the election of the accused.” Jones v.

State, 504 S.W.2d 442, 444 (Tex. Crim. App. 1974); see TEX. CODE CRIM. PROC. ANN. art.


Layfield v. State                                                                         Page 3
26.08. The act of changing the name of the defendant in the indictment is a ministerial

act. See Jones, 504 S.W.2d at 442; see also Kelley v. State, 823 S.W.2d 300, 302 (Tex. Crim.

App. 1992). Moreover, changing the defendant’s name is not an amendment to the

indictment for purposes of article 28.10 of the Code of Criminal Procedure. See Kelley, 823

S.W.2d at 302; see also Wynn v. State, 864 S.W.2d 539, 541 (Tex. Crim. App. 1993).

        Nevertheless, Layfield contends that the Kelley case and prior related cases are

distinguishable from the instant case because those cases involved corrections to

indictments that concerned names that a defendant was known by or where the

indictment only contained the defendant’s last name. Layfield argues that the change to

the indictment in this case is an amendment because the amended indictment charges an

entirely different person. We are not persuaded by this argument.

        Subsequent to the Kelley decision, other Texas courts have concluded that a name

change in an indictment, such as the change involved here, is a ministerial act that falls

under article 26.08 and is not an amendment under article 28.10. See Wynn, 864 S.W.2d

at 540 (concluding that a name change in an indictment from “Emmett James a/k/a James

Jackson” to “Emmett James Wynn a/k/a James Jackson” was not an amendment under

article 28.10, but rather was a ministerial act under article 26.08); Friesel v. State, 931

S.W.2d 587, 591-92 (Tex. App.—San Antonio 1996, pet. ref’d) (involving a two-paragraph

indictment that correctly listed the defendant’s name in the first paragraph, but

incorrectly listed a co-defendant’s name in the second paragraph and concluding that


Layfield v. State                                                                     Page 4
correcting the second paragraph to show the defendant’s name was “a purely ministerial

correction” under article 26.08 and not an amendment under article 28.10).

        The Wynn, Kelley, and Friesel cases demonstrate that it does not matter whether the

name change is to correct spelling, an alias, a nickname or last name, or to correct an

entirely different name; rather, so long as the indictment charges a “person” with an

offense, a name change in an indictment is a ministerial act that does not constitute an

article 28.10 amendment. See Wynn, 864 S.W.2d at 540; Kelley, 823 S.W.2d at 302; Friesel,

931 S.W.2d at 591-92; see also TEX. CODE CRIM. PROC. ANN. art. 26.08. Therefore, we reject

Layfield’s contention that the name change in this case amounted to an article 28.10

amendment to the indictment. And because the name change involved here does not

implicate article 28.10, we cannot say that the trial court erred by denying Layfield’s

request for a ten-day reset of the trial. See TEX. CODE CRIM. PROC. ANN. art. 28.10.

Accordingly, we overrule his first issue.

                              II.    ORAL MOTION TO SUPPRESS

        In his second issue, Layfield asserts that the trial court erred by denying his oral

motion to suppress evidence because the search warrant only permitted the police to

seize bodily fluids, not take a buccal swab, which “is a non-invasive tissue sample taken

from [the] inside of a person’s cheeks.”

        To preserve a complaint for appellate review, a defendant must raise the

complaint to the trial judge by a timely request, objection, or motion that specifically


Layfield v. State                                                                     Page 5
identifies the grounds for the ruling he seeks. TEX. R. APP. P. 33.1(a)(1)(A). A defendant’s

appellate contention must comport with the specific objection made at trial. Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection grounded on one legal

basis may not be used to support a different legal theory on appeal. Rezac v. State, 782

S.W.2d 869, 870 (Tex. Crim. App. 1990). The reviewing court will not consider errors,

even of constitutional magnitude, not called to the trial court’s attention. Broxton v. State,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

        At trial and in his appellant’s brief, Layfield argued for the suppression of DNA

evidence obtained from a buccal swab conducted by Sergeant Armando Paniagua of

Coryell County Sheriff’s Office.      Specifically, at trial, Layfield contended that the

complained-of evidence should be suppressed because Sergeant Paniagua did not

include “bodily fluids” in Section 3 of the application. However, on appeal, Layfield

asserts that although the search warrant authorized the collection of a buccal swab for

“bodily fluids,” a buccal swab does not collect a “bodily fluid,” but rather collects a tissue

sample, which was not specified in the search warrant. In other words, the argument

Layfield makes on appeal does not comport with the argument he made at the

suppression hearing. And because Layfield’s argument on appeal does not comport with

the argument made during the suppression hearing, Layfield failed to preserve error in

this issue. See TEX. R. APP. P. 33.1(a)(1)(A); see also Wilson, 71 S.W.3d at 349; Broxton, 909

S.W.2d at 918; Rezac, 782 S.W.2d at 870. Accordingly, we overrule Layfield’s second issue.


Layfield v. State                                                                       Page 6
                                          III.    CONCLUSION

        Having overruled both of Layfield’s issues on appeal, we affirm the judgment of

the trial court.



                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Senior Justice Scoggins1
Affirmed
Opinion delivered and filed February 20, 2019
Do not publish
[CRPM]




        1
         The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment
of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West
2013).

Layfield v. State                                                                                 Page 7
