                                                                                    PD-1279-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 10/28/2015 10:57:31 AM
                                                                   Accepted 11/2/2015 10:58:35 AM
                                                                                    ABEL ACOSTA
                                 No. PD-1279-15                                             CLERK




             IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                           AUSTIN, TEXAS

                          James Dwayne Hoisager,
                                    Appellant

                                        v.
November 2, 2015
                              The State of Texas
                                     Appellee

          On Appeal from the 424th District Court of Burnet County, Texas
         Cause No. 39,332, The Honorable Daniel H. Mills, Judge Presiding
    On Petition from Discretionary Review from Case Number 03-13-00328-CR
     In the Court of Appeals For the Third Judicial District of Texas at Austin

           Appellant’s Petition for Discretionary Review
                                  Submitted by:

                              David K. Chapman
                                Attorney at Law
                          State Bar Number 04121500
                              Post Office Box 427
                         Karnes City, Texas 78118-0427
                              Tel. (830) 780-3472
                              Fax: (210) 428-6479
                          heartregardless@gmail.com

                       Attorney for James Dwayne Hoisager


                     ORAL ARGUMENT IS REQUESTED
                     Identity of Parties and Counsel

       Pursuant to Rule 38.1(a), Texas Rules of Appellate Procedure, the following
is a complete list of the names and addresses of all parties to the trial court’s final
judgment and their counsel in the trial court, as well as appellate counsel, so the Court
may at once determine whether they are disqualified to serve or should recuse
themselves from participating in the decision of the case and the Clerk of the Court
may properly notify the parties to the trial court’s final judgment or their counsel, if
any, of the judgment and all orders of the Court of Appeals.

                                    Trial Court

                        Hon. Daniel H. Mills, District Judge
                               424th Judicial District
                              Burnet County, Texas
                           1701 E. Polk Street, Suite 74
                               Burnet, Texas 78611

                                     Appellant

                              James Dwayne Hoisager
                                 TDCJ #01857172
                            A.M. "Mac" Stringfellow Unit
                                   1200 FM 655
                                Rosharon, TX 77583

Trial Counsel                                   Appellate Counsel

David Sprinkle                                  David K. Chapman
SBN 00788452                                    Attorney at Law
Michelle Moore                                  SBN 04121500
SBN 00798294                                    P.O. Box 427
Burnet Co. Public Defenders Office              Karnes City, Texas 78118
1008 N. Water St.
Burnet, Texas 78611


                                            i
                                   Appellee

                               The State of Texas

                          Trial and Appellate Counsel

                              Hon. Wiley P. McAfee
                                District Attorney
                          33 and 424th Judicial Districts
                            rd

                                  P.O. Box 725
                               Llano, Texas 78643

Trial Counsel                                Appellate Counsel

Claire Carter                                Gary W. Bunyard
SBN 00792397                                 SBN 03353500
                                             Assistant District Attorney
Blake Ewing                                  P.O. Box 725
SBN 24076376                                 Llano, Texas 78643
Assistant District Attorneys
P.O. Box 725                                 Lisa C. McMinn
Llano, Texas 78643                           SBN 13803300
                                             State Prosecuting Attorney
                                             P.O. Box 13046
                                             Austin, Texas 78711-3046




                                        ii
                                            Table of Contents
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Issues for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

         ISSUE ONE: Did the Court of Appeals Erred by Failing to Address
         Appellant’s Double Jeopardy Claim, and Should This Court Do So on
         Discretionary Review?

         ISSUE TWO: Did the Court of Appeals Err by Holding That the
         Alteration to the Amendment Was an Abandonment Rather than an
         Amendment?

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         The Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         Appellant’s Arguments in the Court of Appeals . . . . . . . . . . . . . . . . . . . . . 3

         The Opinion of the Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         Issue One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         Issue Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                                                             iii
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Service and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appendix – Opinion of the Court of Appeals




                                                              iv
                                     Index of Authorities

Federal Cases                                                                                          Pages

Blockburger v. United States, 284 U.S. 299 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 5

Missouri v. Hunter, 459 U.S. 359 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State Cases                                                                                            Pages

Aekins v. State, 447 S.W.3d 270 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . 5, 6

Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . 7, 8

Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975) . . . . . . . . . . . . . . . . . . . 4

Chen v. State, 410 S.W.3d 394
(Tex. App. – Houston [1st Dist.] 2013, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App.) . . . . . . . . . . . . . . . . . . . . . . 4, 14

Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997) . . . . . . . . . 10, 12, 13, 14

Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . 7

Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010). . . . . . . . . . . . . . 5, 6, 7

Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . 8

Ex Parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . 6

Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . 5

Ex parte Marascio, Nos. WR-80,939-01, WR-80,939-02, WR-80,939-03
(Tex. Crim. App. Oct. 7, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . 5, 6, 7

                                                       v
Gollihar v. State, 46 S.W.3d 3d 243 (Tex. Crim. App. 2001) . . . . . . . . . 4, 8, 9, 10

Hall v. State, 62 S.W.3d 918 (Tex. App. - Dallas 2001, pet. ref’d) . . . . . . . . . . . . 9

Hoisager v. State, No. 03-13-00328-CR, 2015 Tex. App. LEXIS 7402
(Tex. App. - Austin July 17, 2015)
(mem. op., not designated for publication);
Mem. Op. (Tex. App. - Austin July 17, 2015) . . . . . . . . . . . . . . . . . . . . 3, 4, 8, 12

Mason v. State, 740 S.W.2d 517
(Tex. App. - Houston [1st Dist.] 1987, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Mason v. State, 905 S.W.2d 570 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . 14

Moore v. State, 54 S.W.3d 529 (Tex. App. – Fort Worth 2001, pet. ref’d) . . . . . . 9

Prudholm v. State, 330 S.W.3d 590 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . 14

Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . 10

Studer v. State, 799 S.W.3d 263 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . 12

Federal Constitution                                                                                           Pages

U.S. Const. am. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7

U.S. Const. am. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. Const. am. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15

Texas Constitution, Statutes, and Rules                                                                        Pages

Tex. Const. art. I, §10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15

Tex. Code Crim. P. art. 1.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15


                                                          vi
Tex. Code Crim. P. art. 28.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 10, 15

Tex. Code Crim. P. art. 28.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                     Statement Regarding Oral Argument

        The Court’s opinions in Ex parte Marascio, Nos. WR-80,939-01, WR-80,939-

02, WR-80,939-03(Tex. Crim. App. Oct. 7, 2015) make it clear that oral argument can

add nothing of importance on the issue of double jeopardy. However, Appellant urges

that the Court entertain argument on the issue of amendments to and abandonments

from indictments. The purpose of these categories was to assure that the substance of

indictments be respected. Although Appellant contends his indictment was harmfully

amended even under current law, Appellant questions whether the categorical

approach to abandonments has overshadowed the emphasis on substance, first set out

in Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997), overruled on other

grounds in Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) and Gollihar v.

State, 46 S.W.3d 3d 243 (Tex. Crim. App. 2001).

                                   Statement of the Case
        Appellant was charged in a two-count indictment with the aggravated

kidnapping and aggravated assault of his ex-wife (CR 5-6). A jury found him guilty

of both charges, made an affirmative finding of a deadly weapon as to both, and



                                                      vii
assessed his punishment at 10 years imprisonment on each count (CR 40-43, 51-52).

The court ordered that the sentences were to run concurrently (CR 53, 55). Notice of

appeal was timely filed (CR 53, 55, 59).

                     Statement of Procedural History

        On October 25, 2013, Appellant filed his original brief. The State filed its reply

brief on November 14, 2013. On November 22, 2013, the court of appeals received

Appellant’s supplemental brief in which, for the first time, he argued the double

jeopardy ground he presents in this petition; on the same date the Court filed his

motion for leave to file that brief. On December 2, 2013, the Court denied Appellant’s

motion for leave to file Appellant’s supplemental brief.

        On July 17, 2015, the court of appeals affirmed Appellant’s case. Hoisager v.

State, No. 03-13-00328-CR, 2015 Tex. App. LEXIS 7402 (Tex. App. - Austin July

17, 2015) (mem. op., not designated for publication). On August 3, 2015, Appellant

filed a timely motion for rehearing. The motion was overruled on August 28, 2015.

This petition is timely if filed, after one of extension of time, on or before October 28,

2015.




                                            viii
                           Issues for Review
ISSUE ONE: Did the Court of Appeals Erred by Failing to Address Appellant’s
Double Jeopardy Claim, and Should This Court Do So on Discretionary Review?

GROUND TWO: Did the Court of Appeals Err by Holding That the Alteration to the
Indictment Was an Abandonment Rather than an Amendment?




                                      ix
                                No. PD-1279-15


            IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                          AUSTIN, TEXAS


                         James Dwayne Hoisager,
                                   Appellant

                                       v.

                             The State of Texas,
                                    Appellee



         On Appeal from the 424th District Court of Burnet County, Texas
        Cause No. 39,332, The Honorable Daniel H. Mills, Judge Presiding
   On Petition from Discretionary Review from Case Number 03-13-00328-CR
    In the Court of Appeals For the Third Judicial District of Texas at Austin



          Appellant’s Petition for Discretionary Review

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      NOW COMES James Dwayne Hoisager, Appellant, through David K.

Chapman, his attorney of record, and respectfully presents his Petition for

Discretionary Review, in which he would show the Court as follows:




                                        1
                                     Argument

FACTUAL BACKGROUND

      The evidence showed that Appellant went to his ex-wife’s home, threatened her

with a knife, kept her at her home with the aid of that knife, then took her to a church

with the knife close at hand, where they spoke with the minister. RR3:40-41, 49, 52-

56, 62-67, 72-74, 78, 80-84; RR4: 11.

THE INDICTMENT

      The two-count indictment charged Appellant with the aggravated kidnapping

and aggravated assault of his ex-wife, both offenses alleged to have arisen on the

same date from the same events:

              [Appellant] “did then and there intentionally and knowingly abduct
      [complainant] with the intent to prevent the liberation of [complainant] by
      using and threatening to use deadly force against [complainant] and
      [Appellant] did then and there restrain [complainant] by restricting the
      movements of [complainant] without the consent of [complainant] so as to
      interfere substantially with the liberty of [complainant] by confining
      [complainant] to her home, and [Appellant] did then and there use and exhibit
      a deadly weapon, to-wit: a knife, during the commission of the said offense.

       [Appellant] “did then and there intentionally and knowingly threaten
      [complainant] with imminent bodily injury, and [Appellant] did then and there
      use and exhibit a deadly weapon, to-wit: a knife, during the commission of said
      offense”.

CR:5-6 (Emphasis and omissions added).

                                           2
       Appellant’s first issue relies on the italicized language in both counts of the

indictment; the second, on the bold-faced language in count one. Both deal with the

State’s misuse of the indictment process to deprive Appellant of a fair trial.

APPELLANT’S ARGUMENTS IN THE COURT OF APPEALS

       Appellant argued that the trial court erred by granting the State’s request to

amend the indictment and refusing his request for ten days to respond. See Tex. Code

Crim. P. 28.10(b). Br. of Appellant at 5-18.

       For the first time in a supplemental brief1 Appellant contended that his

conviction for aggravated assault was barred by his conviction for aggravated

kidnapping.2 Supp. Br. of Appellant at 2-11.

THE OPINION OF THE COURT OF APPEALS

       The court held that the alteration of the indictment was an abandonment, not

an amendment, and affirmed Appellant’s conviction. Hoisager v. State, No. 03-13-

00328-CR, 2015 Tex. App. LEXIS 7402 at *6-9 (Tex. App. - Austin July 17, 2015)

(mem. op., not designated for publication); mem. op. at 3-7.3 It concluded that this



       1
           The court of appeals denied leave to file this brief.
       2
           There was no request for a jury charge on this issue. RR5:23.
       3
       This citation is to the court’s memorandum opinion on its website, not to that of
Westlaw or LEXIS.

                                                     3
Court’s opinion in Gollihar v. State, 46 S.W.3d 3d 243 (Tex. Crim. App. 2001),

implicitly overruled Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App.), on which

Appellant relied in part. According to the Court, this was because Gollihar explicitly

overruled Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), and Burrell

was the only foundation for Curry. Hoisager, id. The court did not address

Appellant’s double jeopardy claim.

                                          ANALYSIS

ISSUE ONE: Did the Court of Appeals Erred by Failing to Address Appellant’s

Double Jeopardy Claim, and Should This Court Do So on Discretionary Review?

       This double jeopardy claim provides the Court with a means of deciding the

issues left unresolved by Ex parte Marascio, Nos. WR-80,939-01, WR-80,939-02,

& WR–80,939-03 (Tex. Crim. App. Oct. 7, 2015).

       The Court should grant review for four reasons in addition to the primary one

of addressing the issues raised in Marascio: the jeopardy issue was not raised in the

trial court, making it analogous to Marascio; the double jeopardy violation is clearly

apparent from the face of the record; 4 enforcement of the usual rules of procedural

default serves no legitimate State interest; and the lower court’s refusal to consider


       4
        Cf. Ex parte Marascio, Nos. WR-80,939-01, WR-80939-02, WR-80,939-03 (Tex. Crim.
App. Oct. 7, 2015), Richardson, J., concurring, slip op. at 1 (double jeopardy violation not clearly
apparent on face of record).

                                                 4
the issue ignored this Court’s holding on the merits in Girdy v. State, 213 S.W.3d 315

(Tex. Crim. App. 2006), aff’g 175 S.W.3d 877 (Amarillo 2005).

      The Double Jeopardy Clause of the United States Constitution is applicable to

the states through the Fourteenth Amendment and protects Appellant from multiple

punishments. In a case involving double punishments, the Court determines legal

sameness by applying the same-elements test and by discerning whether the

Legislature intended to authorize multiple punishments for the same act. Blockburger

v. United States, 284 U.S. 299, 304 (1932); Missouri v. Hunter, 459 U.S. 359, 368

(1983); Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999)(applying Hunter’s

multiple punishments test to Texas).

      In deciding whether one offense is a lesser included offense for double

jeopardy purposes, one compares the statutory elements of the greater offense, as

alleged in the charging instrument of that offense, with the statutory elements of the

lesser-included offense, regardless of how the elements of the latter have been

alleged. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010). Article

37.09 of the code of criminal procedure is also to be considered. Aekins v. State, 447

S.W.3d 270, 274 (Tex. Crim. App. 2014).

      In this case, article 37.09(1) applies as it did in Girdy, 213 S.W.3d at 319: the

lesser included offense of aggravated assault was established by same or less than all


                                          5
the facts required to prove aggravated kidnapping, and the test set out in Ex parte

Amador has also been satisfied.

      When one offense is a lesser offense is a lesser included offense of another, the

double jeopardy clause prohibits punishment for both. Ex Parte Denton, 399 S.W.3d

540, 546 (Tex. Crim. App. 2013); Girdy, 213 S.W.3d at 319.

      When two such offenses occur in “a single continuous act, with a single

impulse, in which several different statutory provisions are necessarily violated,” the

defendant may be punished only once. Aekins, 447 S.W.3d at 275

      “Because of the fundamental nature of the double-jeopardy protections, a

double-jeopardy claim may be raised for the first time on appeal or on collateral

attack if two conditions are met: 1) the undisputed facts show that the double-

jeopardy violation is clearly apparent on the face of the record; and 2) when

enforcement of the usual rules of procedural default serves no legitimate state

interest.” Ex Parte Denton, 399 S.W.3d at 544.

      A double jeopardy claim is apparent on the face of the trial record if resolution

of the claim does not require further proceedings for the purpose of introducing

additional evidence in support of the double-jeopardy claim. Ex part Denton, 399

S.W.3d at 544-45. And while the State may ordinarily have an interest in maintaining

the finality of a conviction, it has “no legitimate interest in maintaining a conviction


                                           6
when it is clear on the face of the record that the conviction was obtained in

contravention of constitutional double-jeopardy protections.” Id. at 545.

       The double jeopardy violation in this case is apparent on the face of the record,

just as it was in Girdy. There are no additional facts needed to establish the violation.

The State alleged the statutory elements and facts essentially identical 5 to those in

Girdy, and the facts proved - aggravated kidnapping and aggravated assault at knife-

point - are also strikingly similar. Girdy, 213 S.W.3d at 316. And his claim arises in

the area in which multiple punishment claims can be addressed, in which the

defendant is punished for one criminal act twice under two different statutes when the

legislature intended the conduct to be punished only once. Bigon v. State, 252 S.W.3d,

360, 370 (Tex. Crim. App. 2008); Girdy, 213 S.W.3d at 319.

       In this case, the jury found Appellant guilty of both offenses, entered a deadly

weapon finding as to each, and assessed identical punishments of ten years, which the court

ordered to be served concurrently. CR: 40-43, 51-53. The imposition of concurrent

sentences does not eliminate the bar of double jeopardy, however. Evans v. State, 299

S.W.3d 138, 141 (Tex. Crim. App. 2009). In such cases the greater offense is to be

retained; the lesser vacated. Id.



       5
        The indictment in the present case was not as bare-bones as that in Girdy, but that is not
material, as Ex parte Amador, 326 S.W.3d at 206 n.5 makes clear.

                                                 7
       When a defendant has been punished for both a greater and lesser included offense,

the offense to be vacated is the less serious of the two, as measured by the comparative

sentences assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006).

When the sentences are identical, as they are here, and one is an offense of a greater degree

than the other, the lower of the two is to be vacated. Bigon, 252 S.W.3d at 369. Aggravated

kidnapping is a first degree felony. Aggravated assault is a second degree felony. Tex.

Penal Code ann. §§ 20.04(c); 22.02(b). Accordingly, the aggravated assault conviction

must be vacated. The Court should take review, determine that Appellant’s double

jeopardy claim can be considered by the Court, and vacate the conviction and sentence for

aggravated assault.

ISSUE TWO: Did the Court of Appeals Err by Holding That the Alteration to the

Indictment Was an Abandonment Rather than an Amendment?

       After the jury had been impaneled and sworn, the trial court overruled Appellant’s

objection to the State’s deletion of the phrase “to her home” from the indictment and

denied his request for ten days to respond to the amendment. RR2: 133; RR3: 23-30.

       Relying primarily on Gollihar, 46 S.W.3d at 256-57, the court of appeals held that

the language deleted from the indictment was surplusage, and therefore an abandonment.

Hoisager, 2015 Tex. App. LEXIS 7402 at *6-9; mem. op. at 4-7.




                                             8
       The reasons for granting review of this issue, in addition to the error itself are: the

court erroneously applied Gollihar to issues of notice as defined in Tex. Code Crim. P. art.

28.10 in conflict with decisions of other courts; the court of appeals fell into the trap of

examining whether the deletion from the indictment was an abandonment before deciding

whether it affected the substance of the indictment; because the deletion from the

indictment seriously affected a matter of substance, it was not an abandonment; the deleted

language was descriptive of a necessary element of the offense and was an amendment; the

deletion removed the language placing an element of the offense in a specific setting.

       In Hall v. State, 62 S.W.3d 918, 920 (Tex. App. - Dallas 2001, pet. ref’d) and

Moore v. State, 54 S.W.3d 529, 547 (Tex. App. – Fort Worth 2001, pet. ref’d),the courts

held that Gollihar does not apply to matters of notice, a direct conflict with the decision

below. As the court of appeals said in Hall:

       However, our review of Gollihar reveals that surplusage law was only overruled
       insofar as it relates to the sufficiency of the evidence to support a conviction.
       Specifically, the only issue before the court was how to dispose of sufficiency of the
       evidence questions in light of Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.
       1997), and in particular, what constituted a hypothetically correct jury charge. There
       is nothing in the reasoning of Gollihar that would suggest the court of criminal
       appeals intended to overrule surplusage law as it pertains to article 28.10 of the code
       of criminal procedure.

Hall, 62 S.W.3d at 920.

       This conflict makes the present case worthy of review.



                                              9
       The confusion between notice under article 28.10 and sufficiency of the evidence

helped lead the lower court into two other analytical errors, which provide further

justification for this Court’s consideration of issue two.

       Because of its misinterpretation of Gollihar, the court rejected authorities

supporting Appellant’s claim that the deletion from the indictment was a matter of

substance. This was due not only to its mistaken analogy to that case, but also because it

incorrectly interpreted Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997),

overruled on other grounds in Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) and

Gollihar v. State, supra.

       In Eastep, the Court began its analysis with a discussion of a defendant’s

constitutional right to notice,6 to be received through the charging instrument. Eastep, 941

S.W.2d at 132. It then emphasized the requirement that an amendment to be made on the

face of the charging instrument. Id. Next, the Court pointed out that the significant issue

in the case was whether the alteration affected the substance of the charging instrument.

Id. The Court made it clear that the answer to this primary question of substance is whether

the alteration was an amendment or an abandonment. Id.

       The Court provided examples of amendments from Texas cases requiring the

application of articles 28.10 and 28.11 of the code of criminal procedure. Id. at 132-33.


       6
           This right is conferred by Tex. Const. Art. I, §10.

                                                   10
Prior to this time, there was no judicial rule of what an amendment was; the Court was

creating one in Eastep by a gathering of historical authorities. Id.

       The Court then held that an alteration made on the face of the charging instrument

which did not affect its substance was an abandonment, not an amendment, and did not

violate the defendant’s right to notice. Id. at 133. As with amendments, the principal

inquiry was substance first, abandonment second. Id. Once again relying on past cases, the

Court created three categories of abandonments: where the State abandons one of multiple

means of the committing the alleged offense; where it replaces the alleged offense with a

lesser offense; or where it removes language which is not descriptive of what is legally

essential to the validity of the indictment and may therefore be treated as surpusage. Id. at

133-35.

       All three forms of abandonment can be seen to have the following qualities in

common. They give the State no advantage in convicting the defendant, they enhance the

defendant’s ability to defend against the original charge, they have a neutral effect, or they

possess some combination of these three.

       Accordingly, the first question must be whether the deletion affects a matter of

substance. If it gives the State a significant advantage in convicting the defendant or puts

the defendant at a disadvantage, it should be deemed an amendment of a matter of




                                             11
substance, not an abandonment. This should be the first query under Eastep. The Court

should take review to so hold.

       The three categories of abandonments serve a crucial function, but they are best seen

as part of a scheme, made coherent in 1985, to balance both parties’ right to have

challenges to an indictment made with diligence, notice, and fairness. Studer, 799 S.W.2d

263, 265-72 (Tex. Crim. App. 1990); Mason v. State, 740 S.W.2d 517, 519-20 (Tex. App. -

Houston [1st Dist.] 1987, pet. ref’d)(discussion of changes in indictment law as part of

decision of misjoinder issue). Part of the purpose of these changes was to avoid

“fundamental errors” raised for the first time on appeal, depriving the State of notice, and

likewise providing the defendant with notice. Studer, 799 S.W.2d at 568

       The essence of the analytical construct created in Eastep is that the court’s first duty

is to ask whether the alteration of the face of the indictment was a matter of substance, not

whether it was an abandonment. 941 S.W.2d at 132. This fits with the purpose of the 1985

changes. The court of appeals took the opposite view; it viewed its paramount duty to seek

out grounds for calling the alteration an abandonment. That is, after making giving lip

service to the requirement of substance, the court proceeded almost directly to the

assumption that it was surplusage and therefore an abandonment. Hoisager, 2015 Tex.

App. LEXIS 7502 at *5; mem. op. at 4. In doing so, it noted, contrary to Appellant’s

argument, that the form of abandonment in this case was a deletion of surplusage, the third


                                              12
form of abandonment. Id. at *6. The lower court’s approach was thus the reverse of the

process that Eastep requires. Accordingly, it led the court to find an abandonment where

none existed.

       What happened in Appellant’s case was the converse of the former rule that allowed

reversal for “fundamental errors” raised for the first time on appeal, a rule changed by the

1985 constitutional and statutory amendments mentioned above. The amendment of the

substance of the indictment in this case gave the State the kind of advantage defendants

formerly received when cases were reversed on appeal with no notice to the State in the

trial court.

       It follows that the Court should take review for the purpose of recognizing that a

deletion may be an amendment even if it does not fit with any of the three categories

created in Eastep. Any deletion that significantly and adversely impacts the defendant’s

ability to defend his case, or that makes it easier for the State to prosecute him, should be

deemed a change in the substance of the indictment, a more important consideration than

whether it is within one of the three categories. This is because it addresses the issue of

substance, deemed primary in Eastep.

       However, because the deletion of the language in Appellant’s case removed

language that was descriptive of a necessary element of the offense, it also constitutes error




                                             13
showing why this particular deletion from his indictment is an amendment, not an

abandonment.

          In Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995), the Court held that

“kidnapping becomes a completed offense when a restraint is accomplished” and “the State

[has] the burden to prove that a restraint was completed.” Mason thereby makes restraint

a necessary element of kidnapping. See also Prudholm v. State, 330 S.W.3d 590, 599 (Tex.

Crim. App. 2011)(stating that restraint is an element of aggravated kidnapping in

determining whether it was comparable to the restraint element in the California offense

of sexual battery). Here, the complainant’s home is where the restraint was alleged to have

been first effectuated and “to her home” is necessarily descriptive of restraint.

          The deletion was also an amendment because it removed the placement of the

necessary element of restraint from a specific setting. Curry, 30 S.W.3d at 399, cited with

approval in Chen v. State, 410 S.W.3d 394, 396 (Tex. App. – Houston [1st Dist.] 2013, pet.

ref’d).

          The impact of the amendment was serious. It allowed the State to expand its range

of proof, not limit it, as is the case with true abandonments. See Eastep, 941 S.W.2d at 132-

35. Thus, for example, when the court allowed the State to amend the indictment, it not

only allowed the prosecution to broaden the scope of the evidence it could rely on for

conviction; it also permitted proof that the offense was committed in a county other than

that alleged in the indictment. The indictment alleged that the offense occurred in Burnet
County, but the victim’s home was in Llano County. CR: 5-6; RR3: 97, 106. It likewise

diminished Appellant’s ability to cross-examine or argue to the jury about this discrepancy

between counties. See U.S. Const. am. 6, 14; Tex. Const. art I. §10; Tex. Code Crim. P.

1.05.

        The improper amendment of the indictment over objection, coupled with the denial

of Appellant’s request for ten additional days to prepare, likewise denied by the trial court,

harmfully deprived Appellant of the notice required buy article 28.10(b).

                                           Prayer

        Appellant prays that the Court grant review, vacate his conviction for aggravated

assault on the grounds of double jeopardy, and reverse his conviction for aggravated

kidnapping because the trial court allowed the State to amend the indictment after trial

began and denied Appellant ten days to respond.

                                  Respectfully submitted,

                                  /s/ David K. Chapman

                                  David K. Chapman
                                State Bar No. 04121500
                                     P.O. Box 427
                             Karnes City, Texas 78118-0427
                               830-780-3472 Telephone
                                210-428-6479 Facsimile
                              heartregardless@gmail.com

                          Attorney for James Dwayne Hoisager


                                             15
              CERTIFICATE OF COMPLIANCE AND SERVICE

      On this 28th day of October, 2015 I filed a copy of this document through

EFILETEXAS.GOV, using an approved service provider, File & ServeXpress, which

provided a copy to the attorneys for Appellee, Hon. Gary W. Bunyard, Assistant District

Attorney, 33rd and 424th Judicial District, P.O. Box 725, Llano, Texas 78643,

g.bunyard@co.llano.tx.us, and Lisa C. McMinn, State Prosecuting Attorney, P.O. Box

13046, Austin, Texas, 78711-3046, information@spa.texas.gov. I also sent copies of this

document to opposing counsel at these email addresses independently of my email filing

service. I certify that this document was prepared on WordPerfect™WPx6, contains a total

of 3422 words, and otherwise complies with the Texas Rules of Appellate Procedure, as

amended effective January 1, 2014. I also



                                /s/ David K. Chapman

                                  David K. Chapman




                                            16
           APPENDIX



OPINION OF THE COURT OF APPEALS
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00328-CR



                                      James Dwayne Hoisager

                                                 v.

                                        The State of Texas


            FROM THE 424TH DISTRICT COURT OF BURNET COUNTY, TEXAS
             NO. 39332, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found Appellant, James Dwayne Hoisager, guilty of the aggravated kidnapping

and aggravated assault of his ex-wife, Brenda Hoisager (“Brenda”). On appeal, Appellant complains

that the trial court erroneously allowed the State to amend the aggravated kidnapping indictment and

erroneously denied his request for ten days to respond to the amendment. For the reasons that

follow, we affirm both convictions.


                                         BACKGROUND

               On the morning of July 8, 2011, Appellant went to Brenda’s condominium, with her

permission, to attend to some business on behalf of their daughter and to do his laundry. Although

their daughter lived in the condominium with Brenda, Brenda and Appellant were alone that

morning. Appellant became upset, having recently learned that Brenda was romantically involved

with another man. When Brenda asked Appellant to leave he refused, prevented her from calling
the police, held a knife to her throat, told her that they were going to go see God that night, and told

her that he had paid someone to kill both of them.

                Appellant held Brenda in the condominium at knife point for several hours or more.

They struggled over Brenda’s loaded pistol during this time, with Appellant gaining control and

putting it out of Brenda’s reach. At some point in the afternoon, Appellant drove Brenda to their

church for a counseling session with their pastor, Ross Chandler. Brenda testified that she did not

go to the church willingly and that Appellant kept the knife on hand during the drive. Appellant and

Brenda met Chandler at their church and spoke about their relationship for approximately two hours

before Chandler realized that something was amiss and removed Brenda from the situation. Brenda

reported the incident to the police, who arrested Appellant.

                Appellant was charged with aggravated kidnapping and aggravated assault with a

deadly weapon.       Count I of the indictment—which charged Appellant with aggravated

kidnapping—originally read:


        Defendant . . . did . . . intentionally and knowingly abduct Brenda Hoisager by
        restraining the said Brenda Hoisager with the intent to prevent the liberation of the
        said Brenda Hoisager by using and threatening to use deadly force against the said
        Brenda Hoisager, and the said Defendant did then and there restrain the said Brenda
        Hoisager by restricting the movements of the said Brenda Hoisager without the
        consent of the said Brenda Hoisager so as to interfere substantially with the liberty
        of the said Brenda Hoisager by confining the said Brenda Hoisager to her home, and
        the said Defendant did then and there use and exhibit a deadly weapon, to-wit: a
        knife, during the said offense.


                Trial commenced on April 29, 2013. The jury was empaneled and sworn in the early

afternoon and then released for a lunch break, at which point the State expressed its intention to



                                                   2
delete the words “to her home” from the indictment. After the lunch break, the State made a formal

motion to delete the words “to her home,” which the court granted over Appellant’s objection.

Appellant requested ten additional days to prepare in light of the alteration to the indictment, which

the trial court denied. The State read the amended version of the indictment to the jury. The jury

returned a guilty verdict on both counts and assessed a punishment of ten years for each count, which

the trial court ordered to be served concurrently.


                                            ANALYSIS

               Appellant contends that the trial court erred (1) by allowing the State to amend the

indictment over his objection and (2) by denying his request to delay trial for ten days to allow him

to respond to the amendment. We disagree.


                                      LEGAL OVERVIEW

               “Article I, Section 10 of the Texas Constitution guarantees an accused the right to be

informed of the nature and cause of the accusation against him in a criminal prosecution. It has long

been held that this information must come from the face of the charging instrument.” Eastep

v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State,

28 S.W.3d 561 (Tex. Crim. App. 2000), and Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.

2001). The Texas 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.

                                                  3
       (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. art. 28.10.


The Trial Court did not Err in Allowing the State to Alter the Indictment

               Appellant argues that the trial court disregarded article 28.10(b) of the Texas Code

of Criminal Procedure by allowing an amendment to the indictment after trial had commenced

despite Appellant’s objection. See Tex. Code Crim. Proc. art. 28.10(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”) (emphasis added); Sanchez v. State, 138 S.W.3d 324,

329 (Tex. Crim. App. 2004) (for purposes of article 28.10, trial on merits commences when jury is

empaneled and sworn). The State contends that article 28.10(b) does not apply because the words

“to her home” were mere surplusage, so their deletion did not constitute a substantive amendment.

               Not every alteration to the face of an indictment is an amendment for the purpose of

article 28.10. Only changes that affect the substance of the indictment qualify as amendments.

Eastep, 941 S.W.2d at 132. A modification that does not affect the substance of the indictment is

a mere abandonment that does not trigger article 28.10. Id. at 133. The court of criminal appeals

has recognized three types of language in an indictment that can be abandoned without constituting

an amendment: (1) allegations of one or more alternative means of committing the alleged offense,



                                                4
(2) allegations of a greater offense than remains in the indictment, and (3) surplusage. Id.

“Surplusage is unnecessary language not legally essential to constitute the offense alleged in the

charging instrument.” Id. at 134.

                Appellant argues that “to her home” was not surplusage, citing Curry v. State for the

contention that unnecessary language is not surplusage if it is descriptive of a necessary element of

a charged offense. Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000) (citing Burrell

v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), overruled by Gollihar, 46 S.W.3d at 256-57).

This exception to the surplusage rule—often referred to as the Burell exception—applies to language

that (1) places an offense in a specific setting, (2) defines the method by which the offense was

committed, or (3) describes the offense more narrowly. Id. According to Appellant, the phrase “to

her home” was substance rather than surplusage because it (1) put the offense in the specific setting

of Brenda’s condominium, (2) described the method of abduction, which is a necessary element of

aggravated kidnapping,1 and (3) narrowed the scope of the offense.

                Appellant’s reliance on Curry—and through it Burrell—is misplaced. The court of

criminal appeals explicitly overruled the Burell exception in Gollihar, rendering Appellant’s

argument invalid. 46 S.W.3d at 256-57. The relevant question is whether the phrase “to her home”

is legally essential to constitute the offense alleged. See Eastep, 941 S.W.2d at 134. A review of

the indictment and the statutory elements of aggravated kidnapping leads us to conclude that the

words “to her home” are not essential to this offense.




       1
           Tex. Penal Code § 20.04.

                                                  5
               The indictment originally stated that Appellant abducted and restrained Brenda by

confining her to her home. The revised indictment stated that he abducted and restrained her by

confining her, without specifying the location of confinement. That location, however, is not legally

essential to the offense of aggravated kidnapping.


       A person commits an offense [of aggravated kidnapping] if he intentionally or
       knowingly abducts another person with the intent to: (1) hold him for ransom or
       reward; (2) use him as a shield or hostage; (3) facilitate the commission of a felony
       or the flight after the attempt or commission of a felony; (4) inflict bodily injury on
       him or violate or abuse him sexually; (5) terrorize him or a third person; or (6)
       interfere with the performance of any governmental or political function.


Tex. Penal Code § 20.04 (emphasis added). Under the Texas Penal Code, abduction, which is

legally essential to the offense of aggravated kidnapping, “means to restrain a person with intent to

prevent his liberation by (A) secreting or holding him in a place where he is not likely to be found;

or (B) using or threatening to use deadly force.” Id. at § 20.01(2) (emphasis added). “‘Restrain’

means to restrict a person’s movements without consent . . . by moving the person from one place

to another or by confining the person.” Id. at § 20.01(1) (emphasis added). While the Texas Penal

Code requires abduction and restraint, it does not require that restraint by confinement take place in

the victim’s home or any other particular location. Id. at § 20.01. Consequently the text “to her

home” was not legally essential to the offense of aggravated kidnapping, rendering it mere

surplusage. The removal of this surplusage was, therefore, not an amendment for the purpose of

article 28.10. See Eastep, 941 S.W.2d at 136. The trial court did not err in allowing the State to

remove this text from the indictment. We overrule Appellant’s first point of error.




                                                  6
The Trial Court did not Err in Denying Appellant’s Request for Additional Time

               In the alternative, Appellant argues that the trial court erroneously disregarded article

28.10(a) by denying his request for ten additional days to respond to the amended indictment. If the

State amends the indictment prior to the day that trial commences, article 28.10(a) requires the court

to allow the defendant up to ten additional days to respond to the amended indictment. Tex. Code

Crim. Proc. art. 28.10. Appellant’s argument fails because there was no amendment. As discussed

above, “to her home” was surplusage, and article 28.10 does not does not apply when the State

deletes surplusage. Accordingly, the trial court did not err in denying Appellant’s request for a ten-

day continuance. We overrule Appellant’s second point of error.


                                          CONCLUSION

               Having concluded that the trial court did not err, we affirm the judgments of

conviction for aggravated kidnapping and aggravated assault.



                                                _________________________________________

                                               Cindy Olson Bourland, Justice

Before Justices Pemberton, Field, and Bourland

Affirmed

Filed: July 17, 2015

Do Not Publish




                                                  7
