      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-04-00099-CR



                                 Gary Arthur Pickens, Appellant

                                                  v.

                                   The State of Texas, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
         NO. B-01-0298-S, HONORABLE RAE LEIFESTE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The trial court convicted Gary Arthur Pickens of assault causing bodily injury to a

family member, a third degree felony enhanced by a prior conviction of assault against a family

member. Tex. Pen. Code Ann. § 22.01 (West Supp. 2004-05). Pickens was sentenced to two years’

imprisonment. He now challenges his conviction based on four points of error, that: (1) his waiver

of the right to a jury trial was improper; (2) the court below abused its discretion by allowing the

testimony of an undisclosed witness; (3) the judgment indicates that the enhancement paragraph is

“not applicable,” and therefore the judgment contains insufficient findings to allow for felony

punishment; and (4) the evidence was legally insufficient to support his conviction because there was

a fatal variance between the indictment and the proof offered at trial. We overrule each of his points

of error and affirm the judgment of conviction.
                                          BACKGROUND

                Bobby Charles Elrod, a San Angelo Police Department officer, testified that on

January 13, 2001, he responded to a domestic dispute at 2513 Lindell. Upon arrival, he found Tanya

Annette Voight next door where he observed that she was covered in blood and had a small cut on

the left side of her head.

                Voight testified that on that night she and her husband, Gary Arthur Pickens, had an

argument at Bailey’s Sports Bar. Later she went home and went to sleep in the bedroom usually

occupied by one of her two sons. When Pickens came home he was intoxicated, and she told him

to leave. Voight called out for her son, Howard, and he came into the bedroom to help her. Howard

pulled Pickens off of his mother, and Pickens agreed to leave. Voight walked Pickens to the door.

She continued to refuse his requests to stay. He then hit Voight with his fist, causing a cut on the

left side of her head which required five stitches.

                Pickens was indicted and charged with the offense of assault causing bodily injury

of a family member. Tex. Pen. Code Ann. § 22.01 (West Supp. 2004-05). The indictment also

states “prior to the commission of aforesaid offense, on the 25th day of March, 1997 . . . the

defendant . . . was convicted of assault against a family member . . . .”

                Pickens, his trial counsel, and counsel for the State signed an instrument approved

by the court entitled “Waiver of Right to Jury Trial.” The waiver is made pursuant to article 1.13

of the Texas Code of Criminal Procedure and contains the following statement: “Counsel has further

advised that the right to a jury trial includes the right to subpoena witnesses and the right to confront

and cross-examine the State’s witnesses. I understand that by signing this Waiver I give up those



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rights and I do so voluntarily. Upon the entry of my plea in this cause, I hereby waive my right to

a jury trial in this proceeding.”

                At the bench trial, the State introduced into evidence a certified copy of various

documents including a complaint and information filed with the Tom Green County clerk on January

15, 1997, a deferred adjudication order for probation filed with the clerk on April 3, a motion to

revoke deferred adjudication filed November 4, and an order revoking misdemeanor probation filed

January 21, 1998. All of these documents related to a prior assault involving Pickens. The

complaint and information named Sylvia Pickens as the victim of the alleged assault. The deferred

adjudication documents and the revocation of probation reference a court proceeding on March 25,

1997, at which Pickens entered a no contest plea in connection with an assault charge.

                The State called five witnesses including Sylvia Farese. Pickens’s counsel objected

stating that although his motion for a witness list had been granted, Farese was not on the State’s list.

The State replied that Farese was previously known as Sylvia Pickens, whose name appeared in the

documents detailing Pickens’s prior conviction for assault, and she was only being called to prove

up the judgment. The State also entered into evidence a marriage license and divorce decree for

Farese and Pickens. The judge, relying on Gonzales v. State, 4 S.W.3d 406 (Tex. App.—Waco

1999, no pet.), overruled Pickens’s objection because, he said, there was no bad faith on the part of

the State, and Pickens could have reasonably anticipated the witness’s testimony even though her

name was not included in the list.

                Farese testified that she had been married to Gary Arthur Pickens. She also testified

that while they were married he threw her into a wall and she sustained several injuries. She knew



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that he had been convicted for at least one of the altercations that occurred while she was married

to Pickens.

               Pickens was convicted in a trial to the court. The judgment and sentence is a three-

page document. The first page is a pre-printed form which provides a fill-in-the-blank summary of

the proceedings and judgment. The second page is a narrative recitation of the judgment, and the

third page is signed by the trial judge. The pre-printed form contains a section where a plea to any

enhancement paragraphs is to be noted, and the findings on enhancements are to be indicated. Both

boxes contain the initials “N/A,” which is commonly understood to mean “not applicable.”

However, the narrative portion of the judgment states, “the Court having heard all the evidence

submitted for the State and the Defendant and the argument of counsel is of the opinion and finds

that said Defendant is guilty of assault on a family member, enhanced, a felony of the third degree,

committed on January 13, 2001, as charged in the indictment and that Defendant’s punishment

should be by confinement in the Institutional Division of the Department of Criminal Justice for a

period of two years.”

               Pickens now challenges his conviction based on four points of error, that: (1) his

waiver of the right to jury trial was improper; (2) the court below abused its discretion by allowing

the testimony of an undisclosed witness; (3) the judgment indicates that the enhancement paragraph

is “not applicable,” and therefore the judgment contains insufficient findings to allow for felony

punishment; and (4) evidence was legally insufficient to support his conviction because there was

a fatal variance between the indictment and the proof offered at trial. We will address each of

Pickens’s points of error in turn.



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                                            DISCUSSION

Jury Waiver

                Article 1.13 of the code of criminal procedure specifies the manner in which a jury

trial may be waived. Tex. Code Crim. Proc. art. 1.13 (West Supp. 2004-05). “[S]uch waiver must

be made in person by the defendant in writing in open court with the consent and approval of the

court, and the attorney representing the State.” Id. If a criminal defendant waives his right to a jury

trial but the waiver is not executed as specified in article 1.13, then the error is statutory in nature.

Unless a statutory error affects substantial rights, it must be disregarded. Johnson v. State, 72

S.W.3d 346, 348 (Tex. Crim. App. 2002). If, however, a defendant is denied his right to a jury trial

absent a waiver, then the error is constitutional in nature and subject to harm analysis. Id. “If the

appellate record in a criminal case reveals constitutional error . . . the court of appeals must reverse

a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that

the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a). Every

presumption will be indulged in favor of the regularity of documents in the trial court. Breazeale

v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985).

                Here, there is no statutory error because there is a signed jury waiver in the record that

fulfills the requirements established by article 1.13. Pickens, however, argues that there is

constitutional error because the waiver form incorrectly included waiver of his right to subpoena and

cross-examine witnesses.       The misstatement, according to Pickens, rises to the level of

misrepresentation on the part of his trial counsel, and because the State and the court did not correct

the waiver form they, in effect, colluded in the misrepresentation. Pickens contends that a waiver



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made in conjunction with misrepresentation is no waiver at all because it is not a knowing and

intelligent waiver.

               If Pickens’s waiver is not valid, then there would be constitutional error because he

was denied his constitutional right to a jury trial. There is no evidence that the misstatement of the

rights waived was intentional or malicious. However, even assuming arguendo that there was

constitutional error, it was not reversible error because Pickens was not harmed by the mistake.

First, Pickens was not actually denied the right to subpoena and cross-examine witnesses, even

though he signed a form supposedly waiving those rights. If he was not actually denied his rights

there was no harm. Second, Pickens never objected to the bench trial, nor did he attempt to rescind

his waiver in the three months between signing the mistaken waiver form and appearing in court.

               Pickens does not claim that he did not understand his right to a jury trial, or that he

was denied his right to a jury trial. He simply argues that his conviction should be set aside because

the form he signed incorrectly waived additional rights. However, because he was not denied the

right to subpoena and cross-examine witnesses, we cannot say he was harmed by the incorrect waiver

statement.1 In the absence of actual harm, we overrule Pickens’s first point of error.


Undisclosed Witness

               Upon the defendant's request, the State shall give notice of its witnesses. Martinez

v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993). We review the trial court’s decision to allow


       1
          Although there was no reversible error here, proper procedure with respect to waiving
constitutional rights is essential. The State, the court, and defense counsel are partners in upholding
the constitutional rights of criminal defendants and must use care in preparing and reviewing jury
waiver statements.

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testimony from an undisclosed witness under an abuse of discretion standard. Nobles v. State, 843

S.W.2d 503, 514 (Tex. Crim. App. 1992); Campbell v. State, 900 S.W.2d 763, 772 (Tex. App.—

Waco 1995, no writ).

                Pickens claims that the trial court abused its discretion by allowing Sylvia Farese to

testify when she was omitted from the State’s witness list. The two factors we consider when

determining whether the trial court abused its discretion are: (1) whether the prosecutor's actions in

not disclosing the witness ahead of time were made in bad faith and (2) whether the defendant could

have reasonably anticipated the witness’s testimony, even when her name was not on the witness list.

Martinez, 867 S.W.2d at 39; Nobles, 843 S.W.2d at 514-15; Gonzales v. State, 4 S.W.3d 406, 416

(Tex. App.—Waco1999, no pet.). The trial court determined that the prosecutor did not exhibit bad

faith when he failed to include Farese on the witness list. The prosecutor claimed that until a few

days before trial he did not realize that the judgment relating to the prior assault failed to recite

family violence. The prosecutor admitted that he knew that he would have to call Farese to the stand

as early as the Wednesday prior to the trial date, but he claimed there was a delay in actually

contacting her. The prosecutor admitted that he should have sent the defense a copy of the subpoena

he issued for Farese. Even if it is too late to amend the witness list in writing seven days prior to

trial, prosecutors can and must make a good faith effort to provide defense counsel with notice of

new witnesses. However, we do not find that the trial court abused its discretion in deciding that the

State was not acting in bad faith when it failed to disclose this witness during last minute trial

preparations.




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               We also agree with the trial court that Pickens could have reasonably anticipated that

his former wife would be called as a witness in order to prove up the judgment of previous family

violence when that incident was the only incident invoked to enhance Pickens’s offense here.

Pickens could reasonably be expected to anticipate the State’s need to prove up the judgment for an

essential component of their case. Id.; Castaneda v. State, 28 S.W.3d 216, 223 (Tex. App.—El Paso

2000, pet. ref’d). Furthermore, and perhaps most importantly, Pickens did not request a continuance

in order to interview the witness or prepare his cross-examination. In fact, when the State suggested

it, he stubbornly refused. The failure to move for a continuance when an undisclosed witness is

allowed to testify renders any error harmless. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim.

App. 1994). We hold that the trial court did not abuse its discretion in allowing Farese to testify and

overrule Pickens’s second point of error.


Enhancement Paragraph

               According to article 42.01 of the code of criminal procedure, a valid and complete

judgment contains approximately 27 elements such as the title and number of the case, the offense

for which the defendant was convicted, the term of the sentence, etc. “The sentence served shall be

based on the information contained in the judgment.” Tex. Code Crim. Proc. Ann. art. 42.01, § 1

(West Supp. 2004-05).

               Pickens argues that he is not amenable to felony punishment because the judgment

below recites “N/A” or “not applicable” in the boxes reflecting “plea to enhancement paragraph” and

“findings on enhancement.” He claims that the judgment is insufficient to support the felony

sentence because the alleged previous assault on a family member is an element of the offense of

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felony family violence, and without the enhancement he is only amenable to misdemeanor

punishment.2 Tex. Pen. Code Ann. § 22.01 (West Supp. 2004-2005). Assuming without deciding

that his contention is correct, we find the judgment is sufficient.

                Although the boxes for the enhancement plea and findings on the pre-printed

summary page recite “N/A,” the same page also indicates that the offense Pickens is convicted of

is “assault on a family member, enhanced.” Furthermore, the narrative on the second page of the

judgment twice recites the offense as “assault on a family member, enhanced, a felony of the third

degree . . . as charged in the indictment.” The judgment recites the enhancement required to make

Pickens amenable to felony punishment, Tex. Pen. Code Ann. § 22.01, and it references the charges


       2
           Section 22.01 of the penal code reads in relevant part:

           (a) A person commits an offense if the person:

               (1) intentionally, knowingly, or recklessly causes bodily injury to another,
                   including the person's spouse;

               (2) intentionally or knowingly threatens another with imminent bodily
                   injury, including the person's spouse; or

               (3) intentionally or knowingly causes physical contact with another when
                   the person knows or should reasonably believe that the other will
                   regard the contact as offensive or provocative.

           (b) An offense under Subsection (a):

               (1) is a Class A misdemeanor, except that the offense is a felony of the
                   third degree if the offense is committed against . . .

               (2) a member of the defendant's family or household, if it is shown on the
                   trial of the offense that the defendant has been previously convicted of
                   an offense against a member of the defendant's family or household
                   under this section . . . .

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in the indictment which contain an entire paragraph devoted to the previous family violence

conviction. Higginbotham v. State, 497 S.W.2d 299 (Tex. Crim App. 1973) (holding that when the

judgment and sentence are construed in light of the indictment allegations they are sufficient).

Therefore, the judgment is sufficient to make Pickens amenable to felony punishment. We overrule

Pickens’s third point of error.


Fatal Variance

                A variance occurs when there is a discrepancy between the indictment and the proof

offered at trial. A variance that does not prejudice a defendant’s substantial rights, however, is

immaterial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).

                The indictment alleged that “on the 25th day of March, 1997 [Pickens] . . . was

convicted of an assault against a family member.” The judge in that case, however, entered an order

of deferred adjudication probation on March 25, 1997. Subsequently on January 8, 1998, Pickens’s

deferred adjudication probation was revoked, and a finding of guilt was imposed. Pickens argues

that since he was not convicted of assault against a family member on March 25, 1997, but instead

received deferred adjudication on that date, the variance between the indictment and the proof

offered at trial is fatal. We disagree.

                Pickens first contends that since at the time of the first assault deferred adjudication

was not a conviction for purposes of section 22.01, using the prior offense for purposes of

enhancement would violate the prohibition against ex post facto laws. However, in Manning v.

State, although the family violence conviction being used for enhancement occurred before the

effective date of section 22.01(b)(2), the court determined that it was the status of having been


                                                  10
convicted for family violence that was material; the date of the previous offense was inconsequential.

Manning v. State, 112 S.W.3d 740, 743 (Tex. App.—Houston 2003, pet. ref’d). Thus, here the date

of the previous offense is immaterial because Pickens’ status of having been convicted of violence

against a family member is undisputed.

                Furthermore, the variance between the indictment and the proof offered at trial is not

material or fatal.


        In determining whether a defendant's substantial rights have been prejudiced . . . two
        questions are generally asked: . . . whether the indictment, as written, informed the
        defendant of the charge against him sufficiently to allow him to prepare an adequate
        defense at trial, and whether prosecution under the deficiently drafted indictment
        would subject the defendant to the risk of being prosecuted later for the same crime.


Manning, 112 S.W.3d at 247-248. Here although the indictment misstated the date on which

Pickens was convicted of a prior act of violence against a family member, he was still given

sufficient notice of the charges, including the enhancement allegations, to allow him to prepare an

adequate defense. There is only one prior conviction in the record, so Pickens was well aware of

what prior conviction was being used for enhancement, even if the deferred adjudication date was

listed rather than the date of conviction. Additionally, the mistake in the indictment would not

expose Pickens to later prosecution for the same crime because the only mistake is the date of a prior

offense used for enhancement, and “[i]t is not necessary to allege prior convictions for enhancement

purposes with the same particularity that must be used in charging the primary offense.” Earl v.

State, 870 S.W.2d 669, 671 (Tex. App.—Houston 1994, no writ).




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               Pickens’s substantial rights were not prejudiced by the variance between the date in

the indictment and the proof offered at trial. Therefore the variance is immaterial. We overrule

Pickens’s final point of error.


                                        CONCLUSION

               We find that Pickens was not harmed by the incorrect waiver form, under these

circumstances allowing the testimony of an undisclosed witness was within the trial court’s

discretion, the judgment was sufficient to support the enhanced sentence, and the variance between

the indictment and the proof offered at trial was immaterial. Having overruled each of Pickens’s

four points of error, we affirm the judgment of conviction.




                                             Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: November 12, 2004

Do Not Publish




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