Ji Chen v. State
2013 Tex. App. LEXIS 9403
| Tex. App. | 2013Background
- Chen convicted of theft of property valued $50–$500; punishment 120 days in jail and $2,000 fine.
- Complainant Tolleson observed theft of a mouse and two computer accessories from Apple Store; mouse value $69.
- Information charged theft of an iPod mouse; State moved to strike 'iPod' to charge only 'a mouse' on trial day.
- Chen objected to the alteration, argued it amended the information; filed a formal bill of exceptions.
- Trial court denied the continuance under Article 28.10; the jury convicted of theft valued $50–$500.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of continuance was error after amendment/abandonment | Chen argued the deletion was an amendment requiring 28.10 continuance | State argued deletion was abandonment, not an amendment, so 28.10 not triggered | Abandonment, not amendment; no 28.10 continuance required |
Key Cases Cited
- Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997) (amendment vs abandonment distinctions in charging instruments)
- Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) (descriptive language may be abandoned if not essential to charge; impact on proof?)
- Chavis v. State, 177 S.W.3d 308 (Tex. App.—Houston [1st Dist.] 2005) (abandonment of surplusage permissible; not invoking 28.10)
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (pleading requirements referenced in discussing descriptions of property)