Matthew Hamann v. State, 428 S.W.3d 221

Hamann was convicted of assault against a person with whom he had a dating relationship, second offense, and sentenced to 25 years’ confinement.
Caseras testified that she and Hamann dated and lived together for eight months; on Nov. 11–12, 2011, Hamann assaulted her at their home.
The State originally alleged a July 11, 2007 conviction for assault against a dating partner; the indictment was amended on the day of trial to indicate an assault against a family member.
The State had filed a notice of intent to use prior convictions; the notice identified several prior convictions including a 2007 family-violence assault.
Roy Glover, a fingerprint expert, testified and matched Hamann’s fingerprint to the 2007 judgment; his name had not been disclosed on the State’s witness list.
Hamann challenged the amendment, sufficiency of the evidence, and the undisclosed expert-witness testimony; the trial court admitted the amended indictment and Glover’s testimony; Hamann was convicted on the original charge of assaulting Caseras.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the indictment properly amended on the day of trial?	Hamann argues article 28.10 requires an objection to amendments; the amendment violated his rights.	State contends amendment was proper under article 28.10 and did not prejudice substantial rights.	Amendment over objection was improper; however, the court ultimately overruled the point, finding no substantial prejudice.
Is the evidence legally sufficient given the naming variance of the prior conviction?	Hamann contends the proof of a 2007 family-violence assault cannot satisfy the dating-relationship prior.	State argues the variance is immaterial; notice and proof supported the enhancement.	Evidence suffices; variance between named offense and proven offense in an enhancement is not material under the record.
Did the trial court abuse its discretion by admitting the fingerprint expert who was not named in the State’s witness list?	Hamann asserts failure to disclose the expert violated discovery and entitles reversal.	State acted in good faith; defense could anticipate a fingerprint expert and the court remedied surprise.	No abuse of discretion; the State disclosed enough, defense could anticipate the testimony, and the court mitigated surprise.

Freda v. State, 704 S.W.2d 41 (Tex. Crim. App. 1986) (material variances in enhancement upbringing do not require reversal absent prejudice)
Simmons v. State, 288 S.W.3d 72 (Tex. App.—Houston [1st Dist.] 2009) (variances in enhancement provisions are generally non-material)
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (indictment-proof mismatch can be immaterial if not prejudicial)
James v. State, 2012 WL 1355731 (Tex. App.—Houston [1st Dist.] 2012) (harmless-error review applicable to Article 28.10 violations)
Trejos v. State, 243 S.W.3d 30 (Tex. App.—Houston [1st Dist.] 2007) (helps assess substantial-right prejudice in amendments)
Nobles v. State, 843 S.W.2d 503 (Tex. Crim. App. 1992) (factors for admitting undisclosed witnesses; bad faith and anticipated testimony)
Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993) (considerations for undisclosed witnesses and discovery)
Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993) (remedies for undisclosed witnesses; discovery principles)