Perez v. State
2014 Tex. Crim. App. LEXIS 742
| Tex. Crim. App. | 2014Background
- Perez was convicted of three counts of aggravated sexual assault of a child and two counts of indecency with a child by contact, with consecutive life and multi-year sentences.
- An original eleven-count indictment charged seven aggravated assaults and four indecencies; the State moved to amend to five counts and provided an attached exhibit.
- The State and Perez’ counsel agreed to the amendment; the trial court held a hearing and granted the amendment.
- During the hearing, the court questioned Perez about waiver of time and acknowledged he understood the amendment would proceed without additional prep time.
- The amended five-count indictment replaced the face of the original indictment; Perez was convicted on all five amended counts.
- Perez challenged the amendment on appeal, arguing lack of a physical interlineation of the face of the indictment; he also challenged the denial of a hearing on his motion for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment was properly amended without re-presenting to grand jury | Perez argues Ward requires physical interlineation for amendment | State contends Riney allows amendment without interlineation where no new offenses are added | Amendment proper; no new offenses; Ward overruled to extent; sustained amendment |
| Whether the trial court erred by not holding a hearing on the motion for new trial | Motion contained request for a hearing and affidavits; claim of ineffective assistance | No preservation; boilerplate prayer and lack of request for hearing | No preservation; overruled |
Key Cases Cited
- Ward v. State, 829 S.W.2d 787 (Tex. Cr. App. 1992) (analysis of amendment mechanics and need for court leave)
- Riney v. State, 28 S.W.3d 561 (Tex. Cr. App. 2000) (permitted photocopied amendments without interlineation)
- Garcia v. State, 981 S.W.2d 683 (Tex. Cr. App. 1998) (indictment sufficiency considerations)
- King v. State, 473 S.W.2d 43 (Tex. Cr. App. 1971) (indictment notice standards)
- Gardner v. State, 306 S.W.3d 274 (Tex. Cr. App. 2009) (presentment and notice requirements for hearings)
- Rozell v. State, 176 S.W.3d 228 (Tex. Cr. App. 2005) (limits on addressing motions for new trial without proper preservation)
- Carranza v. State, 960 S.W.2d 76 (Tex. Cr. App. 1998) (preservation and procedure for motions for new trial)
- Hobbs v. State, 298 S.W.3d 193 (Tex. Cr. App. 2009) (hearing requirements for properly presented requests)