Trevino, Ismael
PD-1057-15
| Tex. App. | Sep 8, 2015Background
- Appellant Ismael Trevino was convicted by a jury of aggravated assault of a household member and sentenced to 27 years’ imprisonment.
- The original indictment described the complainant as a member of appellant’s “family.”
- On the first day of trial, before voir dire, the State substituted the word “household” for “family” in the indictment; the physical amendment occurred that day.
- Texas law (Art. 28.10) generally prohibits amending an indictment on the day trial begins before trial; prior authorities treat such amendments as erroneous if unpermitted.
- Trevino argued the day-of-trial amendment was a legal nullity, so sufficiency of the evidence and the jury charge should be measured against the original indictment (family), not the amended indictment (household).
- The Fourteenth Court of Appeals held Trevino waived any defect by failing to properly object; therefore the amended indictment controlled for both sufficiency and jury-charge review, and the conviction was affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Trevino) | Held |
|---|---|---|---|
| Whether a day-of-trial amendment that replaces “family” with “household” is void or voidable | The amendment is not void where defendant failed to preserve objection; sufficiency and jury charge are measured by amended indictment | The amendment is a legal nullity (void) under Art. 28.10, so sufficiency and charge should be measured by the original indictment alleging “family” | The amendment was voidable, not void; Trevino waived the complaint by not properly objecting, so the amended indictment governs |
| Whether sufficiency of the evidence should be measured against the original indictment (family) | Because the amendment was effective (no preserved error), sufficiency is measured against the amended indictment (household) | Evidence did not prove “family” membership required by original indictment, so conviction is unsupported under the original indictment | Court declined to review sufficiency against the original indictment because Trevino did not preserve the amendment complaint; overruled sufficiency issue |
| Whether the jury charge authorizing conviction for assault of a household member caused egregious harm | No egregious harm because defendant waived challenge to the amendment and the charge matched the amended indictment | Jury charge enlarged offense relative to original indictment and caused reversible (egregious) harm | Charge matched the (operative) amended indictment; no reversible egregious harm; overruled issue |
Key Cases Cited
- Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) (hypothetically correct jury charge must be authorized by the indictment; where amendment was objected to, review is against the original indictment)
- Sodipo v. State, 815 S.W.2d 551 (Tex. Crim. App. 1990) (Art. 28.10 does not contemplate day-of-trial amendments; court errs by allowing amendment on day of trial before trial commences)
- Murk v. State, 815 S.W.2d 556 (Tex. Crim. App. 1991) (failure to complain at trial about a day-of-trial amendment waives the error)
- Ex parte Patterson, 969 S.W.2d 16 (Tex. Crim. App. 1998) (distinguishes void and voidable indictments; when indictment is voidable, defendant must object to avoid waiver)
- Woodard v. State, 322 S.W.3d 648 (Tex. Crim. App. 2010) (the right to a state grand jury indictment is waivable; an unobjected-to submission of an unindicted offense satisfies Almanza egregious-harm standard)