*3 charging until the face of the instru effective EDELMAN, LEE, Before HUDSON and physically ment has been altered to reflect JJ. the amendment. Ward v. (Tex.Crim.App.1992). Neither the OPINION granting motion to nor the of it con amend Here, stitutes the amendment. Id. we are HUDSON, Justice. presented only judge’s order with the (cid:127)permitting indictment. appellant, A amendment convicted Michael Joe Brooks, delivery physical of a controlled Because no alteration was made substance. itself, finding appellant previ- After the indictment was not had been the instrument murder, ously attempted convicted of amended. assessed his at confinement only prior con- It is well established that in the Institutional Division of the Texas may pleaded by the State be used for victions Department years of Criminal Justice for 15 enhancement. Moore v. Tex.Crim. $15,000 Appellant brings and a fine. two (1950). Since points of error in which he claims the trial para- contained no enhancement indictment (1) submitting court erred an enhanced graph, we first consider whether enhance- punishment charge admitting into allegations pled be in some man- ment recording proper an evidence audio without ner other than inclusion the indictment. judgment authentication. We affirm the
the trial court. time, were, Pleadings at one almost entire- ly parties simply opposite stood oral. The
In his first con- plaintiff and the recited his case each other by submitting tends the court erred an issue today pleadings or are almost tale.1 While jury regarding punish- enhancement of written,2 rejected the entirely Texas has ment contained no such when the indictment common law strict formalities identified with allegation. grand jury returned When the any writing giving fair pleadings.3 Virtually against appellant, it contained the indictment defense, aspect notice of some of a claim or paragraph. no enhancement The filed State counsel, opposing signed by served on the a motion for leave to amend the indictment (1989). Pleadings traditionally Ann. art. 27.10 Sir W. Maitland, 1. Frederick Pollock Fredric History orally, permitted common law to be made (2nd 1899); English Law 604-05 ed. guilty, guilty, William Commentaries plea or nolo such as a not Blackstone, on the Laws of (1768). writing. England required to be in are not contendere signed pleadings writing, 2. All civil must be in "Any allegations rea- which would show with attorney, party with the or his and be filed ground certainty the cause of action or sonable law, 45(d). clerk. TexR.Civ.P. In criminal sufficient, without reference to of defense will be indictment, quash State’s a defendant’s motion to departure conformity from the rules of with or or set an and a defendant's aside recognized law.” Hol- pleading as at common writing. plea in bar must be in Crim. TexCode Criswell, 15 Tex. art. 27.01 man v. (1989); TexCode Crim.Proc. Proc.Ann. court, party, pleading.4 punishment. and filed -withthe is hancement of Coleman (Tex. Crim.App. motion to amend the indictment 1979). allegation, was authorized statute. Tex.Code CRIM. An enhancement there (Vernon 1989). fore, merely pleading. art. 28.10 It was It contains ProcAnn. signed by attorney convey not writing, forth in elements of the offense. It does set jurisdiction According representing opposing upon on the trial served court. counsel, ly, pled and filed the clerk of the trial it does not have to be with the same with motion to the in- degree particularity primary court. The State’s amend as the of gave appellant fair notice of the dictment fense. Cole v.
State’s intent to enhance his with Crim.App.1981). conviction for murder. time, only pleading At one *4 its art. 481 indictment. Tex.Code CrimProc. An indictment serves at two least 1879). (repealed these circum Under purposes. distinct function of an indict One stances, allegations ap had to enhancement primary plead ment is to serve as the pear Long v. on the face of the indictment. ing. Tex.Code CrimProcAnn. art. 27.01 (1871). 6, adop 36 Tex. 10 With the (Vernon 1989). purpose pleading code, however, of the status of tion the 1879 put opposing party on of to fair notice being changed an indictment the State’s proved claims or defenses that will be at the merely being primary pleading, to its sole of v. time trial. Town Hudson Oaks State pleading.5 This to be the condition 610, continues City Weatherford, ex rel. 646 S.W.2d present under the code. Tex. 1983, indictments (Tex.App 612 writ refd Worth . —Fort (Vernon n.r.e.). art. 27.01 Another function is that an indict Code CrimPROcAnn. 1989). change permitted This has the State pre ment satisfies one of the constitutional pleadings felony purposes, to use for “notice” other requisites prosecution simply to a State, 763 being grand a than its indictment. See Guss v. the “written statement of Const, 10; 609, § juiy.” Tex. art. 610-11 I, Tex.Code . —Amarillo (Vernon 1989). (document 1989, pet.) 21.10 served on defense CrimProcAnn. statement, and with the court was a suffi Without such a the district court counsel filed jurisdiction felony pleading give of the has no to entertain a cause cient notice Chandler, finding of a Winfrey 159 Tex. to seek an affirmative action. v. intention (1958). 59, deadly weapon). 61-62 318 S.W.2d statutory necessary Although precept constitutionally
It is not disposition Long altered writ was that an enhancement be “the dictated century ago, of crimi grand jury.” an more than a the court ten statement of a Because appeals holding. paragraph not form nal has reaffirmed the See enhancement does Patterson, 766, 776 part allegations wrongdo parte 740 S.W.2d of the of criminal Ex modified, parte Ex ing, right (Tex.Crim.App.1987), a defendant has no constitutional Beck, (Tex.Crim.App.1 allega a'grand jury 769 S.W.2d have decide whether 989).6 court, appellate As an intermediate supported probable tion is cause. Batiste holdings obliged are to follow the (Tex.App. we 1990), not de —Corpus pet. ref'd, appeals. court of criminal We need Christi cide, therefore, motion to (Tex.Crim.App.1992). only purpose whether the State’s pleading, provide the indictment constitutes of an enhancement is to amend notice to provided or whether it sufficient the accused with notice that the State will satisfy guarantees of due attempt specific for en- the constitutional to use conviction pleadings, example, include In White v. 4. A defendant's for Crim.App.1973), in dicta the court also stated law to be filed. Tex. motion permitted (Vernon 1989). only alleged in an indictment convictions art. 27.02 Code Crim.Proc.Ann. State for enhancement. are available to the 5. See (1879); Tex. CrimProc. art. 521 Tex.Code (1895); art. 557 Tex.Code Crim. Code CrimProc. (1911); art. 504 Proc. art. 568 Tex.Code Crim.Proc. (1925); 27.01 Crim.Proc.Ann. art. Tex.Code for charge may be raised they Error in and due course of law. Before process in appeal. defects first time on for can be used enhancement error constitute reversible statutes, will not prior felony convic- under recidivist “egregious harm” to the they unless result Pat- pled in the indictment. tions must be accused. Almanza terson, 740 at 776. (Tex.Crim.App.1985). The test for de allegations Because “egregious harm” termining the existence posited in the and the must be denied “a fair the accused was is whether para no enhancement indictment contains Id., at 172. impartial trial.” allega graph, exists between the a variance prior had a undisputed It is trial court’s tions in the indictment and the Appellant testified that he felony conviction. charge. contends The State attempted murder convicted of this defect his failure to pellant waived years penitentia- to 20 and sentenced object preserve occasions. To on two critical offender, appellant was ry. As a second review, complaining appellate for punish- subject possibility of enhanced ordinarily timely party make a must trial, his the State ment. Months before objection. Turner v. specific enhanced gave appellant notice it would seek (Tex.Crim.App.), de cert. conviction for punishment based on nied, 870, 112 502 U.S. S.Ct. *5 joined at attempted murder. The issue was State, (1991); Armstrong v. 718 L.Ed.2d 162 hearing punishment beginning the of the 686, (Tex.Crim.App.1985). The S.W.2d 699 attorney read the “remain- when the State’s objected appellant have State claims should to the der” of the “amended” indictment (2) to the flawed indictment and to objection. Appellant confessed without punishment charge. the defective allegation was jury’s presence that true, receiving further admonitions but after object a defendant fails to to a When court, changed plea his to “not from the trial defect, error, irregularity in or or the form objection Appellant made no when true.” indictment, may substance of an he not raise to the the trial court submitted the issue objection appeal. on Tex.Code CRiM. short, charge. In both in the 1.14(b) (Vernon Supp.1996). PROcAnn. allegation as sides treated the enhancement object appellant puta Because did not properly if it were in the indictment and amendment, appellant tive the State claims is jury. before the court and complaining charge now about a barred predicated upon the “amended” indictment. complain that the en- Appellant does not contains no where the indictment surprised him or that hancement paragraph, appellant has no enhancement irregu- unprepared to meet it. The he was duty object to to its absence. The absence of larity solely from the fact before us stems “defect, paragraph an enhancement is not a physi- was not the enhancement error, State, irregularity.” or Luken v. 780 cally taped, stapled, glued or to the face of 264, (Tex.Crim.App.1989). The technically required by as the indictment appeals court criminal has held that in an process holding in In terms of due Ward. system justice, accusatory of criminal an fairness, say ap- we cannot and fundamental require pellate court cannot that the accused impartial pellant deprived of “a fair and range complain he faces too lenient a point is Appellant’s first of error trial.” Appellant did not waive punishment. Id. overruled. complaint concerning point Appellant’s second object by failing to to the want of an en during court below erred contends the paragraph in the indict hancement by admit guilt/innoeence phase of the ment. tape recording of a ting into evidence properly had not been appellant drug transaction that
The State also claims recording was made any complaint regarding authenticated. The waived the variance pur police officer when he object an undercover when he failed to to inclusion cocaine from charge. pieces of crack in the chased several enhancement issue 'd). appellant. pet. Appellant point When the State to of- ref s second evidence, tape recording appel- fer the into error is overruled. going object
lant “I’m stated: to the intro- LEE, Justice, dissenting. tape duction of the at this until we have testimony person actually op- some from the majority acknowledges The that the indict- erating recording.” the device that made the appellant ment was not and that amended objection was overruled. preserve yet it did not fail to deter- “egregiously mines that was not seven-prong test for authentication of harmed” the failure to amend the indict- recordings electronic set forth Edwards v. paragraph. ment to an include (Tex.Crim.App and, therefore, disagree I dissent. .1977), substantially incorporated has been into Tex.R.CRIM.Evid. 901. Leos v. In an order amendment actually 211 (Tex.Crim.App.1994). indictment must be altered. Neither provides granting Rule recordings may be the motion to amend nor the thereof sup authenticated constitutes the amendment. Ward v. “evidence sufficient to (Tex.Crim.App.1992). It port finding question that the matter in is pun is well settled the enhancement proponent what its claims.” Tex.R.Crim. 901(a). ishment must be limited to those con means which Several Evtd. actually pled. victions White authenticity recording may be estab (Tex.Crim.App.1973); Moore listed; among lished are these are: Tex.Crim. (1) Testimony a witness with knowl- guaran The Texas Constitution edge. Testimony that a it matter what right tees an accused the to be informed of is claimed to be. the nature and cause of the accusation n n : n n n : sfc against prosecution. him in a criminal Tex. *6 (5) Voice Identification identification. Const, I, 10; § Hilton v. voice, whether heard firsthand or (Tex.App [14th . —Houston through mechanical or electronic transmis- pet.). This information must Dist.] recording by upon opinion sion or based Ward, come the face of the indictment. hearing the voice at cir- time under 794; at Benoit v. connecting alleged cumstances it with (Tex.Crim.App.1977); Hil speaker. ton, Ward, at 78. As in the order granting the motion to amend certain 901(b)(1), state’s Tex.R.CRIM.Evid. ly provided appellant with notice The undercover officer who wore the mi- changes which would be made to the indict crophone drug and conducted the transaction ment, provide but it did not him notice of the with testified that he had listened Ward, charge against actual him. recording, it was an accurate guaran S.W.2d at 794. It is a fundamental recording question, in of the transaction tee that an accused is to learn advance of tape, there had been no deletions and being he is of so that he what accused tape the voices on the those of were prepare Id. Be properly his defense. himself, appellant, infor- confidential charging cause the instrument this case tape played, mant. As the the officer provisions, devoid of scene, speakers, described the identified the provide appellant failed to with notice state explained the context of the recorded allegation. Accordingly, of the enhancement dialogue. judgment of the trial I would reverse the testimony We believe that the of the offi court and remand for new cer was sufficient to authenticate the record hearing. ing. knowledge The officer’s firsthand recorded events and his identification of
pellant’s satisfy predicate for voice Rule 901’s
admissibility. Chatham v. [14th Dist.] . —Houston