Lead Opinion
OPINION
Gwen David Westfall was charged by information with the misdemeanor offense of cruelty to animals. Tex. Pen.Code Ann. § 42.09 (Vernon 1994 & Supp.1998). A bench trial was held, and the court returned a verdict of guilty. Punishment was assessed at confinement in jail for 30 days, probated for one year, and a fine of $2,000. Id. § 12.21 (Vernon 1994). Westfall complains on appeal that the court erroneously permitted the State to amend the information after both parties had announced ready and he had entered his plea. He urges in his second and third points that an order of acquittal is the appropriate remedy because the evidence introduced at trial is both legally and factually insufficient to support a conviction under the original information. In the alternative, his first point requests a remand. Athough we agree that the court erred in allowing the amendment, we find that the evidence introduced at trial is sufficient. Thus, we find no harm from the erroneous amendment and affirm the conviction.
FACTS
On February 18, 1997, Westfall and the State appeared before the court to proceed with this cause. Pretrial matters were discussed and Westfall waived his right to a jury trial. He also requested a continuance until the following morning. After all pretrial motions were considered, the court asked if Westfall wished to be arraigned. He responded negatively, and the State announced ready. Westfall then entered a plea of not guilty. At that time, trial was recessed until 9:00 a.m. the following morning.
The next morning, before any witnesses were called, the State requested that “the amended information” be taken up on the record. Apparently, the court had granted a motion to amend the information after trial was recessed the previous day. Westfall objected, stating that he was not aware that any such motion had been filed and had not had an opportunity to be heard on the subject. He further complained that an amendment should not be allowed because he had already pled to the information. At that time, he argued, jeopardy attached, and the information could no longer be amended. His objections were overruled, he waived a ten-day delay which the court offered, and trial commenced.
THE INFORMATION
The information to which Westfall initially pled stated, in pertinent part:
GWEN DAVID WESTFALL, hereinafter called defendant, on or about the 1st day of May, AD.1996, and anterior to the filing of this Information in the said County of Navarro and State of Texas, did then and there intentionally and knowingly fail unreasonably to provide necessary food and care for cattle in the defendant’s custody, pastured in Rice, Texas, by not providing necessary food, water, or care for said cattle, against the peace and dignity of the State.
The amended information deleted the word “water” and replaced “Rice, Texas” with “Navarro County.” On appeal, Westfall concedes that the deletion of the term “water” was the abandonment of surplusage and that the court did not err in allowing it to be deleted. See Eastep v. State,
WHEN DOES TRIAL COMMENCE?
Article 28.10(a) of the Code of Criminal Procedure provides for amending a charging instrument without the defendant’s consent. It states:
(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.
Tex.Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989)(emphasis added). The State points out that the predecessor to this article allowed for an amendment prior to the time both parties announced ready for trial, suggesting that the change in the language indicates that announcing ready cannot be interpreted to equate with trial commencing. However it cites no authority for this proposition and, in fact, concedes that there is authority to the contrary. Article 28.10 applies to both jury and bench trials, situations in which different procedures must occur before “trial on the merits commences.” Because the legislature was not looking merely to bench trials when this change in the language Was made, it cannot be interpreted to necessarily preclude the concept that trial on the merits commences when jeopardy attaches.
Additionally, this question has already been considered by other courts of appeals, although only in the jury trial context and not with regard to bench trials. The San Antonio Court held in Carpenter v. State that trial “commences” at the same point that jeopardy attaches. Carpenter v. State,
In Hinojosa v. State, the court held that it was error to allow the charging instrument to be altered the day trial commenced. Hinojosa,
It is undisputed that jeopardy attaches in a jury trial when the jury is impaneled and sworn. Crist v. Bretz,
Similarly, in Thornton v. State, the Fort Worth Court concluded that the defendant’s motion to sever joined offenses was untimely because he made his motion after the jury had been sworn, although before reading of the indictment. Thornton v. State,
POINTS OF ERROR
In his first point, Westfall complains that the court erred in allowing the information to be amended. His second and third points urge that the evidence is insufficient to support his conviction under the original information.
Propriety of the Amendment
Westfall’s first point alleges that the State was erroneously permitted to amend the information after trial on the merits commenced in violation of Article 28.10(a). For bench trials, jeopardy attaches when both sides have announced ready and the defendant pleads to the charging instrument. State v. Torres,
Sufficienoy of the Evidence
In his second and third points, Westfall urges that the court’s error in allowing the information to be amended should result in an acquittal because the evidence is insufficient under the original information. In determining whether such a sufficiency review is appropriate, we look to Ward v. State,
In Ward, the Court of Criminal Appeals addressed the question of whether the amended indictment in a bench trial was effective. Although the State’s motion to amend the indictment was granted, the change was not made on the face of the indictment. Holding that “amendment” is the actual alteration of the charging instrument, the Court concluded that the indictment had not actually been amended. Id. at 794. The Court then turned to Ward’s sufficiency challenge, stating that the “resolution of the sufficiency question turned solely on resolution of the amendment issue.” Id. at 795. Because the indictment had not been amended, the Court considered the sufficiency of the evidence to support the original indictment, impliedly because this is the indictment to which jeopardy attached, even though all parties thought they had proceeded to trial on the amended one. Id. Finding the evidence insufficient, the Court remanded the case with an order of acquittal. Id. at 796.
In McHenry v. State, the Dallas Court considered whether a sufficiency challenge should be reviewed with regard to the original or the “amended” information. McHenry v. State,
The Court of Criminal Appeals remanded McHenry in a per curiam opinion, ordering the court of appeals to consider the question of whether there had been an amendment in light of Ward. McHenry v. State,
On remand, the Dallas Court again affirmed McHenry’s conviction, this time refusing to consider the sufficiency of the evidence with regard to either indictment, instead stating that, because the charge authorizes a conviction in a jury trial, the question is one of trial error. McHenry v. State, 841 S.W.2d
The original indictment in the cause alleged appellant personally examined and negotiated to purchase a quantity of cocaine. On remand, as he did on original submission, appellant argues that the record shows appellant did not physically examine the cocaine sample. Appellant contends the word “examined” requires proof of actual physical contact with the cocaine sample. He argues that the record shows appellant was standing next to the undercover officer and saw his confederates physically handle the cocaine sample. Appellant then argues that when measured against the allegations in the original indictment, the evidence is insufficient to prove those allegations. We disagree with appellant’s premise and his conclusion.
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Appellant’s premise ignores the basic difference between a bench and jury trial. In the bench trial, there is no jury charge. The court, as the fact finder, must measure the evidence against the indictment. In a jury trial, the charge authorizes a conviction.
Id. at 458(citations omitted).
McHenry once again petitioned for review, and the Court of Criminal Appeals granted his request. McHenry v. State,
Thus, we find ourselves considering which indictment to judge the sufficiency of the evidence against, the original or the erroneously amended one.
Were we to hold (gratuitously) that the court of appeals correctly measured sufficiency against the jury charge, we would then face appellant’s contention that we should at least hold the trial court committed trial error in submitting the jury charge in terms of the purportedly amended indictment instead of the indictment as originally drafted. But this contention comes too late. Appellant did not raise it in his original appeal.
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Many of the peculiarities of this case arise from the manner of the attempted amendment to the indictment, and the implications of our opinion in Ward to questions of how to gauge sufficiency of the evidence and trial error.... The Court is being judicious to wait for a better occasion to discuss the proper measure for sufficiency of evidence.
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Because the court of appeals held the evidence was sufficient whether measured against the unamended indictment or the*595 jury instruction, appellant is not entitled to an acquittal.
Westfall does not attack the sufficiency of the evidence under the amended information, and we do not have a jury charge from which to consider trial error. Therefore we address only the sufficiency of the evidence to support the offense as charged in the original information, ie., the one to which jeopardy attached.
Westfall complains that the evidence - is insufficient to support a finding that the offense was committed in “Rice, Texas” as alleged in the original information. Because he concedes that the other elements of the offense have been sufficiently proved and that the deletion of the term “water” from the information was appropriate, we must determine only whether the evidence is sufficient to support a finding regarding where the offense occurred. Under the original information, we must find the evidence sufficient to support a finding that the offense was committed in “Rice, Texas.” Because Westfall argues the standards of review for both legal and factual sufficiency challenges, we will address both, although he prays for only an acquittal.
In determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State,
Testimony from Tony Gist, Westfall’s ranch manager, clarified the whereabouts of the cattle which were the alleged victims of this crime. The exchange was as follows:
With respect to the cattle operations in Navarro County, where were those operations located? Q:
A: Just off 1126 right before you come— there’d be a place, we’d call it Rice, you know, I would. 1126 either way of the interstate, east and west of the interstate.
Q: And the interstate is 1-45?
A: Yes, ma’am.
Q: How many pastures did you have to look out for, or was it part of your job to look out for? And, I’m going to say Rice, Texas, but how many pastures are we dealing with?
A: Three pastures.
Q: How many cattle, to the best of your recollection, were on those three pastures?
A: Right at 200 head.
Q: When you say you worked for Mr. Westfall for about eight years, did you work with those particular cows or that herd of cattle for that length of time?
A: No, not completely, because it was like I worked for him for about three years before he got the place in Rice in Navarro County.
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Q: Are you familiar with an investigation that was conducted concerning cattle on those pastures in Rice, Texas?
A: Yes, ma’am.
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Q: And from now on, if it’s all right, Tony, when I say the cattle, I’m going to refer to the cows on the pastures in Rice.
A: Yes.
In conducting a factual sufficiency review, we view all the evidence without the prism of “in the light most favorable to the prosecution” and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State,
Haem
In point one, Westfall urges that the error in allowing the amendment should result in a remand. He concedes that this error does not result in automatic reversal, but rather should result in reversal only if we find that he was harmed. See Cain v. State,
CONCLUSION
Having overruled all his points of error, we affirm Westfall’s conviction.
Notes
. Unlike Ward and McHenry, this charging instrument was physically altered.
. The question remains as to whether sufficiency should be considered in a bench trial against the "hypothetically correct jury charge" announced by the Court of Criminal Appeals in Malik v. State as the appropriate place from which sufficiency of the evidence should be measured.
. If we were to address sufficiency under the erroneously amended information, we would find the evidence legally and factually sufficient to support a finding that the offense was committed in "Navarro County.” The testimony relied upon in determining that the findings are sufficient under the original information would necessarily support findings under the erroneously amended information.
Lead Opinion
OPINION DENYING REHEARING
In an opinion issued March 11, 1998, we affirmed Westfall’s conviction for misdemeanor cruelty to animals. See 10-97-151-CR (Tex.App.—Waco March 11, 1998, no pet. h.). In doing so, we held that the court erred in allowing an amendment to the information after jeopardy had attached, although we determined that such error did not result in harm because we found the error had no more than a slight influence on the verdict.
In his brief, Westfall had argued that an error in allowing the charging instrument to be amended results in automatic reversal under Eastep v. State,
In Eastep, the Court of Criminal Appeals stated that, “[i]n a clear and unwavering line of cases, we have held that violations of Art. 28.10 are not subject to a harm analysis and no breach of the statute will be tolerated despite the probable effect on the outcome of the trial.” Eastep,
Except for certain federal constitutional errors labeled by the United States Supreme Court as “structural,” no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.
The motion for rehearing is denied.