Westfall v. State
970 S.W.2d 590
Tex. App.
1998
Check Treatment

*1 petition August the dates of Ms between July 1992. These admissions conspiracy

barred his claims for civil under limitations, two-year but left statute of

open Ms claims for fraudulent transfer under four-year statute of limitations. See Tex. 16.003(a) § & Prac. & Rem.Code Ann. Civ. Accordingly,

§ the trial court erred in 16.051. summary

granting judgment on all claims. Herring’s point of error.

We sustain summary

We REVERSE the trial court’s

judgment Herring’s claims for fraudulent

transfer, summary judg- but AFFIRM the Herring’s conspiracy.

ment on claims for

The to the trial court case REMANDED proceedings

for further consistent with this

opirnon. WESTFALL, Appellant,

Gwen David Texas, Appellee. STATE

No. 10-97-151-CR. Appeals of

Court of

Waco. 1998. April

Rehearing Overruled 1998.

Discretionary Refused Review

Sept. *2 were dis- Pretrial matters

with this cause. to a right and waived his cussed Westfall requested jury trial. also a continuance He morning. pre- all following After until the considered, the court motions were trial arraigned. if wished asked Westfall an- responded negatively, and the State He plea a ready. then entered nounced Westfall time, re- that trial was guilty. not At morning. following until 9:00 a.m. cessed morning, any witnesses The next before called, requested that “the were the State up information” be taken on amended Apparently, granted a the court had record. trial the information after motion to amend day. ob- previous recessed Westfall was Mason, Dallas, Edgar Appellant. A. for that jected, he was not aware stating that not and had any such motion had been filed Batchelor, Atty., Patrick C. Crim. Dist. Corsicana, Vollers, Austin, opportunity the sub- Atty., Jim had an to be heard on Pros. Appellee. for ject. complained an amend- He further that had allowed because he ment not be C.J., DAVIS, Before and and CUMMINGS At that already pled to the information. VANCE, JJ. attached, time, argued, jeopardy and the he longer be amended. information could OPINION overruled, objections he waived His VANCE, Justice. offered, delay ten-day the court and which by in- charged Gwen David Westfall was trial commenced. formation with the misdemeanor offense cruelty to animals. Tex. Ann. Pen.Code THE INFORMATION (Vernon § 42.09 A Supp.1998). 1994 & held, trial bench was and the court returned initially The information to Westfall guilty. a verdict of as- Punishment was stated, pled pertinent part: jail days, sessed at confinement in for 30 WESTFALL, hereinafter GWEN DAVID $2,000. probated year, for and one a fine of defendant, day of called on or about the 1st 1994). (Vernon § 12.21 com- Westfall AD.1996, filing of May, and anterior to the plains appeal erroneously that the court County in the said this Information permitted informa- State amend the Texas, and Navarro did then and State ready parties tion after both had announced intentionally fail un- knowingly there and plea. urges and he had his in his entered He and reasonably provide necessary food points second and third an order of custody, in the defendant’s care cattle acquittal appropriate remedy Rice, legal- providing the evidence pastured introduced trial is both ly factually con- water, and insufficient necessary food, or care for said viction under the cattle, against peace dignity alternative, point requests his first State. agree Athough remand. the court amended information deleted the word amendment, allowing find erred “Rice, replaced Texas” with “water” introduced trial is suffi- con- County.” appeal, On “Navarro Thus, no harm the erro- cient. we find from deletion of the term “water” cedes neous amendment and affirm the conviction. surplusage was the abandonment

FACTS it to be court did not err Eastep v. deleted. 18, 1997, February On Thus, we examine appeared proceed State court to propriety replacement of motion to amend the indict- the State’s However, “Rice, it orally granted. ment was County.” Texas” with “Navarro physical not until March 23 that the altera- TRIAL WHEN DOES COMMENCE? That tions were made to the indictment. 28.10(a) Article of the Code of Crimi day jury was the same on which the provides amending nal Procedure selected, impaneled, jurors and sworn. The *3 charging instrument without the defendant’s then to return dismissed instructed consent. It states: following day. day, next indict- the the

(a) defendant, jury, read to the and the trial ment was After notice to the a matter question continued. The arose as to whether of form or substance an indictment or or the the trial commenced on March 23 may any information be amended at time day. following the date the trial on the merits before request of the defen- commences. On the undisputed jeopardy It is that at dant, the court shall allow the defendant jury jury impan taches in a trial when the is days, period if not less than 10 or a shorter Bretz, 28, eled and sworn. Crist v. 437 U.S. defendant, requested by respond the to to 2156, 2162, (1978); 38, 57 L.Ed.2d 24 98 S.Ct. the amended indictment or information. (Tex. Preston, 515, parte 517 Ex 28.10(a) (Ver Ann. art. Tex.Code Crim. Proc. Crim.App.1992). Following authority, this added). 1989)(emphasis non The State Corpus that trial on the Christi Court held points predecessor out that the to this article at the time that the the merits commences prior allowed for an amendment to the time ie., sworn, jury impaneled is at the same trial, parties ready sug both announced Hinojosa, jeopardy time that attaches. gesting change language that the indi conclusion, reaching at 342. In this S.W.2d announcing ready cates that cannot be inter part relied in on Article 36.01 of the Court preted equate commencing. with trial Procedure, gov which Code Criminal authority propo this However it cites no proceedings. By including erns the order of and, fact, sition concedes that there 36.01, jury impaneling of the in Article authority contrary. ap Article 28.10 legislature impliedly that has determined trials, plies jury and bench situations both id.; begins jury impanelment. trial procedures in which different must occur be (Vernon Proc. Ann. art. 36.01 Tex.Code Crim. fore “trial on the merits commences.” Be Supp.1998). merely legislature looking cause the was not State, Similarly, in Thornton v. the Fort change in lan to bench trials when this concluded that the defendant’s Worth Court made, interpreted to guage Was it cannot be joined untimely motion to sever offenses was concept necessarily preclude the that trial on jury because he made his motion after the jeopardy the merits commences when at sworn, reading although had been taches. State, Thornton v. the indictment. already Additionally, question has (Tex.App. Worth S.W.2d — Fort appeals, been considered other courts of h.). Determining that trial no although only jury trial context and impaneled, commenced when regard not with to bench trials. The San part Hinojosa But court relied in Carpenter Antonio Court held in v. State that determination, goes further in Thornton its point that trial “commences” at the same jeopardy at stating point at which State, jeopardy Carpenter attaches. v. point at trial is should be the which taches Antonio — San commence, because it is considered pet. granted) (citing Hinojosa v. to trial be “put that the defendant is point (Tex.App —Corpus S.W.2d 339 Christi . (citing Id. at 156 fore the trier of facts.” pet.)). (Tex. 102, 105 Ortiz trial com Crim.App.1996)). We hold that Hinojosa held that it In the court purposes at for Article 28.10 allow the instrument mences was error to attaches, regardless of point jeopardy day trial Hi be altered the commenced. jury or before the trial is to a whether that nojosa, 875 at 342. On had been indictment 795. Because art Crim. Proc. Ann. court. Tex.Code 28.10(a). amended, the sufficien- the Court considered cy evidence to POINTS OF ERROR in- this is the impliedly because attached, even complains that dictment to point, In his first proceed- thought they had though parties information to all erred in court Finding points one. Id. His second and third on the amended amended. ed trial insufficient, sup- remand- urge insufficient the evidence original infor- port under the his conviction with an order ed case mation. Propriety of the Amendment McHenry the Dallas Court point alleges first Westfall’s challenge whether a considered *4 erroneously permitted to the State regard origi to the reviewed with should be on mer amend the information after trial the McHen nal or the “amended” information. 28.10(a). its commenced in violation of Article (Tex.App.— ry v. 823 670 S.W.2d trials, For attaches when bench (Tex. rev’d, 1991), 829 803 Dallas S.W.2d ready the both have announced and sides McHenry urged that the Crim.App.1992). pleads charging defendant to the instrument. original in proceeded to trial on the State (Tex. Torres, 421 State v. 805 S.W.2d or in- dictment because no written notation ready Crim.App.1991). Because announce charging the appeared on instru terlineation pled and ments were made required an amendment to be ment as 18, jeopardy at February information on guidance Id. at 671. Without the effective. time, at that and “trial on the merits tached Ward, physically of the court held that alter Thornton, 156; commenced.” 957 S.W.2d at necessary. not Id. ing the indictment was Carpenter, 6; Hinojosa, S.W.2d at caution, However, of an of the out abundance allowing at 342. The court erred in S.W.2d sufficiency the court considered the evi

the information to be amended after original the and dence under indictment Id. time. it sufficient. at 672. The found to be Id. the evidence sufficient court likewise found Sufficienoy of the Evidence Id. under the amended indictment. points, In his second third Appeals The of Criminal remanded Court urges that the court’s in the error per opinion, ordering McHenry in a curiam information to in be amended result appeals question to the the court of consider acquittal an the because evidence is insuffi- been an amendment in of whether there had original cient under In de- the McHenry light of Ward. termining sufficiency such review The (Tex.Crim.App.1992). appropriate, is look to Ward recognition appellate the footnoted its S.W.2d 787 sufficiency “attempted court address” the Ward, Appeals the Court of Criminal pointed “the Court of question but out that question the the addressed of whether application Appeals not did consider in amended indictment a bench trial was charge jury the forth the paragraph of set Although the motion to effective. State’s allegations contained the State’s ‘Motion granted, amend the indictment was allegations in the Amend Indictment’ not the change was not made the face of ‘original’ Id. indictment.” Holding that “amendment” indictment. remand, again af- the Dallas Court instru- On the actual alteration conviction, McHenry’s time ment, firmed refus- the indict- the Court concluded sufficiency the evidence ing at actually not amended. Id. consider ment had been regard to instead suffi- either 794. The Court then turned to Ward’s that, authorizes a stating charge challenge, stating because ciency “resolution trial, jury question solely in a one sufficiency question turned on conviction McHenry trial error. issue.” Id. resolution of the amendment dism’d). However, predicament we face. now — Dallas McHenry’s stated, petition as im Court dismissed The court “the trial court’s failure to Id. providently granted. physically alter indictment trial error, make is trial but it does not the evi Thus, considering find ourselves dence insufficient to the conviction.” judge indictment However, respond court did original against, the or the errone evidence argument McHenry’s prior dismissing it. ously Dallas one.1 The last amended It stated: McHenry decision does help, original the cause al- indictment distinguished specifically' court bench trials leged appellant personally examined determination, making stating: “In a its purchase quantity negotiated to of co- trial, bench we can measure the evidence remand, caine. On as he did on there is against only the indictment because submission, appellant argues that the rec- jury charge verdict.... In a bench appellant physically ord shows did not ex- trial, discrepancy indictment between the sample. Appellant amine the cocaine con- makes the evidence insuffi requires proof tends the word “examined” reviewing court reverse and cient. The must physical of actual contact with cocaine Ward, judgment enter sample. argues He that the record shows at 795.” 841 We appellant standing next to the under- very predicament in the now find ourselves *5 officer his cover and saw confederates in his Judge Clinton which was foretold sample. physically Ap- handle the cocaine McHenry’s of concurrence to the dismissal pellant argues then that when measured He petition at 302. for review. against original the in the in- allegations states: dictment, the is insufficient to evidence (gratuitously) that the Were to hold we disagree prove allegations. those We correctly court measured suffi- appeals of premise appellant’s and his conclusion. jury ciency charge, the we would against appellant’s

then contention we face commit- least hold the trial court should at jury submitting the ted trial error in premise ignores the basic dif- Appellant’s charge purportedly terms of the amend- in jury and trial. ference between a bench as ed instead of the indictment indictment trial, jury charge. the bench there is no But this contention originally drafted. finder, court, as must measure the fact Appellant not raise it comes too late. did against In a the evidence the indictment. original appeal. in his trial, jury charge a authorizes convic- tion. omitted). 458(citations Many arise peculiarities of this case of the review, McHenry again petitioned for once attempted of the amend- from the manner Appeals granted of and the Court Criminal implica- and the ment to the McHenry request. his Ward to questions opinion tions of our petition (Tex.Crim.App.1995). His was evidence gauge sufficiency of the of how to (1)

initially granted whether to determine being The Court and trial error.... holding appeals that a vari- court of erred a to judicious to wait for better occasion evi- indictment ance between the sufficiency measure for proper discuss inconsequential produced at trial was dence of evidence. sufficient when the evidence was portion of against application measured (2) charge, appellant was at jury appeals held the evi- due Because court to reversal and remand entitled a

least measured sufficient whether Id. The determination of this dence was to trial error. or the against unamended indictment us with the question would have assisted physically was altered. McHenry, in- strument Ward 1. Unlike instruction, operations to cattle Q: respect jury appellant With entitled those County, where were in Navarro an operations located? does not attack the sufficien Westfall you come— right A: Just off infor cy of the evidence under the amended Rice, it place, a we’d call there’d mation, charge and we do not have know, way of I 1126 either you would. There trial error. from which consider interstate, east west only we fore address interstate. charged as support the offense evidence 1-45? Q: interstate is And the ie., information, original the one to Ward, Yes, A: ma’am. attached.2 See at 795. you have to Q: many pastures did How for, job part your or it look out was - is complains that And, say going out for? I’m look finding of- support insufficient to that the Rice, many pastures how but “Rice, as fense committed in Texas” dealing are we with? alleged original Because in the pastures. A: Three he concedes that other elements sufficiently proved and offense have been cattle, your Q: many How best of the term “water” from recollection, deletion pas- on those three appropriate, must the information tures? determine the evidence is suffi- Right A: at 200 head. finding regarding support cient where say Q: you you for Mr. When worked the offense occurred. Under the you eight years, did for about information, must find the evidence suffi- or particular work cows with those finding cient to the offense length of for that herd cattle “Rice, was committed Texas.” Because *6 time? of for argues the standards review Westfall No, like completely, A: because it was legal sufficiency challenges, both and factual three I for him for about worked both, although prays will

we address he place in Rice years got he an County. in Navarro determining In evidence whether the verdict, legally to support we sufficient light in

view evidence most favorable investigation Q: you Are familiar an verdict, any rational asking to the concerning cattle that conducted was found trier fact could have the essential Rice, pastures in on those Texas? beyond a elements of the crime reasonable Yes, A: ma’am. State, 504, 507 doubt. Lane v. Virgi (Tex.Crim.App.1996) (citing v. Jackson 2781,

nia, 307, 318-19, 443 99 U.S. S.Ct. (1979)). 2788-89, L.Ed.2d 61 560 on, right, if it’s Q: from now all And cattle, going I Tony, say the I’m when Gist, Testimony Tony from Westfall’s pastures in to the on the refer cows manager, ranch clarified whereabouts Rice. alleged the cattle which were the victims A: Yes. exchange was as follows: this crime. law, by sufficiency does not question is authorized

2. The remains as to whether against unnecessarily State’s burden increase the a bench trial should be considered in unnecessarily charge" the State’s theo- "hypothetically proof or restrict announced correct liability, adequately describes Appeals v. ries of of Criminal in Malik place particular for which the defendant appropriate from which suffi- offense State as the being, presume time we do not ciency Id. For the evidence be measured. tried. of the jury charge" "hypothetically a correct Such that charge accurately applicable bench trials. out the would be one that sets that cattle were located CONCLUSION The fact Rice, testimony in this Texas was stated error, points all we Having overruled his Viewing light in the five times. evidence affirm Westfall’s conviction. verdict, most to the we conclude favorable have that a rational trier of fact could found OPINION DENYING REHEARING charged

that the offense was committed Rice, beyond Texas a reasonable doubt. 11, 1998, In opinion an issued March we Jackson, 318-19, 99 S.Ct. U.S. for misde affirmed Westfall’s conviction 2788-89. cruelty meanor to animals. See 10-97-151-CR (Tex.App.—Waco pet. 9 no 1 conducting a re In factual h.). so, doing that In we held the court view, all the without the we view evidence allowing an infor erred in amendment light prism of “in the favorable to the most attached, although mation after had only if prosecution” and set aside the verdict that did not result we determined such error overwhelming contrary weight it is so no in harm we found the error had clearly wrong as slight more influence on verdict. than unjust. Clewis (Tex.Crim.App.1996); Stone brief, argued In had that an his — Austin allowing error in instrument filed). 'd, reviewing untimely ref In the rec results in automatic reversal be amended ord, testimony no to contra have found (Tex. Eastep v. 941 S.W.2d 130 under true, being that above. That dict detailed However, Crim.App.1997). our understand find that this offense determination argument that he ing at oral conceded Rice, Texas is not so con was committed necessity analysis of harm under Cain trary overwhelming weight of the evi (Tex.Crim.App. 947 S.W.2d 262 clearly unjust.3 wrong and dence as to be 1997). rehearing, motion In a counsel for Id. Points two and three are overruled. Westfall clarified that he made such con cession, stating merely he conceded Haem and Matchett seemed mandate “Cain all error test in almost situations.” harmless one, urges point In the error in the amendment should Appeals the Court Criminal Eastep, concedes that this result in a remand. He that, unwavering a clear and line “[i]n stated reversal, not result in automatic error does *7 cases, Art. have held that violations of we result in reversal if we rather but subject analysis harm 28.10 are not to a v. find that he was harmed. See Cain will be tolerated no breach of statute 262, (Tex.Crim.App.1997); despite probable effect on outcome State, 941 926-30 Matchett S.W.2d Eastep, 941 135. How the trial.” S.W.2d is non-constitu (Tex.Crim.App.1996). This Cain, ever, later which we decided Court governed by Appellate Rule of tional error analysis. a harm read to necessitate Tex.R.App. 44.2(b) P. See Procedure . Cain, Appeals of Criminal stated: the Court 44.2(b); King constitutional Except for certain federal (Tex.Crim.App.1997); Fowler States Su- errors labeled the United 865-66 S.W.2d — Waco error, “structural,” filed). preme as no Court find that the evi Because we jurisdiction, it relates to voluntari- support Westfall’s dence was sufficient to mandatory any or other plea, of a conviction, error was harm ness find we categorically immune to requirement, Point disregard it. id. one less analysis. harmless error overruled. findings determining suffi- upon are under the If we to address

3. information, nec- erroneously would information would amended cient under factually legally erroneously sufficient findings find essarily support under finding offense was commit- amended testimony County.” relied ted "Navarro Cain, Thus, subjected 264. harm, analysis, to a harm found error Tex.R.App. disregarded the error. See 44.2(b); King v.

P. rehearing

The motion for is denied.

In re ESTATE OF Wilhelm

VIGEN, Deceased.

No. 13-96-548-CV. Appeals

Corpus Christi. *8 McAllen, Whatley, appellant.

Rita Beth Peisen, Office William D. Law William Peisen, Wong, & Judy Wong, Lee Talbot D. McAllen, appellee.