*1 appellant support [Cook’s] arrest because received Ms Mi- not contention that warnings a complete randa and there is ab- and seizure watch the wallet were any improper purpose flagrant illegal sence of search arrest. the result and police judge not misconduct. The trial did Id., reasomng Our 473. overruling appellant’s sup- err in motion to applicable Cook is to instant case. The press his statements to WMte.- physical evidence was seized until after County the arrest warrant from Hamilton
B. appellant was executed and does not contest Thereforе, validity of that Physical warrant. The Evidence judge appel- trial did in overruling not err The indicates of record suppress physical lant’s motion to evi- arrest, appellant’s County a Hamilton Justice dence. appellant’s issued a Peace warrant charges. capital arrest on murder The war- IY. rant on appellant was served in the Co- County appellant Appellant’s manche Jail and was taken warrantless arrest did not County requirements before a of Comanche Justice of meet the Code Tex.Penal 14.01(b) legal was, rights.5 14.03(a)(1), § Peace and informed of The Ms Ann. and However, Justice of illegal. judge the Peace executed a form entitled therefore the trial “Warning Rights” indicating appellant of correctly appellant’s sup- was overruled motion to rights appellant press. Therefore, informed of these majority’s and exe- concur cuted indicating the same form appellant’s point he under- resolution of first error of Appellant stood join only them. judgment was thereafter trans- and of the Court. into, ported to, and booked the Hamilton
County arriving Jail. After at the Hamilton CLINTON, J., joins opirnon. tMs Jail, County appellant agreed provide to sam- ples pubic of his heаd and hair. The next
day appellant again legal informed of Ms
rights by County a Hamilton Justice of the Subsequent
Peace. warning, to tMs second
appellant production consented to the of sam-
ples saliva, provid- Ms blood and and later samples
ed pubic additional headMs and
hair. physical evidence was seized after the WHITE, Appellant, Arness County
Hamilton Justice of Peace issued capital murder arrest warrant. Cook (Tex.Cr.App.1993), Texas, Appellee. The STATE of challenged legality defendant ar- No. 553-94. judge rest and contended the trial erred failing suppress to the victim’s watch and Texas, Criminal wallet were found on the defendant. En Banc. However, a warrant for Cook’s arrest was prior issued to the seizure the evidence. Dec. We stated: validity [Cook] contest the Therefore,
the warrant. the record does 1) silent; 4) Appellant any was informеd: he was he to make did not have statement murder; 2) County capital any Hamilton he he had statement that made used him; 5) right represent stop lawyer against right any retain a to him he had the or, time; 6) prior poor questioning, right he he to an if was to interview had the trial; 7) request lawyer, appoint- examining he retain a could that bail denied. 3) lawyer; right ment of a he had the to remain Tex.Code Crim.Proc.Ann. art. 15.17.
White v. Appeals at 232. The of Court explained the an aban- deletion “was of one the alternative theories as donment of White, to how crime committed.” at the Wice, Houston, appellant. fоr Brian distinguished Appeals the 233. The Court of Holmes, Atty., in changes B. Dist. and Rikke instant case from cases wherein John Alcala, Attys., and Elsa Asst. Dist. to be Burke indictments were considered amend- Houston, Huttash, Atty., changes Robert State’s Aus- “clear ments because the latter were tin, substantially for the State. and amendments affеcted against the defendants.” White charges
the S.W.2d, at In the instant case, charged appellant “neither the deletion prejudiced any of his new offense nor APPELLANT’S PETITION OPINION ON White, rights.” at 233. substantial REVIEW FOR DISCRETIONARY granted appellant’s petition for This Court PER CURIAM. discretionary ground: on the review appellant jury of the offense of A сonvicted robbery. aggravated Appeals the of in “Whether Court erred TEX-PENAL § 29.03. The trial court found CODE ANN. holding trial did not err in that the court allegations against permitting both of enhancement defense coun- over true, punish appellant to and assessed his objection, amend sel’s to the indictment years’ сonfinement in the Texas day by deleting ment at trial the words “use of Justice, Department of Criminal Institutional Arti- a” from the indictment violation of 12.42(d). Appellant pursued 28.10, Division. See cle V.A.C.C.P.” appeal an of his conviction and sentence. earefijl After consideration of the record affirmed his conviction. The Court case, parties, of the filed both briefs (Tex.App.— White v. opinion Appeals, of the Court Houston appellant’s petition was improvi- we find appellant argued the trial appeal, In that dently Rule granted. TEX.R.APP.PROC. permitted the to erroneously de court 202(k). a” the words “use from lete аrraignment.1 discretionary re- Appellant Appellant’s petition asserted indictment, hereby of the constituted an amendment dismissed. view is the ten- he therefore entitled to and that was provision of TEX.CODE CRIM. notice BAIRD, Judge, concurring. Ap Art. The
PROC.ANN. Court peals held: agree majority’s ulti- Although I with the judgment of origi- affirm the wording mate conclusion to
“It is clear from the Appeals, do not believe our the Court of indictment that was intended was nal what petition for grant this discretion- ... when a decision to “use and exhibit.” The ary improvident. Court alleges in the con- review an offense instrument “and,” fully explain Appeals’ opinion does junctive, as with use word ambiguous distinction the law between jury proper charge it is Con- “or.” “amendment” and an “abandonment.” disjunctive by using the word form omitted) (citations sequently, this should make effort to aban- The decision these allegations as a clearer distinction between draw one of two altеrnative don altering an indictment. Be- two the offense is methods the manner of majority undertake that cause the fails to the indictment within not an amendment of effort, separately. I write meaning of Art. 28.10.” read, deletion, issue, it "... A KNIFE." After the before The section of deadly deletion, read, did exhibit a did Defendant thеn there "... the Defendant then wit, wit, weapon, deadly A KNIFE.” weapon, to exhibit a and there use a I. II. Appeals’ The Court of conclusion that the problem in the instant stems case deletion from the indictment was an aban from the State’s deletion of two from words donment and “did not constitute amend deletiоn, the indictment. Prior to that *3 meaning ment to the indictment within the read, pertinent in part, ap- 28.10,” White, 233, art. 874 S.W.2d at pellant: explain the distinction altera between in [w]hile the course of theft of tions to an indictment which are amendments property by owned TAMMY PINSON and meaning within the of art. 28.10 and those with intent to obtain and mаintain control Dictionary which are not. Black’s Law de property, intentionally knowing- and by fines an amendment as an “alteration] ly place[d] threatened] and TAMMY PIN- modification, deletion, or addition.” Black’s bodily injury
SON fear of imminent and (6th 1990). Dictionary, Law 81 ed. This death, [appellant] there, did then and definition, hоwever, clearly encompasses both deadly wit, use a exhibit a weapon, to A an my amendment and an abandonment. To KNIFE.1 knowledge, this Court has never defined an have, however, explained amendment. We arraignment, At the the State moved to de that an amendment consists of the actual lеte the words “use a” from the indictment physical alteration of the indictment. Ward by bracketing those writing words and State, 787, v. 829 (Tex.Cr.App. S.W.2d 793 by “abandoned State” underneath them. 1992). Nonetheless, physical alteration judge granted The trial the State’s motion indictment, itself, of an always does not appellant’s objеction. over Appellant, con meaning constitute amendment within the tending amendment, the alteration was an State, of art. 28.10. Garcia v. 537 S.W.2d requested See, days ten respond. Tex. 930, (deletion (Tex.Cr.App.1976) 932-933 28.10(a). Code Crim.Proc.Ann. art. amendment, allegation was “no[t] [an] but merely ways an abandonment of onе The issue before Appeals the Court of by means which the offense could be whether the alteration of the indictment vio committed”); and, State, Stockton v. 756 prohibition lated the against amending an 1988) 873, (Tex.App. S.W.2d 875 —Austin See, indictment on the of trial. v. State (“abandonment allegation ... in order Murk, 556, 815 (Tex.Cr.App. S.W.2d 558 proceed on the lesser included offense is 1991); State, Sodipo 551, v. 815 S.W.2d 556 merely proof, the decision not to offer and, (Tex.Cr.App.1990); art. 28.10.2 The apply”). art. 28.10 does not held art. 28.10 did not apply amending because rather than the in Although my research has failed to uncov- dictment, the State abandoned аny one er eases in attempted which we have two alternate means of alleging the offense. detail the distinction between an amendment White, 229, (Tex. State v. 874 abandonment, S.W.2d 233 and an review the caselaw 1994). App. [14th relating Dist] to art. 28.10 reveals three eireum- —Houston emphasis supplied 1. All is unless otherwise indi- ed after the trial on the merits commences if cated. object. the defendant does not (c)An may indictment or information not be objection amended over the defendant’s as to provides: Tex.Code Crim.Proc.Ann. art. 28.10 form or substance if the amended indictment (a) defendant, notice to thе charges After a matter of of information the defendant with an form or substance in an indictment or informa- additional or different offense or if the substan- may rights tion prejudiced. amended at time before the tial of the defendant are date the provided: trial on the merits commences. On Prior to аrt. 28.10 defendant, request Any the court shall allow matter of form in an indictment or in- days, may defendant less than 10 a short- formation be amended at time before defendant, period requested by er if ready upon the announcement of for trial respond by parties, to the amended indictment or infor- merits both but not afterward. No mation. matter of substance can be amended. (b) also, A matter of form or substance in an Tex.Code Crim.Proc.Ann. art. 533 (1925) may (repealed indictment or information also be amend- 72 may prosecution to that of a lesser included off in which alter an
stances
the State
State,
618
ense.3
Allison v.
S.W.2d
implicating
indictment without
art.
First,
may
by
(Tex.Cr.App.1981);
v.
alter the indictment
766-765
Leonard
State
118;
State,
v.
abandoning one or more alternative means
481 S.W.2d at
Thomas
may
(Tex.Cr.App.1970);
which a defendant
commit
offense. 451
Wat
Second,
Garcia,
means be in the disjunctive jury and a may be in thе C.Surplusage alleged up will conviction on mean by supported if it the evidence. held is may surplus- Finally, the State abandon 258; Kitchens, Aguirre v. 823 S.W.2d at age, allegations which e.g., delete words or State, 320, (Tex.Cr.App.1982); 732 S.W.2d 326 validity of the indict are not essential and, State, 484, Vasquez v. 665 S.W.2d 486- ment, violating art. 28.10. without Whet Thus, (Tex.Cr.App.1984). 487 because (Tex.Cr. State, 361, 786 365 stone v. S.W.2d allege has the discretion to alternative State, State 626, App.1990); Davis v. 532 S.W.2d offense, committing means an the State State, (Tex.Cr.App.1976); Burrell v. 629-630 may abandon one more those means 799, (Tex.Cr.App.1975); 526 S.W.2d 802 constituting it an amendment within and, Stockton, without 712; Brown, at 843 S.W.2d Garcia, scope art. 28.10. 537 However, S.W.2d 875-876, 756 at n. 2. S.W.2d State, also, at 933. Holder v. 837 S.W.2d See subject exception rule to the that “where is 1992); (Tex.App. Brown v. 806 unnecessary descriptive is of that matter —Austin State, (Tex.App. 712 843 S.W.2d charge crime it legally a which is essential —Dallas 1992); State, 286, 290 Yates v. 766 S.W.2d alleged, though proven even must be as 1989); Stockton, 756 (Tex.Apр. Burrell, needlessly stated.” 526 S.W.2d —Dallas and, 2;n. Tooke v. S.W.2d at 875-876 also, 711 Wray (Tex.App. 517 and, 642 S.W.2d (Tex.Cr.App.1986); Franklin 633 —Houston 1982). (Tex.Cr.App.1983). 833 659 S.W.2d Accordingly, when the indictment describes Offense B.Lesser-included thing unnec necessary person, place or allega additional essary particularity, those may an also abandon not be surplusage to be doing if so tions cease in the indictment reduces prohibition their constituent elements Although seemingly whether each of violates fenses 28.10(c) against amending wording alleged in to this on the indictment art. in the are offense, justified charge we have a different greater Allison v. offense or not." ground greater “the offense ... (Tex.Cr.App.1981). necessarily lesser of- includes all the included by violating abandoned the State (Tex.Cr.App.1992). -without art. this means Whether Burrell, S.W.2d at 803. But alteration of a instrument will allegations “amendment,” necessarily where are constitute an neither essential how- ever, charge an descriptive offense nor of those we have not said. Since the word has essential, given specialized meaning, so far been no elements which are their deletion meaning conveys take it it from the to have whatever indictment does not fall within the See, Davis, ordinary acceptation. legal par- scope of art. 28.10. Even lance, out, Judge points as Baird also 629-630. alia, may, ...
“amendment” inter “alter (6th Dictionary, deletion.” Black’s Law at 81 III. happened ed. Is that not what in this sum, those to an alterations cause? which delete one more alternative means offense, allegations delete Whether we will adhere to Garcia view resulting prosecution in the for a lesser-in- of the 1985 amendment to the statute seems offense, cluded surplusage, or delete are open question, sufficiently me an and a abandonments, amendments, within important granted discretionary one that we meaning exclusion, By of art. 28.10. all other review in the first instance. The Court does *5 alterations constitute amendments to the in- explain why question now has its lost subject dictment and are to art. 28.10. import. I would address it. Because the not, does dissent. light foregoing, the Court Appeal’s conclusion thаt art. 28.10 did not
apply to the State’s deletion of “use a” from
the indictment was correct because the State abandoned an charging one committing ag- alternative means of
gravated robbery. Tex.Penal Code Ann. 29.03(a)(2). Accordingly, art. 28.10 did not
apply to the instant case. Stephen GEORGE, Appellant, join only
With these comments I judg- ment of the Court. Texаs, Appellee. The STATE of J.,
MILLER, joins opinion. No. 006-93. CLINTON, Judge, dissenting. Texas, Court of Criminal I dissent to the action of the Court En Banc.
improvidently granting petition for dis cretionary review. It is true we have held Dec. 28.10, under former versions of Article V.A.C.C.P. that the abandonment of an alter statutory theory
native prosecution
not constitute an “amendment.” Garcia (Tex.Cr.App. at 933
1976). But that was before the 1985 amend provision providing days
ment to that for ten respond
for the defendant to to an amend Leg., 577, §
ment. Acts 69th ch. Judge
eff. Dec. points As Baird out concurring opinion, we have never parameters
defined the of the word “amend
ment.” We have said that an amendment “is
the actual alteration instru
ment.” Ward v.