Leo May v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-058-CR LEO MAY, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 18,361, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING PER CURIAM A jury found appellant guilty of delivering less than twenty-eight grams of cocaine. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.112 (West 1992). The jury assessed punishment, enhanced by two previous felony convictions, at imprisonment for life and a $20,000 fine. Tex. Penal Code Ann. § 12.42(d) (West Supp. 1993). (1) We will sustain appellant's first point of error, in which he complains that the indictment did not authorize punishment as a habitual felon. The grand jury's indictment was filed on September 10, 1992. No previous felony convictions were alleged for enhancement of punishment. On January 8, 1993, the State filed a motion to amend the indictment to add two enhancement paragraphs. The district court granted the State's motion to amend without objection by appellant. Although the enhancement paragraphs were set out in both the motion to amend and the order granting the motion, the indictment itself was not physically altered to add the paragraphs. Trial began eleven days later. At the beginning of the punishment stage, the two enhancement paragraphs were read to the jury and appellant entered a plea of true to both. Without objection, the court's charge authorized the jury to assess punishment pursuant to article 12.42(d) if it found the enhancement allegations to be true. The jury returned a verdict finding that appellant had two previous felony convictions and assessing punishment accordingly. Although the State must obtain the permission of the trial court to amend an indictment, neither the motion for leave to amend nor the order granting the motion constitutes the amendment itself. Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992). The amendment of an indictment is accomplished by the actual alteration of the instrument by handwriting, typing, interlining, or some other method. Id. In this cause, the indictment was never physically altered to add the two enhancement paragraphs. Therefore, under Ward, the indictment was never amended and the enhancement paragraphs were not alleged in the indictment. Our constitution guarantees an accused the right to be informed of the nature and cause of the accusation against him, and this information must come from the face of the indictment. Tex. Const. art. I, § 10; Ward, 829 S.W.2d at 794. This constitutional right to notice extends to the enhancement of punishment by proof of previous convictions. See White v. State, 500 S.W.2d 529, 530 (Tex. Crim. App. 1973) (to enhance punishment, previous convictions must be alleged in indictment); Parasco v. State, 309 S.W.2d 465, 467 (Tex. Crim. App. 1958) (defendant entitled to notice in indictment of any previous conviction the State seeks to use for enhancement of punishment). The State concedes that, under Ward, the indictment was never amended to add the enhancement allegations. It therefore follows that while appellant was given actual notice of the State's intention to seek an enhanced punishment, the notice given was not constitutionally adequate. The State argues that appellant waived any error by failing to object to the indictment or to the amending of the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (West Supp. 1993) & art. 28.10 (West 1989). Appellant does not complain that there was any defect of form or substance in the indictment. Thus, article 1.14(b) does not apply and appellant's failure to object to the indictment is of no consequence to this appeal. Ward, 829 S.W.2d at 795. Similarly, appellant does not assert that the indictment was improperly amended, but instead argues that there was no amendment at all. Thus, appellant's failure to bring forward an objection pursuant to article 28.10 does not bar his complaint that the previous convictions used to enhance his punishment were not alleged in the indictment. Id. Delivery of less than twenty-eight grams of cocaine is a first degree felony. Health & Safety Code § 481.112(b). The punishment assessed is within the range prescribed for the offense. Tex. Health & Safety Code Ann. § 481.106 (West 1992). We are not convinced, however, that the jury's determination of the proper punishment was not influenced by the higher minimum term of imprisonment specified by section 12.42(d). The judgment of conviction is reversed and the cause is remanded for new trial as to punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 1993). (2) [Before Chief Justice Carroll, Justices Aboussie and Jones] Reversed and Remanded Filed: August 25, 1993 [Do Not Publish] 1. Section 12.42(d) does not authorize assessment of a fine, as appellant points out in his third point of error. See Bogany v. State, 661 S.W.2d 957 (Tex. Crim. App. 1983). Because other error requires that the judgment be reversed and the cause remanded for a new trial on punishment, we do not reach this point of error. 2. Because appellant's other points of error allege error at the punishment stage, they are rendered moot by our disposition of point one.