Jessie Rivera v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00126-CR Jessie Rivera, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0981615, HONORABLE FRED A. MOORE, JUDGE PRESIDING A jury found appellant Jessie Rivera guilty of unlawfully possessing a firearm. See Tex. Penal Code Ann. § 46.04(a)(2) (West 1994). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for thirty-five years. We will modify the district court's judgment to delete the deadly weapon finding and affirm the judgment as modified. By two points of error, appellant contends the district court erred by permitting the State to amend the indictment. As presented by the grand jury, the indictment alleged: [Appellant] on or about the 29th day of March, A.D. 1998, . . . did then and there intentionally and knowingly possess a firearm, to-wit: a shotgun, at a location other than the premises at which the said [appellant] lived, and prior to the commission of said act, the said [appellant] had been convicted of the felony offense of Theft From Person, on December 18, 1990, in Cause Number 106,319 in the 167th Judicial District Court of Travis County, Texas, and the possession of the firearm as alleged above was after conviction for said felony and after the fifth anniversary of the release of the said [appellant] from confinement . . . . See id. Appellant moved to dismiss the indictment on the ground that it failed to allege an element of the offense: that the felony of which he had been convicted involved an act of violence or threatened violence. Appellant argued that because the alleged felony theft conviction predated September 1, 1994, the effective date of current section 46.04, the prosecution was governed by the statute in effect before the 1994 amendment. See Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 46.05, 1973 Tex. Gen. Laws 883, 964 (Tex. Penal Code Ann. § 46.05, since amended and renumbered as § 46.04). Under former section 46.05, the prior felony conviction had to be for an offense involving an act of violence or threatened violence to a person or property. In response to appellant's motion, the State moved to amend the indictment to add the allegation that appellant's previous conviction involved an act of violence. The motion was granted and the indictment was amended to read that appellant "had been convicted of the felony offense of Theft From Person, said offense being a crime of violence, on December 18, 1990, in Cause Number 106,319 . . . ." (Emphasis added.) This is not the amendment of which appellant complains. Six days after appellant's indictment was amended, the court of criminal appeals announced its opinion in State v. Mason, 980 S.W.2d 635 (Tex. Crim. App. 1998). In Mason, the court held that the date of the previous felony conviction is not an element of the offense under section 46.04. So long as the firearm is possessed on or after September 1, 1994, section 46.04 applies even if the previous felony conviction predates September 1, 1994. Id. at 641. In light of Mason, appellant's motion to dismiss the indictment was without merit and the resulting amendment was unnecessary. On the day appellant's trial began, but before jury selection, the State announced that it was abandoning the allegation that appellant's previous felony conviction was for a crime of violence. The next day, before testimony began, the State announced that it was also abandoning the allegation that appellant possessed a firearm after the fifth anniversary of his release from confinement. Appellant objected to both of these abandonments as being, in fact, amendments to the indictment. The objections were overruled. The State may not amend an indictment on the day of trial but before trial commences. See State v. Murk, 815 S.W.2d 556, 558 (Tex. Crim. App. 1991); Tex. Code Crim. Proc. Ann. art. 28.10 (West 1989). The State may not amend an indictment after trial commences if the defendant objects. Art. 28.10(b). If what the State and the district court considered to be abandonments of unnecessary allegations were in fact amendments to the indictment as appellant contends, the first was impermissible under the holding in Murk and the second violated article 28.10(b). An amendment is an alteration that affects the substance of the indictment. See Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997). An abandonment, even if accomplished by the physical alteration of the indictment as in this cause, does not affect the substance of the indictment. Id. at 133. The deletion of surplusage from an indictment is considered an abandonment, not an amendment. Id. at 134. Surplusage is language that is not legally essential to the offense alleged in the indictment. Id. There is an exception to the last statement: if the unnecessary language is descriptive of that which is legally essential to the indictment, it may not be treated as surplusage. See Burrell v. State, 526 S.W.2d 799, 802-03 (Tex. Crim. App. 1975). Thus, the State may abandon as surplusage only those portions of an indictment that are neither legally essential to the offense alleged nor descriptive of that which is legally essential. See Eastep, 941 S.W.2d at 134. We first address the allegation that the previous felony conviction was for a crime of violence. As previously discussed, this allegation was not legally necessary to state an offense under section 46.04. Nevertheless, appellant contends the allegation could not be abandoned as surplusage because it was descriptive of the previous theft conviction. The defendant's status as a convicted felon is an element of the offense under section 46.04. See Mason, 980 S.W.2d at 640-41. But the nature of the felony for which the defendant was convicted is irrelevant; all convicted felons are included within the proscriptions of section 46.04. Id. at 638-39. The allegation that appellant's felony conviction was for a crime of violence did not describe or modify appellant's status as a convicted felon, but merely described the nature of the offense previously committed. Appellant would have been a convicted felon in possession of a firearm away from his residence whether or not his earlier conviction was for a crime of violence. Because the unnecessary allegation did not describe or explain an element of the offense, but instead mistakenly added an unnecessary factual element to the indictment, it was surplusage. See Upchurch v. State, 703 S.W.2d 638, 641 (Tex. Crim. App. 1985) (in prosecution for failing to maintain financial responsibility, unnecessary allegation that vehicle was not exempt from Safety Responsibility Act was surplusage); Kirschner v. State, 997 S.W.2d 335, 340 (Tex. App.--Austin 1999, pet. ref'd) (in prosecution for misapplying construction trust funds, unnecessary allegation that funds were not used to pay actual expenses relating to construction was surplusage). Because the allegation that appellant had been convicted of a crime of violence was surplusage, the district court did not err by permitting the State to abandon the allegation on the day trial began. Issue one is overruled. We now turn to the allegation that appellant possessed the shotgun more than five years following his release from confinement. Under section 46.04, it is unlawful for a convicted felon to possess a firearm at any location other than the premises at which he lives either before (section 46.04(a)(1)) or after (section 46.04(a)(2)) the fifth anniversary of his release from confinement or supervision. Having alleged that appellant possessed the shotgun at a location other than his residence, it was not legally necessary for the State to allege that this possession occurred on a date following the fifth anniversary of appellant's release from confinement. Appellant does not argue to the contrary, but nevertheless urges that this allegation was descriptive of an essential element of the offense. Appellant does not identify this element. To establish a violation of section 46.04, it was necessary for the State to prove that appellant was a convicted felon and that he possessed a firearm at a place other than his residence. The allegation that the possession occurred after the fifth anniversary of appellant's release from confinement did not describe or modify any of these necessary facts. Appellant would have been a convicted felon in possession of a firearm away from his residence whether or not his confinement had ended more than five years earlier. Like the allegation that appellant's previous conviction was for a crime of violence, the allegation that he possessed a firearm more than five years after his release from confinement merely added an unnecessary factual averment to the indictment. The allegation was surplusage, and the district court did not err by permitting the State to abandon the allegation after trial began. See Upchurch, 703 S.W.2d at 641; Kirschner, 997 S.W.2d at 340. Issue six is overruled. In related issues, appellant contends the evidence is legally and factually insufficient to sustain his conviction because the State failed to prove that his previous felony conviction was for a crime of violence or that he possessed the shotgun more than five years after his release from confinement. Because the State was properly allowed to abandon both of these allegations, this argument necessarily fails. Appellant does not otherwise challenge the sufficiency of the evidence. Issues two and three are overruled. Appellant next urges that the district court erred by reciting in the judgment that a deadly weapon was used in the commission of this offense. In order to "use" a deadly weapon for affirmative finding purposes, the weapon must be utilized to achieve the commission of a felony offense separate and distinct from mere possession. See Ex parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992). The State concedes that there is no evidence that appellant possessed the shotgun in furtherance of any collateral felony. Issue five is sustained. In light of this ruling, we need not address issue four. The judgment of conviction is modified to delete the affirmative finding that a deadly weapon, a firearm, was used by appellant in the commission of the offense. As modified, the judgment is affirmed. Lee Yeakel, Justice Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel Modified and, as Modified, Affirmed Filed: December 9, 1999 Do Not Publish that appellant's felony conviction was for a crime of violence did not describe or modify appellant's status as a convicted felon, but merely described the nature of the offense previously committed. Appellant would have been a convicted felon in possession of a firearm away from his residence whether or not his earlier conviction was for a crime of violence. Because the unnecessary allegation did not describe or explain an element of the offense, but instead mistakenly added an unnecessary factual element to the indictment, it was surplusage. See Upchurch v. State, 703 S.W.2d 638, 641 (Tex. Crim. App. 1985) (in prosecution for failing to maintain financial responsibility, unnecessary allegation that vehicle was not exempt from Safety Responsibility Act was surplusage); Kirschner v. State, 997 S.W.2d 335, 340 (Tex. App.--Austin 1999, pet. ref'd) (in prosecution for misapplying construction trust funds, unnecessary allegation that funds were not used to pay actual expenses relating to construction was surplusage). Because the allegation that appellant had been convicted of a crime of violence was surplusage, the district court did not err by permitting the State to abandon the allegation on the day trial began. Issue one is overruled. We now turn to the allegation that appellant possessed the shotgun more than five years following his release from confinement. Under section 46.04, it is unlawful for a convicted felon to possess a firearm at any location other than the premises at which he lives either before (section 46.04(a)(1)) or after (section 46.04(a)(2)) the fifth anniversary of his release from confinement or supervision. Having alleged that appellant possessed the shotgun at a location other than his residence, it was not legally necessary for the State to allege that this possession occurred on a date following the fifth anniversary of appellant's release from confinement. Appellant does not argue to the contrary, but nevertheless urges that this allegation was descriptive of an essential element of the offense. Appellant does not identify this element. To establish a violation of section 46.04, it was necessary for the State to prove that appellant was a convicted felon and that he possessed a firearm at a place other than his residence. The allegation that the possession occurred after the fifth anniversary