EDDIE LEE RODGERS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 24, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01439-CR
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EDDIE LEE RODGERS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-65277-UT
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OPINION
Before Chief Justice Thomas and Justices Lang-Miers and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Eddie Lee Rodgers was indicted for the offense of burglary of a building with the intent to commit theft, a state jail felony punishable under section 12.35(a) by confinement in a state jail for any term of not more than two years or less than 180 days. See Tex. Pen. Code Ann. §§ 30.02(a)(1), 12.35(a) (Vernon 2003). However, the indictment alleged two prior sequential felony convictions, thereby enhancing the range of punishment to that of a second degree felony. See Tex. Pen. Code Ann. § 12.42 (a)(2) (Vernon Supp. 2006). The punishment range for a second degree felony is imprisonment for any term of not more than 20 years or less than 2 years. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003).
        Appellant pleaded guilty before a magistrate to the charged offense without an agreement on punishment. The trial judge adopted the actions of the magistrate, considered certain punishment evidence including appellant's judicial confession and a pre-sentence investigation report (PSI), denied community supervision, and assessed appellant's punishment at eight years' confinement in the penitentiary. Eight years is within the range of punishment for a second-degree felony but outside the range for a state jail felony.
        On appeal, appellant presents the sole issue of whether the trial court committed reversible error by not properly amending the indictment after granting the State's written motion to amend. Appellant contends the indictment was never amended and he should have been subject only to state jail felony punishment; thus, his eight-year sentence is illegal and he is entitled to a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon 2006). For reasons that follow, we conclude the sentence imposed is not improper and appellant is not entitled to a new punishment hearing. We affirm.
Procedural Background
        The original indictment contained two enhancement paragraphs. The first enhancement paragraph alleged a 2003 conviction for burglary of a building (F02-73270-JK) and the second enhancement paragraph alleged a 1998 conviction for unauthorized use of a motor vehicle (UUMV) (F98-50739-K). On August 2, 2006, the State filed a Motion to Amend the Indictment. The State's motion sought to substitute a 1992 burglary-of-a-habitation conviction for the 1998 UUMV conviction.
        On August 8, 2006, the trial court granted the State's motion to amend. No alterations, however, were made to the face of the indictment. Nor did the State attach a photocopy of the amended indictment to its motion to amend. See Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000) (holding the proffer, and approval by the court, of an amended version of a photocopy of the original indictment attached to the State's motion is an acceptable method of amending an indictment). Thus, the original indictment was not technically “amended” under Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992) (holding the amendment is the actual alteration of the charging instrument) (overruled by Riney, 28 S.W.3d at 566, to the extent of conflict).
        On August 16, 2006, through counsel, appellant requested, and the trial court ordered, a referral to the magistrate for appellant to enter an open plea of guilty. Appellant was admonished, in writing, that he was charged with the offense of “Burglary of a Building enhanced w/2 pen trips” and that the punishment range for that offense was “2nd Degree Felony, 2-20 years confinement and an optional fine not to exceed $10,000.00.” After waiving a jury, appellant admitted and judicially confessed in writing that he committed the offense of burglary of a building on April 28, 2006, “exactly as alleged in the charging instrument.” Appellant also pleaded true to the “second and third enhancement paragraph(s) which is/are contained in the charging instrument,” and judicially confessed he was the same person who was previously convicted of the offenses alleged therein. Additionally, appellant signed a written judicial confession in which he judicially confessed that on April 28, 2006, he committed burglary of a building with the intent to commit theft and that he had previously been convicted in 2003 of burglary of a building and in 1992 of burglary of a habitation.
        On the written judicial confession beside the paragraph containing the 1992 burglary of a habitation conviction appears a handwritten notation which appears to be “bg 8-8-06.”   See Footnote 2  On August 31, 2006, the trial judge approved appellant's judicial confession and adopted and ratified the magistrate's actions, denied community supervision to appellant, and assessed appellant's punishment at eight years' confinement in the penitentiary. This appeal ensued.
Appeal
        Appellant frames his sole issue as whether the trial court committed reversible error by not properly amending the indictment after granting the State's written motion to amend. However, failure to properly amend the indictment would not necessarily answer the inquiry of whether appellant is entitled to a new punishment hearing. This is true because prior convictions need not be pleaded in the indictment and an improperly amended indictment is subject to a harmless error analysis. Therefore, we re-frame the issue to be whether appellant is entitled to a new punishment hearing because appellant's eight-year sentence as an habitual offender under section 12.42(a)(2) of the penal code is improper based on the record in this case. See Tex. Pen. Code Ann. § 12.42(a)(2).
The Parties' Contentions
        Appellant argues the original indictment in this case was not amended for two reasons: first, it was not incorporated into the record by a pronouncement from the trial court, and second, he was not given an opportunity to object on the record to the proposed amendment. Appellant argues this results in him having pleaded guilty to the primary offense of burglary of a building, a non- aggravated state jail felony.   See Footnote 3  Appellant further argues because he was not eligible for state jail felony enhancement under either 12.35(c)(2) or 12.42(a)(3), the punishment range for his offense is that for a state jail felony; therefore, his eight-year sentence is outside the two-year range for a state jail felony, thus illegal, and he is entitled to a new punishment hearing.   See Footnote 4  Appellant concedes he pleaded true and judicially confessed to the 1992 burglary-of-a-habitation conviction (F91-0197- R); however, appellant argues he did not admit the 1998 UUMV conviction (F98-5039-K) alleged in the original indictment and authorized to be deleted by the trial court's grant of the State's motion to amend.
        The State responds in two ways: first, that appellant did not preserve error under article 28.10 of the code of criminal procedure and, second, that it properly pleaded and proved appellant had previously committed at least two sequential felony offenses; therefore, appellant was properly sentenced as an habitual offender under article 12.42(a)(2) of the Texas Penal Code.
Applicable Law
        Article 1, § 10 of the Texas Constitution guarantees an accused the right to be informed of the nature and cause of the accusation against him in a criminal prosecution. Tex. Const. art. 1, § 10. The indictment includes everything necessary to be proved to sustain a conviction in the guilt- innocence phase of trial. See Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997). A defendant is also entitled to notice of prior convictions that will be used to enhance his sentence. Brooks, 957 S.W.2d at 33. Prior convictions, however, need not be pleaded in the indictment. Brooks, 957 S.W.2d at 33. Articles 28.10 and 28.11 of the Texas Code of Criminal Procedure permit the State to amend an indictment. Tex. Code Crim. Proc. Ann. arts. 28.10, 28.11 (Vernon 2006). Physical interlineation of the original indictment is an acceptable but not the exclusive means of effecting an amendment to the indictment. Riney, 28 S.W.3d at 565.   See Footnote 5  In Riney, the court stated:
 
It is acceptable for the State to proffer, for the trial court's approval, its amended version of a photocopy of the original indictment. If approved, the amended photocopy of the original indictment need only be incorporated into the record under the direction of the court, pursuant to Article 28.11, with the knowledge and affirmative assent of the defense. This version of the indictment would then become the “official” indictment in the case[.]
 
Riney, 28 S.W.3d at 565-66.
 
Preservation of Error
        Article 1.14(b) of the Texas Code of Criminal Procedure provides that “[i]f the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.” Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). At no time in the trial court did appellant plead surprise or lack of notice. Nor at any time in the trial court did appellant object to any irregularity in the indictment. In fact, in his judicial confession, appellant specifically waived any irregularity in the indictment. The trial judge and both parties proceeded as if the indictment had been properly amended. Appellant has not preserved error for our review with respect to any irregularity in the indictment. Even if error is deemed to have been preserved, no reversible error is shown.
Analysis
        In order to punish appellant for a second-degree felony for the offense of burglary of a building with the intent to commit theft, the State was required to prove the defendant had previously been finally convicted of two felonies, and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction. See Tex. Pen. Code Ann. § 12.42(a)(2) (stating “[i]f it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony”).
        Appellant pleaded guilty to the primary offense of burglary of a building and pleaded true to the enhancement paragraphs. Appellant also “judicially confess[ed] . . . and agree[d] and stipulate[d]” that in addition to the primary offense he had previously been convicted of a 2003 burglary of a building and a 1992 burglary of a habitation, the two previous convictions listed in the State's motion to amend, which the trial court granted. The trial court found the allegations in the enhancement paragraphs to be true. See Foster v. State, 603 S.W.2d 879, 881 (Tex. Crim. App. [panel op.] 1980) (pleas of true are sufficient to support a finding of true); also cf. Washington v. State, 677 S.W.2d 524, 529 (Tex. Crim. App. 1984) (affirming court of appeals' opinion reversing trial court for withdrawing case from jury after appellant pleaded not guilty but admitted prior offenses, but stating that had appellant entered a plea of true to the enhancement allegations the trial judge would have acted properly by withdrawing case from jury for lack of a fact question), overruled on other grounds by Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999).
Amended Indictment/Harm
        To become the “official” version of the indictment in a case, under Riney, two things are required: the proposed amendment must be incorporated into the record under the direction of the trial court and that incorporation must be done with the knowledge and affirmative assent of the defense. Here, the record shows the trial court granted the State's motion to amend the indictment on August 8, 2006. It also shows a handwritten notation “bg 8-8-06" next to the enhancement paragraph alleging a previous conviction in 1992, the same conviction the motion to amend sought to add to the original indictment.
        We conclude this is tantamount to an incorporation into the record by the trial court of the proposed amendment. Inasmuch as it was a part of appellant's judicial confession we further conclude it was done with the knowledge and affirmative assent of the defense. Appellant does not claim surprise, nor could he. All parties proceeded as if the indictment had been amended to include the 1992 previous conviction. Thus, we conclude the proposed amended indictment was the “official” version of the indictment in this case.
        Moreover, even if the indictment should be construed to be improperly amended, under article 28.10, it is subject to a harmless error analysis. See Wright v. State, 28 S.W.3d 526, 531-32 (Tex. Crim. App. 2000) (holding a harm analysis appropriate for an article 28.10 violation). Non- constitutional error that does not affect the substantial rights of a defendant is disregarded by the appellate court under rule 44.2(b). See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g). A substantial right is affected when the error has a “substantial and injurious effect or influence in determining the jury's verdict.” Tex. R. App. P. 44.2(b); see King. v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
        In Benton v. State, 770 S.W.2d 946, 947 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd), the Houston court addressed an issue similar to the one before us in this case. There, the court held that even though the State did not technically amend the indictment, the trial court did grant the State's motion to amend the indictment to include the enhancement allegations. The court further held the defendant was aware of the enhancement allegations and was prepared to respond to them; thus, the failure to actually change the face of the indictment was harmless error. So is the case here.
        Appellant is incorrect he did not have an opportunity to object to the proposed amendment. Here, the enhancement allegations set out in the State's Motion to Amend the Indictment put appellant on notice of the prior convictions the State intended to present to increase the applicable range of punishment. See Benton, 770 S.W.2d at 947. Not only did appellant have notice of the proposed amendment, he judicially confessed to the two prior convictions listed in the State's motion to amend. In other words, appellant judicially confessed to the 2003 and 1992 convictions. It is irrelevant that these prior convictions were not included in the indictment. Brooks, 957 S.W.2d at 34; see also Villescas v. State, 189 S.W.3d 290, 295 (Tex. Crim. App. 2006).
        Moreover, assuming appellant is correct that the previous convictions set out in the original indictment control, when he pleaded true to the enhancement paragraphs contained in the indictment, he pleaded true to the 2003 and 1998 prior convictions. Appellant's pleas of true are sufficient to support a finding that the 2003 and 1998 convictions are true. Foster, 603 S.W.2d at 881. And appellant judicially confessed to the 1992 prior conviction sought to be included by the State's motion to amend. Appellant's complaint his 8-year sentence is illegal because he was not put on notice of the State's intent to use the 1992 conviction to enhance his punishment is without merit.
        We resolve appellant's sole issue against him. Concluding appellant is not entitled to a new punishment hearing, we affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
061439F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 On August 8, 2006, Becky Gregory, the trial judge, granted the State's motion to amend the indictment to include the 1992 burglary of a habitation conviction.
Footnote 3 Appellant does not discuss the impact, if any, of his plea of true and judicial confession to the 2003 conviction for burglary of a building common to both the original indictment and the proposed amended indictment.
Footnote 4 Appellant argues he would not be subject to third-degree felony punishment pursuant to 12.35(c)(2) because there was no allegation he had previously been finally convicted of a felony listed in section 3(g)(a)(1), or for a felony for which the judgment contained an affirmative finding under section 3(g)(a)(2) of article 42.12 of the code of criminal procedure. Tex. Pen. Code Ann. §§ 12.35(c)(2)(A), (B).
Footnote 5 In Riney, the court of criminal appeals recognized the “physical interlineation” rule set out in Ward was unworkable and unwarranted. Consequently, it broadened the way in which an indictment may be amended based on a “plain and common sense” reading of articles 28.10 and 28.11, Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) and section 311.023 of the Texas Government Code. It also held “to the extent Ward v. State, and those case[s] relying upon it, require physical interlineation of the original indictment as the only means to accomplish an amendment, those cases are overruled.” Riney, 28 S.W.3d at 566.