VONRICK DALE GATEWOOD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued April 29, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00919-CR
No. 05-08-00920-CR
............................
VONRICK DALE GATEWOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F03-55658-T and F08-55310-LT
.............................................................
MEMORANDUM OPINION
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice FitzGerald
        Vonrick Dale Gatewood appeals judgments in two cases based on guilty pleas. In 2003, Gatewood pleaded guilty to unlawful possession of cocaine and true to enhancement paragraphs. At that time the trial court sentenced him to two years in a state jail facility, but it suspended the sentence and placed Gatewood on probation for five years. In 2008, Gatewood pleaded guilty to felony theft. The trial court sentenced him to eighteen months' confinement in a state jail facility.   See Footnote 1  The court also revoked Gatewood's probation in the cocaine possession case and sentenced him to another eighteen months' confinement in a state jail facility.   See Footnote 2  His sentences were to run concurrently.
        In his first issue, Gatewood argues that the indictment in the theft case “fails to reflect the amendment to the indictment.” The indictment in the theft case includes two enhancement paragraphs alleging prior felony convictions. During Gatewood's plea hearing, the court explained what the punishment range would be for conviction of the primary offense enhanced by the two prior convictions. The following exchange then took place:
 
THE COURT:
 
Does the State have an oral motion to make regarding the enhancement paragraphs?
 
 
 
 
[COUNSEL FOR STATE]:
 
State moves to drop those two paragraphs, withdraw them from your consideration at this time.
 
 
 
THE COURT:
 
That motion is granted. The State has dropped those two paragraphs. Therefore, you're [sic] looking at a punishment range of state jail felony. . . .
 
 
Gatewood contends this dropping of the enhancement paragraphs constituted an amendment that must be shown by interlineating the original indictment or substituting a new indictment. See Riney v. State, 28 S.W.3d 561, 565-66 (Tex. Crim. App. 2000) (setting forth approved methods of amending indictment). Gatewood seeks an abatement of this appeal so the trial court can properly amend the indictment as required by article 28.10 of the code of criminal procedure. See id.
        Gatewood's argument is premised on his assumption that dropping the enhancement paragraphs constituted an amendment of the indictment. But every change to an indictment does not amount to an amendment. Mayfield v. State, 117 S.W.3d 475, 476 (Tex. App.-Texarkana 2003, pet. ref'd). An indictment may contain surplusage, i.e., words or allegations that do not describe what is legally essential to constitute the offense charged. See Hall v. State, 62 S.W.3d 918, 919 (Tex. App.-Dallas 2001, pet. ref'd). Deletion of surplusage does not constitute an amendment of the indictment; such a change is merely an abandonment, which does not implicate article 28.10. Mayfield, 117 S.W.3d at 476-77; Hall, 62 S.W.3d at 919. The enhancement paragraphs in Gatewood's indictment did not furnish any allegation necessary to describe the charged offense. Accordingly, the State's action in dropping those paragraphs constituted an abandonment, not an amendment to this indictment. See Mayfield, 117 S.W.3d at 477. Because we conclude there was no amendment to Gatewood's indictment, we decide his first issue against him.
        In his second issue, Gatewood contends the judgment in the possession and revocation case fails to reflect the conditions of probation Gatewood was found to have violated. Indeed, Gatewood's Judgment Revoking Community Supervision, rather than listing the conditions he had violated, does refer to an attached motion to revoke his community supervision. But no motion is attached to the judgment.
        Our record contains a single motion addressing Gatewood's probation or community supervision, titled Motion to Revoke Probation (the “Motion”). The Motion was filed by the State on June 2, 2008, the same day the State filed its indictment in the theft case.   See Footnote 3  It alleged Gatewood had violated condition (a) of his probation by committing theft on May 10, 2008, and condition (j) by failing to pay a probation fee. The trial court's docket sheet contains a notation on June 6, 2008, indicating Gatewood violated conditions (a) and (j) of his probation. This Court has the power to modify the judgment of the court below so long as it has the information necessary to do so. See Bigley v. State, 865 S.W.2d 26, 27 -28 (Tex. Crim. App. 1993); see also Tex. R. App. P. 43.2(b). Accordingly, we modify the trial court's Judgment Revoking Community Supervision to show the trial court found Gatewood violated conditions (a) and (j), as set out in the Motion.
        We affirm the trial court's judgment in its cause number F08-55310-LT. As modified, we affirm the trial court's judgment in its cause number F03-55658-T.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080919F.U05
 
Footnote 1 The theft case was numbered F08-55310-LT in the trial court and is numbered 05-08-00920-CR in this Court.
Footnote 2 The cocaine possession and revocation case was numbered F03-55658-T in the trial court and is numbered 05-08-00919-CR in this Court.
Footnote 3 Gatewood contends there is confusion in the proceedings because the body of the Motion bears the date June 2, 2004, but the document was filed June 2, 2008. The Motion refers to Gatewood's original sentencing in 2004 and to his theft offense committed in 2008. The only rational inference we can draw is that the Motion was misdated. This clerical error will not defeat the proceedings on the Motion, or our review of those proceedings, when the Motion and the proceedings are regular in every other way.