David L. Cortez v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

No. 04-99-00645-CR

David L. CORTEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 99-CR-0673

Honorable Charles Campbell, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: August 16, 2000

AFFIRMED

Appellant, David L. Cortez, was convicted by a jury of sexual assault. (1) Cortez raises two issues on appeal. First, the trial court erred when it denied his request for ten days to respond to the State's pre-trial amendment of the indictment against him. Second, the admission of extraneous offense evidence was unfairly prejudicial.

Facts

On August 9, 1999, seven days prior to trial, the State filed a motion to amend the indictment against Cortez by changing the cause number of an offense enumerated in the enhancement paragraph of the indictment. Cortez received notice on the day the motion was filed, August 9, 1999. The hearing on the State's motion was conducted seven days later, on August 16, 1999. Cortez objected to the amendment. When the trial court granted the State's motion, Cortez requested 10 days to respond to the amended indictment, pursuant to Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 1985). The trial court denied Cortez' request. At trial, Cortez offered the testimony of his girlfriend Cecilia Duran. On cross examination, the State elicited from Duran details of an assault committed by Cortez against her several months after the offense at issue.

Tex. Code Crim. Proc. Ann. art. 28.10

Tex. Code Crim. Proc. Ann. art. 28.10(a) mandates:

After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

In Sodipo v. State, 815 S.W.2d 551, 554 (Tex. Crim. App. 1990), the court held it was reversible error to deny a defendant's request for an additional ten days to prepare following the pre-trial amendment of the indictment. The Sodipo court also held that this error was not subject to harm analysis. Cortez argues Sodipo requires reversal of his conviction. The State responds that, in light of Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), we must perform harm analysis. In Cain, the court held:

Except for certain federal constitutional errors labeled by the United States Supreme Court as "structural," no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. Of course, where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis, then the error will not be proven harmless beyond a reasonable doubt under [former] rule 81(b)(2).

See Cain, 947 S.W.2d at 264.

In light of Cain and its progeny, we agree with the State that harm analysis is required in the face of claimed error in amending the charging instrument pursuant to Tex. Code Crim. Proc. Ann. art. 28.10. In this case, Cortez had seven days notice of the State's intention to amend his indictment. He opposed the amendment unsuccessfully. After the trial court granted the State's motion, Cortez received no additional time to respond to the amended indictment.

Under Tex. R. App. Proc. 44.2(b), any non-constitutional error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. See Garza v. State, 963 S.W.2d 926, 930 (Tex. App.-San Antonio 1998, no pet.).

In Friesel v. State, 931 S.W.2d 587, 591 (Tex. App.-San Antonio 1996, pet. ref'd), this court discussed the nature of Tex. Code Crim. Proc. Ann. art. 28.10(a).

The concerns underlying article 28.10 are thus the separation of powers vis-a-vis the grand jury, the prosecutor, and the court, as well as the substantial due process right of the defendant to ascertain the crime with which he or she is charged from the face of the indictment . . .

See id.

The trial court violated the mandatory terms of article 28.10 when it denied Cortez his requested 10 days to respond to the amended indictment. Clearly an error denying a defendant the required notice pursuant to article 28.10 involves a substantial right. Therefore, our inquiry must determine whether the error in this case affected Cortez' substantial rights.

Cortez has not identified anything in the record to demonstrate the lack of time afforded to him affected the jury's verdict at all. Indeed, it is clear from the transcript of the hearing on the State's motion to amend that Cortez received notice of the state's intention to amend the indictment and did not suffer any surprise. Finally, as the State points out, at no time was the discrepancy that the amendment corrected made known to the jury. (2) We hold Cortez has failed to show any harm from the violation of Tex. Code Crim. Proc. Ann. art. 28.10(a).

Extraneous Offense Testimony

Cortez's second issue complains the testimony of his girlfriend, Cecilia Duran, violated Tex. R. Evid. 403. (3) Duran was living with Cortez and the victim of the sexual assault at the time it occurred. Duran saw the victim the morning after the sexual assault occurred. Cortez offered Duran as a witness to show a lack of outcry by the victim. On cross examination, the State elicited details of an assault Cortez committed against Duran several months after the sexual assault at issue in this case. The trial court admitted the testimony over Cortez's objection, for the limited purpose of showing Duran's bias and motive to fabricate testimony in favor of Cortez, on the theory she was both loyal to Cortez and intimidated by him.

The credibility of a witness may be attacked by evidence that the witness is slanting her testimony against or in favor of a party as a result of personal interest or bias in the cause. See Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 946, 116 S. Ct. 385 (1995). Determining the limits of cross examination to show bias rests within the sound discretion of the trial judge. See Holt v. State, 912 S.W.2d 294, 301 (Tex. App.-San Antonio 1995, pet. ref'd). The trial judge's determination will not be reversed absent a clear abuse of discretion. See id.

The fact that the witness had been assaulted by the party calling her as a witness is clearly probative to the issue of bias. We hold it was not an abuse of discretion to permit the State to cross examine Duran concerning Cortez's conviction for assaulting her.

Conclusion

We affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. See Tex. Pen. Code Ann. 22.011 (Vernon Supp. 2000)

2. The case was tried before a jury at guilt-innocence, and before the bench at the punishment phase of trial.

3. Rule 403 reads:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.