Leroy Scott Roach v. The State of Texas--Appeal from 26th District Court of Williamson County (majority)
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NO. 07-12-0310-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 5, 2013
LEROY SCOTT ROACH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY;
NO. 11-012-K26; HONORABLE BILLY RAY STUBBLEFIELD, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Leroy Scott Roach was adjudicated guilty of assault on a family member and
sentenced to thirty years imprisonment and assessed a fine of $5,000. The trial court
initially deferred the adjudication of his guilt and placed him on community supervision.
Thereafter, the State moved the court to adjudicate guilt, which the trial court did. Now
appellant asserts that the trial court erred in permitting the State to amend one of the
allegations in its motion to adjudicate. We affirm the judgment.
Among other things, the State alleged, in its motion to adjudicate, that “[o]n or
about the 21st day of May, 2011, . . . the [appellant] intentionally, knowingly or recklessly
caused bodily injury to Lorraine Anna Cortez, a member of the defendant’s family or
household, or a person with whom the defendant had a dating relationship, by impeding
the normal breathing or circulation of the blood of the [sic] by applying pressure to her
throat or neck by blocking her nose or mouth.”
(Emphasis added.)
At the
commencement of the hearing on the motion, the State sought permission to remove
the highlighted words “of the.” Appellant objected on the basis that it constituted an
amendment and that the allegation failed to give him notice of whose breathing or
circulation had been impeded. 1
Surplusage is unnecessary language that is not legally necessary to constitute
the offense in the charging instrument. Whetstone v. State, 786 S.W.2d 361, 364 (Tex.
Crim. App. 1990). Its removal from the instrument is not prohibited unless it describes
an element of the offense. Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000).
Next, when the State seeks to revoke probation because the defendant allegedly
committed another offense, it need not describe the offense within its motion with the
same specificity applicable to averring an offense in an indictment. See Bradley v.
State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980). Here, the only language being
deleted is “of the” which is not in itself an element of the offense. With the language
deleted, the allegation is that appellant impeded the normal breathing or circulation of
the blood by applying pressure to her throat or neck by blocking her nose or mouth.
Each reference to “her” clearly refers to Lorraine Cortez and thus, the deleted language
1
Such a contention leads one to wonder whether there were others whom he tried to injure on the
same day via the same method.
2
necessarily refers to the circulation of Lorraine’s blood, is mere surplusage, and is not
descriptive of an element. Simply put, the accusation was more than ample to afford
appellant fair notice of the offense alleged and whom he tried to injure.
More importantly, it matters not to the disposition of this appeal whether the trial
court's decision at issue was right or wrong. This is so because the State alleged and
the trial court found that appellant violated numerous conditions of his community
supervision.
None of the findings, other than that addressed above, have been
questioned here. Given that one ground is sufficient to support the adjudication of
appellant’s guilt, Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980),
appellant's conviction must stand irrespective of any complaint regarding the one
amended allegation.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
3
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