Robert Wilson v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED

NOVEMBER 21, 1990

NO. 10-89-158-CR

Trial Court

# 89-376-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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ROBERT WILSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 54th Judicial District Court

McLennan County, Texas

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Pleading not guilty, appellant Robert Wilson was found guilty by a jury of the offense of burglary of a building. After finding that two prior felony convictions alleged in the indictment for enhancement of punishment were "True," the jury assessed punishment at confinement in the Texas Department of Corrections for a term of 40 years. This appeal resulted.

Appellant seeks reversal under five points of error that complain about an alleged amendment of the indictment after the trial had commenced to change the name of the owner of the building burglarized, the sufficiency of the proof to support the conviction, and the proof surrounding a prior conviction. We overrule these points of error and we affirm the judgment.

The victim of the offense was the second witness called by the State at the guilt/innocence phase of the trial. He identified himself as R.C. Hudgens. The indictment against appellant alleged that the victim was "R.D. Hudgens." Thus, the middle initials varied. The prosecutor moved the trial court to delete the middle initial as surplusage. The motion was granted over appellant's objection. Appellant also requested ten additional days under the provisions of article 28.10 of the Texas Code of Criminal Procedure to prepare for this deletion which appellant denominated as an amendment of the indictment. This request for ten days was denied by the trial court. The charge of the court to the jury at the guilt/innocence phase of the trial spelled the victim's name as "R. Hudgens," deleting the incorrect middle initial. Appellant contends in his first point of error that the court erred in amending the indictment during the trial, and erred in refusing him ten days to prepare for this amendment. In his second point of error he treats the deletion as an issue of idem sonans which he says should have gone to the jury as a fact question and not to the trial court for correction.

Any unnecessary words or allegations in an indictment may be deleted or disregarded as surplusage if they are not legally essential to the validity of the indictment. Galloway v. State, 716 S.W.2d 556, 557 (Tex.App.--Waco 1986, pet. ref'd). Although appellant continually describes the removal of the middle initial of the victim named in the indictment as an amendment, it is clear from reading the charge to the jury that the trial court merely deleted the middle initial. There was no amendment. The deletion was proper because middle initials are not legally essential to a state's allegation of a name. A middle name or initial may be disregarded completely, and a variance between the name in the indictment and the proof of the middle name or initial is neither material nor fatal. Martin v. State, 541 S.W.2d 605, 606 (Tex.Cr.App. 1976). In Martin, the court held that a middle name or initial may be disregarded; that a material variance between the allegation and the proof of the middle name or initial is neither material nor fatal; and that "The variance between the allegation that the complainant's middle name was Lynch and proof that her middle name was Jones is neither material nor fatal." Since the action of the trial court in question was a mere deletion of non-essential matter and not an amendment of the indictment, article 28.10 of the Code of the Criminal Procedure, which deals only with amendments to indictments, has no application here. Similarly, the doctrine of idem sonans has no application because the deleted matter was not material to the indictment or the conviction. The first two points of error are overruled.

One of the two prior convictions against appellant alleged in the indictment for enhancement of punishment was a conviction "on the 27th day of September, 1963, in the 54th District Court of McLennan County, Texas, in cause number 15350, . . . of a felony, to-wit: ROBBERY BY ASSAULT." Appellant pleaded "Not True," to this enhancement paragraph (and to the other) at the punishment phase of his trial, and the issues of their truth were submitted to the jury. Appellant asserts that the evidence was insufficient to sustain the jury's finding that his conviction in case number 15350 was "True." We overrule this contention. The record includes conclusive proof by way of a penitentiary packet that in cause number 15055, in the 54th District Court of McLennan County, on the 27th day of September, 1963, appellant's probation in a felony theft charge was revoked because he had committed the offense of robbery by assault, and he was sentenced to serve not less than two years nor more than four years in the penitentiary on the felony theft charge. Included in the penitentiary packet was an uncertified judgment in the 54th Judicial District Court of McLennan County, Texas, in cause number 15350, in which the defendant named Robert F. Wilson was adjudged guilty on September 27, 1963, of the offense of robbery by assault and assessed as punishment confinement in the penitentiary for a term of ten years. The judgment recites that it was further ordered by the court that the judgment and sentence against the defendant in this case number 15350 would begin when the judgment and sentence "against this defendant in criminal cause number 15055, in the 54th District Court of McLennan County, Texas, . . . shall have ceased to operate." The evidence at the punishment phase also included a copy of the judgment in case number 15350 duly certified by the District Clerk of McLennan County, Texas. Finally, the record included a letter from appellant to the judge of the 54th District Court of McLennan County, Texas, in which appellant, an inmate of the penitentiary, requested a copy of the transcript and the statement of facts in the case "The State of Texas v. Robert F. Wilson, a case of robbery by assault, trial date: September 27, 1963," along with the transcript and statement of facts in two other cases, including the felony theft case numbered 15055 in which his probation was revoked on September 27, 1963. We hold that this evidence was sufficient to establish that appellant was the Robert F. Wilson who was convicted cause number 15350. Point of error number four is overruled.

A witness who lived across the street from the complainant's property testified that on the day in question she observed a pickup truck that was painted "primer gray" except for the door on the driver's side which was painted "primer red" drive onto the complainant's property. Appellant, a younger man and a woman exited the pickup and went to the garage on the complainant's property. With the other two standing nearby, the younger man broke the lock on the garage with a crowbar. The younger man went into the garage and passed property from the garage to appellant who was standing immediately outside the door of the garage. The items that had been passed to appellant included some aluminum lawn chairs, some copper tubing and some pots. Appellant and the other two placed these items in the bed of the truck and drove away. As they were driving away, the witness called the police and told them what she had just seen. "A little later," someone from the police department called the witness and asked her if she would go to Lipsitz Salvage Yard. She went to the Salvage Yard, arriving about an hour after she had called the police. There, she saw appellant and the other two in a police car. Nearby, was the pickup she had seen them using at her neighbor's house. From the witness stand, she identified photographs of the pickup and of the property the three had placed in the pickup from her neighbor's garage. She said the property shown in the exhibits "looks like those aluminum chairs and copper tubing that they took out of the garage." The complainant testified that he did not give appellant permission to go into the garage; that among other items stolen from the garage were a twenty-gallon aquarium, two cooking pots, a roll of copper tubing and some aluminum lawn chairs that needed reweaving. He said that after the burglary, the police returned these items to him.

The jury was charged on the law of parties, and this theory was applied to the facts of the case in the charge. Reviewing the evidence in the light most favorable to the prosecution under this theory, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, finding appellant guilty. Furthermore, the stolen property was positively identified in the evidence and the proof was sufficient to establish that appellant's intent at the time of the removal of the items from the garage was to commit the offense of theft. Appellant's third and fifth points of error are overruled.

The judgment is affirmed.

VIC HALL

DO NOT PUBLISH Justice