David Westfall v. The State of Texas--Appeal from County Court at Law of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-97-180-CR

DAVID WESTFALL,

Appellant

v.

STATE OF TEXAS,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court # 9611107

\

CONCURRING OPINION

The majority holds that the trial court erred by not physically writing on the face of the original indictment the words of the approved amendment. Basically the majority holds that an indictment cannot be amended by replacing one piece of paper that contains an error, omission, or vague words with another piece of paper with the correct words on it. Logic and common sense dictate that unless the statutes specifically require that the amendment must be made on the same piece of paper, there is no reason that an amended indictment cannot be made by reprinting the indictment with the language as amended.

When Flores was decided in 1917 // , virtually all court documents were done in hand. Occasionally a preprinted form would be used, with blanks to be filled in to fit a particular situation. This was obviously before word processors, computers, desktop printers and copy machines. Technology has changed and it is now a relatively simple process to amend (change, improve, etc.) a document by replacing it with one that has been modified according to leave obtained from the trial court. This is the way many documents in judicial proceedings have been amended for years, particularly in the pleading of civil cases.

The majority relies heavily on language in Ward v. State, 829 S.W.2d 787 (Tex. Crim. App. 1992). Ward held that approval of an amendment is distinct from the actual amendment. In Ward, an amendment had been approved but the Court of Criminal Appeals held there being no alteration to the face of the indictment, we hold the indictment was never in fact amended. Id. at 792. One of the fundamental reasons was that without an actual change to the face of the indictment, the defendant must look to multiple documents for notice of the charges. This was analyzed and determined to be unconstitutional. The amended indictment in this case does not suffer the same defect. By making the changes on the face of a newly printed document, the requirement that the amendment be made on the face of the indictment is satisfied and the entire indictment is contained in a single document as required by the constitution.

Ward also discussed the legislative history of Art. 28.10 and 28.11 // . The court summarizes this history as follows:

What type substantive errors could be corrected in an indictment without thwarting the will of the grand jury or violating an accused's constitutional right to grand jury indictment in a felony cause? Although there were references to a court or prosecutor amending a charging instrument, there was no testimony regarding the actual physical mechanics of making an amendment to a charging instrument. This lack of testimony indicates to us the legislature did not attach any technical or particular meaning to the term "amend," and thus we will not frustrate legislative intent by applying a hypertechnical interpretation to the term.

Ward at 829 S.W.2d at 792 [emphasis in the original]. If the Court of Criminal Appeals is unwilling to frustrate legislative intent by applying a hypertechnical interpretation to the term amend, neither will I.

I would hold that if an amendment is made by physically changing the wording of the indictment to the language which has been approved by the trial court pursuant to a motion as required by Article 28.10, Article 28.11 and Ward, it meets the change on the face of the indictment requirement of Ward. The defendant need not look beyond the single amended document to determine what the charges are, as required by the constitution and as discussed at length in Ward.

I see no reason that an amendment to an indictment cannot have the same meaning here as it does in civil practice. See Tex. R. Civ. P. 62-65. Such an amendment complies with both the spirit and the purpose of Article 28.11, Flores and its progeny, including Ward and Rent v. State, 838 S.W.2d 548 (Tex. Crim. App. 1992) (op. on reh g). I would hold that the trial court did not err by allowing the amendment to the indictment to be made by preparing an instrument which contained the altered language for the indictment as approved by the trial court.

While the majority holds the trial court erred in allowing an amendment to be made by a new instrument with the correct language in it, they hold that the evidence was sufficient to support a conviction under the indictment as it existed prior to the attempted amendment. I find the evidence was sufficient to support the conviction under the amended indictment, accordingly, I express my concurrence in the result, if not the reasoning.

TOM GRAY

Justice

Concurring opinion delivered and filed December 15, 1999

Publish