James Stephen Ramsey v. The State of Texas--Appeal from County Criminal Court of Appeals No. 2 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAMES STEPHEN RAMSEY, )

) No. 08-03-00457-CR

Appellant, )

) Appeal from the

v. )

) County Criminal Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# MA02-72741-M)

)

O P I N I O N

Appellant James Stephen Ramsey appeals his conviction for public lewdness, a Class A misdemeanor. See Tex.Pen.Code Ann. ' 21.07(a)(3) & (b)(Vernon 2003). The jury found Appellant guilty of the offense as charged in the information and the trial court assessed punishment at 180 days confinement in the Dallas County Jail, probated for twelve months, and a fine of $900. Appellant raises one issue on appeal: whether the trial court erred in allowing the State to amend the information in violation of Article 28.10 of the Texas Code of Criminal Procedure. We affirm.

On July 5, 2002, Detective Town and his partner Detective Prokof were working undercover for the vice section of the Dallas Police Department. Around 10:30 p.m., the detectives went to the parking lot of the Dallas Theater Center in the 3600 block of Turtle Creek, which is next to a wooded area. Detective Town testified that this location is a Achronic complaint location@ for public lewdness and indecent exposure offenses. That evening, the detectives observed a vehicle backed into a parking space, which based on Detective Prokof=s experience, tended to indicate that the occupant was available for any kind of sexual activity. Detective Prokof hid from view as Detective Town backed their vehicle into a parking space next to the parked vehicle. The occupant, later identified as Appellant, asked Detective Town what time it was and the detective told him that it was 10:30 p.m. Appellant then made an obscene gesture with his thumb and mouth and motioned his head toward the wooded area right behind the parking lot. Detective Town got out of his vehicle and followed Appellant into the woods. Detective Town testified that they went about twenty feet into the woods, which was directly behind the parking lot and was what he considered a public place because it contained cleared pathways for pedestrian use.

While they were standing in the woods, Appellant asked the detective if he was a cop and the detective told him, Ano.@[1] Appellant then reached out with his left hand and began rubbing the detective=s clothed genitals. Detective Town testified that Appellant=s conduct appeared to be intentional and that Appellant knew and was aware of what he was doing. After Appellant groped him, Detective Town backed away, displayed his badge, and identified himself as a Dallas police officer. At the same time, Detective Town signaled to a third officer, who was standing about fifteen feet away at the entrance of the wooded area. Appellant cooperated and was walked back to his vehicle. Appellant provided his identification and was photographed at the scene.

Appellant was charged with public lewdness by information. The information alleged that on or about July 5, 2002, in the County of Dallas and State of Texas, Appellant:

[D]id unlawfully then and there knowingly engage in an act, namely: of sexual contact, by any touching of the anus, breast, and any part of the genitals of D. TOWN with intent to arouse or gratify the sexual desire of any person, namely: D. TOWN and JAMES STEPHEN RAMSEY, in a public place, to wit: a parking lot located in the 3600 block of Turtle Creek Boulevard, Dallas, Dallas County, Texas.

On June 19, 2003, the day of trial, the State filed a motion to strike certain words within the information namely, Ato wit: a parking lot located in the 3600 block of Turtle Creek Boulevard, Dallas, Dallas County, Texas.@ The trial court found that the State=s request was not an amendment. The trial court then granted the motion and physically struck through this portion of the information. The State proceeded to trial on the remaining part of the information.

In his sole issue, Appellant argues that the trial court erred in allowing the State to amend the information on the day of trial in violation of Article 28.10 of the Texas Code of Criminal Procedure. Appellant contends he was statutorily entitled to an additional ten days to adequately prepare for trial given the amended information, therefore his constitutional rights to due process and effective assistance of counsel were denied. Appellant also asserts that the amendment was one of substance. In response, the State argues that it abandoned surplusage in the information on the day of trial and as such, Article 28.10=s prohibition against amendments to the form or substance of a charging instrument was not implicated and Appellant=s constitutional rights were not violated. We first address whether the State=s motion to strike was an abandonment of surplusage in the information or whether striking the language constituted an amendment of that information, which Appellant contends was improper under Article 28.10.

An amendment is an alteration to the face of the charging instrument which affects the substance of the charging instrument. Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561, 565-66 (Tex.Crim.App. 2000)(overruling the requirement that amendment must be by interlineation on face of the original indictment), and by Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.Crim.App. 2001) (overruling Burrell exception to surplusage law as applied to fatal variance doctrine); see Mayfield v. State, 117 S.W.3d 475, 476 n.1 (Tex.App.--Texarkana 2003, pet. ref=d)(Eastep still governs in context of abandonment of portions of an indictment as surplusage without amending the indictment); Hall v. State, 62 S.W.3d 918, 920 (Tex.App.--Dallas 2001, pet. ref=d) (A[S]urplusage law is still viable in cases concerning whether an alteration of an indictment constitutes an amendment.@). Such an alteration invokes the requirements of Article 28.10.[2] See Eastep, 941 S.W.2d at 133.

By contrast, an alteration that does not affect the substance of the charging instrument is considered an abandonment, even when accomplished by an actual physical alteration to the face of the charging instrument. Eastep, 941 S.W.2d at 133. In Eastep, the Court recognized three situations where an alteration to the face of the charging instrument is an abandonment, rather than an amendment: (1) abandonment of one or more of the alternative means of committing the alleged offense; (2) abandonment of an allegation if the effect is to reduce the prosecution to a lesser included offense; or (3) abandonment of surplusage. Id. at 133-35. Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument. Id. at 134. Where the charging instrument may be altered to delete language which is not descriptive of what is legally essential to the validity of the charging instrument, the alteration is considered an abandonment, not an amendment. Id. at 134-35.

In the instant case, the trial court granted the State=s motion to strike the following words from the information: Ato wit: a parking lot located in the 3600 block of Turtle Creek Boulevard, Dallas, Dallas County, Texas.@ The information thereafter that on or about July 5, 2002, in Dallas County, Texas, Appellant Adid unlawfully then and there knowingly engage in an act, namely: of sexual contact, by any touching of the anus, breast, and any part of the genitals of D. TOWN with intent to arouse or gratify the sexual desire of any person, namely: D. TOWN and JAMES STEPHEN RAMSEY, in a public place.@ A person commits the offense of public lewdness if he knowingly engages in an act of sexual contact in a public place.[3] See Tex.Pen.Code Ann. ' 21.07(a)(3). As a general rule, a charging instrument need allege only the county in which the offense was committed. Bright v. State, 865 S.W.2d 135, 137 (Tex.App.--Corpus Christi 1993, pet. ref=d). When a type of location is an element of the offense, the charging instrument must allege the offense occurred in the specific type of location, but it need not allege a specific place within the type. Id. at 137. Here, the information alleged that the offense was committed in a public place. The specific location within that Apublic place@ was not legally essential to constitute the offense alleged in the information and therefore, was merely surplusage. The alteration of the information to delete language which was not descriptive of what was legally essential to the validity of the charging instrument constituted an abandonment. See Eastep, 941 S.W.2d at 134-35. Because the deletion of surplusage is an abandonment, not an amendment, the provisions of Article 28.10 were not invoked. Accordingly, the trial court did not abuse its discretion in permitting the alteration over Appellant=s objection on notice grounds.

Appellant also argues that he was deprived of his due process rights and effective assistance of counsel. We agree that as a matter of due process, a defendant deserves notice of the charge against him. See Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App. 1990); see also Tex.Const. art. I, ' 10 (guaranteeing a defendant the right to be informed of the nature and cause of the accusation against him). However, Appellant makes no claim that he was surprised or prejudiced such that he could not prepare an adequate defense. Rather, Appellant=s counsel represented to the court that he believed that A[t]he facts are going to show that this, in fact, did not take place in this parking lot . . . .@ We conclude that Appellant was sufficiently informed of the charges against him and that his right to due process was not violated. Further, Appellant was not denied effective assistance of counsel because, as discussed above, the trial court did not err in overruling his counsel=s objection to the State=s motion. We overrule Issue One and affirm the trial court=s judgment.

February 10, 2005

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Detective Town explained that pursuant to departmental policy, detectives can lie and deny that they are police officers in order to maintain their undercover status.

[2] Article 28.10 provides in pertinent part:

(a) 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.

Tex.Code Crim.Proc.Ann. art. 28.10(a)(Vernon 1989).

[3] Except as provided in Section 21.01, Asexual contact@ means Aany touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.@ See Tex.Pen.Code Ann. ' 21.01(2)(Vernon 2003). APublic place@ means Aany place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.@ See Tex.Pen.Code Ann. ' 1.07(40)(Vernon Supp. 2004-05).