Date: 07-09-2014

Case Style: Rogelio Alaniz v. The State of Texas

Case Number: 03-12-00333-CR

Judge: David Puryear

Court: Texas Court of Appeals, Third District on appeal from the 22nd District Court of Hays County

Plaintiff's Attorney: Benjamin Moore and Honorable Lisa C. McMinn for the State of Texas

Defendant's Attorney: Amanda Erwin

Description: Rogelio Alaniz was charged with three counts of aggravated assault. See Tex. Penal
Code § 22.02. On the day that the trial began, the State moved to alter the allegations in the indictment
by removing the word “serious” from all three counts. In response, Alaniz objected to the proposed
changes and, alternatively, requested additional time to respond. See Tex. Code Crim. Proc. art. 28.10.
At the end of the hearing, the district court overruled Alaniz’s objections, denied Alaniz’s request
for additional time to respond, and agreed to grant the State’s motion to alter the indictment. After
a trial, the jury found Alaniz guilty of all three crimes and sentenced him to 25 years’ imprisonment
for each count. Alaniz appeals his judgment of conviction. We will affirm his conviction.
DISCUSSION
On appeal, Alaniz presents three issues. First, he argues that the district court erred
by making the alterations to his indictment. Second, he contends that the modifications violated his
due-process rights. Finally, he asserts that the district court’s “failure to interlineate” the changes
into “the indictment constitutes reversible error.”
Abandonment of Charge in Indictment
As mentioned above, in his first issue, Alaniz contends that the district court erred
by agreeing to make the changes to the indictment that were requested by the State. As support for
this argument, Alaniz refers to article 28.10 of the Code of Criminal Procedure, which sets out the
procedures for amending an indictment. See Tex. Code Crim. Proc. art. 28.10; see also id. art. 28.11
(providing that “[a]ll amendments of an indictment or information shall be made with the leave of
the court and under its direction”). In particular, article 28.10 authorizes amendments before a trial
has commenced but also requires the trial court to provide the defendant with time to respond to an
amendment if he requests. Id. art. 28.10(a). Further, article 28.10 explains that “[a] matter of form
or substance in an indictment or information may also be amended after the trial on the merits
commences if the defendant does not object.” Id. art. 28.10(b). In addition, article 28.10 provides
that an indictment “may not be amended over the defendant’s objection as to form or substance if
the” amendment “charges the defendant with an additional or different offense or if the substantial
rights of the defendant are prejudiced.” Id. art. 28.10(c). In light of these statutory provisions, Alaniz
contends that the district court erred by amending the indictment on the day of trial over his objection
and by failing to provide him with time to respond to the amendments.
“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, 132-33 (Tex. Crim.
App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App.
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2000). Conversely, if an alteration to an indictment does not affect the indictment’s substance, then
it is not an amendment. Id. at 133. Importantly, if an alteration is not an amendment, then the
change does not invoke the requirements of article 28.10 of the Code of Criminal Procedure
mentioned above, Chen v. State, 410 S.W.3d 394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d), including the need to provide a defendant with time to respond if he requests it, see Tex. Code
Crim. Proc. art. 28.10(a). When exploring the boundaries of what constitutes an amendment, the
court of criminal appeals has identified three types of alterations that do not constitute amendments:
“(1) abandonment of one or more of the alternative means in which an offense may be committed;
(2) abandonment of an allegation in the charging instrument if the effect of such abandonment is to
reduce the prosecution to a lesser included offense; or, (3) abandonment of surplusage.” Eastep,
941 S.W.2d at 135 (internal citations omitted); see Chen, 410 S.W.3d at 396; see also Barron v.
State, No. 03-11-00519-CR, 2013 Tex. App. LEXIS 9268, at *20 n.3 (Tex. App.—Austin 2013, no
pet.) (mem. op., not designated for publication) (concluding that analysis in Eastep regarding
surplusage in indictment “remains good law” even though appellate courts have questioned its
continuing validity because court of criminal appeals continues to refer to that analysis in Eastep
with approval).
In order to determine whether there was error, we must first decide whether
the changes made to the indictment were amendments. The indictment was titled “OFFENSE:
AGGRAVATED ASSAULT WITH A DEADLY WEAPON [SERIOUS BODILY INJURY]” and
initially alleged, in relevant part, that Alaniz committed the following three criminal acts:
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did then and there intentionally, knowingly and recklessly cause serious bodily
injury to Michael Rodriguez by use of a deadly weapon, to wit: a gun, by shooting
Michael Rodriguez on or about the arm and leg;
did then and there intentionally, knowingly and recklessly cause serious bodily
injury to Katherine Hubbard by use of a deadly weapon, to wit: a gun, by shooting
Katherine Hubbard on or about the arm; [and]
did then and there intentionally, knowingly and recklessly cause serious bodily
injury to Oscar Falcon by use of a deadly weapon, to wit: a gun, by shooting
Oscar Falcon on or about the arm.
When the State sought to alter the indictment, it asked the district court to remove the word “serious”
from the phrase “serious bodily injury” in all three counts, and the district court agreed to make the
requested changes. As a result, the modified indictment alleged that Alaniz committed three acts
of aggravated assault by “intentionally, knowingly and recklessly caus[ing] bodily injury . . . by use
of a deadly weapon, to wit a gun.”
A similar issue regarding the deletion of the word “serious” from an indictment was
confronted by another court of appeals. See Dawson v. State, No. 10-01-00202-CR, 2003 Tex. App.
LEXIS 10873 (Tex. App.—Waco Dec. 31, 2003, no pet.) (mem. op., not designated for publication).
The indictment at issue in Dawson originally alleged, in pertinent part, that Dawson:
intentionally, knowingly or recklessly cause[d] serious bodily injury to another,
namely: Andrew Lee Davis by shooting Andrew Lee Davis in the groin; and,
Anthony Laroy Dawson did then and there use and exhibit a deadly weapon, namely:
.25 caliber pistol, during the commission of said offense, and said weapon, in the
manner of its use or intended use, was capable of causing serious bodily injury.
Id. at *3-4. The trial court in Dawson granted the State’s request to delete “serious” from the phrase
“serious bodily injury.” In discussing the language of the indictment, the court stated that by including
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the word “serious,” the State had “alleged two different means by which Dawson committed the
offense” of aggravated assault as set out in the Penal Code. Id. at *4-5.
Under the Penal Code, there are various ways by which an individual can be guilty
of committing assault and aggravated assault. See Tex. Penal Code §§ 22.01(a), .02(a). The statutory
provisions at issue in this case as well as in Dawson provide that a person commits an assault if he
“intentionally, knowingly, or recklessly causes bodily injury to another” and that a person commits
aggravated assault if he “commits assault” and either “causes serious bodily injury to another” or
“uses or exhibits a deadly weapon during the commission of the assault.” Id. §§ 22.01(a)(1), .02(a).
In light of this statutory language, the court in Dawson concluded that the indictment alleged that
Dawson committed aggravated assault both by causing serious bodily injury and by using a deadly
weapon during an assault. Dawson, 2003 Tex. App. LEXIS 10873, at *5. Therefore, the court
explained that by requesting the alteration “the State effectively abandoned one of the alternative
means of committing the offense originally alleged.” Id. Accordingly, the court in Dawson concluded
that the alteration was not an amendment. Id.
We find the logic in Dawson persuasive. When the word “serious” was removed
from the indictment, the remaining wording tracked the language from the Penal Code by alleging
that Alaniz was guilty of the crime of aggravated assault by use of a deadly weapon. See Tex. Penal
Code §§ 22.01(a)(1), .02(a)(2). In other words, by requesting the alteration, the State effectively
abandoned the serious-bodily-injury means of committing aggravated assault. See id. § 22.02(a)(1).
In reaching this result, we are mindful of Alaniz’s assertion that the deletion cannot constitute an
abandonment of an alternative means because the language of the indictment does not use the word
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“or” to link the alternative means of committing aggravated assault. Although we recognize that the
indictment was not pleaded in the disjunctive, that same type of language was present in Dawson and
in other cases in which the courts have concluded that the deletion was an effective abandonment.
See, e.g., Garcia v. State, 537 S.W.2d 930, 932-33 (Tex. Crim. App. 1976) (concluding that removal
of “and convicted of” from phrase in indictment “charged with and convicted of” was “proper
abandonment” of one theory under statute governing crime of escaping custody, which at that time
required proof that person was “arrested for, charged with, or convicted of an offense” before
escaping custody) (emphasis added).
For these reasons, we conclude that the requested alterations were abandonments of
alternative means and not amendments. Accordingly, we also conclude that the district court did not
err by making the requested changes or by denying Alaniz an opportunity to respond to them.
Therefore, we overrule Alaniz’s first issue on appeal.
No Due Process Violation
In his second issue, Alaniz contends that his due-process rights were violated by the
district court’s decision to allow the alterations to the indictment. In particular, Alaniz argues that
his trial preparation, including his review of various medical records, centered on contradicting the
State’s assertions that the three victims had suffered “serious” bodily injury. Moreover, Alaniz
notes that the changes were not made until after voir dire was completed and contends that his
jury selection was framed by “the charges as alleged in the indictment.” For these reasons, Alaniz
asserts that he “was not afforded adequate notice to prepare an informed and effective defense.”
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As a preliminary matter, we note that other than referring to a case for the general
proposition that an indictment should inform the defendant of the charges against him, see Garcia
v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998) (explaining that indictment must provide
notice of accusations against defendant), Alaniz does not cite any legal authority supporting his
due-process claim. See Tex. R. App. P. 38.1(i) (requiring party to file brief with appropriate citations
to authority); see also Rodriguez v. State, 329 S.W.3d 74, 81 (Tex. App.—Houston [14th Dist.]
2010, no pet.) (explaining that failure to cite authority for appellate issue can result in waiver).
In any event, we are not persuaded that the type of indictment changes at issue in this
case could have violated Alaniz’s due-process rights. As suggested by Alaniz, the purpose of an
indictment is to provide the defendant with “notice of the offense charged so that he may prepare,
in advance of trial, an informed and effective defense.” Riney, 28 S.W.3d at 565. In other words,
the function of the indictment is to inform the defendant of the charges against him and to provide
him with “adequate information to prepare an appropriate defense.” Id. at 566. In this case, the
indictment informed Alaniz that he was being charged with three counts of aggravated assault, set
out the manner in which he allegedly committed the acts, stated who the victims were, and gave a
description of how and when the victims were injured. Although the modifications requested by the
State altered the degree of the harm alleged, the modifications did not otherwise affect the substance
of the allegations against Alaniz.
Based on the preceding, we overrule Alaniz’s second issue on appeal.
The Changes were Interlineated into the Indictment
In his final issue on appeal, Alaniz contends that the district court erred by failing to
physically alter “the face” of the indictment. When presenting this argument, Alaniz argues that “he
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was denied fair notice of the charges against him because there was no actual physical alteration to
the face of the indictment, nor was there a photocopy of the original indictment with the amendment
entered into the written record.” See id. at 565-66 (explaining that although court had previously
decided that “only effective means of accomplishing an amendment was by interlineation,” there are
other ways to effect amendment including proffering copy of amended version of original indictment).
However, the supplemental clerk’s record, which was filed after Alaniz filed
his appellate brief, shows that the alterations were interlineated on the face of the indictment.
Accordingly, we overrule Alaniz’s final issue on appeal.

Outcome: Having overruled all of Alaniz’s issues on appeal, we affirm the district court’s
judgment of conviction.

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