808 SW2D 486 - Hillin v. State

MILLER, Judge,

¶1concurring.

¶2As the primary researcher and author for the Court in Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), I have had some expertise in dealing not only with the interpretation of Art. 28.10 of the Code of Criminal Procedure, but also with the overall concept that the legislature was trying to introduce into criminal jurisprudence in Texas. Thus I would address a few remarks concerning Art. 28.10’s meaning and role.

¶3As aptly set out in the majority opinion, Art. 28.10’s three provisions (a), (b) and (c) need to be read according to the plain meaning of their language. Subsection (a) contemplates that the State may amend an indictment before the date on which the trial commences as long as the defendant is notified prior to (even moments prior to) the amendment. The defendant has no right to object to the making of such an amendment except on the grounds mentioned in subsection (c).1 If the defendant does object to an amendment under subsection (a) the trial judge may freely overrule him and does not commit error unless the amendment charges the defendant with an additional or different offense or prejudices his substantial rights (as prohibited by subsection (c)). Thus, before the day of trial the trial judge may freely overrule defense objections to amendments proffered by the State as long as (1) the defendant was notified and (2) the amendments don’t vio*491late subsection (c). If the defendant does object to a pretrial amendment on the grounds that (1) he didn’t receive notice or (2) the amendment violated section (c) of Art. 28.10, then the trial judge commits error if the defense objections were in fact valid. Such objections must be lodged, according to Art. 1.14 of the Code, prior to the day on which trial on the merits commences (assuming no pre-trial hearing).

¶4As to subsection (b) of Art. 28.10, covering amendments after trial commences, the subsection plainly states that no amendment of any kind can be made after the trial commences if the defendant objects. Since no amendment is allowed, no continuance after an amendment is contemplated. The plain meaning of the words contained therein dictates this result.

¶5What if the trial court commits error in his rulings under Art. 28.10? Subsection (a) of that article mandates the giving, on request, of a ten day continuance to the defendant if an amendment is granted under that subsection, regardless of whether the defendant objects or does not object to the amendment. We have ruled that failure to give this continuance is reversible error per se since it is not readily subject to a harm analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. Sodipo v. State (Tex.Cr.App. No. 1390-88, delivered September 12, 1990) (Motion for Rehearing granted on other grounds).

¶6But the doctrine of Sodipo would not seem to apply to other (than continuance) violations of subsection (a) or (b) of Article 28.10.2 This is so because we have precedent for making a harmless error analysis for defects in indictments and informations. See Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986). Thus these defects have been readily subject to a harm analysis, at least under the rules in effect prior to the promulgation of the current Texas Rules of Appellate Procedure. Adams, supra. Of course in Adamsthe defendant had the burden of showing how he was harmed by the amendment, and under the current rule 81(b)(2) T.R.A.P. the State has the burden of showing that the defendant was not harmed beyond a reasonable doubt, but it would still seem that defects, errors or irregularities in an indictment or an information are subject to a harm analysis.

¶7Of course the practical effect of applying Rule 81(b)(2) to a trial judge’s error in this area (except concerning the ten day continuance — see Sodipo, supra) is that the case may be reversed and remanded for a new trial at which time the time limits of Art. 1.14 and 28.10 begin anew and the State may, at least from a plain reading of the statutes, now be timely in their amendments where in the previous trial they were untimely. Perhaps that is all the legislature was trying to accomplish. Future interpretations of these articles will doubtless wrestle with this problem.3

¶8 *492With these remarks, and since the State doesn’t in this case contend the harmless error rule applies to (b), and since the trial judge erred under (b), I join in the majority opinion.

WHITE, J., joins this opinion.

¶9. Once amended, presumably the normal objections to the now amended indictment or information, such as noncompliance with Art. 21.02 or 21.21, may later be made as part of the response in Art. 28.10(a), “not less than 10 days ... to respond to the amended indictment or information."

¶10. Note however the dissenting opinion and jeopardy discussion in a situation of error under (b).

¶11. Previously unmentioned in this grand scheme of things is Article 28.09 of the Code of Criminal Procedure. That article provides that if a defense exception (read "objection” as contemplated in Article 1.14 V.A.C.C.P.) to an indictment or an information is sustained, the State may amend same as permitted by Article 28.10. Of course the Art. 28.09 objection to an indictment or information must, under Art. 1.14, be made prior to the day of trial. Assuming this is done and the objection is sustained then the State may, as a matter of right, amend the indictment or information under Art. 28.10, subsection (a), as long as it does not run afoul of subsection (c). That is, if a defense objection is sustained under Art. 28.09 within the time limits contemplated by Art. 1.14 and the State voluntarily seeks to amend the indictment or information, it must under Art. 28.10 give notice to the defendant and the trial judge, if the defendant requests, must grant a ten day continuance. Of course, if the defendant objects to the amendment, then the trial judge may properly overrule that objection provided the defendant was given notice and further provided that the amendment does not run afoul of subsection (c).

¶12It is clear that the legislature wanted to and did do away with objections to indictments and informations tendered on the day of trial. From the legislative history analyzed in our research in Studer, supra, this was their definite intent. But there is no mention in that legislative history about prohibiting objections to an indictment or information the day before trial or in delaying the trial as long as that delay was discovered prior to the day of trial. The displeasure with resetting a case on the day of trial, after all of the witnesses and the parties *492had come to court and after other cases had presumably been reset, was a motivating factor in this legislation. The cancellation or resetting of a trial prior to the day of trial was not. Thus I am convinced that the legislature intended that if a motion to quash was granted under Art. 28.09 then the defense, on request, was entitled to a ten day continuance which- of necessity would cause the trial to be reset. The difference is that under this new legislation that reset would be known to all parties prior to the day of trial, and that was what was important in the committee hearings and bill analysis we examined in Studer, supra.

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