dissent">CLINTON, Judge,

dissenting.

I dissent to the action of the Court in improvidently granting this petition for discretionary review. It is true we have held under former versions of Article 28.10, V.A.C.C.P. that the abandonment of an alternative statutory theory of prosecution does not constitute an “amendment.” Garcia v. State, 537 S.W.2d 930, at 933 (Tex.Cr.App.1976). But that was before the 1985 amendment to that provision providing for ten days for the defendant to respond to an amendment. See Acts 1985, 69th Leg., ch. 577, § 1, eff. Dec. 1, 1985. As Judge Baird points out in his concurring opinion, we have never defined the parameters of the word “amendment.” We have said that an amendment “is the actual alteration of the charging instrument.” Ward v. State, 829 S.W.2d 787, at 793 (Tex.Cr.App.1992). Whether this means any alteration of a charging instrument will necessarily constitute an “amendment,” however, we have not said. Since the word has so far been given no specialized meaning, I take it to have whatever meaning it conveys in ordinary acceptation. Even in legal parlance, as Judge Baird also points out, an “amendment” may, inter alia, “alter by ... deletion.” Black’s Law Dictionary, at 81 (6th ed. 1990). Is that not what happened in this cause?

Whether we will adhere to Garciain view of the 1985 amendment to the statute seems to me an open question, and a sufficiently important one that we granted discretionary review in the first instance. The Court does not now explain why the question has lost its import. I would address it. Because the Court does not, I dissent.

Citation profile

Relationships

How this case has been treated — in progress