Opinion
Nos. 4-05-00269- CR 04-05-00270-CR
Delivered and Filed: January 18, 2006. DO NOT PUBLISH.
Appeal from the 81st Judicial District Court, Karnes County, Texas, Trial Court Nos. 03-12-00151-Crk 03-12-00152-Crk, Honorable Pat Priest, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
A jury convicted Paul Reisch of two counts of harassment by persons in certain correctional facilities and sentenced him to two ten-year terms of confinement in the Institutional Division of the Texas Department of Criminal Justice and fined him $10,000 for each offense. Reisch raises one issue on appeal: whether the trial court erred in allowing the State to amend the indictments on the day of trial in violation of Article 28.10 of the Texas Code of Criminal Procedure. We affirm. Marc Branaum and Sean Bradley are employed as correctional officers at the Texas Department of Criminal Justice, Institutional Division. As the officers were performing their duties in the administrative segregation area of the Connally Unit of the TDCJ-ID, an inmate, Paul Reisch, threw urine on them. Reisch was indicted for two counts of the offense of harassment by persons in certain correctional facilities for his conduct toward Officers Branaum and Bradley. See Tex. Pen. Code Ann. § 22.11(a) (Vernon Supp. 2004-2005) ("A person commits an offense [of harassment by persons in certain correctional facilities] if the person, while imprisoned or confined in a correctional or detention facility and with intent to harass, alarm, or annoy another person, causes the other person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal."). The indictment in cause no. 03-12-00151-CRK alleged Reisch:
while imprisoned or confined in the Texas Department of Criminal Justice-Institutional Division-Connally Unit in Karnes County, Texas, a secure correctional facility, and with intent to harass, alarm, or annoy Marc Branaum, caused the said Marc Branaum to contact the urine of the defendant.The indictment in cause no. 03-12-00152-CRK alleged Reisch:
while imprisoned or confined in the Texas Department of Criminal Justice-Institutional Division-Connally Unit in Karnes County, Texas, a secure correctional facility, and with intent to harass, alarm, or annoy Sean Bradley, caused the said Sean Bradley to contact the urine of the defendant.On the day of trial, the State filed a motion to strike certain words from the indictments. The trial court, over Reisch's objection, granted the State's motion and deleted the language "the" and "of the defendant" from the last lines of the indictments by interlineating the face of the instruments. The indictments thereafter alleged Reisch:
while imprisoned or confined in the Texas Department of Criminal Justice-Institutional Division-Connally Unit in Karnes County, Texas, a secure correctional facility, and with intent to harass, alarm, or annoy Marc Branaum, caused the said Marc Branaum to contact urine.
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while imprisoned or confined in the Texas Department of Criminal Justice-Institutional Division-Connally Unit in Karnes County, Texas, a secure correctional facility, and with intent to harass, alarm, or annoy Sean Bradley, caused the said Sean Bradley to contact urine.(emphasis added). The State proceeded to trial on the indictments as modified by the trial court. At trial, Reisch claimed he did not throw urine at the officers. Reisch testified that the liquid substance he threw at the officers was sour milk, not urine. Reisch's testimony was corroborated at trial by another inmate, Michael Garza, who was serving time in the Connally Unit when the incident occurred. Despite Reisch's and Garza's testimony, the jury convicted Reisch of the alleged offenses. In his sole issue, Reisch argues the trial court erred in allowing the State to amend the indictments on the date of trial. He maintains that Article 28.10 of the Texas Code of Criminal Procedure prohibits amendment of indictments as to form or substance over a defendant's objection on the date trial commences. See Tex. Code Crim. Proc. Ann. art. 28.10 (a), (b) (Vernon 1989) (providing that an indictment may be amended at any time before the date trial commences or after trial commences if the defendant does not object); see also Sodipo v. State, 815 S.W.2d 551, 556 (Tex.Crim.App. 1990); Valenti v. State, 49 S.W.3d 594, 598 (Tex.App.-Fort Worth 2001, no pet.). The State responds that it merely abandoned surplusage in the indictments on the day of trial and, as such, Article 28.10's prohibition against amendments to the form or substance of a charging instrument is not implicated in this case. See Eastep v. State, 941 S.W.2d 130, 134-35 (Tex.Crim.App. 1997) (holding deletion of surplusage from an indictment is an abandonment, not an amendment), overruled on other grounds by Riney v. State, 28 S.W.3d 561, 565-66 (Tex.Crim.App. 2000), and by Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.Crim.App. 2001). Even if we assume the deletion of the language from the indictments in the present case constituted an impermissible trial date amendment, as opposed to a permissible abandonment of surplusage, we cannot hold Reisch was harmed by this statutory violation. "`Courts of appeals must conduct the harm analysis of statutory errors, as a species of `other errors,' under Rule 44.2(b), disregarding the error unless it `affect[ed] [appellant's] substantial rights.'" Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). We review the record as a whole when making this determination. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). There is no indication in the record that Reisch was misled by the allegations in the indictments or was surprised by the proof at trial. Nor is there any indication that the indictments impaired Reisch's ability to prepare an adequate defense at trial. Indeed, Reisch's defensive theory at trial was that the substance was spoiled milk, not urine. Thus, the source of the urine was immaterial to Reisch's defensive theory. We conclude that, in the context of the entire case, any error in deleting the language "the" and "of the defendant" from the last lines of the indictments on the day of trial did not affect Reisch's substantial rights. Accordingly, Reisch's sole appellate issue is overruled. The judgments of the trial court are affirmed.
The court explained:
Addressing your arguments . . . on the matter of trial amendment, if I thought this were a trial amendment I would certainly give you ten days. I do not think it's a trial amendment. It's my understanding of the law . . . that if it is surplusage and the Judge allows the prosecutor to abandon it, that does not constitute an amendment of the indictment, so that argument is overruled. As regards to the other, I looked at case law and read a number of cases, the statute does say, urine quote of the actor, any other person, or an animal. And so it was my first blush impression that he had to allege — the prosecutor did — through the grand jury specifically that it was the actor's urine or some other person's urine or animal urine. Upon reflection however, I don't believe that to be the case. I looked up the word urine in the dictionary and discovered that urine is produced only by mammals, so even presumably some mammals would not produce urine. I don't think the legislature had in mind that it would be more or less than offensive if it were the urine of the defendant or some other person's urine or an animal's urine. I do think the State alleged more than they had to allege and all they had to allege was urine because urine in and of itself limits itself to human beings and animal and so your motion to delete that language is granted, and your objection and exception to the ruling of the Court is duly noted.
Although the court of criminal appeals explained in Sodipo v. State that amendment errors are immune from harmless error analysis, see 815 S.W.2d at 556, Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997), and its progeny suggest that no state law error is immune from harmless error analysis under the current state of the law.