NO. 800-99







Johnson, J., filed a concurring opinion...

C O N C U R R I N G  O P I N I O N

I concur in the judgment of the court. It stands the system of justice of this state in good stead to require that there be a written record of any change in an indictment. As the dissent notes, interlineation on the indictment "actually reduces the potential for confusion as to which document is the legally binding indictment . . . ." Ante, at ___ (slip op. at 4) (Holland, J., dissenting). Physical interlineation on the face of an indictment is evidence that an amendment was made and that the defendant was given notice of the alleged offense which was the subject of the trial. Such notice is a well-settled element of due process. Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). The face of the indictment is also key in assessing legal sufficiency. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge which, inter alia, is authorized by the indictment). That said, I do not agree with the dissent that, in order to satisfy the concerns that the requirement of physical interlineation addresses, it must be on the original indictment.

If the intent of the ruling in Ward was to ensure proper notice to the defendant of any change in the accusations and a written record of the change, requiring that the change be made on the original indictment may be too stringent. Throughout Ward, the Court refers to "the indictment." Except for a footnote that discusses a prior case, (1) I can find no reference to "the original indictment." This Court also noted in Ward that "the legislature did not attach any technical or particular meaning to the term 'amend,' and thus we will not frustrate legislative intent by applying a hypertechnical interpretation of the term." Ward, 829 S.W.2d at 792. We thus may use the common understanding of "amend" as "change, correct, revise." Id. at 791.

Not so long ago, there was only one copy of an indictment. It was easy to distinguish between the original document and retyped, handwritten, or mimeographed copies. With the advent of photocopiers and, as in this case, carbonless pressure copies, which piece of paper is designated as the "original" is at least somewhat arbitrary. As the majority notes, our rules of evidence include in the definition of "original" "any counterpart intended to have the same effect by a person executing or issuing it." Ante, at ___ n.1 (slip op. at 2 n.1); Tex. R. Evid. 903(3). A duplicate is defined as "a counterpart" and includes photocopies ("by means of photography") and carbonless pressure copies ("by chemical reproduction, or by other equivalent"). Tex. R. Evid. 903(4). The reasons for requiring interlineation on the face of the indictment as set out in Ward still apply; the motion to amend and the grant of permission by the trial court to amend are the process by which an indictment may be amended, not the amendment itself. Only a physical change on the face of the indictment satisfies the requirement the defendant be apprized of the charges against him. This concern with proper written notice can be addressed by amending the face of a duplicate of the document designated as the "original indictment" and entering the amended copy into the court's record. It would be wise to date the amended copy and the "original" so that there will be a lessened probability of confusion about which version is the one to be used at trial. While it might be better for the prosecutor to re-indict when seeking to amend the indictment as to matters of substance, the language of Tex. Code Crim. Proc. art. 28.10 and, I believe, the language of Ward require only a physical amendment of the indictment, whether the original or a duplicate thereof.

In the case before us, a duplicate of the pertinent part of the indictment was physically amended on its face and included in the court's file. Appellant was present in court at the time of the amendment and raised no objection to the amendment, even after questioning by the trial court. The intent of Ward and of the statute to provide proper notice and a written record of the amendment were fulfilled. Appellant can show no harm or surprise from the changes. He should not now be heard to complain.

Because I believe that Ward requires physical interlineation on the face of the charging document, but permits amendment by physical interlineation on the face of a duplicate of the charging document, which is then entered in the court's file, I concur only in the judgment of the Court.

Johnson, J.

Date Delivered: October 4, 2000


1. Ward, 829 S.W.2d at 789-90 n.4 ("In Bartley[ v. State, 789 S.W.2d 288 (Tex. App. - Dallas 1990, pet. ref'd)]. . .No interlineation was made on the indictment, and only the original indictment was included in the transcript.").