NO. 07-03-0441-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A AUGUST 19, 2004

______________________________ CHARLES R. SYKES, APPELLA NT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 258TH DISTRICT COURT OF SA N JACINTO COUNTY; NO. 8674; HONORAB LE JAMES H. KEES HAN, JUD GE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION Following his plea of not guil ty, appel lant Cha rles R. S ykes wasconvicte d by a jur y of delivery o f a cont rolled substance, enhanced, and punishment was assesse d at four years confinement. Presenting four points of error, appellant asserts (1) th e trial court erred in granting the State le ave to amend i ts indic tment over

his obje ction after the jury2

was seated and sworn; (2) the trial court committed clear error of constitutional magnitude and acquittal is mandatory under the Double Jeopardy Clause of the Fifth Amendment; (3) the trial court’s error in granting leave to amend the indictment after jeopardy attached was notharm less a nd affected appellant’s substantial rights; and (4) the constitutional ly impermissible amendment requires the sufficiency of the evidence to be measured by the original indictme nt. We aff irm.
After it had come to the attention of agents of the Drug E nforcement Administration thatappellant was engaged in drug trafficking, Special Agent Michael T. Bostick arranged
an undercover buy of cocaine. Origina lly, Bos tick and appella nt had ag reed to me et at a shopping center, but when Bostick telephoned him from the pre-arranged lo cation, appellant

told him to come to his residence because he was still processing the cocaine. Bostickwas familiar with appellant’s residencefrom previous transactions and proceeded to his ad dress.
Bosticktestified that when he arrived, appellant was waiting for him in the front yard. Bostic kexit ed his vehicle and he and appe llant engaged in small talk. During their conversation appellant gave him a clear plastic ba g containing crack cocaine in exchange for $200. Based on his experience, Bostick knewthe cocaine had been recently prepared because it was still wet and damp. Following the buy and the brief conversation, Bostick left.3

Appellant

was indicted for knowingly delivering “by actual transfer, to Michael Bostick, a controlled substance, namely cocaine, in an amount of four grams or more but less than 200 grams.” Approximately 13 days prior to t rial, howeve r, after realizing the weightof the cocaine was less than four grams, the State fil ed a motion to amend the indictmentto allege a second degree instead of a first degree felony. Writ ten objec ti ons were filed to the motion. Following a pretrial hearing on the matter on the date of trial, the trial court overruled appellant’s objections and approved altering the indictment to reflect
an allegation of delivery of cocaine in an amount of “one gram or more but less tha n four.”
After the ju ry wa s seated and sworn, the issue of amending the i ndictment was presented again outside the jury’s presence and appellant’s objections were aga in overruled. After the jury was brought in, the State read the indictment al leging that appellant

delivered cocaine to Michael Bostick in an “amount of one gram or more but less than four .” Byhis first three points of error appellant asserts harmful error bythe trial court in granting leave to the State over his objections to amend the indictment after the jury was seated and sworn. He asserts the trial court’s action violated his constitutional right to not twice be put in jeopardy for the same offense. We disagree.
Article 28.10 of the Texas Code of Criminal Procedure provides the manner in which
an indictment may be amended. Not every change, however, to the face of an indictment is an amendment. Mayfield v. State, 117 S.W.3 d 475, 47 6 (Tex.A pp.–Texarkana 20 03, pet.4

ref’d), citing Eastep v . State, 9 41 S.W.2d 130, 132 (Tex.Cr. App. 199 7), overruled on other grou nds , Riney v. State, 28 S.W.3d 561, 566 (Tex.Cr.App. 2002). In some ins tances, a particular

change i s merely a n abando nment. Eastep , 941 S.W.2d at 133-34. If a change to an in dictm ent is an abandonment, the requirements of article 28.10 do not apply and there has

been nostatutory

violati on. Id . at 133.
There are three situations in which an alteration to the face of a charging instrument constitutes an abandonment, to-wit: (1) ways or means of committing the offense; (2) trial of a lesser

include d off

ense; and (3) s urplusag e. Id . at 133-34. In the instant case, appellant

was originally charged with delivery of cocaine in an amount of four grams or
more but less than 200 grams, a first degree felony. See Tex. Health & Safety Code Ann. § 481.112(d) . After the indictment was altered, appellant was charged w ith delivery of cocaine of one gram or more but less than four grams, a second deg ree felony

. See § 481.112( c). An offense is a lesser included offense if it is established by proof of the same
or less than all the facts requi red to estab lish the comm ission of the offense cha rged. Tex. Code Crim. Pro c. Ann. a rt. 37.09(1) (Vernon 1981). The only alteration to the i ndictment being the weig ht of the cocai ne, th e effect of the change was to charge appellant w ith a lesser included offense. Thus, the change constituted a n aband onment and not an amendmentsubject to the req uirements of articl e 28.10. See Leonard v. State, 481 S.W.2d 117, 118 (Tex.Cr.App. 1972). The trial court did not err in allowing the State to aba nd on the greater offense an d alterin g the ind ictment to reflect t hat appe llant wa s charged with a lesser offense.5

Appellant

further argues that the trial court’s action in permitting theindictment to be altered after the jury was seated and sworn vi olated the Double Jeopardy Clause of the Fifth Amendment and Article 1, Section 14 of the Texas Constitution. T he onlylimitation
on the State’s right

to abandon a portion of an indictment is that it is then barred from later prosecuting the defendant for the abandoned allegation. Ex parte Preston, 833 S.W.2d 515, 517 ( T ex.Cr.App 1992) (en banc); Jackson v. State, 50 S.W.3d 579, 596 (Tex.App .–Fort

Worth 2001, pet. ref’d). When the issue of doublejeopardyis raised, our inquiry begins with the question of whether the defend antwas ever first placed in jeopardy. Cristv. Bretz, 437 U.S. 28, 33-3 4, 98 S.C t. 2156, 57 L.Ed.2d 24 (1978). Double jeopardy prohibit s a subsequent

tria l on a lesser offense after the defendant has been previously tried and acquitted for the greater offense. Privett v. State, 635 S.W.2d 74 6, 752 (Tex.App.–Houston [1st Dis t.] 1982, pet. ref’d ) (on reh’ g). Nothi ng in therecord before us indicates appellant was tried for the greater offense of delivery of cocaine in the amount of four grams or more but less than 200 grams. Thus, the prohibition against double jeopardy has not b een impl icated. Points of error on e, two, an d three a re overrul ed. Byhis fourth point of error, appellant contends the evidence is legally and factually insufficientto support his conviction. He further urges that theeviden ce should be measured by the or iginal indictme nt chargi ng him wi th deliver yof four grams or more but less than 200 grams of cocaine because the trial court erroneously permitted the indictment to be altered. Having previously concluded that the trial court did not err in permitting the State to abandon the greater offense and charge appellant with alesser offense, we review6

the sufficiency of the evidence against the allegation of

delivery of cocaine in the amount of one gram or more but less than four. B ased on our review of the following evi dence under the appropriate standards of review we disagree wi th appellant that the evidence is insuffic ient to s upport hi s convic tion.
When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is leg allysufficient to support the verdict. Clewis v. State, 922 S.W.2 d 126, 133 ( Tex.Cr.App. 1996). It is a fundamental rule of criminal law thatone cannot

be convicted of a crime unless it is show n beyond a reasonable doubt that the defendant committed each element of the alleged offense. U .S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004); Tex. Pen. Code Ann. § 2.01 (Vernon 2003). In conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. S tate, 820 S.W.2 d 154, 15 7 (Tex.C r.App. 19 91), overruled on other grounds , Paulso n v . State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). As an appellate court, we may not sit as
a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by
more than a mere modicum of evidence. Moreno v. State, 755 S .W. 2d 866, 867 (Tex.Cr.A pp. 1988 ).7

After conducti ng a leg al suffic iency rev iew unde r Jackson , we may proceed with a factual sufficiencyreview. Clewis , 922 S.W. 2d at 133

. The Court of Criminal Appeals has directed us to as k whether a neutral review of all the evide nce, both for and against the finding, demonstrates that the proof of guilt is so obvi ous ly weak as to undermine confidence in the fact finder’s determination, or the proof of guilt, althou gh ad equate if taken alone, is greatly outweighed by contrary proof. Johnso n v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulati on); see alsoKing
v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000). Accor dingly, we will reverse the fact finder’s determination only if a manifest injustice has occurred. Johnson , 23 S.W.3d at 12. In conducting this analysis, we may disa gree with the jury’s determination, even if probative evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder. See Santell an v. Sta te, 939 S .W.2d 155 , 164 (Te x.Cr.App . 1997).
Before determining whether the evidence is l ega lly sufficient to sustain the conviction, we first r e view theessentia l elemen ts the Sta te was re quired to prove. A person commi ts delivery of a contr olled su bstance, i.e ., cocaine, if he (1) intentionally or knowingly

(2) deli vers (3) acontroll ed substa nce. See Tex. Health &Safety Code Ann. §§ 481.102(3)(D) & 481.112(c) (Vernon 2003). D eliver means to transfer, knowingly or intentio nally, to

another a control led subs tance. See § 481.00 2(8).
The State established that Agent Bostick had planned to buy cocaine from appellant at a pre -arranged locatio n. The u ndispute d eviden ce showe d that w hen Bostick telephone d8

appellant

about the buy, appellant told him he was in the process of preparing the cocai ne for use and that he should come to his residence instead. In exchange for $200, appellant delivered to Bosti ck a clea r bag con taining cocaine. A fo re nsic chemist confirmed after performing three reliable tests that the substance Bostick pu rc hased was 3.9 grams of cocaine and lidocaine. We find the eviden ce is legally sufficient to support appellant’s conviction. See Silva v . State, 9 89 S.W.2d 64, 69 (T ex.App.–San Anto nio 1998 , pet. ref’ d).
We must now

dete rmine, after a neutral review of all the evidence, whether i t is factuallysu fficient to suppor t the verd ict. Johnson , 23 S.W.3d at 11. It is the exclusive province of the fa ct finder to determ ine the c redibil ity of the witnesses and the weight to be given their tes timony. Johnson v. State, 571 S.W.2 d 170, 17 3 (Tex.C r.App. 19 78); Armstrong v. State, 958 S.W.2 d 278, 28 4 (Tex.A pp.--Amari llo 1997 , pet. ref' d).
In additio n to Bostick’s testimony, Agent Patrick Starks, who was on the surveillance team on the day of the buy, testifie d that al th ough he did not witness the exchang e between Bostick and a ppell ant, he had driven by appellant’s residence and noticed him standing outside. Starks also testified that he was the evidence custodian on that day and had pr oce ssed and sealed the substance purchased by B ostick. After reviewing all the record evidence under Johnson , 23 S.W.3d at 11 , and without substituting our own judgment, we concl ude the e vidence is factual ly suffic ient to s upport th e verdict

. Point of error four is overruled. Accordingly, the judgment of the trial court is affirmed.9 Don H. Reavis Justice Do not publish.