### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00328- CR

Jam es Dwayne Hoisager

v. The State of Texas

F ROM TH E 424 TH DISTRICT CO URT OF B URNET COUNTY , TEXAS NO. 393 32, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
A jury fo u n d A p p e ll a n t, Ja me s D w a y n e Hoisag er, g uilty of the ag g rava ted kidnapping and ag g rava ted assault of his ex-wife, Br enda Hoisag er (“B renda ”). On appea l, Appellant complains that the trial court err oneously allowed the State to amend the ag g rava ted kidnapping indictment and
err oneously denied his reque st for t en day s to respond to the amendment. For the rea sons that follow, we a ffirm both convic tions.
BACK GR OUND

On the morning of J uly 8, 2011, Appellant went to Br enda’ s condominium, with her permission, to attend to some business on behalf of their daug hter and to do his laundry
. Although their daug hter lived in the condominium with Br enda, Br enda and Appella n t were alone that morning
. Appellant beca me upset, having rec ently lear ned that Br enda was romantica lly involved with another man. W h en Br enda asked Appellant to leave he refused, prevente d her from callingthe police, held a knife to her throat, told her that they wer e g oing to g o see God that night, and told

her tha t he had pa id someone to kill both of them.

Appellant held Br enda in the condominium at knife point for sever al hours or more. They strug g led over Br enda’ s loaded pistol during this time, wi t h Ap p ell ant g aining control and putting it out of Brenda ’s reach. At s o m e p o i n t i n the afternoon, Appellant drove Bre nda to their churc h for a counseling session with the ir pastor, Ross Chandler
. Br enda testified that she did not g o to the churc h willingly and that Appellant kept the knife on hand during the drive. Appellant and Br enda met Chandler at their churc h and spoke about their rela tionship for approximately two hours befor e Chandler rea liz ed that something was amiss and remove d Br enda from the situation. Br enda repor ted the incident to the police , who ar rested A ppellant. Appellant was char g ed with ag g rava ted kidnapping and ag g rava t ed assault with a deadly wea

pon. Count I of the indictment—which char g ed Appellant with aggra vated kidnapping —orig inally

rea d:
Def endant
. . . did
. . . intentionally and knowi n gl y ab d uct Br enda Hoisag er by restra ining the sa id Bre nda Hoisag er with the i ntent to preve nt the liberation of the s ai d Br enda Hoisag er by using and threa tening to use deadly forc e aga inst the s aid Br enda Hoisag er, and the said Def endant did then and there restra in the said Br enda Hoisag er by re s t ri ct i n g the movements of the said Br enda Hoisag er without the consent of the s aid Brenda Hoisag er so a s to interfe re substantially with the l iberty of the said Br enda Hoisag er by confining the said Br enda Hoisag er to her home , and the said Def

endant did then and there use and exhibi t a deadly wea pon, to-wit : a knife, during the said off

ense.
Trial commence d on April 29, 2013. The jury was empane led and sworn in the ear ly afte rnoon and then rele ased for a lunch brea k, at which point the State expressed its int ention to

2delete the words “to her home” from the indictment. After the lunch brea k, the State made a formal motion to delete the words “to her home,” which the court g rante d over Appellant’s o b j ection. Appellant reque sted ten additional day s to prepa re in light of the altera tion to the indictment, which the t rial cour

t denied. The State rea d the amended version of t he indi ctment t o the j ury . The jury returne d a g uilty verdic t on both counts and assessed a punishment of ten y ear s for eac h count, which the trial cour

t ordere d to be serve d concur rently
. ANALYSIS Appellant contends that the trial cour t erre d (1) by allowing the S tate to amend the indictment over his objection and (2) by deny ing his reque st to delay trial for ten day s to allow him to respond to the ame ndment. We disag ree . LEGAL OVERVIEW “Ar ticle I , Section 10 of the Texas Constit ution g uara ntees an acc used the rig ht to be informed of the nature and cause of the acc usation ag ainst him in a criminal prosec ution. I t has long been held that this information must come from the fac e o f t h e char g ing instrument.” Eastep

v. State , 941 S.W .2d 130, 132 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State , 28 S.W .3d 561 (Tex. Crim. App. 200 0 ), and Gollihar v. State , 46 S.W .3d 243 (Tex. Crim. App. 2001). The T exas Code of Criminal Procedure provides that: (a) After notice to t he def endant, a matter of form or substance in an indi ctment or i n formation may be amende d at any time befor e the date the trial on t h e m er i t s commence s. On the reque st of the defe ndant, the court shall allow the defe ndant not less than 10 day s, or a shorter period if reque sted by the defe ndant, to respond to the amende d indictment or information. 3(b) A matter of form or substance in an indictment or inform at i o n m ay also be

amende d afte r the trial on the me rits commence s if the def endant doe s not object. (c) An indictment or information may not be amende d over the defe ndant’s objection as to form or s u b s t ance if the amende d indictment or information char g es the defe ndant with an additional or differ ent offe nse or if the substantial rig hts of the defe ndant ar e pre

judiced.
Tex. Code Crim. P roc. a

rt. 28.10.
The Trial Court did not Err in Allow ing the State to Alt er t he Ind ictm ent

Appellant ar g ues that the trial c ourt disreg arde d article 28.10(b) of the Texas Code of C ri m i n al P rocedure by allowing an amendment to the indictment afte r trial had commence d despite Appellant’s objection. See T ex . C o d e Crim. Proc. art. 28.10(b) (“A matter of form or substance in an indictment or information may also be amende d afte r the tr i al o n the merits
commence s if the defendant does not object ”) (empha sis added) ; Sanchez v. State , 138 S.W .3d 324, 329 (Tex. Crim. App. 2004) (for purposes of article 28.10, trial on merits commence s when jury is empane led and sworn). The State contends that article 28.10(b) does not apply beca use the words “to her home” wer e mere surplusag e, so their deletion did not constitute a substantive amendment.

Not ever y altera tion to the fac e of an indictment is an amendment for the purpose of article 28.10. Only chang es that affec t t h e substance of the indictment qualify as amendments. Eastep , 941 S.W .2d at 132. A modifica tion that does not affe ct the substance of the indictment is a mere aba

ndonment that does not trig g er article 28.10. Id
. at 133. The court of criminal appea ls has rec og nized three ty

pes of lang uag e in an indictment that can be abandone d without constituting
an amendment: (1) alleg ations of one or more alterna tive means of committing the alleg ed offe nse,

4(2) alleg ations of a g rea ter offe nse than rema ins in the indictment, and (3) surplusag e. Id.

“Surplusag e is u n n ecessary lang uag e not leg ally essential to constitute the offe nse alleg ed in the char g ing instrument.” Id. at 134.

Appellant arg ues that “to her home” was not surplusag e, citing Curry v. State for the contention that unnece ssary lang uag e is not surplusag e if it is descr iptive of a nece ssary element of
a char g ed offe nse. C u r r

y v. S t a t e , 30 S.W .3d 394, 399 (Tex. Crim. App. 2000) (citing Burrell

v. State , 526 S.W .2d 799, 802 (Tex. Crim. App. 1975), overruled by Gollihar , 46 S.W .3d at 256-57). This exception to the surplu s a g e rule—ofte n ref err ed to as the Burell exception—applies to lang uag e that (1) place s an offe nse in a spec i fi c s et t ing, (2) define s the method by which the offe nse was committed, or (3) descr ibes the offe nse more narr owly
. Id. Acc ording to Appellant, the phrase “to her home” was substance rathe r than surplusag e beca use it (1) put the offe nse in the specific setting of Br enda’ s condominium, (2) descr ibed the method of abduction, which is a nece ssary element of ag g rava ted kidnapping , and (3) narr owed the sc ope of the offe nse. 1 Appellant’s relianc e on Curry— and throug h it Burrell —is misplaced. The court of crimin al appea ls expli citly overr uled the Burell exception in Gollihar , rende ring Appellant’s arg ument invalid. 46 S.W .3d at 256-57. The rele vant question is whether the phrase “to her home” is leg ally essential to constitute the offense alleg ed. See Eastep , 941 S.W .2d at 134. A review of the indictment and the statutory elements of ag g rava ted kidnapping leads us to con cl u de that the words “to he r home” are not essential to this offense.

Tex. P enal Code § 20.04. 1 5The indictment orig inally stated that Appellant abducte d and restra i n ed Br enda by

confining her to her home. The revised indictmen t s t ated that he abducte d and restra ined her by confining her, without specify ing the location of confine ment. That location, howeve r, is not leg ally essential to the off

ense of ag g rava ted kidnapping
. A person commits an offe nse [of ag g rava ted k i dnapping ] if he intentionally or kn o wi n gl y abducts another person with the intent to: (1) hold him for ransom or rew ard; (2) use him a s a shield or hostag e; (3) fac ilitate the commission of a felony or the flig ht a fter the attempt or commission of a felony ; (4) inflict bodily injury on him or violate or abuse him sexually ; (5 ) t err orize him or a third person; or (6) interfe re w ith the perfor

mance of any

g overnme ntal or political function.
Tex. Penal Code § 20.04 (empha s i s added)
. Under the Texas Penal Code, abduction, which is leg ally essential to the offe nse of ag g rava ted kidnapping , “mea ns to restrain a person with intent to preve nt his liberation by (A) secr eting or holding him in a place wher e he is not likely to be found;
or (B ) using or threa tening to use deadly fo rc e. ” Id

. at § 20.01(2) (empha sis added)
. “‘Restra in’ means to re strict a per son’s movements without consent .
. . by moving the pe rson from one place to another or by confining the person.” Id. at § 20.01(1) (empha sis added)
. Whil e the Texas Penal Code require s abduction and restra int, it does not require that restra int by confine ment take place in the victim’s home or any other particula r location. Id

. at § 2 0
. 0 1
. Consequently the text “to her home” was not leg ally essentia l t o the offe nse of ag g rava ted kidnapping , rende ring it mere surplusag e. The remova l of this surplusag e was, there fore , not an amendment for the purpose of article 28. 1 0
. S

ee E a s t ep , 941 S.W .2d at 136. The trial court did not err in allowing the State to
remove this tex t from the indictment. We overr ule Appellant’ s first point of err or.

6The Trial Court did not Err in Denying App ellant’s Request for Addition al Time I n the alterna tive, Appellant arg ues that the trial court err oneously disreg arde d article 28.10(a) by deny ing his reque st for ten additional day s to respond to the amende d indictment. I f the State amends the indictment prior to the day that trial commence s, article 28.10(a) require s the court to a llow the defe ndant up to te n additional day s to respond to the amende d indictment. Tex. Code Crim. Proc. art. 28.10. Appellant’s arg ument fails beca use there was no amendment. As discussed above, “to her home” was surplusag e, and article 28.10 does not does no t ap p l y when the State deletes surplusag e. Acc ording ly , the trial court did not err in deny ing Appellant’s reque st for a tenday continuance
. We overrule Appellant’s se cond point of er ror.
CONCLUSION Ha v i n g concluded that the trial court did not err , we aff irm the judgme nts o f conviction for a g g rava ted kidnapping and ag g rava ted assault.

_________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pemberton, F ield, and B ourland Affir med Filed: Jul y

17, 2015 Do Not Publish

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