IN THE

TENTH COURT OF APPEALS

No. 10-13-00119-CR

DANNY DEMON AUSTIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Navarro County, Texas

Trial Court No. C34404-CR

M E M O R A N D U M O P I N I O N

Appellant, Danny Demon Austin, was convicted of unlawful possession of a 

controlled substance in an amount less than one gram in a drug-free zone and was 

sentenced to a sixteen-year prison term in the Institutional Division of the Texas 

Department of Criminal Justice. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(d) (West 

Supp. 2014). On original submission, this Court affirmed the judgment of the trial court. 

See generally Austin v. State, No. 10-13-00119-CR, 2014 Tex. App. LEXIS 8318 (Tex. App.—

Waco July 31, 2014), rev’d, No. PD-1431-14 (Tex. Crim. App. Mar. 18, 2015). The Court of 
Austin v. State Page 2

Criminal Appeals reversed this Court’s decision and remanded for a consideration of the 

sufficiency of the evidence supporting appellant’s conviction and, as a threshold matter, 

whether the second indictment was successfully amended in this case. Austin v. State, 

No. PD-1431-14 (Tex. Crim. App. Mar. 18, 2015). Because we conclude that the second 

indictment was properly amended and that the evidence supporting appellant’s 

conviction is sufficient, we affirm the judgment of the trial court.

I. THE INDICTMENTS

On original submission and in the Court of Criminal Appeals, appellant 

contended that the evidence supporting his conviction is insufficient because the second 

indictment was not properly amended to reflect that appellant possessed 

methamphetamine within 1,000 feet of the “Boys & Girls Club of Navarro County,” and 

because the State did not present any evidence indicating that appellant possessed 

methamphetamine within 1,000 feet of the Little Angels Daycare. See Austin, 2014 Tex. 

App. LEXIS 8318, at **11-12. Appellant emphasized that the record does not sufficiently 

demonstrate that the indictment was properly amended; and as such, the original 

indictment did not provide accurate information regarding the charges against him, as 

required by article 1, section 10 of the Texas Constitution. See TEX. CONST. art. 1, § 10. In 

essence, the threshold question before this Court is whether the second indictment, which 

referenced the “Boys & Girls Club of Navarro County,” successfully amended the prior 

indictment, which referenced the Little Angels Daycare.
Austin v. State Page 3

A. Amending an Indictment

Under the Texas Constitution, a defendant has the right to be charged by 

indictment for felony offenses. Id.; see Riney v. State, 28 S.W.3d 561, 564 (Tex. Crim. App. 

2000). Article 28.10 of the Code of Criminal Procedure states that: “After notice to the 

defendant, a matter of form or substance in an indictment may be amended at any time 

before the trial on the merits commences.” TEX. CODE CRIM. PROC. ANN. art. 28.10(a) 

(West 2006). The article further notes: “An indictment or information may not be 

amended over the defendant’s objection as to form or substance if the amended 

indictment or information charges the defendant with an additional or different offense 

or if the substantial rights of the defendant are prejudiced.” Id. art. 28.10(c). With regard 

to the method of amendment, article 28.11 provides that: “All amendments of an 

indictment or information shall be made with the leave of the court and under its 

direction.” Id. art. 28.11 (West 2006). 

B. Ward v. State

In Ward, the Court of Criminal Appeals addressed how an indictment should be 

amended. See generally 829 S.W.2d 787 (Tex. Crim. App. 1992). The Ward Court reasoned 

that, pursuant to article 28.11, when the State wishes to amend a pleading, it must get the 

trial court’s permission. See id. at 793 (citing TEX. CODE CRIM. PROC. ANN. art. 28.11). 

Accordingly, the motion is but only a request, not an amendment. See Perez v. State, 429 

S.W.3d 639, 642 (Tex. Crim. App. 2014). Moreover, “[t]he ruling on the motion is only the 

court’s leave to amend, and is not the amendment.” Id. (citing Ward, 829 S.W.2d at 793). 

Ultimately, the Ward Court held that the amendment is the actual alteration of the 
Austin v. State Page 4

charging instrument and that the physical alteration of the charging instrument is 

consistent with the accused’s right to be informed of the nature of the charges against 

him from the face of the indictment. Id. (citing Ward, 829 S.W.2d at 793-94).

C. Riney v. State

In 2000, the Court of Criminal Appeals reexamined its holding in Ward. See Riney, 

28 S.W.3d at 563. The Riney Court stated that “resolutely clinging to the notion that an 

amendment can be accomplished only be the physical interlineation of the original 

indictment provides a defendant with the opportunity to subvert a process of which he 

was fully aware and had affirmatively acknowledged.” Id. at 565. Essentially, the Riney

Court overruled Ward to the extent that Ward required physical interlineation to be the 

only method of amending an indictment. Id. at 566. Instead, the Court of Criminal 

Appeals determined that the proffering of an amended photocopy of the indictment was 

an acceptable method of amending an indictment. Id.

D. Perez v. State

The Court of Criminal Appeals revisited this issue in 2014 with Perez. See generally

429 S.W.3d at 639. In Perez, the appellant was originally charged in an eleven-count 

indictment. Id. at 640. On the day before trial, the State moved to amend the indictment 

by replacing the existing eleven counts with five counts. Id. Included in the motion was 

the following statement: “The Defendant, by and through his attorney of record, has been 

notified that the State is seeking amendment of the indictment, agrees to the amendment 

and waives ten (10) days[‘] notice to prepare for trial . . . .” Id. The motion was signed by 

appellant and his attorney as “Agreed.” Id. At the hearing on the motion, appellant’s 
Austin v. State Page 5

trial counsel stated that he had no objections to the amendments and announced that they 

were waiving the statutorily-allowed extra time. Id. Despite counsel’s statements, the 

trial court swore in and took testimony from appellant, wherein he indicated his 

agreement with the motion. Id. at 640-41. With regard to the method of amendment, the 

parties had a discussion, which culminated in the trial court stating that: “I think at the 

point we get to the reading of the indictment in front of the jury, we can just read the very 

beginning part and then just flip back to the replacement page.” Id. at 641.

On appeal, Perez objected for the first time to the indictment’s amendment. Id. 

Specifically, he argued that the indictment was not properly amended because there was 

no physical alteration or interlineation on the actual face of the indictment, and because 

there was no copy of the indictment. Id. at 641, 643. Perez urged the Court of Criminal 

Appeals to retreat from Riney back to Ward’s strict holding. Id. at 643. In declining to do 

so, the Perez Court concluded,

We are persuaded by the State. None of the dangers that Ward sought to 

prevent are present in this case. The appellant was given actual notice of 

the proposed amendments and very clearly stated that he had no 

objections. These charges did not add any new charges or alter the 

language of the old charges. Instead, they eliminated six counts (possibly 

to the benefit of the appellant) and reorganized those remaining. Such 

alterations do not invade the province of the grand jury because the grand 

jury returned a true bill on all of the charges for which the appellant was 

tried and ultimately convicted.

Id.

E. Discussion

Here, the State charged appellant with unlawful possession of a controlled 

substance in an amount less than one gram in a drug-free zone. See Austin, 2014 Tex. 
Austin v. State Page 6

App. LEXIS 8318, at **2-3. However, the initial indictment alleged that appellant 

unlawfully possessed cocaine in an amount less than one gram and within 1,000 feet of 

the Little Angels Daycare located at 219 North 5th Street in Corsicana, Texas. Id. at **2-3. 

On June 29, 2012, the State filed a motion to amend the indictment to reflect that the 

controlled substance in question was methamphetamine, not cocaine. Id. at *3. The trial 

court granted this motion to amend the indictment. Id. 

Subsequently, on November 27, 2012, the State filed a second motion to amend the 

indictment to reflect that the offense was committed within 1,000 feet of the “Boys & Girls 

Club of Navarro County, located at 1000 G.W. Jackson Ave.,” rather than the Little Angels 

Daycare. Id. This motion and the accompanying proposed amended indictment were

served on appellant’s counsel on November 27, 2012. Thereafter, on December 12, 2012, 

the trial court conducted a hearing on the State’s second motion to amend the indictment. 

Though not included in the record on original submission, the reporter’s record of the 

hearing indicates that the trial court granted the State’s second motion to amend over 

appellant’s objection.1 Additionally, as we noted on original submission, the docket sheet 

 

1

In response to the State’s assertion on remand that a transcript of the hearing on the State’s second 

motion to amend the indictment exists, we ordered the court reporter to produce the transcript from the 

hearing. For some unknown reason, this transcript was not included in the record on original submission.

In any event, the transcript from the hearing shows that appellant objected to the State’s second 

motion to amend the indictment on the ground that the amendment would charge him with a different 

offense and thereby prejudiced his substantial rights. The State argued that the amendment merely shifted 

from the subsection addressing daycare centers to the subsection pertaining to youth centers—both of 

which are considered drug-free zones. See generally TEX. HEALTH & SAFETY CODE ANN. § 481.134 (West 

Supp. 2014). After the State explained that it merely sought to change the portion of the indictment relating 

to the location of the offense, and after affirming that the “Boys & Girls Club of Navarro County” was 

discussed in the offense report, the trial court granted the State’s second motion to amend the indictment. 
Austin v. State Page 7

indicated that the trial court granted the State’s second motion to amend the indictment. 

Id. at *12. And though “no formal amendment was made by changing the indictment 

itself,” see id., the Clerk’s Record contains the State’s second motion to amend the 

indictment, which included a copy of the amended indictment. 

Based on our review of the record, we conclude that the State complied with the 

appropriate provisions for amending an indictment, as contained in article 28.10 of the 

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 28.10.2 Furthermore, 

similar to Riney, the State in this case proffered an amended photocopy of the indictment 

with their second motion to amend the indictment, and after a hearing in which appellant 

participated, the trial court granted the State’s motion. See 28 S.W.3d at 565-66.3 And like 

 

2 Article 28.10 of the Code of Criminal Procedure provides that:

(a) After notice to the defendant, a matter of form or substance in an indictment or information 

may be amended at any time before the date the trial on the merits commences. On the 

request of the defendant, the court shall allow the defendant not less than 10 days, or a 

shorter period if requested by the defendant, to respond to the amended indictment or 

information.

(b) A matter of form or substance in an indictment or information may also be amended after 

the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant’s objection as to 

form or substance if the amended indictment or information charges the defendant with 

an additional or different offense or if the substantial rights of the defendant are 

prejudiced.

TEX. CODE CRIM. PROC. ANN. art. 28.10 (West 2006).

3 The Riney Court specifically stated:

It is acceptable for the State to proffer, for the trial court’s approval, its amended version

of a photocopy of the original indictment. If approved, the amended photocopy of the 

original indictment need only be incorporated into the record under the direction of the 

court, pursuant to Article 28.11, with the knowledge and affirmative assent of the defense. 
Austin v. State Page 8

Perez, we are not convinced that any of the dangers that Ward sought to prevent are 

present in this case. See 429 S.W.3d at 643. Appellant was given actual notice of the 

proposed amendment, and at a hearing, appellant articulated his objection to the 

amendment; therefore, we reject his arguments on appeal that he did not know whether 

the indictment was amended and that he was not properly noticed of the extent of the 

amendment. Accordingly, we conclude that the indictment was properly amended for a 

second time in this case. See Perez, 429 S.W.3d at 643; Riney, 28 S.W.3d at 566; Ward, 829 

S.W.2d at 793-94. 

II. SUFFICIENCY OF THE EVIDENCE

Because we have concluded that the indictment was properly amended, we must 

now analyze appellant’s sufficiency argument under the amended indictment, which 

stated that the offense occurred within 1,000 feet of the “Boys & Girls Club of Navarro 

County, located at 1000 G.W. Jackson Ave.”

A. Applicable Law

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of 

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light 

most favorable to the verdict and determine whether, based on that 

 

This version of the indictment would then become the “official” indictment in the case, 

and it would continue to state, presumably in “plain and intelligible” language, the nature 

and cause of the accusation. Such steps comply with all statutory requisites and faithfully 

preserve the functions of an indictment, i.e., the trial court retains its jurisdiction, and the 

defendant is still kept abreast of the charges against him/her and has adequate information 

to prepare an appropriate defense.

28 S.W.3d 561, 565-66 (Tex. Crim. App. 2000).
Austin v. State Page 9

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); 

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar 

standard gives full play to the responsibility of the trier of fact fairly to 

resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 

319. “Each fact need not point directly and independently to the guilt of 

the appellant, as long as the cumulative force of all the incriminating 

circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d 

at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and 

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if 

the record supports conflicting inferences, we must presume that the factfinder resolved 

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson, 

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are 

treated equally: “Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to 

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder 

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or 

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 

(Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the 

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four 

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not 
Austin v. State Page 10

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s 

theories of liability; and (4) adequately describes the particular offense for which the 

defendant was tried. Id. 

B. Discussion

To prove unlawful possession of a controlled substance, the State must prove that: 

(1) the accused exercised control, management, or care over the substance; and (2) the 

accused knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d 

402, 405 (Tex. Crim. App. 2005); see also TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) 

(West 2010). Furthermore, to prove appellant committed this offense in a drug-free zone, 

the State was required to prove that the offense was committed “in, on, or within 1,000 

feet of the premises of a school, the premises of a public or private youth center, or a 

playground . . . .” See TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1). 

On the day in question, narcotics officers from the Navarro County Drug Task 

Force were assisting other officers with an incident at 113 North 4th Street in Corsicana, 

Texas. While at the scene, two of the narcotics officers, Sergeant Clint Andrews and 

Detective Garrett Harrell, observed appellant standing across the street. Both Sergeant 

Andrews and Detective Harrell were familiar with appellant from prior encounters. 

Furthermore, both Sergeant Andrews and Detective Harrell testified at trial that they 

knew that appellant had a warrant out for his arrest. This knowledge was based on a 

warrant list that was distributed at the police department and based on confirmation with 

dispatch.
Austin v. State Page 11

Subsequently, Sergeant Andrews and Detective Harrell made contact with 

appellant. The officers confirmed appellant’s arrest warrant with dispatch and notified 

appellant that there was a warrant out for his arrest. Thereafter, the officers arrested 

appellant; however, while in the process of the arrest, appellant pulled items from his 

pocket and attempted to give the items to his girlfriend. Among those items was a 

Marlboro black box of cigarettes. Sergeant Andrews intervened and seized the cigarette 

box. Inside the cigarette box, Sergeant Andrews located several blue baggies that 

resembled “narcotics baggies” with “king’s crown” logos. The officers believed that one 

of the baggies contained methamphetamine. Subsequent testing revealed that one of the 

baggies contained a trace amount of methamphetamine. Additionally, the State 

presented witnesses who identified the “Boys & Girls Club of Navarro County” and who 

testified that appellant was in possession of the methamphetamine within 1,000 feet of 

the “Boys & Girls Club of Navarro County.” 

Based on the foregoing, we conclude that the record contains sufficient evidence 

to demonstrate that appellant knowingly exercised control, management, and care over 

the methamphetamine within 1,000 feet of the “Boys & Girls Club of Navarro County”—

a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1); see also Jackson, 

443 U.S. at 318-19, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We 

therefore overrule appellant’s second issue on appeal. 

III. MOTION TO SUPPRESS

On remand, appellant elected to rely on his original briefing. The State, on the 

other hand, opted to file supplemental briefing in light of the Court of Criminal Appeals’s 
Austin v. State Page 12

decision on original submission. Nevertheless, in his original brief, appellant also 

challenged the trial court’s denial of his motion to suppress, arguing that the State cannot 

rely on the inventory exception to the probable-cause requirement because the State 

failed to produce a warrant authorizing appellant’s arrest. We have already addressed 

this issue on original submission, and our analysis has not been challenged by appellant 

at the Court of Criminal Appeals or on remand. See Austin, 2014 Tex. App. LEXIS 8318, 

at **5-11. Therefore, in the interest of judicial economy, we stand on our initial analysis 

of this issue and, as such, overrule appellant’s first issue. See id.

IV. CONCLUSION

We affirm the judgment of the trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed September 10, 2015

Do not publish

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