Opinion issued January 30, 2014

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 12
- 00 591
- CR

——————————— MATTHEW HAMANN , Appellant V. THE STATE OF TEXAS , Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Court Ca se No. 1326875

O P I N I O N A jury convicted appellant , Matthew Hamann, of assault against a person with whom he had a dating relationship, second offense, 1 and the trial court

1 See T EX
. P ENAL C ODE A NN . § 22.01(a) (Vernon Supp. 201 3 ) (defining offense of assault) ; id. § 22.01(b)(2)(A) (providing that assault of family member, person2 assessed his punishment at twenty

- five years’ confinement. In three points of

error , appellant argues that : (1) the trial court erred in allowing the State to amend the indictment on the day of trial; (2) the evidence was insufficient to support his conviction; and (3) the trial court imprope rly allowed the State’s fingerprint expert to testify because the State had failed to disclose the expert’s name.
We affirm

. Background On November 12, 2011, Houston Police O fficers E. DeLeon and S. Maldonado answered a call for an assault in progress at 8601 Winkler, an apartment complex near the Gulf Freeway in southeast Houston, and found appellant in the complex’s parking lot, standing over Toni Caseras, the complainant, and yelling at her as she huddled in a fetal position on the ground. After restra ining appellant, the officers found that Caseras was severely shaken, that she had a “busted lip,” and that her abdomen was “very red,” signs the officers thought were consistent with her having been assaulted. Caseras testified that she had met appella nt the year before, when both were employees at Kelly’s Country Cooking. The two began dating and moved in together in early 2011. By November, Caseras and appellant had been living
with whom appellant has dating relationship, or member of his household is third degree felony if appellant had previous conviction for assault against family member, person with whom he had a dating relationship, or member of his household)

.3 together for eight months. On the evening of November 11, they went to a co worker’s barbecue, but , because Caseras was concerned about appellant’s drinking, they left the barbecue early and returned home. On the way back, an argument erupted, and , when they arrived home , Caseras ran out of the car and “took a walk,” hoping that appellant would calm down by the time she returned. When she came back around midnight, appellant was gone, so she went to bed. Appellant woke her shortly thereafter by punch ing her repeatedly, dragging her from the bed , and throwing her on the flo or. He kicked her, grabbed her by the hood of her sweatshirt , and dragged her to the front of th e apartment to throw her
out side

. When she begged to be allowed to get her shoes, he let her go back to the bedroom, where she grabbed her cell phone. Appellant then threw her out of the apartment and went back inside to get another beer. When he came back out side , he found Caseras dia ling 9

- 1

- 1 on her cell phone. He said, “I’m going to kill you” and charged at her just as the first squad car pulled into the parking lot. Appellant was arrested and charged with assault involving dating violence, second offense. The original indictme nt alleged that, prior to the instant offense, appellant, “on July 11, 2007, in the 230th District Court of Harris County, Texas, in Cause Number 1122012 , was convicted of assault which was committed against a person with whom defendant had a dating relati onship. ” Following the jury’s impanelling, but before it was sworn, the State moved to modify the indictment to4 reflect that the July 11, 2007 conviction was an “assault [against a] family member.” The trial court granted the State’s motion to amend the indictment over appellant’s objection. Previously, approximately one month before the trial , the State had filed its notice of intent to use evidence of prior convictions and extraneous offenses that properly identified the July 11, 2007 conviction that w as used in the indictment. The notice also included a November 20, 2008 conviction for assault involving family violence, two additional convictions for assault involving family violence, a conviction for engaging in organized criminal activity, and seven misdemeanor offenses , including criminal trespass, burglary of a motor vehicle, and possession of marijuana. In order to confirm that appellant was convicted of assault of a family member in 2007, the State called Roy Glover, a fingerprint expert for H arris County , who matched appellant’s fingerprint to that on the 2007 judgment. Despite appellant’s request for notice of all expert witnesses pursuant to Code of Criminal Procedure article 39.14, the State had not previously disclosed Glover’s
name. Rat her, the State identified only a “fingerprint identification expert” in its subpoena list. The jury convicted appellant of assault and this appeal followed.5 Amendment of Indictment In his first point of error , appellant argues that the trial court erred in allowing the State to amend the indictment on the day of trial to correct the name of his previous conviction from “assault which was committed against a person with whom defendant had a dating relationship ” to “assault

- family violence.” Code of Crimina l Procedure article 28.10 provides the guidelines for amending an indictment: (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. O n 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 infor mation 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 charg es the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 28.10 (Vernon 2006). The Court of Criminal Appeals and this Court have previously held that article 28.10 gives a criminal defendant “an absolute veto power” over amendments to the indictment after trial begins. See James v. State , No. 01

- 10

- 00693

- CR, 2012 WL 1355731, at *5

– 6 (Tex . App.

— Houston [1st Dist.] Apr. 19, 2012, pet. ref’d) ( opinion6 designated for publication) (citing Hillin v. State , 808 S.W.2d 486, 488

– 89 (Tex. Crim. App. 1991)). Furthermore, this Court has held that an amendment to an enhancement parag raph in the indictment is likewise subject to the defendant ’ s veto under article 28.10. See id. at *6 (citing Boutte v. State , 824 S.W.2d 322, 323 (Tex. App.

— Houston [1st Dist.] 1992, pet. ref’d)). Here, it is undisputed that the State moved to amend the enhance ment paragraph in the indictment after trial on the merits began and that the trial court effectuated the amendment over appellant’s objection. Therefore, following Hillin , Boutte , and James , we hold that the trial court erred in granting the State’s

amen dment over appellant’s objection. Appellant argues that violations of article 28.10 are not subject to harmless

error review, relying on the Court of Criminal Appeals’ holding to that effect in Sodipo v. State , 815 S.W.2d 551 (Tex. Crim. App. 1991). How ever, as this Court recognized in James , that holding was impliedly overruled in Wright v. State , 28 S.W.3d 526, 531

– 3 2 (Tex. Crim. App. 2000). In James , we held that violations of articl e 28.10 are subject to harmless

- error review. 2012 WL 1355731, at * 7. We disregard a n article 28.10 violation unless the trial court’s error affects the defendant’s substantial rights. See T EX
. R. A PP
. P . 44.2(b); Gray v. State , 159 S.W.3d 95, 98 (Tex. Crim. App. 2005) (stating that statutory violation claims are treated as non - constitutional errors for purposes of conducting harm analysis);7 James , 2012 WL 1355731, at *7. An error affects a substantial right “when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Trejos v. State , 243 S.W.3d 30, 41 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref’d) ( quoting King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). If, looking at the record as a whole, it appears the error “ ‘ did not influence the jury, or had but a slight effect, ’ we must consider the error harmless and allow the conviction to stand. ” Id. at 41

– 42 (quoting John son v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). “To determine whether the trial court’s error affected a substantial right, we examine t he possible outcomes had the indictment not been erroneously amended.” Id. at 42. The critical inquiry is whether the indictment as written sufficiently informed the defendant of the charge against him to allow him to prepa re an adequate defense at trial and whether prosecution under the original indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. (citing Gollihar v. State , 46 S.W.3d 243, 248 (Tex. Crim. App. 2001)). Here, the original indictment included an enhancement paragraph identifying appellant’s previous conviction for family assault as an assault against someone with whom appellant was in a dating relationship . The date of conviction , cause number, and trial court were all identified correctly in the original indictment

. B oth crimes

— assault against a person with whom a defendant had a dating8 relationship and assault against a family member

— are covered by the same subsection of the Penal Code , and either could have supported appellant’s indictment for assault against a person with whom he had a dating relationship as a second offender

. See T EX
. P ENAL C ODE A NN . § 22.01(b)(2)(A) (Vernon Supp. 2013) (providing that assault of family member, person with whom appellant has dating relationship, or member of his household is third degree felony if appellant had previous conviction for assault against family member, person with whom he had a dating relationship, or member of his household)

. Furthermore, the State properly identified the previous conviction in the notice of intent to use evidence of prior convictions and extraneous offenses that it sent to appellant a month before trial

. Thus, the record demonstrates that the original indictment sufficiently informed appellant of the charge against him to allow him to prepare an adequate defense, and it also demonstrates that appellant’s prosecution under the original indictment would not subject him to the risk of later prosecution for the same offense. See Trejos , 243 S.W.3d at 42. Had the indictment no t been amended, the State could have still presented evidence of appellant’s previous conviction, in spite of the fact that it was a conviction for assault against a family member, rather than an assault against someone with whom appellant had a dating rel ationship. Such a variance between the indictment and the proof offered at trial is considered9 immaterial. See Freda v. State , 704 S.W.2d 41, 42

– 43 (Tex. Crim. App. 1986) (holding there was no fatal variance between facts alleged in indictment and facts proved at trial when indictment alleged appellant was previously convicted of felony bank robbery and appellant was not surprised to his prejudice when actual proof at trial instead demonstrated prior conviction for conspiracy to commit bank robbery); Simmons v. State , 288 S.W.3d 72, 80 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref’d) (recognizing that “ variances between an indictment and the proof of cause numbers, courts, and dates of conviction in enhancement paragraphs have been held not to be mater ial ”). Thus, we cannot conclude that appellant’s substantial rights were prejudiced under these circumstances. We overrule appellant’s first point of error. Sufficiency of the Evidence In his second point of error, appellant argues that the evidence suppo rting his conviction was legally insufficient because the State did not present evidence of a previous conviction for assault “which was committed against a person with whom the defendant had a dating relationship,” as alleged in the original indictment.
W hen reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also10 Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (holding that Jackson standard is only standard to use when determining sufficiency of evidence). The jurors are the exclusive judges o f the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks , 323 S.W.3d at 899

. In c h allenging the evidence supporting his conviction for the assault against Caseras, appellant argues only that , because the State’s e vidence of his July 11, 2007 conviction for assault in cause number 1122012 established that it was a conviction for assault of a family member, it was legally insufficient to establish that he was previously convicted of an assault against a person with w hom he had a dating relationship, as alleg ed in the original indictment. This Court has recognized that “ variances between an indictment and the proof of cause numbers, courts, and dates of conviction in enhancement paragraphs have been held not to be mate rial .” Simmons , 288 S.W.3d at 80 (citing Freda , 704 S.W.2d at 42

– 43). In Freda , the Court of Criminal Appeals held that a variance between the name of a prior offense alleged in an enhancement paragraph of the indictment and the name of the prior offense proved at trial will not be material or require reversal without a showing of surprise or prejudice. 7 0 4 S.W.2d at 43. The record here does not reveal that appellant was surprised or prejudiced by the variance between the offense originally named in the enhancement paragraph of his indictment and the offense as proved at trial. The original indictment correctly11 identifi ed his prior conviction by date, cause number, and convicting court, and the State properly identified the previous conviction in its notice of intent to use evidence of previous convictions and extraneous offenses. Appellant does not argue that the State failed to provide adequate proof of his previous conviction for an assault against a family member. Thus, the variance between the name of the prior offense originally alleged in the indictment and the name of the prior offense proved at trial is not mat erial here and does not require reversal. See id. We overrule appellant’s second point of error. Failure to Disclose Witness In his third point of error, appellant contends that the trial court erred in allowing Roy Glover, fingerprint expert for Harris C ounty, to testify after the State failed to disclose his name in its witness list. Generally, notice of the State’s witnesses must be given upon request by the defense. Martinez v. State , 867 S.W.2d 30, 39 (Tex. Crim. App. 1993). If the trial court allow s a witness who was not on the State’s list to testify, we review that decision for an abuse of discretion. See i d. ; Hardin v. State , 20 S.W.3d 84, 88 (Tex. App.

— Texarkana 2000, pet. ref’d). Among the factors a reviewing court considers in determining wh ether a trial court abused its discretion by allowing a witness who is not on the State’ s witness list to te stify are (1) whether the State’ s actions in calling a previously undisclosed witness constituted bad faith, and (2)12 whether the defendant could hav e reasonably anticipated that the witness would testify. Wood v. State , 18 S.W.3d 642, 649 (Tex. Crim. App. 2000) (citing Nobles
v. State , 843 S.W.2d 503, 514

– 15 (Tex. Crim. App. 1992 ) ). In determining whether the State acted in bad faith, the principal area of inquiry is whether the defense shows that the State intended to deceive the defendant by failing to pro vide the defense with a witness’ s name. See Nobles , 843 S.W.2d at 515. In examining whether the defense could have reasonably anticipated that the State would call the witness, reviewing courts generally examine (1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent in that surprise (i.e., the defendant was aware of what the witness would say, or the witness testifie d about cumulative or uncontested issues); and (3) the degree to which the trial court was able to remedy that surprise (i.e., by granting the defense a recess, postponement, or continuance, or by ordering the State to provide the witness’ s criminal histor y). See Martinez , 867 S.W.2d at 39; Nobles , 843 S.W.2d at 515 ; Martinez v. State , 131 S.W.3d 22, 29 (Tex. App.

— San Antonio 2003, no pet.); Hardin v. State , 20 S.W.3d 84, 88 (Tex. App.

— Texarkana 2000, pet. ref’d)

. Here, there is no evidence that the State acted in bad faith. It timely disclosed a list of its witnesses that provided generally that it intended to call a fingerprint identification expert, and there is no evidence that appellant inquired further as to the identity of the expert witness at a t ime when the State would know13 the witness’ s identity. In Young v. State , the Court of Criminal Appeals addressed a similar situation in which the State did not provide the names of its witnesses for the punishment phase of trial because it did not know which witnesses it would call. 547 S.W.2d 23, 27 (Tex. Crim. App. 1977). The court found that because Young did not inquire further as to which witnesses the Sta te would call at a time when the State would know, the trial court did not abuse its discretion in admitting the testimony. Id. Thus, we conclude that appellant has failed to show that the State intended to deceive him by failing to provide him with Glov er’s name. See Nobles , 843 S.W.2d at 5 15

. Furthermore, the record demonstrates that appellant could h ave reasonably anticipated that the fingerprint expert would testify. See Martinez , 867 S.W.2d at 39; Nobles , 843 S.W.2d at 515. While the fact that Gl over was the designated fingerprint expert was a surprise to appellant , the degree of disadvantage inherent in that surprise was minimal because appellant was aware that the State would call

a fingerprint expert to testify and that the State intended to in troduce evidence of his previous convictions. See Gowin v. State , 760 S.W.2d 672, 674 (Tex. App.

— Tyler 1988, no pet.) ( holding that, when State failed to identify fingerprint expert by name until morning of trial, trial court did not abuse its discretion in allowing expert’s testimony because defendant knew that State intended to prove prior DWI convictions and should have reasonably anticipated that State would call expert14 fingerprint witness to do so). And the trial court allowed appellant to question
G lover before he testified, effectively remedying any surprise regarding the expert’s identity. See Stoker v. State , 788 S.W.2d 1, 14

– 16 (Tex. Crim. App. 1989) (concluding that trial court did not err in allowing unnamed witness to testify as to identity o f illicit substance in part because trial court granted brief continuance during trial for defense counsel to interview witness) , disapproved of on other grounds by Leddy v. State , 983 S.W.2d 713 (Tex. Crim. App. 1998) . Thus, we conclude that the trial co urt did not abuse its discretion in allowing Glover to testify. See Martinez , 867 S.W.2d at 39; Nobles , 843 S.W.2d at 515. Appellant cites Oprean v. State to support his argument that the trial court erred in allowing Glover to testify. However, Oprean is distinguishable because it involved the State’s willful refusal to obey a discovery order. See 201 S.W.3d 724,
72 7

– 2 8 (Tex. Crim. App. 2006) (h olding that State willfully withheld video tape depicting one of defendant’s prior offenses, despite multiple requests and opportunities to produce it, and remanding case to trial court to determine whether defendant suffered any harm from tape’s admission). Here, as we stated above, there is no indication in the record that the State willfully withheld Glover’s name or otherwise acted in bad faith. The State timely disclosed its intention to use a fingerprint identification expert and its intention to use evidence of appellant ’s prior convictions for family

- violence assault.15 We overrule appellant’s third point of error. Conclusion We affirm the judgment of the trial court.

Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Higley, and Massengale.
P ublish. T EX
. R. A PP
. P. 47.2( b).