AFFIRMED; Opinion Filed July 7, 2016.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 15
- 00477
- CR CHRISTOPHER DARRELL JEFFERSON , Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 363rd Judicial District Court

Dallas County, Texas Trial Court Cause No. F13
- 30608
- W 

### MEMORANDUM OPINION Before Justices Francis, Lang

- Miers, and Myers

Opinion by Justice Myers Appellant Christopher Darrell Jefferson was convicte d by a jury of capital murder and punishment was assessed at life imprisonment without the possibility of parole. See T EX
. P ENAL C ODE A NN
. § 12.31(a)(2). In one issue, appellant contends the trial court erred by allowing the State to amend the indictment after the close of evidence. We affirm.
D ISCUSSION The indictment against appellant alleged in part that on or about January 29, 2013, he did: unlawfully then and there intentionally cause the death of LATOYA MCGOWAN, an individual, hereinafter called deceased, by SHOOTING THE DECEASED WITH A FIREARM, A DEADLY WEAPON, and the defendant was then and there in the course of committing and attempting to commit the offense of BURGLARY of said deceased. After both the State and defense rested and closed, the State made an oral motion to strike the words “of said deceased” from the indictment. Appellant objected to the motion, arguing that– 2

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the State was required to allege that the burglary was committed without the effective consent of a named owner . Counsel stat ed , “It’s set out in every burglary indictment that comes out of the Grand Jury.” Counsel argued that “burglary of said deceased” did not set forth the felony offense required for capital murder, and that it was fundamentally un fair to allow the State to “manipulate” a defective indictment after the evidence was closed

. Counsel concluded, “You can’t just guess and suppose that this was done without the consent of some person. That has to be set out in the indictment, and they have to do that.” The trial court overruled a ppellant’s objection , stating, “I’m granting the State’s motion to stri k e the surplus language.” The application paragraph of the jury charge repeated the indictment ’s allegations but omitted the words “of said deceased.”
An amendment to the charging instrument is governed by article 28.10 of the Texas C ode of C riminal P rocedure , which provides: (a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before th e 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 f

orm 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. T EX
. C ODE C RIM
. P ROC
. A NN . art. 28.10. Article 28.11 states that “[a]ll amendments of an indictm ent or information shall be made with the leave of the court and under its direction.” Id

. art. 28.11. The Texas C ourt of C riminal A ppeals has held that , under the language of article 28.10(b) , the defendant has “an absolute veto power over proposed amen dments after trial on the merits has commenced.” Hillin v. State , 808 S.W.2d 486, 489 (Tex. Crim. App. 1991) (plurality– 3

–

op.). This power is triggered when, after trial on the merits has commenced, the defendant makes a timely objection to the form or sub stance of the State’s proposed amendment. Id . at 488. There is, ho wever, a difference between amendment of an indictment and abandonment of language in the indictment

. “An amendment is an alteration to the face of the charging instrument which affects the substance of the charging instrument.” Eastep v. State , 941 S.W.2d 130, 132 (Tex. Crim. App. 1997), overruled on other grounds by Gollihar v. State , 46 S.W.3d 243 (Tex. Crim. App. 2001) and by Riney v. State , 28 S.W.3d 561 (Tex. Crim. App. 200 0); see also Moore v. State , 54 S.W.3d 529, 546 (Tex. App.

— Fort Worth 2001, pet. ref’d) ; Duenas v. State , No. 05

– 14

– 00192

– CR, 2015 WL 1243345, at *4 (Tex. App.

–– Dallas Mar

. 16, 2015, no pet. ) (mem. op., not designated for publication)

. A n abandonment , on the other hand, does not affect the substance of the charging instrument. Eastep , 941 S.W.2d at 133; Moore , 54 S.W.3d at 546 ; Duenas , 2015 WL 1243345, at *4

. A change of language in an indictment is appropriate to (1) abandon one or more alternative means of committing the offense, (2) abandon an allegation if the effect is to reduce the charged offense to a lesser included offense, or (3) eliminate surplusage. Eastep , 941 S.W.2d at 135; Chen v. State , 410 S.W.3d 394, 396 (Tex. App.

— Houston [1st Dist.] 2013, pet. ref’d); Mayfield v. State , 117 S.W.3d 475, 476 (Tex. App.

— Texarkana 2003, pet. ref’d) ; see also Duenas , 2015 WL 1243345, at *4 n.5 (citing Barron v. S tate , No. 03

– 11

– 00519

– CR, 2013 WL 3929121, at *7 n.3 (Tex. App.

— Austin July 26, 2013, no pet.) (mem. op., not designated for publication) (concluding that analysis in Eastep regarding surplusage in indictment “remains good law”)). “Surplusage is unnecessa ry language not legally essential to constitute the offense alleged in the charging instrument.” Eastep , 941 S.W.2d at 132. An abandonment of such language in the indictment does not invoke the requirements of articles 28.10 and 28.11 of the c ode of c rim inal p rocedure. Id

. at 135; Chen , 410 S.W.3d at 396 ;– 4

–

Duenas , 2015 WL 1243345, at *4

. Appellant argues that th e abandonment of the words “of said deceased” from the indictment constituted an amendment of the indictment in violation of article 28.10(b) of the

c ode of c riminal p rocedure. His argument is that the allegation “of said deceased” describe d the phrase “without the effective consent of the owner,” an essential element o f the underlying burglary offense , and that this br ought the present case within a recognized exception to the general rule regarding the deletion of surplusage. Appellant cites Burrell v. State , 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), overruled by Go llihar , 46 S.W.3d at 256

– 57, for the contention that unnecessary language is not surplusage if it is descriptive of a necessary element of the charged offense. Th e Burrell exception a pplie d to language that (1) places an offense in a specific setting, (2) defines the method by which the offense was committed, or (3) describes the offense more narrowly. See Curry v. State , 30 S.W.3d 394, 399 (Tex. Crim. App. 2000) (citing Burrell , 526 S.W.2d at 80 ). But a ppellant’s reliance on Burrell i s misguided because t he court of criminal appeals explicitly overruled t he Burell exception in Gollihar

. Gollihar , 46 S.W.3d at 256

– 57 ; Hoisager v. State , No. 03

– 13

– 00328

– CR, 2015 WL 4537581, at *3 (Tex. App.

–– Austin July 17, 2015, pet. ref’d) ( mem. op., not designated for publication). The question before us is whether the words “ of said deceased” w ere legally essential to constitute the offense alleged. See Eastep , 941 S.W.2d at 13 2

– 3 4. Courts have consistently held that an indictment alleging capital m urder need not allege the particular elements of the underlying offense. See Alba v. State , 905 S.W.2d 581, 585 (Tex. Crim. App. 1995) (indictment need not allege constituent elements of underlying offense which elevates murder to capital murder); Kitchen s v. State , 279 S.W.3d 733, 735

– 36 (Tex. App.

– – Amarillo 2007, pet. ref ’ d) (court correctly denied defendant ’ s motion to quash capital murder indictment for failure to allege constituent elements of underlying offense of burglary)

. Moreover, the phrase “wi thout– 5

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the effective consent of the owner , ” which is an element of burglary, is not alleged in this indictment nor do the words “of said deceased” describe th at element of the offense

. Accordingly , the language “of said deceased” was not legally essential to the offense of capital murder as alleged in the indictment , thereby rendering it surplusage. R emoval of this surplusage was not an amendment for the purpose s of article 28.10. See Eastep , 941 S.W.2d at 136. Thus,
t he trial c ourt did not err by allowing the State to remove th is language from the indictment. We overrule a ppellant’s issue

. One additional issue we must address concerns appellant’s request for leave to file a post

submission supplemental brief. On June 6, 2016, more than two months after th is case was submitted on March 30, 2016, appellant filed a motion asking u s to reset the submission date and grant leave to file a supplemental brief raising the i ssue of the sufficiency of the evidence. The motion noted that we had already denied, in an order signed on February 24, 2016, a pro se motion filed by appellant to amend his brief and raise sufficiency of the evidence because appellant, w ho is represented by counsel, is not entitled to hybrid representation. See Sch eanette v. State , 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004). In th e supplemental brief, appellant

now urges us to review whether t he evidence was sufficient to support a capital murder conviction and , specifically, whether the re was sufficient eviden ce to prove the underlying offense of burglary , which is necessary to support the capital murder conviction.
T o prove capital murder as alleged in the indictment, the State h ad to prove appellant intentionally caused the death of Latoya McGowan by shooti ng her with a firearm while in the course of committing and attempting to commit the offense of burglary. See T EX
. P ENAL C ODE A NN . § 19.03(a)(2)

. A person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony, theft, or an assault. Id . § 30.02(a)(3)

. In a prosecution for capital murder based on burglary, the requirement– 6

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that a felony be intended is satisfied by the murder of the victim. Gardner v. State , 306 S.W.3d 274, 287 (Tex. Crim. App. 2009)

. In other words, t he c ourt of c riminal a ppeals has held that a murder occurring after a break

- in can serve as both the basis for the murder charge and the underlying felony required for burglary. See id .; Homan v. State , 19 S.W.3d 847, 848 (Tex. Crim. App. 2000) (reversing court of appeals which held the murder of complainant could not be used to turn entry into home a burglary); Matamoros v. State , 901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (evidence was suffici ent to prove burglary component of capital murder where defendant entered complainant’s home without his consent and killed complainant). This Court, relying on Homan , has likewise stated that in a capital murder case with burglary as the aggravating elem ent, the complainant’s murder could be the felony in the burglary. See Brown v. State , 92 S.W.3d 655, 659 (Tex. App.

– – Dallas 2002), aff’d , 122 S.W.3d 794 (Tex. Crim. App. 2003); Jones v. State , No. 05

– 08

– 00925

– CR, 2009 WL 3366559 , at *3 (Tex. App.

– – Dallas Oct. 21, 2009, no pet. ) (not designated for publication). Thus, the question would be whether there i s sufficient evidence to prove appellant did not have the consent of McGowan’s mother, Terrance Brown, to enter her home on the day in question. See Gardner , 306 S.W.3d at 287. There is ample direct and circumstantial evidence that appellant lacked such consent. The evidence showed the victim had been in a relationship with appellant

– – the father of her two daughters

–– until December 29, 2012

. McGowan told her mother that she end ed the relationship because appellant had beat en her , and b oth the victim and her mother were afraid of appellant and what he might do . A ppellant would cal l Brown’s rented home when the victim liv ed with her and come ov er during the early morning hours and knock on the windows and doors

. Brown told appellant numerous times he was not welcome and should stay away

. Brown also went to the district attorney’s office with McGowan to apply for a protective order against appe llant . O n January 28, 2013, the day before the shooting, Brown called the police because appellant was– 7

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outside her home peeping through a window. On the night of January 29, 2013, Brown thought she heard someone at the door. She told her daughter to call the police. Brown went to the kitchen and grabbed a knife. She then heard a loud crash and saw her china hutch fall to the floor as appellant leaped through the dining room windo w. Pictures showing the broken window and blinds were admitted into evidence

. Appellant shot Brown four times. McGowan died after suffering gunshot wounds to her chest, back, left arm, left thigh , and right arm. Appellant’s DNA profile was identified i n blood stains on the window blind that hung on the broken window near the china hutch. Appellant’s DNA profile was also identified in a blood stain on the kitchen knife that Brown used to defend herself. Given the evidence in this case, a rational jury could certainly have found beyond a reasonable doubt that appellant committed the offense as charged in the indictment. Appellant n onetheless urges us t o consider the reasoning set forth in Judge Johnson’s dissenting opinion in Homan , where s he argued it would be illogical to allow the State to use the murder of the complainant to “bootstrap” a murder offens e into a capital murder offense.
Homan , 19 S.W.3d at 849

– 51 (Johnson, J., dissenting). U nder stare decisis, however, we are bound follow precedent e stablished by the c ourt of c riminal appeals

. See State of Texas ex rel. Vance v. Clawson , 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) ; Lewis v. State , 448 S.W.3d 138, 146 (Tex. App.

— Houston [14th Dist.] 2015, pet. ref’d)

. Accordingly, appellant’s June 6, 2016 motion for leave to file a supplemental brief and to reset the submission date, or for alternative relief, is denied. We affirm the trial court’s judgment. /Lana Myers/ LANA MYERS JUSTICE Do Not Publish TEX. R. APP. P. 47 150477F.U05– 8

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
CHRISTOPHER DARRELL JEFFERSON, Appellant No. 05

- 15

- 00477

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 363rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F13

- 30 608

- W. Opinion delivered by Justice Myers. Justices Francis and Lang

- Miers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 7th day of July, 2016.