No. MA0404999

DEFENDANT’S TRIAL BRIEF ON STATE’S FAILURE TO AMEND
THE INDICTMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Defendant JOEL TOMBLE and files this trial brief on State’s failure to amend the indictment and would respectfully show as follows:

I. Argument: The State Failed to Amend the Indictment

Under Texas law, the State has not amended the indictment. “Neither the motion [to amend] itself nor the trial judge’s granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10.” Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) (quoting Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992)) (emphasis added).

The indictment is not legally amended, however, until the State physically alters the face of the original indictment or a photocopy of the original. “The amendment, then, is the actual alteration of the charging instrument.” Ward, 829 S.W.2d at 793. This physical alteration can be carried out “by handwriting, typing, interlining, or striking out,” Serna v. State, 69 S.W.3d 377 (Tex. App.— El Paso, 2002, no pet.), but the alteration must appear on the face of the original indictment or a photocopy of the original. See Riney, 28 S.W.3d at 565-66; see also Ward, 829 S.W.2d at 795 (“There being no alteration to the face of the indictment, we hold the indictment was never in fact amended”); Mingetti v. State, 2001 WL 34373156, *3 (Tex. App.—Eastland, 2001, no pet.) (not designated for publication) (“An amendment may only be made by interlineation on the face of the original, or a copy of the original, indictment.”) (citing Riney, 28 S.W.3d at 566).

Once the original indictment or a photocopy of it has been interlineated, it must be “incorporated into the clerk’s file making it the ‘official’ indictment of the case.” Serna, 69 S.W.3d at 380 (citing Riney, 28 S.W.3d at 566). On March 14, 2005, the day the jury was impaneled and sworn, the only charging document in the clerk’s file was the unaltered original indictment. Because the State has not timely filed with the clerk the interlineated original indictment or an interlineated photocopy of the original, the operative indictment in this case is the unaltered original.

In Serna, as in the case before this Court, the State made a motion to amend, which the court granted. Id. at 378. Serna subsequently filed a motion to quash, which the court denied. Id. Because the State did not timely file with the Clerk the interlineated original or an interlineated photocopy of the original, the Court of Appeals held that the unaltered original indictment remained the operative charging instrument. Likewise, in this case, the State has not timely altered the face of the original indictment or a photocopy of the original. Accordingly, the operative indictment is the unaltered original.

If the defendant objects, the State cannot amend the indictment on the day of trial. Sodipo v. State, 815 S.W.2d 551 (Tex. Crim. App. 1990) (en banc). The Texas Court of Criminal Appeals held that Article 28.10 allows amendments at two time frames – before the day the trial on the merits commences, or after the day the trial on the merits has commenced. Id. at 555-56 & n.4 (“Article 28.10 clearly speaks to allow amendments at two time frames discussed above. We hold that to amend at any other time is error.”). Consequently, “the State is not permitted to amend an indictment on the day of trial.” Id. at 556. A ruling permitting the state to do so is reversible error and will “not be subjected to a harm analysis.” Id.

III. Conclusion

For the foregoing reasons, Defendant Tomble respectfully requests that the Court find that that the operative indictment in this case is the original amended indictment in the Clerk’s file.

Respectfully Submitted,

Dated: December 1, 2005 DAVID FINN, P.C.

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this document has been served in open court upon the Assistant District Attorneys handling this case on December 1, 2005.

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David Finn