by Douglas Ankney

The Court of Criminal Appeals of Texas ruled that adding felony counts to an indictment via an amended indictment constitutes the adding of additional offenses to the indictment thereby allowing the State to obtain more convictions than authorized by the original indictment, which is prohibited by Tex. Code Crim. Proc. Ann. Article 28.10.

Harold Gene Jefferson was indicted for sexual assault by intentionally and knowingly penetrating the sexual organ of a child with his sexual organ and indicted for indecency with a child by touching the child’s breast. The trial court later granted the State’s motion to amend the indictment to add one count to each of the foregoing offenses, increasing the total number of counts in the indictment from two to four.

The record did not contain an objection by defense counsel to the State’s motion to amend. At a later hearing on a motion for a new trial, defense counsel testified that he objected to the amendment at a hearing on the matter. But the reporter’s record was devoid of a transcript of any such hearing. The trial court denied the motion for new trial.

On appeal to the Court of Appeals, Jefferson claimed that the convictions for the added counts were void. Relying on Nix v. State, 65 S.W.3d 668 (Tex. Crim. App. 2001) (judgment is void if document purporting to be a charging instrument doesn’t meet the constitutional requirements of a charging instrument), he argued that the trial court lacked jurisdiction over the two added counts because the Texas Constitution requires the State to obtain an indictment in a felony case. The COA denied relief, reasoning that the right to a grand jury indictment is waivable, Trevino v. State, 470 S.W.3d 660 (Tex. App. 2015), and defense counsel’s failure to object waived the right. Id.

In response to Jefferson’s argument that counsel was ineffective for failing to object or, in the alternative, failing to have the objection preserved by requiring the alleged hearing to be recorded or objecting in writing to the lack of a court reporter, the COA observed that Duran v. State, 2008 WL 794869 (Tex. App. Mar. 26, 2008) (unpublished), held that an amended indictment does not allege a different or additional offense if it merely adds another count of the same charged offense.

The COA further found that there was a factual dispute as to whether counsel had objected and assumed the trial court resolved the conflict to support its denial of the motion for a new trial. But the COA further suggested that even if counsel failed to object, he may have had a strategic reason for doing so since Jefferson’s “defensive theory was the same for all offenses.”

The Court granted Jefferson’s petition for discretionary review. It noted that the first issue to resolve is “whether adding a count constitutes adding an additional offense to the indictment.”

It observed that Article 28.10 provides: “An indictment ... may not be amended over the defendant’s objection ... if the amended indictment ... charges the defendant with an additional or different offense.” The Court stated that the COA’s reliance on Duran is misplaced. While a defense attorney’s failure to raise a claim is not deficient if the law is unsettled, an unpublished opinion of the COA in a criminal case (Duran) does not establish precedent to create uncertainty where the law is otherwise clear, i.e., Article 28.10, the Court explained. Tex. R. App. P. 47.7(a).

An indictment cannot authorize more convictions than there are counts. Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007). A “count” is the statutory method of alleging separate offenses, so “when the State amends an indictment to add counts, it is adding allegations of separate offenses to the indictment,” according to the Court. In the present case, the original indictment authorized only two convictions, but the State obtained four – meaning the State added offenses to the indictment, the Court concluded.

The Court then turned to the issue of ineffective assistance of counsel (“IAC”) claim, observing “[t]he court of appeals concluded that the trial court could have found that trial counsel did in fact object, and so he was not deficient for failing to object. We find this problematic for two reasons.”

First, the COA’s conclusion conflicts with its disposition on another point of error, the Court stated. Jefferson had both a standalone claim for the erroneously amended indictment as well as an IAC claim based on defense counsel’s failure to preserve error regarding the amended indictment issue. The Court explained that Jefferson perceived that the indictment issue was not preserved due to counsel’s error, so he believed that he had to argue a claim that doesn’t require error preservation. As such, “he claimed that the error was of the sort to render the judgment void,” the Court stated, adding “But he was still making a claim of trial court error, and if error was preserved, then the claim should have been addressed on the merits.”

Second, the COA failed to address Jefferson’s argument that even if counsel did object, he was ineffective for failing to have the objection preserved. Case law “imposes an additional, independent burden on the appealing party to make a record demonstrating that error occurred in the trial court.” Davis v. State, 345 S.W.3d 71(Tex. Crim. App. 2011).

Regarding the COA’s strategy comment, the Court determined that the COA erred in finding that counsel might have had a strategic reason for not objecting to the amended indictment. Counsel testified shortly after trial at the hearing on the motion for a new trial that he had objected, so the passage of time and concomitant dimming of memory wasn’t an issue. The Court concluded more explanation is required to resolve the inconsistency than what was given by the COA.

Finally, the Court addressed the COA’s comment that Jefferson’s “defensive theory was the same for all offenses.” While this seemed to be an implicit conclusion that Jefferson suffered no prejudice, the COA failed to consider the harm caused by being convicted of more counts than the indictment allowed, the Court stated. It instructed “[t]he court of appeals should address that sort of harm and decide whether [Jefferson] was prejudiced under Strickland [v. Washington, 466 U.S. 668 (1984)]. Thus, the Court concluded that the COA erred in its IAC analysis.

Accordingly, the Court reversed and remanded for further proceedings consistent with its opinion. See: Jefferson v. State, 2022 Tex. Crim. App. LEXIS 469 (2022).

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