IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 800-99

GRAFTON LEROY RINEY, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY

D I S S E N T I N G O P I N I O N

Today the majority overrules Ward v. State, 829 S.W.2d 787 (Tex. Crim. App. 1992), to the extent that it requires physical interlineation of the original indictment as the only means to accomplish an amendment. See ante. at 8. Because the instant case "provides a defendant with the opportunity to subvert a process of which he was fully aware and had affirmatively acknowledged," the majority impliedly concludes that the physical interlineation requirement described in Ward is "unworkable" or "badly reasoned." Id. at 7. Apparently, the majority believes that principles of stare decisis should not be adhered to in this case. Because I do not find the majority's reasons for overruling Ward compelling, I respectfully dissent.

As the majority recognizes, "the doctrine of stare decisis should generally be followed, because it promotes judicial efficiency and consistency, it fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Ante. at 7 (citing Proctor v. State, 967 S.W.2d 840, 844-45 (Tex. Crim. App. 1998)). "Often it is better to be consistent than right." Malik v. State, 953 S.W.2d 234, 236 (Tex. Crim. App. 1997). The interest in stare decisis is even more compelling when the rule of law involves a judicial interpretation of a legislative enactment on which parties rely for guidance. See Busby v. State, 990 S.W.2d 263, 267 (Tex. Crim. App. 1999). "When the Legislature meets, after a particular statute has been judicially construed without changing the statute, we presume the Legislature intended the same construction should continue to be applied to that statute." Id. (quoting Marin v. State, 891 S.W.2d 267, 271-72 (Tex. Crim. App. 1994)).

There are acceptable reasons for overruling precedent, however. For example, "[w]hen older precedent conflicts with a newer decision that is found to be more soundly reasoned, we may resolve the inconsistency in favor of the more soundly reasoned decision." Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex. Crim. App. 1998). Another factor to consider is whether the reasoning underlying the older precedent has been undercut by the passage of time. See id. Further factors that support the overruling of precedent include: 1) when the original rule of law is flawed from the outset; 2) when the rule produces inconsistency and confusion in the law; 3) when the rule consistently creates unjust results or places unnecessary burdens upon the system; and 4) when the rule creates differences between criminal and civil practice when a reason for the difference does not exist. See State v. Toney, 979 S.W.2d 642, 645-46 (Tex. Crim. App. 1998) (Keller, J., concurring).

In analyzing the precedential value of Ward, it should first be emphasized that the Texas Legislature has not changed the wording of either Art. 28.10 or Art. 28.11 of the Texas Code of Criminal Procedure since Ward was decided. See Tex. Code Crim. Proc. Ann. Art. 28.10 & Art. 28.11. This weighs heavily in favor of retaining Ward, as the Legislature has had opportunities to change the statutes and has not done so. See Busby, 990 S.W.2d at 267. If the Legislature had not approved of this Court's interpretation of the statutes in Ward, it could have re-written the statutes. Instead, the statutes remain as they were in 1992, and the rule of law in Ward has been consistently relied upon by this Court and other courts. See Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997); White v. State, 890 S.W.2d 69, 71 (Tex. Crim. App. 1994); Bates v. State, 15 S.W.3d 155, 161 (Tex. App.--Texarkana 2000); Westfall v. State, 10 S.W.3d 85, 91 (Tex. App.--Waco 1999); Richardson v. State, 973 S.W.2d 384, 388 (Tex. App.--Dallas 1998); Brooks v. State, 921 S.W.2d 875, 877 (Tex. App.--Houston [14^th Dist.] 1996); Dixon v. State 932 S.W.2d 567, 571 (Tex. App.--Tyler 1995); Miller v. State, 909 S.W.2d 586, 588 (Tex. App.--Austin 1995); Collins v. State, 890 S.W.2d 893, 896 (Tex. App.--El Paso 1994); Blount v. State, 851 S.W.2d 359, 365 (Tex. App.--Houston [1^st Dist.] 1993); McFarland v. State, 834 S.W.2d 481, 483 (Tex. App--Corpus Christi 1992).

In its brief, the State argues that the Ward court erroneously adopted a dictionary definition of "amend." Assuming, arguendo, that this assertion is correct ⁽¹⁾, the State does not show this definition of "amend" produces inconsistency or confusion within the amendment process. Further, the State does not show how the Ward rule of law places any unnecessary burdens upon the legal system. Ward does not conflict with newer, more sound law. And the Ward precedent has not been undercut by the passage of time.

While the majority believes Ward allows this appellant "the opportunity to subvert a process of which he was fully aware and had affirmatively acknowledged," the majority does not demonstrate that the Ward rule of law consistently produces unjust results. Rather, Ward provides a clear standard for amending indictments - one in which the State and defendants can invariably rely upon. ⁽²⁾ Interlineation of the original indictment found in the court clerk's file actually reduces the potential for confusion as to which document is the legally binding indictment in a pending case. Therefore, I believe that the doctrine of stare decisis requires this Court to refrain from overruling any part of Ward, and I would continue to hold that physical interlineation of the original indictment is the only way to accomplish an amendment.

According to Ward, the indictment in the instant case was not properly amended. Therefore, the original indictment, which alleged that appellant possessed "amphetamine" in the amount of one gram or more but less than four grams, is the valid indictment. At trial, the State introduced evidence that appellant was arrested with "methamphetamine." This evidence does not support appellant's conviction as alleged in the indictment. Therefore, I would affirm the court of appeals's judgment of acquittal in this case. Because the majority does not do so, I respectfully dissent.

HOLLAND, J.

Publish

Date: October 4, 2000

1. The Ward court held that the dictionary definition of "amendment" was consistent with the Legislature's intent. Ward, 829 S.W.2d at 792 (stating that because the Legislature did not testify regarding the amendment process, we should not "frustrate legislative intent by applying a hypertechnical interpretation to the term."). The court also found the definition of "amend" to be consistent with Article I, section 10 of the Texas Constitution. See id. at 795.

2. The majority appears to notice this clear standard by "strongly encourag[ing] . . . any amendment via interlineation to be performed upon the copy of the indictment already present in the court clerk's file."