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Click here for the full text of this decision FACTS:Through enhancement paragraph one of an indictment charging Lindsey Dwain Johnson with being a felon in unlawful possession of a firearm, the state alleged that a Missouri court previously convicted Johnson of felonious stealing on May 15, 1991. The actual year of conviction, however, was 1981. The state sought to correct the error by orally moving to amend the paragraph and incorporate the true date. The trial court granted the motion but failed to issue a document or make any sort of writing memorializing the change. Following his conviction for being a felon unlawfully possessing a firearm, Johnson appealed. His two issues on appeal concerned the propriety of an oral amendment to an enhancement paragraph in the indictment. Johnson contended that because the actual wording of the paragraph in the indictment was not physically altered, the amendment was invalid and the trial court could not include the modification in its charge to the jury. HOLDING:Affirmed. Texas Code of Criminal Procedure Art. 28.10 sets forth procedures for amending an indictment. Normally, the court stated, an oral motion to amend coupled with the trial court’s decision to grant it falls short of a valid amendment under Art. 28.10. The court, however, cited case law holding that while prior convictions used for enhancement purposes must be pled in some form, they need not be pled in the indictment. Likewise, the court stated, the deletion of surplus information from an indictment falls outside the requirements of Art. 28.10. Since the state need not plead enhancement paragraphs in an indictment, the court stated that it logically follows that they are unessential to the validity of the indictment and comparable to surplus information for purposes of Art. 28.10. As a result, the court concluded that orally modifying the date in the enhancement paragraph here does not implicate Art. 28.10. Therefore, the court held that the trial court did not violate Art. 28.10. OPINION:Quinn, C.J.; Quinn, C.J., and Campbell and Pirtle, J.J.

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