Court of Appeals of Texas, First District, Houston
On Appeal from the 180th District Court, Harris County, Texas. Trial Court Case No. 1326875.
For APPELLANT: Joshua S. Hill, Houston, TX.
For STATE: Devon Anderson, District Attorney - Harris County, Houston, TX; Clinton A. Morgan, Assistant District Attorney, Houston, TX.
Panel consists of Keyes, Higley, and Massengale
Evelyn V. Keyes Justice.
A jury convicted appellant, Matthew Hamann, of assault against a person with whom he had a dating relationship, second offense, and the trial court assessed his punishment at twenty-five years' confinement. In three points of error, appellant argues that: (1) the trial court erred in allowing the State to amend the indictment on the day of trial; (2) the evidence was insufficient to support his conviction; and (3) the trial court improperly allowed the State's fingerprint expert to testify because the State had failed to disclose the expert's name.
On November 12, 2011, Houston Police Officers E. DeLeon and S. Maldonado answered a call for an assault in progress at 8601 Winkler, an apartment complex near the Gulf Freeway in southeast Houston, and found appellant in the complex's parking lot, standing over Toni Caseras, the complainant, and yelling at her as she huddled in a fetal position on the ground. After restraining appellant, the officers found that Caseras was severely shaken, that she had a " busted lip," and that her abdomen was " very red," signs the officers thought were consistent with her having been assaulted.
Caseras testified that she had met appellant the year before, when both were employees at Kelly's Country Cooking. The two began dating and moved in together in early 2011. By November, Caseras and appellant had been living together for eight months. On the evening of November 11, they went to a co-worker's barbecue, but, because Caseras was concerned about appellant's drinking, they left the barbecue early and returned home. On the way back, an argument erupted, and, when they arrived home, Caseras ran out of the car and " took a walk," hoping that appellant would calm down by the time she returned. When she came back around midnight, appellant was gone, so she went to bed.
Appellant woke her shortly thereafter by punching her repeatedly, dragging her from the bed, and throwing her on the floor. He kicked her, grabbed her by the hood of her sweatshirt, and dragged her to the front of the apartment to throw her outside. When she begged to be allowed to get her shoes, he let her go back to the bedroom, where she grabbed her cell phone. Appellant then threw her out of the apartment and went back inside to get another beer. When he came back outside, he found Caseras dialing 9-1-1 on her cell phone. He said, " I'm going to kill you" and charged at her just as the first squad car pulled into the parking lot.
Appellant was arrested and charged with assault involving dating violence, second offense. The original indictment alleged that, prior to the instant offense, appellant, " on July 11, 2007, in the 230th District Court of Harris County, Texas, in Cause Number 1122012, was convicted of assault which was committed against a person with whom defendant had a dating relationship." Following the jury's impanelling, but before it was sworn, the State moved to modify the indictment to reflect that the July 11, 2007 conviction was an " assault [against a] family member." The trial court granted the State's motion to amend the indictment over appellant's objection. Previously, approximately one month before the trial, the State had filed its notice of intent to use evidence of prior convictions and extraneous offenses that properly identified the July 11, 2007 conviction that was used in the indictment. The notice also included a November 20, 2008 conviction for assault involving family violence, two additional convictions for assault involving family violence, a conviction for engaging in organized criminal activity, and seven misdemeanor offenses, including criminal trespass, burglary of a motor vehicle, and possession of marijuana.
In order to confirm that appellant was convicted of assault of a family member in 2007, the State called Roy Glover, a fingerprint expert for Harris County, who matched appellant's fingerprint to that on the 2007 judgment. Despite appellant's request for notice of all expert witnesses pursuant to Code of Criminal Procedure article 39.14, the State had not previously disclosed Glover's name. ...