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Balentine v. State

The trial court permitted the deletion of a phrase, "and causing Robert Rhodes['s] hand to be sprained during the resisting," in the indictment during trial. The phrase was needlessly pleaded and, under the circumstances presented, the unnecessary language could be abandoned by the state. The defendant received sufficient notice of the offense charged and was not surprised or misled. The deletion was not material and did not prejudice the defendant's substantial rights. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-09-00354-CR, 02-20-2013.

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OPINION

On original submission, this Court affirmed Brian Keith Balentine’s conviction for robbery. In addressing one of the issues, we held that the deletion of a phrase in the indictment at trial was permissible. See Balentine v. State, No. 09- 09-00354-CR, 2011 WL 2732146 (Tex. App.–Beaumont July 13, 2011), rev’d by Balentine v. State, No. PD-1102-11, 2012 WL 4044895 (Tex. Crim. App. Sept. 12, 2012) (unpublished opinion). On petition for review from our decision, the Court of Criminal Appeals held that the phrase was not an alternate manner and means averment. Balentine, 2012 WL 4044895, at *2. The Court reversed our judgment, and remanded the case for this Court’s consideration of "whether the phrase was permissibly abandoned on any other theory." See id.

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