Roderick Okeith Smith v. the State of Texas

2026-08-27

Summary · law.co

Holding. The court affirmed Smith's convictions and sentence. The trial court did not violate Article 28.10 when it amended the enhancement paragraph because enhancement paragraphs are not essential elements of the indictment and are treated as surplusage, so modifications to them do not implicate statutory amendment procedures.

Roderick Okeith Smith was convicted after a bench trial of two felony counts involving failure to comply with sex offender registration requirements. The trial court found two prior felony convictions and sentenced Smith to seventy-five years on each charge. On appeal, Smith's sole argument was that the trial court failed to properly amend the enhancement paragraph in the indictment, which alleged a prior conviction for aggravated sexual assault that the State sought to change to aggravated assault with a deadly weapon before the punishment hearing. Smith did not object to the amendment at trial and pleaded true to the amended allegation.

Smith contended that because the physical indictment document in the clerk's record did not show when or by whom the amendment was made, the trial court violated procedural requirements under Texas Code of Criminal Procedure Article 28.10. He argued that without a valid amendment, the original enhancement paragraph was defective and could not support his sentence. The appellate court disagreed, holding that enhancement paragraphs alleging prior convictions need not be included in the indictment itself and therefore modifications to them do not trigger the amendment requirements of Article 28.10.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether amending an enhancement paragraph alleging a prior conviction requires compliance with statutory indictment amendment procedures
Whether enhancement paragraphs must be properly pled in the indictment for validity
Whether defective documentation of an indictment amendment in the clerk's record defeats the amendment's validity

Procedural posture

Smith appealed his convictions and 75-year sentences on two felony counts from the 278th District Court of Leon County, Texas, following a bench trial on the merits.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Court of Appeals

Tenth Appellate District of Texas

10-25-00221-CR

10-25-00222-CR

Roderick Okeith Smith,

Appellant

The State of Texas,

Appellee

On appeal from the

278th District Court of Leon County, Texas

Judge Tracy Sorensen, presiding

Trial Court Cause No. 23-145-DCCR-0173; 23-145-DCCR-0174

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Following a bench trial, the trial court found Roderick Okeith Smith

guilty of the felony offenses of failure to comply with registration requirements

and failure to comply with sex offender duty to register with a previous

conviction. TEX. PENAL CODE ANN. § 62.102. After finding the two allegations

of prior felony convictions true on each charge, the trial court assessed Smith’s

punishment at seventy-five years’ confinement on each charge and sentenced

him accordingly. TEX. PENAL CODE ANN. §§ 12.34, 12.42. This appeal ensued.

We will affirm.

In his sole issue, Smith argues that the trial court failed to effectively

amend the first enhancement paragraph in the indictments.

The specific section of the indictments at issue here is the first

enhancement paragraph, which is the same in each cause. In the indictment,

the first enhancement paragraph read:

And it is further presented that, prior to the commission of the

charged offense (hereafter styled the primary offense), the

defendant was finally convicted of an offense under Article 62.102

of the Texas Code of Criminal Procedure on the 15th day of June,

1987, in cause number 449025 in the 232nd District Court of

Harris County, Texas, the defendant was finally convicted of the

offense of AGGRAVATED SEXUAL ASSAULT.

Prior to the start of the punishment hearing, the State moved to amend the

paragraph, asking that the offense be changed to aggravated assault with a

deadly weapon and that the cause number be changed to 426177. Smith did

not object to the changes and the trial court ordered that the changes be made.

Smith then waived the reading of the enhancement paragraphs. The trial

court swore in Smith and asked, “Is it true or not true that prior to the

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commission of this offense, you were finally convicted of – in – on June 15th,

1987, in Harris County, Texas, of the offense of aggravated assault?” to which

Smith pled true.

The first clerk’s record filed with this Court did not contain the

interlineated indictment reflecting the changes ordered by the trial court. Two

days after Smith filed his first appellant’s brief, the Leon County District Clerk

filed a Supplemental Clerk’s Record which contained the interlineated

indictment that accurately reflects the changes ordered by the trial court.

Smith then filed an amended brief.

Smith argues that because the interlineated indictment in the

Supplemental Clerk’s Record does not reflect when the indictment was

amended or by whom it was amended, the trial court failed to effectively amend

the first enhancement paragraph as required by Article 28.10. Smith further

contends that since the indictment was not effectively amended, the record

affirmatively shows that the first enhancement paragraph, in its original form,

is itself improper because the aggravated sexual assault is the same offense

used as the “reportable conviction” in the primary offense in the indictment. If

the first paragraph is improper, Smith argues that the second enhancement

paragraph would only operate to enhance the primary offense to a seconddegree felony, which cannot support his seventy-five-year sentence.

Smith v. State Page 3

The Texas Code of Criminal Procedure provides for the means of

amending an indictment. See TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon

2006) (specifying how an indictment must be amended). Amending an

indictment requires (1) a motion from the State, (2) an order from the trial

court, and (3) documentation in the record reflecting the changes to the

indictment sufficient to give the defendant fair notice of the charges against

him. See Perez v. State, 429 S.W.3d 639, 642–43 (Tex. Crim. App. 2014). The

actual amendment occurs when the charging instrument is physically altered

by the insertion or deletion of language on the face of the document. Riney v.

State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000).

However, authority also holds that while prior convictions used for

enhancement purposes must be pled in some form, they need not be pled in the

indictment. Villescas v. State, 189 S.W.3d 290, 292–93 (Tex. Crim. App. 2006);

Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). Since enhancement

paragraphs need not be pled in the indictment, it logically follows that they are

unessential to the validity of the indictment and comparable to surplusage for

purposes of Article 28.10. Johnson v. State, 214 S.W.3d 157, 158 (Tex. App.—

Amarillo 2007, no pet.). As a result, we conclude that modifying the

enhancement paragraph here does not implicate Article 28.10, and, therefore,

Smith v. State Page 4

the trial court did not violate the terms of that provision. 1 Therefore, we

overrule Smith’s sole issue.

Having overruled Smith’s sole issue, we affirm the trial court’s judgment.

MATT JOHNSON

Chief Justice

OPINION DELIVERED and FILED: August 27, 2026

Before Chief Justice Johnson,

Justice Smith, and

Justice Harris

Affirmed

Do Not Publish

CRPM

Smith does not complain about lacking notice of the substance of the changes; thus, we do not consider that matter or its potential peripheral issues.

Smith v. State Page 5