Does CCP 28.10 (c) allow amendment on the day of trial over defendant's objection IF there is no additional or different offense and the substantial rights of the defendant are not prejudiced? [reading (a)(b)and (c)together]

The charging instrument does not contain the statement(s) that defendant made that resulted in the offense, but discovery provided has all statements. Can I argue no prejudice, or must I dismiss and send the jury home? Case law (other than Sodipo and Dixon?

I can't remember what we argued in Tyson but here is what the FWCoA said:

An indictment may not be amended on the day of trial. See State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991). But in order to preserve the error for appeal, a defendant must object; otherwise, the error is forfeited. Id.; Hoitt v. State, 30 S.W.3d 670, 674 (Tex.App.-Texarkana 2000, pet. ref'd); Briones v. State, No. 2-04-00250-CR, 2005 WL 1120018, at *2 (Tex.App.-Fort Worth May 12, 2005, no pet.) (mem.op.) (not designated for publication); see also Hernandez v. State, 127 S.W.3d 768, 772 (Tex.Crim.App.2004) (recognizing that article 28.10(c) provides that indictment or information may not be amended over defendant's objection as to form or substance if indictment or information charges defendant with additional or different offense or if substantial rights of defendant are prejudiced); *176 Garrett v. State, 161 S.W.3d 664, 669 (Tex.App.-Fort Worth 2005, pet. ref'd) (same). We overrule appellant's first point.

Tyson v. State, 172 S.W.3d 172, 175-76(Tex.App.-Fort Worth 2005, pet. ref'd).

Bottom line: Just don't do it. Not worth the risk.

Even if the defense attorney does not object to the amendment, you could very well be looking at an ineffective assistance claim later on. And considering that it's pretty much automatic reversible error to do it over objection, that claim may have some legs....

Look on the bright side, used to be that you couldn't amend within 10 days of trial. Period. I got burned on that one back in the day!

It is NOT automatic reversible error for the trial court to allow an information to be amended on the day of trial, even over defense counsel's objection. See Dukes v. State, 239 S.W.3d 444, *7-8 (Tex. App.--Dallas 2007, pet. filed). According to the Fifth Court of Appeals, error under article 28.10 is only reversible when it affects a substantial right. Id. To determine whether the error affected a substantial right an appellate court considers two factors: (1) whether the information, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial; and (2) whether prosecution under the erroneous information would subject the defendant to the risk of being prosecuted later for the same crime. Id.; Gollihar v. State, 46 S.W.3d 243, 248 (Tex. Crim. App. 2001).