Anderson v. State

905 S.W.2d 366
Procedural entryThis page is a short order in Anderson v. State. Read the opinion of the Court — 1994 Tex. App. LEXIS 306
Court of Appeals of Texas·Decided August 10, 1995·No. No. 2-94-394-CR·Published

Opinion

OPINION

DAUPHINOT, Justice.

Appellant, David Dean Anderson, was convicted of five counts of aggravated sexual assault of a child and two counts of indecency with a child upon his plea of not guilty to a jury. Upon Appellant’s plea of true to the enhancement paragraph, the jury assessed punishment at sixty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine for each count of aggravated sexual assault, and thirty years’ confinement and a $5,000 fine for each count of indecency with a child. Appellant raises two points of error complaining of improper joinder of pre-Septem-ber 1, 1987 offenses and post-September 1, 1987 offenses, and complaining of the court’s failure to sustain Appellant’s objection to the State’s voir dire. We affirm.

Appellant was charged in a single indictment with aggravated sexual assault and indecency with a child. The well written briefs and cogent arguments of both State and Appellant are appreciated by the court. The indictment is somewhat confusing and is, therefore, summarized as follows:

COUNT DATE OF OFFENSE PARAGRAPH OFFENSE CHARGED

Indecency w/Child by Exposure March 1, 1987

Indecency w/Child by Contact March 1, 1987

Aggravated Sexual Assault March 1, 1987

Indecency w/Child by Exposure March 30, 1987

Indecency w/Child by Contact March 30, 1987

Aggravated Sexual Assault March 30, 1987

Indecency w/Child by Exposure April 2, 1987 V — l

Indecency w/Child by Contact April 2, 1987 I — \

Aggravated Sexual Assault April 2, 1987 1 — 1

Indecency w/Child by Exposure March 30, 1988

Indecency w/Child by Contact March 30, 1988

Aggravated Sexual Assault March 30, 1988

Indecency w/Child by Exposure March 30, 1989

[369]*369Y 2 Indecency w/Child by Contact March 30, 1989

V 3 Aggravated Sexual Assault March 30, 1989

VI 1 Indecency w/Child by Contact August 31, 1989

VII 1 Indecency w/Child by Exposure July 5, 1990

VII 2 Indecency w/Child by Contact July 5, 1990

VII 3 Aggravated Sexual Assault July 5, 1990

The indictment also contained an enhancement paragraph alleging a 1976 conviction for murder. At the close of the State’s casein-chief, the State withdrew paragraph three of Count VII (aggravated sexual assault). After both sides had rested and closed, the State withdrew paragraphs 1 and 2 of Counts I, II, III, IV, and V, as well as paragraph 1 of Count VII of the indictment. Appellant objected to the State’s withdrawing those paragraphs, and his objection was overruled.

The first three counts in the indictment alleged offenses committed prior to September 1, 1987. The State concedes these offenses were improperly joined in one indictment.1 See Johnson v. State, 784 S.W.2d 47, 49 (Tex.Crim.App.1990). However, Appellant made no objection at trial to the misjoinder. Article 1.14(b) of the Code of Criminal Procedure requires that a defendant object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits begins. Tex.Code Crim.Proc.Ann. art. 1.14(b) (Vernon Supp.1995). Failure to object constitutes waiver of the error, and the error may not be raised for the first time on appeal or in a collateral attack. Article 1.14(b) is a procedural mandate. Id. Because this provision became effective December 1, 1985, it controlled at the time of trial in July, 1994. See Wade v. State, 572 S.W.2d 533, 534 (Tex.Crim.App. [Panel Op.] 1978); Hardeman v. State, 552 S.W.2d 433, 438 (Tex.Crim.App.1977). See also Tex.Gov’t Code Ann. § 311.022 (Vernon 1988) (statute presumed to be prospective). The propriety of joinder of offenses, however, is governed by the law in effect at the time the offenses were committed. See Tex.Penal Code Ann. § 3.01 historical note (Vernon 1994) [Act of September 1, 1987, 70th Leg., R.S., ch. 387, § 1, 1987 Tex.Gen.Laws 386].

The question, then, is whether the misjoinder constitutes error of such fundamental nature that it calls for review when raised at any time, or whether it is error subject to the mandate of article 1.14(b). Appellant relies on Johnson v. State, 784 S.W.2d 47 (Tex.Crim.App.1990) and Fortune v. State, 745 S.W.2d 364 (Tex.Crim.App.1988), pointing out that the Court of Criminal Appeals has held that no objection to mis-joinder is necessary prior to trial since mis-joinder is fundamental error requiring no objection. Johnson and Fortune, however, both deal with indictments returned prior to the effective date of article 1.14(b).

The Austin Court of Appeals has addressed the application of article 1.14(b) to misjoinder of offenses committed before September 1, 1987, and has found that objection prior to trial is required. Nolte v. State, 854 S.W.2d 304, 307-08 (Tex.App.—Austin 1993, pet. ref'd). The Court of Criminal Appeals has recently addressed the applicability of article 1.14(b) to offenses apparently barred by the statute of limitations. The court held [370]*370that article 1.14(b) does mandate a motion to quash when complaining an offense is so barred. State v. Turner, 898 S.W.2d 303, 305-06 (Tex.Crim.App.1995). Although the defect discussed in Turner was a defect of substance specifically listed in article 27.08 of the Code of Criminal Procedure, the lists contained in articles 27.08 and 27.09 are merely representative and not exhaustive as applied to article 1.14(b). Id.

In Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990), the Court of Criminal Appeals discussed both article 1.14(b) and the constitutional amendment that permitted the legislature to enact that statute. Tex. Const. art. V, § 12b now provides that the practice and procedures relating to the use of indictments, including their contents, sufficiency, and requisites, are as provided by law. In 1985, the legislature then enacted article 1.14(b). The Court of Criminal Appeals discussed the motivation which prompted the legislature to act, stating:

Clearly both the House and Senate believed that all defects in a charging instrument were waived if not raised by a defendant before trial. Clearly the perceived evil they were correcting was the raising of indictment defects for the first time after a trial and conviction and the subsequent reversal of that conviction because of that defect.

Studer, 799 S.W.2d at 270-71.

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Anderson v. State, 905 S.W.2d 366 (Tex. Ct. App. 1995).

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Related

Johnson v. State
784 S.W.2d 47 (Court of Criminal Appeals of Texas, 1990)
Nolte v. State
854 S.W.2d 304 (Court of Appeals of Texas, 1993)
Wade v. State
572 S.W.2d 533 (Court of Criminal Appeals of Texas, 1978)
Postell v. State
693 S.W.2d 462 (Court of Criminal Appeals of Texas, 1985)
Studer v. State
799 S.W.2d 263 (Court of Criminal Appeals of Texas, 1990)
Postell v. State
663 S.W.2d 552 (Court of Appeals of Texas, 1984)
State v. Turner
898 S.W.2d 303 (Court of Criminal Appeals of Texas, 1995)
Hardeman v. State
552 S.W.2d 433 (Court of Criminal Appeals of Texas, 1977)
Hughes v. State
562 S.W.2d 857 (Court of Criminal Appeals of Texas, 1978)
Fortune v. State
745 S.W.2d 364 (Court of Criminal Appeals of Texas, 1988)