Cook v. State

902 S.W.2d 471, 1995 Tex. Crim. App. LEXIS 78, 1995 WL 379925
CourtCourt of Criminal Appeals of Texas
DecidedJune 28, 1995
Docket0375-94
StatusPublished
Cited by257 cases

This text of 902 S.W.2d 471 (Cook v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. State, 902 S.W.2d 471, 1995 Tex. Crim. App. LEXIS 78, 1995 WL 379925 (Tex. 1995).

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted by a jury of theft over $20,000.00. Tex.Penal Code Ann. § 31.03. Appellant pled “true” to the enhancement allegation and the trial judge assessed punishment at ten years confinement and ordered restitution in the amount of $6,000.00. Tex.Penal Code Ann. § 12.33. The Court of Appeals affirmed. Cook v. State, No. 04-93-00111-CR (TexApp. — San Antonio, January 6, 1994) (Not published). We granted appellant’s petition for discretionary review to determine whether the charging instrument was so deficient as to not invest the trial court with jurisdiction. Tex.R.App.P. 200(c)(6). We will reverse.

I.
We set out the charging instrument below: IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS, the Grand Jury of Bexar County, State of Texas, duly organized, empaneled and sworn as such at the March term, A.D., 1991, of the 186th Judicial District Court of said County, in said Court, at said term, do present in and to said Court that in the County and State aforesaid, and anterior to the presentment of this indictment, and on or about the
1ST day of June 1987, hereinafter referred to as defendant, with intent to deprive the owner, namely: ELIZABETH K. PRICE, of property, namely: LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA said property, said property being other than real property which had A VALUE of Twenty Thousand Dollars ($20,000.00) or more, without the effective consent of the owner;
Before the commission of the offense alleged above, on the 24th day of June, A.D., 1977, in Cause no. CR 3-77-36, in the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AT DALLAS, the Defendant was convicted of the felony of FRAUD IN OFFER OF SALE OF SECURITIES AND MAIL FRAUD.
[Signed by Grand Jury Foreperson]

On direct appeal, appellant contended his conviction was void because the charging instrument was constitutionally deficient because it omitted appellant’s name and omitted the actus reus of the offense. The Court of Appeals, with one justice dissenting, affirmed. Cook, supra. Relying upon Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), the Court held appellant waived the error by failing to object to the charging instrument prior to trial. Cook, slip op. pg. 3. Addressing appellant’s constitutional argument, the court explained:

Only by the most hypertechnical of arguments can it be said that the instrument is not an “indictment.” If appellant had been acquitted, no appellate court would hold that the state could retry him because the instrument was not an indictment and therefore the trial court never acquired jurisdiction. In what sense then can it be said, after a conviction, that the instrument was not an indictment and the trial court did not acquire jurisdiction? For jeopardy [475]*475purposes, it is plain that [appellant] has been convicted and punishment has been assessed for the offense of theft over $20,-000 from [complainant] on June 1, 1987.

Id., at 3-4.

We granted appellant’s petition for discretionary review to determine whether a charging instrument which fails to charge “a person” still constitutes an indictment as contemplated by art. V, § 12(b).

II.

A.

The Texas Constitution guarantees to defendants the right to indictment by a grand jury for all felony offenses.1 Tex. Const, art. I, § 10. See also, James C. Harrington, Our Texas Bill of Rights, 31 (Texas Civil Rights Project 1991). Art. I, § 10 provides in pertinent part:

Rights of accused in criminal prosecutions
In all criminal prosecutions the accused ... shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof ... and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary....

The constitutional requirement that felony offenses be prosecuted by indictment is firmly established. See, King v. State, 473 S.W.2d 43, 47-49 (Tex.Cr.App.1971) (“[T]he requirement that felonies be prosecuted by indictment has been followed in Texas since the outbreak of the revolution against Mexico.”); Hollingsworth v. State, 221 S.W. 978, 979 (Tex.Cr.App.1920); overruled in part, King, supra; Kinley v. State, 29 Tex.App. 532, 16 S.W. 339, 340 (1891); and, Graham v. State, 43 Tex. 550 (Tex.1875). See also, Ex parte Preston, 833 S.W.2d 515, 522 (Tex.Cr.App.1992) (Clinton, J., concurring); and, Acosta v. State, 650 S.W.2d 827, 830 (Tex.Cr.App.1983) (Onion, P.J., concurring).

An indictment serves two functions. First, it provides notice of the offense in order to allow a defendant to prepare a defense. Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Cr.App.1994); Evans v. State, 623 S.W.2d 924, 925 (Tex.Cr.App.1981); Benoit v. State, 561 S.W.2d 810, 813 (Tex.Cr.App.1977); Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975); and, Zweig v. State, 74 Tex.Crim. 306, 171 S.W. 747, 753 (App.1914) (Op on reh’g). See also, 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis, 39 (Texas Legislative Counsel 1977). Second, an indictment serves a jurisdictional function. Labelle v. State, 720 S.W.2d 101, 106 (Tex.Cr.App.1986); Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.1985); and, Drumm v. State, 560 S.W.2d 944, 946-947 (Tex.Cr.App.1977). The filing of an indictment is essential to vest the trial court with jurisdiction over a felony offense. See, King, 473 S.W.2d at 47-49; Ex parte Krarup, 422 S.W.2d 173, 174 (Tex.Cr.App.1967); Melancon v. State, 367 S.W.2d 690, 692 (Tex.Cr.App.1963); Kennedy v. State, 161 Tex.Crim. 303,276 S.W.2d 291, 294 (App.1954) (Op. on reh’g); Hollingsworth, 221 S.W. at 979; Turpin v. State, 86 Tex.Crim. 96, 215 S.W. 455, 456 (App.1919); Turman v. State, 81 Tex.Crim. 320, 196 S.W. 181 (App.1917); and, Lott v. State, 18 Tex.App. [476]*476627 (1885). Jurisdiction vests only upon the filing of a valid indictment in the appropriate court. Tex. Const. Art. V, § 12(b). See also, Crawford v. State, 624 S.W.2d 906, 907 (Tex.Cr.App.1981); and, Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980).

B.

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Bluebook (online)
902 S.W.2d 471, 1995 Tex. Crim. App. LEXIS 78, 1995 WL 379925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-state-texcrimapp-1995.