Drake Jordan Finch v. State

Opinion

ACCEPTED 07-15-00104-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 8/25/2015 3:03:14 PM Vivian Long, Clerk

NO. 07-15-00104-CR

IN THE COURT OF APPEALS FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS FOR THE SEVENTH JUDICIAL DISTRICT 8/25/2015 3:03:14 PM VIVIAN LONG AMARILLO, TEXAS CLERK

DRAKE JORDAN FINCH APPELLANT VS.

THE STATE OF TEXAS APPELLEE

APPEAL FROM CAUSE NUMBER CR-14E-072 FROM THE 222ND JUDICIAL DISTRICT COURT OF DEAF SMITH COUNTY, THE HONORABLE ROLAND SAUL PRESIDING

BRIEF FOR THE STATE

THE STATE REQUESTS ORAL ARGUMENT IF APPELLANT=S REQUEST IS GRANTED

Jim English Criminal District Attorney State Bar No. 06625280 235 E. Third, Room 401 Hereford, Texas 79045 Telephone: (806) 364-3700 Facsimile: (806) 363-7039 Email: JEnglish@deafsmithcounty.gov No. 07-15-00104-CR

IN THE

COURT OF APPEALS SEVENTH JUDICIAL DISTRICT AMARILLO, TEXAS

DRAKE JORDAN FINCH APPELLANT, V. THE STATE OF TEXAS APPELLEE

BRIEF FOR STATE

TO THE HONORABLE SEVENTH COURT OF APPEALS: The State of Texas, the prosecuting authority in Cause No. CR-14E-072 in the 222nd District Court of Deaf Smith County, Texas, the Honorable Roland Saul, Judge presiding, respectfully submits this Brief in reply to the Brief of Appellant, appealing the Judgment of conviction and sentence. Pursuant to Rule 3.2 of the Texas Rules of Appellate Procedure, the parties will be referred to as Appellant and State. Citation to the Clerk=s Record will be ACR@ and a page number, while the citation to the Reporter=s Record will be ARR@ and a volume page and number. TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS................................................................................ii

INDEX OF AUTHORITIES...........................................................................iii, iv

SUMMARY OF THE ARGUMENT..............................................................v

RESPONSE TO APPELLANT=S POINT OF ERROR NUMBER ONE.......1

RESPONSE TO APPELLANT=S POINT OF ERROR NUMBER TWO......12

CONCLUSION AND PRAYER.....................................................................13

CERTIFICATE OF COMPLIANCE...............................................................14

CERTIFICATE OF SERVICE........................................................................14

ii INDEX OF AUTHORITIES PAGE

Almanza v. State, 686 S.W. 2d 157, 171 (Tex. Crim. App. 1984)...................8

Brooks v. State, 382 S.W. 3d 601 (Tex. App. - Amarillo 2012, pet. ref=d.).....2, 6, 7

Cook v. State, 902 S.W. 2d 471 (Tex. Crim. App. 1995).................................2

Duron v. State, 956 S.W. 2d 547, 550-551 (Tex. Crim. App. 1997)................2

Harrison v. State, 76 S.W. 3d 537, 539 (Tex. App.-Corpus Christi 2002, no pet.)...............................................................................................................2

Hutch v. State, 922 S.W. 2d 166, 171 (Tex. Crim. App. 1996)........................8

Kirkpatrick v. State, 279 S.W. 3d 324, 328 (Tex. Crim. App. 2009)...............2

Middleton v. State, 125 S.W. 3d 450, 453 (Tex. Crim. App. 2003).................8

Ngo v. State, 175 S.W. 3d 738, 743, 744 (Tex. Crim. App. 2005)...................8

Patterson v. State, 769 S.W. 2d 938, 941(Tex. Crim. App. 1989)....................3, 4

State v. Moff, 154 S.W. 3d 599, 601(Tex. Crim. App. 2004)...........................2

Taylor v. State, 332 S.W. 3d 483, 490 (Tex. Crim. App. 2011)........................9

Teal v. State, 230 S.W. 3d 172, 179 (Tex. Crim. App. 2007)...........................2

iii STATUTES

TEX. CODE CRIM. PROC. ANN. Art. 1.14 (b)..............................................1, 3

TEX. CODE CRIM. PROC. ANN. Art. 21.11..................................................3

TEX. CODE CRIM. PROC. ANN. Art. 21.19..................................................3

TEX. CODE CRIM. PROC. ANN. Art. 36.19..................................................8

TEX. PENAL CODE ANN. Sec. 22.02 (b).......................................................4, 7

iv SUMMARY OF THE ARGUMENT

The State submits the indictment sufficiently charged Appellant with the first-

degree felony offense of Aggravated Assault with a Deadly Weapon on a Household

Member, and his sentence of forty (40) years confinement was within the range of

punishment. The State further submits Appellant has failed to preserve error by

failing to object to the indictment prior to trial.

In the alternative, if this Court finds jury charge error, Appellant has not

suffered egregious harm because it is clear that any actual harm suffered by

Appellant was minimal after a thorough review of the evidence, the argument of

counsel, the jury charge and the entire record of the trial.

v ARGUMENT AND AUTHORITIES

State=s Reply to Point of Error One

Because the indictment charged an aggravated assault with a deadly

weapon on a household member and/or Appellant failed to object before the

date of trial to the alleged defect in the indictment, the judgment of aggravated

assault with a deadly weapon on a household member is not void, and the

sentence is not illegal.

Appellant first contends the judgment convicting him of first-degree felony

aggravated assault is void because the indictment only charged him with a second-

degree felony aggravated assault. Under Appellant=s analysis, it follows that the trial

court=s charge authorized punishment outside the range of punishment for the

offense charged and is, therefore, void.

The State asserts that the indictment provided the trial court and Appellant

notice with sufficient clarity to charge the first-degree felony offense of aggravated

assault with a deadly weapon on a household member. Moreover, if Appellant was

confused about the charged offense, he had a duty to object before the date of trial

1 for purposes of article 1.14(b).1 Since Appellant did not do so, he has forfeited any

right to object to any alleged indictment defects on appeal.

Underlying Law and Analysis

Whether an indictment is sufficient is a question of law that appellate

courts review de novo.2 To constitute an indictment, the Texas Constitution

requires that an indictment allege that 1) a person, 2) committed an offense.3 The

proper test to determine if a charging instrument alleges Aan offense@ is whether the

allegations are clear enough that one can identify the offense alleged.4 Therefore,

so long as the charging instrument provides sufficient clarity and specificity to

identify the penal statute under which the State intends to prosecute, it is

sufficient to confer jurisdiction and to serve as the basis for a valid conviction in

the absence of a motion to quash.5 An indictment must contain the elements of

the offense charged, fairly inform the defendant of charges he must prepare to

meet, and enable the defendant to plead acquittal or conviction in bar to

1 TEX. CODE CRIM. PROC. ANN. Art. 1.14 (b). 2 State v. Moff, 154 S.W. 3d 599, 601(Tex. Crim. App. 2004). 3 Cook v. State, 902 S.W. 2d 471, (Tex. Crim. App. 1995); Teal v. State, 230 S.W. 3d 172, 179 (Tex. Crim. App. 2007). 4 Teal at 180. 5 Duron v. State, 956 S.W. 2d 547, 550-551 (Tex. Crim. App. 1997).

2 future prosecution for the same offense.6 Courts must now look to an

indictment as a whole, not just to its specific formal requisites

requisites. 7

Article 21.11 of the Texas Code of Criminal Procedure provides:

AAn indictment shall be deemed sufficient which charges commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant; and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment;...@8

Article 21.19 provides:

An indictment shall not be held insufficient, nor shall a trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.9

Article 1.14(b) provides, in pertinent part:

AIf the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in

6 Harrison v. State, 76 S.W. 3d 537, 539 (Tex. App.-Corpus Christi 2002, no pet.); Brooks v. State, 382 S.W. 3d 601, 605 (Tex. App. - Amarillo, 2012, pet. ref=d.). 7 Kirkpatrick v. State, 279 S.W. 3d 324, 328 (Tex. Crim. App. 2009). 8 TEX. CODE CRIM. PROC. ANN. Art. 21.11. 9 TEX. CODE CRIM. PROC. ANN Art. 21.19.

3 any other postconviction proceeding.@10The Court of Criminal Appeals has explained the difference between what is meant by the Ause of a deadly weapon@ and the Aexhibition of a deadly weapon.@11 The Court went on to explain that one can Ause@ a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it.12

Aggravated Assault is a second-degree felony unless the indictment provides

a defendant with sufficient notice that section 22.02 (b) of the Texas Penal Code

applies, and the evidence proves beyond a reasonable doubt that the allegations are

true. Under these circumstances, a defendant can be convicted of a first-degree

felony aggravated assault.

Appellant was indicted on May 28, 2014, for aggravated assault with a deadly

weapon on a household member, the relevant portions of which included the

following:

Adid then and there intentionally, knowingly or recklessly cause serious bodily injury to Ruth Simms by striking her or by causing her head to strike an object or by shaking her, and the defendant did then and there use or exhibit a deadly weapon, to-wit: his hand or an unknown object, during the commission of said assault, and the said Ruth Simms was a member of the defendant=s household, as described by Section 71.005 of the Texas Family CodeY@13

10 TEX. CODE CRIM. PROC. ANN Art. 1.14(b). 11 Patterson v. State, 769 S.W. 2d 938, 941 (Tex. Crim. App. 1989). 12 Id. at 941. 13 CR, 6,9.

4 In the present case, it is undeniable that the elements of section 22.02 (b) (1)

were included in the indictment. By simply alleging the victim was a household

member in the context of an aggravated assault indictment, the State submits

Appellant was given sufficient notice that he was being charged with a first-degree

felony aggravated assault. Alleging the victim was a household member in a second-

degree felony aggravated assault case serves no purpose since it is unnecessary to

obtain a conviction and does not enhance the punishment range. On the contrary, it

is essential when charging a defendant with a first-degree felony aggravated assault.

It is apparent that by alleging in the indictment the use of a deadly weapon and an

assault which caused serious bodily injury on a household member, the State

intended to charge the first-degree felony of aggravated assault with a deadly

weapon on a household member.

After reviewing the record, the following observations can be made: 1) during

voir dire, the State explained, without objection from Appellant, that Appellant was

charged with the first-degree felony offense of aggravated assault with a punishment

range of five to ninety-nine years or life and an optional fine not to exceed $10,000; 14

2) during opening statements, the State outlined its intent to prove Appellant beat

14 RR, Vol. 3, 24-25.

5 the victim causing her to suffer serious bodily injury and asked the jury to find

Appellant guilty of the charged offense; 15 3) the court=s charge outlined the elements

of the first-degree felony offense of aggravated assault with a deadly weapon on a

household member and two lesser included second-degree felony offenses of

aggravated assault; 16 4) Appellant did not object to the indictment or the jury charge

on guilt or punishment; and 5) Appellant did not object to the punishment verdict.

When the indictment is read in context and in consideration of the subject

matter before the trial court, it is clear Appellant knew he was charged with the first-

degree felony of aggravated assault with a deadly weapon on a household member. 17

Nothing in the record indicates that Appellant was misled or confused or that

Appellant lacked notice of the allegations against him. If Appellant had any question

about what charge he had been asked to defend against or the range of punishment

for said offense, Appellant had ample opportunity, and, in fact, a duty to file an

objection with the court. In the instant case, Appellant never raised an objection to

the indictment or otherwise brought to the attention of the trial court at any time any

alleged defect.

15 RR, Vol. 4, 12-18. 16 CR, 65-66. 17 Brooks v. State, 382 S.W. 3d 601, 606 (Tex. App.-Amarillo 2012, pet. ref=d.).

6 Appellant focuses on the word Aexhibit@ in the indictment to conclude that the

State only charged him with a second-degree felony aggravated assault. Appellant

conveniently overlooks the language in the indictment that he Aused@ a deadly

weapon to cause serious bodily injury to a household member. Appellant=s analysis

is faulty because he fails to read the entire indictment in context. Instead, Appellant

reads the indictment in a hypertechnical manner which this Court has previously

condemned.18 Appellant attempts to avoid harmful case precedent by claiming there

was no defect of form or substance in the indictment all the while arguing a

substantive defect in the indictment failed to charge a first-degree felony offense of

aggravated assault under article 22.02 (b) (1) of the Texas Penal Code. 19 Appellant=s

issue on appeal is an attempt to avoid the results of failing to object at trial or file a

motion to quash. Having failed to properly object, Appellant has waived any such

objection and failed to preserve his issue for appeal.

Under point of error one, Appellant alludes to a defect in the court=s charge

on guilt as contributing to the alleged illegal sentence he received. 20 The State

submits that since the indictment sufficiently charged Appellant with a first-degree

18 Brooks v. State, 382 S.W. 3d 601, 607 (Tex. App. - Amarillo 2012, pet. ref=d.). 19 Appellant=s brief at 14-15. 20 Appellant=s brief at 17-18.

7 aggravated assault and Appellant forfeited his right to object to the charging

language in the indictment, Appellant has also forfeited his right to complain about

the jury charge which tracked the language in the indictment. However, if this Court

believes there was jury charge error, the State submits there was no egregious harm

to Appellant.

Egregious Error Analysis

An appellate court=s first duty in evaluating a jury charge issue is to determine

whether error exists. 21 If error is found, the appellate court must determine whether

the error caused sufficient harm to require reversal. 22 The degree of harm necessary

for reversal depends on whether the Appellant preserved the error by objection. 23

If no objection was made at trial, reversal is proper only if the error is so

egregious and created such harm that it might be fairly said the defendant did not

have a fair and impartial trial. 24 Egregious harm is a difficult standard to prove and

such determination must be done on a case by case basis.25 The actual degree of

21 Ngo v. State, 175 S.W. 3d 738-743-744 (Tex. Crim. App. 2005). 22 Middleton v. State, 125 S.W. 3d 450, 453 (Tex. Crim. App. 2003). 23 TEX. CODE CRIM. PROC. ANN Art. 36.19; Ngo, 175 S.W. 3d at 743. 24 Almanza v. State, 686 S.W. 2d 157, 171 (Tex. Crim. App. 1984). 25 Hutch v. State, 922 S.W. 2d 166, 171 (Tex. Crim. App. 1996).

8 harm must be assayed in light of the entire jury charge, the state of the evidence, the

argument of counsel, and any other relevant information revealed by the record of

the trial as a whole. 26 Errors which result in egregious harm are those that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

defense theory, or make a case for conviction clearly and significantly more

persuasive. 27

The State asserts that there was no error in the jury charge because the charge

was based on a proper indictment and/or Appellant failed to object to the indictment

before the date of trial. However, if this Court finds otherwise, the State believes the

egregious error standard will apply because Appellant stated at trial that he had no

objection to the jury charge.28

The entire jury charge should be reviewed when determining the actual degree

of harm. In the instant case, the jury charge included an application paragraph for

the first-degree felony offense of aggravated assault with a deadly weapon on a

household member (paragraph 4) and two application paragraphs for the lesser

26 Almanza, 686 S.W. 2d at 171. 27 Taylor v. State, 332 S.W. 3d 483, 490 (Tex. Crim. App. 2011). 28 RR, Vol. 5, 123-124.

9 included second-degree felony offenses of aggravated assault (paragraphs 5 and 6).29

In each of the application paragraphs, the jury was required to find Appellant caused

physical injury to Ruth Simms by striking her, by causing her head to strike an

object, or by shaking her. To find the alleged manner and means, the jury necessarily

had to find a deadly weapon was used, not merely exhibited.

The lesser included application paragraphs included an option where the jury

could have found Appellant guilty of the second-degree felony offense of aggravated

assault by causing serious bodily injury without the use or exhibition of a deadly

weapon and an option where the jury could have found Appellant guilty of

aggravated assault by causing only bodily injury by using or exhibiting a deadly

weapon. By finding Appellant guilty of the first degree felony alleged in the

indictment, it is clear the jury found serious bodily injury was caused by using a

deadly weapon on a household member.

In opening, the State advised the jury that the evidence would show Appellant

severely beat the victim causing a subdural hematoma. 30 The State informed the jury

that the emergency room physician, Dr. Michael Peterson, would testify that the

29 CR 65-66. 30 RR Vol. 4, 12, 17.

10 injuries he observed could have been caused by striking, by causing her head to

strike an object or by shaking, and that a hand or an object can be a deadly weapon

if used to cause a subdural hematoma. 31 Appellant admitted in opening that the

victim was severely injured but suggested to the jury that due to a sloppy police

investigation, it was possible that someone else committed the crime. 32

In closing, the State argued the evidence proved beyond a reasonable doubt

that Appellant was guilty of the crime he was charged with in the indictment and

that a deadly weapon was used in the commission of the offense. 33 The State further

argued the subdural hematoma and the injuries to the victim=s face were caused 34 either by Appellant=s hand or an unknown object. The defense argued Appellant

did not commit the offense, and the evidence was insufficient to prove

Appellant was guilty.35 The defense never argued that a deadly weapon was

not used, that the victim did not suffer serious bodily injury, or that Appellant

31 RR Vol. 4, 16. 32 RR, Vol. 4, 19-21. 33 RR, Vol. 5, 135, 149, 150-152. 34 RR, Vol. 5, 150-151. 35 RR, Vol. 5, 143, 147.

11 was only guilty of one of the lesser included offenses described in the jury charge.

A review of the entire jury charge, the state of the evidence, the argument of

counsel and other relevant information revealed by the record shows that egregious

harm was not committed by including the words Aor exhibit@ in the jury charge. The

alleged error did not affect the defensive theory, and it did not deprive Appellant of

a valuable right. It was incumbent upon Appellant to object to any defect, and his

failure to do so prevents him from arguing this point on appeal. Point of Error One

should be overruled.

State=s Reply to Point of Error Two

Egregious harm did not occur because the verdict was properly based on

an indictment that charged Appellant with aggravated assault with a deadly

weapon on a household member and/or Appellant failed to object to the alleged

defect in the indictment before the date of the trial.

Appellant contends the charge on punishment was egregiously harmful

because it authorized a punishment in excess of that for a second-degree felony. 36

This argument is predicated upon Appellant=s erroneous conclusion that the

indictment only charged Appellant with a second-degree felony aggravated assault.

36 Appellant=s brief at 25-27

12 The State refers this Court to the arguments under reply to point of error

number one that the indictment was sufficient to charge Appellant with a first-degree

felony aggravated assault and/or appellant has failed to preserve error because of his

failure to object to any alleged defect prior to trial. The State contends that having

shown the indictment sufficiently charged Appellant with a first-degree felony

aggravated assault, Appellant=s basic premise is incorrect. Therefore, Appellant has

not suffered egregious harm, and Appellant=s Point of Error Two should be

overruled.

CONCLUSION AND PRAYER

The State contends Appellant was sufficiently charged with the first-degree

felony offense of Aggravated Assault with a Deadly Weapon on a Household

Member. The State further contends Appellant has failed to preserve error regarding

any defects in the indictment by failing to object to the indictment prior to trial.

Finally, the State submits Appellant did not suffer egregious harm in the punishment

charge because the charge properly set forth the punishment range for a first-degree

felony.

13 Respectfully submitted,

/s/ Jim English Jim English Criminal District Attorney Deaf Smith County, Texas 235 E. 3rd Rm. 401 Hereford, Texas 79045 Phone: 806-364-3700 Email:JEnglish@deafsmithcounty.texas.gov

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4 (i) (3), I hereby certify that this Brief contains 3149

words.

/s/ Jim English Jim English

CERTIFICATE OF SERVICE

This is to certify that on this 25th day of August, 2015 a true and correct

copy of the State=s Brief was mailed to John Bennett, Attorney for Appellant,

PO Box 19144, Amarillo, Texas 79114.

14 Page 1

CIPRIANO RAMON ALMANZA, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 242-83

COURT OF CRIMINAL APPEALS OF TEXAS

686 S.W.2d 157; 1984 Tex. Crim. App. LEXIS 593

February 8, 1984

SUBSEQUENT HISTORY: [**1] On Rehearing [however], the aggravation feature was February 27, 1985, Reported at: 686 S.W.2d 157 at 160. disjoined from rape by the word or. Such constitutes fundamental error. Messenger PRIOR HISTORY: Petition for Discretionary Review v. State, 638 S.W.2d 883 from the Court of Appeal, Second Supreme Judicial (Tex.Cr.App.1982). District [Tarrant County]. The cause is reversed and remanded to the JUDGES: En Banc. Teague, Judge. Miller, Judge, trial court for further proceedings under concurs. Clinton, Judge, dissents. [**2] this indictment.

OPINION BY: TEAGUE

OPINION The State has filed a petition for discretionary review [*159] OPINION ON STATE'S PETITION FOR with this Court, asking us to make the determination DISCRETIONARY REVIEW whether the above decision of the Court of Appeals is correct. We have concluded, after the respective parties The Fort Worth Court of Appeals stated the favored this Court with well written supplemental briefs, following in Almanza v. State, 645 S.W.2d 885 (Tex.App. as well as making outstanding oral arguments, that the -- Ft.Worth 1983): decision of the Court of Appeals is in all things correct.

Although many recent opinions have The State's petition for discretionary review was off-handedly dismissed the changing of improvidently granted. It is therefore ordered dismissed. 'and' in the indictment to 'or' in the court's charge, such approach is dangerous and CONCUR BY: MILLER usually fatal in matters where aggravation or jurisdiction is involved. In the instant CONCUR cause of aggravated rape the indictment joined the allegation of threats of death to Miller, Judge the standard form allegation of rape by the Although there is merit in the dissenting opinion of word and. In the court's charge, Page 2 686 S.W.2d 157, *159; 1984 Tex. Crim. App. LEXIS 593, **2

Judge Clinton, I concur with the decision of the majority as an appendix to this one, but will [**4] not be to dismiss the State's petition in this case as published. improvidently granted because the issue of the relationship between fundamental error in the court's 1 E.g., Bishop v. The State, 43 Tex. 390 (1875). charge and error in the court's charge as contemplated by 2 Acts 1897, 25th Leg., ch. 21, p. 17. Article 36.19, V.A.C.C.P., has not been thoroughly 3 Acts 1913, 33rd Leg., ch. 138, p. 278. briefed or argued by either the State or the defense. 4 See Doyle v. State, 631 S.W.2d 732, 741-744 Historically the advocacy system has served the judiciary (Tex.Cr.App., 1982) (Concurring Opinion on well in charting the course of criminal jurisprudence in Motion for Rehearing); Wilson v. State, 625 this state. If we are going to redefine fundamental error S.W.2d 331, 334-335 (Tex.Cr.App., 1981) vis-a-vis the court's charge to the [**3] jury, as perhaps (Concurring Opinion on Motion for Rehearing) we should, then let us do so when the issue is properly and Sattiewhite v. State, 600 S.W.2d 277, 279-285 joined, either on motion for rehearing in this case or in a (Tex.Cr.App., 1979) (Opinion on Motion for future case before the court. Because the dissent would Rehearing). raise and address the issue sua sponte in this case, I Several lessons are taught by those historical concur in dismissing the State's petition. developments that have been chronicled in my DISSENT BY: CLINTON unpublished opinion concerning error in a charge of a trial court to a jury. One is that an alleged error not DISSENT properly raised and preserved according to Articles 36.14, 36.15 or 36.16, V.A.C.C.P. will not be considered DISSENTING OPINION ON STATE'S PETITION on appeal unless it presents "fundamental error." Another FOR DISCRETIONARY REVIEW is that when claimed error has been properly raised, preserved and brought up on appeal, the judgment shall CLINTON, Judge not be reversed unless the error [**5] "was calculated to injure the rights of defendant, or unless it appears from One reason for granting the petition in this cause was the record that the defendant has not had a fair and to examine seriously a claim of "harmless fundamental impartial trial," Article 36.19, id. A third is that utilizing error" in the [*160] charge of the court to the jury, and the tests of Article 36.19 to find "fundamental error" we ought to pursue that examination to a just end. when an objection was not made before the charge was read to the jury, as is now so often done on appeal, may Beginning with Old Code Articles 594-603 and not be sound. decisions construing them, 1 I have tracked developments in the law of fundamental error in a court's charge Accordingly, I do not agree that we improvidently through legislative amendments of 1897 2 and 1913 3 and granted the State's petition for discretionary review. Still, judicial opinions thereafter -- more thoroughly than a majority will not redefine the fundamental error before. 4 That research and conclusions drawn from it doctrine as it applies to a charge of a trial court to a jury. are contained in an opinion which has been circulated to all other members of this Court and presented in Therefore, I dissent. conference. However, it is much too long for publication as usual. Accordingly that opinion is being handed down Page 1

DANIEL EVERETT BROOKS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 07-11-00353-CR, 07-11-0354-CR

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

382 S.W.3d 601; 2012 Tex. App. LEXIS 7908

September 18, 2012, Decided

NOTICE: PUBLISH. Indictments > Contents > Requirements [HN2] See Tex. Const. art. V, § 12. SUBSEQUENT HISTORY: Rehearing overruled by, Reconsideration denied by, En banc Brooks v. State, 2012 Tex. App. LEXIS 8834 (Tex. App. Amarillo, Oct. 23, Criminal Law & Procedure > Accusatory Instruments > 2012) Indictments > Contents > Waiver Petition for discretionary review refused by In re Brooks, [HN3] See Tex. Code Crim. Proc. Ann. art. 1.14(b) 2013 Tex. Crim. App. LEXIS 2 (Tex. Crim. App., Jan. 9, (2005). 2013) Criminal Law & Procedure > Accusatory Instruments > PRIOR HISTORY: [**1] Indictments > Contents > Requirements FROM THE 222ND DISTRICT COURT OF DEAF [HN4] An indictment must contain the elements of the SMITH COUNTY; NO. CR-11H-099, CR-11H-100; offense charged, fairly inform the defendant of charges HONORABLE ROLAND D. SAUL, JUDGE. he must prepare to meet, and enable the defendant to plead acquittal or conviction in bar to future prosecution LexisNexis(R) Headnotes for the same offense.

Criminal Law & Procedure > Accusatory Instruments > Indictments > Contents > Sufficiency Criminal Law & Procedure > Accusatory Instruments > [HN5] An indictment which alleges all of the requisite Indictments > Appellate Review elements of the particular offense in question will not be Criminal Law & Procedure > Accusatory Instruments > found to be deficient simply because it fails to precisely Indictments > Contents > General Overview track the language of the statute. A court should construe Criminal Law & Procedure > Appeals > Standards of the indictment in the context and subject matter in which Review > De Novo Review > Conclusions of Law the words are employed. Finally, the construction of an [HN1] Construction of an indictment is a matter of law indictment be done by reading the indictment as a whole that an appellate court reviews de novo. and by practical rather than technical considerations.

Criminal Law & Procedure > Accusatory Instruments > Criminal Law & Procedure > Accusatory Instruments > Page 2 382 S.W.3d 601, *; 2012 Tex. App. LEXIS 7908, **1

Indictments > Contents > Sufficiency [*602] Appellant, Daniel Everett Brooks, appeals [HN6] In interpreting the changes to Tex. Const. art. V, § his convictions for felony assault1 in trial court number 12 and Tex. Code Crim. Proc. Ann. art. 1.14(b) (2005) CR-11H-099, appellate cause No. 07-11-00353-CR. regarding whether the indictment in question charges an Appellant also appeals his conviction for sexual assault2 offense, the question is whether the allegations in it are in Count I of trial court number CR-11H-100 and clear enough that one can identify the offense alleged. aggravated sexual assault3 in Count II of trial court Stated another way, can the trial court (and appellate number CR-11H-100, appellate cause No. courts who give deference to the trial court's assessment) 07-11-00354-CR. After hearing the evidence regarding and the defendant identify what penal code provision is punishment, the jury assessed appellant's punishment at alleged. ten years for the felony assault, twenty years for the sexual assault, and fifty years for the aggravated sexual assault. Appellant has perfected his appeal and by six Criminal Law & Procedure > Accusatory Instruments > issues contends that 1) the judgment of conviction for Indictments > Contents > Sufficiency aggravated sexual assault is void, 2) appellant's right to a [HN7] Texas courts have long-recognized the sensible jury trial on the charge of sexual assault was violated, 3) proposition that incorrect grammar, bad spelling, bad appellant suffered egregious harm when the trial court's hand writing, the use of words not technically in their charge to the jury was for the offense of aggravated correct sense or places will none of them make an sexual assault, 4) appellant suffered egregious harm indictment bad unless same causes the thing intended to because the jury charge permitted a guilty verdict on an be charged, to lack sense or certainty. Indeed, the Court [**2] invalid theory of guilt, 5) the judgment in No. of Appeals of Texas has recognized this "sensible 07-11-00354-CR allowed an improper cumulating of the proposition" when it concluded that appellant was given fines assessed, and 6) the evidence was insufficient to specific notice by an indictment in which a comma support the order for appellant to pay the fees of his court placed after the last name in a series separated it from the appointed attorney. We affirm the judgment as verb following. hereinafter modified.

1 See TEX. PENAL CODE ANN. § 22.01(a)(1) & Criminal Law & Procedure > Criminal Offenses > (b)(2)(A) (West 2011). Crimes Against Persons > General Overview 2 Id. § 22.011(a)(1)(A) (West 2011). [HN8] Tex. Penal Code Ann. § 22.021(a)(2)(A) provides 3 Id. § 22.021(a)(2)(A)(ii), (iii) (West Supp. two methods of demonstrating conduct that elevates the 2012). offense to an aggravated offense: (ii) by acts or words that places the victim in fear that death, serious bodily Factual and Procedural Background injury, or kidnapping will be imminently inflicted on any person; (iii) by acts or words occurring in the presence of Appellant was indicted by two separate indictments the victim threatens to cause the death, serious bodily that alleged he committed the offense of felony assault in injury, or kidnapping of any person. No. 07-11-00353-CR and two counts of aggravated sexual assault in No. 07-11-00354-CR.4 The incident that COUNSEL: John Bennett, Attorney at Law, Amarillo, led to the indictments occurred between 11:30 P.M. on TX. August 14, 2010, and approximately 6:30 A.M. on August 15, 2010. The State initially indicted appellant in Chris Strowd, Assistant Criminal District Attorney, two indictments. One alleged the offense felony assault in Hereford, TX. original [*603] indictment CR-101-105 and two counts of aggravated sexual assault in original indictment JUDGES: PANEL A. Before CAMPBELL and CR-101-106, both indictments having been returned on HANCOCK and PIRTLE, JJ. September 22, 2010. Appellant filed a waiver of arraignment in trial court number CR-101-1065 and OPINION BY: Mackey K. Hancock entered a plea of "Not Guilty" to the indictment. [**3] The waiver of arraignment in CR-101-106 signed by OPINION appellant and filed with the court stated, "[Appellant] and Page 3 382 S.W.3d 601, *603; 2012 Tex. App. LEXIS 7908, **3

his attorney do hereby acknowledge awareness and The caption on the indictment at issue states that the understanding of the charge(s) against [Appellant], offenses in Count I and Count II of the indictment are to-wit: aggravated sexual assault." aggravated sexual assault. At a pretrial hearing on August 11, 2011, at the State's request and with appellant's 4 We will refer to the cases by their appellate agreement, the trial court carried forward all of the court numbers throughout this opinion. previously entered orders on the motions filed in the Appellant's issues relate to his convictions for original cause numbers. The case then commenced to sexual assault and aggravated sexual assault in trial on August 15, 2011. cause No. 07-11-00354-CR. 5 CR-101-106 was the original indictment During voir dire, both the State and appellant alleging two counts of aggravated sexual assault. discussed the nature [**5] of the case. The record reveals that the prospective jury was told that the charges against The trial court conducted pretrial hearings on appellant were two counts of aggravated sexual assault February 2, 2011, and on March 10, 2011. Of import to and a separate indictment for felony assault. Appellant's our later discussion is the fact that, at neither hearing did trial counsel went into some detail regarding the first appellant complain about the indictments that were then count of aggravated sexual assault. After the jury was pending against him. Subsequently, on August 2, 2011, selected and appellant had entered a plea of "Not guilty" the State reindicted appellant and filed two new to the indictments, the State presented its opening indictments alleging the same offenses. As pertinent to statement. In this opening statement, the State again this opinion, the indictment in No. 07-11-00354-CR outlined the evidence it intended to present to prove alleged in relevant parts: appellant guilty of two counts of aggravated sexual assault. During appellant's opening statement, trial counsel presented a theory that what occurred was consensual. At no time did appellant's trial counsel object C0UNT I Daniel Everett Brooks on or that the indictment only charged appellant with the about the 15th day of August, 2010, did offense of sexual assault. then and there intentionally or knowingly cause the penetration of the anus of R.E. [*604] At the conclusion of the evidence, the trial by a wooden handle, without the consent court prepared its charge to the jury. The court's charge of [**4] R.E., and the defendant did then sets forth the charges of two counts of aggravated sexual and there by acts or words threaten to assault with the lesser included offense of sexual assault cause or place, R.E. in fear that death or as to each count. The record reveals that appellant did not serious bodily injury would be imminently object to the submission of the charge on the two offenses inflicted on R.E., and said acts or words of aggravated sexual assault. During [**6] closing occurred in the presence of R.E. argument, appellant's trial counsel argued that the case was one of consensual sexual contact. COUNT II After hearing the evidence, the jury convicted And it is further presented in and to appellant of sexual assault in Count I of the indictment said Court that on the 15th day of August, and aggravated sexual assault in Count II of the 2010, the [appellant] did then and there indictment. Further, the jury also convicted appellant of intentionally or knowingly cause the felony assault. After hearing the evidence regarding penetration of the sexual organ of R.E. by punishment, the jury sentenced appellant to confinement [appellant's] sexual organ, without the in the Institutional Division of the Texas Department of consent of R.E., and the [appellant] did Criminal Justice, (ID-TDCJ) for a period of ten years in then and there by acts or words threaten to 07-11-00353-CR, twenty years in Count I of cause or place, R.E. in fear that death or 07-11-00354-CR, and fifty years in Count II of serious bodily injury would be imminently 07-11-00354-CR. In each sentence, the jury assessed a inflicted on R.E., and said acts or words fine of $10,000. The trial court entered judgment in each occurred in the presence of R.E. case to include the $10,000 fine. No motion for new trial Page 4 382 S.W.3d 601, *604; 2012 Tex. App. LEXIS 7908, **6

was filed by appellant. Appellant gave notice of appeal, The requirements for an indictment are located in and this appeal follows. Article V, section 12 of the Texas Constitution:

Through six issues, appellant contests his [*605] [HN2] An indictment is a convictions. Appellant contends that the indictment in written instrument presented to a court by Count II of No. 07-11-00354-CR charges only the a grand jury charging a person with offense of sexual assault and therefore, through four commission of an offense. An information issues, asserts that the judgment is void. In the is a written instrument presented to a court alternative, he contends that because the jury returned a by an attorney for the State charging a verdict of guilt [**7] "as alleged in the indictment," his person with the commission of an offense. right to a jury trial was violated. In the further alternative, The practice and procedures relating to the he maintains he suffered egregious harm by the use of indictments, including their submission to the jury of aggravated sexual assault. And, contents, amendments, sufficiency and finally, in the further alternative, he argues that the jury requisites are provided by law. The charge caused egregious harm to appellant by permitting presentment of an indictment or a guilty verdict on an invalid theory of guilt. Appellant's information [**9] to a court invests the fifth issue contends that the judgment in No. court with jurisdiction of the case. 07-11-00354-CR improperly cumulates the fines. Appellant's sixth issue contends the evidence was TEX. CONST. art. V, § 12. In addition to the constitutional insufficient to sustain the requirement that appellant pay requirement regarding an indictment, the Texas Code of for his appointed attorney. We will modify the judgment Criminal Procedure provides, in pertinent part: in cause No. 07-11-00354-CR and affirm the judgments [HN3] If the defendant does not object of the trial court as modified. to a defect, error, or irregularity of form or substance in the indictment or information Indictment before the date on which the trial on the merits commences, he waives and forfeits Appellant's first three issues all revolve around the the right to object to the defect, error, or central contention that Count II of the indictment in No. irregularity and may not raise the 07-11-00354-CR could be read to charge only sexual objection on appeal or in any assault. We will review these three issues together. postconviction proceeding. . . . Initially, we observe that appellant is adamant that he is not challenging the sufficiency of the indictment. Rather, See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West he challenges the verdict rendered by the jury upon the 2005).6 charge submitted by the trial court. In essence, appellant's first contention [**8] is that the judgment convicting him 6 Further reference to the Texas Code of of a first-degree felony of aggravated sexual assault is Criminal Procedure Ann. will be by reference to void because the indictment only charged him with "Article ," "article ," or "art. ." sexual assault. It follows, under appellant's analysis, that the trial court's charge authorized punishment outside the Analysis range of punishment for the offense charged and is, accordingly, void. However, from the perspective of the These provisions of the law have been the subject of Court, we must first review the indictment in question to numerous cases before the appellate courts in Texas. ascertain to what charge appellant was asked to answer. From these cases, we can glean some guidance. In Harrison v. State, 76 S.W.3d 537, 539 (Tex.App.--Corpus Standard of Review Christi 2002, no pet.), the Corpus Christi court pointed out that [HN4] an indictment must contain the elements [HN1] Construction of an indictment is a matter of of the offense charged, fairly inform the defendant of law that we review de novo. See State v. Moff, 154 charges he must prepare to meet, and enable the S.W.3d 599, 601 (Tex.Crim.App. 2004). defendant to plead [**10] acquittal or conviction in bar to future prosecution for the same offense. How, then, do Applicable Law Page 5 382 S.W.3d 601, *605; 2012 Tex. App. LEXIS 7908, **10

we view the language of Count II of the indictment in of the Texas Constitution and article 1.14(b) regarding No.-07-11-00354-CR? whether the [**12] indictment in question charges an offense: the question is "whether the allegations in it are Appellant specifically challenges the following clear enough that one can identify the offense alleged." portion of the indictment: Id. at 180. The court then added, "Stated another way: Can the trial court (and appellate courts who give "[appellant] did then and there by acts or deference to the trial court's assessment) and the words threaten to cause or place, R.E. in defendant identify what penal code provision is alleged?" fear that death or serious bodily injury Id. The court then analyzed the indictment and pointed would be imminently inflicted on R.E., out that, although the indictment was missing the and said acts or words occurred in the required mens rea--that appellant knew the person he was presence of R.E. assisting was a felony fugitive--the indictment clearly stated that the subject was a fugitive for the offense of He contends that we must take a very technical view and, failure to register as a sex offender, which is a felony. Id. therefore, because of the perceived grammatical error in at 182. The court concluded that the indictment, while the placement of a comma, we must conclude that the defective in certain aspects, was clearly sufficient to indictment charged only sexual assault and not charge an offense and that "one could fairly conclude aggravated sexual assault. The State, on the other hand, from the face of the charging instrument that the State simply says that this is a belated objection to the intended to charge a felony offense." Id. After finding indictment that has been waived because the same was that, in the case before it, the indictment when read as a not made before the trial commenced. See art. 1.14(b). whole was sufficient to vest the district court with subject matter jurisdiction and give the defendant notice of the Even before the amendments to Article V, section 12 offense the State intended to prosecute defendant [**13] of the Texas Constitution in 1985 and the amendment to for, the court pointed out that, if appellant was unsure of article 1.14(b), in Oliver v. State, 692 S.W.2d 712, 714 the offense, he should have challenged the indictment (Tex.Crim.App. 1985), the Texas Court of Criminal before trial commenced. Id. Appeals stated that [HN5] "an indictment which alleges all of the requisite elements of the particular offense Following Teal, the Texas Court of Criminal [**11] in question will not be found to be deficient Appeals again addressed a situation where indictments simply because it fails to precisely track the language of purported to charge a felony but, on the face of the the statute." The court went on to point out that we indictments, only alleged misdemeanor offenses. See should construe the indictment in the context and subject Kirkpatrick v. State, 279 S.W.3d 324, 326 (Tex.Crim.App. matter in which the words are employed. Id. Finally, the 2009). In Kirkpatrick, the court considered the general court directed that the construction of an indictment be question of whether the indictments at issue were done by reading the indictment as a whole and by sufficient to allege a felony offense and thereby vest the practical rather than technical considerations. Id. district court with jurisdiction.7 Id. In analyzing the facts, as pertinent to the questions presented, the court pointed [*606] What does it mean to construe an indictment out that appellant in the case had been put on notice of in the context and subject matter in which the words are the intent by the State to charge a felony. Id. at 329. employed? Id. First, in the case of Teal v. State, 230 Specifically, the face of each indictment contained the S.W.3d 172, 173 (Tex.Crim.App. 2007), the Texas Court heading: "Indictment--Tampering with a Governmental of Criminal Appeals dealt with a case which attempted to Record 3rd Degree Felony, --TPC § 37.10(a)." Id. charge the felony offense of hindering apprehension Therefore, according to the court, the appellant had under section 38.05 of the Texas Penal Code; yet the adequate notice that she was charged with a felony. Id. If indictment failed to allege that appellant knew that the she had been confused about the charge, appellant could person whose apprehension he hindered was a fugitive [*607] have, and should have, objected to the defective for a felony offense. Teal contended that the indictment indictment before the date [**14] of trial. Id. only alleged a misdemeanor offense. Id. In writing for the court, Judge Cochran summed up the court's position 7 The Court of Criminal Appeals granted the [HN6] in interpreting the changes to Article V, section 12 State's petition for discretionary review on three Page 6 382 S.W.3d 601, *607; 2012 Tex. App. LEXIS 7908, **14

grounds. as to both Count I and II of the indictment, and 10) appellant did not object to the charge. When this indictment is read in context and in consideration of the 1) Did the Court of Appeals err subject matter before the trial court, it is clear that by concluding that the district appellant knew that he was charged with two counts of court did not have subject-matter aggravated [**16] sexual assault. See Oliver, 692 S.W.2d jurisdiction? at 714. Appellant invites this Court to read the indictment 2) Where an offense can be at issue in a hypertechnical manner without considering charged as either a felony or a the context or subject matter of the indictment. Id. misdemeanor, does the return of Further, it is equally clear that, if appellant had any the indictment into a court with question about what charge he had been asked to defend subject-matter jurisdiction of only against, it was incumbent on appellant to file an objection the felony offense indicate the with the court. See Kirkpatrick, 279 S.W.3d at 329. State's intent to charge the felony Having failed to do so, appellant has waived any such offense? objection. Art. 1.14(b). Appellant's issue is simply an 3) Is ambiguity or confusion attempt to avoid the results of failing to object or filing a about the particular offense that motion to quash. Accordingly, we reach the conclusion has been charged [sic] the type of that the indictment in question in No. 07-11-00354-CR objection to an indictment that charged appellant with two counts of aggravated sexual must be raised by a defendant prior assault. to the date of trial? Appellant relies on the case of Thomason v. State, 892 S.W.2d 8 (Tex.Crim.App. 1994), for the proposition When we analyze the indictment under consideration that when an indictment facially charges a complete in light of the opinions of the Texas Court of Criminal offense the intent of the State to charge a different Appeals, we make the following observations: 1) the offense is immaterial. Id. at 11. Thomason dealt with an indictments were intended to charge the offenses of indictment alleging felony theft of at least $20,000; aggravated sexual assault, 2) the caption of the however, the indictment contained no language that indictments contained language that indicated Counts I would aggregate the theft. Id. at 9. The evidence and II were charging appellant with the crime of produced [**17] at trial showed that appellant had aggravated sexual assault, 3) appellant filed a waiver of procured a total of ten checks, eight of which were in arraignment to the original indictment acknowledging excess of $20,000. Id. at 10. At the conclusion of the that he was indicted for the offense of aggravated sexual State's case in chief, appellant filed a request to require assault in Counts [**15] I and II of the prior indictment, the State to elect which check it sought to obtain a 4) the subsequent indictment did not materially change conviction on, and the trial court denied the request. Id. the charge, 5) the face of the reindictment again reflected The Texas Court of Criminal Appeals subsequently that appellant was charged with two counts of aggravated reversed the judgment and remanded the case for the sexual assault, 6) at the pretrial hearing on the new intermediate appellate court to consider appellant's indictments on August 11, 2011, by the agreement of remaining issues. Id. at 12. both parties, all previous rulings and motions were carried forward to the reindicted cause numbers, to When considering the Thomason case in the include appellant's acknowledgement that he was charged Kirkpatrick opinion, the Texas Court of Criminal Appeals with two counts of aggravated sexual assault, 7) during pointed out that Thomason was factually distinguishable voir dire, the State explained, without objection from for two reasons, only one of which is important [*608] to appellant, that appellant was charged with the offense of our consideration. Kirkpatrick, 279 S.W.3d at 327. The aggravated sexual assault, 8) during opening statements, court pointed out that appellant in Thomason had directed the State outlined its proposed evidence and ended with the trial court's attention to the error by his motion to asking the jury to convict appellant of two counts of require the State to elect which check it desired to convict aggravated sexual assault, 9) the court's charge outlined appellant on. Id. In Kirkpatrick, this fact was enough to the elements of the offense of aggravated sexual assault distinguish Thomason from the case before the court. Id. Page 7 382 S.W.3d 601, *608; 2012 Tex. App. LEXIS 7908, **17

For the same reasons, the facts of Thomason are concluded that appellant was given specific notice by an distinguishable from the case before the Court and, [**20] indictment in which a comma placed after the last Thomason does not dictate the result appellant would name in a series separated it from the verb following. [**18] have us reach. Childress v. State, 807 S.W.2d 424, 431 (Tex.App.--Amarillo 1991, no writ) (citing Westbrook, Further, appellant cites this Court to Harris v. State, 227 S.W. at 1105); see Hogue v. State, 711 S.W.2d 9, 14 359 S.W.3d 625, 629 (Tex.Crim.App. 2011), and Pruett v. (Tex.Crim.App. 1986), cert. denied, 479 U.S. 922, 93 L. State, 685 S.W.2d 411, 413 (Tex.App.--Austin 1985, pet. Ed. 2d 301, 107 S. Ct. 329 (1986) ("fail[ing] to see how ref'd), for the proposition that we must view this the wording of the indictment, although not indictment in light of the rules of grammar in making our grammatically correct, misled or confused appellant"); determination about what the indictment charges. Malagon v. State, No. 05-97-01530-CR, 1999 Tex. App. However, appellant takes these cases further than their LEXIS 6924, *12-13 (Tex. App.--Dallas Sept. 13, 1999, respective holdings would indicate. First, Harris is a no pet.) (observing, simply, that "[a] misplaced comma statutory construction case and, while on its face it does does not alone nullify an indictment"). Nothing in the seem to stand for the proposition appellant cites it for, the record before us indicates that appellant was misled or fact that it is involving the question of interpretation of a confused by the misplaced comma or that, as a result of statute distinguishes it from our situation. Harris holds it, appellant lacked notice of the allegations against him. that in construing a statute, we must "seek to effectuate the 'collective' intent or purpose of the legislators who [*609] Having determined that appellant was enacted the legislation." Harris, 359 S.W.3d at 629 charged by indictment in No. 07-11-00354-CR with the (quoting Boykin v. State, 818 S.W.2d 782, 785 offense of aggravated sexual assault, we overrule (Tex.Crim.App. 1991)). Boykin makes clear that the appellant's first issue. The verdict of the jury-guilty as reason we must focus our attention in a statutory charged in the indictment-convicted appellant of the construction case on the precise language and literal text offense of aggravated sexual assault, and the punishment of the statute is because the Texas Constitution delegates assessed was within the range of punishment [**21] for the lawmaking function to the Legislature while the convicted offense. assigning the law interpreting [**19] function to the Judiciary. Boykin, 818 S.W.2d at 785 (citing Tex. Const. Because of our holding regarding the reading of the art. II, § 1). The case before us is not a statutory indictment, appellant's right to a jury trial upon the return construction case; accordingly, appellant's citation to of a verdict of guilty as charged in the indictment was Harris is not controlling. Regarding appellant's reliance met because the indictment did charge appellant with on Pruett, we note that Pruett was a pre-1985 aggravated sexual assault. Appellant's second issue is Constitutional amendment case and, in the final analysis, overruled. even without the amendment to Article V, § 12 of the Appellant next contends that he suffered egregious Constitution, the court held that when applying the rules harm by the submission to the jury of the offense of of grammar and making a common sense reading of the aggravated sexual assault. This argument is predicated charging instrument, the information was not upon appellant's erroneous assumption that the fundamentally defective. See Pruett, 685 S.W.2d at 413. indictment did not charge that offense. Again, having Accordingly, we do not find these cases to carry the day determined that the indictment in No. 07-11-00354-CR as appellant would direct. was sufficient to charge that offense, appellant's basic To the contrary, [HN7] Texas courts have premise is incorrect and, therefore, appellant has not long-recognized "the sensible proposition that incorrect suffered any egregious harm. Appellant's third issue is grammar, bad spelling, bad hand writing, the use of overruled. words not technically in their correct sense or places will Invalid Theory of Guilt none of them make an indictment bad unless same causes the thing intended to be charged, to lack sense or Appellant's fourth issue contends that he suffered certainty." Westbrook v. State, 88 Tex. Crim. 466, 227 egregious harm because the court's charge permitted him S.W. 1104, 1105 (Tex.Crim.App. 1921). Indeed, this to be convicted on an invalid theory of guilt. Here, he Court has recognized this "sensible proposition" when it offers an alternative reading based on comma placement: Page 8 382 S.W.3d 601, *609; 2012 Tex. App. LEXIS 7908, **21

the jury charge, which mirrors the language of the indictment: "did then and there by acts or words threaten indictment, may be read to allege one manner of to cause or place, R.E. in fear that death or serious bodily committing aggravated sexual assault, but it should also injury would be imminently inflicted on" her. While this [**22] be read to allege conduct that is not defined as a may not be a model of drafting, we remain convinced that criminal act. Appellant further posits that since the the charge, as did the indictment, alleges the requirements verdict was a general verdict, and even if we have read of subsections (ii) and (iii). See id. the indictment to charge aggravated sexual assault, a valid theory of guilt, there is no way to ascertain whether To support appellant's position, [**24] he cites the appellant was convicted under a valid theory of guilt. Court to Hammock v. State, 211 S.W.3d 874, 876 This leads appellant to contend that we must reverse the (Tex.App.--Texarkana 2006, no pet.). Hammock involved judgment and remand the case for another trial. an accusation that the defendant possessed certain chemicals with intent to manufacture methamphetamine. Appellant couches his fourth issue as "a further Id. at 875. The indictment at issue listed the chemicals alternative to Issue One." Issue one contended that the that the defendant was accused of possessing. Id. indictment in question only charged the offense of sexual However, of the six chemicals alleged, the possession of assault and not the offense of aggravated sexual assault. only three was criminalized. Id. at 876. The charge For the reasons stated in the section regarding the submitted all of the chemicals at issue and explicitly indictment, we have previously found that the indictment allowed conviction on a finding that appellant possessed in question did allege the offense of aggravated sexual chemicals the possession of which were not criminalized. assault. His fourth issue is founded on the reading of the Id. Only if we accept appellant's proposed reading of the language in the jury charge that, based on his jury charge are we facing a Hammock issue. We have interpretation of the comma placement, permitted him to already rejected that proposition. Accordingly, appellant's be convicted of aggravated sexual assault if the jury fourth issue is overruled. found that appellant placed the victim in the requisite fear or "threaten[ed] to cause" such fear, the latter not being a Cumulating of Fines valid theory of guilt. However, appellant's [**23] Appellant's fifth issue contends that the judgment in alternate reading is also grounded in a hypertechnical No. 07-11-00354-CR improperly cumulates the fines. construction, based upon a perceived error in the The record reflects that appellant was convicted of felony placement of a comma. We have previously rejected assault in No. 07-11-00353-CR and sentenced to appellant's general approach. confinement for ten years in the ID-TDCJ and to pay a [HN8] Texas Penal Code section 22.021(a)(2)(A), as fine of $10,000. Additionally, in No. 07-11-00354-CR, applicable in this case, provides two methods of the record reflects that appellant was found guilty in demonstrating conduct that elevates the offense to an Count I of [**25] sexual assault and sentenced to 20 aggravated offense: years confinement and a fine of $10,000. Further, the record reflects that appellant was found guilty of (ii) by acts or words that places the aggravated sexual assault in Count II and sentenced to 50 victim in fear that death, serious bodily years confinement in the ID-TDCJ and a fine of $10,000. injury, or kidnapping will be imminently The sentences are to be served concurrently, yet appellant inflicted on any person; is ordered to pay all of the fines. The State has candidly admitted that the fines in No. 07-11-00354-CR have been (iii) by acts or words occurring in the improperly cumulated and, as such, should be omitted. presence of the victim threatens to cause Accordingly, we will modify the judgment in No. the death, serious bodily injury, or 07-11-00354-CR to delete the fines. kidnapping of any person. Attorney's Fees See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii),(iii). In Appellant's last issue contends that there was no a rather clumsy manner, the jury charge appears to evidence upon which to support the order that appellant combine the two methods of alleging the [*610] pay for his appointed attorney, as required by the aggravating conduct by tracking the language of the judgment in appellate cause No. 07-11-00354-CR. Here, Page 9 382 S.W.3d 601, *610; 2012 Tex. App. LEXIS 7908, **25

the State again candidly admits that the evidence does not 07-11-00354-CR to omit the cumulated fines [**26] and support the order for appellant to repay his appointed the order for appellant to pay his appointed attorney's attorney's fees. Accordingly, we will modify the fees, we affirm the judgments of the trial court as judgment in cause No. 07-11-00354-CR to delete the modified. payment of the attorney's fees by appellant. Mackey K. Hancock Conclusion Justice Having overruled all of appellant's first four issues and having modified the judgment in cause No. Publish. Page 1

LARRY NEIL COOK, Appellant v. THE STATE OF TEXAS, Appellee

No. 0375-94

902 S.W.2d 471; 1995 Tex. Crim. App. LEXIS 78

June 28, 1995, Delivered

SUBSEQUENT HISTORY: [**1] As Corrected July 20,000.00. Tex. Penal Code Ann. § 31.03. Appellant pled 3, 1995. Second Correction September 14, 1995. "true" to the enhancement allegation and the trial judge assessed punishment at ten years confinement and PRIOR HISTORY: Petition for Discretionary Review ordered restitution in the amount of $ 6,000.00. Tex. from the Fourth Court of Appeals. 186th. Judicial District Penal Code Ann. § 12.33. The Court of Appeals affirmed. Court of Bexar County, TX. Cook v. State, No. 04-93-00111-CR (Tex.App.--San Antonio, January 5, 1994) (Not published). We granted appellant's petition for discretionary review to determine COUNSEL: For Appellant: Russell Sablatura, Mark whether the [**2] charging instrument was so deficient Stevens, J. Charles Bunk, Vincnet D. Callahan, San as to not invest the trial court with jurisdiction. Tex. R. Antonio, Tx. App. P. 200(c)(5). We will reverse.

For Appellee: Steven C. Hilbig, D.A. & Chris I. DeMartino, A. J. Dimaline & Barbara Hervey, D. A's. San Antonio, Tx. Robert Huttash, State's Attorney, We set out the charging instrument below: Austin, Tx. IN THE NAME AND BY JUDGES: Baird, Judge --- Clinton, Judge concurring AUTHORITY OF THE STATE OF opinion --- Maloney, Judge concurring opinion joined by TEXAS, the Grand Jury of Bexar County, Mansfield, Judge --- Mansfield, Judge joins with note --- State of Texas, duly organized, empaneled Meyers, Judge dissenting opinion --- Judges White & and sworn as such at the March term, Keller dissent A.D., 1991, of the 186th Judicial District Court of said County, in said Court, at said OPINION BY: BAIRD term, do present in and to said Court that in the County and State aforesaid, and OPINION anterior to the presentment of this indictment, and on or about the

[*474] OPINION ON APPELLANT'S PETITION FOR 1ST day of June 1987, DISCRETIONARY REVIEW hereinafter referred to as defendant, with intent to Appellant was convicted by a jury of theft over $ deprive the owner, namely: Page 2 902 S.W.2d 471, *474; 1995 Tex. Crim. App. LEXIS 78, **2

ELIZABETH K. PRICE, of appellant had been acquitted, no appellate property, namely: court would hold that the state could retry LAWFUL CURRENCY him because the instrument was not an OF THE UNITED indictment and therefore the trial court STATES OF AMERICA never acquired jurisdiction. In what sense said property, said property then can it be said, after a conviction, that being other than real the instrument was not an indictment and property which had A the trial court did not acquire jurisdiction? VALUE of Twenty For jeopardy [*475] purposes, it is plain Thousand Dollars ($ that [appellant] has been convicted and 20,000.00) or more, punishment has [**4] been assessed for without the effective the offense of theft over $ 20,000 from consent of the owner; [complainant] on June 1, 1987.

Before the commission Id., at 3-4. of the offense alleged above, on the 24th day of We granted appellant's petition for discretionary June, A.D., 1977, in Cause review to determine whether a charging instrument which no. CR 3-77-35, in the fails to charge "a person" still constitutes an indictment as UNITED STATES contemplated by art. V, § 12(b). DISTRICT COURT FOR THE NORTHERN II. DISTRICT OF TEXAS AT A. DALLAS, the Defendant was convicted of the felony The Texas Constitution guarantees to defendants the [**3] of FRAUD IN right to indictment by a grand jury for all felony offenses. OFFER OF SALE OF 1 Tex.Const. art. I, § 10. See also, James C. Harrington, SECURITIES AND MAIL Our Texas Bill of Rights, 31 (Texas Civil Rights Project FRAUD. 1991). Art. I, § 10 provides in pertinent part: [Signed by Grand Jury Rights of accused in criminal Foreperson] prosecutions

In all criminal prosecutions the accused ... shall have the right to demand the nature and cause of the accusation On direct appeal, appellant contended his conviction against him, and to have a copy thereof ? was void because the charging instrument was and no person shall be held to answer for a constitutionally deficient because it omitted appellant's criminal offense, unless on an indictment name and omitted the actus reus of the offense. The of a grand jury, except in cases in which Court of Appeals, with one justice dissenting, affirmed. the punishment is by fine or Cook, supra. Relying upon Studer v. State, 799 S.W.2d imprisonment, otherwise than in the 263 (Tex.Cr.App. 1990), the Court held appellant waived penitentiary ... . 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: 1 Almost twenty-five years ago we considered Only by the most hypertechnical of whether the requirement of an indictment was arguments can it be said that the jurisdictional or a right that could be waived. King instrument is not an "indictment." If v. State, 473 S.W.2d 43, 47 (Tex.Cr.App. 1971). In Page 3 902 S.W.2d 471, *475; 1995 Tex. Crim. App. LEXIS 78, **4

today's common parlance, the constitutional 306, 171 S.W. [**6] 747, 753 (Tex.Cr.App. 1914) (Op requirement of an indictment may be referred to on reh'g). See also, 1 G. Braden, The Constitution of the as a fundamental systemic requirement, which is a State of Texas: An Annotated and Comparative Analysis, right or requirement "so important that [its] 39 (Texas Legislative Counsel 1977). Second, an implementation is mandatory." Marin v. State, indictment serves a jurisdictional function. Labelle v. 851 S.W.2d 275, 280 (Tex.Cr.App. 1993). The State, 720 S.W.2d 101, 106 (Tex.Cr.App. 1986); author of the dissent, who also authored Marin, Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App. contends that King holds an indictment is not a 1985); and, Drumm v. State, 560 S.W.2d 944, 946-947 fundamental systemic requirement because it is (Tex.Cr.App. 1977). The filing of an indictment is subject to waiver. Post at , n. 3; slip op. pg. 4, essential to vest the trial court with jurisdiction over a n.3. But this conclusion is derived from a felony offense. See, King, 473 S.W.2d at 47-49; Ex carte misreading of King where we held art. I, § 10 is Krarup, 422 S.W.2d 173, 174 (Tex.Cr.App. 1967); not violated by a defendant's waiver of an Melancon v. State, 367 S.W.2d 690, 692 (Tex.Cr.App. indictment under art. 1.141. Id., 473 S.W.2d at 1963); Kennedy v. State, 161 Tex. Crim. 303, 276 S.W.2d 51. However, we further explained that "a felony 291, 294 (Tex.Cr.App. 1954) (Op. on reh'g); information acts in lieu of or as a substitute for an Hollingsworth, 221 S.W. at 979; Turpin v. State, 86 Tex. indictment and its validity is therefore essential to Crim. 96, 215 S.W. 455, 456 (Tex.Cr.App. 1919); Turman the court's jurisdiction." Id., at 51-52 (emphasis v. State, 81 Tex. Crim. 320, 196 S.W. 181 (Tex.Cr.App. added). See also, Lackey v. State, 574 S.W.2d 97, 1917); and, Lott v. State, 18 Texas Ct. App. 627 [*476] 100 (Tex.Cr.App. 1978). Consequently, King (1885). Jurisdiction vests only upon the filing of a valid holds that art. 1.141 merely allows the indictment in the appropriate court. Tex.Const. Art. V, § substitution of one type of charging instrument for 12(b). See also, Crawford v. State, 624 [**7] S.W.2d another, but does not otherwise affect the 906, 907 (Tex.Cr.App. 1981); And, Garcia v. Dial, 596 fundamental systemic requirement that a valid S.W.2d 524, 527 (Tex.Cr.App. 1980). charging instrument be presented in order to vest the trial court with jurisdiction. B.

[**5] Prior to 1985, this Court consistently held that "substantive" defects in the charging instrument failed to The constitutional requirement that felony offenses be vest the trial court with jurisdiction and, therefore, a prosecuted by indictment is firmly established. See, King conviction on a substantively defective charging v. State, 473 S.W.2d 43, 47-49 (Tex.Cr.App. 1971) ("The instrument could be challenged for the first time on requirement that felonies be prosecuted by indictment has appeal. Studer, 799 S.W.2d at 267; Thompson, 697 been followed in Texas since the outbreak of the S.W.2d at 415; Green v. State, 571 S.W.2d 13, 14-15 revolution against Mexico."); Hollingsworth v. State, 87 (Tex.Cr.App. 1978); Ex parte Garcia, 544 S.W.2d 432, Tex. Crim. 399, 221 S.W. 978, 979 (Tex.Cr.App. 1920); 432-433 (Tex.Cr.App. 1976); American Plant Food Corp. overruled in part, King, supra; Kinley v. State, 29 Texas v. State, 508 S.W.2d 598, 603 (Tex.Cr.App. 1974); Ct. App. 532, 16 S.W. 339, 340 (App. 1891); and, Pospishel v. State, 95 Tex. Crim. 625, 255 S.W. 738 Graham v. State, 43 Tex. 550 (Tex. 1875). See also, Ex (Tex.Cr.App. 1923); and, Woodard v. State, 86 Tex. parte Preston, 833 S.W.2d 515, 522 (Tex.Cr.App. 1992) Crim. 632, 218 S.W. 760 (Tex.Cr.App. 1920). This rule (Clinton, J., concurring); and, Acosta v. State, 650 S.W.2d developed over more than a century of decisions in which 827, 830 (Tex.Cr.App. 1983) (Onion, P.J., concurring). we interpreted art. I, § 10 to create a "constitutional" requirement that a charging instrument allege all An indictment serves two functions. First, it provides elements of the offense in order to constitute an notice of the offense in order to allow a defendant to indictment. See, Brasfield v. State, 600 S.W.2d 288, prepare a defense. Saathoff v. State, 891 S.W.2d 264, 266 301-302 (Tex.Cr.App. 1980) (Op. on reh'g); and, (Tex.Cr.App. 1995); Evans v. State, 623 S.W.2d 924, 925 Williams v. The State, 12 Texas Ct. App. 395, 400-401 (Tex.Cr.App. 1981); Benoit v. State, 561 S.W.2d 810, 813 (Court [**8] of Appeals 1882). See also, George E. Dix, (Tex.Cr.App. 1977); Wilson v. State, 520 S.W.2d 377, 379 Texas Charging Instrument Law: The 1985 Revisions and (Tex.Cr.App. 1975); and, Zweig v. State, 74 Tex. Crim. the Continuing Need for Reform, 38 Baylor L. Rev. 1, at Page 4 902 S.W.2d 471, *476; 1995 Tex. Crim. App. LEXIS 78, **8

13-22 (1986). Accordingly, where the charging on appeal or in any other postconviction instrument omitted an element of the offense the proceeding. ... indictment was void and the trial court lacked jurisdiction. See e.g., Gengnagel v. State, 748 S.W.2d Art. 1.14(b) automatically took effect upon the voters 227, 229 (Tex.Cr.App. 1988); Thompson, 697 S.W.2d at approval of the amendment to art. V, § 12. Studer, 415; Ex parte Luddington, 614 S.W.2d 427, 428 [**10] 799 S.W.2d at 266, n. 3. (Tex.Cr.App. 1981); Brown v. State, 558 S.W.2d 471, 472 (Tex.Cr.App. 1977); Ex parte Cannon, 546 S.W.2d 266, The amendment to art. V, § 12 was notable on two 273-274 (Tex.Cr.App. 1975); Jones v. State, 388 S.W.2d grounds. First, by granting to the Legislature the 716 (Tex.Cr.App. 1965); and, Scott v. State, 171 Tex. authority to prescribe legislation regulating the Crim. 53, 344 S.W.2d 457 (Tex.Cr.App. 1961). procedures and contents of charging instruments, the amendment reversed a century of precedent regarding the C. constitutional implications of charging instrument defects. Studer, 799 S.W.2d at 289-290 (Clinton, J., Frustrated with the common practice of defendants concurring). withholding substantive defects at trial and then raising them on appeal in order to vitiate the conviction, the [*477] Second, the amendment provided, for the Texas Legislature in 1985 proposed an amendment to art. first time in our history, a constitutional definition of an V, § 12 of the Texas Constitution which authorized the indictment. Art. V, § 12(b) defines an "indictment" as "a Legislature to prescribe by statute the effects of written instrument presented to a court by a grand jury substantive defects in the charging instrument. The charging a person with the commission of an offense." amendment provided: Art. V, § 12(b). Therefore, to comprise an indictment within the definition provided by the constitution, an An indictment is a written instrument instrument must charge: (1) a person; (2) with the [**9] presented to a court by a grand jury commission of an offense. Art. V, § 12(b). See also, charging a person with the commission of Luken v. State, 780 S.W.2d 264, 267 (Tex.Cr.App. 1989); an offense. An information is a written And Robert R. Barton, Since 1985, Can An Indictment or instrument presented to a court by an Information Be "Fundamentally" Defective for Failing to attorney for the State charging a person Charge an Offense?, 25 St. Mary's L.J. 217, 225-226 with the commission of an offense. The (1993). practice and procedures relating to the use of indictments, including their contents, III. amendment, sufficiency and requisites are In Studer, we addressed the second prong of the provided by law. The presentment of an constitutional [**11] definition, namely, the requirement indictment or information to a court that a charging instrument charge the commission of an invests the court with jurisdiction of the offense. 2 Following his conviction on a plea of nolo cause. contendere, Studer contended for the first time on appeal that his conviction was void because the information Art. V, § 12(b). In tandem with the constitutional omitted an element of the offense. 799 S.W.2d 263 at amendment, the Legislature also drafted implementing 264-265. legislation in the form of an amendment to Tex. Code Crim. Proc. Ann. art. 1.14. Art. 1.14(b) provided in 2 In addressing appellant's ground for review, pertinent part: we couched the issue as follows: "Does the If the defendant does not object to a wording ... 'An indictment or information is a defect, error, or irregularity of form or written instrument ... charging a person with the substance in the indictment or information commission of an offense' mean it is an before the date on which the trial on the instrument that alleges all the constituent merits commences, he waives and forfeits elements of an offense or something else the right to object to the defect, error, or (specifically something less)." Id., 799 S.W.2d at irregularity and may no raise the objection 266 (emphasis in original). Page 5 902 S.W.2d 471, *477; 1995 Tex. Crim. App. LEXIS 78, **11

In a thorough analysis of the legislative history of the charging instrument fails to charge a person, then it is art. V, § 12(b) and art. 1.14(b) we observed the intent not an indictment as required by art. V, § 12(b) and art. I, behind the amendments was not to "change what § 10. constitutes a substance defect, but rather only its effect" if not raised prior to trial. Id., at 268. Thus, a substantive The conclusion that art. V, § 12(b) [**14] defect in the charging [**12] instrument remains a defect establishes constitutional requisites for an [*478] and renders the charging instrument subject to a motion indictment is supported by construing art. V, § 12(b) and to quash. However, we further noted that because the art. I, § 10 in accordance with standard rules of omission of an element of the offense was "still a defect constitutional interpretation. As a first step, we attempt to of substance in an indictment, it naturally follows that the effectuate the intent of the framers of a constitutional indictment is still an indictment despite the omission of amendment, and the voters who approved that that element." Ibid. Accordingly, we concluded that a amendment. Studer, 799 S.W.2d at 272; City of El Paso charging instrument is not required to allege every v. El Paso Community College District, 729 S.W.2d 296, element of the offense in order to allege "the commission 298 (Tex. 1986); Gragg v. Cayuga Independent School of an offense" as required by art. V, § 12(b). Id., at 272. Dist., 539 S.W.2d 861, 866 (Tex. 1976); and, Farrar v. Board v. Trustees of Employees Retirement System of From Studer it follows that with regard to the second Texas, 150 Tex. 572, 243 S.W.2d 688, 692 (Tex. 1952). prong of the definition for an indictment, a substantively While art. V, § 12(b) was clearly intended to eliminate defective indictment is sufficient to vest the trial court the requirement that an indictment charge every element with jurisdiction. And in the wake of Studer, we have of an offense, it is equally apparent that neither the consistently held a charging instrument is not Legislature nor the voters intended to abrogate the constitutionally void despite the omission of one or more constitutional right to a charging instrument sufficient to elements of the offense. Rodriguez, 799 S.W.2d 301, 303 constitute an indictment. Studer, 799 S.W.2d at 272, n. 12 (Tex.Cr.App. 1990) (indictment for evading arrest failed ("The right to indictment by a grand jury ... has not been to allege defendant knew complainant was police officer abolished ... ."). See also, Dix, 38 Baylor L. Rev. at 26, who was attempting to arrest him); Ex parte Morris, 800 28-34 (1986) (legislative history indicates legislators did S.W.2d 225, 227 (Tex.Cr.App. 1990) (forgery indictment not intend to eliminate [**15] necessity of an failed to allege that writing [**13] purported to be act of indictment). Consequently, art. V, § 12(b) cannot be read another who did not authorize act); And, Ex parte to dispense with the necessity of filing an "indictment" in Gibson, 800 S.W.2d 548, 551 (Tex.Cr.App. 1990) the trial court in order to vest the court with jurisdiction (indictment failed to allege date of offense). See also, and provide notice to the defendant. State v. Murk, 815 S.W.2d 556, 558 (Tex.Cr.App. 1991). When construing constitutional provisions, we are IV. required to interpret the Constitution as a whole, rather than piecemeal. Oakley v. State, 830 S.W.2d 107, 110 Today we are called upon to decide the question (Tex.Cr.App. 1992); and, Pierson v. State, 147 Tex. Crim. unanswered by Studer: does a charging instrument 15, 177 S.W.2d 975, 977 (Tex.Cr.App. 1944). Thus, constitute an indictment within the constitutional constitutional provisions are not to be examined in definition of art. V, § 12(b) if it completely fails to charge isolation from comparable provisions. In Oakley we "a person"? explained:

While art. V, § 12(b), through its implementing ... the Constitution must be read as a legislation, art. 1.14(b), "de-constitutionalized" the whole so as to give effect to each and requirement that an indictment allege every element of every provision. ... No part of the the offense, the amendment nevertheless provided a Constitution should be given a definition for an "indictment" which had heretofore been construction which is repugnant to express defined only statutorily. Thus, art. V, § 12(b) established authority contained in another part, if it is constitutional requisites for a charging instrument to possible to harmonize the provisions by constitute an indictment. To constitute an indictment, the any reasonable construction. charging instrument must charge: (1) a person, and (2) the commission of an offense. It is clear, however, that if Page 6 902 S.W.2d 471, *478; 1995 Tex. Crim. App. LEXIS 78, **15

Id., 830 S.W.2d at 110 (citations omitted). See, also, Clapp v. State, 639 S.W.2d 949, 951 (Tex.Cr.App. 1982); The power to make laws [**18] is Texas National Guard Armory Board v. McCraw, 132 vested through the Constitution in the Tex. 613, 126 S.W.2d 627, 634 (Tex. 1939); Legislature. ... However, the Legislature Collingsworth County v. Allred, [**16] 120 Tex. 473, 40 does not have the power to enact any law S.W.2d 13, 17 (Tex. 1931); and, Jones v. Williams, 121 contrary to the provisions of the Tex. 94, 45 S.W.2d 130, 137 (Tex. 1931). Because art. V, Constitution. If any law or part thereof, § 12(b) and art. I, § 10 address similar subjects, we are undertakes to nullify the protection compelled to examine each provision in context and furnished by the Constitution, such law, or attempt to give effect to both unless they are part thereof, that conflicts with the irreconcilable. Clapp, 639 S.W.2d at 951-952. Constitution is void. Comparing art. V, § 12(b) and art. I, § 10, we find they are complementary rather then conflicting. Art. V, § Id., 179 S.W.2d at 273. See also, Maher v. Lasater, 163 12(b) should be read in context to art. I, § 10: the latter Tex. 356, 354 S.W.2d 923, 924-925 (Tex.1962); City of established the right to an indictment, and the former Fort Worth v. Howerton, 149 Tex. 614, 236 S.W.2d 615, establishes the constitutional definition for what 618 (Tex.1951); Jones v. Ross, 141 Tex. 415, 173 S.W.2d constitutes an indictment. Although art. V, § 12(b) 1022, 1024 (Tex. 1943); Empire Gas & Fuel Co. v. State, subsequently authorizes the Legislature to prescribe the 121 Tex. 138, 47 S.W.2d 265, 274 (Tex. 1932); Cameron requisites and sufficiency of indictments, we do not read v. Connally, 117 Tex. 159, 299 S.W. 221, 223 (1927); this grant of authority so broadly as to authorize the Crabb v. Celeste Independent School District, 105 Tex. Legislature to prescribe rules which undermine the 194, 146 S.W. 528, 532 (Tex.1912); and, 12A Tex.Jur.3d, constitutional definition of an indictment because this Constitutional Law, § 6. "Certainly, a statute cannot would render art. V, § 12(b) internally inconsistent. See, override the Constitution." Cramer v. Sheppard, 140 Tex. Gallagher v. State, 690 S.W.2d 587, 591-592 271, 167 S.W.2d 147, 155 (Tex. 1942). Thus, as Judge (Tex.Cr.App. 1985) ("Constitutional provisions will not Clinton stated in his concurring opinion in Studer: "[The] be construed to be ambiguous or contradictory if such meaning and import of Article V, § 12(b), insofar as it construction is possible."); [**17] and, Clapp, 639 defines 'indictment or information,' [**19] is a question S.W.2d at 951. ("... courts should avoid a construction (of for this Court. The Legislature is free to prescribe constitutional provisions) which renders any provision 'contents ... sufficiency, and requisites,' [of an indictment] meaningless or inoperative and must lean in favor of a but only within constitutional parameters." 3 Id., 799 construction which will render every word operative, S.W.2d at 293 (Clinton, J., concurring). See also, Dix, 38 rather than one which may make some words idle and Baylor L.Rev. at 40-41. nugatory.") Since "the language used (in a constitutional provision) must be presumed to have been carefully 3 All emphasis is supplied by author unless selected," we do not believe the Legislature would otherwise indicated. provide a constitutional definition of an indictment and Finally, although we attempt to construe a then subsequently authorize itself to prescribe statutory constitutional provision according to its literal language, rules which undermine that definition. Gallagher, 690 we are nonetheless obliged to avoid a construction which S.W.2d at 592. renders an absurd or unreasonable result. 16 Am.Jur.2d, Moreover, a construction of art. V, § 12(b) which Constitutional Law, § 112, p. 464. See also, In re Thoma, places the constitutional definition of an indictment 873 S.W.2d 477, 489 (Tex.Rev.Trib. 1994); and, Cramer, within the purview of art. 1.14(b) is problematic because 167 S.W.2d at 155 ("...constitutional and statutory it subjects a constitutional provision to statutory provisions will not be so construed or interpreted as to authority. It is fundamental to constitutional and statutory lead to absurd conclusions ... if any other construction or construction that the Legislature lacks the authority to interpretation can reasonably be indulged in ..."). For enact a statute [*479] which conflicts with a provision instance, in DeDonato v. State, 819 S.W.2d 164 of the Constitution. In Dendy v. Wilson, 142 Tex. 460, (Tex.Cr.App. 1994), Judge Maloney observed that with 179 S.W.2d 269 (Tex. 1944), the Texas Supreme Court [**20] regard to the art. V, § 12's provision relating to expressed this proposition as follows: court jurisdiction, Page 7 902 S.W.2d 471, *479; 1995 Tex. Crim. App. LEXIS 78, **20

defendant," charged "a person." However, such a ...a literal reading of article V, § 12(b) construction would effectively nullify the could lead to absurd results. If the mere constitutional definition of art. V, § 12(b). Rather, presentment of an indictment could vest we believe art. V, § 12(b) requires that an jurisdiction in any court, then, absent an indictment charge a particular person. This objection from the defendant, a capital interpretation is consistent with the statutory murder case could be properly tried in a definition of an indictment provided by Tex. Code county court. I cannot believe that such a Crim. Proc. Ann. art. 21.01: "An indictment is the result was the legislature's or the voter's written statement of a grand jury accusing a intent. person therein named of some act or omission which, by law, is declared to be an offense." Id., at 168 (Maloney, J., concurring, joined by Baird and [**22] Benavides, JJ.). See also, Marin, 851 S.W.2d at 279 ("[A] 5 We pause to note that we are not addressing a person may not be tried in Texas for a felony offense by situation where the charging instrument alleges an the County Court at Law, even if he consents."). incorrect name, see, Tex. Code Crim. Proc. Ann. arts. 26.07 and 26.09 (accused is obliged to state Similarly, we do not believe a reasonable true name when charging instrument is read at construction of art. V, § 12(b) permits the conclusion that arraignment), or where the person's name is the constitutional definition of an indictment falls within unknown and the charging instrument alleges only the purview of art. 1.14(b) because this construction a physical description, Mt, Tex. Code Crim. Proc. clearly leads to an absurd result. If art. V, § 12(b) subjects Ann. art. 21.07 ("... When the name of the person all requisites of an indictment to the scope of art. 1.14(b), is unknown to the grand jury, that fact shall be and hence, to waiver, then we can conceive of no point at stated, and if it be the accused, a reasonably which a charging instrument is so deficient as to not accurate description of him shall be given in the constitute an indictment. Clearly, this construction of art. indictment."). In such cases, the charging V, § 12(b) [**21] would permit a blank sheet of paper to instrument is an indictment within the meaning of suffice for a valid indictment. We do not believe the art. V, § 12(b) because whether erroneously or Legislature or the voters could have intended this result through a lack of information, the indictment still when approving art. V, § 12(b). Nor do we believe this charges "a person." construction of art. V, § 12(b) comports with the right to an indictment guaranteed by art. I, § 10. V.

We therefore hold that the definition of an In the instant case, the charging instrument wholly indictment provided by art. V, § 12(b) establishes failed to charge "a person." Thus, the charging instrument constitutional requisites for an indictment. Art. V, § 12(b) did not meet the first prong of the constitutional does not authorize the Legislature to statutorily change definition of art. V, § 12(b). Consequently, the charging these fundamental requirements. See, Howerton, 236 instrument was not an indictment as required by art. V, § S.W.2d at 618; and, Dendy, 179 S.W.2d at 273. 12(b) and art. I, § [**23] 10, and did not vest the trial Accordingly, to constitute an indictment as required by court with jurisdiction. Therefore, appellant's conviction art. I, § 10 and art. V, § 12(b), a charging instrument must is void. at least charge "a person," with [*480] the commission of an offense. 4 If the charging instrument fails to charge The judgment of the Court of Appeals is reversed "a person" then it is not an indictment and does not vest and we remand this cause to the trial court with the trial court with jurisdiction. 5 Moreover, because a instructions to dismiss the prosecution in this cause. 6 valid indictment is essential for jurisdiction, it is not 6 Appellant's remaining ground for review is subject to waiver. Crawford, 624 S.W.2d at 907; and, dismissed. Lackey v. State, 574 S.W.2d 97, 100 (Tex.Cr.App. 1978). BAIRD, Judge 4 Perhaps one could argue that the instant charging instrument, by simply stating "the Mansfield, J. joins with note. Page 8 902 S.W.2d 471, *480; 1995 Tex. Crim. App. LEXIS 78, **

White and Keller, JJ., dissent. however, the Court is intellectually dishonest, and for that reason I cannot join its opinion. (Delivered June 28, 1995) CLINTON, Judge En banc (Delivered: June 28, 1995) CONCUR BY: CLINTON; MALONEY; Mansfield EN BANC CONCUR CONCURRING OPINION

[**24] CONCURRING OPINION ON APPELLANT'S MALONEY, J. PETITION FOR DISCRETIONARY REVIEW I join the opinion of the majority, but write CLINTON, Judge separately to emphasize that the majority's opinion is consistent with and strengthened by the principles set For the reasons stated in Judge Meyers' dissenting forth in Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App. opinion, I concur in the Court's judgment in this cause. I 1994). I also write to point out that the dissenting opinion agree with Judge Meyers that the majority's disposition is rests upon a flawed reading of this Court's opinion in in all things inconsistent with the rationale and holding of Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990). Studer v. State, 799 S.W.2d 263 (Tex.Cr.App. 1990), for precisely the reasons he gives in his dissent. I also agree I. with him that Studer was wrongly decided. Id., at The majority correctly states that the constitutional 286-293 (Clinton, J., concurring). Moreover, something amendments in 1985 provided for the first [**26] time a very similar to the approach Judge Maloney now definition of "indictment." Majority opinion at 6. Under advances in his concurring opinion, derived from his this new definition, an "indictment" is an instrument that opinion for the Court in Fisher v. State, 887 S.W.2d 49 charges (1) a person (2) with the commission of an (Tex.Cr.App. 1994), was suggested at the time of Studer, offense. Id. at 6. but rejected. Id., at 293. I can only conclude that the majority's disposition today is fundamentally at odds with This Court in Studer v. State, 799 S.W.2d 263 (Tex. Studer. Crim. App. 1990), held that "the commission of an offense" was still alleged despite the omission of an Unlike Judge Meyers, I have no compunction about element of the offense. We expounded on this notion in overruling Studer, stare decisis notwithstanding. As I Fisher, supra, where we discussed the problem of observed in a companion case to Studer, Rodriguez v. determining sufficiency of the evidence in the event of an State, 799 S.W.2d 301 (Tex.Cr.App. 1990): indictment, like that in Studer, that does not allege all of the elements of the offense. We began by recognizing the "In attempting to pluck what it perceives relationship between the indictment, a defendant's to be the stray thread of fundamentally expectations about what he would be tried for, the jury defective [**25] indictments from the instructions, and ultimately the appellate court's review of criminal jurisprudence, the majority the sufficiency of the evidence to support the conviction. threatens to unravel the whole fabric of We emphasized that "there must be a connection between our criminal procedure." the crime with which a defendant is charged in the indictment and a reviewing court's role in reviewing the [*481] Id., at 304 (Clinton, J., dissenting). See Studer v. sufficiency of the evidence to support a conviction." State, supra, 799 S.W.2d 263 at 292 (Clinton, J., Fisher, 887 S.W.2d at 53. Accordingly, we concluded concurring). At the risk of mixing metaphors, I would nip that it was necessary to be able to identify the [**27] that threat as close to the bud as possible, and admit that offense with which the defendant was charged in the we are overruling Studer. Because, as Judge Meyers ably indictment, and we set forth a scheme by which that illustrates, the Court all but does so, I concur in its could be accomplished even in the face of an inadequate judgment. In failing expressly to overrule Studer, indictment. Id. at 55-58. Page 9 902 S.W.2d 471, *481; 1995 Tex. Crim. App. LEXIS 78, **27

It logically follows from our reasoning and holding the essential holding of Studer[.]" Dissenting opinion at 1 in Fisher that in order to charge "the commission of an (Meyers, J., dissenting). Curiously, the dissent's own offense" for purposes of Article V, § 12, there must be rendition of the Court's holding in Studer represents enough alleged to enable one to identify the offense. 1 [*482] a significant departure from the actual language This principle also logically applies to the portion of the of the opinion. constitutional definition that the instrument charge "a person." Enough must be alleged so that a person is The dissent summarizes the holding in Studer as identifiable in the body of the indictment as one charged follows: with the commission of an offense. No person is named or described as the accused in the indictment in the A written instrument presented to a court instant case. Therefore, appellant correctly asserts that the by a grand jury which does not charge "an charging instrument is constitutionally deficient. For offense" is, nevertheless, an indictment, these reasons, as well as those discussed in the majority and, therefore, invests the court with opinion, I join the opinion of the Court. jurisdiction.

[EDITOR'S NOTE: TEXT WITHIN THESE Id. at 1. It then goes on to revisit and track the analysis in SYMBOLS [O<>O] IS OVERSTRUCK IN SOURCE.] Studer leading to this purported holding. First noted is that Studer held that the failure to allege all of the 1 In Fisher we stated, elements of the offense is a defect of substance. This is accurate. The dissent then identifies the first of the four We assume in this opinion that statutory defects of substance as "failure to charge an the indictment alleges enough to offense[.]" Id. at 2. Following this, the dissent states that identify the offense charged. For Studer therefore concluded that "a written instrument example, an indictment might which does not allege every constituent element of a allege only four of five elements of statutory crime is substantively defective because it does a particular offense. By comparing not charge an offense." Id [**29] . (emphasis added). the allegations in the indictment, albeit incomplete, with various The flaw in this line of reasoning springs from a penal code provisions, one should loose rephrasing of the first of the statutorily defined be able to determine which entire defects of substance. Article 27.08 provides that it is a offense the State is alleging. defect of substance of an indictment or information "that it does not appear therefrom that an offense against the Fisher, 887 S.W.2d at 55 n.10. Slightly further law was committed by the defendant." Tex. Code Crim. elaboration is needed to put this approach into Proc. Ann. art. 27.08(1). The dissent restates this as practice. If it is the case that all of the allegations providing that it is a defect of substance of an indictment in the indictment are common to more than one or information that it "does not charge an offense." I offense, and none are distinguishing to any single cannot agree with this broad translation. "That it does not offense, then I would hold that the offense appear that an offense was committed" is far different charged is that to which the fewest elements must from "that it does not charge an offense." be added to those alleged in order to arrive at a complete offense. If the allegations in the This distinction is critical in light of the indictment are so deficient that one cannot constitutional requirement that an indictment charge "the identify the offense alleged, then the indictment is commission of an offense." Tex. Const. Art. V, § 12. insufficient to confer subject matter jurisdiction. Under the dissent's rephrasing of the matter, article 27.08 permits waiver of what the constitution requires--the [TEXT DELETED BY COURT constitution requires that an indictment charge an EMENDATION] offense; yet (according to the dissent's rephrasing) article 27.08 provides that the "failure to charge an offense" is a [**28] II. defect of substance which, under article 1.14(b) is waiveable. Under [**30] a true reading of the provisions, The dissent disparages the majority for "revis[ing] Page 10 902 S.W.2d 471, *482; 1995 Tex. Crim. App. LEXIS 78, **30

the constitution requires that an indictment charge the Armstrong, 110 Tex. Crim. 362, 8 S.W.2d 674, commission of an offense; article 27.08 provides that it is 676 (1928)). Without subject matter jurisdiction a a defect of substance "that it does not appear that an court has no authority to act. offense was committed." 2 (emphasis added). The constitution speaks in terms of what is necessary to The constitutional and statutory amendments charge the commission of an offense; article 27.08 and our interpretation of them in Studer, have not speaks in terms of whether it appears from the eliminated the basic notion of subject matter allegations that an offense was committed. The essential jurisdiction. The Texas Constitution as amended holding of Studer was that the absence of an element provides that "the presentment of an indictment or made it appear that an offense was not committed (a information to a court invests the court with defect of substance), but was nevertheless sufficient to jurisdiction of the cause." In order to give charge the commission of an offense for constitutional meaning to this provision and the constitutional purposes of jurisdiction. 3 requirement that the indictment charge the commission of "an offense," they must be 2 The dissent points out that article 27.08 has construed as requiring that the indictment allege long been interpreted to mean that an indictment enough to identify the offense charged and is substantively defective if it does not charge an accordingly invest subject matter jurisdiction. offense, despite its language to the effect that it This is also consistent with the principles set forth does not appear that an offense was committed. in Fisher, as discussed above. Dissenting opinion at 2, n.2 (Meyers, J., dissenting). These interpretations, however, were [**32] [*483] As the majority points out, in made prior to the constitutional amendments in construing constitutional provisions, "we are obliged to 1985 which added the definition of "indictment." avoid a construction which renders an absurd or As emphasized in the majority's opinion, unreasonable result." Majority opinion at 11. In order to constitutional and statutory provisions should be charge "the commission of an offense" an indictment interpreted in harmony, if possible, so as to give must allege enough so that the offense alleged can be meaning and effect to both. See Majority opinion identified. This vests the court with subject matter at 9-11. jurisdiction. See fn. 2, supra. Article 1.14(b) and 27.08 do [**31] not permit waiver of subject matter jurisdiction. Rather, if 3 It is elemental that a trial court must have enough is alleged to enable the identification of an subject matter jurisdiction. As explained by this offense for purposes of subject matter jurisdiction under Court, the constitution, but the allegations are nevertheless deficient so that technically it does not appear that an A court of competent jurisdiction offense was committed, there is a waiveable defect of means a court that has jurisdiction substance. This is what happened in Studer. of the offense. [citation omitted] . . The dissent repeatedly states that in Studer this Court . One of the requisite elements of decided that the indictment there did not charge an 'jurisdiction' is jurisdiction over the offense. The dissent quotes the following language from subject matter. The expression Studer: 'subject matter,' as used with reference to the problem of The change in Art. 1.14(b) requires, jurisdiction, in criminal law, refers among other things, that substance to the offense. exceptions be raised pre-trial or otherwise the accused has forfeited his right to raise Hulton v. State, 351 S.W.2d 248, 255 (Tex. Crim. the objection on appeal or by collateral App. 1961) (emphasis added). This Court has [**33] attack. If omitting an element from further stated that jurisdiction means "the right to an indictment is still a defect of substance adjudicate concerning the subject matter in a in an indictment, it naturally follows that given case." Garcia v. Dial, 596 S.W.2d 524, 527 the indictment is still an indictment (Tex. Crim. App. 1980) (quoting Ex parte Page 11 902 S.W.2d 471, *483; 1995 Tex. Crim. App. LEXIS 78, **33

despite the omission of that element. Mansfield, J., joins this opinion with the following note: I join the majority opinion of the Court, agreeing Dissenting opinion at 3 (quoting Studer, 799 S.W.2d at that a charging instrument that fails to charge "a person" 268). Nowhere in this quoted language or anywhere else is not an indictment as defined by art. V, § 12(b) and art. in the opinion can I find that the Court stated that the I, § 10 of the Texas Constitution. I am troubled, however, indictment failed to charge an offense. The issue by the failure of trial counsel to object to the error in the presented in Studer was whether the indictment's failure charging instrument prior to trial, given that the error was to allege all of the elements of an offense could be raised obvious. Had this been done, a substantial amount of time for the first time on appeal, or whether such defect was in and resources (both State's and appellant's) would have fact waived. 4 The defect presented in Studer was not been saved, and justice would have been better served. such that the offense (and accordingly the subject matter jurisdiction of the court) could not be determined. There DISSENT BY: MEYERS was an absence of one element. 5 Indeed the Court spoke throughout the opinion in terms of "omitting an element", DISSENT "the omission of that element", that an indictment "need not necessarily allege every element", a "missing DISSENTING OPINION ON APPELLANT'S element", "if an element of an offense is omitted", "the PETITION FOR [**35] DISCRETIONARY REVIEW omission of an element", "missing an element", "each I believe that Studer v. State, 799 S.W.2d 263 (Tex. constituent element", "the absence of an element", and Crim. App. 1990) was wrongly decided, mainly for the "each element of the [**34] offense". Nowhere in our reasons given by the majority in this case. Accordingly, I opinion in Studer is there any discussion of the possibility do not disagree, at least in the abstract, with most of what that an indictment might omit more than one or even all the majority opinion has to say. Where I part company elements of an offense and remain constitutionally sound. with my colleagues on this issue is at the point where 4 Studer presented the issue as they revise the essential holding of Studer to support a distinction which is at odds both with logic and with the Does the wording "An law. indictment or information is a The Texas Constitution defines "indictment" as "a written instrument . . . charging a written instrument presented to a court by a grand jury person with the commission of an charging a person with the commission of an offense" 1 offense" mean it is an instrument and it [*484] provides that "presentation of an that alleges all the constituent indictment . . . to a court invests the court with elements of an offense or jurisdiction of the cause." Tex. Const. art. 5, § 12. In something else (specifically Studer we held that a written instrument presented to a something less). court by a grand jury which does not charge "an offense" is, nevertheless, an indictment and, therefore, invests the Studer, 799 S.W.2d at 266 (emphasis in original). court with jurisdiction. Today, a majority of the Court 5 We readily identified the offense charged, but holds that a written instrument presented to a court by a noted the absence of a single allegation. We stated grand jury which does not charge "a person" is not an that the defendant was charged with indecent indictment and does not, therefore, invest the court with exposure, but the indictment failed to allege the [**36] jurisdiction. The basis for this remarkable act or acts relied upon to constitute recklessness. distinction is not made clear by the majority opinion, and With these comments, I join the opinion of the because the requirement that an indictment charge "an majority. offense" is given by the same constitutional provision requiring it to charge "a person," I cannot subscribe to the MALONEY, J. view that one requirement is forfeitable while the other is not. Delivered June 28, 1995 1 The Code of Criminal Procedure describes it Mansfield, J., joins. somewhat differently as "the written statement of Page 12 902 S.W.2d 471, *484; 1995 Tex. Crim. App. LEXIS 78, **36

a grand jury accusing a person therein named of degree as to charge no offense some act or omission which, by law, is declared to against the law, and thereby be be an offense." Tex. Code Crim. Proc. art. 21.01. void, will the exception to the substance be considered for the The Court's mistake, I think, derives from a first time on appeal under Article fundamental misunderstanding of our opinion in Studer. 27.08(1), supra. The majority seems to think that, under the Studer rationale, an indictment may be sufficient to charge an American Plant Food Corp. v. State, 508 S.W.2d offense even though it fails to allege all essential 598, 604 (Tex.Cr.App. 1974). Any suggestion, elements of that offense so long as one can tell from therefore, that an indictment may be sufficient to examining it what offense the State intended to charge. charge an offense within the meaning of the See Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App. Constitution, yet "appear" not to charge an 1994); [**37] Thomason v. State, 892 S.W.2d 8 (Tex. offense within the meaning of article 27.08(1), Crim. App. 1994). But that was not Studer's rationale at would represent an interpretation of the latter so all. What this Court actually held in Studer, and in its radically different from any thus far contemplated companion case of Rodriguez v. State, 799 S.W.2d 301 by our precedents as to be entirely novel. For (Tex. Crim. App. 1990), was that any written instrument present purposes, however, it is enough to know returned by a grand jury is an indictment for purposes of that our opinion in Studer expressly eschewed any investing a court with jurisdiction, whether it charges "an departure from existing case law on the subject. offense" or not. A brief restatement of the argument [**39] given in Studer makes this perfectly clear. 3 Clearly, omission of a constituent element does not suggest that the prosecution is limitations We began our analysis with the proposition that barred, that the alleged conduct was excused or failure of an indictment or information to allege all justified, or that the subject matter of the constituent elements of an offense is a defect of substance prosecution is otherwise beyond the trial court's and that "the amendments to Art. 1.14, V.A.C.C.P., and jurisdiction. Accordingly, if omission of a Art. V, § 12 did not, on their face, change this constituent element is indeed a defect of long-standing precedent." 799 S.W.2d 263 at 268. We substance, it must be because a failure to plead all conceded that there are only four defects of substance offensive elements is tantamount to a failure to known to Texas criminal law: failure to charge an offense charge an offense. 2, failure to allege a date within the statutory period of limitation, allegation of a defense, and apparent lack of Having thus decided that the purported indictment in jurisdiction. Tex. Code Crim. Proc. art. 27.08; 799 Studer did not charge an offense, we next proceeded to S.W.2d at 267. We concluded that a written instrument inquire whether the failure of a written instrument to which does not allege every constituent element of [**38] charge an offense means that it is not an indictment a statutory crime is substantively defective because it within the meaning of the Texas Constitution, article V, does not charge an offense. 3 section 12. Reasoning that the Code of Criminal Procedure, article 1.14(b), requires ill defects of 2 Article 27.08, Subdivision 1 says that an substance in an indictment, including its failure to charge indictment or information is substantively an offense, to be raised prior to trial, we [*485] inferred defective if "it does not appear therefrom that an that the Legislature did not mean to imply a written offense against the law was committed by the instrument is not really an "indictment" unless it charges defendant." This Court has always understood the the commission of an offense. statute to mean that an indictment is substantively defective if it does not charge an offense. The The change in Art. [**40] 1.14(b) cases which illustrate this fact are legion. For requires, among other things, that present purposes, however, it is sufficient to quote substance exceptions be raised pre-trial or from only one of the most famous and influential. otherwise the accused has forfeited his right to raise the objection on appeal or by Only if the defect be of such a collateral attack. If omitting an element Page 13 902 S.W.2d 471, *485; 1995 Tex. Crim. App. LEXIS 78, **40

from an indictment is still a defect of doubt about what specifically is necessary for the substance in an indictment, it naturally exercise of such jurisdiction, they have gone on expressly follows that the indictment is still an to say that "a written instrument presented to a court by a indictment despite the omission of that grand jury charging a person with the commission of an element. offense" is required. This seems pretty clear to me.

799 S.W.2d 263 at 268. 4 Ironically, the majority seems to concede that, under our prior law, as interpreted in King v. It is thus apparent that Studer was making exactly the State, 473 S.W.2d 43 (Tex. Crim. App. 1971), same argument Cook makes in the instant cause. He indictments were not really jurisdictional, since argued that defects in an indictment must be raised before they could be waived. Slip Op. at 2 n.1. trial only if the defective instrument is actually an Jurisdictional defects, of course, are not waivable. indictment under the constitutional definition. He But the majority then goes on to describe "the maintained that a written instrument which does not constitutional requirement of an indictment" as a charge an offense is not an indictment, just as Cook now "fundamental systemic requirement" under our maintains that a written instrument which does not charge holding in Marin v. State, 851 S.W.2d 275 (Tex. a person is not an indictment. This argument, however, Crim. App. 1993) because it is "so important that was plainly and unambiguously rejected in Studer. That it is mandatory absent an express waiver." This is the Court now accepts it in the instant cause represents a wrong, of course. Under Marin, fundamental significant revision of our Studer position which, in systemic requirements are not waivable at all. fairness to bench and bar alike, we ought to acknowledge. Perhaps it is the majority's view that the constitutional requirement that an indictment Mind you, I am not irrevocably opposed to such a name "a person," while not jurisdictional, is revision. Indeed, [**41] I am sympathetic with the view, nevertheless cognizable on direct appeal even expressed in the majority opinion here, that an indictment absent a trial objection because it is a waivable does not "invest a court with jurisdiction," as the right of the defendant. If so, the majority opinion Constitution puts it, unless it "charg[es] a person with the is especially interesting, since the Constitution commission of an offense." This is not because I think does not seem to make the indictment itself a right that a written instrument should be made a necessary of the defendant. The truth is that, prior to the prerequisite to the exercise of a trial court's jurisdiction, amendment of article 5, section 12 in 1985, the any more than I think it should not. In my opinion, the Texas Constitution did not provide that any lawmakers of this State may choose to predicate the specific written instrument was necessary to exercise of trial-level criminal jurisdiction upon the "invest the court with jurisdiction of the cause." It existence of a written instrument if they see fit to do so. was only our case law that did that -- the very But, should they instead decide to dispense with the case law sought to be eliminated by the requirement of a charging instrument altogether, I would amendments of 1985, and which were eliminated not be inclined to think it unconstitutional. After all, the in fact by our holding in Studer. Accordingly, the grand jury screening to which defendants are majority's position would be better supported by a constitutionally entitled in felony cases can be claim that the constitutional amendment accomplished without memorializing the process in a effectively overruled King. But then, of course, formal document, and the notice to which defendants are the Code of Criminal Procedure articles providing constitutionally entitled in all criminal cases can be for the waiver of an indictment would be provided from a different source. Tex. Const. art. I, § 9. unconstitutional.

Nevertheless, it is apparent that the people of Texas [**43] [*486] But Studer would not have it to be have not in fact opted to dispense with formal charging so, and I will not disgrace the jurisprudence of this Court [**42] instruments in criminal cases. Indeed, they have or insult the intelligence of trial judges and lawyers by deliberately chosen to require an indictment or pretending that Studer is consistent with the majority information before "invest[ing] [a] court with view in this case when it obviously is not. The Studer jurisdiction" of a criminal case. 4 And, lest there be any Court realized that its interpretation of the questioned Page 14 902 S.W.2d 471, *486; 1995 Tex. Crim. App. LEXIS 78, **43

constitutional language was not literal. In fact, it just the sort of thing that introduces unnecessary [**45] consciously decided not to construe such language complexity into the case law, confuses practitioners, and according to its plain meaning because it realized that diminishes this Court in the estimation of judges and doing so would effectively undermine the purpose of scholars. If it were the pleasure of this Court to those legislators who enacted the Code amendments and reexamine the holding in Studer, I would most likely those citizens who approved the constitutional approve the effort. If, after reconsideration, it were the amendments in question. In fact, nearly half of our opinion of the Court to overrule or substantially qualify opinion in Studer is actually devoted to investigating and Studer, I might even be willing to join the opinion, so articulating extratextual sources of legislative intent in long as it had the overwhelming support of my order to demonstrate why the constitutional definition of colleagues, definitively settled the issue, and was justified "indictment" should not be read as it is written. The by more than a mere acknowledgement of error. But the author of Studer even cited it in a later dissenting opinion Court has done none of these things in the instant cause, as one of two contemporary, leading authorities for the and seems disinclined to do them in future. Instead, it proposition that "ambiguity in a statute is not apparent merely reverses course, quietly reinstating the law of until the legislative history is researched and the true jurisdictional pleading defects and pretending all the legislative intent is discerned." [**44] Boykin v. State, while that Studer is still alive and well. But, of course, it 818 S.W.2d 782, 789 (Tex. Crim. App. 1991) (Miller, J., isn't. dissenting). The rule of stare decisis obliges appellate judges to Thus, although I believe Studer was wrongly respect the precedents of their own court, whether they decided, it was by no means an accident, nor was its agree with those precedents or not. That does not mean, rationale expressed by the Court without due of course, that bad cases should never be overruled. It consideration. Fully five years passed between enactment only means that cases should not be overruled without a of the statutory and constitutional amendments and our compelling reason. It also means that cases should not be construction of them in Studer. During that time, the distinguished [**46] on patently fictitious grounds. The issues were vigorously debated in the courts of appeals underlying rationale of Studer, however mistaken it may and eventually in this Court. Everyone knew what the have been as a matter of constitutional interpretation, is arguments were on both sides. And, in the end, the nevertheless a more coherent and workable approach to Court's opinion was virtually unanimous. Only a single charging instrument law than the one with which, judge expressed significant disagreement with the inspired by Fisher and Thomason, the Court leaves us in majority rationale. See Studer, 799 S.W.2d at 286 this case. Because I cannot agree that there are (Clinton, J., concurring); Rodriguez, 799 S.W.2d at 303 compelling reasons to make a bigger mess of the law than (Clinton, J., dissenting). Studer already has, I respectfully dissent.

Now, only five years later, most of the Studer Court MEYERS, Judge is gone. And so, apparently is Studer itself. What began as a grass roots movement for the reform of charging DELIVERED: June 28, 1995 instrument law, focused almost exclusively on the EN BANC elimination of jurisdictional defects from indictments and informations, has now become a caricature of itself. It is Page 1

RUBEN DURON, JR., Appellant v. THE STATE OF TEXAS, Appellee

NO. 0568-96

956 S.W.2d 547; 1997 Tex. Crim. App. LEXIS 76

October 8, 1997, Delivered

SUBSEQUENT HISTORY: [**1] As Corrected affect the jurisdiction of trial courts to proceed with an November 20, 1997. adjudication of guilt. The most widely-held view was that, contrary to long-standing judicial interpretation, the PRIOR HISTORY: Petition for Discretionary Review ends of criminal justice would best be served by from the First Court of Appeals. [HARRIS County]. providing that convictions not be reversed on account of any pleading defects which were not called to the DISPOSITION: Affirmed. attention of the court prior to trial. In 1985, a statute to this effect was enacted. Tex. Code Crim Proc. [**2] art. 1.14(b). COUNSEL: Winston E. Cochran, Jr., Houston. But from the beginning, the meaning and effect of Rikke Burke Graber, Assist. DA., Houston. this statute were unclear. Although art. 1.14(b) plainly provided that failure to object before trial to the form or JUDGES: MEYERS, Judge. MANSFIELD, J. Womack, substance of an "indictment or information" forfeited the Judge. Presiding Judge McCormick and Keller, J., join right of a defendant to complain about it on appeal, there this concurrence. remained considerable disagreement about whether this rule applied to an accusatory pleading which only OPINION BY: MEYERS purported to be, but was not in fact, an "indictment or information" as defined in the Texas Constitution. See OPINION TEX. CONST. art. V, § 12. Thus, it was argued, a pleading which did not actually charge "a person with the commission of an offense" was not an "indictment or [*548] OPINION ON APPELLANT'S PETITION information" [*549] at all within the meaning of the FOR DISCRETIONARY REVIEW Texas Constitution, and that any conviction based upon such an instrument was, therefore, not merely defective More than a decade ago, the people of Texas and or irregular but absolutely void. After some five years of their elected representatives attempted to overcome years litigation in the intermediate appellate courts, we held in of charging instrument case law through constitutional Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. Proc. amendment and related legislation. It was the consensus 1990), that the constitutional mandate that an indictment of lay and professional opinion that defects in the "charge an offense" does not mean "that each element of pleading of indictments and informations ought not to the offense must be alleged..." It has been argued that Page 2 956 S.W.2d 547, *549; 1997 Tex. Crim. App. LEXIS 76, **2

Studer [**3] 's holding necessarily means that a pleading appear than an offense was committed, there is a need not charge the "commission of an offense" to waivable defect of substance. qualify as an indictment or information under the Texas Constitution. Studer, 799 S.W.2d at 293 (Clinton, J., Cook, 902 S.W.2d at 483 (Tex. Crim. App. dissenting); Cook v. State, 902 S.W.2d 471, 483 (Tex. 1995)(Maloney, J., concurring). Judge Maloney's Crim. App. 1995)(Meyers, J., dissenting). Indeed, later understanding of Studer was inspired, at least in part, by case law, citing Studer, only requires that an indictment Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App. 1994). purport to charge an offense in order to vest the trial See Cook, 902 S.W.2d at 480 (Clinton, J., concurring) court with jurisdiction, implying, perhaps, that an and 481 (Maloney, J., concurring) and 484 (Meyers, J., indictment no longer need actually charge an offense. Ex dissenting). In Fisher we addressed the problem of parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. measuring the sufficiency of evidence against jury 1990); Ex parte Morris, 800 S.W.2d 225, 227 (Tex. Crim. charges that, after Studer, could no longer be assumed to App. 1990). incorporate indictments that alleged all the elements of the offense charged. There we held that the sufficiency of But this Court has gleaned a different meaning from evidence to support a conviction under an instrument Studer and its progeny. In Cook v. State, 902 S.W.2d 471 which does not charge all the elements of an offense (Tex. Crim. App. 1995), we revisited the very argument should be measured on appeal against the statutory advanced five years before in Studer, that an instrument offense which the State intended to charge, at least if it is purporting to be an indictment or information is not really possible to determine from the face of the instrument an indictment or information unless it actually charges "a which statutory offense the State really intended. Fisher, person with the commission of an offense." In Cook, 887 S.W.2d at 55. however, this argument was directed, not at failure of the purported pleading to charge an offense, but at [**4] its But the Court in Fisher never squarely addressed failure to charge a person. We accepted the argument, [**6] the question of what need be in a written expressly holding that "to comprise an indictment within instrument before that instrument may be considered an the meaning provided by the constitution, an instrument indictment. Although Judge Maloney suggested an must charge: (1) a person; (2) with the commission of an answer in Cook, he did not speak for the Court. And so, offense." 902 S.W.2d at 476. Because the written confusion on the topic persists. instrument in Cook did not allege the identity of any As this Court noted in Studer, the legislative history person, we held that it was not an indictment or behind the 1985 amendment and [*550] its attendant information and the trial court had therefore never legislation indicates that those changes meant to preserve acquired jurisdiction to adjudicate Cook guilty of any a written instrument as an indictment even "though it be criminal offense. Accordingly, we reversed his conviction flawed by matter of substance..." Studer, 799 S.W.2d at and ordered that the purported charging instrument be 271. But, as we emphasized in Cook, not all "indictment" dismissed. defects are matters of substance such that a defendant Thus, in Cook, we emphasized that a written must object to them before trial or lose his right to instrument must charge a person with the commission of complain about them on appeal. Some defects, instead, an offense in order to qualify as an indictment. But we remove the written instrument from the ambit of art. did not elaborate upon this basic constitutional definition 1.14(b) because they render the instrument a of an indictment. The only indication of what it meant to non-indictment. Cook, 902 S.W.2d at 478. Judge charge a person "with the commission of an offense", in Maloney understood those defects to be of the type that fact, came not in the majority opinion, but in Judge would make it impossible for the defendant to know with Maloney's concurring opinion. Joining the Court, Judge what offense he had been charged. The legislative history Maloney stated that: behind the 1985 changes supports this understanding:

...if enough is alleged to enable the identification of In essence what this [proposal] does is [to redefine] an offense for purposes of subject matter jurisdiction what an indictment [**7] is. And [it] actually defines it under the [**5] constitution, but the allegations are in fairly specific terms as to what...an indictment is nevertheless deficient so that technically it does not supposed to do...Obviously, it is still important that each and every person charged with an offense know what he Page 3 956 S.W.2d 547, *550; 1997 Tex. Crim. App. LEXIS 76, **7

is charged with. The definition under the [proposal] under which the State intends to prosecute, even if the would do that. It would advise that person essentially instrument [*551] is otherwise defective. See Dix, what he is charged with, but you don't have to worry supra; Cook, 902 S.W.2d at 483 (Maloney, J., about whether you described the car sufficiently, or the concurring). 3 weapon sufficiently, or those things, as long as it gives some kind of notice of what the charge is. 1 Our case law indicates that art. I, § 10 is concerned not only with the particular statutory G. Dix, Texas Charging Instrument Law: The 1985 offense, but also with the specific incident of that Revisions and the Continuing Need for Reform, 38 statutory offense. Flowers v. State, 815 S.W.2d Baylor L.Rev. 1, at 39-40, n. 137 (Winter 1986), citing 724, 729 (Tex. Crim. App. 1991). Hearing on Tex. H.R.J. Res. 7 Before the House Comm. 2 It may be argued that a defendant can protect On Criminal Jurisprudence, 69th Leg., (Feb. 18, his art. I, § 10 rights by merely objecting to the 1985)(tape recording available from the Texas indictment prior to trial as required by art. legislature). 1.14(b). But we have held that a defendant's art. I, § 10 rights to a grand jury indictment are not This understanding is also in keeping with a forfeited by the failure to object. King v. State, defendant's TEX. CONST. art. I, § 10 rights to a grand 473 S.W.2d 43 (Tex. Crim. App. 1971)(The right jury screening. Id. at 43. Under art. I, § 10, a defendant to a grand jury indictment may be expressly has a right to have a grand jury pass upon the question of waived but cannot be lost merely upon the failure whether there is probable cause to believe that he to object); See also Ex Parte Long, 910 S.W.2d committed a particular offense. 1 See TEX. CONST. art. 485, 487 (Tex. Crim. App. 1995) (Meyers, J., I, § 10, [**8] interp. commentary. A defendant also has concurring). a right, under art. V, § 12, to the presentment of an [**10] indictment from that grand jury. Id. While we have never 3 If it is true that, under art. I, § 10, a defendant expressly stated that the indictment must reflect the grand has the right to demand that the grand jury pass jury's assessment that there is probable cause to believe not only on whether there is probable cause that that the defendant committed a particular offense, this he committed a particular statutory offense, but on becomes apparent when the two rights are juxtaposed. whether there is probable cause that he committed This is so because the written indictment most directly a particular statutory offense on a specific day and evidences that the proper grand jury screening has taken time, then it might be argued that a defendant has place. The effect upon these rights, the right to a grand a right to have those details reflected in the jury screening and the right to have that screening indictment. See Flowers, supra. But to require reflected in a written instrument, by our interpretation of that amount of specificity would undermine art. "indictment" under art. V, § 12 is obvious. If we allow a V, § 12 as recently amended. Of course, a written instrument to stand as an indictment even when it defendant may complain, for the first time on does not contain enough information to point to the appeal, that the specific incident of a statutory offense charged, then we seriously undermine a offense for which he was convicted differs from defendant's art. I, § 10 rights to have the grand jury's the specific incident (of the same statutory screening reflected in the indictment, and in so doing, a offense) for which he was indicted, but he cannot defendant also loses his assurance that the appropriate complain, for the first time on appeal, that the screening has taken place. 2 But in Cook v. State, 902 indictment is defective in that it did not reflect S.W.2d at 478, we stated that, to the extent possible, we those details (and, thus, did not allow him to ought not define an indictment [**9] under art. V, § 12 know what specific incident the grand jury passed in such a way that we render a defendant's art. I, § 10 upon). Pursuant to art. 1.14(b), he must make that rights to a grand jury screening meaningless. Recognizing objection before trial. this sentiment, we today adopt as law the suggestion, made by both Professor Dix and Judge Maloney, that a In the instant cause, we are once again asked [**11] written instrument is an indictment or information under to hold that a purported indictment is not really an the Constitution if it accuses someone of a crime with indictment because it does not charge "the commission of enough clarity and specificity to identify the penal statute an offense." But unlike our earlier cases, this complaint is Page 4 956 S.W.2d 547, *551; 1997 Tex. Crim. App. LEXIS 76, **11

directed against a written instrument which does allege CONCUR on its face all of the statutory elements comprising a criminal offense under the Texas Penal Code. It charges that appellant, acting with intent to arouse his own sexual CONCURRING OPINION ON APPELLANT'S desire, had sexual contact with a child younger than PETITION FOR DISCRETIONARY REVIEW seventeen years of age who was not his spouse. These allegations contain all of the statutory elements of MANSFIELD, J. indecency with a child. See Texas Penal Code § 21.11(a)(1). But, according to appellant, the instrument Texas Constitution, Article V, § 12 provides: also contains factual allegations establishing, if true, that he is not guilty of indecency with a child. It alleges that An indictment is a written instrument presented to a the sexual contact between appellant and the child court by a grand jury charging a person with the occurred when appellant rubbed his penis between her commission of an offense. An information is a written legs. Appellant argues that, because the law defines instrument presented to a court by an attorney for the "sexual contact" only as "any touching of the anus, State charging a person with the commission of an breast, or any part of the genitals of another person," and offense. The practice and procedures relating to the use of because legs are not included, the purported indictment indictments, including their contents, amendment, does not actually charge the commission of an offense sufficiency and requisites are provided by law. The and is not, therefore, an indictment [**12] so as to confer presentment of an indictment or information to a court jurisdiction on the trial court. The First Court of Appeals invests the court with jurisdiction of the cause. disagreed, holding that the written instrument was, indeed, an indictment because it was returned by a grand Texas Code of Criminal Procedure article 1.14 jury, purported to charge the appellant with the offense of provides: indecency with a child, and was facially an indictment. (b) If the defendant does not object to a defect, error, The court of appeals did not err. The instant cause or irregularity of form or substance in an indictment or does not involve a charging instrument which is even information before the date on which the trial on the arguably defective on account of its failure to include one merits commences, he waives and forfeits the right to or more allegations necessary to give notice of the object to the defect, error or [*552] irregularity and he statutory offense with which the defendant was charged. may not raise the objection on appeal or in any post As we have come to hold today, this is all that Studer and conviction [**14] proceeding. Nothing in this article Cook require to satisfy the mandate of Art. V, § 12 that prohibits a trial court from requiring that an objection to an indictment charge "the commission of an offense." an indictment or information be made at an earlier time in This is true whether an indictment fails to allege one compliance with Article 28.01 of this Code. element of an offense or whether it contains additional An indictment, therefore, must, to be constitutionally information that may indicate innocence. Thus, regardless valid, be a written instrument which charges "a person" of the inclusion of factual allegations that arguably with "the commission of an offense." An indictment evidence appellant's innocence, there is no doubt that the serves two functions. First, the filing of an indictment is State intended to accuse appellant of indecency with a what vests the trial court with jurisdiction over a felony child, and appellant does not claim otherwise. offense. Labelle v. State, 720 S.W.2d 101, 106 The judgment of the court of appeals is therefore (Tex.Crim.App. 1986); Thompson v. State, 697 S.W.2d affirmed. 413, 415 (Tex.Crim.App. 1985); King v. State, 473 S.W.2d 43, 47 (Tex.Crim.App. 1971). Second, it gives [**13] MEYERS, Judge notice to the defendant of the offense of which he has been charged so that he can prepare a defense. Saathoff EN BANC v. State, 891 S.W.2d 264, 266 (Tex.Crim.App. 1994); Evans v. State, 623 S.W.2d 924, 925 (Tex.Crim.App. DELIVERED: October 8, 1997 1981). CONCUR BY: MANSFIELD; Womack In Cook v. State, 902 S.W.2d 471 (Tex.Crim.App. Page 5 956 S.W.2d 547, *552; 1997 Tex. Crim. App. LEXIS 76, **14

1995), we held that a written instrument which fails to In the present case, the indictment contains the charge "a person" with an offense is not an indictment as essential elements of the offense of indecency with a defined by Article V, § 12(b) and Article I, Section 10 of child. Tex. Penal Code § 21.11(a)(1). It charges appellant the Texas Constitution. 1 We held: with that offense, and meets all of the requirements to be a facially valid indictment. The indictment describes the 1 In Cook the offense charged was theft of over sexual contact between appellant and the complainant as $ 20,000 in United States currency. The charging consisting only of contact between the complainant's instrument properly described the offense charge [**17] legs and appellant's penis. Appellant contends the but failed to name the person charged with said indictment is constitutionally void ab initio because legs offense. are not referenced in the definition of "sexual contact" under Texas Penal Code § 21.01(2). This contention is [**15] Accordingly, to constitute an indictment as without merit. 2 As correctly stated in the [*553] required by Article V, § 12(b) and Article I, Section 10, a opinion of the Court, Studer and Cook require an charging instrument must at least charge "a person" with indictment merely to charge "a person" with "the the "commission of an offense." If the charging commission of an offense" to satisfy Article V, § 12. An instrument completely fails to charge "a person" then it is indictment is not constitutionally defective merely not an indictment and does not invest the trial court with because it fails to allege one or more elements of the jurisdiction. Moreover, because a valid indictment is charged offense or contains language, as here, that may essential for jurisdiction, the lack of same is not subject indicate innocence. Furthermore, appellant does not to waiver under Article 1.14(b) due to a failure to make a demonstrate the indictment was so defective as to deny timely objection to the indictment. Cook, supra, at him the ability to prepare his defense and thereby denied 479-480 (citations and footnotes omitted). him of his right to due process and due course of law under Article I, Section 19 of the Texas Constitution. See Therefore, an indictment which fails to name "a Adams v. Texas, 707 S.W.2d 900 (Tex.Crim.App. 1986). person" is not an indictment under the Texas Constitution and its validity may be challenged on appeal even if no 2 This language may well have been timely objection under Article 1.14(b) to it was made successfully challenged via a timely motion to before the date on which appellant's trial commenced. quash under Article 1.14(b) as being defective. Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. [**18] With these comments, I join the opinion of 1990), addresses the second requirement under the Texas the Court. Constitution that must be met for an indictment to qualify as such: that it "charge an offense." In Studer, this Court MANSFIELD, J. held that while an indictment, to be valid, must charge "an offense," it does not have [**16] to allege all of the DELIVERED OCTOBER 8, 1997 elements of that offense for it to pass constitutional muster. The failure to include one or more elements of EN BANC the offense in the indictment, while a defect of substance, CONCURRING OPINION ON APPELLANT'S is not a defect of constitutional magnitude causing the indictment not to be an indictment under Texas PETITION FOR DISCRETIONARY REVIEW Constitution Article V, § 12 provided the indictment charges an identifiable offense under the Texas Penal Womack, Judge Code. In effect, an indictment which merely omits one or more elements of the offense charged is defective as The question in this case is whether the appellant, being incomplete; such defects are waived if not timely who did not object to the indictment before trial, may raised in the manner prescribed under Article 1.14(b). raise on appeal a claim that the indictment does not Studer, supra, at 268; Cook, supra, at 477; Rodriguez v. charge an offense. I believe that he may not. The Court State, 799 S.W.2d 301, 303 (Tex.Crim.App. 1990); Ex holds that he may, because some indictments are not parte Morris, 800 S.W.2d 225, 227 (Tex.Crim.App. indictments, thereby resurrecting the doctrine of the 1990). fundamentally defective indictment. Page 6 956 S.W.2d 547, *553; 1997 Tex. Crim. App. LEXIS 76, **18

On June 21, 1994 this indictment was presented: This Court's predecessor, the Court of Appeals, held in its first term that an appeal could be based on an error IN THE NAME AND BY AUTHORITY OF THE in the substance of an indictment to which no objection STATE OF TEXAS: had been made at trial.

The duly organized Grand Jury of Harris County, Whatever is essential to the gravamen of the Texas, presents in the District Court of Harris County, indictment must be set out particularly, and whenever it Texas, that in Harris County, Texas, RUBEN DURON, clearly appears in the record that the defendant has been JR., hereafter styled the Defendant, on or about APRIL convicted on an indictment that is clearly defective in 2, 1994, did then and there unlawfully, with intent to substance, although, as in the present case, neither arouse the sexual desire of the Defendant, have sexual exception, motion, nor assignment of error is presented contact with [A.B.], hereafter styled the Complainant, a on behalf of appellant, it will be held insufficient to child under the age of seventeen years and not his spouse, support a conviction. by rubbing his penis between [A.B.'s] legs, White v. State, 1 Texas Ct. App. 211, 215 (1876) AGAINST THE PEACE AND DIGNITY [**19] (burglary indictment failed to set out the elements of the OF THE STATE. intended theft). Eventually this Court held that a judgment based on such an indictment was "void, rather FOREPERSON 177TH than [*554] voidable," [**21] and could be attacked for the first time in collateral proceedings as well as [signature] appeals. Standley v. State, 517 S.W.2d 538, 541 (Tex. Cr. FOREMAN OF THE GRAND JURY App. 1975). Such indictments were "fundamentally defective." Ibid. Untold thousands of judgments were The appellant made no motion to set aside, 1 reversed or set aside for pleading errors which had not exception to, 2 or other objection to, the indictment. been pointed out to the trial court.

1 Tex. Code Crim. Proc. art. 27.03. Legislative attempts to reform pleading practice were 2 Tex. Code Crim. Proc. arts. 27.08 & 27.09. unavailing. The Court of Appeals held that the constitutional requirement of an "indictment" 3 meant an On September 22, 1994 the appellant waived his indictment that was pleaded under the practice at the time right to trial by jury with the consent of the State; he the Constitution of 1876 was adopted -- that is, one that pleaded guilty, and he made a written, judicial confession had all the essential elements. Williams v. State, 12 in the terms of the indictment. There was no agreement Texas Ct. App. 395 (1882). Therefore an indictment that that the State would recommend a certain punishment or did not charge an offense was not an "indictment" in restrict its argument. The appellant filed a written motion terms of the constitution. 4 for community supervision. The case was continued to December 9. A pre-sentence investigation report was 3 Tex. Const. art. I, § 10. prepared. On December 9, 1994 the court found the 4 See also Smis v. State, 43 Tex. 521 (1875) appellant guilty and, after hearing evidence and argument (indictment also required by Tex. Const. art V, § and considering the pre-sentence report, sentenced the 12 to conclude "Against the peace and dignity of appellant to two years' imprisonment. The appellant gave the State"). notice of appeal and remained at large on appeal bond. The appellant [**22] makes the same argument in The appellant's [**20] first point of error was that this case: the indictment failed to allege the offense of indecency with a child. A divided panel of the court of appeals held An indictment must charge an offense. The Texas that the appellant waived his claim because he did not Constitution says so. See Cook v. State, 902 S.W.2d 471, object before trial. Duron v. State, 915 S.W.2d 920 (Tex. 477 (Tex. Cr. App. 1995), citing Studer v. State, 799 App. -- Houston [1st] 1996). We granted discretionary S.W.2d 263, 272 (Tex. Cr. App. 1990). Here the review on the question of waiver. indictment on its face does not charge a violation of Section 21.11, but rather charges specific conduct which Page 7 956 S.W.2d 547, *554; 1997 Tex. Crim. App. LEXIS 76, **22

is not within the scope of "sexual conduct." The Court says that "the meaning and effect of this statute were unclear." Ante at 956 S.W.2d 547, 548. There Appellant's Brief at 21-22. As another court said in is nothing unclear about it. As we held in Studer v. State, response to an argument that the law was not changed by supra, the constitutional amendment and its a constitutional amendment, "The people of the state accompanying legislation mean that a defendant waives adopted the amendment for the purpose of ridding the the right to appeal a defect of substance in an indictment state of the incubus which the construction contended for if he does not raise an objection before trial: had saddled upon it." Harris County v. Stewart, 91 Tex. 133, , 41 S.W. 650, 655 (1897). [*555] When Art. V., § 12 is read in conjunction with the code provisions regulating the practices and The same argument that the appellant presents was procedures governing charging instruments, it is clear the rejected in Studer v. State, supra. This Court held that the amendment to [Code of Criminal Procedure] Art. 1.14 appellant's argument cannot prevail after the 1985 did not change what constitutes a substance defect, but amendment to Article V, Section 12(b) of the Texas rather only its effect. The change in Art. 1.14(b) requires, Constitution, which now reads: among other things, that substance exceptions be raised pre-trial or otherwise the accused has forfeited his right to An indictment is a written instrument presented to a raise the objection on appeal or by collateral [**25] court by a grand jury charging a person with the attack. If omitting an element from an indictment is still a commission of an offense. An information is a written defect of substance in an indictment, it naturally follows [**23] instrument presented to a court by an attorney for that the indictment is still an indictment despite the the State charging a person with the commission of an omission of that element. offense. The practice and procedures relating to the use of indictments and informations, including their contents, Studer v. State, supra, at 268. amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information The Court's resurrection of the to a court invests the court with jurisdiction of the cause. fundamentally-defective indictment doctrine is made in complete disregard of the will of the people, which they The amendment was specifically intended to undo have expressed directly through amendment of the the doctrine of the fundamentally defective indictment, as Constitution and indirectly through the enactment of this Court explained in detail in Studer v. State, supra, at Article 1.14. 268-72. "In conclusion then, the language in Art. V, § 12, 'charging a person with the commission of an offense,' I do not know what the people of this state, their does not mean, under this analysis, that each element of legislators, and their governor can do to eliminate this the offense must be alleged in order to have an indictment pernicious doctrine. The argument that an indictment is or information as contemplated by Art V, § 12." Id. at not an indictment if it has a defect seems irresistible. I 272. believe that if this Court were abolished, its chambers demolished, the ground plowed up, and the site paved Legislation which accompanied the constitutional over, one day a crack would appear in the concrete, and amendment enacted Tex. Code. Crim. Proc. art. 1.14(b): through that crack a black-robed arm would thrust an opinion that says, "We hold that the indictment in this If the defendant does not object to a defect, error, or case was not an indictment." irregularity of form or substance in an indictment or information before the date on which the trial on the The Court reaches the right result in this case, but for merits commences, he waives and forfeits the right to reasons that are obviously wrong. The conviction in this object [**24] to the defect, error, or irregularity and he case is affirmed, but make no mistake -- after it will may not raise the objection on appeal or in any other [**26] come the renewed deluge of convictions set aside postconviction proceeding. Nothing in this article for no good reason. prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in Womack, Judge compliance with Article 28.01 of this code. En banc Page 8 956 S.W.2d 547, *555; 1997 Tex. Crim. App. LEXIS 76, **26

Delivered: October 8, 1997 concurrence

Presiding Judge McCormick, and Keller, J., join this Page 1

BRYAN C. HARRISON, Appellant, v. THE STATE OF TEXAS, Appellee. JOHN G. BENAVIDES, Appellant, v. THE STATE OF TEXAS, Appellee.

CAUSE NUMBER 13-01-547-CR, CAUSE NUMBER 13-01-548-CR

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI

76 S.W.3d 537; 2002 Tex. App. LEXIS 1773

March 7, 2002, Delivered March 7, 2002, Filed

PRIOR HISTORY: [**1] On appeal from the 36th court erred by denying their motions to quash the District Court of Arkansas County, Texas. indictments. Because the point of error raised by each appellant and the facts surrounding each appellant's DISPOSITION: AFFIRMED. appeal are identical, we will address them together in this one opinion. We affirm.

COUNSEL: ATTORNEY FOR APPELLANT: David L. 1 Appellants were hunting together when the Cunningham, Killian, Hayden & Cunningham, San events leading to their indictment occurred. The Antonio, TX. record indicates that, while hunting on San Jose Island, Aransas County, Texas, Harrison shot and ATTORNEY FOR APPELLEE: Patrick L. Flanigan, killed a six-point white-tail buck and Benavides District Attorney, Sinton, TX. shot and killed a seven-point white-tail buck.

JUDGES: Before Justices Dorsey, Yanez, and Castillo. [**2] Appellants argue that the indictments in their Opinion by Justice Yanez. cases failed to allege: (1) appellants knew the property on which the offenses were committed was private property; OPINION BY: LINDA REYNA YANEZ (2) the landowner did not give consent to hunt, kill, or possess wildlife resources on the property; and (3) the OPINION appellants knew that the landowner had not consented. 2 We review a challenge to a trial court's ruling on a [*539] Opinion by Justice Yanez motion to quash an indictment under an abuse of discretion standard. Thomas v. State, 621 S.W.2d 158, Appellants were indicted for the state jail felony 163 (Tex. Crim. App. 1980). offense of taking a wildlife resource without the consent of the landowner. 1 See TEX. PARKS & WILD. CODE 2 With the exception of the defendants' names ANN. § 61.022 (Vernon Supp. 2002). Both appellants and cause numbers, the indictments are identical. moved to quash their indictments. When the court denied the appellants' motions, they pleaded nolo contendere. In In general, an indictment must plead any element one point of error, appellants now argue that the trial that must be proved at trial. See TEX. CODE CRIM. Page 2 76 S.W.3d 537, *539; 2002 Tex. App. LEXIS 1773, **2

PROC. ANN. art 21.03 (Vernon 1989); Green v. State, 4 Appellants argued in their motions to quash 951 S.W.2d 3, 4 (Tex. Crim. App. 1997). An indictment that the San Jose Island lacked signs or other must contain the elements of the offense charged, fairly markings "to identify that this land was not the inform the defendant of charges he must prepare to meet, property of the State of Texas." and enable the [**3] defendant to plead acquittal or conviction in bar to future prosecution for the same The indictments at issue state that the appellants "did offense. TEX. CODE CRIM. PROC. ANN. art 21.11 . . . intentionally, knowingly and recklessly hunt, kill and (Vernon 1989); Sanchez v. State, 928 S.W.2d 255, 259 possess a wildlife resource, to wit: one white-tailed deer, (Tex. App.-Houston [14th Dist.] 1996, no pet.). When on San Jose Island, without the consent of the construing an indictment, we read the indictment as a landowner's agent . . . ." The indictments correctly charge whole, applying practical, rather than technical the appellants with hunting and possessing a wildlife considerations. Oliver v. State, 692 S.W.2d 712, 714 resource in a county or place in the state, without the (Tex. Crim. App. 1985); Soto v. State, 623 S.W.2d 938, consent of the landowner's agent. See TEX. PARKS & 939 (Tex. Crim. App. 1981). WILD. CODE ANN. § 61.022 (Vernon 2002).

Under the Texas Parks and Wildlife Code, no one Appellants contend that the State must prove that "may hunt or catch by any means or method or possess a appellants knew they were hunting without the consent of wildlife resource at any time and at any place covered by the landowner's agent and, appellants argue, the this chapter unless the owner of the land or water, or the indictments do not allege that they were hunting without owner's agent, consents." TEX. PARKS & WILD. CODE the consent of the landowner or the owner's agent. ANN. § 61.022(a) (Vernon Supp. 2002) (emphasis The State concedes that, had these cases gone to trial, added). Chapter 61 of the Texas Parks and Wildlife Code it would have been required to prove that the appellants does not apply solely to [*540] private property but knew they were acting without [**6] the consent of the applies to every "county" and "place" in the state. TEX. landowner, or landowner's agent. Both the State and the PARKS & WILD. CODE ANN. § 61.003 (Vernon Supp. appellants agree that when otherwise innocent behavior 2002). On its face, the code prohibits [**4] hunting becomes criminal because of the circumstances under anywhere within the State of Texas without the consent which the behavior occurs, a culpable mental state is of the owner of the land or the owner's agent. This would required as to those circumstances, citing McQueen v. apply to public lands also. 3 Thus, a person needs the State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In consent of a landowner, or the landowner's agent, to hunt McQueen, a case involving the unauthorized use of a anywhere in Texas. Therefore, an indictment for the motor vehicle, the court of criminal appeals recognized violation of section 61.022 need not allege that the that conduct may be rendered criminal based on: (1) the offense took place on private property: the indictment nature of the conduct; (2) the result of the conduct; or (3) need only allege that the person hunted, caught or the circumstances surrounding the conduct. Id. The court possessed a wildlife resource in a county or place in of criminal appeals recognized that the act of using a Texas, and was acting without the consent of the motor vehicle is not criminal by nature, and further, the landowner. 4 See TEX. CODE CRIM. PROC. ANN. art section of the penal code dealing with unauthorized use 21.03 (Vernon 1989); Green, 951 S.W.2d at 4. of a motor vehicle does not prohibit any specific result of 3 The Parks and Wildlife Code provides the the use of a motor vehicle. Id. The McQueen court held means by which a person may acquire permission that what renders the use of another person's motor from the state to hunt on property owned by the vehicle a criminal act is "that it is done under certain state. See TEX. PARKS & WILD. CODE ANN. § circumstances, i.e., without the owner's permission." Id. 62.062 (Vernon Supp. 2002)(Parks and Wildlife The court of criminal appeals held that "where otherwise Commission may prescribe a hunting season for innocent behavior becomes criminal [**7] because of the state parks, forts or sites); see also TEX. PARKS circumstances under which it is done, a culpable mental & WILD. CODE ANN § 81.403 (Vernon Supp. state is required as to those surrounding circumstances." 2002) (discussing permitting of hunting on state McQueen, 781 S.W.2d at 603 (citing McClain v. State, wildlife management areas). 687 S.W.2d 350, 354 [*541] (Tex. Crim. App. 1985) [**5] (what separates lawful acquisitive conduct from theft is Page 3 76 S.W.3d 537, *541; 2002 Tex. App. LEXIS 1773, **7

knowledge of a circumstance surrounding the conduct, render it fatally defective. Soto, 623 S.W.2d at 939. In that it is without the owner's consent)). Soto, the court of criminal appeals held that an indictment charging aggravated assault was not fatally defective for We agree that the crime of taking wildlife resources alleging the culpable mental state "recklessly" as well as without the consent of the landowner under section the statutorily required culpable mental states 61.022 requires a culpable mental state. Hunting is not, "intentionally" or "knowingly." Id.; see also Kirk v. by its nature, a criminal act, and section 61.022 does not State, 643 S.W.2d 190, 193 (Tex. App.-Austin 1982, pet. prohibit any specific result. What makes hunting or ref'd) (applying Soto [**9] ; indictment which included possessing a wildlife resource a criminal act under "should have been aware," which was not a culpable section 61.022 is a circumstance; that it is done without mental state prescribed for the offense, not fatally the landowner's consent. Thus, it follows that a person, to defective). In the appeals now before this Court, as in be convicted under section 61.022, must be shown to Soto, no essential element of culpability was omitted in have been acting without the consent of the owner, or the the indictments since the required mental states were owner's agent, and must have known that he was acting alleged. See Soto, 623 S.W.2d at 939.; see also Kirk, 643 without the owner's consent. However, this does not S.W.2d at 193. The indictments at issue sufficiently change the outcome of this case. allege the elements of the offense charged, including the culpable mental state, fairly informed appellants of the The indictments in question sufficiently state the charges, and enabled the appellants to plead acquittal or culpable mental states being alleged. A person [**8] conviction in bar to future prosecution for the same violates section 61.022 by the intentional act of hunting, offenses. catching, or possessing a wildlife resource with the knowledge that he does not have the consent of the We hold the trial court did not abuse its discretion by landowner, or landowner's agent. TEX. PARKS & WILD. refusing to quash the indictments in the cases now before CODE ANN. § 61.022(a) (Vernon Supp. 2002). The this Court. We overrule the sole point of error raised by indictments alleged that the appellants acted the appellants. The judgments of the trial court are "intentionally, knowingly and recklessly" and without the AFFIRMED. consent of the landowner's agent. The indictments correctly pleaded the mental states necessary for the LINDA REYNA YANEZ offense that the State would have been required to prove at trial. Justice

Although appellants do not challenge the inclusion of Opinion delivered and filed this the "recklessly" in the indictment, we note that the incorrect 7th day of March, 2002. inclusion of "recklessly" in the indictment does not Page 1

J. C. HUTCH, Appellant v. THE STATE OF TEXAS, Appellee

NO. 1231-94

922 S.W.2d 166; 1996 Tex. Crim. App. LEXIS 37

April 3, 1996, Delivered

PRIOR HISTORY: [**1] Petition for Discretionary A. Review from the FIRST Court of Appeals. 351st District Court of Harris County. The Trial Court

According to the State's testimony, Houston police COUNSEL: Frances M. Northcutt, Houston. officers stopped a vehicle, in which appellant was a front-seat passenger, because neither appellant nor the Alan Curry, Assist. DA, Houston. driver were wearing seat belts. As the officers approached the vehicle, appellant leaned forward and JUDGES: BAIRD, Judge, Clinton, J., concurs in the dropped an object on the floor of the car. This object was result. KELLER, J., McCormick, P.J., White and later determined to be cocaine. However, appellant Mansfield, J.J. join. testified [**2] he and the driver were wearing their seat belts at the time of the stop. OPINION BY: BAIRD Because appellant's testimony contradicted that of OPINION the officers, the legality of the stop was called into question. Accordingly, the trial judge instructed the jury as required by Tex. Code Crim. Proc. Ann. art. 38.23 that [*169] OPINION ON APPELLANT'S PETITION FOR illegally obtained evidence was not admissible: DISCRETIONARY REVIEW You are instructed that no evidence A jury convicted appellant of possession of cocaine obtained by an officer or other person in and the trial judge assessed punishment at forty years violation of any provisions of the confinement. The Court of Appeals affirmed. Hutch v. Constitution or laws of the State of Texas, State, 881 S.W.2d 92 (Tex. App.--Houston [1st] 1994). or of the Constitution or laws of the We granted review to consider whether the Court of United States of America, shall be Appeals correctly applied the test for determining admitted in evidence against the accused whether an erroneous jury charge caused egregious harm. on the trial of any criminal case. We will reverse. The trial judge then charged the jury as follows: I. An officer is permitted, to make a temporary investigative detention of a Page 2 922 S.W.2d 166, *169; 1996 Tex. Crim. App. LEXIS 37, **2

motorist if the officer has a reasonable Appellant accurately points out that the suspicion that some activity out of the court misstated the law. The police could ordinary has occurred, that the person lawfully detain if appellant were not detained is connected with such activity, wearing a seatbelt, and the police could and that there is some indication that the not lawfully detain if appellant were activity is related to crime or a criminal wearing a seatbelt. The statement that a offense. Now bearing in mind these detention was illegal if appellant were not instructions, if you find from the evidence wearing a seatbelt is unquestionably that on the occasion in question the driver wrong. (Citation omitted.) and front seat passenger were [**3] not wearing seat belts immediately preceding Hutch, 881 S.W.2d at 94. the stop and detention by the police officer, or you have a reasonable doubt Because there was no objection to the erroneous jury thereof, then such stopping of the accused charge, the Court of Appeals purported to conduct the would be illegal, and if you find the facts harm analysis prescribed by Bailey v. State, 867 S.W.2d so to be, or if you have a reasonable doubt 42, 43 (Tex.Cr.App. 1993), and Almanza v. State, 686 thereof, you will disregard the testimony S.W.2d 157 (Tex.Cr.App. 1985). The Court concluded no of the officer relative to his stopping the egregious harm was shown because the jury was correctly defendant and his conclusions drawn as a instructed elsewhere in the jury charge, and further, result thereof and you will not consider because the prosecutor and defense attorney correctly such evidence for any purpose whatsoever. argued the law. Hutch, 881 S.W.2d at 94-95. The Court 1 reasoned the correct general instruction, coupled with the arguments of the attorneys, cured [**5] any error resulting from the incorrect application of the law to the facts: 1 All emphasis is supplied unless otherwise indicated. ... It was clear to the jurors that they were not to consider the evidence seized if Near its end, the jury charge stated: they found that appellant and the driver were wearing seat belts, or if they had a You are the exclusive judges of the facts reasonable doubt about that fact. proved, of the credibility of the witnesses and the weight to be given their testimony, Id., 881 S.W.2d at 95 (emphasis in original). but the law you shall receive in these [*170] written instructions, and you must Justice O'Connor dissented, arguing the misstatement be governed thereby. 2 of the law constituted egregious harm and deprived appellant of a fair trial. Id., 881 S.W.2d at 96. Justice O'Connor found nothing in the record to demonstrate the jury correctly understood or applied the law, and argued: 2 See, Tex. Code Crim. Proc. Ann. art. 36.13. "It cannot be harmless error to instruct the jury that the [**4] Appellant did not object to the jury charge. law is the opposite of what it actually is." Ibid. Appellant Id. petitioned this Court for review of the Court of Appeals' decision. The State did not file a cross-petition. B. II. The Court of Appeals The Almanza Standard of Harm On appeal, appellant contended the charge was not a correct statement of the law. The Court of Appeals The purpose of the jury charge is to inform the jury of the agreed: applicable law and guide them in its application to the case: Page 3 922 S.W.2d 166, *170; 1996 Tex. Crim. App. LEXIS 37, **5

"valuable right," or "vitally affect a defensive theory." It is not the function of the charge Id., 686 S.W.2d at 172 (citations omitted). Moreover, we merely to avoid misleading or confusing do not require direct evidence of harm to establish the jury; it is the function of the charge to egregious harm. Castillo-Fuentes [**8] v. State, 707 lead and to prevent confusion. A [**6] S.W.2d 559, 563, n. 2 (Tex.Cr.App. 1986). charge that does not apply the law to the facts fails to lead the jury to the threshold In either event, when conducting a harm analysis the of its duty: to decide those fact issues. reviewing court may consider the following four factors: 1) the charge itself; 2) the state of the evidence including Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App. 1977). contested issues and the weight of the probative evidence; The jury charge must allow the jury to determine the 3) arguments of counsel; and, 4) any other relevant defendant's guilt in light of the evidence and the law. information revealed by the record of the trial as a whole. Benson v. State, 661 S.W.2d 708, 715 (Tex. Cr.App. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App. 1993) 1982). And, absent evidence to the contrary, we presume (citing Almanza). the jury followed the law provided by the charge. See, B. Rose v. State, 752 S.W.2d 529, 554 (Tex.Cr.App. 1987) (op'n on reh'g); and, Cobarrubio v. State, 675 S.W.2d Because appellant did not preserve the jury charge 749, 752 (Tex.Cr.App. 1983). error, resolution of the instant case requires an egregious harm analysis. Egregious harm is a difficult standard to A. prove and such a determination must be done on a In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. case-by-case basis. We have undertaken that task on 1985) (op'n on reh'g), the defendant raised for the first several occasions to determine whether the courts of time on appeal a variance between the jury charge and his appeals correctly applied the analysis required by indictment. Id., 686 S.W.2d at 159. The Court of Appeals Almanza. found error in the charge and reversed. However, we For example, in Ruiz v. State, 753 S.W.2d 681, 686 reviewed that decision and, in the process, dispensed with (Tex.Cr.App. 1988), the Court focused on the charge the practice of automatically reversing upon a finding of itself to determine egregious harm. Ruiz was charged jury charge error. with murder but the record contained some evidence that In Almanza, we held that Tex. Code Crim. Proc. Ann. Ruiz may be guilty only of the lesser included offense of art. 36.19 prescribed the manner in which jury charge voluntary manslaughter. However, the trial judge [**9] error is reviewed on appeal. [**7] Almanza, 686 S.W.2d failed to instruct the jury on the State's burden to prove at 171. First, an appellate court must determine whether the Ruiz's actions were not the result of sudden passion error exists in the jury charge. Second, the appellate court arising from an adequate cause in the murder application must determine whether sufficient harm was caused by paragraph. We held Ruiz suffered egregious harm the [*171] error to require reversal. Arline v. State, 721 because a possibility existed that the jury was confused S.W.2d 348, 351 (Tex.Cr.App. 1986). The degree of harm and misled into ending their deliberations under the necessary for reversal depends upon whether the error incorrect instruction on the law. The charge lowered the was preserved. Ibid. Error properly preserved by an State's burden of proof, creating the possibility Ruiz was objection to the charge will require reversal "as long as convicted on less than all the elements of murder. Id., the error is not harmless." Almanza, 686 S.W.2d at 171. 753 S.W.2d at 684. We have interpreted this to mean any harm, regardless of In Manning v. State, 730 S.W.2d 744 (Tex.Cr.App. degree, is sufficient to require reversal. Arline, 721 1987), a jury trial was held to determine the competency S.W.2d at 351. However, when the charging error is not of the defendant. Id., 730 S.W.2d at 745. Although proof preserved a greater degree of harm is required. This of a prior, unvacated finding of incompetency was standard of harm is described as "egregious harm." produced, the trial judge instructed the jury that the State Almanza, 686 S.W.2d at 171. We explained that errors had the burden of proving the defendant competent to which result in egregious harm are those which affect stand trial by a preponderance of the evidence. We held "the very basis of the case," deprive the defendant of a the charge incorrectly instructed the jury on the State's Page 4 922 S.W.2d 166, *171; 1996 Tex. Crim. App. LEXIS 37, **9

burden of proof and found egregious harm: Williams v. State, 851 S.W.2d 282, 289 (Tex.Cr.App. 1993) (No egregious harm where error related to In light of the existing adjudication of incidental theory of defense.). incompetency ... we cannot say that appellant was not harmed by the jury's At times we look to any other relevant information consideration of the evidence under a revealed by the record of the trial as a whole to determine lesser burden [**10] of proof than should egregious harm. For example, in Saunders v. State, 817 have been given. S.W.2d 688 (Tex.Cr.App. 1991), the defendant was convicted of conspiracy to commit arson upon the Id., 730 S.W.2d at 750. Thus, in some cases, the charge testimony of an accomplice witness. However, the jury itself will demonstrate egregious harm. was not instructed that accomplice testimony must be corroborated. Saunders, 817 S.W.2d at 689. See, Tex. On the same day Almanza was delivered, we decided [**12] Code Crim. Proc. Ann. art. 38.14. We reviewed Kucha v. State, 686 S.W.2d 154 (Tex.Cr.App. 1985), the record and determined the accomplice's testimony wherein we considered the "state of the evidence" prong was critical to the outcome of the trial. We held failure to of the Almanza analysis. In Kucha, the State sought to instruct the jury on the need to corroborate the enhance the defendant's punishment by proving he was accomplice's testimony effectively denied the defendant a an habitual criminal. The jury charge correctly instructed fair trial and, thus, constituted egregious harm. Saunders, the jury on the range of punishment if they determined 817 S.W.2d at 693. the defendant was an habitual criminal, but failed to instruct the jury otherwise. Id., 686 S.W.2d at 155. We III. held such error was not egregious: Application of the Law ... The fact of the prior convictions was not a contested issue at all. Appellant's Turning to the instant case, the Court of Appeals was plea of "not true" only put the State to its required to determine whether the error affected the very [*172] proof. Considering that the basis of the case, deprived the defendant of a valuable evidence of the prior convictions was right, or vitally affected his defensive theory -- in short, undisputed, uncontradicted, and seemed to whether appellant suffered egregious harm. Almanza, have been taken almost as a "given" by the 686 S.W.2d at 172. parties, we hold that the failure of the A. court to charge on the range of punishment if the enhancements were found to be The application paragraph instructed the jury to untrue, was not so harmful that it deprived ignore the police officer's testimony and resulting appellant of a fair and impartial trial. evidence if the jury believed the stop and detention of [**11] If the evidence of the prior appellant occurred because seat belts were not being conviction had not been so strong, or if worn. As the Court of Appeals noted, the instruction was appellant had contested it in some fashion, "unquestionably wrong." Hutch, 881 S.W.2d at 94. As this issue would not be so clearcut. But, noted by Justice O'Connor, the instruction was 180 from the record it appears that all parties, degrees opposite of what it should have been. 881 including appellant, assumed the fact of S.W.2d at 96. Nevertheless, the Court of Appeals held the the prior conviction and did not dispute its [**13] otherwise correct instructions within the jury truth. Also, the prior was proven beyond a charge were sufficient to prevent any misunderstanding reasonable doubt by the State. In light of or confusion. The Court of Appeals noted that nothing in the record we hold that the error was not the record indicates the jury misunderstood the applicable fundamental. law. 881 S.W.2d at 94-95. This holding is erroneous for at least two reasons. Id., at 156. Thus, in Kucha, we held that one of our considerations in the determination of egregious harm is First, the Court of Appeals did not consider the whether the error related to a "contested issue." See also, appellate presumption that the jury is presumed to have Page 5 922 S.W.2d 166, *172; 1996 Tex. Crim. App. LEXIS 37, **13

understood and followed the court's charge absent S.W.2d at 685. 5 Compare, Kucha, 686 S.W.2d at 156; evidence to the contrary. Rose, supra; Cobarrubio, supra; and, Williams, 851 S.W.2d at 289. Whether appellant was see generally, Gardner v. State, 730 S.W.2d 675, 696 to be convicted depended upon whose testimony the jury (Tex.Cr.App. 1987). Under this presumption, we must found credible. Consequently, we hold the Court of presume the jury followed the erroneous instruction Appeals' analysis under the second Almanza factor was which authorized the stop if appellant was wearing a seat erroneous. belt. In fact the opposite is true; such a stop would have been illegal. Under the erroneous instruction, the only 3 The Court of Appeals stated: "For the jury to way the jury could have convicted was by using illegally have been confused on the law would have obtained evidence. required it to have ignored both [the State's and appellant's] unequivocal evidence." Hutch, 881 Second, it is important to note that the error occurred S.W.2d at 94. Moreover, Judge Keller argues that in the application paragraph. The application paragraph is the jury charge authorized acquittal on the wrong that portion of the charge which authorizes the jury to act. basis, but did not authorize conviction on the Jones v. State, 815 S.W.2d 667, 669 (Tex.Cr.App. 1991). wrong basis. Ante, at ___, slip op. pg. 1. This Consequently, [**14] even though the charge elsewhere argument is not supported by the record. As noted contained a correct statement of art. 38.23, that above, the issue of the legality of the stop was instruction did not authorize the jury to consider or not hotly contested. Because of the way the issue was consider the evidence obtained from appellant's stop. It is developed in this case the jury necessarily not sufficient for the jury to receive an abstract assumed the only way the contraband could be instruction on the law. Williams, 547 S.W.2d at 20. An considered was if appellant was wearing a seat abstract [*173] charge does not inform the jury of what belt. facts, if found by it, would permit the jury's consideration [**16] of the contested evidence. Ibid. Rather, the authority to 4 If the officer's testimony as to the stop being consider or not consider the evidence obtained from legal was uncontroverted, no factual issue would appellant's stop came solely from the erroneous arise and no instruction would be required. By the application paragraph. The Court of Appeals did not same token, if the defendant's testimony as to the consider that the correct statement of art. 38.23 did not stop being illegal were not controverted, the trial authorize the jury to correctly apply the law. judge would not have admitted the evidence. Tex. Consequently, the Court of Appeals' analysis under the Code Crim. Proc. Ann. art. 38.23. first factor of Almanza was erroneous. 5 In Ruiz we noted that the testimony on the defensive theory was "substantial." Id., 753 B. S.W.2d at 685. In the instant case, the testimony as to the reason for appellant's stop was obviously The second factor of the Almanza analysis requires a substantial. determination of whether the jury charge error related to a contested issue. However, the Court of Appeals Finally, in our analysis of this factor, after reviewing considered whether the testimony was equivocal. 3 This the entire record, we find nothing to indicate the jury did was erroneous. Under an Almanza analysis, there is no not follow the trial judge's erroneous instruction. requirement that the testimony be equivocal; in fact parties [**15] often present unequivocal evidence to C. support their respective sides of the case. Instead, this factor asks if the jury charge error related to a contested The next factor in our analysis is the jury argument. issue. In the instant case, the issue was obviously Bailey, 867 S.W.2d at 43. Although neither party contested, otherwise an instruction would not have been corrected the erroneous instruction, the parties correctly required. Thomas v. State, 723 S.W.2d 696, 707 argued their respective positions. 6 In other words, the (Tex.Cr.App. 1986) (When a factual dispute arises as to State argued that the stop of appellant was legal and that whether the evidence was legally obtained, a charge on the evidence should be considered while appellant argued the issue is required.). 4 In fact, the legality of the stop the stop was illegal and the evidence [**17] should not was the crux of appellant's case. Accord, Ruiz, 753 be considered. However, these were only small portions of the arguments; the bulk of the arguments were devoted Page 6 922 S.W.2d 166, *173; 1996 Tex. Crim. App. LEXIS 37, **17

to the issue of the credibility of the witnesses. contest, where the persuasiveness of competing applications of the 6 Judge Keller agrees that the jury charge was law to the facts determines guilt or erroneous but contends that it did not indicate the innocence. ... "converse." The jury arguments, appellate record and the opinion of the Court of Appeals belie this contention. Hutch, 881 S.W.2d at 94. [**19] D.

It is axiomatic that jury arguments are not evidence For these reasons we hold the Court of Appeals and the jury may not consider them as such. In the instant incorrectly applied the egregious harm analysis of case, the trial judge, immediately after reading the jury Almanza and erred in concluding the error did not vitally charge, stated: "Please remember that you have been affect appellant's defensive theory. 9 instructed that what the attorneys say is not evidence in this case." Nor do jury arguments serve to instruct the 9 Throughout part III of this opinion we have jury on the law. In the instant case, the jury was identified and carefully discussed how the Court instructed that they were to be governed by the law as set of Appeals erred in conducting its Almanza forth in the jury charge. See, I A, supra. analysis. Judge Keller, in dissent, disagrees but does not suggest how this section of our opinion The United States Supreme Court, when faced with is in error. the assertion that a [*174] prosecutor's argument on a presumption [**18] of innocence cures a jury charge IV. deficient in that instruction, wrote "arguments of counsel Conclusion cannot substitute for instructions by the court." Taylor v. Kentucky, 436 U.S. 478, 488-489, 98 S. Ct. 1930, 1936, A defendant is entitled to be convicted upon a correct 56 L. Ed. 2d 468 (1978). And, we have similarly noted statement of the law. In the instant case, the erroneous that "jury argument is not a substitute for a proper jury instructions had the effect of instructing the jury on the charge." Arline, 721 S.W.2d at 353, n. 8. 7 Moreover, in opposite of what the law actually is. Consequently, a jury Ruiz, supra, we held that jury argument is never alone a who diligently followed the trial judge's instructions, as controlling factor in an Almanza harm analysis. Ruiz, we must presume the jury did, would render a verdict in 753 S.W.2d at 686. In light of the fact that the jury conflict with the Fourth Amendment and art. 38.23 charge's application paragraph was so flawed as to charge because the conviction would be based upon illegally the jury on the opposite of what the law actually obtained evidence. The right to a trial by jury in criminal provides, and further that this was a hotly contested issue matters is among those fundamental [**20] rights at trial, we cannot conclude the error was "cured" by the guaranteed by our Constitutions. In order to effectuate jury arguments. Ruiz, supra. 8 this valuable right, there is a minimal requirement that the 7 In a slightly different context, we have held instructions to the jury not be exactly opposite of what the law actually is. that it is improper for attorneys to argue outside the court's charge. Burke v. State, 652 S.W.2d The judgment of the Court of Appeals is reversed 788, 790 (Tex.Cr.App. 1983); Davis v. State, 506 and the case is remanded to the trial court. S.W.2d 909 (Tex.Cr.App. 1974). 8 In Williams, 547 S.W.2d at 20, the Court BAIRD, Judge stated: Clinton, J., concurs in the result. ... To allow the jury to receive an application of the law to the facts (Delivered April 3, 1996) only from the partisan advocates En Banc without a neutral and unbiased instruction on the matter in the DISSENT BY: KELLER charge is to risk the degeneration of trial by jury to a debating Page 7 922 S.W.2d 166, *174; 1996 Tex. Crim. App. LEXIS 37, **20

DISSENT absent evidence to the contrary. Slip op.7. The majority "finds nothing [*175] to indicate the jury did not follow DISSENTING OPINION ON APPELLANT'S the trial judge's erroneous instruction." Slip op. 9. But we PETITION FOR DISCRETIONARY REVIEW know that the jury did not follow the erroneous part of the instruction -- to do so would have resulted in To understand why the majority is wrong, one need acquittal. The majority says, "The only way the jury only read the jury charge. Upon doing so it is apparent could have convicted was by using illegally obtained that, while the charge is erroneous, it is not erroneous in evidence." In fact, the only way the jury could have the way that the majority says it is. convicted was by disregarding the erroneous instruction and acting in accord with the rest of the jury charge and The charge erroneously instructed the jury to the jury arguments. disregard the officer's testimony if the jury believed that appellant was not wearing his seat belt. Thus, had the jury The Court of Appeals correctly applied the analysis believed that appellant was not wearing his seat belt, and set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. followed the instruction, the jury would have disregarded App. 1984) (op. on rehearing) and reached a conclusion the testimony and acquitted appellant. The charge did not "within a reasonable zone of disagreement." Montgomery instruct the jury as to the converse of the above. The v. State, 810 S.W.2d [**22] 372, 391 (Tex. Crim. App. charge did not tell the jury what to do if it believed that 1990) (op. on rehearing). I would affirm the judgments of appellant was wearing his seat belt. [**21] In other the Court of Appeals and the trial court. words, the jury charge authorized acquittal on the wrong basis, but did not authorize conviction on the wrong KELLER, J. basis. Thus, the majority is wrong when it says that the erroneous instruction "authorized the stop if appellant DELIVERED: April 3, 1996 was wearing a seat belt." Slip op.7. McCormick, P.J., White and Mansfield, J.J. join. As the majority says, there is an appellate presumption that the jury followed the court's charge Page 1

BEVERLY KIRKPATRICK, Appellant v. THE STATE OF TEXAS

No. PD-0873-07 and PD-0874-07

279 S.W.3d 324; 2009 Tex. Crim. App. LEXIS 378

March 18, 2009, Delivered

NOTICE: PUBLISH opinion and substitute the following opinion.

SUBSEQUENT HISTORY: On remand at Kirkpatrick Appellant was charged with several offenses by way v. State, 2009 Tex. App. LEXIS 7348 (Tex. App. Dallas, of three indictments. Only two of those indictments are Sept. 18, 2009) presently before us. 1 On appeal, the court of appeals found that the trial court had not acquired jurisdiction and PRIOR HISTORY: [**1] reversed appellant's convictions. We reverse the ON STATE'S PETITION FOR DISCRETIONARY judgment of the court of appeals as to both causes and REVIEW FROM THE FIFTH COURT OF APPEALS remand Cause No. 05-06-1230-CR so that the court of KAUFMAN COUNTY. appeals may resolve appellant's remaining issue. Kirkpatrick v. State, 2008 Tex. Crim. App. LEXIS 1568 (Tex. Crim. App., Dec. 17, 2008) 1 Pursuant to the third indictment, trial-court Kirkpatrick v. State, 2007 Tex. App. LEXIS 2905 (Tex. cause number 23337-86, appellant was convicted App. Dallas, Apr. 17, 2007) of falsely holding herself out as a lawyer and Kirkpatrick v. State, 2007 Tex. App. LEXIS 2906 (Tex. sentenced to six years' confinement. On appeal, App. Dallas, Apr. 17, 2007) the court of appeals held that the evidence was legally insufficient to sustain the conviction, reversed the trial court's judgment, and rendered a COUNSEL: For APPELLANT: DAN WOOD JR., judgment of acquittal. Kirkpatrick v. State, No. TERRELL. 05-06-01275-CR, 2007 Tex. App. LEXIS 2905 (Tex. App.--Dallas, delivered April 17, 2007, no For STATE: CARIANN ABRAMSON, ASST. D.A., pet.)(not designated for publication). No petition KAUFMAN. for discretionary [**2] review was filed regarding that case. JUDGES: JOHNSON, J., delivered the opinion for a unanimous Court. In indictment number 23290-86, appellant was charged with forgery and tampering with a governmental OPINION BY: JOHNSON record in three counts: count one-- publishing a forged writing, knowing it to be forged, with such writing OPINION purporting to be the act of Lance Rabenaldt, who did not authorize that act; [*325] count two--presenting a letter [*324] We withdraw our December 17, 2008 purporting to bear the signature of Warren Samuelson, Page 2 279 S.W.3d 324, *325; 2009 Tex. Crim. App. LEXIS 378, **2

with knowledge of its falsity and with intent that it be further held that "the indictment alleged Class A taken as a genuine governmental record; and count misdemeanor offenses of tampering with a governmental three--presenting a letter purporting to bear the signature record[,]" but "[t]he indictment in this case does not show of Chau Vo, with knowledge of its falsity and with intent on its face the State's intent to charge a felony or other that it be taken as a genuine governmental record. In offense for which the district court has jurisdiction." Id. indictment number 23338-86, a single count charged at *5. It also held that "because the indictment did not appellant with tampering with a governmental record by vest the district court with jurisdiction, appellant did not making a document, specifically a letter from Michael D. waive her complaint by [*326] failing to object prior to Grant attached to a motion for continuance, with the day of trial." Id. at *5-6. knowledge of its falsity and with intent that it be taken as a genuine governmental record. 3 The court of appeals did not discuss the single-count indictment, trial-court cause number After the state had presented its case-in-chief, 23338-86, which likewise charged appellant with appellant moved for an instructed verdict on the felony tampering with a government record, alleging that forgery count, asserting that the state had failed to prove she did "then and there make a document, to-wit: felony forgery because it had not alleged or proven [**3] [**5] a letter from Michael D. Grant attached to a any of the elements necessary to make the forgery a Motion for Continuance, with knowledge of its felony rather than a misdemeanor. The trial court agreed falsity and with intent that it be taken as a genuine and granted appellant's motion for instructed verdict as to governmental record." However, the court of count one of indictment number 23290-86. The trial court appeals's reasoning and analysis is applicable to overruled appellant's complaints as to the other the similar allegation in that indictment. allegations. The jury convicted appellant of the remaining alleged offenses, and the trial court sentenced her to two We granted the State Prosecuting Attorney's petition years' confinement on each of those counts, to be served for discretionary review, which raised three grounds for concurrently. review.

On appeal, appellant raised one issue in Cause No. 1) Did the Court of Appeals err by 05-06-01274-CR (trial-court Cause No. 23290-86), a concluding that the district court did not claim that the trial court did not have jurisdiction because have subject-matter jurisdiction of the appellant had been indicted for a misdemeanor in each of offense? the two indictments that are before us. She raised the same issue in Cause No. 05-06-01230-CR (trial-court 2) Where an offense can be charged Cause No. 23338-86), and she also raised an additional as either a felony or a misdemeanor, does issue that the court of appeals did not address because it the return of the indictment into a court found the first issue dispositive. 2 The court of appeals with subject-matter jurisdiction of only the held that the indictments failed to satisfy the felony offense indicate the State's intent to constitutional requirement of subject-matter jurisdiction charge the felony offense? and did not vest the district court with jurisdiction. 3) Is ambiguity or confusion about the Kirkpatrick v. State, 2007 Tex. App. LEXIS 2906, No. particular offense that has been charged 05-06-01230-CR, No. 05-06-01274-CR [**4] (Tex. [sic] the type of objection to an indictment App.--Dallas, delivered April 17, 2007, no pet.)(not that must be raised by a defendant prior to designated for publication). It therefore dismissed both the date of trial? cases for want of jurisdiction. Id. at *6.

2 "The trial court erred in overruling appellant's The Arguments of the Parties objection under the attorney-client privilege." The state, represented by the State Prosecuting The court of appeals noted that the multi-count Attorney, argues that the language of the indictments, and indictment alleged that appellant presented two letters, their return to the district court, were sufficient to show one purporting to bear the signature of Samuelson and the the state's intention to charge the felony offenses of other purporting to bear the signature of Vo. 3 Id. at *4. It Page 3 279 S.W.3d 324, *326; 2009 Tex. Crim. App. LEXIS 378, **5

tampering [**6] with a governmental record, thus the [*327] about whether the state did charge, or intended to indictments invested the district court with subject-matter charge, her with a felony, she could have, and should jurisdiction. It asserts that the indictments' failure to have, objected to the defective indictment before the day allege all of the elements of the felony offense of of trial. tampering with a governmental record constituted a defect of substance, and it was therefore incumbent upon Appellant claims that the indictments gave her notice appellant to raise the defect prior to the date of trial. It only that she had been indicted for misdemeanor contends that, because appellant failed to object, the court tampering offenses under TEX. PENAL CODE § of appeals erred by dismissing the counts for want of 37.10(a)(2) because they did not include any of the jurisdiction. elements that the statute requires in order to raise the misdemeanor offense to a state-jail or second-degree Appellant argues that the indictments were proper, felony. She points out that, pursuant to TEX. CODE facially complete indictments that alleged all the CRIM. PROC., Art. 20.21, the grand jury, not the state, elements necessary to charge her with the misdemeanor presents an indictment and argues that it is the grand offense of tampering with a government record. She jury's intent, not the state's, that is most important. She asserts that, being misdemeanor offenses, the district also notes that nothing prohibits the grand jury from court did not have subject-matter jurisdiction, and that indicting an accused for only a misdemeanor offense and such a claim of lack of jurisdiction is not waived by that "there is no requirement under the law that a grand failure to object before trial. She argues that she was thus jury return only felony indictments." not required to object before trial to the presentment of an indictment to a court without competent jurisdiction. The state points to Art. V, § 12(b), of the Texas Constitution, which states that "[t]he [**9] presentment The parties agree that the faces of the indictments at of an indictment or information to a court invests the issue here allege misdemeanor tampering with a court with jurisdiction of the cause" and that the practices governmental record; "the indictment[s] failed [**7] to and procedures relating to the use of indictments are as contain language that would charge a felony offense-i.e., provided by statutory law. It also points to TEX. CODE that Appellant intended to defraud or harm another or that CRIM. PROC. art. 1.14(b), which after its 1985 the governmental record was of the type to make the amendment provides that a defendant waives or forfeits offense a third-degree felony." State's Brief, p. 2. his right to object to a defect of form or substance in an Predictably, they disagree as to whether appellant's indictment if he fails to object before the date on which failure to object, before trial, to being tried on the trial commences and that he may not first raise the misdemeanor allegations in a district court prevented the objection on appeal. In Studer v. State, 799 S.W.2d 263 court of appeals from granting relief on her appellate (Tex. Crim. App. 1990), we discussed this principle at complaints about subject-matter jurisdiction. length and determined that a defendant who failed to timely object to a defective charging instrument before The state asserts that, while the offense of tampering trial began would lose the right to later complain about with a governmental record may be charged as either a such defect on appeal. felony or a misdemeanor, the fact that the indictment was returned to a district court with subject-matter jurisdiction The state acknowledges that in Thomason v. State, over felony offenses "is an indication that the State 892 S.W.2d 8, 11 (Tex. Crim. App. 1994), we held that intended to charge a felony offense." It also suggests that "where an indictment facially charges a complete offense, the pretrial proceedings "were also indications that it is reasonable to presume that the State intended to Appellant was being charged with a felony offense, and charge the offense alleged, and none other." We stated, not a misdemeanor." It asserts that the indictments, "Consequently, where an indictment facially charges a whatever their defects, can be construed as intended to complete offense, the State is held to the offense charged charge a felony because there does exist a felony offense [**10] in the indictment, regardless of whether the State of tampering with a governmental record and the intended to charge that offense." Id. However, the state indictments in these cases were returned to a court [**8] suggests that, in Teal v. State, 230 S.W.3d 172 (Tex. with subject-matter jurisdiction over only felony Crim. App. 2007), we retreated from such all-inclusive offenses. It adds that, if appellant had been confused language. Page 4 279 S.W.3d 324, *327; 2009 Tex. Crim. App. LEXIS 378, **10

Thomason is distinguishable on its facts. Thomason trial court. Id. at 180. The state acknowledges that the was indicted for felony theft of at least $ 20,000, but the text of appellant's indictments, like the indictment in indictment did not include the words necessary to charge Teal, does not contain the language necessary to raise the an aggregated theft. The evidence showed that Thomason offense of tampering with a governmental record from a had received ten checks, totaling $ 518,787, with each of misdemeanor to a felony. State's Brief, p. 10. eight of the checks having an amount in excess of the Nevertheless it suggests that, because the indictments alleged $ 20,000. At the end of the state's evidence, were returned to a district court, a court with Thomason asked the trial court to require the state to elect subject-matter jurisdiction over felonies, and a felony on which of the checks it sought a conviction. The trial offense of tampering with a governmental record exists, it court refused to require an election, and the court of is clear that the state intended to charge a felony offense. appeals affirmed, saying, "[W]e cannot conclude that the failure to include the phrase in the indictment evinces an Analysis intent that the checks not be aggregated." Thomason v. Teal is more on point with regard to the issue State, No. 05-92-00414-CR, 1993 WL 189615 (Tex. presented here than is Thomason, but it does not assist App.--Dallas, June 2, 1993)(not designated for appellant. As Teal pointed out, legislative changes in publication). 1987 ensured that defects in an indictment would be This Court held that, "where an indictment facially objected to and, if possible, 4 repaired before trial and charges a complete offense, it is reasonable to presume that such defects would not invalidate an otherwise valid the State intended to charge [**11] the offense alleged, conviction [**13] if they were not raised before trial. and none other." Thomason, 892 S.W.2d at 11. That case Teal at 176. The Teal Court held that, after Studer v. is distinguishable on at least two grounds: Thomason State, 799 S.W.2d 263 (Tex. Crim. App 1990), and Cook asked for an election, thus calling the issue to the v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995), courts attention of the trial court, and the indictment, on its face, must now look to the indictment as a whole, not just to its alleged a felony, albeit not the felony [*328] the state specific formal requisites. Id. at 180. intended to charge. There was no question that the trial court had subject-matter jurisdiction over the offense Implicit within both Studer and Cook is alleged on the face of the indictment. that "the offense" charged must be one for which the trial court has subject-matter The text of the two indictments at issue here facially jurisdiction. . . . alleges misdemeanor tampering with a governmental record. Appellant argues that, under Teal, she did not Thus, the complete test for the have to object because there was no ground for objecting; constitutional sufficiency of a particular the indictment in her case alleged a complete charging instrument goes slightly further misdemeanor offense and grand juries are authorized to than that expressly set out in Studer and issue indictments for misdemeanor offenses. Cook: Can the district court and the defendant determine, from the face of the Teal involved an indictment that alleged hindering indictment, that the indictment intends to apprehension, but the indictment failed to include an charge a felony or other offense for which allegation that the defendant had knowledge of the a district court has jurisdiction? . . . [T]he suspect's status as a fugitive felon, the element that raised indictment, despite whatever substantive the offense to a felony. We recognized in Teal that Texas defects it contains, must be capable of law now requires the defendant to object to errors in the being construed as intending to charge a form or substance of an indictment before the day of trial felony (or a misdemeanor for which the [**12] and before the jury is empaneled. Teal, 230 district court has jurisdiction). S.W.3d at 177. We also indicated that the critical determination is whether the trial court (and reviewing . . . It certainly was a defective appellate courts) and the defendant can identify what indictment because it omitted one of the penal-code provision is alleged and whether that two [*329] elements that raise hindering penal-code provision is one that vests jurisdiction in the apprehension from a misdemeanor to a felony, but it was nonetheless sufficient to Page 5 279 S.W.3d 324, *329; 2009 Tex. Crim. App. LEXIS 378, **14

[**14] vest jurisdiction-it charged "an harm or defraud another, then a state-jail felony. offense" and one could fairly conclude from the face of the charging instrument (c)(2) school records, license, permit, seal, that the State intended to charge a felony title, letter of patent, or similar document; a offense. If appellant was confused about third-degree felony unless the actor's intent is to whether the State did or intended to charge harm or defraud another, then a second-degree him with a felony, he could have and felony. should have objected to the defective (c)(3) a record required to enroll a student in indictment before the date of trial. a school district and used to establish residency; a class C misdemeanor. Id. at 181-82. (c)(4) a written appraisal [**16] filed with an 4 For example, a district court lacks appraisal review board that was performed by a subject-matter jurisdiction over a speeding person with a contingency interest in the outcome offense no matter how perfect the wording of a of the hearing; a class B misdemeanor. charging instrument alleging such an offense, and there is no such offense as felony speeding. The (d) vehicle liability insurance form; varying trial court clearly lacks subject-matter jurisdiction, levels, depending on how the tampering was done and the indictment cannot, therefore, be repaired. (§ 37.10 (a)(1-6)). Here, although the indictment properly charged a Although the heading alleges a third-degree misdemeanor and lacked an element necessary to charge felony, the jury convicted appellant of a state-jail a felony, the felony offense exists, and the indictment's felony. Such a conviction may be had only under return in a felony court put appellant on notice that the § 37.10(c)(1) with proof of intent to defraud or charging of the felony offense was intended. Further, the harm another. face of each indictment contains a heading: "Indictment--Tampering with a Governmental Record 3rd The court of appeals erred when it concluded that Degree Felony,--TPC § 37.10(a)--Code 73990275." 5 these indictments fail to satisfy the constitutional The Penal Code section was easily ascertainable, and the requirement of subject-matter jurisdiction and did not notation that the offense [**15] was a third-degree vest the district court with jurisdiction. We reverse the felony clearly indicated that the state intended to charge a judgment of the court of appeals and affirm the judgment felony offense and that the district court had of the trial court in Cause No. 05-06-01274-CR subject-matter jurisdiction. Appellant had adequate notice (trial-court Cause No. 23290-86). In Cause No. that she was charged with a felony. If she had confusion 05-06-01230-CR (trial-court Cause No. 23338-86), the about whether the State did, or intended to, charge her court of appeals found appellant's first issue, lack of with a felony, she could have, and should have, objected jurisdiction, dispositive and therefore did not address her to the defective indictment before the date of trial. second issue. We reverse the judgment of the court of appeals in Cause No. 05-06-1230-CR and remand it to 5 The heading sets out that the charge is a that court so that it may consider appellant's unaddressed third-degree felony. Section 37.10(a) enumerates claim of error as to an objection [**17] under the the elements of tampering with a governmental attorney-client privilege. We deny appellant's motion for record. Section 37.10(c) and (d) state what rehearing. punishment ranges apply to different kinds of governmental records. Delivered: March 18, 2009

(c)(1) general classification not covered by Publish subdivisions (2), (3), and (4) and subsection (d); a class A misdemeanor unless the actor's intent is to Page 1

DAVID WAYNE MIDDLETON, Appellant v. THE STATE OF TEXAS

NO. 1263-01

125 S.W.3d 450; 2003 Tex. Crim. App. LEXIS 73

April 23, 2003, Delivered

NOTICE: [**1] PUBLISH if the officer lacked probable cause. We conclude that the failure to [*452] define that term was not error because SUBSEQUENT HISTORY: As Corrected May 5, this jury did not need the definition. 2003. I. Facts PRIOR HISTORY: ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW. FROM THE On New Year's Eve, 1998, Sergeant Stanford was SECOND COURT OF APPEALS. WISE COUNTY. "working radar" at the intersection of Crittendon Street and Cates Street in Bridgeport. He testified that he saw a DISPOSITION: Court of Appeals' judgment affirmed. small blue Chevy pick-up fail to come to a complete stop at the stop sign. Stanford followed the vehicle with his lights flashing and after a few blocks the truck came to a COUNSEL: FOR APPELLANT: KEN MAHAFFEY, stop. Stanford approached the truck and identified the AUSTIN. driver [**2] as Middleton. Middleton consented to a search, and upon searching the truck, Stanford found FOR STATE: BARRY'S GREEN, DA, DECATUR. methamphetamine behind the ashtray.

JUDGES: Keasler, J., announced the judgment of the Middleton testified that he stopped at the stop sign. Court and delivered an opinion, in which Keller, P.J., and Womack and Hervey, JJ., joined. Holcomb and Cochran, At the conclusion of testimony, defense counsel JJ., concurred in the result. Womack, J. filed a concurring requested a charge pursuant to Art. 38.23: opinion. Price, J., filed a dissenting opinion, joined by I would request the Charge, under Article 38.23 of Meyers and Johnson, JJ. the Code of Criminal Procedure at the beginning of top of Page 2, I would ask that it be inserted. "Our law OPINION BY: Keasler provides that any evidence seized in violation of the United States Constitution, the Texas State Constitution, OPINION the laws of the State of Texas or of this county, shall not [*451] A police officer said he saw David be admitted into evidence in any criminal proceeding." Middleton run a stop sign, but Middleton claimed that he Basically, I would ask for that charge as a descriptive stopped. The officer pulled Middleton over and found of what the law is for the next two paragraphs, your drugs. The jury was instructed to disregard this evidence Page 2 125 S.W.3d 450, *452; 2003 Tex. Crim. App. LEXIS 73, **2

Honor. reasonable doubt as to whether or not that stop was valid, you don't consider anything that was a result of that stop. The court denied Middleton's request but did include the following language in the charge: ***

The court further instructs you that before you may The evidence is - The evidence is that there is some consider the testimony of Steve Stanford concerning the factual dispute whether or not there was a valid stop or search of the Defendant's vehicle, you must first find some pre-textual-type stop by the police. beyond a reasonable doubt that the officer had probable cause to believe and did believe that the defendant did not The jury found Middleton guilty of possessing bring the vehicle he was operating to a stop [**3] at the methamphetamine and the judge sentenced him to 12 intersection of Cates and Crittendon in Bridgeport, Texas, years in prison. and if you do not so find beyond a reasonable doubt, or if II. Court of Appeals you have a reasonable doubt, you will disregard such testimony and evidence. Middleton appealed arguing, among other things, that the trial judge erred by failing "to include an abstract During closing arguments, the defense made the instruction on the law of illegal search and seizure in the following statements: Art. 38.23 charge." He argued the charge failed to Remember we told you that any law [sic] that's describe [**5] the law that the jury was to apply and seized in violation of the United States Constitution, State failed to define "probable cause." The State responded Constitution the laws of the State of Texas is not that Middleton failed to preserve error and, if he did so, admissible in Court. any error was harmless. The Court of Appeals held that "probable cause" was not required to be defined in the Now, this is where the issue comes. You get a charge charge because it is not defined by statute. 1 We granted on the law because there's an issue, and the issue is: Do Middleton's petition for discretionary review to decide you have a reasonable doubt as to whether or not he came whether a trial court "should provide the jury with a to a complete stop. See, that's the probable cause issue. definition of the term 'probable cause' in an Art. 38.23 That's the probable cause issue. You have a reasonable instruction." doubt as to whether or not he came to a complete stop or whether Mr. Stanford - Officer - Sergeant Stanford was 1 Middleton v. State, No. 02-00-00039-CR, slip just out there making a lot of routine traffic stops. op. at 8-9 (Tex. App. - Fort Worth, delivered April 26, 2001) (not designated for publication). So you have to have a reason to stop somebody, just to get into the idea where you can ask them for search of III. Preservation of Error the vehicle. The State argues initially that Middleton's complaint Now, if you have a reasonable doubt as to whether or on appeal is different from his complaint at trial. This not Stanford - as he prefers to be called - had a reasonable argument is premature. doubt as to whether or not he, in fact, observed a traffic As we explained in Hutch v. State, 2 an appellate [**4] violation, if you even have a reasonable doubt to court's first duty in evaluating a jury charge issue is to have to prove it beyond a reasonable doubt, Stanford who determine whether error exists. Then, if error is found, makes all these routine stops and who is an officer of the the appellate court should analyze [**6] that error for year, and doesn't know whether or not he's officer of the harm. Error preservation does not become an issue until year because of all these routine consensual stops he harm is assessed because "the degree of harm necessary makes, you have to believe beyond a reasonable doubt. for reversal depends upon whether the error was It's not a weighing or balancing [*453] of, you know, preserved." 3 I'm not sure maybe it was an okay stop, maybe it wasn't. 2 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Remember the protections. It's to protect everybody 3 Id. from ill - unreasonable illegal detentions. If you have a Page 3 125 S.W.3d 450, *453; 2003 Tex. Crim. App. LEXIS 73, **6

This is the analysis we set forth almost 20 years ago (Tex. Crim. App. 2000); Andrews v. State, 652 in Almanza v. State. 4 There we explained that Art. 36.19 S.W.2d 370, 375-76 (Tex. Crim. App. 1983) contains harm standards for "both 'fundamental error and (explaining that term acquiring technical meaning ordinary reversible error' in jury charges." 5 As a result, need not necessarily be defined). all jury charge error must be considered, whether or not 11 Medford, 13 S.W.3d at 772. the defendant preserved error. 6 And we have specifically 12 See Draughon v. State, 831 S.W.2d 331, 338 applied the harmless error rule of Art. 36.19 to Art. 38.23. (Tex. Crim. App. 1992). 7 So we must analyze whether error existed in Middleton's jury charge before we consider whether that "Probable cause" is not statutorily defined, and error was preserved. 8 Middleton argues that it must be defined because it has a technical legal meaning. But even if "probable cause" has 4 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on acquired a technical legal meaning, that does not reh'g). necessarily mean that it had to be defined. 13 In this case, 5 Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. there was no risk [**9] that the jurors would arbitrarily App. 1998). apply their own personal definition, nor was a definition [**7] of the term required to assure a fair understanding of the 6 Almanza, 686 S.W.2d at 171. See also evidence. Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991). 13 See Andrews, 652 S.W.2d at 375-76. 7 Atkinson v. State, 923 S.W.2d 21, 27 (Tex. This case involved a single, and simple, factual Crim. App. 1996). dispute - whether or not Middleton stopped at the stop 8 See Balentine v. State, 71 S.W.3d 763, 774 sign. Its resolution determined whether the seized (Tex. Crim. App. 2002) (stating that "because we evidence could be considered. There were no other facts find that no error occurred, we need not decide which could have established probable cause. As the whether appellant waived the asserted jury charge State explained in its brief to the Court of Appeals: error."). If this case had been a case wherein an officer had to IV. Analysis rely upon a multitude of factors to come to his conclusion Article 38.23(a) provides that no evidence obtained regarding probable cause, a definition for the jury might in violation of the law [*454] should be admitted at trial. have been helpful. However, the only issue involved in It also provides that if the evidence "raises an issue the determination of probable cause in this case is hereunder, the jury shall be instructed that if it believes, whether [Middleton] failed to come to a complete stop. or has a reasonable doubt, that the evidence was obtained Indeed, defense counsel's argument to the jury in violation of the provisions of this Article, then and in highlighted this fact and explained to the jury that, in this such event, the jury shall disregard any such evidence so case, "probable cause" meant a failure [**10] to stop at obtained." the stop sign. As a general rule, terms need not be defined in the V. Conclusion charge if they are not statutorily defined. 9 But terms which have a technical legal meaning may need to be Because there was no ambiguity in this case as to the defined. 10 This is particularly true when there is a risk meaning of "probable cause," we conclude that the trial that the jurors [**8] may arbitrarily apply their own judge did not err in failing to define it. personal definitions of the term 11 or where a definition of the term is required to assure a fair understanding of We affirm the Court of Appeals' judgment. the evidence. 12 CONCUR BY: WOMACK 9 Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996); Garcia v. State, 887 S.W.2d CONCUR 846, 859 (Tex. Crim. App. 1994). 10 See Medford v. State, 13 S.W.3d 769, 772 Page 4 125 S.W.3d 450, *454; 2003 Tex. Crim. App. LEXIS 73, **10

WOMACK, J., filed a concurring opinion. [**12] any term that is not defined in the relevant statute. Probable cause is not defined in article 38.23. Therefore, I join the Court's opinion with the understanding the court of appeals concluded, the trial court was not that, because of an unusual feature of this case, it does required to include a definition in the charge. Middleton not resolve the general question of the need to define v. State, No. 02-00-0039-CR, slip op. at 8-9 (Tex. "probable cause" in the court's charge under [*455] App.--Fort Worth Apr. 26, 2001) (not designated for Article 38.23. The Court prudently decides no more than publication). the case requires. 2 The portion of the charge that the appellant The State took the issue of probable cause out of this complains was incomplete reads as follows: case by accepting a burden to prove more than the law required; that is, that the defendant did commit an offense The court further instructs you that before in the officer's presence. The law's requirement is only you may consider the testimony of Steve Stanford that the officer have probable cause to believe that concerning the search of the Defendant's vehicle, someone committed an offense in the officer's presence. * you must first find beyond a reasonable doubt that We have not decided (although, it seems to me, the issue the officer had probable cause to believe and did would not be close) whether "probable cause" must be believe that the defendant did not bring the defined when probable cause is the standard for the jury. vehicle he was operating to a stop at the intersection of Cates and Crittendon in * See, e.g., Brinegar v. United States, 338 U.S. Bridgeport, Texas, and if you do not find so 160, 174-76, 93 L. Ed. 1879, 69 S. Ct. 1302 beyond a reasonable doubt, or if you have a (1946) (constitutional law); Carlock v. State, 609 reasonable doubt, you will disregard such S.W.2d 787, 790 (Tex. Cr. App. 1980) (state testimony and evidence. statutory law). The appellant filed a petition for discretionary [**11] En banc. review, [**13] which we granted, claiming that the court of appeals erred because probable cause is a DISSENT BY: Price technical legal term, which should be defined for jurors.

DISSENT The general rule, as the court of appeals explained, is that a term need not be defined in the jury charge if the Price, J., filed this dissenting opinion, in which legislature failed to define it in the relevant statute. Meyers and Johnson, J.J., joined. Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996). The relevant statute in this case, Texas Code of While searching the appellant's truck, police found Criminal Procedure article 38.23, 3 does not define methamphetamine and marihuana behind the ashtray. The [*456] probable cause. Indeed, the Article does not even appellant claimed that the officer had no probable cause contain the term probable cause. Article 38.23 is a to pull him over. The trial court included an article statutory exclusionary rule that prohibits the use of 38.231 instruction in the proposed guilt-innocence jury evidence if it was obtained in violation of the constitution charge; the appellant requested a more detailed or laws of the State of Texas and the United States. The instruction. The trial court denied his request, and the general rule cannot apply in this case since the term appellant was convicted. Today the Court addresses probable cause does not appear in Article 38.23. whether the trial court should have defined probable cause in the jury charge. The Court concludes that answer 3 Article 38.23 reads: is no. I disagree, and therefore, I dissent. (a) No evidence obtained by an officer or 1 Tex. Code Crim. Proc. art. 38.23. other person in violation of any provisions of the Constitution or laws of the State of Texas, or of On direct appeal, the appellant claimed that the trial the Constitution or laws of the United States of court should have included a definition of probable cause America, shall be admitted in evidence against the in the jury charge. 2 The court of appeals explained that accused on the trial of any criminal case. the trial court is not required to provide a definition for Page 5 125 S.W.3d 450, *456; 2003 Tex. Crim. App. LEXIS 73, **13

In any case where the legal evidence raises an State, 588 S.W.2d 327, 338 (Tex. Crim. App. issue hereunder, the jury shall be instructed that if 1979) (serious physical deficiency need not be it believes, or has a reasonable doubt, that the defined in context of injury to a child); Mitchell v. evidence was obtained in violation of the State, 135 Tex. Crim. 176, 178, 117 S.W.2d 443, provisions of this Article, then and in such event, 445 (1938) (unlawful arrest should be defined). the jury shall disregard any such evidence so obtained. [**15] In Andrews v. State, 652 S.W.2d 370 (Tex. Crim. App. 1983), we attempted to refine this exception (b) It is an exception to the provisions of to the rule. We explained that a word or phrase with a Subsection (a) of this Article that the evidence technical legal meaning will not always need to be was obtained by a law enforcement officer acting defined. Id. at 375-76. In that case the defendant in objective good faith reliance upon a warrant complained that the trial court should have defined the issued by a neutral magistrate based on probable term "prurient interest." Ibid. We said that it might have cause. been wise for the legislature to include a definition of prurient interest, but we concluded that the statute's [**14] We have recognized an exception to the failure to include a definition did not "cause[] a jury general rule when a term in a statute has a technical charge to be subject to an objection for failure to define meaning. If a term does not have a common, ordinary that term." Id. at 376. meaning that we can presume jurors to know and apply, a definition of the term should be included in the jury We said that the Code Construction Act specifies that charge. Phillips v. State, 597 S.W.2d 929, 934 (Tex. Crim. "Words and phrases shall be read in context and App. [Panel Op.] 1980); King v. State, 553 S.W.2d 105, construed accordingly. Words and phrases that have 107 (Tex. Cr. App. 1977) (citing Joubert v. State, 136 acquired a technical or particular meaning, whether by Tex. Cr. R. 219, 124 S.W.2d 368 (1938)). 4 This might be legislature or otherwise shall be construed accordingly." the test when a technical term does not appear in a Ibid. (quoting Tex. Rev. Civ. Stat. art. 5429b-2, § 2.01). statute, but we cannot tell that from the cases cited by the Also we noted Code of Criminal Procedure Article 3.01 majority. states "Words and terms used in this Code are to be taken and understood [**16] in their usual acceptability in 4 We have applied this test explicitly and common language, except where specially defined." 5 implicitly in several cases. See, e.g., Paulson v. Ibid. (quoting Tex. Code Crim. Proc. art. 3.01). We said State, 28 S.W.3d 570 (Tex. Crim. App. 2000) that neither the Code Construction Act, nor Article 3.01 (beyond a reasonable doubt need not be defined); of the Code of Criminal Procedure, require the definition Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. in the jury charge. Of course, this is [*457] not a App. 2000) (arrest should be defined); Motley v. surprising conclusion because both provisions deal with State, 773 S.W.2d 283, 289-90 (Tex. Crim. the interpretation of statutes, not whether a term should App.1989) (deliberately and intentionally need not be defined in a jury charge. Also, as I explained above, be defined); Whaley v. State, 717 S.W.2d 26, the term probable cause does not appear in Article 38.23 30-31 (Tex. Crim. App. 1986) (constructive because it is a general exclusionary rule. These rules transfer should be defined); MacDougall v. State, cannot apply to the situation in the instant case. 702 S.W.2d 650, 652 (Tex. Crim. App. 1986) (deception should be defined); Phillips v. State, 5 This provisions has been revised by the 597 S.W.2d 929, 937 (Tex. Crim. App. 1980) legislature. Today, Article 3.01 reads: "All words, ("violate or abuse sexually" need not be defined); phrases, and terms used in this Code are to be Coplin v. State, 585 S.W.2d 734, 736 (Tex. Crim. taken and understood in their usual acceptation in App. 1979) (fiduciary property, commercial common language, except where specially bailee, trustee, guardian, administrator, executor, defined." conservator, receiver, and managing partner need not be defined because they are not essential to Even assuming the test for the exception to the rule prosecution under Penal Code section 32.45, about defining statutory [**17] terms in the jury charge misapplication of fiduciary property); Ahearn v. applied in this case, probable cause is a technical term that is not easily understood by the average juror. If one Page 6 125 S.W.3d 450, *457; 2003 Tex. Crim. App. LEXIS 73, **17

were to ask the average juror what probable cause means, no egregious harm was shown. This does not the smart money says he will not get even close. defeat the appellant's argument.

The appellant argues that probable cause has a [**19] Ibid. Braggs, like the appellant, complained peculiar and technical meaning in this context and that it that the trial court failed to include a definition of should be defined in the charge. In support of this probable cause. The court of appeals's holding that the argument, the appellant claims that one court of appeals trial court erred by failing to instruct on the law of has held that probable cause should be defined in this probable cause seems to be in response to Braggs's context, 6 published jury instruction guides include a complaint. The Court explained in Braggs and Davis, the definition of probable cause, the Texas Supreme Court case on which Braggs relies, that the explanation, or has required a definition of probable cause, 7 and the abstract portion of the charge was required. It is true that definition of probable cause varies depending on the area we have held that a jury charge should contain the of law in which it is applied. abstract portion of the charge and the application portion. Riley v. State, 830 S.W.2d 584, 586-87 (Tex. Crim. App. 6 The appellant cites Braggs v. State, 951 S.W.2d 1992). But whether the abstract portion of the charge 877, 881 (Tex. App.--Texarkana 1997, pet. ref'd) should define a [*458] term is determined by the rules (holding article 38.23 instruction inadequate for set out above: Is the term defined in the relevant statute, failure to define probable cause and reasonable and if not, is it a technical term that we cannot presume suspicion). the jury to know and apply? See King v. State, 553 7 The appellant cites Akin v. Dahl, 661 S.W.2d S.W.2d 105, 107 (Tex. Cr. App. 1977). 917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983). The State notes that at least one other court of [**18] The State argues that probable cause is not a appeals has rejected the argument that probable cause technical term that should be defined because it embraces should be defined. But in Rendon v. State, 695 S.W.2d 1, a practical, common sense approach in contrast to the 4 (Tex. App. -- Corpus Christi 1984, pet. ref'd), the court terms beyond a reasonable doubt and preponderance of [**20] provides no analysis for its conclusion. It merely the evidence. explained that Rendon provided no authority for his claim that a definition of probable cause was required. Ibid. The appellant notes that at least one court of appeals This basis was adequate for the court's disposition of has determined that trial courts should define probable Rondon's claim, but it does not dispose of the question cause in an article 38.23 instruction. In Braggs v. State, we address today. 951 S.W.2d 877, 881 (Tex. App.--Texarkana 1997, pet. ref'd), 8 the court held that an article 38.23 instruction The appellant also argues that because published jury was defective: instruction guides recommend the inclusion of a definition of probable cause, the definition should be This Court recently addressed this issue in Davis v. required. The appellant cites W. Scott Carpenter and Paul State, 905 S.W.2d 655, 663-64 (Tex. App.--Texarkana J. McClung, Texas Criminal Jury Charges, sections 1995, pet. ref'd). As in Davis, the instruction here 12:750 & 12:1090.20 (2001), in which the authors consists only of an abstract proposition of law drawn conclude that instructions that merely track the language directly from Article 38.23. The jury charge does not of article 38.23 are inadequate and they include a instruct the jury on the law governing probable cause. definition of probable cause in the article 38.23 The charge does not apply the legal concept to the instruction. evidence involved, nor does it ask the jury to resolve the disputed fact issues that either justify or invalidate the For the proposition that an article 38.23 instruction officer's conduct. Id. The charge is defective. should do more than track the statutory language, the authors cite Braggs, which relies on Davis v. State, 905 8 The State argues that the appellant's reliance S.W.2d 655, 663-64 (Tex. App. Texarkana 1995, pet. on Braggs does not help him because here, as in ref'd). As we explained above, the court in Braggs and Braggs, the defendant's request was not specific Davis did not include analysis or authority for its enough. Therefore, the State argues, the Court of conclusion other than to say that the instruction must Appeals properly affirmed the trial court because include [**21] an abstract explanation of the law and an Page 7 125 S.W.3d 450, *458; 2003 Tex. Crim. App. LEXIS 73, **21

application of the law to the facts of the case. Braggs, In forfeiture proceedings, the definition is different. 951 S.W.2d at 881; Davis, 905 S.W.2d at 663-64. The Probable cause "is a reasonable belief that a 'substantial court's analysis in those cases does not support its connection exists between the property to be forfeited and conclusion. the criminal activity defined by the statute.'" State v. $ 11,014.00 in U.S. Currency, 820 S.W.2d 783, 784 (Tex. For the wording of their recommended instruction, 1991) (citing $ 56,700 in U.S. Currency v. State, 730 the authors rely on cases that hold an instruction must be S.W.2d 659 (Tex. 1987)). given if a question of fact arises under article 38.23, 9 and one case that holds an article 38.23 instruction given In the civil tort malicious prosecution, probable by the trial court was not an incorrect statement of the cause is defined similarly to the way we define it in a law. 10 But these cases do not require the trial judge to criminal case. Probable cause is "the existence of such include a definition of probable cause. This is persuasive facts and circumstances as would excite belief in a authority, but it does not dispose of the question in this reasonable mind, acting on the facts within the case. knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." Akin v. 9 Jordan v. State, 562 S.W.2d 472, 472-473 (Tex. Dahl, 661 S.W.2d 917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. Crim. App. 1978) (requiring an article 38.23 1983) (citing Ramsey v. Arrott, 64 Tex. 320 (1885)). instruction when a question of fact was raised concerning the legality of the way evidence was The fact that the definition of this term is different in obtained). different legal contexts is a good reason to conclude that 10 Attwood v. State, 509 S.W.2d 342, 346 (Tex. probable cause is a technical legal term and that we Crim. App. 1974) (approving of an article 38.23 should not assume that jurors know the term and can instruction when a definition of probable cause apply it in context. appeared elsewhere in the charge, a fact which was not mentioned by the Court). The State claims that probable cause is not a technical [**24] term that should be defined because it [**22] The appellant also argues that because civil embraces a practical common sense approach in contrast cases have required a definition of probable cause we to the terms beyond a reasonable doubt or preponderance should include a definition in this case. The case on of the evidence. It cites In re A.A., 929 S.W.2d 649, which the appellant relies is Akin v. Dahl, 661 S.W.2d 653-54 (Tex. App.--San Antonio 1996, no pet.), in which 917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983). In that case, the Court explained: the Texas Supreme Court approved of a definition that was used by the trial judge in the case, but did not "Probable cause" for waiver of jurisdiction by the address the question of whether one must be given. Ibid. juvenile court is defined as sufficient facts and This is more persuasive authority that it is advisable to circumstances to warrant a prudent individual to believe include a definition of probable cause. the suspect committed or was committing an offense. "The probable cause standard of proof embraces a The appellant argues that probable cause is a practical, common sense approach rather than the more technical term because it is defined differently in technical standards applied in the burdens of proof either different legal contexts. In the context of an article 38.23 beyond a reasonable doubt or a preponderance of the instruction, probable cause exists where police have evidence." reasonably trustworthy information, considered as a whole, sufficient to warrant a reasonable person to Ibid. (citations omitted). The definition contains believe that a particular person [*459] has committed or differences, depending on the context, that refute the is committing an offense. Probable cause requires more State's conclusion. It may be a standard based on than mere suspicion but far less evidence than that common sense, but jurors need to know to what standard needed to support a conviction or even that needed to they should apply their common sense. support a finding by a preponderance of the evidence. The State also argues that the definition does not have a peculiar meaning because non-legal dictionaries Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. contain definitions of the word. This does not mean that 2000) (citations [**23] omitted). Page 8 125 S.W.3d 450, *459; 2003 Tex. Crim. App. LEXIS 73, **24

the term has a common and ordinary meaning that [**25] believe that a particular person has committed or is we can presume jurors know and can apply. committing an offense. Probable cause requires more than mere suspicion but far less evidence than that The definition in non-legal dictionaries provides needed to support a conviction or even that needed to context for the term: It is used in criminal cases to support a finding by a preponderance of the evidence. determine when a criminal charge is well-founded. See, e.g., Webster's Third New International Dictionary 1806 Hughes, 24 S.W.3d at 838 (citations omitted). (1969) ("a reasonable ground for supposing that a criminal charge is well-founded"). But the definition we That this case involves a swearing match between use and apply provides the quality and quantum of the officer and the appellant is not the focus of the information an officer must possess to authorize certain question we are called on to decide today. The fact that actions. See Hughes, 24 S.W.3d at 838 ("where police the focus of our inquiry is whether the term is a technical have reasonably trustworthy information, considered as a legal term that the trial court should have defined when it whole, sufficient to warrant a reasonable person to gave the charge to the jury. The appellant's arguments believe that a particular person has committed or is after the charge was given to the jury without the committing an offense"). Knowledge that probable cause requested language are a concern in determining whether is what is required to arrest someone or to support a the appellant was harmed. It does not tell us whether the warrant or to support the presentment of an indictment, trial court erred when it omitted the definition from the does not allow [*460] the jury to apply the term to the charge. facts and produce a reliable and consistent outcome. I would hold that the trial court erred. [**27] It is Because the term probable cause has different futile to try to measure distance with a ruler that lacks meanings in different contexts and is not commonly lines of demarcation. Telling a juror to look at facts to defined in such a way that permits jurors to know its determine whether probable cause existed is equally meaning and apply it easily, the term should be defined futile unless the juror understands and can apply the term. for purposes [**26] of an article 38.23 instruction. Trial courts should apply the definition of probable cause The court of appeals erred in holding that probable found in Hughes: Probable cause exists where police cause need not be defined. The judgment below should be have reasonably trustworthy information, considered as a reversed. Therefore, I would remand the case to that court whole, sufficient to warrant a reasonable person to to address whether the appellant had been harmed. Page 1

THANH CUONG NGO, Appellant v. THE STATE OF TEXAS

NO. PD-0504-04

175 S.W.3d 738; 2005 Tex. Crim. App. LEXIS 457

March 16, 2005, Delivered March 16, 2005, Filed

NOTICE: [**1] Publish [*741] The indictment contained three paragraphs, alleging three separate criminal acts-stealing a credit PRIOR HISTORY: ON STATE'S PETITION FOR card, receiving a stolen credit card, and fraudulently DISCRETIONARY REVIEW FROM THE ELEVENTH presenting a credit card to pay for goods or services. The COURT OF APPEALS. HARRIS COUNTY. three application paragraphs in the jury charge permitted Ngo v. State, 129 S.W.3d 198, 2004 Tex. App. LEXIS the jury to convict appellant if some of the jurors found 1605 (Tex. App. Eastland, 2004) that he stole the credit card, others believed he received a stolen credit card, and still others thought that he DISPOSITION: Affirmed. fraudulently presented it. The Eastland Court of Appeals held that this jury charge "did not require that the jurors unanimously agree upon any one of the three alternate COUNSEL: For APPELLANT: Elizabeth L. Derieux, theories," and [**2] thus, it violated both the Texas Longview, TX. Constitution and state statutes which require a unanimous jury verdict. 1 The court of appeals further found that, For STATE: Donald W. Rogers, Jr., ASSIST. DA., although appellant affirmatively stated that he had "no Houston, TX. objection" to the jury charge, this error was reversible under Almanza 2 because appellant suffered "egregious JUDGES: COCHRAN, J., delivered the opinion of the harm." 3 We granted the State's petition for discretionary Court in which MEYERS, PRICE, WOMACK, review to determine the correctness of that decision. 4 JOHNSON and HOLCOMB, J.J., joined. WOMACK, J., Because we agree with the court of appeals' reasoning filed a concurring opinion in which MEYERS, J., joined. and result, we affirm its judgment. HERVEY, J., filed a dissenting opinion in which KEASLER, J., joined. KELLER, P.J., dissented without 1 Ngo v. State, 129 S.W.3d 198, 200 (Tex. App. - opinion. Cochran, J. Hervey, J. Eastland 2004). 2 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. OPINION BY: Cochran App. 1985). 3 Ngo, 129 S.W.3d at 202. OPINION 4 We granted both of the State's grounds for review: [*740] Appellant was charged with credit card abuse under section 32.31 of the Texas Penal Code. 1) The court below erroneously held that Page 2 175 S.W.3d 738, *741; 2005 Tex. Crim. App. LEXIS 457, **2

appellant's trial counsel's affirmative statement credit cards had been stolen when her apartment was that there was no objection to the court's charge burglarized a few weeks earlier. She had come home did not forfeit or waive appellant's right to from visiting her sick grandfather in the hospital on fundamental error review of the court's charge [*742] Thanksgiving Day and found that the lock on her under Almanza v. State, 686 S.W.2d 157 (Tex. window had been broken and her apartment ransacked. Crim. App. 1985). All [**4] of her credit cards had been in a purse in her bedroom closet. As far as she knew, none of the cards 2) The court below erroneously determined had been used after the burglary because she had called contrary to and in conflict with prior decisions of and canceled them. Ms. Truong identified the credit card this Court and the Supreme Court of the United that appellant had given to Mr. Nguyen as one of her States that appellant was denied his right to a credit cards that had been stolen during the burglary. unanimous verdict when the trial court disjunctively submitted the State's theories of Ms. Truong had seen appellant around her apartment conviction alleged in the indictment to the jury in complex several times. He had knocked on her door its charge at the guilt-innocence stage of the trial before, but she did not open the door for him because she with a general verdict form, where each of the had a small child. Appellant had also asked her for alleged theories of conviction were not separate money. He made her nervous. offenses, as found by said appellate court, but merely alternative means of committing the Appellant testified that he had come to America from offense of credit card abuse as defined by Section Vietnam and had lived here for eleven years, but he did 32.31(b) of the Penal Code. not speak much English. He worked on a shrimp boat. He said that his friend Mike gave him the credit cards while In its Brief on the Merits, the State they were playing pool. Mike wanted appellant to give abandoned its first ground for review as that very the credit cards to Mr. Nguyen, so appellant waited at the issue had, in the meantime, been resolved bar until Mr. Nguyen came in. Meanwhile, he bought a adversely to the State in Bluitt v. State, 137 beer and paid for it with cash. He insisted that he did not S.W.3d 51 (Tex. Crim. App. 2004). We therefore try to use a credit card to pay for the beer. "I don't know dismiss the State's first ground for review and about credit card because I'm from Vietnam. I never use address only the second issue. credit card. I know nothing about credit card." He denied burglarizing Ms. [**5] Truong's apartment or stealing [**3] I. any of her credit cards. He did admit to having a prior burglary conviction. The evidence at trial showed that, on December 13, 2002, appellant went to a karaoke bar in Houston around The application paragraphs of the jury charge 11 p.m. and ordered a couple of beers. He gave Hanh instructed the jury to find appellant guilty if it concluded Nguyen, the Vietnamese manager of the bar, a credit that he committed credit card abuse by any one of three card. The name on the credit card was Hong Truong. Mr. separate acts. 5 Appellant's counsel stated that he had no Nguyen was immediately suspicious because "Hong" is a objection to the jury charge. woman's name, and, serendipitously enough, "Hong Truong" is the name of Mr. Nguyen's ex-wife. Mr. 5 The application paragraphs read: Nguyen immediately called his ex-wife and asked her to come down to the bar. Meanwhile, appellant pulled out a Now, if you find from the evidence beyond a large stack of credit cards, as well as an HMO and dental reasonable doubt that [appellant] on or about the plan card, all in the name of Hong Truong, and asked: 13th day of December, 2002, did then and there "Which one of these can I use?" Mr. Nguyen declined to unlawfully, intentionally or knowingly steal a take any of them, and appellant sat quietly finishing his credit card owned by the card holder, Hong beer. Truong, with intent to deprive the cardholder of the property and without the effective consent of Mr. Nguyen told his security guard to call the police. the cardholder; or They arrived at about the same time as Hong Truong. She told her ex-husband and the policeman that all of her If you find from the evidence beyond a Page 3 175 S.W.3d 738, *742; 2005 Tex. Crim. App. LEXIS 457, **5

reasonable doubt that [appellant] on or about the concluded that it could address the merits [**7] of 13th day of December, 2002, did then and there appellant's complaint even though he had affirmatively unlawfully and knowingly receive with intent to said he had no objection to the jury charge. 8 Second, the use a credit card owned by card holder, Hong court of appeals held that the trial court erred in Truong, knowing the credit card had been stolen; submitting the three separate offenses set out in or application paragraphs of the jury charge in the disjunctive because such a charge would allow for a If you find from the evidence beyond a non-unanimous jury verdict. 9 Third, it concluded that reasonable doubt that [appellant] on or about the this error was "egregious" under Almanza "because it 13th day of December, 2002, with intent to obtain deprived appellant of his right to a unanimous jury a benefit fraudulently, did use or present to Hanh verdict and, thus, denied appellant a fair and impartial Nguyen a credit card knowing the use was trial." 10 The court of appeals reversed the judgment of without the effective consent of the cardholder, the trial court and remanded the case for a new trial. Hong Truong, namely without consent of any kind, and knowing that the credit card had not 6 129 S.W.3d at 199. been issued to the defendant, then you will find 7 137 S.W.3d 51, 53 (Tex. Crim. App. 2004) [appellant] guilty as charged in the indictment. ("we hold that an affirmative denial of objection, as in this case, shall be deemed equivalent to a (Emphasis added). failure to object. An appellant may raise such unobjected-to charge error on appeal, but may not [**6] The prosecutor told the jury during his obtain a reversal for such error unless it resulted closing argument that the jury charge did not require that in egregious harm"). the jurors unanimously agree upon any one of the three 8 Ngo, 129 S.W.3d at 199 ("we fail to see any alternate theories: meaningful distinction, in the context of Almanza, between a failure to object and an affirmative You know what? I have all the ways that approval of the jury charge"). we can prove it. You know, he even [**8] testified that, you know, he received the 9 Id. at 201. card from someone else. 10 Id. at 202. I don't know how, you know- I don't II. know if I proved all three or one or two or all- I have no idea. You know, what I do In its petition for discretionary review, the State know is that for sure the credit card, he contends that the court of appeals erred in finding that had no right to use it. That's clear. And appellant was denied his right to a unanimous verdict. that he tried to present it and it was First, it argues that the application paragraphs merely set presented to Mr. Nguyen. And he was out alternate means of committing a single offense of trying to get something for it. That's clear. credit card abuse, but those paragraphs did not allege That's how simple this is. (emphasis separate credit card abuse offenses. Second, the State added). argues alternatively that the application paragraphs "merely showed repeated instances of commission of the The jury returned a general guilty verdict and sentenced offense of credit card abuse." Because appellant failed to appellant to two years in a state jail facility, plus a $ 3500 request the State to elect which single offense it would fine. rely upon for conviction, it was permissible to submit the three separate offenses in the disjunctive. Each juror [*743] In his sole point of error on appeal, appellant could then decide which of the three criminal acts it argued that his constitutional and statutory right to a thought the State had proven and return a general verdict unanimous jury verdict was violated "by the disjunctive so long as all of the jurors unanimously agreed that he submission in the jury charge of two or more separate had committed the general offense of credit card abuse. offenses." 6 First, the court of appeals, presciently In sum, according to the State, there was no error, much anticipating this Court's decision in Bluitt v. State, 7 Page 4 175 S.W.3d 738, *743; 2005 Tex. Crim. App. LEXIS 457, **8

less egregious harm. knowing the use was without the effective consent of the cardholder, Hong Truong. [**9] Our first duty in analyzing a jury-charge issue 20 is to decide whether error exists. 11 Then, if we find error, we analyze that error for harm. 12 Preservation of charge error does not become an issue until we assess harm. 13 The degree of harm necessary for reversal depends on 18 TEX. PENAL CODE § 32.31(b)(4). whether the appellant preserved the error by objection. 14 [**11] Under Almanza, jury charge error requires reversal when 19 Id. the defendant has properly objected to the charge and we 20 TEX. PENAL CODE § 32.31(b)(1)(A). find "some harm" to his rights. 15 When the defendant The State charged all three offenses in three separate fails to object [*744] or states that he has no objection to paragraphs within a single count of one indictment. It the charge, we will not reverse for jury-charge error sought one conviction for the commission of one credit unless the record shows "egregious harm" to the card abuse offense by proving any of three different defendant. 16 Thus, we review alleged charge error by criminal acts, occurring at three different times, and in considering two questions: (1) whether error existed in three different ways. the charge; and (2) whether sufficient harm resulted from the error to compel reversal. 17 We turn first to the When the State charges different criminal acts, question of error. regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must 11 Middleton v. State, 125 S.W.3d 450, 453 (Tex. be instructed that it cannot return a guilty verdict unless it Crim. App. 2003) (citing Hutch v. State, 922 unanimously agrees upon the commission of any one of S.W.2d 166, 170-71 (Tex. Crim. App. 1996)). these criminal acts. 21 In this case, for example, all twelve 12 Middleton, 125 S.W.3d at 453. members of the jury must unanimously agree that [**10] appellant did at least one of three different acts: either he 13 Id. stole Ms. Truong's credit card; or he received her credit 14 Id. (citing Hutch, 922 S.W.2d at 171). card, knowing that it was stolen and intending to use it 15 Almanza, 686 S.W.2d at 171; see also Hutch, fraudulently; or he fraudulently presented her credit card 922 S.W.2d at 171. with the intent to obtain a benefit. 22 In [*745] this case, 16 Bluitt, 137 S.W.3d at 53; Almanza, 686 however, the word "unanimously" appeared only [**12] S.W.2d at 171. in the "boilerplate" section of the jury charge dealing 17 See Posey v. State, 966 S.W.2d 57, 60 & n.5 with selection of the jury foreman: (Tex. Crim. App. 1998).

A. Error existed in this jury charge because it allowed After you retire to the jury room, you for a non-unanimous jury verdict. should select one of your members as your Foreman. It is his or her duty to preside at The indictment charging appellant with credit card your deliberations, vote with you, and abuse under section 32.31 of the Penal Code alleged three when you have unanimously agreed upon statutorily different criminal acts: a verdict, to certify to your verdict by using the appropriate form attached hereto 1) stealing a credit card owned by Hong and signing the same as Foreman. Truong; 18 Here the jury could well have believed that they need 2) receiving a credit card owned by only be unanimous about their "verdict" of guilty or not Hong Truong, knowing that it had been guilty of the general offense of credit card abuse. Indeed, stolen, and acting with the intent to use it; this unanimity instruction is worse than saying nothing 19 because it affirmatively supports the prosecutor's erroneous jury argument that the jurors need agree only 3) presenting a credit card with the on their ultimate general "verdict" of guilty, rather than intent to obtain a benefit fraudulently, specifying that they need to unanimously agree on any Page 5 175 S.W.3d 738, *745; 2005 Tex. Crim. App. LEXIS 457, **12

one of the three specific criminal acts set out in the jury Process Clause would permit a State to convict charge. anyone under a charge of 'Crime' so generic that any combination of jury findings of 21 Francis v. State, 36 S.W.3d 121, 125 (Tex. embezzlement, reckless driving, murder, burglary, Crim. App. 2000) ("the unanimity requirement is tax evasion, or littering, for example, would undercut when a jury risks convicting the suffice for conviction"); id. at 651 ("we would not defendant of different acts, instead of agreeing on permit ... an indictment charging that the the same act for a conviction") (citing United defendant assaulted either X on Tuesday or Y on States v. Holley, 942 F.2d 916, 925 (5th Cir. Wednesday, despite the 'moral equivalence' of 1991)). those two acts")(Scalia, J., concurring). [**13] 22 Based upon the record evidence, it is entirely [**14] Under our state constitution, jury unanimity possible that the jury could have found that is required in felony cases, and, under our state statutes, appellant committed two of these criminal acts: he unanimity is required in all criminal cases. 23 Unanimity either burglarized Ms. Truong's apartment and in this context means that each and every juror agrees that stole her credit cards himself or he obtained them the defendant committed the same, single, specific from the original burglar, knowing that the cards criminal act. Stealing a credit card on Monday is not the belonged to someone else, and he also tried to use same specific criminal offense as receiving a stolen credit Ms. Truong's credit cards to pay for his beer. The card on Tuesday or presenting a stolen credit card to a State could have charged appellant with both of bartender on Wednesday. Indeed, stealing a credit card at these credit card abuse offenses and obtained two 9:00 a.m. on Monday is not the same specific criminal convictions had it charged appellant in separate offense as receiving a stolen credit card at 9:00 a.m. on counts instead of separate paragraphs. See TEX. Monday. These are all credit card abuse offenses, to be CODE CRIM. PROC. art. 21.24(b) ("[a] count sure, but they are not the same, specific credit card abuse may contain as many separate paragraphs criminal acts committed at the same time or with the charging the same offense as necessary, but no same mens rea and the same actus reus. paragraph may charge more than one offense"); see also Francis v. State, 36 S.W.3d at 126 23 See Francis, 36 S.W.3d at 126 (Womack, J., (Womack, J., concurring) (stating that "our law concurring) (citing TEX. CONST. art. V, § 13; allows only one offense to be charged in each TEX. CODE CRIM. PROC. arts. 36.29(a), 37.02, paragraph of an indictment, information, or 37.03, 45.034-45.036). The unanimity complaint. Here, the State, having chosen to plead requirement is a complement to and helps in only one paragraph, was required to elect one effectuating the "beyond a reasonable doubt" incident on which to rely. This requirement is not standard of proof. See United States v. Gipson, only essential to giving a defendant the requisite 553 F.2d 453, 457 n.7 (5th Cir. 1977). notice of the charge against which to defend, it [**15] The State is mistaken in its first argument helps assure that the jury's verdict will be that the trial court simply submitted a single "credit card unanimous") (footnote omitted). abuse" offense with three different statutory manners and In this case, the State affirmatively decided to means. The phrase "manner or means" describes how the seek only one conviction. It was certainly entitled defendant committed the specific statutory criminal act. It to do so. But it can charge only one specific does not mean that the State can rely upon a laundry list criminal offense in one paragraph; it cannot of different criminal acts and let the individual jurors take charge different violations of the same generic their pick on which each believes the defendant offense by the commission of different criminal committed. 24 The State relies upon Schad v. Arizona, 25 acts in a single paragraph and then seek a [*746] but that case does not support its argument, rather non-unanimous general "credit card abuse" guilty it holds that a jury must be unanimous on what specific verdict. See Schad v. Arizona, 501 U.S. 624, 633, criminal act the defendant committed. In Schad, the 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991) Supreme Court noted that the actus reus was "murder." ("nothing in our history suggests that the Due All twelve jurors had to agree that the defendant Page 6 175 S.W.3d 738, *746; 2005 Tex. Crim. App. LEXIS 457, **15

committed that act. They did not need to be unanimous groupings" in Schad as being "too conclusory to on the issue of whether the defendant murdered "with serve as a real test" for deciding what facts a jury premeditation or in the course of committing a robbery." need unanimously agree upon, the Schad plurality 26 The preliminary factual questions of premeditation or did not disagree with the underlying proposition robbery go to "how" he committed the murder, not that all jurors must agree upon the specific whether he committed the act of murder. As the Supreme statutory criminal act that the defendant was Court explained: alleged to have committed. 501 U.S. at 634-35.

We have never suggested that in returning general In any case, we have already stated, in verdicts in such cases [**16] the jurors should be Francis, that the Texas requirements for a required to agree upon a single means of commission, unanimous jury verdict "are not identical to the any more than the indictments were required to specify requirements under federal law." Francis, 36 one alone. In these cases, as in litigation generally, S.W.3d at 125 n.1; id. at 127 n.11 (Womack, J., "different jurors may be persuaded by different pieces of concurring). evidence, even when they agree upon the bottom line. [**17] Plainly there is no general requirement that the jury reach 25 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct. agreement on the preliminary factual issues which 2491 (1991) (plurality op.). underlie the verdict." 27 26 Id. at 630. 27 Id. at 631-62; see also Aguirre v. State, 732 24 A handy, though not definitive, rule of thumb S.W.2d 320, 324-27 (Tex. Crim. App. 1987) (op. is to look to the statutory verb defining the on reh'g) (general verdict form proper when State criminal act. That verb-such as steal, receive, or alleged alternative means of committing one present-in section 32.31 of the Penal Code, is murder-intentionally causing victim's death or generally the criminal act upon which all jurors felony-murder). Similarly, under Schad and must unanimously agree. See United States v. Aguirre, the State could charge Prince Yussupov Gipson, in which Judge Wisdom stated: with the murder of Rasputin, alleging five different manners and means- by poisoning, The unanimity rule ... requires garroting, shooting, stabbing, or drowning jurors to be in substantial Rasputin. The jury could return a general verdict agreement as to just what a if it found that Prince Yussupov intentionally defendant did as a step preliminary caused the death of Rasputin by any of those to determining whether the means; the unanimity requirement goes to the act defendant is guilty of the crime of "causing the death of Rasputin," while the jury charged. Requiring the vote of need not be unanimous on the preliminary fact twelve jurors to convict a issues- whether it was by poisoning, garroting, defendant does little to insure that etc. Id.; see Kitchens v. State, 823 S.W.2d 256, his right to a unanimous verdict is 257-58 (Tex. Crim. App. 1991). protected unless this prerequisite of jury consensus as to the Furthermore, the plurality opinion in Schad has been defendant's course of action is also undercut by the [**18] reasoning and result in the required. Supreme Court's later decision in Richardson v. United States. 28 In this more recent case, the Court held that, 553 F.2d at 457-58 (concluding that a federal under the "continuing criminal enterprise" statute, the statute criminalizing the "bartering, selling, or jury must "agree unanimously [*747] about which disposing" of a stolen vehicle in interstate specific violations make up the 'continuing series of commerce or "receiving, concealing, or storing" violations.'" 29 In Richardson, as in the present case, it is it, required jury unanimity as to which type of not enough that the jurors might be convinced beyond a criminal act defendant committed-"selling" or reasonable doubt that the defendant committed "a series "receiving"). Although the Supreme Court of violations in concert with others," it must be criticized Gipson's notion of "distinct conceptual unanimous about each specific violation (i.e., which Page 7 175 S.W.3d 738, *747; 2005 Tex. Crim. App. LEXIS 457, **18

specific criminal act- which specific drug sale) that it results. 33 Second, the State could put on evidence of found the defendant had committed. 30 The Supreme repetition of the same criminal act on different occasions. Court explained that a federal criminal jury must 34 Third, the State could put on evidence, as it did in this unanimously agree on each "element" of the crime in case, of different criminal acts, each one of which [*748] order to convict, but need not agree on all the "underlying is a violation of a specific penal statute such as credit brute facts [that] make up a particular element." 31 The card abuse. Under any of these three scenarios, the crucial distinction is thus between a fact that is a specific defendant could require the State to elect which specific actus reus element of the crime and one that is "but the act it was relying upon for conviction, but he need not. means" to the commission of a specific actus reus Nonetheless, the jury must reach a unanimous verdict on element. 32 Richardson is precisely analogous to the which single, specific criminal act the defendant present case. committed.

28 526 U.S. 813, 143 L. Ed. 2d 985, 119 S. Ct. 33 For example, the State might charge a 1707 (1999). defendant with stealing a credit card from Hong [**19] Truong and put on evidence that he stole a credit 29 Id. at 815. card from Hong Truong and Hanh Nguyen. See 30 Id. at 816. GEORGE E. DIX & ROBERT O. DAWSON, 31 Id. at 817. As the Court in Richardson TEXAS CRIMINAL PRACTICE AND explained: PROCEDURE § 30.51 at 664 n.1 (2nd ed. 2001) ("If an indictment alleges theft of one hog and the where ... an element of robbery is proof shows that by a single act the defendant force or the threat of force, some stole two hogs, does this show two different units jurors might conclude that the between which the State is required to elect?") & defendant used a knife to create the § 30.58 at 679 (discussing Coward v. State, 24 threat; others might conclude he Tex. App. 590, 7 S.W. 332 (1888), in which "the used a gun. But that old Court of Appeals held . . . that when a disagreement--a disagreement defendant was tried for theft of one animal and about means-- would not matter as the evidence showed the thief took two animals, long as all 12 jurors unanimously the jury charge had to make clear which of the concluded that the Government animals was the subject of the charged offense") had proved the necessary related & § 30.57 n.17 at 149 (Supp. 2004) (noting Cates element, namely that the defendant v. State, 72 S.W.3d 681, 695 n.5 (Tex.App.-Tyler had threatened force. 2001) "where the State's evidence showed multiple sexual acts committed by the accused Id. at 817. against two children, the need for an election was 32 Id.; see also United States v. Reeder, 170 not eliminated by the continuing course of F.3d 93, 105 (1st Cir. 1999) ("while a jury must conduct exception"). agree on all of the elements of an offense, it need [**21] not agree on the means by which all the elements 34 For example, the State could allege that were accomplished"). appellant fraudulently presented Hong Truong's credit card to Hanh Nguyen, and then prove that The State is also mistaken in its second argument he did so on Monday, Tuesday, and again on that, because the evidence shows the commission of two Wednesday. See DIX & DAWSON, § 30.55 at or more acts violating the same statutory offense, the 673 (discussing Crawford v. State, 696 S.W.2d defendant was required to request an election if he 903 (Tex. Crim. App. 1985), in which "the wanted the jury to reach a unanimous verdict on one indictment charged rape of a child consisting of a [**20] single act. There are three variations on this single act of intercourse with the named victim. theme, but none of them permits a non-unanimous The victim testified to numerous acts of verdict. First, the State could put on evidence of intercourse over several years. Since each act of repetition of the same criminal act, but with different intercourse could constitute the charged offense, Page 8 175 S.W.3d 738, *748; 2005 Tex. Crim. App. LEXIS 457, **21

the State was required to elect one on which to to request an election means that the jury may be proceed"). instructed on several different criminal acts in the disjunctive, but it will still be instructed that it must The present case bears great similarity to the unanimously agree on one specific criminal act. 40 As the scenario in Francis v. State, 35 in which the defendant State correctly points out, one of the purposes of was charged with one count of indecency with a child in requiring an election is "to ensure unanimous verdicts, a single paragraph indictment. 36 The State presented that is, all of the jurors agreeing that one specific evidence of four separate acts of indecency, each act incident, which constituted the offense charged in the occurring at a different time and date. After the defendant indictment, occurred[.]" 41 But the converse is not true. requested the State to elect which specific act it sought to The failure to request an election does not eliminate a obtain a conviction, the State chose two of them-one defendant's right to a unanimous verdict. 42 involving touching the victim's [**22] breasts and one touching her genitals. 37 Those are separate criminal acts. 40 See DIX & DAWSON, § 30.67 at 688-89 These two separate acts were charged in the disjunctive (such a charge "would not limit the jury to any in a single application paragraph, 38 such that the jury one of several acts or incidents that might could have returned a non-unanimous verdict, with some constitute the crime. It would, however, make of the jurors finding that the defendant touched the child's clear that the jurors must unanimously agree on breast while others concluding that he touched her one of them as constituting the proved offense"). genitals. In Francis, we held that a jury charge which [**24] allows for a non-unanimous verdict concerning what 41 Phillips v. State, 130 S.W.3d 343, 349 (Tex. specific criminal act the defendant committed is error. 39 App. - Houston [14th Dist.] 2004, n.p.h.). 42 See Francis, 36 S.W.3d at 127 n.10 35 36 S.W.3d 121 (Tex. Crim. App. 2000). (Womack, J., concurring) ("we do not reverse for 36 Id. the election error. It is necessary to discuss the 37 Id. principles that underlie the requirement of 38 The application paragraph in Francis, read, in election because one of those principles was pertinent part: violated by the error in the charge").

If you find from the evidence [*749] There is one point upon which we disagree beyond a reasonable doubt that on with the Eastland Court of Appeals. The error here is not or about the 1st day of November, in submitting the three separate offenses "in the 1992, in Tarrant County, Texas, disjunctive." 43 The error is in failing to instruct the jury the Defendant, Joseph Clayton that it must be unanimous in deciding which one (or Francis, did ... engage in sexual more) of the three disjunctively submitted offenses it contact by touching the breast or found appellant committed. Indeed, the application genitals of ... paragraphs submitted to the jury in this case would have been clearly correct had each paragraph included just one 36 S.W.3d at 124 (emphasis in original). additional word: "unanimously," such that all twelve 39 36 S.W.3d at 125 jurors would immediately realize that they had to agree on one specific paragraph which set out one specific [**23] In its Brief, the State attempts to distinguish criminal act. 44 The general verdict form of "guilty" or Francis by arguing that appellant did not request an "not [**25] guilty" is also proper because it does not election, while the defendant in Francis did request an matter which criminal act of credit card abuse the jury election. The State posits that jury unanimity is required found appellant had committed as long as each juror only if the defendant requests an election between agreed on the same criminal act. In this case, however, separate offenses. A request for an election, however, is the jury was never informed, in any way, by anyone, at not a prerequisite for implementing Texas' constitutional any time, that-as a collective body- it was required to and statutory requirement of jury unanimity. An election reach a unanimous verdict concerning one specific simply limits the number of specific offenses that the jury criminal act. The way that these three application may consider during its deliberations. Appellant's failure paragraphs were set out, the jury could well have been Page 9 175 S.W.3d 738, *749; 2005 Tex. Crim. App. LEXIS 457, **25

misled into believing that only its ultimate verdict of doubt that [appellant] on or about "guilty" need be unanimous. Under these particular the 13th day of December, 2002, circumstances, we conclude that, taken as a whole, the with intent to obtain a benefit jury charge contained error. fraudulently, did use or present to Hanh Nguyen a credit card 43 Ngo, 129 S.W.3d at 201 (stating that "because knowing the use was without the of the possibility of a non-unanimous jury verdict, effective consent of the cardholder, 'separate offenses' may not be submitted to the Hong Truong, namely without jury in the disjunctive"). In making this statement, consent of any kind, and knowing the court of appeals cited to Francis, but as the that the credit card had not been State correctly points out, the defendant in issued to the defendant, then you Francis requested that the State elect one single will find [appellant] guilty as offense to submit to the jury. Here, appellant did charged in the indictment. not so request. Therefore, he waived any right to require the State to pick just one of the three (Emphasis added). There is, of course, nothing in criminal acts to submit. The jury could be charged the Texas Constitution, statutes, or case law that disjunctively, as long as it was also informed that requires a jury charge to contain the explicit it must be unanimous in deciding which criminal words "unanimous" or "unanimously." But Texas act (or acts) appellant committed- stealing the law does explicitly require that a jury's verdict be credit card, receiving a stolen credit card, or unanimous. The addition of the word fraudulently presenting it. "unanimously" before the description of each [**26] distinct criminal act in the application is merely 44 Thus, a clearly correct version of the one way to implement that legal requirement. We application paragraphs would have read: certainly do not suggest that it is the only way.

Now, if you unanimously find [**27] Having found error in the jury charge, we from the evidence beyond a now turn to the question of whether appellant suffered reasonable doubt that [appellant] "egregious harm" because he failed to object to the jury on or about the 13th day of charge. December, 2002, did then and there unlawfully, intentionally or [*750] B. Appellant suffered "egregious harm" when knowingly steal a credit card the jury was repeatedly told that it need not return a owned by the card holder, Hong unanimous verdict. Truong, with intent to deprive the Under the Almanza standard, the record must show cardholder of the property and that a defendant has suffered actual, rather than merely without the effective consent of the theoretical, harm from jury instruction error. 45 Errors cardholder; or that result in egregious harm are those that affect "the If you unanimously find from very basis of the case," "deprive the defendant of a the evidence beyond a reasonable valuable right," or "vitally affect a defensive theory." 46 doubt that [appellant] on or about Appellant argues that he suffered actual harm from the the 13th day of December, 2002, faulty jury instruction and that he was, in fact, deprived did then and there unlawfully and of his valuable right to a unanimous jury verdict. knowingly receive with intent to 45 Dickey v. State, 22 S.W.3d 490, 492 (Tex. use a credit card owned by card Crim. App. 1999) (citing Arline v. State, 721 holder, Hong Truong, knowing the S.W.2d 348, 351 (Tex. Crim. App. 1986)). credit card had been stolen; or 46 Hutch v. State, 922 S.W.2d at 171. If you unanimously find from [**28] The court of appeals found egregious error the evidence beyond a reasonable under Almanza because: 1) the jury charge permitted a Page 10 175 S.W.3d 738, *750; 2005 Tex. Crim. App. LEXIS 457, **28

non-unanimous verdict; 2) during its closing argument, you believe. the State forthrightly told the jury that it need not be unanimous in its verdict (as quoted in Part I supra); and Everyone in the first row agree that 3) "there were contested issues at trial." 47 In fact, there that's okay? Because that's the law. was more. 48 (emphasis added).

47 Ngo, 129 S.W.3d at 201-02. But that is not the law; that is the error in this case. Then, 48 Under Almanza, to determine whether the during the defense voir dire, while the defense was trying error was so egregious that a defendant was [**30] to explain (erroneously) that the State must prove denied a fair and impartial trial, a reviewing court all three criminal acts, the prosecutor objected, and the should examine: 1) the entire jury charge; 2) the trial judge told the jurors: state of the evidence; 3) the arguments of counsel; There's three ways alleged that the and 4) any other relevant information in the offense can be committed. The State must record. 686 S.W.2d at 171. prove, to your satisfaction, one of the number of them; however, in the course of Near the beginning of the State's voir dire, the the proof, the State may prove [*751] one prosecutor told the jurors: to the satisfaction of part of the jury, another one to the satisfaction of others, So, I'm going to explain the three ways the third one to the satisfaction of another that we've alleged that I'm going to intend part of the jury, but if you found the to prove in this case: That the defendant, defendant guilty, you must believe the Mr. Ngo, on or about December 13th, in State has proved one of the three Harris County, Texas, intentionally and paragraphs in its entirety. [**29] knowingly stole a credit card with intent to deprive without the consent of Thus, both the trial judge and the prosecution misstated Hong Truong. That's one way we can do the law at the very beginning of the case and at the very it. end. 49 This is not an instance of a jury charge which is simply missing an important word-"unanimously"- which Second way, that the defendant, on or reasonable jurors might infer from the context of the about December 13, in Harris County, entire charge or from the comments of the advocates Texas, received with intent to deprive emphasizing the correct legal principles. 50 Here, the jury without the consent of Hong Truong. was affirmatively told, on three occasions, twice by the That's one way we can do it. prosecutor and once by the trial judge, that it need not return a unanimous verdict. Both told the jury that "a mix And the third way, defendant, on or and match" [**31] verdict of guilt based upon some about December 13th, in Harris County, Texas, with intent to obtain a fraudulent jurors believing appellant stole a credit card, others believing he received a stolen credit card, and still others benefit used or presented a credit card to believing that he fraudulently presented one, was "the Mr. Hanh Nguyen without the consent of law." 51 Ms. Hong Truong. Does that make sense to everybody? There's several different 49 Defense counsel did not object to these ways this can happen. Who in the first row misstatements of the law by either the prosecutor does that not make sense to? or trial judge. The record shows that the prosecutor handed the trial judge a copy of a case The important thing with this is that if from this Court. Apparently all three-the three of you who end up sitting on the jury prosecutor, defense attorney, and panel feel like he stole the credit card and judge-innocently, but mistakenly, believed that used it, six of you think that he received it this Court's opinion that a jury's "mix and match" and three of you think he presented it, it nonunanimous verdict on the specific "manner doesn't matter which one you think he did. and means" of committing one single criminal act It can be a mix and match, whichever one Page 11 175 S.W.3d 738, *751; 2005 Tex. Crim. App. LEXIS 457, **31

(e.g., causing a person's death by strangling, unanimous verdict violated when defendant shooting, poisoning, or garroting) also applied to charged with three counts of delivery of a a "mix and match" nonunanimous verdict controlled substance and verdict form included concerning different criminal acts which violate only one count of delivery, allowing jurors to find the same statutory provision. Thus, all three acted guilt without agreeing upon which count he was in complete good faith when each either guilty). unintentionally committed error or failed to object to the error. [**33] Furthermore, the evidence was contested as 50 Compare Hoover v. Johnson, 193 F.3d 366, appellant testified and denied committing any one of the 367-68 (5th Cir. 1999) (when both state three offenses. And, under no theory of the evidence in prosecutor and defense attorney correctly this case, could appellant have committed both the explained Texas law of unanimity to jury, habeas original theft by burglarizing Ms. Truong's apartment and petitioner's federal constitutional claim that jury have received the [*752] stolen credit cards from instructions did not guarantee jury unanimity someone else who had committed the burglary. These rejected). two offenses are mutually exclusive in this particular [**32] context. If even a single juror believed that appellant was 51 See, e.g., Castillo v. State, 734 N.E.2d 299, not the original thief, but did believe that he had received 304-305 (Ind. App. 2000) (trial court's failure to the stolen credit card from "Mike," this could not have instruct jury on unanimity requirement when State been a unanimous verdict. offered evidence that defendant had committed In sum, this is an instance in which the original jury same "dealing cocaine" offense twice was charge error was not corrected or ameliorated in another reversible error when both trial court and portion of the charge; instead, it was compounded by the prosecutor told jury it had "a choice" of one misleading statement concerning unanimity that was convicting defendant for "one or the other ... or set out in the jury charge, as well as by the affirmative both" instances of drug dealing); Colorado v. statements of both the trial judge and prosecutor that the Estorga, 200 Colo. 78, 82, 612 P.2d 520, 523 jury could indeed return a non-unanimous verdict. And, (Colo. 1980) (en banc) (defendant's right to given the state of the evidence, we-like the court of unanimous verdict violated where state offered appeals-cannot determine that the jury was, in fact, evidence of more than one alleged sexual assault unanimous in finding appellant guilty of one specific on different occasions and trial court instructed credit-card-abuse offense. [**34] Some jurors could the jury it could find defendant guilty if "the have found appellant's defense to one or more of the three evidence showed that the crime had occurred at allegations persuasive while finding another one any time within three years prior to the filing of unpersuasive. We therefore agree that appellant's the information"); Horton v. United States, 541 constitutional and statutory right to a unanimous jury A.2d 604, 610-11 (D.C. Ct. App. 1988) (defendant's right to unanimous jury verdict verdict was violated and this violation caused egregious harm to his right to a fair and impartial trial. 52 We affirm violated when different factual scenarios could the judgment of the court of appeals. have supported jury verdict on assault conviction and appellate court could not "infer from the 52 See Clear v. State, 76 S.W.3d 622, 624 (Tex. verdicts themselves that all the jurors were in App. - Corpus Christi 2002, no pet.) (finding agreement as to appellant's specific criminal egregious harm to defendant's right to a acts"); Hawaii v. Mahoe, 89 Haw. 284, 291, 972 unanimous jury verdict when jury charge allowed P.2d 287, 294 (Haw. 1998) (right to unanimous conviction upon disjunctive submission of three jury verdict violated when defendant made two separate sexual assault of a child offenses); see distinct entries into residence, prosecution did not generally, Ruiz v. State, 753 S.W.2d 681, 683 elect which entry to rely on for conviction, and (Tex. Crim. App. 1988) (egregious harm resulted jury not given specific instruction of requirement from failure to instruct jury on State's burden to of unanimity for underlying criminal act); Illinois disprove sudden passion when defendant did not v. Scott, 243 Ill. App. 3d 167, 612 N.E.2d 7, 9, offer evidence of any other defense); Bellamy v. 183 Ill. Dec. 750 (Ill. Ct. App. 1993) (right to Page 12 175 S.W.3d 738, *752; 2005 Tex. Crim. App. LEXIS 457, **34

State, 742 S.W.2d 677, 685-86 (Tex. Crim. App. 1987) (plurality op.) (egregious harm resulted from erroneous instruction on presumption of 2 See id., 125, at 127 (concurring opinion). knowledge that property was stolen when defendant's knowledge was sole contested issue at The charge in this case also was surrounded by trial); see also Horton, 541 A.2d at 611-12 errors, as the court's opinion points out: the prosecutor's (although defendant did not object to lack of incorrect statement in voir dire that the law does not unanimity instruction in jury charge, failure to require a unanimous verdict, the trial court's making a give such an instruction was "plain error, that is, statement to the same effect in voir dire, and the error so clearly prejudicial to substantial rights of prosecutor's reiteration of the wrong law in argument. 3 the defendant as to jeopardize the very fairness and integrity of the trial" when jury could have 3 See ante, at Part II. B. been misled into believing that it need not be unanimous on which of two different assaults he It could be said of both Francis and this case that, by committed). failing to cure the cumulative effect of a series of missteps, the courts' charges contained the ultimate step [**35] Cochran, J. that make "it appear[] from the record that the defendant has not had a fair an impartial trial" within the meaning CONCUR BY: WOMACK of Article 36.19.

CONCUR En banc.

DISSENT BY: Hervey WOMACK, J., filed a concurring opinion, in which MEYERS, J., joined. DISSENT

I join the Court's opinion with the understanding that Hervey, J., filed a dissenting opinion in which its finding of "egregious harm" in this case, like our [**37] Keasler, J., joined. finding of "some harm" in Francis v. State, 1 is based on more than the mere use of the word "or" in the charge. DISSENTING OPINION

1 36 S.W.3d 121 (Tex. Cr. App. 2000). I respectfully dissent. In this case, a jury unanimously convicted appellant of a single credit card Three of the six members of the court who found the abuse offense. The Court decides that appellant's state error in Francis to be reversible recognized the "strange constitutional right to a unanimous jury verdict was context" in which it occurred: violated because the jury's unanimous guilty verdict could have been based on a split vote. The State alleged, a general, one-paragraph indictment that in three separate paragraphs, three separate acts, that was ill-suited to a multiple-offense trial; could have been charged as three separate offenses. See an indictment in the conjunctive that could Ngo v. State, S.W.3d slip op. at 1-2 (Tex.Cr.App. have been in the disjunctive; evidence of No. PD-0504-04, delivered this date) (three application multiple offenses, none of which were paragraphs in jury charge permitted jury to convict described by the conjunctive pleading; two appellant if some of the jurors found that he stole the denied requests for the State to elect the credit card, others believed he received a stolen credit incident on which it would rely; the State's card, and still others thought that he fraudulently incorrect decision to rely on two incidents presented it). when it had only pleaded one; and the erroneous decision to authorize the jury to This scenario implicates the Supreme Court's convict [*753] for either of two offenses decision in Schad v. Arizona 1 and this Court's decision in [**36] when the indictment pled only Francis v. State. 2 It does not, however, implicate one. 2 appellant's state constitutional right to a unanimous jury Page 13 175 S.W.3d 738, *753; 2005 Tex. Crim. App. LEXIS 457, **37

verdict. Rather, it implicates the "permissible [due verdict based on any combination process] limits in defining criminal conduct, as [**38] of the alternative findings. If it reflected in the instructions to jurors applying the was, then the jury was unanimous [application paragraphs], not one of jury unanimity." See in reaching the verdict, and Schad, 501 U.S. at 631. 3 And, it would appear that petitioner's proposed unanimity [*754] (even though all three acts in the application rule would not help him. If it was paragraphs are morally equivalent), 4 those permissible not, and the jurors may not due process limits may have been exceeded in this case 5 combine findings of premeditated unless the jury was instructed that it had to unanimously and felony murder, then agree on at least one of the application paragraphs before petitioner's conviction will fall it could convict appellant. even without his proposed rule, because the instructions allowed 1 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct. for the forbidden combination. 2491 (1991). 2 36 S.W.3d 121 (Tex.Cr.App. 2000). In other words, petitioner's 3 In Schad, 501 U.S. at 630-31, the Supreme real challenge is to Arizona's Court described the issue in the following characterization of first-degree manner: murder as a single crime as to which a verdict need not be limited Petitioner's first contention is that to any one statutory alternative, as his [first-degree murder] against which he argues that conviction under instructions that premeditated murder and felony did not require the jury to agree on murder are separate crimes as to one of the alternative theories of which the jury must return separate premeditated and felony murder is verdicts. The issue in this case, unconstitutional. [Footnote then, is one of the permissible omitted]. He urges us to decide this limits in defining criminal conduct, case by holding that the Sixth, as reflected in the instructions to Eighth, and Fourteenth jurors applying the definitions, not Amendments require a unanimous one of jury unanimity. jury in state capital cases, as distinct from those where lesser [**39] penalties are imposed. [Citations 4 See Schad, 501 U.S. at 643-45 ("moral omitted]. We decline to do so, disparity" between different means in jury charge however, because the suggested to satisfy mens rea element of single offense reasoning would beg the question could present federal constitutional due process raised. Even assuming a violation). requirement of jury unanimity 5 See Schad, 501 U.S. at 651 (Scalia, J., arguendo, that assumption would concurring) (due process would not permit "an fail to address the issue of what the indictment charging that the defendant assaulted jury must be unanimous about. either X on Tuesday or Y on Wednesday, despite Petitioner's jury was unanimous in the 'moral equivalence' of those two acts"); Ngo, deciding that the State had proved slip op. at 9 n.22; Francis, 36 S.W.3d at 125 (jury what, under state law, it had to charge permitted conviction for an offense based prove: that petitioner murdered on separate acts at different times). either with premeditation or in the course of committing a robbery. The Court decides that this could have been The question still remains whether accomplished by inserting the word "unanimously" into it was constitutionally acceptable each application paragraph. See Ngo, slip op. at 17 to permit the jurors to reach one (application paragraphs would have been correct had Page 14 175 S.W.3d 738, *754; 2005 Tex. Crim. App. LEXIS 457, **39

each paragraph included the word "unanimously"). But, charge and given the trial court an opportunity to correct the charge instructed the jury that it had to unanimously any error in the charge. See Almanza v. State, 686 S.W.2d agree on a verdict. 6 This instruction with each 157, 171 (Tex.Cr.App. 1984) (op on reh'g) ("some harm" application paragraph submitted in the disjunctive [*755] analysis applies to jury charge error that is subject accomplished instructing the jury that it had to to timely objection, "egregious harm" analysis applies to unanimously [**40] agree on at least one of the jury charge [**42] error that is not subject to timely application paragraphs before it could convict appellant. objection); Posey v. State, 966 S.W.2d 57, 60 (Tex.Cr.App. 1998) (discussing reasons for requiring a 6 The jury charge stated: party to timely object).

After you retire to the jury room, Both harm standards set out in Almanza require that you should select one of your "the actual degree of harm must be assayed in light of the members as your Foreman. It is his entire jury charge, the state of the evidence, including the or her duty to preside at your contested issues and weight of probative evidence, the deliberations, vote with you, and argument of counsel and any other relevant information when you have unanimously by the record of the trial as a whole." See id.; Posey, 966 agreed upon a verdict, to certify to S.W.2d at 60 n.3. Applying this analytical framework to your verdict by using the this case, it is evident that the jury did not believe appropriate form attached hereto appellant's testimony that someone named "Mike" gave and signing the same as Foreman. him the credit cards or that, in direct conflict with the bar manager's testimony, appellant did not attempt to use any of these credit cards to buy beer. See Ngo, slip op. at 3-4. In addition, the three application paragraphs arising Had the jury believed appellant, it would have acquitted from one offense are what distinguishes this case from him. At the very least then, the record in this case shows Francis which involved a single application paragraph that the jury had to have believed that appellant attempted authorizing the defendant's conviction for indecency with to buy beer with a credit card that did not belong to him a child if the jury found that the defendant touched the (which is covered by the third application paragraph). See victim's "breast or genitals" which the evidence showed id. "referred to two offenses that were committed in two separate incidents." See Francis, 36 S.W.3d at 121 [**43] Based on this state of the record, I would (Womack, J., concurring). The single application decide that appellant was not "egregiously harmed" by paragraph presenting two separate offenses in Francis any error in the charge because the jury could have given presented a risk [**41] that the defendant could have effect to appellant's defense and acquitted him under the been convicted on either of these two separate offenses instructions given, and the evidence is sufficient to submitted in that single application paragraph even support at least the third application paragraph. Cf. though the jury was not unanimous. See id. This case Gonzalez v. State, 8 S.W.3d 640, 641 (Tex.Cr.App. 2000) does not present that situation. (general substantive constitutional rule is that "a general verdict [is] valid so long as it [is] legally supportable on Here, appellant failed to alert the trial court to his one of the submitted grounds-even though that [gives] no unanimous jury verdict claim. He also failed to object to assurance that a valid ground, rather than an invalid one, any statements by the prosecution and the trial court [is] actually the basis for the jury's action"). This is how I during voir dire on this subject. This should not entitle would apply the harm analysis in this case where appellant to a harm analysis that seeks to determine appellant may have helped lead the trial court into error whether "the jury was, in fact, unanimous in finding when he affirmatively stated that he had no objection to appellant guilty of one specific credit card abuse case." the charge. See Ngo, slip op. at 21 (deciding that appellant was "egregiously harmed" because it cannot be determined In footnote 52 of its opinion, the Court cites a whether jury unanimously agreed on one of the District of Columbia Court of Appeals case to support its application paragraphs). This is the type of harm analysis decision that the lack of a special unanimity instruction that should apply had appellant timely objected to the constituted egregious harm. See Ngo, slip op. at 22 n.52 Page 15 175 S.W.3d 738, *755; 2005 Tex. Crim. App. LEXIS 457, **43

citing Horton v. United States, 541 A.2d 604 in Horton on this basis and not finding, as another (D.C.Ct.App. 1988). Horton applied [**44] a "plain possible source of jury confusion, a problem with distinct error" harm analysis to unpreserved error in the failure to and sharply different defenses). submit a special unanimity instruction. See Horton, 541 A.2d at 611 (unpreserved jury charge error requires [*756] Shivers also notes that the District of reversal only upon "a showing of plain error, that is, error Columbia practice is "somewhat more stringent" than the so clearly prejudicial to substantial rights of the defendant "apparent prevailing [plain error] practice in the federal as to jeopardize the very fairness and integrity of the courts." See Shivers, 533 A.2d at 261 n. 7, and at 263 n. trial"). 13. According to Shivers, the apparent prevailing practice in the federal courts "is to find no 'plain error' so long as Horton, however, is distinguishable from this case in evidence as to each incident is sufficiently strong to several important respects. Horton involved three defeat a motion for a directed verdict of not guilty as to separate convictions (where it was possible that the jury that incident." See Shivers, 533 A.2d at 261 n. 7. Also, may not have been unanimous on any one of these according to Shivers, the "federal courts consider a convictions) while this case involves only one conviction. general unanimity instruction [such as the one in this See Horton, 541 A.2d at 605-06. Horton also involved an case] sufficient to insure a unanimous verdict 'except in element of juror confusion inherent in separate defenses cases where the complexity of the evidence or other to separate alleged acts. See Horton, 541 A.2d at 606-08, factors create a genuine danger of jury confusion.'" See 611 (right to unanimous jury clearly prejudiced by Shivers, 533 A.2d at 263 n. 13. This relatively simple confusion inherent in separate defenses to separate case did not create a genuine danger of jury confusion. gunshots). This case essentially involves one defense (appellant received from "Mike" a credit card which I respectfully dissent. appellant never used) applicable to all three application Hervey, J. [**46] paragraphs. See Shivers v. United States, 533 A.2d 258, 263 (D.C.Ct.App. 1987) [**45] (distinguishing situation Page 1

JERRY GLENN PATTERSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 272-87

769 S.W.2d 938; 1989 Tex. Crim. App. LEXIS 50

March 8, 1989

PRIOR HISTORY: [**1] Petition for Discretionary V.A.C.C.P. The Austin Court of Appeals affirmed the Review from the Third Court of Appeals [BELL County]. judgment of conviction, but it set aside the assessment of punishment and remanded for a reassessment [**2] of punishment. 1 Patterson v. State, 723 S.W.2d 308 COUNSEL: Paul Francis, Temple, Texas, Attorney for (Tex.App. -- Austin 1987). We granted appellant's appellant. petition for discretionary review to determine only whether the court of appeals erred in defining "use," Arthur C. Eads, D. A. & James T. Russell, Asst. D. A., within the meaning of Art. 42.12, § 3g(a)(2), to mean Belton, Texas, Robert Huttash, State's Attorney, Austin, "any employment of a deadly weapon, even its simple Texas, Attorneys for State. possession, if such possession facilitates the associated felony." Patterson, supra, at 315. 2 JUDGES: En Banc. Duncan, Judge. Duncan, III, Judge, Clinton & Teague, JJ., dissent. 1 The court of appeals' decision on assessment of punishment has no bearing on the issue OPINION BY: DUNCAN, III currently before this Court. 2 Appellant suggests that we grant review OPINION because the court of appeals appears to have misconstrued a statute. See Tex.R.App.Pro. [*939] OPINION ON APPELLANT'S PETITION 200(c)(4). While this ground is appropriate, we FOR DISCRETIONARY REVIEW could have also granted review under Rule 200(c)(2). This Court has never construed the Appellant was convicted, after a jury trial, of meaning of "use" in Art. 42.12, § 3g(a)(2). illegally possessing less than 28 grams of methamphetamine. Art. 4476-15, §§ 4.02(b)(6), 4.04(b), Based on information received from a confidential V.A.T.S. The verdict reflects that in response to a special informant, police obtained a search warrant for the home issue the jury also found that "the defendant used or of David Law. When officers arrived to execute the exhibited a deadly weapon during the commission of the warrant, [**3] they saw at least two people enter Law's offense which we found the defendant guilty." A apartment. A few moments later, the officers went to the punishment of 25 years, enhanced by two prior felony door, knocked, and announced themselves as police convictions, was assessed by the trial court. An officers. After waiting approximately ten seconds, the affirmative finding of use of a deadly weapon was officers kicked in the door. Another officer was at the entered in the judgment. Art. 42.12, § 3g(a)(2), back door and entered by the same means. Upon gaining Page 2 769 S.W.2d 938, *939; 1989 Tex. Crim. App. LEXIS 50, **3

entry, the officer who entered the front door observed The court next summarized a series of cases which seven people in the living room. Two others were construed [**5] the meaning of "use a weapon" in other discovered elsewhere in the apartment. contexts. 3 These cases rejected a narrow construction which would have defined "use" to mean "fire" in the The appellant was sitting on a sofa in the living case of a gun. Desiring to make the statute flexible in its room. He was seated at the extreme, left end, which was deterrence of danger to human life, the court adopted the nearest to the front door. Next to appellant was an end approach of the cases cited, holding "use" to constitute " table. On the table was a suede bag, a wallet, and a "gun any employment of a deadly weapon, even simple boot." As one officer approached him, appellant raised possession, if such possession facilitates the associated his hands and said "I have a gun right here, but I'm not felony." Patterson, supra, at 315. going to touch it." As he said this, appellant indicated a location between his left leg and the end of the sofa. The 3 The court cited Gaston v. State, 672 S.W.2d officer retrieved the gun, and then the items on the end 819 (Tex.App. -- Dallas 1983, no pet.), and table. A subsequent search revealed that the wallet incorrectly attributed it to this Court. contained $ 905; the bag held 1.10 grams of methamphetamine and miscellaneous drug paraphernalia; The appellant couches his argument in terms of the and the "gun boot" contained several rounds of sufficiency of evidence to support an affirmative finding ammunition which fit the gun that had [**4] been seized. that he used a deadly weapon. He argues that the gun was Soon after this, appellant was arrested and taken to the difficult for the officer to find, and that there was no police station. evidence of a threat involving the gun. At trial, the State argued that the appellant had the gun in order to protect Art. 42.12, § 3g(a)(2), supra, provides as follows: his drugs and to facilitate their possession. Appellant counters by claiming [**6] that if the gun was to [*940] (a) The provisions of Sections 3 facilitate possession of anything, it was to protect his $ and 3c of this Article do not apply: 905 cash. The State filed no brief or response before this Court. *** The court of appeals found that, although stated as a (2) to a defendant when it is shown sufficiency question, appellant's argument is essentially that the defendant used or exhibited a one of statutory construction. Id., at 314. We agree. There deadly weapon as defined in Section are a multitude of rules for statutory construction, and 1.07(a)(11), Penal Code, during the authority exists in support of virtually every position one commission of a felony offense or during might wish to take. The most common thread running immediate flight therefrom. Upon through these competing maxims is for the judiciary to affirmative finding that the defendant used attempt to effectuate the intent of the Legislature. Direct or exhibited a deadly weapon during the reference to the evolution of Art. 42.12, § 3g, supra, commission of an offense or during through both houses of the Legislature and conference immediate flight therefrom, the trial court committee sheds no light on what the Legislature shall enter the finding in the judgment of intended to be meant by "used or exhibited a deadly the court. Upon an affirmative finding that weapon," and tapes of the legislative debates and the deadly weapon the defendant used or committee hearings are equally as barren. We are left exhibited was a firearm, the court shall with the words of the statute itself and a collection of enter that finding in its judgment. often conflicting rules of construction.

One thing is clear however, in construing the statute The court of appeals began its discussion of the it is necessary that the verb forms of the words "use" and propriety of the affirmative finding by determining the "exhibit" be "read in context and construed according to scope of felonies embraced by Art. 42.12, § 3g, and rules [**7] of grammar and usage." Sec. 311.011(a), decided that all felonies are theoretically susceptible to an Tex.Gov't. Code. 4 At the outset it is essential to note that affirmative finding of use or exhibition of a deadly "use" and "exhibit" are not synonymous. Each word is weapon. We agree with this conclusion. exemplary of different types of conduct. "Use," as a verb, Page 3 769 S.W.2d 938, *940; 1989 Tex. Crim. App. LEXIS 50, **7

may mean a number of things. For example, "use" is possession, if such possession facilitates the associated defined as "to put into action or service: have recourse to felony." Patterson v. State, supra, at 315. However, to or enjoyment of: employ . . . to [*941] carry out a "exhibit" a deadly weapon it need only be consciously purpose or action by means of: make instrumental to an displayed during the commission of the required felony end or process: apply to advantage: turn to account: offense. Thus, one can "use" a deadly weapon without utilize." Webster's Third New International Dictionary exhibiting it, but it is doubtful one can exhibit a deadly (1976), p. 2523-2524. In explicating the word the weapon during the commission of a felony without using dictionary provides the following synonym: "employ, it. utilize, apply, avail: use is general and indicates putting to service of a thing, usu. for an intended or fit purpose . . In United States v. La Guardia, 774 F.2d 317 (8th . ." Id. Cir. 1985), the defendants were convicted of possession of cocaine with the intent to distribute [18 U.S.C. § 2 and 4 The Code Construction Act applies to all 21 U.S.C. § 841(a)(1)] and using a firearm during the amendments and revisions of a code or code commission of a felony. Briefly, during a search of the provision made after the 59th Legislature. defendants' residence the police found a quantity of Tex.Gov't. Code, § 311.002(2). Art. 42.12, § cocaine, $ 9,800, and a loaded .22 caliber pistol inside a 3g(a)(2), was added to the Code of Criminal purse, a nine millimeter [**10] automatic pistol in a hall Procedure by the 65th Legislature. closet, and a .44 caliber rifle in one of the defendants' automobile. On appeal one of the defendants claimed that [**8] "Exhibit," on the other hand, as a verb, is there was insufficient evidence to prove his use of a much more definitive in its meaning: "to present to view: firearm to commit a felony. show, display: as a. to show (as a feeling) or display (as a quality) outwardly esp. by visible signs or actions." Id., at Prior to its amendment in 1986, 18 U.S.C. § 796. 924(c)(1), increased the scope of permissible punishment for "Whoever -- (1) uses a firearm to commit any felony . Comparing the words, both are transitive verbs . ., or (2) carries a firearm unlawfully during the because they require an object to complete their meaning. commission of any felony." 5 The federal statute In the language of the statute their object is a "deadly identifies the prohibited conduct as "uses" and "carries." weapon." In contrasting the word's definitions, "use" is The circuit court of appeals in interpreting this statute commonly employed to describe conduct in which the commented that "Section 924(c)(1) reaches the verb's object, again, in this case a deadly weapon, is possession of a firearm which in any manner facilitates utilized in order to achieve a purpose. In other words, the the execution of the felony." United States v. La Guardia, deadly weapon must be utilized, employed, or applied in supra, at 321. See also: United States v. Grant, 545 F.2d order to achieve its intended result: "the commission of a 1309 (2nd Cir. 1976), cert denied, 429 U.S. 1103, 51 L. felony offense or during immediate flight therefrom." Ed. 2d 554, 97 S. Ct. 1130 (1977); United States v. Art. 42.12, § 3g(a)(2), supra. Conversely, "exhibit" only Moore, 580 F.2d 360 (9th Cir. 1977), cert denied, 439 requires that a deadly weapon be consciously shown, U.S. 970, 99 S. Ct. 463, 58 L. Ed. 2d 430 (1978). [*942] displayed, or presented to be viewed during "the Under the facts, the court of appeals concluded that the commission of a felony offense or during immediate "weapons had undoubted utility in the protection of the flight therefrom" Id. valuable supply [**11] and cash on hand." Id., at 321.

Thus, "used . . . a deadly weapon" during the 5 18 U.S.C. § 924(c)(1), et seq. now is applicable commission of the offense means that the deadly weapon only to a "crime of violence or drug trafficking was employed or utilized in order to achieve its purpose. crime." Whereas [**9] "exhibited a deadly weapon" means that the weapon was consciously shown or displayed during The facts in United States v. La Guardia, supra, and the commission of the offense. Therefore, the court of those in the present case are quite similar. The appellant appeals was correct when it stated that "'used . . . during claims that the weapon, if used at all, was used to protect the commission of a felony offense' refers certainly to the his $905. That could obviously be true, but as in La wielding of a firearm with effect, but it extends as well to Guardia, supra, it does not mean that the weapon had no any employment of a deadly weapon, even its simple utility to his protection of the drugs. Page 4 769 S.W.2d 938, *942; 1989 Tex. Crim. App. LEXIS 50, **11

The court of appeals determined "that a rational trier of The judgment of the court of appeals is affirmed; fact could find that appellant 'used' the firearm during the however, the cause is remanded to the trial court for commission of the felony offense of possessing the reassessment [**12] of punishment as ordered by the contraband, in a sense that the firearm protected and court of appeals. facilitated appellant's care, custody, and management of the contraband." We will defer to the collective judgment (Delivered March 8, 1989) of the court of appeals in this regard and accordingly DUNCAN, III, Judge, Clinton & Teague, JJ., dissent. reject appellant's point of error. Page 1

THE STATE OF TEXAS v. GEORGE MOFF, Appellee

NO. 458-03

154 S.W.3d 599; 2004 Tex. Crim. App. LEXIS 1648

October 6, 2004, Delivered

NOTICE: [**1] PUBLISH OPINION BY: Meyers

SUBSEQUENT HISTORY: Rehearing denied by State OPINION v. Moff, 2005 Tex. Crim. App. LEXIS 52 (Tex. Crim. App., Jan. 12, 2005) [*600] The Appellee, Moff, was charged with Rehearing denied by Moff v. State, 153 S.W.3d 452, 2005 intentional, knowing and reckless misapplication of Tex. Crim. App. LEXIS 108 (Tex. Crim. App., Jan. 26, fiduciary property. TEX. PEN. CODE § 32.45(b). The 2005) indictment submitted by the district attorney failed to specify the transaction or transactions involved. Moff PRIOR HISTORY: ON APPELLEE'S PETITION filed a motion to quash the indictment, which was granted FOR DISCRETIONARY REVIEW FROM THE by the trial court. The trial court's order directed the State THIRTEENTH COURT OF APPEALS. NUECES to re-file the indictment, specifying which purchases were COUNTY. alleged to be unauthorized. The State appealed, and the State v. Moff, 133 S.W.3d 648, 2003 Tex. App. LEXIS 942 Court of Appeals reversed the trial court's order quashing (Tex. App. Corpus Christi, 2003) the indictment. State v. Moff, 133 S.W.3d 648 (Tex. Crim. App. 2003). Appellee filed a petition for discretionary DISPOSITION: Judgment of the Court of Appeals review, asserting that the trial court had the discretion to was reversed, and the cause was remanded to the trial quash the indictment and to require more specificity. We court to resume the proceedings. granted review to determine "whether a trial court abuses its discretion when it requires [**2] more specificity in an indictment alleging recklessness and spanning seven COUNSEL: For APPELLANT: Michael H. Hummell, years which fails to identify which of the countless Corpus Christi, TX. transactions during that time span the State may rely on for conviction." We hold that this issue warrants a de For STATE: Douglas K. Norman, ASSIST. DA., Corpus novo, rather than an abuse of discretion standard of Christi, TX, Matthew Paul, STATE'S ATTORNEY, review. After a de novo review, we conclude that the Austin, TX. Court of Appeals erred by reversing the trial court's order because the accused was deprived of the notice required JUDGES: Meyers, J., delivered the opinion of the Court, to prepare an adequate defense. in which Keller, P.J., and Womack, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., join. Price, J., FACTS concurs. Page 2 154 S.W.3d 599, *600; 2004 Tex. Crim. App. LEXIS 1648, **2

Moff was the chief appraiser of Nueces County for discretion in granting the motion to quash. twenty years. In his capacity as chief appraiser, he was responsible for making various purchases for the County. STANDARD OF REVIEW A grand jury indicted Moff for alleged misapplication of Prior to our decision in Guzman v. State, 955 S.W.2d fiduciary property. The indictment read: 85 (Tex. Crim. App. 1997), abuse of discretion was the standard employed by our Court when reviewing a trial On or about and between January 1, court's decision to quash an indictment. But we did not 1993 and December 31, 1999, George have occasion to analyze its appropriateness. However, Moff did then and there intentionally, we now determine that a de novo review is more knowingly, and recklessly misapply appropriate in a case such as the one before us. The property, to wit: money and credit cards, amount of deference appellate courts afford a trial court's of the value of $ 20,000.00 or more but rulings depends upon which "judicial actor" is better less than $ 100,000.00, that the said positioned to decide the issue. Guzman, 955 S.W.2d at defendant held as a fiduciary in a manner 89. The sufficiency of an indictment is a question [**5] that involved substantial risk of loss to the of law. When the resolution of a question of law does not Nueces County Appraisal District, the turn on an evaluation of the credibility and demeanor of a owner of said property, [**3] and the witness, then the trial court is not in a better position to person for whose benefit the property was make the determination, so appellate courts should held, by using said money and credit cards conduct a de novo review of the issue. While this case is to make purchases without the effective different from Guzman in that it involves the Appellee's authorization of the Nueces County due process right to notice of the charges against him, our Appraisal District Board of Directors. reasoning for modifying the standard of review is the same. The trial court's decision in this case was based Appellee filed a motion to quash the indictment for only on the indictment, the motion to quash, and the failing to specify which purchases were made without the argument of counsel, so the trial court was in no better authorization of the Appraisal District Board of Directors. position than an appellate court to decide this issue. Moff was also under indictment on two other charges that Because the Court of Appeals used an abuse of discretion might have involved the same item or items, and he standard of review, we will conduct a de novo review of argued that until he knew which purchases were alleged the trial court's ruling rather than review the decision of to be unauthorized, he could not raise the defense that the the Court of Appeals. charges in the current indictment were jeopardy barred. The trial court held an initial hearing on the motion, NOTICE during which the State argued that the identification of which purchases were unauthorized was an evidentiary The right to notice is set forth in both the United issue that Appellee could learn through discovery. The States and Texas Constitutions. See U.S. CONST. amend. court deferred ruling on the motion. At a subsequent VI; TEX. CONST. art. I, § 10. Thus, the charging hearing to determine which purchases were alleged to be instrument must be specific enough to inform the accused unauthorized, the State acknowledged that its report on of the nature of the accusation against him so that he may charges for the time period [*601] identified in the prepare a defense. [**6] State v. Mays, 967 S.W.2d 404, indictment was 60 pages long, but stated that it was not 406 (Tex. Crim. App. 1998); Daniels v. State, 754 S.W.2d required to disclose which purchases were unauthorized. 214, 217 (Tex. Crim. App. 1988); Adams v. State, 707 [**4] The State argued that it had not yet determined S.W.2d 900, 901 (Tex. Crim. App. 1986). In addition, the which charges it planned to use to support its case against Texas Code of Criminal Procedure provides guidelines Appellee. The trial court then granted the motion to quash relating to the sufficiency of an indictment. See, e.g., and ordered the State to re-file its indictment to assert Article 21.03 ("Everything should be stated in an with specificity which purchases were allegedly indictment which is necessary to be proved."); Article unauthorized. On appeal, the State asserted that the 21.04 ("The certainty required in an indictment is such as indictment included all elements of the offense, and left will enable the accused to plead the judgment that may be out only evidentiary matters not required to be pled. The given upon it in bar of any prosecution for the same Court of Appeals held that the trial court abused its offense."); Article 21.11 ("An indictment shall be deemed Page 3 154 S.W.3d 599, *601; 2004 Tex. Crim. App. LEXIS 1648, **6

sufficient which charges the commission of the offense in nature of the charges against the accused ordinary and concise language in such a manner as to in our system of justice, a timely claim of enable a person of common understanding to know what inadequate notice requires careful is meant, and with that degree of certainty that will give consideration. . . . When the defendant the defendant notice of the particular offense with which petitions for sufficient notice of the state's he is charged, and enable the court, on conviction, to charge by motion to quash adequately pronounce the proper judgment. . . ."). setting out the manner in which notice is deficient, the presumption of innocence Here, the indictment followed the statute for coupled with his right to notice requires misapplication of fiduciary property, which provides: that he be given such notice.

A person commits an [**7] offense if he Drumm v. State, 560 S.W.2d 944 at 946-47. Thus, the intentionally, knowingly, or recklessly accused has the right to notice that is specific enough to misapplies [*602] property he holds as a allow him to investigate the allegations against [**9] fiduciary or property of a financial him and establish a defense. institution in a manner that involves substantial risk of loss to the owner of the We have considered issues similar to the one before property or to a person for whose benefit us in Swabado v. State, 597 S.W.2d 361 (Tex. Crim. App. the property is held. 1980), and Amaya v. State, 551 S.W.2d 385 (Tex. Crim. App. 1977). In Swabado, the defendant was charged with TEX.PEN.CODE. § 32.45(b). We have stated that tampering with a government record. He filed a motion to ordinarily, an indictment is legally sufficient if it quash the indictment, contending that it was vague and delineates the penal statute in question. Daniels, 754 ambiguous due to the fact that, as a nursing home S.W.2d at 218; Thomas v. State, 621 S.W.2d 158, 161 administrator for several years prior to the indictment, he (Tex. Crim. App. 1981) (opinion on rehearing); Haecker routinely prepared and filed government records v. State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978). including monthly staffing reports. Swabado, 597 S.W.2d However, these cases are different from the case before at 362-63. The trial court denied the motion. We held that us because the issue in them relates to whether the terms the trial court erred in denying the motion because the used in the indictment are sufficiently specific to provide indictment failed to identify the monthly staffing report notice to the defendant. Thus, this rule applies when the on which the State would rely. Id. at 364. Thus, the indictment is framed under a statute in which the act statutory language was insufficient to provide the constituting the offense is defined so that the accused is defendant with notice of the offense. informed of the nature of the charge. Haecker, 571 S.W.2d at 921. Additionally, this rule does not mean that The defendant in Amaya was required to make many a trial court cannot require the State to amend an statements to the Department of Public Welfare. The indictment which tracks the [**8] language of the statute information alleging welfare fraud failed to allege which when more notice is needed so that the accused can of the defendant's statements was false. We stated that, adequately prepare a defense. "if a proper exception [**10] or motion to quash is filed and brought to the attention of the court before trial, the Because fundamental constitutional protections are State must then respond by amending the indictment or involved, if a defendant files a timely motion stating that information to include a specific allegation of what the the indictment does not provide adequate notice, there are State will rely upon to convict." Amaya, 551 S.W.2d at some circumstances in which the trial court may require 387, citing American Plant Food Corp. v. State, 508 more information. In Drumm, the appellant filed a motion S.W.2d 598, 603 (Tex. Crim. App. 1974). We held that the to quash, stating that the information failed to give [*603] defendant was entitled, upon proper exception, to sufficient notice. The trial court overruled the motion. We know which false statement the State would rely upon for reversed the judgment and stated that: conviction. Amaya, 551 S.W.2d at 387. Thus, as a general rule, an indictment must give the defendant notice of Because of the fundamental notions of precisely what he is charged with so that he may prepare fairness that require adequate notice of the an adequate defense. However, in a case such as the one Page 4 154 S.W.3d 599, *603; 2004 Tex. Crim. App. LEXIS 1648, **10

before us, in which each unauthorized transaction was a outside the indictment to a report generated by the Texas separate criminal act but together constitutes the single Rangers to identify the unauthorized purchases. The trial offense of misapplication of fiduciary duty, details judge specifically rejected this idea and found that the regarding the specific acts on which the State intends to documents that had been provided to Moff did not rely are not required to be listed in the indictment, as long provide sufficiently specific notice to allow him to as they are provided by some other means. prepare [**13] his defense. 1

ANALYSIS 1 [STATE] I think that the best working blueprint we have at this point we've already The indictment in the case before us alleges that the produced to them, which is the ranger's 60-plus illegal purchases occurred "on or about and between page report. So that, in terms of theory of a case at [**11] January 1, 1993 and December 31, 1999." Similar this point, that's probably the best one we have. to the defendant in Swabado, in his capacity as Chief Appraiser of the Nueces County Appraisal District, Moff [COURT] Have you folks been talking to the used money and credit cards to make numerous purchases - - to the federal government? That's how - - that's of equipment and supplies during the time period alleged what they do. They produce hundred-page in the indictment. Although the indictment correctly documents and go "Somewhere in there lies the tracks the language of the statute, in this type of case, that offense." alone is not sufficient to fulfill the constitutional and statutory requirements of specificity. It is unreasonable to *** require the defendant to gather evidence and prepare a But it seems to me that there seems to be a defense for each of the credit card and cash transactions notice problem. You've got the dollar amount but he made during the seven-year time frame in the there's got to be some documentation that says: indictment. Thus, additional information that is Well, Mr. Moff, on this date did A and this is reasonably necessary for the defense to prepare its case what we say he did, he misappropriated or used a must be provided. This is not to say that the State must credit card. lay out its case in the indictment, only that the defendant must be informed of the specific transactions that *** allegedly violate the statute. We recently stated in Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003), It seems to me that if I'm going to sit here and that "this due process requirement may be satisfied by we have a jury in the box, that a person that's means other than the language in the charging accused of a crime needs to know what he or she instrument." In Kellar [**12] , prior to trial, the State is accused of. For the State to say, "Well, between filed an itemized list containing the dates, check numbers, '93 and '99," and produce whatever documents, and amounts of each transaction, which provided the and just throw it against the wall is not serving defendant with sufficient notice to prepare his defense. anyone, including Mr. Moff or any accused that This is not meant to imply that the notice requirement is comes into court. always satisfied by discovery. For example, the State may not conduct "trial by ambush," in which the information *** necessary to provide notice is buried somewhere in a mass of documents turned over to the defendant. The trial [DEFENSE] All I'm asking them to do is court must determine whether the notice given to the identify out of the thousands of pages of defendant is sufficient and should quash the indictment if documents they've produced which ones reflect the notice is not specific enough. Therefore, the trial something that they can - - that they contend was court did not err in quashing the indictment because the illegal. State failed to give Moff sufficiently specific notice of [**14] [*604] Because the indictment was the particular act or acts with which he is charged. quashed and the State appealed the decision of the trial We note that in the pre-trial hearing and at oral court rather than re-file the indictment, there has been no argument, the State suggested that Moff should look trial. Since there was no trial from which to show harm, the situation before us is not subject to a harm analysis. Page 5 154 S.W.3d 599, *604; 2004 Tex. Crim. App. LEXIS 1648, **14

Conclusion Appeals is reversed, and the cause is remanded to the trial court to resume the proceedings. We hold that, because the State failed to provide sufficient notice to inform the accused of the specific acts Meyers, J. for which he was charged, the trial court did not err in quashing the indictment. The judgment of the Court of Page 1

TRACY PAUL TAYLOR, Appellant v. THE STATE OF TEXAS

NO. PD-0266-09, PD-0267-09, PD-0268-09

332 S.W.3d 483; 2011 Tex. Crim. App. LEXIS 326

March 9, 2011, Delivered

NOTICE: PUBLISH seventeen. On appeal, Appellant argued in part that the jury charges were erroneous because they did not limit SUBSEQUENT HISTORY: On remand at, Decision the jury's consideration to evidence of acts committed reached on appeal by Taylor v. State, 2012 Tex. App. after his seventeenth birthday. The court of appeals held LEXIS 581 (Tex. App. Houston 1st Dist., Jan. 26, 2012) that the error in the jury charges deprived Appellant of a fair and impartial trial. We granted review to consider the PRIOR HISTORY: [**1] effects of the instructions received and not received by ON STATE'S PETITION FOR DISCRETIONARY the jury in this case. We will reverse. REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY. I. PENAL CODE SECTION 8.07(b) Taylor v. State, 2009 Tex. App. LEXIS 430 (Tex. App. Houston 1st Dist., Jan. 22, 2009) Texas Penal Code Section 8.07(b) states: Taylor v. State, 2009 Tex. App. LEXIS 418 (Tex. App. Houston 1st Dist., Jan. 22, 2009) Unless the juvenile court waives Taylor v. State, 288 S.W.3d 24, 2009 Tex. App. LEXIS jurisdiction under Section 54.02, Family 7075 (Tex. App. Houston 1st Dist., 2009) Code, and certifies the individual for criminal prosecution or the juvenile court has previously [**2] waived jurisdiction JUDGES: MEYERS, J., delivered the opinion of the under that section and certified the Court, in which KELLER, P.J., and WOMACK, individual for criminal prosecution, a KEASLER, HERVEY, and COCHRAN, JJ., joined. person may not be prosecuted for or PRICE, J., concurred. JOHNSON, J., dissented. convicted of any offense committed before reaching 17 years of age except an offense OPINION BY: Meyers described by Subsections (a)(1)-(5). 1

OPINION TEX. PENAL CODE ANN. § 8.07(b) (emphasis added).

[*485] Appellant, Tracy Paul Taylor, was convicted 1 Subsections (a)(1)-(5) are not applicable in this of three offenses of aggravated sexual assault and case. sentenced to seventy years' confinement with a fine of $10,000 for each offense. Much of the testimony at trial II. PROCEDURAL HISTORY related to acts committed before Appellant turned Page 2 332 S.W.3d 483, *485; 2011 Tex. Crim. App. LEXIS 326, **2

The jury found Appellant guilty of three offenses of Appellant's seventeenth birthday. After reviewing the aggravated sexual assault, as charged in three separate court's proposed charge, defense counsel stated that she indictments. The earliest date cited among the had no objections. indictments was "on or about September 01, 2002." On that date, Appellant was seventeen years old. 2 Therefore, At the court of appeals, Appellant argued that, the indictments did not violate Section 8.07(b), nor did without an 8.07(b) instruction, the charges were the verdict forms, which referred back to the indictments. erroneous because the evidence presented at trial 3 The issue before this Court relates to the jury charges. included acts committed before he turned seventeen. The court of appeals agreed, concluding that without an 2 Appellant turned seventeen earlier that year on 8.07(b) instruction, "the charge authorized the jury to March 25, 2002. convict [A]ppellant based on acts he committed before 3 For two of the three offenses, the indictments his seventeenth birthday." Taylor v. State, 288 S.W.3d 24, evolved from the time they were originally filed 30 (Tex. App.--Houston [1st Dist.] 2009, pet. granted). to the time they were presented at the start of the trial. The altered allegations pertained to the dates The State now argues to this Court that, in the of the offenses and the specific methods of absence of any request for an 8.07(b) instruction from assault. However, the inconsistences do not affect defense counsel, the judge was not required to sua sponte our analysis because [**3] the final revised dates instruct the jury on this point. The State also argues that that were presented to the jury all fall after the court of appeals should have found any error to be Appellant's seventeenth birthday (as were all of harmless. 5 the dates in the original indictments); and the 5 We granted [**5] the following two issues: earliest date, after the revisions, remained September 1, 2002. (1) Is the age-based defense located in Section 8.07(b) of the Texas Penal Code a At trial, testimony referred to various years as the "defensive issue" (as opposed to "law applicable start of Appellant's abusive conduct, all pre-dating to the case") for purposes of determining whether Appellant's seventeenth birthday. A child-abuse the trial judge must sua sponte submit a jury pediatrician testified regarding her examination of the instruction on this defense? victim, which took place at the Children's Assessment Center in 2006. Her report, admitted into evidence, stated (2) Was Appellant harmed by any error that [*486] Appellant touched the victim inappropriately resulting from the absence of an instruction on the for the first time when the victim was seven. Appellant age-based defense located in Section 8.07(b) of would have been twelve at that time. The victim's father the Texas Penal Code when the victim testified dated the start of his daughter's contact with Appellant as that the worst abuse occurred after Appellant the fall of 1998, when the victim would have been eight turned 17 years old? and Appellant would have been thirteen. The victim's own testimony described the "worst" years of abuse as III. ARTICLE 36.14 AND THE LAW APPLICABLE her sixth through eighth grade years. She agreed with the TO THIS CASE State's assertion that in sixth grade she was ten and eleven. Appellant would have then been fifteen and The State's first issue asks if the trial judge was sixteen. 4 required to sua sponte submit an 8.07(b) instruction in this case. Code of Criminal Procedure Article 36.14 4 The record includes different dates of birth for details the requirements and procedures for the delivery the victim. The Children's Assessment [**4] of the court's charge to the jury. TEX. CODE CRIM. PROC. Center report lists June 12, 1990 as the victim's ANN. art. 36.14. It states, "the judge shall . . . deliver to date of birth, while the victim testified that her the jury . . . a written charge distinctly setting forth the birthday was October 1. Therefore, to a small law applicable to the case." Id. Article 36.14 also extent, these calculations are approximate. provides that, before the charge is read to the jury, "the defendant or his counsel shall have a reasonable time to The jury charges did not contain an 8.07(b) examine the same and he shall present his objections." instruction to limit the jury's consideration to events after Page 3 332 S.W.3d 483, *486; 2011 Tex. Crim. App. LEXIS 326, **6

[**6] Id. However, the judge's duty to instruct the jury on argues that an 8.07(b) instruction is a defensive issue in the law applicable to the case exists even when defense this case because defense counsel's theory at trial was that counsel fails to object to inclusions or exclusions in the Appellant never sexually assaulted the victim, not that he charge; this may require the judge to sua sponte provide only did so only before turning seventeen. 7 In other the jury with the law applicable to the case, under Article words, the State suggests that activating 8.07(b) and 36.14. So, even in the absence of action on the part of directing attention away from Appellant's pre-seventeen Appellant's defense counsel, if an 8.07(b) instruction conduct would have contravened the defense's theory that were the law applicable to this case, the trial judge was Appellant was innocent at every age. required, under Article 36.14, to include it in the jury charges. We must assess whether the jury charges set 7 To support this reading of the defendant's forth the law applicable to the case, [*487] and theory of the case, the State cites to defense specifically, whether an 8.07(b) instruction belonged in counsel's closing argument, where counsel stated, the jury charges. "the State simply has not met its burden of proof to you that Tracy Taylor committed these We have previously held that Article 36.14 imposes offenses." no duty on trial courts to sua sponte instruct the jury on unrequested defensive issues. Posey v. State, 966 S.W.2d A feature of a defensive issue is that it is a strategic 57, 62 (Tex. Crim. App. 1998). An unrequested defensive decision "generally left to the lawyer and the client." issue is not the law applicable to the case. Id. So, we must Posey, 966 S.W.2d at 63. However, the applicability of classify an 8.07(b) instruction as the law applicable to the Section 8.07(b) is not contingent upon any party's theory case or as an unrequested defensive issue. of the case. It is not within the defendant's (or counsel's) discretion to decide whether or not he may be prosecuted In Posey, the instruction we labeled an "unrequested for or convicted of offenses committed before turning defensive issue" was a mistake-of-fact instruction. Id. at seventeen. Even if the defense wanted to avoid a legally 59. The appellant argued [**7] that the trial court erred innocent [**9] argument, that does not change the fact by not instructing the jury sua sponte on that point. Id. that the jury in this case received evidence upon which The defense of mistake of fact is codified in Section they were statutorily prohibited from convicting 8.02(a) of the Texas Penal Code. 6 TEX. PENAL CODE Appellant. ANN. § 8.02(a). The close proximity of Sections 8.02(a) and 8.07(b) in the Penal Code, both in the General Due to the repeated testimony regarding Appellant's Defenses chapter, invites a comparison of the statutes. pre-seventeen conduct, the absence of an 8.07(b) Section 8.02(a) establishes mistake of fact as "a defense instruction in the jury charges is problematic. Further to prosecution," which correlates to its classification as a complicating matters is an instruction that was included: "defensive issue." Id. In contrast, Section 8.07(b) does not refer to a "defense" at all. TEX. PENAL CODE ANN. § You are further instructed that the State 8.07(b). Rather, it is a prohibition of prosecutions and is not bound by the specific date which the convictions based upon offenses committed before the offense, if any, is alleged in [*488] the age of seventeen. Id. indictment to have been committed, 8 but that a conviction may be had upon proof 6 Note that in Posey we explained that an 8.02(a) beyond a reasonable doubt that the instruction will not be a "defensive issue" in every offense, if any, was committed at any time case. Posey, 966 S.W.2d at 62. When a defendant within the period of limitations. The timely objects to the omission of the instruction in limitation period applicable to the offense the jury charge at trial, it will be the "law of aggravated sexual assault of a child is applicable to the case." Id. ten years from the date of the 18th birthday of the victim of the offense. In addition to studying the language of 8.07(b) and its general applicability, we must also consider the With this paragraph, the jury was instructed that it could particulars of the record before us in order to decide ignore the dates cited in the indictments and could whether an 8.07(b) instruction is the law applicable [**8] convict Appellant for any offense committed prior to the to this case or an unrequested defensive issue. The State Page 4 332 S.W.3d 483, *488; 2011 Tex. Crim. App. LEXIS 326, **9

victim's twenty-eighth birthday, which will fall in 2018. Appellant's charges established a certain future chronological limitation--the victim's 8 The dates alleged were the first, fifteenth, and twenty-eighth birthday--the past chronological thirtieth of September 2002 (all after Appellant's limitation was more vague; it simply provided seventeenth birthday). that the State was not bound by the specific dates alleged in the indictments. Alberty's instruction We noted [**10] a similar problem in Alberty v. more blatantly contravened Section 8.07(b)'s State, 250 S.W.3d 115, 116 (Tex. Crim. App. 2008), in prohibition of convictions based upon juvenile which indictments alleged that the defendant, as an adult, conduct. sexually assaulted a child. However, testimony described 10 The court of appeals [**12] in Alberty then incidents of assault dating from the time the defendant proceeded, under Almanza v. State (discussed was thirteen. Id. The jury charges in that case featured the infra), to determine that the defendant was following instruction, to which the defendant made no egregiously harmed. Alberty, 2008 Tex. App. objection: LEXIS 5252.

You are instructed that the State is not We, too, conclude that a jury charge is erroneous if it required to prove the exact date alleged in presents the jury with a much broader chronological the indictment. The term "on or about the perimeter than is permitted by law. The trial judge is [respective date]" means any date prior to "ultimately responsible for the accuracy of the jury the date of the filing of the indictment, charge and accompanying instructions." Delgado v. State, August 27, 2003, and within the Statute of 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). This is an Limitations. The Statute of Limitations for "absolute sua sponte duty," and, [*489] in this case, the this type of alleged offense is 10 years past trial judge had a sua sponte duty to provide an 8.07(b) the child's 18th birthday. 9 instruction. Id. Although the jury instruction here did not specifically refer to "any offense anterior to the Id. at 117. On appeal, the defendant asserted that the jury presentment of the indictment" as did the charge in charges were erroneous because "they instructed the jury Alberty, it did not limit the jury's consideration of such. that they could convict appellant of any offense anterior The absence of an 8.07(b) instruction, combined with the to presentment of the indictment and within the statutes evidence of Appellant's conduct as a juvenile and the of limitations, when in fact he could only be convicted of instruction that the jurors did receive--that "a conviction offenses occurring on or after his seventeenth birthday, may be had" for any offense committed before the July 7, 2001." Id. This issue, highlighting the tension victim's twenty-eighth birthday--ultimately resulted in between 8.07(b) and the statute-of-limitations [**11] inaccurate charges that omitted an important portion of instruction, was misconstrued by the court of appeals in the law applicable to the case. Therefore, we find a Alberty as a jurisdictional complaint. Id. We reversed and [**13] violation of Article 36.14 and must proceed to a remanded the case for resolution of the jury-charge issue. second step of analysis. Id. at 118. On remand, the court of appeals concluded that the jury charges were erroneous because the IV. ARTICLE 36.19 AND ALMANZA instruction received by the jurors contravened Section 8.07(b). Alberty v. State, No. 05-05-01687-CR, No. After finding error in the court's charges, we must 05-05-01688-CR, 2008 Tex. App. LEXIS 5252, *8-9 (Tex. next consider whether Appellant was harmed by the App.--Dallas July 16, 2008, no pet.) (not designated for error. Alberty, 250 S.W.3d at 119. Article 36.19 publication). 10 establishes the standard for reversal on appeal when the requirements of Article 36.14 11 have been disregarded: 9 Arguably, the statute-of-limitations instruction "the judgment shall not be reversed unless the error in Alberty was more injurious than the instruction appearing from the record was calculated to injure the featured in Appellant's jury charges because rights of defendant, or unless it appears from the record Alberty's explicitly stated that the offense could that the defendant has not had a fair and impartial trial." have occurred on "any date prior" to the filing of TEX. CODE CRIM. PROC. ANN. art. 36.19. the indictment. While the instruction in 11 Article 36.19 addresses appellate review for a Page 5 332 S.W.3d 483, *489; 2011 Tex. Crim. App. LEXIS 326, **13

group of statutes, not just Article 36.14. The other probative evidence, the argument of counsel and any articles to which this provision applies are 36.15, other relevant information revealed by the record of the 36.16, 36.17, and 36.18. TEX. CODE CRIM. PROC. trial as a whole." Almanza, 686 S.W.2d at 171. We will ANN. art. 36.19. examine "any . . . [*490] part of the record as a whole which may illuminate the actual, not just theoretical, In Almanza v. State, 686 S.W.2d 157 (Tex. Crim. harm to the accused." Id. at 174. Errors which result in App. 1985) (op. on reh'g), we construed Article 36.19 as egregious harm are those that affect the very basis of the presenting two distinct standards for jury-charge error, case, deprive the defendant of a valuable right, vitally the application of each determined by whether the affect the defensive theory, or make a case for conviction defendant objected at trial. 12 clearly and significantly more persuasive. Id. at 172; see Hutch, 922 S.W.2d at 171. 12 Note that Almanza does not apply unless the appellate court first finds a violation of Article A. J.G.'s Testimony 36.14 (or any [**14] of the other articles referenced in Article 36.19). Posey, 966 S.W.2d at J.G. testified that she began staying with Appellant's 60. "Neither 'harm' standard set out in Article family at the age of eight (when Appellant was 13 years 36.19 as construed by Almanza applies unless an old). J.G's father paid Appellant's twin sister, Sheena, to appellate court first finds 'error' in the jury babysit his daughter until he was able to pick her up after charge." Id. school, normally around 6:00 p.m. J.G. explained that Appellant initially treated her like an "annoying little sister," but this soon progressed such that he would be "mean" and make J.G. [**16] feel "uncomfortable." If the error in the charge was the subject Referring to the acts of molestation, J.G. testified that of a timely objection in the trial court, then "[i]n the beginning -- like when I first came to move reversal is required if the error is down here, it didn't happen as much. Then as the years "calculated to injure the rights of progressed, it progressed, what he did." defendant," which means no more than that there must be some harm to the The first instance that J.G. could remember when she accused from the error. felt "uncomfortable" happened in Appellant's mother's ... bedroom. J.G. could not recall her age at the time but did On the other hand, if no proper objection remember that, other than J.G. and Appellant, only was made at trial and the accused must Appellant's sick grandmother was home. Appellant asked claim that the error was "fundamental," he J.G. if she wanted to play "Doctor." Appellant proceeded will obtain a reversal only if the error is so to roll a new roller paint brush up and down her leg. Then egregious and created such harm that he he took off her "bottoms" and put the handle of the brush "has not had a fair and impartial trial"--in inside of her vagina. Appellant stopped when his short "egregious harm." grandmother threw a shoe at the bedroom door. J.G. also recalled an occurrence months later when Appellant Id. at 171. Because Appellant did not object to the instructed her to put a CoCoa Puff in her vagina and jury-charge error at trial, resolution of the instant case leave it there. J.G. pulled out the cereal when Appellant requires an egregious harm analysis, and we do not left the room. believe that egregious harm resulted from the charge error in this case. In addition, J.G. described an incident that took place when she was in the fifth grade. She stated that she knew As we have stated, "[e]gregious harm is a difficult it occurred shortly after she began going to Appellant's standard to prove and such a determination must be done house because she remembered the navy pants that she on a case-by-case basis." Hutch v. State, 922 S.W.2d 166, was wearing then. J.G. [**17] testified that, when no one 172 (Tex. Crim. App. 1996). In [**15] determining else was home, Appellant told her to go into the whether Appellant was deprived of a fair and impartial bathroom. There, he instructed her to stand on the toilet trial, we review "the entire jury charge, the state of the and pull down her pants, and he licked her vagina. evidence, including the contested issues and weight of Eventually, Appellant took J.G. into his bedroom, told Page 6 332 S.W.3d 483, *490; 2011 Tex. Crim. App. LEXIS 326, **17

her to take off all of her clothes, and "put his penis in when the family returned from North Carolina, at which [her] vagina." time she took J.G. to the police station to file a report.

Appellant began asking J.G. for oral sex "a lot," and The deputy from the Child Abuse Investigation Unit they had vaginal and anal sex "a lot." In fact, J.G. who was assigned to J.G.'s case took the stand, too. testified that "something" would happen nearly every Although he did not speak directly with J.G. during the time she went over to the house. She could remember course of the investigation, the deputy watched, via some instances clearly while others were only recalled in video, the interview between J.G. and a forensic flashes. Among the more vivid recollections were the interviewer. The deputy believed J.G.'s behavior to be times when Appellant instructed J.G. to put various consistent with other cases that he had seen involving things in her vagina (e.g., the top of a lava lamp, the sexual abuse. He also explained that a delayed outcry, handles of a broom and a hammer, an ice cube, a bar of one taking place some time after the initial abuse, was not soap, and a vibrator), and he would often attempt to push unusual. Subsequently, a psychologist and a professional the objects in farther. counselor with whom J.G. interacted at the Children's Assessment Center testified that J.G.'s behavior was This type of abuse continued for years. J.G. testified consistent with years of sexual abuse but on that the "worst" years were between sixth grade (when cross-examination acknowledged that the same J.G. was 10 and 11 and Appellant was 15 and 16) and symptoms occur in children that were not sexually eighth grade (when J.G. was 12 and 13 and Appellant abused. was 17 and 18). She also asserted that Appellant "did it a lot" when she was in the seventh, eighth, and ninth The pediatrician at the Children's Assessment Center [**18] grades, typically immediately after school. When who performed J.G.'s medical examination was called to J.G. would object to Appellant's demands, he would [**20] the stand next. She explained that J.G. seemed threaten to tell her father about the things that she had emotionally distraught and complained of headaches and done, such as sneaking clothes into school during the fifth blood in her stool. A physical examination showed that and sixth grades because her father thought they were too J.G. was healthy, with no signs of trauma. The doctor tight or too short. asserted that a normal exam is the most common finding in children who have been sexually abused because the [*491] The instances of abuse were not happening vagina heals quickly and it is not uncommon for the as much toward the end. J.G. claimed that about the time hymen to remain intact. During the examination of J.G.'s that Appellant started dating his future wife, she began to anus, the doctor discovered a hemorrhoid but no say "No" more often. J.G. stated that the molestation bleeding. On cross-examination, the doctor stopped when she turned 15 (at which time Appellant was acknowledged that the physical examination results 20 years old), but she emphasized that it occurred every concerning J.G.'s vagina and anus were also consistent day before that. In July 2006, the summer before she was with someone who had not been sexually assaulted. The to enter the eleventh grade, J.G. traveled to North physician's report indicated that Appellant touched J.G. Carolina with Appellant and his family to visit their inappropriately for the first time when the victim was relatives. During the trip, J.G. told Appellant's wife and seven (and Appellant would have been 12 years old) and sister-in-law about the abuse. the abuse continued until about six weeks before the exam (when Appellant was 20 years old). B. Other Testimony In Appellant's case-in-chief, several witnesses During its case-in-chief, the State called several testified and generally maintained that Appellant was other witnesses to testify. J.G.'s father testified that he never left alone with J.G., thereby suggesting that worked a lot, so J.G. would stay at Appellant's home Appellant would not have had the opportunity to molest during the day. She began spending time there in October J.G. Appellant's mother testified that J.G. was never 1998 (when she was eight years old), but her father was [**21] left alone with Appellant, but on unaware of any abuse until J.G.'s [**19] outcry in July cross-examination, she admitted that she worked long 2006. J.G.'s godmother attested similarly, stating that J.G. hours. Sheena asserted that she was paid to take care of began staying over at Appellant's home when she was J.G., so during those eight years, she was watching her all eight years old. She became aware of the sexual abuse Page 7 332 S.W.3d 483, *491; 2011 Tex. Crim. App. LEXIS 326, **21

of the time and never left her alone with Appellant. incident merged into another in J.G.'s recollection. The Sheena and her [*492] husband explained that Appellant State referred to the initial abuse that occurred when J.G. spent time at the library after school playing card games was in the fifth and sixth grades (before Appellant was 17 and Game Boy, and by the time he would return home, years old). However, it also highlighted that some of the J.G.'s dad would have already picked her up. A friend "worst" molestation occurred when J.G. was in the sixth, who stayed in the family's home during September 2002 seventh, eighth grades, as well as part of the ninth grade. (when Appellant was 17) maintained that she never saw The State further pointed out that Appellant was 17, 18, Appellant and J.G. together. Sheena's husband, who and 19 years old when J.G. was in the seventh, eighth, moved into Sheena's room in September 2002 and and ninth grades, and by doing so, the State emphasized remained there for three years, stated the same. an age range for Appellant that complied with Section 8.07(b). In its rebuttal, the State called Appellant's sister-in-law. She thought that she had seen Appellant D. Jury Charge and J.G. alone before, but she could not be sure. She also explained that after J.G. confided in her about the The jury charge erroneously instructed the jury that a molestation, she was worried about J.G. returning to conviction could be had for offenses "committed at any Texas in the same car as Appellant. The State also called time within the period of limitations," which was "ten Appellant's wife, who testified outside of the jury's years from the date of the 18th birthday of the victim of presence. She stated that she met Appellant when he was the offense." The State suggests that "[t]here is no 18 years old, and she was in disbelief when [**22] she language in the jury instruction suggesting the heard J.G.'s outcry because she had never seen Appellant consideration of dates before the presentment of the alone with J.G. indictment" and argues that (the jury charge instruction focuses on looking forward in time "[J.G.'s] eighteenth C. Arguments of Counsel birthday and beyond)." But we presume [**24] that the jury understood and followed the court's charges absent The defense's theory was that Appellant never evidence to the contrary. Hutch, 922 S.W.2d at 172. molested J.G. 13 During closing arguments, Appellant Therefore, the jury charge authorized the jury to convict, argued that the evidence was insufficient to prove beyond in part, based on acts committed [*493] before a reasonable doubt that he ever molested J.G. Appellant Appellant's seventeenth birthday; however, it also highlighted the testimony of several witnesses that he was allowed the jury to consider acts that occurred after his never alone with J.G. during the eight-year period when seventeenth birthday but before the limitations period the abuse allegedly occurred. He also indicated that J.G.'s expired. emotional and physical symptoms could logically occur for reasons other than sexual abuse. Taking the record as a whole, we believe that egregious harm did not result from the jury-charge error. 13 This was made clear in one of Appellant's The defensive theory was that no sexual abuse occurred first objections at trial. Outside of the jury's at any time. It is unlikely that the jury believed that presence, Appellant suggested that J.G. was Appellant sexually assaulted the victim before he turned making up the allegations against him--J.G. was 17 years old but not after. In this case, the jury either allegedly molested before she moved in with her believed Appellant or believed the victim. father, and that is where "she got the idea to start saying she was molested by [Appellant]." The This case can be distinguished from Hutch in which allegations of prior abuse were not developed at we held that egregious harm resulted from a charge error. trial. There, "the instruction was 180 degrees opposite of what is should have been." Id. at 172. We explained that "we In contrast, the State's closing statement stressed the must presume the jury followed the erroneous instruction consistency of J.G.'s testimony, including that the sexual which authorized the stop if appellant was wearing a seat abuse began when she was in the fifth grade and belt. In fact the opposite is true; such a stop would have continued until she turned fifteen. The State noted that been illegal. Under the erroneous instruction, [**25] the the abuse started [**23] off slow but increased in only way the jury could have convicted was by using frequency; in fact, the abuse occurred so often that one illegally obtained evidence." Id. Page 8 332 S.W.3d 483, *493; 2011 Tex. Crim. App. LEXIS 326, **25

Here, the error was the omission of an instruction, rather 36.19. than the presentation to the jury of an erroneous instruction. In contrast to Hutch, the jury in this case V. [**26] CONCLUSION could have convicted Appellant based upon evidence Section 8.07(b) is the law applicable to this case and presented, even if the proper instruction had been given therefore subject to sua sponte submission. Appellant was and Appellant's pre-seventeen acts were disregarded by not required to make an objection or request to have this the jury. The evidence showed an eight-year pattern of instruction included in the jury charges. See Huizar v. escalating sexual abuse of J.G. by Appellant. Appellant State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The turned 17 years old midway through the abusive period, court of appeals was correct to conclude that the trial meaning that he is subject to prosecution for his conduct court erroneously failed to instruct the jury on Section beginning on that birthday or March 25, 2002, and 8.07(b). However, the court of appeals erred in evidence of molestation that occurred after that date was concluding that the error resulted in egregious harm. We introduced at trial. For example, although J.G. described reverse the court of appeals and remand to the court of with more detail the instances that occurred during appeals to address the remaining issues. Appellant's juvenile years, she also described abuse that occurred when Appellant was 17, 18, 19, and 20 years Meyers, J. old. The State emphasized this in its closing argument. Delivered: March 9, 2011 Accordingly, we conclude that Appellant was not denied a fair and impartial trial and was, therefore, not Publish egregiously harmed. TEX. CODE CRIM. PROC. ANN. art. Page 1

WILBERT JAMES TEAL, Appellant v. THE STATE OF TEXAS

NO. PD-0689-06

230 S.W.3d 172; 2007 Tex. Crim. App. LEXIS 316

March 7, 2007, Delivered

NOTICE: [**1] PUBLISH that appellant knew that Curtis Brown, the person whose apprehension appellant was hindering, was a fugitive for SUBSEQUENT HISTORY: On remand at Teal v. State, Failure to Register as a Sex Offender. The court of 2007 Tex. App. LEXIS 9322 (Tex. App. Beaumont, Nov. appeals held that the district court never acquired 28, 2007) subject-matter jurisdiction to try the case because the indictment alleged only a misdemeanor. 2 We granted the PRIOR HISTORY: ON STATE'S PETITION FOR State's Petition for Discretionary Review to determine DISCRETIONARY REVIEW FROM THE NINTH whether "the court of appeals erred in holding that the DISTRICT COURT OF APPEALS ANGELINA indictment presented in this case was insufficient to vest COUNTY. the district court with subject-matter jurisdiction." We Teal v. State, 187 S.W.3d 80, 2006 Tex. App. LEXIS 1773 hold that, under Studer v. State, 3 the indictment sufficed (Tex. App. Beaumont, 2006) to vest jurisdiction in the district court. Therefore, we vacate the judgment of the court of appeals and remand the case to that [**2] court to address appellant's COUNSEL: For APPELLANT: Bill Burnett, remaining claims. Coldspring, TX. 1 TEX. PENAL CODE § 38.05. For STATE: Dale Summa, ASSISTANT DISTRICT 2 Teal v. State, 187 S.W.3d 80, 83 (Tex. ATTORNEY, Lufkin, TX. App.--Beaumont 2006). 3 799 S.W.2d 263 (Tex. Crim. App. 1990). JUDGES: COCHRAN, J., delivered the opinion of the Court, in which MEYERS, PRICE, KEASLER and I. HOLCOMB, JJ., joined. KELLER, P.J., filed a concurring opinion in which WOMACK and HERVEY, On June 8, 2004, Lufkin police received a JJ., joined. JOHNSON, J., concurred. Crimestopper's tip that a fugitive, Curtis Brown, was staying at appellant's house. When police officers arrived OPINION BY: COCHRAN at his house, appellant was sitting on the front porch with his front door open. Officer Burfine told appellant that OPINION they were looking for Brown, a fugitive with outstanding parole violator and sex offender warrants. He informed [*173] Appellant was indicted for the offense of appellant that both of these were [*174] felony warrants. hindering apprehension. 1 The indictment failed to allege Officer Burfine told appellant that they had information Page 2 230 S.W.3d 172, *174; 2007 Tex. Crim. App. LEXIS 316, **2

that Brown was in the house. Appellant said that he had degree felony under section 38.05, and vest the district seen Brown the night before, but that he had not seen court with subject-matter jurisdiction." 6 Because the Brown that day. He repeatedly denied that Brown was in charging instrument did not charge an offense that fell the house, and he refused to allow the police to enter his within the district court's jurisdiction, the court of appeals house. concluded that the district court should have transferred the indictment to a county court with misdemeanor Meanwhile, Officer Smith heard noises from the rear jurisdiction. 7 Justice Gaultney dissented and stated that [**3] of the house, so he went to check and discovered the indictment did vest the district court with jurisdiction. Brown attempting to flee. Officer Smith arrested Brown. 8 Relying on the Texas Constitution and this Court's The officers also found another man who had an decision in Studer v. State, Justice Gaultney concluded outstanding sexual assault warrant when they searched that the indictment was valid because "[a]n indictment appellant's house. vests the court with jurisdiction even if it fails to allege an element of the offense." 9 Appellant was indicted for the offense of hindering apprehension. The indictment alleged that appellant 5 Teal, 187 S.W.3d at 81. [**5] . . . then and there intentionally, with 6 Id. at 82. intent to hinder the arrest, prosecution, or 7 Id. at 83. punishment of Curtis Brown for the 8 Id. (Gaultney, J., dissenting). offense of Failure to Comply with 9 Id. (Gaultney, J., dissenting). Registration as a Sex Offender, did harbor or conceal Curtis Brown by stating to II. peace officers that Curtis Brown was not present at said residence occupied by The Texas Constitution requires that, unless waived defendant at a time when Curtis Brown by the defendant, the State must obtain a grand jury was then and there present . . . . indictment in a felony case. 10 Absent an indictment or valid waiver, a district court does not [*175] have As soon as the jury was empaneled, appellant objected to jurisdiction over that case. 11 An indictment also provides the indictment and argued that the district court did not a defendant with notice of the offense and allows him to have jurisdiction because the indictment alleged only a prepare a defense. 12 Further, the "constitutional misdemeanor, not a felony. 4 The trial court overruled his guarantee is intended to provide the accused an impartial objection. After hearing the evidence, the jury convicted body which can act as a screen between the rights of the appellant and sentenced him to two years in prison. accused and the prosecuting power of the State." 13

4 The misdemeanor offense of hindering 10 TEX. CONST. art. I, § 10. apprehension becomes a felony when the person 11 Cook v. State, 902 S.W.2d 471, 475-76 (Tex. who is being harbored "is under arrest for, Crim. App. 1995) (collecting cases and stating, charged with, or convicted of a felony . . and the "Jurisdiction vests only upon the filing of a valid person charged under this section knew that the indictment in the appropriate court."). person they harbored . . . is under arrest for, 12 Id. charged with, or convicted of a felony[.]" TEX. 13 Brian A. Kilpatrick, Comment, The PENAL CODE ANN. § 38.05(c). Constitutional Right to Indictment by a Grand Jury: Does It Survive after Studer v. State and the [**4] On appeal, appellant argued that the evidence 1985 Constitutional and Statutory Amendments?, was legally and factually insufficient and that the jury 44 BAYLOR L. REV. 345, 345 (1992); see also instructions were erroneous. 5 The court of appeals, Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. however, sua sponte addressed the issue of whether the App. 2000) (noting that indictments are used to trial court had subject matter jurisdiction. A two-justice "protect[] citizens against arbitrary accusations by majority of the court of appeals stated that the indictment the government."). failed to allege "that Teal had knowledge of Brown's felony fugitive status so as to facially charge a third [**6] Before 1985, defects of form and defects of Page 3 230 S.W.3d 172, *175; 2007 Tex. Crim. App. LEXIS 316, **6

substance in an indictment had very different results. 14 1978) (op. on reh'g) (even though indictment Failure to object to a defect of form waived any error on alleged that defendant supervised, controlled, and appeal, but the failure to object to a defect of substance managed prostitution ring, it was fundamentally did not waive error on appeal. 15 The reasoning was that defective because it did not allege that he an indictment that contained a substantive defect was "knowingly" did so); see also David Weiner, "void" and therefore insufficient to invoke the Comment, Particularity and Precision in Texas jurisdiction of the court. Under this reasoning, a Indictments and Informations: What Is defendant could attack a felony conviction based on a Fundamental Defect, 10 ST. MARY'S L.J. 281, substantively defective indictment on appeal, even 282-84 (1978-1979). though he had not objected at trial. 16 Defendants could [**8] "lie behind the log," and either plead guilty or take their 17 Robert R. Barton, Since 1985, Can an chances at trial and, if convicted, then raise a claim of a Indictment or Information Be "Fundamentally" "void" indictment in a later appeal or application for Defective for Failing to Charge an Offense?, 25 habeas corpus relief. 17 Numerous decisions from this ST. MARY'S L.J. 217, 222-224 (1993). "Being Court exhaustively debated the fine technical distinctions void, a judgment of conviction entered on an between defects of form and those of substance, and indictment or information containing such a numerous decisions from this Court reversed convictions defect of substance could be attacked by the years after the fact for [*176] defects of substance in the defendant at any time, either directly for the first indictment. 18 time on appeal or collaterally by postconviction application for writ of habeas corpus." Id. at 223. 14 See American Plant Food, Corp. v. State, 508 18 Studer cited several cases that demonstrate S.W.2d 598, 602 (Tex. Crim. App. 1974) (stating, the number and variety of convictions reversed "This distinction between an objection to the for indictment errors. See, e.g., Carpenter v. State, charge based on substance and one based on form, 551 S.W.2d 724, 725-26 (Tex. Crim. App. 1977) subtle though it be, is well founded in reason, in ("Hence, a false imprisonment indictment which justice, and in the logic of the Code of Criminal alleges mere restraint does not invoke the Procedure."). jurisdiction of the district court, unless the [**7] indictment also sets out the added penalty 15 See id. at 603 ("If the charge alleges an allegations of Section 20.02(c). . . . Clearly, the offense was committed by the defendant, then it is indictment in this case does not allege that the sufficient in law to support a verdict of guilty if appellant recklessly exposed the complainant to a one be rendered thereon. If it does not so allege, substantial risk of serious bodily injury; felony then it is utterly insufficient and any conviction false imprisonment has not been alleged."); Ex based thereon is void. A void conviction may be parte Winton, 549 S.W.2d 751 (Tex. Crim. App. challenged at any time and thus an exception to 1977) (indictment defective for failure to allege a the substance of the State's pleading . . . may be culpable mental state). See generally Pospishel v. raised for the first time on appeal.") (footnote State, 95 Tex. Crim. 625, 255 S.W. 738 (1923) omitted). (op. on reh'g); Williams v. State, 12 Tex. Ct. App. 16 See Studer, 799 S.W.2d at 266-68 (noting, 395 (1882); White v. State, 1 Tex. Ct. App. 211 "For more than a century cases have come from (1876). See also Fisher v. State, 887 S.W.2d 49, this Court holding that a defect in the 'substance' 55 n.8 (Tex. Crim. App. 1994) (detailing the of a charging instrument may be raised for the history of indictment dismissals pre-Studer: first time on appeal for it renders the charging "Some other defects of substance, in addition to a instrument 'fundamentally defective.'"). Some of missing element, that were recognized prior to the these indictment problems involved the failure to 1985 amendments included failure to allege date allege a specific element of the offense. See, e.g., of offense, culpable mental state, victim's name, Standley v. State, 517 S.W.2d 538, 540-41 (Tex. enhancement allegations, amount of a controlled Crim. App. 1975). Some errors concerned the substance, and manner and means of committing specificity of the indictment. See, e.g., Chance v. the offense where it is the manner and means that State, 563 S.W.2d 812, 813 (Tex. Crim. App. renders the act criminal.") (collecting cases). Page 4 230 S.W.3d 172, *176; 2007 Tex. Crim. App. LEXIS 316, **8

[**9] In 1985, the citizens of Texas and their objection on appeal or in any other legislature resoundingly rejected this hypertechnical case postconviction proceeding. Nothing in this law both by Constitutional amendment and by statute. article prohibits a trial court from The voters amended the Texas Constitution to include the requiring that an objection to an definition of an indictment. An indictment, as now indictment or information be made at an defined by the Texas Constitution, is earlier time in compliance with Article 28.01 of this code. 20 a written instrument presented to a court by a grand jury charging a person with the Additionally, the legislature amended article 28.01 to commission of an offense. An information ensure that the State had ample opportunity to repair is a written instrument presented to a court indictment defects and that the defendant received the by an attorney for the State charging a requisite notice of indictment changes, as well as an person with the commission of an offense. opportunity to respond to them: The practice and procedures relating to the [*177] (a) After notice [**11] to the use of indictments, and informations, defendant, a matter of form or substance in including their contents, amendment, an indictment or information may be sufficiency, and requisites, are as provided amended at any time before the date the by law. The presentment of an indictment trial on the merits commences. On the or information invests the court with request of the defendant, the court shall jurisdiction of the cause. 19 allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information. 19 TEX. CONST. art. V § 12(b); see also TEX. CODE CRIM. PROC. art. 21.01 (defining (b) A matter of form or substance in indictment as "the written statement of grand jury an indictment or information may also be accusing a person therein named of some act or amended after the trial on the merits omission which, by law, is declared to be an commences if the defendant does not offense"); see generally Studer v. State, 799 object. S.W.2d 263 (Tex. Crim. App. 1990) (detailing the legislative history of the constitutional (c) An indictment or information may amendment and changes to the Code of Criminal not be amended over the defendant's Procedure). objection as to form or substance if the amended indictment or information [**10] As part of the same reform package, the charges the defendant with an additional legislature amended several provisions of the Code of or different offense or if the substantial Criminal Procedure to ensure that indictment defects rights of the defendant are prejudiced. 21 could be objected to and repaired pretrial, but that these defects would not invalidate an otherwise valid The legislature's purpose in amending the constitution conviction if not raised before trial. For example, the and the statutes was to change the focus from "whether a implementing legislation added section (b) to article defect is fundamental [i.e. a defect of substance or not]" 1.14: to "whether the defendant brought the defect to the court's attention." 22 And the legislature intended the If the defendant does not object to a constitutional provision and statutes to work together. defect, error, or irregularity of form or That is, indictments charging a person with committing substance in an indictment or information [**12] an offense, once presented, invoke the before the date on which the trial on the jurisdiction of the trial court and jurisdiction is no longer merits commences, he waives and forfeits contingent on whether the indictment contains defects of the right to object to the defect, error, or form or substance. 23 The 1985 statutes clearly mandate irregularity and he may not raise the that defendants must object to errors in the form or Page 5 230 S.W.3d 172, *177; 2007 Tex. Crim. App. LEXIS 316, **12

substance of an indictment "before the date on which the trial on the merits commences[.]" 24 Thus, Texas law We also concluded that the 1985 constitutional now requires the defendant to object to any error in the amendment made the specifics of an indictment or indictment before the day of trial and certainly before the information statutory requirements, not constitutional jury is empaneled. requirements. 32 Thus, all substantive defects in indictments are waiveable under the statutes and these 20 TEX. CODE CRIM. PROC. art. 1.14(b). defects do not render the indictment "void." 33 21 TEX. CODE CRIM. PROC. art. 28.10. 22 Brian A. Kilpatrick, The Constitutional Right 25 Morrison v. Olson, 487 U.S. 654, 699, 108 S. to Indictment by a Grand Jury: Does It Survive Ct. 2597, 101 L. Ed. 2d 569 (1988) (Scalia, J. after Studer v. State and the 1985 Constitutional dissenting). See also Fisher v. State, 887 S.W.2d and Statutory Amendments, 44 BAYLOR L. 49, 55 (Tex. Crim. App. 1994) ("Expressing REV. 345, 350 (1992). frustration over the ability of a defendant to raise 23 Studer, 799 S.W.2d at 268. substantive defects in the indictment for the first 24 TEX. CODE CRIM. PROC. art. 1.14(b). time on appeal, the 69th Legislature submitted for Also, art. 1.14(b) and art. 28.10 are read together approval to the voters an amendment to article V, for the proposition that "[i]f the defendant fails to § 12 of the Texas Constitution which would give raise a substance defect prior to trial, he or she the legislature authority to regulate practices and waives that right; if the defect is raised, the State procedures relating to the use of indictments and can then amend the indictment to include the informations. The proposed amendment was missing element." Kilpatrick, supra, note 22 at approved by the voters, and the legislature 355. accordingly passed amendments to the Texas Code of Criminal Procedure, all effective [**13] This Court's first interpretation of the December 1, 1985.") (footnote omitted). indictment reform legislation did not come "clad, so to [**15] speak, in sheep's clothing." Instead this "wolf came as a 26 Studer, 799 S.W.2d at 264. wolf." 25 The wolf was Studer, and this Court was clear: 27 Id. at 264-65. The information alleged that raise indictment defects before the date of trial. In Studer, the defendant the defendant was charged by information with indecent exposure. 26 He pled nolo contendere, and, on direct did unlawfully then and there appeal, despite having failed to object in the trial court, intentionally and knowingly claimed that the information was fatally defective. 27 The expose his genitals to R.E. Bishop, defendant complained "that the information [*178] was hereinafter called complainant, defective for failing to 'allege, with reasonable certainty, with intent to arouse and gratify the act or acts relied upon to constitute recklessness[.]'" 28 the sexual desire of the said He argued that the trial court therefore never obtained [defendant], and the [defendant] jurisdiction. 29 In Studer, we addressed the legislative acted recklessly and in conscious history and purpose of the constitutional amendment 30 disregard of whether another and rejected the defendant's "fatally flawed indictment" person was present who would be claim: offended and alarmed by such act . ... Clearly both the House and Senate believed that all defects in a charging Id. at 265. instrument were waived if not raised by a 28 Id. defendant before trial. Clearly the 29 Id. perceived evil that they were correcting 30 See id. at 267-71 (setting out the history of was the raising of indictment defects for appellate reversals for indictment flaws and citing the first time after a trial and [**14] comments by Senator Ike Harris: "What this conviction and the subsequent reversal of basically does . . . it's a bill that deals with that that conviction because of that defect. 31 problem that has plagued the criminal justice Page 6 230 S.W.3d 172, *178; 2007 Tex. Crim. App. LEXIS 316, **15

system and the Court of Criminal Appeals over a statute of limitations, and holding that number of years, that involves a defective "jurisdiction was conferred upon the trial court by indictment which a defense goes to trial upon, the presentment of the charging instrument, even makes no objection, then raises on appeal for the if the charging instrument was flawed. . . . If the first time, then the court reverses, based upon that defendant failed to direct the trial court's attention defect in the indictment and the lower court has to the defects in the charging instrument before never had the opportunity to rule upon that trial, the defendant would be precluded from question. There are a number of cases that have raising those defects 'on appeal or in any been reversed on those technicalities."). See also postconviction proceeding.' Therefore, an id. at 274-284 (appendices containing the House indictment which charges the commission of an Legislative report and the Texas Legislative offense barred by limitations still confers Council report on the proposed constitutional jurisdiction upon the trial court, such that the amendment). defendant must bring the defect to the attention of [**16] the trial court in order to preserve any error."); Ex 31 Id. at 270-71. parte Morris, 800 S.W.2d 225, 227 (Tex. Crim. 32 Id. at 272. App. 1990) ("In the case at bar, the indictment in 33 Id. (stating, "In sum, the wording of Article V, question clearly fails to allege a constituent § 12(b), that provides 'an indictment is a written element of the offense of forgery, namely, that the instrument presented to a court by a grand jury writing purported to be the act of another 'who did charging a person with the commission of an not authorize the act.' . . . However, the charging offense; an information is a written instrument instrument was issued by the grand jury, filed presented to a court by an attorney for the State with the district clerk and purports to charge charging a person with the commission of an applicant with the primary offense of forgery. offense,' abolishes the former prerequisites to Pursuant to the rationale in Studer and Gibson, which the referred to charging instruments must this instrument is an indictment as contemplated adhere, lest they fail as charging instruments, at by Art. V, § 12(b). . . . Article 1.14(b) prohibits least from the standpoint of Art. V, Section 12."). applicant from raising the defect in the indictment We noted that the omission of an element of the for the first time in a postconviction offense was "still a defect of substance in an proceeding."); Rodriguez v. State, 799 S.W.2d indictment, [so] it naturally follows that the 301, 303 (Tex. Crim. App. 1990) (in evading indictment is still an indictment despite the arrest information, "[t]here [was] no allegation omission of that element." Id. at 268. that appellant knew the complainant was 'a peace officer attempting to arrest him.'. . . Thus, the In the five years after Studer, this Court addressed information failed to allege one element of the indictment defects and Studer related issues offense of evading arrest. The failure of a approximately thirty times. Those cases consistently charging instrument to allege an element of an reiterated the same proposition: "In Studer . . . we offense is a substance defect. . . . Clearly then, the interpreted the amendments [**17] to art. V, § 12(b) and information in this cause suffered from a defect of art. 1.14 and held a defect in a charging instrument is substance by failing to allege appellant knew the waived unless raised prior to trial." 34 complainant was a peace officer who was attempting to arrest him. But the information in 34 Ex parte Matthews, 873 S.W.2d 40, 41 (Tex. this cause was, 'on its face,' an information. Thus, Crim. App. 1994). See, e.g., Fisher v. State, 887 the information was not 'fundamentally defective', S.W.2d 49, 60-61 (Tex. Crim. App. 1994) and it did invest the trial court with jurisdiction. (addressing whether an indictment is facially We find, therefore, that appellant has waived this incomplete and analyzing the sufficiency of the defect under Art. 1.14(b) because of his failure to evidence in relation to that indictment); State v. object to this defect 'before the date on which the Yount, 853 S.W.2d 6, 8-9 (Tex. Crim. App. 1993) trial on the merits commenced.'"); Ex parte (considering whether an indictment is sufficient if Gibson, 800 S.W.2d 548 (Tex. Crim. App. 1990) it indicates an offense date that is barred by the (holding that defects, errors, and irregularities of Page 7 230 S.W.3d 172, *178; 2007 Tex. Crim. App. LEXIS 316, **17

either form or substance in an indictment or Can the trial court (and appellate courts who give information must be raised by pretrial objection or deference to the trial court's assessment) and the [**20] are waived in postconviction proceedings; defendant identify what penal code provision is alleged indictment that failed to allege year of alleged and is that penal code provision one that vests jurisdiction offense contained a substantive defect, but in the trial court? With this background, we turn to the because defendant failed to object to this defect present case. pretrial, he could not raise it in a postconviction proceeding). 39 Cook, 902 S.W.2d at 481 (Maloney, J., concurring). [**18] The "fatally flawed indictment" issue [*179] was raised again in Cook v. State, 35 in which the III. charging instrument did not charge "a person." No person Appellant alleges that the present indictment was was alleged to have committed the offense. This was too missing one of the elements that raises the offense of much. We noted in Cook that the 1985 constitutional Hindering Apprehension from a misdemeanor to a amendment defined an indictment: "To constitute an felony: indictment, the charging instrument must charge: (1) a person, and (2) the commission of an offense. It is clear, In order for the State to prosecute however, that if the charging instrument fails to charge a Appellant for the third degree felony person, then it is not an indictment as required by art. V, offense of hindering apprehension in § 12(b) and art. I, § 10." 36 It was this premise, that the district court the State had to additionally Constitution expressly required that a person be charged allege and prove that the person, in the with an offense, that led us to conclude that "[i]f the present case Curtis Brown, who was charging instrument fails to charge 'a person' then it is not allegedly being harbored or assisted was an indictment and does not vest the trial court with facing arrest, charge or had been convicted jurisdiction. Moreover, because a valid indictment is of a felony and that Appellant had essential for jurisdiction, it is not subject to waiver." 37 knowledge that the person (Curtis Brown) Accordingly, Cook held that, because the charging who he was allegedly harboring or instrument failed to charge a person, it did not meet one assisting had been convicted of a felony. of the two requirements of an indictment, and therefore, it 40 was not an indictment at all and did not vest any trial court with [**19] jurisdiction. 38

35 902 S.W.2d 471 (Tex. Crim. App. 1995). 40 Appellant's Brief at 7. 36 Id. at 477. 37 Id. at 480 (footnote omitted). [**21] Appellant further argues that "[e]ven though 38 Id. the indictment in the instant case did state that Curtis Brown did have felony fugitive status for failure to Studer and Cook are "book-end" cases. Studer held comply with Registration as a Sex Offender it failed to that the defendant must object to any indictment defects additionally allege that Appellant had knowledge of before the date of trial or forfeit any complaint about its Curtis Brown's felony fugitive status." 41 Thus, appellant sufficiency thereafter. Cook held that the Texas contends that the indictment was defective because it did Constitution requires that an indictment allege that (1) a not explicitly state that appellant knew that Curtis Brown person, (2) committed an offense. Without both of those was a felon. This defect, he contends, was jurisdictional elements the charging instrument is not an indictment and and thus it "may be raised at any time [because] . . . . does not vest the district court with jurisdiction. [j]urisdiction is a systemic requirement that cannot be waived or conferred by consent and which may be [*180] The proper test to determine if a charging considered at any time." 42 instrument alleges "an offense" is whether the allegations in it are clear enough that one can identify the offense 41 Id. alleged. If they are, then the indictment is sufficient to 42 Id. at 9. confer subject matter jurisdiction. 39 Stated another way: Page 8 230 S.W.3d 172, *180; 2007 Tex. Crim. App. LEXIS 316, **21

The State responds that it did allege that appellant the information. If the defendant does not object was harboring a fugitive, and "it is clear that the State to a defect, error, or irregularity of form or intended to prosecute the defendant for the felony offense substance in an indictment or information before of Hindering Apprehension, by including the language the date on which the trial on the merits 'with intent to hinder the arrest, prosecution, or commences, he waives and forfeits the right to punishment of Curtis [**22] Brown for the offense of object to the defect, error, or irregularity, and he Failure to Comply with Registration as a Sex Offender." may not raise the objection on appeal or in any 43 This offense is itself a felony, which, the State argues, other postconviction proceeding."). clearly indicates its intent to prosecute appellant for the [**24] felony offense of Hindering Apprehension. 44 47 Id. at 551 (concluding that "there is no doubt that the State intended to accuse appellant of 43 State's Brief at 14. indecency with a child," thus indictment 44 Id. at 14-15. Ample evidence at trial showed sufficient). that appellant had knowledge of Brown's felony status: Officer Burfine testified that he told Implicit within both Studer and Cook is that "the Appellant that (1) the police were looking for offense" charged must be one for which the trial court has Curtis Brown, (2) Curtis Brown was a fugitive, subject-matter jurisdiction. Although the "indictment" (3) Curtis Brown had an outstanding parole provision of the constitution explicitly speaks only of the warrant and a sex offender violation warrant, and two requirements of "a person" and "an offense," the (4) both were felony warrants. constitution also sets out the subject-matter jurisdiction of Texas courts. 48 An indictment must also satisfy the After Studer and Cook, courts must now look to the constitutional requirement of subject-matter jurisdiction indictment as a whole, not to its specific formal over "an offense." requisites. Constitutionally, district courts have jurisdiction over a felony when an indictment charging a 48 See TEX. CONST. Art. V, § 1; see Davis v. person with an offense is signed by the grand jury State, 956 S.W.2d 555, 557-59 (Tex. Crim. App. foreman and presented to the [*181] district court. In 1997) (discussing tendency to confuse jurisdiction Duron v. State, 45 this Court held that "a written of the court with authority of the judge). See TEX. instrument [**23] is an indictment or information under CONST. Art. V, § 8 (setting out jurisdiction of the Constitution if it accuses someone of a crime with district courts); TEX. CODE CRIM. PROC. art. enough clarity and specificity to identify the penal statute 4.05 ("District courts and criminal district courts under which the State intends to prosecute, even if the shall have original jurisdiction in criminal cases instrument is otherwise defective." 46 We stated that of the grade of felony, of all misdemeanors involving official misconduct, and of all that Studer and Cook require to misdemeanor cases transferred to the district court satisfy the mandate of Art. V, § 12 [is] that under Article 4.17 of this code."). an indictment charge "the commission of an offense." This is true whether an [**25] Thus, the complete test for the constitutional indictment fails to allege one element of sufficiency of a particular charging instrument goes an offense or whether it contains slightly further than that expressly set out in Studer and additional information that may indicate Cook: Can the district court and the defendant determine, innocence. 47 from the face of the indictment, that the indictment intends to charge a felony or other offense for which a district court has jurisdiction? Suppose, for example, that a named person is indicted for the offense of speeding. 45 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). The constitutional requirements of an indictment are 46 Id. at 550-51; see also Ramirez v. State, 105 met-- a named person and an offense-- but district courts S.W.3d 628, 629-30 (Tex. Crim. App. 2003) ("The do not have subject-matter jurisdiction over speeding appellant filed a motion to dismiss the complaint offenses, regardless of how "perfect" the wording of the based on the fact that her name was incorrectly set charging instrument might be. Thus, the indictment, out. . . . In this case, the appellant did not object to Page 9 230 S.W.3d 172, *181; 2007 Tex. Crim. App. LEXIS 316, **25

despite whatever substantive defects it contains, must be intentionally attempted to evade arrest; defect capable of being construed as intending to charge a waived because defendant did not object before felony (or a misdemeanor for which the district court has trial); Studer v. State, 799 S.W.2d 263 (Tex. Crim. jurisdiction). App. 1990) (indictment failed to set out the acts constituting the mens rea element of The element that was missing in this indictment was recklessness). whether appellant knew that Brown was a felony fugitive. [**28] This is one of the two mens rea requirements for 51 Appellant was indicted on August 12, 2004, Hindering Apprehension. 49 We have previously [*182] and trial did not occur until March 23, 2005, over upheld the validity of the indictment in several cases, seven months later. Appellant said nothing about including Studer itself, [**26] in which the mens rea the sufficiency of the indictment during those allegation was missing or defective. 50 In this case, the seven months. Because this indictment was indictment, as a whole, was sufficient to vest the district presented to a district court with felony court with subject-matter jurisdiction and give the jurisdiction, it is logical to assume that appellant defendant notice that the State intended to prosecute him prepared for a felony trial in district court, not a for a felony offense. It alleged whom appellant was misdemeanor trial in county court. hiding (Brown); it stated the offense Brown was hiding from (a felony); it alleged that appellant told police that Appellant did not object to the substance of the Brown was not present. Because Brown was alleged to be indictment until right after the jury had been empaneled. a fugitive "for the offense of Failure to Comply with His failure to make a timely objection before the date of Registration as a Sex Offender" which is a felony, the trial was exactly the type of action that the citizens of district court could conclude, from the face of the Texas summarily rejected in voting for the 1985 charging instrument, that the State intended to charge a constitutional amendment and the Texas Legislature felony hindering apprehension offense. It certainly was a prohibited in enacting the 1985 enabling statutes. 52 defective indictment because it omitted one of the two Appellant forfeited any right to object to indictment elements that raise hindering apprehension from a defects thereafter, and the court of appeals should not misdemeanor to a felony, but it was nonetheless have sua sponte reversed appellant's conviction on this sufficient to vest jurisdiction--it charged "an offense" and basis. Therefore, we vacate the judgment of the court of one could fairly conclude from the face of the charging appeals and remand the case to that court to address instrument that the State intended to charge a felony appellant's original complaints [**29] of legal and offense. If appellant was confused about whether the factual sufficiency and jury charge error. State did or intended to charge him with a felony, he could have and should [**27] have objected to the 52 See Brian A. Kilpatrick, The Constitutional defective indictment before the date of trial. 51 Right to Indictment by a Grand Jury: Does It Survive after Studer v. State and the 1985 49 Under section 38.05, the State must prove Constitutional and Statutory Amendments, 44 that the defendant (1) intended to hinder the arrest BAYLOR L. REV. 345, 348 (1992) (stating that of the fugitive, and (2) knew the person was a "[t]he existence of the fundamental defect fugitive. To raise to offense from a misdemeanor doctrine was problematic because it encouraged to a felony, the State must prove that the "sandbagging" techniques by defendants. In other defendant (1) intended to hinder the arrest of a words, when the defendant's counsel discovered a felony fugitive, and (2) knew the person was a fundamental defect in the charging instrument, felony fugitive. TEX. PENAL CODE § 38.05(c). withholding such information was usually in the 50 See, e.g., State v. Oliver, 808 S.W.2d 492, defendant's best interest. Only upon losing the 493-94 (Tex. Crim. App. 1991) (indictment that trial would the defect be brought to the appellate failed to allege culpable mental state in possession court's attention."). of controlled substance case is still an "indictment" conferring jurisdiction); Rodriguez Delivered: March 7, 2007 v. State, 799 S.W.2d 301, 302-03 (Tex. Crim. App. Publish 1990) (indictment did not allege that appellant Page 10 230 S.W.3d 172, *; 2007 Tex. Crim. App. LEXIS 316, **29

CONCUR BY: KELLER offenses could contain those allegations. Under Duron, this simply would not [**32] be enough information to CONCUR allege an offense.

[*183] Article 1.14 provides that a defendant But even under appellant's reasoning, the indictment forfeits appellate review if he "does not object to a defect, in the present case alleges an offense: it at least alleges error, or irregularity of form or substance in an the misdemeanor offense of hindering apprehension. 7 indictment . . . before the date on which the trial on the That is an offense that is insufficient to invoke the district merits commences." 1 The statute essentially [**30] court's jurisdiction, but it is an offense nonetheless. The dictates a three-step process for reviewing appellate State, of course, contends that the indictment alleges complaints relating to indictments: (1) Is there an more than that, charging the felony offense of hindering indictment? (2) If so, is the indictment defective, apprehension. But the fact that an offense of some sort is erroneous, or irregular in some respect? (3) If so, did the alleged is not in dispute. Therefore, under the Texas defendant lodge a timely objection to the defect, error, or constitution, the written instrument in this case is, irregularity? The Court treats the issue before us as a step indisputably, an indictment. (1) inquiry, but I believe that the pivotal issue is actually a step (2) inquiry. 7 See TEX. PEN. CODE § 38.05(a), (c).

1 TEX. CODE CRIM. PROC., Art. 1.14(b). 2. Is the indictment defective?

1. Is there an indictment? The real question in this case is what kind of offense is being charged in the indictment? That question brings According to the Texas Constitution, an indictment us to step (2) of the inquiry, whether the indictment is is "a written instrument presented to a court by a grand defective, erroneous, or irregular. Even when an jury charging a person with the commission of an indictment is error-free, a defendant can raise [**33] a offense." 2 In Cook v. State, we held that this language claim that he was convicted of an offense that was not literally required a "person" to be named as the authorized by the facially complete indictment. 8 [*184] perpetrator in the written instrument in order for that Under those circumstances, the defendant can argue instrument to qualify as an indictment. 3 In Duron v. persuasively that the indictment was not defective, and State, we addressed the requirement that an indictment thus, there was nothing to object to prior to trial. In that charge an "offense." 4 We held that an "offense" is situation, there is no indictment error; rather, there is charged [**31] if the written instrument "accuses error in charging the jury or in rendering judgment on an someone of a crime with enough clarity and specificity to offense that the indictment does not authorize. If, for identify the penal statute under which the State intends to example, an indictment contains allegations necessary to prosecute." 5 If the written instrument purporting to be an establish the offense of robbery but contains no additional indictment does not in fact qualify as an "indictment," allegations that would suggest the greater offense of then the defendant is exempted from the usual aggravated robbery, 9 then there may be no error in the requirement that he object to defects in the indictment indictment but error would occur at trial if the before the date of trial. 6 prosecution were permitted to pursue an aggravated robbery conviction. A defendant must preserve such a 2 TEX. CONST., Art. V, § 12(b). complaint by objecting at trial. 10 3 902 S.W.2d 471, 480 (Tex. Crim. App. 1995). 4 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). 8 Sutton v. State, 899 S.W.2d 682, 686 (Tex. 5 Id. Crim. App. 1995). 6 Id. at 550 (citing Cook, 902 S.W.2d at 478). 9 Compare TEX. PEN. CODE § 29.02 with § 29.03. Duron's standard for determining when an "offense" 10 If the error is considered to be in the jury is alleged can be understood through the following charge, then even without an objection, the error example. Suppose the purported indictment alleged only would be subject to the Almanza "egregious the name of the perpetrator and a culpable mental state: harm" standard. e.g. "John Smith intentionally." Any number of criminal Page 11 230 S.W.3d 172, *184; 2007 Tex. Crim. App. LEXIS 316, **33

[**34] In appellant's case, however, we are not be incomplete if it appears to allege only a confronted with a facially complete indictment alleging misdemeanor but was filed in district court, and the misdemeanor offense of hindering apprehension. The the misdemeanor is not one of those few that are misdemeanor offense of hindering apprehension does not sufficient to invoke the district court's jurisdiction. require proof that the fugitive committed a felony Under those circumstances, the State's filing of offense, but the felony offense of hindering apprehension the indictment in district court evidences its intent does. 11 The indictment in this case contains an additional to prosecute a felony offense, and a felony offense allegation that suggests the greater offense of felony exists to which the allegations in the indictment hindering apprehension: that the harbored fugitive was might reasonably pertain. Of course, where a wanted for the offense of "failure to comply with misdemeanor is not related to any felony offense registration as a sex offender," which is a felony offense. for which a district court would have jurisdiction, Consequently, we have an incomplete indictment alleging such as in the "speeding" example given by the the felony offense of hindering apprehension, so the Court, then an indictment alleging such an offense indictment was defective, and appellant was required by would not be capable of conferring such statute to lodge a pretrial objection to preserve error on jurisdiction. appeal. 12 [**35] I concur in the Court's judgment. 11 See § 38.05(a), (c). 12 See Studer v. State, 799 S.W.2d 263 (Tex. Date filed: March 7, 2007 Crim. App. 1990). I also believe that when the Publish lesser and greater offenses straddle the misdemeanor-felony divide, an indictment could