Duron v. State

956 S.W.2d 547, 1997 Tex. Crim. App. LEXIS 76, 1997 WL 616201

• Court: Court of Criminal Appeals of Texas
• Decided: October 8, 1997
• Docket: 0568-96
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

More than a decade ago, the people of Texas and their elected representatives attempted to overcome years of charging instrument case law through constitutional amendment and related legislation. It was the consensus of lay and professional opinion that defects in the pleading of indictments and informations ought not to affect the jurisdiction of trial courts to proceed with an adjudication of guilt. The most widely-held view was that, contrary to long-standing judicial interpretation, the ends of criminal justice would best be served by providing that convictions not be reversed on account of any pleading defects which were not called to the attention of the court prior to trial. In 1985, a statute to this effect was enacted. Tex. Code Crim Proc. art. 1.14(b).

But from the beginning, the meaning and effect of this statute were unclear. Although art. 1.14(b) plainly provided that failure to object before trial to the form or substance of an “indictment or information” forfeited the right of a defendant to complain about it on appeal, there remained considerable disagreement about whether this rule applied to an accusatory pleading which only purported to be, but was not in fact, an “indictment or information” as defined in the Texas Constitution. See 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 information” at all within the meaning of the Texas Constitution, and that any conviction based upon such an instrument was, therefore, not merely defective or irregular but absolutely void. After some five years of litigation in the intermediate appellate courts, we held in Studer v. State, 799 S.W.2d 263, 272 (Tex.Crim.Proe.1990), that the constitutional mandate that an indictment “charge an offense” does not mean “that each element of the offense must be alleged ...” It has been argued that Studer's holding necessarily means that a pleading need not charge the “commission of an offense” to qualify as an indictment or information under the Texas Constitution. Studer, 799 S.W.2d at 293 (Clinton, J., dissenting); Cook v. State, 902 S.W.2d 471, 483 (Tex.Crim.App.1995)(Meyers, J., dissenting). Indeed, later case law, citing Studer, only requires that an indictment purport to charge an offense in order to vest the trial court with jurisdiction, implying, perhaps, that an indictment no longer need actually charge an offense. Ex parte Gibson, 800 S.W.2d 548, 551 (Tex.Crim.App.1990); Ex parte Morris, 800 S.W.2d 225, 227 (Tex.Crim. App.1990).

But this Court has gleaned a different meaning from Studer and its progeny. In Cook v. State, 902 S.W.2d 471 (Tex.Crim.App.1995), we revisited the very argument advanced five years before in Studer, that an instrument purporting to be an indictment or information is not really an indictment or information unless it actually charges “a person with the commission of an offense.” In Cook, however, this argument was directed, not at failure of the purported pleading to charge an offense, but at its failure to charge a person. We accepted the argument, expressly holding that “to comprise an indictment within the meaning provided by the constitution, an instrument must charge: (1) a person; (2) with the commission of an offense.” 902 S.W.2d at 476. Because the written instrument in Cook did not allege the identity of any person, we held that it was not an indictment or information and the trial court had therefore never acquired jurisdiction to adjudicate Cook guilty of any criminal offense. Accordingly, we reversed his conviction and ordered that the purported charging instrument be dismissed.

Thus, in Cook, we emphasized that a written instrument must charge a person with the commission of an offense in order to qualify as an indictment. But we did not elaborate upon this basic constitutional definition of an indictment. The only indication of what it meant to charge a person “with the commission of an offense”, in fact, came not in the majority opinion, but in Judge Malo-ney’s concurring opinion. Joining the Court, Judge Maloney stated that:

... [i]f enough is alleged to enable the identification of an offense for purposes of subject matter jurisdiction under the constitution, but the allegations are nevertheless deficient so that technically it does not appear than an offense was committed, there is a waivable defect of substance.

Cook, 902 S.W.2d at 483 (Tex.Crim.App.l995)(Maloney, J., concurring). Judge Maloney’s understanding of Studer was inspired, at least in part, by Fisher v. State, 887 S.W.2d 49 (Tex.Crim. App.1994). See Cook, 902 S.W.2d at 480 (Clinton, J., concurring) and 481 (Maloney, J., concurring) and 484 (Meyers, J., dissenting). In Fisher we addressed the problem of measuring the sufficiency of evidence against jury charges that, after Studer, could no longer be assumed to incorporate indictments that alleged all the elements of the offense charged. There we held that the sufficiency of evidence to support a conviction under an instrument which does not charge all the elements of an offense should be measured on appeal against the statutory offense which the State intended to charge, at least if it is possible to determine from the face of the instrument which statutory offense the State really intended. Fisher, 887 S.W.2d at 55.

But the Court in Fisher never squarely addressed the question of what need be in a written instrument before that instrument may be considered an indictment. Although Judge Maloney suggested an answer in Cook, he did not speak for the Court. And so, confusion on the topic persists.

As this Court noted in Studer, the legislative history behind the 1985 amendment and its attendant legislation indicates that those changes meant to preserve a written instrument as an indictment even “though it be flawed by matter of substance ...” Studer, 799 S.W.2d at 271. But, as we emphasized in Cook, not all “indictment” defects are matters of substance such that a defendant must object to them before trial or lose his right to complain about them on appeal. Some defects, instead, remove the written instrument from the ambit of art. 1.14(b) because they render the: instrument a non-indictment. Cook, 902 S.W.2d at 478. Judge Maloney understood those defects to be of the type that would make it impossible for the defendant to know with what offense he had been charged. The legislative history behind the 1985 changes supports this understanding:

In essence what this [proposal] does is [to redefine] what an indictment is. And [it] actually defines it in fairly specific terms as to what ... an indictment is supposed to do ... Obviously, it is still important that each and every person charged with an offense know what he is charged with. The definition under the [proposal] would do that. It would advise that person essentially what he is charged with, but you don’t have to worry about whether you described the car sufficiently, or the weapon sufficiently, or those things, as long as it gives some kind of notice of what the charge is.

G. Dix, Texas Charging Instrument Law: The 1985 Revisions and the Continuing Need for Reform, 38 Baylor L.Rev. 1, at 39-40, n. 137 (Winter 1986), citing Hearing on Tex. H.R.J. Res. 7 Before the House Comm. On Criminal Jurisprudence, 69th Leg., (Feb. 18, 1985)(tape recording available from the Texas legislature).

This understanding is also in keeping with a defendant’s Tex. Const, art. I, § 10 rights to a grand jury screening. Id. at 43. Under art. I, § 10, a defendant has a right to have a grand jury pass upon the question of whether there is probable cause to believe that he committed a particular offense.¹ See Tex. Const, art. I, § 10, interp. commentary. A defendant also has a right, under art. V, § 12, to the presentment of an indictment from that grand jury. Id. While we have never expressly stated that the indictment must reflect the grand jury’s assessment that there is probable cause to believe that the defendant committed a particular offense, this becomes apparent when the two rights are juxtaposed. This is so because the written indictment most directly evidences that the proper grand jury screening has taken place. The effect upon these rights, the right to a grand jury screening and the right to have that screening reflected in a written instrument, by our interpretation of “indictment” under art. V, § 12 is obvious. If we allow a written instrument to stand as an indictment even when it does not contain enough information to point to the offense charged, then we seriously undermine a defendant’s art. I, § 10 rights to have the grand jury’s screening reflected in the indictment, and in so doing, a defendant also loses his assurance that the appropriate screening has taken place.² But in Cook v. State, 902 S.W.2d at 478, we stated that, to the extent possible, we ought not define an indictment under art. V, § 12 in such a way that we render a defendant’s art. I, § 10 rights to a grand jury screening meaningless. Recognizing this sentiment, we today adopt as law the suggestion, made by both Professor Dix and Judge Maloney, that a written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective. See Dix, Cook, 902 S.W.2d at 483 (Maloney, J., concurring).³

In the instant cause, we are once again asked to hold that a purported indictment is not really an indictment because it does not charge “the commission of an offense.” But unlike our earlier cases, this complaint is directed against a written instrument which does allege 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 desire, had sexual contact with a child younger than seventeen years of age who was not his spouse. These allegations contain all of the statutory elements of indecency with a child. See Texas Penal Code § 21.11(a)(1). But, according to appellant, the instrument also contains factual allegations establishing, if true, that he is not guilty of indecency with a child. It alleges that the sexual contact between appellant and the child occurred when appellant rubbed his penis between her legs. Appellant argues that, because the law defines “sexual contact” only as “any touching of the anus, breast, or any part of the genitals of another person,” and because legs are not included, the purported indictment does not actually charge the commission of an offense and is not, therefore, an indictment so as to confer jurisdiction on the trial court. The First Court of Appeals disagreed, holding that the written instrument was, indeed, an indictment because it was returned by a grand jury, purported to charge the appellant with the offense of indecency with a child, and was facially an indictment.

The court of appeals did not err. The instant cause does not involve a charging instrument which is even arguably defective on account of its failure to include one or more allegations necessary to give notice of the statutory offense with which the defendant was charged. As we have come to hold today, this is all that Studer and Cook require to satisfy the mandate of Art. V, § 12 that an indictment charge “the commission of an offense.” This is true whether an indictment fails to allege one element of an offense or whether it contains additional information that may indicate innocence. Thus, regardless of the inclusion of factual allegations that arguably evidence appellant’s innocence, there is no doubt that the State intended to accuse appellant of indecency with a child, and appellant does not claim otherwise.

The judgment of the court of appeals is therefore affirmed.

2 . It may be argued that a defendant can protect his art. I, § 10 rights by merely objecting to the indictment prior to trial as required by art. 1.14(b). But we have held that a defendant's art. I, § 10 rights to a grand jury indictment are not forfeited by the failure to object. King v. State, 473 S.W.2d 43 (Tex.Crim.App.l971)(The right to a grand jury indictment may be expressly waived but cannot be lost merely upon the failure to object); See also Ex Parte Long, 910 S.W.2d 485, 487 (Tex.Crim.App.1995) (Meyers, J., concurring).

3 . If it is trae that, under art. I, § 10, a defendant has the right to demand that the grand jury pass not only on whether there is probable cause that he committed a particular statutory offense, but on whether there is probable cause that he committed a particular statutory offense on a specific day and time, then it might be argued that a defendant has a right to have those details reflected in the indictment. See Flowers, supra. But to require that amount of specificity would undermine art. V, § 12 as recently amended. Of course, a defendant may complain, for the first time on appeal, that the specific incident of a statutory offense for which he was convicted differs from the specific incident (of the same statutory offense) for which he was indicted, but he cannot complain, for the first time on appeal, that the indictment is defective in that it did not reflect those details (and, thus, did not allow him to know what specific incident the grand juiy passed upon). Pursuant to art. 1.14(b), he must make that objection before trial.