Garcia v. State

981 S.W.2d 683, 1998 Tex. Crim. App. LEXIS 160, 1998 WL 827683

• Court: Court of Criminal Appeals of Texas
• Decided: December 2, 1998
• Docket: 1176-95 to 1178-95
• Status: Published

Opinions

OPINION

MANSFIELD, Judge,

delivered the opinion of the Court,

in which McCORMICK, P.J., and KELLER, PRICE, and WOMACK, JJ.,

joined.

The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.”¹ Article I, § 10, of the Texas Constitution provides that, “[i]n all criminal prosecutions the accused ... shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.” The cases at bar present the question whether appellant, Arnoldo Roberto Garcia, was denied these basic constitutional guarantees.

The Relevant Facts

On April 28, 1993, a Cameron County grand jury returned three indictments in the 197th District Court charging appellant with three counts of indecency with a child. Each indictment contained a single count and alleged that, “on or about” a specified date, appellant had committed the offense by touching the genitals of a female child, M_ N_² See Tex. Penal Code § 21.11(a)(1). The three “on or about” dates specified in the indictments were October 5, 1987; August 15, 1989; and May 15,1990. The three cases were later consolidated for trial. See Tex. Penal Code § 3.02.

Shortly before trial began, appellant filed written motions in the District Court excepting to the form of the indictments and asking that they be quashed. See Tex.Code Crim. Proc. art. 27.09(2). In the motions, appellant noted correctly that, “when an indictment alleges that an offense occurred ‘on or about’ a particular date, the State is not bound by the date alleged, and may prove any offense of the character alleged, within the period covered by the applicable statute of limitations.” See Sledge v. State, 953 S.W.2d 253, 255-256 (Tex.Crim.App.1997); Mireles v. State, 901 S.W.2d 458, 459 (Tex.Crim.App.1995) (plurality opinion). Appellant then argued, in relevant part, that “[t]he failure of [each] indictment to specify a more exact date for [the] commission of the offense deprive[d] him of the right of adequate notice of the true nature and cause of the accusation against him,” in violation of, among other things, the Sixth Amendment and Article I, § 10. Appellant argued further that “the indictments] must be pleaded with sufficient certainty in order for [any resulting] judgments] to serve as a bar to subsequent prosecutions for the same conduct.” See Tex.Code Crim. Proc. art. 21.04.³ For relief, appellant asked the District Court “to order the indictments] ... dismissed, and to order the State to replead their cause with a date certain [or] plead that the offense[s] occurred within ... more specific time intervals].”

The District Court denied appellant’s motions during a pretrial hearing, and the jury later found appellant guilty under all three indictments. The District Court assessed appellant’s punishment at imprisonment for ten years for each offense, with the sentences to run concurrently.

On appeal, appellant argued that the trial court had erred in denying the motions to quash because the indictments had “failed to provide sufficient notice of the date of the alleged offenses, [thereby depriving appellant of] adequate notice of the time periods for which he needed to defend.” Appellant made no argument, however, based upon Article 21.04.

The Thirteenth Court of Appeals held that the trial court had not erred in denying the motions to quash, explaining that “[t]he alleged ‘on or about’ dates — October 5, 1987, August 15, 1989, and May 15, 1990 — sufficiently put appellant on notice to prepare for proof that the offenses happened at any time” within the statute of limitations period. Garcia v. State, 907 S.W.2d 635, 636 (Tex. App.—Corpus Christi 1995). We granted appellant’s petition for discretionary review to determine whether, in light of the Sixth Amendment and Article I, § 10, the Court of Appeals had erred. See Tex.R.App. Proc. 66.3(b).

Analysis

Both the Sixth Amendment and Article I, § 10, require that a defendant be given notice before trial of the “nature and cause” of the accusation against him, and require further that the notice be given with sufficient clarity and detail to enable the defendant to anticipate the State’s evidence and prepare a proper defense to it. See Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App.1997). Under Article I, § 10, the requisite notice must come from the face of the charging instrument. Ibid. Thus, an indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all the material elements of the offense charged. Bynum v. State, 767 S.W.2d 769, 779 (Tex.Crim.App.1989); Zweig v. State, 74 Tex.Crim. 306, 171 S.W. 747, 753 (Tex.Crim.App.1914).

Must an indictment specify the precise date when the charged offense occurred, or at least a narrow window of time within which it must have occurred, in order to satisfy the constitutional notice requirement? We hold that the answer is “no,” and we do so for three reasons. First, time is not a material element of an offense (at least, not usually).⁴ O’Connell v. State, 18 Tex. 343, 366 (1857). Second, the primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense but rather to show that the prosecution is not barred by the statute of limitations. Presley v. State, 60 Tex.Crim. 102, 131 S.W. 332, 333 (Tex.Crim.App.1910). Third, it may be impossible for the State to know precisely, or even approximately, when the charged offense occurred. See Sledge v. State, 953 S.W.2d at 256, n. 8. Thus, we reaffirm our prior holdings that it is not error, constitutional or otherwise, for an indictment to allege an “on or about” date for the charged offense. See, e.g., Presley v. State, 131 S.W. at 333; State v. Elliot, 34 Tex. 148, 151 (1870). Such an indictment will, except in rare instances, provide an accused with notice adequate to enable him to prepare a proper defense. In the unlikely event that the defendant is unfairly surprised at trial by evidence fixing the date of the offense very differently from that specified in the indictment, then “he should for that reason ask for a postponement that he might obtain evidence to meet the charge as made by the testimony.” Lingenfelter v. State, 73 Tex.Crim. 186, 163 S.W. 981, 983 (Tex.Crim.App.1914). Accord, A. Scott, Fairness in Accusation of Crime, 41 Minn. L.Rev. 509, 532 (1957).

We hold that the Court of Appeals did not err in holding that the District Court did not err in denying appellant’s motions to quash. We affirm the judgment of the Court of Appeals.

KELLER, J., also filed a concurring opinion in which WOMACK, J., joined.

MEYERS, J., filed an opinion concurring in the judgment of the Court.

HOLLAND, J., concurred in the judgment of the Court. BAIRD, J., filed a dissenting opinion. OVERSTREET, J., dissented.

1 . This right was made applicable to state prosecutions by the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965).

2 . One indictment also alleged, in separate paragraphs, that appellant had committed the offense in other ways with the same victim, but the State abandoned those paragraphs before the cases went to the juty at the guilt/innocence stage.

3 . Article 21.04 provides: “The certainly required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” This statutory requirement of “certainty” in an indictment is distinct from, and independent of, the constitutional requirement of adequate notice. See G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 20.104 (1995); 2 W. LaFave & J. Israel, Criminal Procedure § 19.2(b) at 445-446 (1984).

4 . It is possible, of course, for time to be made material by the definition of an offense. See, e.g., Tex. Aleo. Bev.Code § 105.01 (making it an offense to sell liquor on New Year's Day).