Joshua Frank v. State

• Court: Court of Appeals of Texas
• Decided: August 30, 2019
• Docket: 03-19-00126-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00126-CR

Joshua Frank, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY NO. 2C17-02362, THE HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Joshua Frank was charged by information with assault causing bodily

injury, a Class A misdemeanor. See Tex. Penal Code § 22.01(a)(1), (b). After a bench trial, the

trial court found appellant guilty and assessed his punishment at 216 days’ confinement in the

county jail. See id. § 12.21. In a single point of error on appeal, appellant contends that the

charging instrument was defective. For the following reason, we affirm the trial court’s

judgment of conviction.

DISCUSSION

Tracking the language of the assault statute, the information in this case alleged

that appellant “did then and there intentionally, knowingly and recklessly cause bodily injury to

[the victim] by striking him on and about the head and face and body.” See id. § 22.01(a)(1). Appellant complains that the information failed to comply with article 21.15 of

the Code of Criminal Procedure because it failed to allege, with reasonable certainty, the manner

and means by which appellant recklessly committed the assault. See Tex. Code Crim. Proc.

art. 21.15 (requiring that charging instrument “must allege, with reasonable certainty, the act or

acts relied upon to constitute recklessness” “in order to be sufficient”).

However, appellant did not file a motion to quash the information, object to the

information, nor raise any claim that the information was defective. “If the defendant does not

object to a defect, error, or irregularity of form or substance in an . . . 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 any

other postconviction proceeding.” Id. art. 1.14(b); see Jenkins v. State, — S.W.3d —,

No. PD-0086-18, 2018 WL 6332219, at *6 (Tex. Crim. App. Dec. 5, 2018); Ramirez v. State,

105 S.W.3d 628, 630 (Tex. Crim. App. 2003); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim.

App. 1990).

Because appellant failed to make any pretrial objection to the information, he

waived and forfeited any contention that the information is defective because it failed to comply

with article 21.15. See Tex. Code Crim. Proc. art. 1.14(b). Accordingly, we overrule appellant’s

sole point of error.

CONCLUSION

Having concluded that appellant procedurally defaulted on his complaint about

the information, we affirm the trial court’s judgment of conviction.

2 __________________________________________ Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed

Filed: August 30, 2019

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