REVISED
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10605
MICHAEL EUGENE SHARP, Petitioner-Appellant, versus
GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas
February 26, 1997 Before POLITZ, Chief Judge, KING and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
Michael Eugene Sharp, a Texas death row inmate, appeals the
district court’s denial of habeas corpus relief. For the reasons assigned, we affirm.
Background
Late in the evening on Friday, June 10, 1982, Sharp forcibly
abducted Brenda Kay Broadway and her two daughters, Selena Elms,
then 14 years of age, and 8-year-old Christy Elms, from a car wash
near Kermit, Texas. Sharp then drove them to an isolated location
where he forced Broadway and Selena Elms to perform oral sex on each other and then stabbed Broadway and Christy Elms to death.
Selena managed to escape and, after she spent the night alone in
the woods, oil field workers discovered her the next morning,
unclothed and suffering from exposure.
Sharp was arrested on June 16, 1982. On June 19, 1982, he was
placed in a police line-up and Selena identified him as the
murderer of her mother and sister. On June 21, 1982, a Winkler
County grand jury returned three indictments charging Sharp with
the capital murders of Brenda Kay Broadway and Christy Elms and the
aggravated kidnaping of Selena Elms.
Upon motion for change of venue the defendant's trial was
moved to Lubbock, Texas where Sharp was tried and convicted of the
murder of Christy Elms. Because of a defect in the indictment the
death penalty could not be imposed and Sharp was sentenced to life
imprisonment. On November 17, 1982, the Winkler County Grand Jury
returned a new indictment charging Sharp with the capital murder of
Brenda Kay Broadway. The defense moved for change of venue and the
case was transferred to Crockett County.
Several months later Sharp was interviewed by Detective Jerry
Smith of the Odessa Police Department. Smith, who had interviewed
Sharp prior to his first trial, was investigating the disappearance
of Blanca Arreola, a young, pregnant Odessa woman who had been
missing since May of 1982. Although the record is somewhat unclear
whether Sharp admitted to murdering Arreola, he led authorities to
her buried body in a remote location in Ector County. The position
and location of 18-year-old Arreola's naked body was exactly as
2 described in Sharp’s statement to Smith.
At Sharp’s trial for Broadway’s murder the state presented
testimony from several women that Sharp had attempted to lure them
into his truck on the evening of the murders. This testimony was
followed by that of Selena Elms, by far the most compelling
evidence against Sharp, who unqualifiedly identified Sharp as the
murderer of her mother. The state also offered evidence that
Sharp's truck contained hairs matching that of the three victims,
that mud at the scene of the crime was consistent with mud at the
oil rig where Sharp worked, and that traces of human blood had been
found on Sharp's knife.
On May 19, 1983, Sharp was found guilty of murdering Broadway
and the punishment phase of the trial began. The state presented
evidence of the Broadway and Christy Elms murders and of Sharp’s
four prior state felony convictions, including two convictions for
aggravated robbery with a deadly weapon. The state also offered
the testimony of Detective Smith regarding Sharp’s involvement in
the Arreola murder. Defense counsel’s objection to this testimony,
on the grounds of surprise and its nature as an extraneous offense,
was overruled.
The defense presented no evidence during the punishment phase.
The jury returned affirmative answers to the two special issues
that same day and Sharp was sentenced to death. Sharp's conviction
and death sentence were affirmed on direct appeal by the Court of
3 Criminal Appeals.1 On May 2, 1989, Sharp filed for postconviction
relief in state court. The trial court denied relief and the Court
of Criminal Appeals affirmed in an unpublished order which adopted
the trial court's findings and conclusions.2
Sharp then filed a habeas corpus petition in the federal
district court. The magistrate judge, after several evidentiary
hearings, filed findings of fact and legal conclusions, ultimately
adopted by the district court, which recommended that Sharp's
petition for habeas relief be dismissed. The district court
granted Sharp a certificate of probable cause to appeal.3 This
appeal followed.
Analysis
We note at the outset that the magistrate judge found Sharp
had not procedurally defaulted any of his claims because the Texas
Court of Criminal Appeals, the last state court to review Sharp's
case, stated no grounds for its denial of writ. The state has
proffered on appeal, however, and the defendant confirms, that the
Court of Criminal Appeals issued an unpublished opinion along with
1 Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986) (en banc), cert. denied, 488 U.S. 872, 109 S.Ct. 190 (1988). 2 Ex Parte Sharp, No. 20, 189-02 (Tex.Crim.App. April 23, 1990). 3 Brown v. Cain, _____ F.3d _____, slip op. 1633 (Jan. 21, 1997). The certificate of appealability requirements of the AEDPA do not apply herein because of the grant of a certificate of probable cause before the effective date of the said Act. Were we to conclude otherwise, however, a COA appropriately would issue herein. Assuming without deciding that the standards of the AEDPA are applicable, and applying same to the facts of record, today’s result would be the same.
4 its order in which it adopted the findings and conclusion of the
state district court, including rulings on a number of procedural
defaults. This written order is of record and constitutes a clear
and express reliance on state procedural bars by the last Texas
court to consider Sharp’s case.4 Accordingly, we must apply the
doctrine of procedural default, as dictated by that order, to the
issues raised in this appeal.
We first consider Sharp’s claim that evidence of Blanche
Arreola’s murder, an unadjudicated prior offense, was presented
during the punishment phase of Sharp's trial in violation of
Sharp's fifth, sixth, and fourteenth amendment rights. This issue,
insofar as the contemporaneous objections by counsel were not based
upon the grounds urged on appeal, is procedurally barred. Because
our recent decision in Amos v. Scott5 forecloses Sharp’s argument
that the Texas contemporaneous objection rule is not an independent
and adequate state ground upon which to base a procedural bar to
federal review, Sharp is relegated to showing cause and prejudice
for his procedural default.6
To show cause, Sharp must demonstrate that “‘some objective
factor external to the defense impeded counsel’s efforts’” to lodge
4 Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991). 5 61 F.3d 333 (5th Cir.), cert. denied, 116 S.Ct. 557 (1995). 6 Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Sharp advances no claim of actual innocence regarding his conviction or sentence. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
5 timely the appropriate objection in the trial court.7 Sharp urges
that trial counsel was surprised by the evidence of the Arreola
murder because the prosecution withheld the relevant files and
denied in a pretrial hearing that such evidence existed. Assuming
these allegations of prosecutorial obstruction to be true, it
cannot be gainsaid that the evidence of the Arreola murder was
known to Sharp. He gave the police statements about the murder and
led them to the remote location where Arreola was buried, assisting
them in the recovery of the body. Because Sharp possessed at the
time of trial sufficient information upon which to base a proper
objection irrespective of the state’s conduct, we find no cause for
the failure to lodge a proper and timely objection.8
Sharp also contends that trial counsel’s failure to preserve
this error constitutes ineffective assistance of counsel under the
two-pronged test of Strickland v. Washington,9 thus establishing
cause for the procedural default.10 We find neither deficient
7 McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). 8 Id. 9 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong of the Strickland test requires us to stand in counsel’s shoes and determine whether, under the circumstances counsel faced, his or her decisions and actions were objectively reasonable in light of prevailing professional norms of conduct. Motley v. Collins, 18 F.3d 1223 (5th Cir.), cert. denied, U.S. , 115 S.Ct. 418, 130 L.Ed.2d 333 (1994). If under this standard we adjudge counsel’s performance to have been deficient, then we must determine whether there exists a reasonable probability that but for the complained-of error the outcome of the trial or appeal would have been different. Id. 10 Murray.
6 performance nor prejudice in this instance. Again, the
circumstances surrounding the discovery of the Arreola murder
evidence were well known to Sharp; thus, any error which occurred
due to Sharp’s withholding this information from his attorney was
not the fault of counsel and did not constitute deficient
performance.11 Furthermore, in light of the other evidence
introduced during the guilt and punishment phases demonstrating
Sharp’s savage and depraved disposition and the escalating nature
of his depredations, we cannot conclude that but for the admission
of the Arreola murder evidence there was a reasonable probability
that the jury would have responded differently in the penalty
phase.
We next address Sharp’s contention that he was denied his
sixth, eighth and fourteenth amendment rights to a fair and
impartial trial due to pretrial publicity and its effect upon the
jury panel. Sharp's counsel did not move for a change of venue or
a mistrial; thus, the issue was adjudged procedurally defaulted in
state court. As cause to justify this default Sharp again invokes
ineffectiveness of counsel under Strickland.
Our review of the record reveals that counsel’s performance
was not objectively unreasonable; only 15 of 72 prospective jurors
had an opinion about Sharp's guilt and all of the jurors who
11 As we have noted previously, “[c]riminal defense counsel need not be omniscient, and they are not always omnipotent with respect to the protection of a client’s rights.” Childs v. Collins, 995 F.2d 67, 69 (5th Cir.), cert. denied, 510 U.S. 1016 (1993); see also McCleskey at 498-99, 111 S.Ct. at 1472-73; Drew v. Collins, 964 F.2d 411 (5th Cir. 1992), cert. denied, 509 U.S. 925 (1993).
7 ultimately sat on Sharp's trial were accepted by Sharp's counsel
only after lengthy and probing questioning. While it is true that
trial counsel allowed onto the jury four jurors who knew Sharp had
been convicted of Christy Elms’ murder, the record reveals, and the
magistrate judge found, that the trial counsel’s confidence in the
ability of those jurors to act impartially was well-founded and
objectively reasonable in light of their sworn responses during
voir dire. In light of this finding, and given the deference
customarily owed to the tactical decisions of trial counsel in jury
selection,12 we cannot conclude that counsel’s performance was
deficient.
We next consider whether trial counsel was ineffective in
failing to discover and present relevant mitigating evidence at the
punishment phase. The mitigating evidence involved is that Sharp
was a family man and a good son. Given the horrendous
circumstances surrounding the murder for which he was on trial, and
the other evidence presented at the punishment phase, even if we
assume deficient performance we cannot conclude that the prejudice
prong of Strickland has been satisfied. Simply put, we do not find
it reasonably probable that the meager mitigating evidence
discussed in Sharp’s brief, put in its best possible light, likely
would have caused Sharp’s jury to reconsider its answers on the
12 “Our scrutiny of counsel’s performance [is] ‘highly deferential,’ and we must make every effort ‘to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’” Motley at 1226 (quoting Strickland at 689); see also Anderson v. Collins, 18 F.3d 1208 (5th Cir. 1994).
8 penalty phase issues.13
We next consider whether Sharp’s trial counsel was ineffective
by failing to preserve for direct appeal a Texas procedural defect
that would have mandated per se reversal of Sharp's conviction.
The first two subsections of Texas Code of Criminal Procedure
article 36.01(a) provide that, after the jury has been impaneled,
the indictment must be read to the jury by the prosecutor and the
defendant must enter a plea in open court. At the time of Sharp’s
conviction, failure to comply with this procedure, if properly
preserved, resulted in automatic reversal.14
After Sharp had been convicted and sentenced, he raised the
absence of the required procedures in a motion for a new trial.15
13 Cf. Callins v. Collins, 998 F.2d 269, 279 (5th Cir. 1993) (“the wantonness of the murder and Callins’ violent escapades after it ... would have overwhelmed the minimal mitigating evidence that Callins now argues should have been introduced at the capital sentencing phase”), cert. denied, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994); Wilkerson v. Collins, 950 F.2d 1054 (5th Cir. 1992) (school records and other evidence of impaired mental ability and prior good behavior insufficient, in light of state’s showing during punishment phase, to establish prejudice), cert. denied, 509 U.S. 921, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); Crockett v. McCotter, 796 F.2d 787 (5th Cir.) (attorney error resulting in the admission of four prior convictions insufficient to establish prejudice in light of the record), cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1986). 14 Essary v. State, 111 S.W. 927 (Tex.Crim.App. 1908). The purpose of this provision is to inform the accused of the charges against him, to inform the jury of the precise terms of the particular charge against the accused, and to allow the jury to hear for itself that the accused refutes or admits the charges. Barnes v. State, 797 S.W.2d 353 (Tex.App. 1990, no pet.). 15 The judgment signed by the trial court and the docket sheet recited, without objection, that the procedures required by art. 36.01(a)(1) and (2) were followed. Nonetheless, in a postconviction hearing in state court the trial judge testified that the indictment had not in fact been read and the plea had not
9 Attached to this motion was an affidavit by the court reporter
consisting of a transcript of the defendant's arraignment outside
of the jury’s presence at the beginning of trial.16 This transcript
excerpt purported to demonstrate that, although Sharp’s plea had
been taken during the arraignment, after the arraignment the trial
proceeded without the required reading of the indictment or the
taking of the plea in the jury’s presence. The trial court denied
this motion, and the case was appealed.
The Court of Criminal Appeals began by stating that the motion
for new trial was "a proper method to show error in the record."17
The court also noted, however, that article 44.24(a) of the Code of
Criminal Procedure created a presumption that the prescribed
procedures had been followed.18 The affidavit and transcript
been taken in the jury’s presence. The trial judge further testified that he had told several people that he thought the case would probably get reversed because of this oversight. The transcript of this testimony was made part of the federal record. 16 Arraignment is provided for in article 26.02 of the Code of Criminal Procedure; its purpose is to determine the identity and plea of the person charged. Tex. Crim. Proc. Code Ann. art. 26.02. The proper procedure would have been to seat the jury after the arraignment and at that time read the indictment and take the plea. Collins v. State, 548 S.W.2d 368 (Tex.Crim.App. 1976), cert. denied, 430 U.S. 959 (1977). 17 Sharp at 616. 18 Code of Criminal Procedure article 44.24(a) read as follows:
(a) The Court of Criminal Appeals shall presume that the venue was proved in the court below; that the jury was properly impaneled and sworn; that the defendant was arraigned; that he pleaded to the indictment; that the court’s charge was certified by the judge and filed by the clerk before it was read to the jury, unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record.
10 excerpt were adjudged insufficient to rebut this presumption
because, addressing only the arraignment at the start of trial,
they failed to demonstrate affirmatively that the prescribed
procedures had not been followed at some other juncture. The court
thereafer applied the article 44.24(a) presumption of regularity to
dispose of Sharp’s claim.
Sharp’s original brief is unclear regarding the particular
acts or omissions of trial counsel which constituted the alleged
ineffective assistance of counsel. In oral argument, however,
Sharp's habeas counsel focused upon the failure of trial counsel to
attach the correct affidavit to the motion for new trial. Habeas
counsel contends that if the error had been preserved in such a way
as to obviate the appellate court's ability to rely upon the
presumption of regularity in the lower court proceedings, the
result would have been automatic reversal. Based upon our review
of Texas jurisprudence we conclude that Sharp’s counsel did not
perform deficiently because a reasonably competent attorney could
not have known, prior to the Court of Criminal Appeals’ decision in
this case, that the motion for new trial would be deemed
insufficient to preserve the error adequately.19
Although repealed several months after the Court of Criminal Appeals decided this case, this article was incorporated nearly verbatim in Rule 80 of the Texas Rules of Appellate Procedure. 19 Pertinent to our inquiry is the line of jurisprudence absolving counsel who fail to comply with legal mandates which are uncertain, vague, or undecided at the time of the allegedly deficient conduct. See United States v. Rothrock, 20 F.3d 709, 713 (7th Cir. 1994) (counsel not deficient for failing to anticipate how a certain drug would be treated under Sentencing Guidelines, because "this was a difficult, unresolved legal issue"); Clark v.
11 Code of Criminal Procedure art. 44.24 applied a presumption of
regularity unless a departure from standard procedure was "made an
issue in the [trial] court" or "otherwise affirmatively appears to
the contrary from the record." The effect of this presumption on
review of the procedural error which occurred during Sharp’s trial,
however, is, at the very least, muddled in the jurisprudence. It
is well-settled that the issue may be preserved for appeal by a
timely objection during trial or by a motion for new trial, bill of
exception, or motion to arrest judgment.20 Prior to Sharp’s appeal
the rule appeared to be that any of these methods sufficed to "make
issue" in the trial court.21 The Court of Criminal Appeals’ opinion
in Sharp, however, holds that if the objection is lodged
postverdict, as a motion for a new trial or arrest of judgment
necessarily must be, then an "affirmative" showing of the error on
the record is required to overcome the presumption of regularity.
If Sharp's case had been resolved according to the line of cases
which appear to hold that postverdict preservation of error in the
trial court, e.g. a motion for a new trial, is sufficient to “make
Collins, 19 F.3d 959 (5th Cir.) (counsel not deficient by failing to object to racially-motivated peremptory strikes before Batson decided), cert. denied, 115 S.Ct. 432 (1994); United States v. Zweber, 913 F.2d 705, 712 (9th Cir. 1990) (counsel not deficient for failing to predict impact of collateral conduct when Sentencing Guidelines "were in initial stages of interpretation by the courts"). 20 Mays v. State, 101 S.W. 233 (Tex.Crim.App. 1907). 21 Johnson v. State, 42 S.W.2d 782 (Tex.Crim.App. 1931); Mays; Noble v. State, 99 S.W. 996 (Tex.Crim.App. 1907); Thompson v. State, 80 S.W. 623 (Tex.Crim.App. 1904); Webb v. State, 55 S.W. 493 (Tex.Crim.App. 1900). Mays and Noble were both cited by the Court of Criminal Appeals in Sharp’s direct appeal. Sharp at 616.
12 issue in the trial court,” there would have been no need for Sharp
to demonstrate that the trial court's failure "appeared
affirmatively" from the record and the Court of Criminal Appeals
could have reached the merits of his claim. But that was not to
be.
In Sharp, the Court of Criminal Appeals states that Sharp
"made no objection at trial, so the only part of Art. 44.24(a) that
is applicable is whether there exists an affirmative showing to the
contrary in the record."22 In support of this proposition, the
court cited Warren v. State.23 Warren, however, held only that when
the error is discovered after the trial, reintroduction of the
prosecution’s evidence, the method usually employed to cure the
absence of the indictment/plea procedure,24 is impracticable, and
a new trial is the appropriate remedy.
More importantly, in Warren the error complained of, the
prosecutor’s failure to read enhancement paragraphs of an
indictment to the sentencing jury, was raised by a motion for
mistrial after sentence had been rendered and the jury had been
dismissed. These circumstances, dispositive in Sharp’s case, were
treated differently by the Warren court:
While appellant's objection was not the 'proper' trial objection, it did raise the issue before the trial court. The jury had been dismissed and a motion for new trial would have [been] the appropriate remedy: but since appellant presented
22 Sharp at 616. 23 693 S.W.2d 414 (Tex.Crim.App. 1985). 24 Castillo v. State, 530 S.W.2d 952 (Tex.Crim.App. 1976); Limon v. State, 838 S.W.2d 767 (Tex.App.1992, pet. filed).
13 the 'issue' to the court at that time, it had the same effect as a motion for new trial. Thus, a motion for new trial was unnecessary. It matters not that the showing was subsequent to the conviction.25
Warren went on to declare that in moving for a mistrial
postverdict, a procedure which the Warren court had already avowed
had the "same effect" as a moving for a new trial, "appellant 'made
an issue' of the failure to read the indictment and enter a plea in
the court below."26 Despite this plain language, the Sharp court
cited Warren as authority for the proposition that Sharp’s motion
for a new trial was insufficient to make an issue of the procedural
defect in the trial court.
We must conclude that Texas law addressing the issue at bar at
least was conceptually amorphous and unsettled at the time of
Sharp’s conviction and appeal.27 For this reason, we conclude that
Sharp’s counsel did not perform deficiently by failing to attach
25 Warren at 416. 26 Id. 27 In addition to the jurisprudential vagaries noted above, our research reveals some cases in which the reviewing court simply fails to distinguish at all between the "make issue" and "appear affirmatively" requirements for applying the presumption of regularity. See, e.g., Peltier v. State, 626 S.W.2d 30 (Tex.Crim.App. 1981). Further inconsistency and ambiguity is found regarding whether the indictment/plea error may even be raised for the first time on appeal. Compare Hazelwood v. State, 838 S.W.2d 647 (Tex.App. 1992, no pet.), with Reed v. State, 500 S.W.2d 497 (Tex.Crim.App. 1973). The point we make in this opinion is not that Texas courts are necessarily wrong; in the absence of constitutional limitations they may, of course, interpret Texas law as they see fit. Rather, we find only that counsel's approach to preserving the error on appeal was not an unreasonable one from his perspective in light of the prevailing professional norms in force at that time.
14 the elusive correct affidavit to his motion for a new trial.28 This
conclusion is based on the fact that reasonable investigation into
the applicable law, involving of course a review of relevant prior
jurisprudence at the time of Sharp’s trial, would have taught that
the raising of the issue in a motion for new trial, without more,
was sufficient to "make issue in the trial court," thus preserving
the issue for appeal. Such a determination would have removed any
consideration whether it was also necessary to demonstrate the
error affirmatively on the record to avoid the statutory
presumption of regularity. This is particularly true, as the
preceding discussion reveals, if the cases cited in Sharp itself
are examined.
Furthermore, it is clear from trial counsel’s testimony at the
evidentiary hearing that his decision to wait until after the
verdict to raise the violation was a calculated move. Had he
lodged an objection prior to the verdict the traditional remedy for
preverdict violations of the plea/indictment rule, i.e. compliance
with the procedural rule followed by resubmission of the
prosecution’s case,29 would have no doubt been applied. The error
28 See Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) ("’Clairvoyance is not a required attribute of effective representation’") (quoting Cooks v. United States, 461 F.2d 530 (5th Cir. 1972)). Our resolution of this issue makes it unnecessary to discuss whether Sharp was prejudiced by this alleged failure of counsel. See Tex.R.App.P. 81(b)(2) (harmless error rule for review of Texas criminal cases); Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (state may take advantage of beneficial changes in the law occurring after conviction and sentence are final). 29 Castillo; Limon.
15 would have been trumped. The result would have been the loss of a
claim which offered the real prospect of a new trial, either in the
trial court or on appeal. By waiting until the motion for new
trial to raise his claim, Sharp’s counsel sought to pursue what he
reasonably perceived to be the wisest possible strategy. The trial
judge apparently considered that it had merit. That the Court of
Criminal Appeals derailed this strategy does not retroactively
render counsel’s performance constitutionally deficient.
The procedural defect involved herein is a matter purely of
state, not federal, law, and therefore is in and of itself not
cognizable on federal habeas corpus review.30
Finally, we find no merit whatever in Sharp’s mere speculation
that counsel was ineffective for failing to secure expert
assistance relative to the hair found in the truck or the blood on
his knife.
Because Sharp has not raised a cognizable constitutional
issue, which we may address in this federal habeas review, which
puts into question the federal constitutional fairness of his trial
or its result, our result is mandated.
The judgment of the district court is AFFIRMED.
30 28 U.S.C. § 2254. A federal constitutional violation occurs in this context only if the error complained of is such as to deprive the state court of jurisdiction over the crime. See Fransaw v. Lynaugh, 810 F.2d 518 (5th Cir.), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987). In Texas, jurisdiction is conferred upon the trial court by the filing of an indictment; "it is the filing of the indictment, not its reading, which invests the trial court with jurisdiction." Santos v. State, 834 SW.2d 953, 956 (Tex.App. pet. ref’d) (citing Tex.Const. art. V, § 12); see also Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. 1990) (discussing purpose and role of indictment in Texas law).