Soria, Santos Junior v. State

• Court: Court of Appeals of Texas
• Decided: July 10, 2003
• Docket: 14-02-00749-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 10, 2003

Affirmed and Memorandum Opinion filed July 10, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-00749-CR

SANTOS JUNIOR SORIA, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________________________

On Appeal from 338th District Court

Harris County, Texas

Trial Court Cause No. 893,476

M E M O R A N D U M   O P I N I O N

            Appellant, Santos Soria, pleaded no contest to felony assault of a family member.  He contends on appeal that the trial court erred in overruling his motion to quash the indictment because he and the victim, Desiree Barrera, were not family members at the time of the assault.  We affirm. 

Background

            Appellant was previously convicted of assaulting a family member and felony possession of a controlled substance.  In this case appellant entered a plea of no contest and was convicted of assaulting a family member.  Appellant’s punishment was seven years’ confinement.  Prior to pleading no contest, appellant filed a motion to quash the indictment, which is the basis of this appeal.

                                                        Preliminary Issues

            The State initially argues that we should not consider appellant’s issue because (1) it is multifarious and (2) appellant has failed to comply with former Rule 25.2(b)(3)(B) of the Rules of Appellate procedure (in effect when appellant filed his notice of appeal).  First, under Rule 38.9, we must construe appellant’s brief liberally.  See Tex. R. App. P. 38.9; White v. State, 50 S.W.3d 31, 45 (Tex. App.—Waco 2001, pet. ref’d).  Accordingly, we find that appellant sufficiently briefed his issue, and we therefore will address his arguments.  Second, former Rule 25.2(b)(3)(B) required an appellant, who pleaded no contest pursuant to a plea bargain, to specify in a notice of appeal that “the substance of the appeal was raised by written motion and ruled on before trial.”  In his notice of appeal, appellant stated that he intended to appeal “the denial of his pretrial motion ruled on [before] trial, followed by a no contest plea pursuant to plea bargain.”  Further, appellant raised the issue that he now appeals in his motion to quash.  Appellant has substantially complied with former Rule 25.2(b)(3)(B).  See Johnson v. State, 84 S.W.3d 658, 660 (Tex. Crim. App. 2002) (notices of appeal must “substantially comply” with Rule 25.2(b)(3) to invoke the jurisdiction of the Court of Appeals).

Motion To Quash

            In his sole issue, appellant contends that he and the victim were not family or household members at the time of the assault.  Consequently, he contends he cannot be convicted of felony assault as contemplated in section 22.01(e)(2) of the penal code.  Tex. Pen. Code Ann. § 22.01(e)(2) (Vernon Supp. 2003).  However, determination of whether appellant and the victim were household members is an evidentiary matter to be proved at trial.  A trial court must decide the merits of a motion to quash an indictment from the four corners of the indictment, not from evidence outside the indictment.  See State v. Rosenbaum, 910 S.W.2d 934, 947–48 (Tex. Crim. App. 1994) (op. on reh’g).  An indictment “can neither be supported nor defeated as such by what evidence is introduced at trial.”  Id.  Because determination of appellant’s motion requires determination of an evidentiary issue, the trial court did not err in overruling the motion to quash. 

            Additionally, a motion to quash should be granted only when the language in an indictment is so vague or indefinite that it denies the defendant effective notice of the crime with which he is charged.  Daniels v. State, 754 S.W.2d 214, 217 (Tex. Crim. App. 1988).  Thus, an indictment must (1) contain the elements of the offense charged; (2) fairly inform the defendant of charges he must prepare to meet; and (3) enable the defendant to plead acquittal or conviction in bar to future prosecution for the same offense.  Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989); Sanchez v. State, 928 S.W.2d 255, 259 (Tex. App.—Houston [14th Dist.] 1996, no pet.).  With rare exceptions, an indictment is legally sufficient if it tracks the language of the applicable section of the penal code.  See State v. Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App. 1996); DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988).  Lastly, the State is not required to plead evidentiary facts that are not essential for proper notice.  Daniels, 754 S.W.2d at 218.

            In this case, the grand jury alleged in the indictment that appellant “unlawfully, intentionally, and knowingly caused bodily injury to Desiree Barrera, a member of his household, by striking the complainant with his hands.”  In the indictment, the grand jury described four means in which appellant assaulted the complainant.  Lastly, included in the indictment was appellant’s previous conviction for assault of a household member.  Thus, it sufficiently tracked the language in the applicable section of the penal code.  See Tex. Pen. Code Ann. § 22.01(a)-(b)(2) (Vernon Supp. 2003).  On its face, the indictment provided notice with sufficient clarity and detail for appellant to anticipate the State’s evidence and prepare a proper defense.  See Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998).

            Accordingly, we hold that the trial court did not err in overruling appellant’s motion to quash.  We overrule appellant’s sole issue and affirm the trial court’s judgment.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed July 10, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).