State v. Murk

815 S.W.2d 556, 1991 Tex. Crim. App. LEXIS 75, 1991 WL 57759

• Court: Court of Criminal Appeals of Texas
• Decided: April 17, 1991
• Docket: 1347-89
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was convicted of public lewdness and sentenced to thirty days, probated for one year, and a $200 fine. The court of appeals reversed and dismissed the information. We granted the State’s petition for discretionary review in order to determine whether appellant waived his claim of error by not objecting to the information under Article 1.14(b), V.A.C.C.P.

The information in pertinent part originally read that appellant did

then and there knowingly engage in an act of sexual contact with Albert Pagan, hereinafter called other person, said sexual contact being a touching of . the genitals through the clothing of said other person, with the hand of said defendant, with the intent to arouse and gratify the sexual desire of said defendant, while said persons were in a public place, ...

Before trial the State amended the information by deleting the phrase “with the intent to arouse and gratify the sexual desire of said defendant.” The appellant made no objection to the amendment.

At the end of the State’s case, the appellant moved for an instructed verdict on the ground that the information failed to allege an offense on which he could be tried. The trial court overruled the motion and the appellant appealed.

The court of appeals held that the information did not charge an offense and was fundamentally defective. 775 S.W.2d 415. Reasoning that the information failed to allege a culpable mental state, the court of appeals found that the trial court lacked jurisdiction. The court of appeals relied on Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.1976). In Victory, the offense charged was indecency with a child by engaging in sexual contact with the child. We reversed that case because the indictment failed to allege a culpable mental state. Id. at 2. In light of our recent decision in Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), it appears at first glance that the court of appeals’ decision should be reversed. Stu-der was our first chance to interpret the 1985 amendments to Article 1.14, V.A.C.C.P., and Article V, § 12, Tex. Const., concerning defects in charging instruments. Studer upheld the amendments’ requirement that a defendant must object to a defect of form or substance before he can complain about it on appeal.

The defendant in Studer was convicted of indecent exposure. On appeal he claimed error because the information failed to allege act or acts which constituted recklessness in compliance with Article 21.15, V.A.C.C.P.¹ The defendant there did not make an objection to the information before trial as required by Article 1.14, V.A.C.C.P. and Article V, § 12, Tex. Const. Because no objection was made, we held that error was waived. Id. at 273.

Article 1.14(b) states that a defect of form or substance is waived if no objection is made before the date trial commences. The defect here, the failure to allege a culpable mental state, was one of substance. Only those defects going to notice are defects of form. Id. at 267, note 5. Under Article 1.14(b) and Studer, appellant’s failure to object to the defect should prevent his complaining about it on appeal. The appellant argues that the failure to allege a culpable mental state renders the information fundamentally defective and thus the trial court lacked jurisdiction to convict him.

We rejected a somewhat similar argument in Studer. In Studer, we held that an indictment or information does not have to allege every element of an offense to invest the trial court with jurisdiction. Id. at 271-72. The appellant distinguishes Studer because there the defect in the information was a failure to allege the facts that constituted recklessness. Appellant claims his situation is different because the defect in his information was the failure to allege a culpable mental state.

We cannot agree that the two cases are distinguishable along those lines. In Stu-der we found that “a substance defect is, among other things, a failure to allege an element of an offense in the charging instrument.” Id. at 268. A culpable mental state has always been an element of an offense. Thus, the failure to allege it in the information was a defect of substance, which required an objection.

Studer and the instant case are distinguishable, but only in that the indictment in Murk became objectionable (lack of culpable mental state) to the appellant on the day of trial, not before the date on which trial commences as contemplated in Article 1.14(b), Y.A.C.C.P.

Simply put, Murk is not an Article 1.14(b), V.A.C.C.P., case and our decision to grant review to determine whether the appellant waived error under Article 1.14(b), V.A.C.C.P., by failing to object was improvident.

We reiterate that Studer stands for the position that a defendant cannot fail to object to a defective charging instrument, then be convicted, then later claim that there was error in going to trial upon the defective instrument. Such is codified at Article 1.14, V.A.C.C.P. Appellant in Murk was likewise faced with a defective charging instrument; however, it did not become defective until the day of trial, as the State chose to amend it at that time.

Procedures regarding amendments to charging instruments are governed by Article 28.10, V.A.C.C.P. Article 28.10(a) relates to amendments “before the date the trial on the merits commences.” Article 28.10(b) relates to amendments “after the trial on the merits commences.” Article 28.10 does not provide for procedures when an amendment is made on the day of trial but prior to the trial commencing. Section (a) does provide for amendment over a defendant’s objection, while Section (b) allows for amendment if the defendant does not object at all.

The State amended the indictment at a time reading the clear language of Article 28.10(a) and (b), V.A.C.C.P., when such was not contemplated and/or addressed by said statute. Quite simply, the State amended the indictment not in compliance with the applicable statute.

The window of opportunity used by the State is not permissible under Article 28.-10(a) nor (b). While the State is permitted to amend with notice up until the day before trial commences and after the trial commences the statute does not address day of, but before the trial commences. The statute may be termed permissive because it allows amendments and mandatory because it mandates when changes are permitted. At any rate, the State did what was not permitted nor did it follow the mandates of a clear statute. Even though the appellant acquiesced, error is error.

If one is inclined to complain of error on appeal, the rule is to raise it at trial or it is waived on appeal. Tex.R.App.Proc. 52(a).

Judgment of the court of appeals is reversed and the trial court’s judgment is affirmed.

CLINTON, J., dissents because appellant did raise the issue by motion for directed verdict. BAIRD, J., concurs in result.

1 . Article 21.15, V.A.C.C.P., reads:

Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.