Studer v. State

799 S.W.2d 263, 1990 Tex. Crim. App. LEXIS 190, 1990 WL 180802

• Court: Court of Criminal Appeals of Texas
• Decided: November 21, 1990
• Docket: 1077-88
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This case presents us with our first opportunity to interpret the 1985 amendments to Art. 1.14, V.A.C.C.P., and Art. V, § 12, Tex.Const., concerning defects in charging instruments.

Appellant was charged by information with the misdemeanor offense of indecent exposure, alleged to have been committed on May 7, 1987. V.T.C.A. Penal Code § 21.08. He was found guilty in a bench trial, upon his plea of nolo contendere, and the trial judge assessed punishment at six months confinement in the county jail, probated. On direct appeal to the court of appeals, appellant raised one point of error contending the information upon which he was convicted was fatally defective. This contention had not been raised in the trial court. The court of appeals affirmed appellant’s conviction. Studer v. State, 757 S.W.2d 107 (Tex.App.—Dallas 1988). We granted appellant’s petition for discretionary review to consider whether the court of appeals “erred in holding that the defect in the information was not a fundamental defect that can be raised for the first time on appeal.” We will affirm the judgment of the court of appeals.

As noted, appellant was charged with and convicted of indecent exposure, which offense is defined in the Penal Code, section 21.08, as:

A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

Appellant argued before the court of appeals and also argues here that since the information failed to allege the act or acts relied upon to constitute recklessness in compliance with Art. 21.15, V.A.C.C.P., the information failed to confer jurisdiction on the trial court.

Article 21.15 provides:

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.

The information in this cause charged, in pertinent part, that appellant:

did unlawfully then and there intentionally and knowingly expose his genitals to R.E. Bishop, hereinafter called complainant, with intent to arouse and gratify the sexual desire of the said [appellant], and the [appellant] acted recklessly and in conscious disregard of whether another person was present who would be offended and alarmed by such act ...

The court of appeals agreed with appellant that the information was defective for failing to “allege, with reasonable certainty, the act or acts relied upon to constitute recklessness” and cited Gengnagel v. State, 748 S.W.2d 227 (Tex.Cr.App.1988).¹ Studer, 757 S.W.2d at 109. The court held, however, that because of the amendments to Art. 1.14, V.A.C.C.P, and Art. V, § 12, Tex.Const., the defect in the information was of a nonjurisdictional nature and was therefore waived by appellant’s plea of nolo contendere. Id. at 111. See Art. 44.-02, V.A.C.C.P.; Tex.R.App.Proc. 40(b)(1) and Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972) (where plea of guilty is voluntarily and understanding^ made, all nonju-risdictional defects are waived).

Article V, § 12(b) of the constitution provides:

An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.²

The pertinent portion of Art. 1.14 provides:

(b) If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or 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. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 [V.A.C.C.P.].³ (emphasis supplied).

The pivotal issue we must first resolve before specifically addressing appellant’s ground for review is what is meant by the terms “indictment” and “information” under the amendment to Art. V, § 12, of the Texas Constitution and newly enacted Art. 1.14(b), V.A.C.C.P. Does the wording: “An indictment or information is a written instrument ... charging a person with the commission of an offense” mean it is an instrument that alleges all the constituent elements of an offense or something else (specifically something less). The disposition of this ground for review depends on whether an instrument which lacks allegations of acts constituting recklessness suffers a defect of form or substance but is still an “information”, or whether because it fails to allege those acts, and therefore fails to allege an element of the offense of indecent exposure, it is therefore not an “information”.⁴

For more than a century cases have come from this Court holding that a defect in the “substance” of a charging instrument may be raised for the first time on appeal for it renders the charging instrument “fundamentally defective.” See Ex parte Pruitt, 610 S.W.2d 782, 785 (Tex.Cr.App.1981), Pospishel v. State, 95 Tex.Cr.R. 625, 255 S.W. 738 (1923), White v. State, 1 Tex.Cr.R. 211, 215 (Ct.App.1876). We have found “substance” defects in a myriad of cases.⁵ Moreover, since 1965,⁶ Art. 27.08, V.A.C.C.P., has statutorily defined substance defects in an indictment or information. Art. 27.08 in its entirety states:

EXCEPTION TO SUBSTANCE OF INDICTMENT

There is no exception to the substance of an indictment or information except:

1. That it does not appear therefrom that an offense against the law was committed by the defendant;

2. That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment;

3. That it contains matter which is a legal defense or bar to the prosecution; and

4. That it shows upon its face that the court trying the case has no jurisdiction thereof.⁷

The changes in the Code of Criminal Procedure which occurred simultaneously with the passage of the constitutional amendment, however, did not encompass Art. 27.-08 and, therefore, did not change the definition or our understanding of what constitutes a substance exception.⁸

A substance defect was considered “fundamental error” since a charging instrument with such a defect failed to confer jurisdiction upon the trial court, and any conviction had upon that instrument was therefore void. Also apparent from the caselaw is that this Court has used the terms “substance defect”, “fundamental error”, and “fatally defective” interchangeably when addressing errors in charging instruments which led to void convictions.

A consolidation of the holdings from this review of caselaw and Art. 27.08 reveals, germane to the discussion at hand, that a substance defect is, among other things, a failure to allege an element of an offense in the charging instrument. Stated conversely, a failure to allege an element of an offense in an indictment or information is a defect of substance. The amendments to Art. 1.14, Y.A.C.C.P., and Art. Y, § 12 did not, on their face, change this long-standing precedent.

The amendment to Art. V, § 12 also gave the legislature the authority to regulate the practices and procedures relating to indictments and informations. As stated previously, Art. V, § 12 provides in pertinent part:

The practice and procedures relating to the use of indictments and information, including their contents, amendment, sufficiency, and requisites, are as provided by law.⁹

Both before and contemporaneous with the 1985 amendment to Art. V § 12, the legislature promulgated such practice and procedures in the Code of Criminal Procedure. The amendment to Art. V, § 12 also addressed the obtainment of jurisdiction by the trial court. The section now states that jurisdiction is conferred on the trial court by the presentment of an indictment or information.

When Art. V, § 12 is read in conjunction with the code provisions regulating the practices and procedures governing charging instruments, it is clear the amendment to Art. 1.14 did not change what constitutes a substance defect, but rather only its effect. The change in Art. 1.14(b) requires, among other things, that substance exceptions be raised pre-trial or otherwise the accused has forfeited his right to raise the objection on appeal or by collateral attack. If omitting an element from an indictment is still a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element.

Analyses of SJR 16 and SB 169 from certain official legislative reporting entities support the interpretation that in order to be an indictment or information, the charging instrument need not necessarily allege every element of the offense charged. These analyses have weight because they represent to the voting public the legislative view of what these laws mean. Presumably the public will then educate itself, or be educated by voter information entities such as local newspapers, the League of Women Voters, etc. Thus educated, the public can be said to have voted informatively on November 5, 1985, when the constitutional amendment in question was on the ballot.

An analysis from the House Study Group Special Legislative Report # 120, dated August 23, 1985, attached as appendix A, contains the following under the arguments supporting passage of the amendment:

Under SJR 16, flaws like these [missing element] would no longer be treated as “fundamental defects” compelling the Court of Criminal Appeals to reverse convictions. Under the “fundamental defect” doctrine, the Court has ruled that every essential element of the Penal Code offense being alleged must be stated in the written charges with precision, in terms drawn from the Penal Code itself and from the cases interpreting the code ... in order for the trial court even to have jurisdiction to hear the case.

* * * * * *

Certainly, as a matter of fundamental due process, defendants deserve notice of the charges against them. But there is no reason why detailed notice must necessarily be given in the indictment itself. ******

[In the context of the undoing of the “Common Sense Indictment Act”] ... the Court of Criminal Appeals said that a grand jury indictment, as the term was used in the constitution, clearly meant a statement of all the essential elements ... [thus passage of the constitutional amendment is necessary to change things].

The report’s argument against passage conceded that “[t]he implementing legislation for this amendment would require defendants to object to all defects in the charge prior to trial.” Under “NOTES” the report flatly states that “the bill would require defendants to object to defects in an indictment or information or else waive the right to object to any defect on appeal.” Nowhere in the analysis is there even a hint that the phrase in Art. V, § 12, “An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense” means that if an element of an offense is omitted then the indictment is not an indictment for purposes of the constitution and laws up for adoption in 1985. House Study Group Special Legislative Report # 120, dated August 23, 1985.

The report from the Texas Legislative Council, attached as appendix B and which also analyzes for the public proposed constitutional amendments, notes that SJR 16 would institute three basic changes in charging instrument law: the constitutional requirement of a commencement and conclusion in the charging instrument is deleted (but now required under Chapter 21, V.A.C.C.P.); the legislature may regulate charging instrument practice; and, most significantly, the presentment of a charging instrument invests the trial court with jurisdiction. The commentary accompanying this last change states:

This change in the law would have a significant impact on the line of cases holding that a fundamental error in a charging instrument deprives the court of jurisdiction of the ease. Presumably, the law developed in those cases will no longer be applicable.

The legislative council report also clearly points out that under then current law the omission of an element of the offense constitutes a fundamental defect. It goes on to state that SB 169 contains a change authorized by the proposed constitutional amendment, to wit: a defect in a charging instrument must be raised before trial or the defendant’s right to object is waived. The only potential for relief suggested in the report, via due process, would arise only if the defendant can show that he was “mislead or otherwise prejudiced by a defect in a charging instrument”. Again, nowhere in the analysis is there even a hint that the phrase in Art. Y, § 12, “An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense” means that if an element of an offense is omitted then the indictment is not an indictment for purposes of the constitution and laws up for adoption in 1985. In fact, if such a defect rendered an indictment not an indictment, then the “presentment of an indictment ... to a court invests the court with jurisdiction” language would also not apply to an instrument that was missing an element of the charged offense. Clearly the discussion in the report under “BACKGROUND” refutes this notion. Under the heading “ARGUMENTS” the discussions pro and con make it clear that the amendment and supporting legislation that would go into effect upon passage of the amendment “[eliminates a defendant’s right to challenge a conviction after trial on the basis of a defective charging instrument.” (Note that the phrase charging instrument, not indictment, is used.) Analyses of Proposed Constitutional Amendments, Texas Legislative Council Information Report, No. 85-3, August 1985.

The floor debates over SB 169 and SJR 16 add further light. In the House floor debate on May 24, 1985, Rep. Dan Morales explained the purpose of SB 169 (now Art. 1.14 and Art. 28.10, V.A.C.C.P.) to the entire House in response to questions from Representative Larry Evans, as follows:

Morales:

Yeah, Larry, as you can see on page two of this legislation: Any defect with regard to form or substance in a criminal indictment has got to be raised prior to the trial on the merits. So basically, what the legislation would do is simply require that the defendant raise any sort of technical defect with regard to an indictment prior to the trial to preclude a situation where we go through the entire trial, get a verdict, a sentence, an ultimate conclusion to that trial, and then have the defect raised, resulting in a reversal.

Evans:

Then, with regard to defects relating to substance, what kind of defects are we talking about there?

Morales:

Any and all.

So if you said it was murder, and it really was a theft, then would that apply to that situation?

In that circumstance, at the request of the defendant, the court may give the defendant ten days to respond. That’s on page two, Article 28.10.

And with regard to form, what kind of defects are we talking about there? Morales:

Likewise. Any sort of wrong date, misplaced comma, misspelling, things of that nature.

* * * * * *

Well, unlike a prosecutor, who is well versed in the area of criminal law, the defendant is not as well versed. Wouldn’t you agree with that, Mr. Morales?

No, not necessarily. But Larry, even if that is the case, ten days is what the defendant has to prepare for trial. There is nothing unreasonable in requiring the defendant to raise that objection prior to the trial, rather than allowing the defendant to hide behind that defect to force the state to go through the facade of a trial before a jury or a judge, and then to raise that defect only after a verdict has been reached.

Emphasis supplied. In the Senate floor debate on March 21, 1985, Senator Ike Harris summarized SB 169 and SJR 16 this way:

Harris:

Thank you, Mr. President. Member, SB169 and on your agenda today, SJR16, I move to suspend all necessary rules to take up consideration of 169. What this basically does ... it’s a bill that deals with that problem that has plagued the criminal justice system and the Court of Criminal Appeals over a number of years, that involves a defective indictment which a defense goes to trial upon, makes no objection, then raises on appeal for the first time, then the court reverses, based upon that defect in the indictment and the lower court has never had the opportunity to rule upon that question. There are a number of eases that have been reversed based on those technicalities. We would move to suspend the rules at this time. I move to suspend, Mr. President. ******

Mr. President, I move to suspend all necessary rules to take up and consider SJR16. SJR16 is a constitutional amendment that goes with the enabling statute that we’ve just passed that provides for the court to have jurisdiction to make amendments provided the defendant makes the proper objection and provided it meets the rules as set out in the statute. I would move for suspension of the necessary rules at this time, Mr. President.

Emphasis supplied.

Clearly both the House and Senate believed that all defects in a charging instrument were waived if not raised by a defendant before trial. Clearly the perceived evil they were correcting was the raising of indictment defects for the first time after a trial and conviction and the subsequent reversal of that conviction because of that defect. To say that an indictment that does not contain an element of an offense is not an “indictment” for purposes of SB 169, would be to completely ignore the entirety of Govt.Code Sec. 311.023,¹⁰ as well as to thwart the intent and the will of the legislature and, presumably, the people who passed Art. V, § 12.

Finally, we note that our view of the picture that was painted by the promulgators of the 1985 changes to our charging instrument law would not be complete without an analysis of the rest of the legislative package that was SB 169. As pointed out in footnote 3, SB 169 also included amendments to Art. 28.10, V.A.C.C.P. While we are not presented with an issue under that article in this petition, the language of the article is instructive as to what the legislature intended an indictment or information to be under the amendments. Article 28.10 provides in entirety:

Art. 28.10 Amendment of Indictment or Information

(a) After notice to the defendant, a matter of form or substance in an indictment of information may be amended at any time before the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c)An indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

By its express terms, Art. 28.10 clearly allows for the amendment of any matter of form or substance in an indictment or information. Section (c), by allowing for the pleading of an additional or different offense under certain circumstances, contemplates the amendment of an indictment or information to add (or delete) an element of an offense and provides further support for our conclusion that an indictment or information need not plead each constituent element of an offense to “charge a person with the commission of an offense.”

Under the foregoing analyses, we conclude that since SB 169 and SJR 16 were passed by the legislature as a package (see footnotes 2 and 3 infra), and an error in substance encompasses the omission of an element, the inclusion in Art. I.14(b) of the language mandating that defects of substance be waived if not raised pre-trial expresses a clear and plain meaning, which was explained to and ratified by the people of Texas, that an indictment (or information) is still an indictment (or information), at least as contemplated by Art. V, § 12, though it be flawed by matters of substance such as the absence of an element.¹¹

In conclusion then, the language in Art. V, § 12, “charging a person with the commission of an offense”, does not mean, under this analysis, that each element of the offense must be alleged in order to have an indictment or information as contemplated by Art. V, § 12.

Going further, the case referred to in the quoted portion of the House Study Group analysis, supra (opinion page 269), was most certainly Williams v. The State, 12 Tex.App. 395 (1882) which declared the form suggested in the “common sense indictment” act, which form omitted numerous elements of offenses, repugnant to the Texas constitution. Williams set out the proposition that the constitution required that all the acts and omissions essential to constitute an offense must be alleged in the indictment, and that without allegation of the elements of an offense the indictment is void. The cornerstone of the reasoning in Williams was that certain requirements of an indictment arise from the constitution itself. This conclusion stemmed from the inferential requirements of the Texas Bill of Rights, Art. I, Sec. 10 (right to an indictment from a grand jury), as contemplated by the framers of our constitution at the time of the adoption of the Bill of Rights. The court stated:

Our organic law provides that ‘no person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary,’ etc. ... We think it clear from these authorities that the meaning of the word ‘indictment’ in the Bill of Rights requires that it should state the essential acts or omissions which constitute the offense with which the party is accused. It must charge explicitly all that is essential to constitute the offense, and cannot be aided by intendments. A statement of a legal result, a conclusion of law, will not be sufficient; the facts constituting the crime must be set forth, that the conclusion of law may be arrived at from the facts so stated.

Williams, supra at 398, 400.

We are convinced by the previously described events of 1985 that the original intent of the framers has been modified by the people and supplanted by their intent that requirements of an indictment are not mandated by the constitution, but rather only by statute.

As previously set out, Article V, § 12(b) of the constitution as amended in 1985 provides in part:

The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law.

We believe, from the events heretofore discussed, that this language changed the premise of Williams. We believe that the requisites of an indictment stem from statutory law alone now. The inferential requirements of Art. I, Sec. 10 as construed in Williams (to require that all the elements of an offense be in an indictment) have, by the will of the people, been abolished.¹²

In sum, the wording of Article V, § 12(b), that provides “[a]n indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense[;] [a]n information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense”, abolishes the former prerequisites to which the referred to charging instruments must adhere, lest they fail as charging instruments, at least from the standpoint of Art. V, Sec. 12.

With this analysis in mind, we may now address appellant’s ground for review that the court of appeals erred in holding the information was not fundamentally defective for failing to allege the acts constituting recklessness in compliance with Art. 21.15, V.A.C.C.P. The court of appeals held that the information was technically defective for noncompliance with Art. 21.-15, based on our holding in Gengnagel, 748 S.W.2d 227, but it was sufficient to charge appellant with the elements of indecent exposure under Penal Code § 21.08 and because of that fact it was an “information” sufficient to invest the trial court with jurisdiction. Since the defect was one of substance, the court of appeals held appellant waived the defect by his plea of nolo con-tendere.

The result reached by the court of appeals is correct. Under the foregoing construction of Art. V, § 12 and Art. 1.14(b) the error is waived. The information in this case, which is set out on page 265 infra, fails to allege the acts relied upon by the State to constitute recklessness, a defect which we held in Gengnagel was one of substance. Although the information, attached at Appendix C, is substantively defective, it was, on its face, an information as contemplated by Art. V, § 12. Once presented to the trial court “by an attorney for the State”, the trial court obtained jurisdiction of the cause. Subsequently, it was incumbent upon appellant under Art. 1.14(b) to lodge an objection to this substantive defect. Since appellant failed to make any pre-trial objection to the substance error in the information, it is waived. See Helms, 484 S.W.2d 925.

The judgment of the court of appeals is affirmed.

McCORMICK, P.J., concurs in the result.

APPENDIX A

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Analyses of Proposed Constitutional Amendments, Texas Legislative Council Information Report, No.85-3 , August 1985.

AMENDMENT NO. 11

Senate Joint Resolution 16, proposing a constitutional amendment relating to the manner in which a person is charged with a criminal offense and to certain requirements applicable to state writs and processes. (SENATE AUTHOR: J. E. (Buster) Brown; HOUSE SPONSOR: Terral Smith)

The proposed amendment of Article V, Section 12, of the Texas Constitution, approved by the 69th Legislature, Regular Session, 1985, eliminates the requirement that aH state writs and processes be-styled The State of Texas." It also eliminates the specific requirement that a criminal charge be conducted in the name and by authority of the State of Texas and conclude with the words "Against the peace and dignity of the State."

The amendment also defines "indictment” as a criminal charge presented by a grand jury and "information” as a criminal charge brought by a prosecutor. The amendment then provides that the practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The amendment states that the presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

The description of the proposed amendment that will appear on the ballot is as follows: “The constitutional amendment relating to the manner in which a person is charged with a criminal offense and to certain requirements applicable to state writs and processes.”

BACKGROUND

A complex and unique body of law has developed in Texas relating to the procedures and written documents used to institute criminal prosecutions. Under Article I, Section 10, of the Texas Constitution a person accused of felony has the right to have the prosecution initiated by a grand jury indictment. By statute the prosecution of a misdemeanor punishable by confinement in jail is initiated by the prosecutor's filing in court of a document called an information. The indictment or information, commonly referred to as the charging instrument, is the state’s primary pleading in a criminal case. It must allege what offense the accused has committed along with several other items, including certain facts relating to the jurisdiction of the court. The case law surrounding charging instruments centers on two primary issues: when is a charging instrument defective, and what is the result of a particular defect?

The courts have classified defects in charging instruments as either fundamental or nonfundamental. Generally, a fundamental defect is one that is so profound that it renders the charging instrument invalid, voiding any conviction obtained as a result of the prosecution based on the charging instrument. A fundamental defect may be raised at any time, even years after trial. The courts have justified this result by reasoning that if the charging instrument contains a fundamental defect, the court never had jurisdiction of the case: thus the entire prosecution was, in effect, illegal and unauthorized. See Brasfield v. State, 600 S.W.2d 288 (Tex. Crim. App. 1980), especially the Opinion on State’s Motion for Rehearing, for a recent in-depth discussion of the matter. The courts have held that the failure of a charging instrument to contain either of the constitutionally required phrases “In the name and by authority of the State of Texas' or ‘Against the peace and dignity of the State' constitutes a fundamental defect. See Jones v. State, 622 S.W.2d 109 (Tex. Crim. App. 1981) and Ex parte Wamell. 606 S.W.2d 923 (Tex. Crim. App. 1980). The omission of an element of the offense also constitutes a fundamental defect. See Ex parte Cannon. 546 S.W.2d 266 (Tex. Crim. App. 1976). A nonfundamental defect may be a minor defect of form, such as a misspelled name, or it may be the failure of the charging instrument to allege an element of the offense with enough specificity. A nonfundamental defect must be raised before trial or the defendant waives his right to complain about it. The existence of a nonfundamental defect in a charging instrument does not void the prosecution if waived; its existence does not deprive the court of jurisdiction as does a fundamental defect.

It has long been established that a substantive defect in an indictment cannot be amended by the prosecutor because the grand jury, not the prosecutor, is the sole entity authorized under Article I, Section 10, of the Texas Constitution to initiate felony charges. In addition, Article 28.10 of the Code of Criminal Procedure currently provides that only the form, not the substance, of an indictment or information may be amended.

The constitutional amendment proposed by Senate Joint Resolution 16 would make several basic changes in the law governing indictments and informations. It would eliminate the constitutional requirements that charging instruments contain the specific phrases "In the name and by the authority of the State of Texas" and Against the peace and dignity of the State.” Those phrases would continue to be required by statute. See Articles 21.02 and 21.21, Code of Criminal Procedure. However, the legislature would be authorized to alter or eliminate them or otherwise regulate their use and significance.

The amendment would significantly alter current practice involving charging instruments by providing that the legislature or other body to whom the legislature delegates its authority may by law regulate charging instrument practice. This change would in effect overrule the line of cases providing that the state constitutional right to an indictment includes the specific indictment practices in use when the constitution was adopted. In particular, the amendment would probably make obsolete the case law holding that the substantive provisions of an indictment may not be amended.

Finally, the proposed constitutional amendment would provide that a court has jurisdiction of a case when the charging instrument is presented to it. This change in the law would have a significant impact on the line of cases holding that a fundamental error in a charging instrument deprives the court of jurisdiction of the case. Presumably, the law developed in those cases win no longer be applicable. It is possible, however, that the courts will stiU find jurisdictional problems in certain defective charging instruments.

The 69th Legislature, Regular Session, 1985, also passed Senate BW 169, contingent on the adoption of the constitutional amendment proposed by Senate Joint Resolution 16. Senate Bill 169 would implement two changes in the statutes relating to charging instruments as authorized by the proposed constitutional amendment. First, the bid provides that a defect in a charging instrument must be raised by the defendant before trial; after that point, the defendant’s right to object to the defect is considered waived. Second, the bill authorizes the prosecutor to make substantive amendments to a defective charging instrument, eliminating the need to dismiss the case and start all over again by procuring a new indictment or filing a new information. An amendment would be permitted after trial commences only if the defendant does not object. The defense would be given at least 10 days to prepare its case after an amendment of the charging instrument. Senate Bill 169 would take effect December 1, 1985, If the voters approve the constitutional amendment at the general election in November.

If adopted, the constitutional amendment and accompanying legislation will not necessarily solve all the problems prosecutors have experienced with charging instruments. Due process guarantees in both the state and federal constitutions may well be held to require reversal of some convictions if the defense can show that it was misled or otherwise prejudiced by a defect in a charging instrument. The new law does not appear to affect the law applicable in a case in which the evidence produced at trial varies from the allegations of the charge, a situation that under current law may result in the reversal of a conviction if raised after trial. See Cox v. State. 608 S.W.2d 219 (Tex. Crim. App. 1980). However, the new law would probably reduce the number of cases in which a fatal variance occurs because the prosecutor would have the opportunity to amend the charge if he discovers before trial that the specific allegations in the charging instrument do not correspond exactly with the evidence to be produced.

35

ARGUMENTS

FOR:

1. The primary purpose of an indictment or information is to notify the defendant, with reasonable accuracy and specificity, that he has been charged with a crime, so that he may adequately prepare his defense. The proposed constitutional amendment will enable the legislature to require defects in charging instruments to be raised before trial. Eliminating the defendant’s right to challenge a conviction after trial on the basis of a defective charging instrument, without a showing that the defect in any way violated the defendant's right to a fair trial, will put an end to the many reversals of convictions that occur under current law because of a harmless, but “fundamental,’ mistake in a charging instrument.

2. The ‘magic word' requirements of the current constitution with respect to criminal charges and other state writs and processes offer no real protection to a person accused of a crime or otherwise affected by such a document. The constitutional guarantee of due process will adequately ensure that criminal charging instruments and other state documents are clearly identified. The current requirements that such documents contain specific phrases have led to the invalidation of many criminal prosecutions because of minor errors that do not prejudice or harm the defendant in any way. In any event, minor details such as the precise wording of a charging instrument should be provided by statute rather than included in the state constitution.

3. Allowing the legislature to provide for the substantive amendment of charging instruments will provide important benefits. No longer will an error in a criminal charge necessarily require the dismissal of the case. This change will prevent the unnecessary delay that results from a dismissal and the problems that such a delay causes the prosecutor: more paperwork; redundant trial preparation; presenting the case to the grand jury all over again; weakening of the case as witnesses forget, move away, or die; and running of the statute of limitations. The amending of a charge will not prejudice the rights of the accused since by statute the defense will be given additional time to prepare its case when a charge is amended.

AGAINST:

1. Eliminating the constitutional requirements that all state writs and processes contain the phrase “The State of Texas" and that criminal charges contain the currently specified phrases could lead to the use of charging instruments and other official documents that are not dearly identified, creating confusion over the validity of a particular document and even leading to reversals in criminal cases due to the use of insufficiently identified charging instruments.

2. The proposed amendment undermines the protective role of the grand jury in the criminal justice process. The grand jury has traditionally served as a check on the zeal of the prosecutor by refusing to indict when it considers the case to be a weak one or otherwise not appropriate for prosecution. By allowing the prosecutor to amend an indictment at any time before trial, the proposed amendment would allow the prosecutor to bypass the grand jury in preparing his amended charge. Under current law, a substantive change in the allegations of the indictment must be approved by the grand jury in a new indictment.

3. By allowing a defendant to raise a fundamental defect in a charging instrument at any time, current law provides an incentive fa prosecutas to draft their charges with great care, ensuring that the court and the defendant know exactly what the charges are and that the court has jurisdiction ova the case. By allowing the prosecutor to amend a defective charging instrument and giving the court jurisdiction of the case even if the charging instrument contains significant erras a omissions, the proposed constitutional amendment would encourage carelessness in the drafting of charging instruments. This practice could lead to a proliferation of errors in charging instruments, resulting in numerous amendments by the prosecuta and in confusion fa the court and the defendant about exactly what the prosecuta is alleging. More erras and amendments of those errors would delay the progress of criminal cases in the courts, and would increase the public’s cynicism toward the criminal justice system.

APPENDIX C

1 . In Gengnagel, the appellant had also been convicted in Dallas for indecent exposure. We stated there that recklessness was an element of indecent exposure and the allegation of acts constituting recklessness was necessary for a valid charging instrument. Id. at 229. We held the information was fundamentally defective for failing to make such allegations, and we affirmed the court of appeals’ dismissal of the information. Id. at 230.

2 . Before amendment in 1985, Art. V, § 12 provided:

All judges of courts of this State, by virtue of their office, be conservators of the peace throughout the State. The style of all writs and process shall be, “The State of Texas.” All prosecutions shall be carried on in the name and by authority of the State of Texas, and shall conclude: "Against the peace and dignity of the State.”

SJR 16 provided for the amendment to Art. V, § 12, of the constitution. The description of the proposed amendment which appeared on the ballot was: "[t]he constitutional amendment relating to the manner in which a person is charged with a criminal offense and to certain requirements applicable to state writs and processes.”

3 . SB 169 was the implementing legislation for the constitutional amendment, and it provided for Art. 1.14(b), as well as Art. 28.10 (see text of same, infra). The provisions of the amendatory act applying to Art. 1.14 state the change in law takes effect December 1, 1985, only if the constitutional amendment to Art. V, § 12 is approved by the voters. The amendment to Art. V, § 12 was approved by the voters on November 5, 1985. The change in Art. 1.14 applies only to an indictment or information presented to the court on or after the effective date of the amendatory act. Acts 1985, 69th Leg., ch. 577, § I-

4 . The courts of appeals are obviously split on this issue. See for instance Shaw v. State, 728 S.W.2d 889 (Tex.App.—Houston [1st] 1987) (Appellant convicted of involuntary manslaughter. Appellant contended the indictment was fundamentally defective for failure to allege his intoxication was voluntary because, he argued, voluntary intoxication is an element of the offense, and an indictment which did not allege all the elements of an offense is fundamentally defective. The court of appeals held there is no fundamental error in indictments presented after December 1, 1985 (effective date of amendments to Art. 1.14 and Art. V, sec. 12)); Vela v. State, 776 S.W.2d 721 (Tex.App. — Corpus Christi 1989), reh’g denied (Appellant was convicted of soliciting drinks. On appeal she argued the trial court was without jurisdiction to try her case because the information was fundamentally defective for failing to allege that the person for whom she allegedly solicited a drink was an employee of the bar. Appellant did not raise this issue in her pre-trial motion to quash. The court of appeals held appellant waived her right to object to defect on appeal under Art. 1.14(b), and also stated there can be no fundamental error in charging instruments under Art. 1.14(b)); Mason v. State, 740 S.W.2d 517 (Tex. App.—Houston [1st] 1987), PDR ref’d. (appellant was convicted of aggravated sexual assault. Misjoinder was the issue in this case, but the court of appeals commented in dicta that Art. 1.14(b) and Art. V, sec. 12 abolished the doctrine of fundamental error in indictments). BUT COMPARE Murk v. State, 775 S.W.2d 415 (Tex.App.—Dallas 1989), PDR granted, and cases cited therein (Appellant convicted of public lewdness. At trial, the State amended the information by deleting the words "with the intent to arouse and gratify the sexual desire of said defendant.” On appeal, appellant contended the information was fundamentally defective for failure to allege an offense because the culpable mental state was lacking which is an essential element of offense. The court of appeals agreed with appellant and rejected the State’s waiver argument under Art. 1.14(b). The court stated that an instrument which does not contain every essential element of an offense does not charge the commission of an offense and therefore is not a charging instrument under the constitution and does not invest the trial court with jurisdiction. Failure to object pre-trial to such defect is not fatal to appeal).

5 .Gengnagel, 748 S.W.2d 227 (appellant challenged substance of indecent exposure information where instrument failed to allege acts constituting recklessness): Brown v. State, 558 S.W.2d 471 (Tex.Cr.App.1977) (public lewdness information fundamentally defective for failure to allege acts relied upon to constitute recklessness): American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974) (omission of conclusion from indictment is fatal defect in substance) [Note: The constitutional requirement of a commencement and conclusion for all prosecutions has been deleted and is now a statutory requirement under Chapter 21 of the Code of Criminal Procedure.]; Ex parte Luddington, 614 S.W.2d 427 (Tex.Cr.App.1981) (failure to allege essential element of robbery is defect of substance and fundamental error which may be raised at any time); Lindsay v. State, 588 S.W.2d 570, fn. 2 (Tex.Cr.App.1979) (defect of substance goes to failure of indictment to allege an offense).

In contrast, a defect of form may be classified as merely a "notice" problem. See Bynum v. State, 767 S.W.2d 769 (Tex.Cr.App.1989) (indictment for misapplication of fiduciary property failing to allege facts essential to give notice was defective as to form). If a charging instrument alleges an offense, then any objection to the instrument would be to the form rather than the substance, and therefore not a fundamental defect. Green v. State, 578 S.W.2d 411 (Tex.Cr. App.1979), citing American Plant Food Corp., 508 S.W.2d 598. See also Janecka v. State, 739 S.W.2d 813 (Tex.Cr.App.1987) (defendant raises defect of form when he requests additional factual information upon which to prepare defense). Thus, an alleged form defect in a charging instrument could not be raised for the first time on appeal or on writ of habeas corpus, but rather had to be raised by a timely filed motion to quash or the alleged error was waived. Graham v. State, 657 S.W.2d 99 (Tex.Cr.App.1983); Daniels v. State, 754 S.W.2d 214 (Tex.Cr.App.1988).

6 . Former Art. 511 of the 1925 Code of Criminal Procedure was carried over verbatim as Art. 27.08 in the 1965 code.

7 . Category 4 is a type of substance defect that is separate and distinct from one that, before the amendments to Art. V, § 12, deprived the trial court of jurisdiction of the case for failure to allege all elements of an offense. This category applies to situations where, e.g., an information alleges a felony offense and the case is in a county court, or vice-versa.

8 . The term "exception” as used in Arts. 27.08 and 27.09, V.A.C.C.P. encompasses any "defect, error, or irregularity" in an indictment as used in Art. 1.14(b).

9 . A review of the Code of Criminal Procedure reveals comparable provisions for the requisites of a sufficient indictment or information. Arts. 21.01 and 21.21, V.A.C.C.P., respectively. The code then specifically defines what constitutes an exception to the substance of an indictment, Art. 27.08, and an exception to the form of an indictment, Art. 27.09. Also see Art. 21.23 (“The rules with respect to allegations in an indictment and the certainty required apply also to an information.”) Article 28.01, § 1(4), provides the avenue by which to test the sufficiency of a charging instrument against the code requisites. Under Art. 28.01, the defendant may have a pre-trial hearing to determine the exceptions to the form or substance of the indictment or information. If an exception is sustained, the charging instrument may be amended as permitted by Art. 28.10.

10 . Sec. 311.023 Statute Construction Aids provides: "In construing a statute, whether or not the statute is'considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction;

(6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provision.”

11 . The express language of Art. 1.14(b) requires a defendant to raise pre-trial any defects, errors, or irregularities of substance in the charging instrument. Failing to do that, the defendant waives and forfeits the right to complain of the alleged substance defect, error, or irregularity on appeal or in any postconviction proceeding. Thus, the substance defect, etc. may not be raised for the first time on appeal or in a writ as we have held in the past. In other words, the substance defect is no longer considered to be one of a "fundamental” nature, in the sense that fundamental meant no jurisdiction was conferred, and the conviction on such a charging instrument would not be reversed for a lack of jurisdiction in the trial court. This reasoning stands independently of the last sentence of Art. V, § 12 which states jurisdiction is conferred upon presentment and which further supports the notion that a substance defect will not deprive a court of jurisdiction.

12 . The right to indictment by a grand jury, however, has not been abolished; nor, of course, have the statutory requisites of an indictment or information. See Art. I, Sec. 10, Tex.Const.; Arts. 21.02 and 21.21, V.A.C.C.P., and generally Ch. 21, V.A.C.C.P.