Jose Luis Flores, Jr. v. State
04-16-00032-CR
| Tex. App. | Sep 28, 2016Background
- Jose Luis Flores Jr. was indicted for family-violence assault (impeding breathing/circulation) alleged Sept. 5, 2014; tried Aug. 25–26, 2015; sentenced to 10 years confinement.
- Indictment tracked Penal Code §22.01(b)(2)(B) language (impeding breathing by applying pressure to throat/neck) but omitted the §22.01(a)(1) “causes bodily injury” element required for third-degree felony family-violence assault.
- Defense first raised the indictment defect orally in a directed-verdict motion after the State rested (i.e., after trial commenced); motion was denied and the jury convicted.
- Defense later moved for new trial on the indictment defect; denied. On appeal Flores argued the indictment was insufficient and that the trial court lacked subject-matter jurisdiction.
- The court treated the indictment omission as a substantive defect but analyzed (1) whether Flores preserved the complaint and (2) whether the record otherwise afforded him sufficient notice so jurisdiction attached.
Issues
| Issue | Plaintiff's Argument (Flores) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Indictment sufficiency (failure to allege “bodily injury”) | Indictment defective because it omitted the §22.01(a)(1) bodily-injury element | Indictment identified §22.01(b)(2)(B) and the specific conduct; any defect was forfeited because not raised before trial began | Court: Indictment was defective (omitted bodily-injury), but Flores forfeited the complaint by not objecting before trial; issue not preserved on appeal |
| Timeliness / preservation of objection | Objection raised after State rested was sufficient | Objection was untimely under Teal/Art. 1.14 — must be before trial starts | Court: Objection untimely; preserved-for-review rule bars appellate relief |
| Subject-matter jurisdiction / notice | Because indictment failed to allege an element, it did not vest jurisdiction | Even though the indictment omitted wording, the indictment, capias, record, and trial plainly identified the statute and theory, providing actual notice and vesting jurisdiction | Court: Subject-matter jurisdiction satisfied; Flores had sufficient notice from the record; jurisdiction not lacking |
Key Cases Cited
- Barbernell v. State, 257 S.W.3d 248 (Tex. Crim. App. 2008) (defendant’s right to be informed of the accusation)
- Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007) (three-step test for indictment defects and preservation)
- Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990) (omission of an element is a defect of substance)
- Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) (indictment must charge an offense to vest jurisdiction)
- Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015) (third-degree-felony family-violence assault requires bodily injury)
- Sanchez v. State, 209 S.W.3d 117 (Tex. Crim. App. 2006) (egregious-harm review for jury-charge error)
- Ex parte Moss, 446 S.W.3d 786 (Tex. Crim. App. 2014) (subject-matter jurisdiction cannot be waived)
- Kellar v. State, 108 S.W.3d 311 (Tex. Crim. App. 2003) (face of indictment and the record considered for actual notice)