Cook v. State

unfairly prejudicial. More- Indeed, Crips punishment and Griego the en- testified that courts, of over, following example the intimidation, trial and record gaged in the witness case, should in the instant linking appellant to the trial court any of evidence is devoid a threshold show- activity. appeals require the to make type of The court of State this hearing the membership at a outside proven If no link ing incorrect: there is of was activity jury allowing and of the of before appellant presence the between activity to be testimony gang membership gang, regarding regarding the that information presumption should be gang minimally relevant to deter- of the introduced. showing mining appellant. admissibility the of While punishment its absent against regarding the sentencing permit- it be relevant information it that is relevant regarding the it is little gang, of relevance the Rules of Evidence. ted arguendo, appellant. assuming, Even “relevant,” con- without this

the evidence is BAIRD, J., joins. nection, unfairly prejudicial it there- part supra III. See fore inadmissible. linkage, can conclude this

Without encourage this

the State offered evidence prove: Ap-

jurors to infer what could illegal

pellant engaged in activities motivated Crips. in membership his the or related to best, appeals

At court of observed the engaged appellant the record indicated that Larry COOK, Appellant, Neil activities, trafficking, at- drug of one Crips: at the note that “[W]e

tributed introduced, Beasley time this evidence was Texas, Appellee. The STATE murdering someone stood convicted was, best, purported drug deal.” what No. 0375-94. However, Beasley, 864 S.W.2d at 811. Texas, Appeals of Criminal Court appeals appellant’s court of did not find that En Banc. “purported drug conduct deal” participation motivated or related to his June Crips, failing thus to meet the third supra part I. prong of Lemon test.

Further, if even this evidence was somehow

“relevant,” unfairly appel- prejudicial it is part plu- supra

lant. See III. Because the

rality holds the evidence admissible without appellant

requiring a connection between illegal gang, I dissent. activities

V. Conclusion gang membership be

Evidence should only when the evidence constitutes

admitted beyond a doubt the de-

proof reasonable membership, illegal purposes or

fendant’s group, and conduct

activities pur- furthering gang’s illegal

defendant linkage require a

poses. Trial courts should illegal the defendant and each

between gang into evidence. of a introduced

activities mini- linkage, is of the evidence

Without assessing the defendant’s

mal relevance

473

organized, empaneled and sworn as such term, A.D., 1991, the March 186th County, Judicial District Court of said Court, term, said present at said do to said County Court that State aforesaid, presentment and anterior to the of this and on or about the day 1ST re- of June hereinafter defendant, ferred to with intent owner, deprive namely: ELIZA- PRICE, namely: property, BETH K. THE CURRENCY LAWFUL OF UNITED said STATES OF AMERICA property, property being than said other property real which had A of VALUE ($20,000.00) Twenty Thousand Dollars more, the of without effective consent Stevens, (Brett Mark D. Callahan Vincent owner; the Harrison, Lederman, Pia Rebecca Russell Before the commission of the offense Sablatura, Bunk, year J. Charles third law above, June, alleged day on the 24th of practice students licensed to under the su- A.D., 1977, 3-77-36, in in Cause no. CR Stevens), pervision Antonio, of Mark San for the UNITED STATES DISTRICT appellant. THE COURT FOR DIS- NORTHERN Hilbig, Atty., Steven C. Dist. Chris De- DALLAS, AT TRICT OF TEXAS Martino, Dimaline, A.J. Hervey, Barbara felony Defendant convicted of Antonio, Attys., Asst. Dist. San Robert Hut- FRAUD OF SE- IN OFFER SALE OF tash, Austin, Atty., State’s for the State. MAIL CURITIES AND FRAUD.

[Signed by Jury Foreperson] Grand OPINION ON APPELLANTS PETITION appellant On appeal, direct his contended FOR DISCRETIONARY REVIEW charging conviction was void because the in- constitutionally

BAIRD, strument was be- deficient Judge. cause it appellant’s omitted name and omit- Appellant by jury was convicted of theft ted the actus reus the offense. The Court $20,000.00. over Code Tex.Penal Ann. Appeals, justice af- dissenting, one Appellant pled § 31.03. “true” to the en- Cook, supra. Relying upon firmed. allegation judge hancement and the trial as- State, v. (Tex.Cr.App.1990), 799 263 S.W.2d punishment years sessed ten confinement appellant the Court held waived the error and ordered restitution amount of failing object charging instrument $6,000.00. § Tex.Penal Code Ann. 12.33. Cook, prior slip op. pg. to trial. 3. Address- Appeals The Court of affirmed. Cook v. ing appellant’s argument, constitutional State, (TexApp. No. 04-93-00111-CR —San explained: court 1994) (Not Antonio, 6, January published). Only by hypertechnical most ar- granted appellant’s petition We for discre- guments tionary can it be said that the instrument review to determine whether appellant If had charging not an “indictment.” sowas deficient as to acquitted, appellate been no jurisdiction. court would not invest the trial court with 200(c)(6). retry hold could him Tex.R.App.P. We will that the state because reverse. not an instrument was indictment

I. acquired therefore trial court never We set out the instrument below: In what sense then can it be said, conviction, IN THE BY NAME AND AUTHORITY after a the instrument TEXAS, OF THE STATE was not an indictment and the trial court OF Grand Jury Texas, County, duly acquire jurisdiction? jeopardy did Bexar State For

475 978, State, co.”); 221 Hollingsworth v. S.W. plain [appellant] it is has purposes, part, (Tex.Cr.App.1920); overruled 979 punishment convicted and has been been State, Tex.App. Kinley v. 29 $20,- King, supra; of theft over for offense assessed (1891); and, 532, 16 339, v. 1, Graham 340 S.W. [complainant] from on June 000 also, (Tex.1875). State, Ex See Tex. 550 Id., at 3-4. (Tex.Cr. 515, Preston, parte 833 S.W.2d appellant’s granted petition discre- We and, (Clinton, J., concurring); App.1992) charg- tionary whether review determine (Tex.Cr. State, Acosta v. 650 S.W.2d per- “a ing instrument which fails P.J., (Onion, concurring). App.1983) con- still constitutes an indictment as son” functions. An indictment serves two 12(b). art. templated First, provides notice of the prepare a defendant order allow II. State, v. defense. Saathoff State, 623 v. (Tex.Cr.App.1994); Evans A. (Tex.Cr.App.1981); Benoit guarantees The Texas Constitution 810, 813 (Tex.Cr.App.1977); by a to indictment to defendants (Tex.Cr. 377, 379 Wilson grand jury felony for all offenses.1 Tex. Zweig v. Tex.Crim. App.1975); Const, also, I, § 10. Har James C. 306, 747, (Op on 753 (App.1914) 171 S.W. (Texas Rights, 31 rington, Our Texas Bill of also, Braden, 1 The reh’g). G. Constitu See 1991). I, Project § Rights pro Art. 10 Civil Texas: An Annotated tion the State of pertinent part: vides (Texas Analysis, Legis 39 Comparative and prosecu- Rights of accused in criminal 1977). Second, indictment lative an Counsel tions v. jurisdictional a Labelle serves function. prosecutions In all criminal the accused State, 101, 106(Tex.Cr.App.1986); 720 S.W.2d right ... shall have the to demand the (Tex. State, 413, 415 Thompson v. 697 S.W.2d against and cause accusation nature of the and, State, Cr.App.1985); v. 560 Drumm him, to have ... copy a thereof and no 944, The (Tex.Cr.App.1977). S.W.2d 946-947 person shall be for held to answer a crimi- filing is to vest the of an indictment essential offense, nal an indictment of a unless on felony jurisdiction trial court with over jury, grand except in cases in which the 47-49; See, King, 473 at Ex offense. S.W.2d punishment imprisonment, is or fine (Tex.Cr. 173, 422 174 parte Krarup, S.W.2d penitentiary.... than in otherwise State, v. App.1967); 367 S.W.2d Melancon 690, Kennedy (Tex.Cr.App.1963); v. felony that 692 requirement The constitutional 291, State, 303,276 294 prosecuted by 161 offenses be indictment is firm Tex.Crim. S.W.2d See, State, reh’g); (App.1954) (Op. Hollingsworth, on ly King established. v. 473 (“[T]he 979; State, 43, Turpin Tex. (Tex.Cr.App.1971) 47-49 221 v. 86 S.W. at S.W.2d 455, 96, Tur (App.1919); 456 requirement prosecuted by Crim. 215 S.W. felonies be State, 320, 196 181 Tex.Crim. S.W. has been man v. 81 indictment followed Texas since and, State, Tex.App. against (App.1917); Lott v. 18 outbreak of the revolution Mexi misreading King twenty-five ago we years derived where considered from 1. Almost I, requirement § is not a defendant's of an indictment was held art. 10 violated whether Id., art. 1.141. jurisdictional right or a could be waiver of an indictment under waived. State, 43, However, ex King (Tex.Cr.App. 473 at 51. we further 473 47 S.W.2d v. 1971). felony today’s parlance, plained acts in lieu that “a common the consti information validi requirement as a and its an indictment be or substitute indictment tutional for ty jurisdiction.” systemic require as a is essential court’s referred to fundamental therefore also, Id., added). Lackey ment, (emphasis requirement impor at See which is a "so 51-52 State, 97, (Tex.Cr.App.1978). implementation mandatory.” 100 v. 574 S.W.2d [its] tant State, 275, merely King (Tex.Cr.App. Consequently, 1.141 holds that art. v. 851 S.W.2d 280 Marin dissent, charging 1993). type of one author who also au allows the substitution another, Marin, King but not otherwise holds indict instrument for does thored contends that requirement systemic requirement that systemic affect the fundamental is not a fundamental —, presented or charging subject a valid instrument be it is waiver. Post n. because 4, 3; pg. trial court with slip op. der to vest the n. 3. But this conclusion (1885). only upon Jurisdiction vests raising appeal trial and then them on filing of a valid appropriate indictment in the conviction, order to vitiate the the Texas 12(b). also, court. Tex. Const. Art. Legislature in proposed an amendment State, (Tex. 906, 624 S.W.2d V, § Crawford to art. 12 of the Texas Constitution and, Cr.App.1981); Dial, Garcia v. 596 which Legislature prescribe authorized the 524, 527 (Tex.Cr.App.1980). by statute the effects of substantive defects charging in the instrument. The amendment B. provided: 1985, Prior to this Court consistent An indictment is a written instrument ly held that “substantive” defects presented grand jury to a court charging instrument failed to vest the trial charging person with the commission of jurisdiction and, therefore, court with a con an offense. An substantively viction on a information is a written charging defective instrument challenged presented could be to a the first court time appeal. 267; on attorney 799 S.W.2d at for the State Thompson, 415; 697 S.W.2d at Green v. with the commission of an offense. The State, 13, 571 S.W.2d (Tex.Cr.App. 14-15 practice procedures relating to the use 1978); Garcia, parte 432, Ex indictments, contents, including their 432-433 (Tex.Cr.App.1976); American Plant amendment, sufficiency requisites are Corp. Food provided by presentment law. The anof (Tex. Cr.App.1974); Pospishel v. indictment or information to a court in- Tex.Crim. (App.1923); 255 S.W. 738 jurisdiction vests the court with Woodard v. 86 Tex.Crim. cause. (App.1920). S.W. 760 developed This rule 12(b). V, § Art. In tandem with the consti- over century more than a of decisions in amendment, Legislature tutional also interpreted I, which § we art. 10 to create a implementing legislation drafted in the form requirement “constitutional” charging that a of an amendment to Tex.Code Crim.Proc. allege instrument all elements of the offense 1.14(b) Ann. provided perti- art. 1.14. Art. See, in order to constitute an indictment. State, part: nent 288, v. 600 S.W.2d 301-302 Brasfield and, (Tex.Cr.App.1980) (Op. reh’g); on object If the defendant does not to a State, 395, Williams v. The 12 Tex.App. 400- defect, error, irregularity or of form or (Court 1882). also, Appeals 401 See substance the indictment or information Dix, George E. Charging Texas Instrument before the date on which the trial on the Law: The 1985 Revisions and the Continu commences, merits he waives and forfeits ing Reform, 1, Baylor Need 38 L.Rev. at for error, object defect, to or (1986). Accordingly, 13-22 charg where the irregularity objection no raise the ing instrument omitted an element of the appeal on postconviction or other offense the indictment void and the trial proceeding.... jurisdiction. e.g., Gengna court lacked See State, gel 227, v. 748 (Tex.Cr.App. S.W.2d 229 1.14(b) automatically upon Art. took effect 1988); 415; Thompson, 697 S.W.2d at Ex approval the voters of the amendment to art. (Tex. parte 427, Luddington, 614 S.W.2d 428 V, Studer, 266, § 12. 799 S.W.2d at n. 3. State, Cr.App.1981); Brown v. 558 S.W.2d V, § The amendment to art. 12 was nota- 471, 472 (Tex.Cr.App.1977); parte Ex Can First, grounds. ble on granting two to non, 266, 546 (Tex.Cr.App. S.W.2d 273-274 Legislature authority prescribe to 1976); (Tex. v. Jones 388 S.W.2d 716 legislation regulating procedures Cr.App.1965); Scott v. 171 Tex. instruments, charging contents of the amend- 53, (App.1961). Crim. 344 457 S.W.2d century ment precedent reversed a re-

C. garding implications the constitutional Studer, practice charging Frustrated with the common instrument defects. 799 (Clinton, J., withholding defendants concurring). substantive defects at S.W.2d at 289-290

477 that with re Second, it follows provided, for From Studer the amendment for the definition prong the second gard to history, in our a constitutional first time in 12(b) substantively a defective V, § an of an indictment. Art. definition trial court is sufficient to vest instru dictment “indictment” as “a written defines an Studer, in the wake of jury And grand a with presented ment court consistently charging instru we have held with of an charging the commission despite the 12(b). Therefore, constitutionally void V, § ment is not Art. offense.” of one or more elements omission comprise indictment the definition an within 301, Rodriguez, constitution, 799 S.W.2d provided by instrument offense. (indictment evading (1) (2) (Tex.Cr.App.1990) person; charge: must 12(b). allege knew com V, § arrest failed defendant commission of offense. Art. attempt 264, police who was also, plainant was officer See Luken Morris, him); Barton, parte ing to arrest Ex (Tex.Cr.App.1989); Robert R. (forgery 225, 1985, (Tex.Cr.App.1990) An Since Can Indictment Informa writing pur allege indictment failed “Fundamentally” Fail tion Be Defective for did ported to be act of another who ing Charge Offense?, Mary’s L.J. 25 St. Gibson, act); and, (1993). parte authorize Ex 225-226 (indict (Tex.Cr.App.1990) offense). allege failed to date of III. Murk, also, State prong we addressed the second (Tex.Cr.App.1991). definition, namely, the constitutional requirement that a IV. Fol- charge the commission of an offense.2 Today upon to we are called decide on lowing plea his conviction of nolo con- question does a unanswered Studer: tendere, time contended for the first charging instrument an indictment constitute appeal on that his void be- conviction was V, of art. the constitutional definition within the information an element of cause omitted 12(b) completely § if it fails to “a Id., offense. 264-265. person”? analysis thorough legislative In a 12(b), through art. its While 12(b) 1.14(b) V, § history of art. and art. 1.14(b), legislation, “de- implementing observed the intent behind the amendments requirement that an constitutionalized” the “change to a sub- was not what constitutes allege of every indictment element defect, if only stance but rather its effect” fense, provided the amendment nevertheless Thus, Id., prior to trial. at 268. a raised for an which had a definition “indictment” charging defect instrument substantive statutorily. been defined heretofore charging remains a defect and renders 12(b) V, Thus, § constitution art. established subject quash. to a motion to instrument charging a instrument to requisites al for However, we further that because the noted constitute an an indictment. To constitute an element was omission of of the offense indictment, must charging instrument “still a defect of substance in an (2) (1) person, the commission charge: naturally it is still follows the indictment clear, however, if offense. It is of an despite of that indictment the omission charge person, charging instrument fails to Accordingly, Ibid. we concluded element.” required by not an indictment as then charging required to that a instrument is not 12(b) I, V, § § 10. and art. art. every of in order allege element the offense 12(b) V, § conclusion that art. to commission an offense” as allege “the of V, 12(b). Id, requisites for an § 272. constitutional by art. at establishes required review, alleges ele- addressing appellant’s the constituent ground instrument all something (specifical- the issue "Does we couched wording as follows: or else ments of less).” Id., ... ‘An indictment or information something at ly 799 S.W.2d 266 charging ... written original). (emphasis in it is an the commission of an offense' mean 478 V, supported by McCraw, 613,126

indictment is construing Armory art. Board v. 132 Tex. 12(b) I, § § 627, (1939); and art. in10 accordance with Collingsworth S.W.2d 634 Coun- interpreta Allred, standard rules of constitutional ty 473, 13, v. 120 Tex. 40 S.W.2d 17 step, tion. As a first attempt (1931); and, Williams, 94, effectu v. Jones 121 Tex. ate the (1931). intent of the framers of a 130, V, constitu 45 S.W.2d 137 Because art. amendment, tional ap 12(b) and the voters who I, § § and art. 10 address similar sub- proved Studer, that amendment. 799 S.W.2d jects, compelled pro- we are to examine each 272; City at El Paso v. El Paso Commu attempt vision in give context and effect to District, nity College 296, 729 S.W.2d 298 they Clapp, both unless are irreconcilable. (Tex.1986); Gragg Cayuga Independent v. V, Comparing 639 S.W.2d at 951-952. art. Dist., 861, (Tex.1976); School 539 S.W.2d 866 12(b) I, 10, § § they and art. we find are and, Employ Farrar v. Board Trustees complementary conflicting. rather then Art. Texas, System ees Retirement 150 Tex. 12(b) V, I, § should be read context to art. 572, (1952). 688, 692 While art. § right 10: the latter established the to an 12(b) V, § clearly intended to eliminate indictment, and the former establishes the requirement that an indictment constitutional definition for what constitutes every offense, equally element of an it is 12(b) V, Although § an indictment. art. sub- apparent Legislature that neither the nor the sequently Legislature pre- authorizes the voters abrogate intended to the constitutional requisites scribe sufficiency of indict- right to a instrument sufficient to ments, grant authority dowe not read this constitute indictment. broadly Legislature so as to authorize the (“The 272, S.W.2d at n. 12 to indictment prescribe rules which undermine the consti- grand jury ... has not been abol tutional definition of an indictment because ished-”). also, Dix, Baylor L.Rev. 12(b) internally this would render art. 26, (1986) (legislative history 28-34 indi See, Gallagher inconsistent. legislators cates did not intend to eliminate 587, (Tex.Cr.App.1985) 591-592 indictment). necessity of an Consequently, (“Constitutional provisions will not be con- 12(b) V, § dispense cannot be read to ambiguous contradictory strued to be or if necessity filing with the an “indictment” in and, possible.”); such construction is Clapp, the trial court in order to vest the court with (“... 639 S.W.2d at 951. courts should avoid jurisdiction provide notice to the defen (of provisions) a construction constitutional dant. any provision meaningless which renders inoperative and must lean in favor of a con- construing When constitutional every oper- struction which will render word provisions, required interpret we are ative, rather than one which make some whole, piece Constitution as a than rather nugatory.”) words idle and lan- “[t]he Since Oakley meal. (in guage provision) used a constitutional (Tex.Cr.App.1992); Pierson v. presumed carefully must be to have been (App. Tex.Crim. selected,” Legislature we do not believe the 1944). Thus, provisions constitutional are provide would a constitutional definition of an not to compa be examined isolation from subsequently indictment and then authorize provisions. Oakley explained: rable In we prescribe statutory itself to rules which un- ... the Constitution must be read as a Gallagher, dermine definition. 690 give every whole so as to effect to each and at S.W.2d 592. provision.... part No of the Constitution given a should be construction which is Moreover, a construction of art. repugnant express authority contained 12(b) V, § places which the constitutional part, possible if it another is to harmon purview definition of an indictment within the provisions by any ize the reasonable con 1.14(b) problematic art. because it sub struction. jects provision statutory a constitutional (citations Id., omitted). authority. 830 at 110 S.W.2d It is fundamental to constitutional also, 949, Clapp See v. statutory Legisla 639 S.W.2d 951 and construction that the (Tex.Cr.App.1982); authority Texas National Guard ture lacks the to enact a statute

479 (Tex.Cr.App.1991), Judge Malo 164 provision of the Consti- S.W.2d conflicts with a which V, 460, Wilson, art. regard 142 to the Dendy ney v. Tex. that with tution. observed (1944), Supreme jurisdiction, the Texas relating 179 269 to court provision § S.W.2d 12’s follows: expressed proposition as Court 12(b) V, § reading of article ... a literal vested power to make laws is If mere results. could lead to absurd Legisla- through Constitution vest an indictment could presentment of However, Legislature does ture.... court, then, any absent jurisdiction in any con- power to enact law not have the defendant, capital objection from trary provisions of the Constitution. in a properly tried murder ease could be thereof, part undertakes to If law or that such a county I cannot believe court. nullify protection furnished legislature’s or the voter’s result was the thereof, Constitution, part such intent. is void. that conflicts with Constitution J., Id., concurring, joined (Maloney, at 168 also, Id., v. 179 at 273. See Maher S.W.2d JJ.). also, Benavides, Marin See 923, Baird and Lasater, 366, 924- 163 Tex. 354 S.W.2d 275, Howerton, (Tex.Cr.App. 279 (1962); v. 851 S.W.2d City Fort v. 925 Worth 615, (1951); 1993) (“[A] 614, in Texas not be tried 236 S.W.2d 618 149 Tex. 1022, Ross, 415, 173 County felony v. 141 Tex. S.W.2d Court Jones for a (1943); consents.”). Empire Fuel v. 1024 Gas & Co. Law, even if he 138, 265, (1932); 121 Tex. 47 274 Similarly, not believe a rea we do 159, Connolly, 117 v. Tex. S.W. Cameron 12(b) V, per § of art. sonable construction 221, (1927); Indepen Crabb Celeste the constitutional mits the conclusion District, 194, 146 dent School 105 Tex. S.W. indictment falls within the definition of an 528, (1912); Tex.Jur.3d, 12A Consti 1.14(b) construc purview art. because this Law, “Certainly, § a statute can tutional 6. If result. art. clearly leads to an absurd tion not override the Constitution.” Cramer 12(b) V, subjects requisites of an indict § all Sheppard, 140 Tex. hence, 1.14(b), scope art. ment to the (1942). Thus, Judge Clinton stated his waiver, point at we can conceive of no then concurring opinion in mean “[The] Studer: is so deficient which a 12(b), V, § ing import insofar of Article Clearly, an indictment. as to not constitute information,’ is a as it defines ‘indictment or 12(b) V, § art. would this construction of Legislature question for this Court. The paper for a permit sheet of to suffice a blank sufficiency, prescribe ‘contents ... free Leg do not believe valid indictment. We requisites,’ [of indictment] but could have intended Id., islature or the voters parameters."3 within constitutional 12(b). Y, § (Clinton, J., approving art. this result when concurring). See at 293 V, of art. also, Dix, this construction Baylor at 40-41. Nor do we believe L.Rev. 12(b) to an indict comports § Finally, although attempt to con I, § 10. guaranteed according to provision a constitutional strue language, we are nonetheless its literal that the defi therefore hold We obliged to avoid a construction which renders provided by art. indictment nition of an result. 16 Am. an absurd or unreasonable 12(b) requisites § constitutional establishes Law, Jur.2d, p. Constitutional 12(b) V, § does not indictment. Art. for an also, Thoma, 477, 489 In re statutorily Legislature authorize the and, Cramer, (Tex.Rev.Trib.1994); requirements. fundamental change these (“... and statu at 155 constitutional SW.2d and, Howerton, 618; See, Den at tory provisions not be so construed or will Accordingly, to con at dy, 179 S.W.2d 273. interpreted to lead to absurd conclusions I, by required art. an indictment as stitute interpreta or ... if other construction V, 12(b), ...”). charging § instru § a 10 and art. in reasonably indulged be tion can person,” with State, charge “a instance, must at least 819 ment in DeDonato For erwise indicated. emphasis supplied author unless oth- is 3. All (both the commission of an charg appellant’s) offense.4 If the sources State’s would saved, justice ing charge person” instrument fails have been would have “a been better served. then it is not an indictment and does vest Moreover, jurisdiction.5 the trial court with KELLER, JJ., WHITE dissent. because valid indictment is essential for jurisdiction, subject is not to waiver. CLINTON, Judge, concurring on Crawford, 907; Lackey 624 S.W.2d at v. Appellant’s Discretionary Petition for State, (Tex.Cr.App.1978). Review. Judge Meyers’

For in the reasons stated dissenting opinion, I concur in the Court’s V. judgment agree Judge in this cause. I with case, charging the instant the instru- Meyers majority’s disposition that the inis wholly charge person.” ment failed to “a things all inconsistent with the rationale and Thus, charging the instrument did not meet holding of Studer v. 799 S.W.2d 263 prong the first of the constitutional definition (Tex.Cr.App.1990), precisely for the reasons 12(b). V, § Consequently, of art. charg- the gives agree he in his I with him dissent. also ing instrument was not indictment as Id., wrongly that Studer was decided. 12(b) V, I, required by § § art. and art. (Clinton, J., Moreover, concurring). 286-293 jurisdic- and did not vest the trial court with something very approach similar Therefore, appellant’s tion. conviction is Judge Maloney now concur advances his void. ring opinion, opinion from his the derived (Tex. Court Fisher v. 887 S.W.2d 49 judgment Appeals of the Court of is Cr.App.1994), suggested at the time of reversed and we remand this cause to the Studer, Id., rejected. but at 293. I can trial court with instructions to dismiss the majority’s today disposition conclude that the prosecution in this cause.6 fundamentally is at odds with Studer. MANSFIELD, J., joins opinion Judge Meyers, compunc- Unlike I have no join following majority opin- note: I Studer, overruling tion about decisis stare Court, agreeing charging ion of the that a notwithstanding. As I observed a com- charge person” instrument that fails to “a is panion Rodriguez ease V, (Tex.Cr.App.1990): not an indictment as defined art. 799 S.W.2d 301 12(b) I, § § and art. 10 of the Texas Consti- attempting pluck perceives “In what it troubled, however, tution. am the fail- stray fundamentally to be thread object ure of trial counsel to the error ju- defective indictments from the criminal trial, charging prior given instrument risprudence, majority threatens to un- that the error was obvious. Had this been pro- ravel the whole fabric of our criminal done, a substantial amount of time and re- cedure.” (accused Perhaps argue charg- obliged one could that the instant arts. 26.07 and 26.09 to state instrument, ing by simply stating charging “the defen- true name when instrument is read at dant,” However, charged person.” arraignment), person’s "a such a or where the name is effectively nullify charging alleges construction would the consti- unknown and the instrument V, Rather, see, 12(b). only physical description, § tutional definition of art. Tex.Code Crim. 12(b) ("... requires § When name believe that an indict- Proc.Ann. art. 21.07 particular person. interpre- grand jury, This is unknown to the that fact accused, stated, statutory and if it a reason- tation is consistent with the definition shall be be given provided by ably description of an indictment Tex.Code Crim. accurate of him shall be cases, indictment.”). charging the writ- In such Proc.Ann. art. 21.01: "An indictment is meaning grand jury accusing person instrument is an indictment within the ten statement of which, V, 12(b) erroneously of art. because whether therein named of some act or omission information, through declared to be an offense.” a lack of the indictment charges person.” “a still pause addressing a 5. We to note that we are not 6.Appellant’s alleges remaining ground where for review is dis- situation see, name, an incorrect Tex.Code Crim.Proc.Ann. missed. instructions, appel- ultimately the Id., (Clinton, J., jury dissenting). See Stu at 304 State, (Clinton, J., sufficiency the con supra, at 292 review of the der v. late court’s metaphors, I mixing curring). At the risk of em- the conviction. We support to evidence to the bud as nip that threat as close would a connection “there must be phasized that overruling that are possible, and admit we is which a defendant the crime with between Because, Meyers ably il Judge Studer. reviewing and a charged in the indictment lustrates, so, I concur the Court all but does sufficiency of the reviewing the role in court’s judgment. failing expressly to over in its Fisher, support a conviction.” evidence to Studer, however, the Court is intellectu rule concluded Accordingly, we at 53. dishonest, I cannot ally and for that reason identify necessary to be able that it was join opinion. its the defendant with which the offense MALONEY, Judge, concurring. indictment, forth a and we set charged in the accomplished by which that could be scheme majority, join opinion I but write the inadequate indictment. of an majority’s even in the face separately emphasize that the strengthened opinion is consistent with and Id. at 55-58. principles set forth in Fisher v. the reasoning from our logically It follows (Tex.Crim.App.1994). I also 887 S.W.2d 49 charge in “the holding in Fisher that order point dissenting opinion that

write to out the purposes of offense” for commission of an upon reading of this Court’s rests flawed enough al- there must be Article opinion in Studer v. identify the offense.1 leged to enable one to (Tex.Crim.App.1990). applies to the principle logically also This that definition portion of the constitutional I. Enough person.” “a the instrument correctly majority states that the con- person is identifi- alleged be so that must in provided stitutional amendments one body of the indictment as able the the first time definition of “indictment.” of an offense. charged with the commission Majority opinion at 477. Under this new as the person is named or described No definition, an “indictment” is an instrument instant case. accused in the indictment (2) (1) charges with the com- Therefore, correctly appellant asserts mission of an offense. Id. at 477. constitutionally This Court reasons, as well as For these deficient. an of- held “the commission of join majority opinion, in the those discussed alleged despite fense” was still the omission opinion of the Court. expounded an element of the offense. We Fisher, supra, on this notion in where problem determining suffi- discussed II. ciency of the evidence the event of disparages majority for The dissent

indictment, like that in that does not holding “revis[ing] [.]” the essential of Studer allege all of the elements of the offense. We J., (Meyers, Dissenting opinion at dis- began by recognizing relationship be- Curiously, rendi- senting). the dissent’s own expecta- tween the a defendant’s for, holding repre- in Studer tions about what he would be tried tion of the Court’s stated, allega- practice. If it is the case that all 1. In Fisher we to more than opinion tions in the indictment are common We assume in this that the indictment offense, alleges enough identify charged. distinguishing the offense and none are one might allege only example, For an indictment offense, single then I would hold that the particular of five elements of a offense. four By comparing ment, charged elements is that to which fewest allegations indict- in the alleged in order to arrive must be added to those penal incomplete, with various albeit allegations complete at a offense. If provisions, deter- code one should be able to that one cannot iden- indictment are so deficient alleging. the State is mine which entire offense alleged, tify then the indictment the offense Fisher, Slightly S.W.2d at 55 n. 10. further subject matter to confer insufficient put approach into elaboration is needed to an significant departure mg that it is a defect of substance of sents a from the actual it not indictment or information that “does language opinion. of the agree charge an offense.” I cannot with this holding in The dissent summarizes the appear “That it does not broad translation. as follows: Studer that an offense was committed” is far differ- presented A written instrument to a court charge it not an offense.” ent from “that does by grand jury charge which does not “an light critical in of the This distinction is is, nevertheless, offense” an requirement that an indictment constitutional and, therefore, juris- invests the court with Tex. charge “the commission of an offense.” diction. V, § Art. 12. the dissent’s Const. Under goes Id. at It then on to revisit and 484. matter, per- rephrasing article 27.08 of the analysis leading track the in Studer to this of the constitution re- mits waiver what purported holding. that First noted is Stu- quires requires that an in- constitution —the allege der held that the failure to all of the offense; charge yet (according dictment an elements of the offense is defect of sub- pro- rephrasing) article 27.08 to the dissent’s stance. This is accurate. The dissent then charge an offense” vides that the “failure to statutory de- identifies first the four which, article is a defect of substance under charge fects of substance as “failure to 1.14(b) reading a true is waivable. Under this, Following Id. at 484. offense[.]” requires that provisions, the constitution dissent states that Studer therefore conclud- charge the commission of an an indictment ed that “a written instrument which does not offense; provides that it is a article 27.08 allege every constituent element of a statuto- appear “that it not defect substance does ry substantively crime is defective because it (emphasis that an offense was committed.”2 charge (emphasis does not Id. offense.” added). speaks constitution in terms of The added). necessary charge the commission what is reasoning springs offense; flaw this line of speaks article 27.08 in terms of of an rephrasing from a loose of the first of the appears allegations it from the whether statutorily Ar- defined defects of substance. an offense was committed. The essential it provides ticle 27.08 is a defect of holding of was that the absence of an substance of an indictment or information was appear element made it that an offense (a substance), appear not therefrom that an but “[t]hat does not committed defect of charge against the law was committed nevertheless sufficient to constitutional defendant.” Tex.Code Crim.Proc.Ann. art. commission of an offense for 27.08(1). jurisdiction.3 provid- purposes of The dissent restates this as matter,' ‘subject expression points as used 2. The out that article 27.08 has matter. The dissent jurisdiction, long interpreted problem to the been to mean that an indictment reference charge substantively criminal defective if it does not refers offense. 425, offense, despite language to the effect that it Hultin v. 171 Tex.Crim. its 248, added). (App.1961) (emphasis appear This does that an offense was committed. not J., 484, jurisdiction Dissenting opinion (Meyers, stated that means n. 2 dis- Court has further however, subject adjudicate concerning senting). interpretations, were "the These Dial, given prior in a case.” Garcia v. to the constitutional amendments in matter made (Tex.Crim.App.1980) (quoting of "indictment.” 1985 which added the definition parte Armstrong, majority’s opinion, Tex.Cr.R. emphasized consti- Ex As in the (1928)). juris- subject provisions Without matter statutory should be inter- tutional and authority give a court has no to act. preted harmony, possible, diction if so as to statutory amendments meaning Majority opinion The constitutional and effect to both. See interpretation have and our of them at 478-479. subject matter eliminated the basic notion jurisdiction. Constitution as amended The Texas have It is that a trial court must elemental presentment provides "the of an indictment subject explained As matter court with to a court invests the or information Court, give jurisdiction cause.” In order to meaning provision competent jurisdiction and the constitutional means a to this A court of offense, requirement the com- jurisdiction that the indictment [cita- court that has offense,” they must be construed requisite elements mission of "an ... One of the omitted] tion allege enough requiring subject that the indictment 'jurisdiction' jurisdiction over out, majority points construing presented in The defect in Studer was As the waived.4 (and accordingly provisions, obliged constitutional “we are to not such that the offense court) jurisdiction subject avoid a construction which renders an absurd matter of the Majority opinion or unreasonable result.” could be determined. There was an ab- charge at 479. In order to “the commission sence of one element.5 Indeed the Court allege spoke throughout opinion of an offense” an indictment must in terms of element”, enough alleged that can be “omitting so the offense “the omission of that subject element”, court identified. This vests the with indictment “need not nec- that an element”, jurisdiction. supra. “missing essarily allege every matter See fn. Article a 1.14(b) permit element”, and 27.08 do not waiver of “if of an offense is an element Rather, element”, subject jurisdiction. omitted”, if matter “the omission of an enough alleged element”, enable the identification constituent ele- “missing an “each element”, purposes subject ment”, anof offense for of matter of an “the absence constitution, jurisdiction under the but the in “each element of the offense”. Nowhere allegations any are nevertheless deficient so that opinion in discussion our Studer is there technically appear might it does not that an offense possibility that an indictment committed, there a was is waivable defect of of omit more than one or even all elements happened substance. This is in constitutionally what Studer. an offense and remain sound. repeatedly comments, join The in opinion dissent states that Stu- I of With these der this Court decided that the indictment majority. charge

there did not an offense. The dissent quotes following language MANSFIELD, J., joins. from Studer: 1.14(b) change requires, among in Art. MEYERS, Judge, dissenting on things, exceptions other that substance be Appellant’s Discretionary Petition for pre-trial raised or otherwise the accused Review. objec- has forfeited his to raise the I that believe Studer appeal by tion on or collateral attack. If (Tex.Crim.App.1990) wrongly decid- omitting an element from an indictment is ed, mainly given by ma- for the reasons still a defect of substance in an jority Accordingly, in this case. I do not naturally it follows the indictment is abstract, disagree, at least with most despite still an indictment the omission of say. majority opinion of has to what that element. my colleagues part company with on Where Studer, Dissenting opinion (quoting at 485 point they this issue is at the where revise 268). quoted Nowhere in this holding support of a essential Studer language anywhere opinion or else can logic distinction is at odds both with which I find that the stated Court that the indict- the law. with charge ment failed to an offense. The issue presented in Studer was defines “indict- whether the indict- The Texas Constitution allege presented ment’s all the elements ment” as “a written instrument failure grand jury charging person a could be raised for the first time a court a offense appeal, or an offense”1 and it on whether such defect was fact with the commission of identify charged accordingly readily charged, offense but the offense in- 5. We identified the subject single allegation. vest matter is also con- of a We This noted the absence Fisher, principles charged sistent with the set forth in inde- stated that the defendant was with exposure, allege discussed above. cent but the indictment failed to upon reckless- the act or acts relied to constitute presented 4. Studer the issue as ness. wording Does the "An indictment or informa- 1. The of Criminal Procedure describes Code tion is a written instrument ... differently as "the written statement somewhat with the commission of an offense” grand jury accusing person therein named alleges mean it is an instrument that all the which, declared something some act or omission constituent elements less). (specifically something art. an offense.” Tex.Code Crim.Proc. else be original). (emphasis 799 S.W.2d at 266 21.01. instrument returned of an indictment written

provides “presentation jurisdic- grand jury purposes court ... to a court invests the is an indictment Const, 5, § cause.” Tex. jurisdiction, tion of the whether it investing a court with held that a written instrument Studer we charges “an or not. A brief restate- offense” jury presented grand court which to a makes argument given is, nevertheless, does not “an offense” perfectly clear. therefore, an invests the indictment began analysis proposition We our with jurisdiction. Today, majority court with a that failure of an indictment or information holds that a written instrument the Court of an of- allege to all constituent elements by grand jury a which presented to a court and that “[t]he fense is a defect of substance charge person” not “a is not an indict- does Y.A.C.C.P., 1.14, Art. and amendments to not, therefore, invest ment and does not, face, V, change § 12 did on their Art. jurisdiction. court with The basis for this long-standing precedent.” 799 S.W.2d at this by is not made clear remarkable distinction only that there are four 268. We conceded majority opinion, and because the re- substance known to Texas criminal defects of quirement charge an “an of- indictment offense2, charge failure to law: failure to an given fense” is the same constitutional statutory period of allege a date within the provision requiring charge person,” it “a to defense, limitation, appar- allegation of a that one re- cannot subscribe to the view Crim. ent lack of Tex.Code quirement other is is forfeitable while the 27.08; 799 at 267. We Proc. art. S.W.2d not. which concluded that a written instrument think, mistake, I derives from The Court’s allege every constituent element does not misunderstanding opin- our a fundamental substantively statutory defective crime majority in The seems to think ion Studer. charge it does not an offense.3 because that, rationale, under the Studer an indict- purported Having thus decided that charge may be sufficient to an offense charge of- did not an indictment Studer though allege it fails to all essential even fense, proceeded inquire to whether we next long of that offense so as one can elements charge to failure of a written instrument examining it what offense the State tell from an indictment State, an offense means that it is not charge. Fisher v. intended to meaning Texas within the of the Constitu- (Tex.Crim.App.1994); Thomason tion, Reasoning that article section 12. (Tex.Crim.App.1994). n rationale Procedure, article the Code of Criminal not all. But was 1.14(b), requires of substance all defects actually held What Court including charge to its failure Rodriguez an companion case of its offense, trial, prior to be raised to (Tex.Crim.App.1990), an 799 S.W.2d 301 Constitution, 27.08, charge yet "appear” an of- says not to that an indict- 2. Article Subdivision 27.08(1), meaning substantively if of article ment or information is defective fense within appear interpretation represent therefrom that an offense so "it does not an latter would against contemplat- the defen- radically any the law was committed far different from thus always understood the dant.” This Court has precedents entirely For as to be novel. ed our that an indictment is substantive- however, statute to mean enough present purposes, it is to know charge ly an offense. The defective if it does not expressly opinion eschewed in Studer that our legion. are For which illustrate this fact cases departure existing case law on from however, present purposes, to it is sufficient subject. quote the most famous and from one of influential. Clearly, element does omission of constituent prosecution suggest is limitations that the not degree Only such a as to if the defect be of barred, alleged or conduct was excused that the thereby charge against the no offense prose- subject justified, matter of the or that the void, exception to the substance be be will the juris- beyond the trial court's cution is otherwise appeal on trader considered for the first time Accordingly, if omission of a constituent diction. 27.08(1), supra. Article substance, it must indeed a defect of element is Corp. v. American Plant Food plead to all offensive ele- be because a failure suggestion, (Tex.Cr.App.1974). Any charge therefore, an tantamount failure may ments is sufficient to that an indictment be meaning offense. an within the jurisdiction,” Legislature that the not a court as the Con- inferred did mean “invest it, imply really a written puts “eharg[es] not unless it stitution charges it “indictment” unless the commis- with the commission of an offense.” This is sion of offense. I think that a written instrument because necessary prerequisite made a should be 1.14(b) change in requires, among Art. jurisdiction, any of a trial court’s the exercise things, exceptions other that substance be my than I think it should not. more pre-trial raised or otherwise the accused opinion, the lawmakers this State objec- has forfeited his to raise the predicate the exercise of trial-level choose appeal on tion collateral attack. If jurisdiction upon criminal the existence of a omitting an element from an indictment is they indictment, written instrument if see fit to do so. still a defect of substance But, naturally they dispense follows that should instead decide to the indictment is despite still an requirement indictment the omission of with the instru- that element. altogether, I not to would be inclined all, grand think it unconstitutional. After the 268. jury screening to which defendants are con- apparent It is thus that Studer was mak- stitutionally felony entitled in cases can be ing exactly argument the same Cook makes accomplished memorializing pro- without the argued in the instant cause. He that defects document, cess in a formal and the notice to in an indictment must be raised before trial constitutionally which defendants are entitled only if actually the defective instrument is in provided all criminal cases can be from a indictment under the constitutional defini- Const, I, § different source. Tex. 9. tion. He maintained that a written instru- charge ment which does not an offense is not Nevertheless, apparent peo- it that is the indictment, just as Cook now maintains ple opted in of Texas have not fact to dis- that a written instrument which does not pense with formal instruments in person is not an indictment. This Indeed, they criminal cases. have deliber- however, argument, plainly was and unam- ately require an in- chosen to indictment or biguously rejected in That Studer. the “invest[ing] formation before court with [a] accepts Court now it in the instant cause And, jurisdiction” of a criminal case.4 lest represents significant revision of our Stu- specifically there be doubt about what is which, position der in to fairness bench and necessary jurisdic- for the exercise of such alike, ought bar acknowledge. to tion, they gone expressly say have on you, presented “a written instrument to a court irrevocably Mind I am opposed not Indeed, grand jury charging the such a revision. I sympathetic am view, expressed majority required. with the in commission of an offense” is This the here, opinion pretty that an indictment does not to me. seems clear that, so, Ironically, majority majority opinion espe the seems concede defendant. If the law, prior interpreted King under our cially interesting, since the Constitution does not (Tex.Crim.App.1971), 473 S.W.2d 43 ic right ind seem to make the indictment itself a really jurisdictional, tments were not since that, prior amend defendant. The truth is they Op. could be waived. at 475 n. 1. Jurisdic the Texas ment of article section defects, course, tional are not waivable. But any specific provide Constitution did not majority goes the then "the on to describe consti necessary to the written instrument was "invest requirement tutional of an indictment” as “fun jurisdiction was court with of the cause." It requirement" systemic damental under our hold very our law that did that —the case law case (Tex.Crim. ing in Marin 851 S.W.2d 275 sought to be eliminated the amendments of App.1993) important because it is "so that it were in fact our and which eliminated mandatory express absent waiver.” This is majority’s holding Accordingly, in Studer. Marin, wrong, of course. Under fundamental position supported by would be better a claim systemic requirements are not waivable at all. effectively the constitutional amendment Perhaps majority's it is the view that the consti course, then, King. But the Code of overruled requirement tutional that an indictment name "a providing Criminal Procedure articles person,” jurisdictional, while not is nevertheless waiver of an indictment would be unconstitution cognizable appeal on direct even absent a trial objection al. because it is a waivable informations, so, has now become dictments and have it to be and But Studer would not just sort of of itself. It is disgrace jurisprudence of this a caricature I will not complexity unnecessary intelligence judges thing that introduces or insult the of trial Court practitioners, and lawyers by pretending that Studer is into the case confuses in the estimation of majority in this case diminishes this Court consistent with the view pleasure judges scholars. If it were obviously it is not. The Studer Court when holding ques- of this Court to reexamine interpretation that its realized likely approve the ef- language not literal. I would most tioned constitutional If, reconsideration, fact, it after were consciously In it decided not to construe fort. or substan- plain meaning opinion of the Court to overrule language according to its such Studer, might willing doing tially qualify even be because it realized that so would effec- join long as it had the tively purpose legis- opinion, of those so undermine the my colleagues, overwhelming support of de- amendments lators who enacted the Code issue, justified finitively and was approved the constitu- settled and those citizens who fact, acknowledgement of question. more than a mere tional amendments none of these But the Court has done nearly opinion in Studer is actual- error. half of our cause, and seems disin- investigating articulating things in the instant ly devoted Instead, legislative in future. intent clined to do them extratextual sources course, reinstating quietly why merely reverses order to demonstrate constitutional jurisdictional pleading defects and the law of definition of “indictment” should be read is still pretending all the while Studer it is The author of Studer even as written. But, course, it isn’t. dissenting opinion as one of alive and well. cited it a later leading authorities for the contemporary, two obliges appellate decisis The rule of stare proposition “ambiguity a statute is own judges respect precedents of their history legislative until is re- apparent court, prece- they agree with those whether legislative the true intent searched and course, mean, That does not dents or not. Boykin v. discerned.” It cases should never be overruled. that bad (Miller, J., dissent- (Tex.Crim.App.1991) not be over- only means that cases should ing). It also compelling reason. ruled without Thus, although I Studer was believe distinguished should not be means that cases decided, wrongly no means underly- patently grounds. The on fictitious accident, expressed nor was its rationale Studer, mistaken it ing rationale of however Fully due consideration. the Court without as a matter of constitutional have been years passed enactment of the five between a more coher- interpretation, is nevertheless statutory and constitutional amendments charging in- approach ent and workable During in Studer. our construction them which, in- than the one with strument law time, vigorously issues were debated Thomason, the Court spired by Fisher eventually in this appeals the courts Because I cannot us in this case. leaves arguments Everyone knew what Court. compelling reasons agree that there are end, And, in the on both sides. were bigger mess of the law than Studer make a virtually opinion was unanimous. Court’s has, already respectfully dissent. significant dis- Only single judge expressed majority rationale. agreement with (Clinton, J., con- at 286 Rodriguez, 799 S.W.2d at 303

curring);

(Clinton, J., dissenting). later,

Now, most of the years five so, gone. apparently And Court is

Studer began grass roots itself. What instru- for the reform

movement exclusively on the focused almost in- jurisdictional from defects

elimination

Case Details

Case Name: Cook v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 28, 1995

Citation: 902 S.W.2d 471

Docket Number: 0375-94

Court Abbreviation: Tex. Crim. App.