Ieppert v. State

IEPPERT, Appellant, Louis Steven Texas, Appellee.

The STATE of 0826-92, 0827-92,

Nos. 0829-

92 and 0830-92. Texas,

Court of Criminal

En Banc.

Oct. Mitchell, Dallas, appel-

Lawrence B. lant. Berdanier,

Pamela Sullivan Assistant Dis- Dallas, Huttash, Attorney, trict Robert A. Austin, Atty., State’s for the State. PE- OPINION ON APPELLANT’S FOR TITIONS DISCRETION- ARY REVIEW MEYERS, Judge.

According judgments entered court, appellant the trial was convicted of aggravated sexual assault in four cases con- expressed subject to the rule of forfeiture prosecution. for His solidated 1.14(b). peniten in article Studer assessed at confinement was 49, 40, 22, years. (Tex.Crim.App.1990). tiary terms of and 15 for convictions appeal he claimed that these On appeal complain did on But not of by clauses were barred causes that his indictment was of the instant the Texas and United States Constitutions Certainly, that not claim it he did defective. pros he was the statute under which because defect under suffered a substantive or formal yet at the time had not been enacted ecuted fact, purposes 27.08 or 27.09. In for article allegedly conduct. Tex. of his criminal conceded, just effectively as he appeal, of he I, 16; I, § art. art. Const. U.S. Const. review, that discretionary on now does Appeals not reach the The Court of did charged fairly adequately and him indictment claim, however, holding instead merits of this just He the commission of an offense. complain right that forfeited penal proscribing that claims statute appeal did not first raise of it on because he allegedly did not his such offense exist when Ieppert court. Nos. it in the trial illegal As this does not conduct occurred. 05-91-00084-CR, 05-91-00085-CR, 05-91- the form essentially present question about 00087-CR, 05-91-00088-CR, 1992 WL 86706 indictment, think of an it or substance 4/30/92). We (Tex.App —Dallas, delivered provisions of article clear that the forfeiture . decide granted discretionary review to 1.14(b) apply. do not was prosecution for conduct which whether on our Appeals also relied The Court illegal when committed is a forfeitable not opinion Almanza v. irregularity process. We hold trial rehearing), on (Tex.Crim.App.1984) (opinion that it is not. authoritatively construes article 36.19 which Appeals several relied on The Court Procedure. of the Texas Code of Criminal First, support authorities to its conclusion. provides That statute that that claim was de- it maintained [wjhenever appears by any it the record 1.14(b) article of the Texas faulted under any upon appeal that re- criminal action it was of Criminal Procedure because Code 36.14, 36.15, 36.16, quirement Articles judge’s to the attention before not called disregarded, and 36.18 been have 1.14(b) that provides trial. Article judgment unless the shall not be reversed was calcu- object appearing to a from the record error the defendant does [i]f defendant, injure defect, error, or of form or lated irregularity or that appears from the record in an or information unless substance indictment impartial fair and has had a on the trial on the defendant before the date which commences, forfeits trial. he waives and merits error, defect, object or right to to the this statute refers The articles the ob- irregularity and he not raise judge “deliver require generally that the

jection appeal postcon- or in other distinctly charge ... a written proceeding. viction case,” law to the setting applicable forth the things, the meth- original prescribe, among other to avoid This statute enacted exception charge, re- taking attacks, ap- either direct od postconviction instruc- that different or additional questing the sufficien- peal corpus, upon habeas it, it to delivering containing one or be included in cy charging tions instruments certifying inclusion jury, in article it for listed more defects substance interpreted opinion in Procedure. Our Almanza the Code of record. 27.08 of Criminal special to be combination deprive article 36.19 formerly held to defects were Such applica- rules jurisdiction, and harmless error and so were forfeiture trial court of time, involving one specifically irregularities ble cognizable reviewing courts jury charge statutes. these proceeding or more of five raised in an earlier whether first held, authority Corporation Court of not. American Plant Food the absence (Tex.Crim.App. interpretation, of this appel- trial waived 1974). jury charge Now, however, these defects most of sufficiency right complain expressly directed to the lant’s of ex viola- are not objectionable accusatory pleading jury charge. of an or a tions on because the jury charge egregiously harmful was not so Nevertheless, the character of our deprive impartial him of a fair trial. as to general law is such But, appellant complain did not complain on about most other trial Appeals jury charge Court of that the failed contingent upon specific pre a errors is also distinctly applicable to set forth “the law to See, contemporaneous objection. e.g., trial or that it in the ease” or was defective other 52; Tex.R.App.Proc. Tex.R.Crim.Evid. way by through controlled articles 36.14 Thus, in addition to its reliance on articles Indeed, apparent 36.18. it is in instant 1.14(b) the 36.19, Appeals and the Court of also application paragraph cause that the of the (Tex. Rogers cited 640 S.W.2d 248 charge accurately allegations tracked the of (opinion rehearing) Crim.App.1982) as au fairly jury the indictment and instructed the thority legal general proposition for the that finding not to convict without first rights, by process, even those assured due allegations beyond those to be true reason- usually Clearly, are forfeitable inaction. Accordingly, able doubt. it is clear that the right court the was about this. Because the hybrid provisions error of forfeiture/harmless ordinarily expects litigants upon law to insist Almanza, article as construed rights they their at a time can when be inapplicable appellant’s also to in contentions implemented, appellate courts should not the instant causes. rights consider such to have if been violated beneficiary willing forego to them at The fact that an ex com trial. plaint improper about the applica retroactive in As we noted Marin v. penal tion of a really statute is not a com (Tex.Crim.App.1993), at 278 plaint about errors or defects in an accusato system may thought ... our be to contain ry Rather, pleading jury charge. or a it is a (1) rules of three distinct kinds: absolute complaint permit that the law prose does not (2) requirements prohibitions; rights and cution or conviction for behavior which did litigants implemented by of must be which not constitute a criminal hap offense when it system waived; expressly unless and pened. Certainly there are in contexts which (3) rights litigants of which are to be im- may appropriate be to raise an plemented upon request[.] charging a jury instrument or instruction purports because it to authorize conviction 851 that We observed most for against conduct which was not rights parties litigation the law. of in are of the Hawkins, (Tex. See Ex type, explain S.W.2d 424 last but went we on to (indictment Crim.App.1986) alleges rights, right which vi other as the such counsel and penal olation of a by jury, widely statute not effect on the “are alleged date in the indictment proper is fundamen considered so fundamental tally allege functioning adjudicatory process defective because it “fails to of our as to offense”); Pope v. enjoy special protection system.” 509 S.W.2d 593 Id. (jury

(Tex.Crim.App.1974) charge au which at 278. We held that these can be waived, only by thorizes conviction for expression. lesser included offense but overt Id. at system under a statute not in emphasized effect on the date of 279. We also objectionable). requirements pro- offense is But the “includes a number of and essentially independent mere contention that a conviction is barred hibitions which are of cannot, essentially litigants’ under these circumstances ... wishes there- grievance charging parties.” about instruments or fore be waived forfeited held, Accordingly, systemic instructions. requirements, the default Id. These 1.14(b) provisions jurisdictional prerequisites article and the forfei include both provisions judicial authority nonju- error of article the exercise of ture/harmless purport 36.19 do not appellate lawmaking to bar full risdictional fundamentals of complaints, review they adjudication. of such at least when Id. cate- Which one these imprisoned depends they than consent be gories holds ex clause a crime. conduct does not constitute upon the of the clause itself. which nature 1986, Judge Writing for this Court judgments Court prohibition against McCormick described are, therefore, causes are reversed and these laws, found constitutions that Court for reconsideration remanded to States, of Texas and as axiomatic the United point first in a manner error government laws. opinion. with this not inconsistent principles fairness “The fundamental justice BAIRD,

upon system Judge, concurring. which our is found- prohibits ed the enactment of laws [sic] majori- separately write reinforce either act a of- make an criminal ty’s that the Ex Facto Clause conclusion Post retroactively or fense after its commission systemic requirement is a that fundamental impose harsher sanctions at trial for by object to at not be waived failure crime than in effect at the time of its were Judges trial the of and to address dissents commission.” and Keller. Mansfield 107, (Tex. Bonham, 707 S.W.2d 108 case, Crim.App.1986). In that unani I. mously agreed applicant was entitled to col necessary. A the brief review of facts is conviction, laterally attack criminal evi his Appellant mother complainant’s married the dently for the time writ of habeas first 1983, Starting in 1980. 1982 or when corpus, been because his had old, complainant eight years or was seven prior with a conviction under the enhanced appellant allegedly instant of- committed the authority of a statute that was not enacted complainant these fenses. first revealed until after of the crime with commission May mother in 1990. incidents to his of It charged. which he was is clear that we 1990, July charged In regard of presence or did absence multiple aggravated sexual objection indictments trial in that case as all relevant years-of-age. assault of a child 14 applicant’s post the merits ex to of facto alleged Each indictment the offenses claim. 1, September prior to 1983. Of- occurred pro The United States Constitution commit- aggravated fenses of sexual assault categorically post ... ex “[n]o vides 1, 1983, prohib- prior September ted to were Const, passed.” facto Law shall be U.S. art. §§ 21.04 and ited Code Ann. Tex.Penal §I 9 cl. 3. So Texas does the Constitution. required commit- 21.05 which the conduct be Const, clear, §I It both Tex. art. gratify ted “with intent to arouse or plain language provisions of these from any person.” 21.04 Sections sexual desire way in this has and from the Court September repealed, and 21.05 were effective past, post implemented them the that ex 1, 1983, §§ replaced by merely prohibitions upon do not confer facto 22.021, require the intent which do not people a right waivable or forfeitable sexual The instant arouse or desire. retroactively. their penalized to have conduct alleged in violation indictments offenses Indeed, prohibition against the constitutional made no Appellant §§ 22.011 and 22.021. legislation really is not an indi ex attempt quash indictments. categorical prohibi vidual all. It is a the indict- appeal, On contended people govern directed to their tion amendment, ments the Federal and State Consti- violated ment. Short a constitutional because, by prohibition, Facto Clauses1 people may tutional Ex Post not waive 22.021, rather collectively, prosecuting appellant under individually either more Const, Const, I, I, provides: § 16 provides pertinent Tex. art. 1. U.S. art. 10 law, attainder, part: ex retroac- No bill of Attainder, law, pass any obligation Bill of impairing No State ... shall law tive Law, impairing Obligation contracts, or Law made. shall be of Contracts....

221 536, Henderson, 96 425 U.S. S.Ct. Francis v. burden than 21.04 and State’s (1976) (failure 1708, object pg. 48 L.Ed.2d 149 Ieppert, slip. op. proof was lessened. composition grand to unconstitutional held 4. The Court State, error); Little v. 758 S.W.2d claim in the waived his ex failure to raise (failure object (Tex.Cr.App.1988) preserve failed to the issue trial court Id., grounds of involuntariness to confession appellate review. error); 542 S.W.2d Boulware waived

II. (failure object (Tex.Cr.App.1976) rule, venireperson in appellate will not violation general courts to excusal of As Illinois, 510, 88 not first Witherspoon error that was consider (1968), judge. waived of the trial 20 L.Ed.2d 776 called to the attention S.Ct. (Tex. error); and, Hernandez Johnson v. (failure object (Tex.Cr.App.1976) Cr.App.1994); Black v. error). J., (Tex.Cr.App.1991) (Campbell, illegally evidence waived seized co concurring). general This rule has been Nonetheless, general rule of waiver 52(a). cases, Tex.R.App.P. In most dified as rights. apply to all of a defendant’s does not requirement of an is fundamen 52(a) applies that Rule We have cautioned orderly tally necessary for the sound and “only in cases of forfeitable alleged trial presentation and resolution of sys violation never to the of fundamental See, Rogers v. appellate errors and issues. infringement or to the requirements temic State, 248, (Tex.Cr.App.1982) 640 264 S.W.2d implementation rights important that their so C.J.S., reh’g) (citing 24 (Op. on Criminal mandatory express waiver.”2 is absent an State, Law, 1670), and, Zillender v. 557 words, Marin, at 280. In other 851 S.W.2d 515, (Tex.Cr.App.1977). Howev S.W.2d 517 rights to a crimi certain are so fundamental er, not ex general rule of waiver does trial that their violation undermines nal possessed by a rights tend to all defendant. adjudicatory process validity of the inherent State, 275, Marin v. 851 S.W.2d 278-280 Thus, apply. do not and the rules waiver Marin, recognized (Tex.Cr.App.1993). In we may questions be certain constitutional types rights three distinct defendant’s appeal. For for the first time raised (1) regard rights which to waiver: those constitutionality of example, challenges to the absolute, may are not be waived under statute, State, 298 v. 768 S.W.2d Casares (2) circumstances; rights which those State, and, 730 (Tex.Cr.App.1989); Rabb v. automatically implemented by system 751, (“Ques (Tex.Cr.App.1987) 752 S.W.2d litigants; expressly by the unless waived constitutionality of a stat involving the tions (3) and, rights imple must be those which conviction is upon ute which a defendant’s litigants, upon request by mented or are by appellate addressed based should be Id., However, waived. otherwise courts, for such issues are raised even when specifically rights fell did not define which jeop appeal.”), claims of double first time on category. con within each The instant issue State, 332, 687 336 ardy, Disheroon v. S.W.2d category cerns which of the Marin scheme J., concurring) (Teague, (Tex.Cr.App.1985) claims. encompasses ex (“[Bjecause the fundamental nature of respective of the jeopardy clauses Although claims are constitu double Constitutions, nature, be raised for the jeopardy can questions of constitu tional in some appeal.”), and where a defect first time on magnitude may be waived when not tional estab Marin, magnitude has not been supra (citing constitutional raised at trial. Gibson trial, State, 406, Cham (Tex.Cr.App. lished at the time v. 516 409 bers, 483, (Tex.Cr.App.1984) 238, 1974); and, 688 486 v. 851 S.W.2d Muniz Davis, Clinton, J., concurring, (Campbell, (Tex.Cr.App.1993). generally, Es 255 See Miller, JJ., join), 1691, McCormick, Williams, 501, Teague and telle v. 425 U.S. 96 S.Ct. 362, (1976) (failure and, at 367 816 S.Wüd object to Black v. L.Ed.2d 126 48 (failure error); object jury charge prior to being prison tried in clothes waived supplied emphasis otherwise indicated. 2. All is unless

222 subject 302, may him to crimi that conduct which Penry Lynaugh, 492 U.S. 109 S.Ct. States, (1989), 430 penalties. 256 did not waive nal Marks v. United 106 L.Ed.2d 188, 191, 990, 993, requirements Penry not estab 97 S.Ct. 51 L.Ed.2d error because U.S. trial). (1977) Harriss, (citing at time of 260 States v. lished United 612, 617, 808, 812, L.Ed. 74 S.Ct. 98 347 U.S. significant There is a distinction between and, (1954); Jersey, 306 Lanzetta v. New waived, rights those be and those 451, 453, 618, 619, 59 S.Ct. 83 L.Ed. 888 U.S. rights constituting systemic re “fundamental (1939)). Florida, also, See Miller v. 482 U.S. quirements” which cannot be waived. Ma 423, 430, 107 2446, 2451, 96 L.Ed.2d S.Ct. rin, at 280. Those constitutional Bull, (1987),and, 386, 389, 1 Calder v. 3 Dall. rights, violation of which undermines the (1798). L.Ed. 648 Where a defendant validity prosecution, inherent constitute which was not placed on trial for conduct systemic requirements fundamental because commission, time of criminal its deprivation the trial renders fundamentally flawed because vio policy ab initio. underlies this void Sound liberty.” “concept of constitutional lates our from those which are sub distinction Marks, 97 S.Ct. at 993. U.S. ject finding to waiver. A that a statute is Moreover, part no ameliorative action on the unconstitutional, or that a defendant has judge can trial fair. of the trial render the placed jeopardy, provides an been twice Consequently, finding that a law is ex See, prosecution. to a Johnson absolute bar prosecution under that law. will void a (Tex.Cr.App.1988) (1926) (pros Cain 287 S.W. (precluding prosecutions flag for desecration prohibiting violating ordinance ecution 42.09(a)(3) when conduct under Penal Code erection of billboards held void as ex Amendment), protection falls within of First to defendant who had erected billboards Johnson, affirmed, Texas v. majori prior passage). Consequently, the (1989), and, L.Ed.2d 342 109 S.Ct. post ty correctly concludes that claims of ex (Tex. 812, Stephens v. 816 subject are not to waiver for failure facto (finding Cr.App.1990) of insufficient evidence raise them at trial. prove aggravating aggravated element subsequent prosecu rape prosecution barred By rape).

tion for lesser included offense of III. contrast, other constitutional do question post an The of whether ex facto validity prosecution. the inherent affect actually violation occurred is not now before example, a violation of the Fifth Amend For us; ground with the the sole for review deals against may ment coerced confessions preservation of error issue. Nevertheless trial, yet with an at be ameliorated dissent, Mansfield, Judge reaches the mer- af the admission of such evidence does not post its of ex claim and finds facto Thus, validity fect the of the trial itself. reasons, following I no violation. For the stemming where the harm from the violation Judge believe Mansfield is incorrect. right may of a defendant’s not be corrected Ohio, 167, 170, 46 validity In Beazell v. 269 U.S. undermining inherent without 68, 68, (1925), the trial, S.Ct. 70 L.Ed. 216 Su- systemic re is fundamental preme summarized the characteristics subject Court quirement and is not to waiver. post an law: ex facto agree majority prohibi- with the that the settled, by It decisions of this court so against post tion ex laws is a fundamen- facto may systemic well known that their citation be dis- requirement. tal Both the United with, pun- pensed which contain statute States and the Texas Constitutions previously commit- against post ishes as a crime an act prohibition absolute Const, done, and, I, 10, which § was innocent when art. Tex. ted which laws. U.S. Const, See, 1, punishment I, supra. § n. makes more burdensome art. 16. commission, crime, or which for a after its principle upon which the Ex Post Facto deprives charged with crime de- concept to our one Clauses are based is central according law at fairness, e.g. that a have notice of available defendant fense

223 committed, pro- eliminating § 22.021 the “intent time when the act enactment of element, gratify” “the hibited as ex facto. to arouse or reduced necessary guilt.” facts ultimate to establish explained The Court further that within the Miller, 433, 482 U.S. at 107 at 2452- S.Ct. concept of ex fundamental is the Accordingly, under charging appellant principle quality that “the criminal attribut- § proscribed 22.021 for conduct act, legal to an either able definition retroactively has the effect of alter offense, or amount of the nature ing the definition of the crime to the detri ... should not be altered Youngblood, of the accused. 497 U.S. ment enactment, fact, legislative after 41-43, and, Beazell, 2719, at at 110 S.Ct. Id., disadvantage the accused.” 269 U.S. 170, 46 at This violates U.S. at S.Ct. 68-69. 170, S.Ct. 68-69. Stated Post Facto of the United the Ex Clauses if negative, “no ex violation occurs and the Texas States Constitutions. change change in the law ‘... [not] does ingredients of the ultimate offense or the IV. necessary guilt.’” Miller facts establish Florida, 2446, 423, 433, Similarly, Judge concluding 482 U.S. 107 S.Ct. Keller errs 2452-2453, present (quoting Hopt pleading problems, 96 L.Ed.2d these cases Utah, 574, 210, 202, Judge not ex Keller’s con S.Ct. claims. (1884). seemingly L.Ed. 262 clusion is derived from the Court opinion expressed some Youngblood, In 41- Collins 497 U.S. as to al confusion whether the indictments 110 S.Ct. 111 L.Ed.2d 30 leged an offense under 21.05 or 22.021. (1990), Supreme Court reiterated 05-91-00077-CR, Nos. 05- Ieppert v. retroactively altering an of- the definition of 91-00084-CR, 05-91-00085-CR, 05-91- fense to the detriment of the accused is 00086-CR, 05-91-00087-CR, 05-91-00088- prohibited by the Ex Post Facto Clause: (Tex.App.—Dallas, CR, pg. slip op. 1992 WL The Beazell formulation is faithful to our (not 2) April30, published). 99 1 knowledge original best understand- ing Legisla- of the Ex Post Facto Clause: proceeded Rather than assume the State retroactively tures alter facially complete to trial with indictments defi- punish- nition crimes or increase the charging Judge Kel offenses under ment for criminal acts. presumes proceeded ler State § with defective indictments under 21.05. also, Scales, 586, See 853 S.W.2d contrary assumption/presumption Her (Tex.Cr.App.1993) (Legislatures precedent directly point. In established crimes.); retroactively alter the definition of 8, Thomason (Tex.Cr. French 830 (Tex.Cr.App.1994),held we that where an indictment and, App.1992); Grimes v. 807 S.W.2d offense, charges complete presume the (Tex.Cr.App.1991). alleged, charge intended to State the offense Beazell, Miller, light Young In Judge attempts to and none other. Keller blood, it clear that charging appellant un by reasoning distinguish Thomason that the §der 22.021 the Ex constituted a violation of allege § must 21.05 offenses oth indictments in penal Post Facto Clause. The statutes they post would erwise violate the ex facto alleged effect at the time offenses precisely appellant’s That is claim! clause. required proof that the commit conduct was gratify Judge reasoning ted with the “intent to or there will arouse Under Keller’s See, claims, any person.” post sexual desire Tex.Penal be meritorious never facto (Sexual Abuse); § § only poorly charging Code Ann. 21.04 21.05 drafted instruments. Abuse), and, § (Aggravated Apparently, Judge Sexual 21.10 when Keller views a beau- (Sexual Child), horse, of a it is a repealed, painting Abuse Acts tiful she concludes Leg., p. painting 68th ch. 12. How bad of zebra. As some Texans (Sexual Assault) ever, duck, saying, 22.011 22.021 “If it like a fond of walks Assault) duck, (Aggravated longer quacks Sexual no re a duck like a it’s like and looks Thus, quire Legislature’s Similarly, an intent. in the such a duck.” indictments .the in § 22.021 claim because he failed to raise it instant eases offenses under facto trial court. 21.05. appellant The brief filed here does not comments, join majority With these Appeals’ holding that he address the Court opinion. Instead, ap- post waived his ex claim. facto pellant’s merits of his ex brief addresses the McCORMICK, Presiding Judge, argues post Appellant claim. the ex facto

dissenting. him post application of Section 22.021 to facto unfairly made his a criminal offense conduct The issue this case is whether commission, after its lessened the State’s post can his ex claim for the first raise facto proof, deprived him of burden of majority appeal. time on Because the holds testimony opportunity place into evidence can, he I dissent. that he did not have the intent “to arouse complex. The facts of the case are not person” the sexual desire of when Appellant sexually was convicted of assault- engaged in conduct. he ing complainant eight-year over about an majority procedural resolves the de period of time. The State introduced into by deciding fault issue in a formalistic man in which evidence confession he “system provisions are ner the ex molesting complainant admitted but requirements ic” which can not be “forfeited” seven-year-old complainant claimed the initi- or “waived.” See Marin v. Appellant ated the contact. testified at (Tex.Cr.App.1993). I submit molesting complainant. Ap- and denied analysis than should be more substantive pellant testified he lied when he confessed resolving procedural that. In default somebody promised him because he would issue, identify rights appel we should what jail. probation go Appel- receive and not lant claims are violated an ex everything in lant testified his confession was him, application of Section 22.021 to and then either untrue or taken out of context. widely decide whether these “are con The State indicted proper func sidered so fundamental V.T.C.A., Code, 22.021, which Penal Section tioning adjudicatory process as to of our did not become effective until after the com- enjoy protection system.” special See Legislature Marin, mission of the crimes here. The expressly provided offense committed begin by looking at mischief We should before the effective date of Section designed pre- the ex clause is

would be covered the law effect when (1) vent. An ex law is one that: the offense occurred. The law effect when punishes previously com- as a crime conduct appellant committed these offenses was set (2) done; mitted, which was innocent when V.T.C.A., Code, out Penal Sections 21.05 makes more burdensome the and 21.10. 21.05 and Sections (3) commission; deprives crime after its appellant claims are the statutes under which charged any one with a crime of defense prosecuted, required he should have been com- available at the time when the act was prove appellant to intent to State .acted “with Youngblood, mitted. Collins v. 497 U.S. gratify arouse or the sexual desire of another 51-53, 2715, 2724, 111 110 S.Ct. L.Ed.2d 30 person.” appellant Section (1990); 582, 585 Grimes v. claims is the statute under which he was laws, (Tex.Cr.App.1991). “[Rjetrospective require prosecuted, did not the State to punishing facts before the exis- committed prove appellant “with intent to arouse acted laws, only of and them de- tence such gratify per- the sexual desire of another criminal, oppressive, unjust, clared are son.” Collins, liberty....” incompatible with 497 at 2720. U.S. S.Ct. Appeals, Dallas

On Court essentially boils down to appellant question claimed his convictions violate the The here Bonham, post ex clause. The Dallas Court one fairness. See facto post (Tex.Cr.App.1986). For ex- appellant held waived his ex conviction, in judiciary’s valid interest whatever reason ample, if a defendant for resources, society’s judicial position conserving in the unfortunate finds himself children from protecting for conduct that was in our having been convicted valid interest done, from the complainant when fairness completely innocent child molesters and against allowed to raise an might that he be all militate excus- dictate trauma of a retrial claim for the first time post timely raise his ex ex failure to ing appellant’s facto right prosecuted not to be appeal. And, holding appellant The post claim. facto completely innocent when conduct which was he could post claim when waived his ex facto fun- a “considered so arguably is timely done by simply making a preserved it have proper functioning of our to the damental in trial court does not violate enjoy special pro- adjudicatory process as to only fairness. principles of fundamental Marin, system.” See tection society when the I here is to unfairness see course, appellant can not at 278. Of legally guilty appellant majority allows this conduct was make this claim here since his engage version of the statute under either criminal, support would and the evidence gamesmanship we see here. in kind of conviction, of the stat- under either version timely his ex Appellant have raised should ute. See McKenzie v. in trial court so he later post claim the facto seriously (Tex.Cr.App.1981). No one can opportunity for the Court have had the could unfairly was made argue appellant’s conduct application of Appeals to decide whether that his conduct criminal after the fact or actually violated appellant Section 22.021 done. completely innocent when clause, any post and whether the ex facto harmed post clause violation of the No, essentially claims here what Appellate Rules of appellant. Texas See prosecution under his Section 52(a) 81(b)(2). Procedure opportunity present deprived him of the available to defense which would have been his ex I “forfeited” would hold prosecuted him him had the State majority fails Because the claim. Collins, 497 at 51- correct statute. See so, I dissent. do effect, Appellant, in 110 S.Ct. timely raise his ex claims his failure WHITE, J., joins this dissent. claim should be excused because other- MANSFIELD, Judge, dissenting. unfairly oppor- wise he has been denied the a new tunity to assert as a defense before the ex not believe that Because do “to that he did not have the intent the Texas and United States facto clauses of arouse or the sexual desire of case, I implicated Constitutions engaged prohibited person” when he respectfully dissent. conduct. indicted, separate in four Appellant was complete about-face from what This is indictments, aggravated for the offense Appellant’s at trial. factu- appellant claimed child, said offenses sexual assault theory engage al at trial was he did January place on or about to have taken prohibited On this rec- conduct. 1983. Texas February 1 and March ord, appel- any right unfair to hold it is not at the time 21.05 was effect Penal Code under the ex clause lant has oc- alleged in the indictment the offenses present a at retrial inconsistent with defense curred. trial is not presented the one he at his first repealed Penal Code 21.05 was Texas functioning proper “so fundamental Penal Code replaced Texas and was adjudicatory process” so as to excuse our 22.021, conduct committed § effective for timely raise the matter appellant’s failure to Penal September 1983. Texas or after Marin, at in trial court. See 851 S.W.2d the provides: § Code 22.021 279. (a) an offense: person A commits not are other considerations here There (1) person: if majority opinion. The mentioned in the (B) intentionally knowingly or finality interest State’s valid (i) penetration any causes the of the anus an offense of defense available (3) organ commission; or female of a child sexual time of its or increases the any means; punishment beyond maxi for an offense (ii) mum in effect at the time of its commission. penetration causes (Tex.Crim. organ mouth Grimes of a child the sexual actor; App.1991); Youngblood, of the Collins (1990). 2715, 111 110 S.Ct. L.Ed.2d 30 (iii) organ of a causes the sexual child mouth, penetrate to contact or Appellant’s conduct was a criminal offense organ per- anus or sexual of another statute, under either version of the son, actor; including the part means he fails to meet the first (iv) causes the anus of a child to con- test described above. As his conduct is mouth, organ tact the anus or sexual degree felony first under either version of actor; person, including of another statute, cannot claim an he increase beyond maximum (2) if: commission; effect at the time of he thus (B) younger the victim is than 14 part Appellant fails the third of the test. years age. application claims that of Texas Penal Code § Texas Penal Code 21.05 refers to the introducing § prevented 22.021 him from evi- definition of sexual abuse under Texas Penal dence that he did not have the intent 21.04, § phrase Code which contains the gratify any “arouse or the sexual desire of gratify “with intent to arouse or the sexual person,” thereby depriving him of a defense. any person....” desire of The indictments trial, language Appellant, attempted do not contain this and track the never language claim; of Texas Penal Code 22.021. Un- raise the ex neither did he required der the State is not any not offer evidence that he did have prove charged person acted “with intent gratify intent to “arouse or the sexual desire gratify to arouse or the sexual desire of any person.” His defense consisted of a person.” of denial he committed Furthermore, fenses. intent to “arouse or convicted on all four charges gratify any person” can and sentenced him to terms of the sexual desire of years conduct, 40 and 15 confinement in appellant’s the Texas be inferred from Department of Criminal Justice-Institutional evidence is sufficient under either statute Division. The Fifth Court of af- support this inference. McKenzie v. unpublished all firmed four convictions 211 (Tex.Crim.App.1981). 617 S.W.2d As he opinion.1 never offered this defense —much less an ex complain facto claim at trial —he cannot It is clear that conduct in 1988 deprived that he was fundamental was a violation of Texas Penal Code Additionally, right to do we have held and would also be a violation of Texas Penal so. Code 22.021. The issue is whether omis- will not that we not consider errors called phrase attention, including sion of the “with intent to arouse or the trial court’s those any person” the sexual desire of alleged to be of constitutional dimensions. merely a (Tex. defect in the indictment or resulted Rogers v. conviction of for behavior which Crim.App.1982); Briggs v. law, proscribed by thereby was not then (Tex.Crim.App.1991). ap if Even violating the ex facto clause. pellant’s post facto claim were meritori ous, precludes his failure to raise it at trial (1) pun-

An ex facto law is one that: raising appeal. Appellant him from it on previously as a ishes crime conduct commit- not that the error claimed is one ted which was at the com- does show crime time (2) mitted; subject deprives person charged impression or of first otherwise Appellant was also convicted of two additional which occurred in 1989. He does not aggravated of a child those convictions. offenses of sexual assault Chambers, § time the At the Penal Code 22.021. to 688 S.W.2d Texas waiver. committed, stat- applicable (Tex.Crim.App.1984). offenses were (West 21.05(a)(5) repealed § was the now ute however, my opinion, appel- It is because abuse of penalized “sexual Supp.1981), which (first degree was a felo- lant’s conduct crime abuse of a The definition of “sexual a child.” statute, ny) under either 1974) (West § con- then child” under range was the same under either statute phrase intent to arouse tained the “with the put would have the same evi- the State on any person.” gratify the sexual desire of under either statute that the error dence phrase do The indictments not contain by appellant in the complained of is a defect satisfy the elements but otherwise a indictment and not violation of the ex §in 21.05. offense clause. objected indict- Appellant never in an All of form or substance defects Article 1.14 of Texas Code of ment. are waived unless the defendant indictment provides Criminal Procedure that failure objection. lodges pretrial a Texas Code object 1.14(b). to a defect form or of substance Procedure, The Article Criminal an before trial the merits indictment on is a omission of an element of the offense ap- matter on waives raise the by the defect of substance which is waived peal. indictment constitution- The meets the object in a timely manner. Studer failure requirements person al that it in- (Tex.Crim. name the 272-3 identify and that dicted the offense App.1990). charged specificity with so offenses sufficient majority in its absolutely The correct person charged prepare as to allow the a § 22.021 assertion that convictions under defense. See Studer 799 S.W.2d 263 consider- would be barred (Tex.Crim.App.1990) and Cook ations, nothing § 22.021 to do with but has (1995). Appellant, by failing appel- § 21.05 is the statute that this ease. object, any complaint waived with have lant and under which he should violated

respect to the indictment. charged. The indictments do fact been Finally, appellant fails to that he was show charge under The omission offenses 21.05. by being tried harmed and convicted under error, 21.05 is a waivable element Penal Texas Code 22.021. The record by failing to did waive error overwhelming shows evidence object.1 guilt and the evidence no issue of raised whether the intent acted with reasons, respectfully For these dissent. arouse or desire of sexual Thus, person. any error in the indictment is beyond

harmless doubt. Tex. reasonable 81(b)(2).

App.Proc. Rule judgment

I would affirm of the court

appeals.

KELLER, Judge, dissenting.

This case involves four indictments that

allege Appellant engaged in various acts four-

of sexual misconduct with a child under years age.

teen dates for prior are all date of

offenses the effective face, facially n. 5 defective. its the indictment 1. In Thomason v. On (Tex.Crim.App.1994) we that when an in- alleges stated present case a date of commission charges facially complete offense we dictment prosecution 22.021. inconsistent exists, presume a defect and Studer do simply inconsistency is a defect which This intrinsic words, applicable. Studer In other application of Studer. authorizes applies only involving to cases indictments that .

Case Details

Case Name: Ieppert v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 11, 1995

Citation: 908 S.W.2d 217

Docket Number: 0826-92, 0827-92, 0829-92 and 0830-92

Court Abbreviation: Tex. Crim. App.