*1 Texas, Appellant, STATE v. SANCHEZ, Appellee.
Rafael
No. 05-02-00717-CR. Texas, of Appeals
Court
Dallas.
April 2003.
Rehearing May Overruled
Discretionary Review Granted
1,Oct. 2003.
Discretionary Review Granted
June *2 object does
If the defendant error, defect, irregularity of form or instrument or substance which the trial on the date on commences, the defendant the merits object right to and forfeits the waives Skov, Atty., Asst. Dist. Michelle Poblenz error, defect, irregularity. or to the Acuna, Filpi, R. Asst. Michael Matthew a trial prohibits in this article Nothing Dallas, appellant. for Atty., Dist. objection to a requiring an court from Moore, West, Katheryn Heather Jim made at an instrument be Bruneman, Dallas, Moore, & Gunter earlier time.
appellee. added). 45.019(f) (emphasis Id. art. untimely motion be- asserts the was State Sanchez, Oak, se. pro
Rafael Red case on the cause it was trial. go was scheduled statutes, interpret we we When OPINION “collective”intent or to effectuate the seek FRANCIS, legislators MOLLY Justice. who enacted purpose of the Boykin v. legislation. charged Rafael with a con- at (Tex.Crim.App.1991). When City affairs violation in a of Dallas sumer legisla this collective tempting to discern day the municipal court of record. On the necessarily focus purpose, or we tive intent Sanchez made case was set of the on the literal text our attention complaint, oral motion attempt to discern question statute granted the motion. The fair, at objective meaning of the text appealed County to the Criminal of its enactment. Id. ‘Where the time Appeals, arguing the motion was Court unambiguous, Leg is clear and statute untimely municipal and the court therefore what understood to mean islature must be County granting erred in motion. it not for the expressed, it has affirmed, and Appeals Criminal Court of to or subtract from such courts to add appealed to this Court. to this rule is exception Id. An statute.” must presented, To resolve the issue we lead to meaning plain the statute’s meaning of the “be- address that the consequences absurd the trial on the fore the date which Id. intended. could not 45.019(f) merits commences” Here, a defen requires the statute Procedure. the Texas Code of Criminal charging instrument object dant below, conclude For the reasons set out the trial the date “before timely. Consequently, the oral motion was ” objec or waive merits commences County judgment we affirm the “begin, start” means to tion. Commence Appeals. Criminal Court of formally by performing or “to initiate Chapter 45 of the Texas Code Crim- first act.” WebsteR’s Third New Int’l jus- in the governs inal Procedure actions (1981). Thus, giving the DictionaRY municipal pleadings courts. Ml tice and meaning, a plain their words of the statute writing may be oral or the defendant must be municipal court defendant begins direct. Tex.Code CRiM. the trial the date on which fore (Vernon In other complaint. his Supp.2003). art. 45.021 starts or waive Peoc. Ann. words, performed act must be some provides: Article begin judge the actual trial before waiver occurs. mind the of the stat- give utory requirements regarding To the statute the advanced records. (Ver- require the State would this Court to See Tex. Gov’t Code Ann. language, particular Supp.2003). add non improperly *3 “set,” word “scheduled” or to the statute brief, original In its not State does that not to com- there. “Scheduled” reflect, argue, nor does our record equate mence actual com- does performed act was that commenced trial; an can mencement of event Rather, the trial on the merits. in a one- scheduled to occur but then be reset. The brief, page simply asserted San- meaning cannot have the advanced statute “orally presented chez the motion on the by the State. very same that the case was set for Moreover, exception apply does not trial on the merits.” Because the State plain-meaning appli- argue original in this case because a failed to brief that already cation would not lead to absurd results. trial had commenced when San- contrary, quash complaint, To the the statute allows the chez moved to it is judge quash necessary disposition to hear a motion to on the of this dicta, appeal, for trial. If a munic- and in fact case is scheduled would be to de- ipal judge grants precisely the motion to termine what actions would con- (1) quash, options: the State has two it can stitute commencement of trial on the mer- challenge ruling by appeal under arti- its in a bench trial or trial. 44.01(a)(1) pro- cle of the code of criminal that, brief, reply We note State (2) simply cedure or it can the com- refile single asserts sentence that the mo- plaint. judge The ultimate result is that a quash tion to itself constituted commence- ability has the ensure the is ment of trial. Rule of Appellate Texas trial, if prior presented not defective Procedure in its permits appellant, with a motion quash. brief, reply “any to address matter in the Tex.R.App. hand, if P. judge appellee’s On the other denies brief.” 38.3. (thereby suggesting reply the motion brief is not intended to issues. grounds quash appellant in the motion to are not allow an to raise new meritorious) presentment of a motion to and commences the de- Whether of trial on If would constitute commencement complaint. fendant has waived his not an issue raised the merits was judge begin the motion denies but appellee’s Consequently, brief. we need trial on that the defendant’s motion is not consider the matter as it is a new issue timely appeal. be considered on reply brief. raised the State’s consequences cannot conclude these We could not have been intended assertion is with- Regardless, State’s legislature. out merit and would render statute meaningless. begins If trial with a motion Having considered the quash, a motion to could never be statute, we turn to the facts of this presented the date before begin by noting case. there is no We merits commences. other reporter’s record from the words, regardless of quash, all motions to judge because the refused the presented, would be Thus, request State’s that one be made. only to review. has not shown that Sanchez’s we have the clerk’s record untimely; consequently, motion was reporter’s While the absence of record considering trial court did not err in hampered ability has not our resolve the precise legal question presented, we re- motion the case was that no time gave it insufficient notice such scheduled for trial. We resolve the issue trial to amend and against was available before the State. I thereby complaint. believe correct judgment County We affirm the that the has merit. How- position State’s Appeals. Criminal Court of ever, that, intending I also without believe so, majority’s holding has ad- LANG, JJ., to do dissenting JAMES versely rights of defendants. affected the separately. respectfully suggest Dissenting by Justice LANG. Opinion of when how process leaves dissent, join Justice James’s “object” uncertainty. of some a state *4 suggests principles statutory that con- holding Certainly, majority’s creates require that struction conclusion negative by ramifications for the State al granting trial oral court erred Sanchez’s minute, objection. informal lowing last However, I quash. sepa- write on a defendant is that the effect rately objec- that a suggest defendant’s “gamble” he is left to as to whether he will tion instrument be should by waiting risk waiver until the date a case in writing, filed “before the on which date “objec trial to make his is scheduled for commences,” the trial on merits and uncertainty tion.” The and which a risk considered before the majori of the defendant faces as a result court in preserve objection order to code section can ty’s of the appeal. by one envisioned be which was Therefore, I cannot legislature. agree MajoRity’s Holding The majority’s that “[w]e statement join I respectfully James in Justice dis- consequences cannot that these conclude senting holding majority. from the of the by could not have been intended My upon concern is founded the fact that legislature.” contrary, I To re 45.019(f), by its clear language, re- majority’s in spectfully contend that the quires “object” any a defendant to de- terpretation way potential paves the fect “in a instrument before the consequences are so unfair defen which date the trial on the on which merits com- that legislature dants majority’s holding upon mences.” The intended a result flies in the them. Such which I that an “objection” focus concludes face of the that the presumption legisla need not be heard before the the trial date just and ture intended to enact reason is It appears scheduled. to me that the able statute. See reasoning on this Tex. Gov’t Code Ann. 311.021(3) (“In (Vernon Supp.2003) en turns, part, on the fact that this case statute, that acting presumed it is ... a court, corporation from a comes to us intended.”); just and result is reasonable procedure where the is intended Employment see also v. Tex. instance, Cole more For pleadings relaxed. and (Tex.Civ. Comm’n, justice corporation and courts motions dism’d) App.-Fort (pre writ Worth writing need unless by not be directed just intended a sumption that court. See Tex.Code CRiM. PROC. Ann. enacting (Vernon legisla and result reasonable Supp.2003). Accord- tion). ingly, typically motions or are
presented orally
a case is
I
“gamble”
The risk
to which
refer
for trial.
scheduled
majority’s
by
is
inter-
above
created
45.019(f):
in article
pretation
phrase
argues
that this
minute
last
objection
by
violated
and
“the date on
the trial
the code
which
commences.”
of “com-
specifically says
tice James
that he would
pivotal.
mences” is
holds
require that
objec-
the defendant make his
(i.e.,
that since trial might not “commence”
date,
tion before the scheduled trial
but he
“begin”) on the date the case is scheduled
require
would not
that a pretrial hearing
make an oral
agree
be scheduled.
I
that a
While
defen-
objection on that
If
date.
the trial court
objection
dant should make his
before the
objection,
sustains the
it
is
date,
suggest
scheduled trial
that a “bet-
preserved,
though
even
the State will have
practice”
ter
require
is to
the motion to be
had no
parties
notice of it until the
are
writing
before the
filed
called to the bench for trial announce-
on the merits commences in
hand,
ments. On the other
if the trial
preserve
objection.
order to
Addition-
objection
overrules the
pro-
and then
ally,
suggest
request
defendant must
objection
ceeds to trial
that his
be considered in a hear-
untimely
error is waived.
ing prior to the commencement of trial.
majority,
Under the rule found
a hearing may
Such
be conducted
the defendant
put
to an election of
trial court on the same date it has set the
possibility
whether
to risk the
*5
part
case for
but before
other
judge
objection
will overrule his
and con
pursued.
the case is
tinue to
If
guesses
trial.
the defendant
wrong and
might
the court overrules what
I
certainly
pleadings
am
mindful that
objection
be a
appeal,
meritorious
justice
and motions in
and corporation
from raising
foreclosed
writing
courts need not be in
unless direct
Thus,
appellate
issue
an
argument.
However,
ed
the court.
procedure
defendant who proceeds according to the
suggest
I
give adequate
notice of
“informal,” oral,
process
and last-minute
the defendant’s
to the State and
justice
cultivated and used in
corpora
and
process
rid the
“gamble”
of waiver.
exposes
tion courts
himself to the risk that
I also
a procedure
While
believe such
he
fail to preserve
objection.
his
majority’s
would not offend the
concerns
mind,
my
system
such a
is no better than a
judicial economy,
to
I think
it would
spin of the wheel of chance. Such an unequivocally comply
express
with the
re
process
uncertain
does not conform with
45.019(f).
quirements of article
If a defen
predictability
the basic fairness and
re
steps,
parties
dant follows these
and
quirements of procedural
process.
due
appeals courts would
no ques
be left with
Burch,
113,
See Zinermon v.
494 U.S.
125-
tion as to whether error
pre
has been
127,
975,
(1990)
110 S.Ct.
Expanding On Justice James’s 'd) 1993, pet. (appellant pre [14th Dist.] ref Dissenting Opinion served error on motion to indict ment where he filed motion I concur written two Although reasoning with the dissent, I go days Justice James’s further. Jus- before trial and obtained State, majority’s trial); meaning. Because Prudhome v. statute’s morning of cf. legisla- leads to a result (Tex.App.-Houston [14th intended, possibly not have and pre no ture could pet.) (appellant did Dist.] interpretation of majority’s motion general with “form” because serve error allows Whitsey pre with but would have satisfied to the date the hearing). statutory language apply and trial motion scheduled, respectfully I dissent. trial is Conclusion Background I with agree Justice James City charged of Dallas Sanchez majority’s interpretation leads to results Municipal in- affairs a consumer violation Eight. I Trial was set for separately Number tended. write Court straight-for- what believe is a October suggest made reliable, He
ward, appeared and safe for the before the court. procedure defendants, employ oral motion courts version The court Sanchez’s mo- comply granted with the current ment. order that, Finally, quash. due to suggest the code. tion holding, majority’s gamble of waiv- appeal crim- In the State’s er This be re- remains. matter can best gov- appeals (pursuant inal court of legislature through revision solved code1), argued San- ernment to tell precisely the statute us untimely because the chez’s motion was objections must Defen- be made. of Criminal Procedure re- Texas Code justice are corporation dants courts errors, defects, objections to or ir- quires *6 a predictable process entitled to and clear in the of a regularities form or substance objections of to preservation for the their made charging instrument to be before charging instruments. the trial commences. See date Tex.Code 45.019(f) (Vernon art. Ann. Crim. PROC. Dissenting Opinion by Justice JAMES. argued further Supp.2003). JAMES, Justice, “discretionary not have au- dissenting. court did motion, thority” under which it heard legal focus of issue be- central 45.019, provides pointing to which defining fore us is the date on “before ability in only court’s to discretion which the trial on the merits commences.” at to be made an require such motions of its resolution the issue before county criminal time. See id. The earlier quash Court —whether Sanchez’s motion to appeals of affirmed the court’s court untimely, charging instrument was quash the motion judgment, concluding leading to error trial on the merits because the majority ad- granting the motion—the not commenced. had is the dresses whether date scheduled majority points the State did a trial out date commences. brief, not, original argue majority incorporate its commenced.2 already Regardless statutory language the date trial had the before contention, majority’s we need not crucial to the language — per- acknowledges majority rule 38.3 The briefs filed with the 2. The reply appellant "file a brief ad- mits an operative are before dressing any appellee’s brief.” matter in the Tex. Ann. Court. Gov’t Code TexR.App. recognize, although 38.3. P. And 30.00027(b)(1) (Vernon Supp.2003). 38.3, may not purposes of rule a matter decide a whether tions to instruments: “If the de- Instead, commences a trial.3 to resolve defect, object error, fendant does not to a whether the municipal court erred in irregularity or of form or substance motion, granting only Sanchez’s we need charging instrument before the date on analyze statutory language to deter- commences, which the trial on the merits if day mine set for trial is the the defendant waives and forfeits the contemplated by as “the defect, error, irregulari- date on which the the merits com- ty.” Tex.Code CRIM. PROC. Ann. In recognizing mences.” 45.019(f). The which statutory language pre- this Court has the trial on the merits lan- commences viously interpreted,41 conclude the guage article 45.019 is the same lan- only day case is set for trial is the a party 1.14(b).5 guage found See id. art. may, foresight, be on notice as to 1.14(b). language That is also similar to when the the trial will commence will 28.10(a), the code’s in article occur, way in such may timely that he provides ability for the State’s raise his amend a instrument before the bagging” ments without “sand the State.
“date the trial on the merits commences.” Quash Timeliness Motion to 28.10(a). Therefore, See id. art. I see precedential prior analyses of arti- The Texas value Code of Criminal Procedure 28.10(a). provides guidelines timing objec- for the cles 45.019(f)) appellee considered raised when he court violated article and addressed brief, merely points appel out appellee's the absence of an a matter in the as allowed argument, disagree majority lant’s with the under rule 38.3. only that the issue has been raised in the reply State's brief. See Barrios v. 3. The also contends the statute (Tex.App.-Houston meaningless would be we were [1st Dist.] to find 'd). pet. "begin” ref We treat an issue or motion trial. The states, appellate quash, covering every in an brief as motions to re- “[A]ll subsid gardless iary question fairly presented, would *7 that is of when be untime- included. Tex. 38.1(e). Furthermore, ly.” argument I do not read the State’s we are to R.App. P. Instead, argues, manner. liberally jus similar construe briefs in the interest of agree, quash presented 38.1(e), and I motions to on tice. See 38.9. In its TexR.App. P. brief, day original the case is set trial are A argued the State article 45.019(f) issue, may, any day prior defendant to that controlled the and that timely present quash. motion to the case was set for trial was too late 45.019(f). clearly under article The State State, 279, applicability 4. See Van Dusen v. 744 S.W.2d 280 raised the issue of the of article 45.019(f) stated, (Tex.App.-Dallas pet.). appellee no to the case. The error, response point his to the State’s of "no applied specifically pro- trial on the merits had commenced” and ar 5. Article 45.019 is to therefore, gued justice the court did not violate cedures in courts. See 45.019(f). argues generally article this Proc. Ann. Tex.Code Crim. (Vernon 1.14(b) response Although Supp.2003). in direct to the State's assertion 45.019(f) original specifically its brief that article was the addresses "indictments and infor- 45.019(f) controlling ap specifically statute on which it based its mations” and article ad- instruments,” peal. reply argu "charging The State’s to Sanchez's dresses I see no rele- apply ment that article two other than vant distinction articles 1.14(b) language because the trial had not commenced does the additional in article reply may objec- not raise the issue for the first time in a which adds: "and he not raise the contrary, merely appeal postconviction brief. To the ex or in other tion on (that 1.14(b). panded original argument proceeding.” its the trial Id. art. meaning, reading plain of the statute’s timing, issues of the code Addressing procedure provides criminal that a defen- results majority fails to foresee the absurd object to a defective dant who fails legis- under —results date on instrument “before the could intended. lature on the which merits commences Finally, apply fails waives and forfeits guidelines to the statutory interpretation 45.019(f). 1.14(b), the defect.” Id. arts. us, namely, the entire statute before before con- The language, attempting the date yet cluded the trial had not commenced legislative in- to effectuate the collective the motion was purpose. or tent therefore, was granted, and the motion us, timely. question narrow before Purpose Statutory of the out, then, majority correctly points as the Language asks when is the date on which the trial specifically This Court reviewed However, must the merits commences. we stated, “[A] determine that date with an when occurs of trial is too late.” filed Van understanding defendants need notice State, (Tex. Dusen v. occurs, when date will occur it before Dusen, In no App.-Dallas pet.). Van act, only they time with- because the rule, stat explained waiver, out date on which ing, trial on the merits commences. major this ... objective A rule was I agree with the review the standard of bag- aid in the elimination “sand statutory interpretation. uses for counsel. habit of ging” defense interpreting In the stat language of objecting defense of not until counsel ute, I recognize plain we are to look to or last minute to a defective indictment statute, plain applying trial court and then information in the therewith, meaning in accordance unless objecting on if the was appeal ambiguous the results language guilty found favored. Conse- consequences. would lead to absurd the rule is drafted in such quently, (Tex. Boykin v. cor- way prosecution as to allow the Crim.App.1991). looking for the collec [charging instrument] rect a defective however, legislature, tive intent of the in the trial before the cause commences application plain court. ambiguous of a statute is or would lead Dusen Id. at 280. The trial Van consequences absurd *8 quash, the denied defendant’s intended, not we will plea the then entered her defendant the do apply language literally. Id. We day. the Concluding Id. at 279. the same upon legislature’s this not to intrude object had failed to before defendant re lawmaking powers, but rather to show con- date of this Court affirmed her spect, knowing the would however, not, Id. at viction. 280. We did way. act an Id. absurd date for trial distinguish set between majority The also defines commences id. the date trial commenced. See However, majority I would. misses majority’s interpretation of Under aspects question core of the before on the the same the date First, majority identi- Court. before language in article merits commences fy legislative pur- intent or collective Second, 45.019(f), may still wait until pose statutory language. defendant last object. minute to The “on the trial prior date of to the trial on even allows the defendant to commencing.” Id. at 556. The if appeal guilty defendant is found stated the defendant’s court, reason, for whatever is unable to prior to trial commencing “begin” trial that having after called scope did not fall within the of article Furthermore, the case for trial. once 28.10(a); it was not the date the before objection to the charging instrument trial on the merits commenced. Id. The denied, a may then use tactics court, court concluded the trial “when delay “beginning” of trial solely for amend, faced with the State’s motion to purpose being appeal, able to after should have denied the motion.” Id. Al having waited until the last minute to ob- though Sodipo distinguishable in that it ject. directly This is contrary to the ob- involved a jury situation which the was jective we identified Van pre- Dusen: impaneled the same the court amend venting a defendant from bagging” “sand instrument, ed the it remains in the State. case, present structive to the especially rehearing, because on the court did not Dusen,
In Van we also stated the rule is specify impaneling of the as core way drafted in a to allow the Furthermore, to its decision. See id. correct a defective instrument. court of stated the trial asserts, however, court should have denied the mo State’s need refile the entirely tion when with it—not when it or appeal ruling. option see either impaneled later the jury and determined greater judicial as a economy waste of the trial had “commenced.” See id. allowing than a correction of the instrument objected when it is to in a reads, As it currently article manner —before the the case is was added the code of criminal proce- set for trial. 19, 1999, dure 1999. See Act of June R.S., 1545, 16, Leg., § 76th ch. 1999 Tex. court of criminal appeals has also 5313, Gen. Laws the simi- recognized language. of the 28.10(a) State, lar language found in article Sodipo v. engaged 1985, first 28.10, incorporated changing reading careful pro prior specified time line as in the vides for the statute. ability State’s to amend a 13, 1985, R.S., Act Leg., of June 69th charging instrument the date the 1, ch. 1985 Tex. trial on Gen. Laws the merits commences. See Sodi 28.10(a) (Tex.Crim. read, The former article po v. “Any matter of form in an indictment or App.1990) (op. reh’g). stated (a) (b) information be amended at time neither section nor section ready before an announcement of for trial provided for amendment on the upon the merits both parties, but not prior date of trial to the commencement of afterward. No matter substance can be trial on the merits. Id. In Sodipo, the 18, 1965, amended.” Act of June 59th granted lower court State’s motion R.S., Leg., 1,§ ch. 1965 Tex. Gen. amend the charging instrument over the *9 317, 434, 13, objection by Laws amended Act of day defendant’s June of trial 1985, R.S., 577, 1, jury Leg., 69th ch. before the was selected. Id. at 555. 1985 however, change Tex. Laws 2196. appeals, The court of criminal Gen. The 1985 reversed, stating “any in altered the time line from the court erred allow time before ing ready upon the State to amend the in an announcement of for trial by strument over the defendant’s parties” “any merits both time
707 ed). reasoning follows reasoning This before the date trial on merits Dusen deciding ap- commences.” and we used Van by the of pears to be that used court act majority states “some must be Sodipo. appeals deciding performed begin the actual trial before language, old waiver occurs.” Under the parties’
that “act”
was
announcement
Meaning Interpretations
and
Plain
ready
legislature
for trial. When the
Legislature
Could
Results
changed
wording,
merely
it
not
add
did
Possibly Intended
Not Have
of’ to “an
“before the date
announcement
contends
by
ready
upon
for trial
the merits
both
I re-
would not lead
absurd results.
Instead,
left
parties.”
so,
disagree.
doing
recog-
spectfully
“commences” undefined.
nize
nor
that neither our Court
why
explain
requisite
does
act
appeals
trial
not be the
of of criminal
has determined the
commence the
act
court,
calling
open
the case in
“the trial on the
narrow issue
when
it
the court’s
commences,”
because
is scheduled on
dock-
as stated
articles
“any
et. And if
do not interpret
time
1.14(b), 28.10(a),
45.019(f),
and
before the date
trial on the merits
granted
trial
a motion
court has
referencing
that
commences”
the charging
instrument.
dismissed
scheduled,
which the trial is
neither the
Turner,
303,
n.
v.
306
898 S.W.2d
defendant,
State,
judge
nor the
will be
(Tex.Crim.App.1995),
4
other
overruled on
on notice as to when
pass
the deadline will
State,
v.
grounds, Proctor
967
840
S.W.2d
until
passed.
after it has
This
situa-
(Tex.Crim.App.1998).
purpose
effectuate the
identified
Van
tion
other
has been addressed
courts
Sodipo.
Dusen or
crimi-
appeals, a dissent from the
In an
exploring
legisla-
the 1985
majority. According-
nal appeals, and the
tive
E.
changes,
George
Professor
Dix ac-
ly, I
address each contention.
will
knowledges the
both articles
In analyzing
language of article
28.10(a)
provide
28.10(a),
other courts of
have tried
clear
language ap-
answer whether the
to determine when a trial on the merits
plies to
taken
day
action
“the
for which the
determining
for
if a
commences
trial
is scheduled but before trial com-
after
charging instrument was amended
Dix,
George
mences.”
E.
Charging
Texas
the time authorized
statute. The Cor
Law: The
Instrument
1985 Revisions and
pus
Appeals
Christi Court of
held the
Continuing
Need
Reform, 38
Bay-
jeopardy
merits commences when
1,
(1986);
also id.
see
at 88.
loR L.Rev.
jury
impaneled
attaches-the
Although
variety
reviews a
of interpre-
he
State,
Hinojosa
sworn.
v.
28.10(a)
tations
language,
no
(Tex.App.-Corpus Christi
recognizes
Dix
Professor
the “need for
Tyler
Appeals
pet.). The
Court of
reached
preparation and the
defendant’s
a similar conclusion. Dixon v.
preparation
stating
legisla-
time”
“the
(Tex.App.-Tyler
569-70
any
ture
proposed
intended
pet.).
no
Both of
cases involved
these
amendments, regardless of the defendant’s
wherein the
consent,
impaneled
situations
sufficiently
be made
the same
instrument was
delay
scheduled
trial so
Dixon,
568;
932 S.W.2d at
amended. See
would not
with the
interfere
Hinojosa,
Id.
S.W.2d at 341.
(emphasis
scheduled date.”
at 58
add-
*10
unpersuaded
I am
by these cases. See
against
is set would
work
trial court’s
Mullin,
Eubanks v.
909 S.W.2d
576 n. management of its trial dockets.
Id. at
1 (Tex.App.-Fort
orig. pro-
Worth
312. He also reasoned trial courts do not
ceeding) (stating
we are not bound
have the time
pretrial hearings
to hold
opinions
courts,
appellate
of sister
but we before the scheduled trial date.
Id. In-
say
should
if
clearly
disagree
with such
stead, the court most often calls a case
opinion).
day,
scheduled for that
pretrial
hears
mo-
jeopardy
state “when
attaches.”
tions,
dismissed,
and if the case is not
states, however,
Other
spe-
have been that
proceeds
jury
selection.
Id.
(2002)
cific. See Mo. Ann. Stat
I do not reach the same conclusions as
(allowing
amendments to
Judge Baird. See Williams v.
sworn);
ments before the jury is
Tenn.
(Tex.App.-Houston
[14th
(requiring
R.CRIm. PROC. amendments be-
pet.)
no
(stating dissenting
Dist.]
attaches).
fore jeopardy
legislature
Our
opinions
precedent).
are not Texas
IAs
could have incorporated
specific
that
lan-
interpret
Judge Baird’s recommended
guage;
Therefore,
it chose not to.
I dis-
rule,
bright-line
such a rule would allow a
agree we should interpret
the statute in
deadline to
be controlled
future events.
way
such a
that would restrict the statute’s
example,
For
deny
a mo-
than
legislature
more
what the
quash
tion to
and impanel
jury
provided in
language.
situation,
day.
same
In that
the date the
A dissenting opinion from the court of
trial commences has now—after
fact—
criminal appeals has reviewed the date on
become the same date as the one on which
which the trial on the merits commences
Thus,
the case was set for trial.
the de-
language in relation to a situation involving
fendant would now be precluded from rais-
Turner,
a dismissed case.6 See
ing,
appeal,
regarding the
(Baird, J.,
at 309-12
dissenting) (applying
quash
denied motion to
because—in hind-
28.10(a)
analysis of article
similarly to arti-
sight
untimely.
motion was
Con-
—the
1.14(b)
cle
because the
enacted
versely,
jury
impaneled
is not
the two
part
articles as
legisla-
same
day,
sworn until the next
that defendant
tion).
In advocating
bright-line
rule
appeal
would be able to
a possibly errone-
stating
“an
to a charging instru-
quash.
ous denial of his motion to
Addi-
ment
made on the
the case is
tionally, in a motion to
un-
set for trial
long
so
as the trial on the
der Judge
proposed
Baird’s
bright-line
day,”
merits does not commence on that
rule, a court
required
would be
to deter-
Judge Baird stated the trial commences
mine
of a
timeliness
or an
309-10,
when jeopardy attaches.
Id. at
amendment to the charging instrument be-
Turner,
the case was dismissed.
fore events occurred establishing that
Id. at 304.
Judge Baird reasoned that
timeliness.
If a court heard and ruled on
attached,
jeopardy
because
never
the trial
such a motion and
commenced,
subsequently swore and
thus,
never
objections
impaneled
same
timely.
instrument were
Id.
upon
at 311.
motion earlier ruled
Judge
explained
Baird
would-after the
further
interpret
to read article
fact-become
do not
requiring
legislature’s
instrument
such a result to fit with the
be made on a date before the date the trial
guidelines
intent to establish
as to timeli-
n There, majority
parties
did not
appeal.
address
issue
because the
did not raise it on
Turner,
trial on the merits commences
Following purpose the of article jection or objecting filed a motion to Dusen, the we identified Van I conclude Not 11 complaint. until October did allowing objections to San- charging instru- make initially objection ments to be chez his oral to brought on the same the com- day the plaint. day is scheduled to That commence was too late. would allow engage to conclusions, reaching In these I do not bagging” prosecution “sand pro- state a court separate must set a pretrial viding opportunity an or sufficient time for for day prior the motion on to prosecution charging to correct day state, I case is set for trial. to instrument before the trial is set com- instead, that a defendant must make his 555; Sodipo, mence. See at S.W.2d objection through he complains which Dusen, Van at 280. Addition- S.W.2d charging instrument before the decline, ally, I purposes of interpreting the case is set for trial. This satisfies the 45.019(f), equate article on to the trial purpose of the rule identified in Van language article to the time Dusen, allowing the prosecution to amend attached,
jeopardy for to do so would lead charging instrument before the trial absurd results could not begins. Additionally, will not further intended, i.e., objection a meritorious docket, burden trial court’s ameliorating or motion to would always timely be Judge Baird’s regarding concerns a trial seated, if filed on a a jury date before is ability manage court’s its docket. With yet this time to be deter- respect majority’s due concern for objec- mined when the defendant raises his management, courts’ docket tion. Boykin, See at 785. S.W.2d we must effectuate the intent or Therefore, analysis, based I above legislature. Boykin, 818 S.W.2d conclude an to a at 785. brought ment first to the court in a motion the trial court has set case Conclusion untimely for trial thereby and is waived 45.019(f). in accordance with article analysis have reviewed this Court’s so, doing follow of criminal time the trial the date Turner, appeals in holding, “By waiting language the merits commences trial, until the date of appellee ‘waive[d] 1.14(b) and the court appeals’s of criminal forfeit[ed] analysis similar ” Turner, defect.’ at 306 28.10(a). Considering those decisions in (brackets by appeals) court of criminal conjunction statutory change with the (quoting Cmm. 1985, Tex.Code PROC. Ann. did not specify which—or 1.14(b)). Furthermore, I read discre- no whose—act would I con- commence tionary language in article allow- instruments, clude ing a trial court act otherwise. timely, initially to be to be raised need case,
In the before the the trial scheduled to present the citation for the provide opportunity commence to offense mailed Sanchez on March July prosecution and the was filed on time for the to cor- sufficient
7H record, court of county criminal rect instrument before Dusen, its was due Van brief appeals is set commence. See notified Accordingly, at I would February 2001. no later than error and hold sustain the State’s February its brief on State filed court of erred brief, Because the State filed *13 affirming judg- in court’s municipal the argument independent first Sanchez’s ment. merit. lacks Independent Aeguments
Sanchez’s Record of Errors the Reflection af- Concluding the lower court erred independent argu- In second Sanchez’s I municipal the firming judgment, court’s ment, appeal should fail asserts the he argu- independent also address Sanchez’s not in the the errors are reflected because to the responding ments. addition emphasizes municipal the record. Sanchez not by asserting State’s the had brief such, record, and as court is a court of yet begun, three inde- Sanchez asserted 45.042(b),7 appeal pursuant to article arguments county pendent be on error in that record. must based court of supporting the art. Ceim. Ann. Tex.Code PROC. First, court’s dismissal. Sanchez stated 45.042(b) (Vernon Supp.2003). Sanchez Second, the State’s brief was attempts support argument his further argued appeal be- Sanchez should fail 50(d) by referring to “Rule of Texas cause it was not based on errors reflected 50(d) of Rule Appellate Rules Procedure.” Finally, in the record. asserted Sanchez Tex.R.App. P. repealed 1997. See was point the State’s of error was moot be- so, in of cmt. Even consideration San- cause the with- complaint would claim, requested I chez’s note a motion for instructed verdict. stood quash be that the the motion recorded; request.8 judge denied the Timeliness State’s Brief the lack of a formal record Regardless of independent argument In his first hearing, granting error in support ruling, of the trial court’s Sanchez clearly seen in the can argues the State did not file a brief notes in the record: judge’s handwritten filed fif- because brief was not within granted on was the motion days filing teen of appeal. notice before the trial commenced-not guidelines filing appeal briefs day. independent Sanchez’s second from court of found municipal record are argument lacks merit. government “The appellant code: appellate must file brief with the and Motion Mootness clerk not later than 15th after Instructed Verdict transcript date on which the statement argu- independent In his third and final are of facts filed with that clerk.” Tex. ment, 30.00021(b) (Vernon point argues Sanchez State’s Ann. Gov’t Code is moot because receiving After error Supp.2003). 45.10, note that points question before us. I us to but record, was to 45.042 in 1999. renumbered we are unable to determine without a art. See Tex.Code Crim Proc. Ann. transpired the motion what (Vernon Supp.2003). cmt. knowledge, granted. even Without majority’s interpretation the statute is judge's does states refusal apply. difficult to legal hamper ability to resolve the our
not have withstood a motion for objec- instructed concluded a defendant must make inapplicable verdict. Sanchez cites arti- tions to the instrument before cles, set, but the State us to the directs articles I trial is conclude related to this claim. Article timely object 45.032 lists Sanchez charg- did not when a to a ing entitled directed instrument. would sustain the in municipal justice verdict in a trial State’s of error. court. See Tex.Code CRim. PROC.Ann. Accordingly, judg- would reverse the (Vernon A Supp.2003). directed ment of the criminal court of ap-
verdict is allowed “the [SJtate fails to peals and remand the case to the munici- prove a prima facie case the offense pal court proceedings. for further alleged not, complaint.” Id. I will *14 however, speculate on what the State JJ. FITZGERALD and RICHTER prove would be able at trial. joining. argues
Sanchez further he would be un-
able to a prepare defense at trial because he complains charg- errors
ing By timely instrument. objecting instrument, however,
to the charging San- chez waived his either Johnny Jay HARVEY, Appellant, the instrument’s form or substance. See v. 45.019(f). id. may art. Sanchez not later— Texas, Appellee. STATE begins complain after the trial he was — No. 05-02-01197-CR. unable to prepare charge.9 defense is, independent argument Sanchez’s third Texas, Appeals Court of therefore, merit. without Dallas. June Conclusion am unpersuaded indepen- Sanchez’s dent arguments supporting judgment. Additionally,
court’s having charging chapter If had forty- Sanchez filed his motion to instrument because set for trial—the State five See id. does not address this issue. art. —before 45.002.) responded by correcting majority-were could have If Sanchez—and the instrument, charging thereby eliminating lapsed, saying correct in deadline had surely ap- provide Sanchez now raises. In his we would need did, peal, complained asserts If we once he same as Sanchez. charging instrument on the the State amend the indictment before passed. the State would not have able to been amend even knew if deadline had If charging jury day, instrument because amend- sworn that same were then argu- jury ment would been This defendant would then—after directly position object. jury ment contradicts Sanchez’s sworn—be If the were allowed appeal. language determining not sworn the defendant then may request up amend a instrument additional allowed to to ten language determining days respond same as when a to the amended may object of this would occur after both instrument. All court, parties appeared ment: "before the date the trial on the had before the Compare perhaps commences.” even after had been sworn. Tex.Code Crim. Proc. 28.10(a) surely greater Ann. art. This would lead to an even Crim. Tex Code Proc. 45.019(f). (We 28.10(a) clogging use of a court's docket than the concerns Ann. already opinion. to determine when the State amend in the addressed