*1
Many
peculiarities
sufficiency
of this case arise
of the evidence is measured
from the manner
attempted
amend-
against
jury
properly incorpo-
instruction
to
implications
ment
and the
rating
allegations
of the indictment.
opinion
of our
questions
Ward to
to
how When the instruction broadens the basis
gauge sufficiency of the evidence and trial
upon which the
can obtain a conviction
Any opinion
error.
we issued would certain-
beyond
facially complete
that stated
ly
particu-
be fact-bound and esoteric. This
indictment, sufficiency
is measured
however,
lar
disposed
fully,
cause can be
paring the evidence to the indictment as
any
without
peculiarities,
reference to those
instruction,
properly incorporated into the
itself,
bright
after the
line rule of Ward
disregarding any language expanding upon
prosecutors
judges
likely
are not
to com-
theory
forth in
set
the indictment. Fish-
Thus,
mit
again.
the same mistakes
er,
peculiarities
Because the court of held the evi- S.W.2d at 672. dence was sufficient whether measured against the unamended indictment or the MANSFIELD, J., joins. jury instruction, appellant is not entitled to an acquittal. Because his claim of trial error late, I agree
comes too also he is not entitled
to a join new trial. I judgment therefore
of the Court. Texas, Appellant, The STATE of
McCORMICK, P.J., and WHITE and MEYERS, JJ., join. v. MALONEY, Judge. TURNER, Jr., Appellee. Charlie join I majority’s improvi- decision to No. 174-94.
dently grant case, this separately but write point why analysis Appeals Texas, out Court of further Criminal would be pointless. En Banc. The indictment appellant commit- May ted the act examining overt the contra- pursuant band conspiracy the offense of possess cocaine. An attempted amendment alleged that the overt act was committed conspirators. one of the The in-
struction attempted tracked the amendment. appeal, appellant
On direct complained of a
fatal variance proof between the original Appeals indictment. The Court sufficient, found the evidence whether mea- sured under the indictment or the State, attempted McHenry amendment. v. (Tex.App. —Dallas pet. granted). attempted The amendment subsequently held ineffective.1 Since then, this Fisher v. (Tex.Crim.App.1994),
S.W.2d 49
reaffirmed
granted appellant's petition
1. We
(Tex.Crim.App.1992).
for discretion-
Vernon Holmes, Jr., Atty. Mary Dist. John B. Keel, Lou Denise Nassar and Melissa Scharz, Attys., Huttash, Asst. Dist. Robert Houston, appellant. for ON PETITION FOR OPINION STATE’S REVIEW DISCRETIONARY MALONEY, Judge. on
Appellee April was indicted allegedly No. a theft Cause for August on or 1987. On mitted about January the State filed indict- ap- alleging ment in Cause No. 653846 also August pellee on or committed a theft about 29,1987, alleging a different owner appropriated property. The first indictment January 1993. On the was dismissed filed a Motion to Dismiss indictment. The trial court the second granted appellee’s motion the Court of Turner Appeals affirmed. (Tex.App. [14th Dist.] —Houston submission). 1993) (op. The State rehearing over- a motion for which was filed Id. Appeals. by ruled 1994) (Tex.App. (op. January Dist.] when the indictment [14th —Houston reh’g). granted actually February petition We returned on State’s discretionary examples clearly suscep- review to determine wheth- Both of these are correction, interpre- er the Court erred its tible to amendment or application applies. tation and 1.14 and its therefore Article 1.14 article *3 holding that the statute of limitations is a prosecution when the does not defense.1 dispute that the indictment contains the correct dates for both the date of the day appellee On the of trial filed a Motion return of the indictment and the date of alleged to Dismiss in which “[t]he he that offense, nothing the there is for the State Indictment shows on its face that the case, present correct. In amend or the August offense was on committed argued pled, present- the State has not or and the Indictment was returned on the 11th tolling; ed of evidence therefore the indict- day years of Jan. 1993 which than is more ment contains no error or de- correctable from the date of [the] offense is there- fect. 12.01(3)(A) by pros- fore barred Article Turner, argued ecution.” The (op. State that the motion at 353-54 on S.W.2d submission) (emphasis original). should not in be entertained because it was addi- 1.14(b) tion, untimely Appeals filed under the Court of held that article which re- quires objections that in statute of limitations is a that can be to defects an indict- defense brought day prior ment to the court’s attention the be raised to the date of trial. waiving right Appellee responded jurisdictional without claim the that de- They explained defense. Id. at 354. that any Stating fects can be raised at time. that prove since the State must the offense oc- appeared by appli- the case to be barred period, curred within the limitation limita- limitations, cable statute the trial court properly pled tions must be or motion, the indictment granted appellee’s dismissing the charge cannot be said to an offense. Id. prejudice.2 case with 354-55. Appeals The Court of reasoned that since rehearing, Appeals reject- On Court (the alleged in the dates the indictment date Yount, ed the contention that State’s State of the offense and the date the indictment (Tex.Crim.App.1993) required S.W.2d returned) correct, were article 1.14 did upon an based limitations to be apply: not brought to court’s attention before A problem defect in a limitations which Turner, day of trial. at 355 is “substantive” occurs when the indict- Rather, (op. reh’g). Appeals Court ment reflects an incorrect date in either allowing construed Yount as the return of the indictment or the com- day of but before the trial example, mission the offense. For menced. February 1, 1993, indictment returned charged which reflects that Appeals offense of The State claims the Court of January theft failing occurred when the erred in to hold that under article 1.14(b) actually January offense occurred on waived defect in the by prosecutor by bringing could be amended indictment it to the attention proper to reflect date. Another of the trial court of trial. The before complains amendable defect occurs when the indict- also failing language ment reflects that it was returned Febru- erred to account for the ary meaning Finally, for a crime committed of Yount. the State 1.Specifically, granted grounds holding following appeals we court of erred in 3.The 1.14(b) for review: applies only Tex.Code Crim.P. art. appeals holding 1. The court of erred in defects that can be amended or corrected. Tex.Code of Crim.P. art. does not apply quash to motions to based on the stat- governed by year Theft is a five statute ute of limitations. limitations. Tex.Code Crim.Proc.Ann. appeals holding 2. The court of erred in 12.01(4)(A). the statute of limitations is a defense. can concluding that some defects be catego- erred in ele
claims the Court of
only
while others cannot and that
Appellee ar-
corrected
rizing limitations as a defense.
corrected,
apparently
can
defects that
limi-
gues
which shows a
that an indictment
subject
simple
change, are
word or number
problem
is insufficient to
tations
on its face
1.14
27.08.
to the confines of article
We
jurisdiction.
the court with
vest
disagree.
language
no
either of
There is
distinguishing
I.
between correct-
Article
those articles
Nothing
and non-correctable defects.
able
1.14(b) of the Code of Crimi
Article
that if a
on the face of article 1.14 indicates
part:
nal Procedure
simple
cannot be corrected
defect
object
If
does not
to a de-
the defendant
subject
timely
it is not
amendment
fect, error,
irregularity
of form or sub-
objection requirement
thereof.
or information be-
stance
an indictment
*4
was returned on
The indictment at issue
the trial on the
fore the date on which
January
and
a theft that
commences, waives and forfeits
merits
he
August
on or about
1987.
occurred
defect, error,
object
or
right
to
to the
years
five
between the
There is more than
may not
the ob-
irregularity and he
raise
alleged offense and the date of
date of the
jection
appeal
any
postcon-
or in
other
on
Accordingly,
appears
“it
the indictment.
proceeding.
viction
pros
that a
[of
indictment]
from the face
27.08 of the Code of Criminal Proce-
Article
by lapse of
for the offense is barred
a
ecution
what are considered defects
dure sets forth
art.
Tex.Code Crim.Proc.Ann.
time.”
in an indictment or information.3
of substance
27.08(2).
a
of substance.
Id.
This is
defect
together,
27.08
we
Reading articles 1.14 and
1.14(b), if
fails to
article
a defendant
Under
concluded in Studer v.
object to such a defect
an indictment
(Tex.Crim.App.1990), that the defects of
the date on which the trial
“before
listed in article 27.08 must be
substance
and forfeits
merits commences ... he waives
has forfeited
pretrial
raised
or “the accused
right
object to the defect....” We
to
right
appeal
on
or
his
to raise the
agree
the State that article
with
Among
by
attack.”
article 27.08’s
collateral
says.” A
must
“means what it
defendant
fol-
defects of substance is the
enumerated
or
in an
bring defects of form
substance
lowing:
of the trial court
indictment to the attention
that
appears
That it
from the face thereof
trial com
the date on which the
“before
by
prosecution for the offense is barred
a
right
and forfeits the
[or]
mences
he waives
time,
lapse of
or that the offense was
error,
defect,
object
irregularity
to the
to
finding
the indictment[.]
mitted after the
of
may
ap
not raise the
and he
27.08(2).
Tex.Code Crim.Proc.Ann.
trial,4
peal.” By waiting until
the date of
right
to
Appeals distinguished
“waivefd]
forfeited]
The Court
object
types
defect[.]”5
defects under arti-
between different
day
Appeals
that the
of trial
exceptions
Court of
assumed
3. Article 27.09 sets forth
to form.
appellee’s motion to dis-
date on which
was the
Turner,
at 352-53
was filed.
miss
Baird,
Judge
dissenting opinion, con-
in his
(stating "appellee’s
to dismiss was filed
motion
upon
deter-
that "it is incumbent
us” to
tends
trial”).
day
Neither
on March
commences.”
mine when "trial on the merits
assumption
Appeals'
party disputes
the Court
capacity
Dissenting opinion
our
as a
at 310. In
this was
date of trial or contends that
as to the
review,
discretionary
we do not address
court of
commence[d]”
the trial
not "the date on which
by the Court of
issues that are not addressed
1.14(b).
purposes of article
by
parties.
Appeals
Before
or raised
that "the
Court of
the State contended
dissenting
implication
Judge
entertaining
Clinton's
to
5.The
a motion
trial court erred
only
opinion
affects a defen-
day
contrary
is that article 1.14
to article
dismiss on the
of trial”
impact
1.14(b).
appellate
and has no
on a
respond by arguing
remedies
Appellee
dant’s
did not
pretrial.
rights
Article
day
at trial or
defendant’s
that the date in issue was not
failing
object
before the
properly
to
argued
1.14 indicates that
that the indictment was
rather
up:
right
gives
date of trial
defendant
because the defect was fundamental
dismissed
1.14(b).
charge,
correction
subject
The
immediate dismissal
to article
nature and
in an indictment
allegation
limitations
II. Limitations
that a
jurisdictional implications.
longer
no
has
original
opinion
In its
submission
the Court of
stated
Procedure refers to
of Criminal
Code
brought to the
not]
... a defense
be
[need
provisions. Article
limitations in several
1.14.
pursuant
court’s attention
to Article
indictment,
21.02, Requisites
requires
of an
We believe that the statute of limitations
the indict-
[in
time mentioned
“[t]he
defect,
defense,
can
this case is a
not a
date anterior to the
must be some
ment]
brought
court’s attention
not so
presentment of the
waiving
right
claim
of trial without
prosecution of the offense is
remote that the
the defense.
by limitation.” Article 12.05
barred
Turner,
(op.
accused,
it
proscribes
neither
nor
other
entertaining
A
pretrial
court from
mat-
brief recitation of the facts is instructive.
pleading coming
Appellee
originally
ter of
attention of the
was
indicted Cause No.
629,838.
presiding
may
pros-
doom further
That matter
scheduled for trial
ecution of the cause.
It is
that a
the case
axiomatic
on November
jurisdiction
court “invest[ed] with
of the was not reached on that date and was re-
”
possesses power
authority
cause still
scheduled for trial on March
1993. On
*7
yet
January
appellee
determine whether
a
in
there
bar
law
was re-indicted
653,846.
precluding prosecution
offense. under
No.
The State dis-
Cause
Johnson,
609,
January
v.
See State
821 S.W.2d
at 612 missed the
indictment on
Dial,
13,
(Tex.Cr.App.1991); Garcia v.
596
1993. On March
the scheduled
524,
date,
(Tex.Cr.App.1980).3
at
to dismiss
S.W.2d
527-528
filed a motion
indictment,
jurisdic-
contending
prosecution
That a trial court thus
the
exercises its
the
tion, power
authority
of limitations. At
and
to dismiss a cause was barred
the statute
above,
quote,
dictionary
Early
accepted
2. The State’s internal
underscored
on Texas courts
law
"cause,"
Yount,
6,
(Tex.
definitions of
viz:
is from State v.
at 8
action; any question
"... A suit or
civil or
quotes
my
Cr.App.1993). The State also
justice.”
before a court of
criminal contested
Yount,
15,
dissenting opinion in
at
"In view
viz:
Toole,
at
Tolle v.
101 Tex.
104 S.W.
Studer,
... unless raised in the trial court in a
Bouvier;
(1907),
City Big Spring
quoting
1050
manner,
timely
operate
limitations will not
(Tex.Civ.
Garlington,
v.
II. than Webster’s (1977). Thus, phrase tionary, 719-720 pertinent part Art. stage of designates the “trial on the merits” object in a must to a defect defendant substantive facts of the case trial where the date on charging instrument “before Compare, the factfinder. presented to are on the merits commences.”1 which 54.005(b).3 jury § In a Code Ann. Tex.Gov’t Legislature did not define when Because the stage dire has this occurs after voir commences,” it is incum- “trial on the merits completed. been what constitutes upon us to determine bent determining whether trial on the merits Moreover, interpretation is consistent this timely.2 appellee’s motion was “trial on the merits” with our use of the term instance, in opinions. For Decker past untimely, holding appellee’s motion (Tex.Cr.App.1983), we majority presumes “trial on the merits” stated: synony- for trial are the date a case set continued, the State “The selection Ante, at 306. because the mous. peremptory chal- made their and defense for trial and the scheduling mere of a case sworn, jury was and excused lenges, the conceptually “trial the merits” are actual lunch before the trial for lunch. After distinct, majority’s conclusion that art. there was a the merits commenced objection before the requires an Rich, juror who hearing in L.J. which trial date is erroneous. scheduled sworn, selected, impaneled, and had been testified.” A. Id., Similarly, in Joines at 904. S.W.2d above, phrase “trial on the noted As (Tex.Cr.App.1972), not defined in the Code Crimi-
merits” is we stated: Procedure, phrase appear nor does the nal April that on The record reflects grouped the title eight chapters under See, presided H. the Hon. Frank Crain Tex.Code “Trial Its Incidents.” hear- proceedings, which included over the chapters 32-39. Crim.Proc.Ann. Within *8 charging objection instrument an to a emphasis supplied indi- for when is unless otherwise 1. All phrase readily apparent untimely, that the is it is cated. Accordingly, ambiguities. contains latent majority’s that it is not incumbent contention 1.14(b), the Code of to enactment of art. 2. Prior com- on the merits to determine when trial us mences, specify timeliness did not Criminal Procedure Ante, 4, when consid- at 306 n. is odd By judicial objection to an indictment. of an construct, recognition light that this case of its own ered in timely an we held such application interpretation and concerns the "ready” parties for announced if made before is the "trial on the merits” 1.14. Since art. State, 291, (Tex. 293 398 S.W.2d trial. Wilson v. majority purport phrase, operative how can the State, (citing Tex.Crim. Cr.App.1965) Bond v. 171 apply deter- interpret art. 1.14 without to mining 520, 119, (App.1961)); 345 S.W.2d 523 meaning phrase? of that State, 105, 296 S.W. 107 Tex.Crim. Truesdale (App.1927). 321 cases, § defines 54.005 3.In the context of civil "any adjudication final phrase the merits as Although Legislature's use of the trial on 1.14(b) appeal may taken to the court evinces an from which merits” in art. "trial on the statutory appeals.” bright attempt line rule to establish a
3H motions, integral part guaran- constitutional mgs on several and the voir dire April binding through examination of the veniremen. On tee and is on the states commenced, 20, 1971, trial on the merits the Fourteenth Amendment. Crist v. Bretz, 28, 38, 2156, 2162, Kelly presiding. the Hon. E. Joe 437 98 S.Ct. U.S. (1978). 24 57 L.Ed.2d Id., at 482 S.W.2d We hold that trial on merits B. jury impan- mences at the time that the is Finally, Hinojosa sworn, i.e., at the same time that eled and 1994), (Tex.App. Corpus 339 Christi — jeopardy attaches.... Corpus Christi Court of addressed Hinojosa, at 342. comparable issue when trial merits commences under Tex.Code Crim. Hinojosa reasoning applica- is Court’s Proc.Ann. art. 28.10. Art. 28.10 for ble to the instant ease because arts. 28.10 charging amendments to amendments and part were enacted as of same 1.14(b), employs language identical to art. legislative package. Studer v. 799 e.g., may “... an indictment or information 263, 266, (Tex.Cr.App.1990). S.W.2d n. 271 be amended at time the date the before regard timely objections With under art. trial on the merits commences.” The Hino- 1.14(b), fixing the commencement of trial on Court, josa upon relying jeopardy double jeopardy the merits at the moment attaches analysis guidance, explained: given principles underly is most rational We have found no definition for “trial on ing Jeopardy Simply the Double Clause. the merits” as it is used in article 28.10. stated, put a defendant has not been to “tri authority stating We have also found no jury al” the constitutional sense until se when “trial on the un- merits commences” jury complete, lection is has been interpret der the statute. When we statu- impaneled to hear the of the merits State’s tory language, attempt we to further the Crist, 35-36, case. 437 98 at U.S. S.Ct. legislative purpose staying while as to as Jorn, (1978); 2161 & n. 13 United States v. words, possible plain meaning to the U.S. S.Ct. (citation omitted). (1971); and, L.Ed.2d 543 v. United Green We note that article 36.01 of the Code States, 221, 224, 2 U.S. S.Ct. Procedure, governs Criminal which (1957). Consequently, prior L.Ed.2d 199 trial,” proceeding requires “order of sworn, jury impaneled the time the jury impaneled.... first be Even impediment there is no constitutional to dis though appellate no court has determined See, missing delaying proceedings. when “trial on the merits commences” un- (Tex.Cr. Fields v. Ap- der art. the Court of Criminal App.1982) (Jeopardy principles pre do peals has stated: declaring prior vent trial mistrial appeals The federal courts of have de- jury). impaneling this inter Under “commences,” termined that a trial un- merits, pretation of trial on the contemplation der of R. “at least” timely under instrument impan- from the time “the work of brought judge’s if it is to the trial (citation omitted), eling jurors begins” jeopardy attention before the date attaches. regardless and this is true of the fact purposes jeopardy that for of double case, appellee instant filed his mo- analysis, jeopardy only attaches once the tion to dismiss on the of the case was set impaneled has been and sworn. By granting appellee’s motion to for trial. *9 (Citation omitted.) dismiss, trial the merits never State, (Tex. 88, objection Consequently, appellee’s v. Miller 692 S.W.2d 91 menced. also, Crim.App.1985); necessarily “before the see Fed.R.Crim.P. to the indictment was (Footnote omitted.) 43. the trial on the merits com- The federal rule date on which 1.14(b) preclude jeopardy jury attaches in a trial and art. did not mence[d]” when jury appellee’s impaneled the is and sworn is an consideration of motion. 312 motions, pre-trial includ- solve a number of
III. to, quash the ing, not limited motions to Moreover, majority’s reading art. the instrument, 1.14(b) continuance objections charging charging motions for preclude to to day case is scheduled on the the Following instruments in limine. de- and motions doubly problematic.4 for trial is motions, pending on the resolution of those judge proceed trial will with voir dire A. if a is presentation of evidence First, recognize majority fails to waived. objections hearing to instruments for trial is a common on the date scheduled judges in light facing trial of the burden increasingly practice crowd- necessitated dockets, practice managing of hear- their generally, trial dockets.5 Is the U.S. ed See is the scheduled trial date ing motions on Crisis?, The System Justice in a State of policy expedient not frustrate the and does 23; Journal, August National Law 1.14(b) eliminating “sand- art. defendants Solutions; and, Samborn, Courting Randall bagging” by remaining silent over the State Rising Spur Judiciaries to Seek Caseloads raising in the and then defects Journal, 1, Solutions, July Law The National Studer, appeal. 799 S.W.2d those defects on many 1991, County, as in at 1. In Harris also, Dix, George E. Texas at 270-271. See burgeoning criminal large counties with dockets, judges lack the time to The 1985 Revi- Charging often Instrument Law: day hearings sched- pre-trial before hold Reform, Continuing Need sions result, judges typi- a uled for trial. As (1986). 1, An additional Baylor 38 L.Rev. 91 of cases for trial on cally schedule a number prevent art. was to consideration of time, judge At that the trial the same date. waiting until the last minute defendants from many disposed eases are calls the docket validity charging instru- challenge of a through plea bargains or dismissal of either longer But is no a consideration ment. this charges. those eases that are of the From appeal light right an order of the State’s resolved, judge select one not the trial will dismissing charging Tex.Code instrument. remaining unresolved cases for trial and the 44.01(a)(1). Indeed, that art. Crim.Proc.Ann. day-to- rescheduled or carried will either be case; present is what occurred permits time day until trial court’s docket thoroughly reviewed the that is selected for for trial. For the case arguments appeal. State v. Tur- judge may and re- State’s the trial entertain 349, (Tex.Cr.App.1964); Uresti implicitly ap- Perhaps majority holds that S.W.2d 351 4. State, 341 objection timely v. 167 Tex.Crim. pellant's because it was was Rather, (App.1959). had to receive a defendant trial date and not before. on the scheduled filed preserve ruling objection an adverse holding, majority’s it should be this is the If Allison, Martinez, See, supra; supra; Ur- error. clearly prevent in order to future stated esti, prior majority supra. Consequently, opinion predicated majority is If the confusion. objection opinion, was for whether focus objection filed, is on when the objection timely date the was determined long complied as the with so filed overruled, objec- not the date the was heard and holding date. Such a before the scheduled trial implicitly majority holds was filed. If the tion objec- provide notice of the the State with would filing determines the timeliness of the motion have the discretion and the trial would tion objection, majority has sub silentio of the pretrial hearing hearing the motion at either precedent. overruled this this for trial. or on the scheduled implicit holding appears with estab- to conflict filing Previously, precedent. reports the date of lished Administration Office of Court 61,980 felony of whether County to the determination cases on the was irrelevant Harris had 1994; filing County timely year had because the Dallas docket in fiscal 45,217 25,087 not, itself, cases; County preserve felony error for had Tarrant motion does State, 23,504 See, cases; felony County felony had appellate Allison v. Travis review. 20,575 cases; felony (Tex.Cr.App.1981); County and Bexar had S.W.2d Martinez Administration, (Tex.Cr.App.1978); 1994 Tex- Office of Court cases. 444, 356, 682, Report, System Annual as Judicial Plant Food v. American (1994). (Tex.Cr.App.1974); McDonald
313
ner,
holding appellee’s mo-
(Tex.App.
the trial to hold a appropriate
Mandamus relief would be be- majority’s interpretation cause the of art. Schechter, Houston, Richard Woodson E. 1.14(b) duty creates a ministerial on the trial Watson, Dryden, Dryden, Grossheim & Ja- objections to hear such before the mail, Beaumont, appellant. for scheduled trial date and the defendant would Hanson, Brown, Sims, Richard E. Wise & adequate remedy have no other at law be- White, Houston, Drummond, Robert Keith P. untimely objections appellate cause waive re- Dallas, Price, Jung, Strasburger Michael & 1.14(b). Consequently, view. Art. another Tolin, III, Oxford, III, Hubert William M. majority opinion unfortunate result of the Beaumont, Oxford, ap- Benckenstein & clogging to threaten this Court with needless
requests pellee. for mandamus relief. Appellees Rehearing Motion for Overruled IV. May 1995. authority
Consistent with our decisional as appeals, well as that of the courts of I would WALKER, C.J., Before purposes hold that for of art. “trial on BURGESS, jeopardy the merits commences” the moment BROOKSHIRE1 JJ. noted, previously majority determining appellee’s 6. As believes the the merits” in whether issue of when trial on the merits commences is timely. motion was not before us because it was not addressed Ante, Appeals. Court of at 306 n. 4. Justice, Retired, Beaumont, Appeals, Court of by remanding this case to the Court of sitting assignment pursuant Tex.Gov’t Code proceedings, for further the Court of (Vernon 1988). § Ann. now free to determine what constitutes "trial on