*1 аspects parole consider stated ON law OPINION PETITION APPELLANT’S in the 4 instruction did FOR DISCRETIONARY REVIEW not influence jury adversely appellant assessing PER CURIAM. Arnold, punishment, supra, 299, at that it Appellant by jury guilty was found of made punishment no contribution to as unlawfully the misdemeanor offense of against appellant. sessed Payne See v. V.T.C.A., Code, carrying weapon. Penal State, (Tex.Cr. 786 S.W.2d at 320-322 Section 46.02. The trial assessed court State, App.1990); Hooper cf. v. 786 S.W.2d punishment at days’ ten confinement in the 295, at (Tex.Cr.App.1990). 318-320 Jail, County plus Harris fine. On $500.00 appeal appellant asserted that trial grant would
Accordingly, I Be- review. refusing suppress court erred certain cause inexplicably dismissing appel- oral made statements after his arrest. See petition lant’s improvidently granted 38.22, 3(a), Article Section V.A.C.C.P. majority appears willing ignore so soon to Appeals of Houston Court Dis- [Fourteenth teachings al., of Arnold et I must appellant’s overruled contention and trict] dissent. conviction, holding affirmed his
oral statements were under Ar- admissible 3(c), 38.22, ticle Section V.A.C.C.P. Jones State, (Tex.App. v. S.W.2d 376 —Hous- 1988). appel- ton granted We [14th Dist.] discretionary petition lant’s for review to Appeals whether of determine the Court correctly denial sustained trial court’s appellant’s suppress. motion to light holding In this Court’s in Port v. (Tex.Cr.App.1990), S.W.2d 103 JONES, Appellant, Jonathan David grant we now find our decision to improvidently granted. review was Tex.R. v. 202(k). App.P. Texas, Appellee. STATE Accordingly, appellant’s petition for dis- No. 976-88. cretionary review is dismissed. Texas, Appeals
Court of Criminal MILLER, JJ., dissent. TEAGUE En Banc. STURNS, JJ., BERCHELMANN participating. Nov.
Jimmy Randolph STUDER, Appellant, Texas, Appellee. The STATE Houston, appel- Santos, Renato Jr. No. 1077-88. lant. Texas, Appeals Criminal Court of Holmes, Jr., B. Atty., John Dist. En Banc. Frazier, Asst. Carol M. Cameron and Mark Nov. Huttash, Houston, Attys., Dist. Robert Austin, Atty., State’s for the State.
Before the court en banc. *2 Cruce, Jr., Mesquite, appellant. for
B.W. Vance, Atty., and Patricia John Dist. Dallas, Noble, Atty., Dist. Poppoff Asst. Huttash, Austin, Atty., Robert State’s the State. en banc.
Before court APPELLANT’S PETITION OPINION ON REVIEW FOR DISCRETIONARY MILLER, Judge. op- presents us with our first
This case portunity interpret amendments V.A.C.C.P., 1.14, Art. Art. Tex.Const., concerning defects in instruments. charged information
Appellant was offense of indecent misdemeanor with the alleged to have been committed exposure, Penal Code May V.T.C.A. guilty in a bench He was found 21.08. contendere, and trial, plea nolo upon his six punishment at judge the trial assessed pro- county jail, in the months confinement court appeal direct bated. On error point one appellant raised appeals, he upon which contending the information This fatally defective. was was convicted contention had not been raised in the did unlawfully trial then and there intentional- court. The court appeals ap ly expose affirmed knowingly genitals his pellant’s conviction. Studer R.E. Bishop, complain- hereinafter called 1988). (Tex.App. S.W.2d 107 ant, We gratify intent to arouse and *3 — Dallas granted appellant’s petition for discretion [appellant], sexual desire of the said and ary review to consider whether the court of the [appellant] recklessly acted and in appeals holding “erred in that the defect in disregard of conscious whether another the information a fundamental was not de person present was who would be offend- that can the fect be raised for first time on ed by and alarmed such act ... appeal.” judgment the We will affirm of appeals agreed appellant The court of with appeals. court of the that the information was defective for fail noted, ing “allege, to certainty, with reasonable appellant charged
As was with upon act or convicted the acts relied to constitute exposure, and of indecent Code, recklessness” and cited Gengnagel offense defined in the Penal v. sec- State, 21.08, (Tex.Cr.App.1988).1 227 tion as: S.W.2d Studer, held, 109. The S.W.2d at court person expos- A commits if an offense he however, that because amendments any part genitals es his anus or of his V.A.C.C.P, 1.14, V, to Art. аnd Art. gratify intent to with arouse or the sexu- Tex.Const., the in the defect information any person, al desire of and he is reck- nonjurisdictional nature was and was present less about whether another is appellant’s therefore by plea waived of will be by who offended or alarmed his nolo contendere. at 111. See Art. 44.- Id. act. 02, V.A.C.C.P.; Tex.R.App.Proc. 40(b)(1) argued Appellant ap- before court of (Tex. and Helms 484 S.W.2d peals argues and also here that since the (where Cr.App.1972) guilty plea of is volun information failed allege to the act or acts made, tarily understanding^ and nonju- all upon relied to in constitute recklessness waived). risdictional are defects compliance 21.15, V.A.C.C.P., with Art. V, 12(b) pro- Article of constitution jurisdiction information failed to confer on trial vides: court. An indictment is a written instrument provides: Article 21.15 presented grand jury to a court negli- Whenever recklessness or criminal charging person with the commission gence part enters into or is a or element of an offense. An information is a writ- offense, any charged of or it is that the ten presented instrument to a court recklessly accused acted or with criminal attorney charging per- an for the State negligence in the commission of an of- son with the commission an offense. fense, information, complaint, or in- practice procedures relating The and in any dictment order to sufficient in be informations, use of indictments case allege, such must with reasonable contents, amendment, including suf- their certainty, upon the act or relied acts ficiency, requisites, provided are as or negli- constitute recklessness criminal presentment law. The of an indict- gence, and in no shall it be suffi- event ment to a or information court invests accused, allege merely that the cient the court of the cause.2 with offense, committing acted in reck- lessly negligence. or with criminal pertinent provides: Art. portion The 1.14 (b) object If does not charged, information in this in the defendant to a cause defect, error, pertinent part, appellant: irregularity or or form Gengnagel, failing allegations, appellant had for we 1. In also been con- to make such exposure. in Dallas for We stat- appeals’ victed ed indecent affirmed the court dismissal of the there that exposure was an element of recklessness information. Id. at 230. allegation indecent constituting and the of acts necessary recklessness for a was pro- Art. 12§ 2. Before amendment charging at valid instrument. 229. We held Id. vided: fundamentally the information was defective
substance 1.14(b), or wording: an indictment informa- V.A.C.C.P. Does “An tion before the date on which the trial on indictment or information is a written commences, person merits he waives and instrument ... object defect, right forfeits to the commission of an offense” mean it is an alleges error, all the constituent irregularity or he instrument elements objection something raise the on appeal or else offense less). postconviction proceeding. something (specifically disposi- other Noth- ing prohibits ground depends this article a trial court tion this review requiring objection allega- from that an an instrument which lacks an whether constituting information made at of acts recklessness indictment or tions suf- *4 compliance earlier in a form or time with Article fers defect of substance but is “information”, supplied). 28.01 an or (emphasis still whether because [V.A.C.C.P.].3 acts, allege fails to those and it therefore pivotal The issue we must first resolve allege to an element the offense fails of of specifically addressing appellant’s before indecent it is therefore not exposure, an ground by for is what meant review is the “information”.4 terms and un- “indictment” “information” 12, V, century For cases der the amendment to Art. of the more than have § holding newly Texas and enacted Art. come from this Court defect Constitution 1, State, (effective judges by of All courts of virtue of ter 1985 date amend of this December office, V, peace 12)); their throughout be of the Art. Vela conservators ments to Art. 1.14 and sec. v. State, style all the State. The of writs (Tex.App. Corpus 776 721 Christi S.W.2d — be, process of 1989), and shall “The State Texas.” reh’g (Appellant was convicted of denied prosecutions in All shall be carried on the soliciting appeal argued On the drinks. she trial Texas, authority name and of State of the jurisdiction try her court was without to case "Against peace and shall conclude: the fundamentally because information was de the dignity State.” of the allege person failing for to that the for fective V, provided 16 to Art. SJR for amendment allegedly was whom solicited a drink an she 12, description of of the § the constitution. The Appellant employee not bar. did raise of the proposed appeared on the amendment which quash. pre-trial to The this issue in her motion was: amendment re- ballot constitutional "[t]he appellant right appeals her court of held waived lating person in the manner which is 1.14(b), appeal object Art. defect on under charged criminal offense and to certain with a can no fundamental and also stated there pro- requirements applicable to state writs charging under error instruments Art. cesses.” State, (Tex. 1.14(b)); 517 v. 740 S.W.2d Mason implementing legislation 1987), (appellant 3. SB 169 was the for App. PDR [1st] ref’d. — Houston amendment, provided and it the constitutional aggravated sexual assault. of was convicted (see 1.14(b), text case, Art. as well as Art. of 28.10 but Misjoinder this was the issue in same, infra). provisions amendatory The of the in dicta that Art. appeals commented court of change applying 1.14 in law act to Art. state the V, 1.14(b) 12 abolished doc sec. and Art. 1, 1985,only if the consti- takes effect December indictments). error trine of fundamental V, approved to Art. 12 is tutional amendment State, S.W.2d v. 775 415 BUT COMPAREMurk Art. 12 the voters. The amendment to 1989), granted, and (Tex.App. PDR cases — Dallas 5, approved Novеmber was voters on public (Appellant of convicted cited therein only change applies The in Art. 1.14 an trial, State amended infor lewdness. At presented to the indictment or information by deleting the intent to the words "with mation date of court on after the effective or gratify the desire said sexual arouse and 1985, 577, Leg., amendatory ch. Acts 69th act. appellant appeal, contended the defendant.” On I-§ fundamentally defective for information was culpable allege offense failure to an because obviously appeals split are 4. The courts of lacking is an essential was mental state State, v. issue. for instance Shaw 728 this See agreed appeals The court element of offense. 1987) (Ap (Tex.App. 889 [1st] S.W.2d — Houston rejected appellant the State’s waiver with manslaughter. involuntary pellant convicted 1.14(b). argument court stated under Art. Appellant was funda the indictment contended contain which does not ev an instrument allege mentally his for failure to intox defective does ery offense element an essential because, argued, voluntary he vol ication was and there charge offense offense, commission untary intoxication is element charging under the instrument fore is not a allege all the and an indictment which did not trial court does not invest the fundamentally constitution and defec elements of an offense object pre-trial to jurisdiction. Failure to appeals with there is tive. The court of held no appeal). presented not fatal such defect is fundamental error in indictments af-
267 is a charging the “substance” instru 3. That it contains matter which legal prosecution; to the defense bar ment be raised for the first time on charging appeal for it renders instru See Ex upon 4. That it its face that “fundamentally
ment defective.” shows Pruitt, parte (Tex.Cr. trying court the case has no 610 S.W.2d 785 State, Pospishel v. thereof.7 App.1981), 95 Tex.Cr.R. White (1923), 1 S.W. changes in the Proce- Code of Criminal (Ct.Apр.1876).
Tex.Cr.R. We have simultaneously dure which occurred myriad found “substance” defects in a passage of the constitutional amend- Moreover, 1965,6 27.08, cases.5 since Art. ment, however, encompass did not Art. 27.- V.A.C.C.P., statutorily has defined and, therefore, sub change did not the defini- stance in an defects indictment or informa understanding tion or our of what consti- Art. entirety exception.8 tion. 27.08 its states: tutes a substance
A substance defect
“fun-
was considered
damental error”
since a
instru-
EXCEPTION TO SUBSTANCE OF
ment
with such
defect
failed to confer
INDICTMENT
*5
court,
jurisdiction upon
any
the trial
and
exception
There is no
to the substance of
upon
conviction had
instrument was
except:
an indictment or information
apparent
therefore void. Also
from the
appear
1. That
it does not
therefrom
caselaw is that
this Court has used the
defect”,
that an
terms
against
offense
the law was com-
“substance
“fundamental
error”,
defendant;
“fatally
interchange-
defective”
mitted
the
ably
addressing
charging
when
errors
appears
That it
from the face thereof
instruments which led to void convictions.
prosecution
that a
the offense
is
time,
lapse
barred
a
or that
the
A
holdings
consolidation of the
from
offense was
finding
committed after the
this review of caselaw and Art. 27.08 re
indictment;
veals,
germane
hand,
to the discussion at
5.Gengnagel,
(appellant
App.1979), citing
748
Corp.,
S.W.2d 227
chal
American Plant Food
lenged
exposure
State,
substance of indecent
informa
S.W.2d
508
598. See also Janecka v.
739
allege
tion where instrument failed to
(defendant
acts con
(Tex.Cr.App.1987)
S.W.2d 813
raises
recklessness):
State,
stituting
Brown v.
558
requests
defect of form when he
additional fac
(Tex.Cr.App.1977) (public
S.W.2d 471
lewdness
upon
prepare
tual
information
which to
de
fundamentally
information
defective for failure
Thus,
fense).
alleged
charg
an
form defect in a
allege
upon
to
ness):
acts relied
to constitute reckless
ing instrument could not be raised for the first
State,
Corp.
American Plant Fоod
v.
508
appeal
corpus,
time
or writ
on
on
of habeas
but
(omission
(Tex.Cr.App.1974)
S.W.2d 598
con
by timely
rather had to be raised
filed motion
clusion from indictment is fatal defect in sub
alleged
quash
or the
error was waived. Gra
stance)
requirement
The
[Note:
constitutional
State,
(Tex.Cr.App.1983);
ham v.
that a substance defect the despite other indictment is still an indictment things, a allege failure to an element of an the omission of that element. in the charging offense instrument. Stated Anаlyses of SJR and SB 169 from conversely, allege a failure to an element legislative reporting official certain entities of an offense in an indictment or informa- support interpretation that in order to tion is a defect of substance. The amend- information, be an charg- indictment 1.14, Y.A.C.C.P., Y, ments to Art. and Art. ing necessarily allege instrument need not not, face, change did on their this § every charged. element of the offense long-standing precedent. analyses weight have they These because V, gave Art. amendment to 12 also § represent voting public legisla- to the legislature authority regulate tive view of what these laws mean. Pre- practices and procedures relating to indict- itself, sumably public will then educate previ- ments and As informations. stated or be educated voter information enti- ously, provides Art. pertinent League ties newspapers, such as local part: Voters, educated, etc. Thus Women practice procedures relating public can be said have voted informa- information, use indictments and 5, 1985, tively November the con- on when including contents, amendment, their suf- question was stitutional amendment ficiency, requisites, are provided the ballot. by law.9 contemporaneous Both before and Study analysis Group An from the House legisla- 1985 amendment to Art. V Special Report Legislative # dated Au- promulgated practice proce- ture such *6 A, gust 23, 1985, appendix attached as con- dures in the of Code Criminal Procedure. following arguments tains the the under V, The amendment to Art. 12 also ad- § of supporting passage the amendment: jurisdiction by dressed the of obtainment [missing flaws like these Under SJR the trial court. The section now that states longer no be treated would as element] jurisdiction is on the conferred trial court compelling “fundamental defects” the by presentment the of an indictment or to Appeals Court of Criminal reverse information. “fundamental de- convictions. Under the V, When Art. 12 is read in con § doctrine, ruled the has fect” Court provisions junction regulat with the code the Penal every essential element ing practices procedures governing the being alleged must be stat- Code offense instruments, charging it is clear the amend precision, charges ed in the written change ment to Art. 1.14 did not what Penal Code in drawn from the terms defect, constitutes a rather substance but interpreting the the and from cases itself 1.14(b) only change its in effect. The Art. trial court even in order for the code ... requires, things, among other that sub case. to to hear the have exceptions pre-trial stance be raised or oth to raise the erwise the accused objection has on appeal forfeited by his collat right [*] [*] [*] [*] [*] [*] Certainly, as a matter of fundamental omitting an from eral attack. If element notice of process, due defendants deserve an indictment is still a defect substance But there indictment, naturally charges against them. is in an it follows that the 28.01, 1(4), information.”) provides Article § 9. A review the Code Criminal Procedure comparable requisites sufficiency provisions for by reveals the which to test the avenue Arts. requisites. of a sufficient indictment or information. against charging the code instrument 21.21, V.A.C.C.P., respectively. The 21.01 and 28.01, may have a Under Art. defendant specifically code then defines what constitutes exceptions pre-trial hearing to to determine indictment, exception an to the substance an indictment or or substance of the form 27.08, exception Art. to form of an an sustained, exception an is information. If indictment, (“The Also see Art. 27.09. Art. 21.23 per- charging amended instrument be allegations respect indict- rules with to in an by Art. 28.10. mitted certainty required apply ment and the also to an why no reason detailed developed notice must nec- the law in those cases will no essarily given in be longer indictment itself. applicable. ****** legislative The report council clearly also the context оf the undoing of the points [In out that under then current law the “Common Sense Indictment ... omission of an element of Act”] the offense con- the Court of Appeals Criminal said that a stitutes a goes fundamental defect. It grand indictment, jury as the term was to state that change SB 169 contains a constitution, in the used clearly meant a authorized proposed constitutional statement of all the essential elements amendment, to charging wit: a defect in a passage ... of the constitutional [thus instrument must be raised trial or before amendment necessary change right object defendant’s is waived. things]. only potential for suggested relief report, process, via due would arise report’s argument against passage only if the defendant can show that he was conceded that implementing legisla- “[t]he “mislead prejudiced by or otherwise a de- tion for this require amendment would de- fect in Again, a instrument”. object fendants to to all defects in the analysis nowhere in the is there even a hint charge prior to trial.” Under “NOTES” Y, phrase that the in Art. “An indict- report flatly states that “the bill would ment is a presented written instrument to a require object defendants to defects grand jury charging person court indictment or information or else waive with the commission of an offense” right object means appeal.” defect on if an element of an Nowhere in the offense is omitted analysis is there even a hint then the indictment is phrase that the indictment for Art. “An purposes indictment is a of the constitution present- up written and laws instrument fact, grand adoption ed to a court In jury charging if such a person with the defect commission of an rendered an indictment not an offense” indict- ment, means that if an “presentment element of an then the offense is of an indict- omitted then the indictment is not an ment ... to a court indict- invests the court with purposes ment for jurisdiction” language the constitution and apply would also not *7 up adoption laws for Study 1985. House missing to аn instrument that was an ele- Group Special Legislative # Report charged ment Clearly offense. the August dated report discussion in the under “BACK- GROUND” refutes this notion. Under report from the Legislative Texas heading “ARGUMENTS” the discussions Council, appendix attached as B and which pro and con make it clear that the amend- analyzes also for public proposed con- supporting legislation ment and that would amendments, stitutional placed nature. [*] comma, misspelling, things of that [*] [*] [*] [*] [*] statute that we’ve videsfor SJR16 is SJR16. amendment that the court to have goes just passed *8 a constitutional with the enabling pro- provided the de- to make amendments Evans: proper objection makes the Well, prosecutor, unlike a who is well fendant rules as set provided it meets the law, in of criminal versed the area I move for out in the statute. would not as well versed. defendant necessary at this suspension rules that, Mo- you agree with Mr. Wouldn’t time, Mr. President. rales? Emphasis supplied. Morales: No, if necessarily. Larry, Clearly But even the House and Senate be- not both case, charging instru- days ten is what the that all defects a is the lieved by a defen- trial. if not raised prepare ment were waived defendant has perceived in re- dant before trial. Clearly the nothing unreasonable There is raising of correcting that ob- evil they were was to raise quiring the defendant trial, first time after than defects for the prior rather indictment jection subsequent trial and conviction re- and the commences if the defendant does not ob- versal of that conviction because of that ject. say defect. To that an indictment that (c)An indictment may or information does not contain an element of an offense be amended over the objec- defendant’s purposes is not an “indictment” for of SB tion as to form or substance if the completely ignore would be to the en- amended indictment or information tirety 311.023,10 as well Govt.Code Sec. charges the defendant anwith additional as to thwart the intent and the will of the or different offense or if the substantial and, legislature people presumably, rights of prejudiced. the defendant are V, passed who Art. By terms, its express clearly Art. 28.10 Finally, we note that our view of the allows for the amendment of any matter of picture painted by promul- that was form or substance in an indictment or in- gators changes charging of the 1985 to our (c), formation. by Section allowing for the instrument complete law would not be pleading of an additional or different of- analysis without legis- an of the rest of the circumstances, fense under certain contem- package point- lative that was 169. As SB plates the amendment of an indictment or ed out in footnote SB 169 also included (or delete) information to add an element of 28.10, amendments to Art. V.A.C.C.P. provides offense and support further presented
While we are not with an issue for our conclusion that an indictment or petition, under that article in this the lan- plead information need not each constituent guage of the article is instructive as to element of an “charge person offense to legislature what the intended an indictment with the commission of an offense.” or information to be under the amend- provides ments. Article entirety: 28.10 foregoing Under the analyses, we conclude that since Art. 28.10 Amendment SB 169 and SJR 16 of Indictment or passed by legislature pack Information were as a (see age infra), footnotes and 3 and an (a) defendant, After notice to the a mat- encompasses error substance the omis ter of form or substance in an indictment element, sion of an the inclusion in Art. may of information be amended at I.14(b) language mandating time before that de- the trial on the merits com- fects of request mences. On the substance be waived if of the defen- not raised dant, pre-trial expresses plain the court shall a clear allow the defendant mean- days, not less than 10 period ing, explained or a whiсh was shorter to and ratified requested defendant, if Texas, respond people (or that an indictment to the amended indictment information) (or or informa- is still an indictment infor- tion. mation), contemplated by at least as Art. (b) 12, though A matter of form or it be flawed substance matters indictment or information also be substance such as the absence of an ele- amended after the trial on the merits ment.11 pro- 1.14(b) express language Sec. 311.023 Statute requires Construction Aids 11. The of Art. statute, defects, errors, construing pre-trial any vides: "In defendant to raise whether or not irregularities face, of substance in ambiguous the statute is'considered on its *9 that, Failing instrument. to do the defendant may among a court consider other matters the: right complain waives and forfeits the of the attained; (1) object sought to be defect, error, alleged irregularity substance or (2) circumstances under which the statute appeal any postconviction proceeding. or in enacted; was Thus, defect, may substance etc. the not be (3) legislative history; appeal raised for the first time on or in a writ as (4) statutory provi- common law or former words, past. we have held in the In other the sions, including laws on the same or similar longer substance defect is no considered to be subjects; nature, one of a in the that "fundamental” sense (5) construction; consequences particular jurisdiction fundamental meant no was con statute; (6) ferred, administrative construction of the charging and the conviction on such a and instrument would not be reversed for a lack of (7) (caption), preamble, emergency jurisdiction reasoning title in the trial court. This provision.” independently stands of the last sentence of Art. then, sufficient; language
In in Art. constituting conclusion the be the facts the forth, V, 12, “charging person com- crime must be set that the conclu- a with the § offense”, mean, may sion of at from the law be arrived mission of an does not facts so stated. analysis, under this that each element of alleged the in order to offense must be Williams, supra at 400. have an indictment or information as con- by We are the de- convinced previously V, templated by Art. § original that the scribed events of 1985 further, by intent the framers has been modified in
Going the case referred to the people supplanted by their intent quoted portion Study Group of the House requirements that of an indictment are not 269), analysis, supra (opinion page was constitution, by mandated but rather certainly most Williams only by statute. (1882) Tex.App. 395 which declared the suggested in- form in the “common sense out, V, 12(b) previously set Article As § act, dictment” which omitted numer- form pro- the constitution as amended in 1985 offenses, repugnant ous elements of to the part: vides Texas constitution. set out Williams practice procedures relating proposition required that constitution informations, the use of indictments and that all the acts and omissions essential to contents, amendment, including their suf- alleged an must be constitute offense ficiency, requisites, provided are as indictment, allegation without and that by law. of the elements of an offense the indict- believe, heretofore dis- We from the events ment is void. The cornerstone of the rea- cussed, language changed the that this soning in was that certain re- Williams that the premise of We believe Williams. quirements of an indictment arise from the from stat- requisites of an indictment stem constitution itself. This conclusion The inferential re- utory law alone now. requirements stemmed from the inferential I, 10 as construed quirements of Art. Sec. I, Rights, of the Texas Bill of Art. Sec. (to all the ele- require that Williams (right grand jury), indictment) indictment from a in an ments of an offense be contemplated by our have, been by people, abol- will framers of adoption constitution at the time ished.12 Rights. The court stated: the Bill V, sum, wording of Article In provides person organic Our law that ‘no 12(b), provides indictment is a that “[a]n shall held to answer for a criminal presented to a court written instrument grand
offense unless on indictment of a
charging
person
with the
grand jury
punish-
jury, except
offense[;]
in cases in which the
of an
informa-
commission
[a]n
fine,
imprisonment
presented
other-
to a
ment is
tion is a written instrument
attorney
penitentiary,’
than in the
etc.
...
court
State
wise
person
commission of an of-
think it clear from these authorities
We
fense”,
prerequisites
abolishes the former
meaning of the word ‘indict-
that
charging instru-
the referred to
Rights requires
Bill
ment’ in the
adhere,
charg-
they
lest
fail as
ments must
it should state the essential acts or omis-
instruments,
ing
at least from the stand-
which constitute the offense with
sions
V,
point of Art.
Sec.
It must
party
which the
is accused.
mind,
explicitly
that is essential to
now
charge
analysis
all
we
With this
offense,
aid-
appellant’s ground
and cannot be
for review
constitute the
address
holding the
appeals
erred in
by intendments. A statement of
the court of
ed
fundamentally defec-
law,
result,
information was not
legal
a conclusion of
will
course,
statutory requisites
in-
of an
have the
is conferred
12 which states
*10
10,
I,
supports
upon presentment
further
Sec.
and which
information. See Art.
dictment or
V.A.C.C.P.,
21.21,
Tex.Const.;
defect will not de
the notion that a substance
21.02 and
Arts.
jurisdiction.
prive
a court of
generally Ch.
V.A.C.C.P.
grand jury,
right
to indictment
abolished; nor,
however,
has not been
failing
allege
upon by
tive for
the acts constitut-
the State to constitute reckless-
ing
compliance
recklessness in
Art.
ness,
with
Gengnagel
a defect which we held in
21.15,
appeals
V.A.C.C.P. The court of
Although
was
one
substance.
the infor-
technically
held that the information was
mation,
C,
Appendix
attached at
is substan-
noncompliance
defective for
Art. 21.-
defective,
tively
was,
face,
it
on its
holding
based on our
Gengnagel,
V,
contemplated by
information
Art.
charge
S.W.2d
it
but was sufficient to
presented
“by
Once
to the trial court
§
appellant with the
ex-
elements of indecent
State”,
an attorney for the
the trial court
posure under Penal Code 21.08 and be-
obtained
of the cause. Subse-
cause of that fact it was an “information”
quently,
upon appellant
it was incumbent
sufficient
jur-
to invest the trial court with
1.14(b)
under
lodge
objection
Art.
isdiction.
Since
defect was one of sub-
this
appellant
substantive defect. Since
stance, the court of appeals
appellant
held
any pre-trial objection
failed to make
to the
plea
waived the defect
his
of nolo con-
information,
substance error in the
it is
tendere.
Helms,
waived. See
tion in this concurs in the page is set out on infra, allege fails to the acts relied result. *11 APPENDIX A *16 Proposed Analyses Constitutional Amendments, Legislative Council Information Texas Report, , No.85-3 August
AMENDMENT NO. Joint Resolution proposing Senate a constitutional relating to the manner person amendment which a a criminal offense charged to certain applicable to state requirements processes. writs and Brown; (SENATE (Buster) AUTHOR: J. E. HOUSE Smith) Terral SPONSOR: Constitution,
The proposed of Article amendment Section Texas approved Session, Legislature, the 69th Regular eliminates requirement processes that aH state writs and be-styled The State Texas." It requirement also specific eliminates that a criminal in the be conducted charge name and of the State of Texas and by authority conclude with the words "Against peace of the State." dignity
The amendment also defines "indictment” as presented a criminal by a charge grand jury and "information” as a criminal charge prosecutor. brought by provides practice amendment then procedures use of relating informations, contents, amendment, indictments including their sufficiency, and requisites, provided law. are as presentment amendment states *17 an indictment or information to a court invests the court with of jurisdiction the cause. description
The proposed of appear the amendment that will on the ballot is as person follows: “The constitutional amendment to in a relating the manner is charged requirements with a applicable criminal offense and to certain to state processes.” writs and
BACKGROUND complex A unique body developed of law in to relating has Texas the procedures prosecutions. documents written used to institute criminal Under I, person Article Section of the Texas a felony Constitution accused of has the prosecution right jury have the initiated a indictment. by grand By statute the prosecution punishable of in jail a misdemeanor confinement is initiated the prosecutor's in court of a document filing called information. The indictment or information, instrument, commonly charging referred as the is the primary state’s pleading a criminal case. It must what offense allege the accused has committed items, along with several other certain to the relating jurisdiction facts including the court. The case law instruments centers two surrounding charging primary defective, issues: when particular is a instrument and what is the result of a charging defect?
33
281
as
either
instruments
defects
charging
classified
have
courts
that is
one
so
a
defect
Generally,
fundamental
or nonfundamental.
fundamental
invalid,
conviction
any
voiding
instrument
charging
the
profound that
it renders
A
instrument.
based on the
prosecution
charging
a result of
obtained as
time,
The courts
even
trial.
at
after
years
be raised
may
defect
fundamental
if
contains a
by reasoning
instrument
justified
charging
this result
have
defect,
had
entire
jurisdiction
court never
case:
thus
fundamental
State,
effect,
was,
v.
600
illegal
and unauthorized. See Brasfield
prosecution
1980),
Opinion
Motion for
(Tex.
App.
especially the
on State’s
Crim.
S.W.2d
held that
in-depth
have
discussion of
matter. The courts
for a recent
Rehearing,
required
constitutionally
contain either
of a
instrument
of the
charging
the failure
peace
‘Against
“In
phrases
by authority
the name and
of the State
Texas' or
a
constitutes
fundamental defect. See Jones
dignity
State'
parte
(Tex.
1981)
App.
Ex
(Tex.
606 S.W.2d
S.W.2d
Crim.
Wamell.
App. 1980). The omission of an
of the
constitutes
element
offense also
Crim.
parte
1976).
App.
(Tex.
Ex
It has that a substantive defect long been established prosecutor, is the prosecutor jury, not the grand amended because I, initiate Texas Constitution to entity sole under Article Section authorized addition, Criminal Procedure felony In Article 28.10 of the Code of charges. *18 substance, form, of an indictment or provides the not the currently only that amended. information be would proposed Joint Resolution 16 Senate by constitutional amendment It and informations. in indictments governing the law changes
make several basic requirements instruments contain charging that constitutional would eliminate the the of Texas" authority the State by "In specific phrases the the name phrases would to be Those continue peace of the State.” dignity the Against 21.21, 21.02 and Code Criminal Procedure. required Articles statute. See by However, them or to alter or eliminate otherwise be authorized would legislature the significance. their use and regulate practice alter significantly charging
The amendment would current involving the legislature legislature or other the by providing body that to whom instruments regulate This may by practice. law authority charging instrument its delegates line the that the state in overrule of cases providing would effect change in specific practices includes use indictment the an indictment right to constitutional adopted. particular, In probably was the would when amendment the constitution the holding provisions law that make case substantive indictment obsolete may not be amended.
Finally, proposed constitutional amendment a court would that provide has jurisdiction when the charging presented instrument is it. This change case in impact significant law would have a on the line that a holding of cases deprives error in instrument charging fundamental court of developed in Presumably, law those win applicable. case. cases be longer no however, possible, It willstiU courts find in certain jurisdictional problems instruments. charging defective Session, 169, passed BW Legislature, Regular
The 69th also Senate adoption proposed the constitutional Senate contingent amendment Bill implement Joint changes Resolution 16. Senate 169 would two the statutes charging proposed instruments authorized constitutional relating to First, provides that a must be amendment. the bid defect instrument charging trial; point, object raised before after right the defendant defendant’s Second, prosecutor to the defect is waived. the bill considered authorizes instrument, a defective eliminating make substantive amendments to charging again by need start all over procuring to dismiss the case and a new indictment permitted An amendment would be trial commences filinga new information. after if would only object. given days the defendant does The defense be at least prepare its case instrument. Senate Bill169 after amendment of approve If would take effect December the voters the constitutional at the amendment election November. general
If willnot adopted, legislation the constitutional amendment and accompanying experienced problems prosecutors with charging solve all the have necessarily process Due both and federal constitutions guarantees instruments. the state if require of some convictions the defense can show may well held to reversal in a prejudiced by charging instrument. The that it was misled or otherwise a defect *19 applicable in in appear a case which the new law not to affect the law evidence does produced a situation under allegations charge, trial from of the that at varies the if after in of a raised trial. See current the reversal conviction law result However, 1980). (Tex. the law App. Cox v. Crim. new S.W.2d State. in which a fatal variance occurs would probably reduce the number cases if charge have the prosecutor opportunity would to amend he because in instrument do specific not allegations charging discovers before trial that the produced. to be correspond with evidence exactly
ARGUMENTS
FOR: purpose of an
1. The is to primary indictment or notify information defendant, accuracy with reasonable been specificity, charged that he has with crime, may adequately prepare a so that he The proposed his defense. will constitutional amendment enable the in legislature require defects charging instruments to be raised before trial. Eliminating right the defendant’s to challenge instrument, a conviction after trial on the basis of a defective without a charging trial, in showing any way that the defect violated will the defendant's to a fair right put an end to the reversals many convictions under current law that occur harmless, “fundamental,’ because of but a instrument. charging mistake requirements 2. The ‘magic respect word' current constitution criminal processes protection state charges and other writs no real to a offer person accused of a crime or otherwise a document. affected such process will constitutional due that guarantee adequately ensure criminal charging instruments and other state documents are identified. The current clearly requirements specific phrases that such documents contain have led to the prosecutions invalidation of many criminal because of minor errors that do not event, In prejudice or harm any way. the defendant minor details such as precise provided wording of a instrument should be statute rather than charging included the state constitution. provide
3. Allowing the for the legislature substantive amendment provide important will longer instruments benefits. No will error will necessarily require criminal the case. charge dismissal of This change prevent problems unnecessary delay results from a dismissal and the prosecutor: paperwork; such causes more redundant delay preparation; trial presenting jury again; the case to the all over of the case as grand weakening die; away, running witnesses move of the statute of forget, limitations. will prejudice rights statute amending charge accused since prepare its charge will be additional time to case when given defense amended.
AGAINST: requirements writs constitutional state the that all Eliminating “The State phrase of Texas" criminal
processes charges contain the and that specified phrases contain could lead to currently the the use charging identified, official documents that not dearly and other are instruments creating validity particular and even leading confusion over the document reversals in criminal due to the use of identified insufficiently charging cases instruments. proposed protective
2. The amendment undermines the the grand role of jury in process. The justice grand jury the criminal has served as a traditionally check prosecutor by refusing the zeal to indict when it of the considers case to be appropriate prosecution. a weak By one or otherwise not allowing trial, prosecutor time any proposed an indictment at before amend prosecutor in bypass grand jury preparing amendment would allow his law, in allegations current change amended Under a substantive charge. in approved new jury indictment indictment. grand must defendant By allowing a raise fundamental defect charging time, provides prosecutas at current law an incentive instrument fa draft care, their that the charges great ensuring court and the defendant know exactly charges jurisdiction what the are and that the court has ova the By case. prosecutor allowing the to amend a defective charging giving instrument if charging significant court of the case even instrument contains omissions, proposed erras a constitutional amendment would encourage practice in the instruments. This could drafting charging carelessness lead to instruments, proliferation resulting of errors numerous amendments prosecuta by the confusion fa the court and the defendant about exactly prosecuta what the More erras and amendments of those alleging. errors would courts, in the and would delay public’s of criminal cases increase progress cynicism justice system. toward the criminal
APPENDIX C
286
CLINTON, Judge, concurring. court of an offense. See Hurtado v. State 516, California, 111, 4 110 U.S. S.Ct. 28 1, 10, of L.Ed. Rights, Article Bill of Constitu- § (1884); 232 Clepper v. The 4 Texas, guarantees tion of the State of 121, (1849) (Wheeler, J.). Tex. at 123 An person “no shall be held to answer for a indictment was “an accusation at the suit offense, criminal unless an indictment crown, by of the to true found be oaths grand jury, except in in cases which of Hawkins, grand jury.” Pleas of of a by punishment imprisonment, is fine or 25, Bishop c. 1. Mr. Crown elaborated: § otherwise than in penitentiary,” and accusation, “An indictment is a written an pertinent with certain other exceptions not oath, by grand least jury, at of a twelve prosecution here.1 In the latter cases the therein, against person named information, usually on an is as here. defines, CRIME which it to be carried into form, simplest Reduced to its the control- court, record,” Bishop and there of 1 made ling question in this cause is what consti- (3rd Ed.) 131. Criminal Procedure § tutes an purporting “information” designation in offenses Unlike of charge a misdemeanor offense. Amendment, Fifth first our constitution I. presentment by mandated indictment or jury grand every for offense. Constitution In this first our constitution Rights, Republic, of the Declaration of Congress by mandated to introduce statute Sixth, viz: of England, the common law and declared that in criminal all cases “the common law “And no freeman shall be holden to an- IV, of shall be the rule decision.” Article any charge, for swer criminal but on 13, Republic. By Constitution of the by grand Act or presentment jury, indictment § 20, January 1840, complied, Congress of except....”2 viz: penal Congress a sort of code enacted England That the Common Law of promulgated never a code of criminal but (so far as it is inconsistent with the However, procedure, according as such. Congress or Constitution the Acts of now Supreme Repub- v. The Court in Smith force) shall, acts, together with such (1842), lic, 473 “It well Dallam was settled Republic, the rule of decision this a statute that an indictment under must shall continue in full force until al- and in stating follow and conform to the statute repealed Congress.” or tered the offense.” matters existed Procedural Gammel, (Gammel’s). of Laws Texas 177 or, in related as dictated statutes January 20, law, and Act of charged constitution At common offenses were 1840, governed by were the common law.3 through presentment indictment or Republic whereas, grand jury; as well as an instru- After Statehood the laws misdemeanors, higher allege repugnant still in force not au- ment to informa- king’s and remain in apprising thority tion was a means of were continue cognizable emphasis throughout except exclusively in some here those oth- 1. All mine court; provided organization unless otherwise noted. of for § еr grand juries sons, murders, enquire present all “to trea- required 2. Successive indictment constitutions or other misdemeanors felonies 1845, e.g., or information: Constitution of Arti- 1836, 22, Act 1 Gam- whatsoever.” of December I, Rights, person and no cle Bill 8: "... § 1258, 1260, mel’s at any holden to shall be charge answer for criminal information, Punishing was "an Crimes Mis- but on indictment or ex- There Act demeanors," cept_" pertinent part Accord: of 1861. Arti- Constitution § of which I, 8; Rights, cle Bill Constitution person any § provided: criminal "No accused I, 8; Rights, Article Bill of Constitution of arraign- liberty after shall be set at ... offense I, Rights, Bill Article 8.§ imperfection account of error or ment on information, or but the same indictment pow- establishing jurisdiction Act In "An again though proceedings such shall be had Courts," assigned District ers of the them arraigned.” person had never Act De- been indictment, prosecuted “by cases all criminal 21, 1936, at 1253. cember 1 Gammel’s treason, presentment murder information felonies, and misdemeanors" and other crimes
287
12, 1858, Acts, 1858,
they
February
Leg.
force as laws of the
until
State
ex-
7th
pired
repealed by
or were altered or
121,
156,
1028;
4
p.
Ch.
Gammel’s
the latter
Legislature.
1845,
Constitution of
Article
15, 1858,
1858,
February
in Act of
Acts
7th
XII,
Furthermore,
Legislature
4.2.4
§
151,
228,
1100,
Leg.,
p.
4
Ch.
Gammel’s
also
was to direct that civil and criminal laws be
2,
repealing
designated
articles
in
certain
§
revised, digested, arranged
published
and
id., at 1028.6
years.5
within five
Although
procedures
and
are
principles
adopted
penal
When it
code the Sixth
same,
Legislature
addressed
expressly
Legislature
repealed certain iden-
req-
and their
indictments and informations
parts
acts and
“together
tified
of acts
with
together
Chapter
in
III of the
uisites
Old
parts
all
laws and
relating
other
laws
chapter
Code of Criminal
That
Procedure.7
punishments,”
crimes and
August
Act of
informations,
first,
treats indictments
then
28, 1856,
3; in
proce-
the code of criminal
§
but at the end directs that “rules laid down
repealed
4
dure
“all
parts
laws and
§
[prescribed
respect
in
with
to in-
articles]
in
regulate
laws nоw
force which
or refer
applicable
dictments are
also to informa-
prevention,
to the
suppression, prosecution
406;
tions.” O.C.
0. & W. 406. From the
proceeding
and
for
punishment
provision
common law and that
crime,”
26,
Texas
August
Act of
1856. The Sev-
held;8
Legislature
Legislature
enth
so
supplemented
courts
continued
and amend-
separate
in
ed each
acts:
the former in
viz:
codify
holdings,
Act
their
“The rules
Promptly,
Legislature
reproduced
the first
enacted three
an index to each code. Both were
4.
laws,
superceding
regulating juries,
an act
single
viz:
in a
(Galveston
volume: The Penal Code of Texas
providing
grand jury
enquire
§ 10
for
"to
of and
1857).
News
Each came to be
present
cognizable
all crimes and offenses
in
Code,”
code,
penal
known as "Old
one
the other
court,”
repealing
the district
and § 28
contra-
procedure.
code of criminal
laws,
4, 1846,
vening
May
Act of
1 Gammel's
1476,
1483;
organize
at 1479 and
an act to
codes,
Having updated
Legislature
6.
both
alia,
providing,
district courts et cetera
in
inter
passed
provide
digest
then
"An act to
for a
substantially
2
the same
§
criminal
Texas,” again authorizing
the Laws of
the Gover-
power previously
and
delineated in
4 of the
§
qualified persons
prepa-
nor to contract with
for
22, 1836,
2,
supra
Act of December
n. Act of
publication
ration and
of “a new and revised
11, 1846,
1506;
May
regu-
2 Gammel’s
an act to
Digest of all the General Statute Laws of this
court,
proceedings
late
district
158 of
including
passed at the
State down to and
those
expressly repealed
the district court act
present
Legislature,”
in accord-
session of
22, 1936,
13,
2,
supra
May
of December
n. Act of
specified
ance with
terms and conditions. Act
1846,
1669,
Legis-
2 Gammel’s
at 1713. The next
15, 1858,
1958,
February
Leg.,
Acts
7th
Ch.
promulgated
concerning
lature
"An Act
Crimes
157,
252,
product
p.
4 Gammel’s 1125.
is
Punishments,”
penal
and
in the nature of a
code
White, Digest
Oldham &
of the General Statute
1, 1849,
January
effective
when all laws and
(John
&
Laws of the Statе of Texas
Marshall Co.
parts
repealed.
of laws in conflict were
Act of
1859),
20, 1848,
1848,
152,
Austin
hereafter "0. & W.”.
Leg.,
March
Acts
2nd
Ch.
74,
219,
232;
3 Gammel’s
at
that act was
§
supplemented by
11, 1854,
February
Act of
Acts
Initially Chapter
implements
III
the constitu-
7.
49,
1854,
1502,
Leg. Ch.
3
I,
8,
5th
Gammel’s
sections
tional mandate in former article
thus:
65-69,
instruments,
bearing
at-
presented
that all felonies shall be
indict-
Appendix
tached hereto as
A.
cases;
only,
specially
except
provided
ment
presented
that misdemeanors
either
Legislature
Initially
Attorney
directed the
indictment;
all
information or
offenses
project.
General to undertake the codification
However,
penal
must be
known to the
laws of the state
perform
apparently he failed to
satis-
information,
prosecuted by
except
indictment or
factorily,
Legislature
1854
authorized
contempt
special
cases in which
of court
appoint
the Governor to
three commissioners to
jurisdiction. O.C.
inferior courts exercise
390-
1854,
55,
perform
Leg.,
p.
the task. Acts
5th
Ch.
392; O. & W. 390-392.
76, 3 Gammel's 152.
Harris,
Hartley, Esq.,
Esq.,
John W.
O.C.
See,
State,
920,
e.g.,
at
Haecker v.
571 S.W.2d
Willie, Esq.
appointed,
James
were
1855
State,
(Tex.Cr. App.1978); Figueroa v.
71
they
Legislature
proposed
submitted to the
—
371,
(1913); Meyer v.
Tex.Cr.R.
"... An under our statutes is indictment or] except grand jury grand jury, embraced an ‘the written statement of a ...” grand accusing person jury, a applied theft the As offense of court statement "repugnant pun [Bill held the Act to the Constitution or omission therein named of some act Rights, and that a defendant who has § 10] by Subjecting law. the indictment ished has tried under such an indictment been definition, evidently it this case to the above 'by tried due of the law of the land.’ been course But we that it is indictment at all. follows no (Bill 19).” Rights, Williams v. The section enlarge. disposed the case of are not See State, 395, (1882). Tex.App. In 12 at 401 its term, opinion v. State at this Williams decided by Judge entirety opinion the Williams Willson (Ante, 395.) judg Judge p. Willson. The compelling majority refutation to the is such prosecution dis ment is reversed and the cause it is attached hereto views in this missed." regarded Appendix an B. And lest it be aberra- Id., Hurt). (emphasis by Judge at 613 tion, shortly dismissed the court reversed and State, Tex.App. Rodriguez v. 12 552 See The capital rape had under the same conviction State, (1882); Tex.App. Hodges 554 v. The 12 law in Brinster v. “common-sense indictment" State, (1882); Tex.App. Young 614 v. The 12 State, (1882), similarly Tex.App. 12 612 The State, (1882); Tex.App. 28 Allen v. The 13 disposed of for other offenses. convictions State, (1882); Tex.App. 337 Flores v. 13 Brinster, supra, In under that law State, (1883); Tex.App. 347 Brown v. The 13 Brinster, “Joseph alleged: part indictment State, Tex.Cr.App. (1883); Gabrielsky v. The 13 male, Davis, rape did Mattie McL. an adult Mrs. State, 428, (1883); 14 Tex. at 439 Insall v. Judge quickly Hurt a female." For the court State, (1883); Tex.App. Drye App. 14 v. The down, struck it viz: (“common 185, (1883) sense” indictment at 191 allege single act "This indictment does not also, Carter, defective”); “fatally see for murder composes one which enters into and rape. supra is a written at 303-306. elements of An indictment understanding requisites may appear warranted in their con- those distinct to be guilty,’ upon ‘guilty/ of an indictment under the common law clusion of or ‘not them; captured succinctly defined Old and that premises delivered crime, article Code viz: the court see such a definite they may apply punishment “An indictment is the written statement prescribes.” which the law Jury accusing person, of a Grand there- named, omission, which, of some act or Texas, Tex. 455 Republic v. the Bush law, is declared to be offense.” (1846), quoting authoritatively from Chief Grey Horne, Cowp. De Rex v. Except presented by attorney that it Justice reproduced in Arch. Pl.40.10 similarly for the an information was *25 defined, 402, and certain rules with O.C. II. respect applied an indictment also to an to V, Constitution, 12 Article of Texas information, § O.C. 416. Those constitution- amended, recently for the first time as ally valid articles as well as all others like- provides express constitutional defini- an prove Legislature wise enacted al- has information,” viz: tion for “indictment ways power provide practice had to and charging per- a “a written instrument ... procedures relating in- to indictments and son with the commission of an offense.” And formations. axiomatic is that one or “presented to a necessary pro- the other was to and An indictment must be invoke also, jurisdiction power by grand jury.” vide court a See of and a trial court. State, (1882): course, I, 10, Tex.App. supra. Burns v. The 12 An informa- 394 Article § may “presented by attorney tion ... an “... conviction cannot be had for [A] presentment an for the “The of they State[.]” acts or omissions until have first indictment or information to a court invests charged. punishment been Result: with- jurisdiction the court with of the cause.” out indictment or information.” V, 12(b), supra. Article § Id., at 395. failed to The information this cause majority recognize What the fails to specify allegedly amounted conduct which V, acknowledge is that in terms Article recklessness, by 21.- required Article 12(b), essentially is restatement of § 15, formerly held such V.A.C.C.P. We had points statutory same of constitutional and magnitude. jurisdictional a defect to be of morning day law extant on the State, (Tex. 227 Gengnagel v. S.W.2d 12(b) Moreover, approved. was the ma- § Cr.App.1988). Whether this defect now de jority seems oblivious to those fundamental prives convicting jurisdiction court of de insisting charging reasons for that a instru- pends upon whether the information is requisite degree certainty ment meet the of “charg[e] nevertheless sufficient to ... long by demanded law the common from V, Article commission of an offense.” springs, whencе all our law viz: 12, so, supra. “presentment” If its mere § charge “... must contain such proceed. the court to enough is to authorize crime, description of the that the defen- century that dant know what crime it is which he For over a it has been held answer; I, upon jury supra, requires all elements is called Article vate, Writing Supreme Justice can not constitute the offense. The Court but question Wheeler continued: on which the character of the facts guilt depends is to be deter- or innocence "... This I take to be what is meant jury jury. take mined ‘But the cannot certainty mentioned in the books. And it upon cognizance they appear unless of them parts to be consists in two matter —the record, they an cannot do without charged charging it. As to manner averment.’ charged, the matter to be whatever circum- averments, making the 'As to the manner of necessary stances are to constitute the crime descriptions which are in all cases those crime, again, imputed 'must be set out.’ And ‘When upon crime, the record must be introduced go the circumstances to constitute the argument opposition in- averments in they must be set out.’ It is otherwise when " such, alleged independently the crime ference.' Ibid, circumstances; they may (emphasis original). aggra- for then of an offense” alleged charging of an offense to be in a ... the commission under State, provision instrument. v. The the new constitutional could not Williams (1882). Tex.App. require allegation based Conviction have been intended upon every instrument fails element of the offense. constituent allege every (“If op. omitting element of an offense is major, See at 268 an ele- “void,” Corpora American Plant Food indictment is still a ment from an defect (Tex. indictment, tion v. 508 S.W.2d at 603 naturally it of substance Cr.App.1974), convicting because the court follows that the indictment is still indict- begin lacked the cause to over despite ment the omission of that ele- Dial, with. See Garciа v. 596 S.W.2d ment.”) (Tex.Cr.App.1980). Today at 527 the ma this conclusion majority bolsters jority something than “each holds that less legislative intent. with various indicia constituent element of an offense” need be clearly examined it is From the materials alleged for an indictment or information to many rulings of this Court’s evident that offense, “charge” an hence invest holding charging defects to be certain jurisdiction by virtue of its court with repugnant in nature were “fundamental” 12(b), presentment, under Article su *26 Representative Legislature. That to the Indeed, pra. op. Major, at 272. whether presented Harris each Morales and Senator “written constitute an instrument” will respective chamber as a 169 to his SB longer “indictment or information” is no appellate reversals to eliminate measure question interpretation of constitutional at charging defects not raised at upon based all, Legislature but rather one for the it and SJR were trial indicates both alone, I, notwithstanding. Article 10§ defects. It is part in at fundamental aimed it, majority IAs understand bases its that at least apparent sponsors believed holding Legislature on the fact that the has by this fundamental some defects deemed 1.14, V.A.C.C.P., pro- amended Article justify inconsequential Court were too charging vide that defects of “substance” after the fact. voiding a conviction well object may by be forfeited failure to before House Floor Indeed, on the when asked 577, p. Leg., trial. 69th ch. See Acts defects the “substance” “what kinds” of 2196, 1, Dec. Because Arti- eff. answered, to, “Any Bill related Morales 27.08, (1), V.A.C.C.P.,lists as a defect of cle and all.” substance, alia, “[tjhat it does not inter cannot be this statement Yet we know appear charging that instrument] [from charging purported literally. taken Some against the law was committed an offense they can- so defective instruments be by defendant[,]” this court and because “charging as ... fairly be described long equated defects of “substance” has Texas The by any definition. оffense” defects,” i.e., “fundamental defects much acknowledged as Legislative Council convicting juris- divest the court which possible ... that “it is when it allowed cause, majority reasons diction over the problems jurisdictional courts still find will allege all elements of
that failure to
charging instruments.”
in certain defective
in
defect of substance
contem-
offense is a
to deter-
this Court
only
provided
clue
1.14(b), supra.
It would
plation of Article
charg-
“fundamental”
formerly
mine which
Legis-
for the
hardly have been consistent
have us
Legislature would
ing defects the
1.14(b), supra,
in
provide
lature to
Article
import, and
jurisdictional
consider
ap-
and forfeits”
that an accused “waives
not,
“sub-
use of the word
it would
charging defect of
pellate objection to a
1.14(b), supra.
in Article
stance”
“substance,”
allege
including failure to
all
is not
meaning of “substance”
But the
offense, if
not also
of an
it had
elements
caselaw.
ambiguity
our
without
suffering
for a
instrument
meant
upon the form/substance
proceeds
majority
defect nevertheless
particular
from that
Plant
American
dichotomy articulated
“indictment or information”
constitute an
State, supra. Ac-
v.
12(b), supra.
Corporation
Food
purposes
for
of Article
limited
are
of substance
Thus,
“charging
cordingly, defects
majority,
concludes
recognized
27.08,
to those
su-
given
Article
Caselaw has
the word “substance”
pra.11 Defects of form
enumer-
are those
however,
gloss,
another
that is not consist
27.09, V.A.C.C.P.,
ated in
embracing
Article
statutory
ent with the
scheme identified in
21.21(7),
“deficiency under
Article
Food, supra.
American Plant
In Bras
provision
that
Arti-
is further clarified
State,
(Tex.Cr.App.
v.
tion of the when the averments exception for defect or want of form in the one show that the case is which presentment or other accusation shall be jurisdiction, Court has or for the omission prosecution, allowed to dismiss the so as title, occupation, or misstatements of the District-Attorney but the amend the degree accused; estate or of the or same the direction of the under court ac- residence; place name or of his or for cording right of the case. to the arms,” omitting the words “with force and any particular or the statement of kind of Judgment Sec. 69. criminal case arms; state, or for omitting force or verdict, after not be arrested shall or re- stating imperfectly the time at which any exception to the upon versed indict- committed, offence was time is not when accusation, if the ment or other offence be offence; failing the essence of the or for charged certainty judg- sufficient for allege the value of an instrument according given ment to thereon be death, value; that it caused was of no or very right of the cаse. omitting charge the offence to be B
APPENDIX The State. Williams 1882.] v. State.
Al Williams — is Law.— word “indictment” Constitutional Indictment legal Bights with well-known its Bill 10 of the in section used therewith, and, conformity defined the Code signification, grand Procedure, “the written statement article act or omission named some accusing person therein jury, valid, law, offense.” there- be an To which, is declared *30 essential to charge all acts or omissions fore, must indictment an accused; and this which the defendant is of the offense constitute Constitution, Legislature has not the the requirement of being the it, an indictment nor to validate as dispense with power to the Appeals. Term, 12 Texas Court of [Austin the Statement of case. which, constituting pretermitting statement acts omissions the or offense,charges therefrom. the of law deducible conclusion 2. for form Indictment Bill.” —The Same —Theft— “Common-Sense “ 1881, An prescribed by indictment for of entitled theft the act cases,” prescribe charges to act the of indictments in certain forms facts, theft, no acts or is constituting omissions and the offense of repugnant therefore the this to Constitution of State. venue, Indictment,
8. stating Same —Case Stated.— time and after “ charged take, appellant fraudulently carry that the did steal W.; away hogs, dollars, four of the value of from A. each four L. contrary law, against peace to dignity of the State.” the Appellant excepted charge to indictment it does not because Held, indictment, though constituents theft. it prescribed follows the form the said act of insufficient charge because it does ownership property, not of the nor the it, want of the owner’s taking consent to the nor the intent deprive value, the owner of its appropriate nor the intent it the use and benefit oneof defendant. Omission these four elements of validity theft is'fatal to the of the indictment. Appeal from the Court County of Freestone. Tried below before Hon. County Judge. Kirven, The indictment was framed accordance with the for form theft prescribed “common-sense indict- ” ment enactment of March and is set out at in the large opinion. defense to its excepted because does sufficiency, it allege ownership nor hogs, charge they were taken without owner, consent with intent him of deprive overruled, exceptions their value. The were and the defense exceptions reserved bill ruling. assessed punishment against appellant was $100,
fine of for imprisonment twenty-four hours the county jail.
No brief for the appellant. Chilton, General, Assistant Attorney
H. the State.
296 v. Williams The State.
1882.] Opinion of the court. in this case is follows: The indictment as J. Willson,
“ of the State of Texas. In the name and by authority Texas, county, present of Freestone grand jury about the county, that, the District of Freestone Court county, D. Freestone third of A. day January, steal and fraudulently take, did Texas, Al. Williams each of four dollars of the value hogs, four carry away law and Williams; contrary against ($4), from H. L. B. the State. J. and peace dignity Casey, of the Jury.”
“Foreman Grand elements charge following indictment omits This of the Penal defined art. 724 theft, of the as offense that (2) Code, ownership property; (1) viz.: (3) that owner; the consent of it was taken without of the owner with intent to deprive it was taken the intent (4) appropriate of the same; value These it. of the person taking the use and benefit it to indict them, would render the one of omissions, under all the defective substantially fatally ment court, Supreme of this decisions previous State, (Marshall v. State, subject. this upon of this Court Ridgway Sherlock, Texas, 106; Texas, 471; State v. State, App. Watts 6 Texas Ct. Texas, v. 231; 263.) indictment is sufficient contended this But it is “ entitled, An act to prescribe requisites act
under 26, 1881. cases,” March in certain approved indictments That act pre- 60.)’ Laws Leg. chap. page 17th (Gen’l follows: “A. theft, form for the offense scribes did steal a “A. B. D.;” or, from C. a horse did steal B. dollars, D.;” from C. value of watch, fifty form, be suffi- shall such, analogous or an provides before us Thе indictment act.) 11 of said (Sec. cient. form pre- under the be sufficient unquestionably
would arises, is But here the question this statute. scribed to the Consti- valid ? Is it repugnant itself the form which we and one question, This is serious tution.? *32 Appeals. 12 Texas Term, [Austin Court Opinion of the court.
approach with It hesitation. is a delicate and a solemn act in a court to declare unconstitutional an act co- ordinate branch of the but government; duty do this, in case, cannot be proper properly declined. In the case before us the constitutionality the prescribed form under would which this indictment be held is good directly raised, and must be If the form passed upon.
is a valid one, valid. this indictment is If the form is valid, the indictment is defective. fatally
Our law be held organic that “no shall provides person to answer for a criminal offense unless indictment of a grand jury, cases which the except is punishment by fine, or than imprisonment peniten- otherwise tiary,” (Bill etc. sec. case before Bights, 10.) us is one which been might information, have presented by being but, misdemeanor; being presented indict- ment, the same will rules to it that would apply govern were it a felony.
Now the question is, what meaning are scope we to give to the provision quoted What ? is meant “ ” word indictment ? This word had well-known legal signification at the time it thus must, was used. We therefore, conclude that it was thus used understandingly, and in its well-known legal sense. What then was this legal signification? We will some definitions quote the term. word, indictment,
“This is said to derived from the inditer, old word indicate; French signifies show, object is to indicate the offense out. Its point Die. Title (Bouvier’s Law charged accused.” against “Indictment.”) “ this certainty; It be framed sufficient must contain a description must charge purpose accused, which the defendant or misdemeanor crime constituted, which it is of the facts a statement (Ibid.) accusation.” identify the as to so rule, excep- are but few which there a general
It is *33 298 Williams v. The State.
1882.]
Opinion of the court. tions, “that all the mаterial facts and circumstances com- ”
prised the definition of the offense must be stated.
“If anyone material fact or circumstance be omitted, the indictment will be bad.” (Archbold’s PI. Or. & 85.) Prac.
“An indictment is a written accusation on oath at least twelve of grand jury, named against poi’son of a crime which therein, defines, it carried be into court, and there made of (1 record.” Bish. Or. Pro. 131.) “ The indictment must show on its face that it has been found by authority, accordance with the re- competent and law; that a mentioned therein quirements person has done, within the jurisdiction indictors, of the such acts, acts, such at a particular time; specific see, so done, constitute what the court can as question crime,” (1 to be a etc. Bish. law, Or. Pro. 135.) “An indictment is the written statement grand accusing therein named of some act or jury, person which, by law, omission is declared to be an offense.” (Code 419.) Orim. Proc. art. Roberts, Texas, in Hewitt State,
Chief Justice above definition from our quotes Code, and says: “At the adoption Constitution, our and for a century in England both previously, America, this is what was understood as constituting indictment.” And he the same says again opinion, “When an act is made the subject of a criminal the constitutional charge, an indictment or provision requiring information is at once into active force in favor brought of those who are act; accused of and for said prosecuted if indict- ment it must be such an be one as the preferred, framers of the Constitution contemplated.” Duke, Texas, 455, Gould, justice,
In State v. deliv court, of the cites and opinion approves case ering Hewitt v. that case says it was held beyond power Legislature dispense *34 op Appeals. Term, 12 400 Texas Court [Austin Opinion of the court. in statement the indictment of that which is essential
to the further description of the offense. He that says statute omission of of the authorizing,the parts essential of would in violation an offense be of the Con description In in Hewitt opinions stitution. State support v. сited, State authorities are Duke, following v.
viz.: 2 People 329; v. Parker’s Cr. R. N. Y. Toynbee, Wynehamer v. Id. v. Id. 421; Toynbee, People, People 491; 24 Learned, 426; State v. 41 Me. v. Murphy State, 33 390; State, 373; State, Miss. Norris Miss. Niles v. v.
24 Ala. In 672; Miss. 637. addition to the above cited authorities, we find the same principle maintained following Bryan 88; other Ala. cases: v. United States Mills, v. 142; Cook, 174; 7 Pet. U. S. v. 17 Wall.
U. S. v. Cruikshank al. 92 et U. S. think
We it clear from these authorities that the mean- the word Bill “indictment” in the re- ing Eights that it should or state the essential acts omissions quires offense constitute the with which the is party accused. It must charge all is essential explicitly offense, to constitute the and cannot aided by be intend- A result, statement ments. conclusion of legal will law, sufficient; not be the facts the crime constituting forth, must be set the conclusion of law arrived at from the facts so (Bac. stated. “Indict- Abr.
ment,” GhI.) such, then,
If scope was the of an meaning indict- at the ment time of Bill adoption we Eights, hold that it must has the same meaning the Bill of and that it Eights, beyond power Legislature to make that a indictment which does not good substan- come within tially the definition of as indictment and used understood framers of the Constitution. the indictment form question,
Does prescribed act of the which we have by the Legislature quoted, come “ ” indictment within meaning understood Prather State. 1882.]
Syllabus. used the Bill of We ? think It Eights not. charges *35 facts, no acts or omissions constituting offense of and in our theft, as defined described Code. It simply “did steal, that the defendant charges take and carry “ ” The a legal word steal is result of away.” facts,— law. Penal Code, mere conclusion of art. 139, pro- n ' ‘ ‘ “ stolen,’ steal vides, The words or when used in this reference to acquisition property, Code include Is the indictment acquired by theft.” aided property We think not. Suppose allegation this ? was provision D.,” that “A. B. did commit theft of the horse of C. this a conclusion of simply charging would not be law ? Would it be in an indictment for murder to sufficient or in an D., that B. did murder C. indictment A. charge B. on the for arson to that A. did commit arson house say what would not. Then upon ? it Surely principle of C. D. be it sufficient it held that would to authority could from O. A. B. did steal horse D. ? in theft that charge of this court that the indictment is the It opinion form defective, that fatally case in this is in the the Legisla- act of prescribed theft indictment Constitution, to the repugnant hereinbefore is quoted ture such an who has been tried upon that defendant due been tried course of the law “by not indictment has section (Bill 19.) land.” of Rights, and the prosecu- is reversed therefore, judgment, dismissed. tion dismissed.
Reversed TEAGUE, Judge, concurring. regarding Although I the murder. cannot attorney imagine any prosecuting of this join Because to my majority vote “bare-bones,” that willing plead is State opinion Judge might Miller miscon- prosecuting perogative attorneys of the quarters, in some I strued write this short However, imagine I of this State. cannot concurring opinion. competent attorney filing defense opin- My understanding majority in that in- quash motion the indictment ion, pleading as far as the State offense that, Thus, appears me if stance. it against accused since Art. anything, Amendment the Constitutional Constitution, amended, that Texas was is it will, standpoint, practical from a cause permissible plead is now for the State to now over- more work to be hoisted on our example, For “bare-bones.” prosecuting judges, if attor- worked trial murder, necessary offense it is now suggest neys plead I would “bare-bones.” only plead conclusion for the State attorneys, prosecuting defense attor- that the accused committed the offense of if State neys, judges, trial county murder and such on such such “bare-bones,” date, and the de- alleging any plead and such without facts desires to attorney going fendant and his are to enter n plea bargain agreement, into a
agreement going accepted by to be judge,
trial replaced the indictment be information,
with an and then the indict-
ment be dismissed on motion of the State. remarks,
With these join brief I the ma-
jority opinion by Judge MILLER. *36 RODRIGUEZ, Appellant,
Abelardo
v. Texas, Appellee.
The STATE of No. 1114-87. Rio, Downing, appellant. Dwain Del for Appeals Texas, Court of Criminal Enrique Fernandez, County Atty., and En Banc. Rivera-Worley, County Carmen Asst. Rio, Atty., Huttash, Del Robert State’s Nov. Atty., Dally, Sp. and Carl E.F. State’s Austin, Atty., for the State.
Before the court en banc. OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW MILLER, Judge.
Appellant
by jury
was convicted
evading
offense of
arrest.
misdemeanor
jury
V.T.C.A. Penal Code
38.04. The
punishment
also assessed
at six months
imprisonment
fine,
and a
both of
$750
probated.
appeal,
which were
On direct
appeals
appellant’s
the court of
reversed
conviction and ordered the information to
Rodriguez
be dismissed.1
1987).
(Tex.App.
Antonio
S.W.2d 120
—San
Prosecuting
granted
We
the State
Attor-
ney’s petition
discretionary
for
review
presented
grounds
two interrelated
review,
to wit: whether the court
appeals
reversing
erred in
the conviction
appellant
information
for defective
when
held, however,
appeals
Rodriguez,
1. The court of
also
tion.