Aguilar v. State , 1993 Tex. Crim. App. LEXIS 11 ( 1993 )

OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

In January 1989, appellant Obed Lujan Aguilar was charged by information in Ector County with driving while intoxicated, conduct which is prohibited by Article 6701 l-l(b) of our state’s Revised Civil Statutes. In December of that year, a jury found appellant guilty as charged and assessed his punishment at confinement in the county jail for two years and a fine of $2,000. The Eighth Court of Appeals later reversed the trial court’s judgment of conviction, holding that the complaint underlying the information was void. Aguilar v. State, 810 S.W.2d 230 (Tex.App.-El Paso 1991). We granted the State’s petitions for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to determine whether the court of appeals erred in holding that an appellant may raise the invalidity of a complaint underlying an information for the first time on appeal.¹ We will reverse the judgment of the court of appeals.

The body of the complaint in question alleged that appellant engaged in the prohibited conduct on or about March 5, 1988. The jurat of the complaint stated, however, that the complaint was sworn out on January 16, 1988, a date well before the alleged offense date. Despite this temporal discrepancy in the complaint, appellant did not file a pretrial motion to quash the information, as would have been his right under Davis v. State, 503 S.W.2d 241 (Tex.Cr.App.1974) (holding that such temporal discrepancies invalidate complaints), and Article 27.03 of the Texas Code of Criminal Procedure.²

Appellant first complained of the discrepancy in the complaint in his brief to the court of appeals. He argued there that the discrepancy rendered the complaint “fundamentally defective” and void, and that the information was also void because it was not supported by a valid complaint. Citing Davis v. State, he argued further that the void complaint and information necessitated the reversal of his conviction and the dismissal of the prosecution.

The court of appeals accepted appellant’s argument, explaining:

[The temporal] discrepancy renders the complaint invalid and vitiates the resulting information and conviction. Davis v. State, 503 S.W.2d 241 (Tex.Crim.App.1974)....

* * # * * *

The Court has also considered the impact of ... the 1985 amendments to Article V, Section 12 of the Texas Constitution and Article 1.14 of the Code of Criminal Procedure. We have concluded that these authorities do not change the result we have reached. The constitutional and statutory changes ... relate to defects in indictments or informations, i.e., “charging instruments,” particularly the sufficiency of the substantive allegations they present. The present defect is in the underlying complaint, which in class A and B misdemeanors is not the charging instrument. The present defect would not appear on the charging instrument and is not subject to the provisions of Article 1.14 or Article V, Section 12 of the Texas Constitution. Nor does the present defect concern notice to the accused. It relates to the process by which the charging instrument was generated and therefore relates to the jurisdiction of the trial court in the face of a void pleading.

Aguilar v. State, 810 S.W.2d at 231-232.

In its brief to this Court, the State concedes that the complaint was invalid but argues that any jurisdictional problem created by that invalidity was cured, under Texas Constitution art. 5, § 12(b), when the information was presented to the trial court. Article 5, § 12(b), as amended in 1985, provides:

An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendments, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

(Emphasis added.) Appellant counte-rargues that Article 5, § 12(b), is “simply inapplicable here” because it does not deal explicitly with complaints.

The court of appeals was correct in noting that this Court has held that a complaint underlying an information is invalid — and thus will not support the information — if the complaint alleges the offense was committed on a date after the date on which the complaint was sworn. See, e.g., Davis v. State, 503 S.W.2d 241; Thomas v. State, 474 S.W.2d 236 (Tex.Cr.App.1971); Hall v. State, 373 S.W.2d 252 (Tex.Cr.App.1963); Mitchell v. State, 170 Tex.Crim. 255, 340 S.W.2d 301 (App.1960); Bradshaw v. State, 156 Tex.Crim. 441, 243 S.W.2d 586 (App.1951). We have also held — sometimes explicitly, sometimes implicitly-that such invalid complaints and informations constitute “fundamental,” “jurisdictional” error which may be raised for the first time on appeal. Davis v. State, 503 S.W.2d 241; Thomas v. State, 474 S.W.2d 236; Hall v. State, 373 S.W.2d 252; Mitchell v. State, 170 Tex.Crim. 255, 340 S.W.2d 301; Bradshaw v. State, 156 Tex.Crim. 441, 243 S.W.2d 586; Campos v. State, 139 Tex.Crim. 411, 141 S.W.2d 344 (App.1940); Stubblefield v. State, 94 Tex.Crim. 444, 252 S.W. 563 (App.1922). Thus, as the court of appeals recognized, under the holdings in these cited cases an invalid complaint necessitates the reversal of a conviction because of a lack of trial court jurisdiction over the defendant’s person.

The court of appeals failed to fully appreciate, however, the fact that all these cases predated the 1985 amendment to Texas Constitution art. 5, § 12(b).³ Now, under the explicit terms of the constitution itself, the mere presentment of an information to a trial court invests that court with jurisdiction over the person of the defendant, regardless of any defect that might exist in the underlying complaint. See State v. Hall, 829 S.W.2d 184, 188 (Tex.Cr.App.1992); Studer v. State, 799 S.W.2d 263, 269 (Tex.Cr.App.1990). Defects in complaints, such as the one here, must now be raised before trial pursuant to Article 27.03; they are no longer “jurisdictional” in the traditional sense.

Appellant has never claimed that the information in this cause was not in fact an information for the purposes of Texas Constitution art. 5, § 12(b). „We must assume, therefore, the presentment of the information to the trial court invested that court with jurisdiction over appellant’s person, and the court of appeals erred in holding otherwise.

The judgment of the court of appeals is REVERSED and the cause REMANDED to that court for consideration of appellant’s remaining point of error.

1 . In particular, the State Prosecuting Attorney’s grounds for review are as follows:

(1) Pursuant to Tex. Const. Art. V, Sec. 12(b) and Tex.Code Crim.Proc.Ann. Art. 1.14(b), can a defendant object to an information for the first time on appeal on grounds that it was based upon a defective complaint?

(2) Pursuant to Tex. Const. Art. V, Sec. 12(b), does the presentment of an information to a court invest the court with jurisdiction of the cause?

(3) May a defendant object to a non-jurisdictional defect in a complaint for the first time on appeal?

2 . Article 27.03 provides in relevant part:

In addition to any other grounds authorized by law, a motion to set aside an indictment or information may be based on the following:

(1) That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not based upon a valid complaint....

(Emphasis added.)

3 . We do not hold today that the cases relied upon by the court of appeals {Davis, Thomas, etc.) were wrongly decided or that they are now overruled in toto. Indeed, if, in the instant case, appellant had lodged an objection before trial that was similar in tenor to the objection he lodged for the first time on appeal, he might well have prevailed under that line of cases. But the Legislature, by way of the 1985 constitutional and statutory amendments, has altered the traditional notion of jurisdiction that was explicated in those cases. It was the express intent of the Legislature and the people of Texas in 1985 to alter that traditional notion in cases where there was a procedural default at the trial level.