Duron v. State , 1997 Tex. Crim. App. LEXIS 76 ( 1997 )

MANSFIELD, Judge,

concurring.

Texas Constitution, Article V, § 12 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, including their contents, amendment, sufficiency and requisites are provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

Texas Code of Criminal Procedure article 1.14 provides:

(b) If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error or irregularity and he may not raise the objection on appeal or in any post conviction proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this Code.

An indictment, therefore, must, to be constitutionally, valid, be a written instrument which charges “a person” with “the commission of an offense.” An indictment serves two functions. First, the filing of an indictment is what vests the trial court with jurisdiction over a felony offense. Labelle v. State, 720 S.W.2d 101, 106 (Tex.Crim.App. 1986); Thompson v. State, 697 S.W.2d 413, 415 (Tex.Crim.App.1985); King v. State, 473 S.W.2d 43, 47 (Tex.Crim.App.1971). Second, it gives notice to the defendant of the offense of which he has been charged so that he can prepare a defense. Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Crim.App.1994); Evans v. State, 623 S.W.2d 924, 925 (Tex.Crim.App.1981).

In Cook v. State, 902 S.W.2d 471 (Tex. Crim.App.1995), we held that a written instrument which fails to charge “a person” with an offense is not an indictment as defined by Article V, § 12(b) and Article I, Section 10 of the Texas Constitution.¹ We held:

Accordingly, to constitute an indictment as required by Article V, § 12(b) and Article I, Section 10, a charging instrument must at least charge “a person” with the “commission of an offense.” If the charging instrument completely fails to charge “a person” then it is not an indictment and does not invest the trial court with jurisdiction. Moreover, because a valid indictment is essential for jurisdiction, the lack of same is not subject to waiver under Article 1.14(b) due to a failure to make a timely objection to the indictment. Cook, supra, at 479-480 (citations and footnotes omitted).

Therefore, an indictment which fails to name “a person” is not an indictment under the Texas Constitution and its validity may be challenged on appeal even if no timely objection under Article 1.14(b) to it was made before the date on which appellant’s trial commenced.

Studer v. State, 799 S.W.2d 263 (Tex.Crim. App.1990), addresses the second requirement under the Texas Constitution that must be met for an indictment to qualify as such: that it “charge an offense.” In Studer, this Court held that while an indictment, to be valid, must charge “an offense,” it does not have to allege all of the elements of that offense for it to pass constitutional muster. The failure to include one or moré elements of the offense in the indictment, while a defect of substance, is not a defect of constitutional magnitude causing the indictment not to be an indictment under Texas Constitution Article V, § 12 provided the indictment charges an identifiable offense under the Texas Penal Code. In effect, an indictment which merely omits one or more elements of the offense charged is defective as being incomplete; such defects are waived if not timely raised in the manner prescribed under Article 1.14(b). Studer, supra, at 268; Cook, supra, at 477; Rodriguez v. State, 799 S.W.2d 301, 303 (Tex.Crim.App.1990); Ex parte Morris, 800 S.W.2d 225, 227 (Tex.Crim.App.1990).

In the present case, the indictment contains the essential elements of the offense of indecency with a child. Tex. Penal Code § 21.11(a)(1). It charges appellant with that offense, and meets all of the requirements to be a facially valid indictment. The indictment describes the sexual contact between appellant and the complainant as consisting only of contact between the complainant’s legs and appellant’s penis. Appellant contends the indictment is constitutionally void ab initio because legs are not referenced in the definition of “sexual contact” under Texas Penal Code § 21.01(2). This contention is without merit.² As correctly stated in the opinion of the Court, Studer and Cook require an indictment merely to charge “a person” with “the commission of an offense” to satisfy Article V, § 12. An indictment is not constitutionally defective merely because it fails to allege one or more elements of the charged offense or contains language, as here, that may indicate innocence. Furthermore, appellant does not demonstrate the indictment was so defective as to deny him the ability to prepare his defense and thereby denied him of his right to due process and due course of law under Article I, Section 19 of the Texas Constitution. See Adams v. Texas, 707 S.W.2d 900 (Tex.Crim.App.1986).

With these comments, I join the opinion of the Court.

1 . In Cook the offense charged was theft of over $20,000 in United States currency. The charging instrument properly described the offense charge but failed to name the person charged with said offense.

2 . This language may well have been successfully challenged via a timely motion to quash under Article 1.14(b) as being defective.