Ex Parte Gibson , 1990 Tex. Crim. App. LEXIS 181 ( 1990 )

OPINION

MILLER, Judge.

Applicant was convicted of the offense of retaliation upon his guilty plea. V.T.C.A. Penal Code § 36.06. His punishment, enhanced by two prior convictions, was assessed by the trial court at forty years confinement in the Texas Department of Corrections.¹ Applicant did not appeal this conviction.

In his writ application, submitted to this Court pursuant to Art. 11.07, V.A.C.C.P., applicant contends the indictment upon which he was convicted is fundamentally defective for failing to allege the date of the commission of the alleged offense. Applicant asserts the indictment does not meet the requisites of Art. 21.02, V.A.C. C.P.², does not allege any offense against the laws of this state, and is insufficient to invoke the jurisdiction of the trial court. Applicant claims he may raise this issue for the first time by collateral attack, citing Keagan v. State, 618 S.W.2d 54 (Tex.Cr.App.1981), and Ex parte Page, 563 S.W.2d 822 (Tex.Cr.App.1978).

The indictment in this cause, which the record reflects was returned on October 2, 1987, alleged in pertinent part:

THE GRAND JURORS, duly selected, organized, sworn, and impaneled as such for the County of Taylor, State of Texas, at the September Term, 1987, of the 42nd District Court for said County upon their oaths present in and to said Court that on or about the 3rd day of September, and anterior to the presentment of this indictment, ... (emphasis supplied)

The judgment included in the record reflects applicant committed this offense on September 3, 1987, and he was convicted and sentenced on December 7, 1987. No notice of appeal was given. In regard to applicant’s writ, the State filed no response and no hearing was held. On August 10, 1988, the judge of the convicting court entered an order with the following findings in regard to applicant’s claim:

1. The indictment under which the Applicant was adjudged to be guilty, failed to allege the year in which the offense was committed.

2. The indictment failed to allege all essential requisites of Art. 21.02, [V.A.C. C.P.],

3. It does not appear from the face of the indictment that an offense against the laws of Texas was committed.

4. The indictment is fundamentally defective.

5. The conviction is void.

Before we may address the merits of applicant’s claim, we must determine whether this issue may be raised in this postconviction proceeding in light of Art. 1.14(b), V.A. C.C.P.³

Subsection (b) of this article provides in its entirety:

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 other postconviction 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 Article 28.01 of this code.

Applicant does not contend he made any pretrial objection to the indictment, nor does he cite Art. 1.14(b) in his application. Instead, applicant argues the indictment is fundamentally defective and his conviction is void because the indictment never invested the trial court with jurisdiction over him. Applicant cites numerous cases⁴ from this Court which support his contention; however, .none of these cases involve indictments which were presented to the trial court on or after December 1, 1985, see fn. 2 infra, and therefore are not dispositive. In order to decide the cognizability issue we must depart from our normal mode of analysis due to the recent changes in the nature of indictments. The threshold issue in this case which must be addressed then is whether the instrument upon which applicant was convicted was an “indictment” for purposes of Art. V., § 12, of the Texas Constitution.

We addressed what no longer constitutes an indictment (or information) under Art. V., § 12(b),⁵ in Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990). The charging instrument in Studer, an information, suffered a substance defect in that it failed to allege an element of the offense in that case, indecent exposure. See Art. 27.08, V.A.C.C.P. After a thorough analysis of the legislative history of the amendatory act affecting both Art. V., § 12, and Art. 1.14, this Court concluded that “an indictment (or information) is still an indictment (or information), at least as contemplated by Art. V., § 12, though it be flawed by matters of substance such as the absence of an element.” Studer, at p. 271. We also concluded that Art. V., § 12(b) did not create prerequisites to which a charging instrument must adhere or otherwise fail to be a charging instrument within the meaning of the constitution. We held in Studer that the information, although substantively defective, was on its face an information as contemplated by Art. V., § 12, and thus its presentment to the trial court invested that court with jurisdiction over the cause. The failure of the appellant to raise the substance defect in the information by pretrial objection waived the error under Art. 1.14(b). Studer, at p. 273.

The Studer decision controls the disposition of this case, even though we are presented with a different charging instrument defect, because the type of defect does not affect whether a charging instrument does indeed exist. Under the analysis in Studer, if the instrument comes from the grand jury, purports to charge an offense and is facially an indictment, then it is an indictment for purposes of Art. V., § 12(b), and its presentation by a State’s attorney invests the trial court with jurisdiction to hear the case. In the case at bar, the record, as well as applicant’s writ application, contains a copy of the “indictment” in this cause. The instrument was issued by the grand jury, filed with the district clerk, and purports to charge applicant with retaliation and two prior convictions. Clearly, the instrument, on its face, is an indictment. We hold that it is an indictment as contemplated by Art. V., § 12(b).

Having determined an indictment exists in this cause, we may now determine whether applicant may raise the alleged defect in the indictment for the first time via this writ application under Art. 1.14(b). As noted infra, defects, errors, and irregularities of either form or substance in an indictment (or information) must be raised by pretrial objection or be waived in post-conviction proceedings. Here, applicant complains of the date alleged in the indictment since it does not give the year the offense was committed.

One requisite of an indictment is that the date alleged in it must be “anterior to the presentment of the indictment” and “not so remote that the prosecution of the offense is barred by limitation.” Art. 21.02(6), V.A.C.C.P. This Court has held in the past that the alleged date of the commission of the offense is a matter of substance in a charging instrument. See Ex parte Chance, 601 S.W.2d 356 (Tex.Cr.App.1980); and Ex parte McFarland, 632 S.W.2d 621 (Tex.Cr.App.1982) (Opinion on State’s Motion for Rehearing). See also Art. 27.08(2), V.A.C.C.P. An allegation of an impossible date or incomplete date has rendered charging instruments fundamentally defective, and convictions had upon that instrument were void. See e.g. Ex parte Millard, 587 S.W.2d 703 (Tex.Cr.App.1979).⁶ Under the Code of Criminal Procedure, however, an error in the alleged date may also be considered a defect of form. As noted, Art. 21.02(6) sets out specific requisites for date allegations, and Art. 27.09(2), V.A.C.C.P., states that the lack of any requisite in Art. 21.02 is an exception to the form of an indictment.

Applicant asserts the indictment failed to meet the requisites of Art. 21.02, thus raising a form defect under Art. 27.09. Additionally, applicant contends the indictment is fundamentally defective, raising a question of a substance error. Regardless of the label we attach to the alleged error in this indictment, the alleged error is waived because applicant failed to object to it pretrial under Art. 1.14(b). This is not to say, however, that the contents of a charging instrument will not be of some consequence in postconviction proceedings.

Since the defect in this indictment is one of form or substance, and applicant failed to object to this defect pretrial, applicant may not now raise this defect for the first time in this postconviction proceeding. Art. 1.14(b). Accordingly, we do not address the merits of applicant’s contention raised in his writ, and the relief prayed for is denied.

TEAGUE, J., concurs in the result. BERCHELMANN, J., not participating.

1 . Now the Texas Department of Criminal Justice, Institutional Division.

2 . Subsection 6 of Art. 21.02, Requisites of an Indictment, provides:

The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.

3 . The amendment to Art. 1.14, which provided for subsection (b), was passed by the legislature in tandem with an amendment to Art. V., § 12, of the constitution. The provisions of the amendatory act applying to Art. 1.14 state the change in the law takes effect December 1, 1985, only if the constitutional amendment was passed by the voters, which it was. Amended Art. 1.14 applies only to charging instruments presented to the court on or after the effective date of the act, i.e., December 1, 1985. Acts 1985, 69th Leg., ch. 577, § 1. The amendment clearly applies to the indictment in this cause.

4 . E.g. Hess v. State, 528 S.W.2d 842 (Tex.Cr.App.1975); Sandlin v. State, 386 S.W.2d 537 (Tex.Cr.App.1965); McLaren v. State, 167 Tex.Cr. 302, 320 S.W.2d 141 (1959); Moreno v. State, 375 S.W.2d 309 (Tex.Cr.App.1964); Ex parte Chance, 601 S.W.2d 356 (Tex.Cr.App.1980); and Ex parte Charles, 582 S.W.2d 836 (Tex.Cr.App.1979).

5 . Article V., § 12(b) of the constitution 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 information, including their contents, amendment, 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.

6 . In Studer, at p. 268, however, we noted that the amendment to Art. 1.14 did not change what constitutes a substance defect but rather only the effect of a substance defect. That is, no longer will an unobjected to substance defect be "fundamental error”.