Joshua Frank v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00126-CR
Joshua Frank, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
NO. 2C17-02362,
THE HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Joshua Frank was charged by information with assault causing bodily
injury, a Class A misdemeanor. See Tex. Penal Code § 22.01(a)(1), (b). After a bench trial, the
trial court found appellant guilty and assessed his punishment at 216 days’ confinement in the
county jail. See id. § 12.21. In a single point of error on appeal, appellant contends that the
charging instrument was defective. For the following reason, we affirm the trial court’s
judgment of conviction.
DISCUSSION
Tracking the language of the assault statute, the information in this case alleged
that appellant “did then and there intentionally, knowingly and recklessly cause bodily injury to
[the victim] by striking him on and about the head and face and body.” See id. § 22.01(a)(1).
 Appellant complains that the information failed to comply with article 21.15 of
the Code of Criminal Procedure because it failed to allege, with reasonable certainty, the manner
and means by which appellant recklessly committed the assault. See Tex. Code Crim. Proc.
art. 21.15 (requiring that charging instrument “must allege, with reasonable certainty, the act or
acts relied upon to constitute recklessness” “in order to be sufficient”).
However, appellant did not file a motion to quash the information, object to the
information, nor raise any claim that the information was defective. “If the defendant does not
object to a defect, error, or irregularity of form or substance in an . . . 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.” Id. art. 1.14(b); see Jenkins v. State, — S.W.3d —,
No. PD-0086-18, 2018 WL 6332219, at *6 (Tex. Crim. App. Dec. 5, 2018); Ramirez v. State,
105 S.W.3d 628, 630 (Tex. Crim. App. 2003); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim.
App. 1990).
Because appellant failed to make any pretrial objection to the information, he
waived and forfeited any contention that the information is defective because it failed to comply
with article 21.15. See Tex. Code Crim. Proc. art. 1.14(b). Accordingly, we overrule appellant’s
sole point of error.
CONCLUSION
Having concluded that appellant procedurally defaulted on his complaint about
the information, we affirm the trial court’s judgment of conviction.
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__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Triana
Affirmed
Filed: August 30, 2019
Do Not Publish
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