Gary Lynn Johnston v. State ( 2002 )


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  •           TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-01-00729-CR
    Gary Lynn Johnston, Appellant
    v.
    The State of Texas, Appellee
    FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
    NO. B-01-0606-S, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING
    Appellant Gary Lynn Johnston was convicted of the offense of indecency with a child by
    contact. See Tex. Pen. Code Ann. ' 21.11(a)(1) (West Supp. 2002). Appellant=s punishment, assessed
    by the jury, enhanced by a prior felony conviction, is imprisonment for ten years. On appeal, in his sole
    point of error, appellant asserts that the trial court did not have jurisdiction of this case. The judgment will
    be affirmed.
    It was alleged that appellant intentionally and knowingly engaged in sexual contact with the
    victim, a child younger than seventeen years of age, by intentionally and knowingly touching the genitals of
    the said victim, with the intent to arouse and gratify the sexual desire of the defendant. Specifically,
    appellant complains that Athe indictment was fundamentally defective by failing to allege an essential element
    of the offense of indecency with a child, thus depriving the trial court of jurisdiction and rendering appellant=s
    conviction void.@ The indictment failed to allege that the victim was not the appellant=s spouse, a necessary
    element of the offense charged.1 However, appellant did not file and present a motion to quash the
    indictment until after the jury had been sworn and the indictment had been read to the jury. By failing to
    timely complain about the deficiency of the indictment before the day on which the trial on the merits
    commenced, appellant waived and forfeited his right to object to the defect in the indictment. See Tex.
    Code Crim. Proc. Ann. art. 1.14(b) (West Supp. 2002).2
    1
    The evidence shows that the victim was not the spouse of appellant and the court=s charge
    required the jury to so find in order to convict appellant of the charged offense. See Fischer v. State,
    
    887 S.W.2d 49
    , 57-58 (Tex. Crim. App. 1994).
    2
    Art. 114. Waiver of rights
    (a) The defendant in a criminal prosecution for any offense may waive any rights
    secured him by law except that a defendant in a capital felony case may
    waive the right of trial by jury only in the manner permitted by Article
    1.13(b) of this code.
    2
    (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 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 with Article 28.01 of this code.
    Tex. Code Crim. Proc. Ann. art. 1.14 (West Supp. 2002).
    3
    Appellant contends that even though he may have forfeited his right to have the indictment
    quashed, because an essential element of the offense was omitted, the trial court was not vested with
    jurisdiction. An indictment that fails to allege an essential element of the offense is nevertheless an indictment
    vesting the trial court with jurisdiction. See Studer v. State, 
    799 S.W.2d 263
    , 271 (Tex. Crim. App.
    1990); Rodriguez v. State, 
    799 S.W.2d 301
    , 303 (Tex. Crim. App. 1990); see also Duron v. State, 
    956 S.W.2d 547
    , 550-51 (Tex. Crim. App. 1997). Appellant=s point of error is overruled.
    The judgment is affirmed.
    Carl E. F. Dally, Justice
    Before Justices Kidd, Puryear and Dally*
    Affirmed
    Filed: August 30, 2002
    Do Not Publish
    4
    *
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.
    Gov=t Code Ann. ' 74.003(b) (West 1998).
    5
    

Document Info

Docket Number: 03-01-00729-CR

Filed Date: 8/30/2002

Precedential Status: Precedential

Modified Date: 9/6/2015