Jenkins, Deondre Javqueen ( 2018 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0086-18
DEONDRE J. JENKINS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
R ICHARDSON, J., delivered the opinion of the Court in which K EASLER, H ERVEY,
A LCALA, Y EARY , N EWELL, K EEL, and W ALKER, JJ., joined. K ELLER, P.J., filed a
concurring opinion. Y EARY, J., filed a concurring opinion.
OPINION
On the second day of his trial for continuous trafficking of persons,1 Appellant,
Deondre J. Jenkins, moved to dismiss his case. Citing to this Court’s 1995 decision in Cook
v. State,2 Appellant argued to the trial court that, since the indictment filed by the State and
1
T EX. P ENAL C ODE § 20A.02.
2
902 S.W.2d 471 (Tex. Crim. App. 1995).
Deondre J. Jenkins — 2
read to the jury at the beginning of his trial did not name him personally, it did not charge “a
person,” and thus it was fatally defective under article V, section 12(b) of the Texas
Constitution.3 The trial court denied Appellant’s motion to dismiss. He was found guilty by
the jury and was sentenced to twenty-five years in prison.
Appellant raised the same claim on direct appeal. The Fourth Court of Appeals agreed
with Appellant that Cook applied, holding that “the charging instrument in this case failed
to charge ‘a person’ with an offense.”4 The court of appeals reversed the judgment of the
trial court and remanded the case with instructions to dismiss the indictment.5
We granted the State’s petition for discretionary review to address whether we should
follow this Court’s 1995 decision in Cook, or follow the trend we have set in our more
recently decided cases, Teal v. State6 and Kirkpatrick v. State.7 We hold that, in light of our
analysis in Teal and Kirkpatrick, our holding in Cook is implicitly disavowed by more recent
precedent. Applying the same reasoning we used in Teal and Kirkpatrick to the facts in this
case, it is our conclusion that the indictment, although defective, was still an indictment that
met the jurisdictional requirements under article V, section 12(b) of the Texas Constitution.
3
Cook, 902 S.W.2d at 447; Texas Constitution article V, section 12(b), in pertinent part,
defines an indictment as “ a written instrument presented to a court by a grand jury charging a person
with the commission of an offense.”
4
Jenkins v. State, 537 S.W.3d 696, 707 (Tex. App.— San Antonio 2017).
5
Id.
6
230 S.W.3d 172 (Tex. Crim. App. 2007).
7
279 S.W.3d 324 (Tex. Crim. App. 2009).
Deondre J. Jenkins — 3
Even though the indictment did not identify Appellant as the defendant by his name, the face
of the charging instrument contained a caption with enough information (including
Appellant’s name) such that Appellant could determine that he was “the defendant” referred
to in the indictment, and that it charged him with the felony offense of continuous trafficking
of persons. Since Appellant did not object to the indictment until the second day of his trial,
he waived and forfeited the right to raise the objection on appeal.8 We reverse the judgment
of the court of appeals and affirm the judgment of the trial court.
THE INDICTMENT
The State filed its True Bill of Indictment in this case on October 8, 2014. At the top
of the one-page charging document is the caption, which contains the following information:
Defendant: Deondre J. Jenkins
JN#: 1573311-1
CLERK’S ORIGINAL
Address: [this information is omitted but was in original charging
instrument]
Complainant: [same]
CoDefendants:
Offense Code/Charge: 589989 Continuous Trafficking of Persons–25-Life
GJ: 572027 PH Court:
Court # 186 SID #: 1008391 Cause #: 2014 CR 8396
Witness: State’s Attorney
8
T EX. C ODE C RIM. P ROC. art. 1.14(b). See also Studer v. State, 799 S.W.2d 263, 271-72 (Tex.
Crim. App. 1990) (holding that a defect in a charging instrument, whether in form or substance, is
waived unless raised prior to trial).
Deondre J. Jenkins — 4
Below the caption is the following:
TRUE BILL OF INDICTMENT
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS, the
Grand Jury of Bexar County, State of Texas, duly organized, empanelled and
sworn as such at the September term, A.D., 2014, of the 186 Judicial District
Court of said County, in said Court, at said term, do present in and to said
Court that in the County and State aforesaid, and anterior to the presentment
of this indictment:
Count I
on or about the 15th day of February, 2012, through the 15th day of December,
2013, a period of thirty days or more in duration, in Bexar County, Texas, the
defendant engaged two or more times in conduct that constitutes an offense
under Section 20A.02–Trafficking of Persons against [complainant #1] and
[complainant #2]; in that
1. The defendant knowingly trafficked [complainant #1] and
through force, fraud or coercion, caused [complainant #1] to
engage in conduct prohibited by Section 43.02–Prostitution; and
2. The defendant knowingly received a benefit from participating
in a venture that involved trafficking [complainant #1] and
through force, fraud and coercion caused her to engage in
conduct prohibited by Section 43.02 – Prostitution; and
3. The defendant knowingly trafficked [complainant #2], a child,
and by any means caused [complainant #2] to engage in or
become the victim of conduct prohibited by Section 43.05 –
Compelling Prostitution; and
4. The defendant knowingly received a benefit from participating
in a venture that involved trafficking [complainant #2], a child,
and by any means caused [complainant #2] to engage in or
become the victim of conduct prohibited by Section 43.05 –
Compelling Prostitution.
AGAINST THE PEACE AND DIGNITY OF THE STATE.
Deondre J. Jenkins — 5
After a jury was selected and sworn, the following exchange took place:
THE COURT: The next order of business is for the attorneys –
for the State to read the indictment. And the
Defendant will enter a plea.
[The prosecutor then read the indictment on the record.]
THE COURT: To which the Defendant pleads?
THE DEFENDANT: Not guilty.
THE COURT: The Defendant pleads not guilty. You may be
seated. . . .
ANALYSIS
Did the Indictment Charge “A Person?”
The presentment of a valid indictment vests the district court with jurisdiction of the
cause.9 A trial court’s jurisdiction over a criminal case consists of the power of the court
over the “subject matter” of the case, coupled with “personal” jurisdiction over the accused.10
Unlike in civil cases, where personal jurisdiction over a party may be had merely by that
party’s appearance before the court, criminal jurisdiction over a person requires the filing of
a valid indictment or information.11
9
T EX. C ONST. art. V § 12(b) (“The presentment of an indictment or information to a court
invests the court with jurisdiction of the cause.”); Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim.
App. 1980).
10
State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009) (citing Fairfield v. State, 610
S.W.2d 771, 779 (Tex. Crim. App. 1980)). See also Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim.
App. 1996) (“Jurisdiction concerns the power of a court to hear and determine a case.”).
11
Garcia, 596 S.W.2d at 527.
Deondre J. Jenkins — 6
Even if an indictment has a substantive defect, it can still qualify as an indictment that
vests a district court with jurisdiction.12 However, if an indictment is so defective that it
does not meet the constitutional definition of an indictment, it does not vest the court with
jurisdiction. To meet the definition of indictment under article V, section 12(b) of the Texas
Constitution and to vest the court with both personal and subject matter jurisdiction, the
indictment must (1) charge a person, and it must (2) charge the commission of an offense.13
In this case, Appellant complains that the first requirement was not met—the trial
court did not acquire personal jurisdiction over him because his name does not appear in the
indictment. The court of appeals agreed with Appellant, concluding that this Court’s
“holding in Cook controls the outcome of this case.”14 In Cook, this Court held that the
defendant’s conviction was void because the charging instrument did not contain the
defendant’s name.15 We held in Cook that the indictment “wholly failed to charge ‘a
12
Studer, 799 S.W.2d at 271.
13
T EX. C ONST. art. V § 12(b) (“An indictment is a written instrument presented to a court by
a grand jury charging a person with the commission of an offense.”); Cook, 902 S.W.2d at 477.
14
Jenkins, 537 S.W.3d at 707.
15
Presiding Judge Keller’s concurring opinion states that “[t]he Court errs in accepting the
premise that a conviction is void if the charging instrument fails to name a person. As unsound as
Cook was, even it did not go that far.” This criticism is misplaced. In Cook, this Court held as
follows:
In the instant case, the charging instrument wholly failed to charge “a person.” Thus,
the charging instrument did not meet the first prong of the constitutional definition of
art. V, § 12(b). Consequently, the charging instrument was not an indictment as
required by art. V, § 12(b) and art. I, § 10, and did not vest the trial court with
jurisdiction. Therefore, appellant’s conviction is void.
Deondre J. Jenkins — 7
person,’” it therefore did not qualify as an indictment, and thus it did not vest the court with
jurisdiction.16
In reversing Appellant’s conviction in this case, the court of appeals followed Cook,
concluding that this Court has “strictly held that a charging instrument must name a person
Cook v. State, 902 S.W.2d at 480 (emphasis added). Although unclear, this concurring opinion might
be making a distinction between naming a person and charging a person. However, this Court did not
make that distinction in Cook, and we do not make it here. The appellant in Cook argued that the
conviction was void because the charging instrument omitted his name. This Court in Cook apparently
agreed with that argument:
[W]e believe art. V, § 12(b) requires that an indictment charge a particular person.
This interpretation is consistent with the statutory definition of an indictment provided
by Tex. Code Crim. Proc. Ann. Art. 21.01: “An indictment is the written statement of
a grand jury accusing a person therein named of some act or omission which, by law,
is declared to be an offense.”
Cook, 902 S.W.2d at n.4 (emphasis in original). Thus, Cook did “go that far.”
Moreover, contrary to Presiding Judge Keller’s observation, nowhere in our opinion do we
“accept[] the premise that a conviction is void if the charging instrument fails to name a person.” In
fact, on page 11, infra, we expressly state that we “disagree with the court of appeals’s conclusion”
that an indictment that does not “contain the name of the accused” renders the indictment “void.” Her
concurring opinion repeats this incorrect observation by stating that, “[u]nder the Court’s opinion, the
conviction in this case would be void if Appellant’s name had not happened to appear elsewhere on
the charging instrument.” Again, this is the contrapositive of our holding, a conclusion we did not
make, and thus a mischaracterization and misinterpretation of this opinion. Rather, we conclude (see
page 15, infra) that because Appellant’s name was elsewhere on the charging instrument, he had
sufficient notice of the charge against him, so the indictment met the jurisdictional requirements under
article V, section 12(b). The concurring opinion ignores our discussions of Teal and Kirkpatrick,
wherein we acknowledge the more “expansive view” of whether a charging instrument is
constitutionally sufficient. As stated herein, in Kirkpatrick, we no longer limit such analysis to the four
corners of the charging instrument.
16
Cook, 902 S.W.2d at 480.
Deondre J. Jenkins — 8
to vest a trial court with jurisdiction.”17 However, as we explain herein, we believe that Cook
has been implicitly superseded by our more recently decided cases, Teal and Kirpatrick.
After Teal and Kirkpatrick, We Look To The Charging Instrument “As a Whole”
In Cook, we did not look beyond the defective charging language to determine if the
charging instrument, although defective, nevertheless qualified as an “indictment” under
article V, section 12. However, in Teal we held that,
the complete test for the constitutional sufficiency of a particular charging
instrument goes slightly further than that expressly set out in . . . Cook: Can
the district court and the defendant determine, from the face of the indictment,
that the indictment intends to charge a felony or other offense for which a
district court has jurisdiction? 18
Although the indictment in Teal was “certainly” defective because it failed to include one of
the two elements required for the offense to qualify as a felony, we held that, “the indictment
as a whole, was sufficient to vest the district court with subject-matter jurisdiction and give
the defendant notice that the State intended to prosecute him for a felony offense.” 19
We added even further clarification in our 2009 Kirkpatrick decision. The issue in
Kirkpatrick was the same as that in Teal—the appellant claimed that the indictment, as
worded, charged a misdemeanor not a felony, so the district court did not have jurisdiction.
We held in Kirkpatrick that, although the indictment properly charged a misdemeanor and
17
Jenkins, 537 S.W.3d at 704.
18
Teal, 230 S.W.3d at 181.
19
Id. at 182.
 Deondre J. Jenkins — 9
lacked an element necessary to charge a felony, the charging instrument, as a whole,
nevertheless charged a felony offense. In fact, in Kirkpatrick, we did not even limit our
analysis to the four corners of the charging instrument when assessing whether Appellant was
put on notice that he was being charged with the offense defined in the indictment. We held
that, “although the indictment properly charged a misdemeanor and lacked an element
necessary to charge a felony, the felony offense exists, and the indictment’s return in a felony
court put appellant on notice that the charging of the felony offense was intended.” 20 Thus,
our holding in Kirkpatrick was based on more than the bare charging language. First, “the
felony offense exists, and the indictment’s return in a felony court put appellant on notice
that the charging of a felony offense was intended.”21 Second, “the face of each indictment
contains a heading: ‘Indictment – tampering with a Governmental Record 3 rd Degree Felony
– TPC sec 37.10(a) – Code 73990275.’”22 We said that “[t]he Penal Code section was easily
ascertainable, and the notation that the offense was a third-degree felony clearly indicated
that the state intended to charge a felony offense and the district court had subject matter
jurisdiction.”23 We concluded in Kirkpatrick that “the [a]ppellant had adequate notice that
20
Kirkpatrick, 279 S.W.3d at 329.
21
Id.
22
Id.
23
Id.
Deondre J. Jenkins — 10
she was charged with a felony.”24 We held that “[t]he court of appeals erred when it
concluded that these indictments fail to satisfy the constitutional requirement of subject-
matter jurisdiction and did not vest the district court with jurisdiction.” 25
In this case, however, the court of appeals agreed with Appellant that, even though
Appellant’s name is shown in the caption, the caption is not part of the indictment.26 To
support this conclusion, the court of appeals cited to this Court’s 1935 opinion in Stansbury
v. State,27 wherein this Court stated that “the caption is really no part of the indictment
proper.”28 However, as we have explained, in light of Teal and Kirkpatrick, we find that this
statement in Stansbury does not control whether a charging instrument meets the
constitutional definition of an indictment.
The court of appeals also relied on article 21.02 of the Texas Code of Criminal
Procedure,29 concluding that, since Appellant’s name “does not appear after the
commencement of the indictment and does not appear before the conclusion,” it is not part
of the indictment.30 Article 21.02 lists the “Requisites of an Indictment,” providing, in
24
Id.
25
Id.
26
Jenkins, 537 S.W.3d at 705.
27
82 S.W.2d 962 (Tex. Crim. App. 1935)).
28
Id. at 964.
29
T EX. C ODE C RIM. P ROC. art. 21.02.
30
Jenkins, 537 S.W.3d at 704.
Deondre J. Jenkins — 11
pertinent part, that:
An indictment shall be deemed sufficient if it has the following requisites:
1. It shall commence, “In the name and by authority of The
State of Texas.”
***
4. It must contain the name of the accused, . . .
***
8. The indictment must conclude, “Against the peace and
dignity of the State.” 31
Because article 21.02 sets out what is required to make the indictment “sufficient,” if an
indictment does not comply with article 21.02, it is considered to be defective. In this case,
the indictment did not “contain the name of the accused.”32 We therefore agree that this
omission caused the indictment to be defective. However, we disagree with the court of
appeals’s conclusion that this defect rendered the indictment “void.”33 It has been well-
settled since 1985 that a defect in an indictment may not prevent it from qualifying as an
indictment.34 An indictment can be defective, but still be an indictment that vests the court
with jurisdiction.35 In fact, in Duron v. State,36 this Court held that in order for a defect to
31
T EX. C ODE C RIM. P ROC. art. 21.02.
32
Id. at § 4.
33
Jenkins, 537 S.W.3d at 697.
34
Teal, 230 S.W.3d at 177 (Since the 1985 amendments to the Texas Constitution and to article
1.14 of the Texas Code of Criminal Procedure, “jurisdiction is no longer contingent on whether the
indictment contains defects of form or substance.”).
35
Id.; Studer, 799 S.W.2d at 271-72; Duron v. State, 956 S.W.2d 547, 549-50 (Tex. Crim.
App. 1997) (“As this Court noted in Studer, the legislative history behind the 1985 amendment and
Deondre J. Jenkins — 12
“render the instrument a non-indictment,” the defect must “make it impossible for the
defendant to know with what offense he had been charged.” 37
Although the court of appeals cited to both Teal and Kirkpatrick, it distinguished those
cases, finding that this Court has “consistently interpreted [the second prong of the
constitutional definition of indictment] more liberally than the first prong,”38 However, this
Court has not had another opportunity since Cook to address the first prong. We see no
reason to interpret the two requirements of article V, section 12(b) differently. Rather than
support a strict construction of one requirement and a liberal construction of another, our
decisions in Teal and Kirkpatrick support a more expansive view.39 Thus, with regard to both
requirements under the constitutional definition of indictment—that it must (1) charge a
person, and (2) charge the commission of an offense—we hold that “the proper test” 40 is
whether the “face of the charging instrument”41 is “clear enough”42 to give an appellant
its attendant legislation indicates that those changes meant to preserve a written instrument as an
indictment even ‘though it be flawed by matter of substance . . .’”) (citing Studer, 799 S.W.2d at 271).
36
956 S.W.2d 547 (Tex. Crim. App. 1997).
37
Duron, 956 S.W.2d at 550.
38
Jenkins, 537 S.W.3d at 707.
39
Teal, 230 S.W.3d at 181 (“[T]he complete test for the constitutional sufficiency of a
particular charging instrument goes slightly further than that expressly set out in Studer and Cook.”).
40
Id. at 180.
41
Kirkpatrick, 279 S.W.3d at 329.
42
Teal, 230 S.W.3d at 180.
Deondre J. Jenkins — 13
“adequate notice”43 of the charge against him.
In this case, Appellant had adequate notice that he was “the defendant” charged with
the commission of the offense of continuous trafficking of persons. As noted above, the
caption names Appellant as the defendant: “Defendant: Deondre J Jenkins.” The caption
also includes his address, his “SID” number, the cause number, the filing date of the
indictment, the complainants’s names, the specific offense charged, and which court the case
was assigned to. As in Teal, the face of the charging instrument put Appellant on notice that
he was the defendant referred to in the indictment.44 We conclude, therefore, that, although
defective under article 21.02, the indictment nevertheless (1) charges a person (2) with
committing an offense, and thus vested the trial court with both personal and subject-matter
jurisdiction.
Appellant Waived His Objection to the Indictment Defect
If a defendant does not object to a defect, error, or irregularity of form or substance
in an indictment 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 post-conviction proceeding.45 As we observed in Teal,
43
Kirkpatrick, 279 S.W.3d at 329.
44
Teal, 239 S.W.3d at 182.
45
T EX. C ODE C RIM. P ROC. art. 1.14(b). See also Studer, 799 S.W.2d at 271-72 (holding that
a defect in a charging instrument, whether in form or substance, is waived unless raised prior to trial).
(“[T]he requisites of an indictment stem from statutory law alone,” and a defect in a charging
instrument, whether in form or substance, is waived unless raised prior to trial.).
Deondre J. Jenkins — 14
“Texas law now requires the defendant to object to any error in the indictment before the day
of trial and certainly before the jury is empaneled.” 46
In this case, Appellant did not raise an objection to the indictment, nor claim that it
was defective, until the second day of the trial.47 “If Appellant was confused about whether
the State did or intended to charge him with a felony, he could have and should have objected
to the defective indictment before the date of trial.”48 In the present case, because Appellant
failed to make a timely objection before the date of trial, he “forfeited any right to object”
to the indictment defect.49
46
Teal, 230 S.W.3d at 178 n.24 (“Also, article 1.14(b) and article 28.10 are read together for
the proposition that ‘[i]f the defendant fails to raise a substance defect prior to trial, he or she waives
that right; if the defect is raised, the State can then amend the indictment to include the missing
element.’”)
47
We note that the record contains a Motion to Quash Indictment filed pro se by Appellant in
May of 2015. This was a fill-in-the-blank form motion. At that time, an attorney had been appointed
to represent Appellant in this case. This Motion to Quash Indictment was not adopted nor re-urged
by defense counsel; it was not ruled on by the trial court; it was not raised by defense counsel at the
time he moved to dismiss the indictment on the second day of trial; and it was not mentioned by
appellate counsel in any of the briefs filed with this Court. A defendant has no right to hybrid
representation, and, as a consequence, a trial court is free to disregard any pro se motions presented
by a defendant who is represented by counsel. Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim.
App. 2007); Ex parte Bohannan, 350 S.W.3d 116 n.1 (Tex. Crim. App. 2011). We therefore do not
consider this Motion to Quash Indictment as preserving Appellant’s claim raised on appeal.
48
Teal, 230 S.W.3d at 182 (emphasis added); Kirkpatrick, 279 S.W.3d at 329 (“If she had
confusion about whether the State did, or intended to, charge her with a felony, she could have and
should have objected to the defective indictment before the date of trial.”).
49
Teal, 230 S.W.3d at 182.
Deondre J. Jenkins — 15
CONCLUSION
We conclude that our decision in Cook no longer controls in light of Teal and
Kirkpatrick. Even though the indictment in this case was defective because it did not identify
Appellant as the defendant by his name, the charging instrument’s caption contained
Appellant’s name and address. Therefore, the charging instrument, as a whole, gave
Appellant adequate notice that the indictment intended to charge him with a felony, and thus
the indictment met the jurisdictional requirements under article V, section 12(b) of the Texas
Constitution. Since Appellant did not object to the defective indictment until the second day
of his trial, he waived and forfeited the right to raise the objection on appeal. We reverse the
judgment of the court of appeals and affirm the judgment of the trial court.
DELIVERED: December 5, 2018
PUBLISH