Justin Russell May v. State of Texas

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Justin Russell May

Appellant

Vs.             No. 11-01-00241-CR  -- Appeal from Collin County

State of Texas

Appellee

The jury convicted Justin Russell May of the offense of attempted assault, a Class B misdemeanor.  The trial court assessed his punishment at confinement for 60 days. We affirm. 

In his sole issue for review, appellant contends that the information was fundamentally defective because it failed to set forth which type of assault he allegedly attempted.  The information charged that appellant committed the offense of attempted assault as follows:

[T]hen and there intentionally, with the specific intent to commit the offense of assault, of A. Russell, do an act, namely: throw a telephone at A. Russell, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended,

[T]hen and there intentionally, with the specific intent to commit the offense of assault, of A. Russell, do an act, namely: throw a telephone in the direction of A. Russell, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended. 

We hold that, because the information in this case is an Ainformation@ as contemplated by TEX. CONST. art. V, ' 12(b) and because appellant failed to object prior to trial, appellant waived any objection to either the form or substance of the information.  A written instrument is an Ainformation@ under the constitution Aif it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective.@  Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Cr.App.1997).  In this case, the information was sufficiently specific to give notice of the penal statutes at issue and, thus, was an Ainformation.@  An objection to a defect in either the form or substance of an Ainformation@ must be made prior to the date that trial commences; otherwise, the objection is waived and may not be raised on appeal.  TEX. CODE CRIM. PRO. ANN. art. 1.14(b) (Vernon Supp. 2002); Duron v. State, supra; Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990).  Appellant did not object prior to trial.  Moreover, an indictment for criminal attempt has been held not to be defective for failure to allege the constituent elements of the offense attempted.  Young v. State, 675 S.W.2d 770, 771 (Tex.Cr.App.1984); Whitlow v. State, 609 S.W.2d 808 (Tex.Cr.App.1980); Jones v. State, 576 S.W.2d 393 (Tex.Cr.App.1979); Williams v. State, 544 S.W.2d 428 (Tex.Cr.App.1976); Epps v. State, 811 S.W.2d 237, 242 (Tex.App. - Dallas 1991, no pet=n). Appellant=s sole issue for review is overruled. 

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

June 20, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.