Deandre Deshaun White v. State

                NO. 12-07-00025-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DEANDRE LESHAUN WHITE,     §          APPEAL FROM THE THIRD

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS

APPELLEE   §          ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Deandre Leshaun White appeals his conviction for possession of a firearm by a felon, for which he was sentenced to imprisonment for ten years.  In one issue, Appellant contends that the trial court erred in overruling his objection to the indictment.  We affirm.

Background

            Appellant was charged by indictment with possession of a firearm by a felon.  Appellant pleaded “not guilty,” and the matter proceeded to jury trial.  On December 11, 2006, the parties conducted voir dire.  Later that same day, a jury was empaneled and sworn, and the indictment was read in open court.  The court then recessed the proceedings until the following day.  

            On December 12, 2006, Appellant objected to the indictment for its failure to include the language “against the peace and dignity of the State.”  The trial court overruled Appellant’s objection.  Ultimately, the jury found Appellant guilty as charged.  Following a trial on punishment, the jury assessed Appellant’s punishment at imprisonment for ten years.  The trial court sentenced Appellant accordingly, and this appeal followed.

Indictment

            In his sole issue, Appellant argues that the trial court committed fundamental error in overruling his objection to the indictment.  The Texas Code of Criminal Procedure provides that an indictment must conclude with the language, “Against the peace and dignity of the State.”  See Tex. Code. Crim. Proc. Ann. art. 21.02 § 8 (Vernon 1989).  The specifics of an indictment are statutory requirements, not constitutional requirements.  See Teal v. State, No. PD-0689-06, 2007 WL 676221, at *4 (Tex. Crim. App. Mar. 7, 2007).  Thus, all substantive defects in indictments are waivable under the statutes, and these defects do not render the indictment void.  Id.

            Texas Code of Criminal Procedure, article 1.14, which governs the issue at hand, provides, in pertinent part, as follows:

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.

Id. (emphasis added); see also Smith v. State, 959 S.W.2d 1, 9 (Tex. App.–Waco 1997, pet. ref’d) (If the defendant fails to object to a substantive defect in an indictment before the date of trial, he waives the right to complain about the alleged defect.). 

            A trial on the merits commences at the time the jury is impaneled and sworn.  See Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.–Corpus Christi 1994, no pet.).  In the instant case, since Appellant did not object to the substantive defect in the indictment until the day after his trial commenced, his objection was not timely. Therefore, we hold that by his failure to timely object to the indictment, Appellant has waived his right to raise such an issue on appeal.  See Tex. Code Crim. Proc. Ann. art. 1.14(b).  Appellant’s sole issue is overruled.

Disposition

            Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.       

                                                                                                     SAM GRIFFITH   

                                                                                                              Justice

Opinion delivered August 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)