Aldener Widemon Dunning v. State

Affirmed and Memorandum Opinion filed November 3, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00723-CR

Aldener Widemon Dunning, Appellant

V.

The State of Texas, Appellee

On Appeal from the 241st District Court

Smith County, Texas

Trial Court Cause No. 241-0126-07

MEMORANDUM OPINION

Appellant Aldener[1]     Widemon Dunning challenges the denial of her motion to quash an indictment.  After the trial court denied appellant’s motion, appellant pleaded guilty and the trial court assessed punishment as confinement for five years.  We affirm.

Background

Appellant was indicted for the felony offense of conspiracy to commit capital murder on January 11, 2007.  Appellant filed a Motion to Quash and Exception to Substance of Indictment on February 14, 2007.  The trial court denied appellant’s motion in an order signed on June 11, 2008. Appellant pleaded guilty and the trial court assessed punishment as confinement for five years.  Appellant appeals the trial court’s denial of her motion to quash.

Analysis

We review the trial court’s denial of a motion to quash de novo.  Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007), cert. denied, 128 Sp. Ct. 2056 (2008); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). A defendant must be given notice before trial of the “nature and cause” of the accusation against him.  See U.S. Const. amend. VI; Tex. Const. art. I, § 19.  The notice must be given with sufficient clarity and detail to enable the defendant to anticipate the State’s evidence and prepare a proper defense to it. See U.S. Const. amend. VI; Tex. Const. art. I, § 19; Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998).

An indictment must allege all the facts and circumstances necessary to establish all material elements of the offense charged in plain and intelligible language. Garcia, 981 S.W.2d at 685; Bynum v. State, 767 S.W.2d 769, 779 (Tex. Crim. App. 1989).  An indictment must allege on its face facts necessary to (1) show that an offense was committed, (2) bar a subsequent prosecution for the same offense, and (3) give defendant notice of precisely what offense he is charged with committing. Terry v. State, 471 S.W.2d 848, 852 (Tex. Crim. App. 1971).  An indictment tracking the statutory language will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998); Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986).

An individual commits criminal conspiracy if, “with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement.”  Tex. Penal Code Ann. § 15.02(a) (Vernon 2003).  Conspiracy to commit a crime and the commission of the substantive crime which is the object of the conspiracy are separate and distinct offenses.  McCann v. State, 606 S.W.2d 897, 898 (Tex. Crim. App. 1980); Farrington v. State, 489 S.W.2d 607, 609 (Tex. Crim. App. 1972).  An indictment alleging the essential elements of conspiracy is sufficient.  See United States v. Willis, 583 F.2d 203, 207 (5th Cir. 1978); Smith v. State, 781 S.W.2d 418, 420 (Tex. App.—Houston [1st Dist.] 1989, no pet.).  An indictment charging conspiracy to commit a crime need not allege the essential elements of the underlying offense intended to be committed.  See Farrington, 489 S.W.2d at 609; Smith, 781 S.W.2d at 420.

Appellant challenges the indictment on grounds that it failed to: (1) properly inform her of the charge against her; (2) bar future prosecutions for the same offense; and (3) identify the victim. 

In her first and third issues, appellant contends the indictment failed to provide her with sufficient notice to prepare a proper defense and failed to allege the name of a victim.  An indictment charging conspiracy to commit a crime alleging the essential elements of the offense of conspiracy is sufficient.  See Willis, 583 F.2d at 207; Smith, 781 S.W.2d at 420.  The essential elements of the offense of conspiracy are (1) an agreement with one or more persons to engage in conduct that would constitute an offense; and (2) performance of an overt act pursuant to the agreement.  Tex. Penal Code Ann. § 15.02(a).  The indictment alleged as follows:

. . . in the County of Smith and State of Texas, ALDENE DUNNING did then and there, with the intent that capital murder, a felony, be committed, agree with Jonathan Toliver and Jesse Jackson and Jonathan Brown and Kenya Bush that they would engage in conduct that would constitute said offense, and the said defendant performed an overt act in pursuance of said agreement, to-wit: that ALDENE DUNNING, communicated with Jonathan Toliver while Jonathan Toliver was confined in Smith County Jail and bonded Jesse Jackson out of Smith County Jail and loaned her car to Jonathan Brown and advised Jonathan Brown to meet with Jesse Jackson; AGAINST THE PEACE AND DIGNITY OF THE STATE.

The indictment alleges the essential elements of the offense of conspiracy because it alleges that appellant (1) agreed with Jonathan Toliver, Jesse Jackson, Jonathan Brown, and Kenya Bush to engage in conduct that would constitute capital murder; and (2) performed an overt act in furtherance of this agreement by communicating with Jonathan Toliver, bonding Jesse Jackson out of jail, loaning her car to Jonathan Brown, and advising Jonathan Brown to meet with Jesse Jackson.     

Appellant argues the indictment is insufficient because it failed to notify her of the method by which capital murder was to be committed.  The method by which capital murder was to be committed is not an essential element of the offense of conspiracy.  See Tex. Penal Code Ann. § 15.02(a).  Appellant also argues the indictment was insufficient because it failed to allege the name of a victim.  The name of a victim is not an essential element of the offense of conspiracy.  See id.  Conspiracy to commit an offense is a separate and distinct offense from the underlying offense.  See Farrington, 489 S.W.2d at 609; Smith, 781 S.W.2d at 420.  An indictment charging conspiracy to commit a crime need not allege the essential elements of the underlying offense intended to be committed.  See Farrington, 489 S.W.2d at 609; Smith, 781 S.W.2d at 420.  Because the method by which appellant was to commit the underlying offense of capital murder and the name of the victim of the underlying offense of capital murder are not essential elements of the offense of conspiracy, it was not necessary for the indictment to allege this information. 

Appellant relies on Lindsay v. State, 588 S.W.2d 570 (Tex. Crim. App. 1979), to support her arguments.  In Lindsay, the defendant was indicted for conspiracy to commit capital murder.  Id. at 571.  The indictment alleged in part that appellant:

did then and there with intent that a felony, to wit: Capital murder for remuneration and the promise of remuneration, be committed the said Judith Lindsay did then and there agree with Kenneth G. Davis, Jewelle Beard and Larry Whittaker that the said Judith Lindsay, Kenneth G. Davis, Jewelle Beard and Larry Whittaker [e]ngage in conduct that would constitute said offense and the said Kenneth G. Davis, performed an overt act in pursuance of said agreement, to wit: by shooting Larry Lindsay with a firearm . . . [.]

Id.  The court held that the language “[c]apital murder for remuneration and the promise of remuneration” was not sufficient to provide the defendant notice of the specific acts defendant made in furtherance of the conspiracy. Id. at 572.  The issue addressed in Lindsay was whether the indictment sufficiently alleged specific acts the defendant made in furtherance of the agreement.  See id.  In this case, the indictment alleges four specific acts appellant performed in furtherance of the alleged conspiracy.  The issue addressed in Lindsay is not present in this case.   

We overrule appellant’s first and third issues.       

We need not decide whether the indictment contained sufficient detail to act as a jeopardy bar to future prosecutions. Appellant did not assert this argument in her motion to quash or raise this argument prior to her trial.  Appellant advances this argument for the first time on appeal.  A defendant must object to any error in the indictment before the date on which the trial on the merits commences or it is waived.  Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); see Teal v. State, 230 S.W.3d 172, 178 (Tex. Crim. App. 2007).  Because appellant failed to raise her objection to the sufficiency of the indictment as a jeopardy bar to future prosecutions before trial, she waived her right to object on these grounds and cannot raise this objection on appeal.  Tex. Code Crim. Proc. Ann. art. 1.14(b).  Appellant also failed to preserve this argument for appeal because appellant failed to present the trial court with a specific objection, motion, or request.  Tex. R. App. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

We overrule appellant’s second issue.

Conclusion

We affirm the trial court’s judgment.

            /s/ William J. Boyce

                                                                                                Justice

Panel consists of Chief Justice Hedges, Justices Anderson and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1]     Appellant is named as “Aldene” Dunning in the indictment and some court documents, and as “Aldener” Dunning in other court documents.  Because she is refered to as “Aldener” in the trial court’s judgment and her notice of appeal, we will refer to her as “Aldener” in this opinion.