In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00169-CR
STEPHEN W. PENDERGRASS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court
Marion County, Texas
Trial Court No. F14437
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
After Stephen W. Pendergrass entered a plea of guilty in October 2013 to the charge of
delivery of a controlled substance, the trial court entered an order placing him on deferred
adjudication community supervision for a period of five years. Less than a year later (in April
2014), the State moved to adjudicate guilt alleging that Pendergrass had violated five of the
conditions of his community supervision. At the hearing on this motion, Pendergrass (who was
the sole witness) entered a plea of “true” to all five of the alleged violations. The trial court
adjudicated Pendergrass guilty and sentenced him to fifteen months’ confinement in state jail.
On appeal, Pendergrass does not fault the procedures at the hearing to adjudicate his
guilt, but rather, contends that the original indictment was fundamentally defective because it
failed to name the person to whom he was alleged to have delivered the controlled substance.
We affirm the trial court’s judgment because Pendergrass waived his complaint regarding
the indictment.
Pendergrass Waived his Complaint Regarding the Indictment
The pertinent portion of Pendergrass’ indictment in this case alleged that “on or about the
25th day of July, 2012,” he “did then and there deliver, by actual transfer, to Confidential
Informant #7-25-12, a controlled substance . . . .” In his sole point of error, Pendergrass
contends that the indictment to which he pleaded guilty was insufficient as a matter of law
because the identity of the person to whom it was alleged that Pendergass had delivered the
controlled substance was so “vague . . . general and non-descriptive as to constitute no allegation
of a name at all . . . .”
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Pendergrass does not take into account Article 1.14 of the Texas Code of Criminal
Procedure, which provides in part that
[i]f 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.
TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005). Indictments charging a person with
committing an offense, once presented, invoke the jurisdiction of the trial court, and jurisdiction
is no longer contingent on whether the indictment contains defects of form or substance. Teal v.
State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007). Thus, because all substantive defects in
indictments are subject to waiver, the existence of such defects does not render the indictment
“void.” See id. at 178.
As a general rule, the original plea cannot be attacked on an appeal from the revocation
proceedings in a deferred adjudication context. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim.
App. 2001). However, an exception to this general rule exists if a judgment of conviction is
void. Id. The void judgment exception recognizes that there are some rare situations in which a
trial court’s judgment is accorded no respect due to a complete lack of jurisdiction to render the
judgment in question. Id. “A void judgment is a ‘nullity’ and can be attacked at any time.” Id.
at 667–68 (citing Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998)). Thus, a
defendant who was placed on deferred adjudication may raise on appeal an error that would
render the original judgment void, even if that appeal comes after the defendant’s guilt has
already been adjudicated. Id. at 668.
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An instrument which is not an “indictment” under Article V, Section 12 of the Texas
Constitution fails to vest the trial court with jurisdiction, and that issue can be raised for the first
time on appeal. See Duron v. State, 956 S.W.2d 547, 551 n.3, 555 (Tex. Crim. App. 1997)
(Womack, J., concurring); Cook v. State, 902 S.W.2d 471, 479–80 (Tex. Crim. App. 1995).
“[T]o comprise an indictment within the definition provided by the constitution, an instrument
must charge: (1) a person; (2) with the commission of an offense.” Cook, 902 S.W.2d at 476.
“[A] written instrument is an indictment or information under the Constitution if 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 indictment is otherwise defective.” Duron, 956 S.W.2d
at 550–51. The issue presented to this Court is whether identifying the confidential informant
only with the numbers “7-25-12” (the date of the offense) prevents the charging instrument from
describing the crime with sufficient clarity and specificity to identify the relevant penal statute.
Here, Pendergrass was charged with delivery of a controlled substance, the elements of
the offense being that (1) a person (2) knowingly (3) delivers (4) a controlled substance. See
TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010). The indictment alleged that “on
or about the 25th day of July, 2012” Pendergrass “did then and there deliver, by actual transfer,
to Confidential Informant #7-25-12, a controlled substance . . . .” Although Pendergrass is
correct in pointing out that the indictment does not give the specific name of the person to whom
the delivery was allegedly made by him, the name of the recipient is not an essential element of
the crime. See id. The indictment clearly accuses Pendergrass “of a crime with enough clarity
and specificity to identify the penal statute under which the State intends to prosecute” and,
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therefore, is sufficient to constitute an indictment or information under the Constitution. See
Duron, 956 S.W.2d at 550–51.
Because the indictment was constitutionally sufficient, the judgment is not void and
Pendergrass cannot attack the original plea. See Nix, 65 S.W.3d at 667. There being no other
points on appeal, we affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: January 29, 2015
Date Decided: February 3, 2015
Do Not Publish
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