Affirmed and Opinion filed February 13, 2003.
In The
Fourteenth Court of Appeals
_______________
NO. 14-02-00653-CR
NO. 14-02-00654-CR
_______________
TANIA ARELLANO ROCHA, Appellant
V.
THE STATE OF TEXAS, Appellee
______________________________________________
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause Nos. 911,882 & 902,428
______________________________________________
O P I N I O N
Tania Arellano Rocha appeals two convictions for injury to a child[1] on the grounds that the trial court erred in denying her motion to quash one of the indictments and in admitting her custodial statements into evidence. We affirm.
Motion to Quash Indictment
Appellant’s first point of error contends that the trial court erred in denying her motion to quash the indictment that charged injury to a child by omission.[2] That indictment alleged that appellant, “while having a legal duty to act pursuant to Section 151.003 of the Texas Family Code, . . . by omission cause[d] SERIOUS BODILY INJURY to . . . the Complainant, a child younger than fifteen years of age, by FAILING TO SEEK PROPER MEDICAL ATTENTION” (first emphasis added).[3] Appellant contends that, by failing to allege a parent-child relationship between appellant and the complainant that would impose a duty on appellant to seek medical attention for the complainant under the Family Code, the indictment omitted an essential element to prosecution under section 22.04(b)(1) of the Penal Code.
An indictment should state everything that is necessary to be proved. Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989). An indictment may fail to satisfy this requirement either in: (1) charging an offense at all; or (2) providing adequate notice to allow a defendant to prepare a defense (the “notice requirement”). See Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). As between these two types of deficiency, it is only the first, where an indictment fails to charge an offense at all, that the indictment is void and incapable of invoking the trial court’s jurisdiction. Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998). This is the only remaining type of “fundamental” indictment error; all others have been eliminated by constitutional and statutory amendment. See Nix v. State, 65 S.W.3d 664, 668 n.12 (Tex. Crim. App. 2001); Studer v. State, 799 S.W.2d 263, 271 n.11 (Tex. Crim. App. 1990).
An indictment is sufficient to charge an offense at all if it accuses a person 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. Crim. App. 1997). As long as an indictment meets this requirement, it is not fundamentally defective, even if it is substantively defective in failing to allege an element of an offense. See id.; Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995); Studer, 799 S.W.2d at 268, 271-72.
With regard to the notice requirement, an indictment is generally sufficient if it follows the statutory language. Curry, 30 S.W.3d at 398. However, tracking the applicable statutory language is not sufficient if that language is not completely descriptive, such as where the statute defines the manner and means of committing the offense in alternative ways. Id. In order for greater particularity to be required than is provided by tracking the statutory language, such alternatives must generally relate to the defendant’s acts, omissions, or conduct constituting the offense as contrasted from alternatives pertaining to attributes of the complainant. See id. at 398-99. However, even where a trial court has erroneously denied a motion to quash an indictment that failed to provide adequate notice (but was not fundamentally defective), the lack of notice must prejudice the substantial rights of the defendant before reversal is warranted. See Saathoff v. State, 891 S.W.2d 264, 267 (Tex. Crim. App. 1994).
An essential element of an offense arising from a failure to provide medical care for a child is the duty to provide such care. Tex. Pen. Code Ann. § 22.04(b)(1); Ronk v. State, 544 S.W.2d 123, 125 (Tex. Crim. App. 1976). In Smith and Ronk, the indictments for injury to a child by omission alleged that the defendants failed to secure, or denied, medical treatment for the complainant without any mention whatever of a duty or a relationship giving rise to a duty. See Smith v. State, 603 S.W.2d 846, 846 (Tex. Crim. App. 1980); Ronk, 544 S.W.2d at 124. Each opinion held that the failure to allege a relationship between the defendant and the complainant that placed the defendant under a statutory duty to secure medical treatment for the complainant was an omission of an element necessary to constitute an offense and thus a fundamental error requiring reversal. Smith, 603 S.W.2d at 847; Ronk, 544 S.W.2d at 125.
However, the decisions in Smith and Ronk do not govern the disposition of this point of error for two reasons. First, Smith and Ronk were decided prior to the 1985 constitutional and statutory amendments and subsequent Court of Criminal Appeals opinions, noted above, pursuant to which the omission of an element of an offense is no longer an automatic fundamental defect. Second, Smith and Ronk addressed indictments that omitted any mention at all of a duty or facts giving rise to a duty. See Smith, 603 S.W.2d at 846; Ronk, 544 S.W.2d at 125. By contrast, the indictment in this case specifically alleged that appellant had “a legal duty to act pursuant to Section 151.003 of the Texas Family Code.”[4] This not only alleged the duty element but did so with even greater specificity than merely tracking the applicable statutory language which states only “the actor has a legal or statutory duty to act . . . .” See Tex. Pen. Code Ann. § 22.04(b)(1). Therefore, the indictment in this case did not omit an element, as did those in Smith and Ronk.
As to whether the indictment provided sufficient notice of the duty element, although it failed to allege a parent-child relationship factually, it gave a reference to section 151.003, which addresses only the rights and obligations of a parent regarding a child and thus left no
class=Section3>uncertainty that a parent-child relationship was being relied upon. Moreover, by providing a reference to the statute actually imposing the duty on that relationship, if anything, it imparted more information than a mere allegation of the relationship would have. Under these circumstances, even if the denial of the motion to quash for failure to factually allege a parent-child relationship was error, it could not have been harmful in depriving appellant of adequate notice to enable her to prepare a defense. See Curry, 30 S.W.3d at 398.[5] Accordingly, appellant’s first point of error is overruled.
Admissibility of Statements
Illegal Arrest
Appellant’s second and third points of error contend that the trial court erred by denying her motion to suppress: (1) an oral statement she made to a police officer at the scene in the patrol car; (2) three videotaped statements appellant gave to officers at the police station; and (3) an oral statement appellant made to her sister following the last videotaped statement. Appellant argues that the statements were inadmissible because they were obtained pursuant to custodial questioning following an arrest made illegally without a warrant or probable cause.
Although this section of appellant’s brief discusses at length whether she was in custody when each of the challenged statements was made, it cites no evidence establishing the lack of a warrant and completely fails to address how, why, or in what respect the evidence adduced at the suppression hearing failed to establish probable cause at any time during the period she claims to have been in custody.[6] Because her second and third points of error are thus predicated on a ground which they have failed to demonstrate, those points of error afford no basis for relief and are overruled.
Right to Counsel
Appellant’s fourth point of error contends that the trial court erred in admitting her third videotaped statement because the italicized portions of the following exchange demonstrate that she invoked her Fifth Amendment right to an attorney prior to giving that statement:
[Officer]: You have the right to have a lawyer present, so that he can counsel you before questions are asked and during the time questions are being asked. Do you understand that?
[Appellant]: Uh-huh. That is when someone goes to court?
[Officer]: No, no, no. Okay. What this says is, that number three, you have the right to have a lawyer present so that he can counsel you before questions are being asked and during the time the questions are being asked. Do you understand that?
[Appellant]: No.
[Officer]: Okay. You have the right to have a lawyer present right now, so he can counsel you before questions are asked — questions are asked or during the time questions are being asked.
[Appellant]: Uh-huh. And the lawyer, how can you have one?
[Officer]: What?
[Appellant]: The lawyer, how can you have one? Does one have to look for one, or does the government or -- I don’t know.
[Officer]: Well, it’s only — okay. What I need to know is that if, yes, you understand what these words are saying, of this right or if not?
[Appellant]: Uh-huh.
* * * *
[Officer]: You have the right to have a lawyer present, so he can counsel you before questions are asked or during the time questions are being asked. Do you understand that right?
[Appellant]: Uh-huh.
[Officer]: Yes or no?
[Appellant]: Yes.
(emphases added).
A suspect who has invoked the right to counsel may not be questioned regarding any offense unless an attorney is actually present. Davis v. United States, 512 U.S. 452, 458 (1994). Whether the accused actually invoked his right to counsel is an objective inquiry. Id. at 458-59. The request for counsel must be unambiguous, i.e., sufficiently clear that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id. at 459. If such an officer would have instead understood only that the suspect might be invoking the right to counsel, questioning need not cease. Id.[7] Moreover, if a suspect makes an ambiguous or equivocal statement, police have no obligation to ask him questions to clarify whether he wants an attorney. Id. at 461.
In this case, because appellant’s questions regarding how to obtain a lawyer did not unequivocally express a request for a lawyer, they did not invoke her Fifth Amendment right to counsel. Accordingly, appellant’s fourth point of error is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Opinion filed February 13, 2003.
Panel consists of Justices Edelman, Seymore, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty of both offenses and sentenced her to 10 and 15 years confinement, respectively.
[2] The State contends that appellant waived her first point of error because she did not present her motion to quash to the trial court until the day of trial. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003) (if a defendant does not object to a defect in the form or substance of an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect and may not raise it on appeal or in any other post-conviction proceeding). However, in Whitsey, this court essentially held that the article 1.14(b) deadline applies only to the filing, and not the presentment, of a motion to quash. See Whitsey v. State, 853 S.W.2d 769, 770, 772 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d).
[3] See Tex. Pen. Code Ann. § 22.04(a)(1), (b)(1) (Vernon Supp. 2003) (a person commits injury to a child if he intentionally, knowingly, or recklessly by omission causes serious bodily injury to a child and the actor has a legal or statutory duty to act).
[4] At the time of the alleged offense in November of 2000, that statute expressly provided, among the other rights and duties of a parent, that a parent of a child had a duty to support the child, including providing the child medical care. See Tex. Fam. Code Ann. § 151.003(a)(3) (Vernon 1996) (current version at Tex. Fam. Code Ann. § 151.001(a)(3) (Vernon 2002)). An offense is defined by the version of the statute in effect when the offense is committed. See Ortiz v. State, No. 73692, slip op. at 17, 2002 WL 31116634, at *9 (Tex. Crim. App. Sept. 25, 2002) (finding error where jury charge defined offense according to then-current version of statute rather than that in effect when offense was committed).
[5] See Tex. R. App. P. 44.2; Saathoff, 891 S.W.2d at 267 (recognizing application of harmless error standard to notice defect in indictment); Chambers v. State, 866 S.W.2d 9, 17-18 (Tex. Crim. App. 1993) (overruling challenge to specificity of indictment for lack of harm). Except for federal constitutional errors labeled by the United States Supreme Court as structural, no error is categorically immune to a harmless error analysis. Payne v. State, 11 S.W.3d 231, 232 (Tex. Crim. App. 2000).
[6] Nor did the trial court make any finding that probable cause was lacking. Instead, it stated at the conclusion of the hearing that the motion to suppress was denied as to the first oral statement and the three videotaped statements because the defendant was not in custody and the statements were made under voluntary conditions.
[7] A statement by an accused is either an assertion of the right to counsel or it is not. Davis, 512 U.S. at 459. If police were required to cease questioning if a suspect makes a statement that might be a request for an attorney, the clarity and ease of application necessary to real-world investigation would be lost, and police officers would be forced to make difficult judgment calls with the threat of suppression if they guess wrong. Id. at 461.