IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE NINTH COURT OF APPEALS
ANGELINA COUNTY
Article 1.14 provides that a defendant forfeits appellate review if he "does not object to a defect, error, or irregularity of form or substance in an indictment . . . before the date on which the trial on the merits commences." (1) The statute essentially dictates a three-step process for reviewing appellate complaints relating to indictments: (1) Is there an indictment? (2) If so, is the indictment defective, erroneous, or irregular in some respect? (3) If so, did the defendant lodge a timely objection to the defect, error, or irregularity? The Court treats the issue before us as a step (1) inquiry, but I believe that the pivotal issue is actually a step (2) inquiry.
1. Is there an indictment?
According to the Texas Constitution, an indictment is "a written instrument presented to a court by a grand jury charging a person with the commission of an offense." (2) In Cook v. State, we held that this language literally required a "person" to be named as the perpetrator in the written instrument in order for that instrument to qualify as an indictment. (3) In Duron v. State, we addressed the requirement that an indictment charge an "offense." (4) We held that an "offense" is charged if the written instrument "accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute." (5) If the written instrument purporting to be an indictment does not in fact qualify as an "indictment," then the defendant is exempted from the usual requirement that he object to defects in the indictment before the date of trial. (6)
Duron's standard for determining when an "offense" is alleged can be understood through the following example. Suppose the purported indictment alleged only the name of the perpetrator and a culpable mental state: e.g. "John Smith intentionally." Any number of criminal offenses could contain those allegations. Under Duron, this simply would not be enough information to allege an offense.
But even under appellant's reasoning, the indictment in the present case alleges an offense: it at least alleges the misdemeanor offense of hindering apprehension. (7) That is an offense that is insufficient to invoke the district court's jurisdiction, but it is an offense nonetheless. The State, of course, contends that the indictment alleges more than that, charging the felony offense of hindering apprehension. But the fact that an offense of some sort is alleged is not in dispute. Therefore, under the Texas constitution, the written instrument in this case is, indisputably, an indictment.
2. Is the indictment defective?
The real question in this case is what kind of offense is being charged in the indictment? That question brings us to step (2) of the inquiry, whether the indictment is defective, erroneous, or irregular. Even when an indictment is error-free, a defendant can raise a claim that he was convicted of an offense that was not authorized by the facially complete indictment. (8) Under those circumstances, the defendant can argue persuasively that the indictment was not defective, and thus, there was nothing to object to prior to trial. In that situation, there is no indictment error; rather, there is error in charging the jury or in rendering judgment on an offense that the indictment does not authorize. If, for example, an indictment contains allegations necessary to establish the offense of robbery but contains no additional allegations that would suggest the greater offense of aggravated robbery, (9) then there may be no error in the indictment but error would occur at trial if the prosecution were permitted to pursue an aggravated robbery conviction. A defendant must preserve such a complaint by objecting at trial. (10)
In appellant's case, however, we are not confronted with a facially complete indictment alleging the misdemeanor offense of hindering apprehension. The misdemeanor offense of hindering apprehension does not require proof that the fugitive committed a felony offense, but the felony offense of hindering apprehension does. (11) The indictment in this case contains an additional allegation that suggests the greater offense of felony hindering apprehension: that the harbored fugitive was wanted for the offense of "failure to comply with registration as a sex offender," which is a felony offense. Consequently, we have an incomplete indictment alleging the felony offense of hindering apprehension, so the indictment was defective, and appellant was required by statute to lodge a pretrial objection to preserve error on appeal. (12)
I concur in the Court's judgment.
Date filed: March 7, 2007
Publish
1. Tex. Code Crim. Proc., Art. 1.14(b).
2. Tex. Const., Art. V, §12(b).
3. 902 S.W.2d 471, 480 (Tex. Crim. App. 1995).
4. 956 S.W.2d 547, 551 (Tex. Crim. App. 1997).
5. Id.
6. Id. at 550 (citing Cook, 902 S.W.2d at 478).
7. See Tex. Pen. Code §38.05(a), (c).
8. Sutton v. State, 899 S.W.2d 682, 686 (Tex. Crim. App. 1995).
9. Compare Tex. Pen. Code §29.02 with §29.03.
10. If the error is considered to be in the jury charge, then even without an objection, the error would be subject to the Almanza "egregious harm" standard.
11. See §38.05(a), (c).
12. See Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990). I also believe that when the lesser and greater offenses straddle the misdemeanor-felony divide, an indictment could be incomplete if it appears to allege only a misdemeanor but was filed in district court, and the misdemeanor is not one of those few that are sufficient to invoke the district court's jurisdiction. Under those circumstances, the State's filing of the indictment in district court evidences its intent to prosecute a felony offense, and a felony offense exists to which the allegations in the indictment might reasonably pertain. Of course, where a misdemeanor is not related to any felony offense for which a district court would have jurisdiction, such as in the "speeding" example given by the Court, then an indictment alleging such an offense would not be capable of conferring such jurisdiction.