In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00294-CR
NO. 09-16-00295-CR
____________________
THE STATE OF TEXAS, Appellant
V.
JOHN CHAD KOLANDER, Appellee
_________________________________ ______________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 16-24978, 16-24979
____________________________________________ ____________
MEMORANDUM OPINION
In two separate cases, the State of Texas appeals the trial court’s order
granting appellee John Chad Kolander’s motion to quash and dismiss the
indictments. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2016).1
In each case, the State argued that the trial court erred in granting Kolander’s motion
1
Because the subsequent amendment does not affect the outcome of this
appeal, we cite to the current version of the Texas Code of Criminal Procedure.
1
to quash and in refusing to make findings of fact and conclusions of law. We affirm
the trial court’s orders.
BACKGROUND
In July 2015, the Jefferson County District Attorney filed a motion to appoint
a Criminal District Attorney Pro Tem to review, and if necessary, present and
prosecute allegations of tampering with physical evidence and tampering with a
governmental record alleged to have been committed by Kolander on or about June
5, 2013. Judge John Stevens signed the order appointing Josh Schaffer as the District
Attorney Pro Tem on July 29, 2015, and that same day, Schaffer took the oath of
office. In April 2016, Schaffer filed a motion requesting that Judge Stevens expand
the scope of the grand jury investigation and amend his order of appointment to
allow Schaffer to investigate whether Kolander had committed aggravated perjury,
and to determine whether to file and present the allegation to the grand jury for
potential prosecution. Judge Stevens signed an amended order expanding the scope
of the grand jury investigation.
On May 11, 2016, a grand jury indicted Kolander for the offense of tampering
with physical evidence in cause number 16-24978 and for tampering with a
governmental record in cause number 16-24979. See Tex. Penal Code Ann. §§
2
37.09, 37.10 (West Supp. 2016).2 The indictment for the offense of tampering with
physical evidence alleged that on or about June 5, 2013, Kolander
did then and there, knowing that an investigation was in progress, make,
present, and use, a document, namely: a probable cause affidavit for a
search warrant, attached hereto as Exhibit A, with knowledge of its
falsity and with intent to affect the course and outcome of the
investigation.
The indictment for tampering with a governmental record alleged that on or about
June 5, 2013, Kolander
did then and there, intentionally and knowingly make, present, and use
a governmental record, namely: a probable cause affidavit for a search
warrant, attached hereto as Exhibit A, with knowledge of its falsity, and
the actions of the Defendant were done with the intent to defraud and
harm another, namely: Judge Bob Wortham.
Exhibit A, which is attached to both indictments, is an evidentiary search warrant in
which Kolander is the affiant. In the search warrant, Kolander, upon his oath deposed
and stated:
Affiant JOHN CHAD KOLANDER is a certified peace officer
with the State of Texas and has been an officer for the past 22 years.
Affiant is currently employed with the Jefferson County Sheriff’s
department and is currently assigned to the Criminal Investigation
division.
On or [about] the 28th day of May, 2013, Jefferson County
Sheriff Sgt. S. Broussard, Bailiff for the 252nd, arrested a man named
STEPHEN HARTMAN, for the offense of disrupting a meeting and
interference with the duties of a public servant. This offense occurred
2
Because the subsequent amendments do not affect the outcome of this appeal,
we cite to the current version of section 37.10 of the Texas Penal Code.
3
in the 252nd courtroom, in Beaumont, Jefferson County, Texas. District
Judge Layne Walker was presiding in a criminal case.
In a search subsequent to the arrest, Sgt. Broussard discovered in
the pocket of HARTMAN a black fountain pen. This pen appeared to
be a normal fountain pen but upon closer inspection Sgt. Broussard
noticed that this pen was flashing a continuous blue light. Broussard
then notices that this pen is actually a digital audio and video recorder.
It also appears that this pen was activated and could have captured the
events leading up to this arrest.
It is Affiant’s belief that recorded on this pen camera could be
actual footage of what occurred prior to HARTMAN’S arrest. Affiant
requests that this warrant be issued so that investigators can download
and record these audio and visual images if they are available. Affiant
further believes that these recordings will depict the defendant’s
conduct to support the offense of disrupting a meeting.
In May 2016, the presiding judge of the 252nd District Court, Judge Raquel
West, voluntarily recused herself from Kolander’s cases because they involved an
alleged incident that occurred in the 252nd District Court, and that same month, a
visiting judge was assigned to Kolander’s cases. In June 2016, Kolander filed a
pretrial application for writ of habeas corpus seeking dismissal of his indictments
and challenging the authority of Josh Schaffer to act as the criminal district attorney
pro tem. See Tex. Code Crim. Proc. Ann. arts. 2.07 (West 2005), 11.01 (West 2015).
In the event the trial court concluded that pretrial habeas corpus relief was not
appropriate, Kolander requested that the trial court treat his application as a motion
to “quash/dismiss” his indictments. Kolander filed a supplemental pretrial habeas
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corpus application alleging that the indictments are impermissibly vague because
they fail to identify what he falsified in the search warrant affidavit that is the subject
of both indictments, and that the orders appointing Schaffer to investigate and
prosecute his cases improperly used his initials instead of his full name. Kolander
also requested that the trial court consider his supplemental application as a motion
to “quash/dismiss” his indictments.
The trial court conducted a hearing on Kolander’s habeas corpus applications.
The trial court heard arguments challenging Schaffer’s authority to act as the
criminal district attorney pro tem. Schaffer argued that because a pretrial habeas
corpus application was not a proper method to challenge an order appointing an
attorney pro tem or the authority of the judge who made the appointment, the trial
court should refuse to issue the writs without conducting an evidentiary hearing on
the merits of the applications. Kolander’s counsel argued that a writ of habeas corpus
is the way to challenge Schaffer’s authority, because if Schaffer’s appointment was
improper at the time the indictments were returned, then he was not the valid
prosecutor and everything he did from the moment he stepped into the Grand Jury
until the time the indictments were returned is void. After hearing arguments
concerning whether the writs should issue, the trial court refused to issue writs of
habeas corpus. The trial court also found that there were no grounds to dismiss
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Schaffer as the criminal district attorney pro tem. The trial court then considered
Kolander’s motions to quash.
Kolander’s counsel explained that Schaffer attached to Kolander’s
indictments a search warrant affidavit, which had been prepared by Kolander.
According to Kolander’s counsel, Schaffer has “somehow alleged that that affidavit
was false and that by Kolander presenting that false affidavit, Judge Wortham was
defrauded or harmed in some way.” Kolander’s counsel argued that Kolander has an
absolute right to know what Schaffer claims is false within the four corners of the
indictment; otherwise, the indictments fail to allege a crime against which Kolander
can defend. Kolander’s counsel further argued that Schaffer’s act of attaching the
affidavit to the indictments is insufficient to allege what Kolander supposedly did to
tamper with evidence or a governmental document. According to Kolander’s
counsel, the indictment also fails to allege how Judge Wortham was harmed by
Kolander signing the probable cause affidavit; Kolander has a constitutional right to
know what he is being charged with; and, if the prosecutor alleges that a falsity
exists, the defendant is entitled to notice of what the claimed falsity is. Kolander’s
counsel maintains that even if Schaffer amended the indictments to include a known
fact that Kolander omitted from the affidavit—that fact being that another officer
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had taken home and viewed the evidence that was the subject of the search warrant—
the additional fact would not negate the probable cause to issue the search warrant.
Schaffer argued that the indictments provided adequate notice because they
tracked the statutory language and identified the governmental record that allegedly
was falsified and tampered with. According to Schaffer, based on Kolander’s
counsel’s argument, it was evident that Kolander knew that it was the material
omission of the statement that his counsel identified that rendered the affidavit false
in its entirety. In his response to Kolander’s pretrial habeas corpus applications,
Schaffer argued that Kolander learned during this investigation that Sergeant
Broussard had removed the pen from the chain-of-custody, took it home, viewed it,
and then returned it to evidence. According to Schaffer, Kolander omitted this
material information from the affidavit that caused Judge Wortham to issue a search
warrant, and had Judge Wortham known of Broussard’s actions, he would not have
issued the search warrant. Schaffer concluded that Kolander’s conduct in presenting
a false affidavit to Judge Wortham forms the basis of both indictments. Schaffer
explained that Wortham, who is now the elected Criminal District Attorney, had
requested the appointment of an attorney pro tem to investigate, and if necessary,
present Kolander’s alleged offenses to a grand jury, since Wortham was a potential
witness. Schaffer requested that, in the event the trial court found that the indictments
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failed to provide adequate notice, the trial court grant him leave to consider
amending the indictments.
After hearing arguments concerning Kolander’s motions to quash, the trial
court granted Kolander’s motions to quash the indictments and granted the State
leave to amend the indictments to “make a specific allegation of what the State will
rely upon to convict.” The trial court entered a written order granting Kolander’s
motions to quash, subject to the State’s right to amend the indictments within ten
days of the entry of the order. Rather than moving to amend the indictments, the
State filed notices of appeal. In each case, the State filed a motion requesting that
the trial court issue findings of fact and conclusions of law, but the trial court denied
the State’s requests.
ANALYSIS
In issue one, the State argues that the trial court erred in refusing to make
findings of fact and conclusions of law. According to the State, Kolander raised
multiple grounds to quash the indictments, but the trial court refused to identify on
which ground it based its decision. In its motion requesting findings of fact and
conclusions of law, the State mentions that the trial court gave it time to amend the
indictments and instructed the State to “make a specific allegation of what the State
will rely upon to convict.” The State admits that the trial court’s statement suggests
8
that the court granted the motion on the theory that the indictments were
impermissibly vague because they failed to identify what Kolander falsified in the
search warrant affidavit. However, on appeal, the State contends that without
findings and conclusions, this Court cannot know with certainty the basis of the trial
court’s decision.
The State has not pointed this Court to any authority requiring a trial court to
make findings of fact and conclusions of law regarding its ruling on a motion to
quash an indictment. While the trial court is not required to specify the reasons for
its ruling when dismissing an indictment, it is a good practice for trial courts to
specifically overrule those grounds not granted; otherwise, the State must challenge
every ground raised in the motion. State v. Sandoval, 842 S.W.2d 782, 785 (Tex.
App.—Corpus Christi 1992, pet. ref’d) (stating that when trial court granted motion
to dismiss indictment without specifying which of defendant’s legal theories were
meritorious, the State was required to challenge all of defendant’s legal theories);
see Sovey v. State, 628 S.W.2d 163, 165 (Tex. App.—Houston [14th Dist.] 1982, no
pet.). We conclude that the trial court did not err by refusing to make findings of fact
and conclusions of law. We further conclude that under the circumstances presented
here, the State could have reasonably concluded that the trial court’s order granting
the motion to quash was based on the State’s failure to make a specific allegation of
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what the State would rely upon to convict, namely what Kolander allegedly falsified
in the search warrant affidavit. In both cases, we overrule issue one.
In issue two, the State complains that the trial court erred in granting
Kolander’s motions to quash. The State argues that the indictments are legally
sufficient because they provide adequate notice of the conduct that allegedly
constitutes crimes because the language in the indictments tracks the statutory text
of the applicable offenses. The State identified the probable cause affidavit that
Kolander made, presented, and used as the false document/governmental record, and
the State attached the affidavit to the indictments as an exhibit. According to the
State, it is not required to allege what about the affidavit is false because those facts
are evidentiary. The State contends that its response to Kolander’s motions to quash
put Kolander on notice that it was Kolander’s omission of material information that
rendered the affidavit false.
Whether an indictment sufficiently alleges an offense is a question of law
subject to de novo review. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004). To meet the accused’s right to notice under both the United States and Texas
Constitutions, the indictment “must be specific enough to inform the accused of the
nature of the accusation against him so that he may prepare a defense.” Id. Article
21.02 of the Texas Code of Criminal Procedure sets forth requirements for an
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indictment and specifically provides that the “offense must be set forth in plain and
intelligible words.” Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009). Article
21.03 provides that “[e]verything should be stated in an indictment which is
necessary to be proved.” Id. art. 21.03 (West 2009). Article 21.04 provides that “[t]he
certainty required in an indictment is such as will enable the accused to plead the
judgment that may be given upon it in bar of any prosecution for the same offense.”
Id. art. 21.04 (West 2009). An indictment that tracks the statutory language generally
satisfies constitutional and statutory requirements, and 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). The trial court should grant a motion to quash “only where the
language concerning the defendant’s conduct is so vague or indefinite as to deny the
defendant effective notice of the acts he allegedly committed.” DeVaughn v. State,
749 S.W.2d 62, 67 (Tex. Crim. App. 1988).
Here, both indictments track the language of the statute, but they do not
include the false statement the State would rely upon for conviction. When a
charging instrument fails to allege in what manner a defendant violated a criminal
statute, the omission is a defect in form. See Amaya v. State, 551 S.W.2d 385, 387
(Tex. Crim. App. 1977) (holding that the indictment was deficient because it failed
to identify the specific false statement the State alleged the defendant made). A pre-
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trial motion to quash is the proper means of bringing a defect in form to the court’s
attention. See Amaya, 551 S.W.2d at 387; State v. Borden, 787 S.W.2d 109, 110
(Tex. App.—Houston [14th Dist.] 1990, pet. ref’d). When a defect in form is brought
to the trial court’s attention, the State must respond by amending the indictment to
include a specific allegation of what the State will rely upon for conviction. Cook v.
State, 824 S.W.2d 334, 337 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). “To
afford a defendant sufficient notice of an offense under section 37.10, the charging
instrument should allege the essential elements of the offense and identify the false
entry.” Id. at 338. Thus, to provide adequate notice of an offense under section 37.10,
the State was required to inform Kolander of the precise facts in the affidavit that it
alleged were false. See id.
We conclude that Kolander’s indictments are deficient because they fail to
identify the specific false statement that Kolander made in the search warrant
affidavit. See Amaya, 551 S.W.2d at 387; Cook, 824 S.W.2d at 337. We further
conclude that the trial court did not err by granting Kolander’s motions to quash
because the indictments did not provide Kolander with adequate notice to prepare
his defense. See Cook, 824 S.W.2d at 338-39. In both cases, we overrule the State’s
second issue. Having overruled both of the State’s issues in each case, we affirm the
trial court’s orders.
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AFFIRMED.
PER CURIAM
Submitted on February 16, 2017
Opinion Delivered February 22, 2017
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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