concurring.
The question in this case is whether the appellant, who did not object to the indictment before trial, may raise on appeal a claim that the indictment does not charge an offense. I believe that he may not. The Court holds that he may, because some indictments are not indictments, thereby resurrecting the doctrine of the fundamentally defective indictment.
On June 21, 1994 this indictment was presented:
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, RUBEN DURON, JR., hereafter styled the Defendant, on or about APRIL 2, 1994, did then and there unlawfully, with intent to arouse the sexual desire of the Defendant, have sexual contact with [A.B.], hereafter styled the Complainant, a child under the age of seventeen years and not his spouse, by rubbing his penis between [A.B.’s] legs,
AGAINST THE PEACE AND DIGNITY OF THE STATE.
FOREPERSON 177TH [signature]
FOREMAN OF THE GRAND JURY
The appellant made no motion to set aside,1 exception to,2 or other objection to, the indictment.
On September 22, 1994 the appellant waived his right to trial by jury with the consent of the State; he pleaded guilty, and he made a written, judicial confession in the terms of the indictment. There was no agreement that the State would recommend a certain punishment or restrict its argument. The appellant filed a written motion for community supervision. The case was continued to December 9. A pre-sentence investigation report was prepared. On December 9, 1994 the court found the appellant guilty and, after hearing evidence and argument and considering the pre-sentence report, sentenced the appellant to two years’ imprisonment. The appellant gave notice of appeal and remained at large on appeal bond.
The appellant’s first point of error was that the indictment failed to allege the offense of indecency with a child. A divided panel of the court of appeals held that the appellant waived his claim because he did not object before trial. Duron v. State, 915 S.W.2d 920 (Tex.App.—Houston [1st] 1996). We granted discretionary review on the question of waiver.
This Court’s predecessor, the Court of Appeals, held in its first term that an appeal could be based on an error in the substance of an indictment to which no objection had been made at trial.
Whatever is essential to the gravamen of the indictment must be set out particularly, and whenever it clearly appears in the record that the defendant has been convicted on an indictment that is clearly defective in substance, although, as in the present case, neither exception, motion, nor assignment of error is presented on behalf of appellant, it will be held insufficient to support a conviction.
White v. State, 1 Tex.App. 211, 215 (1876) (burglary indictment failed to set out the elements of the intended theft). Eventually this Court held that a judgment based on such an indictment was “void, rather than *554voidable,” and could be attacked for the first time in collateral proceedings as well as appeals. Standley v. State, 517 S.W.2d 538, 541 (Tex.Cr.App.1975). Such indictments were “fundamentally defective.” Ibid. Untold thousands of judgments were reversed or set aside for pleading errors which had not been pointed out to the trial court.
Legislative attempts to reform pleading practice were unavailing. The Court of Appeals held that the constitutional requirement of an “indictment”3 meant an indictment that was pleaded under the practice at the time the Constitution of 1876 was adopted—that is, one that had all the essential elements. Williams v. State, 12 Tex. App. 395 (1882). Therefore an indictment that did not charge an offense was not an “indictment” in terms of the constitution.4
The appellant makes the same argument in this ease:
[A]n indictment must charge an offense. The Texas Constitution says so. See Cook [v. State, . 902 S.W.2d 471 (Tex.Cr.App.1995),] at 477, citing Studer [v. State, 799 S.W.2d 263 (Tex.Cr.App.1990),] at 272. Here the indictment on its face does not charge a violation of Section 21.11, but rather charges specific conduct which is not within the scope of “sexual conduct.”
Appellant’s Brief at 21-22. As another court said in response to an argument that the law was not changed by a constitutional amendment, “[T]he people of the state adopted the amendment for the purpose of ridding the state of the incubus which the construction contended for had saddled upon it.” Harris County v. Stewart, 91 Tex. 133, 141-42, 41 S.W. 650, 655 (1897).
The same, argument that the appellant presents was rejected in Studer v. State, supra. This Court held that the appellant’s argument cannot prevail after the 1985 amendment to Article V, Section 12(b) of the Texas Constitution, which now reads:
An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, ineluding their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.
The amendment was specifically intended to undo the doctrine of the fundamentally defective indictment, as this Court explained in detail in Studer v. State, supra, at 268-72. “In conclusion then, the language in Art. V, § 12, ‘charging a person with the commission of an offense,’ does not mean, under this analysis, that each element of the offense must be alleged in order to have an indictment or information as contemplated by Art V, § 12.” Id. at 272.
Legislation which accompanied the constitutional amendment enacted Tex.Code.Crim. Proc. art. 1.14(b):
If 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 postcon-vietion proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this code.
The’ Court says that “the meaning and effect of this statute were unclear.” Ante at 548. There is nothing unclear about it. As we held in Studer v. State, supra, the constitutional amendment and its accompanying legislation mean that a defendant waives the right to appeal a defect of substance in an indictment if he does not raise an objection before trial:
*555When Art. V., § 12 is read in conjunction ■with the code provisions regulating the practices and procedures governing charging instruments, it is clear the amendment to [Code of Criminal Procedure] Art. 1.14 did not change what constitutes a substance defect, but rather only its effect. The change in Art. 1.14(b) requires, among other things, that substance exceptions be raised pre-trial or otherwise the accused has forfeited his right to raise the objection on appeal or by collateral attack. If omitting an element from an indictment is still a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element.
Studer v. State, supra, at 268.
The Court’s resurrection of the fundamentally-defective indictment doctrine is made in complete disregard of the will of the people, which they have expressed directly through amendment of the Constitution and indirectly through the enactment of Article 1.14.
I do not know what the people of this state, their legislators, and their governor can do to eliminate this pernicious doctrine. The argument that an indictment is not an indictment if it has a defect seems irresistible. I believe that if this Court were abolished, its chambers demolished, the ground plowed up, and the site paved over, one day a crack would appear in the concrete, and through that crack a black-robed arm would thrust an opinion that says, “We hold that the indictment in this ease was not an indictment.”
The Court reaches the right result in this case, but for reasons that are obviously wrong. The conviction in this case is affirmed, but make no mistake—after it will come the renewed deluge of convictions set aside for no good reason.
McCORMICK, P.J., and KELLER J., join this concurrence.. Tex.Code Crim. Proc. art. 27.03.
. Tex.Code Crim. Proc. arts. 27.08 & 27.09.
. Tex. Const, art. I, § 10.
. See also State v. Sims, 43 Tex. 521 (1875) (indictment also required by Tex. Const, art. V, § 12 to conclude "Against the peace and dignity of the State”).