DISSENTING OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge,dissenting.
We granted review on a single question, viz:
“Where the materiality allegation in an aggravated perjury indictment is valid on its face, may a defendant raise a pretrial challenge to the State’s evidence of materiality, and thus require the State to prove materiality prior to trial on the merits?”
The Court ultimately answers in the affirmative, by construing our statutory scheme governing formal pretrial proceedings to reach a result that denies correlative rights for a fair trial to hear and resolve disputed issues by a final judgment of the court. I write to examine and critique the effective ratio decidendi.
I
The declaration in V.T.C.APenal Code, § 37.04(c) that “whether a statement is material in a given fact situation is a question of law,” simply restates prior ease law. Practice Commentary, 4 V.T.C.A. at 52 (1974).1 According to eases early and late, the general rule is that materiality of the matter assigned as perjury is for determination by the judge, and not the jury — unless “so mingled with the facts that the court should submit it, with proper instructions upon the law, to the jury;” otherwise, having found materiality, the court is obliged to instruct the jury that the matter is “material.”2 None suggests the court may determine that issue pretrial, although the motion to set aside, and the exception to substance as well, have been authorized since O.C. 483 and 487, respectively. Section 37.04(c) is a codification of a “long and well established line of cases,” and this Court has accordingly held where there are no facts in controversy the trial court properly instructs the jury that the alleged perjurious statement is “mater-ial.” Yarbrough v. State, 617 S.W.2d 221, at 228 (Tex.Cr.App.1981). See generally Mitchell v. State, 608 S.W.2d 226 (Tex.Cr.App.1980).
A
The issue is whether the court of appeals correctly decided that the pretrial pleadings here served to authorize the trial court to determine conclusively whether an alleged perjurious statement is “material.” State v. Rosenbaum 858 S.W.2d 22, at 24 (Tex.App.—Houston [14th] 1993).3 The opinion of this *943Court on that issue essentially builds on the rationale developed by the court of appeals. Opinion, at 940-41.
After reviewing general jurisdictional powers of a trial court, the court of appeals focused on procedural provisions in Article 28.01, § 1(2) (pleadings of defendant) — thus incorporating a more definitive description in Article 27.02(8) (motions or pleadings permitted by law) — and in Article 28.01, § 1(4) (exceptions to form or substance in charging instrument). It also alluded to certain judicial powers to decide particular matters. Then the court concluded that the motions authorized the trial court to hold the hearing and to make the legal determination that the perjurious testimony was not shown to be “material.” State v. Rosenbaum, supra, at 24. To examine and analyze statutory ingredients forming the basis for its conclusion, I now turn.4
B
Article 28.01, V.A.C.C.P., bestows discretion in a trial court to set a criminal case and to order a sort of “omnibus” pretrial conference and hearing to “determine” certain prescribed matters — a procedural innovation in our practice.5 The statute lacks, as former Presiding Judge Onion early discerned, “de-tañed provisions for the procedure and scope of such [designated matters].” Bosley v. State, 414 S.W.2d 468, at 470 (Tex.Cr.App.1967). Manifestly, Article 28.01 does not ini-tiafiy vest, but presupposes, existing jurisdiction, power and authority to hear and determine any matter prescribed therein; it merely provides an expedient occasion to exercise them contemporaneously at one sitting. Sanctions serve to induce the parties, especially the defendant, timely to prepare and cause to be filed papers raising all germane matters, and to present them at the hearing; failing that the party is precluded from doing so thereafter without leave of court. Id., §§ 1 and 2.
Article 28.01, § 1 does not specifically identify, as a matter to be determined pretrial, “materiality” of a statement añeged to be perjury. Compare, for example, § 1(9) prescribing the defense of “entrapment;” see Taylor v. State, 886 S.W.2d 262 (Tex.Cr.App. 1994). Whether Article 28.01 may be said to provide for resolution of “materiality” of an alleged perjurious statement depends on that which is respectively included in the terms “pleadings of the defendant” and “exceptions *944to the form or substance of the [charging instrument].” Article 28.01, § 1(2) and (4).6
Article 27.02 enumerates eight “pleadings and motions of the defendant” only two of which may have possible application here under the rules, viz:
“(1) A motion to set aside or an exception to [a charging instrument] for some matter of form or substance;
(8) Any other motions or pleadings that are by law permitted to be filed.”
Grounds for a motion to set aside and an exception are expressly prescribed, respectively, by Article 27.03 (set aside), and Article 27.08 (exception to substance).7 A so-called “motion to quash” is the functional equivalent of a motion to set aside. State v. Eaves, 800 5.W.2d 220, at 221, n. 5 (Tex.Cr.App.1990); see Craven v. State, 613 S.W.2d 488, at 489-490 (Tex.Cr.App.1981); see also Kass v. State, 642 S.W.2d 463, at 470 (Tex.Cr.App.1981-1982) (McCormick, J., dissenting). Neither motion by appellee raises a specific statutory ground to set aside or quash the indictment under Article 27.03; nor does either even purport to be an “exception” to the indictment on its face for substantive causes specified in Article 27.08. See State v. Eaves, supra, 800 S.W.2d at 222-223.
As to the category of “other motions or pleadings ... permitted by law” in Article 27.02, item (8), we discerned in State v. Eaves, supra, that in 1965 the Legislature inserted in Article 27.03 (motion to set aside) a preliminary phrase, “In addition to any other grounds authorized by law,” to acknowledge “certain inherent defenses derived from the constitution, i.e., jeopardy and want of jurisdiction.” Id, 800 S.W.2d at 222, n. 6.8 Then when it revised the penal code in 1973 the Legislature also made conforming amendments to the code of criminal procedure; one added item (8) to Article 27.02, another added item (9) (“entrapment”) to Article 28.01, § 1, both presumably to authorize litigating the latter defense pretrial. Acts 1973, 63rd Leg., Ch. 399, at p. 969, and pp. 969-970, respectively. See Taylor v. State, supra. That the Legislature saw a need thus to treat the entrapment defense strongly suggests a legislative understanding of traditional limitations on pretrial determinations of fact-based defensive matters otherwise reserved for resolution at trial.
C
“Materiality” of an alleged perjurious statement is not a statutory defense; it is a *945crucial element of the offense of perjury. There is no indication in any of those germane statutes of legislative intent that the issue of “materiality” in peijury cases is subject to similar pretrial determination. In Article 28.01, § 1 the Legislature separately identified in item (2) pleadings of the defendant (meaning those enumerated in Article 27.02, inter alia, item (1) (motion to set aside and exceptions for matters of substance), and item (8) “any other motions or pleadings [etc]”), and item (4) (exceptions to charging instrument). Since exceptions, as well as a motion to set aside, are also separately prescribed in item (1) of Article 27.02, the Legislature again recognized that item (8) contemplates any motion or pleading other than a motion to set aside and an exception to substance or form. Therefore, the motion to set aside and an exception to substance, is each sui generis, and neither is “any other*’ motion or pleading permitted under the rubric of item (8). Moreover, the code expressly provides procedures and grounds for raising, as well as consequences of determining, a motion to set aside and an exception. See Articles 27.03 and 27.08; 28.01, § 1, items (2) & (4); 28.05 ff. Yet, Article 28.01 is bereft of grounds for and disposition of “any other” motion or pleading presented in reliance solely on Article 27.02, item (8). Even before item (8) was added, former Presiding Judge Onion observed that Article 28.01 lacks provisions detailing procedure for and scope of designated motions, Bosley v. State, supra, at 470; similarly, item (8) itself is silent on that score. Perforce one must look to the underlying law permitting a particular motion on certain grounds to be presented, heard and determined.
While specified grounds for motions to set aside a charging instrument may require certain evidentiary showings, other “grounds authorized” by Article 27.08, like specified exceptions to substance, constitute facial attacks on the charging instrument itself without introduction, examination or consideration of supporting evidence. In either instance, neither Article 27.08 nor Article 27.08 identifies “materiality5’ as a matter that may be raised thereunder.
Appellee structured his pleadings so that as each motion relates to the other he presented to the trial court what is ultimately a motion to set aside (quash) the indictment. See note 3, ante.9 Indeed, based upon his findings and conclusions, the judge so regarded the motions and granted just such relief, i.e. “the allegations of materiality in this indictment are ordered quashed.” Tr. 110; note 3, ante.
II
A
Nonetheless, appellee contends that regardless of caption his motion for pretrial *946determination of materiality” may reasonably be regarded as coming within the purview of the preliminary clause in Article 27.03 or Article 27.02, item (8), and then argues essentially, as did the court of appeals, that trial courts are empowered generally to decide questions of law, and “materiality’ is a question of law. Brief in Response at 4-6. State v. Rosenbaum, supra, 858 S.W.2d at 22. As if anticipating such an argument, the State asserts that just because “materiality” is a question of law does not justify the conclusion that a trial court “properly quashed a facially valid indictment materiality allegation where the State fails to introduce evidence supporting that allegation before trial on the merits.” PDR, at ll.10
1
As previously demonstrated, the Legislature inserted the preliminary clause in Article 27.03 to acknowledge and accommodate facial challenges to a charging instrument on constitutional grounds. See ante at 4. They are “the only exceptions to the statutory rule.” Johnson v. State, 22 Tex.App. 206, 2 S.W. 609, at 612 (1886) and cases cited therein; Woods v. State, 26 Tex.App. 490, 10 S.W. 108, at 109 (1888) (“only other grounds ... to avoid and vacate indictment after its presentment,” quoting Owens v. State, 25 Tex.App. 552, 8 S.W. 658 (1888)). The motion of ap-pellee does not make a facial challenge on exceptive constitutional grounds. For that reason alone his motion does not present a matter determinable pursuant to Article 27.03, and the trial court, having entertained it, still was not empowered to hear and consider evidence going to merits of the motion. Thus the court of appeals fell into error. The Court should so hold, terminate further examination of the question and reverse the judgments of the court of appeals and of the trial court.
The claim of appellee implicates an element of the offense alleged; albeit an ultimate question of law, it must be, and here was, determined from facts germane to that element. See State v. Rosenbaum, supra, 858 S.W.2d at 23, 24. Since the majority believes that at some point the trial judge is expected to hear evidence bearing on “materiality” outside the presence of the jury, it regards propriety of holding a hearing as merely “one of timing.” Opinion, at 939. In my view, however, the real question at the threshold is “one of authority,” viz: whether the motion itself authorized the trial court to convene, conduct and conclude such a pretrial hearing with a determination that the evidence does or does not establish “materiality” as a matter of law, and thus to “quash” an element alleged in the charging instrument. Although my own conclusion ante is that the applicable statutes do not grant any such authority, since the Court persists, so must I.
(M
Appellee also seeks to find authority in Article 27.02, item (8), contending that his pretrial motion is one “by law permitted to be filed.” While any motion may be submitted for filing, the instant motion to “quash” (set aside) this indictment advances a ground that, for reasons shown ante, the law does not permit to be raised, heard on evidence and determined pretrial. And neither appel-lee, the court of appeals nor this Court has *947yet identified the law of this jurisdiction that allows an accused to launch a pretrial attack against a charging instrument on the ground that an element of the alleged offense is insupportable by evidence, so as to put upon the State the burden of proving its elemental allegation by some level of confidence, presumably beyond a reasonable doubt. Compare Article 28.01, item (9) “Entrapment;” see Taylor v. State, supra.
Even a “speaking demurrer” has long since gone the way of the dodo, and is not permitted in this State. International Bank of Commerce v. City of Laredo, 608 S.W.2d 267, at 270 (Tex.Civ.App.—San Antonio 1980), writ dismissed; see Black’s Law Dictionary (Rev.Fourth Ed. (1968) 620. That a pretrial motion to set aside (quash) a charging instrument on the ground that certain allegations are not supportable by testimony and other evidence is equally if not more offensive to fundamental tenets underlying precepts informing rules guiding pretrial procedures in criminal actions in this State. See, e.g., State v. Eaves, supra, 800 S.W.2d at 221-223 (Part II).
Appellee’s motion is in effect an effort to cause the judge to go behind the face of the indictment before trial to see if there is sufficient evidence to support the alleged “materiality” element in the offense of perjury. But it is axiomatic that, other than grand jury irregularities proscribed in Article 28.03, the trial court is to test facial validity of allegations in a charging instrument.11 The Court has consistently refused to look beyond the indictment where analogous “jurisdictional” claims are made by motion to set aside or otherwise. An example is the matter of sufficient proper evidence before the grand jury. Baldwin v. State, 490 S.W.2d 583, at 585 (Tex.Cr.App.1973) (hearsay evidence); Carpenter v. State, 477 S.W.2d 22, at 23 (Tex.Cr.App.1972) (sufficient evidence); Barnes v. State, 134 Tex.Cr.R. 461, 116 S.W.2d 408, at 409 (1938) (insufficient evidence); Bell v. State, 92 Tex.Cr.R. 342, 243 S.W. 1095, at 1096 (1922) (illegal testimony); Edwards v. State, 73 Tex.Cr.R. 380, 166 S.W. 517, at 518 (1914) (character of testimony and quantum of proof); Buchanan v. State, 41 Tex.Crim. 127, 52 S.W. 769 (1890) (privileged testimony does not render indictment defective).
As the Court correctly holds, although the trial court could convene a hearing to entertain both the combined motion to quash and the motion for pretrial determination of “materiality,” the judge “improperly considered evidence beyond the four corners of the indictment” to decide the former. Opinion at 941. It surely follows that the judge also “improperly” considered the same evidence to decide what appellee insists is a motion to set aside (quash) the indictment “within the purview contemplation of Article 27.03 or 27.02[(8).]” Brief in Response at 6. Reasons in our law precluding a trial court from evaluating sufficiency of evidence leading to return of an indictment would equally, if not more, bar a judge before trial from hearing, considering and weighing evidence going to an element of the alleged offense. The statutes authorizing pretrial proceedings do not contemplate a “minitrial” on the merits of allegations made in the charging instrument, much less of a single element of the offense alleged. Unlike unique treatment of the defense of entrapment, the Legislature has not provided the same for an element of an offense.
Ill
A charging instrument returned by a legally constituted grand jury and valid on its face is sufficient to mandate trial of the charge on its merits. Crocker v. State, 573 S.W.2d 190, at 204 (Tex.Cr.App.1978), and *948cases cited therein. An indictment must be facially tested by itself under the law, as a pleading; it can neither be supported nor defeated as such by what evidence is introduced on trial. Brasfield v. State, 600 S.W.2d 288, at 294 (Tex.Cr.App.1980); Ritter v. State, 76 Tex.Cr.R. 594, 176 S.W. 727, 730 (1915); Bourland v. State, supra, n. 11, ante. A fortiori, it can not be supported or defeated by evidence presented at pretrial. For the reasons developed ante, in a pretrial setting there is no constitutional or statutory authority for an accused to raise and for a trial court to determine sufficiency of evidence to. support or defeat an alleged element of an offense sueh as “materiality” in a perjury case.
Because in my judgment the Court grievously errs in torturing our own statutory scheme governing pretrial determinations to conclude otherwise, I must protest its creating the breach that will surely open widely the way to any pretrial determination of underlying facts relevant to all sorts and kinds of “questions of law.”
I dissent.
McCORMICK, P.J., and WHITE and MEYERS, JJ., join this opinion.. All emphasis here and throughout this opinion is mine unless otherwise noted.
. The cases, though legion, predate the 1965 code of criminal procedure and the 1973 penal code, e.g., Donohoe v. State, 14 Tex.App. 638 (1883); Jackson v. State, 15 Tex.App. 579, at 580 (1884); Davidson v. State, 22 Tex.App. 372, 3 S.W. 662, at 665 (1886); Washington v. State, 23 Tex.App. 430, 5 S.W. 119, at 120 (1887); Sisk v. State, 28 Tex.App. 432, 13 S.W. 647, at 649 (1890); Rahm v. State, 30 Tex.App. 310, 17 S.W. 416, at 417 (1891); Foster v. State, 32 Tex.Cr.R. 39, 22 S.W. 21, at 22 (1893); Scott v. State, 35 Tex.Cr.R. 11, 29 S.W. 274 (1895); McAvoy v. State, 39 Tex.Cr.R. 684, 47 S.W. 1000, at 1002 (1898); Luna v. State, 44 Tex.Cr.R. 482, 72 S.W. 378, at 379 (1903); Jones v. State, 76 Tex.Cr.R. 398, 174 S.W. 1071, at 1073 (1915); Martin v. State, 101 Tex.Cr.R. 77, 273 S.W. 855 (1925); Lee v. State, 123 Tex.Cr.R. 32, 57 S.W.2d 123, at 124 (1933); Smith v. State, 158 Tex.Cr.R. 487, 256 S.W.2d 578, at 581 (1953).
.The pretrial pleadings together frame the issue presented by the ground for review, and base the determination by the trial court and the holdings and conclusion of the court of appeals.
Appellee caused first to be filed his “Motion for Pretrial Determination of Materiality of Alleged False Statements.” Tr. 12 ff. He requested a hearing, asserting that a finding that the statements are not material would strip the court of jurisdiction and “the indictment should be dismissed." Ibid. The pleading incorporated by reference his second motion, and prayed for "an evidentiary hearing for pretrial determination of materiality].]” Ibid.
His second motion is styled "Combined Motion to Dismiss or Quash the Indictment and Objection to Materiality of Alleged False Statements.” Tr. 16 If. It contains two sections: "1. The Indictment is Void on Its Face” and "2. Lack of Notice," subsection c. of which is entitled "Mate*943riality.” Following an extensive argument the latter concludes that “the ‘false statements' would not be material, and the Court should so rule as a matter of law.” Ibid. The prayer requests hearing, holding the "false statements” immaterial, and ordering “the indictment dismissed." Id., at 23.
The court, upon hearing evidence, entered an order making findings of fact and conclusions of law determining that the alleged false statements were not material, and accordingly:
"[A]Ilegations of materiality in this indictment are hereby ordered quashed. What remains are allegations accusing the defendant of committing misdemeanor peijury[.]”
Id., 105, at 110.
. All “Articles” cited above and throughout are in the code of criminal procedure unless otherwise indicated.
. Previously the practice was to present authorized motions and pleadings on the day of trial. The rule was, and without an ordered pretrial hearing under the statute still is, that such pretrial motions and pleadings must be presented before an announcement of ready. Wilson v. State, 398 S.W.2d 291, at 293 (Tex.Cr.App. 1966); Bond v. State, 171 Tex.Cr.R. 119, 345 S.W.2d 520, at 523 (1961); Crow v. State, 147 Tex.Cr.R. 292, at 294, 180 S.W.2d 354 (1944). The primary reason for that requirement lies in the purpose and function of the formal pretrial proceeding pursuant to Article 28.01, viz:
"... The purpose of the pre-trial hearing is to enable the judge to dispose of certain matters prior to trial and thus avoid delays during the trial.”
Johnson v. State, 803 S.W.2d 272, at 283 (Tex.Cr. App.1990) (citing Bosley v. State, 414 S.W.2d 468, at 470 (Tex.Cr.App.1967) (procedure designed to dispose of such prescribed matters sometime prior to trial to avoid delays after jurors and witnesses have been summoned); see also Morrison, Interpretative Commentary — 1965 (function to settle all "non-fact issues” prior to trial); Onion, Special Commentary — 1965 (to dispose of motions and matters designated “long prior” to, rather than on, trial date).
. The Court correctly observes that Article 28.01 is not an exhaustive listing of matters that an accused is "entitled” to have determined pretrial, mentioning competency, indigency and bail. Slip opinion, at 12, n. 11. Of course, none amounts to a motion to set aside or an exception to a charging instrument on grounds provided in Article 27.03 and 27.08, respectively.
Where the law permits (or . requires) an accused to raise matters pretrial, his written motion or pleading may well be embraced by Article 27.02, item 8. But for a formal pretrial hearing under Article 28.01, the law permitting or requiring the matter to be raised must at least suggest the pleading and grounds therefor. The Speedy Trial Act comes to mind in that it authorizes “a motion to set aside [a charging instrument]" to achieve “discharge” of accused. Article 32A.02, § 1 and § 3. When others may be heard is at the discretion of the trial court.
. Neither motion in this cause regarding "materiality” may be fairly characterized as an exception to form of indictment within the meaning of any cause listed in Article 27.09, and thus such exception need not be further noticed.
.In Eaves the pleading, styled as an "exception,” alleged that the statute underlying the misdemeanor prosecution was unconstitutional because impermissibly vague and overbroad, thus violative of his rights to due process and due course of law, and prayed that the information be "set aside;” while it did not state a ground precisely specified in either Article 27.03 or 27.08, we concluded that in light of its content and prayer the pleading may be reasonably regarded as coming within contemplation of Article 27.03 (any other grounds authorized by law) or Article 27.02, item (8) (any other motion or pleading permitted by law to filed). Id., 800 S.W.2d at 223-224. (In retrospect, however, to mention the latter was ill-advised since Article 27.02, item (1) includes both a motion to set aside and an exception, making item (8) redundant as to them.)
Because the pleading mounted a facial challenge, the trial court was not called on to hear evidence. Thus defendant was discharged by operation of law from that misdemeanor charge under Article 28.04. Compare result of setting aside an indictment, dictated by Articles 28.05 ff.
. It is true that in his motion for pretrial determination of materiality appellee said the indictment should be "dismissed.” Tr. 12. However, that motion incorporates his combined motion to “dismiss or quash," and while he prays for dismissal of the indictment, the trial court ordered the materiality allegations “quashed," which is the functional equivalent of ordering them “set aside.” State v. Eaves, supra, n. 5.
It must be emphasized that the best (and easiest) practice in pleading and pursuing pretrial matters mentioned in Article 28.01 and related substantive statutes is to adhere to terminology used therein. None authorizes the court to “dismiss” the charging instrument; each has its own prescribed grounds or causes and consequential disposition.
Accuracy in vocabulary enhances effective communication, benefitting the bench and bar. For an unfortunate example, in Article 44.01, providing the State an appeal from certain orders and actions below, in § (a)(1) the Legislature spoke in terms of where an order “dismisses” a charging instrument or, as here, "any portion” thereof. In State v. Eaves, supra, we discussed various pretrial motions and exceptions prescribed in Chapter Twentyseven, and we identified respective consequences of sustaining each one as provided in Chapter Twentyeight; moreover, we pointed out there are "only two situations in which dismissals are authorized," viz: of a prosecution pursuant to Article 32.01; of a criminal action under Article 32.02. Id., 800 S.W.2d at 223 and n. 11. Confronting inappropriate use of the term "dismisses,” to accommodate the legislative intent we translated an order to "set aside” into “dismissal” and took pains to put quotation marks around every variation of the term in holding that the order at issue would constitute a "dismissal” for purposes of the State’s taking an appeal under § (a)(1). See id., 800 S.W.2d at 220, 221, 224.
. The State cites certain federal cases dealing with sufficiency of indictment allegations, PDR at 11-12; this Court also reviews certain federal cases to show that they are consistent with our decisions that sufficiency of the indictment is tested facially, not on evidence, to conclude that the court of appeals erred in holding the trial court properly considered evidence to determine sufficiency of "materialily” allegations raised by appellant's Combined Motion to Quash. Opinion, at 937-38. Moreover, when it comes to the Motion for Pretrial Determination the Court discusses only federal decisions to reject the argument that a trial court may not make a determination of "materialily" as a matter of law from evidentiary facts adduced at a pretrial hearing. Id., at 938-39.
Since our own code of criminal procedure as construed by decisions of the Court delineates the rules bearing on the latter issue, like appel-lee, my resolution pretermits consideration of precedents under federal rules.
. In Bourland v. State, 133 Tex.Cr.R. 544, 112 S.W.2d 720 (1937), the Court explained the rudimentary principle at work, viz:
"An indictment must stand or fall upon the averment found in that document. The evidence may not be looked to in aid [or defeat]
thereof. If so, many indictments good on their faces would be bad in light of the evidence and vice versa; many bad on their faces would be good where the evidence makes out a case if it had been properly pleaded.”
. The victory is temporary because it lasts only until trial. At trial, after jeopardy has attached and the State has lost its right to appeal, the trial judge will again determine the statements were not material and will be forced to instruct a verdict of not guilty to the charge of aggravated perjury. We know this because the trial judge has already made such a determination and that determination was expressly upheld by the Court of Appeals. Rosenbaum, 858 S.W.2d at 24.