Cook v. State

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted by a jury of theft over $20,000.00. Tex.Penal Code Ann. § 31.03. Appellant pled “true” to the enhancement allegation and the trial judge assessed punishment at ten years confinement and ordered restitution in the amount of $6,000.00. Tex.Penal Code Ann. § 12.33. The Court of Appeals affirmed. Cook v. State, No. 04-93-00111-CR (TexApp. — San Antonio, January 6, 1994) (Not published). We granted appellant’s petition for discretionary review to determine whether the charging instrument was so deficient as to not invest the trial court with jurisdiction. Tex.R.App.P. 200(c)(6). We will reverse.

I.

We set out the charging instrument below: IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS, the Grand Jury of Bexar County, State of Texas, duly organized, empaneled and sworn as such at the March term, A.D., 1991, of the 186th Judicial District Court of said County, in said Court, at said term, do present in and to said Court that in the County and State aforesaid, and anterior to the presentment of this indictment, and on or about the

1ST day of June 1987, hereinafter referred to as defendant, with intent to deprive the owner, namely: ELIZABETH K. PRICE, of property, namely: LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA said property, said property being other than real property which had A VALUE of Twenty Thousand Dollars ($20,000.00) or more, without the effective consent of the owner;

Before the commission of the offense alleged above, on the 24th day of June, A.D., 1977, in Cause no. CR 3-77-36, in the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AT DALLAS, the Defendant was convicted of the felony of FRAUD IN OFFER OF SALE OF SECURITIES AND MAIL FRAUD.

[Signed by Grand Jury Foreperson]

On direct appeal, appellant contended his conviction was void because the charging instrument was constitutionally deficient because it omitted appellant’s name and omitted the actus reus of the offense. The Court of Appeals, with one justice dissenting, affirmed. Cook, supra. Relying upon Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), the Court held appellant waived the error by failing to object to the charging instrument prior to trial. Cook, slip op. pg. 3. Addressing appellant’s constitutional argument, the court explained:

Only by the most hypertechnical of arguments can it be said that the instrument is not an “indictment.” If appellant had been acquitted, no appellate court would hold that the state could retry him because the instrument was not an indictment and therefore the trial court never acquired jurisdiction. In what sense then can it be said, after a conviction, that the instrument was not an indictment and the trial court did not acquire jurisdiction? For jeopardy *475purposes, it is plain that [appellant] has been convicted and punishment has been assessed for the offense of theft over $20,-000 from [complainant] on June 1, 1987.

Id., at 3-4.

We granted appellant’s petition for discretionary review to determine whether a charging instrument which fails to charge “a person” still constitutes an indictment as contemplated by art. V, § 12(b).

II.

A.

The Texas Constitution guarantees to defendants the right to indictment by a grand jury for all felony offenses.1 Tex. Const, art. I, § 10. See also, James C. Harrington, Our Texas Bill of Rights, 31 (Texas Civil Rights Project 1991). Art. I, § 10 provides in pertinent part:

Rights of accused in criminal prosecutions

In all criminal prosecutions the accused ... shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof ... and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary....

The constitutional requirement that felony offenses be prosecuted by indictment is firmly established. See, King v. State, 473 S.W.2d 43, 47-49 (Tex.Cr.App.1971) (“[T]he requirement that felonies be prosecuted by indictment has been followed in Texas since the outbreak of the revolution against Mexico.”); Hollingsworth v. State, 221 S.W. 978, 979 (Tex.Cr.App.1920); overruled in part, King, supra; Kinley v. State, 29 Tex.App. 532, 16 S.W. 339, 340 (1891); and, Graham v. State, 43 Tex. 550 (Tex.1875). See also, Ex parte Preston, 833 S.W.2d 515, 522 (Tex.Cr.App.1992) (Clinton, J., concurring); and, Acosta v. State, 650 S.W.2d 827, 830 (Tex.Cr.App.1983) (Onion, P.J., concurring).

An indictment serves two functions. First, it provides notice of the offense in order to allow a defendant to prepare a defense. Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Cr.App.1994); Evans v. State, 623 S.W.2d 924, 925 (Tex.Cr.App.1981); Benoit v. State, 561 S.W.2d 810, 813 (Tex.Cr.App.1977); Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975); and, Zweig v. State, 74 Tex.Crim. 306, 171 S.W. 747, 753 (App.1914) (Op on reh’g). See also, 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis, 39 (Texas Legislative Counsel 1977). Second, an indictment serves a jurisdictional function. Labelle v. State, 720 S.W.2d 101, 106 (Tex.Cr.App.1986); Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.1985); and, Drumm v. State, 560 S.W.2d 944, 946-947 (Tex.Cr.App.1977). The filing of an indictment is essential to vest the trial court with jurisdiction over a felony offense. See, King, 473 S.W.2d at 47-49; Ex parte Krarup, 422 S.W.2d 173, 174 (Tex.Cr.App.1967); Melancon v. State, 367 S.W.2d 690, 692 (Tex.Cr.App.1963); Kennedy v. State, 161 Tex.Crim. 303,276 S.W.2d 291, 294 (App.1954) (Op. on reh’g); Hollingsworth, 221 S.W. at 979; Turpin v. State, 86 Tex.Crim. 96, 215 S.W. 455, 456 (App.1919); Turman v. State, 81 Tex.Crim. 320, 196 S.W. 181 (App.1917); and, Lott v. State, 18 Tex.App. *476627 (1885). Jurisdiction vests only upon the filing of a valid indictment in the appropriate court. Tex. Const. Art. V, § 12(b). See also, Crawford v. State, 624 S.W.2d 906, 907 (Tex.Cr.App.1981); and, Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980).

B.

Prior to 1985, this Court consistently held that “substantive” defects in the charging instrument failed to vest the trial court with jurisdiction and, therefore, a conviction on a substantively defective charging instrument could be challenged for the first time on appeal. Studer, 799 S.W.2d at 267; Thompson, 697 S.W.2d at 415; Green v. State, 571 S.W.2d 13, 14-15 (Tex.Cr.App.1978); Ex parte Garcia, 544 S.W.2d 432, 432-433 (Tex.Cr.App.1976); American Plant Food Corp. v. State, 508 S.W.2d 598, 603 (Tex.Cr.App.1974); Pospishel v. State, 95 Tex.Crim. 625, 255 S.W. 738 (App.1923); and, Woodard v. State, 86 Tex.Crim. 632, 218 S.W. 760 (App.1920). This rule developed over more than a century of decisions in which we interpreted art. I, § 10 to create a “constitutional” requirement that a charging instrument allege all elements of the offense in order to constitute an indictment. See, Brasfield v. State, 600 S.W.2d 288, 301-302 (Tex.Cr.App.1980) (Op. on reh’g); and, Williams v. The State, 12 Tex.App. 395, 400-401 (Court of Appeals 1882). See also, George E. Dix, Texas Charging Instrument Law: The 1985 Revisions and the Continuing Need for Reform, 38 Baylor L.Rev. 1, at 13-22 (1986). Accordingly, where the charging instrument omitted an element of the offense the indictment was void and the trial court lacked jurisdiction. See e.g., Gengnagel v. State, 748 S.W.2d 227, 229 (Tex.Cr.App.1988); Thompson, 697 S.W.2d at 415; Ex parte Luddington, 614 S.W.2d 427, 428 (Tex.Cr.App.1981); Brown v. State, 558 S.W.2d 471, 472 (Tex.Cr.App.1977); Ex parte Cannon, 546 S.W.2d 266, 273-274 (Tex.Cr.App.1976); Jones v. State, 388 S.W.2d 716 (Tex.Cr.App.1965); and, Scott v. State, 171 Tex.Crim. 53, 344 S.W.2d 457 (App.1961).

C.

Frustrated with the common practice of defendants withholding substantive defects at trial and then raising them on appeal in order to vitiate the conviction, the Texas Legislature in 1985 proposed an amendment to art. V, § 12 of the Texas Constitution which authorized the Legislature to prescribe by statute the effects of substantive defects in the charging instrument. The amendment provided:

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, including their contents, amendment, sufficiency and requisites are provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

Art. V, § 12(b). In tandem with the constitutional amendment, the Legislature also drafted implementing legislation in the form of an amendment to Tex.Code Crim.Proc. Ann. art. 1.14. Art. 1.14(b) provided in pertinent part:

If the defendant does not object to a defect, error, or irregularity of form or substance in the 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 may no raise the objection on appeal or in any other postconviction proceeding....

Art. 1.14(b) automatically took effect upon the voters approval of the amendment to art. V, § 12. Studer, 799 S.W.2d at 266, n. 3.

The amendment to art. V, § 12 was notable on two grounds. First, by granting to the Legislature the authority to prescribe legislation regulating the procedures and contents of charging instruments, the amendment reversed a century of precedent regarding the constitutional implications of charging instrument defects. Studer, 799 S.W.2d at 289-290 (Clinton, J., concurring).

*477Second, the amendment provided, for the first time in our history, a constitutional definition of an indictment. Art. V, § 12(b) defines an “indictment” as “a written instrument presented to a court by a grand jury charging a person with the commission of an offense.” Art. V, § 12(b). Therefore, to comprise an indictment within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with the commission of an offense. Art. V, § 12(b). See also, Luken v. State, 780 S.W.2d 264, 267 (Tex.Cr.App.1989); and Robert R. Barton, Since 1985, Can An Indictment or Information Be “Fundamentally” Defective for Failing to Charge an Offense?, 25 St. Mary’s L.J. 217, 225-226 (1993).

III.

In Studer, we addressed the second prong of the constitutional definition, namely, the requirement that a charging instrument charge the commission of an offense.2 Following his conviction on a plea of nolo con-tendere, Studer contended for the first time on appeal that his conviction was void because the information omitted an element of the offense. Id., at 264-265.

In a thorough analysis of the legislative history of art. V, § 12(b) and art. 1.14(b) we observed the intent behind the amendments was not to “change what constitutes a substance defect, but rather only its effect” if not raised prior to trial. Id., at 268. Thus, a substantive defect in the charging instrument remains a defect and renders the charging instrument subject to a motion to quash. However, we further noted that because the omission of an element of the offense was “still a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element.” Ibid. Accordingly, we concluded that a charging instrument is not required to allege every element of the offense in order to allege “the commission of an offense” as required by art. V, § 12(b). Id, at 272.

From Studer it follows that with regard to the second prong of the definition for an indictment, a substantively defective indictment is sufficient to vest the trial court with jurisdiction. And in the wake of Studer, we have consistently held a charging instrument is not constitutionally void despite the omission of one or more elements of the offense. Rodriguez, 799 S.W.2d 301, 303 (Tex.Cr.App.1990) (indictment for evading arrest failed to allege defendant knew complainant was police officer who was attempting to arrest him); Ex parte Morris, 800 S.W.2d 225, 227 (Tex.Cr.App.1990) (forgery indictment failed to allege that writing purported to be act of another who did not authorize act); and, Ex parte Gibson, 800 S.W.2d 548, 551 (Tex.Cr.App.1990) (indictment failed to allege date of offense). See also, State v. Murk, 815 S.W.2d 556, 558 (Tex.Cr.App.1991).

IV.

Today we are called upon to decide the question unanswered by Studer: does a charging instrument constitute an indictment within the constitutional definition of art. V, § 12(b) if it completely fails to charge “a person”?

While art. V, § 12(b), through its implementing legislation, art. 1.14(b), “de-constitutionalized” the requirement that an indictment allege every element of the offense, the amendment nevertheless provided a definition for an “indictment” which had heretofore been defined only statutorily. Thus, art. V, § 12(b) established constitutional requisites for a charging instrument to constitute an indictment. To constitute an indictment, the charging instrument must charge: (1) a person, and (2) the commission of an offense. It is clear, however, that if the charging instrument fails to charge a person, then it is not an indictment as required by art. V, § 12(b) and art. I, § 10.

The conclusion that art. V, § 12(b) establishes constitutional requisites for an *478indictment is supported by construing art. V, § 12(b) and art. I, § 10 in accordance with standard rules of constitutional interpretation. As a first step, we attempt to effectuate the intent of the framers of a constitutional amendment, and the voters who approved that amendment. Studer, 799 S.W.2d at 272; City of El Paso v. El Paso Community College District, 729 S.W.2d 296, 298 (Tex.1986); Gragg v. Cayuga Independent School Dist., 539 S.W.2d 861, 866 (Tex.1976); and, Farrar v. Board of Trustees of Employees Retirement System of Texas, 150 Tex. 572, 243 S.W.2d 688, 692 (1952). While art. V, § 12(b) was clearly intended to eliminate the requirement that an indictment charge every element of an offense, it is equally apparent that neither the Legislature nor the voters intended to abrogate the constitutional right to a charging instrument sufficient to constitute an indictment. Studer, 799 S.W.2d at 272, n. 12 (“The right to indictment by a grand jury ... has not been abolished-”). See also, Dix, 38 Baylor L.Rev. at 26, 28-34 (1986) (legislative history indicates legislators did not intend to eliminate necessity of an indictment). Consequently, art. V, § 12(b) cannot be read to dispense with the necessity of filing an “indictment” in the trial court in order to vest the court with jurisdiction and provide notice to the defendant.

When construing constitutional provisions, we are required to interpret the Constitution as a whole, rather than piecemeal. Oakley v. State, 830 S.W.2d 107, 110 (Tex.Cr.App.1992); and, Pierson v. State, 147 Tex.Crim. 15, 177 S.W.2d 975, 977 (App. 1944). Thus, constitutional provisions are not to be examined in isolation from comparable provisions. In Oakley we explained:

... the Constitution must be read as a whole so as to give effect to each and every provision.... No part of the Constitution should be given a construction which is repugnant to express authority contained in another part, if it is possible to harmonize the provisions by any reasonable construction.

Id., 830 S.W.2d at 110 (citations omitted). See also, Clapp v. State, 639 S.W.2d 949, 951 (Tex.Cr.App.1982); Texas National Guard Armory Board v. McCraw, 132 Tex. 613,126 S.W.2d 627, 634 (1939); Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 13, 17 (1931); and, Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 137 (1931). Because art. V, § 12(b) and art. I, § 10 address similar subjects, we are compelled to examine each provision in context and attempt to give effect to both unless they are irreconcilable. Clapp, 639 S.W.2d at 951-952. Comparing art. V, § 12(b) and art. I, § 10, we find they are complementary rather then conflicting. Art. V, § 12(b) should be read in context to art. I, § 10: the latter established the right to an indictment, and the former establishes the constitutional definition for what constitutes an indictment. Although art. V, § 12(b) subsequently authorizes the Legislature to prescribe the requisites and sufficiency of indictments, we do not read this grant of authority so broadly as to authorize the Legislature to prescribe rules which undermine the constitutional definition of an indictment because this would render art. V, § 12(b) internally inconsistent. See, Gallagher v. State, 690 S.W.2d 587, 591-592 (Tex.Cr.App.1985) (“Constitutional provisions will not be construed to be ambiguous or contradictory if such construction is possible.”); and, Clapp, 639 S.W.2d at 951. (“... courts should avoid a construction (of constitutional provisions) which renders any provision meaningless or inoperative and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory.”) Since “[t]he language used (in a constitutional provision) must be presumed to have been carefully selected,” we do not believe the Legislature would provide a constitutional definition of an indictment and then subsequently authorize itself to prescribe statutory rules which undermine that definition. Gallagher, 690 S.W.2d at 592.

Moreover, a construction of art. V, § 12(b) which places the constitutional definition of an indictment within the purview of art. 1.14(b) is problematic because it subjects a constitutional provision to statutory authority. It is fundamental to constitutional and statutory construction that the Legislature lacks the authority to enact a statute *479which conflicts with a provision of the Constitution. In Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944), the Texas Supreme Court expressed this proposition as follows:

The power to make laws is vested through the Constitution in the Legislature.... However, the Legislature does not have the power to enact any law contrary to the provisions of the Constitution. If any law or part thereof, undertakes to nullify the protection furnished by the Constitution, such law, or part thereof, that conflicts with the Constitution is void.

Id., 179 S.W.2d at 273. See also, Maher v. Lasater, 163 Tex. 366, 354 S.W.2d 923, 924-925 (1962); City of Fort Worth v. Howerton, 149 Tex. 614, 236 S.W.2d 615, 618 (1951); Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022, 1024 (1943); Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265, 274 (1932); Cameron v. Connolly, 117 Tex. 159, 299 S.W. 221, 223 (1927); Crabb v. Celeste Independent School District, 105 Tex. 194, 146 S.W. 528, 532 (1912); and, 12A Tex.Jur.3d, Constitutional Law, § 6. “Certainly, a statute cannot override the Constitution.” Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147, 155 (1942). Thus, as Judge Clinton stated in his concurring opinion in Studer: “[The] meaning and import of Article V, § 12(b), insofar as it defines ‘indictment or information,’ is a question for this Court. The Legislature is free to prescribe ‘contents ... sufficiency, and requisites,’ [of an indictment] but only within constitutional parameters."3 Id., 799 S.W.2d at 293 (Clinton, J., concurring). See also, Dix, 38 Baylor L.Rev. at 40-41.

Finally, although we attempt to construe a constitutional provision according to its literal language, we are nonetheless obliged to avoid a construction which renders an absurd or unreasonable result. 16 Am. Jur.2d, Constitutional Law, § 112, p. 464. See also, In re Thoma, 873 S.W.2d 477, 489 (Tex.Rev.Trib.1994); and, Cramer, 167 SW.2d at 155 (“... constitutional and statutory provisions will not be so construed or interpreted as to lead to absurd conclusions ... if any other construction or interpretation can reasonably be indulged in ...”). For instance, in DeDonato v. State, 819 S.W.2d 164 (Tex.Cr.App.1991), Judge Maloney observed that with regard to the art. V, § 12’s provision relating to court jurisdiction,

... a literal reading of article V, § 12(b) could lead to absurd results. If the mere presentment of an indictment could vest jurisdiction in any court, then, absent an objection from the defendant, a capital murder ease could be properly tried in a county court. I cannot believe that such a result was the legislature’s or the voter’s intent.

Id., at 168 (Maloney, J., concurring, joined by Baird and Benavides, JJ.). See also, Marin v. State, 851 S.W.2d 275, 279 (Tex.Cr.App.1993) (“[A] person may not be tried in Texas for a felony offense by the County Court at Law, even if he consents.”).

Similarly, we do not believe a reasonable construction of art. V, § 12(b) permits the conclusion that the constitutional definition of an indictment falls within the purview of art. 1.14(b) because this construction clearly leads to an absurd result. If art. V, § 12(b) subjects all requisites of an indictment to the scope of art. 1.14(b), and hence, to waiver, then we can conceive of no point at which a charging instrument is so deficient as to not constitute an indictment. Clearly, this construction of art. V, § 12(b) would permit a blank sheet of paper to suffice for a valid indictment. We do not believe the Legislature or the voters could have intended this result when approving art. Y, § 12(b). Nor do we believe this construction of art. V, § 12(b) comports with the right to an indictment guaranteed by art. I, § 10.

We therefore hold that the definition of an indictment provided by art. V, § 12(b) establishes constitutional requisites for an indictment. Art. V, § 12(b) does not authorize the Legislature to statutorily change these fundamental requirements. See, Howerton, 236 S.W.2d at 618; and, Dendy, 179 S.W.2d at 273. Accordingly, to constitute an indictment as required by art. I, § 10 and art. V, § 12(b), a charging instrument must at least charge “a person,” with *480the commission of an offense.4 If the charging instrument fails to charge “a person” then it is not an indictment and does not vest the trial court with jurisdiction.5 Moreover, because a valid indictment is essential for jurisdiction, it is not subject to waiver. Crawford, 624 S.W.2d at 907; and, Lackey v. State, 574 S.W.2d 97, 100 (Tex.Cr.App.1978).

V.

In the instant case, the charging instrument wholly failed to charge “a person.” Thus, the charging instrument did not meet the first prong of the constitutional definition of art. V, § 12(b). Consequently, the charging instrument was not an indictment as required by art. V, § 12(b) and art. I, § 10, and did not vest the trial court with jurisdiction. Therefore, appellant’s conviction is void.

The judgment of the Court of Appeals is reversed and we remand this cause to the trial court with instructions to dismiss the prosecution in this cause.6

MANSFIELD, J., joins this opinion with the following note: I join the majority opinion of the Court, agreeing that a charging instrument that fails to charge “a person” is not an indictment as defined by art. V, § 12(b) and art. I, § 10 of the Texas Constitution. I am troubled, however, by the failure of trial counsel to object to the error in the charging instrument prior to trial, given that the error was obvious. Had this been done, a substantial amount of time and resources (both State’s and appellant’s) would have been saved, and justice would have been better served.

WHITE and KELLER, JJ., dissent.

. Almost twenty-five years ago we considered whether the requirement of an indictment was jurisdictional or a right that could be waived. King v. State, 473 S.W.2d 43, 47 (Tex.Cr.App.1971). In today’s common parlance, the constitutional requirement of an indictment may be referred to as a fundamental systemic requirement, which is a right or requirement "so important that [its] implementation is mandatory.” Marin v. State, 851 S.W.2d 275, 280 (Tex.Cr.App.1993). The author of the dissent, who also authored Marin, contends that King holds an indictment is not a fundamental systemic requirement because it is subject to waiver. Post at —, n. 3; slip op. pg. 4, n. 3. But this conclusion is derived from a misreading of King where we held art. I, § 10 is not violated by a defendant's waiver of an indictment under art. 1.141. Id., 473 S.W.2d at 51. However, we further explained that “a felony information acts in lieu of or as a substitute for an indictment and its validity is therefore essential to the court’s jurisdiction.” Id., at 51-52 (emphasis added). See also, Lackey v. State, 574 S.W.2d 97, 100 (Tex.Cr.App.1978). Consequently, King holds that art. 1.141 merely allows the substitution of one type of charging instrument for another, but does not otherwise affect the fundamental systemic requirement that a valid charging instrument be presented in order to vest the trial court with jurisdiction.

. In addressing appellant’s ground for review, we couched the issue as follows: "Does the wording ... ‘An indictment or information is a written instrument ... charging a person with the commission of an offense' mean it is an instrument that alleges all the constituent elements of an offense or something else (specifically something less).” Id., 799 S.W.2d at 266 (emphasis in original).

. All emphasis is supplied by author unless otherwise indicated.

. Perhaps one could argue that the instant charging instrument, by simply stating “the defendant,” charged "a person.” However, such a construction would effectively nullify the constitutional definition of art. V, § 12(b). Rather, we believe art. V, § 12(b) requires that an indictment charge a particular person. This interpretation is consistent with the statutory definition of an indictment provided by Tex.Code Crim. Proc.Ann. art. 21.01: "An indictment is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.”

. We pause to note that we are not addressing a situation where the charging instrument alleges an incorrect name, see, Tex.Code Crim.Proc.Ann. arts. 26.07 and 26.09 (accused is obliged to state true name when charging instrument is read at arraignment), or where the person’s name is unknown and the charging instrument alleges only a physical description, see, Tex.Code Crim. Proc.Ann. art. 21.07 ("... When the name of the person is unknown to the grand jury, that fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment.”). In such cases, the charging instrument is an indictment within the meaning of art. V, § 12(b) because whether erroneously or through a lack of information, the indictment still charges “a person.”

.Appellant’s remaining ground for review is dismissed.