Drake Jordan Finch v. State

ACCEPTED
07-15-00104-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
8/25/2015 3:03:14 PM
Vivian Long, Clerk

NO. 07-15-00104-CR

IN THE COURT OF APPEALS FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
FOR THE SEVENTH JUDICIAL DISTRICT
8/25/2015 3:03:14 PM
VIVIAN LONG
AMARILLO, TEXAS CLERK

DRAKE JORDAN FINCH
APPELLANT
VS.

THE STATE OF TEXAS
APPELLEE

APPEAL FROM CAUSE NUMBER CR-14E-072 FROM THE 222ND
JUDICIAL DISTRICT COURT OF DEAF SMITH COUNTY,
THE HONORABLE ROLAND SAUL PRESIDING

BRIEF FOR THE STATE

THE STATE REQUESTS ORAL ARGUMENT IF APPELLANT=S
REQUEST IS GRANTED

Jim English
Criminal District Attorney
State Bar No. 06625280
235 E. Third, Room 401
Hereford, Texas 79045
Telephone: (806) 364-3700
Facsimile: (806) 363-7039
Email: JEnglish@deafsmithcounty.gov
 No. 07-15-00104-CR

IN THE

COURT OF APPEALS
SEVENTH JUDICIAL DISTRICT
AMARILLO, TEXAS

DRAKE JORDAN FINCH
APPELLANT,
V.
THE STATE OF TEXAS
APPELLEE

BRIEF FOR STATE

TO THE HONORABLE SEVENTH COURT OF APPEALS:
The State of Texas, the prosecuting authority in Cause No. CR-14E-072 in the
222nd District Court of Deaf Smith County, Texas, the Honorable Roland Saul, Judge
presiding, respectfully submits this Brief in reply to the Brief of Appellant,
appealing the Judgment of conviction and sentence. Pursuant to Rule 3.2 of the
Texas Rules of Appellate Procedure, the parties will be referred to as Appellant and
State. Citation to the Clerk=s Record will be ACR@ and a page number, while the
citation to the Reporter=s Record will be ARR@ and a volume page and number.
 TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS................................................................................ii

INDEX OF AUTHORITIES...........................................................................iii, iv

SUMMARY OF THE ARGUMENT..............................................................v

RESPONSE TO APPELLANT=S POINT OF ERROR NUMBER ONE.......1

RESPONSE TO APPELLANT=S POINT OF ERROR NUMBER TWO......12

CONCLUSION AND PRAYER.....................................................................13

CERTIFICATE OF COMPLIANCE...............................................................14

CERTIFICATE OF SERVICE........................................................................14

ii
 INDEX OF AUTHORITIES
PAGE

Almanza v. State, 686 S.W. 2d 157, 171 (Tex. Crim. App. 1984)...................8

Brooks v. State, 382 S.W. 3d 601 (Tex. App. - Amarillo 2012, pet. ref=d.).....2, 6, 7

Cook v. State, 902 S.W. 2d 471 (Tex. Crim. App. 1995).................................2

Duron v. State, 956 S.W. 2d 547, 550-551 (Tex. Crim. App. 1997)................2

Harrison v. State, 76 S.W. 3d 537, 539 (Tex. App.-Corpus Christi 2002,
no pet.)...............................................................................................................2

Hutch v. State, 922 S.W. 2d 166, 171 (Tex. Crim. App. 1996)........................8

Kirkpatrick v. State, 279 S.W. 3d 324, 328 (Tex. Crim. App. 2009)...............2

Middleton v. State, 125 S.W. 3d 450, 453 (Tex. Crim. App. 2003).................8

Ngo v. State, 175 S.W. 3d 738, 743, 744 (Tex. Crim. App. 2005)...................8

Patterson v. State, 769 S.W. 2d 938, 941(Tex. Crim. App. 1989)....................3, 4

State v. Moff, 154 S.W. 3d 599, 601(Tex. Crim. App. 2004)...........................2

Taylor v. State, 332 S.W. 3d 483, 490 (Tex. Crim. App. 2011)........................9

Teal v. State, 230 S.W. 3d 172, 179 (Tex. Crim. App. 2007)...........................2

iii
STATUTES

TEX. CODE CRIM. PROC. ANN. Art. 1.14 (b)..............................................1, 3

TEX. CODE CRIM. PROC. ANN. Art. 21.11..................................................3

TEX. CODE CRIM. PROC. ANN. Art. 21.19..................................................3

TEX. CODE CRIM. PROC. ANN. Art. 36.19..................................................8

TEX. PENAL CODE ANN. Sec. 22.02 (b).......................................................4, 7

iv
 SUMMARY OF THE ARGUMENT

The State submits the indictment sufficiently charged Appellant with the first-

degree felony offense of Aggravated Assault with a Deadly Weapon on a Household

Member, and his sentence of forty (40) years confinement was within the range of

punishment. The State further submits Appellant has failed to preserve error by

failing to object to the indictment prior to trial.

In the alternative, if this Court finds jury charge error, Appellant has not

suffered egregious harm because it is clear that any actual harm suffered by

Appellant was minimal after a thorough review of the evidence, the argument of

counsel, the jury charge and the entire record of the trial.

v
 ARGUMENT AND AUTHORITIES

State=s Reply to Point of Error One

Because the indictment charged an aggravated assault with a deadly

weapon on a household member and/or Appellant failed to object before the

date of trial to the alleged defect in the indictment, the judgment of aggravated

assault with a deadly weapon on a household member is not void, and the

sentence is not illegal.

Appellant first contends the judgment convicting him of first-degree felony

aggravated assault is void because the indictment only charged him with a second-

degree felony aggravated assault. Under Appellant=s analysis, it follows that the trial

court=s charge authorized punishment outside the range of punishment for the

offense charged and is, therefore, void.

The State asserts that the indictment provided the trial court and Appellant

notice with sufficient clarity to charge the first-degree felony offense of aggravated

assault with a deadly weapon on a household member. Moreover, if Appellant was

confused about the charged offense, he had a duty to object before the date of trial

1
for purposes of article 1.14(b).1 Since Appellant did not do so, he has forfeited any

right to object to any alleged indictment defects on appeal.

Underlying Law and Analysis

Whether an indictment is sufficient is a question of law that appellate

courts review de novo.2 To constitute an indictment, the Texas Constitution

requires that an indictment allege that 1) a person, 2) committed an offense.3 The

proper test to determine if a charging instrument alleges Aan offense@ is whether the

allegations are clear enough that one can identify the offense alleged.4 Therefore,

so long as the charging instrument provides sufficient clarity and specificity to

identify the penal statute under which the State intends to prosecute, it is

sufficient to confer jurisdiction and to serve as the basis for a valid conviction in

the absence of a motion to quash.5 An indictment must contain the elements of

the offense charged, fairly inform the defendant of charges he must prepare to

meet, and enable the defendant to plead acquittal or conviction in bar to

1
TEX. CODE CRIM. PROC. ANN. Art. 1.14 (b).
2
State v. Moff, 154 S.W. 3d 599, 601(Tex. Crim. App. 2004).
3
Cook v. State, 902 S.W. 2d 471, (Tex. Crim. App. 1995);
Teal v. State, 230 S.W. 3d 172, 179 (Tex. Crim. App. 2007).
4
Teal at 180.
5
Duron v. State, 956 S.W. 2d 547, 550-551 (Tex. Crim. App. 1997).

2
future prosecution for the same offense.6 Courts must now look to an

indictment as a whole, not just to its specific formal requisites

requisites. 7

Article 21.11 of the Texas Code of Criminal Procedure provides:

AAn indictment shall be deemed sufficient which charges commission of the
offense in ordinary and concise language in such a manner as to enable a
person of common understanding to know what is meant; and with that degree
of certainty that will give the defendant notice of the particular offense with
which he is charged, and enable the court, on conviction, to pronounce the
proper judgment;...@8

Article 21.19 provides:

An indictment shall not be held insufficient, nor shall a trial, judgment or other
proceedings thereon be affected, by reason of any defect of form which does
not prejudice the substantial rights of the defendant.9

Article 1.14(b) provides, in pertinent part:

AIf 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

6
Harrison v. State, 76 S.W. 3d 537, 539 (Tex. App.-Corpus Christi 2002, no pet.);
Brooks v. State, 382 S.W. 3d 601, 605 (Tex. App. - Amarillo, 2012, pet. ref=d.).
7
Kirkpatrick v. State, 279 S.W. 3d 324, 328 (Tex. Crim. App. 2009).
8
TEX. CODE CRIM. PROC. ANN. Art. 21.11.
9
TEX. CODE CRIM. PROC. ANN Art. 21.19.

3
 any other postconviction proceeding.@10The Court of Criminal Appeals has
explained the difference between what is meant by the Ause of a deadly
weapon@ and the Aexhibition of a deadly weapon.@11 The Court went on to
explain that one can Ause@ a deadly weapon without exhibiting it, but it is
doubtful one can exhibit a deadly weapon during the commission of a felony
without using it.12

Aggravated Assault is a second-degree felony unless the indictment provides

a defendant with sufficient notice that section 22.02 (b) of the Texas Penal Code

applies, and the evidence proves beyond a reasonable doubt that the allegations are

true. Under these circumstances, a defendant can be convicted of a first-degree

felony aggravated assault.

Appellant was indicted on May 28, 2014, for aggravated assault with a deadly

weapon on a household member, the relevant portions of which included the

following:

Adid then and there intentionally, knowingly or recklessly cause serious bodily
injury to Ruth Simms by striking her or by causing her head to strike an object
or by shaking her, and the defendant did then and there use or exhibit a deadly
weapon, to-wit: his hand or an unknown object, during the commission of said
assault, and the said Ruth Simms was a member of the defendant=s household,
as described by Section 71.005 of the Texas Family CodeY@13

10
TEX. CODE CRIM. PROC. ANN Art. 1.14(b).
11
Patterson v. State, 769 S.W. 2d 938, 941 (Tex. Crim. App. 1989).
12
Id. at 941.
13
CR, 6,9.

4
 In the present case, it is undeniable that the elements of section 22.02 (b) (1)

were included in the indictment. By simply alleging the victim was a household

member in the context of an aggravated assault indictment, the State submits

Appellant was given sufficient notice that he was being charged with a first-degree

felony aggravated assault. Alleging the victim was a household member in a second-

degree felony aggravated assault case serves no purpose since it is unnecessary to

obtain a conviction and does not enhance the punishment range. On the contrary, it

is essential when charging a defendant with a first-degree felony aggravated assault.

It is apparent that by alleging in the indictment the use of a deadly weapon and an

assault which caused serious bodily injury on a household member, the State

intended to charge the first-degree felony of aggravated assault with a deadly

weapon on a household member.

After reviewing the record, the following observations can be made: 1) during

voir dire, the State explained, without objection from Appellant, that Appellant was

charged with the first-degree felony offense of aggravated assault with a punishment

range of five to ninety-nine years or life and an optional fine not to exceed $10,000; 14

2) during opening statements, the State outlined its intent to prove Appellant beat

14
RR, Vol. 3, 24-25.

5
the victim causing her to suffer serious bodily injury and asked the jury to find

Appellant guilty of the charged offense; 15 3) the court=s charge outlined the elements

of the first-degree felony offense of aggravated assault with a deadly weapon on a

household member and two lesser included second-degree felony offenses of

aggravated assault; 16 4) Appellant did not object to the indictment or the jury charge

on guilt or punishment; and 5) Appellant did not object to the punishment verdict.

When the indictment is read in context and in consideration of the subject

matter before the trial court, it is clear Appellant knew he was charged with the first-

degree felony of aggravated assault with a deadly weapon on a household member. 17

Nothing in the record indicates that Appellant was misled or confused or that

Appellant lacked notice of the allegations against him. If Appellant had any question

about what charge he had been asked to defend against or the range of punishment

for said offense, Appellant had ample opportunity, and, in fact, a duty to file an

objection with the court. In the instant case, Appellant never raised an objection to

the indictment or otherwise brought to the attention of the trial court at any time any

alleged defect.

15
RR, Vol. 4, 12-18.
16
CR, 65-66.
17
Brooks v. State, 382 S.W. 3d 601, 606 (Tex. App.-Amarillo 2012, pet. ref=d.).

6
 Appellant focuses on the word Aexhibit@ in the indictment to conclude that the

State only charged him with a second-degree felony aggravated assault. Appellant

conveniently overlooks the language in the indictment that he Aused@ a deadly

weapon to cause serious bodily injury to a household member. Appellant=s analysis

is faulty because he fails to read the entire indictment in context. Instead, Appellant

reads the indictment in a hypertechnical manner which this Court has previously

condemned.18 Appellant attempts to avoid harmful case precedent by claiming there

was no defect of form or substance in the indictment all the while arguing a

substantive defect in the indictment failed to charge a first-degree felony offense of

aggravated assault under article 22.02 (b) (1) of the Texas Penal Code. 19 Appellant=s

issue on appeal is an attempt to avoid the results of failing to object at trial or file a

motion to quash. Having failed to properly object, Appellant has waived any such

objection and failed to preserve his issue for appeal.

Under point of error one, Appellant alludes to a defect in the court=s charge

on guilt as contributing to the alleged illegal sentence he received. 20 The State

submits that since the indictment sufficiently charged Appellant with a first-degree

18
Brooks v. State, 382 S.W. 3d 601, 607 (Tex. App. - Amarillo 2012, pet. ref=d.).
19
Appellant=s brief at 14-15.
20
Appellant=s brief at 17-18.

7
aggravated assault and Appellant forfeited his right to object to the charging

language in the indictment, Appellant has also forfeited his right to complain about

the jury charge which tracked the language in the indictment. However, if this Court

believes there was jury charge error, the State submits there was no egregious harm

to Appellant.

Egregious Error Analysis

An appellate court=s first duty in evaluating a jury charge issue is to determine

whether error exists. 21 If error is found, the appellate court must determine whether

the error caused sufficient harm to require reversal. 22 The degree of harm necessary

for reversal depends on whether the Appellant preserved the error by objection. 23

If no objection was made at trial, reversal is proper only if the error is so

egregious and created such harm that it might be fairly said the defendant did not

have a fair and impartial trial. 24 Egregious harm is a difficult standard to prove and

such determination must be done on a case by case basis.25 The actual degree of

21
Ngo v. State, 175 S.W. 3d 738-743-744 (Tex. Crim. App. 2005).
22
Middleton v. State, 125 S.W. 3d 450, 453 (Tex. Crim. App. 2003).
23
TEX. CODE CRIM. PROC. ANN Art. 36.19; Ngo, 175 S.W. 3d at 743.
24
Almanza v. State, 686 S.W. 2d 157, 171 (Tex. Crim. App. 1984).
25
Hutch v. State, 922 S.W. 2d 166, 171 (Tex. Crim. App. 1996).

8
harm must be assayed in light of the entire jury charge, the state of the evidence, the

argument of counsel, and any other relevant information revealed by the record of

the trial as a whole. 26 Errors which result in egregious harm are those that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

defense theory, or make a case for conviction clearly and significantly more

persuasive. 27

The State asserts that there was no error in the jury charge because the charge

was based on a proper indictment and/or Appellant failed to object to the indictment

before the date of trial. However, if this Court finds otherwise, the State believes the

egregious error standard will apply because Appellant stated at trial that he had no

objection to the jury charge.28

The entire jury charge should be reviewed when determining the actual degree

of harm. In the instant case, the jury charge included an application paragraph for

the first-degree felony offense of aggravated assault with a deadly weapon on a

household member (paragraph 4) and two application paragraphs for the lesser

26
Almanza, 686 S.W. 2d at 171.
27
Taylor v. State, 332 S.W. 3d 483, 490 (Tex. Crim. App. 2011).
28
RR, Vol. 5, 123-124.

9
included second-degree felony offenses of aggravated assault (paragraphs 5 and 6).29

In each of the application paragraphs, the jury was required to find Appellant caused

physical injury to Ruth Simms by striking her, by causing her head to strike an

object, or by shaking her. To find the alleged manner and means, the jury necessarily

had to find a deadly weapon was used, not merely exhibited.

The lesser included application paragraphs included an option where the jury

could have found Appellant guilty of the second-degree felony offense of aggravated

assault by causing serious bodily injury without the use or exhibition of a deadly

weapon and an option where the jury could have found Appellant guilty of

aggravated assault by causing only bodily injury by using or exhibiting a deadly

weapon. By finding Appellant guilty of the first degree felony alleged in the

indictment, it is clear the jury found serious bodily injury was caused by using a

deadly weapon on a household member.

In opening, the State advised the jury that the evidence would show Appellant

severely beat the victim causing a subdural hematoma. 30 The State informed the jury

that the emergency room physician, Dr. Michael Peterson, would testify that the

29
CR 65-66.
30
RR Vol. 4, 12, 17.

10
injuries he observed could have been caused by striking, by causing her head to

strike an object or by shaking, and that a hand or an object can be a deadly weapon

if used to cause a subdural hematoma. 31 Appellant admitted in opening that the

victim was severely injured but suggested to the jury that due to a sloppy police

investigation, it was possible that someone else committed the crime. 32

In closing, the State argued the evidence proved beyond a reasonable doubt

that Appellant was guilty of the crime he was charged with in the indictment and

that a deadly weapon was used in the commission of the offense. 33 The State further

argued the subdural hematoma and the injuries to the victim=s face were caused
34
either by Appellant=s hand or an unknown object. The defense argued Appellant

did not commit the offense, and the evidence was insufficient to prove

Appellant was guilty.35 The defense never argued that a deadly weapon was

not used, that the victim did not suffer serious bodily injury, or that Appellant

31
RR Vol. 4, 16.
32
RR, Vol. 4, 19-21.
33
RR, Vol. 5, 135, 149, 150-152.
34
RR, Vol. 5, 150-151.
35
RR, Vol. 5, 143, 147.

11
was only guilty of one of the lesser included offenses described in the jury charge.

A review of the entire jury charge, the state of the evidence, the argument of

counsel and other relevant information revealed by the record shows that egregious

harm was not committed by including the words Aor exhibit@ in the jury charge. The

alleged error did not affect the defensive theory, and it did not deprive Appellant of

a valuable right. It was incumbent upon Appellant to object to any defect, and his

failure to do so prevents him from arguing this point on appeal. Point of Error One

should be overruled.

State=s Reply to Point of Error Two

Egregious harm did not occur because the verdict was properly based on

an indictment that charged Appellant with aggravated assault with a deadly

weapon on a household member and/or Appellant failed to object to the alleged

defect in the indictment before the date of the trial.

Appellant contends the charge on punishment was egregiously harmful

because it authorized a punishment in excess of that for a second-degree felony. 36

This argument is predicated upon Appellant=s erroneous conclusion that the

indictment only charged Appellant with a second-degree felony aggravated assault.

36
Appellant=s brief at 25-27

12
 The State refers this Court to the arguments under reply to point of error

number one that the indictment was sufficient to charge Appellant with a first-degree

felony aggravated assault and/or appellant has failed to preserve error because of his

failure to object to any alleged defect prior to trial. The State contends that having

shown the indictment sufficiently charged Appellant with a first-degree felony

aggravated assault, Appellant=s basic premise is incorrect. Therefore, Appellant has

not suffered egregious harm, and Appellant=s Point of Error Two should be

overruled.

CONCLUSION AND PRAYER

The State contends Appellant was sufficiently charged with the first-degree

felony offense of Aggravated Assault with a Deadly Weapon on a Household

Member. The State further contends Appellant has failed to preserve error regarding

any defects in the indictment by failing to object to the indictment prior to trial.

Finally, the State submits Appellant did not suffer egregious harm in the punishment

charge because the charge properly set forth the punishment range for a first-degree

felony.

13
 Respectfully submitted,

/s/ Jim English
Jim English
Criminal District Attorney
Deaf Smith County, Texas
235 E. 3rd Rm. 401
Hereford, Texas 79045
Phone: 806-364-3700
Email:JEnglish@deafsmithcounty.texas.gov

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4 (i) (3), I hereby certify that this Brief contains 3149

words.

/s/ Jim English
Jim English

CERTIFICATE OF SERVICE

This is to certify that on this 25th day of August, 2015 a true and correct

copy of the State=s Brief was mailed to John Bennett, Attorney for Appellant,

PO Box 19144, Amarillo, Texas 79114.

/s/ Jim English
Jim English

14
 Page 1

CIPRIANO RAMON ALMANZA, JR., Appellant v. THE STATE OF TEXAS,
Appellee

No. 242-83

COURT OF CRIMINAL APPEALS OF TEXAS

686 S.W.2d 157; 1984 Tex. Crim. App. LEXIS 593

February 8, 1984

SUBSEQUENT HISTORY: [**1] On Rehearing [however], the aggravation feature was
February 27, 1985, Reported at: 686 S.W.2d 157 at 160. disjoined from rape by the word or. Such
constitutes fundamental error. Messenger
PRIOR HISTORY: Petition for Discretionary Review v. State, 638 S.W.2d 883
from the Court of Appeal, Second Supreme Judicial (Tex.Cr.App.1982).
District [Tarrant County].
The cause is reversed and remanded to the
JUDGES: En Banc. Teague, Judge. Miller, Judge, trial court for further proceedings under
concurs. Clinton, Judge, dissents. [**2] this indictment.

OPINION BY: TEAGUE

OPINION
The State has filed a petition for discretionary review
[*159] OPINION ON STATE'S PETITION FOR with this Court, asking us to make the determination
DISCRETIONARY REVIEW whether the above decision of the Court of Appeals is
correct. We have concluded, after the respective parties
The Fort Worth Court of Appeals stated the favored this Court with well written supplemental briefs,
following in Almanza v. State, 645 S.W.2d 885 (Tex.App. as well as making outstanding oral arguments, that the
-- Ft.Worth 1983): decision of the Court of Appeals is in all things correct.

Although many recent opinions have The State's petition for discretionary review was
off-handedly dismissed the changing of improvidently granted. It is therefore ordered dismissed.
'and' in the indictment to 'or' in the court's
charge, such approach is dangerous and CONCUR BY: MILLER
usually fatal in matters where aggravation
or jurisdiction is involved. In the instant CONCUR
cause of aggravated rape the indictment
joined the allegation of threats of death to Miller, Judge
the standard form allegation of rape by the
Although there is merit in the dissenting opinion of
word and. In the court's charge,
 Page 2
686 S.W.2d 157, *159; 1984 Tex. Crim. App. LEXIS 593, **2

Judge Clinton, I concur with the decision of the majority as an appendix to this one, but will [**4] not be
to dismiss the State's petition in this case as published.
improvidently granted because the issue of the
relationship between fundamental error in the court's 1 E.g., Bishop v. The State, 43 Tex. 390 (1875).
charge and error in the court's charge as contemplated by 2 Acts 1897, 25th Leg., ch. 21, p. 17.
Article 36.19, V.A.C.C.P., has not been thoroughly 3 Acts 1913, 33rd Leg., ch. 138, p. 278.
briefed or argued by either the State or the defense. 4 See Doyle v. State, 631 S.W.2d 732, 741-744
Historically the advocacy system has served the judiciary (Tex.Cr.App., 1982) (Concurring Opinion on
well in charting the course of criminal jurisprudence in Motion for Rehearing); Wilson v. State, 625
this state. If we are going to redefine fundamental error S.W.2d 331, 334-335 (Tex.Cr.App., 1981)
vis-a-vis the court's charge to the [**3] jury, as perhaps (Concurring Opinion on Motion for Rehearing)
we should, then let us do so when the issue is properly and Sattiewhite v. State, 600 S.W.2d 277, 279-285
joined, either on motion for rehearing in this case or in a (Tex.Cr.App., 1979) (Opinion on Motion for
future case before the court. Because the dissent would Rehearing).
raise and address the issue sua sponte in this case, I
Several lessons are taught by those historical
concur in dismissing the State's petition.
developments that have been chronicled in my
DISSENT BY: CLINTON unpublished opinion concerning error in a charge of a
trial court to a jury. One is that an alleged error not
DISSENT properly raised and preserved according to Articles
36.14, 36.15 or 36.16, V.A.C.C.P. will not be considered
DISSENTING OPINION ON STATE'S PETITION on appeal unless it presents "fundamental error." Another
FOR DISCRETIONARY REVIEW is that when claimed error has been properly raised,
preserved and brought up on appeal, the judgment shall
CLINTON, Judge not be reversed unless the error [**5] "was calculated to
injure the rights of defendant, or unless it appears from
One reason for granting the petition in this cause was the record that the defendant has not had a fair and
to examine seriously a claim of "harmless fundamental impartial trial," Article 36.19, id. A third is that utilizing
error" in the [*160] charge of the court to the jury, and the tests of Article 36.19 to find "fundamental error"
we ought to pursue that examination to a just end. when an objection was not made before the charge was
read to the jury, as is now so often done on appeal, may
Beginning with Old Code Articles 594-603 and
not be sound.
decisions construing them, 1 I have tracked developments
in the law of fundamental error in a court's charge Accordingly, I do not agree that we improvidently
through legislative amendments of 1897 2 and 1913 3 and granted the State's petition for discretionary review. Still,
judicial opinions thereafter -- more thoroughly than a majority will not redefine the fundamental error
before. 4 That research and conclusions drawn from it doctrine as it applies to a charge of a trial court to a jury.
are contained in an opinion which has been circulated to
all other members of this Court and presented in Therefore, I dissent.
conference. However, it is much too long for publication
as usual. Accordingly that opinion is being handed down
 Page 1

DANIEL EVERETT BROOKS, APPELLANT v. THE STATE OF TEXAS,
APPELLEE

NO. 07-11-00353-CR, 07-11-0354-CR

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

382 S.W.3d 601; 2012 Tex. App. LEXIS 7908

September 18, 2012, Decided

NOTICE: PUBLISH. Indictments > Contents > Requirements
[HN2] See Tex. Const. art. V, § 12.
SUBSEQUENT HISTORY: Rehearing overruled by,
Reconsideration denied by, En banc Brooks v. State, 2012
Tex. App. LEXIS 8834 (Tex. App. Amarillo, Oct. 23, Criminal Law & Procedure > Accusatory Instruments >
2012) Indictments > Contents > Waiver
Petition for discretionary review refused by In re Brooks, [HN3] See Tex. Code Crim. Proc. Ann. art. 1.14(b)
2013 Tex. Crim. App. LEXIS 2 (Tex. Crim. App., Jan. 9, (2005).
2013)
Criminal Law & Procedure > Accusatory Instruments >
PRIOR HISTORY: [**1] Indictments > Contents > Requirements
FROM THE 222ND DISTRICT COURT OF DEAF [HN4] An indictment must contain the elements of the
SMITH COUNTY; NO. CR-11H-099, CR-11H-100; offense charged, fairly inform the defendant of charges
HONORABLE ROLAND D. SAUL, JUDGE. he must prepare to meet, and enable the defendant to
plead acquittal or conviction in bar to future prosecution
LexisNexis(R) Headnotes for the same offense.

Criminal Law & Procedure > Accusatory Instruments >
Indictments > Contents > Sufficiency
Criminal Law & Procedure > Accusatory Instruments >
[HN5] An indictment which alleges all of the requisite
Indictments > Appellate Review
elements of the particular offense in question will not be
Criminal Law & Procedure > Accusatory Instruments >
found to be deficient simply because it fails to precisely
Indictments > Contents > General Overview
track the language of the statute. A court should construe
Criminal Law & Procedure > Appeals > Standards of
the indictment in the context and subject matter in which
Review > De Novo Review > Conclusions of Law
the words are employed. Finally, the construction of an
[HN1] Construction of an indictment is a matter of law
indictment be done by reading the indictment as a whole
that an appellate court reviews de novo.
and by practical rather than technical considerations.

Criminal Law & Procedure > Accusatory Instruments >
Criminal Law & Procedure > Accusatory Instruments >
 Page 2
382 S.W.3d 601, *; 2012 Tex. App. LEXIS 7908, **1

Indictments > Contents > Sufficiency [*602] Appellant, Daniel Everett Brooks, appeals
[HN6] In interpreting the changes to Tex. Const. art. V, § his convictions for felony assault1 in trial court number
12 and Tex. Code Crim. Proc. Ann. art. 1.14(b) (2005) CR-11H-099, appellate cause No. 07-11-00353-CR.
regarding whether the indictment in question charges an Appellant also appeals his conviction for sexual assault2
offense, the question is whether the allegations in it are in Count I of trial court number CR-11H-100 and
clear enough that one can identify the offense alleged. aggravated sexual assault3 in Count II of trial court
Stated another way, can the trial court (and appellate number CR-11H-100, appellate cause No.
courts who give deference to the trial court's assessment) 07-11-00354-CR. After hearing the evidence regarding
and the defendant identify what penal code provision is punishment, the jury assessed appellant's punishment at
alleged. ten years for the felony assault, twenty years for the
sexual assault, and fifty years for the aggravated sexual
assault. Appellant has perfected his appeal and by six
Criminal Law & Procedure > Accusatory Instruments > issues contends that 1) the judgment of conviction for
Indictments > Contents > Sufficiency aggravated sexual assault is void, 2) appellant's right to a
[HN7] Texas courts have long-recognized the sensible jury trial on the charge of sexual assault was violated, 3)
proposition that incorrect grammar, bad spelling, bad appellant suffered egregious harm when the trial court's
hand writing, the use of words not technically in their charge to the jury was for the offense of aggravated
correct sense or places will none of them make an sexual assault, 4) appellant suffered egregious harm
indictment bad unless same causes the thing intended to because the jury charge permitted a guilty verdict on an
be charged, to lack sense or certainty. Indeed, the Court [**2] invalid theory of guilt, 5) the judgment in No.
of Appeals of Texas has recognized this "sensible 07-11-00354-CR allowed an improper cumulating of the
proposition" when it concluded that appellant was given fines assessed, and 6) the evidence was insufficient to
specific notice by an indictment in which a comma support the order for appellant to pay the fees of his court
placed after the last name in a series separated it from the appointed attorney. We affirm the judgment as
verb following. hereinafter modified.

1 See TEX. PENAL CODE ANN. § 22.01(a)(1) &
Criminal Law & Procedure > Criminal Offenses >
(b)(2)(A) (West 2011).
Crimes Against Persons > General Overview
2 Id. § 22.011(a)(1)(A) (West 2011).
[HN8] Tex. Penal Code Ann. § 22.021(a)(2)(A) provides
3 Id. § 22.021(a)(2)(A)(ii), (iii) (West Supp.
two methods of demonstrating conduct that elevates the
2012).
offense to an aggravated offense: (ii) by acts or words
that places the victim in fear that death, serious bodily Factual and Procedural Background
injury, or kidnapping will be imminently inflicted on any
person; (iii) by acts or words occurring in the presence of Appellant was indicted by two separate indictments
the victim threatens to cause the death, serious bodily that alleged he committed the offense of felony assault in
injury, or kidnapping of any person. No. 07-11-00353-CR and two counts of aggravated
sexual assault in No. 07-11-00354-CR.4 The incident that
COUNSEL: John Bennett, Attorney at Law, Amarillo, led to the indictments occurred between 11:30 P.M. on
TX. August 14, 2010, and approximately 6:30 A.M. on
August 15, 2010. The State initially indicted appellant in
Chris Strowd, Assistant Criminal District Attorney,
two indictments. One alleged the offense felony assault in
Hereford, TX.
original [*603] indictment CR-101-105 and two counts
of aggravated sexual assault in original indictment
JUDGES: PANEL A. Before CAMPBELL and
CR-101-106, both indictments having been returned on
HANCOCK and PIRTLE, JJ.
September 22, 2010. Appellant filed a waiver of
arraignment in trial court number CR-101-1065 and
OPINION BY: Mackey K. Hancock
entered a plea of "Not Guilty" to the indictment. [**3]
The waiver of arraignment in CR-101-106 signed by
OPINION
appellant and filed with the court stated, "[Appellant] and
 Page 3
382 S.W.3d 601, *603; 2012 Tex. App. LEXIS 7908, **3

his attorney do hereby acknowledge awareness and The caption on the indictment at issue states that the
understanding of the charge(s) against [Appellant], offenses in Count I and Count II of the indictment are
to-wit: aggravated sexual assault." aggravated sexual assault. At a pretrial hearing on August
11, 2011, at the State's request and with appellant's
4 We will refer to the cases by their appellate agreement, the trial court carried forward all of the
court numbers throughout this opinion. previously entered orders on the motions filed in the
Appellant's issues relate to his convictions for original cause numbers. The case then commenced to
sexual assault and aggravated sexual assault in trial on August 15, 2011.
cause No. 07-11-00354-CR.
5 CR-101-106 was the original indictment During voir dire, both the State and appellant
alleging two counts of aggravated sexual assault. discussed the nature [**5] of the case. The record reveals
that the prospective jury was told that the charges against
The trial court conducted pretrial hearings on appellant were two counts of aggravated sexual assault
February 2, 2011, and on March 10, 2011. Of import to and a separate indictment for felony assault. Appellant's
our later discussion is the fact that, at neither hearing did trial counsel went into some detail regarding the first
appellant complain about the indictments that were then count of aggravated sexual assault. After the jury was
pending against him. Subsequently, on August 2, 2011, selected and appellant had entered a plea of "Not guilty"
the State reindicted appellant and filed two new to the indictments, the State presented its opening
indictments alleging the same offenses. As pertinent to statement. In this opening statement, the State again
this opinion, the indictment in No. 07-11-00354-CR outlined the evidence it intended to present to prove
alleged in relevant parts: appellant guilty of two counts of aggravated sexual
assault. During appellant's opening statement, trial
counsel presented a theory that what occurred was
consensual. At no time did appellant's trial counsel object
C0UNT I Daniel Everett Brooks on or that the indictment only charged appellant with the
about the 15th day of August, 2010, did offense of sexual assault.
then and there intentionally or knowingly
cause the penetration of the anus of R.E. [*604] At the conclusion of the evidence, the trial
by a wooden handle, without the consent court prepared its charge to the jury. The court's charge
of [**4] R.E., and the defendant did then sets forth the charges of two counts of aggravated sexual
and there by acts or words threaten to assault with the lesser included offense of sexual assault
cause or place, R.E. in fear that death or as to each count. The record reveals that appellant did not
serious bodily injury would be imminently object to the submission of the charge on the two offenses
inflicted on R.E., and said acts or words of aggravated sexual assault. During [**6] closing
occurred in the presence of R.E. argument, appellant's trial counsel argued that the case
was one of consensual sexual contact.
COUNT II
After hearing the evidence, the jury convicted
And it is further presented in and to appellant of sexual assault in Count I of the indictment
said Court that on the 15th day of August, and aggravated sexual assault in Count II of the
2010, the [appellant] did then and there indictment. Further, the jury also convicted appellant of
intentionally or knowingly cause the felony assault. After hearing the evidence regarding
penetration of the sexual organ of R.E. by punishment, the jury sentenced appellant to confinement
[appellant's] sexual organ, without the in the Institutional Division of the Texas Department of
consent of R.E., and the [appellant] did Criminal Justice, (ID-TDCJ) for a period of ten years in
then and there by acts or words threaten to 07-11-00353-CR, twenty years in Count I of
cause or place, R.E. in fear that death or
07-11-00354-CR, and fifty years in Count II of
serious bodily injury would be imminently 07-11-00354-CR. In each sentence, the jury assessed a
inflicted on R.E., and said acts or words fine of $10,000. The trial court entered judgment in each
occurred in the presence of R.E. case to include the $10,000 fine. No motion for new trial
 Page 4
382 S.W.3d 601, *604; 2012 Tex. App. LEXIS 7908, **6

was filed by appellant. Appellant gave notice of appeal, The requirements for an indictment are located in
and this appeal follows. Article V, section 12 of the Texas Constitution:

Through six issues, appellant contests his [*605] [HN2] An indictment is a
convictions. Appellant contends that the indictment in written instrument presented to a court by
Count II of No. 07-11-00354-CR charges only the a grand jury charging a person with
offense of sexual assault and therefore, through four commission of an offense. An information
issues, asserts that the judgment is void. In the is a written instrument presented to a court
alternative, he contends that because the jury returned a by an attorney for the State charging a
verdict of guilt [**7] "as alleged in the indictment," his person with the commission of an offense.
right to a jury trial was violated. In the further alternative, The practice and procedures relating to the
he maintains he suffered egregious harm by the use of indictments, including their
submission to the jury of aggravated sexual assault. And, contents, amendments, sufficiency and
finally, in the further alternative, he argues that the jury requisites are provided by law. The
charge caused egregious harm to appellant by permitting presentment of an indictment or
a guilty verdict on an invalid theory of guilt. Appellant's information [**9] to a court invests the
fifth issue contends that the judgment in No. court with jurisdiction of the case.
07-11-00354-CR improperly cumulates the fines.
Appellant's sixth issue contends the evidence was TEX. CONST. art. V, § 12. In addition to the constitutional
insufficient to sustain the requirement that appellant pay requirement regarding an indictment, the Texas Code of
for his appointed attorney. We will modify the judgment Criminal Procedure provides, in pertinent part:
in cause No. 07-11-00354-CR and affirm the judgments [HN3] If the defendant does not object
of the trial court as modified. to a defect, error, or irregularity of form or
substance in the indictment or information
Indictment before the date on which the trial on the
merits commences, he waives and forfeits
Appellant's first three issues all revolve around the
the right to object to the defect, error, or
central contention that Count II of the indictment in No.
irregularity and may not raise the
07-11-00354-CR could be read to charge only sexual
objection on appeal or in any
assault. We will review these three issues together.
postconviction proceeding. . . .
Initially, we observe that appellant is adamant that he is
not challenging the sufficiency of the indictment. Rather,
See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West
he challenges the verdict rendered by the jury upon the
2005).6
charge submitted by the trial court. In essence, appellant's
first contention [**8] is that the judgment convicting him 6 Further reference to the Texas Code of
of a first-degree felony of aggravated sexual assault is Criminal Procedure Ann. will be by reference to
void because the indictment only charged him with "Article ," "article ," or "art. ."
sexual assault. It follows, under appellant's analysis, that
the trial court's charge authorized punishment outside the Analysis
range of punishment for the offense charged and is,
accordingly, void. However, from the perspective of the These provisions of the law have been the subject of
Court, we must first review the indictment in question to numerous cases before the appellate courts in Texas.
ascertain to what charge appellant was asked to answer. From these cases, we can glean some guidance. In
Harrison v. State, 76 S.W.3d 537, 539 (Tex.App.--Corpus
Standard of Review Christi 2002, no pet.), the Corpus Christi court pointed
out that [HN4] an indictment must contain the elements
[HN1] Construction of an indictment is a matter of
of the offense charged, fairly inform the defendant of
law that we review de novo. See State v. Moff, 154 charges he must prepare to meet, and enable the
S.W.3d 599, 601 (Tex.Crim.App. 2004). defendant to plead [**10] acquittal or conviction in bar
to future prosecution for the same offense. How, then, do
Applicable Law
 Page 5
382 S.W.3d 601, *605; 2012 Tex. App. LEXIS 7908, **10

we view the language of Count II of the indictment in of the Texas Constitution and article 1.14(b) regarding
No.-07-11-00354-CR? whether the [**12] indictment in question charges an
offense: the question is "whether the allegations in it are
Appellant specifically challenges the following clear enough that one can identify the offense alleged."
portion of the indictment: Id. at 180. The court then added, "Stated another way:
Can the trial court (and appellate courts who give
"[appellant] did then and there by acts or deference to the trial court's assessment) and the
words threaten to cause or place, R.E. in defendant identify what penal code provision is alleged?"
fear that death or serious bodily injury Id. The court then analyzed the indictment and pointed
would be imminently inflicted on R.E., out that, although the indictment was missing the
and said acts or words occurred in the required mens rea--that appellant knew the person he was
presence of R.E. assisting was a felony fugitive--the indictment clearly
stated that the subject was a fugitive for the offense of
He contends that we must take a very technical view and, failure to register as a sex offender, which is a felony. Id.
therefore, because of the perceived grammatical error in at 182. The court concluded that the indictment, while
the placement of a comma, we must conclude that the defective in certain aspects, was clearly sufficient to
indictment charged only sexual assault and not charge an offense and that "one could fairly conclude
aggravated sexual assault. The State, on the other hand, from the face of the charging instrument that the State
simply says that this is a belated objection to the intended to charge a felony offense." Id. After finding
indictment that has been waived because the same was that, in the case before it, the indictment when read as a
not made before the trial commenced. See art. 1.14(b). whole was sufficient to vest the district court with subject
matter jurisdiction and give the defendant notice of the
Even before the amendments to Article V, section 12 offense the State intended to prosecute defendant [**13]
of the Texas Constitution in 1985 and the amendment to for, the court pointed out that, if appellant was unsure of
article 1.14(b), in Oliver v. State, 692 S.W.2d 712, 714 the offense, he should have challenged the indictment
(Tex.Crim.App. 1985), the Texas Court of Criminal before trial commenced. Id.
Appeals stated that [HN5] "an indictment which alleges
all of the requisite elements of the particular offense Following Teal, the Texas Court of Criminal
[**11] in question will not be found to be deficient Appeals again addressed a situation where indictments
simply because it fails to precisely track the language of purported to charge a felony but, on the face of the
the statute." The court went on to point out that we indictments, only alleged misdemeanor offenses. See
should construe the indictment in the context and subject Kirkpatrick v. State, 279 S.W.3d 324, 326 (Tex.Crim.App.
matter in which the words are employed. Id. Finally, the 2009). In Kirkpatrick, the court considered the general
court directed that the construction of an indictment be question of whether the indictments at issue were
done by reading the indictment as a whole and by sufficient to allege a felony offense and thereby vest the
practical rather than technical considerations. Id. district court with jurisdiction.7 Id. In analyzing the facts,
as pertinent to the questions presented, the court pointed
[*606] What does it mean to construe an indictment out that appellant in the case had been put on notice of
in the context and subject matter in which the words are the intent by the State to charge a felony. Id. at 329.
employed? Id. First, in the case of Teal v. State, 230 Specifically, the face of each indictment contained the
S.W.3d 172, 173 (Tex.Crim.App. 2007), the Texas Court heading: "Indictment--Tampering with a Governmental
of Criminal Appeals dealt with a case which attempted to Record 3rd Degree Felony, --TPC § 37.10(a)." Id.
charge the felony offense of hindering apprehension Therefore, according to the court, the appellant had
under section 38.05 of the Texas Penal Code; yet the adequate notice that she was charged with a felony. Id. If
indictment failed to allege that appellant knew that the she had been confused about the charge, appellant could
person whose apprehension he hindered was a fugitive [*607] have, and should have, objected to the defective
for a felony offense. Teal contended that the indictment indictment before the date [**14] of trial. Id.
only alleged a misdemeanor offense. Id. In writing for the
court, Judge Cochran summed up the court's position 7 The Court of Criminal Appeals granted the
[HN6] in interpreting the changes to Article V, section 12 State's petition for discretionary review on three
 Page 6
382 S.W.3d 601, *607; 2012 Tex. App. LEXIS 7908, **14

grounds. as to both Count I and II of the indictment, and 10)
appellant did not object to the charge. When this
indictment is read in context and in consideration of the
1) Did the Court of Appeals err subject matter before the trial court, it is clear that
by concluding that the district appellant knew that he was charged with two counts of
court did not have subject-matter aggravated [**16] sexual assault. See Oliver, 692 S.W.2d
jurisdiction? at 714. Appellant invites this Court to read the indictment
2) Where an offense can be at issue in a hypertechnical manner without considering
charged as either a felony or a the context or subject matter of the indictment. Id.
misdemeanor, does the return of Further, it is equally clear that, if appellant had any
the indictment into a court with question about what charge he had been asked to defend
subject-matter jurisdiction of only against, it was incumbent on appellant to file an objection
the felony offense indicate the with the court. See Kirkpatrick, 279 S.W.3d at 329.
State's intent to charge the felony Having failed to do so, appellant has waived any such
offense? objection. Art. 1.14(b). Appellant's issue is simply an
3) Is ambiguity or confusion attempt to avoid the results of failing to object or filing a
about the particular offense that motion to quash. Accordingly, we reach the conclusion
has been charged [sic] the type of that the indictment in question in No. 07-11-00354-CR
objection to an indictment that charged appellant with two counts of aggravated sexual
must be raised by a defendant prior assault.
to the date of trial?
Appellant relies on the case of Thomason v. State,
892 S.W.2d 8 (Tex.Crim.App. 1994), for the proposition
When we analyze the indictment under consideration that when an indictment facially charges a complete
in light of the opinions of the Texas Court of Criminal offense the intent of the State to charge a different
Appeals, we make the following observations: 1) the offense is immaterial. Id. at 11. Thomason dealt with an
indictments were intended to charge the offenses of indictment alleging felony theft of at least $20,000;
aggravated sexual assault, 2) the caption of the however, the indictment contained no language that
indictments contained language that indicated Counts I would aggregate the theft. Id. at 9. The evidence
and II were charging appellant with the crime of produced [**17] at trial showed that appellant had
aggravated sexual assault, 3) appellant filed a waiver of procured a total of ten checks, eight of which were in
arraignment to the original indictment acknowledging excess of $20,000. Id. at 10. At the conclusion of the
that he was indicted for the offense of aggravated sexual State's case in chief, appellant filed a request to require
assault in Counts [**15] I and II of the prior indictment, the State to elect which check it sought to obtain a
4) the subsequent indictment did not materially change conviction on, and the trial court denied the request. Id.
the charge, 5) the face of the reindictment again reflected The Texas Court of Criminal Appeals subsequently
that appellant was charged with two counts of aggravated reversed the judgment and remanded the case for the
sexual assault, 6) at the pretrial hearing on the new intermediate appellate court to consider appellant's
indictments on August 11, 2011, by the agreement of remaining issues. Id. at 12.
both parties, all previous rulings and motions were
carried forward to the reindicted cause numbers, to When considering the Thomason case in the
include appellant's acknowledgement that he was charged Kirkpatrick opinion, the Texas Court of Criminal Appeals
with two counts of aggravated sexual assault, 7) during pointed out that Thomason was factually distinguishable
voir dire, the State explained, without objection from for two reasons, only one of which is important [*608] to
appellant, that appellant was charged with the offense of our consideration. Kirkpatrick, 279 S.W.3d at 327. The
aggravated sexual assault, 8) during opening statements, court pointed out that appellant in Thomason had directed
the State outlined its proposed evidence and ended with the trial court's attention to the error by his motion to
asking the jury to convict appellant of two counts of require the State to elect which check it desired to convict
aggravated sexual assault, 9) the court's charge outlined appellant on. Id. In Kirkpatrick, this fact was enough to
the elements of the offense of aggravated sexual assault distinguish Thomason from the case before the court. Id.
 Page 7
382 S.W.3d 601, *608; 2012 Tex. App. LEXIS 7908, **17

For the same reasons, the facts of Thomason are concluded that appellant was given specific notice by an
distinguishable from the case before the Court and, [**20] indictment in which a comma placed after the last
Thomason does not dictate the result appellant would name in a series separated it from the verb following.
[**18] have us reach. Childress v. State, 807 S.W.2d 424, 431
(Tex.App.--Amarillo 1991, no writ) (citing Westbrook,
Further, appellant cites this Court to Harris v. State, 227 S.W. at 1105); see Hogue v. State, 711 S.W.2d 9, 14
359 S.W.3d 625, 629 (Tex.Crim.App. 2011), and Pruett v. (Tex.Crim.App. 1986), cert. denied, 479 U.S. 922, 93 L.
State, 685 S.W.2d 411, 413 (Tex.App.--Austin 1985, pet. Ed. 2d 301, 107 S. Ct. 329 (1986) ("fail[ing] to see how
ref'd), for the proposition that we must view this the wording of the indictment, although not
indictment in light of the rules of grammar in making our grammatically correct, misled or confused appellant");
determination about what the indictment charges. Malagon v. State, No. 05-97-01530-CR, 1999 Tex. App.
However, appellant takes these cases further than their LEXIS 6924, *12-13 (Tex. App.--Dallas Sept. 13, 1999,
respective holdings would indicate. First, Harris is a no pet.) (observing, simply, that "[a] misplaced comma
statutory construction case and, while on its face it does does not alone nullify an indictment"). Nothing in the
seem to stand for the proposition appellant cites it for, the record before us indicates that appellant was misled or
fact that it is involving the question of interpretation of a confused by the misplaced comma or that, as a result of
statute distinguishes it from our situation. Harris holds it, appellant lacked notice of the allegations against him.
that in construing a statute, we must "seek to effectuate
the 'collective' intent or purpose of the legislators who [*609] Having determined that appellant was
enacted the legislation." Harris, 359 S.W.3d at 629 charged by indictment in No. 07-11-00354-CR with the
(quoting Boykin v. State, 818 S.W.2d 782, 785 offense of aggravated sexual assault, we overrule
(Tex.Crim.App. 1991)). Boykin makes clear that the appellant's first issue. The verdict of the jury-guilty as
reason we must focus our attention in a statutory charged in the indictment-convicted appellant of the
construction case on the precise language and literal text offense of aggravated sexual assault, and the punishment
of the statute is because the Texas Constitution delegates assessed was within the range of punishment [**21] for
the lawmaking function to the Legislature while the convicted offense.
assigning the law interpreting [**19] function to the
Judiciary. Boykin, 818 S.W.2d at 785 (citing Tex. Const. Because of our holding regarding the reading of the
art. II, § 1). The case before us is not a statutory indictment, appellant's right to a jury trial upon the return
construction case; accordingly, appellant's citation to of a verdict of guilty as charged in the indictment was
Harris is not controlling. Regarding appellant's reliance met because the indictment did charge appellant with
on Pruett, we note that Pruett was a pre-1985 aggravated sexual assault. Appellant's second issue is
Constitutional amendment case and, in the final analysis, overruled.
even without the amendment to Article V, § 12 of the
Appellant next contends that he suffered egregious
Constitution, the court held that when applying the rules
harm by the submission to the jury of the offense of
of grammar and making a common sense reading of the
aggravated sexual assault. This argument is predicated
charging instrument, the information was not
upon appellant's erroneous assumption that the
fundamentally defective. See Pruett, 685 S.W.2d at 413.
indictment did not charge that offense. Again, having
Accordingly, we do not find these cases to carry the day
determined that the indictment in No. 07-11-00354-CR
as appellant would direct.
was sufficient to charge that offense, appellant's basic
To the contrary, [HN7] Texas courts have premise is incorrect and, therefore, appellant has not
long-recognized "the sensible proposition that incorrect suffered any egregious harm. Appellant's third issue is
grammar, bad spelling, bad hand writing, the use of overruled.
words not technically in their correct sense or places will
Invalid Theory of Guilt
none of them make an indictment bad unless same causes
the thing intended to be charged, to lack sense or Appellant's fourth issue contends that he suffered
certainty." Westbrook v. State, 88 Tex. Crim. 466, 227 egregious harm because the court's charge permitted him
S.W. 1104, 1105 (Tex.Crim.App. 1921). Indeed, this to be convicted on an invalid theory of guilt. Here, he
Court has recognized this "sensible proposition" when it offers an alternative reading based on comma placement:
 Page 8
382 S.W.3d 601, *609; 2012 Tex. App. LEXIS 7908, **21

the jury charge, which mirrors the language of the indictment: "did then and there by acts or words threaten
indictment, may be read to allege one manner of to cause or place, R.E. in fear that death or serious bodily
committing aggravated sexual assault, but it should also injury would be imminently inflicted on" her. While this
[**22] be read to allege conduct that is not defined as a may not be a model of drafting, we remain convinced that
criminal act. Appellant further posits that since the the charge, as did the indictment, alleges the requirements
verdict was a general verdict, and even if we have read of subsections (ii) and (iii). See id.
the indictment to charge aggravated sexual assault, a
valid theory of guilt, there is no way to ascertain whether To support appellant's position, [**24] he cites the
appellant was convicted under a valid theory of guilt. Court to Hammock v. State, 211 S.W.3d 874, 876
This leads appellant to contend that we must reverse the (Tex.App.--Texarkana 2006, no pet.). Hammock involved
judgment and remand the case for another trial. an accusation that the defendant possessed certain
chemicals with intent to manufacture methamphetamine.
Appellant couches his fourth issue as "a further Id. at 875. The indictment at issue listed the chemicals
alternative to Issue One." Issue one contended that the that the defendant was accused of possessing. Id.
indictment in question only charged the offense of sexual However, of the six chemicals alleged, the possession of
assault and not the offense of aggravated sexual assault. only three was criminalized. Id. at 876. The charge
For the reasons stated in the section regarding the submitted all of the chemicals at issue and explicitly
indictment, we have previously found that the indictment allowed conviction on a finding that appellant possessed
in question did allege the offense of aggravated sexual chemicals the possession of which were not criminalized.
assault. His fourth issue is founded on the reading of the Id. Only if we accept appellant's proposed reading of the
language in the jury charge that, based on his jury charge are we facing a Hammock issue. We have
interpretation of the comma placement, permitted him to already rejected that proposition. Accordingly, appellant's
be convicted of aggravated sexual assault if the jury fourth issue is overruled.
found that appellant placed the victim in the requisite fear
or "threaten[ed] to cause" such fear, the latter not being a Cumulating of Fines
valid theory of guilt. However, appellant's [**23]
Appellant's fifth issue contends that the judgment in
alternate reading is also grounded in a hypertechnical
No. 07-11-00354-CR improperly cumulates the fines.
construction, based upon a perceived error in the
The record reflects that appellant was convicted of felony
placement of a comma. We have previously rejected
assault in No. 07-11-00353-CR and sentenced to
appellant's general approach.
confinement for ten years in the ID-TDCJ and to pay a
[HN8] Texas Penal Code section 22.021(a)(2)(A), as fine of $10,000. Additionally, in No. 07-11-00354-CR,
applicable in this case, provides two methods of the record reflects that appellant was found guilty in
demonstrating conduct that elevates the offense to an Count I of [**25] sexual assault and sentenced to 20
aggravated offense: years confinement and a fine of $10,000. Further, the
record reflects that appellant was found guilty of
(ii) by acts or words that places the aggravated sexual assault in Count II and sentenced to 50
victim in fear that death, serious bodily years confinement in the ID-TDCJ and a fine of $10,000.
injury, or kidnapping will be imminently The sentences are to be served concurrently, yet appellant
inflicted on any person; is ordered to pay all of the fines. The State has candidly
admitted that the fines in No. 07-11-00354-CR have been
(iii) by acts or words occurring in the improperly cumulated and, as such, should be omitted.
presence of the victim threatens to cause Accordingly, we will modify the judgment in No.
the death, serious bodily injury, or 07-11-00354-CR to delete the fines.
kidnapping of any person.
Attorney's Fees
See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii),(iii). In
Appellant's last issue contends that there was no
a rather clumsy manner, the jury charge appears to
evidence upon which to support the order that appellant
combine the two methods of alleging the [*610]
pay for his appointed attorney, as required by the
aggravating conduct by tracking the language of the
judgment in appellate cause No. 07-11-00354-CR. Here,
 Page 9
382 S.W.3d 601, *610; 2012 Tex. App. LEXIS 7908, **25

the State again candidly admits that the evidence does not 07-11-00354-CR to omit the cumulated fines [**26] and
support the order for appellant to repay his appointed the order for appellant to pay his appointed attorney's
attorney's fees. Accordingly, we will modify the fees, we affirm the judgments of the trial court as
judgment in cause No. 07-11-00354-CR to delete the modified.
payment of the attorney's fees by appellant.
Mackey K. Hancock
Conclusion
Justice
Having overruled all of appellant's first four issues
and having modified the judgment in cause No. Publish.
 Page 1

LARRY NEIL COOK, Appellant v. THE STATE OF TEXAS, Appellee

No. 0375-94

COURT OF CRIMINAL APPEALS OF TEXAS

902 S.W.2d 471; 1995 Tex. Crim. App. LEXIS 78

June 28, 1995, Delivered

SUBSEQUENT HISTORY: [**1] As Corrected July 20,000.00. Tex. Penal Code Ann. § 31.03. Appellant pled
3, 1995. Second Correction September 14, 1995. "true" to the enhancement allegation and the trial judge
assessed punishment at ten years confinement and
PRIOR HISTORY: Petition for Discretionary Review ordered restitution in the amount of $ 6,000.00. Tex.
from the Fourth Court of Appeals. 186th. Judicial District Penal Code Ann. § 12.33. The Court of Appeals affirmed.
Court of Bexar County, TX. Cook v. State, No. 04-93-00111-CR (Tex.App.--San
Antonio, January 5, 1994) (Not published). We granted
appellant's petition for discretionary review to determine
COUNSEL: For Appellant: Russell Sablatura, Mark whether the [**2] charging instrument was so deficient
Stevens, J. Charles Bunk, Vincnet D. Callahan, San as to not invest the trial court with jurisdiction. Tex. R.
Antonio, Tx. App. P. 200(c)(5). We will reverse.

For Appellee: Steven C. Hilbig, D.A. & Chris I.
DeMartino, A. J. Dimaline & Barbara Hervey, D. A's.
San Antonio, Tx. Robert Huttash, State's Attorney, We set out the charging instrument below:
Austin, Tx.
IN THE NAME AND BY
JUDGES: Baird, Judge --- Clinton, Judge concurring AUTHORITY OF THE STATE OF
opinion --- Maloney, Judge concurring opinion joined by TEXAS, the Grand Jury of Bexar County,
Mansfield, Judge --- Mansfield, Judge joins with note --- State of Texas, duly organized, empaneled
Meyers, Judge dissenting opinion --- Judges White & and sworn as such at the March term,
Keller dissent A.D., 1991, of the 186th Judicial District
Court of said County, in said Court, at said
OPINION BY: BAIRD term, do present in and to said Court that
in the County and State aforesaid, and
OPINION anterior to the presentment of this
indictment, and on or about the

[*474] OPINION ON APPELLANT'S PETITION FOR 1ST day of June 1987,
DISCRETIONARY REVIEW hereinafter referred to as
defendant, with intent to
Appellant was convicted by a jury of theft over $
deprive the owner, namely:
 Page 2
902 S.W.2d 471, *474; 1995 Tex. Crim. App. LEXIS 78, **2

ELIZABETH K. PRICE, of appellant had been acquitted, no appellate
property, namely: court would hold that the state could retry
LAWFUL CURRENCY him because the instrument was not an
OF THE UNITED indictment and therefore the trial court
STATES OF AMERICA never acquired jurisdiction. In what sense
said property, said property then can it be said, after a conviction, that
being other than real the instrument was not an indictment and
property which had A the trial court did not acquire jurisdiction?
VALUE of Twenty For jeopardy [*475] purposes, it is plain
Thousand Dollars ($ that [appellant] has been convicted and
20,000.00) or more, punishment has [**4] been assessed for
without the effective the offense of theft over $ 20,000 from
consent of the owner; [complainant] on June 1, 1987.

Before the commission Id., at 3-4.
of the offense alleged
above, on the 24th day of We granted appellant's petition for discretionary
June, A.D., 1977, in Cause review to determine whether a charging instrument which
no. CR 3-77-35, in the fails to charge "a person" still constitutes an indictment as
UNITED STATES contemplated by art. V, § 12(b).
DISTRICT COURT FOR
THE NORTHERN II.
DISTRICT OF TEXAS AT
A.
DALLAS, the Defendant
was convicted of the felony The Texas Constitution guarantees to defendants the
[**3] of FRAUD IN right to indictment by a grand jury for all felony offenses.
OFFER OF SALE OF 1 Tex.Const. art. I, § 10. See also, James C. Harrington,
SECURITIES AND MAIL Our Texas Bill of Rights, 31 (Texas Civil Rights Project
FRAUD. 1991). Art. I, § 10 provides in pertinent part:
[Signed by Grand Jury
Rights of accused in criminal
Foreperson]
prosecutions

In all criminal prosecutions the
accused ... shall have the right to demand
the nature and cause of the accusation
On direct appeal, appellant contended his conviction
against him, and to have a copy thereof ?
was void because the charging instrument was
and no person shall be held to answer for a
constitutionally deficient because it omitted appellant's
criminal offense, unless on an indictment
name and omitted the actus reus of the offense. The
of a grand jury, except in cases in which
Court of Appeals, with one justice dissenting, affirmed.
the punishment is by fine or
Cook, supra. Relying upon Studer v. State, 799 S.W.2d
imprisonment, otherwise than in the
263 (Tex.Cr.App. 1990), the Court held appellant waived
penitentiary ... .
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:
1 Almost twenty-five years ago we considered
Only by the most hypertechnical of whether the requirement of an indictment was
arguments can it be said that the jurisdictional or a right that could be waived. King
instrument is not an "indictment." If v. State, 473 S.W.2d 43, 47 (Tex.Cr.App. 1971). In
 Page 3
902 S.W.2d 471, *475; 1995 Tex. Crim. App. LEXIS 78, **4

today's common parlance, the constitutional 306, 171 S.W. [**6] 747, 753 (Tex.Cr.App. 1914) (Op
requirement of an indictment may be referred to on reh'g). See also, 1 G. Braden, The Constitution of the
as a fundamental systemic requirement, which is a State of Texas: An Annotated and Comparative Analysis,
right or requirement "so important that [its] 39 (Texas Legislative Counsel 1977). Second, an
implementation is mandatory." Marin v. State, indictment serves a jurisdictional function. Labelle v.
851 S.W.2d 275, 280 (Tex.Cr.App. 1993). The State, 720 S.W.2d 101, 106 (Tex.Cr.App. 1986);
author of the dissent, who also authored Marin, Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.
contends that King holds an indictment is not a 1985); and, Drumm v. State, 560 S.W.2d 944, 946-947
fundamental systemic requirement because it is (Tex.Cr.App. 1977). The filing of an indictment is
subject to waiver. Post at , n. 3; slip op. pg. 4, essential to vest the trial court with jurisdiction over a
n.3. But this conclusion is derived from a felony offense. See, King, 473 S.W.2d at 47-49; Ex carte
misreading of King where we held art. I, § 10 is Krarup, 422 S.W.2d 173, 174 (Tex.Cr.App. 1967);
not violated by a defendant's waiver of an Melancon v. State, 367 S.W.2d 690, 692 (Tex.Cr.App.
indictment under art. 1.141. Id., 473 S.W.2d at 1963); Kennedy v. State, 161 Tex. Crim. 303, 276 S.W.2d
51. However, we further explained that "a felony 291, 294 (Tex.Cr.App. 1954) (Op. on reh'g);
information acts in lieu of or as a substitute for an Hollingsworth, 221 S.W. at 979; Turpin v. State, 86 Tex.
indictment and its validity is therefore essential to Crim. 96, 215 S.W. 455, 456 (Tex.Cr.App. 1919); Turman
the court's jurisdiction." Id., at 51-52 (emphasis v. State, 81 Tex. Crim. 320, 196 S.W. 181 (Tex.Cr.App.
added). See also, Lackey v. State, 574 S.W.2d 97, 1917); and, Lott v. State, 18 Texas Ct. App. 627 [*476]
100 (Tex.Cr.App. 1978). Consequently, King (1885). Jurisdiction vests only upon the filing of a valid
holds that art. 1.141 merely allows the indictment in the appropriate court. Tex.Const. Art. V, §
substitution of one type of charging instrument for 12(b). See also, Crawford v. State, 624 [**7] S.W.2d
another, but does not otherwise affect the 906, 907 (Tex.Cr.App. 1981); And, Garcia v. Dial, 596
fundamental systemic requirement that a valid S.W.2d 524, 527 (Tex.Cr.App. 1980).
charging instrument be presented in order to vest
the trial court with jurisdiction. B.

[**5] Prior to 1985, this Court consistently held that
"substantive" defects in the charging instrument failed to
The constitutional requirement that felony offenses be vest the trial court with jurisdiction and, therefore, a
prosecuted by indictment is firmly established. See, King conviction on a substantively defective charging
v. State, 473 S.W.2d 43, 47-49 (Tex.Cr.App. 1971) ("The instrument could be challenged for the first time on
requirement that felonies be prosecuted by indictment has appeal. Studer, 799 S.W.2d at 267; Thompson, 697
been followed in Texas since the outbreak of the S.W.2d at 415; Green v. State, 571 S.W.2d 13, 14-15
revolution against Mexico."); Hollingsworth v. State, 87 (Tex.Cr.App. 1978); Ex parte Garcia, 544 S.W.2d 432,
Tex. Crim. 399, 221 S.W. 978, 979 (Tex.Cr.App. 1920); 432-433 (Tex.Cr.App. 1976); American Plant Food Corp.
overruled in part, King, supra; Kinley v. State, 29 Texas v. State, 508 S.W.2d 598, 603 (Tex.Cr.App. 1974);
Ct. App. 532, 16 S.W. 339, 340 (App. 1891); and, Pospishel v. State, 95 Tex. Crim. 625, 255 S.W. 738
Graham v. State, 43 Tex. 550 (Tex. 1875). See also, Ex (Tex.Cr.App. 1923); and, Woodard v. State, 86 Tex.
parte Preston, 833 S.W.2d 515, 522 (Tex.Cr.App. 1992) Crim. 632, 218 S.W. 760 (Tex.Cr.App. 1920). This rule
(Clinton, J., concurring); and, Acosta v. State, 650 S.W.2d developed over more than a century of decisions in which
827, 830 (Tex.Cr.App. 1983) (Onion, P.J., concurring). we interpreted art. I, § 10 to create a "constitutional"
requirement that a charging instrument allege all
An indictment serves two functions. First, it provides elements of the offense in order to constitute an
notice of the offense in order to allow a defendant to indictment. See, Brasfield v. State, 600 S.W.2d 288,
prepare a defense. Saathoff v. State, 891 S.W.2d 264, 266 301-302 (Tex.Cr.App. 1980) (Op. on reh'g); and,
(Tex.Cr.App. 1995); Evans v. State, 623 S.W.2d 924, 925 Williams v. The State, 12 Texas Ct. App. 395, 400-401
(Tex.Cr.App. 1981); Benoit v. State, 561 S.W.2d 810, 813 (Court [**8] of Appeals 1882). See also, George E. Dix,
(Tex.Cr.App. 1977); Wilson v. State, 520 S.W.2d 377, 379 Texas Charging Instrument Law: The 1985 Revisions and
(Tex.Cr.App. 1975); and, Zweig v. State, 74 Tex. Crim. the Continuing Need for Reform, 38 Baylor L. Rev. 1, at
 Page 4
902 S.W.2d 471, *476; 1995 Tex. Crim. App. LEXIS 78, **8

13-22 (1986). Accordingly, where the charging on appeal or in any other postconviction
instrument omitted an element of the offense the proceeding. ...
indictment was void and the trial court lacked
jurisdiction. See e.g., Gengnagel v. State, 748 S.W.2d Art. 1.14(b) automatically took effect upon the voters
227, 229 (Tex.Cr.App. 1988); Thompson, 697 S.W.2d at approval of the amendment to art. V, § 12. Studer,
415; Ex parte Luddington, 614 S.W.2d 427, 428 [**10] 799 S.W.2d at 266, n. 3.
(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, The amendment to art. V, § 12 was notable on two
273-274 (Tex.Cr.App. 1975); Jones v. State, 388 S.W.2d grounds. First, by granting to the Legislature the
716 (Tex.Cr.App. 1965); and, Scott v. State, 171 Tex. authority to prescribe legislation regulating the
Crim. 53, 344 S.W.2d 457 (Tex.Cr.App. 1961). procedures and contents of charging instruments, the
amendment reversed a century of precedent regarding the
C. constitutional implications of charging instrument
defects. Studer, 799 S.W.2d at 289-290 (Clinton, J.,
Frustrated with the common practice of defendants concurring).
withholding substantive defects at trial and then raising
them on appeal in order to vitiate the conviction, the [*477] Second, the amendment provided, for the
Texas Legislature in 1985 proposed an amendment to art. first time in our history, a constitutional definition of an
V, § 12 of the Texas Constitution which authorized the indictment. Art. V, § 12(b) defines an "indictment" as "a
Legislature to prescribe by statute the effects of written instrument presented to a court by a grand jury
substantive defects in the charging instrument. The charging a person with the commission of an offense."
amendment provided: Art. V, § 12(b). Therefore, to comprise an indictment
within the definition provided by the constitution, an
An indictment is a written instrument instrument must charge: (1) a person; (2) with the
[**9] presented to a court by a grand jury commission of an offense. Art. V, § 12(b). See also,
charging a person with the commission of Luken v. State, 780 S.W.2d 264, 267 (Tex.Cr.App. 1989);
an offense. An information is a written And Robert R. Barton, Since 1985, Can An Indictment or
instrument presented to a court by an Information Be "Fundamentally" Defective for Failing to
attorney for the State charging a person Charge an Offense?, 25 St. Mary's L.J. 217, 225-226
with the commission of an offense. The (1993).
practice and procedures relating to the use
of indictments, including their contents, III.
amendment, sufficiency and requisites are
In Studer, we addressed the second prong of the
provided by law. The presentment of an
constitutional [**11] definition, namely, the requirement
indictment or information to a court
that a charging instrument charge the commission of an
invests the court with jurisdiction of the
offense. 2 Following his conviction on a plea of nolo
cause.
contendere, Studer contended for the first time on appeal
that his conviction was void because the information
Art. V, § 12(b). In tandem with the constitutional
omitted an element of the offense. 799 S.W.2d 263 at
amendment, the Legislature also drafted implementing
264-265.
legislation in the form of an amendment to Tex. Code
Crim. Proc. Ann. art. 1.14. Art. 1.14(b) provided in 2 In addressing appellant's ground for review,
pertinent part: we couched the issue as follows: "Does the
If the defendant does not object to a wording ... 'An indictment or information is a
defect, error, or irregularity of form or written instrument ... charging a person with the
substance in the indictment or information commission of an offense' mean it is an
before the date on which the trial on the instrument that alleges all the constituent
merits commences, he waives and forfeits elements of an offense or something else
the right to object to the defect, error, or (specifically something less)." Id., 799 S.W.2d at
irregularity and may no raise the objection 266 (emphasis in original).
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902 S.W.2d 471, *477; 1995 Tex. Crim. App. LEXIS 78, **11

In a thorough analysis of the legislative history of the charging instrument fails to charge a person, then it is
art. V, § 12(b) and art. 1.14(b) we observed the intent not an indictment as required by art. V, § 12(b) and art. I,
behind the amendments was not to "change what § 10.
constitutes a substance defect, but rather only its effect" if
not raised prior to trial. Id., at 268. Thus, a substantive The conclusion that art. V, § 12(b) [**14]
defect in the charging [**12] instrument remains a defect establishes constitutional requisites for an [*478]
and renders the charging instrument subject to a motion indictment is supported by construing art. V, § 12(b) and
to quash. However, we further noted that because the art. I, § 10 in accordance with standard rules of
omission of an element of the offense was "still a defect constitutional interpretation. As a first step, we attempt to
of substance in an indictment, it naturally follows that the effectuate the intent of the framers of a constitutional
indictment is still an indictment despite the omission of amendment, and the voters who approved that
that element." Ibid. Accordingly, we concluded that a amendment. Studer, 799 S.W.2d at 272; City of El Paso
charging instrument is not required to allege every v. El Paso Community College District, 729 S.W.2d 296,
element of the offense in order to allege "the commission 298 (Tex. 1986); Gragg v. Cayuga Independent School
of an offense" as required by art. V, § 12(b). Id., at 272. Dist., 539 S.W.2d 861, 866 (Tex. 1976); and, Farrar v.
Board v. Trustees of Employees Retirement System of
From Studer it follows that with regard to the second Texas, 150 Tex. 572, 243 S.W.2d 688, 692 (Tex. 1952).
prong of the definition for an indictment, a substantively While art. V, § 12(b) was clearly intended to eliminate
defective indictment is sufficient to vest the trial court the requirement that an indictment charge every element
with jurisdiction. And in the wake of Studer, we have of an offense, it is equally apparent that neither the
consistently held a charging instrument is not Legislature nor the voters intended to abrogate the
constitutionally void despite the omission of one or more constitutional right to a charging instrument sufficient to
elements of the offense. Rodriguez, 799 S.W.2d 301, 303 constitute an indictment. Studer, 799 S.W.2d at 272, n. 12
(Tex.Cr.App. 1990) (indictment for evading arrest failed ("The right to indictment by a grand jury ... has not been
to allege defendant knew complainant was police officer abolished ... ."). See also, Dix, 38 Baylor L. Rev. at 26,
who was attempting to arrest him); Ex parte Morris, 800 28-34 (1986) (legislative history indicates legislators did
S.W.2d 225, 227 (Tex.Cr.App. 1990) (forgery indictment not intend to eliminate [**15] necessity of an
failed to allege that writing [**13] purported to be act of indictment). Consequently, art. V, § 12(b) cannot be read
another who did not authorize act); And, Ex parte to dispense with the necessity of filing an "indictment" in
Gibson, 800 S.W.2d 548, 551 (Tex.Cr.App. 1990) the trial court in order to vest the court with jurisdiction
(indictment failed to allege date of offense). See also, and provide notice to the defendant.
State v. Murk, 815 S.W.2d 556, 558 (Tex.Cr.App. 1991).
When construing constitutional provisions, we are
IV. required to interpret the Constitution as a whole, rather
than piecemeal. Oakley v. State, 830 S.W.2d 107, 110
Today we are called upon to decide the question (Tex.Cr.App. 1992); and, Pierson v. State, 147 Tex. Crim.
unanswered by Studer: does a charging instrument 15, 177 S.W.2d 975, 977 (Tex.Cr.App. 1944). Thus,
constitute an indictment within the constitutional constitutional provisions are not to be examined in
definition of art. V, § 12(b) if it completely fails to charge isolation from comparable provisions. In Oakley we
"a person"? explained:

While art. V, § 12(b), through its implementing ... the Constitution must be read as a
legislation, art. 1.14(b), "de-constitutionalized" the whole so as to give effect to each and
requirement that an indictment allege every element of every provision. ... No part of the
the offense, the amendment nevertheless provided a Constitution should be given a
definition for an "indictment" which had heretofore been construction which is repugnant to express
defined only statutorily. Thus, art. V, § 12(b) established
authority contained in another part, if it is
constitutional requisites for a charging instrument to possible to harmonize the provisions by
constitute an indictment. To constitute an indictment, the any reasonable construction.
charging instrument must charge: (1) a person, and (2)
the commission of an offense. It is clear, however, that if
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902 S.W.2d 471, *478; 1995 Tex. Crim. App. LEXIS 78, **15

Id., 830 S.W.2d at 110 (citations omitted). See, also,
Clapp v. State, 639 S.W.2d 949, 951 (Tex.Cr.App. 1982); The power to make laws [**18] is
Texas National Guard Armory Board v. McCraw, 132 vested through the Constitution in the
Tex. 613, 126 S.W.2d 627, 634 (Tex. 1939); Legislature. ... However, the Legislature
Collingsworth County v. Allred, [**16] 120 Tex. 473, 40 does not have the power to enact any law
S.W.2d 13, 17 (Tex. 1931); and, Jones v. Williams, 121 contrary to the provisions of the
Tex. 94, 45 S.W.2d 130, 137 (Tex. 1931). Because art. V, Constitution. If any law or part thereof,
§ 12(b) and art. I, § 10 address similar subjects, we are undertakes to nullify the protection
compelled to examine each provision in context and furnished by the Constitution, such law, or
attempt to give effect to both unless they are part thereof, that conflicts with the
irreconcilable. Clapp, 639 S.W.2d at 951-952. Constitution is void.
Comparing art. V, § 12(b) and art. I, § 10, we find they
are complementary rather then conflicting. Art. V, § Id., 179 S.W.2d at 273. See also, Maher v. Lasater, 163
12(b) should be read in context to art. I, § 10: the latter Tex. 356, 354 S.W.2d 923, 924-925 (Tex.1962); City of
established the right to an indictment, and the former Fort Worth v. Howerton, 149 Tex. 614, 236 S.W.2d 615,
establishes the constitutional definition for what 618 (Tex.1951); Jones v. Ross, 141 Tex. 415, 173 S.W.2d
constitutes an indictment. Although art. V, § 12(b) 1022, 1024 (Tex. 1943); Empire Gas & Fuel Co. v. State,
subsequently authorizes the Legislature to prescribe the 121 Tex. 138, 47 S.W.2d 265, 274 (Tex. 1932); Cameron
requisites and sufficiency of indictments, we do not read v. Connally, 117 Tex. 159, 299 S.W. 221, 223 (1927);
this grant of authority so broadly as to authorize the Crabb v. Celeste Independent School District, 105 Tex.
Legislature to prescribe rules which undermine the 194, 146 S.W. 528, 532 (Tex.1912); and, 12A Tex.Jur.3d,
constitutional definition of an indictment because this Constitutional Law, § 6. "Certainly, a statute cannot
would render art. V, § 12(b) internally inconsistent. See, override the Constitution." Cramer v. Sheppard, 140 Tex.
Gallagher v. State, 690 S.W.2d 587, 591-592 271, 167 S.W.2d 147, 155 (Tex. 1942). Thus, as Judge
(Tex.Cr.App. 1985) ("Constitutional provisions will not Clinton stated in his concurring opinion in Studer: "[The]
be construed to be ambiguous or contradictory if such meaning and import of Article V, § 12(b), insofar as it
construction is possible."); [**17] and, Clapp, 639 defines 'indictment or information,' [**19] is a question
S.W.2d at 951. ("... courts should avoid a construction (of for this Court. The Legislature is free to prescribe
constitutional provisions) which renders any provision 'contents ... sufficiency, and requisites,' [of an indictment]
meaningless or inoperative and must lean in favor of a but only within constitutional parameters." 3 Id., 799
construction which will render every word operative, S.W.2d at 293 (Clinton, J., concurring). See also, Dix, 38
rather than one which may make some words idle and Baylor L.Rev. at 40-41.
nugatory.") Since "the language used (in a constitutional
provision) must be presumed to have been carefully 3 All emphasis is supplied by author unless
selected," we do not believe the Legislature would otherwise indicated.
provide a constitutional definition of an indictment and
Finally, although we attempt to construe a
then subsequently authorize itself to prescribe statutory
constitutional provision according to its literal language,
rules which undermine that definition. Gallagher, 690
we are nonetheless obliged to avoid a construction which
S.W.2d at 592.
renders an absurd or unreasonable result. 16 Am.Jur.2d,
Moreover, a construction of art. V, § 12(b) which Constitutional Law, § 112, p. 464. See also, In re Thoma,
places the constitutional definition of an indictment 873 S.W.2d 477, 489 (Tex.Rev.Trib. 1994); and, Cramer,
within the purview of art. 1.14(b) is problematic because 167 S.W.2d at 155 ("...constitutional and statutory
it subjects a constitutional provision to statutory provisions will not be so construed or interpreted as to
authority. It is fundamental to constitutional and statutory lead to absurd conclusions ... if any other construction or
construction that the Legislature lacks the authority to interpretation can reasonably be indulged in ..."). For
enact a statute [*479] which conflicts with a provision instance, in DeDonato v. State, 819 S.W.2d 164
of the Constitution. In Dendy v. Wilson, 142 Tex. 460, (Tex.Cr.App. 1994), Judge Maloney observed that with
179 S.W.2d 269 (Tex. 1944), the Texas Supreme Court [**20] regard to the art. V, § 12's provision relating to
expressed this proposition as follows: court jurisdiction,
 Page 7
902 S.W.2d 471, *479; 1995 Tex. Crim. App. LEXIS 78, **20

defendant," charged "a person." However, such a
...a literal reading of article V, § 12(b) construction would effectively nullify the
could lead to absurd results. If the mere constitutional definition of art. V, § 12(b). Rather,
presentment of an indictment could vest we believe art. V, § 12(b) requires that an
jurisdiction in any court, then, absent an indictment charge a particular person. This
objection from the defendant, a capital interpretation is consistent with the statutory
murder case could be properly tried in a definition of an indictment provided by Tex. Code
county court. I cannot believe that such a Crim. Proc. Ann. art. 21.01: "An indictment is the
result was the legislature's or the voter's written statement of a grand jury accusing a
intent. person therein named of some act or omission
which, by law, is declared to be an offense."
Id., at 168 (Maloney, J., concurring, joined by Baird and [**22]
Benavides, JJ.). See also, Marin, 851 S.W.2d at 279 ("[A] 5 We pause to note that we are not addressing a
person may not be tried in Texas for a felony offense by situation where the charging instrument alleges an
the County Court at Law, even if he consents."). incorrect name, see, Tex. Code Crim. Proc. Ann.
arts. 26.07 and 26.09 (accused is obliged to state
Similarly, we do not believe a reasonable true name when charging instrument is read at
construction of art. V, § 12(b) permits the conclusion that arraignment), or where the person's name is
the constitutional definition of an indictment falls within unknown and the charging instrument alleges only
the purview of art. 1.14(b) because this construction a physical description, Mt, Tex. Code Crim. Proc.
clearly leads to an absurd result. If art. V, § 12(b) subjects Ann. art. 21.07 ("... When the name of the person
all requisites of an indictment to the scope of art. 1.14(b), is unknown to the grand jury, that fact shall be
and hence, to waiver, then we can conceive of no point at stated, and if it be the accused, a reasonably
which a charging instrument is so deficient as to not accurate description of him shall be given in the
constitute an indictment. Clearly, this construction of art. indictment."). In such cases, the charging
V, § 12(b) [**21] would permit a blank sheet of paper to instrument is an indictment within the meaning of
suffice for a valid indictment. We do not believe the art. V, § 12(b) because whether erroneously or
Legislature or the voters could have intended this result through a lack of information, the indictment still
when approving art. V, § 12(b). Nor do we believe this charges "a person."
construction of art. V, § 12(b) comports with the right to
an indictment guaranteed by art. I, § 10. V.

We therefore hold that the definition of an In the instant case, the charging instrument wholly
indictment provided by art. V, § 12(b) establishes failed to charge "a person." Thus, the charging instrument
constitutional requisites for an indictment. Art. V, § 12(b) did not meet the first prong of the constitutional
does not authorize the Legislature to statutorily change definition of art. V, § 12(b). Consequently, the charging
these fundamental requirements. See, Howerton, 236 instrument was not an indictment as required by art. V, §
S.W.2d at 618; and, Dendy, 179 S.W.2d at 273. 12(b) and art. I, § [**23] 10, and did not vest the trial
Accordingly, to constitute an indictment as required by court with jurisdiction. Therefore, appellant's conviction
art. I, § 10 and art. V, § 12(b), a charging instrument must is void.
at least charge "a person," with [*480] the commission
of an offense. 4 If the charging instrument fails to charge The judgment of the Court of Appeals is reversed
"a person" then it is not an indictment and does not vest and we remand this cause to the trial court with
the trial court with jurisdiction. 5 Moreover, because a instructions to dismiss the prosecution in this cause. 6
valid indictment is essential for jurisdiction, it is not
6 Appellant's remaining ground for review is
subject to waiver. Crawford, 624 S.W.2d at 907; and,
dismissed.
Lackey v. State, 574 S.W.2d 97, 100 (Tex.Cr.App. 1978).
BAIRD, Judge
4 Perhaps one could argue that the instant
charging instrument, by simply stating "the Mansfield, J. joins with note.
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902 S.W.2d 471, *480; 1995 Tex. Crim. App. LEXIS 78, **

White and Keller, JJ., dissent. however, the Court is intellectually dishonest, and for that
reason I cannot join its opinion.
(Delivered June 28, 1995)
CLINTON, Judge
En banc
(Delivered: June 28, 1995)
CONCUR BY: CLINTON; MALONEY; Mansfield
EN BANC
CONCUR
CONCURRING OPINION

[**24] CONCURRING OPINION ON APPELLANT'S MALONEY, J.
PETITION FOR DISCRETIONARY REVIEW
I join the opinion of the majority, but write
CLINTON, Judge separately to emphasize that the majority's opinion is
consistent with and strengthened by the principles set
For the reasons stated in Judge Meyers' dissenting forth in Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App.
opinion, I concur in the Court's judgment in this cause. I 1994). I also write to point out that the dissenting opinion
agree with Judge Meyers that the majority's disposition is rests upon a flawed reading of this Court's opinion in
in all things inconsistent with the rationale and holding of Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990).
Studer v. State, 799 S.W.2d 263 (Tex.Cr.App. 1990), for
precisely the reasons he gives in his dissent. I also agree I.
with him that Studer was wrongly decided. Id., at
The majority correctly states that the constitutional
286-293 (Clinton, J., concurring). Moreover, something
amendments in 1985 provided for the first [**26] time a
very similar to the approach Judge Maloney now
definition of "indictment." Majority opinion at 6. Under
advances in his concurring opinion, derived from his
this new definition, an "indictment" is an instrument that
opinion for the Court in Fisher v. State, 887 S.W.2d 49
charges (1) a person (2) with the commission of an
(Tex.Cr.App. 1994), was suggested at the time of Studer,
offense. Id. at 6.
but rejected. Id., at 293. I can only conclude that the
majority's disposition today is fundamentally at odds with This Court in Studer v. State, 799 S.W.2d 263 (Tex.
Studer. Crim. App. 1990), held that "the commission of an
offense" was still alleged despite the omission of an
Unlike Judge Meyers, I have no compunction about
element of the offense. We expounded on this notion in
overruling Studer, stare decisis notwithstanding. As I
Fisher, supra, where we discussed the problem of
observed in a companion case to Studer, Rodriguez v.
determining sufficiency of the evidence in the event of an
State, 799 S.W.2d 301 (Tex.Cr.App. 1990):
indictment, like that in Studer, that does not allege all of
the elements of the offense. We began by recognizing the
"In attempting to pluck what it perceives
relationship between the indictment, a defendant's
to be the stray thread of fundamentally
expectations about what he would be tried for, the jury
defective [**25] indictments from the
instructions, and ultimately the appellate court's review of
criminal jurisprudence, the majority
the sufficiency of the evidence to support the conviction.
threatens to unravel the whole fabric of
We emphasized that "there must be a connection between
our criminal procedure."
the crime with which a defendant is charged in the
indictment and a reviewing court's role in reviewing the
[*481] Id., at 304 (Clinton, J., dissenting). See Studer v.
sufficiency of the evidence to support a conviction."
State, supra, 799 S.W.2d 263 at 292 (Clinton, J.,
Fisher, 887 S.W.2d at 53. Accordingly, we concluded
concurring). At the risk of mixing metaphors, I would nip
that it was necessary to be able to identify the [**27]
that threat as close to the bud as possible, and admit that
offense with which the defendant was charged in the
we are overruling Studer. Because, as Judge Meyers ably
indictment, and we set forth a scheme by which that
illustrates, the Court all but does so, I concur in its
could be accomplished even in the face of an inadequate
judgment. In failing expressly to overrule Studer,
indictment. Id. at 55-58.
 Page 9
902 S.W.2d 471, *481; 1995 Tex. Crim. App. LEXIS 78, **27

It logically follows from our reasoning and holding the essential holding of Studer[.]" Dissenting opinion at 1
in Fisher that in order to charge "the commission of an (Meyers, J., dissenting). Curiously, the dissent's own
offense" for purposes of Article V, § 12, there must be rendition of the Court's holding in Studer represents
enough alleged to enable one to identify the offense. 1 [*482] a significant departure from the actual language
This principle also logically applies to the portion of the of the opinion.
constitutional definition that the instrument charge "a
person." Enough must be alleged so that a person is The dissent summarizes the holding in Studer as
identifiable in the body of the indictment as one charged follows:
with the commission of an offense. No person is named
or described as the accused in the indictment in the A written instrument presented to a court
instant case. Therefore, appellant correctly asserts that the by a grand jury which does not charge "an
charging instrument is constitutionally deficient. For offense" is, nevertheless, an indictment,
these reasons, as well as those discussed in the majority and, therefore, invests the court with
opinion, I join the opinion of the Court. jurisdiction.

[EDITOR'S NOTE: TEXT WITHIN THESE Id. at 1. It then goes on to revisit and track the analysis in
SYMBOLS [O<>O] IS OVERSTRUCK IN SOURCE.] Studer leading to this purported holding. First noted is
that Studer held that the failure to allege all of the
1 In Fisher we stated, elements of the offense is a defect of substance. This is
accurate. The dissent then identifies the first of the four
We assume in this opinion that statutory defects of substance as "failure to charge an
the indictment alleges enough to offense[.]" Id. at 2. Following this, the dissent states that
identify the offense charged. For Studer therefore concluded that "a written instrument
example, an indictment might which does not allege every constituent element of a
allege only four of five elements of statutory crime is substantively defective because it does
a particular offense. By comparing not charge an offense." Id [**29] . (emphasis added).
the allegations in the indictment,
albeit incomplete, with various The flaw in this line of reasoning springs from a
penal code provisions, one should loose rephrasing of the first of the statutorily defined
be able to determine which entire defects of substance. Article 27.08 provides that it is a
offense the State is alleging. defect of substance of an indictment or information "that
it does not appear therefrom that an offense against the
Fisher, 887 S.W.2d at 55 n.10. Slightly further law was committed by the defendant." Tex. Code Crim.
elaboration is needed to put this approach into Proc. Ann. art. 27.08(1). The dissent restates this as
practice. If it is the case that all of the allegations providing that it is a defect of substance of an indictment
in the indictment are common to more than one or information that it "does not charge an offense." I
offense, and none are distinguishing to any single cannot agree with this broad translation. "That it does not
offense, then I would hold that the offense appear that an offense was committed" is far different
charged is that to which the fewest elements must from "that it does not charge an offense."
be added to those alleged in order to arrive at a
complete offense. If the allegations in the This distinction is critical in light of the
indictment are so deficient that one cannot constitutional requirement that an indictment charge "the
identify the offense alleged, then the indictment is commission of an offense." Tex. Const. Art. V, § 12.
insufficient to confer subject matter jurisdiction. Under the dissent's rephrasing of the matter, article 27.08
permits waiver of what the constitution requires--the
[TEXT DELETED BY COURT constitution requires that an indictment charge an
EMENDATION] offense; yet (according to the dissent's rephrasing) article
27.08 provides that the "failure to charge an offense" is a
[**28] II. defect of substance which, under article 1.14(b) is
waiveable. Under [**30] a true reading of the provisions,
The dissent disparages the majority for "revis[ing]
 Page 10
902 S.W.2d 471, *482; 1995 Tex. Crim. App. LEXIS 78, **30

the constitution requires that an indictment charge the Armstrong, 110 Tex. Crim. 362, 8 S.W.2d 674,
commission of an offense; article 27.08 provides that it is 676 (1928)). Without subject matter jurisdiction a
a defect of substance "that it does not appear that an court has no authority to act.
offense was committed." 2 (emphasis added). The
constitution speaks in terms of what is necessary to The constitutional and statutory amendments
charge the commission of an offense; article 27.08 and our interpretation of them in Studer, have not
speaks in terms of whether it appears from the eliminated the basic notion of subject matter
allegations that an offense was committed. The essential jurisdiction. The Texas Constitution as amended
holding of Studer was that the absence of an element provides that "the presentment of an indictment or
made it appear that an offense was not committed (a information to a court invests the court with
defect of substance), but was nevertheless sufficient to jurisdiction of the cause." In order to give
charge the commission of an offense for constitutional meaning to this provision and the constitutional
purposes of jurisdiction. 3 requirement that the indictment charge the
commission of "an offense," they must be
2 The dissent points out that article 27.08 has construed as requiring that the indictment allege
long been interpreted to mean that an indictment enough to identify the offense charged and
is substantively defective if it does not charge an accordingly invest subject matter jurisdiction.
offense, despite its language to the effect that it This is also consistent with the principles set forth
does not appear that an offense was committed. in Fisher, as discussed above.
Dissenting opinion at 2, n.2 (Meyers, J.,
dissenting). These interpretations, however, were [**32] [*483] As the majority points out, in
made prior to the constitutional amendments in construing constitutional provisions, "we are obliged to
1985 which added the definition of "indictment." avoid a construction which renders an absurd or
As emphasized in the majority's opinion, unreasonable result." Majority opinion at 11. In order to
constitutional and statutory provisions should be charge "the commission of an offense" an indictment
interpreted in harmony, if possible, so as to give must allege enough so that the offense alleged can be
meaning and effect to both. See Majority opinion identified. This vests the court with subject matter
at 9-11. jurisdiction. See fn. 2, supra. Article 1.14(b) and 27.08 do
[**31] not permit waiver of subject matter jurisdiction. Rather, if
3 It is elemental that a trial court must have enough is alleged to enable the identification of an
subject matter jurisdiction. As explained by this offense for purposes of subject matter jurisdiction under
Court, the constitution, but the allegations are nevertheless
deficient so that technically it does not appear that an
A court of competent jurisdiction offense was committed, there is a waiveable defect of
means a court that has jurisdiction substance. This is what happened in Studer.
of the offense. [citation omitted] . .
The dissent repeatedly states that in Studer this Court
. One of the requisite elements of
decided that the indictment there did not charge an
'jurisdiction' is jurisdiction over the
offense. The dissent quotes the following language from
subject matter. The expression
Studer:
'subject matter,' as used with
reference to the problem of
The change in Art. 1.14(b) requires,
jurisdiction, in criminal law, refers
among other things, that substance
to the offense.
exceptions be raised pre-trial or otherwise
the accused has forfeited his right to raise
Hulton v. State, 351 S.W.2d 248, 255 (Tex. Crim.
the objection on appeal or by collateral
App. 1961) (emphasis added). This Court has
[**33] attack. If omitting an element from
further stated that jurisdiction means "the right to
an indictment is still a defect of substance
adjudicate concerning the subject matter in a
in an indictment, it naturally follows that
given case." Garcia v. Dial, 596 S.W.2d 524, 527
the indictment is still an indictment
(Tex. Crim. App. 1980) (quoting Ex parte
 Page 11
902 S.W.2d 471, *483; 1995 Tex. Crim. App. LEXIS 78, **33

despite the omission of that element. Mansfield, J., joins this opinion with the following
note: I join the majority opinion of the Court, agreeing
Dissenting opinion at 3 (quoting Studer, 799 S.W.2d at that a charging instrument that fails to charge "a person"
268). Nowhere in this quoted language or anywhere else is not an indictment as defined by art. V, § 12(b) and art.
in the opinion can I find that the Court stated that the I, § 10 of the Texas Constitution. I am troubled, however,
indictment failed to charge an offense. The issue by the failure of trial counsel to object to the error in the
presented in Studer was whether the indictment's failure charging instrument prior to trial, given that the error was
to allege all of the elements of an offense could be raised obvious. Had this been done, a substantial amount of time
for the first time on appeal, or whether such defect was in and resources (both State's and appellant's) would have
fact waived. 4 The defect presented in Studer was not been saved, and justice would have been better served.
such that the offense (and accordingly the subject matter
jurisdiction of the court) could not be determined. There DISSENT BY: MEYERS
was an absence of one element. 5 Indeed the Court spoke
throughout the opinion in terms of "omitting an element", DISSENT
"the omission of that element", that an indictment "need
not necessarily allege every element", a "missing DISSENTING OPINION ON APPELLANT'S
element", "if an element of an offense is omitted", "the PETITION FOR [**35] DISCRETIONARY REVIEW
omission of an element", "missing an element", "each
I believe that Studer v. State, 799 S.W.2d 263 (Tex.
constituent element", "the absence of an element", and
Crim. App. 1990) was wrongly decided, mainly for the
"each element of the [**34] offense". Nowhere in our
reasons given by the majority in this case. Accordingly, I
opinion in Studer is there any discussion of the possibility
do not disagree, at least in the abstract, with most of what
that an indictment might omit more than one or even all
the majority opinion has to say. Where I part company
elements of an offense and remain constitutionally sound.
with my colleagues on this issue is at the point where
4 Studer presented the issue as they revise the essential holding of Studer to support a
distinction which is at odds both with logic and with the
Does the wording "An law.
indictment or information is a
The Texas Constitution defines "indictment" as "a
written instrument . . . charging a
written instrument presented to a court by a grand jury
person with the commission of an
charging a person with the commission of an offense" 1
offense" mean it is an instrument
and it [*484] provides that "presentation of an
that alleges all the constituent
indictment . . . to a court invests the court with
elements of an offense or
jurisdiction of the cause." Tex. Const. art. 5, § 12. In
something else (specifically
Studer we held that a written instrument presented to a
something less).
court by a grand jury which does not charge "an offense"
is, nevertheless, an indictment and, therefore, invests the
Studer, 799 S.W.2d at 266 (emphasis in original).
court with jurisdiction. Today, a majority of the Court
5 We readily identified the offense charged, but
holds that a written instrument presented to a court by a
noted the absence of a single allegation. We stated
grand jury which does not charge "a person" is not an
that the defendant was charged with indecent
indictment and does not, therefore, invest the court with
exposure, but the indictment failed to allege the
[**36] jurisdiction. The basis for this remarkable
act or acts relied upon to constitute recklessness.
distinction is not made clear by the majority opinion, and
With these comments, I join the opinion of the because the requirement that an indictment charge "an
majority. offense" is given by the same constitutional provision
requiring it to charge "a person," I cannot subscribe to the
MALONEY, J. view that one requirement is forfeitable while the other is
not.
Delivered June 28, 1995
1 The Code of Criminal Procedure describes it
Mansfield, J., joins. somewhat differently as "the written statement of
 Page 12
902 S.W.2d 471, *484; 1995 Tex. Crim. App. LEXIS 78, **36

a grand jury accusing a person therein named of degree as to charge no offense
some act or omission which, by law, is declared to against the law, and thereby be
be an offense." Tex. Code Crim. Proc. art. 21.01. void, will the exception to the
substance be considered for the
The Court's mistake, I think, derives from a first time on appeal under Article
fundamental misunderstanding of our opinion in Studer. 27.08(1), supra.
The majority seems to think that, under the Studer
rationale, an indictment may be sufficient to charge an American Plant Food Corp. v. State, 508 S.W.2d
offense even though it fails to allege all essential 598, 604 (Tex.Cr.App. 1974). Any suggestion,
elements of that offense so long as one can tell from therefore, that an indictment may be sufficient to
examining it what offense the State intended to charge. charge an offense within the meaning of the
See Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App. Constitution, yet "appear" not to charge an
1994); [**37] Thomason v. State, 892 S.W.2d 8 (Tex. offense within the meaning of article 27.08(1),
Crim. App. 1994). But that was not Studer's rationale at would represent an interpretation of the latter so
all. What this Court actually held in Studer, and in its radically different from any thus far contemplated
companion case of Rodriguez v. State, 799 S.W.2d 301 by our precedents as to be entirely novel. For
(Tex. Crim. App. 1990), was that any written instrument present purposes, however, it is enough to know
returned by a grand jury is an indictment for purposes of that our opinion in Studer expressly eschewed any
investing a court with jurisdiction, whether it charges "an departure from existing case law on the subject.
offense" or not. A brief restatement of the argument [**39]
given in Studer makes this perfectly clear. 3 Clearly, omission of a constituent element
does not suggest that the prosecution is limitations
We began our analysis with the proposition that barred, that the alleged conduct was excused or
failure of an indictment or information to allege all justified, or that the subject matter of the
constituent elements of an offense is a defect of substance prosecution is otherwise beyond the trial court's
and that "the amendments to Art. 1.14, V.A.C.C.P., and jurisdiction. Accordingly, if omission of a
Art. V, § 12 did not, on their face, change this constituent element is indeed a defect of
long-standing precedent." 799 S.W.2d 263 at 268. We substance, it must be because a failure to plead all
conceded that there are only four defects of substance offensive elements is tantamount to a failure to
known to Texas criminal law: failure to charge an offense charge an offense.
2, failure to allege a date within the statutory period of
limitation, allegation of a defense, and apparent lack of Having thus decided that the purported indictment in
jurisdiction. Tex. Code Crim. Proc. art. 27.08; 799 Studer did not charge an offense, we next proceeded to
S.W.2d at 267. We concluded that a written instrument inquire whether the failure of a written instrument to
which does not allege every constituent element of [**38] charge an offense means that it is not an indictment
a statutory crime is substantively defective because it within the meaning of the Texas Constitution, article V,
does not charge an offense. 3 section 12. Reasoning that the Code of Criminal
Procedure, article 1.14(b), requires ill defects of
2 Article 27.08, Subdivision 1 says that an substance in an indictment, including its failure to charge
indictment or information is substantively an offense, to be raised prior to trial, we [*485] inferred
defective if "it does not appear therefrom that an that the Legislature did not mean to imply a written
offense against the law was committed by the instrument is not really an "indictment" unless it charges
defendant." This Court has always understood the the commission of an offense.
statute to mean that an indictment is substantively
defective if it does not charge an offense. The The change in Art. [**40] 1.14(b)
cases which illustrate this fact are legion. For requires, among other things, that
present purposes, however, it is sufficient to quote substance exceptions be raised pre-trial or
from only one of the most famous and influential. otherwise the accused has forfeited his
right to raise the objection on appeal or by
Only if the defect be of such a collateral attack. If omitting an element
 Page 13
902 S.W.2d 471, *485; 1995 Tex. Crim. App. LEXIS 78, **40

from an indictment is still a defect of doubt about what specifically is necessary for the
substance in an indictment, it naturally exercise of such jurisdiction, they have gone on expressly
follows that the indictment is still an to say that "a written instrument presented to a court by a
indictment despite the omission of that grand jury charging a person with the commission of an
element. offense" is required. This seems pretty clear to me.

799 S.W.2d 263 at 268. 4 Ironically, the majority seems to concede that,
under our prior law, as interpreted in King v.
It is thus apparent that Studer was making exactly the State, 473 S.W.2d 43 (Tex. Crim. App. 1971),
same argument Cook makes in the instant cause. He indictments were not really jurisdictional, since
argued that defects in an indictment must be raised before they could be waived. Slip Op. at 2 n.1.
trial only if the defective instrument is actually an Jurisdictional defects, of course, are not waivable.
indictment under the constitutional definition. He But the majority then goes on to describe "the
maintained that a written instrument which does not constitutional requirement of an indictment" as a
charge an offense is not an indictment, just as Cook now "fundamental systemic requirement" under our
maintains that a written instrument which does not charge holding in Marin v. State, 851 S.W.2d 275 (Tex.
a person is not an indictment. This argument, however, Crim. App. 1993) because it is "so important that
was plainly and unambiguously rejected in Studer. That it is mandatory absent an express waiver." This is
the Court now accepts it in the instant cause represents a wrong, of course. Under Marin, fundamental
significant revision of our Studer position which, in systemic requirements are not waivable at all.
fairness to bench and bar alike, we ought to acknowledge. Perhaps it is the majority's view that the
constitutional requirement that an indictment
Mind you, I am not irrevocably opposed to such a name "a person," while not jurisdictional, is
revision. Indeed, [**41] I am sympathetic with the view, nevertheless cognizable on direct appeal even
expressed in the majority opinion here, that an indictment absent a trial objection because it is a waivable
does not "invest a court with jurisdiction," as the right of the defendant. If so, the majority opinion
Constitution puts it, unless it "charg[es] a person with the is especially interesting, since the Constitution
commission of an offense." This is not because I think does not seem to make the indictment itself a right
that a written instrument should be made a necessary of the defendant. The truth is that, prior to the
prerequisite to the exercise of a trial court's jurisdiction, amendment of article 5, section 12 in 1985, the
any more than I think it should not. In my opinion, the Texas Constitution did not provide that any
lawmakers of this State may choose to predicate the specific written instrument was necessary to
exercise of trial-level criminal jurisdiction upon the "invest the court with jurisdiction of the cause." It
existence of a written instrument if they see fit to do so. was only our case law that did that -- the very
But, should they instead decide to dispense with the case law sought to be eliminated by the
requirement of a charging instrument altogether, I would amendments of 1985, and which were eliminated
not be inclined to think it unconstitutional. After all, the in fact by our holding in Studer. Accordingly, the
grand jury screening to which defendants are majority's position would be better supported by a
constitutionally entitled in felony cases can be claim that the constitutional amendment
accomplished without memorializing the process in a effectively overruled King. But then, of course,
formal document, and the notice to which defendants are the Code of Criminal Procedure articles providing
constitutionally entitled in all criminal cases can be for the waiver of an indictment would be
provided from a different source. Tex. Const. art. I, § 9. unconstitutional.

Nevertheless, it is apparent that the people of Texas [**43] [*486] But Studer would not have it to be
have not in fact opted to dispense with formal charging so, and I will not disgrace the jurisprudence of this Court
[**42] instruments in criminal cases. Indeed, they have or insult the intelligence of trial judges and lawyers by
deliberately chosen to require an indictment or pretending that Studer is consistent with the majority
information before "invest[ing] [a] court with view in this case when it obviously is not. The Studer
jurisdiction" of a criminal case. 4 And, lest there be any Court realized that its interpretation of the questioned
 Page 14
902 S.W.2d 471, *486; 1995 Tex. Crim. App. LEXIS 78, **43

constitutional language was not literal. In fact, it just the sort of thing that introduces unnecessary [**45]
consciously decided not to construe such language complexity into the case law, confuses practitioners, and
according to its plain meaning because it realized that diminishes this Court in the estimation of judges and
doing so would effectively undermine the purpose of scholars. If it were the pleasure of this Court to
those legislators who enacted the Code amendments and reexamine the holding in Studer, I would most likely
those citizens who approved the constitutional approve the effort. If, after reconsideration, it were the
amendments in question. In fact, nearly half of our opinion of the Court to overrule or substantially qualify
opinion in Studer is actually devoted to investigating and Studer, I might even be willing to join the opinion, so
articulating extratextual sources of legislative intent in long as it had the overwhelming support of my
order to demonstrate why the constitutional definition of colleagues, definitively settled the issue, and was justified
"indictment" should not be read as it is written. The by more than a mere acknowledgement of error. But the
author of Studer even cited it in a later dissenting opinion Court has done none of these things in the instant cause,
as one of two contemporary, leading authorities for the and seems disinclined to do them in future. Instead, it
proposition that "ambiguity in a statute is not apparent merely reverses course, quietly reinstating the law of
until the legislative history is researched and the true jurisdictional pleading defects and pretending all the
legislative intent is discerned." [**44] Boykin v. State, while that Studer is still alive and well. But, of course, it
818 S.W.2d 782, 789 (Tex. Crim. App. 1991) (Miller, J., isn't.
dissenting).
The rule of stare decisis obliges appellate judges to
Thus, although I believe Studer was wrongly respect the precedents of their own court, whether they
decided, it was by no means an accident, nor was its agree with those precedents or not. That does not mean,
rationale expressed by the Court without due of course, that bad cases should never be overruled. It
consideration. Fully five years passed between enactment only means that cases should not be overruled without a
of the statutory and constitutional amendments and our compelling reason. It also means that cases should not be
construction of them in Studer. During that time, the distinguished [**46] on patently fictitious grounds. The
issues were vigorously debated in the courts of appeals underlying rationale of Studer, however mistaken it may
and eventually in this Court. Everyone knew what the have been as a matter of constitutional interpretation, is
arguments were on both sides. And, in the end, the nevertheless a more coherent and workable approach to
Court's opinion was virtually unanimous. Only a single charging instrument law than the one with which,
judge expressed significant disagreement with the inspired by Fisher and Thomason, the Court leaves us in
majority rationale. See Studer, 799 S.W.2d at 286 this case. Because I cannot agree that there are
(Clinton, J., concurring); Rodriguez, 799 S.W.2d at 303 compelling reasons to make a bigger mess of the law than
(Clinton, J., dissenting). Studer already has, I respectfully dissent.

Now, only five years later, most of the Studer Court MEYERS, Judge
is gone. And so, apparently is Studer itself. What began
as a grass roots movement for the reform of charging DELIVERED: June 28, 1995
instrument law, focused almost exclusively on the
EN BANC
elimination of jurisdictional defects from indictments and
informations, has now become a caricature of itself. It is
 Page 1

RUBEN DURON, JR., Appellant v. THE STATE OF TEXAS, Appellee

NO. 0568-96

COURT OF CRIMINAL APPEALS OF TEXAS

956 S.W.2d 547; 1997 Tex. Crim. App. LEXIS 76

October 8, 1997, Delivered

SUBSEQUENT HISTORY: [**1] As Corrected affect the jurisdiction of trial courts to proceed with an
November 20, 1997. adjudication of guilt. The most widely-held view was
that, contrary to long-standing judicial interpretation, the
PRIOR HISTORY: Petition for Discretionary Review ends of criminal justice would best be served by
from the First Court of Appeals. [HARRIS County]. providing that convictions not be reversed on account of
any pleading defects which were not called to the
DISPOSITION: Affirmed. attention of the court prior to trial. In 1985, a statute to
this effect was enacted. Tex. Code Crim Proc. [**2] art.
1.14(b).
COUNSEL: Winston E. Cochran, Jr., Houston.
But from the beginning, the meaning and effect of
Rikke Burke Graber, Assist. DA., Houston. this statute were unclear. Although art. 1.14(b) plainly
provided that failure to object before trial to the form or
JUDGES: MEYERS, Judge. MANSFIELD, J. Womack, substance of an "indictment or information" forfeited the
Judge. Presiding Judge McCormick and Keller, J., join right of a defendant to complain about it on appeal, there
this concurrence. remained considerable disagreement about whether this
rule applied to an accusatory pleading which only
OPINION BY: MEYERS purported to be, but was not in fact, an "indictment or
information" as defined in the Texas Constitution. See
OPINION TEX. CONST. art. V, § 12. Thus, it was argued, a
pleading which did not actually charge "a person with the
commission of an offense" was not an "indictment or
[*548] OPINION ON APPELLANT'S PETITION
information" [*549] at all within the meaning of the
FOR DISCRETIONARY REVIEW Texas Constitution, and that any conviction based upon
such an instrument was, therefore, not merely defective
More than a decade ago, the people of Texas and or irregular but absolutely void. After some five years of
their elected representatives attempted to overcome years litigation in the intermediate appellate courts, we held in
of charging instrument case law through constitutional Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. Proc.
amendment and related legislation. It was the consensus 1990), that the constitutional mandate that an indictment
of lay and professional opinion that defects in the "charge an offense" does not mean "that each element of
pleading of indictments and informations ought not to the offense must be alleged..." It has been argued that
 Page 2
956 S.W.2d 547, *549; 1997 Tex. Crim. App. LEXIS 76, **2

Studer [**3] 's holding necessarily means that a pleading appear than an offense was committed, there is a
need not charge the "commission of an offense" to waivable defect of substance.
qualify as an indictment or information under the Texas
Constitution. Studer, 799 S.W.2d at 293 (Clinton, J., Cook, 902 S.W.2d at 483 (Tex. Crim. App.
dissenting); Cook v. State, 902 S.W.2d 471, 483 (Tex. 1995)(Maloney, J., concurring). Judge Maloney's
Crim. App. 1995)(Meyers, J., dissenting). Indeed, later understanding of Studer was inspired, at least in part, by
case law, citing Studer, only requires that an indictment Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App. 1994).
purport to charge an offense in order to vest the trial See Cook, 902 S.W.2d at 480 (Clinton, J., concurring)
court with jurisdiction, implying, perhaps, that an and 481 (Maloney, J., concurring) and 484 (Meyers, J.,
indictment no longer need actually charge an offense. Ex dissenting). In Fisher we addressed the problem of
parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. measuring the sufficiency of evidence against jury
1990); Ex parte Morris, 800 S.W.2d 225, 227 (Tex. Crim. charges that, after Studer, could no longer be assumed to
App. 1990). incorporate indictments that alleged all the elements of
the offense charged. There we held that the sufficiency of
But this Court has gleaned a different meaning from evidence to support a conviction under an instrument
Studer and its progeny. In Cook v. State, 902 S.W.2d 471 which does not charge all the elements of an offense
(Tex. Crim. App. 1995), we revisited the very argument should be measured on appeal against the statutory
advanced five years before in Studer, that an instrument offense which the State intended to charge, at least if it is
purporting to be an indictment or information is not really possible to determine from the face of the instrument
an indictment or information unless it actually charges "a which statutory offense the State really intended. Fisher,
person with the commission of an offense." In Cook, 887 S.W.2d at 55.
however, this argument was directed, not at failure of the
purported pleading to charge an offense, but at [**4] its But the Court in Fisher never squarely addressed
failure to charge a person. We accepted the argument, [**6] the question of what need be in a written
expressly holding that "to comprise an indictment within instrument before that instrument may be considered an
the meaning provided by the constitution, an instrument indictment. Although Judge Maloney suggested an
must charge: (1) a person; (2) with the commission of an answer in Cook, he did not speak for the Court. And so,
offense." 902 S.W.2d at 476. Because the written confusion on the topic persists.
instrument in Cook did not allege the identity of any
As this Court noted in Studer, the legislative history
person, we held that it was not an indictment or
behind the 1985 amendment and [*550] its attendant
information and the trial court had therefore never
legislation indicates that those changes meant to preserve
acquired jurisdiction to adjudicate Cook guilty of any
a written instrument as an indictment even "though it be
criminal offense. Accordingly, we reversed his conviction
flawed by matter of substance..." Studer, 799 S.W.2d at
and ordered that the purported charging instrument be
271. But, as we emphasized in Cook, not all "indictment"
dismissed.
defects are matters of substance such that a defendant
Thus, in Cook, we emphasized that a written must object to them before trial or lose his right to
instrument must charge a person with the commission of complain about them on appeal. Some defects, instead,
an offense in order to qualify as an indictment. But we remove the written instrument from the ambit of art.
did not elaborate upon this basic constitutional definition 1.14(b) because they render the instrument a
of an indictment. The only indication of what it meant to non-indictment. Cook, 902 S.W.2d at 478. Judge
charge a person "with the commission of an offense", in Maloney understood those defects to be of the type that
fact, came not in the majority opinion, but in Judge would make it impossible for the defendant to know with
Maloney's concurring opinion. Joining the Court, Judge what offense he had been charged. The legislative history
Maloney stated that: behind the 1985 changes supports this understanding:

...if enough is alleged to enable the identification of In essence what this [proposal] does is [to redefine]
an offense for purposes of subject matter jurisdiction what an indictment [**7] is. And [it] actually defines it
under the [**5] constitution, but the allegations are in fairly specific terms as to what...an indictment is
nevertheless deficient so that technically it does not supposed to do...Obviously, it is still important that each
and every person charged with an offense know what he
 Page 3
956 S.W.2d 547, *550; 1997 Tex. Crim. App. LEXIS 76, **7

is charged with. The definition under the [proposal] under which the State intends to prosecute, even if the
would do that. It would advise that person essentially instrument [*551] is otherwise defective. See Dix,
what he is charged with, but you don't have to worry supra; Cook, 902 S.W.2d at 483 (Maloney, J.,
about whether you described the car sufficiently, or the concurring). 3
weapon sufficiently, or those things, as long as it gives
some kind of notice of what the charge is. 1 Our case law indicates that art. I, § 10 is
concerned not only with the particular statutory
G. Dix, Texas Charging Instrument Law: The 1985 offense, but also with the specific incident of that
Revisions and the Continuing Need for Reform, 38 statutory offense. Flowers v. State, 815 S.W.2d
Baylor L.Rev. 1, at 39-40, n. 137 (Winter 1986), citing 724, 729 (Tex. Crim. App. 1991).
Hearing on Tex. H.R.J. Res. 7 Before the House Comm. 2 It may be argued that a defendant can protect
On Criminal Jurisprudence, 69th Leg., (Feb. 18, his art. I, § 10 rights by merely objecting to the
1985)(tape recording available from the Texas indictment prior to trial as required by art.
legislature). 1.14(b). But we have held that a defendant's art. I,
§ 10 rights to a grand jury indictment are not
This understanding is also in keeping with a forfeited by the failure to object. King v. State,
defendant's TEX. CONST. art. I, § 10 rights to a grand 473 S.W.2d 43 (Tex. Crim. App. 1971)(The right
jury screening. Id. at 43. Under art. I, § 10, a defendant to a grand jury indictment may be expressly
has a right to have a grand jury pass upon the question of waived but cannot be lost merely upon the failure
whether there is probable cause to believe that he to object); See also Ex Parte Long, 910 S.W.2d
committed a particular offense. 1 See TEX. CONST. art. 485, 487 (Tex. Crim. App. 1995) (Meyers, J.,
I, § 10, [**8] interp. commentary. A defendant also has concurring).
a right, under art. V, § 12, to the presentment of an [**10]
indictment from that grand jury. Id. While we have never 3 If it is true that, under art. I, § 10, a defendant
expressly stated that the indictment must reflect the grand has the right to demand that the grand jury pass
jury's assessment that there is probable cause to believe not only on whether there is probable cause that
that the defendant committed a particular offense, this he committed a particular statutory offense, but on
becomes apparent when the two rights are juxtaposed. whether there is probable cause that he committed
This is so because the written indictment most directly a particular statutory offense on a specific day and
evidences that the proper grand jury screening has taken time, then it might be argued that a defendant has
place. The effect upon these rights, the right to a grand a right to have those details reflected in the
jury screening and the right to have that screening indictment. See Flowers, supra. But to require
reflected in a written instrument, by our interpretation of that amount of specificity would undermine art.
"indictment" under art. V, § 12 is obvious. If we allow a V, § 12 as recently amended. Of course, a
written instrument to stand as an indictment even when it defendant may complain, for the first time on
does not contain enough information to point to the appeal, that the specific incident of a statutory
offense charged, then we seriously undermine a offense for which he was convicted differs from
defendant's art. I, § 10 rights to have the grand jury's the specific incident (of the same statutory
screening reflected in the indictment, and in so doing, a offense) for which he was indicted, but he cannot
defendant also loses his assurance that the appropriate complain, for the first time on appeal, that the
screening has taken place. 2 But in Cook v. State, 902 indictment is defective in that it did not reflect
S.W.2d at 478, we stated that, to the extent possible, we those details (and, thus, did not allow him to
ought not define an indictment [**9] under art. V, § 12 know what specific incident the grand jury passed
in such a way that we render a defendant's art. I, § 10 upon). Pursuant to art. 1.14(b), he must make that
rights to a grand jury screening meaningless. Recognizing objection before trial.
this sentiment, we today adopt as law the suggestion,
made by both Professor Dix and Judge Maloney, that a In the instant cause, we are once again asked [**11]
written instrument is an indictment or information under to hold that a purported indictment is not really an
the Constitution if it accuses someone of a crime with indictment because it does not charge "the commission of
enough clarity and specificity to identify the penal statute an offense." But unlike our earlier cases, this complaint is
 Page 4
956 S.W.2d 547, *551; 1997 Tex. Crim. App. LEXIS 76, **11

directed against a written instrument which does allege CONCUR
on its face all of the statutory elements comprising a
criminal offense under the Texas Penal Code. It charges
that appellant, acting with intent to arouse his own sexual CONCURRING OPINION ON APPELLANT'S
desire, had sexual contact with a child younger than
PETITION FOR DISCRETIONARY REVIEW
seventeen years of age who was not his spouse. These
allegations contain all of the statutory elements of MANSFIELD, J.
indecency with a child. See Texas Penal Code §
21.11(a)(1). But, according to appellant, the instrument Texas Constitution, Article V, § 12 provides:
also contains factual allegations establishing, if true, that
he is not guilty of indecency with a child. It alleges that An indictment is a written instrument presented to a
the sexual contact between appellant and the child court by a grand jury charging a person with the
occurred when appellant rubbed his penis between her commission of an offense. An information is a written
legs. Appellant argues that, because the law defines instrument presented to a court by an attorney for the
"sexual contact" only as "any touching of the anus, State charging a person with the commission of an
breast, or any part of the genitals of another person," and offense. The practice and procedures relating to the use of
because legs are not included, the purported indictment indictments, including their contents, amendment,
does not actually charge the commission of an offense sufficiency and requisites are provided by law. The
and is not, therefore, an indictment [**12] so as to confer presentment of an indictment or information to a court
jurisdiction on the trial court. The First Court of Appeals invests the court with jurisdiction of the cause.
disagreed, holding that the written instrument was,
indeed, an indictment because it was returned by a grand Texas Code of Criminal Procedure article 1.14
jury, purported to charge the appellant with the offense of provides:
indecency with a child, and was facially an indictment.
(b) If the defendant does not object to a defect, error,
The court of appeals did not err. The instant cause or irregularity of form or substance in an indictment or
does not involve a charging instrument which is even information before the date on which the trial on the
arguably defective on account of its failure to include one merits commences, he waives and forfeits the right to
or more allegations necessary to give notice of the object to the defect, error or [*552] irregularity and he
statutory offense with which the defendant was charged. may not raise the objection on appeal or in any post
As we have come to hold today, this is all that Studer and conviction [**14] proceeding. Nothing in this article
Cook require to satisfy the mandate of Art. V, § 12 that prohibits a trial court from requiring that an objection to
an indictment charge "the commission of an offense." an indictment or information be made at an earlier time in
This is true whether an indictment fails to allege one compliance with Article 28.01 of this Code.
element of an offense or whether it contains additional
An indictment, therefore, must, to be constitutionally
information that may indicate innocence. Thus, regardless
valid, be a written instrument which charges "a person"
of the inclusion of factual allegations that arguably
with "the commission of an offense." An indictment
evidence appellant's innocence, there is no doubt that the
serves two functions. First, the filing of an indictment is
State intended to accuse appellant of indecency with a
what vests the trial court with jurisdiction over a felony
child, and appellant does not claim otherwise.
offense. Labelle v. State, 720 S.W.2d 101, 106
The judgment of the court of appeals is therefore (Tex.Crim.App. 1986); Thompson v. State, 697 S.W.2d
affirmed. 413, 415 (Tex.Crim.App. 1985); King v. State, 473
S.W.2d 43, 47 (Tex.Crim.App. 1971). Second, it gives
[**13] MEYERS, Judge notice to the defendant of the offense of which he has
been charged so that he can prepare a defense. Saathoff
EN BANC v. State, 891 S.W.2d 264, 266 (Tex.Crim.App. 1994);
Evans v. State, 623 S.W.2d 924, 925 (Tex.Crim.App.
DELIVERED: October 8, 1997 1981).
CONCUR BY: MANSFIELD; Womack In Cook v. State, 902 S.W.2d 471 (Tex.Crim.App.
 Page 5
956 S.W.2d 547, *552; 1997 Tex. Crim. App. LEXIS 76, **14

1995), we held that a written instrument which fails to In the present case, the indictment contains the
charge "a person" with an offense is not an indictment as essential elements of the offense of indecency with a
defined by Article V, § 12(b) and Article I, Section 10 of child. Tex. Penal Code § 21.11(a)(1). It charges appellant
the Texas Constitution. 1 We held: with that offense, and meets all of the requirements to be
a facially valid indictment. The indictment describes the
1 In Cook the offense charged was theft of over sexual contact between appellant and the complainant as
$ 20,000 in United States currency. The charging consisting only of contact between the complainant's
instrument properly described the offense charge [**17] legs and appellant's penis. Appellant contends the
but failed to name the person charged with said indictment is constitutionally void ab initio because legs
offense. are not referenced in the definition of "sexual contact"
under Texas Penal Code § 21.01(2). This contention is
[**15] Accordingly, to constitute an indictment as without merit. 2 As correctly stated in the [*553]
required by Article V, § 12(b) and Article I, Section 10, a opinion of the Court, Studer and Cook require an
charging instrument must at least charge "a person" with indictment merely to charge "a person" with "the
the "commission of an offense." If the charging commission of an offense" to satisfy Article V, § 12. An
instrument completely fails to charge "a person" then it is indictment is not constitutionally defective merely
not an indictment and does not invest the trial court with because it fails to allege one or more elements of the
jurisdiction. Moreover, because a valid indictment is charged offense or contains language, as here, that may
essential for jurisdiction, the lack of same is not subject indicate innocence. Furthermore, appellant does not
to waiver under Article 1.14(b) due to a failure to make a demonstrate the indictment was so defective as to deny
timely objection to the indictment. Cook, supra, at him the ability to prepare his defense and thereby denied
479-480 (citations and footnotes omitted). him of his right to due process and due course of law
under Article I, Section 19 of the Texas Constitution. See
Therefore, an indictment which fails to name "a
Adams v. Texas, 707 S.W.2d 900 (Tex.Crim.App. 1986).
person" is not an indictment under the Texas Constitution
and its validity may be challenged on appeal even if no 2 This language may well have been
timely objection under Article 1.14(b) to it was made successfully challenged via a timely motion to
before the date on which appellant's trial commenced. quash under Article 1.14(b) as being defective.
Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. [**18] With these comments, I join the opinion of
1990), addresses the second requirement under the Texas the Court.
Constitution that must be met for an indictment to qualify
as such: that it "charge an offense." In Studer, this Court MANSFIELD, J.
held that while an indictment, to be valid, must charge
"an offense," it does not have [**16] to allege all of the DELIVERED OCTOBER 8, 1997
elements of that offense for it to pass constitutional
muster. The failure to include one or more elements of EN BANC
the offense in the indictment, while a defect of substance,
CONCURRING OPINION ON APPELLANT'S
is not a defect of constitutional magnitude causing the
indictment not to be an indictment under Texas PETITION FOR DISCRETIONARY REVIEW
Constitution Article V, § 12 provided the indictment
charges an identifiable offense under the Texas Penal Womack, Judge
Code. In effect, an indictment which merely omits one or
more elements of the offense charged is defective as The question in this case is whether the appellant,
being incomplete; such defects are waived if not timely who did not object to the indictment before trial, may
raised in the manner prescribed under Article 1.14(b). raise on appeal a claim that the indictment does not
Studer, supra, at 268; Cook, supra, at 477; Rodriguez v. charge an offense. I believe that he may not. The Court
State, 799 S.W.2d 301, 303 (Tex.Crim.App. 1990); Ex holds that he may, because some indictments are not
parte Morris, 800 S.W.2d 225, 227 (Tex.Crim.App. indictments, thereby resurrecting the doctrine of the
1990). fundamentally defective indictment.
 Page 6
956 S.W.2d 547, *553; 1997 Tex. Crim. App. LEXIS 76, **18

On June 21, 1994 this indictment was presented: This Court's predecessor, the Court of Appeals, held
in its first term that an appeal could be based on an error
IN THE NAME AND BY AUTHORITY OF THE in the substance of an indictment to which no objection
STATE OF TEXAS: had been made at trial.

The duly organized Grand Jury of Harris County, Whatever is essential to the gravamen of the
Texas, presents in the District Court of Harris County, indictment must be set out particularly, and whenever it
Texas, that in Harris County, Texas, RUBEN DURON, clearly appears in the record that the defendant has been
JR., hereafter styled the Defendant, on or about APRIL convicted on an indictment that is clearly defective in
2, 1994, did then and there unlawfully, with intent to substance, although, as in the present case, neither
arouse the sexual desire of the Defendant, have sexual exception, motion, nor assignment of error is presented
contact with [A.B.], hereafter styled the Complainant, a on behalf of appellant, it will be held insufficient to
child under the age of seventeen years and not his spouse, support a conviction.
by rubbing his penis between [A.B.'s] legs,
White v. State, 1 Texas Ct. App. 211, 215 (1876)
AGAINST THE PEACE AND DIGNITY [**19] (burglary indictment failed to set out the elements of the
OF THE STATE. intended theft). Eventually this Court held that a
judgment based on such an indictment was "void, rather
FOREPERSON 177TH than [*554] voidable," [**21] and could be attacked
for the first time in collateral proceedings as well as
[signature]
appeals. Standley v. State, 517 S.W.2d 538, 541 (Tex. Cr.
FOREMAN OF THE GRAND JURY App. 1975). Such indictments were "fundamentally
defective." Ibid. Untold thousands of judgments were
The appellant made no motion to set aside, 1 reversed or set aside for pleading errors which had not
exception to, 2 or other objection to, the indictment. been pointed out to the trial court.

1 Tex. Code Crim. Proc. art. 27.03. Legislative attempts to reform pleading practice were
2 Tex. Code Crim. Proc. arts. 27.08 & 27.09. unavailing. The Court of Appeals held that the
constitutional requirement of an "indictment" 3 meant an
On September 22, 1994 the appellant waived his indictment that was pleaded under the practice at the time
right to trial by jury with the consent of the State; he the Constitution of 1876 was adopted -- that is, one that
pleaded guilty, and he made a written, judicial confession had all the essential elements. Williams v. State, 12
in the terms of the indictment. There was no agreement Texas Ct. App. 395 (1882). Therefore an indictment that
that the State would recommend a certain punishment or did not charge an offense was not an "indictment" in
restrict its argument. The appellant filed a written motion terms of the constitution. 4
for community supervision. The case was continued to
December 9. A pre-sentence investigation report was 3 Tex. Const. art. I, § 10.
prepared. On December 9, 1994 the court found the 4 See also Smis v. State, 43 Tex. 521 (1875)
appellant guilty and, after hearing evidence and argument (indictment also required by Tex. Const. art V, §
and considering the pre-sentence report, sentenced the 12 to conclude "Against the peace and dignity of
appellant to two years' imprisonment. The appellant gave the State").
notice of appeal and remained at large on appeal bond.
The appellant [**22] makes the same argument in
The appellant's [**20] first point of error was that this case:
the indictment failed to allege the offense of indecency
with a child. A divided panel of the court of appeals held An indictment must charge an offense. The Texas
that the appellant waived his claim because he did not Constitution says so. See Cook v. State, 902 S.W.2d 471,
object before trial. Duron v. State, 915 S.W.2d 920 (Tex. 477 (Tex. Cr. App. 1995), citing Studer v. State, 799
App. -- Houston [1st] 1996). We granted discretionary S.W.2d 263, 272 (Tex. Cr. App. 1990). Here the
review on the question of waiver. indictment on its face does not charge a violation of
Section 21.11, but rather charges specific conduct which
 Page 7
956 S.W.2d 547, *554; 1997 Tex. Crim. App. LEXIS 76, **22

is not within the scope of "sexual conduct." The Court says that "the meaning and effect of this
statute were unclear." Ante at 956 S.W.2d 547, 548. There
Appellant's Brief at 21-22. As another court said in is nothing unclear about it. As we held in Studer v. State,
response to an argument that the law was not changed by supra, the constitutional amendment and its
a constitutional amendment, "The people of the state accompanying legislation mean that a defendant waives
adopted the amendment for the purpose of ridding the the right to appeal a defect of substance in an indictment
state of the incubus which the construction contended for if he does not raise an objection before trial:
had saddled upon it." Harris County v. Stewart, 91 Tex.
133, , 41 S.W. 650, 655 (1897). [*555] When Art. V., § 12 is read in conjunction
with the code provisions regulating the practices and
The same argument that the appellant presents was procedures governing charging instruments, it is clear the
rejected in Studer v. State, supra. This Court held that the amendment to [Code of Criminal Procedure] Art. 1.14
appellant's argument cannot prevail after the 1985 did not change what constitutes a substance defect, but
amendment to Article V, Section 12(b) of the Texas rather only its effect. The change in Art. 1.14(b) requires,
Constitution, which now reads: among other things, that substance exceptions be raised
pre-trial or otherwise the accused has forfeited his right to
An indictment is a written instrument presented to a raise the objection on appeal or by collateral [**25]
court by a grand jury charging a person with the attack. If omitting an element from an indictment is still a
commission of an offense. An information is a written defect of substance in an indictment, it naturally follows
[**23] instrument presented to a court by an attorney for that the indictment is still an indictment despite the
the State charging a person with the commission of an omission of that element.
offense. The practice and procedures relating to the use of
indictments and informations, including their contents, Studer v. State, supra, at 268.
amendment, sufficiency, and requisites, are as provided
by law. The presentment of an indictment or information The Court's resurrection of the
to a court invests the court with jurisdiction of the cause. fundamentally-defective indictment doctrine is made in
complete disregard of the will of the people, which they
The amendment was specifically intended to undo have expressed directly through amendment of the
the doctrine of the fundamentally defective indictment, as Constitution and indirectly through the enactment of
this Court explained in detail in Studer v. State, supra, at Article 1.14.
268-72. "In conclusion then, the language in Art. V, § 12,
'charging a person with the commission of an offense,' I do not know what the people of this state, their
does not mean, under this analysis, that each element of legislators, and their governor can do to eliminate this
the offense must be alleged in order to have an indictment pernicious doctrine. The argument that an indictment is
or information as contemplated by Art V, § 12." Id. at not an indictment if it has a defect seems irresistible. I
272. believe that if this Court were abolished, its chambers
demolished, the ground plowed up, and the site paved
Legislation which accompanied the constitutional over, one day a crack would appear in the concrete, and
amendment enacted Tex. Code. Crim. Proc. art. 1.14(b): through that crack a black-robed arm would thrust an
opinion that says, "We hold that the indictment in this
If the defendant does not object to a defect, error, or case was not an indictment."
irregularity of form or substance in an indictment or
information before the date on which the trial on the The Court reaches the right result in this case, but for
merits commences, he waives and forfeits the right to reasons that are obviously wrong. The conviction in this
object [**24] to the defect, error, or irregularity and he case is affirmed, but make no mistake -- after it will
may not raise the objection on appeal or in any other [**26] come the renewed deluge of convictions set aside
postconviction proceeding. Nothing in this article for no good reason.
prohibits a trial court from requiring that an objection to
an indictment or information be made at an earlier time in Womack, Judge
compliance with Article 28.01 of this code.
En banc
 Page 8
956 S.W.2d 547, *555; 1997 Tex. Crim. App. LEXIS 76, **26

Delivered: October 8, 1997 concurrence

Presiding Judge McCormick, and Keller, J., join this
 Page 1

BRYAN C. HARRISON, Appellant, v. THE STATE OF TEXAS, Appellee. JOHN
G. BENAVIDES, Appellant, v. THE STATE OF TEXAS, Appellee.

CAUSE NUMBER 13-01-547-CR, CAUSE NUMBER 13-01-548-CR

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS
CHRISTI

76 S.W.3d 537; 2002 Tex. App. LEXIS 1773

March 7, 2002, Delivered
March 7, 2002, Filed

PRIOR HISTORY: [**1] On appeal from the 36th court erred by denying their motions to quash the
District Court of Arkansas County, Texas. indictments. Because the point of error raised by each
appellant and the facts surrounding each appellant's
DISPOSITION: AFFIRMED. appeal are identical, we will address them together in this
one opinion. We affirm.

COUNSEL: ATTORNEY FOR APPELLANT: David L. 1 Appellants were hunting together when the
Cunningham, Killian, Hayden & Cunningham, San events leading to their indictment occurred. The
Antonio, TX. record indicates that, while hunting on San Jose
Island, Aransas County, Texas, Harrison shot and
ATTORNEY FOR APPELLEE: Patrick L. Flanigan, killed a six-point white-tail buck and Benavides
District Attorney, Sinton, TX. shot and killed a seven-point white-tail buck.

JUDGES: Before Justices Dorsey, Yanez, and Castillo. [**2] Appellants argue that the indictments in their
Opinion by Justice Yanez. cases failed to allege: (1) appellants knew the property on
which the offenses were committed was private property;
OPINION BY: LINDA REYNA YANEZ (2) the landowner did not give consent to hunt, kill, or
possess wildlife resources on the property; and (3) the
OPINION appellants knew that the landowner had not consented. 2
We review a challenge to a trial court's ruling on a
[*539] Opinion by Justice Yanez motion to quash an indictment under an abuse of
discretion standard. Thomas v. State, 621 S.W.2d 158,
Appellants were indicted for the state jail felony
163 (Tex. Crim. App. 1980).
offense of taking a wildlife resource without the consent
of the landowner. 1 See TEX. PARKS & WILD. CODE 2 With the exception of the defendants' names
ANN. § 61.022 (Vernon Supp. 2002). Both appellants and cause numbers, the indictments are identical.
moved to quash their indictments. When the court denied
the appellants' motions, they pleaded nolo contendere. In In general, an indictment must plead any element
one point of error, appellants now argue that the trial that must be proved at trial. See TEX. CODE CRIM.
 Page 2
76 S.W.3d 537, *539; 2002 Tex. App. LEXIS 1773, **2

PROC. ANN. art 21.03 (Vernon 1989); Green v. State, 4 Appellants argued in their motions to quash
951 S.W.2d 3, 4 (Tex. Crim. App. 1997). An indictment that the San Jose Island lacked signs or other
must contain the elements of the offense charged, fairly markings "to identify that this land was not the
inform the defendant of charges he must prepare to meet, property of the State of Texas."
and enable the [**3] defendant to plead acquittal or
conviction in bar to future prosecution for the same The indictments at issue state that the appellants "did
offense. TEX. CODE CRIM. PROC. ANN. art 21.11 . . . intentionally, knowingly and recklessly hunt, kill and
(Vernon 1989); Sanchez v. State, 928 S.W.2d 255, 259 possess a wildlife resource, to wit: one white-tailed deer,
(Tex. App.-Houston [14th Dist.] 1996, no pet.). When on San Jose Island, without the consent of the
construing an indictment, we read the indictment as a landowner's agent . . . ." The indictments correctly charge
whole, applying practical, rather than technical the appellants with hunting and possessing a wildlife
considerations. Oliver v. State, 692 S.W.2d 712, 714 resource in a county or place in the state, without the
(Tex. Crim. App. 1985); Soto v. State, 623 S.W.2d 938, consent of the landowner's agent. See TEX. PARKS &
939 (Tex. Crim. App. 1981). WILD. CODE ANN. § 61.022 (Vernon 2002).

Under the Texas Parks and Wildlife Code, no one Appellants contend that the State must prove that
"may hunt or catch by any means or method or possess a appellants knew they were hunting without the consent of
wildlife resource at any time and at any place covered by the landowner's agent and, appellants argue, the
this chapter unless the owner of the land or water, or the indictments do not allege that they were hunting without
owner's agent, consents." TEX. PARKS & WILD. CODE the consent of the landowner or the owner's agent.
ANN. § 61.022(a) (Vernon Supp. 2002) (emphasis
The State concedes that, had these cases gone to trial,
added). Chapter 61 of the Texas Parks and Wildlife Code
it would have been required to prove that the appellants
does not apply solely to [*540] private property but
knew they were acting without [**6] the consent of the
applies to every "county" and "place" in the state. TEX.
landowner, or landowner's agent. Both the State and the
PARKS & WILD. CODE ANN. § 61.003 (Vernon Supp.
appellants agree that when otherwise innocent behavior
2002). On its face, the code prohibits [**4] hunting
becomes criminal because of the circumstances under
anywhere within the State of Texas without the consent
which the behavior occurs, a culpable mental state is
of the owner of the land or the owner's agent. This would
required as to those circumstances, citing McQueen v.
apply to public lands also. 3 Thus, a person needs the
State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In
consent of a landowner, or the landowner's agent, to hunt
McQueen, a case involving the unauthorized use of a
anywhere in Texas. Therefore, an indictment for the
motor vehicle, the court of criminal appeals recognized
violation of section 61.022 need not allege that the
that conduct may be rendered criminal based on: (1) the
offense took place on private property: the indictment
nature of the conduct; (2) the result of the conduct; or (3)
need only allege that the person hunted, caught or
the circumstances surrounding the conduct. Id. The court
possessed a wildlife resource in a county or place in
of criminal appeals recognized that the act of using a
Texas, and was acting without the consent of the
motor vehicle is not criminal by nature, and further, the
landowner. 4 See TEX. CODE CRIM. PROC. ANN. art
section of the penal code dealing with unauthorized use
21.03 (Vernon 1989); Green, 951 S.W.2d at 4.
of a motor vehicle does not prohibit any specific result of
3 The Parks and Wildlife Code provides the the use of a motor vehicle. Id. The McQueen court held
means by which a person may acquire permission that what renders the use of another person's motor
from the state to hunt on property owned by the vehicle a criminal act is "that it is done under certain
state. See TEX. PARKS & WILD. CODE ANN. § circumstances, i.e., without the owner's permission." Id.
62.062 (Vernon Supp. 2002)(Parks and Wildlife The court of criminal appeals held that "where otherwise
Commission may prescribe a hunting season for innocent behavior becomes criminal [**7] because of the
state parks, forts or sites); see also TEX. PARKS circumstances under which it is done, a culpable mental
& WILD. CODE ANN § 81.403 (Vernon Supp. state is required as to those surrounding circumstances."
2002) (discussing permitting of hunting on state McQueen, 781 S.W.2d at 603 (citing McClain v. State,
wildlife management areas). 687 S.W.2d 350, 354 [*541] (Tex. Crim. App. 1985)
[**5] (what separates lawful acquisitive conduct from theft is
 Page 3
76 S.W.3d 537, *541; 2002 Tex. App. LEXIS 1773, **7

knowledge of a circumstance surrounding the conduct, render it fatally defective. Soto, 623 S.W.2d at 939. In
that it is without the owner's consent)). Soto, the court of criminal appeals held that an indictment
charging aggravated assault was not fatally defective for
We agree that the crime of taking wildlife resources alleging the culpable mental state "recklessly" as well as
without the consent of the landowner under section the statutorily required culpable mental states
61.022 requires a culpable mental state. Hunting is not, "intentionally" or "knowingly." Id.; see also Kirk v.
by its nature, a criminal act, and section 61.022 does not State, 643 S.W.2d 190, 193 (Tex. App.-Austin 1982, pet.
prohibit any specific result. What makes hunting or ref'd) (applying Soto [**9] ; indictment which included
possessing a wildlife resource a criminal act under "should have been aware," which was not a culpable
section 61.022 is a circumstance; that it is done without mental state prescribed for the offense, not fatally
the landowner's consent. Thus, it follows that a person, to defective). In the appeals now before this Court, as in
be convicted under section 61.022, must be shown to Soto, no essential element of culpability was omitted in
have been acting without the consent of the owner, or the the indictments since the required mental states were
owner's agent, and must have known that he was acting alleged. See Soto, 623 S.W.2d at 939.; see also Kirk, 643
without the owner's consent. However, this does not S.W.2d at 193. The indictments at issue sufficiently
change the outcome of this case. allege the elements of the offense charged, including the
culpable mental state, fairly informed appellants of the
The indictments in question sufficiently state the charges, and enabled the appellants to plead acquittal or
culpable mental states being alleged. A person [**8] conviction in bar to future prosecution for the same
violates section 61.022 by the intentional act of hunting, offenses.
catching, or possessing a wildlife resource with the
knowledge that he does not have the consent of the We hold the trial court did not abuse its discretion by
landowner, or landowner's agent. TEX. PARKS & WILD. refusing to quash the indictments in the cases now before
CODE ANN. § 61.022(a) (Vernon Supp. 2002). The this Court. We overrule the sole point of error raised by
indictments alleged that the appellants acted the appellants. The judgments of the trial court are
"intentionally, knowingly and recklessly" and without the AFFIRMED.
consent of the landowner's agent. The indictments
correctly pleaded the mental states necessary for the LINDA REYNA YANEZ
offense that the State would have been required to prove
at trial. Justice

Although appellants do not challenge the inclusion of Opinion delivered and filed this the
"recklessly" in the indictment, we note that the incorrect
7th day of March, 2002.
inclusion of "recklessly" in the indictment does not
 Page 1

J. C. HUTCH, Appellant v. THE STATE OF TEXAS, Appellee

NO. 1231-94

COURT OF CRIMINAL APPEALS OF TEXAS

922 S.W.2d 166; 1996 Tex. Crim. App. LEXIS 37

April 3, 1996, Delivered

PRIOR HISTORY: [**1] Petition for Discretionary A.
Review from the FIRST Court of Appeals. 351st District
Court of Harris County. The Trial Court

According to the State's testimony, Houston police
COUNSEL: Frances M. Northcutt, Houston. officers stopped a vehicle, in which appellant was a
front-seat passenger, because neither appellant nor the
Alan Curry, Assist. DA, Houston. driver were wearing seat belts. As the officers
approached the vehicle, appellant leaned forward and
JUDGES: BAIRD, Judge, Clinton, J., concurs in the dropped an object on the floor of the car. This object was
result. KELLER, J., McCormick, P.J., White and later determined to be cocaine. However, appellant
Mansfield, J.J. join. testified [**2] he and the driver were wearing their seat
belts at the time of the stop.
OPINION BY: BAIRD
Because appellant's testimony contradicted that of
OPINION the officers, the legality of the stop was called into
question. Accordingly, the trial judge instructed the jury
as required by Tex. Code Crim. Proc. Ann. art. 38.23 that
[*169] OPINION ON APPELLANT'S PETITION FOR illegally obtained evidence was not admissible:
DISCRETIONARY REVIEW
You are instructed that no evidence
A jury convicted appellant of possession of cocaine obtained by an officer or other person in
and the trial judge assessed punishment at forty years violation of any provisions of the
confinement. The Court of Appeals affirmed. Hutch v. Constitution or laws of the State of Texas,
State, 881 S.W.2d 92 (Tex. App.--Houston [1st] 1994). or of the Constitution or laws of the
We granted review to consider whether the Court of United States of America, shall be
Appeals correctly applied the test for determining admitted in evidence against the accused
whether an erroneous jury charge caused egregious harm. on the trial of any criminal case.
We will reverse.
The trial judge then charged the jury as follows:
I. An officer is permitted, to make a
temporary investigative detention of a
 Page 2
922 S.W.2d 166, *169; 1996 Tex. Crim. App. LEXIS 37, **2

motorist if the officer has a reasonable Appellant accurately points out that the
suspicion that some activity out of the court misstated the law. The police could
ordinary has occurred, that the person lawfully detain if appellant were not
detained is connected with such activity, wearing a seatbelt, and the police could
and that there is some indication that the not lawfully detain if appellant were
activity is related to crime or a criminal wearing a seatbelt. The statement that a
offense. Now bearing in mind these detention was illegal if appellant were not
instructions, if you find from the evidence wearing a seatbelt is unquestionably
that on the occasion in question the driver wrong. (Citation omitted.)
and front seat passenger were [**3] not
wearing seat belts immediately preceding Hutch, 881 S.W.2d at 94.
the stop and detention by the police
officer, or you have a reasonable doubt Because there was no objection to the erroneous jury
thereof, then such stopping of the accused charge, the Court of Appeals purported to conduct the
would be illegal, and if you find the facts harm analysis prescribed by Bailey v. State, 867 S.W.2d
so to be, or if you have a reasonable doubt 42, 43 (Tex.Cr.App. 1993), and Almanza v. State, 686
thereof, you will disregard the testimony S.W.2d 157 (Tex.Cr.App. 1985). The Court concluded no
of the officer relative to his stopping the egregious harm was shown because the jury was correctly
defendant and his conclusions drawn as a instructed elsewhere in the jury charge, and further,
result thereof and you will not consider because the prosecutor and defense attorney correctly
such evidence for any purpose whatsoever. argued the law. Hutch, 881 S.W.2d at 94-95. The Court
1 reasoned the correct general instruction, coupled with the
arguments of the attorneys, cured [**5] any error
resulting from the incorrect application of the law to the
facts:
1 All emphasis is supplied unless otherwise
indicated. ... It was clear to the jurors that they
were not to consider the evidence seized if
Near its end, the jury charge stated: they found that appellant and the driver
were wearing seat belts, or if they had a
You are the exclusive judges of the facts reasonable doubt about that fact.
proved, of the credibility of the witnesses
and the weight to be given their testimony, Id., 881 S.W.2d at 95 (emphasis in original).
but the law you shall receive in these
[*170] written instructions, and you must Justice O'Connor dissented, arguing the misstatement
be governed thereby. 2 of the law constituted egregious harm and deprived
appellant of a fair trial. Id., 881 S.W.2d at 96. Justice
O'Connor found nothing in the record to demonstrate the
jury correctly understood or applied the law, and argued:
2 See, Tex. Code Crim. Proc. Ann. art. 36.13.
"It cannot be harmless error to instruct the jury that the
[**4] Appellant did not object to the jury charge. law is the opposite of what it actually is." Ibid. Appellant
Id. petitioned this Court for review of the Court of Appeals'
decision. The State did not file a cross-petition.
B.
II.
The Court of Appeals
The Almanza Standard of Harm
On appeal, appellant contended the charge was not a
correct statement of the law. The Court of Appeals The purpose of the jury charge is to inform the jury of the
agreed: applicable law and guide them in its application to the
case:
 Page 3
922 S.W.2d 166, *170; 1996 Tex. Crim. App. LEXIS 37, **5

"valuable right," or "vitally affect a defensive theory."
It is not the function of the charge Id., 686 S.W.2d at 172 (citations omitted). Moreover, we
merely to avoid misleading or confusing do not require direct evidence of harm to establish
the jury; it is the function of the charge to egregious harm. Castillo-Fuentes [**8] v. State, 707
lead and to prevent confusion. A [**6] S.W.2d 559, 563, n. 2 (Tex.Cr.App. 1986).
charge that does not apply the law to the
facts fails to lead the jury to the threshold In either event, when conducting a harm analysis the
of its duty: to decide those fact issues. reviewing court may consider the following four factors:
1) the charge itself; 2) the state of the evidence including
Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App. 1977). contested issues and the weight of the probative evidence;
The jury charge must allow the jury to determine the 3) arguments of counsel; and, 4) any other relevant
defendant's guilt in light of the evidence and the law. information revealed by the record of the trial as a whole.
Benson v. State, 661 S.W.2d 708, 715 (Tex. Cr.App. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App. 1993)
1982). And, absent evidence to the contrary, we presume (citing Almanza).
the jury followed the law provided by the charge. See,
B.
Rose v. State, 752 S.W.2d 529, 554 (Tex.Cr.App. 1987)
(op'n on reh'g); and, Cobarrubio v. State, 675 S.W.2d Because appellant did not preserve the jury charge
749, 752 (Tex.Cr.App. 1983). error, resolution of the instant case requires an egregious
harm analysis. Egregious harm is a difficult standard to
A.
prove and such a determination must be done on a
In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. case-by-case basis. We have undertaken that task on
1985) (op'n on reh'g), the defendant raised for the first several occasions to determine whether the courts of
time on appeal a variance between the jury charge and his appeals correctly applied the analysis required by
indictment. Id., 686 S.W.2d at 159. The Court of Appeals Almanza.
found error in the charge and reversed. However, we
For example, in Ruiz v. State, 753 S.W.2d 681, 686
reviewed that decision and, in the process, dispensed with
(Tex.Cr.App. 1988), the Court focused on the charge
the practice of automatically reversing upon a finding of
itself to determine egregious harm. Ruiz was charged
jury charge error.
with murder but the record contained some evidence that
In Almanza, we held that Tex. Code Crim. Proc. Ann. Ruiz may be guilty only of the lesser included offense of
art. 36.19 prescribed the manner in which jury charge voluntary manslaughter. However, the trial judge [**9]
error is reviewed on appeal. [**7] Almanza, 686 S.W.2d failed to instruct the jury on the State's burden to prove
at 171. First, an appellate court must determine whether the Ruiz's actions were not the result of sudden passion
error exists in the jury charge. Second, the appellate court arising from an adequate cause in the murder application
must determine whether sufficient harm was caused by paragraph. We held Ruiz suffered egregious harm
the [*171] error to require reversal. Arline v. State, 721 because a possibility existed that the jury was confused
S.W.2d 348, 351 (Tex.Cr.App. 1986). The degree of harm and misled into ending their deliberations under the
necessary for reversal depends upon whether the error incorrect instruction on the law. The charge lowered the
was preserved. Ibid. Error properly preserved by an State's burden of proof, creating the possibility Ruiz was
objection to the charge will require reversal "as long as convicted on less than all the elements of murder. Id.,
the error is not harmless." Almanza, 686 S.W.2d at 171. 753 S.W.2d at 684.
We have interpreted this to mean any harm, regardless of
In Manning v. State, 730 S.W.2d 744 (Tex.Cr.App.
degree, is sufficient to require reversal. Arline, 721
1987), a jury trial was held to determine the competency
S.W.2d at 351. However, when the charging error is not
of the defendant. Id., 730 S.W.2d at 745. Although proof
preserved a greater degree of harm is required. This
of a prior, unvacated finding of incompetency was
standard of harm is described as "egregious harm."
produced, the trial judge instructed the jury that the State
Almanza, 686 S.W.2d at 171. We explained that errors
had the burden of proving the defendant competent to
which result in egregious harm are those which affect
stand trial by a preponderance of the evidence. We held
"the very basis of the case," deprive the defendant of a
the charge incorrectly instructed the jury on the State's
 Page 4
922 S.W.2d 166, *171; 1996 Tex. Crim. App. LEXIS 37, **9

burden of proof and found egregious harm: Williams v. State, 851 S.W.2d 282, 289 (Tex.Cr.App.
1993) (No egregious harm where error related to
In light of the existing adjudication of incidental theory of defense.).
incompetency ... we cannot say that
appellant was not harmed by the jury's At times we look to any other relevant information
consideration of the evidence under a revealed by the record of the trial as a whole to determine
lesser burden [**10] of proof than should egregious harm. For example, in Saunders v. State, 817
have been given. S.W.2d 688 (Tex.Cr.App. 1991), the defendant was
convicted of conspiracy to commit arson upon the
Id., 730 S.W.2d at 750. Thus, in some cases, the charge testimony of an accomplice witness. However, the jury
itself will demonstrate egregious harm. was not instructed that accomplice testimony must be
corroborated. Saunders, 817 S.W.2d at 689. See, Tex.
On the same day Almanza was delivered, we decided [**12] Code Crim. Proc. Ann. art. 38.14. We reviewed
Kucha v. State, 686 S.W.2d 154 (Tex.Cr.App. 1985), the record and determined the accomplice's testimony
wherein we considered the "state of the evidence" prong was critical to the outcome of the trial. We held failure to
of the Almanza analysis. In Kucha, the State sought to instruct the jury on the need to corroborate the
enhance the defendant's punishment by proving he was accomplice's testimony effectively denied the defendant a
an habitual criminal. The jury charge correctly instructed fair trial and, thus, constituted egregious harm. Saunders,
the jury on the range of punishment if they determined 817 S.W.2d at 693.
the defendant was an habitual criminal, but failed to
instruct the jury otherwise. Id., 686 S.W.2d at 155. We III.
held such error was not egregious:
Application of the Law
... The fact of the prior convictions was
not a contested issue at all. Appellant's Turning to the instant case, the Court of Appeals was
plea of "not true" only put the State to its required to determine whether the error affected the very
[*172] proof. Considering that the basis of the case, deprived the defendant of a valuable
evidence of the prior convictions was right, or vitally affected his defensive theory -- in short,
undisputed, uncontradicted, and seemed to whether appellant suffered egregious harm. Almanza,
have been taken almost as a "given" by the 686 S.W.2d at 172.
parties, we hold that the failure of the
A.
court to charge on the range of punishment
if the enhancements were found to be The application paragraph instructed the jury to
untrue, was not so harmful that it deprived ignore the police officer's testimony and resulting
appellant of a fair and impartial trial. evidence if the jury believed the stop and detention of
[**11] If the evidence of the prior appellant occurred because seat belts were not being
conviction had not been so strong, or if worn. As the Court of Appeals noted, the instruction was
appellant had contested it in some fashion, "unquestionably wrong." Hutch, 881 S.W.2d at 94. As
this issue would not be so clearcut. But, noted by Justice O'Connor, the instruction was 180
from the record it appears that all parties, degrees opposite of what it should have been. 881
including appellant, assumed the fact of S.W.2d at 96. Nevertheless, the Court of Appeals held the
the prior conviction and did not dispute its [**13] otherwise correct instructions within the jury
truth. Also, the prior was proven beyond a charge were sufficient to prevent any misunderstanding
reasonable doubt by the State. In light of or confusion. The Court of Appeals noted that nothing in
the record we hold that the error was not the record indicates the jury misunderstood the applicable
fundamental. law. 881 S.W.2d at 94-95. This holding is erroneous for
at least two reasons.
Id., at 156. Thus, in Kucha, we held that one of our
considerations in the determination of egregious harm is First, the Court of Appeals did not consider the
whether the error related to a "contested issue." See also, appellate presumption that the jury is presumed to have
 Page 5
922 S.W.2d 166, *172; 1996 Tex. Crim. App. LEXIS 37, **13

understood and followed the court's charge absent S.W.2d at 685. 5 Compare, Kucha, 686 S.W.2d at 156;
evidence to the contrary. Rose, supra; Cobarrubio, supra; and, Williams, 851 S.W.2d at 289. Whether appellant was
see generally, Gardner v. State, 730 S.W.2d 675, 696 to be convicted depended upon whose testimony the jury
(Tex.Cr.App. 1987). Under this presumption, we must found credible. Consequently, we hold the Court of
presume the jury followed the erroneous instruction Appeals' analysis under the second Almanza factor was
which authorized the stop if appellant was wearing a seat erroneous.
belt. In fact the opposite is true; such a stop would have
been illegal. Under the erroneous instruction, the only 3 The Court of Appeals stated: "For the jury to
way the jury could have convicted was by using illegally have been confused on the law would have
obtained evidence. required it to have ignored both [the State's and
appellant's] unequivocal evidence." Hutch, 881
Second, it is important to note that the error occurred S.W.2d at 94. Moreover, Judge Keller argues that
in the application paragraph. The application paragraph is the jury charge authorized acquittal on the wrong
that portion of the charge which authorizes the jury to act. basis, but did not authorize conviction on the
Jones v. State, 815 S.W.2d 667, 669 (Tex.Cr.App. 1991). wrong basis. Ante, at ___, slip op. pg. 1. This
Consequently, [**14] even though the charge elsewhere argument is not supported by the record. As noted
contained a correct statement of art. 38.23, that above, the issue of the legality of the stop was
instruction did not authorize the jury to consider or not hotly contested. Because of the way the issue was
consider the evidence obtained from appellant's stop. It is developed in this case the jury necessarily
not sufficient for the jury to receive an abstract assumed the only way the contraband could be
instruction on the law. Williams, 547 S.W.2d at 20. An considered was if appellant was wearing a seat
abstract [*173] charge does not inform the jury of what belt.
facts, if found by it, would permit the jury's consideration [**16]
of the contested evidence. Ibid. Rather, the authority to 4 If the officer's testimony as to the stop being
consider or not consider the evidence obtained from legal was uncontroverted, no factual issue would
appellant's stop came solely from the erroneous arise and no instruction would be required. By the
application paragraph. The Court of Appeals did not same token, if the defendant's testimony as to the
consider that the correct statement of art. 38.23 did not stop being illegal were not controverted, the trial
authorize the jury to correctly apply the law. judge would not have admitted the evidence. Tex.
Consequently, the Court of Appeals' analysis under the Code Crim. Proc. Ann. art. 38.23.
first factor of Almanza was erroneous. 5 In Ruiz we noted that the testimony on the
defensive theory was "substantial." Id., 753
B. S.W.2d at 685. In the instant case, the testimony
as to the reason for appellant's stop was obviously
The second factor of the Almanza analysis requires a substantial.
determination of whether the jury charge error related to
a contested issue. However, the Court of Appeals Finally, in our analysis of this factor, after reviewing
considered whether the testimony was equivocal. 3 This the entire record, we find nothing to indicate the jury did
was erroneous. Under an Almanza analysis, there is no not follow the trial judge's erroneous instruction.
requirement that the testimony be equivocal; in fact
parties [**15] often present unequivocal evidence to C.
support their respective sides of the case. Instead, this
factor asks if the jury charge error related to a contested The next factor in our analysis is the jury argument.
issue. In the instant case, the issue was obviously Bailey, 867 S.W.2d at 43. Although neither party
contested, otherwise an instruction would not have been corrected the erroneous instruction, the parties correctly
required. Thomas v. State, 723 S.W.2d 696, 707 argued their respective positions. 6 In other words, the
(Tex.Cr.App. 1986) (When a factual dispute arises as to State argued that the stop of appellant was legal and that
whether the evidence was legally obtained, a charge on the evidence should be considered while appellant argued
the issue is required.). 4 In fact, the legality of the stop the stop was illegal and the evidence [**17] should not
was the crux of appellant's case. Accord, Ruiz, 753 be considered. However, these were only small portions
of the arguments; the bulk of the arguments were devoted
 Page 6
922 S.W.2d 166, *173; 1996 Tex. Crim. App. LEXIS 37, **17

to the issue of the credibility of the witnesses. contest, where the persuasiveness
of competing applications of the
6 Judge Keller agrees that the jury charge was law to the facts determines guilt or
erroneous but contends that it did not indicate the innocence. ...
"converse." The jury arguments, appellate record
and the opinion of the Court of Appeals belie this
contention. Hutch, 881 S.W.2d at 94. [**19] D.

It is axiomatic that jury arguments are not evidence For these reasons we hold the Court of Appeals
and the jury may not consider them as such. In the instant incorrectly applied the egregious harm analysis of
case, the trial judge, immediately after reading the jury Almanza and erred in concluding the error did not vitally
charge, stated: "Please remember that you have been affect appellant's defensive theory. 9
instructed that what the attorneys say is not evidence in
this case." Nor do jury arguments serve to instruct the 9 Throughout part III of this opinion we have
jury on the law. In the instant case, the jury was identified and carefully discussed how the Court
instructed that they were to be governed by the law as set of Appeals erred in conducting its Almanza
forth in the jury charge. See, I A, supra. analysis. Judge Keller, in dissent, disagrees but
does not suggest how this section of our opinion
The United States Supreme Court, when faced with is in error.
the assertion that a [*174] prosecutor's argument on a
presumption [**18] of innocence cures a jury charge IV.
deficient in that instruction, wrote "arguments of counsel
Conclusion
cannot substitute for instructions by the court." Taylor v.
Kentucky, 436 U.S. 478, 488-489, 98 S. Ct. 1930, 1936, A defendant is entitled to be convicted upon a correct
56 L. Ed. 2d 468 (1978). And, we have similarly noted statement of the law. In the instant case, the erroneous
that "jury argument is not a substitute for a proper jury instructions had the effect of instructing the jury on the
charge." Arline, 721 S.W.2d at 353, n. 8. 7 Moreover, in opposite of what the law actually is. Consequently, a jury
Ruiz, supra, we held that jury argument is never alone a who diligently followed the trial judge's instructions, as
controlling factor in an Almanza harm analysis. Ruiz, we must presume the jury did, would render a verdict in
753 S.W.2d at 686. In light of the fact that the jury conflict with the Fourth Amendment and art. 38.23
charge's application paragraph was so flawed as to charge because the conviction would be based upon illegally
the jury on the opposite of what the law actually obtained evidence. The right to a trial by jury in criminal
provides, and further that this was a hotly contested issue matters is among those fundamental [**20] rights
at trial, we cannot conclude the error was "cured" by the guaranteed by our Constitutions. In order to effectuate
jury arguments. Ruiz, supra. 8 this valuable right, there is a minimal requirement that the
7 In a slightly different context, we have held instructions to the jury not be exactly opposite of what
the law actually is.
that it is improper for attorneys to argue outside
the court's charge. Burke v. State, 652 S.W.2d The judgment of the Court of Appeals is reversed
788, 790 (Tex.Cr.App. 1983); Davis v. State, 506 and the case is remanded to the trial court.
S.W.2d 909 (Tex.Cr.App. 1974).
8 In Williams, 547 S.W.2d at 20, the Court BAIRD, Judge
stated:
Clinton, J., concurs in the result.
... To allow the jury to receive an
application of the law to the facts (Delivered April 3, 1996)
only from the partisan advocates
En Banc
without a neutral and unbiased
instruction on the matter in the
DISSENT BY: KELLER
charge is to risk the degeneration
of trial by jury to a debating
 Page 7
922 S.W.2d 166, *174; 1996 Tex. Crim. App. LEXIS 37, **20

DISSENT absent evidence to the contrary. Slip op.7. The majority
"finds nothing [*175] to indicate the jury did not follow
DISSENTING OPINION ON APPELLANT'S the trial judge's erroneous instruction." Slip op. 9. But we
PETITION FOR DISCRETIONARY REVIEW know that the jury did not follow the erroneous part of
the instruction -- to do so would have resulted in
To understand why the majority is wrong, one need acquittal. The majority says, "The only way the jury
only read the jury charge. Upon doing so it is apparent could have convicted was by using illegally obtained
that, while the charge is erroneous, it is not erroneous in evidence." In fact, the only way the jury could have
the way that the majority says it is. convicted was by disregarding the erroneous instruction
and acting in accord with the rest of the jury charge and
The charge erroneously instructed the jury to
the jury arguments.
disregard the officer's testimony if the jury believed that
appellant was not wearing his seat belt. Thus, had the jury The Court of Appeals correctly applied the analysis
believed that appellant was not wearing his seat belt, and set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
followed the instruction, the jury would have disregarded App. 1984) (op. on rehearing) and reached a conclusion
the testimony and acquitted appellant. The charge did not "within a reasonable zone of disagreement." Montgomery
instruct the jury as to the converse of the above. The v. State, 810 S.W.2d [**22] 372, 391 (Tex. Crim. App.
charge did not tell the jury what to do if it believed that 1990) (op. on rehearing). I would affirm the judgments of
appellant was wearing his seat belt. [**21] In other the Court of Appeals and the trial court.
words, the jury charge authorized acquittal on the wrong
basis, but did not authorize conviction on the wrong KELLER, J.
basis. Thus, the majority is wrong when it says that the
erroneous instruction "authorized the stop if appellant DELIVERED: April 3, 1996
was wearing a seat belt." Slip op.7.
McCormick, P.J., White and Mansfield, J.J. join.
As the majority says, there is an appellate
presumption that the jury followed the court's charge
 Page 1

BEVERLY KIRKPATRICK, Appellant v. THE STATE OF TEXAS

No. PD-0873-07 and PD-0874-07

COURT OF CRIMINAL APPEALS OF TEXAS

279 S.W.3d 324; 2009 Tex. Crim. App. LEXIS 378

March 18, 2009, Delivered

NOTICE: PUBLISH opinion and substitute the following opinion.

SUBSEQUENT HISTORY: On remand at Kirkpatrick Appellant was charged with several offenses by way
v. State, 2009 Tex. App. LEXIS 7348 (Tex. App. Dallas, of three indictments. Only two of those indictments are
Sept. 18, 2009) presently before us. 1 On appeal, the court of appeals
found that the trial court had not acquired jurisdiction and
PRIOR HISTORY: [**1] reversed appellant's convictions. We reverse the
ON STATE'S PETITION FOR DISCRETIONARY judgment of the court of appeals as to both causes and
REVIEW FROM THE FIFTH COURT OF APPEALS remand Cause No. 05-06-1230-CR so that the court of
KAUFMAN COUNTY. appeals may resolve appellant's remaining issue.
Kirkpatrick v. State, 2008 Tex. Crim. App. LEXIS 1568
(Tex. Crim. App., Dec. 17, 2008) 1 Pursuant to the third indictment, trial-court
Kirkpatrick v. State, 2007 Tex. App. LEXIS 2905 (Tex. cause number 23337-86, appellant was convicted
App. Dallas, Apr. 17, 2007) of falsely holding herself out as a lawyer and
Kirkpatrick v. State, 2007 Tex. App. LEXIS 2906 (Tex. sentenced to six years' confinement. On appeal,
App. Dallas, Apr. 17, 2007) the court of appeals held that the evidence was
legally insufficient to sustain the conviction,
reversed the trial court's judgment, and rendered a
COUNSEL: For APPELLANT: DAN WOOD JR., judgment of acquittal. Kirkpatrick v. State, No.
TERRELL. 05-06-01275-CR, 2007 Tex. App. LEXIS 2905
(Tex. App.--Dallas, delivered April 17, 2007, no
For STATE: CARIANN ABRAMSON, ASST. D.A., pet.)(not designated for publication). No petition
KAUFMAN. for discretionary [**2] review was filed
regarding that case.
JUDGES: JOHNSON, J., delivered the opinion for a
unanimous Court. In indictment number 23290-86, appellant was
charged with forgery and tampering with a governmental
OPINION BY: JOHNSON record in three counts: count one-- publishing a forged
writing, knowing it to be forged, with such writing
OPINION purporting to be the act of Lance Rabenaldt, who did not
authorize that act; [*325] count two--presenting a letter
[*324] We withdraw our December 17, 2008 purporting to bear the signature of Warren Samuelson,
 Page 2
279 S.W.3d 324, *325; 2009 Tex. Crim. App. LEXIS 378, **2

with knowledge of its falsity and with intent that it be further held that "the indictment alleged Class A
taken as a genuine governmental record; and count misdemeanor offenses of tampering with a governmental
three--presenting a letter purporting to bear the signature record[,]" but "[t]he indictment in this case does not show
of Chau Vo, with knowledge of its falsity and with intent on its face the State's intent to charge a felony or other
that it be taken as a genuine governmental record. In offense for which the district court has jurisdiction." Id.
indictment number 23338-86, a single count charged at *5. It also held that "because the indictment did not
appellant with tampering with a governmental record by vest the district court with jurisdiction, appellant did not
making a document, specifically a letter from Michael D. waive her complaint by [*326] failing to object prior to
Grant attached to a motion for continuance, with the day of trial." Id. at *5-6.
knowledge of its falsity and with intent that it be taken as
a genuine governmental record. 3 The court of appeals did not discuss the
single-count indictment, trial-court cause number
After the state had presented its case-in-chief, 23338-86, which likewise charged appellant with
appellant moved for an instructed verdict on the felony tampering with a government record, alleging that
forgery count, asserting that the state had failed to prove she did "then and there make a document, to-wit:
felony forgery because it had not alleged or proven [**3] [**5] a letter from Michael D. Grant attached to a
any of the elements necessary to make the forgery a Motion for Continuance, with knowledge of its
felony rather than a misdemeanor. The trial court agreed falsity and with intent that it be taken as a genuine
and granted appellant's motion for instructed verdict as to governmental record." However, the court of
count one of indictment number 23290-86. The trial court appeals's reasoning and analysis is applicable to
overruled appellant's complaints as to the other the similar allegation in that indictment.
allegations. The jury convicted appellant of the remaining
alleged offenses, and the trial court sentenced her to two We granted the State Prosecuting Attorney's petition
years' confinement on each of those counts, to be served for discretionary review, which raised three grounds for
concurrently. review.

On appeal, appellant raised one issue in Cause No. 1) Did the Court of Appeals err by
05-06-01274-CR (trial-court Cause No. 23290-86), a concluding that the district court did not
claim that the trial court did not have jurisdiction because have subject-matter jurisdiction of the
appellant had been indicted for a misdemeanor in each of offense?
the two indictments that are before us. She raised the
same issue in Cause No. 05-06-01230-CR (trial-court 2) Where an offense can be charged
Cause No. 23338-86), and she also raised an additional as either a felony or a misdemeanor, does
issue that the court of appeals did not address because it the return of the indictment into a court
found the first issue dispositive. 2 The court of appeals with subject-matter jurisdiction of only the
held that the indictments failed to satisfy the felony offense indicate the State's intent to
constitutional requirement of subject-matter jurisdiction charge the felony offense?
and did not vest the district court with jurisdiction.
3) Is ambiguity or confusion about the
Kirkpatrick v. State, 2007 Tex. App. LEXIS 2906, No.
particular offense that has been charged
05-06-01230-CR, No. 05-06-01274-CR [**4] (Tex.
[sic] the type of objection to an indictment
App.--Dallas, delivered April 17, 2007, no pet.)(not
that must be raised by a defendant prior to
designated for publication). It therefore dismissed both
the date of trial?
cases for want of jurisdiction. Id. at *6.

2 "The trial court erred in overruling appellant's
The Arguments of the Parties
objection under the attorney-client privilege."
The state, represented by the State Prosecuting
The court of appeals noted that the multi-count
Attorney, argues that the language of the indictments, and
indictment alleged that appellant presented two letters,
their return to the district court, were sufficient to show
one purporting to bear the signature of Samuelson and the
the state's intention to charge the felony offenses of
other purporting to bear the signature of Vo. 3 Id. at *4. It
 Page 3
279 S.W.3d 324, *326; 2009 Tex. Crim. App. LEXIS 378, **5

tampering [**6] with a governmental record, thus the [*327] about whether the state did charge, or intended to
indictments invested the district court with subject-matter charge, her with a felony, she could have, and should
jurisdiction. It asserts that the indictments' failure to have, objected to the defective indictment before the day
allege all of the elements of the felony offense of of trial.
tampering with a governmental record constituted a
defect of substance, and it was therefore incumbent upon Appellant claims that the indictments gave her notice
appellant to raise the defect prior to the date of trial. It only that she had been indicted for misdemeanor
contends that, because appellant failed to object, the court tampering offenses under TEX. PENAL CODE §
of appeals erred by dismissing the counts for want of 37.10(a)(2) because they did not include any of the
jurisdiction. elements that the statute requires in order to raise the
misdemeanor offense to a state-jail or second-degree
Appellant argues that the indictments were proper, felony. She points out that, pursuant to TEX. CODE
facially complete indictments that alleged all the CRIM. PROC., Art. 20.21, the grand jury, not the state,
elements necessary to charge her with the misdemeanor presents an indictment and argues that it is the grand
offense of tampering with a government record. She jury's intent, not the state's, that is most important. She
asserts that, being misdemeanor offenses, the district also notes that nothing prohibits the grand jury from
court did not have subject-matter jurisdiction, and that indicting an accused for only a misdemeanor offense and
such a claim of lack of jurisdiction is not waived by that "there is no requirement under the law that a grand
failure to object before trial. She argues that she was thus jury return only felony indictments."
not required to object before trial to the presentment of an
indictment to a court without competent jurisdiction. The state points to Art. V, § 12(b), of the Texas
Constitution, which states that "[t]he [**9] presentment
The parties agree that the faces of the indictments at of an indictment or information to a court invests the
issue here allege misdemeanor tampering with a court with jurisdiction of the cause" and that the practices
governmental record; "the indictment[s] failed [**7] to and procedures relating to the use of indictments are as
contain language that would charge a felony offense-i.e., provided by statutory law. It also points to TEX. CODE
that Appellant intended to defraud or harm another or that CRIM. PROC. art. 1.14(b), which after its 1985
the governmental record was of the type to make the amendment provides that a defendant waives or forfeits
offense a third-degree felony." State's Brief, p. 2. his right to object to a defect of form or substance in an
Predictably, they disagree as to whether appellant's indictment if he fails to object before the date on which
failure to object, before trial, to being tried on the trial commences and that he may not first raise the
misdemeanor allegations in a district court prevented the objection on appeal. In Studer v. State, 799 S.W.2d 263
court of appeals from granting relief on her appellate (Tex. Crim. App. 1990), we discussed this principle at
complaints about subject-matter jurisdiction. length and determined that a defendant who failed to
timely object to a defective charging instrument before
The state asserts that, while the offense of tampering trial began would lose the right to later complain about
with a governmental record may be charged as either a such defect on appeal.
felony or a misdemeanor, the fact that the indictment was
returned to a district court with subject-matter jurisdiction The state acknowledges that in Thomason v. State,
over felony offenses "is an indication that the State 892 S.W.2d 8, 11 (Tex. Crim. App. 1994), we held that
intended to charge a felony offense." It also suggests that "where an indictment facially charges a complete offense,
the pretrial proceedings "were also indications that it is reasonable to presume that the State intended to
Appellant was being charged with a felony offense, and charge the offense alleged, and none other." We stated,
not a misdemeanor." It asserts that the indictments, "Consequently, where an indictment facially charges a
whatever their defects, can be construed as intended to complete offense, the State is held to the offense charged
charge a felony because there does exist a felony offense [**10] in the indictment, regardless of whether the State
of tampering with a governmental record and the intended to charge that offense." Id. However, the state
indictments in these cases were returned to a court [**8] suggests that, in Teal v. State, 230 S.W.3d 172 (Tex.
with subject-matter jurisdiction over only felony Crim. App. 2007), we retreated from such all-inclusive
offenses. It adds that, if appellant had been confused language.
 Page 4
279 S.W.3d 324, *327; 2009 Tex. Crim. App. LEXIS 378, **10

Thomason is distinguishable on its facts. Thomason trial court. Id. at 180. The state acknowledges that the
was indicted for felony theft of at least $ 20,000, but the text of appellant's indictments, like the indictment in
indictment did not include the words necessary to charge Teal, does not contain the language necessary to raise the
an aggregated theft. The evidence showed that Thomason offense of tampering with a governmental record from a
had received ten checks, totaling $ 518,787, with each of misdemeanor to a felony. State's Brief, p. 10.
eight of the checks having an amount in excess of the Nevertheless it suggests that, because the indictments
alleged $ 20,000. At the end of the state's evidence, were returned to a district court, a court with
Thomason asked the trial court to require the state to elect subject-matter jurisdiction over felonies, and a felony
on which of the checks it sought a conviction. The trial offense of tampering with a governmental record exists, it
court refused to require an election, and the court of is clear that the state intended to charge a felony offense.
appeals affirmed, saying, "[W]e cannot conclude that the
failure to include the phrase in the indictment evinces an Analysis
intent that the checks not be aggregated." Thomason v.
Teal is more on point with regard to the issue
State, No. 05-92-00414-CR, 1993 WL 189615 (Tex.
presented here than is Thomason, but it does not assist
App.--Dallas, June 2, 1993)(not designated for
appellant. As Teal pointed out, legislative changes in
publication).
1987 ensured that defects in an indictment would be
This Court held that, "where an indictment facially objected to and, if possible, 4 repaired before trial and
charges a complete offense, it is reasonable to presume that such defects would not invalidate an otherwise valid
the State intended to charge [**11] the offense alleged, conviction [**13] if they were not raised before trial.
and none other." Thomason, 892 S.W.2d at 11. That case Teal at 176. The Teal Court held that, after Studer v.
is distinguishable on at least two grounds: Thomason State, 799 S.W.2d 263 (Tex. Crim. App 1990), and Cook
asked for an election, thus calling the issue to the v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995), courts
attention of the trial court, and the indictment, on its face, must now look to the indictment as a whole, not just to its
alleged a felony, albeit not the felony [*328] the state specific formal requisites. Id. at 180.
intended to charge. There was no question that the trial
court had subject-matter jurisdiction over the offense Implicit within both Studer and Cook is
alleged on the face of the indictment. that "the offense" charged must be one for
which the trial court has subject-matter
The text of the two indictments at issue here facially jurisdiction. . . .
alleges misdemeanor tampering with a governmental
record. Appellant argues that, under Teal, she did not Thus, the complete test for the
have to object because there was no ground for objecting; constitutional sufficiency of a particular
the indictment in her case alleged a complete charging instrument goes slightly further
misdemeanor offense and grand juries are authorized to than that expressly set out in Studer and
issue indictments for misdemeanor offenses. Cook: Can the district court and the
defendant determine, from the face of the
Teal involved an indictment that alleged hindering indictment, that the indictment intends to
apprehension, but the indictment failed to include an charge a felony or other offense for which
allegation that the defendant had knowledge of the a district court has jurisdiction? . . . [T]he
suspect's status as a fugitive felon, the element that raised indictment, despite whatever substantive
the offense to a felony. We recognized in Teal that Texas defects it contains, must be capable of
law now requires the defendant to object to errors in the being construed as intending to charge a
form or substance of an indictment before the day of trial felony (or a misdemeanor for which the
[**12] and before the jury is empaneled. Teal, 230 district court has jurisdiction).
S.W.3d at 177. We also indicated that the critical
determination is whether the trial court (and reviewing . . . It certainly was a defective
appellate courts) and the defendant can identify what indictment because it omitted one of the
penal-code provision is alleged and whether that two [*329] elements that raise hindering
penal-code provision is one that vests jurisdiction in the apprehension from a misdemeanor to a
felony, but it was nonetheless sufficient to
 Page 5
279 S.W.3d 324, *329; 2009 Tex. Crim. App. LEXIS 378, **14

[**14] vest jurisdiction-it charged "an harm or defraud another, then a state-jail felony.
offense" and one could fairly conclude
from the face of the charging instrument (c)(2) school records, license, permit, seal,
that the State intended to charge a felony title, letter of patent, or similar document; a
offense. If appellant was confused about third-degree felony unless the actor's intent is to
whether the State did or intended to charge harm or defraud another, then a second-degree
him with a felony, he could have and felony.
should have objected to the defective
(c)(3) a record required to enroll a student in
indictment before the date of trial.
a school district and used to establish residency; a
class C misdemeanor.
Id. at 181-82.
(c)(4) a written appraisal [**16] filed with an
4 For example, a district court lacks
appraisal review board that was performed by a
subject-matter jurisdiction over a speeding
person with a contingency interest in the outcome
offense no matter how perfect the wording of a
of the hearing; a class B misdemeanor.
charging instrument alleging such an offense, and
there is no such offense as felony speeding. The (d) vehicle liability insurance form; varying
trial court clearly lacks subject-matter jurisdiction, levels, depending on how the tampering was done
and the indictment cannot, therefore, be repaired. (§ 37.10 (a)(1-6)).
Here, although the indictment properly charged a Although the heading alleges a third-degree
misdemeanor and lacked an element necessary to charge felony, the jury convicted appellant of a state-jail
a felony, the felony offense exists, and the indictment's felony. Such a conviction may be had only under
return in a felony court put appellant on notice that the § 37.10(c)(1) with proof of intent to defraud or
charging of the felony offense was intended. Further, the harm another.
face of each indictment contains a heading:
"Indictment--Tampering with a Governmental Record 3rd The court of appeals erred when it concluded that
Degree Felony,--TPC § 37.10(a)--Code 73990275." 5 these indictments fail to satisfy the constitutional
The Penal Code section was easily ascertainable, and the requirement of subject-matter jurisdiction and did not
notation that the offense [**15] was a third-degree vest the district court with jurisdiction. We reverse the
felony clearly indicated that the state intended to charge a judgment of the court of appeals and affirm the judgment
felony offense and that the district court had of the trial court in Cause No. 05-06-01274-CR
subject-matter jurisdiction. Appellant had adequate notice (trial-court Cause No. 23290-86). In Cause No.
that she was charged with a felony. If she had confusion 05-06-01230-CR (trial-court Cause No. 23338-86), the
about whether the State did, or intended to, charge her court of appeals found appellant's first issue, lack of
with a felony, she could have, and should have, objected jurisdiction, dispositive and therefore did not address her
to the defective indictment before the date of trial. second issue. We reverse the judgment of the court of
appeals in Cause No. 05-06-1230-CR and remand it to
5 The heading sets out that the charge is a that court so that it may consider appellant's unaddressed
third-degree felony. Section 37.10(a) enumerates claim of error as to an objection [**17] under the
the elements of tampering with a governmental attorney-client privilege. We deny appellant's motion for
record. Section 37.10(c) and (d) state what rehearing.
punishment ranges apply to different kinds of
governmental records. Delivered: March 18, 2009

(c)(1) general classification not covered by Publish
subdivisions (2), (3), and (4) and subsection (d); a
class A misdemeanor unless the actor's intent is to
 Page 1

DAVID WAYNE MIDDLETON, Appellant v. THE STATE OF TEXAS

NO. 1263-01

COURT OF CRIMINAL APPEALS OF TEXAS

125 S.W.3d 450; 2003 Tex. Crim. App. LEXIS 73

April 23, 2003, Delivered

NOTICE: [**1] PUBLISH if the officer lacked probable cause. We conclude that the
failure to [*452] define that term was not error because
SUBSEQUENT HISTORY: As Corrected May 5, this jury did not need the definition.
2003.
I. Facts
PRIOR HISTORY: ON APPELLANT'S PETITION
FOR DISCRETIONARY REVIEW. FROM THE On New Year's Eve, 1998, Sergeant Stanford was
SECOND COURT OF APPEALS. WISE COUNTY. "working radar" at the intersection of Crittendon Street
and Cates Street in Bridgeport. He testified that he saw a
DISPOSITION: Court of Appeals' judgment affirmed. small blue Chevy pick-up fail to come to a complete stop
at the stop sign. Stanford followed the vehicle with his
lights flashing and after a few blocks the truck came to a
COUNSEL: FOR APPELLANT: KEN MAHAFFEY, stop. Stanford approached the truck and identified the
AUSTIN. driver [**2] as Middleton. Middleton consented to a
search, and upon searching the truck, Stanford found
FOR STATE: BARRY'S GREEN, DA, DECATUR. methamphetamine behind the ashtray.

JUDGES: Keasler, J., announced the judgment of the Middleton testified that he stopped at the stop sign.
Court and delivered an opinion, in which Keller, P.J., and
Womack and Hervey, JJ., joined. Holcomb and Cochran, At the conclusion of testimony, defense counsel
JJ., concurred in the result. Womack, J. filed a concurring requested a charge pursuant to Art. 38.23:
opinion. Price, J., filed a dissenting opinion, joined by
I would request the Charge, under Article 38.23 of
Meyers and Johnson, JJ.
the Code of Criminal Procedure at the beginning of top
of Page 2, I would ask that it be inserted. "Our law
OPINION BY: Keasler
provides that any evidence seized in violation of the
United States Constitution, the Texas State Constitution,
OPINION
the laws of the State of Texas or of this county, shall not
[*451] A police officer said he saw David be admitted into evidence in any criminal proceeding."
Middleton run a stop sign, but Middleton claimed that he
Basically, I would ask for that charge as a descriptive
stopped. The officer pulled Middleton over and found
of what the law is for the next two paragraphs, your
drugs. The jury was instructed to disregard this evidence
 Page 2
125 S.W.3d 450, *452; 2003 Tex. Crim. App. LEXIS 73, **2

Honor. reasonable doubt as to whether or not that stop was valid,
you don't consider anything that was a result of that stop.
The court denied Middleton's request but did include
the following language in the charge: ***

The court further instructs you that before you may The evidence is - The evidence is that there is some
consider the testimony of Steve Stanford concerning the factual dispute whether or not there was a valid stop or
search of the Defendant's vehicle, you must first find some pre-textual-type stop by the police.
beyond a reasonable doubt that the officer had probable
cause to believe and did believe that the defendant did not The jury found Middleton guilty of possessing
bring the vehicle he was operating to a stop [**3] at the methamphetamine and the judge sentenced him to 12
intersection of Cates and Crittendon in Bridgeport, Texas, years in prison.
and if you do not so find beyond a reasonable doubt, or if
II. Court of Appeals
you have a reasonable doubt, you will disregard such
testimony and evidence. Middleton appealed arguing, among other things,
that the trial judge erred by failing "to include an abstract
During closing arguments, the defense made the
instruction on the law of illegal search and seizure in the
following statements:
Art. 38.23 charge." He argued the charge failed to
Remember we told you that any law [sic] that's describe [**5] the law that the jury was to apply and
seized in violation of the United States Constitution, State failed to define "probable cause." The State responded
Constitution the laws of the State of Texas is not that Middleton failed to preserve error and, if he did so,
admissible in Court. any error was harmless. The Court of Appeals held that
"probable cause" was not required to be defined in the
Now, this is where the issue comes. You get a charge charge because it is not defined by statute. 1 We granted
on the law because there's an issue, and the issue is: Do Middleton's petition for discretionary review to decide
you have a reasonable doubt as to whether or not he came whether a trial court "should provide the jury with a
to a complete stop. See, that's the probable cause issue. definition of the term 'probable cause' in an Art. 38.23
That's the probable cause issue. You have a reasonable instruction."
doubt as to whether or not he came to a complete stop or
whether Mr. Stanford - Officer - Sergeant Stanford was 1 Middleton v. State, No. 02-00-00039-CR, slip
just out there making a lot of routine traffic stops. op. at 8-9 (Tex. App. - Fort Worth, delivered April
26, 2001) (not designated for publication).
So you have to have a reason to stop somebody, just
to get into the idea where you can ask them for search of III. Preservation of Error
the vehicle.
The State argues initially that Middleton's complaint
Now, if you have a reasonable doubt as to whether or on appeal is different from his complaint at trial. This
not Stanford - as he prefers to be called - had a reasonable argument is premature.
doubt as to whether or not he, in fact, observed a traffic
As we explained in Hutch v. State, 2 an appellate
[**4] violation, if you even have a reasonable doubt to
court's first duty in evaluating a jury charge issue is to
have to prove it beyond a reasonable doubt, Stanford who
determine whether error exists. Then, if error is found,
makes all these routine stops and who is an officer of the
the appellate court should analyze [**6] that error for
year, and doesn't know whether or not he's officer of the
harm. Error preservation does not become an issue until
year because of all these routine consensual stops he
harm is assessed because "the degree of harm necessary
makes, you have to believe beyond a reasonable doubt.
for reversal depends upon whether the error was
It's not a weighing or balancing [*453] of, you know,
preserved." 3
I'm not sure maybe it was an okay stop, maybe it wasn't.
2 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
Remember the protections. It's to protect everybody
3 Id.
from ill - unreasonable illegal detentions. If you have a
 Page 3
125 S.W.3d 450, *453; 2003 Tex. Crim. App. LEXIS 73, **6

This is the analysis we set forth almost 20 years ago (Tex. Crim. App. 2000); Andrews v. State, 652
in Almanza v. State. 4 There we explained that Art. 36.19 S.W.2d 370, 375-76 (Tex. Crim. App. 1983)
contains harm standards for "both 'fundamental error and (explaining that term acquiring technical meaning
ordinary reversible error' in jury charges." 5 As a result, need not necessarily be defined).
all jury charge error must be considered, whether or not 11 Medford, 13 S.W.3d at 772.
the defendant preserved error. 6 And we have specifically 12 See Draughon v. State, 831 S.W.2d 331, 338
applied the harmless error rule of Art. 36.19 to Art. 38.23. (Tex. Crim. App. 1992).
7 So we must analyze whether error existed in
Middleton's jury charge before we consider whether that "Probable cause" is not statutorily defined, and
error was preserved. 8 Middleton argues that it must be defined because it has a
technical legal meaning. But even if "probable cause" has
4 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on acquired a technical legal meaning, that does not
reh'g). necessarily mean that it had to be defined. 13 In this case,
5 Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. there was no risk [**9] that the jurors would arbitrarily
App. 1998). apply their own personal definition, nor was a definition
[**7] of the term required to assure a fair understanding of the
6 Almanza, 686 S.W.2d at 171. See also evidence.
Saunders v. State, 817 S.W.2d 688 (Tex. Crim.
App. 1991). 13 See Andrews, 652 S.W.2d at 375-76.
7 Atkinson v. State, 923 S.W.2d 21, 27 (Tex.
This case involved a single, and simple, factual
Crim. App. 1996).
dispute - whether or not Middleton stopped at the stop
8 See Balentine v. State, 71 S.W.3d 763, 774
sign. Its resolution determined whether the seized
(Tex. Crim. App. 2002) (stating that "because we
evidence could be considered. There were no other facts
find that no error occurred, we need not decide
which could have established probable cause. As the
whether appellant waived the asserted jury charge
State explained in its brief to the Court of Appeals:
error.").
If this case had been a case wherein an officer had to
IV. Analysis
rely upon a multitude of factors to come to his conclusion
Article 38.23(a) provides that no evidence obtained regarding probable cause, a definition for the jury might
in violation of the law [*454] should be admitted at trial. have been helpful. However, the only issue involved in
It also provides that if the evidence "raises an issue the determination of probable cause in this case is
hereunder, the jury shall be instructed that if it believes, whether [Middleton] failed to come to a complete stop.
or has a reasonable doubt, that the evidence was obtained
Indeed, defense counsel's argument to the jury
in violation of the provisions of this Article, then and in
highlighted this fact and explained to the jury that, in this
such event, the jury shall disregard any such evidence so
case, "probable cause" meant a failure [**10] to stop at
obtained."
the stop sign.
As a general rule, terms need not be defined in the
V. Conclusion
charge if they are not statutorily defined. 9 But terms
which have a technical legal meaning may need to be Because there was no ambiguity in this case as to the
defined. 10 This is particularly true when there is a risk meaning of "probable cause," we conclude that the trial
that the jurors [**8] may arbitrarily apply their own judge did not err in failing to define it.
personal definitions of the term 11 or where a definition
of the term is required to assure a fair understanding of We affirm the Court of Appeals' judgment.
the evidence. 12
CONCUR BY: WOMACK
9 Martinez v. State, 924 S.W.2d 693, 698 (Tex.
Crim. App. 1996); Garcia v. State, 887 S.W.2d CONCUR
846, 859 (Tex. Crim. App. 1994).
10 See Medford v. State, 13 S.W.3d 769, 772
 Page 4
125 S.W.3d 450, *454; 2003 Tex. Crim. App. LEXIS 73, **10

WOMACK, J., filed a concurring opinion. [**12] any term that is not defined in the relevant statute.
Probable cause is not defined in article 38.23. Therefore,
I join the Court's opinion with the understanding the court of appeals concluded, the trial court was not
that, because of an unusual feature of this case, it does required to include a definition in the charge. Middleton
not resolve the general question of the need to define v. State, No. 02-00-0039-CR, slip op. at 8-9 (Tex.
"probable cause" in the court's charge under [*455] App.--Fort Worth Apr. 26, 2001) (not designated for
Article 38.23. The Court prudently decides no more than publication).
the case requires.
2 The portion of the charge that the appellant
The State took the issue of probable cause out of this complains was incomplete reads as follows:
case by accepting a burden to prove more than the law
required; that is, that the defendant did commit an offense The court further instructs you that before
in the officer's presence. The law's requirement is only you may consider the testimony of Steve Stanford
that the officer have probable cause to believe that concerning the search of the Defendant's vehicle,
someone committed an offense in the officer's presence. * you must first find beyond a reasonable doubt that
We have not decided (although, it seems to me, the issue the officer had probable cause to believe and did
would not be close) whether "probable cause" must be believe that the defendant did not bring the
defined when probable cause is the standard for the jury. vehicle he was operating to a stop at the
intersection of Cates and Crittendon in
* See, e.g., Brinegar v. United States, 338 U.S. Bridgeport, Texas, and if you do not find so
160, 174-76, 93 L. Ed. 1879, 69 S. Ct. 1302 beyond a reasonable doubt, or if you have a
(1946) (constitutional law); Carlock v. State, 609 reasonable doubt, you will disregard such
S.W.2d 787, 790 (Tex. Cr. App. 1980) (state testimony and evidence.
statutory law).
The appellant filed a petition for discretionary
[**11] En banc. review, [**13] which we granted, claiming that the
court of appeals erred because probable cause is a
DISSENT BY: Price technical legal term, which should be defined for jurors.

DISSENT The general rule, as the court of appeals explained, is
that a term need not be defined in the jury charge if the
Price, J., filed this dissenting opinion, in which legislature failed to define it in the relevant statute.
Meyers and Johnson, J.J., joined. Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App.
1996). The relevant statute in this case, Texas Code of
While searching the appellant's truck, police found
Criminal Procedure article 38.23, 3 does not define
methamphetamine and marihuana behind the ashtray. The
[*456] probable cause. Indeed, the Article does not even
appellant claimed that the officer had no probable cause
contain the term probable cause. Article 38.23 is a
to pull him over. The trial court included an article
statutory exclusionary rule that prohibits the use of
38.231 instruction in the proposed guilt-innocence jury
evidence if it was obtained in violation of the constitution
charge; the appellant requested a more detailed
or laws of the State of Texas and the United States. The
instruction. The trial court denied his request, and the
general rule cannot apply in this case since the term
appellant was convicted. Today the Court addresses
probable cause does not appear in Article 38.23.
whether the trial court should have defined probable
cause in the jury charge. The Court concludes that answer 3 Article 38.23 reads:
is no. I disagree, and therefore, I dissent.
(a) No evidence obtained by an officer or
1 Tex. Code Crim. Proc. art. 38.23. other person in violation of any provisions of the
Constitution or laws of the State of Texas, or of
On direct appeal, the appellant claimed that the trial
the Constitution or laws of the United States of
court should have included a definition of probable cause
America, shall be admitted in evidence against the
in the jury charge. 2 The court of appeals explained that
accused on the trial of any criminal case.
the trial court is not required to provide a definition for
 Page 5
125 S.W.3d 450, *456; 2003 Tex. Crim. App. LEXIS 73, **13

In any case where the legal evidence raises an State, 588 S.W.2d 327, 338 (Tex. Crim. App.
issue hereunder, the jury shall be instructed that if 1979) (serious physical deficiency need not be
it believes, or has a reasonable doubt, that the defined in context of injury to a child); Mitchell v.
evidence was obtained in violation of the State, 135 Tex. Crim. 176, 178, 117 S.W.2d 443,
provisions of this Article, then and in such event, 445 (1938) (unlawful arrest should be defined).
the jury shall disregard any such evidence so
obtained. [**15] In Andrews v. State, 652 S.W.2d 370 (Tex.
Crim. App. 1983), we attempted to refine this exception
(b) It is an exception to the provisions of to the rule. We explained that a word or phrase with a
Subsection (a) of this Article that the evidence technical legal meaning will not always need to be
was obtained by a law enforcement officer acting defined. Id. at 375-76. In that case the defendant
in objective good faith reliance upon a warrant complained that the trial court should have defined the
issued by a neutral magistrate based on probable term "prurient interest." Ibid. We said that it might have
cause. been wise for the legislature to include a definition of
prurient interest, but we concluded that the statute's
[**14] We have recognized an exception to the failure to include a definition did not "cause[] a jury
general rule when a term in a statute has a technical charge to be subject to an objection for failure to define
meaning. If a term does not have a common, ordinary that term." Id. at 376.
meaning that we can presume jurors to know and apply, a
definition of the term should be included in the jury We said that the Code Construction Act specifies that
charge. Phillips v. State, 597 S.W.2d 929, 934 (Tex. Crim. "Words and phrases shall be read in context and
App. [Panel Op.] 1980); King v. State, 553 S.W.2d 105, construed accordingly. Words and phrases that have
107 (Tex. Cr. App. 1977) (citing Joubert v. State, 136 acquired a technical or particular meaning, whether by
Tex. Cr. R. 219, 124 S.W.2d 368 (1938)). 4 This might be legislature or otherwise shall be construed accordingly."
the test when a technical term does not appear in a Ibid. (quoting Tex. Rev. Civ. Stat. art. 5429b-2, § 2.01).
statute, but we cannot tell that from the cases cited by the Also we noted Code of Criminal Procedure Article 3.01
majority. states "Words and terms used in this Code are to be taken
and understood [**16] in their usual acceptability in
4 We have applied this test explicitly and common language, except where specially defined." 5
implicitly in several cases. See, e.g., Paulson v. Ibid. (quoting Tex. Code Crim. Proc. art. 3.01). We said
State, 28 S.W.3d 570 (Tex. Crim. App. 2000) that neither the Code Construction Act, nor Article 3.01
(beyond a reasonable doubt need not be defined); of the Code of Criminal Procedure, require the definition
Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. in the jury charge. Of course, this is [*457] not a
App. 2000) (arrest should be defined); Motley v. surprising conclusion because both provisions deal with
State, 773 S.W.2d 283, 289-90 (Tex. Crim. the interpretation of statutes, not whether a term should
App.1989) (deliberately and intentionally need not be defined in a jury charge. Also, as I explained above,
be defined); Whaley v. State, 717 S.W.2d 26, the term probable cause does not appear in Article 38.23
30-31 (Tex. Crim. App. 1986) (constructive because it is a general exclusionary rule. These rules
transfer should be defined); MacDougall v. State, cannot apply to the situation in the instant case.
702 S.W.2d 650, 652 (Tex. Crim. App. 1986)
(deception should be defined); Phillips v. State, 5 This provisions has been revised by the
597 S.W.2d 929, 937 (Tex. Crim. App. 1980) legislature. Today, Article 3.01 reads: "All words,
("violate or abuse sexually" need not be defined); phrases, and terms used in this Code are to be
Coplin v. State, 585 S.W.2d 734, 736 (Tex. Crim. taken and understood in their usual acceptation in
App. 1979) (fiduciary property, commercial common language, except where specially
bailee, trustee, guardian, administrator, executor, defined."
conservator, receiver, and managing partner need
not be defined because they are not essential to Even assuming the test for the exception to the rule
prosecution under Penal Code section 32.45, about defining statutory [**17] terms in the jury charge
misapplication of fiduciary property); Ahearn v. applied in this case, probable cause is a technical term
that is not easily understood by the average juror. If one
 Page 6
125 S.W.3d 450, *457; 2003 Tex. Crim. App. LEXIS 73, **17

were to ask the average juror what probable cause means, no egregious harm was shown. This does not
the smart money says he will not get even close. defeat the appellant's argument.

The appellant argues that probable cause has a [**19] Ibid. Braggs, like the appellant, complained
peculiar and technical meaning in this context and that it that the trial court failed to include a definition of
should be defined in the charge. In support of this probable cause. The court of appeals's holding that the
argument, the appellant claims that one court of appeals trial court erred by failing to instruct on the law of
has held that probable cause should be defined in this probable cause seems to be in response to Braggs's
context, 6 published jury instruction guides include a complaint. The Court explained in Braggs and Davis, the
definition of probable cause, the Texas Supreme Court case on which Braggs relies, that the explanation, or
has required a definition of probable cause, 7 and the abstract portion of the charge was required. It is true that
definition of probable cause varies depending on the area we have held that a jury charge should contain the
of law in which it is applied. abstract portion of the charge and the application portion.
Riley v. State, 830 S.W.2d 584, 586-87 (Tex. Crim. App.
6 The appellant cites Braggs v. State, 951 S.W.2d 1992). But whether the abstract portion of the charge
877, 881 (Tex. App.--Texarkana 1997, pet. ref'd) should define a [*458] term is determined by the rules
(holding article 38.23 instruction inadequate for set out above: Is the term defined in the relevant statute,
failure to define probable cause and reasonable and if not, is it a technical term that we cannot presume
suspicion). the jury to know and apply? See King v. State, 553
7 The appellant cites Akin v. Dahl, 661 S.W.2d S.W.2d 105, 107 (Tex. Cr. App. 1977).
917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983).
The State notes that at least one other court of
[**18] The State argues that probable cause is not a appeals has rejected the argument that probable cause
technical term that should be defined because it embraces should be defined. But in Rendon v. State, 695 S.W.2d 1,
a practical, common sense approach in contrast to the 4 (Tex. App. -- Corpus Christi 1984, pet. ref'd), the court
terms beyond a reasonable doubt and preponderance of [**20] provides no analysis for its conclusion. It merely
the evidence. explained that Rendon provided no authority for his claim
that a definition of probable cause was required. Ibid.
The appellant notes that at least one court of appeals This basis was adequate for the court's disposition of
has determined that trial courts should define probable Rondon's claim, but it does not dispose of the question
cause in an article 38.23 instruction. In Braggs v. State, we address today.
951 S.W.2d 877, 881 (Tex. App.--Texarkana 1997, pet.
ref'd), 8 the court held that an article 38.23 instruction The appellant also argues that because published jury
was defective: instruction guides recommend the inclusion of a
definition of probable cause, the definition should be
This Court recently addressed this issue in Davis v. required. The appellant cites W. Scott Carpenter and Paul
State, 905 S.W.2d 655, 663-64 (Tex. App.--Texarkana J. McClung, Texas Criminal Jury Charges, sections
1995, pet. ref'd). As in Davis, the instruction here 12:750 & 12:1090.20 (2001), in which the authors
consists only of an abstract proposition of law drawn conclude that instructions that merely track the language
directly from Article 38.23. The jury charge does not of article 38.23 are inadequate and they include a
instruct the jury on the law governing probable cause. definition of probable cause in the article 38.23
The charge does not apply the legal concept to the instruction.
evidence involved, nor does it ask the jury to resolve the
disputed fact issues that either justify or invalidate the For the proposition that an article 38.23 instruction
officer's conduct. Id. The charge is defective. should do more than track the statutory language, the
authors cite Braggs, which relies on Davis v. State, 905
8 The State argues that the appellant's reliance S.W.2d 655, 663-64 (Tex. App. Texarkana 1995, pet.
on Braggs does not help him because here, as in ref'd). As we explained above, the court in Braggs and
Braggs, the defendant's request was not specific Davis did not include analysis or authority for its
enough. Therefore, the State argues, the Court of conclusion other than to say that the instruction must
Appeals properly affirmed the trial court because include [**21] an abstract explanation of the law and an
 Page 7
125 S.W.3d 450, *458; 2003 Tex. Crim. App. LEXIS 73, **21

application of the law to the facts of the case. Braggs, In forfeiture proceedings, the definition is different.
951 S.W.2d at 881; Davis, 905 S.W.2d at 663-64. The Probable cause "is a reasonable belief that a 'substantial
court's analysis in those cases does not support its connection exists between the property to be forfeited and
conclusion. the criminal activity defined by the statute.'" State v. $
11,014.00 in U.S. Currency, 820 S.W.2d 783, 784 (Tex.
For the wording of their recommended instruction, 1991) (citing $ 56,700 in U.S. Currency v. State, 730
the authors rely on cases that hold an instruction must be S.W.2d 659 (Tex. 1987)).
given if a question of fact arises under article 38.23, 9
and one case that holds an article 38.23 instruction given In the civil tort malicious prosecution, probable
by the trial court was not an incorrect statement of the cause is defined similarly to the way we define it in a
law. 10 But these cases do not require the trial judge to criminal case. Probable cause is "the existence of such
include a definition of probable cause. This is persuasive facts and circumstances as would excite belief in a
authority, but it does not dispose of the question in this reasonable mind, acting on the facts within the
case. knowledge of the prosecutor, that the person charged was
guilty of the crime for which he was prosecuted." Akin v.
9 Jordan v. State, 562 S.W.2d 472, 472-473 (Tex. Dahl, 661 S.W.2d 917, 921, 27 Tex. Sup. Ct. J. 23 (Tex.
Crim. App. 1978) (requiring an article 38.23 1983) (citing Ramsey v. Arrott, 64 Tex. 320 (1885)).
instruction when a question of fact was raised
concerning the legality of the way evidence was The fact that the definition of this term is different in
obtained). different legal contexts is a good reason to conclude that
10 Attwood v. State, 509 S.W.2d 342, 346 (Tex. probable cause is a technical legal term and that we
Crim. App. 1974) (approving of an article 38.23 should not assume that jurors know the term and can
instruction when a definition of probable cause apply it in context.
appeared elsewhere in the charge, a fact which
was not mentioned by the Court). The State claims that probable cause is not a
technical [**24] term that should be defined because it
[**22] The appellant also argues that because civil embraces a practical common sense approach in contrast
cases have required a definition of probable cause we to the terms beyond a reasonable doubt or preponderance
should include a definition in this case. The case on of the evidence. It cites In re A.A., 929 S.W.2d 649,
which the appellant relies is Akin v. Dahl, 661 S.W.2d 653-54 (Tex. App.--San Antonio 1996, no pet.), in which
917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983). In that case, the Court explained:
the Texas Supreme Court approved of a definition that
was used by the trial judge in the case, but did not "Probable cause" for waiver of jurisdiction by the
address the question of whether one must be given. Ibid. juvenile court is defined as sufficient facts and
This is more persuasive authority that it is advisable to circumstances to warrant a prudent individual to believe
include a definition of probable cause. the suspect committed or was committing an offense.
"The probable cause standard of proof embraces a
The appellant argues that probable cause is a practical, common sense approach rather than the more
technical term because it is defined differently in technical standards applied in the burdens of proof either
different legal contexts. In the context of an article 38.23 beyond a reasonable doubt or a preponderance of the
instruction, probable cause exists where police have evidence."
reasonably trustworthy information, considered as a
whole, sufficient to warrant a reasonable person to Ibid. (citations omitted). The definition contains
believe that a particular person [*459] has committed or differences, depending on the context, that refute the
is committing an offense. Probable cause requires more State's conclusion. It may be a standard based on
than mere suspicion but far less evidence than that common sense, but jurors need to know to what standard
needed to support a conviction or even that needed to they should apply their common sense.
support a finding by a preponderance of the evidence.
The State also argues that the definition does not
have a peculiar meaning because non-legal dictionaries
Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App.
contain definitions of the word. This does not mean that
2000) (citations [**23] omitted).
 Page 8
125 S.W.3d 450, *459; 2003 Tex. Crim. App. LEXIS 73, **24

the term has a common and ordinary meaning that [**25] believe that a particular person has committed or is
we can presume jurors know and can apply. committing an offense. Probable cause requires more
than mere suspicion but far less evidence than that
The definition in non-legal dictionaries provides needed to support a conviction or even that needed to
context for the term: It is used in criminal cases to support a finding by a preponderance of the evidence.
determine when a criminal charge is well-founded. See,
e.g., Webster's Third New International Dictionary 1806 Hughes, 24 S.W.3d at 838 (citations omitted).
(1969) ("a reasonable ground for supposing that a
criminal charge is well-founded"). But the definition we That this case involves a swearing match between
use and apply provides the quality and quantum of the officer and the appellant is not the focus of the
information an officer must possess to authorize certain question we are called on to decide today. The fact that
actions. See Hughes, 24 S.W.3d at 838 ("where police the focus of our inquiry is whether the term is a technical
have reasonably trustworthy information, considered as a legal term that the trial court should have defined when it
whole, sufficient to warrant a reasonable person to gave the charge to the jury. The appellant's arguments
believe that a particular person has committed or is after the charge was given to the jury without the
committing an offense"). Knowledge that probable cause requested language are a concern in determining whether
is what is required to arrest someone or to support a the appellant was harmed. It does not tell us whether the
warrant or to support the presentment of an indictment, trial court erred when it omitted the definition from the
does not allow [*460] the jury to apply the term to the charge.
facts and produce a reliable and consistent outcome.
I would hold that the trial court erred. [**27] It is
Because the term probable cause has different futile to try to measure distance with a ruler that lacks
meanings in different contexts and is not commonly lines of demarcation. Telling a juror to look at facts to
defined in such a way that permits jurors to know its determine whether probable cause existed is equally
meaning and apply it easily, the term should be defined futile unless the juror understands and can apply the term.
for purposes [**26] of an article 38.23 instruction. Trial
courts should apply the definition of probable cause The court of appeals erred in holding that probable
found in Hughes: Probable cause exists where police cause need not be defined. The judgment below should be
have reasonably trustworthy information, considered as a reversed. Therefore, I would remand the case to that court
whole, sufficient to warrant a reasonable person to to address whether the appellant had been harmed.
 Page 1

THANH CUONG NGO, Appellant v. THE STATE OF TEXAS

NO. PD-0504-04

COURT OF CRIMINAL APPEALS OF TEXAS

175 S.W.3d 738; 2005 Tex. Crim. App. LEXIS 457

March 16, 2005, Delivered
March 16, 2005, Filed

NOTICE: [**1] Publish [*741] The indictment contained three paragraphs,
alleging three separate criminal acts-stealing a credit
PRIOR HISTORY: ON STATE'S PETITION FOR card, receiving a stolen credit card, and fraudulently
DISCRETIONARY REVIEW FROM THE ELEVENTH presenting a credit card to pay for goods or services. The
COURT OF APPEALS. HARRIS COUNTY. three application paragraphs in the jury charge permitted
Ngo v. State, 129 S.W.3d 198, 2004 Tex. App. LEXIS the jury to convict appellant if some of the jurors found
1605 (Tex. App. Eastland, 2004) that he stole the credit card, others believed he received a
stolen credit card, and still others thought that he
DISPOSITION: Affirmed. fraudulently presented it. The Eastland Court of Appeals
held that this jury charge "did not require that the jurors
unanimously agree upon any one of the three alternate
COUNSEL: For APPELLANT: Elizabeth L. Derieux, theories," and [**2] thus, it violated both the Texas
Longview, TX. Constitution and state statutes which require a unanimous
jury verdict. 1 The court of appeals further found that,
For STATE: Donald W. Rogers, Jr., ASSIST. DA., although appellant affirmatively stated that he had "no
Houston, TX. objection" to the jury charge, this error was reversible
under Almanza 2 because appellant suffered "egregious
JUDGES: COCHRAN, J., delivered the opinion of the harm." 3 We granted the State's petition for discretionary
Court in which MEYERS, PRICE, WOMACK, review to determine the correctness of that decision. 4
JOHNSON and HOLCOMB, J.J., joined. WOMACK, J., Because we agree with the court of appeals' reasoning
filed a concurring opinion in which MEYERS, J., joined. and result, we affirm its judgment.
HERVEY, J., filed a dissenting opinion in which
KEASLER, J., joined. KELLER, P.J., dissented without 1 Ngo v. State, 129 S.W.3d 198, 200 (Tex. App. -
opinion. Cochran, J. Hervey, J. Eastland 2004).
2 Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
OPINION BY: Cochran App. 1985).
3 Ngo, 129 S.W.3d at 202.
OPINION 4 We granted both of the State's grounds for
review:
[*740] Appellant was charged with credit card
abuse under section 32.31 of the Texas Penal Code. 1) The court below erroneously held that
 Page 2
175 S.W.3d 738, *741; 2005 Tex. Crim. App. LEXIS 457, **2

appellant's trial counsel's affirmative statement credit cards had been stolen when her apartment was
that there was no objection to the court's charge burglarized a few weeks earlier. She had come home
did not forfeit or waive appellant's right to from visiting her sick grandfather in the hospital on
fundamental error review of the court's charge [*742] Thanksgiving Day and found that the lock on her
under Almanza v. State, 686 S.W.2d 157 (Tex. window had been broken and her apartment ransacked.
Crim. App. 1985). All [**4] of her credit cards had been in a purse in her
bedroom closet. As far as she knew, none of the cards
2) The court below erroneously determined had been used after the burglary because she had called
contrary to and in conflict with prior decisions of and canceled them. Ms. Truong identified the credit card
this Court and the Supreme Court of the United that appellant had given to Mr. Nguyen as one of her
States that appellant was denied his right to a credit cards that had been stolen during the burglary.
unanimous verdict when the trial court
disjunctively submitted the State's theories of Ms. Truong had seen appellant around her apartment
conviction alleged in the indictment to the jury in complex several times. He had knocked on her door
its charge at the guilt-innocence stage of the trial before, but she did not open the door for him because she
with a general verdict form, where each of the had a small child. Appellant had also asked her for
alleged theories of conviction were not separate money. He made her nervous.
offenses, as found by said appellate court, but
merely alternative means of committing the Appellant testified that he had come to America from
offense of credit card abuse as defined by Section Vietnam and had lived here for eleven years, but he did
32.31(b) of the Penal Code. not speak much English. He worked on a shrimp boat. He
said that his friend Mike gave him the credit cards while
In its Brief on the Merits, the State they were playing pool. Mike wanted appellant to give
abandoned its first ground for review as that very the credit cards to Mr. Nguyen, so appellant waited at the
issue had, in the meantime, been resolved bar until Mr. Nguyen came in. Meanwhile, he bought a
adversely to the State in Bluitt v. State, 137 beer and paid for it with cash. He insisted that he did not
S.W.3d 51 (Tex. Crim. App. 2004). We therefore try to use a credit card to pay for the beer. "I don't know
dismiss the State's first ground for review and about credit card because I'm from Vietnam. I never use
address only the second issue. credit card. I know nothing about credit card." He denied
burglarizing Ms. [**5] Truong's apartment or stealing
[**3] I. any of her credit cards. He did admit to having a prior
burglary conviction.
The evidence at trial showed that, on December 13,
2002, appellant went to a karaoke bar in Houston around The application paragraphs of the jury charge
11 p.m. and ordered a couple of beers. He gave Hanh instructed the jury to find appellant guilty if it concluded
Nguyen, the Vietnamese manager of the bar, a credit that he committed credit card abuse by any one of three
card. The name on the credit card was Hong Truong. Mr. separate acts. 5 Appellant's counsel stated that he had no
Nguyen was immediately suspicious because "Hong" is a objection to the jury charge.
woman's name, and, serendipitously enough, "Hong
Truong" is the name of Mr. Nguyen's ex-wife. Mr. 5 The application paragraphs read:
Nguyen immediately called his ex-wife and asked her to
come down to the bar. Meanwhile, appellant pulled out a Now, if you find from the evidence beyond a
large stack of credit cards, as well as an HMO and dental reasonable doubt that [appellant] on or about the
plan card, all in the name of Hong Truong, and asked: 13th day of December, 2002, did then and there
"Which one of these can I use?" Mr. Nguyen declined to unlawfully, intentionally or knowingly steal a
take any of them, and appellant sat quietly finishing his credit card owned by the card holder, Hong
beer. Truong, with intent to deprive the cardholder of
the property and without the effective consent of
Mr. Nguyen told his security guard to call the police. the cardholder; or
They arrived at about the same time as Hong Truong. She
told her ex-husband and the policeman that all of her If you find from the evidence beyond a
 Page 3
175 S.W.3d 738, *742; 2005 Tex. Crim. App. LEXIS 457, **5

reasonable doubt that [appellant] on or about the concluded that it could address the merits [**7] of
13th day of December, 2002, did then and there appellant's complaint even though he had affirmatively
unlawfully and knowingly receive with intent to said he had no objection to the jury charge. 8 Second, the
use a credit card owned by card holder, Hong court of appeals held that the trial court erred in
Truong, knowing the credit card had been stolen; submitting the three separate offenses set out in
or application paragraphs of the jury charge in the
disjunctive because such a charge would allow for a
If you find from the evidence beyond a non-unanimous jury verdict. 9 Third, it concluded that
reasonable doubt that [appellant] on or about the this error was "egregious" under Almanza "because it
13th day of December, 2002, with intent to obtain deprived appellant of his right to a unanimous jury
a benefit fraudulently, did use or present to Hanh verdict and, thus, denied appellant a fair and impartial
Nguyen a credit card knowing the use was trial." 10 The court of appeals reversed the judgment of
without the effective consent of the cardholder, the trial court and remanded the case for a new trial.
Hong Truong, namely without consent of any
kind, and knowing that the credit card had not 6 129 S.W.3d at 199.
been issued to the defendant, then you will find 7 137 S.W.3d 51, 53 (Tex. Crim. App. 2004)
[appellant] guilty as charged in the indictment. ("we hold that an affirmative denial of objection,
as in this case, shall be deemed equivalent to a
(Emphasis added). failure to object. An appellant may raise such
unobjected-to charge error on appeal, but may not
[**6] The prosecutor told the jury during his obtain a reversal for such error unless it resulted
closing argument that the jury charge did not require that in egregious harm").
the jurors unanimously agree upon any one of the three 8 Ngo, 129 S.W.3d at 199 ("we fail to see any
alternate theories: meaningful distinction, in the context of Almanza,
between a failure to object and an affirmative
You know what? I have all the ways that approval of the jury charge").
we can prove it. You know, he even [**8]
testified that, you know, he received the 9 Id. at 201.
card from someone else. 10 Id. at 202.
I don't know how, you know- I don't II.
know if I proved all three or one or two or
all- I have no idea. You know, what I do In its petition for discretionary review, the State
know is that for sure the credit card, he contends that the court of appeals erred in finding that
had no right to use it. That's clear. And appellant was denied his right to a unanimous verdict.
that he tried to present it and it was First, it argues that the application paragraphs merely set
presented to Mr. Nguyen. And he was out alternate means of committing a single offense of
trying to get something for it. That's clear. credit card abuse, but those paragraphs did not allege
That's how simple this is. (emphasis separate credit card abuse offenses. Second, the State
added). argues alternatively that the application paragraphs
"merely showed repeated instances of commission of the
The jury returned a general guilty verdict and sentenced offense of credit card abuse." Because appellant failed to
appellant to two years in a state jail facility, plus a $ 3500 request the State to elect which single offense it would
fine. rely upon for conviction, it was permissible to submit the
three separate offenses in the disjunctive. Each juror
[*743] In his sole point of error on appeal, appellant could then decide which of the three criminal acts it
argued that his constitutional and statutory right to a
thought the State had proven and return a general verdict
unanimous jury verdict was violated "by the disjunctive so long as all of the jurors unanimously agreed that he
submission in the jury charge of two or more separate had committed the general offense of credit card abuse.
offenses." 6 First, the court of appeals, presciently In sum, according to the State, there was no error, much
anticipating this Court's decision in Bluitt v. State, 7
 Page 4
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less egregious harm. knowing the use was without the effective
consent of the cardholder, Hong Truong.
[**9] Our first duty in analyzing a jury-charge issue 20
is to decide whether error exists. 11 Then, if we find error,
we analyze that error for harm. 12 Preservation of charge
error does not become an issue until we assess harm. 13
The degree of harm necessary for reversal depends on 18 TEX. PENAL CODE § 32.31(b)(4).
whether the appellant preserved the error by objection. 14 [**11]
Under Almanza, jury charge error requires reversal when 19 Id.
the defendant has properly objected to the charge and we 20 TEX. PENAL CODE § 32.31(b)(1)(A).
find "some harm" to his rights. 15 When the defendant
The State charged all three offenses in three separate
fails to object [*744] or states that he has no objection to
paragraphs within a single count of one indictment. It
the charge, we will not reverse for jury-charge error
sought one conviction for the commission of one credit
unless the record shows "egregious harm" to the
card abuse offense by proving any of three different
defendant. 16 Thus, we review alleged charge error by
criminal acts, occurring at three different times, and in
considering two questions: (1) whether error existed in
three different ways.
the charge; and (2) whether sufficient harm resulted from
the error to compel reversal. 17 We turn first to the When the State charges different criminal acts,
question of error. regardless of whether those acts constitute violations of
the same or different statutory provisions, the jury must
11 Middleton v. State, 125 S.W.3d 450, 453 (Tex.
be instructed that it cannot return a guilty verdict unless it
Crim. App. 2003) (citing Hutch v. State, 922
unanimously agrees upon the commission of any one of
S.W.2d 166, 170-71 (Tex. Crim. App. 1996)).
these criminal acts. 21 In this case, for example, all twelve
12 Middleton, 125 S.W.3d at 453.
members of the jury must unanimously agree that
[**10]
appellant did at least one of three different acts: either he
13 Id.
stole Ms. Truong's credit card; or he received her credit
14 Id. (citing Hutch, 922 S.W.2d at 171).
card, knowing that it was stolen and intending to use it
15 Almanza, 686 S.W.2d at 171; see also Hutch,
fraudulently; or he fraudulently presented her credit card
922 S.W.2d at 171.
with the intent to obtain a benefit. 22 In [*745] this case,
16 Bluitt, 137 S.W.3d at 53; Almanza, 686
however, the word "unanimously" appeared only [**12]
S.W.2d at 171.
in the "boilerplate" section of the jury charge dealing
17 See Posey v. State, 966 S.W.2d 57, 60 & n.5
with selection of the jury foreman:
(Tex. Crim. App. 1998).

A. Error existed in this jury charge because it allowed After you retire to the jury room, you
for a non-unanimous jury verdict. should select one of your members as your
Foreman. It is his or her duty to preside at
The indictment charging appellant with credit card your deliberations, vote with you, and
abuse under section 32.31 of the Penal Code alleged three when you have unanimously agreed upon
statutorily different criminal acts: a verdict, to certify to your verdict by
using the appropriate form attached hereto
1) stealing a credit card owned by Hong and signing the same as Foreman.
Truong; 18
Here the jury could well have believed that they need
2) receiving a credit card owned by only be unanimous about their "verdict" of guilty or not
Hong Truong, knowing that it had been guilty of the general offense of credit card abuse. Indeed,
stolen, and acting with the intent to use it; this unanimity instruction is worse than saying nothing
19 because it affirmatively supports the prosecutor's
erroneous jury argument that the jurors need agree only
3) presenting a credit card with the on their ultimate general "verdict" of guilty, rather than
intent to obtain a benefit fraudulently, specifying that they need to unanimously agree on any
 Page 5
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one of the three specific criminal acts set out in the jury Process Clause would permit a State to convict
charge. anyone under a charge of 'Crime' so generic that
any combination of jury findings of
21 Francis v. State, 36 S.W.3d 121, 125 (Tex. embezzlement, reckless driving, murder, burglary,
Crim. App. 2000) ("the unanimity requirement is tax evasion, or littering, for example, would
undercut when a jury risks convicting the suffice for conviction"); id. at 651 ("we would not
defendant of different acts, instead of agreeing on permit ... an indictment charging that the
the same act for a conviction") (citing United defendant assaulted either X on Tuesday or Y on
States v. Holley, 942 F.2d 916, 925 (5th Cir. Wednesday, despite the 'moral equivalence' of
1991)). those two acts")(Scalia, J., concurring).
[**13]
22 Based upon the record evidence, it is entirely [**14] Under our state constitution, jury unanimity
possible that the jury could have found that is required in felony cases, and, under our state statutes,
appellant committed two of these criminal acts: he unanimity is required in all criminal cases. 23 Unanimity
either burglarized Ms. Truong's apartment and in this context means that each and every juror agrees that
stole her credit cards himself or he obtained them the defendant committed the same, single, specific
from the original burglar, knowing that the cards criminal act. Stealing a credit card on Monday is not the
belonged to someone else, and he also tried to use same specific criminal offense as receiving a stolen credit
Ms. Truong's credit cards to pay for his beer. The card on Tuesday or presenting a stolen credit card to a
State could have charged appellant with both of bartender on Wednesday. Indeed, stealing a credit card at
these credit card abuse offenses and obtained two 9:00 a.m. on Monday is not the same specific criminal
convictions had it charged appellant in separate offense as receiving a stolen credit card at 9:00 a.m. on
counts instead of separate paragraphs. See TEX. Monday. These are all credit card abuse offenses, to be
CODE CRIM. PROC. art. 21.24(b) ("[a] count sure, but they are not the same, specific credit card abuse
may contain as many separate paragraphs criminal acts committed at the same time or with the
charging the same offense as necessary, but no same mens rea and the same actus reus.
paragraph may charge more than one offense");
see also Francis v. State, 36 S.W.3d at 126 23 See Francis, 36 S.W.3d at 126 (Womack, J.,
(Womack, J., concurring) (stating that "our law concurring) (citing TEX. CONST. art. V, § 13;
allows only one offense to be charged in each TEX. CODE CRIM. PROC. arts. 36.29(a), 37.02,
paragraph of an indictment, information, or 37.03, 45.034-45.036). The unanimity
complaint. Here, the State, having chosen to plead requirement is a complement to and helps in
only one paragraph, was required to elect one effectuating the "beyond a reasonable doubt"
incident on which to rely. This requirement is not standard of proof. See United States v. Gipson,
only essential to giving a defendant the requisite 553 F.2d 453, 457 n.7 (5th Cir. 1977).
notice of the charge against which to defend, it
[**15] The State is mistaken in its first argument
helps assure that the jury's verdict will be
that the trial court simply submitted a single "credit card
unanimous") (footnote omitted).
abuse" offense with three different statutory manners and
In this case, the State affirmatively decided to means. The phrase "manner or means" describes how the
seek only one conviction. It was certainly entitled defendant committed the specific statutory criminal act. It
to do so. But it can charge only one specific does not mean that the State can rely upon a laundry list
criminal offense in one paragraph; it cannot of different criminal acts and let the individual jurors take
charge different violations of the same generic their pick on which each believes the defendant
offense by the commission of different criminal committed. 24 The State relies upon Schad v. Arizona, 25
acts in a single paragraph and then seek a [*746] but that case does not support its argument, rather
non-unanimous general "credit card abuse" guilty it holds that a jury must be unanimous on what specific
verdict. See Schad v. Arizona, 501 U.S. 624, 633, criminal act the defendant committed. In Schad, the
115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991) Supreme Court noted that the actus reus was "murder."
("nothing in our history suggests that the Due All twelve jurors had to agree that the defendant
 Page 6
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committed that act. They did not need to be unanimous groupings" in Schad as being "too conclusory to
on the issue of whether the defendant murdered "with serve as a real test" for deciding what facts a jury
premeditation or in the course of committing a robbery." need unanimously agree upon, the Schad plurality
26 The preliminary factual questions of premeditation or did not disagree with the underlying proposition
robbery go to "how" he committed the murder, not that all jurors must agree upon the specific
whether he committed the act of murder. As the Supreme statutory criminal act that the defendant was
Court explained: alleged to have committed. 501 U.S. at 634-35.

We have never suggested that in returning general In any case, we have already stated, in
verdicts in such cases [**16] the jurors should be Francis, that the Texas requirements for a
required to agree upon a single means of commission, unanimous jury verdict "are not identical to the
any more than the indictments were required to specify requirements under federal law." Francis, 36
one alone. In these cases, as in litigation generally, S.W.3d at 125 n.1; id. at 127 n.11 (Womack, J.,
"different jurors may be persuaded by different pieces of concurring).
evidence, even when they agree upon the bottom line. [**17]
Plainly there is no general requirement that the jury reach 25 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct.
agreement on the preliminary factual issues which 2491 (1991) (plurality op.).
underlie the verdict." 27 26 Id. at 630.
27 Id. at 631-62; see also Aguirre v. State, 732
24 A handy, though not definitive, rule of thumb S.W.2d 320, 324-27 (Tex. Crim. App. 1987) (op.
is to look to the statutory verb defining the on reh'g) (general verdict form proper when State
criminal act. That verb-such as steal, receive, or alleged alternative means of committing one
present-in section 32.31 of the Penal Code, is murder-intentionally causing victim's death or
generally the criminal act upon which all jurors felony-murder). Similarly, under Schad and
must unanimously agree. See United States v. Aguirre, the State could charge Prince Yussupov
Gipson, in which Judge Wisdom stated: with the murder of Rasputin, alleging five
different manners and means- by poisoning,
The unanimity rule ... requires garroting, shooting, stabbing, or drowning
jurors to be in substantial Rasputin. The jury could return a general verdict
agreement as to just what a if it found that Prince Yussupov intentionally
defendant did as a step preliminary caused the death of Rasputin by any of those
to determining whether the means; the unanimity requirement goes to the act
defendant is guilty of the crime of "causing the death of Rasputin," while the jury
charged. Requiring the vote of need not be unanimous on the preliminary fact
twelve jurors to convict a issues- whether it was by poisoning, garroting,
defendant does little to insure that etc. Id.; see Kitchens v. State, 823 S.W.2d 256,
his right to a unanimous verdict is 257-58 (Tex. Crim. App. 1991).
protected unless this prerequisite of
jury consensus as to the Furthermore, the plurality opinion in Schad has been
defendant's course of action is also undercut by the [**18] reasoning and result in the
required. Supreme Court's later decision in Richardson v. United
States. 28 In this more recent case, the Court held that,
553 F.2d at 457-58 (concluding that a federal under the "continuing criminal enterprise" statute, the
statute criminalizing the "bartering, selling, or jury must "agree unanimously [*747] about which
disposing" of a stolen vehicle in interstate specific violations make up the 'continuing series of
commerce or "receiving, concealing, or storing" violations.'" 29 In Richardson, as in the present case, it is
it, required jury unanimity as to which type of not enough that the jurors might be convinced beyond a
criminal act defendant committed-"selling" or reasonable doubt that the defendant committed "a series
"receiving"). Although the Supreme Court of violations in concert with others," it must be
criticized Gipson's notion of "distinct conceptual unanimous about each specific violation (i.e., which
 Page 7
175 S.W.3d 738, *747; 2005 Tex. Crim. App. LEXIS 457, **18

specific criminal act- which specific drug sale) that it results. 33 Second, the State could put on evidence of
found the defendant had committed. 30 The Supreme repetition of the same criminal act on different occasions.
Court explained that a federal criminal jury must 34 Third, the State could put on evidence, as it did in this
unanimously agree on each "element" of the crime in case, of different criminal acts, each one of which [*748]
order to convict, but need not agree on all the "underlying is a violation of a specific penal statute such as credit
brute facts [that] make up a particular element." 31 The card abuse. Under any of these three scenarios, the
crucial distinction is thus between a fact that is a specific defendant could require the State to elect which specific
actus reus element of the crime and one that is "but the act it was relying upon for conviction, but he need not.
means" to the commission of a specific actus reus Nonetheless, the jury must reach a unanimous verdict on
element. 32 Richardson is precisely analogous to the which single, specific criminal act the defendant
present case. committed.

28 526 U.S. 813, 143 L. Ed. 2d 985, 119 S. Ct. 33 For example, the State might charge a
1707 (1999). defendant with stealing a credit card from Hong
[**19] Truong and put on evidence that he stole a credit
29 Id. at 815. card from Hong Truong and Hanh Nguyen. See
30 Id. at 816. GEORGE E. DIX & ROBERT O. DAWSON,
31 Id. at 817. As the Court in Richardson TEXAS CRIMINAL PRACTICE AND
explained: PROCEDURE § 30.51 at 664 n.1 (2nd ed. 2001)
("If an indictment alleges theft of one hog and the
where ... an element of robbery is proof shows that by a single act the defendant
force or the threat of force, some stole two hogs, does this show two different units
jurors might conclude that the between which the State is required to elect?") &
defendant used a knife to create the § 30.58 at 679 (discussing Coward v. State, 24
threat; others might conclude he Tex. App. 590, 7 S.W. 332 (1888), in which "the
used a gun. But that old Court of Appeals held . . . that when a
disagreement--a disagreement defendant was tried for theft of one animal and
about means-- would not matter as the evidence showed the thief took two animals,
long as all 12 jurors unanimously the jury charge had to make clear which of the
concluded that the Government animals was the subject of the charged offense")
had proved the necessary related & § 30.57 n.17 at 149 (Supp. 2004) (noting Cates
element, namely that the defendant v. State, 72 S.W.3d 681, 695 n.5 (Tex.App.-Tyler
had threatened force. 2001) "where the State's evidence showed
multiple sexual acts committed by the accused
Id. at 817. against two children, the need for an election was
32 Id.; see also United States v. Reeder, 170 not eliminated by the continuing course of
F.3d 93, 105 (1st Cir. 1999) ("while a jury must conduct exception").
agree on all of the elements of an offense, it need [**21]
not agree on the means by which all the elements 34 For example, the State could allege that
were accomplished"). appellant fraudulently presented Hong Truong's
credit card to Hanh Nguyen, and then prove that
The State is also mistaken in its second argument he did so on Monday, Tuesday, and again on
that, because the evidence shows the commission of two Wednesday. See DIX & DAWSON, § 30.55 at
or more acts violating the same statutory offense, the 673 (discussing Crawford v. State, 696 S.W.2d
defendant was required to request an election if he 903 (Tex. Crim. App. 1985), in which "the
wanted the jury to reach a unanimous verdict on one indictment charged rape of a child consisting of a
[**20] single act. There are three variations on this single act of intercourse with the named victim.
theme, but none of them permits a non-unanimous The victim testified to numerous acts of
verdict. First, the State could put on evidence of intercourse over several years. Since each act of
repetition of the same criminal act, but with different intercourse could constitute the charged offense,
 Page 8
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the State was required to elect one on which to to request an election means that the jury may be
proceed"). instructed on several different criminal acts in the
disjunctive, but it will still be instructed that it must
The present case bears great similarity to the unanimously agree on one specific criminal act. 40 As the
scenario in Francis v. State, 35 in which the defendant State correctly points out, one of the purposes of
was charged with one count of indecency with a child in requiring an election is "to ensure unanimous verdicts,
a single paragraph indictment. 36 The State presented that is, all of the jurors agreeing that one specific
evidence of four separate acts of indecency, each act incident, which constituted the offense charged in the
occurring at a different time and date. After the defendant indictment, occurred[.]" 41 But the converse is not true.
requested the State to elect which specific act it sought to The failure to request an election does not eliminate a
obtain a conviction, the State chose two of them-one defendant's right to a unanimous verdict. 42
involving touching the victim's [**22] breasts and one
touching her genitals. 37 Those are separate criminal acts. 40 See DIX & DAWSON, § 30.67 at 688-89
These two separate acts were charged in the disjunctive (such a charge "would not limit the jury to any
in a single application paragraph, 38 such that the jury one of several acts or incidents that might
could have returned a non-unanimous verdict, with some constitute the crime. It would, however, make
of the jurors finding that the defendant touched the child's clear that the jurors must unanimously agree on
breast while others concluding that he touched her one of them as constituting the proved offense").
genitals. In Francis, we held that a jury charge which [**24]
allows for a non-unanimous verdict concerning what 41 Phillips v. State, 130 S.W.3d 343, 349 (Tex.
specific criminal act the defendant committed is error. 39 App. - Houston [14th Dist.] 2004, n.p.h.).
42 See Francis, 36 S.W.3d at 127 n.10
35 36 S.W.3d 121 (Tex. Crim. App. 2000). (Womack, J., concurring) ("we do not reverse for
36 Id. the election error. It is necessary to discuss the
37 Id. principles that underlie the requirement of
38 The application paragraph in Francis, read, in election because one of those principles was
pertinent part: violated by the error in the charge").

If you find from the evidence [*749] There is one point upon which we disagree
beyond a reasonable doubt that on with the Eastland Court of Appeals. The error here is not
or about the 1st day of November, in submitting the three separate offenses "in the
1992, in Tarrant County, Texas, disjunctive." 43 The error is in failing to instruct the jury
the Defendant, Joseph Clayton that it must be unanimous in deciding which one (or
Francis, did ... engage in sexual more) of the three disjunctively submitted offenses it
contact by touching the breast or found appellant committed. Indeed, the application
genitals of ... paragraphs submitted to the jury in this case would have
been clearly correct had each paragraph included just one
36 S.W.3d at 124 (emphasis in original). additional word: "unanimously," such that all twelve
39 36 S.W.3d at 125 jurors would immediately realize that they had to agree
on one specific paragraph which set out one specific
[**23] In its Brief, the State attempts to distinguish criminal act. 44 The general verdict form of "guilty" or
Francis by arguing that appellant did not request an "not [**25] guilty" is also proper because it does not
election, while the defendant in Francis did request an matter which criminal act of credit card abuse the jury
election. The State posits that jury unanimity is required found appellant had committed as long as each juror
only if the defendant requests an election between agreed on the same criminal act. In this case, however,
separate offenses. A request for an election, however, is the jury was never informed, in any way, by anyone, at
not a prerequisite for implementing Texas' constitutional any time, that-as a collective body- it was required to
and statutory requirement of jury unanimity. An election reach a unanimous verdict concerning one specific
simply limits the number of specific offenses that the jury criminal act. The way that these three application
may consider during its deliberations. Appellant's failure paragraphs were set out, the jury could well have been
 Page 9
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misled into believing that only its ultimate verdict of doubt that [appellant] on or about
"guilty" need be unanimous. Under these particular the 13th day of December, 2002,
circumstances, we conclude that, taken as a whole, the with intent to obtain a benefit
jury charge contained error. fraudulently, did use or present to
Hanh Nguyen a credit card
43 Ngo, 129 S.W.3d at 201 (stating that "because knowing the use was without the
of the possibility of a non-unanimous jury verdict, effective consent of the cardholder,
'separate offenses' may not be submitted to the Hong Truong, namely without
jury in the disjunctive"). In making this statement, consent of any kind, and knowing
the court of appeals cited to Francis, but as the that the credit card had not been
State correctly points out, the defendant in issued to the defendant, then you
Francis requested that the State elect one single will find [appellant] guilty as
offense to submit to the jury. Here, appellant did charged in the indictment.
not so request. Therefore, he waived any right to
require the State to pick just one of the three (Emphasis added). There is, of course, nothing in
criminal acts to submit. The jury could be charged the Texas Constitution, statutes, or case law that
disjunctively, as long as it was also informed that requires a jury charge to contain the explicit
it must be unanimous in deciding which criminal words "unanimous" or "unanimously." But Texas
act (or acts) appellant committed- stealing the law does explicitly require that a jury's verdict be
credit card, receiving a stolen credit card, or unanimous. The addition of the word
fraudulently presenting it. "unanimously" before the description of each
[**26] distinct criminal act in the application is merely
44 Thus, a clearly correct version of the one way to implement that legal requirement. We
application paragraphs would have read: certainly do not suggest that it is the only way.

Now, if you unanimously find [**27] Having found error in the jury charge, we
from the evidence beyond a now turn to the question of whether appellant suffered
reasonable doubt that [appellant] "egregious harm" because he failed to object to the jury
on or about the 13th day of charge.
December, 2002, did then and
there unlawfully, intentionally or [*750] B. Appellant suffered "egregious harm" when
knowingly steal a credit card the jury was repeatedly told that it need not return a
owned by the card holder, Hong unanimous verdict.
Truong, with intent to deprive the
Under the Almanza standard, the record must show
cardholder of the property and
that a defendant has suffered actual, rather than merely
without the effective consent of the
theoretical, harm from jury instruction error. 45 Errors
cardholder; or
that result in egregious harm are those that affect "the
If you unanimously find from very basis of the case," "deprive the defendant of a
the evidence beyond a reasonable valuable right," or "vitally affect a defensive theory." 46
doubt that [appellant] on or about Appellant argues that he suffered actual harm from the
the 13th day of December, 2002, faulty jury instruction and that he was, in fact, deprived
did then and there unlawfully and of his valuable right to a unanimous jury verdict.
knowingly receive with intent to
45 Dickey v. State, 22 S.W.3d 490, 492 (Tex.
use a credit card owned by card
Crim. App. 1999) (citing Arline v. State, 721
holder, Hong Truong, knowing the
S.W.2d 348, 351 (Tex. Crim. App. 1986)).
credit card had been stolen; or
46 Hutch v. State, 922 S.W.2d at 171.
If you unanimously find from
[**28] The court of appeals found egregious error
the evidence beyond a reasonable
under Almanza because: 1) the jury charge permitted a
 Page 10
175 S.W.3d 738, *750; 2005 Tex. Crim. App. LEXIS 457, **28

non-unanimous verdict; 2) during its closing argument, you believe.
the State forthrightly told the jury that it need not be
unanimous in its verdict (as quoted in Part I supra); and Everyone in the first row agree that
3) "there were contested issues at trial." 47 In fact, there that's okay? Because that's the law.
was more. 48 (emphasis added).

47 Ngo, 129 S.W.3d at 201-02. But that is not the law; that is the error in this case. Then,
48 Under Almanza, to determine whether the during the defense voir dire, while the defense was trying
error was so egregious that a defendant was [**30] to explain (erroneously) that the State must prove
denied a fair and impartial trial, a reviewing court all three criminal acts, the prosecutor objected, and the
should examine: 1) the entire jury charge; 2) the trial judge told the jurors:
state of the evidence; 3) the arguments of counsel; There's three ways alleged that the
and 4) any other relevant information in the offense can be committed. The State must
record. 686 S.W.2d at 171. prove, to your satisfaction, one of the
number of them; however, in the course of
Near the beginning of the State's voir dire, the the proof, the State may prove [*751] one
prosecutor told the jurors: to the satisfaction of part of the jury,
another one to the satisfaction of others,
So, I'm going to explain the three ways the third one to the satisfaction of another
that we've alleged that I'm going to intend part of the jury, but if you found the
to prove in this case: That the defendant, defendant guilty, you must believe the
Mr. Ngo, on or about December 13th, in State has proved one of the three
Harris County, Texas, intentionally and paragraphs in its entirety.
[**29] knowingly stole a credit card with
intent to deprive without the consent of Thus, both the trial judge and the prosecution misstated
Hong Truong. That's one way we can do the law at the very beginning of the case and at the very
it. end. 49 This is not an instance of a jury charge which is
simply missing an important word-"unanimously"- which
Second way, that the defendant, on or reasonable jurors might infer from the context of the
about December 13, in Harris County, entire charge or from the comments of the advocates
Texas, received with intent to deprive emphasizing the correct legal principles. 50 Here, the jury
without the consent of Hong Truong. was affirmatively told, on three occasions, twice by the
That's one way we can do it. prosecutor and once by the trial judge, that it need not
return a unanimous verdict. Both told the jury that "a mix
And the third way, defendant, on or
and match" [**31] verdict of guilt based upon some
about December 13th, in Harris County,
Texas, with intent to obtain a fraudulent jurors believing appellant stole a credit card, others
believing he received a stolen credit card, and still others
benefit used or presented a credit card to
believing that he fraudulently presented one, was "the
Mr. Hanh Nguyen without the consent of
law." 51
Ms. Hong Truong. Does that make sense
to everybody? There's several different 49 Defense counsel did not object to these
ways this can happen. Who in the first row misstatements of the law by either the prosecutor
does that not make sense to? or trial judge. The record shows that the
prosecutor handed the trial judge a copy of a case
The important thing with this is that if
from this Court. Apparently all three-the
three of you who end up sitting on the jury
prosecutor, defense attorney, and
panel feel like he stole the credit card and
judge-innocently, but mistakenly, believed that
used it, six of you think that he received it
this Court's opinion that a jury's "mix and match"
and three of you think he presented it, it
nonunanimous verdict on the specific "manner
doesn't matter which one you think he did.
and means" of committing one single criminal act
It can be a mix and match, whichever one
 Page 11
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(e.g., causing a person's death by strangling, unanimous verdict violated when defendant
shooting, poisoning, or garroting) also applied to charged with three counts of delivery of a
a "mix and match" nonunanimous verdict controlled substance and verdict form included
concerning different criminal acts which violate only one count of delivery, allowing jurors to find
the same statutory provision. Thus, all three acted guilt without agreeing upon which count he was
in complete good faith when each either guilty).
unintentionally committed error or failed to object
to the error. [**33] Furthermore, the evidence was contested as
50 Compare Hoover v. Johnson, 193 F.3d 366, appellant testified and denied committing any one of the
367-68 (5th Cir. 1999) (when both state three offenses. And, under no theory of the evidence in
prosecutor and defense attorney correctly this case, could appellant have committed both the
explained Texas law of unanimity to jury, habeas original theft by burglarizing Ms. Truong's apartment and
petitioner's federal constitutional claim that jury have received the [*752] stolen credit cards from
instructions did not guarantee jury unanimity someone else who had committed the burglary. These
rejected). two offenses are mutually exclusive in this particular
[**32] context. If even a single juror believed that appellant was
51 See, e.g., Castillo v. State, 734 N.E.2d 299, not the original thief, but did believe that he had received
304-305 (Ind. App. 2000) (trial court's failure to the stolen credit card from "Mike," this could not have
instruct jury on unanimity requirement when State been a unanimous verdict.
offered evidence that defendant had committed
In sum, this is an instance in which the original jury
same "dealing cocaine" offense twice was
charge error was not corrected or ameliorated in another
reversible error when both trial court and
portion of the charge; instead, it was compounded by the
prosecutor told jury it had "a choice" of
one misleading statement concerning unanimity that was
convicting defendant for "one or the other ... or
set out in the jury charge, as well as by the affirmative
both" instances of drug dealing); Colorado v.
statements of both the trial judge and prosecutor that the
Estorga, 200 Colo. 78, 82, 612 P.2d 520, 523
jury could indeed return a non-unanimous verdict. And,
(Colo. 1980) (en banc) (defendant's right to
given the state of the evidence, we-like the court of
unanimous verdict violated where state offered
appeals-cannot determine that the jury was, in fact,
evidence of more than one alleged sexual assault
unanimous in finding appellant guilty of one specific
on different occasions and trial court instructed
credit-card-abuse offense. [**34] Some jurors could
the jury it could find defendant guilty if "the
have found appellant's defense to one or more of the three
evidence showed that the crime had occurred at
allegations persuasive while finding another one
any time within three years prior to the filing of
unpersuasive. We therefore agree that appellant's
the information"); Horton v. United States, 541
constitutional and statutory right to a unanimous jury
A.2d 604, 610-11 (D.C. Ct. App. 1988)
(defendant's right to unanimous jury verdict verdict was violated and this violation caused egregious
harm to his right to a fair and impartial trial. 52 We affirm
violated when different factual scenarios could
the judgment of the court of appeals.
have supported jury verdict on assault conviction
and appellate court could not "infer from the 52 See Clear v. State, 76 S.W.3d 622, 624 (Tex.
verdicts themselves that all the jurors were in App. - Corpus Christi 2002, no pet.) (finding
agreement as to appellant's specific criminal egregious harm to defendant's right to a
acts"); Hawaii v. Mahoe, 89 Haw. 284, 291, 972 unanimous jury verdict when jury charge allowed
P.2d 287, 294 (Haw. 1998) (right to unanimous conviction upon disjunctive submission of three
jury verdict violated when defendant made two separate sexual assault of a child offenses); see
distinct entries into residence, prosecution did not generally, Ruiz v. State, 753 S.W.2d 681, 683
elect which entry to rely on for conviction, and
(Tex. Crim. App. 1988) (egregious harm resulted
jury not given specific instruction of requirement from failure to instruct jury on State's burden to
of unanimity for underlying criminal act); Illinois disprove sudden passion when defendant did not
v. Scott, 243 Ill. App. 3d 167, 612 N.E.2d 7, 9, offer evidence of any other defense); Bellamy v.
183 Ill. Dec. 750 (Ill. Ct. App. 1993) (right to
 Page 12
175 S.W.3d 738, *752; 2005 Tex. Crim. App. LEXIS 457, **34

State, 742 S.W.2d 677, 685-86 (Tex. Crim. App.
1987) (plurality op.) (egregious harm resulted
from erroneous instruction on presumption of
2 See id., 125, at 127 (concurring opinion).
knowledge that property was stolen when
defendant's knowledge was sole contested issue at The charge in this case also was surrounded by
trial); see also Horton, 541 A.2d at 611-12 errors, as the court's opinion points out: the prosecutor's
(although defendant did not object to lack of incorrect statement in voir dire that the law does not
unanimity instruction in jury charge, failure to require a unanimous verdict, the trial court's making a
give such an instruction was "plain error, that is, statement to the same effect in voir dire, and the
error so clearly prejudicial to substantial rights of prosecutor's reiteration of the wrong law in argument. 3
the defendant as to jeopardize the very fairness
and integrity of the trial" when jury could have 3 See ante, at Part II. B.
been misled into believing that it need not be
unanimous on which of two different assaults he It could be said of both Francis and this case that, by
committed). failing to cure the cumulative effect of a series of
missteps, the courts' charges contained the ultimate step
[**35] Cochran, J. that make "it appear[] from the record that the defendant
has not had a fair an impartial trial" within the meaning
CONCUR BY: WOMACK of Article 36.19.

CONCUR En banc.

DISSENT BY: Hervey
WOMACK, J., filed a concurring opinion, in which
MEYERS, J., joined. DISSENT

I join the Court's opinion with the understanding that Hervey, J., filed a dissenting opinion in which
its finding of "egregious harm" in this case, like our [**37] Keasler, J., joined.
finding of "some harm" in Francis v. State, 1 is based on
more than the mere use of the word "or" in the charge. DISSENTING OPINION

1 36 S.W.3d 121 (Tex. Cr. App. 2000). I respectfully dissent. In this case, a jury
unanimously convicted appellant of a single credit card
Three of the six members of the court who found the abuse offense. The Court decides that appellant's state
error in Francis to be reversible recognized the "strange constitutional right to a unanimous jury verdict was
context" in which it occurred: violated because the jury's unanimous guilty verdict
could have been based on a split vote. The State alleged,
a general, one-paragraph indictment that in three separate paragraphs, three separate acts, that
was ill-suited to a multiple-offense trial; could have been charged as three separate offenses. See
an indictment in the conjunctive that could Ngo v. State, S.W.3d slip op. at 1-2 (Tex.Cr.App.
have been in the disjunctive; evidence of No. PD-0504-04, delivered this date) (three application
multiple offenses, none of which were paragraphs in jury charge permitted jury to convict
described by the conjunctive pleading; two appellant if some of the jurors found that he stole the
denied requests for the State to elect the credit card, others believed he received a stolen credit
incident on which it would rely; the State's card, and still others thought that he fraudulently
incorrect decision to rely on two incidents presented it).
when it had only pleaded one; and the
erroneous decision to authorize the jury to This scenario implicates the Supreme Court's
convict [*753] for either of two offenses decision in Schad v. Arizona 1 and this Court's decision in
[**36] when the indictment pled only Francis v. State. 2 It does not, however, implicate
one. 2 appellant's state constitutional right to a unanimous jury
 Page 13
175 S.W.3d 738, *753; 2005 Tex. Crim. App. LEXIS 457, **37

verdict. Rather, it implicates the "permissible [due verdict based on any combination
process] limits in defining criminal conduct, as [**38] of the alternative findings. If it
reflected in the instructions to jurors applying the was, then the jury was unanimous
[application paragraphs], not one of jury unanimity." See in reaching the verdict, and
Schad, 501 U.S. at 631. 3 And, it would appear that petitioner's proposed unanimity
[*754] (even though all three acts in the application rule would not help him. If it was
paragraphs are morally equivalent), 4 those permissible not, and the jurors may not
due process limits may have been exceeded in this case 5 combine findings of premeditated
unless the jury was instructed that it had to unanimously and felony murder, then
agree on at least one of the application paragraphs before petitioner's conviction will fall
it could convict appellant. even without his proposed rule,
because the instructions allowed
1 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct. for the forbidden combination.
2491 (1991).
2 36 S.W.3d 121 (Tex.Cr.App. 2000). In other words, petitioner's
3 In Schad, 501 U.S. at 630-31, the Supreme real challenge is to Arizona's
Court described the issue in the following characterization of first-degree
manner: murder as a single crime as to
which a verdict need not be limited
Petitioner's first contention is that to any one statutory alternative, as
his [first-degree murder] against which he argues that
conviction under instructions that premeditated murder and felony
did not require the jury to agree on murder are separate crimes as to
one of the alternative theories of which the jury must return separate
premeditated and felony murder is verdicts. The issue in this case,
unconstitutional. [Footnote then, is one of the permissible
omitted]. He urges us to decide this limits in defining criminal conduct,
case by holding that the Sixth, as reflected in the instructions to
Eighth, and Fourteenth jurors applying the definitions, not
Amendments require a unanimous one of jury unanimity.
jury in state capital cases, as
distinct from those where lesser [**39]
penalties are imposed. [Citations 4 See Schad, 501 U.S. at 643-45 ("moral
omitted]. We decline to do so, disparity" between different means in jury charge
however, because the suggested to satisfy mens rea element of single offense
reasoning would beg the question could present federal constitutional due process
raised. Even assuming a violation).
requirement of jury unanimity 5 See Schad, 501 U.S. at 651 (Scalia, J.,
arguendo, that assumption would concurring) (due process would not permit "an
fail to address the issue of what the indictment charging that the defendant assaulted
jury must be unanimous about. either X on Tuesday or Y on Wednesday, despite
Petitioner's jury was unanimous in the 'moral equivalence' of those two acts"); Ngo,
deciding that the State had proved slip op. at 9 n.22; Francis, 36 S.W.3d at 125 (jury
what, under state law, it had to charge permitted conviction for an offense based
prove: that petitioner murdered on separate acts at different times).
either with premeditation or in the
course of committing a robbery. The Court decides that this could have been
The question still remains whether accomplished by inserting the word "unanimously" into
it was constitutionally acceptable each application paragraph. See Ngo, slip op. at 17
to permit the jurors to reach one (application paragraphs would have been correct had
 Page 14
175 S.W.3d 738, *754; 2005 Tex. Crim. App. LEXIS 457, **39

each paragraph included the word "unanimously"). But, charge and given the trial court an opportunity to correct
the charge instructed the jury that it had to unanimously any error in the charge. See Almanza v. State, 686 S.W.2d
agree on a verdict. 6 This instruction with each 157, 171 (Tex.Cr.App. 1984) (op on reh'g) ("some harm"
application paragraph submitted in the disjunctive [*755] analysis applies to jury charge error that is subject
accomplished instructing the jury that it had to to timely objection, "egregious harm" analysis applies to
unanimously [**40] agree on at least one of the jury charge [**42] error that is not subject to timely
application paragraphs before it could convict appellant. objection); Posey v. State, 966 S.W.2d 57, 60
(Tex.Cr.App. 1998) (discussing reasons for requiring a
6 The jury charge stated: party to timely object).

After you retire to the jury room, Both harm standards set out in Almanza require that
you should select one of your "the actual degree of harm must be assayed in light of the
members as your Foreman. It is his entire jury charge, the state of the evidence, including the
or her duty to preside at your contested issues and weight of probative evidence, the
deliberations, vote with you, and argument of counsel and any other relevant information
when you have unanimously by the record of the trial as a whole." See id.; Posey, 966
agreed upon a verdict, to certify to S.W.2d at 60 n.3. Applying this analytical framework to
your verdict by using the this case, it is evident that the jury did not believe
appropriate form attached hereto appellant's testimony that someone named "Mike" gave
and signing the same as Foreman. him the credit cards or that, in direct conflict with the bar
manager's testimony, appellant did not attempt to use any
of these credit cards to buy beer. See Ngo, slip op. at 3-4.
In addition, the three application paragraphs arising Had the jury believed appellant, it would have acquitted
from one offense are what distinguishes this case from him. At the very least then, the record in this case shows
Francis which involved a single application paragraph that the jury had to have believed that appellant attempted
authorizing the defendant's conviction for indecency with to buy beer with a credit card that did not belong to him
a child if the jury found that the defendant touched the (which is covered by the third application paragraph). See
victim's "breast or genitals" which the evidence showed id.
"referred to two offenses that were committed in two
separate incidents." See Francis, 36 S.W.3d at 121 [**43] Based on this state of the record, I would
(Womack, J., concurring). The single application decide that appellant was not "egregiously harmed" by
paragraph presenting two separate offenses in Francis any error in the charge because the jury could have given
presented a risk [**41] that the defendant could have effect to appellant's defense and acquitted him under the
been convicted on either of these two separate offenses instructions given, and the evidence is sufficient to
submitted in that single application paragraph even support at least the third application paragraph. Cf.
though the jury was not unanimous. See id. This case Gonzalez v. State, 8 S.W.3d 640, 641 (Tex.Cr.App. 2000)
does not present that situation. (general substantive constitutional rule is that "a general
verdict [is] valid so long as it [is] legally supportable on
Here, appellant failed to alert the trial court to his one of the submitted grounds-even though that [gives] no
unanimous jury verdict claim. He also failed to object to assurance that a valid ground, rather than an invalid one,
any statements by the prosecution and the trial court [is] actually the basis for the jury's action"). This is how I
during voir dire on this subject. This should not entitle would apply the harm analysis in this case where
appellant to a harm analysis that seeks to determine appellant may have helped lead the trial court into error
whether "the jury was, in fact, unanimous in finding when he affirmatively stated that he had no objection to
appellant guilty of one specific credit card abuse case." the charge.
See Ngo, slip op. at 21 (deciding that appellant was
"egregiously harmed" because it cannot be determined In footnote 52 of its opinion, the Court cites a
whether jury unanimously agreed on one of the District of Columbia Court of Appeals case to support its
application paragraphs). This is the type of harm analysis decision that the lack of a special unanimity instruction
that should apply had appellant timely objected to the constituted egregious harm. See Ngo, slip op. at 22 n.52
 Page 15
175 S.W.3d 738, *755; 2005 Tex. Crim. App. LEXIS 457, **43

citing Horton v. United States, 541 A.2d 604 in Horton on this basis and not finding, as another
(D.C.Ct.App. 1988). Horton applied [**44] a "plain possible source of jury confusion, a problem with distinct
error" harm analysis to unpreserved error in the failure to and sharply different defenses).
submit a special unanimity instruction. See Horton, 541
A.2d at 611 (unpreserved jury charge error requires [*756] Shivers also notes that the District of
reversal only upon "a showing of plain error, that is, error Columbia practice is "somewhat more stringent" than the
so clearly prejudicial to substantial rights of the defendant "apparent prevailing [plain error] practice in the federal
as to jeopardize the very fairness and integrity of the courts." See Shivers, 533 A.2d at 261 n. 7, and at 263 n.
trial"). 13. According to Shivers, the apparent prevailing practice
in the federal courts "is to find no 'plain error' so long as
Horton, however, is distinguishable from this case in evidence as to each incident is sufficiently strong to
several important respects. Horton involved three defeat a motion for a directed verdict of not guilty as to
separate convictions (where it was possible that the jury that incident." See Shivers, 533 A.2d at 261 n. 7. Also,
may not have been unanimous on any one of these according to Shivers, the "federal courts consider a
convictions) while this case involves only one conviction. general unanimity instruction [such as the one in this
See Horton, 541 A.2d at 605-06. Horton also involved an case] sufficient to insure a unanimous verdict 'except in
element of juror confusion inherent in separate defenses cases where the complexity of the evidence or other
to separate alleged acts. See Horton, 541 A.2d at 606-08, factors create a genuine danger of jury confusion.'" See
611 (right to unanimous jury clearly prejudiced by Shivers, 533 A.2d at 263 n. 13. This relatively simple
confusion inherent in separate defenses to separate case did not create a genuine danger of jury confusion.
gunshots). This case essentially involves one defense
(appellant received from "Mike" a credit card which I respectfully dissent.
appellant never used) applicable to all three application
Hervey, J. [**46]
paragraphs. See Shivers v. United States, 533 A.2d 258,
263 (D.C.Ct.App. 1987) [**45] (distinguishing situation
 Page 1

JERRY GLENN PATTERSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 272-87

COURT OF CRIMINAL APPEALS OF TEXAS

769 S.W.2d 938; 1989 Tex. Crim. App. LEXIS 50

March 8, 1989

PRIOR HISTORY: [**1] Petition for Discretionary V.A.C.C.P. The Austin Court of Appeals affirmed the
Review from the Third Court of Appeals [BELL County]. judgment of conviction, but it set aside the assessment of
punishment and remanded for a reassessment [**2] of
punishment. 1 Patterson v. State, 723 S.W.2d 308
COUNSEL: Paul Francis, Temple, Texas, Attorney for (Tex.App. -- Austin 1987). We granted appellant's
appellant. petition for discretionary review to determine only
whether the court of appeals erred in defining "use,"
Arthur C. Eads, D. A. & James T. Russell, Asst. D. A., within the meaning of Art. 42.12, § 3g(a)(2), to mean
Belton, Texas, Robert Huttash, State's Attorney, Austin, "any employment of a deadly weapon, even its simple
Texas, Attorneys for State. possession, if such possession facilitates the associated
felony." Patterson, supra, at 315. 2
JUDGES: En Banc. Duncan, Judge. Duncan, III, Judge,
Clinton & Teague, JJ., dissent. 1 The court of appeals' decision on assessment
of punishment has no bearing on the issue
OPINION BY: DUNCAN, III currently before this Court.
2 Appellant suggests that we grant review
OPINION because the court of appeals appears to have
misconstrued a statute. See Tex.R.App.Pro.
[*939] OPINION ON APPELLANT'S PETITION 200(c)(4). While this ground is appropriate, we
FOR DISCRETIONARY REVIEW could have also granted review under Rule
200(c)(2). This Court has never construed the
Appellant was convicted, after a jury trial, of
meaning of "use" in Art. 42.12, § 3g(a)(2).
illegally possessing less than 28 grams of
methamphetamine. Art. 4476-15, §§ 4.02(b)(6), 4.04(b), Based on information received from a confidential
V.A.T.S. The verdict reflects that in response to a special informant, police obtained a search warrant for the home
issue the jury also found that "the defendant used or of David Law. When officers arrived to execute the
exhibited a deadly weapon during the commission of the warrant, [**3] they saw at least two people enter Law's
offense which we found the defendant guilty." A apartment. A few moments later, the officers went to the
punishment of 25 years, enhanced by two prior felony door, knocked, and announced themselves as police
convictions, was assessed by the trial court. An officers. After waiting approximately ten seconds, the
affirmative finding of use of a deadly weapon was officers kicked in the door. Another officer was at the
entered in the judgment. Art. 42.12, § 3g(a)(2), back door and entered by the same means. Upon gaining
 Page 2
769 S.W.2d 938, *939; 1989 Tex. Crim. App. LEXIS 50, **3

entry, the officer who entered the front door observed The court next summarized a series of cases which
seven people in the living room. Two others were construed [**5] the meaning of "use a weapon" in other
discovered elsewhere in the apartment. contexts. 3 These cases rejected a narrow construction
which would have defined "use" to mean "fire" in the
The appellant was sitting on a sofa in the living case of a gun. Desiring to make the statute flexible in its
room. He was seated at the extreme, left end, which was deterrence of danger to human life, the court adopted the
nearest to the front door. Next to appellant was an end approach of the cases cited, holding "use" to constitute "
table. On the table was a suede bag, a wallet, and a "gun any employment of a deadly weapon, even simple
boot." As one officer approached him, appellant raised possession, if such possession facilitates the associated
his hands and said "I have a gun right here, but I'm not felony." Patterson, supra, at 315.
going to touch it." As he said this, appellant indicated a
location between his left leg and the end of the sofa. The 3 The court cited Gaston v. State, 672 S.W.2d
officer retrieved the gun, and then the items on the end 819 (Tex.App. -- Dallas 1983, no pet.), and
table. A subsequent search revealed that the wallet incorrectly attributed it to this Court.
contained $ 905; the bag held 1.10 grams of
methamphetamine and miscellaneous drug paraphernalia; The appellant couches his argument in terms of the
and the "gun boot" contained several rounds of sufficiency of evidence to support an affirmative finding
ammunition which fit the gun that had [**4] been seized. that he used a deadly weapon. He argues that the gun was
Soon after this, appellant was arrested and taken to the difficult for the officer to find, and that there was no
police station. evidence of a threat involving the gun. At trial, the State
argued that the appellant had the gun in order to protect
Art. 42.12, § 3g(a)(2), supra, provides as follows: his drugs and to facilitate their possession. Appellant
counters by claiming [**6] that if the gun was to
[*940] (a) The provisions of Sections 3 facilitate possession of anything, it was to protect his $
and 3c of this Article do not apply: 905 cash. The State filed no brief or response before this
Court.
***
The court of appeals found that, although stated as a
(2) to a defendant when it is shown sufficiency question, appellant's argument is essentially
that the defendant used or exhibited a one of statutory construction. Id., at 314. We agree. There
deadly weapon as defined in Section are a multitude of rules for statutory construction, and
1.07(a)(11), Penal Code, during the authority exists in support of virtually every position one
commission of a felony offense or during might wish to take. The most common thread running
immediate flight therefrom. Upon through these competing maxims is for the judiciary to
affirmative finding that the defendant used attempt to effectuate the intent of the Legislature. Direct
or exhibited a deadly weapon during the reference to the evolution of Art. 42.12, § 3g, supra,
commission of an offense or during through both houses of the Legislature and conference
immediate flight therefrom, the trial court committee sheds no light on what the Legislature
shall enter the finding in the judgment of intended to be meant by "used or exhibited a deadly
the court. Upon an affirmative finding that weapon," and tapes of the legislative debates and
the deadly weapon the defendant used or committee hearings are equally as barren. We are left
exhibited was a firearm, the court shall with the words of the statute itself and a collection of
enter that finding in its judgment. often conflicting rules of construction.

One thing is clear however, in construing the statute
The court of appeals began its discussion of the it is necessary that the verb forms of the words "use" and
propriety of the affirmative finding by determining the "exhibit" be "read in context and construed according to
scope of felonies embraced by Art. 42.12, § 3g, and rules [**7] of grammar and usage." Sec. 311.011(a),
decided that all felonies are theoretically susceptible to an Tex.Gov't. Code. 4 At the outset it is essential to note that
affirmative finding of use or exhibition of a deadly "use" and "exhibit" are not synonymous. Each word is
weapon. We agree with this conclusion. exemplary of different types of conduct. "Use," as a verb,
 Page 3
769 S.W.2d 938, *940; 1989 Tex. Crim. App. LEXIS 50, **7

may mean a number of things. For example, "use" is possession, if such possession facilitates the associated
defined as "to put into action or service: have recourse to felony." Patterson v. State, supra, at 315. However, to
or enjoyment of: employ . . . to [*941] carry out a "exhibit" a deadly weapon it need only be consciously
purpose or action by means of: make instrumental to an displayed during the commission of the required felony
end or process: apply to advantage: turn to account: offense. Thus, one can "use" a deadly weapon without
utilize." Webster's Third New International Dictionary exhibiting it, but it is doubtful one can exhibit a deadly
(1976), p. 2523-2524. In explicating the word the weapon during the commission of a felony without using
dictionary provides the following synonym: "employ, it.
utilize, apply, avail: use is general and indicates putting
to service of a thing, usu. for an intended or fit purpose . . In United States v. La Guardia, 774 F.2d 317 (8th
. ." Id. Cir. 1985), the defendants were convicted of possession
of cocaine with the intent to distribute [18 U.S.C. § 2 and
4 The Code Construction Act applies to all 21 U.S.C. § 841(a)(1)] and using a firearm during the
amendments and revisions of a code or code commission of a felony. Briefly, during a search of the
provision made after the 59th Legislature. defendants' residence the police found a quantity of
Tex.Gov't. Code, § 311.002(2). Art. 42.12, § cocaine, $ 9,800, and a loaded .22 caliber pistol inside a
3g(a)(2), was added to the Code of Criminal purse, a nine millimeter [**10] automatic pistol in a hall
Procedure by the 65th Legislature. closet, and a .44 caliber rifle in one of the defendants'
automobile. On appeal one of the defendants claimed that
[**8] "Exhibit," on the other hand, as a verb, is there was insufficient evidence to prove his use of a
much more definitive in its meaning: "to present to view: firearm to commit a felony.
show, display: as a. to show (as a feeling) or display (as a
quality) outwardly esp. by visible signs or actions." Id., at Prior to its amendment in 1986, 18 U.S.C. §
796. 924(c)(1), increased the scope of permissible punishment
for "Whoever -- (1) uses a firearm to commit any felony .
Comparing the words, both are transitive verbs . ., or (2) carries a firearm unlawfully during the
because they require an object to complete their meaning. commission of any felony." 5 The federal statute
In the language of the statute their object is a "deadly identifies the prohibited conduct as "uses" and "carries."
weapon." In contrasting the word's definitions, "use" is The circuit court of appeals in interpreting this statute
commonly employed to describe conduct in which the commented that "Section 924(c)(1) reaches the
verb's object, again, in this case a deadly weapon, is possession of a firearm which in any manner facilitates
utilized in order to achieve a purpose. In other words, the the execution of the felony." United States v. La Guardia,
deadly weapon must be utilized, employed, or applied in supra, at 321. See also: United States v. Grant, 545 F.2d
order to achieve its intended result: "the commission of a 1309 (2nd Cir. 1976), cert denied, 429 U.S. 1103, 51 L.
felony offense or during immediate flight therefrom." Ed. 2d 554, 97 S. Ct. 1130 (1977); United States v.
Art. 42.12, § 3g(a)(2), supra. Conversely, "exhibit" only Moore, 580 F.2d 360 (9th Cir. 1977), cert denied, 439
requires that a deadly weapon be consciously shown, U.S. 970, 99 S. Ct. 463, 58 L. Ed. 2d 430 (1978). [*942]
displayed, or presented to be viewed during "the Under the facts, the court of appeals concluded that the
commission of a felony offense or during immediate "weapons had undoubted utility in the protection of the
flight therefrom" Id. valuable supply [**11] and cash on hand." Id., at 321.

Thus, "used . . . a deadly weapon" during the 5 18 U.S.C. § 924(c)(1), et seq. now is applicable
commission of the offense means that the deadly weapon only to a "crime of violence or drug trafficking
was employed or utilized in order to achieve its purpose. crime."
Whereas [**9] "exhibited a deadly weapon" means that
the weapon was consciously shown or displayed during The facts in United States v. La Guardia, supra, and
the commission of the offense. Therefore, the court of those in the present case are quite similar. The appellant
appeals was correct when it stated that "'used . . . during claims that the weapon, if used at all, was used to protect
the commission of a felony offense' refers certainly to the his $905. That could obviously be true, but as in La
wielding of a firearm with effect, but it extends as well to Guardia, supra, it does not mean that the weapon had no
any employment of a deadly weapon, even its simple utility to his protection of the drugs.
 Page 4
769 S.W.2d 938, *942; 1989 Tex. Crim. App. LEXIS 50, **11

The court of appeals determined "that a rational trier of The judgment of the court of appeals is affirmed;
fact could find that appellant 'used' the firearm during the however, the cause is remanded to the trial court for
commission of the felony offense of possessing the reassessment [**12] of punishment as ordered by the
contraband, in a sense that the firearm protected and court of appeals.
facilitated appellant's care, custody, and management of
the contraband." We will defer to the collective judgment (Delivered March 8, 1989)
of the court of appeals in this regard and accordingly
DUNCAN, III, Judge, Clinton & Teague, JJ., dissent.
reject appellant's point of error.
 Page 1

THE STATE OF TEXAS v. GEORGE MOFF, Appellee

NO. 458-03

COURT OF CRIMINAL APPEALS OF TEXAS

154 S.W.3d 599; 2004 Tex. Crim. App. LEXIS 1648

October 6, 2004, Delivered

NOTICE: [**1] PUBLISH OPINION BY: Meyers

SUBSEQUENT HISTORY: Rehearing denied by State OPINION
v. Moff, 2005 Tex. Crim. App. LEXIS 52 (Tex. Crim.
App., Jan. 12, 2005) [*600] The Appellee, Moff, was charged with
Rehearing denied by Moff v. State, 153 S.W.3d 452, 2005 intentional, knowing and reckless misapplication of
Tex. Crim. App. LEXIS 108 (Tex. Crim. App., Jan. 26, fiduciary property. TEX. PEN. CODE § 32.45(b). The
2005) indictment submitted by the district attorney failed to
specify the transaction or transactions involved. Moff
PRIOR HISTORY: ON APPELLEE'S PETITION filed a motion to quash the indictment, which was granted
FOR DISCRETIONARY REVIEW FROM THE by the trial court. The trial court's order directed the State
THIRTEENTH COURT OF APPEALS. NUECES to re-file the indictment, specifying which purchases were
COUNTY. alleged to be unauthorized. The State appealed, and the
State v. Moff, 133 S.W.3d 648, 2003 Tex. App. LEXIS 942 Court of Appeals reversed the trial court's order quashing
(Tex. App. Corpus Christi, 2003) the indictment. State v. Moff, 133 S.W.3d 648 (Tex. Crim.
App. 2003). Appellee filed a petition for discretionary
DISPOSITION: Judgment of the Court of Appeals review, asserting that the trial court had the discretion to
was reversed, and the cause was remanded to the trial quash the indictment and to require more specificity. We
court to resume the proceedings. granted review to determine "whether a trial court abuses
its discretion when it requires [**2] more specificity in
an indictment alleging recklessness and spanning seven
COUNSEL: For APPELLANT: Michael H. Hummell, years which fails to identify which of the countless
Corpus Christi, TX. transactions during that time span the State may rely on
for conviction." We hold that this issue warrants a de
For STATE: Douglas K. Norman, ASSIST. DA., Corpus novo, rather than an abuse of discretion standard of
Christi, TX, Matthew Paul, STATE'S ATTORNEY, review. After a de novo review, we conclude that the
Austin, TX. Court of Appeals erred by reversing the trial court's order
because the accused was deprived of the notice required
JUDGES: Meyers, J., delivered the opinion of the Court, to prepare an adequate defense.
in which Keller, P.J., and Womack, Johnson, Keasler,
Hervey, Holcomb, and Cochran, JJ., join. Price, J., FACTS
concurs.
 Page 2
154 S.W.3d 599, *600; 2004 Tex. Crim. App. LEXIS 1648, **2

Moff was the chief appraiser of Nueces County for discretion in granting the motion to quash.
twenty years. In his capacity as chief appraiser, he was
responsible for making various purchases for the County. STANDARD OF REVIEW
A grand jury indicted Moff for alleged misapplication of
Prior to our decision in Guzman v. State, 955 S.W.2d
fiduciary property. The indictment read:
85 (Tex. Crim. App. 1997), abuse of discretion was the
standard employed by our Court when reviewing a trial
On or about and between January 1,
court's decision to quash an indictment. But we did not
1993 and December 31, 1999, George
have occasion to analyze its appropriateness. However,
Moff did then and there intentionally,
we now determine that a de novo review is more
knowingly, and recklessly misapply
appropriate in a case such as the one before us. The
property, to wit: money and credit cards,
amount of deference appellate courts afford a trial court's
of the value of $ 20,000.00 or more but
rulings depends upon which "judicial actor" is better
less than $ 100,000.00, that the said
positioned to decide the issue. Guzman, 955 S.W.2d at
defendant held as a fiduciary in a manner
89. The sufficiency of an indictment is a question [**5]
that involved substantial risk of loss to the
of law. When the resolution of a question of law does not
Nueces County Appraisal District, the
turn on an evaluation of the credibility and demeanor of a
owner of said property, [**3] and the
witness, then the trial court is not in a better position to
person for whose benefit the property was
make the determination, so appellate courts should
held, by using said money and credit cards
conduct a de novo review of the issue. While this case is
to make purchases without the effective
different from Guzman in that it involves the Appellee's
authorization of the Nueces County
due process right to notice of the charges against him, our
Appraisal District Board of Directors.
reasoning for modifying the standard of review is the
same. The trial court's decision in this case was based
Appellee filed a motion to quash the indictment for
only on the indictment, the motion to quash, and the
failing to specify which purchases were made without the
argument of counsel, so the trial court was in no better
authorization of the Appraisal District Board of Directors.
position than an appellate court to decide this issue.
Moff was also under indictment on two other charges that
Because the Court of Appeals used an abuse of discretion
might have involved the same item or items, and he
standard of review, we will conduct a de novo review of
argued that until he knew which purchases were alleged
the trial court's ruling rather than review the decision of
to be unauthorized, he could not raise the defense that the
the Court of Appeals.
charges in the current indictment were jeopardy barred.
The trial court held an initial hearing on the motion, NOTICE
during which the State argued that the identification of
which purchases were unauthorized was an evidentiary The right to notice is set forth in both the United
issue that Appellee could learn through discovery. The States and Texas Constitutions. See U.S. CONST. amend.
court deferred ruling on the motion. At a subsequent VI; TEX. CONST. art. I, § 10. Thus, the charging
hearing to determine which purchases were alleged to be instrument must be specific enough to inform the accused
unauthorized, the State acknowledged that its report on of the nature of the accusation against him so that he may
charges for the time period [*601] identified in the prepare a defense. [**6] State v. Mays, 967 S.W.2d 404,
indictment was 60 pages long, but stated that it was not 406 (Tex. Crim. App. 1998); Daniels v. State, 754 S.W.2d
required to disclose which purchases were unauthorized. 214, 217 (Tex. Crim. App. 1988); Adams v. State, 707
[**4] The State argued that it had not yet determined S.W.2d 900, 901 (Tex. Crim. App. 1986). In addition, the
which charges it planned to use to support its case against Texas Code of Criminal Procedure provides guidelines
Appellee. The trial court then granted the motion to quash relating to the sufficiency of an indictment. See, e.g.,
and ordered the State to re-file its indictment to assert Article 21.03 ("Everything should be stated in an
with specificity which purchases were allegedly indictment which is necessary to be proved."); Article
unauthorized. On appeal, the State asserted that the 21.04 ("The certainty required in an indictment is such as
indictment included all elements of the offense, and left will enable the accused to plead the judgment that may be
out only evidentiary matters not required to be pled. The given upon it in bar of any prosecution for the same
Court of Appeals held that the trial court abused its offense."); Article 21.11 ("An indictment shall be deemed
 Page 3
154 S.W.3d 599, *601; 2004 Tex. Crim. App. LEXIS 1648, **6

sufficient which charges the commission of the offense in nature of the charges against the accused
ordinary and concise language in such a manner as to in our system of justice, a timely claim of
enable a person of common understanding to know what inadequate notice requires careful
is meant, and with that degree of certainty that will give consideration. . . . When the defendant
the defendant notice of the particular offense with which petitions for sufficient notice of the state's
he is charged, and enable the court, on conviction, to charge by motion to quash adequately
pronounce the proper judgment. . . ."). setting out the manner in which notice is
deficient, the presumption of innocence
Here, the indictment followed the statute for coupled with his right to notice requires
misapplication of fiduciary property, which provides: that he be given such notice.

A person commits an [**7] offense if he Drumm v. State, 560 S.W.2d 944 at 946-47. Thus, the
intentionally, knowingly, or recklessly accused has the right to notice that is specific enough to
misapplies [*602] property he holds as a allow him to investigate the allegations against [**9]
fiduciary or property of a financial him and establish a defense.
institution in a manner that involves
substantial risk of loss to the owner of the We have considered issues similar to the one before
property or to a person for whose benefit us in Swabado v. State, 597 S.W.2d 361 (Tex. Crim. App.
the property is held. 1980), and Amaya v. State, 551 S.W.2d 385 (Tex. Crim.
App. 1977). In Swabado, the defendant was charged with
TEX.PEN.CODE. § 32.45(b). We have stated that tampering with a government record. He filed a motion to
ordinarily, an indictment is legally sufficient if it quash the indictment, contending that it was vague and
delineates the penal statute in question. Daniels, 754 ambiguous due to the fact that, as a nursing home
S.W.2d at 218; Thomas v. State, 621 S.W.2d 158, 161 administrator for several years prior to the indictment, he
(Tex. Crim. App. 1981) (opinion on rehearing); Haecker routinely prepared and filed government records
v. State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978). including monthly staffing reports. Swabado, 597 S.W.2d
However, these cases are different from the case before at 362-63. The trial court denied the motion. We held that
us because the issue in them relates to whether the terms the trial court erred in denying the motion because the
used in the indictment are sufficiently specific to provide indictment failed to identify the monthly staffing report
notice to the defendant. Thus, this rule applies when the on which the State would rely. Id. at 364. Thus, the
indictment is framed under a statute in which the act statutory language was insufficient to provide the
constituting the offense is defined so that the accused is defendant with notice of the offense.
informed of the nature of the charge. Haecker, 571
S.W.2d at 921. Additionally, this rule does not mean that The defendant in Amaya was required to make many
a trial court cannot require the State to amend an statements to the Department of Public Welfare. The
indictment which tracks the [**8] language of the statute information alleging welfare fraud failed to allege which
when more notice is needed so that the accused can of the defendant's statements was false. We stated that,
adequately prepare a defense. "if a proper exception [**10] or motion to quash is filed
and brought to the attention of the court before trial, the
Because fundamental constitutional protections are State must then respond by amending the indictment or
involved, if a defendant files a timely motion stating that information to include a specific allegation of what the
the indictment does not provide adequate notice, there are State will rely upon to convict." Amaya, 551 S.W.2d at
some circumstances in which the trial court may require 387, citing American Plant Food Corp. v. State, 508
more information. In Drumm, the appellant filed a motion S.W.2d 598, 603 (Tex. Crim. App. 1974). We held that the
to quash, stating that the information failed to give [*603] defendant was entitled, upon proper exception, to
sufficient notice. The trial court overruled the motion. We know which false statement the State would rely upon for
reversed the judgment and stated that: conviction. Amaya, 551 S.W.2d at 387. Thus, as a general
rule, an indictment must give the defendant notice of
Because of the fundamental notions of precisely what he is charged with so that he may prepare
fairness that require adequate notice of the an adequate defense. However, in a case such as the one
 Page 4
154 S.W.3d 599, *603; 2004 Tex. Crim. App. LEXIS 1648, **10

before us, in which each unauthorized transaction was a outside the indictment to a report generated by the Texas
separate criminal act but together constitutes the single Rangers to identify the unauthorized purchases. The trial
offense of misapplication of fiduciary duty, details judge specifically rejected this idea and found that the
regarding the specific acts on which the State intends to documents that had been provided to Moff did not
rely are not required to be listed in the indictment, as long provide sufficiently specific notice to allow him to
as they are provided by some other means. prepare [**13] his defense. 1

ANALYSIS 1 [STATE] I think that the best working
blueprint we have at this point we've already
The indictment in the case before us alleges that the produced to them, which is the ranger's 60-plus
illegal purchases occurred "on or about and between page report. So that, in terms of theory of a case at
[**11] January 1, 1993 and December 31, 1999." Similar this point, that's probably the best one we have.
to the defendant in Swabado, in his capacity as Chief
Appraiser of the Nueces County Appraisal District, Moff [COURT] Have you folks been talking to the
used money and credit cards to make numerous purchases - - to the federal government? That's how - - that's
of equipment and supplies during the time period alleged what they do. They produce hundred-page
in the indictment. Although the indictment correctly documents and go "Somewhere in there lies the
tracks the language of the statute, in this type of case, that offense."
alone is not sufficient to fulfill the constitutional and
statutory requirements of specificity. It is unreasonable to ***
require the defendant to gather evidence and prepare a
But it seems to me that there seems to be a
defense for each of the credit card and cash transactions
notice problem. You've got the dollar amount but
he made during the seven-year time frame in the
there's got to be some documentation that says:
indictment. Thus, additional information that is
Well, Mr. Moff, on this date did A and this is
reasonably necessary for the defense to prepare its case
what we say he did, he misappropriated or used a
must be provided. This is not to say that the State must
credit card.
lay out its case in the indictment, only that the defendant
must be informed of the specific transactions that ***
allegedly violate the statute. We recently stated in Kellar
v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003), It seems to me that if I'm going to sit here and
that "this due process requirement may be satisfied by we have a jury in the box, that a person that's
means other than the language in the charging accused of a crime needs to know what he or she
instrument." In Kellar [**12] , prior to trial, the State is accused of. For the State to say, "Well, between
filed an itemized list containing the dates, check numbers, '93 and '99," and produce whatever documents,
and amounts of each transaction, which provided the and just throw it against the wall is not serving
defendant with sufficient notice to prepare his defense. anyone, including Mr. Moff or any accused that
This is not meant to imply that the notice requirement is comes into court.
always satisfied by discovery. For example, the State may
not conduct "trial by ambush," in which the information ***
necessary to provide notice is buried somewhere in a
mass of documents turned over to the defendant. The trial [DEFENSE] All I'm asking them to do is
court must determine whether the notice given to the identify out of the thousands of pages of
defendant is sufficient and should quash the indictment if documents they've produced which ones reflect
the notice is not specific enough. Therefore, the trial something that they can - - that they contend was
court did not err in quashing the indictment because the illegal.
State failed to give Moff sufficiently specific notice of
[**14] [*604] Because the indictment was
the particular act or acts with which he is charged.
quashed and the State appealed the decision of the trial
We note that in the pre-trial hearing and at oral court rather than re-file the indictment, there has been no
argument, the State suggested that Moff should look trial. Since there was no trial from which to show harm,
the situation before us is not subject to a harm analysis.
 Page 5
154 S.W.3d 599, *604; 2004 Tex. Crim. App. LEXIS 1648, **14

Conclusion Appeals is reversed, and the cause is remanded to the trial
court to resume the proceedings.
We hold that, because the State failed to provide
sufficient notice to inform the accused of the specific acts Meyers, J.
for which he was charged, the trial court did not err in
quashing the indictment. The judgment of the Court of
 Page 1

TRACY PAUL TAYLOR, Appellant v. THE STATE OF TEXAS

NO. PD-0266-09, PD-0267-09, PD-0268-09

COURT OF CRIMINAL APPEALS OF TEXAS

332 S.W.3d 483; 2011 Tex. Crim. App. LEXIS 326

March 9, 2011, Delivered

NOTICE: PUBLISH seventeen. On appeal, Appellant argued in part that the
jury charges were erroneous because they did not limit
SUBSEQUENT HISTORY: On remand at, Decision the jury's consideration to evidence of acts committed
reached on appeal by Taylor v. State, 2012 Tex. App. after his seventeenth birthday. The court of appeals held
LEXIS 581 (Tex. App. Houston 1st Dist., Jan. 26, 2012) that the error in the jury charges deprived Appellant of a
fair and impartial trial. We granted review to consider the
PRIOR HISTORY: [**1] effects of the instructions received and not received by
ON STATE'S PETITION FOR DISCRETIONARY the jury in this case. We will reverse.
REVIEW FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY. I. PENAL CODE SECTION 8.07(b)
Taylor v. State, 2009 Tex. App. LEXIS 430 (Tex. App.
Houston 1st Dist., Jan. 22, 2009) Texas Penal Code Section 8.07(b) states:
Taylor v. State, 2009 Tex. App. LEXIS 418 (Tex. App.
Houston 1st Dist., Jan. 22, 2009) Unless the juvenile court waives
Taylor v. State, 288 S.W.3d 24, 2009 Tex. App. LEXIS jurisdiction under Section 54.02, Family
7075 (Tex. App. Houston 1st Dist., 2009) Code, and certifies the individual for
criminal prosecution or the juvenile court
has previously [**2] waived jurisdiction
JUDGES: MEYERS, J., delivered the opinion of the under that section and certified the
Court, in which KELLER, P.J., and WOMACK, individual for criminal prosecution, a
KEASLER, HERVEY, and COCHRAN, JJ., joined. person may not be prosecuted for or
PRICE, J., concurred. JOHNSON, J., dissented. convicted of any offense committed before
reaching 17 years of age except an offense
OPINION BY: Meyers described by Subsections (a)(1)-(5). 1

OPINION TEX. PENAL CODE ANN. § 8.07(b) (emphasis added).

[*485] Appellant, Tracy Paul Taylor, was convicted 1 Subsections (a)(1)-(5) are not applicable in this
of three offenses of aggravated sexual assault and case.
sentenced to seventy years' confinement with a fine of
$10,000 for each offense. Much of the testimony at trial II. PROCEDURAL HISTORY
related to acts committed before Appellant turned
 Page 2
332 S.W.3d 483, *485; 2011 Tex. Crim. App. LEXIS 326, **2

The jury found Appellant guilty of three offenses of Appellant's seventeenth birthday. After reviewing the
aggravated sexual assault, as charged in three separate court's proposed charge, defense counsel stated that she
indictments. The earliest date cited among the had no objections.
indictments was "on or about September 01, 2002." On
that date, Appellant was seventeen years old. 2 Therefore, At the court of appeals, Appellant argued that,
the indictments did not violate Section 8.07(b), nor did without an 8.07(b) instruction, the charges were
the verdict forms, which referred back to the indictments. erroneous because the evidence presented at trial
3 The issue before this Court relates to the jury charges. included acts committed before he turned seventeen. The
court of appeals agreed, concluding that without an
2 Appellant turned seventeen earlier that year on 8.07(b) instruction, "the charge authorized the jury to
March 25, 2002. convict [A]ppellant based on acts he committed before
3 For two of the three offenses, the indictments his seventeenth birthday." Taylor v. State, 288 S.W.3d 24,
evolved from the time they were originally filed 30 (Tex. App.--Houston [1st Dist.] 2009, pet. granted).
to the time they were presented at the start of the
trial. The altered allegations pertained to the dates The State now argues to this Court that, in the
of the offenses and the specific methods of absence of any request for an 8.07(b) instruction from
assault. However, the inconsistences do not affect defense counsel, the judge was not required to sua sponte
our analysis because [**3] the final revised dates instruct the jury on this point. The State also argues that
that were presented to the jury all fall after the court of appeals should have found any error to be
Appellant's seventeenth birthday (as were all of harmless. 5
the dates in the original indictments); and the
5 We granted [**5] the following two issues:
earliest date, after the revisions, remained
September 1, 2002. (1) Is the age-based defense located in
Section 8.07(b) of the Texas Penal Code a
At trial, testimony referred to various years as the
"defensive issue" (as opposed to "law applicable
start of Appellant's abusive conduct, all pre-dating
to the case") for purposes of determining whether
Appellant's seventeenth birthday. A child-abuse
the trial judge must sua sponte submit a jury
pediatrician testified regarding her examination of the
instruction on this defense?
victim, which took place at the Children's Assessment
Center in 2006. Her report, admitted into evidence, stated (2) Was Appellant harmed by any error
that [*486] Appellant touched the victim inappropriately resulting from the absence of an instruction on the
for the first time when the victim was seven. Appellant age-based defense located in Section 8.07(b) of
would have been twelve at that time. The victim's father the Texas Penal Code when the victim testified
dated the start of his daughter's contact with Appellant as that the worst abuse occurred after Appellant
the fall of 1998, when the victim would have been eight turned 17 years old?
and Appellant would have been thirteen. The victim's
own testimony described the "worst" years of abuse as III. ARTICLE 36.14 AND THE LAW APPLICABLE
her sixth through eighth grade years. She agreed with the TO THIS CASE
State's assertion that in sixth grade she was ten and
eleven. Appellant would have then been fifteen and The State's first issue asks if the trial judge was
sixteen. 4 required to sua sponte submit an 8.07(b) instruction in
this case. Code of Criminal Procedure Article 36.14
4 The record includes different dates of birth for details the requirements and procedures for the delivery
the victim. The Children's Assessment [**4] of the court's charge to the jury. TEX. CODE CRIM. PROC.
Center report lists June 12, 1990 as the victim's ANN. art. 36.14. It states, "the judge shall . . . deliver to
date of birth, while the victim testified that her the jury . . . a written charge distinctly setting forth the
birthday was October 1. Therefore, to a small law applicable to the case." Id. Article 36.14 also
extent, these calculations are approximate. provides that, before the charge is read to the jury, "the
defendant or his counsel shall have a reasonable time to
The jury charges did not contain an 8.07(b) examine the same and he shall present his objections."
instruction to limit the jury's consideration to events after
 Page 3
332 S.W.3d 483, *486; 2011 Tex. Crim. App. LEXIS 326, **6

[**6] Id. However, the judge's duty to instruct the jury on argues that an 8.07(b) instruction is a defensive issue in
the law applicable to the case exists even when defense this case because defense counsel's theory at trial was that
counsel fails to object to inclusions or exclusions in the Appellant never sexually assaulted the victim, not that he
charge; this may require the judge to sua sponte provide only did so only before turning seventeen. 7 In other
the jury with the law applicable to the case, under Article words, the State suggests that activating 8.07(b) and
36.14. So, even in the absence of action on the part of directing attention away from Appellant's pre-seventeen
Appellant's defense counsel, if an 8.07(b) instruction conduct would have contravened the defense's theory that
were the law applicable to this case, the trial judge was Appellant was innocent at every age.
required, under Article 36.14, to include it in the jury
charges. We must assess whether the jury charges set 7 To support this reading of the defendant's
forth the law applicable to the case, [*487] and theory of the case, the State cites to defense
specifically, whether an 8.07(b) instruction belonged in counsel's closing argument, where counsel stated,
the jury charges. "the State simply has not met its burden of proof
to you that Tracy Taylor committed these
We have previously held that Article 36.14 imposes offenses."
no duty on trial courts to sua sponte instruct the jury on
unrequested defensive issues. Posey v. State, 966 S.W.2d A feature of a defensive issue is that it is a strategic
57, 62 (Tex. Crim. App. 1998). An unrequested defensive decision "generally left to the lawyer and the client."
issue is not the law applicable to the case. Id. So, we must Posey, 966 S.W.2d at 63. However, the applicability of
classify an 8.07(b) instruction as the law applicable to the Section 8.07(b) is not contingent upon any party's theory
case or as an unrequested defensive issue. of the case. It is not within the defendant's (or counsel's)
discretion to decide whether or not he may be prosecuted
In Posey, the instruction we labeled an "unrequested for or convicted of offenses committed before turning
defensive issue" was a mistake-of-fact instruction. Id. at seventeen. Even if the defense wanted to avoid a legally
59. The appellant argued [**7] that the trial court erred innocent [**9] argument, that does not change the fact
by not instructing the jury sua sponte on that point. Id. that the jury in this case received evidence upon which
The defense of mistake of fact is codified in Section they were statutorily prohibited from convicting
8.02(a) of the Texas Penal Code. 6 TEX. PENAL CODE Appellant.
ANN. § 8.02(a). The close proximity of Sections 8.02(a)
and 8.07(b) in the Penal Code, both in the General Due to the repeated testimony regarding Appellant's
Defenses chapter, invites a comparison of the statutes. pre-seventeen conduct, the absence of an 8.07(b)
Section 8.02(a) establishes mistake of fact as "a defense instruction in the jury charges is problematic. Further
to prosecution," which correlates to its classification as a complicating matters is an instruction that was included:
"defensive issue." Id. In contrast, Section 8.07(b) does not
refer to a "defense" at all. TEX. PENAL CODE ANN. § You are further instructed that the State
8.07(b). Rather, it is a prohibition of prosecutions and is not bound by the specific date which the
convictions based upon offenses committed before the offense, if any, is alleged in [*488] the
age of seventeen. Id. indictment to have been committed, 8 but
that a conviction may be had upon proof
6 Note that in Posey we explained that an 8.02(a) beyond a reasonable doubt that the
instruction will not be a "defensive issue" in every offense, if any, was committed at any time
case. Posey, 966 S.W.2d at 62. When a defendant within the period of limitations. The
timely objects to the omission of the instruction in limitation period applicable to the offense
the jury charge at trial, it will be the "law of aggravated sexual assault of a child is
applicable to the case." Id. ten years from the date of the 18th
birthday of the victim of the offense.
In addition to studying the language of 8.07(b) and
its general applicability, we must also consider the With this paragraph, the jury was instructed that it could
particulars of the record before us in order to decide ignore the dates cited in the indictments and could
whether an 8.07(b) instruction is the law applicable [**8] convict Appellant for any offense committed prior to the
to this case or an unrequested defensive issue. The State
 Page 4
332 S.W.3d 483, *488; 2011 Tex. Crim. App. LEXIS 326, **9

victim's twenty-eighth birthday, which will fall in 2018. Appellant's charges established a certain future
chronological limitation--the victim's
8 The dates alleged were the first, fifteenth, and twenty-eighth birthday--the past chronological
thirtieth of September 2002 (all after Appellant's limitation was more vague; it simply provided
seventeenth birthday). that the State was not bound by the specific dates
alleged in the indictments. Alberty's instruction
We noted [**10] a similar problem in Alberty v. more blatantly contravened Section 8.07(b)'s
State, 250 S.W.3d 115, 116 (Tex. Crim. App. 2008), in prohibition of convictions based upon juvenile
which indictments alleged that the defendant, as an adult, conduct.
sexually assaulted a child. However, testimony described 10 The court of appeals [**12] in Alberty then
incidents of assault dating from the time the defendant proceeded, under Almanza v. State (discussed
was thirteen. Id. The jury charges in that case featured the infra), to determine that the defendant was
following instruction, to which the defendant made no egregiously harmed. Alberty, 2008 Tex. App.
objection: LEXIS 5252.

You are instructed that the State is not We, too, conclude that a jury charge is erroneous if it
required to prove the exact date alleged in presents the jury with a much broader chronological
the indictment. The term "on or about the perimeter than is permitted by law. The trial judge is
[respective date]" means any date prior to "ultimately responsible for the accuracy of the jury
the date of the filing of the indictment, charge and accompanying instructions." Delgado v. State,
August 27, 2003, and within the Statute of 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). This is an
Limitations. The Statute of Limitations for "absolute sua sponte duty," and, [*489] in this case, the
this type of alleged offense is 10 years past trial judge had a sua sponte duty to provide an 8.07(b)
the child's 18th birthday. 9 instruction. Id. Although the jury instruction here did not
specifically refer to "any offense anterior to the
Id. at 117. On appeal, the defendant asserted that the jury presentment of the indictment" as did the charge in
charges were erroneous because "they instructed the jury Alberty, it did not limit the jury's consideration of such.
that they could convict appellant of any offense anterior The absence of an 8.07(b) instruction, combined with the
to presentment of the indictment and within the statutes evidence of Appellant's conduct as a juvenile and the
of limitations, when in fact he could only be convicted of instruction that the jurors did receive--that "a conviction
offenses occurring on or after his seventeenth birthday, may be had" for any offense committed before the
July 7, 2001." Id. This issue, highlighting the tension victim's twenty-eighth birthday--ultimately resulted in
between 8.07(b) and the statute-of-limitations [**11] inaccurate charges that omitted an important portion of
instruction, was misconstrued by the court of appeals in the law applicable to the case. Therefore, we find a
Alberty as a jurisdictional complaint. Id. We reversed and [**13] violation of Article 36.14 and must proceed to a
remanded the case for resolution of the jury-charge issue. second step of analysis.
Id. at 118. On remand, the court of appeals concluded
that the jury charges were erroneous because the IV. ARTICLE 36.19 AND ALMANZA
instruction received by the jurors contravened Section
8.07(b). Alberty v. State, No. 05-05-01687-CR, No. After finding error in the court's charges, we must
05-05-01688-CR, 2008 Tex. App. LEXIS 5252, *8-9 (Tex. next consider whether Appellant was harmed by the
App.--Dallas July 16, 2008, no pet.) (not designated for error. Alberty, 250 S.W.3d at 119. Article 36.19
publication). 10 establishes the standard for reversal on appeal when the
requirements of Article 36.14 11 have been disregarded:
9 Arguably, the statute-of-limitations instruction "the judgment shall not be reversed unless the error
in Alberty was more injurious than the instruction appearing from the record was calculated to injure the
featured in Appellant's jury charges because rights of defendant, or unless it appears from the record
Alberty's explicitly stated that the offense could that the defendant has not had a fair and impartial trial."
have occurred on "any date prior" to the filing of TEX. CODE CRIM. PROC. ANN. art. 36.19.
the indictment. While the instruction in
11 Article 36.19 addresses appellate review for a
 Page 5
332 S.W.3d 483, *489; 2011 Tex. Crim. App. LEXIS 326, **13

group of statutes, not just Article 36.14. The other probative evidence, the argument of counsel and any
articles to which this provision applies are 36.15, other relevant information revealed by the record of the
36.16, 36.17, and 36.18. TEX. CODE CRIM. PROC. trial as a whole." Almanza, 686 S.W.2d at 171. We will
ANN. art. 36.19. examine "any . . . [*490] part of the record as a whole
which may illuminate the actual, not just theoretical,
In Almanza v. State, 686 S.W.2d 157 (Tex. Crim. harm to the accused." Id. at 174. Errors which result in
App. 1985) (op. on reh'g), we construed Article 36.19 as egregious harm are those that affect the very basis of the
presenting two distinct standards for jury-charge error, case, deprive the defendant of a valuable right, vitally
the application of each determined by whether the affect the defensive theory, or make a case for conviction
defendant objected at trial. 12 clearly and significantly more persuasive. Id. at 172; see
Hutch, 922 S.W.2d at 171.
12 Note that Almanza does not apply unless the
appellate court first finds a violation of Article A. J.G.'s Testimony
36.14 (or any [**14] of the other articles
referenced in Article 36.19). Posey, 966 S.W.2d at J.G. testified that she began staying with Appellant's
60. "Neither 'harm' standard set out in Article family at the age of eight (when Appellant was 13 years
36.19 as construed by Almanza applies unless an old). J.G's father paid Appellant's twin sister, Sheena, to
appellate court first finds 'error' in the jury babysit his daughter until he was able to pick her up after
charge." Id. school, normally around 6:00 p.m. J.G. explained that
Appellant initially treated her like an "annoying little
sister," but this soon progressed such that he would be
"mean" and make J.G. [**16] feel "uncomfortable."
If the error in the charge was the subject Referring to the acts of molestation, J.G. testified that
of a timely objection in the trial court, then "[i]n the beginning -- like when I first came to move
reversal is required if the error is down here, it didn't happen as much. Then as the years
"calculated to injure the rights of progressed, it progressed, what he did."
defendant," which means no more than
that there must be some harm to the The first instance that J.G. could remember when she
accused from the error. felt "uncomfortable" happened in Appellant's mother's
... bedroom. J.G. could not recall her age at the time but did
On the other hand, if no proper objection remember that, other than J.G. and Appellant, only
was made at trial and the accused must Appellant's sick grandmother was home. Appellant asked
claim that the error was "fundamental," he J.G. if she wanted to play "Doctor." Appellant proceeded
will obtain a reversal only if the error is so to roll a new roller paint brush up and down her leg. Then
egregious and created such harm that he he took off her "bottoms" and put the handle of the brush
"has not had a fair and impartial trial"--in inside of her vagina. Appellant stopped when his
short "egregious harm." grandmother threw a shoe at the bedroom door. J.G. also
recalled an occurrence months later when Appellant
Id. at 171. Because Appellant did not object to the instructed her to put a CoCoa Puff in her vagina and
jury-charge error at trial, resolution of the instant case leave it there. J.G. pulled out the cereal when Appellant
requires an egregious harm analysis, and we do not left the room.
believe that egregious harm resulted from the charge
error in this case. In addition, J.G. described an incident that took place
when she was in the fifth grade. She stated that she knew
As we have stated, "[e]gregious harm is a difficult it occurred shortly after she began going to Appellant's
standard to prove and such a determination must be done house because she remembered the navy pants that she
on a case-by-case basis." Hutch v. State, 922 S.W.2d 166, was wearing then. J.G. [**17] testified that, when no one
172 (Tex. Crim. App. 1996). In [**15] determining else was home, Appellant told her to go into the
whether Appellant was deprived of a fair and impartial bathroom. There, he instructed her to stand on the toilet
trial, we review "the entire jury charge, the state of the and pull down her pants, and he licked her vagina.
evidence, including the contested issues and weight of Eventually, Appellant took J.G. into his bedroom, told
 Page 6
332 S.W.3d 483, *490; 2011 Tex. Crim. App. LEXIS 326, **17

her to take off all of her clothes, and "put his penis in when the family returned from North Carolina, at which
[her] vagina." time she took J.G. to the police station to file a report.

Appellant began asking J.G. for oral sex "a lot," and The deputy from the Child Abuse Investigation Unit
they had vaginal and anal sex "a lot." In fact, J.G. who was assigned to J.G.'s case took the stand, too.
testified that "something" would happen nearly every Although he did not speak directly with J.G. during the
time she went over to the house. She could remember course of the investigation, the deputy watched, via
some instances clearly while others were only recalled in video, the interview between J.G. and a forensic
flashes. Among the more vivid recollections were the interviewer. The deputy believed J.G.'s behavior to be
times when Appellant instructed J.G. to put various consistent with other cases that he had seen involving
things in her vagina (e.g., the top of a lava lamp, the sexual abuse. He also explained that a delayed outcry,
handles of a broom and a hammer, an ice cube, a bar of one taking place some time after the initial abuse, was not
soap, and a vibrator), and he would often attempt to push unusual. Subsequently, a psychologist and a professional
the objects in farther. counselor with whom J.G. interacted at the Children's
Assessment Center testified that J.G.'s behavior was
This type of abuse continued for years. J.G. testified consistent with years of sexual abuse but on
that the "worst" years were between sixth grade (when cross-examination acknowledged that the same
J.G. was 10 and 11 and Appellant was 15 and 16) and symptoms occur in children that were not sexually
eighth grade (when J.G. was 12 and 13 and Appellant abused.
was 17 and 18). She also asserted that Appellant "did it a
lot" when she was in the seventh, eighth, and ninth The pediatrician at the Children's Assessment Center
[**18] grades, typically immediately after school. When who performed J.G.'s medical examination was called to
J.G. would object to Appellant's demands, he would [**20] the stand next. She explained that J.G. seemed
threaten to tell her father about the things that she had emotionally distraught and complained of headaches and
done, such as sneaking clothes into school during the fifth blood in her stool. A physical examination showed that
and sixth grades because her father thought they were too J.G. was healthy, with no signs of trauma. The doctor
tight or too short. asserted that a normal exam is the most common finding
in children who have been sexually abused because the
[*491] The instances of abuse were not happening vagina heals quickly and it is not uncommon for the
as much toward the end. J.G. claimed that about the time hymen to remain intact. During the examination of J.G.'s
that Appellant started dating his future wife, she began to anus, the doctor discovered a hemorrhoid but no
say "No" more often. J.G. stated that the molestation bleeding. On cross-examination, the doctor
stopped when she turned 15 (at which time Appellant was acknowledged that the physical examination results
20 years old), but she emphasized that it occurred every concerning J.G.'s vagina and anus were also consistent
day before that. In July 2006, the summer before she was with someone who had not been sexually assaulted. The
to enter the eleventh grade, J.G. traveled to North physician's report indicated that Appellant touched J.G.
Carolina with Appellant and his family to visit their inappropriately for the first time when the victim was
relatives. During the trip, J.G. told Appellant's wife and seven (and Appellant would have been 12 years old) and
sister-in-law about the abuse. the abuse continued until about six weeks before the
exam (when Appellant was 20 years old).
B. Other Testimony
In Appellant's case-in-chief, several witnesses
During its case-in-chief, the State called several testified and generally maintained that Appellant was
other witnesses to testify. J.G.'s father testified that he never left alone with J.G., thereby suggesting that
worked a lot, so J.G. would stay at Appellant's home Appellant would not have had the opportunity to molest
during the day. She began spending time there in October J.G. Appellant's mother testified that J.G. was never
1998 (when she was eight years old), but her father was
[**21] left alone with Appellant, but on
unaware of any abuse until J.G.'s [**19] outcry in July cross-examination, she admitted that she worked long
2006. J.G.'s godmother attested similarly, stating that J.G. hours. Sheena asserted that she was paid to take care of
began staying over at Appellant's home when she was J.G., so during those eight years, she was watching her all
eight years old. She became aware of the sexual abuse
 Page 7
332 S.W.3d 483, *491; 2011 Tex. Crim. App. LEXIS 326, **21

of the time and never left her alone with Appellant. incident merged into another in J.G.'s recollection. The
Sheena and her [*492] husband explained that Appellant State referred to the initial abuse that occurred when J.G.
spent time at the library after school playing card games was in the fifth and sixth grades (before Appellant was 17
and Game Boy, and by the time he would return home, years old). However, it also highlighted that some of the
J.G.'s dad would have already picked her up. A friend "worst" molestation occurred when J.G. was in the sixth,
who stayed in the family's home during September 2002 seventh, eighth grades, as well as part of the ninth grade.
(when Appellant was 17) maintained that she never saw The State further pointed out that Appellant was 17, 18,
Appellant and J.G. together. Sheena's husband, who and 19 years old when J.G. was in the seventh, eighth,
moved into Sheena's room in September 2002 and and ninth grades, and by doing so, the State emphasized
remained there for three years, stated the same. an age range for Appellant that complied with Section
8.07(b).
In its rebuttal, the State called Appellant's
sister-in-law. She thought that she had seen Appellant D. Jury Charge
and J.G. alone before, but she could not be sure. She also
explained that after J.G. confided in her about the The jury charge erroneously instructed the jury that a
molestation, she was worried about J.G. returning to conviction could be had for offenses "committed at any
Texas in the same car as Appellant. The State also called time within the period of limitations," which was "ten
Appellant's wife, who testified outside of the jury's years from the date of the 18th birthday of the victim of
presence. She stated that she met Appellant when he was the offense." The State suggests that "[t]here is no
18 years old, and she was in disbelief when [**22] she language in the jury instruction suggesting the
heard J.G.'s outcry because she had never seen Appellant consideration of dates before the presentment of the
alone with J.G. indictment" and argues that (the jury charge instruction
focuses on looking forward in time "[J.G.'s] eighteenth
C. Arguments of Counsel birthday and beyond)." But we presume [**24] that the
jury understood and followed the court's charges absent
The defense's theory was that Appellant never evidence to the contrary. Hutch, 922 S.W.2d at 172.
molested J.G. 13 During closing arguments, Appellant Therefore, the jury charge authorized the jury to convict,
argued that the evidence was insufficient to prove beyond in part, based on acts committed [*493] before
a reasonable doubt that he ever molested J.G. Appellant Appellant's seventeenth birthday; however, it also
highlighted the testimony of several witnesses that he was allowed the jury to consider acts that occurred after his
never alone with J.G. during the eight-year period when seventeenth birthday but before the limitations period
the abuse allegedly occurred. He also indicated that J.G.'s expired.
emotional and physical symptoms could logically occur
for reasons other than sexual abuse. Taking the record as a whole, we believe that
egregious harm did not result from the jury-charge error.
13 This was made clear in one of Appellant's The defensive theory was that no sexual abuse occurred
first objections at trial. Outside of the jury's at any time. It is unlikely that the jury believed that
presence, Appellant suggested that J.G. was Appellant sexually assaulted the victim before he turned
making up the allegations against him--J.G. was 17 years old but not after. In this case, the jury either
allegedly molested before she moved in with her believed Appellant or believed the victim.
father, and that is where "she got the idea to start
saying she was molested by [Appellant]." The This case can be distinguished from Hutch in which
allegations of prior abuse were not developed at we held that egregious harm resulted from a charge error.
trial. There, "the instruction was 180 degrees opposite of what
is should have been." Id. at 172. We explained that "we
In contrast, the State's closing statement stressed the must presume the jury followed the erroneous instruction
consistency of J.G.'s testimony, including that the sexual which authorized the stop if appellant was wearing a seat
abuse began when she was in the fifth grade and belt. In fact the opposite is true; such a stop would have
continued until she turned fifteen. The State noted that been illegal. Under the erroneous instruction, [**25] the
the abuse started [**23] off slow but increased in only way the jury could have convicted was by using
frequency; in fact, the abuse occurred so often that one illegally obtained evidence." Id.
 Page 8
332 S.W.3d 483, *493; 2011 Tex. Crim. App. LEXIS 326, **25

Here, the error was the omission of an instruction, rather 36.19.
than the presentation to the jury of an erroneous
instruction. In contrast to Hutch, the jury in this case V. [**26] CONCLUSION
could have convicted Appellant based upon evidence
Section 8.07(b) is the law applicable to this case and
presented, even if the proper instruction had been given
therefore subject to sua sponte submission. Appellant was
and Appellant's pre-seventeen acts were disregarded by
not required to make an objection or request to have this
the jury. The evidence showed an eight-year pattern of
instruction included in the jury charges. See Huizar v.
escalating sexual abuse of J.G. by Appellant. Appellant
State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The
turned 17 years old midway through the abusive period,
court of appeals was correct to conclude that the trial
meaning that he is subject to prosecution for his conduct
court erroneously failed to instruct the jury on Section
beginning on that birthday or March 25, 2002, and
8.07(b). However, the court of appeals erred in
evidence of molestation that occurred after that date was
concluding that the error resulted in egregious harm. We
introduced at trial. For example, although J.G. described
reverse the court of appeals and remand to the court of
with more detail the instances that occurred during
appeals to address the remaining issues.
Appellant's juvenile years, she also described abuse that
occurred when Appellant was 17, 18, 19, and 20 years Meyers, J.
old. The State emphasized this in its closing argument.
Delivered: March 9, 2011
Accordingly, we conclude that Appellant was not
denied a fair and impartial trial and was, therefore, not Publish
egregiously harmed. TEX. CODE CRIM. PROC. ANN. art.
 Page 1

WILBERT JAMES TEAL, Appellant v. THE STATE OF TEXAS

NO. PD-0689-06

COURT OF CRIMINAL APPEALS OF TEXAS

230 S.W.3d 172; 2007 Tex. Crim. App. LEXIS 316

March 7, 2007, Delivered

NOTICE: [**1] PUBLISH that appellant knew that Curtis Brown, the person whose
apprehension appellant was hindering, was a fugitive for
SUBSEQUENT HISTORY: On remand at Teal v. State, Failure to Register as a Sex Offender. The court of
2007 Tex. App. LEXIS 9322 (Tex. App. Beaumont, Nov. appeals held that the district court never acquired
28, 2007) subject-matter jurisdiction to try the case because the
indictment alleged only a misdemeanor. 2 We granted the
PRIOR HISTORY: ON STATE'S PETITION FOR State's Petition for Discretionary Review to determine
DISCRETIONARY REVIEW FROM THE NINTH whether "the court of appeals erred in holding that the
DISTRICT COURT OF APPEALS ANGELINA indictment presented in this case was insufficient to vest
COUNTY. the district court with subject-matter jurisdiction." We
Teal v. State, 187 S.W.3d 80, 2006 Tex. App. LEXIS 1773 hold that, under Studer v. State, 3 the indictment sufficed
(Tex. App. Beaumont, 2006) to vest jurisdiction in the district court. Therefore, we
vacate the judgment of the court of appeals and remand
the case to that [**2] court to address appellant's
COUNSEL: For APPELLANT: Bill Burnett, remaining claims.
Coldspring, TX.
1 TEX. PENAL CODE § 38.05.
For STATE: Dale Summa, ASSISTANT DISTRICT 2 Teal v. State, 187 S.W.3d 80, 83 (Tex.
ATTORNEY, Lufkin, TX. App.--Beaumont 2006).
3 799 S.W.2d 263 (Tex. Crim. App. 1990).
JUDGES: COCHRAN, J., delivered the opinion of the
Court, in which MEYERS, PRICE, KEASLER and I.
HOLCOMB, JJ., joined. KELLER, P.J., filed a
concurring opinion in which WOMACK and HERVEY, On June 8, 2004, Lufkin police received a
JJ., joined. JOHNSON, J., concurred. Crimestopper's tip that a fugitive, Curtis Brown, was
staying at appellant's house. When police officers arrived
OPINION BY: COCHRAN at his house, appellant was sitting on the front porch with
his front door open. Officer Burfine told appellant that
OPINION they were looking for Brown, a fugitive with outstanding
parole violator and sex offender warrants. He informed
[*173] Appellant was indicted for the offense of appellant that both of these were [*174] felony warrants.
hindering apprehension. 1 The indictment failed to allege Officer Burfine told appellant that they had information
 Page 2
230 S.W.3d 172, *174; 2007 Tex. Crim. App. LEXIS 316, **2

that Brown was in the house. Appellant said that he had degree felony under section 38.05, and vest the district
seen Brown the night before, but that he had not seen court with subject-matter jurisdiction." 6 Because the
Brown that day. He repeatedly denied that Brown was in charging instrument did not charge an offense that fell
the house, and he refused to allow the police to enter his within the district court's jurisdiction, the court of appeals
house. concluded that the district court should have transferred
the indictment to a county court with misdemeanor
Meanwhile, Officer Smith heard noises from the rear jurisdiction. 7 Justice Gaultney dissented and stated that
[**3] of the house, so he went to check and discovered the indictment did vest the district court with jurisdiction.
Brown attempting to flee. Officer Smith arrested Brown. 8 Relying on the Texas Constitution and this Court's
The officers also found another man who had an decision in Studer v. State, Justice Gaultney concluded
outstanding sexual assault warrant when they searched that the indictment was valid because "[a]n indictment
appellant's house. vests the court with jurisdiction even if it fails to allege
an element of the offense." 9
Appellant was indicted for the offense of hindering
apprehension. The indictment alleged that appellant 5 Teal, 187 S.W.3d at 81.
[**5]
. . . then and there intentionally, with 6 Id. at 82.
intent to hinder the arrest, prosecution, or 7 Id. at 83.
punishment of Curtis Brown for the 8 Id. (Gaultney, J., dissenting).
offense of Failure to Comply with 9 Id. (Gaultney, J., dissenting).
Registration as a Sex Offender, did harbor
or conceal Curtis Brown by stating to II.
peace officers that Curtis Brown was not
present at said residence occupied by The Texas Constitution requires that, unless waived
defendant at a time when Curtis Brown by the defendant, the State must obtain a grand jury
was then and there present . . . . indictment in a felony case. 10 Absent an indictment or
valid waiver, a district court does not [*175] have
As soon as the jury was empaneled, appellant objected to jurisdiction over that case. 11 An indictment also provides
the indictment and argued that the district court did not a defendant with notice of the offense and allows him to
have jurisdiction because the indictment alleged only a prepare a defense. 12 Further, the "constitutional
misdemeanor, not a felony. 4 The trial court overruled his guarantee is intended to provide the accused an impartial
objection. After hearing the evidence, the jury convicted body which can act as a screen between the rights of the
appellant and sentenced him to two years in prison. accused and the prosecuting power of the State." 13

4 The misdemeanor offense of hindering 10 TEX. CONST. art. I, § 10.
apprehension becomes a felony when the person 11 Cook v. State, 902 S.W.2d 471, 475-76 (Tex.
who is being harbored "is under arrest for, Crim. App. 1995) (collecting cases and stating,
charged with, or convicted of a felony . . and the "Jurisdiction vests only upon the filing of a valid
person charged under this section knew that the indictment in the appropriate court.").
person they harbored . . . is under arrest for, 12 Id.
charged with, or convicted of a felony[.]" TEX. 13 Brian A. Kilpatrick, Comment, The
PENAL CODE ANN. § 38.05(c). Constitutional Right to Indictment by a Grand
Jury: Does It Survive after Studer v. State and the
[**4] On appeal, appellant argued that the evidence 1985 Constitutional and Statutory Amendments?,
was legally and factually insufficient and that the jury 44 BAYLOR L. REV. 345, 345 (1992); see also
instructions were erroneous. 5 The court of appeals, Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim.
however, sua sponte addressed the issue of whether the App. 2000) (noting that indictments are used to
trial court had subject matter jurisdiction. A two-justice "protect[] citizens against arbitrary accusations by
majority of the court of appeals stated that the indictment the government.").
failed to allege "that Teal had knowledge of Brown's
felony fugitive status so as to facially charge a third [**6] Before 1985, defects of form and defects of
 Page 3
230 S.W.3d 172, *175; 2007 Tex. Crim. App. LEXIS 316, **6

substance in an indictment had very different results. 14 1978) (op. on reh'g) (even though indictment
Failure to object to a defect of form waived any error on alleged that defendant supervised, controlled, and
appeal, but the failure to object to a defect of substance managed prostitution ring, it was fundamentally
did not waive error on appeal. 15 The reasoning was that defective because it did not allege that he
an indictment that contained a substantive defect was "knowingly" did so); see also David Weiner,
"void" and therefore insufficient to invoke the Comment, Particularity and Precision in Texas
jurisdiction of the court. Under this reasoning, a Indictments and Informations: What Is
defendant could attack a felony conviction based on a Fundamental Defect, 10 ST. MARY'S L.J. 281,
substantively defective indictment on appeal, even 282-84 (1978-1979).
though he had not objected at trial. 16 Defendants could [**8]
"lie behind the log," and either plead guilty or take their 17 Robert R. Barton, Since 1985, Can an
chances at trial and, if convicted, then raise a claim of a Indictment or Information Be "Fundamentally"
"void" indictment in a later appeal or application for Defective for Failing to Charge an Offense?, 25
habeas corpus relief. 17 Numerous decisions from this ST. MARY'S L.J. 217, 222-224 (1993). "Being
Court exhaustively debated the fine technical distinctions void, a judgment of conviction entered on an
between defects of form and those of substance, and indictment or information containing such a
numerous decisions from this Court reversed convictions defect of substance could be attacked by the
years after the fact for [*176] defects of substance in the defendant at any time, either directly for the first
indictment. 18 time on appeal or collaterally by postconviction
application for writ of habeas corpus." Id. at 223.
14 See American Plant Food, Corp. v. State, 508 18 Studer cited several cases that demonstrate
S.W.2d 598, 602 (Tex. Crim. App. 1974) (stating, the number and variety of convictions reversed
"This distinction between an objection to the for indictment errors. See, e.g., Carpenter v. State,
charge based on substance and one based on form, 551 S.W.2d 724, 725-26 (Tex. Crim. App. 1977)
subtle though it be, is well founded in reason, in ("Hence, a false imprisonment indictment which
justice, and in the logic of the Code of Criminal alleges mere restraint does not invoke the
Procedure."). jurisdiction of the district court, unless the
[**7] indictment also sets out the added penalty
15 See id. at 603 ("If the charge alleges an allegations of Section 20.02(c). . . . Clearly, the
offense was committed by the defendant, then it is indictment in this case does not allege that the
sufficient in law to support a verdict of guilty if appellant recklessly exposed the complainant to a
one be rendered thereon. If it does not so allege, substantial risk of serious bodily injury; felony
then it is utterly insufficient and any conviction false imprisonment has not been alleged."); Ex
based thereon is void. A void conviction may be parte Winton, 549 S.W.2d 751 (Tex. Crim. App.
challenged at any time and thus an exception to 1977) (indictment defective for failure to allege a
the substance of the State's pleading . . . may be culpable mental state). See generally Pospishel v.
raised for the first time on appeal.") (footnote State, 95 Tex. Crim. 625, 255 S.W. 738 (1923)
omitted). (op. on reh'g); Williams v. State, 12 Tex. Ct. App.
16 See Studer, 799 S.W.2d at 266-68 (noting, 395 (1882); White v. State, 1 Tex. Ct. App. 211
"For more than a century cases have come from (1876). See also Fisher v. State, 887 S.W.2d 49,
this Court holding that a defect in the 'substance' 55 n.8 (Tex. Crim. App. 1994) (detailing the
of a charging instrument may be raised for the history of indictment dismissals pre-Studer:
first time on appeal for it renders the charging "Some other defects of substance, in addition to a
instrument 'fundamentally defective.'"). Some of missing element, that were recognized prior to the
these indictment problems involved the failure to 1985 amendments included failure to allege date
allege a specific element of the offense. See, e.g., of offense, culpable mental state, victim's name,
Standley v. State, 517 S.W.2d 538, 540-41 (Tex. enhancement allegations, amount of a controlled
Crim. App. 1975). Some errors concerned the substance, and manner and means of committing
specificity of the indictment. See, e.g., Chance v. the offense where it is the manner and means that
State, 563 S.W.2d 812, 813 (Tex. Crim. App. renders the act criminal.") (collecting cases).
 Page 4
230 S.W.3d 172, *176; 2007 Tex. Crim. App. LEXIS 316, **8

[**9] In 1985, the citizens of Texas and their objection on appeal or in any other
legislature resoundingly rejected this hypertechnical case postconviction proceeding. Nothing in this
law both by Constitutional amendment and by statute. article prohibits a trial court from
The voters amended the Texas Constitution to include the requiring that an objection to an
definition of an indictment. An indictment, as now indictment or information be made at an
defined by the Texas Constitution, is earlier time in compliance with Article
28.01 of this code. 20
a written instrument presented to a court
by a grand jury charging a person with the Additionally, the legislature amended article 28.01 to
commission of an offense. An information ensure that the State had ample opportunity to repair
is a written instrument presented to a court indictment defects and that the defendant received the
by an attorney for the State charging a requisite notice of indictment changes, as well as an
person with the commission of an offense. opportunity to respond to them:
The practice and procedures relating to the [*177] (a) After notice [**11] to the
use of indictments, and informations, defendant, a matter of form or substance in
including their contents, amendment, an indictment or information may be
sufficiency, and requisites, are as provided amended at any time before the date the
by law. The presentment of an indictment trial on the merits commences. On the
or information invests the court with request of the defendant, the court shall
jurisdiction of the cause. 19 allow the defendant not less than 10 days,
or a shorter period if requested by the
defendant, to respond to the amended
indictment or information.
19 TEX. CONST. art. V § 12(b); see also TEX.
CODE CRIM. PROC. art. 21.01 (defining (b) A matter of form or substance in
indictment as "the written statement of grand jury an indictment or information may also be
accusing a person therein named of some act or amended after the trial on the merits
omission which, by law, is declared to be an commences if the defendant does not
offense"); see generally Studer v. State, 799 object.
S.W.2d 263 (Tex. Crim. App. 1990) (detailing the
legislative history of the constitutional (c) An indictment or information may
amendment and changes to the Code of Criminal not be amended over the defendant's
Procedure). objection as to form or substance if the
amended indictment or information
[**10] As part of the same reform package, the charges the defendant with an additional
legislature amended several provisions of the Code of or different offense or if the substantial
Criminal Procedure to ensure that indictment defects rights of the defendant are prejudiced. 21
could be objected to and repaired pretrial, but that these
defects would not invalidate an otherwise valid The legislature's purpose in amending the constitution
conviction if not raised before trial. For example, the and the statutes was to change the focus from "whether a
implementing legislation added section (b) to article defect is fundamental [i.e. a defect of substance or not]"
1.14: to "whether the defendant brought the defect to the
court's attention." 22 And the legislature intended the
If the defendant does not object to a constitutional provision and statutes to work together.
defect, error, or irregularity of form or That is, indictments charging a person with committing
substance in an indictment or information [**12] an offense, once presented, invoke the
before the date on which the trial on the jurisdiction of the trial court and jurisdiction is no longer
merits commences, he waives and forfeits contingent on whether the indictment contains defects of
the right to object to the defect, error, or form or substance. 23 The 1985 statutes clearly mandate
irregularity and he may not raise the that defendants must object to errors in the form or
 Page 5
230 S.W.3d 172, *177; 2007 Tex. Crim. App. LEXIS 316, **12

substance of an indictment "before the date on which the
trial on the merits commences[.]" 24 Thus, Texas law We also concluded that the 1985 constitutional
now requires the defendant to object to any error in the amendment made the specifics of an indictment or
indictment before the day of trial and certainly before the information statutory requirements, not constitutional
jury is empaneled. requirements. 32 Thus, all substantive defects in
indictments are waiveable under the statutes and these
20 TEX. CODE CRIM. PROC. art. 1.14(b). defects do not render the indictment "void." 33
21 TEX. CODE CRIM. PROC. art. 28.10.
22 Brian A. Kilpatrick, The Constitutional Right 25 Morrison v. Olson, 487 U.S. 654, 699, 108 S.
to Indictment by a Grand Jury: Does It Survive Ct. 2597, 101 L. Ed. 2d 569 (1988) (Scalia, J.
after Studer v. State and the 1985 Constitutional dissenting). See also Fisher v. State, 887 S.W.2d
and Statutory Amendments, 44 BAYLOR L. 49, 55 (Tex. Crim. App. 1994) ("Expressing
REV. 345, 350 (1992). frustration over the ability of a defendant to raise
23 Studer, 799 S.W.2d at 268. substantive defects in the indictment for the first
24 TEX. CODE CRIM. PROC. art. 1.14(b). time on appeal, the 69th Legislature submitted for
Also, art. 1.14(b) and art. 28.10 are read together approval to the voters an amendment to article V,
for the proposition that "[i]f the defendant fails to § 12 of the Texas Constitution which would give
raise a substance defect prior to trial, he or she the legislature authority to regulate practices and
waives that right; if the defect is raised, the State procedures relating to the use of indictments and
can then amend the indictment to include the informations. The proposed amendment was
missing element." Kilpatrick, supra, note 22 at approved by the voters, and the legislature
355. accordingly passed amendments to the Texas
Code of Criminal Procedure, all effective
[**13] This Court's first interpretation of the December 1, 1985.") (footnote omitted).
indictment reform legislation did not come "clad, so to [**15]
speak, in sheep's clothing." Instead this "wolf came as a 26 Studer, 799 S.W.2d at 264.
wolf." 25 The wolf was Studer, and this Court was clear: 27 Id. at 264-65. The information alleged that
raise indictment defects before the date of trial. In Studer, the defendant
the defendant was charged by information with indecent
exposure. 26 He pled nolo contendere, and, on direct did unlawfully then and there
appeal, despite having failed to object in the trial court, intentionally and knowingly
claimed that the information was fatally defective. 27 The expose his genitals to R.E. Bishop,
defendant complained "that the information [*178] was hereinafter called complainant,
defective for failing to 'allege, with reasonable certainty, with intent to arouse and gratify
the act or acts relied upon to constitute recklessness[.]'" 28 the sexual desire of the said
He argued that the trial court therefore never obtained [defendant], and the [defendant]
jurisdiction. 29 In Studer, we addressed the legislative acted recklessly and in conscious
history and purpose of the constitutional amendment 30 disregard of whether another
and rejected the defendant's "fatally flawed indictment" person was present who would be
claim: offended and alarmed by such act .
...
Clearly both the House and Senate
believed that all defects in a charging Id. at 265.
instrument were waived if not raised by a 28 Id.
defendant before trial. Clearly the 29 Id.
perceived evil that they were correcting 30 See id. at 267-71 (setting out the history of
was the raising of indictment defects for appellate reversals for indictment flaws and citing
the first time after a trial and [**14] comments by Senator Ike Harris: "What this
conviction and the subsequent reversal of basically does . . . it's a bill that deals with that
that conviction because of that defect. 31 problem that has plagued the criminal justice
 Page 6
230 S.W.3d 172, *178; 2007 Tex. Crim. App. LEXIS 316, **15

system and the Court of Criminal Appeals over a statute of limitations, and holding that
number of years, that involves a defective "jurisdiction was conferred upon the trial court by
indictment which a defense goes to trial upon, the presentment of the charging instrument, even
makes no objection, then raises on appeal for the if the charging instrument was flawed. . . . If the
first time, then the court reverses, based upon that defendant failed to direct the trial court's attention
defect in the indictment and the lower court has to the defects in the charging instrument before
never had the opportunity to rule upon that trial, the defendant would be precluded from
question. There are a number of cases that have raising those defects 'on appeal or in any
been reversed on those technicalities."). See also postconviction proceeding.' Therefore, an
id. at 274-284 (appendices containing the House indictment which charges the commission of an
Legislative report and the Texas Legislative offense barred by limitations still confers
Council report on the proposed constitutional jurisdiction upon the trial court, such that the
amendment). defendant must bring the defect to the attention of
[**16] the trial court in order to preserve any error."); Ex
31 Id. at 270-71. parte Morris, 800 S.W.2d 225, 227 (Tex. Crim.
32 Id. at 272. App. 1990) ("In the case at bar, the indictment in
33 Id. (stating, "In sum, the wording of Article V, question clearly fails to allege a constituent
§ 12(b), that provides 'an indictment is a written element of the offense of forgery, namely, that the
instrument presented to a court by a grand jury writing purported to be the act of another 'who did
charging a person with the commission of an not authorize the act.' . . . However, the charging
offense; an information is a written instrument instrument was issued by the grand jury, filed
presented to a court by an attorney for the State with the district clerk and purports to charge
charging a person with the commission of an applicant with the primary offense of forgery.
offense,' abolishes the former prerequisites to Pursuant to the rationale in Studer and Gibson,
which the referred to charging instruments must this instrument is an indictment as contemplated
adhere, lest they fail as charging instruments, at by Art. V, § 12(b). . . . Article 1.14(b) prohibits
least from the standpoint of Art. V, Section 12."). applicant from raising the defect in the indictment
We noted that the omission of an element of the for the first time in a postconviction
offense was "still a defect of substance in an proceeding."); Rodriguez v. State, 799 S.W.2d
indictment, [so] it naturally follows that the 301, 303 (Tex. Crim. App. 1990) (in evading
indictment is still an indictment despite the arrest information, "[t]here [was] no allegation
omission of that element." Id. at 268. that appellant knew the complainant was 'a peace
officer attempting to arrest him.'. . . Thus, the
In the five years after Studer, this Court addressed information failed to allege one element of the
indictment defects and Studer related issues offense of evading arrest. The failure of a
approximately thirty times. Those cases consistently charging instrument to allege an element of an
reiterated the same proposition: "In Studer . . . we offense is a substance defect. . . . Clearly then, the
interpreted the amendments [**17] to art. V, § 12(b) and information in this cause suffered from a defect of
art. 1.14 and held a defect in a charging instrument is substance by failing to allege appellant knew the
waived unless raised prior to trial." 34 complainant was a peace officer who was
attempting to arrest him. But the information in
34 Ex parte Matthews, 873 S.W.2d 40, 41 (Tex. this cause was, 'on its face,' an information. Thus,
Crim. App. 1994). See, e.g., Fisher v. State, 887 the information was not 'fundamentally defective',
S.W.2d 49, 60-61 (Tex. Crim. App. 1994) and it did invest the trial court with jurisdiction.
(addressing whether an indictment is facially We find, therefore, that appellant has waived this
incomplete and analyzing the sufficiency of the defect under Art. 1.14(b) because of his failure to
evidence in relation to that indictment); State v. object to this defect 'before the date on which the
Yount, 853 S.W.2d 6, 8-9 (Tex. Crim. App. 1993) trial on the merits commenced.'"); Ex parte
(considering whether an indictment is sufficient if Gibson, 800 S.W.2d 548 (Tex. Crim. App. 1990)
it indicates an offense date that is barred by the (holding that defects, errors, and irregularities of
 Page 7
230 S.W.3d 172, *178; 2007 Tex. Crim. App. LEXIS 316, **17

either form or substance in an indictment or Can the trial court (and appellate courts who give
information must be raised by pretrial objection or deference to the trial court's assessment) and the [**20]
are waived in postconviction proceedings; defendant identify what penal code provision is alleged
indictment that failed to allege year of alleged and is that penal code provision one that vests jurisdiction
offense contained a substantive defect, but in the trial court? With this background, we turn to the
because defendant failed to object to this defect present case.
pretrial, he could not raise it in a postconviction
proceeding). 39 Cook, 902 S.W.2d at 481 (Maloney, J.,
concurring).
[**18] The "fatally flawed indictment" issue
[*179] was raised again in Cook v. State, 35 in which the III.
charging instrument did not charge "a person." No person
Appellant alleges that the present indictment was
was alleged to have committed the offense. This was too
missing one of the elements that raises the offense of
much. We noted in Cook that the 1985 constitutional
Hindering Apprehension from a misdemeanor to a
amendment defined an indictment: "To constitute an
felony:
indictment, the charging instrument must charge: (1) a
person, and (2) the commission of an offense. It is clear,
In order for the State to prosecute
however, that if the charging instrument fails to charge a
Appellant for the third degree felony
person, then it is not an indictment as required by art. V,
offense of hindering apprehension in
§ 12(b) and art. I, § 10." 36 It was this premise, that the
district court the State had to additionally
Constitution expressly required that a person be charged
allege and prove that the person, in the
with an offense, that led us to conclude that "[i]f the
present case Curtis Brown, who was
charging instrument fails to charge 'a person' then it is not
allegedly being harbored or assisted was
an indictment and does not vest the trial court with
facing arrest, charge or had been convicted
jurisdiction. Moreover, because a valid indictment is
of a felony and that Appellant had
essential for jurisdiction, it is not subject to waiver." 37
knowledge that the person (Curtis Brown)
Accordingly, Cook held that, because the charging
who he was allegedly harboring or
instrument failed to charge a person, it did not meet one
assisting had been convicted of a felony.
of the two requirements of an indictment, and therefore, it
40
was not an indictment at all and did not vest any trial
court with [**19] jurisdiction. 38

35 902 S.W.2d 471 (Tex. Crim. App. 1995). 40 Appellant's Brief at 7.
36 Id. at 477.
37 Id. at 480 (footnote omitted). [**21] Appellant further argues that "[e]ven though
38 Id. the indictment in the instant case did state that Curtis
Brown did have felony fugitive status for failure to
Studer and Cook are "book-end" cases. Studer held comply with Registration as a Sex Offender it failed to
that the defendant must object to any indictment defects additionally allege that Appellant had knowledge of
before the date of trial or forfeit any complaint about its Curtis Brown's felony fugitive status." 41 Thus, appellant
sufficiency thereafter. Cook held that the Texas contends that the indictment was defective because it did
Constitution requires that an indictment allege that (1) a not explicitly state that appellant knew that Curtis Brown
person, (2) committed an offense. Without both of those was a felon. This defect, he contends, was jurisdictional
elements the charging instrument is not an indictment and and thus it "may be raised at any time [because] . . . .
does not vest the district court with jurisdiction. [j]urisdiction is a systemic requirement that cannot be
waived or conferred by consent and which may be
[*180] The proper test to determine if a charging
considered at any time." 42
instrument alleges "an offense" is whether the allegations
in it are clear enough that one can identify the offense 41 Id.
alleged. If they are, then the indictment is sufficient to 42 Id. at 9.
confer subject matter jurisdiction. 39 Stated another way:
 Page 8
230 S.W.3d 172, *180; 2007 Tex. Crim. App. LEXIS 316, **21

The State responds that it did allege that appellant the information. If the defendant does not object
was harboring a fugitive, and "it is clear that the State to a defect, error, or irregularity of form or
intended to prosecute the defendant for the felony offense substance in an indictment or information before
of Hindering Apprehension, by including the language the date on which the trial on the merits
'with intent to hinder the arrest, prosecution, or commences, he waives and forfeits the right to
punishment of Curtis [**22] Brown for the offense of object to the defect, error, or irregularity, and he
Failure to Comply with Registration as a Sex Offender." may not raise the objection on appeal or in any
43 This offense is itself a felony, which, the State argues, other postconviction proceeding.").
clearly indicates its intent to prosecute appellant for the [**24]
felony offense of Hindering Apprehension. 44 47 Id. at 551 (concluding that "there is no doubt
that the State intended to accuse appellant of
43 State's Brief at 14. indecency with a child," thus indictment
44 Id. at 14-15. Ample evidence at trial showed sufficient).
that appellant had knowledge of Brown's felony
status: Officer Burfine testified that he told Implicit within both Studer and Cook is that "the
Appellant that (1) the police were looking for offense" charged must be one for which the trial court has
Curtis Brown, (2) Curtis Brown was a fugitive, subject-matter jurisdiction. Although the "indictment"
(3) Curtis Brown had an outstanding parole provision of the constitution explicitly speaks only of the
warrant and a sex offender violation warrant, and two requirements of "a person" and "an offense," the
(4) both were felony warrants. constitution also sets out the subject-matter jurisdiction of
Texas courts. 48 An indictment must also satisfy the
After Studer and Cook, courts must now look to the constitutional requirement of subject-matter jurisdiction
indictment as a whole, not to its specific formal over "an offense."
requisites. Constitutionally, district courts have
jurisdiction over a felony when an indictment charging a 48 See TEX. CONST. Art. V, § 1; see Davis v.
person with an offense is signed by the grand jury State, 956 S.W.2d 555, 557-59 (Tex. Crim. App.
foreman and presented to the [*181] district court. In 1997) (discussing tendency to confuse jurisdiction
Duron v. State, 45 this Court held that "a written of the court with authority of the judge). See TEX.
instrument [**23] is an indictment or information under CONST. Art. V, § 8 (setting out jurisdiction of
the Constitution if it accuses someone of a crime with district courts); TEX. CODE CRIM. PROC. art.
enough clarity and specificity to identify the penal statute 4.05 ("District courts and criminal district courts
under which the State intends to prosecute, even if the shall have original jurisdiction in criminal cases
instrument is otherwise defective." 46 We stated that of the grade of felony, of all misdemeanors
involving official misconduct, and of
all that Studer and Cook require to misdemeanor cases transferred to the district court
satisfy the mandate of Art. V, § 12 [is] that under Article 4.17 of this code.").
an indictment charge "the commission of
an offense." This is true whether an [**25] Thus, the complete test for the constitutional
indictment fails to allege one element of sufficiency of a particular charging instrument goes
an offense or whether it contains slightly further than that expressly set out in Studer and
additional information that may indicate Cook: Can the district court and the defendant determine,
innocence. 47 from the face of the indictment, that the indictment
intends to charge a felony or other offense for which a
district court has jurisdiction? Suppose, for example, that
a named person is indicted for the offense of speeding.
45 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). The constitutional requirements of an indictment are
46 Id. at 550-51; see also Ramirez v. State, 105 met-- a named person and an offense-- but district courts
S.W.3d 628, 629-30 (Tex. Crim. App. 2003) ("The do not have subject-matter jurisdiction over speeding
appellant filed a motion to dismiss the complaint offenses, regardless of how "perfect" the wording of the
based on the fact that her name was incorrectly set charging instrument might be. Thus, the indictment,
out. . . . In this case, the appellant did not object to
 Page 9
230 S.W.3d 172, *181; 2007 Tex. Crim. App. LEXIS 316, **25

despite whatever substantive defects it contains, must be intentionally attempted to evade arrest; defect
capable of being construed as intending to charge a waived because defendant did not object before
felony (or a misdemeanor for which the district court has trial); Studer v. State, 799 S.W.2d 263 (Tex. Crim.
jurisdiction). App. 1990) (indictment failed to set out the acts
constituting the mens rea element of
The element that was missing in this indictment was recklessness).
whether appellant knew that Brown was a felony fugitive. [**28]
This is one of the two mens rea requirements for 51 Appellant was indicted on August 12, 2004,
Hindering Apprehension. 49 We have previously [*182] and trial did not occur until March 23, 2005, over
upheld the validity of the indictment in several cases, seven months later. Appellant said nothing about
including Studer itself, [**26] in which the mens rea the sufficiency of the indictment during those
allegation was missing or defective. 50 In this case, the seven months. Because this indictment was
indictment, as a whole, was sufficient to vest the district presented to a district court with felony
court with subject-matter jurisdiction and give the jurisdiction, it is logical to assume that appellant
defendant notice that the State intended to prosecute him prepared for a felony trial in district court, not a
for a felony offense. It alleged whom appellant was misdemeanor trial in county court.
hiding (Brown); it stated the offense Brown was hiding
from (a felony); it alleged that appellant told police that Appellant did not object to the substance of the
Brown was not present. Because Brown was alleged to be indictment until right after the jury had been empaneled.
a fugitive "for the offense of Failure to Comply with His failure to make a timely objection before the date of
Registration as a Sex Offender" which is a felony, the trial was exactly the type of action that the citizens of
district court could conclude, from the face of the Texas summarily rejected in voting for the 1985
charging instrument, that the State intended to charge a constitutional amendment and the Texas Legislature
felony hindering apprehension offense. It certainly was a prohibited in enacting the 1985 enabling statutes. 52
defective indictment because it omitted one of the two Appellant forfeited any right to object to indictment
elements that raise hindering apprehension from a defects thereafter, and the court of appeals should not
misdemeanor to a felony, but it was nonetheless have sua sponte reversed appellant's conviction on this
sufficient to vest jurisdiction--it charged "an offense" and basis. Therefore, we vacate the judgment of the court of
one could fairly conclude from the face of the charging appeals and remand the case to that court to address
instrument that the State intended to charge a felony appellant's original complaints [**29] of legal and
offense. If appellant was confused about whether the factual sufficiency and jury charge error.
State did or intended to charge him with a felony, he
could have and should [**27] have objected to the 52 See Brian A. Kilpatrick, The Constitutional
defective indictment before the date of trial. 51 Right to Indictment by a Grand Jury: Does It
Survive after Studer v. State and the 1985
49 Under section 38.05, the State must prove Constitutional and Statutory Amendments, 44
that the defendant (1) intended to hinder the arrest BAYLOR L. REV. 345, 348 (1992) (stating that
of the fugitive, and (2) knew the person was a "[t]he existence of the fundamental defect
fugitive. To raise to offense from a misdemeanor doctrine was problematic because it encouraged
to a felony, the State must prove that the "sandbagging" techniques by defendants. In other
defendant (1) intended to hinder the arrest of a words, when the defendant's counsel discovered a
felony fugitive, and (2) knew the person was a fundamental defect in the charging instrument,
felony fugitive. TEX. PENAL CODE § 38.05(c). withholding such information was usually in the
50 See, e.g., State v. Oliver, 808 S.W.2d 492, defendant's best interest. Only upon losing the
493-94 (Tex. Crim. App. 1991) (indictment that trial would the defect be brought to the appellate
failed to allege culpable mental state in possession court's attention.").
of controlled substance case is still an
"indictment" conferring jurisdiction); Rodriguez Delivered: March 7, 2007
v. State, 799 S.W.2d 301, 302-03 (Tex. Crim. App.
Publish
1990) (indictment did not allege that appellant
 Page 10
230 S.W.3d 172, *; 2007 Tex. Crim. App. LEXIS 316, **29

CONCUR BY: KELLER offenses could contain those allegations. Under Duron,
this simply would not [**32] be enough information to
CONCUR allege an offense.

[*183] Article 1.14 provides that a defendant But even under appellant's reasoning, the indictment
forfeits appellate review if he "does not object to a defect, in the present case alleges an offense: it at least alleges
error, or irregularity of form or substance in an the misdemeanor offense of hindering apprehension. 7
indictment . . . before the date on which the trial on the That is an offense that is insufficient to invoke the district
merits commences." 1 The statute essentially [**30] court's jurisdiction, but it is an offense nonetheless. The
dictates a three-step process for reviewing appellate State, of course, contends that the indictment alleges
complaints relating to indictments: (1) Is there an more than that, charging the felony offense of hindering
indictment? (2) If so, is the indictment defective, apprehension. But the fact that an offense of some sort is
erroneous, or irregular in some respect? (3) If so, did the alleged is not in dispute. Therefore, under the Texas
defendant lodge a timely objection to the defect, error, or constitution, the written instrument in this case is,
irregularity? The Court treats the issue before us as a step indisputably, an indictment.
(1) inquiry, but I believe that the pivotal issue is actually
a step (2) inquiry. 7 See TEX. PEN. CODE § 38.05(a), (c).

1 TEX. CODE CRIM. PROC., Art. 1.14(b). 2. Is the indictment defective?

1. Is there an indictment? The real question in this case is what kind of offense
is being charged in the indictment? That question brings
According to the Texas Constitution, an indictment us to step (2) of the inquiry, whether the indictment is
is "a written instrument presented to a court by a grand defective, erroneous, or irregular. Even when an
jury charging a person with the commission of an indictment is error-free, a defendant can raise [**33] a
offense." 2 In Cook v. State, we held that this language claim that he was convicted of an offense that was not
literally required a "person" to be named as the authorized by the facially complete indictment. 8 [*184]
perpetrator in the written instrument in order for that Under those circumstances, the defendant can argue
instrument to qualify as an indictment. 3 In Duron v. persuasively that the indictment was not defective, and
State, we addressed the requirement that an indictment thus, there was nothing to object to prior to trial. In that
charge an "offense." 4 We held that an "offense" is situation, there is no indictment error; rather, there is
charged [**31] if the written instrument "accuses error in charging the jury or in rendering judgment on an
someone of a crime with enough clarity and specificity to offense that the indictment does not authorize. If, for
identify the penal statute under which the State intends to example, an indictment contains allegations necessary to
prosecute." 5 If the written instrument purporting to be an establish the offense of robbery but contains no additional
indictment does not in fact qualify as an "indictment," allegations that would suggest the greater offense of
then the defendant is exempted from the usual aggravated robbery, 9 then there may be no error in the
requirement that he object to defects in the indictment indictment but error would occur at trial if the
before the date of trial. 6 prosecution were permitted to pursue an aggravated
robbery conviction. A defendant must preserve such a
2 TEX. CONST., Art. V, § 12(b). complaint by objecting at trial. 10
3 902 S.W.2d 471, 480 (Tex. Crim. App. 1995).
4 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). 8 Sutton v. State, 899 S.W.2d 682, 686 (Tex.
5 Id. Crim. App. 1995).
6 Id. at 550 (citing Cook, 902 S.W.2d at 478). 9 Compare TEX. PEN. CODE § 29.02 with §
29.03.
Duron's standard for determining when an "offense" 10 If the error is considered to be in the jury
is alleged can be understood through the following charge, then even without an objection, the error
example. Suppose the purported indictment alleged only would be subject to the Almanza "egregious
the name of the perpetrator and a culpable mental state: harm" standard.
e.g. "John Smith intentionally." Any number of criminal
 Page 11
230 S.W.3d 172, *184; 2007 Tex. Crim. App. LEXIS 316, **33

[**34] In appellant's case, however, we are not be incomplete if it appears to allege only a
confronted with a facially complete indictment alleging misdemeanor but was filed in district court, and
the misdemeanor offense of hindering apprehension. The the misdemeanor is not one of those few that are
misdemeanor offense of hindering apprehension does not sufficient to invoke the district court's jurisdiction.
require proof that the fugitive committed a felony Under those circumstances, the State's filing of
offense, but the felony offense of hindering apprehension the indictment in district court evidences its intent
does. 11 The indictment in this case contains an additional to prosecute a felony offense, and a felony offense
allegation that suggests the greater offense of felony exists to which the allegations in the indictment
hindering apprehension: that the harbored fugitive was might reasonably pertain. Of course, where a
wanted for the offense of "failure to comply with misdemeanor is not related to any felony offense
registration as a sex offender," which is a felony offense. for which a district court would have jurisdiction,
Consequently, we have an incomplete indictment alleging such as in the "speeding" example given by the
the felony offense of hindering apprehension, so the Court, then an indictment alleging such an offense
indictment was defective, and appellant was required by would not be capable of conferring such
statute to lodge a pretrial objection to preserve error on jurisdiction.
appeal. 12
[**35] I concur in the Court's judgment.
11 See § 38.05(a), (c).
12 See Studer v. State, 799 S.W.2d 263 (Tex. Date filed: March 7, 2007
Crim. App. 1990). I also believe that when the
Publish
lesser and greater offenses straddle the
misdemeanor-felony divide, an indictment could