Cook v. State

• Decision Date: 28 June 1995
• Docket Number: No. 0375-94,0375-94
• Citation: 902 S.W.2d 471
• Parties: Larry Neil COOK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 471

902 S.W.2d 471

Larry Neil COOK, Appellant, v. The STATE of Texas, Appellee.

No. 0375-94.

Court of Criminal Appeals of Texas En Banc.

June 28, 1995.

Mark Stevens, Vincent D. Callahan (Brett Harrison, Pia Rebecca Lederman, Russell Sablatura, J. Charles Bunk, third year law students licensed to practice under the supervision of Mark Stevens), San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., Chris DeMartino, A.J. Dimaline, Barbara Hervey, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted by a jury of theft over $20,000.00. Tex.Penal Code Ann. § 31.03. Appellant pled "true" to the enhancement allegation and the trial judge assessed punishment at ten years confinement and ordered restitution in the amount of $6,000.00. Tex.Penal Code Ann. § 12.33. The Court of Appeals affirmed. Cook v. State, No. 04-93-00111-CR (Tex.App.--San Antonio, January 5, 1994) (Not published). We granted appellant's petition for discretionary review to determine whether the charging instrument was so deficient as to not invest the trial court with jurisdiction. Tex.R.App.P. 200(c)(5). We will reverse.

I.

We set out the charging instrument below:

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

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

Before the commission of the offense alleged above, on the 24th day of June, A.D., 1977, in Cause no. CR 3-77-35, in the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AT DALLAS, the Defendant was convicted of the felony of FRAUD IN OFFER OF SALE OF SECURITIES AND MAIL FRAUD.

[Signed by Grand Jury Foreperson]

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

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

Id., at 3-4.

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

II.

A.

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

Rights of accused in criminal prosecutions

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

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

An indictment serves two functions. First, it provides notice of the offense in order to allow a defendant to prepare a defense. Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Cr.App.1994); Evans v. State, 623 S.W.2d 924, 925 (Tex.Cr.App.1981); Benoit v. State, 561 S.W.2d 810, 813 (Tex.Cr.App.1977); Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975); and, Zweig v. State, 74 Tex.Crim. 306, 171 S.W. 747, 753 (App.1914) (Op on reh'g). See also, 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis, 39 (Texas Legislative Counsel 1977). Second, an indictment serves a jurisdictional function. Labelle v. State, 720 S.W.2d 101, 106 (Tex.Cr.App.1986); Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.1985); and, Drumm v. State, 560 S.W.2d 944, 946-947 (Tex.Cr.App.1977). The filing of an indictment is essential to vest the trial court with jurisdiction over a felony offense. See, King, 473 S.W.2d at 47-49; Ex parte Krarup, 422 S.W.2d 173, 174 (Tex.Cr.App.1967); Melancon v. State, 367 S.W.2d 690, 692 (Tex.Cr.App.1963); Kennedy v. State, 161 Tex.Crim. 303, 276 S.W.2d 291, 294 (App.1954) (Op. on reh'g); Hollingsworth, 221 S.W. at 979; Turpin v. State, 86 Tex.Crim. 96, 215 S.W. 455, 456 (App.1919); Turman v. State, 81 Tex.Crim. 320, 196 S.W. 181 (App.1917); and, Lott v. State, 18 Tex.App 627 (1885). Jurisdiction vests only upon the filing of a valid indictment in the appropriate court. Tex. Const. Art. V, § 12(b). See also, Crawford v. State, 624 S.W.2d 906, 907 (Tex.Cr.App.1981); and, Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980).

B.

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

C.

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

An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments, including their contents, amendment, sufficiency and requisites are provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

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

If the defendant does not object to a defect, error, or irregularity of form or substance in the indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and may no raise the objection on appeal or in any other postconviction...