Garcia v. State, s. 1176-95

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: MANSFIELD
• Citation: 981 S.W.2d 683
• Parties: Arnoldo Roberto GARCIA, Appellant, v. The STATE of Texas. to 1178-95.
• Docket Number: Nos. 1176-95,s. 1176-95
• Decision Date: 02 December 1998

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981 S.W.2d 683 Arnoldo Roberto GARCIA, Appellant,
v.
The STATE of Texas. Nos. 1176-95 to 1178-95. Court of Criminal Appeals of Texas,
En Banc. Dec. 2, 1998.

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Larry Zinn, San Antonio, for appellant.

John A. Olson, Asst. Dist. Atty., Brownsville, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MANSFIELD, Judge, delivered the opinion of the Court, in which McCORMICK, P.J., and KELLER, PRICE, and WOMACK, JJ., joined.

The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation." ¹ Article I, § 10, of the Texas Constitution provides that, "[i]n 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." The cases at bar present the question whether appellant, Arnoldo Roberto Garcia, was denied these basic constitutional guarantees.

The Relevant Facts

On April 28, 1993, a Cameron County grand jury returned three indictments in the 197th District Court charging appellant with three counts of indecency with a child. Each indictment contained a single count and alleged that, "on or about" a specified date, appellant had committed the offense by touching the genitals of a female child, M___ N___. ² See Tex. Penal Code § 21.11(a)(1). The three "on or about" dates specified in

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the indictments were October 5, 1987; August 15, 1989; and May 15, 1990. The three cases were later consolidated for trial. See Tex. Penal Code § 3.02.

Shortly before trial began, appellant filed written motions in the District Court excepting to the form of the indictments and asking that they be quashed. See Tex.Code Crim. Proc. art. 27.09(2). In the motions, appellant noted correctly that, "when an indictment alleges that an offense occurred 'on or about' a particular date, the State is not bound by the date alleged, and may prove any offense of the character alleged, within the period covered by the applicable statute of limitations." See Sledge v. State, 953 S.W.2d 253, 255-256 (Tex.Crim.App.1997); Mireles v. State, 901 S.W.2d 458, 459 (Tex.Crim.App.1995) (plurality opinion). Appellant then argued, in relevant part, that "[t]he failure of [each] indictment to specify a more exact date for [the] commission of the offense deprive[d] him of the right of adequate notice of the true nature and cause of the accusation against him," in violation of, among other things, the Sixth Amendment and Article I, § 10. Appellant argued further that "the indictment[s] must be pleaded with sufficient certainty in order for [any resulting] judgment[s] to serve as a bar to subsequent prosecutions for the same conduct." See Tex.Code Crim. Proc. art. 21.04. ³ For relief, appellant asked the District Court "to order the indictment[s] ... dismissed, and to order the State to replead their cause with a date certain [or] plead that the offense[s] occurred within ... more specific time interval[s]."

The District Court denied appellant's motions during a pretrial hearing, and the jury later found appellant guilty under all three indictments. The District Court assessed appellant's punishment at imprisonment for ten years for each offense, with the sentences to run concurrently.

On appeal, appellant argued that the trial court had erred in denying the motions to quash because the indictments had "failed to provide sufficient notice of the date of the alleged offenses, [thereby depriving appellant of] adequate notice of the time periods for which he needed to defend." Appellant made no argument, however, based upon Article 21.04.

The Thirteenth Court of Appeals held that the trial court had not erred in denying the motions to quash, explaining that "[t]he alleged 'on or about' dates--October 5, 1987, August 15, 1989, and May 15, 1990--sufficiently put appellant on notice to prepare for proof that the offenses happened at any time" within the statute of limitations period. Garcia v. State, 907 S.W.2d 635, 636 (Tex.App.--Corpus Christi 1995). We granted appellant's petition for discretionary review to determine whether, in light of the Sixth Amendment and Article I, § 10, the Court of Appeals had erred. See Tex.R.App. Proc. 66.3(b).

Analysis

Both the Sixth Amendment and Article I, § 10, require that a defendant be given notice before trial of the "nature and cause" of the accusation against him, and require further that the notice be given with sufficient clarity and detail to enable the defendant to anticipate the State's evidence and prepare a proper defense to it. See Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App.1997). Under Article I, § 10, the requisite notice must come from the face of the charging instrument. Ibid. Thus, an indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all the material elements of the offense charged. Bynum v. State, 767 S.W.2d 769, 779 (Tex.Crim.App.1989); Zweig v. State, 74 Tex.Crim. 306, 171 S.W. 747, 753 (Tex.Crim.App.1914).

Must an indictment specify the precise date when the charged offense occurred, or at least a narrow window of time within which it must have occurred, in order to

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satisfy the constitutional notice requirement? We hold that the answer is "no," and we do so for three reasons. First, time is not a material element of an offense (at least, not usually). ⁴ O'Connell v. State, 18 Tex. 343, 366 (1857). Second, the primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense but rather to show that the prosecution is not barred by the statute of limitations. Presley v. State, 60 Tex.Crim. 102, 131 S.W. 332, 333 (Tex.Crim.App.1910). Third, it may be impossible for the State to know precisely, or even approximately, when the charged offense occurred. See Sledge v. State, 953 S.W.2d at 256, n. 8. Thus, we reaffirm our prior holdings that it is not error, constitutional or otherwise, for an indictment to allege an "on or about" date for the charged offense. See, e.g., Presley v. State, 131 S.W. at 333; State v. Elliot, 34 Tex. 148, 151 (1870). Such an indictment will, except in rare instances, provide an accused with notice adequate to enable him to prepare a proper defense. In the unlikely event that the defendant is unfairly surprised at trial by evidence fixing the date of the offense very differently from that specified in the indictment, then "he should for that reason ask for a postponement that he might obtain evidence to meet the charge as made by the testimony." Lingenfelter v. State, 73 Tex.Crim. 186, 163 S.W. 981, 983 (Tex.Crim.App.1914). Accord, A. Scott, Fairness in Accusation of Crime, 41 Minn. L.Rev. 509, 532 (1957).

We hold that the Court of Appeals did not err in holding that the District Court did not err in denying appellant's motions to quash. We affirm the judgment of the Court of Appeals.

KELLER, J., also filed a concurring opinion in which WOMACK, J., joined.

MEYERS, J., filed an opinion concurring in the judgment of the Court.

HOLLAND, J., concurred in the judgment of the Court.

BAIRD, J., filed a dissenting opinion.

OVERSTREET, J., dissented.

KELLER, Judge, concurring.

I join the majority opinion. In my view, any Due Process concern that might be posed by an indictment that covers a large period of time can be addressed through a continuance. If a defendant can show that he was unfairly surprised by the allegations developed at trial, he would be entitled to a continuance. Appellant does not allege or show that he was unfairly surprised by the evidence as it developed in the present case.

WOMACK, J., joins.

MEYERS, Judge, concurring.

I concur in the result. I write separately because the majority opinion misstates the legal definition of constitutionally adequate notice and fails to address Appellant's main contention.

Appellant complains that the three indictments deprive him of his federal and state constitutional rights to adequate notice of the true nature and cause of the accusations against him. Adequate notice essentially requires two things. First, notice must fairly inform the defendant of the specific offense with which he is charged. Second, notice must be particular enough that the defendant, if convicted or acquitted, can plead the prosecution as a bar to a future prosecution under the same statute and for the same exact conduct. See e.g., Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); McElroy v. State, 720 S.W.2d 490 (Tex.Crim.App.1986). ¹ The majority opinion misrepresents the legal definition of adequate notice, as it assumes that notice is

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constitutionally adequate if it only meets the first requirement. ²

Appellant argues that notice is inadequate because the three indictments returned against him are...