Janecka v. State

• Decision Date: 07 October 1987
• Docket Number: No. 68881,68881
• Citation: 739 S.W.2d 813
• Parties: Allen Wayne JANECKA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 813

739 S.W.2d 813

Allen Wayne JANECKA, Appellant, v. The STATE of Texas, Appellee.

No. 68881.

Court of Criminal Appeals of Texas En Banc.

Oct. 7, 1987.

On Rehearing Nov. 12, 1987.

Kenneth W. Sparks, Douglas O'Brien, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Timothy G. Taft and Robert A. Moen, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(3). After finding appellant guilty, the jury returned affirmative findings to the first two special issues under Art. 37.071(b) V.A.C.C.P. Punishment was assessed at death. We will affirm. ¹

Appellant was convicted of intentionally and knowingly causing the death of Kevin Wanstrath "on or about July 5, 1979" by shooting him with a gun, "and the Defendant committed the murder for remuneration and the promise of remuneration, namely, money."

In his first point of error, appellant complains that the trial court erred in overruling his motion to quash the indictment. The motion stated in pertinent part:

"The indictment is likewise insufficient and defective since it fails to allege the person that allegedly provided the remuneration for the alleged crime ... The failure to name the person providing the remuneration ... leaves the Defendant without proper notice and leaves him unable to properly defend himself on these charges."

In support of his argument that the indictment provided insufficient notice appellant relies primarily on Art. 21.11, V.A.C.C.P., Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980), King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978), and Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). The State denies that Brasfield, supra, is implicated by appellant's indictment, but asserts alternatively that it should be overruled.

In order to address appellant's contention, we must review the law concerning notice defects in and form and substance exceptions to an indictment. ² To do so, we begin with an examination of the case American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). In that case, the defendant corporation was charged with water pollution. On appeal, the defendant argued that the information was insufficient because it did not allege an offense under the law.

This Court stated the following with regard to defects of form and substance in an indictment:

"[T]hat the State's pleading must allege facts sufficient to ... give the defendant notice of precisely what he is charged with, though relating to the substance of the charge in one sense, ... [is] in contemplation of exceptions under Articles 27.08 and 27.09, supra, grounds for an exception to the form under Articles 27.09(2) and 21.21(7), and not for an exception ... [to the substance of the indictment]." [Emphasis added.]

American Plant Food, supra at 603. As a defect of form, such an exception to failure of the indictment to provide sufficient notice to the defendant must be raised by motion to quash before the trial court and will not be considered absent such an objection on appeal.

In Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), we set forth the test to be applied when a defendant objects to a form defect concerning the notice provided by a charging instrument. In that case, the defendant was charged with obscenity. When he was arrested, two allegedly pornographic films were seized. The information filed against him alleged that he had promoted the sale of an obscene motion picture but did not specify which film of the two seized would be the basis for prosecution.

On appeal, this Court cited American Plant Food, supra, for the proposition that the objection made was directed to the form of the information. We decided that according to Art. 21.19, V.A.C.C.P., ³ when determining whether a defendant had adequate notice to prepare his defense, we must make two inquiries: whether some requisite item of notice was omitted from the charging instrument, and if so, whether the defendant was harmed by the omission. Of course, the record of the particular case must be examined in order to respond to the two questions.

When these two cases are considered together, a conflict with this Court's decision in Brasfield, supra, becomes apparent where the defendant was charged with capital murder, committed in the course of committing kidnapping. On appeal, the defendant contended that the trial court should have granted his motion to quash the indictment since the indictment did not name the alleged kidnap victim.

On original submission, Judge Clinton, writing for the majority, agreed with the defendant on the basis of the decision in King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), and stated, Brasfield, supra at 294:

"The finding and holding of King make clear that a motion to quash on the grounds stated is not directed to omitted elements of the 'in-the-course-of offense' mentioned in the indictment but, rather, to 'a fact which is crucial to the accused's preparation of his defense to the main charge of capital murder.' " [Emphasis in original.]

Judge Clinton added:

"The common thread that runs through recent considerations of adequate notice to an accused when raised by motion is that where the underlying statute denouncing the offense prescribes, or permits conviction on, more than one set of circumstances, 'the accused is not required to anticipate any and all variant facts the state might hypothetically seek to establish,' [citation omitted], but by his motion or exception may insist on 'a specific allegation of what the State will rely upon to convict, '...." [Citations omitted.]

Id., supra at 295.

In an important footnote to the above quoted portion of the opinion, Judge Clinton wrote:

"Since, as pointed out in Garza, supra, a simple and easy manner is statutorily provided for curing a defect of form before announcement of ready, the reluctance of a trial judge to require or the resistance of a prosecuting attorney to make the amendment that is responsive to a motion or exception as to form is most difficult to understand. Alternatively, a statement in the record apprising the accused of the name of the victim of the 'in-the-course-of offense' should suffice to show notice was given."

Brasfield, supra at 295. Thus, on original submission, we held that the defect raised by the defendant, to-wit: failure of the indictment to allege the name of the victim of the kidnapping, was a defect of form which could have been amended or vitiated by a showing in the record that notice was given.

This holding was reversed by this Court in its Opinion on State's Motion for Rehearing, written by Judge Odom. In this opinion, we set forth the following statutory guide:

1. Article 21.01, V.A.C.C.P., and Article I, Sec. 10 of the Texas Constitution require that the indictment be based upon the findings of the grand jury. The findings of the grand jury constitute the substance of the indictment which may not be amended.

2. Article 27.08, V.A.C.C.P., provides that there may be no exception to the substance of an indictment except, among other provisions, that the indictment fails to allege that the defendant committed an offense.

3. Article 27.09, V.A.C.C.P., provides that there may be no exception to the form of an indictment except under Arts. 21.02 and 21.21, which include, among other provisions, that the indictment or information fails to set forth the offense in plain and intelligible words. ⁴

4. Article 28.09, V.A.C.C.P., states that defects of form may be amended.

5. Article 28.10, V.A.C.C.P., provided that defects of substance may not be amended. [This article was amended in 1985 to provide that substance defects may be amended. See discussion in footnote 2, supra.]

After reviewing the preceding statutes, Judge Odom states:

"A strict reading of these provisions would suggest that any defect under Art. 21.02, supra, could be corrected by amendment pursuant to Arts. 28.09 and 28.10, supra. Such a reading, however, would allow amendment of the very facts found by the grand jury as to the commission of the alleged offense, in abrogation of the constitutional protection of the right to indictment by grand jury before prosecution for a felony, ...."

Brasfield, supra at 300. The opinion further states, id. at 302:

"The right to indictment by a grand jury before answering a felony charge and the right to notice ride in tandem."

The opinion went on to hold that the defect in the indictment, specifically omission of the name of the kidnapped victim, was one of substance and could not be amended. Thus, the motion for rehearing was overruled and the indictment was ordered dismissed.

In dissent, Judge Clinton agreed with the majority's finding that matters of form contained in the indictment were subject to amendment while matters of substance were not. Issue was taken, however, with the conclusion that a strict reading of the Code of Criminal Procedure would conflict with the constitutional right to indictment by grand jury and that matters of notice could not be amended. Judge Clinton reasoned that clearly an indictment was required to allege that the defendant committed an offense. Moreover, if an indictment failed to allege an offense in contravention of the constitutional directive to the grand jury, such a substantive defect could not be cured by amendment; only the grand jury could correct its own mistake.

When, however, the indictment did allege an offense but the defendant requested additional factual elaboration, such a defect could be cured by amendment. Judge Clinton writes, id. supra at 306:

"... [B]ecause it is the constitutional function of the grand jury to find and express in writing facts which constitute 'sufficient cause' to commence a felony prosecution, what the grand jury declares becomes a matter of...