Martinez v. State

• Decision Date: 16 December 1987
• Docket Number: No. 1357-85,1357-85
• Parties: Billy Ray MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 687

742 S.W.2d 687

Billy Ray MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 1357-85.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 16, 1987.

George H. Tyson, Jr., Houston, for appellant.

Peter C. Speers, III, Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

Because the five count indictment that pertains to this cause, as it existed when it was filed in the District Clerk's office, is so important to our discussion, we will attach a copy of it to this opinion as "Appendix A".

The indictment reflects that reference was made therein to a deed that expressly related only to the two forgery counts. The deed was to be attached to the indictment in the form of "Exhibit A" and filed with the indictment. However, it was never filed with the indictment. Another and different "Exhibit A", which appears to be in all things identical to the above "Exhibit A", was later caused to be stapled to the indictment by an assistant district attorney of Montgomery County. This was done without the knowledge of the trial judge, appellant, or his attorney.

After the jury was selected in this cause, but out of its presence and prior to the indictment being read to the jury by the assistant district attorney, see Art. 36.01(1), V.A.C.C.P., Billy Ray Martinez, hereinafter appellant, motioned the trial judge to dismiss the entire indictment because of prosecutorial misconduct, which motion the trial judge denied. However, pursuant to motion of the then District Attorney, the trial judge dismissed the two forgery counts from the indictment. Thereafter, appellant was tried and convicted of the remaining three counts of the indictment. Punishment was assessed by the jury at six years' confinement in the Department of Corrections on the two misapplication of fiduciary counts and at ten years' confinement in the Department of Corrections, probated, on the felony theft count.

Appellant thereafter appealed to the Ninth Court of Appeals (Beaumont), which ordered the convictions that he had sustained reversed and ordered the indictment dismissed. See Martinez v. State, 700 S.W.2d 27 (Tex.App.--9th Dist.1985).

The court of appeals not only found that the assistant district attorney acted wrongfully, it also found that his conduct was so offensive and egregious that it caused the entire trial to be a nullity. The court of appeals sustained appellant's first ground of error which asserted the following: "The trial court erred in denying appellant's motion to dismiss the [entire] indictment for prosecutorial misconduct". In doing so, the court of appeals totally agreed with appellant's counsel's argument that the misconduct of the assistant district attorney was incurable error because, "First of all, ... [the copy of the deed that related to the two forgery counts in the indictment, which counts were dismissed on motion of the District Attorney prior to trial,] was an integral part of the remaining three counts of the indictment as it formed the basis of, and was material to, those counts." (Page 14 of appellant's counsel's brief.) The court of appeals then reversed the trial court's judgment and ordered the indictment dismissed.

On direct appeal, appellant's counsel also urged the following grounds of error, in addition to the above ground of error, why the trial court's judgment should be reversed: "II. THE FIRST MISAPPLICATION COUNT OF THE INDICTMENT IS FUNDAMENTALLY DEFECTIVE BECAUSE IT FAILS TO SET OUT THE DEED UPON WHICH THE ALLEGED MISAPPLICATION WAS BASED ACCORDING TO ITS TENOR. III. THE SECOND MISAPPLICATION COUNT OF THE INDICTMENT IS FUNDAMENTALLY DEFECTIVE BECAUSE IT FAILS TO SET OUT THE DEED UPON WHICH THE ALLEGED MISAPPLICATION WAS BASED ACCORDING TO ITS TENOR. IV. THE THEFT COUNT OF THE INDICTMENT IS FUNDAMENTALLY DEFECTIVE BECAUSE IT FAILS TO SET OUT THE DEED UPON WHICH THE ALLEGED THEFT WAS BASED ACCORDING TO ITS TENOR." (Pages 2 and 3 of appellant's brief.) Counsel also presented fourteen other grounds of error to the court of appeals, which have not yet been reviewed by that court.

Based upon its statements, that "[The deed which was] [a]n integral part of the indictment on which our appellant was convicted was never presented to or heard by the grand jury", and "At this point in time, no pleader can perform the duties which devolve upon and are confided to the grand jury and to it alone, see Brasfield v. State, 600 S.W.2d 288, 299 (Tex.Crim.App.1980); Sharp v. State, 6 Tex.App. 650, 653 (1879)", we understand the court of appeals to mean that an element of each of the offenses for which appellant was convicted required a copy of the deed to be attached to the indictment that was presented to the Grand Jury and because the Grand Jury did not have the benefit of the second "Exhibit A" this caused each of the three counts on which appellant was convicted to be void.

We granted the State Prosecuting Attorney's petition for discretionary review in order to make the determination whether the court of appeals' holdings were correct. Although we do not disagree with the court of appeals' implicit finding that the assistant district attorney acted wrongfully, given the state of the record, we cannot agree that his actions caused the entire indictment to be void and that the trial became a nullity.

The record does not actually reflect that the new "Exhibit A", which the assistant district attorney caused to be stapled to the indictment, is an identical copy of the "Exhibit A" that was originally paper clipped to the indictment when the indictment was signed by the foreman of the Grand Jury. However, the record makes it obvious to us that the parties treated it as being an identical copy of the original "Exhibit A".

The indictment reflects that appellant was charged with committing two counts of misapplication of fiduciary property and funds while then acting in the capacity of a trustee of the funds; with committing one count of felony theft; and with committing two counts of forgery, by unlawfully (1) making and (2) delivering a deed to certain church property of which he was a trustee. The misapplication of fiduciary property and funds counts and the felony theft count did not expressly refer to any deed. The forgery counts did. The deed that related to the forgery counts was referenced in the original indictment after each forgery count in the following manner: "See Exhibit A which is appended hereto and incorporated herein for all purposes." This expressly referred to a copy of the deed that was the basis of the forgery counts. However, when the indictment was filed by the clerk, "Exhibit A", which consisted of a copy of the deed, was not attached or stapled to the indictment. The record does not reflect or indicate what happened to the original "Exhibit A". The assistant district attorney attempted to cure this omission by causing to be stapled to the indictment another "Exhibit A", which appears to be identical to the original "Exhibit A". After appellant's counsel became aware of what the assistant district attorney had done, he motioned the trial judge to dismiss the entire indictment. After a hearing was held on appellant's motion to dismiss the entire indictment, which motion was overruled, the then District Attorney, who was the lead prosecutor, motioned the trial judge to dismiss the two forgery counts from the indictment, which motion was granted by the trial judge. Appellant was thereafter tried and convicted on the remaining three counts of the indictment.

We point out that this is not a case involving the situation where the original indictment has been lost or misplaced. For statutory and case law involving a lost or misplaced indictment, see Arts. 20.22 and 21.25, V.A.C.C.P.; Bennett v. State, 77 Tex.Cr.R. 610, 179 S.W. 713 (1915); Morrison v. State, 43 Tex.Cr.R. 437, 66 S.W. 779 (1902); Hollingsworth v. State, 87 Tex.Cr.R. 399, 221 S.W. 978 (1920); Morris v. State, 96 Tex.Cr.R. 337, 257 S.W. 899 (1924); Clark v. State, 717 S.W.2d 910, 919 (Tex.Cr.App.1986).

Because we do not find where it was ever contested in the trial court that the indictment was not duly presented in open court and entered on the minutes of the court, we will apply the presumption of regularity to that phase of the case. E.g., Hardeman v. State, 552 S.W.2d 433, 436 (Tex.Cr.App.1977). Cf. Sommerlatte v. State, 39 S.W.2d 38, 39 (Tex.Cr.App.1931).

In this instance, only the attachment to the original indictment, "Exhibit A", a copy of a deed, became lost or misplaced after the foreman of the Grand Jury signed the indictment and before the indictment was filed.

Therefore, we find and hold that this omission from the indictment did not cause the trial court not to have jurisdiction over the cause.

However, if the missing attachment was a necessary element of each of the alleged offenses, then, of course, this would cause the indictment not to state any offense against appellant. It would then be fundamentally defective and none of appellant's convictions would be valid.

In this cause, apparently aware of this Court's decisions that before a valid conviction can be obtained for the offense of forgery, the indictment must set out the alleged forged instrument according to its tenor, see, for example, Ex parte Davis, 642 S.W.2d 179 (Tex.Cr.App.1982); Harris v. State, 199 S.W.2d 522 (Tex.Cr.App.1947); Terry v. State, 471 S.W.2d 848, 849-850 (Tex.Cr.App.1971); Ziegler v. State, 50 S.W.2d 317 (Tex.Cr.App.1932), also see 22 Tex.Jur.3rd 654, § 2364; 41 Am.Jur.2d 969, § 143; 42 Corpus Juris Secundum, Indictments and Informations 1055, Section 144, prior to trial, the then District Attorney motioned the trial judge to dismiss the two forgery counts from the indictment, which motion the trial judge granted.

Given what this Court has stated and held in the past, it should not now be questioned that...