Sanchez v. State

• Decision Date: 12 November 2003
• Docket Number: No. 050-01.,050-01.
• Citation: 120 S.W.3d 359
• Parties: Arthur Garcia SANCHEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

120 S.W.3d 359

Arthur Garcia SANCHEZ, Appellant, v. The STATE of Texas.

No. 050-01.

Court of Criminal Appeals of Texas, En Banc.

November 12, 2003.

Mark Stevens, Stephanie L. Stevens, San Antonio, for Appellant.

Daniel Thornberry, Assistant District Attorney, San Antonio, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

WOMACK, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

This case presents the issue, whether the doctrine of a "right not recognized" permits a defendant to complain for the first time on appeal that the charging instrument failed to allege the required culpable mental state. We hold that it does not.

We first must discuss the procedural history of this case. The appellant originally was charged with official oppression under Penal Code section 39.03(a)(3), (c). The appellant filed a motion to quash the indictment, which the trial court granted in part and denied in part. The State amended the indictment to allege that:

on or about the 1st day of August, A.D., 1994, through on or about the 15th day of February, A.D., 1995, ARTURO SANCHEZ, while acting under color of his office as a public servant, to-wit: an officer, employee and agent of government, namely: Chairman and board member of the Board of Trustees of VIA METROPOLITAN TRANSIT, did intentionally subject DIANE GONZALEZ to sexual harassment, namely: unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature, by stating to DIANE GONZALEZ (hereinafter referred to as "COMPLAINANT") to the effect: that if COMPLAINANT did not have a sexual affair with him he would fire her; that to get an office, a secretary and a raise COMPLAINANT must have a sexual affair with him; that he had a sexual affair with another VIA employee and he would have a sexual affair with COMPLAINANT also; that he would have a sexual affair with COMPLAINANT; that COMPLAINANT should have a sexual affair with him because people already thought they were having a sexual affair; that COMPLAINANT must put on lipstick; that he would like COMPLAINANT to wear low-cut dresses; that he would like COMPLAINANT to wear black pantyhose and silk blouses because she looked better in them; that upon seeing a bruise on COMPLAINANT'S leg, that he asked COMPLAINANT if she was bruised from rough sex with her husband, and that he liked rough sex; and by touching DIANE GONZALEZ with his hand on her face, submission to which was explicitly and implicitly made a term and condition of DIANE GONZALEZ' exercise and enjoyment of her rights, privileges, powers and immunities.

The appellant filed a motion to quash the amended indictment, which the trial court denied. The jury convicted the appellant and assessed punishment at one year in county jail and a $300 fine. The sentence was suspended and the appellant was placed on community supervision for two years.

On appeal (Sanchez I), the court of appeals reversed, holding that the statute's provision regarding sexual harassment was (1) unconstitutionally vague on its face and as applied in violation of the Fourteenth Amendment to the United States Constitution and (2) unconstitutionally overbroad in violation of the First Amendment to the United States Constitution.¹ We granted review (Sanchez II) and, holding that the provision in question was constitutional, reversed the court of appeals' judgment and remanded the cause for proceedings consistent with our opinion.² Of relevance to this case is our discussion in Sanchez II of the required mental states under section 39.03(a)(3), (c). We held that, with respect to the nature of conduct, "the statute requires intent on the part of the perpetrator that the conduct be of a sexual nature, not merely that the recipient perceive the conduct as sexual."³ The required culpable mental state for the "unwelcome" nature of the conduct is that the defendant must be aware that his conduct is in fact unwelcome.⁴

On remand (Sanchez III), the court of appeals permitted the appellant to file a new brief, in which the appellant raised two new points of error. He claimed that the trial court erred in overruling his motion to quash because the indictment did not charge an offense and because the indictment did not specify what "rights, privileges, powers, or immunities" were at issue in the case. The court of appeals sustained these points and again reversed the conviction and remanded the cause.⁵ We granted the State's petition for discretionary review to determine whether the appellant preserved for review his complaint that the indictment failed to allege a culpable mental state, and whether the court of appeals conducted the proper harm analysis in sustaining the appellant's second point of error.⁶

Preservation of Error

We express no opinion as to whether the indictment was defective. The question is whether the appellant preserved his first complaint about the indictment for appeal. In other words, did his motion raise a substantive defect in the indictment as required under Code of Criminal Procedure article 1.14(b)?

The article provides:

If 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 any other postconviction proceeding ....⁷

In Cook v. State, we discussed the historical significance of article 1.14(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.... This rule developed over more than a century of decisions in which we interpreted art. I, § 10 [of the Texas Constitution] to created a "constitutional" requirement that a charging instrument allege all elements of the offense in order to constitute an indictment.... Accordingly, where the charging instrument omitted an element of the offense the indictment was void and the trial court lacked jurisdiction....

Frustrated with the common practice of defendants withholding substantive defects at trial 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 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 [Texas Code of Criminal Procedure article 1.14].... Art. 1.14(b) automatically took effect upon the voters [sic] approval of the amendment to art. V, § 12.⁸

Thus, the appellant had an affirmative duty to object to any defect in the indictment before trial, and a failure to do so would prevent him from raising a claim of a defect for the first time on appeal.

The court of appeals held in Sanchez III that the appellant's motion to quash was sufficient to preserve the right to complain of the defect in the indictment for appellate review despite the fact that the motion did not specify the indictment's failure to allege the required mental state of awareness as required by Sanchez II. The court provided two reasons for its holding.

First, based on the language of the motion, the appellant "was clearly seeking to ascertain the nature and the cause of the accusations against him and it is apparent from the context that the trial court and the prosecutor knew or should have known the basis of appellant's motion."⁹ We disagree.

The fifth paragraph of the motion complained that the indictment failed to allege criminal conduct:

The indictment is defective because it is unconstitutionally vague in violation of the Fourteenth Amendment of the United States Constitution. The vagueness allows the prosecutors to use their own judgment, aversions, or preferences to determine what statements are unwelcome sexual advances and requests for sexual favors.... Because the indictment attempts to criminalize noncriminal conduct and provides no guidance on how to proceed, it is defective.

The motion does not object to the specific defect of which the appellant now complains—that the indictment fails to allege a culpable mental state. The trial court held a pretrial hearing on the motion in which defense counsel made the following argument with respect to Paragraph Five of the motion:

We still don't have definitions of unwelcomed [sic] sexual acts or requests for sexual favors. So, what we have is the prosecutor has put in what they believe to be those items, and when you look at the amended indictment, they seem to be criminalizing a broad spectrum of conduct here that I think a normal person of ordinary intelligence would not find to be criminal.

The argument focuses on the definitions of the elements of "unwelcome" and "sexual acts." There is no discussion of the indictment's omission of the culpable mental state for the "unwelcome" nature of the conduct. Based on the language in the motion and defense counsel's supporting arguments reflected in the record, the court erred in summarily concluding...