State v. Eaves

• Decision Date: 05 December 1990
• Docket Number: No. 232-90,232-90
• Citation: 800 S.W.2d 220
• Parties: STATE of Texas, Appellant, v. Rickey J. EAVES, Appellee.
• Court: Texas Court of Criminal Appeals

Page 220

800 S.W.2d 220

STATE of Texas, Appellant, v. Rickey J. EAVES, Appellee.

No. 232-90.

Court of Criminal Appeals of Texas En Banc.

Dec. 5, 1990.

Jeff Blackburn, Larry B. Ladd, Amarillo, for appellant.

Dale W. Elliott, County Atty., and T.D. Hammons, Asst. County Atty., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The narrow question presented in this cause is whether the State is entitled to appeal an order setting aside an information upon a finding that the statute underlying the prosecution is unconstitutional. The answer depends on whether in the circumstances of this cause the order entered "dismisses" an information within the meaning of Article 44.01(a)(1), V.A.C.C.P. ¹ We will hold that the order does constitute a "dismissal" such as to entitle the State to make its appeal.

I

The information charged that on or about May 6, 1989 appellee remained on premises licensed by the Texas Alcoholic Beverage Commission to serve alcoholic beverages while he was intoxicated and was the permittee under said license. V.T.C.A. Alcoholic Beverage Code, §§ 1.05 and 104.01(5).

Appellee filed and presented an "exception" challenging the constitutionality of the general proscription in § 104.01, supra, on grounds that it is so vague as to deprive him of rights to due process and due course of law guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and by Article I, § 19 of the Constitution of the State of Texas, respectively. ² His prayer is that the trial court sustain the exception and "Order the information set aside."

Upon hearing the trial court sustained the exception and ordered that the information be "set aside."

The State timely filed written notice of appeal, certifying that its appeal "is to seek review of an order of the trial court which dismissed all or part of the information filed in this cause." ³ It did not seek a stay of proceedings.

On appeal the State contended in its sole point of error that the statutory provision is not unconstitutionally vague. Appellee countered with a motion to dismiss and second reply point asserting that the court of appeals lacked jurisdiction to consider the appeal. He contended that the State was required to attempt to amend the information as a predicate to appeal, citing State v. Hancox, 762 S.W.2d 312 (Tex.App.--Fort Worth 1988) PDR refused, and because the order below only "set aside" the information it was not a "dismissal" contemplated by Article 44.01(a)(1).

After reviewing his arguments and sparse authority touching Article 44.01(a)(1), the court of appeals opined that "the critical factor" is whether the order "effectively terminates the prosecution," reasoned that since the order set aside the information on grounds that the statute creating the offense is unconstitutional "it was no longer possible to charge an offense under the statute," so the legal effect of the order is "equivalent to dismissal." Accordingly, the court of appeals concluded that the order "effectively terminated the prosecution and was therefore appealable by the State." State v. Eaves, 786 S.W.2d 396 (Tex.App.--Amarillo 1980).

This Court refused a petition for discretionary review in Hancox v. State, supra, but did grant review in State v. Moreno, 769 S.W.2d 661 (Tex.App.--Corpus Christi 1989), which agreed with Hancox. Because appellee claims the decision of the court of appeals in this cause is in conflict with decisions in Moreno and Hancox, the Court granted review to determine whether there is indeed tension between them and, if so, to resolve the conflict. Tex.R.App.Pro. Rule 200(c)(1) and (2).

II

At the outset it is helpful to survey relevant procedural statutes to comprehend guiding concepts and proper terminology pertaining to treatment of defensive pleadings and motions. In this connection we note that currently germane statutes are substantially those of progenitors in the Old Code, albeit some since rearranged, with additional provisions made along the way. ⁴

Article 27.02 delineates pleading and motions of defendant; germane here are the first and last subdivisions, viz:

(1) A motion to set aside or an exception to an indictment or information for some matter of form or substance;

* * * * * *

(8) Any other motions or pleadings that are by law permitted to be filed. ⁵

That the office or function of a motion to set aside a charging instrument is to cause it to be vacated, see note 5, ante, is demonstrated by the kinds of specific grounds upon which it may be based under Article 27.03. ⁶

An "exception" to a charging instrument is a formal legal objection asserting the charge is insufficient. Black's Law Dictionary, supra, at 667-668, 813, 1570; see Webster's New Collegiate Dictionary (1979) 394. In civil practice there was a general exception (demurrer) for want of substance, as well as a special exception to form of the action. Cochran v, People's Nat. Bank, 271 S.W. 433, at 434 (Tex.Civ.App.--Amarillo 1925), citing George v. Vaughan, 55 Tex. 129, at 131 (1881). ⁷

Our codes of criminal procedure retained the practice of an exception to substance in Article 27.08, and an exception to form in Article 27.09, but restrictively specified respective grounds and causes for each. ⁸ That there are clear disparate reasons specified for an exception to substance and an exception to form suggests that where the trial court finds merit in an exception the consequences may well depend on the circumstances. Indeed, Chapter Twenty-Eight, Articles 28.04ff so provided. ⁹

Formerly the Legislature mandated: "No matter of substance can be amended." Article 28.10, C.C.P. 1965. Accordingly, in a misdemeanor case should an exception to substance be sustained the proper procedure was to discharge defendant pursuant to Article 28.04, pending preparation of and filing a correct information based on the original complaint, arrest of accused and commencement of a new prosecution. The rule applied as well to exceptions by the State as by defendant. See, e.g., Pugh v. State, 289 S.W.2d 929 (Tex.Cr.App.1956); Turner v. State, 21 Tex.App. 198, 18 S.W. 96 (1886). ¹⁰ If an exception was sustained on ground that "there is no offense against the law charged therein," defendant was discharged unless a complaint be filed accusing him of a penal offense. Article 27.07.

But if the exception was "only on account of form, the [charging instrument] shall be amended, if defective, and the cause proceed upon such amended charge." Article 28.09, C.C.P.1965. Rowlett v. State, 156 Tex.Crim. 44, 238 S.W.2d 781, at 782 (1951); see Bowen v. State, 28 Tex.App. 498, 13 S.W. 787 (1890), viz:

This defect in the information, having been pointed out by exception, should have been cured by amendment, or the exception should have been sustained.... [B]ut, said defect being one of form, and amendable, the prosecution will not be dismissed, but the cause is remanded.

Id., 13 S.W. at 788.

Against this background of jurisprudence and pursuant to constitutional amendment, effective December 1, 1985, the Legislature revised some statutes pertinent to our inquiries.

Relative to exceptions, Article 28.09 now provides:

If the exception to an indictment or information is sustained, the information or indictment may be amended if permitted by Article 28.10 of this code, and the cause may proceed upon the amended indictment or information.

Under prescribed circumstances, Article 28.10 permits amendment to "a matter of form or substance in an information or indictment;" but should defendant object, the instrument may not be amended to charge "an additional or different offense," or so as to prejudice "the substantial rights of the defendant."

As always amendments must be made with leave of court and under its direction. Article 28.11.

Finally, as to dismissing prosecutions, our statutes have consistently provided only two situations in which dismissals are specifically authorized: Article 32.01, where defendant is detained in custody or held to bail the prosecution may be dismissed if indictment or information is not presented at the next term of court thereafter; Article 32.02, where prosecuting attorney may, by permission of the trial court, dismiss a criminal action upon filing among the papers in the case a written statement giving reasons for such dismissal. ¹¹

III

In the instant cause appellee entitled his pleading an "exception," alleged that § 104.01 is unconstitutional in that it is impermissibly vague and overbroad, so that to prosecute him on the information would violate his rights to due process and due course of law, and prayed that the information be "set aside." The pleading does not state a precise ground specified in either Article 27.03 (motion to set aside) or Article 27.08 (exception to substance). But in light of its content and prayer it may reasonably be regarded as coming within contemplation of Article 27.03 ("any other grounds authorized by law") or Article 27.02 ("any other motions or pleadings that are by law permitted to be filed").

When the trial court sustained the "exception" and ordered the information "set aside," Article 28.04 mandated that appellee be discharged; he "was, in law, discharged from the accusation against him," and there was then "no case pending against him." Pugh v. State, supra, at 930. Unless and until a new information is filed "there was no case in the court which he was bound to answer." Turner v. State, supra. Thus, as surely as if the information had been "dismissed," the prosecution, the criminal action, terminated.

However, as in the court of appeals appellee contends here that the State was required to seek to amend the information before being entitled to appeal under Article 44.01(a)(1). He relies on State v. Hancox and State v. Moreno, both supra. Each is readily distinguishable: in Hanc...