State v. Pierce
| Decision Date | 25 September 1991 |
| Docket Number | No. 3-90-213-CR,3-90-213-CR |
| Citation | 816 S.W.2d 824 |
| Parties | The STATE of Texas, Appellant, v. Carroll PIERCE, Jr., Appellee. |
| Court | Texas Court of Appeals |
James M. Pape, San Marcos, for appellant.
Charles Chapman, Crim. Dist. Atty., John A. Costello, Asst. Crim. Dist. Atty., San Marcos, for appellee.
Before POWERS, JONES and ONION *, JJ.
This is an appeal by the State from an order quashing and dismissing an information. See Tex.Code Cr.P.Ann. art. 44.01(a)(1) (Supp.1991). The complaint and information charged Carroll Pierce, Jr. with the misdemeanor offense of driving a vehicle in a public place while intoxicated. See Tex.Rev.Civ.Stat.Ann. art. 6701l-1 (1988). Appellee Pierce filed a motion to quash the information on the basis that the information (1) failed to allege or name a complainant and (2) was based upon a complaint which did "not adequately allege the authority to so act of the person before whom the complaint was sworn and subscribed."
On September 12, 1990, the trial court, apparently after a hearing, granted appellee's motion to quash the information and ordered the information dismissed "with prejudice." 1
On September 19, 1990, the appellee filed a motion to dismiss criminal action No. 32104 on the basis that the motion to quash had been previously granted. The trial court granted the motion, dismissed the cause "with prejudice," and discharged the appellee. The State gave notice of appeal.
The State advances four points of error. In points of error two and three, the State contends that the trial court erred in quashing the information because there is no need to allege or name a complaining witness in the information in a driving while intoxicated prosecution, and that the instant complaint's jurat was sufficient to meet the requirements of the law. The fourth point of error contends that the trial court's "dismissal of the case" was an improper remedy when a motion to quash has been granted. The State, as appellant, contends in the first point of error that the trial court's actions in quashing and dismissing the complaint and information were in error "because the record is silent as to whether the substantial rights of the defendant were prejudiced."
The elements of the offense of driving while intoxicated are (1) a person (2) drives or operates a vehicle (3) in a public place (4) while intoxicated. See Tex.Rev.Civ.Stat.Ann. art. 6701l-1(b) (Supp.1991); see also Shaw v. State, 622 S.W.2d 862, 863 (Tex.Cr.App.1981); Ford v. State, 571 S.W.2d 924, 925 (Tex.Cr.App.1978). There need not necessarily be a "victim" or complaining witness in a driving while intoxicated offense for there to be a violation of the law. Moallen v. State, 690 S.W.2d 244, 246 (Tex.Cr.App.1985). Thus, an information charging a driving while intoxicated offense is not fatally defective for the failure to allege or name a complaining witness in the information itself.
Appellee, in the trial court and in his appellate brief, relied upon Ex parte Lewis, 544 S.W.2d 430 (Tex.Cr.App.1976). Lewis held that a felony information 2 charging aggravated assault with a deadly weapon was fatally defective for failure to allege (1) the name of a complainant and (2) that the defendant caused or threatened to cause harm or injury to another as required "under V.T.C.A. Penal Code sections 22.01 and 22.02." Relief was granted in this post-conviction habeas corpus proceeding on both grounds. The Lewis opinion did make a rather global statement:
We agree, noting that it is fundamental that the name of the complaining witness is a necessary requisite to a valid indictment or information. See Articles 21.02, 21.07 and 21.21 V.A.C.C.P.
The statutes cited above in Lewis dealing with the requisites of an indictment and an information, and the "allegation of name" therein do not support the broad general conclusion stated in Lewis. While the statement might be accurate with regard to the elements of the offense charged in Lewis, it does not have universal application to every criminal offense. The court of criminal appeals recognized this in Moallen, 690 S.W.2d at 245-46. Moallen held that an indictment for credit card abuse was not fundamentally defective for the failure to allege that there was a "victim," because the offense did not require a "victim" for there to be a violation of the law. Moallen found that the court of appeals' reliance upon Lewis was misplaced. Likewise, we find that the reliance of the appellee's and the trial court's reliance on Lewis in the instant case to be misplaced as well. A complaining witness is not an essential element that must be named in the information itself, and the requisites of an information do not require the allegation of a complaining witness. See Tex.Code Cr.P.Ann. art. 21.21 (1989). While a valid complaint is a requisite to a valid information, it is not required that the complaint be referred to in the information. Ashley v. State, 237 S.W.2d 311, 313 (Tex.Cr.App.1951); Johnson v. State, 17 CR 230 (Tex.Ct.App.1884) . The State's second point of error is sustained. 3
The third point of error presents a more difficult question. The pivotal issue is whether the information was based upon a sufficient complaint. It appears that the trial court ruled that the jurat on the complaint was insufficient to show the authority or official character of the officer or person before whom the complaint was sworn to and subscribed.
The complaint (affidavit) in the instant case was signed by a Karen Parker. The jurat on the complaint reflects:
Subscribed and sworn to before me on this 23rd day of January, 1990.
/s/ John A. Costello
Attorney for the State
Hays County, Texas
Article 21.22 of the Code of Criminal Procedure provides:
No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney, who, for that purpose, shall have the power to administer the oath, or it may be made before any officer authorized by law to administer oaths.
Tex.Code Cr.P.Ann. art. 21.22 (1989) (emphasis supplied). 4
The above quoted statute grants limited authority to district and county attorneys to take the oath to a complaint upon which an information may be based. The limited authority would extend to their assistant prosecuting attorneys. See Tex. Gov't Code Ann. §§ 41.101-41.103 (1988). See also Ramirez v. State, 171 Tex.Crim. 507, 352 S.W.2d 131 (1962) (assistant district attorney); Lacy v. State, 160 Tex.Crim. 95, 267 S.W.2d 139 (1954) (assistant district attorney); Moore v. State, 151 Tex.Crim. 542, 209 S.W.2d 192 (1948) (assistant county attorney); Bell v. State, 761 S.W.2d 847, 848 (Tex.App.1988, no pet.) (assistant county attorney). The officers and persons who may generally administer oaths are statutorily listed. Tex.Rev.Civ.Stat.Ann. art. 26 (Supp.1991). The list does not include a district or county attorney or an "attorney for the state."
A valid complaint is a prerequisite to a valid information. Holland v. State, 623 S.W.2d 651, 652 (Tex.Cr.App.1981). Without a valid complaint, the information is worthless. Williams v. State, 133 Tex.Crim. 39, 107 S.W.2d 996, 977 (1937). A jurat is the certificate of the officer before whom the complaint is made stating that it was sworn to and subscribed by the affiant before the officer. Carpenter v. State, 153 Tex.Crim. 99, 218 S.W.2d 207, 208 (1949). A jurat is essential, for without it, the complaint is fatally defective and will not support an information. Shackelford v. State, 516 S.W.2d 180 (Tex.Cr.App.1970). The jurat must be dated and signed by the official character. See 22 Tex.Jur.3d, Criminal Law, Section 2266 at 490. Thus, a complaint not sworn to before any official or person in authority is insufficient to constitute a basis for a valid conviction. Nichols v. State, 171 Tex.Crim. 42, 344 S.W.2d 694 (1961) (citing Purcell v. State, 317 S.W.2d 208 (Tex.Cr.App.1958)); see also Eldridge v. State, 572 S.W.2d 716, 717, n. 1 (Tex.Cr.App.1978); Wheeler v. State, 172 Tex.Crim. 21, 353 S.W.2d 463 (1961); Morey v. State, 744 S.W.2d 668 (Tex.App.1988, no pet.). Even where the jurat on the complaint reflects that it was sworn to before a named person but does not show the authority of such person to act, the complaint is void. Johnson v. State, 154 Tex.Crim. 257, 226 S.W.2d 644 (1950); Smola v. State, 736 S.W.2d 265, 266 (Tex.App.1987, no pet.). The complaint is also void when the jurat contains no signature but only shows the office such as "County Attorney of Jones County, Texas." Carter v. State, 398 S.W.2d 290 (Tex.Cr.App.1966). When a jurat showed that the complaint had been sworn to before "Lavern I. McCann, Hockley County, Texas," the complaint was insufficient to support the information. Carpenter, 218 S.W.2d at 208-09. In the early case of Neiman v. State, 29 Tex.App. 360, 16 S.W. 253 (1891), the complaint was sworn to before "Wm. Greer J.P." It was held that the letters "J.P." could not be inferred to mean Justice of the Peace and an official who had the authority to administer the oath.
When a jurat on a complaint shows that the oath was administered to the affiant by a party designated as county attorney but who in reality is an assistant county attorney, the complaint is void. Thomas v. State, 169 Tex.Crim. 369, 334 S.W.2d 291, 292 (1960); see also Aleman v. State, 162 Tex.Crim. 265, 284 S.W.2d 719 (1956); Stalcup v. State, 99 Tex.Crim. 415, 269 S.W. 1044, 1045 (1925). When the assistant or deputy is authorized by law to administer the oath himself, he may not administer it in the name of his principal and may not certify that the principal administered the oath by and through him as an assistant. Goodman v. State, 85 Tex.Crim. 279, 212 S.W. 171 (1919).
In the instant case, the jurat on the complaint reflects that ...
To continue reading
Request your trial
-
Miller v. State
...or information for a defect of form or substance. See State v. Fass, 846 S.W.2d 934, 935 (Tex.App.--Austin 1993, no pet.); State v. Pierce, 816 S.W.2d 824, 830-31 (Tex.App.--Austin 1991, no pet.). In the instant case, as noted, the trial court, after a hearing, granted appellant's first ame......
-
Edwards v. State, 08-92-00150-CR
...other party seeking review, to see that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d); State v. Pierce, 816 S.W.2d 824, 831 (Tex.App.--Austin 1991, no pet.); Burns v. State, 761 S.W.2d 486 (Tex.App.--Corpus Christi 1988, pet. ref'd); Alvarado v. State......
-
Muennink v. State
...the party seeking review to see that a sufficient record is presented to show error requiring reversal. TEX.R.APP. P. 50(d); State v. Pierce, 816 S.W.2d 824, 831 (Tex.App.--Austin 1991, no writ). In the absence of a record of the hearing on the motion to quash, we must presume that the ruli......
- Ho v. State
-
Table of cases
..., 210 S.W.3d 643 (Tex. Crim. App. 2006), §11:142 State v. Ordonez , 156 S.W.3d 850 (Tex. App. El Paso 2005), §11:125 State v. Pierce , 816 S.W.2d 824 (Tex.App.—Austin 1991), §§16:14, 16:24 State v. Ross , 953 S.W.2d 748 (Tex.Cr.App. 1997), §14:164 State v. Ruiz, 13-13-00507-CR (Tex. App.—Co......
-
Table of cases
..., 210 S.W.3d 643 (Tex. Crim. App. 2006), §11:142 State v. Ordonez , 156 S.W.3d 850 (Tex. App. El Paso 2005), §11:125 State v. Pierce , 816 S.W.2d 824 (Tex.App.—Austin 1991), §§16:14, 16:24 State v. Ross , 953 S.W.2d 748 (Tex.Cr.App. 1997), §14:164 State v. Sanchez , 135 S.W.3d 698 (Tex.App.......
-
Charging Instruments
...County, Texas,” even if the person signing would be authorized if correctly identiied (here, the county attorney). [ State v. Pierce , 816 S.W.2d 824, 828 (Tex.App.—Austin 1991), no pet.] However, this issue cannot be raised for irst time in a subsequent DWI prosecution. [ Isenberg v. State......
-
Charging Instruments
...County, Texas,” even if the person sign-ing would be authorized if correctly identiied (here, the county attorney). [ State v. Pierce , 816 S.W.2d 824 (Tex.App.—Austin 1991).] However, this issue cannot be raised for irst time in a subsequent DWI prosecution. [ Isenberg v. State , 853 S.W.2......