Studer v. State

Decision Date21 November 1990
Docket NumberNo. 1077-88,1077-88
Citation799 S.W.2d 263
PartiesJimmy Randolph STUDER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

B.W. Cruce, Jr., Mesquite, for appellant.

John Vance, Dist. Atty., and Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This case presents us with our first opportunity to interpret the 1985 amendments to Art. 1.14, V.A.C.C.P., and Art. V, § 12, Tex.Const., concerning defects in charging instruments.

Appellant was charged by information with the misdemeanor offense of indecent exposure, alleged to have been committed on May 7, 1987. V.T.C.A. Penal Code § 21.08. He was found guilty in a bench trial, upon his plea of nolo contendere, and the trial judge assessed punishment at six months confinement in the county jail, probated. On direct appeal to the court of appeals, appellant raised one point of error contending the information upon which he was convicted was fatally defective. This contention had not been raised in the trial court. The court of appeals affirmed appellant's conviction. Studer v. State, 757 S.W.2d 107 (Tex.App.--Dallas 1988). We granted appellant's petition for discretionary review to consider whether the court of appeals "erred in holding that the defect in the information was not a fundamental defect that can be raised for the first time on appeal." We will affirm the judgment of the court of appeals.

As noted, appellant was charged with and convicted of indecent exposure, which offense is defined in the Penal Code, section 21.08, as:

A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

Appellant argued before the court of appeals and also argues here that since the information failed to allege the act or acts relied upon to constitute recklessness in compliance with Art. 21.15, V.A.C.C.P., the information failed to confer jurisdiction on the trial court.

Article 21.15 provides:

Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

The information in this cause charged, in pertinent part, that appellant:

did unlawfully then and there intentionally and knowingly expose his genitals to R.E. Bishop, hereinafter called complainant, with intent to arouse and gratify the sexual desire of the said [appellant], and the [appellant] acted recklessly and in conscious disregard of whether another person was present who would be offended and alarmed by such act ...

The court of appeals agreed with appellant that the information was defective for failing to "allege, with reasonable certainty, the act or acts relied upon to constitute recklessness" and cited Gengnagel v. State, 748 S.W.2d 227 (Tex.Cr.App.1988). 1 Studer, 757 S.W.2d at 109. The court held, however, that because of the amendments to Art. 1.14, V.A.C.C.P, and Art. V, § 12, Tex.Const., the defect in the information was of a nonjurisdictional nature and was therefore waived by appellant's plea of nolo contendere. Id. at 111. See Art. 44.02, V.A.C.C.P.; Tex.R.App.Proc. 40(b)(1) and Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972) (where plea of guilty is voluntarily and understandingly made, all nonjurisdictional defects are waived).

Article V, § 12(b) of the constitution provides:

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 the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause. 2

The pertinent portion of Art. 1.14 provides:

(b) 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. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 [V.A.C.C.P.]. 3 (emphasis supplied).

The pivotal issue we must first resolve before specifically addressing appellant's ground for review is what is meant by the terms "indictment" and "information" under the amendment to Art. V, § 12, of the Texas Constitution and newly enacted Art. 1.14(b), V.A.C.C.P. Does the wording: "An indictment or information is a written instrument ... charging a person with the commission of an offense" mean it is an instrument that alleges all the constituent elements of an offense or something else (specifically something less). The disposition of this ground for review depends on whether an instrument which lacks allegations of acts constituting recklessness suffers a defect of form or substance but is still an "information", or whether because it fails to allege those acts, and therefore fails to allege an element of the offense of indecent exposure, it is therefore not an "information". 4

For more than a century cases have come from this Court holding that a defect in the "substance" of a charging instrument may be raised for the first time on appeal for it renders the charging instrument "fundamentally defective." See Ex parte Pruitt, 610 S.W.2d 782, 785 (Tex.Cr.App.1981), Pospishel v. State, 95 Tex.Cr.R. 625, 255 S.W. 738 (1923), White v. State, 1 Tex.Cr.R. 211, 215 (Ct.App.1876). We have found "substance" defects in a myriad of cases. 5 Moreover, since 1965, 6 Art. 27.08, V.A.C.C.P., has statutorily defined substance defects in an indictment or information. Art. 27.08 in its entirety states:

EXCEPTION TO SUBSTANCE OF INDICTMENT

There is no exception to the substance of an indictment or information except:

1. That it does not appear therefrom that an offense against the law was committed by the defendant;

2. That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment;

3. That it contains matter which is a legal defense or bar to the prosecution; and

4. That it shows upon its face that the court trying the case has no jurisdiction thereof. 7

The changes in the Code of Criminal Procedure which occurred simultaneously with the passage of the constitutional amendment, however, did not encompass Art. 27.08 and, therefore, did not change the definition or our understanding of what constitutes a substance exception. 8

A substance defect was considered "fundamental error" since a charging instrument with such a defect failed to confer jurisdiction upon the trial court, and any conviction had upon that instrument was therefore void. Also apparent from the caselaw is that this Court has used the terms "substance defect", "fundamental error", and "fatally defective" interchangeably when addressing errors in charging instruments which led to void convictions.

A consolidation of the holdings from this review of caselaw and Art. 27.08 reveals, germane to the discussion at hand that a substance defect is, among other things, a failure to allege an element of an offense in the charging instrument. Stated conversely, a failure to allege an element of an offense in an indictment or information is a defect of substance. The amendments to Art. 1.14, V.A.C.C.P., and Art. V, § 12 did not, on their face, change this long-standing precedent.

The amendment to Art. V, § 12 also gave the legislature the authority to regulate the practices and procedures relating to indictments and informations. As stated previously, Art. V, § 12 provides in pertinent part:

The practice and procedures relating to the use of indictments and information, including their contents, amendment, sufficiency, and requisites, are as provided by law. 9

Both before and contemporaneous with the 1985 amendment to Art. V § 12, the legislature promulgated such practice and procedures in the Code of Criminal Procedure. The amendment to Art. V, § 12 also addressed the obtainment of jurisdiction by the trial court. The section now states that jurisdiction is conferred on the trial court by the presentment of an indictment or information.

When Art. V, § 12 is read in conjunction with the code provisions regulating the practices and procedures governing charging instruments, it is clear the amendment to Art. 1.14 did not change what constitutes a substance defect, but rather only its effect. The change in Art. 1.14(b) requires, among other things, that substance exceptions be raised pre-trial or otherwise the accused has forfeited his right to raise the objection on appeal or by collateral attack. If omitting an element from an indictment is still a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element.

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