                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00169-CR



       STEPHEN W. PENDERGRASS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 115th District Court
               Marion County, Texas
               Trial Court No. F14437




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                MEMORANDUM OPINION
        After Stephen W. Pendergrass entered a plea of guilty in October 2013 to the charge of

delivery of a controlled substance, the trial court entered an order placing him on deferred

adjudication community supervision for a period of five years. Less than a year later (in April

2014), the State moved to adjudicate guilt alleging that Pendergrass had violated five of the

conditions of his community supervision. At the hearing on this motion, Pendergrass (who was

the sole witness) entered a plea of “true” to all five of the alleged violations. The trial court

adjudicated Pendergrass guilty and sentenced him to fifteen months’ confinement in state jail.

        On appeal, Pendergrass does not fault the procedures at the hearing to adjudicate his

guilt, but rather, contends that the original indictment was fundamentally defective because it

failed to name the person to whom he was alleged to have delivered the controlled substance.

        We affirm the trial court’s judgment because Pendergrass waived his complaint regarding

the indictment.

Pendergrass Waived his Complaint Regarding the Indictment

        The pertinent portion of Pendergrass’ indictment in this case alleged that “on or about the

25th day of July, 2012,” he “did then and there deliver, by actual transfer, to Confidential

Informant #7-25-12, a controlled substance . . . .” In his sole point of error, Pendergrass

contends that the indictment to which he pleaded guilty was insufficient as a matter of law

because the identity of the person to whom it was alleged that Pendergass had delivered the

controlled substance was so “vague . . . general and non-descriptive as to constitute no allegation

of a name at all . . . .”


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       Pendergrass does not take into account Article 1.14 of the Texas Code of Criminal

Procedure, which provides in part that

       [i]f 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.

TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005). Indictments charging a person with

committing an offense, once presented, invoke the jurisdiction of the trial court, and jurisdiction

is no longer contingent on whether the indictment contains defects of form or substance. Teal v.

State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007). Thus, because all substantive defects in

indictments are subject to waiver, the existence of such defects does not render the indictment

“void.” See id. at 178.

       As a general rule, the original plea cannot be attacked on an appeal from the revocation

proceedings in a deferred adjudication context. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim.

App. 2001). However, an exception to this general rule exists if a judgment of conviction is

void. Id. The void judgment exception recognizes that there are some rare situations in which a

trial court’s judgment is accorded no respect due to a complete lack of jurisdiction to render the

judgment in question. Id. “A void judgment is a ‘nullity’ and can be attacked at any time.” Id.

at 667–68 (citing Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998)). Thus, a

defendant who was placed on deferred adjudication may raise on appeal an error that would

render the original judgment void, even if that appeal comes after the defendant’s guilt has

already been adjudicated. Id. at 668.

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        An instrument which is not an “indictment” under Article V, Section 12 of the Texas

Constitution fails to vest the trial court with jurisdiction, and that issue can be raised for the first

time on appeal. See Duron v. State, 956 S.W.2d 547, 551 n.3, 555 (Tex. Crim. App. 1997)

(Womack, J., concurring); Cook v. State, 902 S.W.2d 471, 479–80 (Tex. Crim. App. 1995).

“[T]o comprise an indictment within the definition provided by the constitution, an instrument

must charge: (1) a person; (2) with the commission of an offense.” Cook, 902 S.W.2d at 476.

“[A] written instrument is an indictment or information under the Constitution if it accuses

someone of a crime with enough clarity and specificity to identify the penal statute under which

the State intends to prosecute, even if the indictment is otherwise defective.” Duron, 956 S.W.2d

at 550–51. The issue presented to this Court is whether identifying the confidential informant

only with the numbers “7-25-12” (the date of the offense) prevents the charging instrument from

describing the crime with sufficient clarity and specificity to identify the relevant penal statute.

        Here, Pendergrass was charged with delivery of a controlled substance, the elements of

the offense being that (1) a person (2) knowingly (3) delivers (4) a controlled substance. See

TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010). The indictment alleged that “on

or about the 25th day of July, 2012” Pendergrass “did then and there deliver, by actual transfer,

to Confidential Informant #7-25-12, a controlled substance . . . .” Although Pendergrass is

correct in pointing out that the indictment does not give the specific name of the person to whom

the delivery was allegedly made by him, the name of the recipient is not an essential element of

the crime. See id. The indictment clearly accuses Pendergrass “of a crime with enough clarity

and specificity to identify the penal statute under which the State intends to prosecute” and,

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therefore, is sufficient to constitute an indictment or information under the Constitution. See

Duron, 956 S.W.2d at 550–51.

       Because the indictment was constitutionally sufficient, the judgment is not void and

Pendergrass cannot attack the original plea. See Nix, 65 S.W.3d at 667. There being no other

points on appeal, we affirm the trial court’s judgment.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:       January 29, 2015
Date Decided:         February 3, 2015

Do Not Publish




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