                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________

                               NO. 09-13-00387-CR
                              ___________________

                       JAMES LYNN MAYO, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                   On Appeal from the 252nd District Court
                          Jefferson County, Texas
                         Trial Cause No. 12-14159
__________________________________________________________________
                          MEMORANDUM OPINION

      Appellant James Lynn Mayo appeals from the trial court’s judgment

revoking his deferred adjudication community supervision for felony theft and

sentencing him to two years in state jail. In his sole issue on appeal, Mayo argues

that the trial court lacked jurisdiction to adjudicate his guilt and impose sentence

because the charging instrument filed by the State did not constitute an

information. We affirm the judgment of the trial court.




                                         1
                                   Background

      After signing a waiver of indictment, Mayo was charged by information

with the offense of theft of copper welding materials valued at less than $20,000, a

state jail felony. See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2013).

Mayo entered a plea of guilty to the charged offense pursuant to a plea bargain

agreement. The trial court found the evidence sufficient to find Mayo guilty of

felony theft, but deferred further proceedings, placed Mayo on community

supervision for two years, and ordered Mayo to pay a fine of $500.

      The State subsequently filed a motion to revoke Mayo’s deferred

adjudication community supervision. During the revocation hearing, Mayo pleaded

“true” to three violations of the conditions of his community supervision. The trial

court accepted Mayo’s pleas of true, but reset the remainder of the hearing for

three months to give Mayo an opportunity to show the trial court that he could

comply with the terms of his community supervision. When Mayo failed to appear

for the continuation of the revocation hearing, the trial court reset the hearing.

When the trial court reconvened the hearing for the second time, it found the

evidence sufficient to establish that Mayo violated the conditions of his community

supervision, revoked his community supervision, found him guilty of felony theft,

and sentenced him to two years in state jail. Mayo timely filed a notice of appeal.




                                          2
                    Sufficiency of the Charging Instrument

      In his sole issue on appeal, Mayo argues that the trial court lacked

jurisdiction to adjudicate his guilt and impose sentence because the charging

instrument filed by the State was insufficient to constitute an information. The

charging instrument of which Mayo complains stated as follows:

      IN THE NAME AND BY THE AUTHORITY OF THE STATE OF
      TEXAS:

             I, James Huebel, do solemnly swear that I believe and have
      good reason to believe that on or about the 3RD day of MAY A.D.,
      2012, Two Thousand and Twelve, and before the making and filing of
      this affidavit, in the County of Jefferson and the State of Texas,

            JAMES LYNN MAYO did then and there unlawfully
      appropriate property, by acquiring and exercising control of corporeal
      personal property, [namely]; copper welding leads, owned by
      WESTLEY HATCHER, hereafter styled the Complainant, of the
      value of less than Twenty Thousand Dollars, with the intent to deprive
      the Complainant of the property, and without the effective consent of
      the Complainant,

      Against the Peace and Dignity of the State.

                                            /s/ Deborah S. Beavers
                                            Affiant

            SWORN TO AND SUBSCRIBED by James Huebel, a credible
      person, before me this 21st day of May, 2012 A.D., Two Thousand
      and Twelve.

                               /s/ [Assistant Criminal District Attorney]
                               [Assistant Criminal District Attorney]
                               Assistant Criminal District Attorney
                               Jefferson County, Texas

                                        3
Mayo argues that once he executed the waiver of indictment, the State was

required to present a valid information charging him with felony theft in order for

the trial court to obtain jurisdiction over the case. He contends, however, that the

charging instrument that was filed was defective because (1) it identified one

person (James Huebel) as having belief of and swearing to the statements

contained in the instrument, but was signed by a different person (Deborah

Beavers) as “Affiant”; and (2) it did not show that it was “presented by a proper

officer,” as required by article 21.21(3) of the Texas Code of Criminal Procedure.

Mayo argues, therefore, that the charging instrument did not constitute an

information under Texas law, the trial court never acquired jurisdiction over his

case, and his conviction and sentence are void.

      Unless waived by the defendant, the State must obtain a grand jury

indictment in a felony case. See Tex. Const. art. I, § 10; Teal v. State, 230 S.W.3d

172, 174 (Tex. Crim. App. 2007). When a defendant waives his right to be

charged by indictment, the State is required to charge the defendant by

information.   See Tex. Code Crim. Proc. Ann. art. 1.141 (West 2005). “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.” Tex. Const. art. V, § 12(b);

see also Tex. Code Crim. Proc. Ann. art. 21.20 (West 2009). The presentment of a

valid information vests the trial court with jurisdiction of the cause. Tex. Const.

                                         4
art. V, § 12(b); Aguilar v. State, 846 S.W.2d 318, 320 (Tex. Crim. App. 1993). An

information is considered “presented” when it has been filed by the proper officer

in the proper court. Tex. Code Crim. Proc. Ann. art. 12.07 (West 2005).

      Article V, section 12(b) of the Texas Constitution establishes constitutional

requisites for a charging instrument to constitute an information. See Tex. Const.

art. V, § 12(b).      Under this provision, a charging instrument is sufficient to

constitute an information if it charges (1) a person, (2) with the commission of an

offense. Id.; Cook v. State, 902 S.W.2d 471, 477, 479-80 (Tex. Crim. App. 1995).

To charge the commission of an offense, the information is not required to allege

every element of the offense, but it must “accuse[] someone of a crime with

enough clarity and specificity to identify the penal statute under which the State

intends to prosecute[.]” Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App.

1997); see also Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990).

Further, the charging instrument must contain language such that the trial court and

the defendant can determine, from the face of the instrument, that the instrument

intends to charge an offense for which the trial court has subject matter

jurisdiction. See Kirkpatrick v. State, 279 S.W.3d 324, 328-29 (Tex. Crim. App.

2009) (quoting Teal, 230 S.W.3d at 181-82). In addition to the constitutional

requisites, the Code of Criminal Procedure sets forth certain statutory requirements

for an information:

                                          5
      1. It shall commence, “In the name and by authority of the State of
      Texas”;

      2. That it appear to have been presented in a court having jurisdiction
      of the offense set forth;

      3. That it appear to have been presented by the proper officer;

      4. That it contain the name of the accused, or state that his name is
      unknown and give a reasonably accurate description of him;

      5. It must appear that the place where the offense is charged to have
      been committed is within the jurisdiction of the court where the
      information is filed;

      6. That the time mentioned be some date anterior to the filing of the
      information, and that the offense does not appear to be barred by
      limitation;

      7. That the offense be set forth in plain and intelligible words;

      8. That it conclude, “Against the peace and dignity of the State”; and

      9. It must be signed by the district or county attorney, officially.

Tex. Code Crim. Proc. Ann. art. 21.21 (West 2009).

      Generally, a defendant must object to a defect in the form or substance of an

information before commencement of the trial on the merits; otherwise, the defect

is waived. See id. art. 1.14(b) (West 2005). An exception to this rule exists,

however, when the defect complained of is that the charging instrument does not

satisfy one or both of the constitutional requisites for an information—i.e., that the

instrument charge (1) a person (2) with the commission of an offense over which

the trial court has subject matter jurisdiction. See Teal, 230 S.W.3d at 181-82;


                                          6
Duron, 956 S.W.2d at 549; Cook, 902 S.W.2d at 476, 479-80. If the charging

instrument does not satisfy both constitutional requisites, then it does not constitute

an information at all and does not vest the trial court with jurisdiction. See Teal,

230 S.W.3d at 179; Cook, 902 S.W.2d at 479-80. A defendant may raise such

defects for the first time on appeal. See Ex parte Patterson, 969 S.W.2d 16, 19

(Tex. Crim. App. 1998); Cook, 902 S.W.2d at 479-80. All other defects in an

information, however, are considered non-jurisdictional and are waived unless

timely raised by the defendant prior to trial. See Castro v. State, 970 S.W.2d 699,

700 (Tex. App.—Corpus Christi 1998, pet. ref’d).

      The charging instrument in the present case specifically charged “JAMES

LYNN MAYO” with the offense of “unlawfully appropriat[ing] property, by

acquiring and exercising control of corporeal personal property, [namely] copper

welding leads, owned by WESTLEY HATCHER, hereafter styled the

Complainant, of the value of less than Twenty Thousand Dollars, with the intent to

deprive the Complainant of the property, and without the effective consent of the

Complainant[.]” Section 31.03 of the Penal Code, which governs the offense of

theft, provides, in relevant part:

      (a) A person commits an offense if he unlawfully appropriates
      property with intent to deprive the owner of property.

      (b) Appropriation of property is unlawful if:

             (1) it is without the owner’s effective consent[.]

                                          7
Tex. Penal Code Ann. § 31.03(a)-(b)(1). Section 31.03 further provides that an

offense under this section is a state jail felony if the value of the stolen property is

less than $20,000 and the property stolen is copper. Id. § 31.03(e)(4)(F)(iii). We

find that the allegations in the charging instrument regarding the charged offense

were alleged with sufficient clarity and specificity to allow the reader to identify

the penal statute under which the State intended to prosecute. See Duron, 956

S.W.2d at 550. In addition, the allegations in the charging instrument were

sufficient to charge a felony offense, over which the district court in this case had

subject matter jurisdiction. See Tex. Penal Code Ann. § 31.03(e)(4)(F)(iii); Tex.

Code Crim. Proc. Ann. art. 4.05 (West 2005); Teal, 230 S.W.3d at 181-82.

Accordingly, the charging instrument presented by the State charged a person with

the commission of an offense over which the trial court had subject matter

jurisdiction. See Tex. Const. art. V, § 12(b). The charging instrument, therefore,

constitutes an information within the meaning of the Texas Constitution. See id.;

Teal, 230 S.W.3d at 181-82; Cook, 902 S.W.2d at 477, 479-80; Duron, 956 S.W.2d

at 550.

      Nevertheless, Mayo argues that the charging instrument does not constitute

an information because it is in the form of an invalid affidavit. Specifically, he

complains that the instrument identifies one person as having belief of and

swearing to the statements accusing Mayo of committing a criminal offense, but is

                                           8
signed by a different person as “Affiant.” In addressing this argument, we initially

note that the charging instrument that was filed in this case appears to have been

presented as a combined information and complaint.1 See Ex parte Thomas, 234

S.W.3d 656, 662 (Tex. App.—Beaumont 2007, no pet.). As a general rule, an

information may not be presented until an affidavit, typically in the form of a

complaint, has been made by some credible person charging the defendant with an

offense. See Tex. Code Crim. Proc. Ann. art. 21.22 (West 2009). A complaint is

an affidavit made before the magistrate or district or county attorney that charges

the commission of an offense. See id. art. 15.04 (West 2005). The requisites of a

complaint are as follows:

      1. It must state the name of the accused, if known, and if not known,
      must give some reasonably definite description of him.

      2. It must show that the accused has committed some offense against
      the laws of the State, either directly or that the affiant has good reason
      to believe, and does believe, that the accused has committed such
      offense.

      3. It must state the time and place of the commission of the offense, as
      definitely as can be done by the affiant.

      4. It must be signed by the affiant by writing his name or affixing his
      mark.

      1
        In Ex parte Thomas, we noted that the different requirements for an
information and a complaint suggest that the documents are to be separate;
however, we also noted that nothing in the Code of Criminal Procedure prohibits
combining an information and complaint into one document, and any objection to
combining an information and a complaint must be made prior to trial or it is
waived. 234 S.W.3d at 663.
                                       9
Id. art. 15.05. However, because Mayo signed a waiver of indictment, the State

was not required to file a complaint. See Chapple v. State, 521 S.W.2d 280, 282

(Tex. Crim. App. 1975) (holding that a complaint is not required when a defendant

executes a waiver of indictment and elects to be charged by information).

Therefore, even though the charging instrument in this case was apparently

presented as a combined information and complaint, it only needed to satisfy the

requirements of an information. See id. Neither the Texas Constitution nor the

Code of Criminal Procedure requires an information to be in the form of an

affidavit or to be signed by anyone other than the district or county attorney. See

Tex. Const. art. V, § 12(b); Tex. Code Crim. Proc. Ann. art. 21.21. Accordingly,

the failure of the charging instrument to be in the form of a valid affidavit does not

render the instrument insufficient to constitute an information.         Further, we

conclude that Mayo was required to object to any such alleged defect prior to

pleading guilty to theft. See Tex. Code Crim. Proc. Ann. art. 1.14(b). Because

Mayo raised his objection for the first time on appeal, he has waived his objection

to this alleged defect. Id.

      Mayo also argues that the charging instrument in the present case does not

constitute an information because it does not “appear to have been presented by the

proper officer,” as required by article 21.21(3) of the Code of Criminal Procedure.

In making this argument, Mayo does not dispute that the charging instrument was,

                                         10
in fact, properly presented – i.e., filed by the proper attorney for the State in a court

with subject matter jurisdiction to consider the charges. See Tex. Const. art. V, §

12(b); Tex. Code Crim. Proc. Ann. arts. 12.07, 21.20; Studer, 799 S.W.2d at 273

(“Once presented to the trial court ‘by an attorney for the State’, the trial court

obtained jurisdiction of the cause.”). Instead, Mayo argues that the information

must show, on its face, that it was presented by the prosecuting attorney, and not

by the complainant or a third party. In support of this position, Mayo cites article

21.21(3) of the Code of Criminal Procedure, as well as Sams v. State, 160 S.W.2d

265, 265-66 (Tex. Crim. App. 1942) (reversing conviction because the portion of

the information on which the conviction was based was in the form of an affidavit

by a third party and did not state that it was presented by the prosecuting attorney),

Walton v. State, 284 S.W.2d 373, 374 (Tex. Crim. App. 1955) (reversing

conviction because the enhancement paragraphs on which the conviction was

partially based were in the form of an affidavit by the prosecuting attorney and did

“not appear to have been presented by the prosecuting attorney”), and Gaines v.

State, 361 S.W.2d 389, 390 (Tex. Crim. App. 1962) (reversing conviction because

the information on which the conviction was based “was not presented by the

prosecuting attorney but was in the form of an affidavit by the affiant, who signed

the complaint.”).




                                           11
        In the present case, the allegations in the charging instrument accusing Mayo

of committing the offense of theft are made by the purported affidavit of a third

party and not by the presentment of the prosecuting attorney. Therefore, we agree

with Mayo that the charging instrument in the present case appears to suffer from

the same defect that was present in the informations in Sams, Walton, and Gaines.

Although the Court in Sams, Walton, and Gaines held that such a defect requires

reversal of the judgment of conviction, each of those cases was decided prior to

1985.

        Before 1985, a charging instrument that contained a substantive defect failed

to vest the trial court with jurisdiction and could be challenged for the first time on

appeal or in a post-conviction application for writ of habeas corpus. See Teal, 230

S.W.3d at 175; Patterson, 969 S.W.2d at 19. A substantive defect was considered

a fundamental error, and any conviction based on the charging instrument was

void. Studer, 799 S.W.2d at 267. By contrast, defects of form were not considered

fundamental errors, and a defect of form that did not prejudice a defendant’s

substantial rights could be waived if not properly brought to the trial court’s

attention. See Teal, 230 S.W.3d at 175; Thomas, 234 S.W.3d at 660. As a result,

numerous court decisions “exhaustively debated the fine technical distinctions

between defects of form and those of substance” and “reversed convictions years




                                          12
after the fact for defects of substance in the indictment.” Teal, 230 S.W.3d at 175-

76.

      Amendments to the Texas Constitution and the Code of Criminal Procedure

in 1985, however, changed the law. Thomas, 234 S.W.3d at 660. Specifically,

amendments to the Texas Constitution defined the terms “indictment” and

“information” and authorized the Legislature to prescribe by statute the effects of

substantive defects in an indictment or information. See Tex. Const. art. V, §

12(b); see also Cook, 902 S.W.2d at 476. As part of the same reform package, the

Legislature amended the Code of Criminal Procedure to provide that a defect in the

form or substance in an indictment or information is waived if no objection is

made prior to the commencement of the trial on the merits. See Tex. Code Crim.

Proc. Ann. art. 1.14(b); see also Teal, 230 S.W.3d at 176; Cook, 902 S.W.2d at

476. The Legislature’s purpose in amending the Texas Constitution and the Code

of Criminal Procedure “was to change the focus from whether a defect is

fundamental [i.e. a defect of substance or not] to whether the defendant brought the

defect to the court’s attention.” Teal, 230 S.W.3d at 177 (internal quotations

omitted); see also Thomas, 234 S.W.3d at 660. As noted above, the Court of

Criminal Appeals has recognized only two categories of defects that are excepted

from this rule and that can be raised for the first time on appeal: (1) the failure of

the indictment or information to charge a person, and (2) the failure of the

                                         13
indictment or information to charge the commission of an offense over which the

trial court has subject matter jurisdiction. See Teal, 230 S.W.3d at 181-82; Duron,

956 S.W.2d at 549; Cook, 902 S.W.2d at 476, 479-80.

      Based on the 1985 amendments to the Texas Constitution and the Code of

Criminal Procedure, a defendant must object before trial to the absence of proper

presentment language in an information in order to preserve error for appellate

review. See Tex. Code Crim. Proc. Ann. art. 1.14(b); Thomas, 234 S.W.3d at 660,

663. Because the record does not show that Mayo objected to the absence of proper

presentment language in the charging instrument prior to entering his guilty plea,

Mayo waived his objection to this defect. See Tex. Code Crim. Proc. Ann. art.

1.14(b).

      We overrule Mayo’s sole issue and affirm the judgment of the trial court.

      AFFIRMED .


                                      _____________________________
                                          CHARLES KREGER
                                                Justice

Submitted on April 9, 2014
Opinion Delivered July 9, 2014
Do not publish

Before Kreger, Horton, and Johnson, JJ.




                                          14
