                                                                         ACCEPTED
                                                                    07-15-00104-CR
                                                       SEVENTH COURT OF APPEALS
                                                                 AMARILLO, TEXAS
                                                               8/25/2015 3:03:14 PM
                                                                   Vivian Long, Clerk


                 NO. 07-15-00104-CR

            IN THE COURT OF APPEALS                FILED IN
                                            7th COURT OF APPEALS
                                              AMARILLO, TEXAS
       FOR THE SEVENTH JUDICIAL       DISTRICT
                                            8/25/2015 3:03:14 PM
                                                 VIVIAN LONG
                AMARILLO, TEXAS                     CLERK


              DRAKE JORDAN FINCH
                  APPELLANT
                      VS.

               THE STATE OF TEXAS
                    APPELLEE

APPEAL FROM CAUSE NUMBER CR-14E-072 FROM THE 222ND
   JUDICIAL DISTRICT COURT OF DEAF SMITH COUNTY,
       THE HONORABLE ROLAND SAUL PRESIDING


              BRIEF FOR THE STATE

THE STATE REQUESTS ORAL ARGUMENT IF APPELLANT=S
              REQUEST IS GRANTED


                                                    Jim English
                                     Criminal District Attorney
                                         State Bar No. 06625280
                                        235 E. Third, Room 401
                                       Hereford, Texas 79045
                                     Telephone: (806) 364-3700
                                     Facsimile: (806) 363-7039
                          Email: JEnglish@deafsmithcounty.gov
                               No. 07-15-00104-CR

                                     IN THE

                             COURT OF APPEALS
                       SEVENTH JUDICIAL DISTRICT
                              AMARILLO, TEXAS


                           DRAKE JORDAN FINCH
                                  APPELLANT,
                                        V.
                            THE STATE OF TEXAS
                                   APPELLEE


                              BRIEF FOR STATE


TO THE HONORABLE SEVENTH COURT OF APPEALS:
      The State of Texas, the prosecuting authority in Cause No. CR-14E-072 in the
222nd District Court of Deaf Smith County, Texas, the Honorable Roland Saul, Judge
presiding, respectfully submits this Brief in reply to the Brief of Appellant,
appealing the Judgment of conviction and sentence. Pursuant to Rule 3.2 of the
Texas Rules of Appellate Procedure, the parties will be referred to as Appellant and
State. Citation to the Clerk=s Record will be ACR@ and a page number, while the
citation to the Reporter=s Record will be ARR@ and a volume page and number.
                                    TABLE OF CONTENTS

                                                                                          PAGE

TABLE OF CONTENTS................................................................................ii

INDEX OF AUTHORITIES...........................................................................iii, iv

SUMMARY OF THE ARGUMENT..............................................................v

RESPONSE TO APPELLANT=S POINT OF ERROR NUMBER ONE.......1

RESPONSE TO APPELLANT=S POINT OF ERROR NUMBER TWO......12

CONCLUSION AND PRAYER.....................................................................13

CERTIFICATE OF COMPLIANCE...............................................................14

CERTIFICATE OF SERVICE........................................................................14




                                                    ii
                                        INDEX OF AUTHORITIES
                                                                                                                    PAGE

Almanza v. State, 686 S.W. 2d 157, 171 (Tex. Crim. App. 1984)...................8

Brooks v. State, 382 S.W. 3d 601 (Tex. App. - Amarillo 2012, pet. ref=d.).....2, 6, 7

Cook v. State, 902 S.W. 2d 471 (Tex. Crim. App. 1995).................................2

Duron v. State, 956 S.W. 2d 547, 550-551 (Tex. Crim. App. 1997)................2

Harrison v. State, 76 S.W. 3d 537, 539 (Tex. App.-Corpus Christi 2002,
no pet.)...............................................................................................................2

Hutch v. State, 922 S.W. 2d 166, 171 (Tex. Crim. App. 1996)........................8

Kirkpatrick v. State, 279 S.W. 3d 324, 328 (Tex. Crim. App. 2009)...............2

Middleton v. State, 125 S.W. 3d 450, 453 (Tex. Crim. App. 2003).................8

Ngo v. State, 175 S.W. 3d 738, 743, 744 (Tex. Crim. App. 2005)...................8

Patterson v. State, 769 S.W. 2d 938, 941(Tex. Crim. App. 1989)....................3, 4

State v. Moff, 154 S.W. 3d 599, 601(Tex. Crim. App. 2004)...........................2

Taylor v. State, 332 S.W. 3d 483, 490 (Tex. Crim. App. 2011)........................9

Teal v. State, 230 S.W. 3d 172, 179 (Tex. Crim. App. 2007)...........................2




                                                              iii
STATUTES

TEX. CODE CRIM. PROC. ANN. Art. 1.14 (b)..............................................1, 3

TEX. CODE CRIM. PROC. ANN. Art. 21.11..................................................3

TEX. CODE CRIM. PROC. ANN. Art. 21.19..................................................3

TEX. CODE CRIM. PROC. ANN. Art. 36.19..................................................8

TEX. PENAL CODE ANN. Sec. 22.02 (b).......................................................4, 7




                                               iv
                        SUMMARY OF THE ARGUMENT

       The State submits the indictment sufficiently charged Appellant with the first-

degree felony offense of Aggravated Assault with a Deadly Weapon on a Household

Member, and his sentence of forty (40) years confinement was within the range of

punishment. The State further submits Appellant has failed to preserve error by

failing to object to the indictment prior to trial.

       In the alternative, if this Court finds jury charge error, Appellant has not

suffered egregious harm because it is clear that any actual harm suffered by

Appellant was minimal after a thorough review of the evidence, the argument of

counsel, the jury charge and the entire record of the trial.




                                             v
                       ARGUMENT AND AUTHORITIES

State=s Reply to Point of Error One

      Because the indictment charged an aggravated assault with a deadly

weapon on a household member and/or Appellant failed to object before the

date of trial to the alleged defect in the indictment, the judgment of aggravated

assault with a deadly weapon on a household member is not void, and the

sentence is not illegal.

      Appellant first contends the judgment convicting him of first-degree felony

aggravated assault is void because the indictment only charged him with a second-

degree felony aggravated assault. Under Appellant=s analysis, it follows that the trial

court=s charge authorized punishment outside the range of punishment for the

offense charged and is, therefore, void.

      The State asserts that the indictment provided the trial court and Appellant

notice with sufficient clarity to charge the first-degree felony offense of aggravated

assault with a deadly weapon on a household member. Moreover, if Appellant was

confused about the charged offense, he had a duty to object before the date of trial




                                           1
for purposes of article 1.14(b).1 Since Appellant did not do so, he has forfeited any

right to object to any alleged indictment defects on appeal.

Underlying Law and Analysis

      Whether an indictment is sufficient is a question of law that appellate

courts review de novo.2 To constitute an indictment, the Texas Constitution

requires that an indictment allege that 1) a person, 2) committed an offense.3   The

proper test to determine if a charging instrument alleges Aan offense@ is whether the

allegations are clear enough that one can identify the offense alleged.4 Therefore,

so long as the charging instrument provides sufficient clarity and specificity to

identify the penal statute under which the State intends to prosecute, it is

sufficient to confer jurisdiction and to serve as the basis for a valid conviction in

the absence of a motion to quash.5 An indictment must contain the elements of

the offense charged, fairly inform the defendant of charges he must prepare to

meet, and enable the defendant to plead acquittal or conviction in bar to

      1
          TEX. CODE CRIM. PROC. ANN. Art. 1.14 (b).
      2
          State v. Moff, 154 S.W. 3d 599, 601(Tex. Crim. App. 2004).
      3
          Cook v. State, 902 S.W. 2d 471, (Tex. Crim. App. 1995);
          Teal v. State, 230 S.W. 3d 172, 179 (Tex. Crim. App. 2007).
      4
          Teal at 180.
      5
          Duron v. State, 956 S.W. 2d 547, 550-551 (Tex. Crim. App. 1997).


                                               2
future prosecution for the same offense.6 Courts must now look to an

indictment as a whole, not just to its specific formal requisites

requisites. 7

Article 21.11 of the Texas Code of Criminal Procedure provides:

       AAn indictment shall be deemed sufficient which charges commission of the
       offense in ordinary and concise language in such a manner as to enable a
       person of common understanding to know what is meant; and with that degree
       of certainty that will give the defendant notice of the particular offense with
       which he is charged, and enable the court, on conviction, to pronounce the
       proper judgment;...@8

Article 21.19 provides:

       An indictment shall not be held insufficient, nor shall a trial, judgment or other
       proceedings thereon be affected, by reason of any defect of form which does
       not prejudice the substantial rights of the defendant.9

Article 1.14(b) provides, in pertinent part:

       AIf 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



       6
           Harrison v. State, 76 S.W. 3d 537, 539 (Tex. App.-Corpus Christi 2002, no pet.);
           Brooks v. State, 382 S.W. 3d 601, 605 (Tex. App. - Amarillo, 2012, pet. ref=d.).
       7
           Kirkpatrick v. State, 279 S.W. 3d 324, 328 (Tex. Crim. App. 2009).
       8
           TEX. CODE CRIM. PROC. ANN. Art. 21.11.
       9
           TEX. CODE CRIM. PROC. ANN Art. 21.19.


                                                 3
      any other postconviction proceeding.@10The Court of Criminal Appeals has
      explained the difference between what is meant by the Ause of a deadly
      weapon@ and the Aexhibition of a deadly weapon.@11 The Court went on to
      explain that one can Ause@ a deadly weapon without exhibiting it, but it is
      doubtful one can exhibit a deadly weapon during the commission of a felony
      without using it.12

      Aggravated Assault is a second-degree felony unless the indictment provides

a defendant with sufficient notice that section 22.02 (b) of the Texas Penal Code

applies, and the evidence proves beyond a reasonable doubt that the allegations are

true. Under these circumstances, a defendant can be convicted of a first-degree

felony aggravated assault.

      Appellant was indicted on May 28, 2014, for aggravated assault with a deadly

weapon on a household member, the relevant portions of which included the

following:

      Adid then and there intentionally, knowingly or recklessly cause serious bodily
      injury to Ruth Simms by striking her or by causing her head to strike an object
      or by shaking her, and the defendant did then and there use or exhibit a deadly
      weapon, to-wit: his hand or an unknown object, during the commission of said
      assault, and the said Ruth Simms was a member of the defendant=s household,
      as described by Section 71.005 of the Texas Family CodeY@13


      10
           TEX. CODE CRIM. PROC. ANN Art. 1.14(b).
      11
           Patterson v. State, 769 S.W. 2d 938, 941 (Tex. Crim. App. 1989).
      12
           Id. at 941.
      13
           CR, 6,9.


                                                4
      In the present case, it is undeniable that the elements of section 22.02 (b) (1)

were included in the indictment. By simply alleging the victim was a household

member in the context of an aggravated assault indictment, the State submits

Appellant was given sufficient notice that he was being charged with a first-degree

felony aggravated assault. Alleging the victim was a household member in a second-

degree felony aggravated assault case serves no purpose since it is unnecessary to

obtain a conviction and does not enhance the punishment range. On the contrary, it

is essential when charging a defendant with a first-degree felony aggravated assault.

It is apparent that by alleging in the indictment the use of a deadly weapon and an

assault which caused serious bodily injury on a household member, the State

intended to charge the first-degree felony of aggravated assault with a deadly

weapon on a household member.

      After reviewing the record, the following observations can be made: 1) during

voir dire, the State explained, without objection from Appellant, that Appellant was

charged with the first-degree felony offense of aggravated assault with a punishment

range of five to ninety-nine years or life and an optional fine not to exceed $10,000; 14

2) during opening statements, the State outlined its intent to prove Appellant beat



      14
           RR, Vol. 3, 24-25.


                                           5
the victim causing her to suffer serious bodily injury and asked the jury to find

Appellant guilty of the charged offense; 15 3) the court=s charge outlined the elements

of the first-degree felony offense of aggravated assault with a deadly weapon on a

household member and two lesser included second-degree felony offenses of

aggravated assault; 16 4) Appellant did not object to the indictment or the jury charge

on guilt or punishment; and 5) Appellant did not object to the punishment verdict.

      When the indictment is read in context and in consideration of the subject

matter before the trial court, it is clear Appellant knew he was charged with the first-

degree felony of aggravated assault with a deadly weapon on a household member. 17

Nothing in the record indicates that Appellant was misled or confused or that

Appellant lacked notice of the allegations against him. If Appellant had any question

about what charge he had been asked to defend against or the range of punishment

for said offense, Appellant had ample opportunity, and, in fact, a duty to file an

objection with the court. In the instant case, Appellant never raised an objection to

the indictment or otherwise brought to the attention of the trial court at any time any

alleged defect.

      15
           RR, Vol. 4, 12-18.
      16
           CR, 65-66.
      17
           Brooks v. State, 382 S.W. 3d 601, 606 (Tex. App.-Amarillo 2012, pet. ref=d.).


                                                6
      Appellant focuses on the word Aexhibit@ in the indictment to conclude that the

State only charged him with a second-degree felony aggravated assault. Appellant

conveniently overlooks the language in the indictment that he Aused@ a deadly

weapon to cause serious bodily injury to a household member. Appellant=s analysis

is faulty because he fails to read the entire indictment in context. Instead, Appellant

reads the indictment in a hypertechnical manner which this Court has previously

condemned.18 Appellant attempts to avoid harmful case precedent by claiming there

was no defect of form or substance in the indictment all the while arguing a

substantive defect in the indictment failed to charge a first-degree felony offense of

aggravated assault under article 22.02 (b) (1) of the Texas Penal Code. 19 Appellant=s

issue on appeal is an attempt to avoid the results of failing to object at trial or file a

motion to quash. Having failed to properly object, Appellant has waived any such

objection and failed to preserve his issue for appeal.

      Under point of error one, Appellant alludes to a defect in the court=s charge

on guilt as contributing to the alleged illegal sentence he received. 20 The State

submits that since the indictment sufficiently charged Appellant with a first-degree

      18
           Brooks v. State, 382 S.W. 3d 601, 607 (Tex. App. - Amarillo 2012, pet. ref=d.).
      19
           Appellant=s brief at 14-15.
      20
           Appellant=s brief at 17-18.


                                                7
aggravated assault and Appellant forfeited his right to object to the charging

language in the indictment, Appellant has also forfeited his right to complain about

the jury charge which tracked the language in the indictment. However, if this Court

believes there was jury charge error, the State submits there was no egregious harm

to Appellant.

Egregious Error Analysis

      An appellate court=s first duty in evaluating a jury charge issue is to determine

whether error exists. 21 If error is found, the appellate court must determine whether

the error caused sufficient harm to require reversal. 22 The degree of harm necessary

for reversal depends on whether the Appellant preserved the error by objection. 23

      If no objection was made at trial, reversal is proper only if the error is so

egregious and created such harm that it might be fairly said the defendant did not

have a fair and impartial trial. 24 Egregious harm is a difficult standard to prove and

such determination must be done on a case by case basis.25 The actual degree of


      21
           Ngo v. State, 175 S.W. 3d 738-743-744 (Tex. Crim. App. 2005).
      22
           Middleton v. State, 125 S.W. 3d 450, 453 (Tex. Crim. App. 2003).
      23
           TEX. CODE CRIM. PROC. ANN Art. 36.19; Ngo, 175 S.W. 3d at 743.
      24
           Almanza v. State, 686 S.W. 2d 157, 171 (Tex. Crim. App. 1984).
      25
           Hutch v. State, 922 S.W. 2d 166, 171 (Tex. Crim. App. 1996).


                                               8
harm must be assayed in light of the entire jury charge, the state of the evidence, the

argument of counsel, and any other relevant information revealed by the record of

the trial as a whole. 26 Errors which result in egregious harm are those that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

defense theory, or make a case for conviction clearly and significantly more

persuasive. 27

      The State asserts that there was no error in the jury charge because the charge

was based on a proper indictment and/or Appellant failed to object to the indictment

before the date of trial. However, if this Court finds otherwise, the State believes the

egregious error standard will apply because Appellant stated at trial that he had no

objection to the jury charge.28

      The entire jury charge should be reviewed when determining the actual degree

of harm. In the instant case, the jury charge included an application paragraph for

the first-degree felony offense of aggravated assault with a deadly weapon on a

household member (paragraph 4) and two application paragraphs for the lesser




      26
           Almanza, 686 S.W. 2d at 171.
      27
           Taylor v. State, 332 S.W. 3d 483, 490 (Tex. Crim. App. 2011).
      28
           RR, Vol. 5, 123-124.


                                               9
included second-degree felony offenses of aggravated assault (paragraphs 5 and 6).29

In each of the application paragraphs, the jury was required to find Appellant caused

physical injury to Ruth Simms by striking her, by causing her head to strike an

object, or by shaking her. To find the alleged manner and means, the jury necessarily

had to find a deadly weapon was used, not merely exhibited.

      The lesser included application paragraphs included an option where the jury

could have found Appellant guilty of the second-degree felony offense of aggravated

assault by causing serious bodily injury without the use or exhibition of a deadly

weapon and an option where the jury could have found Appellant guilty of

aggravated assault by causing only bodily injury by using or exhibiting a deadly

weapon. By finding Appellant guilty of the first degree felony alleged in the

indictment, it is clear the jury found serious bodily injury was caused by using a

deadly weapon on a household member.

      In opening, the State advised the jury that the evidence would show Appellant

severely beat the victim causing a subdural hematoma. 30 The State informed the jury

that the emergency room physician, Dr. Michael Peterson, would testify that the



      29
           CR 65-66.
      30
           RR Vol. 4, 12, 17.


                                         10
injuries he observed could have been caused by striking, by causing her head to

strike an object or by shaking, and that a hand or an object can be a deadly weapon

if used to cause a subdural hematoma. 31 Appellant admitted in opening that the

victim was severely injured but suggested to the jury that due to a sloppy police

investigation, it was possible that someone else committed the crime. 32

      In closing, the State argued the evidence proved beyond a reasonable doubt

that Appellant was guilty of the crime he was charged with in the indictment and

that a deadly weapon was used in the commission of the offense. 33 The State further

argued the subdural hematoma and the injuries to the victim=s face were caused
                                                   34
either by Appellant=s hand or an unknown object.        The defense argued Appellant

did not commit the offense, and the evidence was insufficient to prove

Appellant was guilty.35 The defense never argued that a deadly weapon was

not used, that the victim did not suffer serious bodily injury, or that Appellant




      31
           RR Vol. 4, 16.
      32
           RR, Vol. 4, 19-21.
      33
           RR, Vol. 5, 135, 149, 150-152.
      34
           RR, Vol. 5, 150-151.
      35
           RR, Vol. 5, 143, 147.


                                            11
was only guilty of one of the lesser included offenses described in the jury charge.

      A review of the entire jury charge, the state of the evidence, the argument of

counsel and other relevant information revealed by the record shows that egregious

harm was not committed by including the words Aor exhibit@ in the jury charge. The

alleged error did not affect the defensive theory, and it did not deprive Appellant of

a valuable right. It was incumbent upon Appellant to object to any defect, and his

failure to do so prevents him from arguing this point on appeal. Point of Error One

should be overruled.

State=s Reply to Point of Error Two

      Egregious harm did not occur because the verdict was properly based on

an indictment that charged Appellant with aggravated assault with a deadly

weapon on a household member and/or Appellant failed to object to the alleged

defect in the indictment before the date of the trial.

      Appellant contends the charge on punishment was egregiously harmful

because it authorized a punishment in excess of that for a second-degree felony. 36

This argument is predicated upon Appellant=s erroneous conclusion that the

indictment only charged Appellant with a second-degree felony aggravated assault.



      36
           Appellant=s brief at 25-27


                                         12
      The State refers this Court to the arguments under reply to point of error

number one that the indictment was sufficient to charge Appellant with a first-degree

felony aggravated assault and/or appellant has failed to preserve error because of his

failure to object to any alleged defect prior to trial. The State contends that having

shown the indictment sufficiently charged Appellant with a first-degree felony

aggravated assault, Appellant=s basic premise is incorrect. Therefore, Appellant has

not suffered egregious harm, and Appellant=s Point of Error Two should be

overruled.

                         CONCLUSION AND PRAYER

      The State contends Appellant was sufficiently charged with the first-degree

felony offense of Aggravated Assault with a Deadly Weapon on a Household

Member. The State further contends Appellant has failed to preserve error regarding

any defects in the indictment by failing to object to the indictment prior to trial.

Finally, the State submits Appellant did not suffer egregious harm in the punishment

charge because the charge properly set forth the punishment range for a first-degree

felony.




                                         13
                                    Respectfully submitted,



                                     /s/ Jim English
                                    Jim English
                                    Criminal District Attorney
                                    Deaf Smith County, Texas
                                    235 E. 3rd Rm. 401
                                    Hereford, Texas 79045
                                    Phone: 806-364-3700
                                    Email:JEnglish@deafsmithcounty.texas.gov


                    CERTIFICATE OF COMPLIANCE

     Pursuant to Rule 9.4 (i) (3), I hereby certify that this Brief contains 3149

words.

                                     /s/ Jim English
                                    Jim English


                       CERTIFICATE OF SERVICE

     This is to certify that on this 25th day of August, 2015 a true and correct

copy of the State=s Brief was mailed to John Bennett, Attorney for Appellant,

PO Box 19144, Amarillo, Texas 79114.

                                     /s/ Jim English
                                    Jim English




                                       14
                                                                                                                       Page 1




                  CIPRIANO RAMON ALMANZA, JR., Appellant v. THE STATE OF TEXAS,
                                         Appellee

                                                           No. 242-83

                                   COURT OF CRIMINAL APPEALS OF TEXAS

                                   686 S.W.2d 157; 1984 Tex. Crim. App. LEXIS 593


                                                        February 8, 1984

SUBSEQUENT HISTORY:                [**1] On Rehearing                      [however], the aggravation feature was
February 27, 1985, Reported at: 686 S.W.2d 157 at 160.                     disjoined from rape by the word or. Such
                                                                           constitutes fundamental error. Messenger
PRIOR HISTORY: Petition for Discretionary Review                           v.     State,    638      S.W.2d     883
from the Court of Appeal, Second Supreme Judicial                          (Tex.Cr.App.1982).
District [Tarrant County].
                                                                           The cause is reversed and remanded to the
JUDGES: En Banc. Teague, Judge. Miller, Judge,                             trial court for further proceedings under
concurs. Clinton, Judge, dissents.                                         [**2] this indictment.

OPINION BY: TEAGUE

OPINION
                                                                      The State has filed a petition for discretionary review
    [*159] OPINION ON STATE'S PETITION FOR                        with this Court, asking us to make the determination
DISCRETIONARY REVIEW                                              whether the above decision of the Court of Appeals is
                                                                  correct. We have concluded, after the respective parties
     The Fort Worth Court of Appeals stated the                   favored this Court with well written supplemental briefs,
following in Almanza v. State, 645 S.W.2d 885 (Tex.App.           as well as making outstanding oral arguments, that the
-- Ft.Worth 1983):                                                decision of the Court of Appeals is in all things correct.

           Although many recent opinions have                         The State's petition for discretionary review was
       off-handedly dismissed the changing of                     improvidently granted. It is therefore ordered dismissed.
       'and' in the indictment to 'or' in the court's
       charge, such approach is dangerous and                     CONCUR BY: MILLER
       usually fatal in matters where aggravation
       or jurisdiction is involved. In the instant                CONCUR
       cause of aggravated rape the indictment
       joined the allegation of threats of death to                     Miller, Judge
       the standard form allegation of rape by the
                                                                        Although there is merit in the dissenting opinion of
       word and. In the court's charge,
                                                                                                                    Page 2
                             686 S.W.2d 157, *159; 1984 Tex. Crim. App. LEXIS 593, **2



Judge Clinton, I concur with the decision of the majority     as an appendix to this one, but will [**4] not be
to dismiss the State's petition in this case as               published.
improvidently granted because the issue of the
relationship between fundamental error in the court's                 1 E.g., Bishop v. The State, 43 Tex. 390 (1875).
charge and error in the court's charge as contemplated by             2 Acts 1897, 25th Leg., ch. 21, p. 17.
Article 36.19, V.A.C.C.P., has not been thoroughly                    3 Acts 1913, 33rd Leg., ch. 138, p. 278.
briefed or argued by either the State or the defense.                 4 See Doyle v. State, 631 S.W.2d 732, 741-744
Historically the advocacy system has served the judiciary             (Tex.Cr.App., 1982) (Concurring Opinion on
well in charting the course of criminal jurisprudence in              Motion for Rehearing); Wilson v. State, 625
this state. If we are going to redefine fundamental error             S.W.2d 331, 334-335 (Tex.Cr.App., 1981)
vis-a-vis the court's charge to the [**3] jury, as perhaps            (Concurring Opinion on Motion for Rehearing)
we should, then let us do so when the issue is properly               and Sattiewhite v. State, 600 S.W.2d 277, 279-285
joined, either on motion for rehearing in this case or in a           (Tex.Cr.App., 1979) (Opinion on Motion for
future case before the court. Because the dissent would               Rehearing).
raise and address the issue sua sponte in this case, I
                                                                   Several lessons are taught by those historical
concur in dismissing the State's petition.
                                                              developments that have been chronicled in my
DISSENT BY: CLINTON                                           unpublished opinion concerning error in a charge of a
                                                              trial court to a jury. One is that an alleged error not
DISSENT                                                       properly raised and preserved according to Articles
                                                              36.14, 36.15 or 36.16, V.A.C.C.P. will not be considered
    DISSENTING OPINION ON STATE'S PETITION                    on appeal unless it presents "fundamental error." Another
FOR DISCRETIONARY REVIEW                                      is that when claimed error has been properly raised,
                                                              preserved and brought up on appeal, the judgment shall
    CLINTON, Judge                                            not be reversed unless the error [**5] "was calculated to
                                                              injure the rights of defendant, or unless it appears from
     One reason for granting the petition in this cause was   the record that the defendant has not had a fair and
to examine seriously a claim of "harmless fundamental         impartial trial," Article 36.19, id. A third is that utilizing
error" in the [*160] charge of the court to the jury, and     the tests of Article 36.19 to find "fundamental error"
we ought to pursue that examination to a just end.            when an objection was not made before the charge was
                                                              read to the jury, as is now so often done on appeal, may
     Beginning with Old Code Articles 594-603 and
                                                              not be sound.
decisions construing them, 1 I have tracked developments
in the law of fundamental error in a court's charge               Accordingly, I do not agree that we improvidently
through legislative amendments of 1897 2 and 1913 3 and       granted the State's petition for discretionary review. Still,
judicial opinions thereafter -- more thoroughly than          a majority will not redefine the fundamental error
before. 4 That research and conclusions drawn from it         doctrine as it applies to a charge of a trial court to a jury.
are contained in an opinion which has been circulated to
all other members of this Court and presented in                  Therefore, I dissent.
conference. However, it is much too long for publication
as usual. Accordingly that opinion is being handed down
                                                                                                                Page 1




                   DANIEL EVERETT BROOKS, APPELLANT v. THE STATE OF TEXAS,
                                        APPELLEE

                                        NO. 07-11-00353-CR, 07-11-0354-CR

                    COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

                                    382 S.W.3d 601; 2012 Tex. App. LEXIS 7908


                                            September 18, 2012, Decided

NOTICE:      PUBLISH.                                        Indictments > Contents > Requirements
                                                             [HN2] See Tex. Const. art. V, § 12.
SUBSEQUENT HISTORY: Rehearing overruled by,
Reconsideration denied by, En banc Brooks v. State, 2012
Tex. App. LEXIS 8834 (Tex. App. Amarillo, Oct. 23,           Criminal Law & Procedure > Accusatory Instruments >
2012)                                                        Indictments > Contents > Waiver
Petition for discretionary review refused by In re Brooks,   [HN3] See Tex. Code Crim. Proc. Ann. art. 1.14(b)
2013 Tex. Crim. App. LEXIS 2 (Tex. Crim. App., Jan. 9,       (2005).
2013)
                                                             Criminal Law & Procedure > Accusatory Instruments >
PRIOR HISTORY: [**1]                                         Indictments > Contents > Requirements
  FROM THE 222ND DISTRICT COURT OF DEAF                      [HN4] An indictment must contain the elements of the
SMITH COUNTY; NO. CR-11H-099, CR-11H-100;                    offense charged, fairly inform the defendant of charges
HONORABLE ROLAND D. SAUL, JUDGE.                             he must prepare to meet, and enable the defendant to
                                                             plead acquittal or conviction in bar to future prosecution
LexisNexis(R) Headnotes                                      for the same offense.


                                                             Criminal Law & Procedure > Accusatory Instruments >
                                                             Indictments > Contents > Sufficiency
Criminal Law & Procedure > Accusatory Instruments >
                                                             [HN5] An indictment which alleges all of the requisite
Indictments > Appellate Review
                                                             elements of the particular offense in question will not be
Criminal Law & Procedure > Accusatory Instruments >
                                                             found to be deficient simply because it fails to precisely
Indictments > Contents > General Overview
                                                             track the language of the statute. A court should construe
Criminal Law & Procedure > Appeals > Standards of
                                                             the indictment in the context and subject matter in which
Review > De Novo Review > Conclusions of Law
                                                             the words are employed. Finally, the construction of an
[HN1] Construction of an indictment is a matter of law
                                                             indictment be done by reading the indictment as a whole
that an appellate court reviews de novo.
                                                             and by practical rather than technical considerations.

Criminal Law & Procedure > Accusatory Instruments >
                                                             Criminal Law & Procedure > Accusatory Instruments >
                                                                                                                    Page 2
                                  382 S.W.3d 601, *; 2012 Tex. App. LEXIS 7908, **1



Indictments > Contents > Sufficiency                                 [*602] Appellant, Daniel Everett Brooks, appeals
[HN6] In interpreting the changes to Tex. Const. art. V, §     his convictions for felony assault1 in trial court number
12 and Tex. Code Crim. Proc. Ann. art. 1.14(b) (2005)          CR-11H-099, appellate cause No. 07-11-00353-CR.
regarding whether the indictment in question charges an        Appellant also appeals his conviction for sexual assault2
offense, the question is whether the allegations in it are     in Count I of trial court number CR-11H-100 and
clear enough that one can identify the offense alleged.        aggravated sexual assault3 in Count II of trial court
Stated another way, can the trial court (and appellate         number       CR-11H-100,       appellate     cause      No.
courts who give deference to the trial court's assessment)     07-11-00354-CR. After hearing the evidence regarding
and the defendant identify what penal code provision is        punishment, the jury assessed appellant's punishment at
alleged.                                                       ten years for the felony assault, twenty years for the
                                                               sexual assault, and fifty years for the aggravated sexual
                                                               assault. Appellant has perfected his appeal and by six
Criminal Law & Procedure > Accusatory Instruments >            issues contends that 1) the judgment of conviction for
Indictments > Contents > Sufficiency                           aggravated sexual assault is void, 2) appellant's right to a
[HN7] Texas courts have long-recognized the sensible           jury trial on the charge of sexual assault was violated, 3)
proposition that incorrect grammar, bad spelling, bad          appellant suffered egregious harm when the trial court's
hand writing, the use of words not technically in their        charge to the jury was for the offense of aggravated
correct sense or places will none of them make an              sexual assault, 4) appellant suffered egregious harm
indictment bad unless same causes the thing intended to        because the jury charge permitted a guilty verdict on an
be charged, to lack sense or certainty. Indeed, the Court      [**2] invalid theory of guilt, 5) the judgment in No.
of Appeals of Texas has recognized this "sensible              07-11-00354-CR allowed an improper cumulating of the
proposition" when it concluded that appellant was given        fines assessed, and 6) the evidence was insufficient to
specific notice by an indictment in which a comma              support the order for appellant to pay the fees of his court
placed after the last name in a series separated it from the   appointed attorney. We affirm the judgment as
verb following.                                                hereinafter modified.

                                                                      1 See TEX. PENAL CODE ANN. § 22.01(a)(1) &
Criminal Law & Procedure > Criminal Offenses >
                                                                      (b)(2)(A) (West 2011).
Crimes Against Persons > General Overview
                                                                      2 Id. § 22.011(a)(1)(A) (West 2011).
[HN8] Tex. Penal Code Ann. § 22.021(a)(2)(A) provides
                                                                      3    Id. § 22.021(a)(2)(A)(ii), (iii) (West Supp.
two methods of demonstrating conduct that elevates the
                                                                      2012).
offense to an aggravated offense: (ii) by acts or words
that places the victim in fear that death, serious bodily      Factual and Procedural Background
injury, or kidnapping will be imminently inflicted on any
person; (iii) by acts or words occurring in the presence of         Appellant was indicted by two separate indictments
the victim threatens to cause the death, serious bodily        that alleged he committed the offense of felony assault in
injury, or kidnapping of any person.                           No. 07-11-00353-CR and two counts of aggravated
                                                               sexual assault in No. 07-11-00354-CR.4 The incident that
COUNSEL: John Bennett, Attorney at Law, Amarillo,              led to the indictments occurred between 11:30 P.M. on
TX.                                                            August 14, 2010, and approximately 6:30 A.M. on
                                                               August 15, 2010. The State initially indicted appellant in
Chris Strowd, Assistant Criminal District Attorney,
                                                               two indictments. One alleged the offense felony assault in
Hereford, TX.
                                                               original [*603] indictment CR-101-105 and two counts
                                                               of aggravated sexual assault in original indictment
JUDGES: PANEL A. Before                CAMPBELL         and
                                                               CR-101-106, both indictments having been returned on
HANCOCK and PIRTLE, JJ.
                                                               September 22, 2010. Appellant filed a waiver of
                                                               arraignment in trial court number CR-101-1065 and
OPINION BY: Mackey K. Hancock
                                                               entered a plea of "Not Guilty" to the indictment. [**3]
                                                               The waiver of arraignment in CR-101-106 signed by
OPINION
                                                               appellant and filed with the court stated, "[Appellant] and
                                                                                                                    Page 3
                                382 S.W.3d 601, *603; 2012 Tex. App. LEXIS 7908, **3



his attorney do hereby acknowledge awareness and                The caption on the indictment at issue states that the
understanding of the charge(s) against [Appellant],             offenses in Count I and Count II of the indictment are
to-wit: aggravated sexual assault."                             aggravated sexual assault. At a pretrial hearing on August
                                                                11, 2011, at the State's request and with appellant's
       4 We will refer to the cases by their appellate          agreement, the trial court carried forward all of the
       court numbers throughout this opinion.                   previously entered orders on the motions filed in the
       Appellant's issues relate to his convictions for         original cause numbers. The case then commenced to
       sexual assault and aggravated sexual assault in          trial on August 15, 2011.
       cause No. 07-11-00354-CR.
       5     CR-101-106 was the original indictment                  During voir dire, both the State and appellant
       alleging two counts of aggravated sexual assault.        discussed the nature [**5] of the case. The record reveals
                                                                that the prospective jury was told that the charges against
     The trial court conducted pretrial hearings on             appellant were two counts of aggravated sexual assault
February 2, 2011, and on March 10, 2011. Of import to           and a separate indictment for felony assault. Appellant's
our later discussion is the fact that, at neither hearing did   trial counsel went into some detail regarding the first
appellant complain about the indictments that were then         count of aggravated sexual assault. After the jury was
pending against him. Subsequently, on August 2, 2011,           selected and appellant had entered a plea of "Not guilty"
the State reindicted appellant and filed two new                to the indictments, the State presented its opening
indictments alleging the same offenses. As pertinent to         statement. In this opening statement, the State again
this opinion, the indictment in No. 07-11-00354-CR              outlined the evidence it intended to present to prove
alleged in relevant parts:                                      appellant guilty of two counts of aggravated sexual
                                                                assault. During appellant's opening statement, trial
                                                                counsel presented a theory that what occurred was
                                                                consensual. At no time did appellant's trial counsel object
       C0UNT I       Daniel Everett Brooks on or                that the indictment only charged appellant with the
       about the 15th day of August, 2010, did                  offense of sexual assault.
       then and there intentionally or knowingly
       cause the penetration of the anus of R.E.                      [*604] At the conclusion of the evidence, the trial
       by a wooden handle, without the consent                  court prepared its charge to the jury. The court's charge
       of [**4] R.E., and the defendant did then                sets forth the charges of two counts of aggravated sexual
       and there by acts or words threaten to                   assault with the lesser included offense of sexual assault
       cause or place, R.E. in fear that death or               as to each count. The record reveals that appellant did not
       serious bodily injury would be imminently                object to the submission of the charge on the two offenses
       inflicted on R.E., and said acts or words                of aggravated sexual assault. During [**6] closing
       occurred in the presence of R.E.                         argument, appellant's trial counsel argued that the case
                                                                was one of consensual sexual contact.
       COUNT II
                                                                     After hearing the evidence, the jury convicted
            And it is further presented in and to               appellant of sexual assault in Count I of the indictment
       said Court that on the 15th day of August,               and aggravated sexual assault in Count II of the
       2010, the [appellant] did then and there                 indictment. Further, the jury also convicted appellant of
       intentionally or knowingly cause the                     felony assault. After hearing the evidence regarding
       penetration of the sexual organ of R.E. by               punishment, the jury sentenced appellant to confinement
       [appellant's] sexual organ, without the                  in the Institutional Division of the Texas Department of
       consent of R.E., and the [appellant] did                 Criminal Justice, (ID-TDCJ) for a period of ten years in
       then and there by acts or words threaten to              07-11-00353-CR, twenty years in Count I of
       cause or place, R.E. in fear that death or
                                                                07-11-00354-CR, and fifty years in Count II of
       serious bodily injury would be imminently                07-11-00354-CR. In each sentence, the jury assessed a
       inflicted on R.E., and said acts or words                fine of $10,000. The trial court entered judgment in each
       occurred in the presence of R.E.                         case to include the $10,000 fine. No motion for new trial
                                                                                                                        Page 4
                                  382 S.W.3d 601, *604; 2012 Tex. App. LEXIS 7908, **6



was filed by appellant. Appellant gave notice of appeal,               The requirements for an indictment are located in
and this appeal follows.                                          Article V, section 12 of the Texas Constitution:

     Through six issues, appellant contests his                                [*605] [HN2] An indictment is a
convictions. Appellant contends that the indictment in                   written instrument presented to a court by
Count II of No. 07-11-00354-CR charges only the                          a grand jury charging a person with
offense of sexual assault and therefore, through four                    commission of an offense. An information
issues, asserts that the judgment is void. In the                        is a written instrument presented to a court
alternative, he contends that because the jury returned a                by an attorney for the State charging a
verdict of guilt [**7] "as alleged in the indictment," his               person with the commission of an offense.
right to a jury trial was violated. In the further alternative,          The practice and procedures relating to the
he maintains he suffered egregious harm by the                           use of indictments, including their
submission to the jury of aggravated sexual assault. And,                contents, amendments, sufficiency and
finally, in the further alternative, he argues that the jury             requisites are provided by law. The
charge caused egregious harm to appellant by permitting                  presentment of an indictment or
a guilty verdict on an invalid theory of guilt. Appellant's              information [**9] to a court invests the
fifth issue contends that the judgment in No.                            court with jurisdiction of the case.
07-11-00354-CR improperly cumulates the fines.
Appellant's sixth issue contends the evidence was                 TEX. CONST. art. V, § 12. In addition to the constitutional
insufficient to sustain the requirement that appellant pay        requirement regarding an indictment, the Texas Code of
for his appointed attorney. We will modify the judgment           Criminal Procedure provides, in pertinent part:
in cause No. 07-11-00354-CR and affirm the judgments                        [HN3] If the defendant does not object
of the trial court as modified.                                          to a defect, error, or irregularity of form or
                                                                         substance in the indictment or information
Indictment                                                               before the date on which the trial on the
                                                                         merits commences, he waives and forfeits
      Appellant's first three issues all revolve around the
                                                                         the right to object to the defect, error, or
central contention that Count II of the indictment in No.
                                                                         irregularity and may not raise the
07-11-00354-CR could be read to charge only sexual
                                                                         objection on appeal or in any
assault. We will review these three issues together.
                                                                         postconviction proceeding. . . .
Initially, we observe that appellant is adamant that he is
not challenging the sufficiency of the indictment. Rather,
                                                                  See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West
he challenges the verdict rendered by the jury upon the
                                                                  2005).6
charge submitted by the trial court. In essence, appellant's
first contention [**8] is that the judgment convicting him               6     Further reference to the Texas Code of
of a first-degree felony of aggravated sexual assault is                 Criminal Procedure Ann. will be by reference to
void because the indictment only charged him with                        "Article ," "article ," or "art. ."
sexual assault. It follows, under appellant's analysis, that
the trial court's charge authorized punishment outside the        Analysis
range of punishment for the offense charged and is,
accordingly, void. However, from the perspective of the                These provisions of the law have been the subject of
Court, we must first review the indictment in question to         numerous cases before the appellate courts in Texas.
ascertain to what charge appellant was asked to answer.           From these cases, we can glean some guidance. In
                                                                  Harrison v. State, 76 S.W.3d 537, 539 (Tex.App.--Corpus
Standard of Review                                                Christi 2002, no pet.), the Corpus Christi court pointed
                                                                  out that [HN4] an indictment must contain the elements
    [HN1] Construction of an indictment is a matter of
                                                                  of the offense charged, fairly inform the defendant of
law that we review de novo. See State v. Moff, 154                charges he must prepare to meet, and enable the
S.W.3d 599, 601 (Tex.Crim.App. 2004).                             defendant to plead [**10] acquittal or conviction in bar
                                                                  to future prosecution for the same offense. How, then, do
Applicable Law
                                                                                                                   Page 5
                              382 S.W.3d 601, *605; 2012 Tex. App. LEXIS 7908, **10



we view the language of Count II of the indictment in        of the Texas Constitution and article 1.14(b) regarding
No.-07-11-00354-CR?                                          whether the [**12] indictment in question charges an
                                                             offense: the question is "whether the allegations in it are
     Appellant specifically challenges the following         clear enough that one can identify the offense alleged."
portion of the indictment:                                   Id. at 180. The court then added, "Stated another way:
                                                             Can the trial court (and appellate courts who give
         "[appellant] did then and there by acts or          deference to the trial court's assessment) and the
       words threaten to cause or place, R.E. in             defendant identify what penal code provision is alleged?"
       fear that death or serious bodily injury              Id. The court then analyzed the indictment and pointed
       would be imminently inflicted on R.E.,                out that, although the indictment was missing the
       and said acts or words occurred in the                required mens rea--that appellant knew the person he was
       presence of R.E.                                      assisting was a felony fugitive--the indictment clearly
                                                             stated that the subject was a fugitive for the offense of
He contends that we must take a very technical view and,     failure to register as a sex offender, which is a felony. Id.
therefore, because of the perceived grammatical error in     at 182. The court concluded that the indictment, while
the placement of a comma, we must conclude that the          defective in certain aspects, was clearly sufficient to
indictment charged only sexual assault and not               charge an offense and that "one could fairly conclude
aggravated sexual assault. The State, on the other hand,     from the face of the charging instrument that the State
simply says that this is a belated objection to the          intended to charge a felony offense." Id. After finding
indictment that has been waived because the same was         that, in the case before it, the indictment when read as a
not made before the trial commenced. See art. 1.14(b).       whole was sufficient to vest the district court with subject
                                                             matter jurisdiction and give the defendant notice of the
     Even before the amendments to Article V, section 12     offense the State intended to prosecute defendant [**13]
of the Texas Constitution in 1985 and the amendment to       for, the court pointed out that, if appellant was unsure of
article 1.14(b), in Oliver v. State, 692 S.W.2d 712, 714     the offense, he should have challenged the indictment
(Tex.Crim.App. 1985), the Texas Court of Criminal            before trial commenced. Id.
Appeals stated that [HN5] "an indictment which alleges
all of the requisite elements of the particular offense           Following Teal, the Texas Court of Criminal
[**11] in question will not be found to be deficient         Appeals again addressed a situation where indictments
simply because it fails to precisely track the language of   purported to charge a felony but, on the face of the
the statute." The court went on to point out that we         indictments, only alleged misdemeanor offenses. See
should construe the indictment in the context and subject    Kirkpatrick v. State, 279 S.W.3d 324, 326 (Tex.Crim.App.
matter in which the words are employed. Id. Finally, the     2009). In Kirkpatrick, the court considered the general
court directed that the construction of an indictment be     question of whether the indictments at issue were
done by reading the indictment as a whole and by             sufficient to allege a felony offense and thereby vest the
practical rather than technical considerations. Id.          district court with jurisdiction.7 Id. In analyzing the facts,
                                                             as pertinent to the questions presented, the court pointed
     [*606] What does it mean to construe an indictment      out that appellant in the case had been put on notice of
in the context and subject matter in which the words are     the intent by the State to charge a felony. Id. at 329.
employed? Id. First, in the case of Teal v. State, 230       Specifically, the face of each indictment contained the
S.W.3d 172, 173 (Tex.Crim.App. 2007), the Texas Court        heading: "Indictment--Tampering with a Governmental
of Criminal Appeals dealt with a case which attempted to     Record 3rd Degree Felony, --TPC § 37.10(a)." Id.
charge the felony offense of hindering apprehension          Therefore, according to the court, the appellant had
under section 38.05 of the Texas Penal Code; yet the         adequate notice that she was charged with a felony. Id. If
indictment failed to allege that appellant knew that the     she had been confused about the charge, appellant could
person whose apprehension he hindered was a fugitive         [*607] have, and should have, objected to the defective
for a felony offense. Teal contended that the indictment     indictment before the date [**14] of trial. Id.
only alleged a misdemeanor offense. Id. In writing for the
court, Judge Cochran summed up the court's position                  7 The Court of Criminal Appeals granted the
[HN6] in interpreting the changes to Article V, section 12           State's petition for discretionary review on three
                                                                                                                   Page 6
                               382 S.W.3d 601, *607; 2012 Tex. App. LEXIS 7908, **14



       grounds.                                               as to both Count I and II of the indictment, and 10)
                                                              appellant did not object to the charge. When this
                                                              indictment is read in context and in consideration of the
                  1) Did the Court of Appeals err             subject matter before the trial court, it is clear that
               by concluding that the district                appellant knew that he was charged with two counts of
               court did not have subject-matter              aggravated [**16] sexual assault. See Oliver, 692 S.W.2d
               jurisdiction?                                  at 714. Appellant invites this Court to read the indictment
                    2) Where an offense can be                at issue in a hypertechnical manner without considering
               charged as either a felony or a                the context or subject matter of the indictment. Id.
               misdemeanor, does the return of                Further, it is equally clear that, if appellant had any
               the indictment into a court with               question about what charge he had been asked to defend
               subject-matter jurisdiction of only            against, it was incumbent on appellant to file an objection
               the felony offense indicate the                with the court. See Kirkpatrick, 279 S.W.3d at 329.
               State's intent to charge the felony            Having failed to do so, appellant has waived any such
               offense?                                       objection. Art. 1.14(b). Appellant's issue is simply an
                    3) Is ambiguity or confusion              attempt to avoid the results of failing to object or filing a
               about the particular offense that              motion to quash. Accordingly, we reach the conclusion
               has been charged [sic] the type of             that the indictment in question in No. 07-11-00354-CR
               objection to an indictment that                charged appellant with two counts of aggravated sexual
               must be raised by a defendant prior            assault.
               to the date of trial?
                                                                   Appellant relies on the case of Thomason v. State,
                                                              892 S.W.2d 8 (Tex.Crim.App. 1994), for the proposition
     When we analyze the indictment under consideration       that when an indictment facially charges a complete
in light of the opinions of the Texas Court of Criminal       offense the intent of the State to charge a different
Appeals, we make the following observations: 1) the           offense is immaterial. Id. at 11. Thomason dealt with an
indictments were intended to charge the offenses of           indictment alleging felony theft of at least $20,000;
aggravated sexual assault, 2) the caption of the              however, the indictment contained no language that
indictments contained language that indicated Counts I        would aggregate the theft. Id. at 9. The evidence
and II were charging appellant with the crime of              produced [**17] at trial showed that appellant had
aggravated sexual assault, 3) appellant filed a waiver of     procured a total of ten checks, eight of which were in
arraignment to the original indictment acknowledging          excess of $20,000. Id. at 10. At the conclusion of the
that he was indicted for the offense of aggravated sexual     State's case in chief, appellant filed a request to require
assault in Counts [**15] I and II of the prior indictment,    the State to elect which check it sought to obtain a
4) the subsequent indictment did not materially change        conviction on, and the trial court denied the request. Id.
the charge, 5) the face of the reindictment again reflected   The Texas Court of Criminal Appeals subsequently
that appellant was charged with two counts of aggravated      reversed the judgment and remanded the case for the
sexual assault, 6) at the pretrial hearing on the new         intermediate appellate court to consider appellant's
indictments on August 11, 2011, by the agreement of           remaining issues. Id. at 12.
both parties, all previous rulings and motions were
carried forward to the reindicted cause numbers, to                When considering the Thomason case in the
include appellant's acknowledgement that he was charged       Kirkpatrick opinion, the Texas Court of Criminal Appeals
with two counts of aggravated sexual assault, 7) during       pointed out that Thomason was factually distinguishable
voir dire, the State explained, without objection from        for two reasons, only one of which is important [*608] to
appellant, that appellant was charged with the offense of     our consideration. Kirkpatrick, 279 S.W.3d at 327. The
aggravated sexual assault, 8) during opening statements,      court pointed out that appellant in Thomason had directed
the State outlined its proposed evidence and ended with       the trial court's attention to the error by his motion to
asking the jury to convict appellant of two counts of         require the State to elect which check it desired to convict
aggravated sexual assault, 9) the court's charge outlined     appellant on. Id. In Kirkpatrick, this fact was enough to
the elements of the offense of aggravated sexual assault      distinguish Thomason from the case before the court. Id.
                                                                                                                     Page 7
                                382 S.W.3d 601, *608; 2012 Tex. App. LEXIS 7908, **17



For the same reasons, the facts of Thomason are                 concluded that appellant was given specific notice by an
distinguishable from the case before the Court and,             [**20] indictment in which a comma placed after the last
Thomason does not dictate the result appellant would            name in a series separated it from the verb following.
[**18] have us reach.                                           Childress v. State, 807 S.W.2d 424, 431
                                                                (Tex.App.--Amarillo 1991, no writ) (citing Westbrook,
     Further, appellant cites this Court to Harris v. State,    227 S.W. at 1105); see Hogue v. State, 711 S.W.2d 9, 14
359 S.W.3d 625, 629 (Tex.Crim.App. 2011), and Pruett v.         (Tex.Crim.App. 1986), cert. denied, 479 U.S. 922, 93 L.
State, 685 S.W.2d 411, 413 (Tex.App.--Austin 1985, pet.         Ed. 2d 301, 107 S. Ct. 329 (1986) ("fail[ing] to see how
ref'd), for the proposition that we must view this              the wording of the indictment, although not
indictment in light of the rules of grammar in making our       grammatically correct, misled or confused appellant");
determination about what the indictment charges.                Malagon v. State, No. 05-97-01530-CR, 1999 Tex. App.
However, appellant takes these cases further than their         LEXIS 6924, *12-13 (Tex. App.--Dallas Sept. 13, 1999,
respective holdings would indicate. First, Harris is a          no pet.) (observing, simply, that "[a] misplaced comma
statutory construction case and, while on its face it does      does not alone nullify an indictment"). Nothing in the
seem to stand for the proposition appellant cites it for, the   record before us indicates that appellant was misled or
fact that it is involving the question of interpretation of a   confused by the misplaced comma or that, as a result of
statute distinguishes it from our situation. Harris holds       it, appellant lacked notice of the allegations against him.
that in construing a statute, we must "seek to effectuate
the 'collective' intent or purpose of the legislators who             [*609] Having determined that appellant was
enacted the legislation." Harris, 359 S.W.3d at 629             charged by indictment in No. 07-11-00354-CR with the
(quoting Boykin v. State, 818 S.W.2d 782, 785                   offense of aggravated sexual assault, we overrule
(Tex.Crim.App. 1991)). Boykin makes clear that the              appellant's first issue. The verdict of the jury-guilty as
reason we must focus our attention in a statutory               charged in the indictment-convicted appellant of the
construction case on the precise language and literal text      offense of aggravated sexual assault, and the punishment
of the statute is because the Texas Constitution delegates      assessed was within the range of punishment [**21] for
the lawmaking function to the Legislature while                 the convicted offense.
assigning the law interpreting [**19] function to the
Judiciary. Boykin, 818 S.W.2d at 785 (citing Tex. Const.             Because of our holding regarding the reading of the
art. II, § 1). The case before us is not a statutory            indictment, appellant's right to a jury trial upon the return
construction case; accordingly, appellant's citation to         of a verdict of guilty as charged in the indictment was
Harris is not controlling. Regarding appellant's reliance       met because the indictment did charge appellant with
on Pruett, we note that Pruett was a pre-1985                   aggravated sexual assault. Appellant's second issue is
Constitutional amendment case and, in the final analysis,       overruled.
even without the amendment to Article V, § 12 of the
                                                                     Appellant next contends that he suffered egregious
Constitution, the court held that when applying the rules
                                                                harm by the submission to the jury of the offense of
of grammar and making a common sense reading of the
                                                                aggravated sexual assault. This argument is predicated
charging instrument, the information was not
                                                                upon appellant's erroneous assumption that the
fundamentally defective. See Pruett, 685 S.W.2d at 413.
                                                                indictment did not charge that offense. Again, having
Accordingly, we do not find these cases to carry the day
                                                                determined that the indictment in No. 07-11-00354-CR
as appellant would direct.
                                                                was sufficient to charge that offense, appellant's basic
     To the contrary, [HN7] Texas courts have                   premise is incorrect and, therefore, appellant has not
long-recognized "the sensible proposition that incorrect        suffered any egregious harm. Appellant's third issue is
grammar, bad spelling, bad hand writing, the use of             overruled.
words not technically in their correct sense or places will
                                                                Invalid Theory of Guilt
none of them make an indictment bad unless same causes
the thing intended to be charged, to lack sense or                   Appellant's fourth issue contends that he suffered
certainty." Westbrook v. State, 88 Tex. Crim. 466, 227          egregious harm because the court's charge permitted him
S.W. 1104, 1105 (Tex.Crim.App. 1921). Indeed, this              to be convicted on an invalid theory of guilt. Here, he
Court has recognized this "sensible proposition" when it        offers an alternative reading based on comma placement:
                                                                                                                    Page 8
                               382 S.W.3d 601, *609; 2012 Tex. App. LEXIS 7908, **21



the jury charge, which mirrors the language of the             indictment: "did then and there by acts or words threaten
indictment, may be read to allege one manner of                to cause or place, R.E. in fear that death or serious bodily
committing aggravated sexual assault, but it should also       injury would be imminently inflicted on" her. While this
[**22] be read to allege conduct that is not defined as a      may not be a model of drafting, we remain convinced that
criminal act. Appellant further posits that since the          the charge, as did the indictment, alleges the requirements
verdict was a general verdict, and even if we have read        of subsections (ii) and (iii). See id.
the indictment to charge aggravated sexual assault, a
valid theory of guilt, there is no way to ascertain whether         To support appellant's position, [**24] he cites the
appellant was convicted under a valid theory of guilt.         Court to Hammock v. State, 211 S.W.3d 874, 876
This leads appellant to contend that we must reverse the       (Tex.App.--Texarkana 2006, no pet.). Hammock involved
judgment and remand the case for another trial.                an accusation that the defendant possessed certain
                                                               chemicals with intent to manufacture methamphetamine.
     Appellant couches his fourth issue as "a further          Id. at 875. The indictment at issue listed the chemicals
alternative to Issue One." Issue one contended that the        that the defendant was accused of possessing. Id.
indictment in question only charged the offense of sexual      However, of the six chemicals alleged, the possession of
assault and not the offense of aggravated sexual assault.      only three was criminalized. Id. at 876. The charge
For the reasons stated in the section regarding the            submitted all of the chemicals at issue and explicitly
indictment, we have previously found that the indictment       allowed conviction on a finding that appellant possessed
in question did allege the offense of aggravated sexual        chemicals the possession of which were not criminalized.
assault. His fourth issue is founded on the reading of the     Id. Only if we accept appellant's proposed reading of the
language in the jury charge that, based on his                 jury charge are we facing a Hammock issue. We have
interpretation of the comma placement, permitted him to        already rejected that proposition. Accordingly, appellant's
be convicted of aggravated sexual assault if the jury          fourth issue is overruled.
found that appellant placed the victim in the requisite fear
or "threaten[ed] to cause" such fear, the latter not being a   Cumulating of Fines
valid theory of guilt. However, appellant's [**23]
                                                                    Appellant's fifth issue contends that the judgment in
alternate reading is also grounded in a hypertechnical
                                                               No. 07-11-00354-CR improperly cumulates the fines.
construction, based upon a perceived error in the
                                                               The record reflects that appellant was convicted of felony
placement of a comma. We have previously rejected
                                                               assault in No. 07-11-00353-CR and sentenced to
appellant's general approach.
                                                               confinement for ten years in the ID-TDCJ and to pay a
    [HN8] Texas Penal Code section 22.021(a)(2)(A), as         fine of $10,000. Additionally, in No. 07-11-00354-CR,
applicable in this case, provides two methods of               the record reflects that appellant was found guilty in
demonstrating conduct that elevates the offense to an          Count I of [**25] sexual assault and sentenced to 20
aggravated offense:                                            years confinement and a fine of $10,000. Further, the
                                                               record reflects that appellant was found guilty of
           (ii) by acts or words that places the               aggravated sexual assault in Count II and sentenced to 50
       victim in fear that death, serious bodily               years confinement in the ID-TDCJ and a fine of $10,000.
       injury, or kidnapping will be imminently                The sentences are to be served concurrently, yet appellant
       inflicted on any person;                                is ordered to pay all of the fines. The State has candidly
                                                               admitted that the fines in No. 07-11-00354-CR have been
           (iii) by acts or words occurring in the             improperly cumulated and, as such, should be omitted.
       presence of the victim threatens to cause               Accordingly, we will modify the judgment in No.
       the death, serious bodily injury, or                    07-11-00354-CR to delete the fines.
       kidnapping of any person.
                                                               Attorney's Fees
See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii),(iii). In
                                                                   Appellant's last issue contends that there was no
a rather clumsy manner, the jury charge appears to
                                                               evidence upon which to support the order that appellant
combine the two methods of alleging the [*610]
                                                               pay for his appointed attorney, as required by the
aggravating conduct by tracking the language of the
                                                               judgment in appellate cause No. 07-11-00354-CR. Here,
                                                                                                             Page 9
                              382 S.W.3d 601, *610; 2012 Tex. App. LEXIS 7908, **25



the State again candidly admits that the evidence does not   07-11-00354-CR to omit the cumulated fines [**26] and
support the order for appellant to repay his appointed       the order for appellant to pay his appointed attorney's
attorney's fees. Accordingly, we will modify the             fees, we affirm the judgments of the trial court as
judgment in cause No. 07-11-00354-CR to delete the           modified.
payment of the attorney's fees by appellant.
                                                                 Mackey K. Hancock
Conclusion
                                                                 Justice
   Having overruled all of appellant's first four issues
and having modified the judgment in cause No.                    Publish.
                                                                                                                    Page 1




                      LARRY NEIL COOK, Appellant v. THE STATE OF TEXAS, Appellee

                                                     No. 0375-94

                                  COURT OF CRIMINAL APPEALS OF TEXAS

                                  902 S.W.2d 471; 1995 Tex. Crim. App. LEXIS 78


                                              June 28, 1995, Delivered

SUBSEQUENT HISTORY: [**1] As Corrected July                  20,000.00. Tex. Penal Code Ann. § 31.03. Appellant pled
3, 1995. Second Correction September 14, 1995.               "true" to the enhancement allegation and the trial judge
                                                             assessed punishment at ten years confinement and
PRIOR HISTORY: Petition for Discretionary Review             ordered restitution in the amount of $ 6,000.00. Tex.
from the Fourth Court of Appeals. 186th. Judicial District   Penal Code Ann. § 12.33. The Court of Appeals affirmed.
Court of Bexar County, TX.                                   Cook v. State, No. 04-93-00111-CR (Tex.App.--San
                                                             Antonio, January 5, 1994) (Not published). We granted
                                                             appellant's petition for discretionary review to determine
COUNSEL: For Appellant: Russell Sablatura, Mark              whether the [**2] charging instrument was so deficient
Stevens, J. Charles Bunk, Vincnet D. Callahan, San           as to not invest the trial court with jurisdiction. Tex. R.
Antonio, Tx.                                                 App. P. 200(c)(5). We will reverse.

For Appellee: Steven C. Hilbig, D.A. & Chris                 I.
DeMartino, A. J. Dimaline & Barbara Hervey, D. A's.
San Antonio, Tx. Robert Huttash, State's Attorney,                 We set out the charging instrument below:
Austin, Tx.
                                                                              IN THE NAME AND BY
JUDGES: Baird, Judge --- Clinton, Judge concurring                   AUTHORITY OF THE STATE OF
opinion --- Maloney, Judge concurring opinion joined by              TEXAS, the Grand Jury of Bexar County,
Mansfield, Judge --- Mansfield, Judge joins with note ---            State of Texas, duly organized, empaneled
Meyers, Judge dissenting opinion --- Judges White &                  and sworn as such at the March term,
Keller dissent                                                       A.D., 1991, of the 186th Judicial District
                                                                     Court of said County, in said Court, at said
OPINION BY: BAIRD                                                    term, do present in and to said Court that
                                                                     in the County and State aforesaid, and
OPINION                                                              anterior to the presentment of this
                                                                     indictment, and on or about the

 [*474] OPINION ON APPELLANT'S PETITION FOR                                     1ST day of June 1987,
DISCRETIONARY REVIEW                                                         hereinafter referred to as
                                                                             defendant, with intent to
    Appellant was convicted by a jury of theft over $
                                                                             deprive the owner, namely:
                                                                                                                          Page 2
                              902 S.W.2d 471, *474; 1995 Tex. Crim. App. LEXIS 78, **2



               ELIZABETH K. PRICE, of                                     appellant had been acquitted, no appellate
               property,            namely:                               court would hold that the state could retry
               LAWFUL         CURRENCY                                    him because the instrument was not an
               OF      THE         UNITED                                 indictment and therefore the trial court
               STATES OF AMERICA                                          never acquired jurisdiction. In what sense
               said property, said property                               then can it be said, after a conviction, that
               being other than real                                      the instrument was not an indictment and
               property which had A                                       the trial court did not acquire jurisdiction?
               VALUE         of     Twenty                                For jeopardy [*475] purposes, it is plain
               Thousand       Dollars     ($                              that [appellant] has been convicted and
               20,000.00)       or    more,                               punishment has [**4] been assessed for
               without     the     effective                              the offense of theft over $ 20,000 from
               consent of the owner;                                      [complainant] on June 1, 1987.

                   Before the commission                       Id., at 3-4.
               of the offense alleged
               above, on the 24th day of                            We granted appellant's petition for discretionary
               June, A.D., 1977, in Cause                      review to determine whether a charging instrument which
               no. CR 3-77-35, in the                          fails to charge "a person" still constitutes an indictment as
               UNITED            STATES                        contemplated by art. V, § 12(b).
               DISTRICT COURT FOR
               THE           NORTHERN                          II.
               DISTRICT OF TEXAS AT
                                                                     A.
               DALLAS, the Defendant
               was convicted of the felony                          The Texas Constitution guarantees to defendants the
               [**3] of FRAUD IN                               right to indictment by a grand jury for all felony offenses.
               OFFER OF SALE OF                                1 Tex.Const. art. I, § 10. See also, James C. Harrington,
               SECURITIES AND MAIL                             Our Texas Bill of Rights, 31 (Texas Civil Rights Project
               FRAUD.                                          1991). Art. I, § 10 provides in pertinent part:
                   [Signed by Grand Jury
                                                                                Rights of accused in criminal
               Foreperson]
                                                                          prosecutions

                                                                              In all criminal prosecutions the
                                                                          accused ... shall have the right to demand
                                                                          the nature and cause of the accusation
     On direct appeal, appellant contended his conviction
                                                                          against him, and to have a copy thereof ?
was void because the charging instrument was
                                                                          and no person shall be held to answer for a
constitutionally deficient because it omitted appellant's
                                                                          criminal offense, unless on an indictment
name and omitted the actus reus of the offense. The
                                                                          of a grand jury, except in cases in which
Court of Appeals, with one justice dissenting, affirmed.
                                                                          the punishment is by fine or
Cook, supra. Relying upon Studer v. State, 799 S.W.2d
                                                                          imprisonment, otherwise than in the
263 (Tex.Cr.App. 1990), the Court held appellant waived
                                                                          penitentiary ... .
the error by failing to object to the charging instrument
prior to trial. Cook, slip op. pg. 3. Addressing appellant's
constitutional argument, the court explained:
                                                                          1 Almost twenty-five years ago we considered
            Only by the most hypertechnical of                            whether the requirement of an indictment was
       arguments can it be said that the                                  jurisdictional or a right that could be waived. King
       instrument is not an "indictment." If                              v. State, 473 S.W.2d 43, 47 (Tex.Cr.App. 1971). In
                                                                                                                  Page 3
                             902 S.W.2d 471, *475; 1995 Tex. Crim. App. LEXIS 78, **4



       today's common parlance, the constitutional             306, 171 S.W. [**6] 747, 753 (Tex.Cr.App. 1914) (Op
       requirement of an indictment may be referred to         on reh'g). See also, 1 G. Braden, The Constitution of the
       as a fundamental systemic requirement, which is a       State of Texas: An Annotated and Comparative Analysis,
       right or requirement "so important that [its]           39 (Texas Legislative Counsel 1977). Second, an
       implementation is mandatory." Marin v. State,           indictment serves a jurisdictional function. Labelle v.
       851 S.W.2d 275, 280 (Tex.Cr.App. 1993). The             State, 720 S.W.2d 101, 106 (Tex.Cr.App. 1986);
       author of the dissent, who also authored Marin,         Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.
       contends that King holds an indictment is not a         1985); and, Drumm v. State, 560 S.W.2d 944, 946-947
       fundamental systemic requirement because it is          (Tex.Cr.App. 1977). The filing of an indictment is
       subject to waiver. Post at , n. 3; slip op. pg. 4,      essential to vest the trial court with jurisdiction over a
       n.3. But this conclusion is derived from a              felony offense. See, King, 473 S.W.2d at 47-49; Ex carte
       misreading of King where we held art. I, § 10 is        Krarup, 422 S.W.2d 173, 174 (Tex.Cr.App. 1967);
       not violated by a defendant's waiver of an              Melancon v. State, 367 S.W.2d 690, 692 (Tex.Cr.App.
       indictment under art. 1.141. Id., 473 S.W.2d at         1963); Kennedy v. State, 161 Tex. Crim. 303, 276 S.W.2d
       51. However, we further explained that "a felony        291, 294 (Tex.Cr.App. 1954) (Op. on reh'g);
       information acts in lieu of or as a substitute for an   Hollingsworth, 221 S.W. at 979; Turpin v. State, 86 Tex.
       indictment and its validity is therefore essential to   Crim. 96, 215 S.W. 455, 456 (Tex.Cr.App. 1919); Turman
       the court's jurisdiction." Id., at 51-52 (emphasis      v. State, 81 Tex. Crim. 320, 196 S.W. 181 (Tex.Cr.App.
       added). See also, Lackey v. State, 574 S.W.2d 97,       1917); and, Lott v. State, 18 Texas Ct. App. 627 [*476]
       100 (Tex.Cr.App. 1978). Consequently, King              (1885). Jurisdiction vests only upon the filing of a valid
       holds that art. 1.141 merely allows the                 indictment in the appropriate court. Tex.Const. Art. V, §
       substitution of one type of charging instrument for     12(b). See also, Crawford v. State, 624 [**7] S.W.2d
       another, but does not otherwise affect the              906, 907 (Tex.Cr.App. 1981); And, Garcia v. Dial, 596
       fundamental systemic requirement that a valid           S.W.2d 524, 527 (Tex.Cr.App. 1980).
       charging instrument be presented in order to vest
       the trial court with jurisdiction.                          B.

     [**5]                                                          Prior to 1985, this Court consistently held that
                                                               "substantive" defects in the charging instrument failed to
The constitutional requirement that felony offenses be         vest the trial court with jurisdiction and, therefore, a
prosecuted by indictment is firmly established. See, King      conviction on a substantively defective charging
v. State, 473 S.W.2d 43, 47-49 (Tex.Cr.App. 1971) ("The        instrument could be challenged for the first time on
requirement that felonies be prosecuted by indictment has      appeal. Studer, 799 S.W.2d at 267; Thompson, 697
been followed in Texas since the outbreak of the               S.W.2d at 415; Green v. State, 571 S.W.2d 13, 14-15
revolution against Mexico."); Hollingsworth v. State, 87       (Tex.Cr.App. 1978); Ex parte Garcia, 544 S.W.2d 432,
Tex. Crim. 399, 221 S.W. 978, 979 (Tex.Cr.App. 1920);          432-433 (Tex.Cr.App. 1976); American Plant Food Corp.
overruled in part, King, supra; Kinley v. State, 29 Texas      v. State, 508 S.W.2d 598, 603 (Tex.Cr.App. 1974);
Ct. App. 532, 16 S.W. 339, 340 (App. 1891); and,               Pospishel v. State, 95 Tex. Crim. 625, 255 S.W. 738
Graham v. State, 43 Tex. 550 (Tex. 1875). See also, Ex         (Tex.Cr.App. 1923); and, Woodard v. State, 86 Tex.
parte Preston, 833 S.W.2d 515, 522 (Tex.Cr.App. 1992)          Crim. 632, 218 S.W. 760 (Tex.Cr.App. 1920). This rule
(Clinton, J., concurring); and, Acosta v. State, 650 S.W.2d    developed over more than a century of decisions in which
827, 830 (Tex.Cr.App. 1983) (Onion, P.J., concurring).         we interpreted art. I, § 10 to create a "constitutional"
                                                               requirement that a charging instrument allege all
     An indictment serves two functions. First, it provides    elements of the offense in order to constitute an
notice of the offense in order to allow a defendant to         indictment. See, Brasfield v. State, 600 S.W.2d 288,
prepare a defense. Saathoff v. State, 891 S.W.2d 264, 266      301-302 (Tex.Cr.App. 1980) (Op. on reh'g); and,
(Tex.Cr.App. 1995); Evans v. State, 623 S.W.2d 924, 925        Williams v. The State, 12 Texas Ct. App. 395, 400-401
(Tex.Cr.App. 1981); Benoit v. State, 561 S.W.2d 810, 813       (Court [**8] of Appeals 1882). See also, George E. Dix,
(Tex.Cr.App. 1977); Wilson v. State, 520 S.W.2d 377, 379       Texas Charging Instrument Law: The 1985 Revisions and
(Tex.Cr.App. 1975); and, Zweig v. State, 74 Tex. Crim.         the Continuing Need for Reform, 38 Baylor L. Rev. 1, at
                                                                                                                 Page 4
                            902 S.W.2d 471, *476; 1995 Tex. Crim. App. LEXIS 78, **8



13-22 (1986). Accordingly, where the charging                      on appeal or in any other postconviction
instrument omitted an element of the offense the                   proceeding. ...
indictment was void and the trial court lacked
jurisdiction. See e.g., Gengnagel v. State, 748 S.W.2d      Art. 1.14(b) automatically took effect upon the voters
227, 229 (Tex.Cr.App. 1988); Thompson, 697 S.W.2d at        approval of the amendment to art. V, § 12. Studer,
415; Ex parte Luddington, 614 S.W.2d 427, 428               [**10] 799 S.W.2d at 266, n. 3.
(Tex.Cr.App. 1981); Brown v. State, 558 S.W.2d 471, 472
(Tex.Cr.App. 1977); Ex parte Cannon, 546 S.W.2d 266,            The amendment to art. V, § 12 was notable on two
273-274 (Tex.Cr.App. 1975); Jones v. State, 388 S.W.2d      grounds. First, by granting to the Legislature the
716 (Tex.Cr.App. 1965); and, Scott v. State, 171 Tex.       authority to prescribe legislation regulating the
Crim. 53, 344 S.W.2d 457 (Tex.Cr.App. 1961).                procedures and contents of charging instruments, the
                                                            amendment reversed a century of precedent regarding the
C.                                                          constitutional implications of charging instrument
                                                            defects. Studer, 799 S.W.2d at 289-290 (Clinton, J.,
    Frustrated with the common practice of defendants       concurring).
withholding substantive defects at trial and then raising
them on appeal in order to vitiate the conviction, the             [*477] Second, the amendment provided, for the
Texas Legislature in 1985 proposed an amendment to art.     first time in our history, a constitutional definition of an
V, § 12 of the Texas Constitution which authorized the      indictment. Art. V, § 12(b) defines an "indictment" as "a
Legislature to prescribe by statute the effects of          written instrument presented to a court by a grand jury
substantive defects in the charging instrument. The         charging a person with the commission of an offense."
amendment provided:                                         Art. V, § 12(b). Therefore, to comprise an indictment
                                                            within the definition provided by the constitution, an
           An indictment is a written instrument            instrument must charge: (1) a person; (2) with the
       [**9] presented to a court by a grand jury           commission of an offense. Art. V, § 12(b). See also,
       charging a person with the commission of             Luken v. State, 780 S.W.2d 264, 267 (Tex.Cr.App. 1989);
       an offense. An information is a written              And Robert R. Barton, Since 1985, Can An Indictment or
       instrument presented to a court by an                Information Be "Fundamentally" Defective for Failing to
       attorney for the State charging a person             Charge an Offense?, 25 St. Mary's L.J. 217, 225-226
       with the commission of an offense. The               (1993).
       practice and procedures relating to the use
       of indictments, including their contents,            III.
       amendment, sufficiency and requisites are
                                                                 In Studer, we addressed the second prong of the
       provided by law. The presentment of an
                                                            constitutional [**11] definition, namely, the requirement
       indictment or information to a court
                                                            that a charging instrument charge the commission of an
       invests the court with jurisdiction of the
                                                            offense. 2 Following his conviction on a plea of nolo
       cause.
                                                            contendere, Studer contended for the first time on appeal
                                                            that his conviction was void because the information
Art. V, § 12(b). In tandem with the constitutional
                                                            omitted an element of the offense. 799 S.W.2d 263 at
amendment, the Legislature also drafted implementing
                                                            264-265.
legislation in the form of an amendment to Tex. Code
Crim. Proc. Ann. art. 1.14. Art. 1.14(b) provided in               2 In addressing appellant's ground for review,
pertinent part:                                                    we couched the issue as follows: "Does the
            If the defendant does not object to a                  wording ... 'An indictment or information is a
        defect, error, or irregularity of form or                  written instrument ... charging a person with the
        substance in the indictment or information                 commission of an offense' mean it is an
        before the date on which the trial on the                  instrument that alleges all the constituent
        merits commences, he waives and forfeits                   elements of an offense or something else
        the right to object to the defect, error, or               (specifically something less)." Id., 799 S.W.2d at
        irregularity and may no raise the objection                266 (emphasis in original).
                                                                                                                        Page 5
                              902 S.W.2d 471, *477; 1995 Tex. Crim. App. LEXIS 78, **11



      In a thorough analysis of the legislative history of       the charging instrument fails to charge a person, then it is
art. V, § 12(b) and art. 1.14(b) we observed the intent          not an indictment as required by art. V, § 12(b) and art. I,
behind the amendments was not to "change what                    § 10.
constitutes a substance defect, but rather only its effect" if
not raised prior to trial. Id., at 268. Thus, a substantive           The conclusion that art. V, § 12(b) [**14]
defect in the charging [**12] instrument remains a defect        establishes constitutional requisites for an [*478]
and renders the charging instrument subject to a motion          indictment is supported by construing art. V, § 12(b) and
to quash. However, we further noted that because the             art. I, § 10 in accordance with standard rules of
omission of an element of the offense was "still a defect        constitutional interpretation. As a first step, we attempt to
of substance in an indictment, it naturally follows that the     effectuate the intent of the framers of a constitutional
indictment is still an indictment despite the omission of        amendment, and the voters who approved that
that element." Ibid. Accordingly, we concluded that a            amendment. Studer, 799 S.W.2d at 272; City of El Paso
charging instrument is not required to allege every              v. El Paso Community College District, 729 S.W.2d 296,
element of the offense in order to allege "the commission        298 (Tex. 1986); Gragg v. Cayuga Independent School
of an offense" as required by art. V, § 12(b). Id., at 272.      Dist., 539 S.W.2d 861, 866 (Tex. 1976); and, Farrar v.
                                                                 Board v. Trustees of Employees Retirement System of
     From Studer it follows that with regard to the second       Texas, 150 Tex. 572, 243 S.W.2d 688, 692 (Tex. 1952).
prong of the definition for an indictment, a substantively       While art. V, § 12(b) was clearly intended to eliminate
defective indictment is sufficient to vest the trial court       the requirement that an indictment charge every element
with jurisdiction. And in the wake of Studer, we have            of an offense, it is equally apparent that neither the
consistently held a charging instrument is not                   Legislature nor the voters intended to abrogate the
constitutionally void despite the omission of one or more        constitutional right to a charging instrument sufficient to
elements of the offense. Rodriguez, 799 S.W.2d 301, 303          constitute an indictment. Studer, 799 S.W.2d at 272, n. 12
(Tex.Cr.App. 1990) (indictment for evading arrest failed         ("The right to indictment by a grand jury ... has not been
to allege defendant knew complainant was police officer          abolished ... ."). See also, Dix, 38 Baylor L. Rev. at 26,
who was attempting to arrest him); Ex parte Morris, 800          28-34 (1986) (legislative history indicates legislators did
S.W.2d 225, 227 (Tex.Cr.App. 1990) (forgery indictment           not intend to eliminate [**15] necessity of an
failed to allege that writing [**13] purported to be act of      indictment). Consequently, art. V, § 12(b) cannot be read
another who did not authorize act); And, Ex parte                to dispense with the necessity of filing an "indictment" in
Gibson, 800 S.W.2d 548, 551 (Tex.Cr.App. 1990)                   the trial court in order to vest the court with jurisdiction
(indictment failed to allege date of offense). See also,         and provide notice to the defendant.
State v. Murk, 815 S.W.2d 556, 558 (Tex.Cr.App. 1991).
                                                                      When construing constitutional provisions, we are
IV.                                                              required to interpret the Constitution as a whole, rather
                                                                 than piecemeal. Oakley v. State, 830 S.W.2d 107, 110
    Today we are called upon to decide the question              (Tex.Cr.App. 1992); and, Pierson v. State, 147 Tex. Crim.
unanswered by Studer: does a charging instrument                 15, 177 S.W.2d 975, 977 (Tex.Cr.App. 1944). Thus,
constitute an indictment within the constitutional               constitutional provisions are not to be examined in
definition of art. V, § 12(b) if it completely fails to charge   isolation from comparable provisions. In Oakley we
"a person"?                                                      explained:

     While art. V, § 12(b), through its implementing                       ... the Constitution must be read as a
legislation, art. 1.14(b), "de-constitutionalized" the                  whole so as to give effect to each and
requirement that an indictment allege every element of                  every provision. ... No part of the
the offense, the amendment nevertheless provided a                      Constitution should be given a
definition for an "indictment" which had heretofore been                construction which is repugnant to express
defined only statutorily. Thus, art. V, § 12(b) established
                                                                        authority contained in another part, if it is
constitutional requisites for a charging instrument to                  possible to harmonize the provisions by
constitute an indictment. To constitute an indictment, the              any reasonable construction.
charging instrument must charge: (1) a person, and (2)
the commission of an offense. It is clear, however, that if
                                                                                                                     Page 6
                             902 S.W.2d 471, *478; 1995 Tex. Crim. App. LEXIS 78, **15



  Id., 830 S.W.2d at 110 (citations omitted). See, also,
Clapp v. State, 639 S.W.2d 949, 951 (Tex.Cr.App. 1982);                    The power to make laws [**18] is
Texas National Guard Armory Board v. McCraw, 132                       vested through the Constitution in the
Tex. 613, 126 S.W.2d 627, 634 (Tex. 1939);                             Legislature. ... However, the Legislature
Collingsworth County v. Allred, [**16] 120 Tex. 473, 40                does not have the power to enact any law
S.W.2d 13, 17 (Tex. 1931); and, Jones v. Williams, 121                 contrary to the provisions of the
Tex. 94, 45 S.W.2d 130, 137 (Tex. 1931). Because art. V,               Constitution. If any law or part thereof,
§ 12(b) and art. I, § 10 address similar subjects, we are              undertakes to nullify the protection
compelled to examine each provision in context and                     furnished by the Constitution, such law, or
attempt to give effect to both unless they are                         part thereof, that conflicts with the
irreconcilable. Clapp, 639 S.W.2d at 951-952.                          Constitution is void.
Comparing art. V, § 12(b) and art. I, § 10, we find they
are complementary rather then conflicting. Art. V, §            Id., 179 S.W.2d at 273. See also, Maher v. Lasater, 163
12(b) should be read in context to art. I, § 10: the latter    Tex. 356, 354 S.W.2d 923, 924-925 (Tex.1962); City of
established the right to an indictment, and the former         Fort Worth v. Howerton, 149 Tex. 614, 236 S.W.2d 615,
establishes the constitutional definition for what             618 (Tex.1951); Jones v. Ross, 141 Tex. 415, 173 S.W.2d
constitutes an indictment. Although art. V, § 12(b)            1022, 1024 (Tex. 1943); Empire Gas & Fuel Co. v. State,
subsequently authorizes the Legislature to prescribe the       121 Tex. 138, 47 S.W.2d 265, 274 (Tex. 1932); Cameron
requisites and sufficiency of indictments, we do not read      v. Connally, 117 Tex. 159, 299 S.W. 221, 223 (1927);
this grant of authority so broadly as to authorize the         Crabb v. Celeste Independent School District, 105 Tex.
Legislature to prescribe rules which undermine the             194, 146 S.W. 528, 532 (Tex.1912); and, 12A Tex.Jur.3d,
constitutional definition of an indictment because this        Constitutional Law, § 6. "Certainly, a statute cannot
would render art. V, § 12(b) internally inconsistent. See,     override the Constitution." Cramer v. Sheppard, 140 Tex.
Gallagher v. State, 690 S.W.2d 587, 591-592                    271, 167 S.W.2d 147, 155 (Tex. 1942). Thus, as Judge
(Tex.Cr.App. 1985) ("Constitutional provisions will not        Clinton stated in his concurring opinion in Studer: "[The]
be construed to be ambiguous or contradictory if such          meaning and import of Article V, § 12(b), insofar as it
construction is possible."); [**17] and, Clapp, 639            defines 'indictment or information,' [**19] is a question
S.W.2d at 951. ("... courts should avoid a construction (of    for this Court. The Legislature is free to prescribe
constitutional provisions) which renders any provision         'contents ... sufficiency, and requisites,' [of an indictment]
meaningless or inoperative and must lean in favor of a         but only within constitutional parameters." 3 Id., 799
construction which will render every word operative,           S.W.2d at 293 (Clinton, J., concurring). See also, Dix, 38
rather than one which may make some words idle and             Baylor L.Rev. at 40-41.
nugatory.") Since "the language used (in a constitutional
provision) must be presumed to have been carefully                     3    All emphasis is supplied by author unless
selected," we do not believe the Legislature would                     otherwise indicated.
provide a constitutional definition of an indictment and
                                                                      Finally, although we attempt to construe a
then subsequently authorize itself to prescribe statutory
                                                               constitutional provision according to its literal language,
rules which undermine that definition. Gallagher, 690
                                                               we are nonetheless obliged to avoid a construction which
S.W.2d at 592.
                                                               renders an absurd or unreasonable result. 16 Am.Jur.2d,
     Moreover, a construction of art. V, § 12(b) which         Constitutional Law, § 112, p. 464. See also, In re Thoma,
places the constitutional definition of an indictment          873 S.W.2d 477, 489 (Tex.Rev.Trib. 1994); and, Cramer,
within the purview of art. 1.14(b) is problematic because      167 S.W.2d at 155 ("...constitutional and statutory
it subjects a constitutional provision to statutory            provisions will not be so construed or interpreted as to
authority. It is fundamental to constitutional and statutory   lead to absurd conclusions ... if any other construction or
construction that the Legislature lacks the authority to       interpretation can reasonably be indulged in ..."). For
enact a statute [*479] which conflicts with a provision        instance, in DeDonato v. State, 819 S.W.2d 164
of the Constitution. In Dendy v. Wilson, 142 Tex. 460,         (Tex.Cr.App. 1994), Judge Maloney observed that with
179 S.W.2d 269 (Tex. 1944), the Texas Supreme Court            [**20] regard to the art. V, § 12's provision relating to
expressed this proposition as follows:                         court jurisdiction,
                                                                                                                       Page 7
                              902 S.W.2d 471, *479; 1995 Tex. Crim. App. LEXIS 78, **20



                                                                          defendant," charged "a person." However, such a
           ...a literal reading of article V, § 12(b)                     construction would effectively nullify the
        could lead to absurd results. If the mere                         constitutional definition of art. V, § 12(b). Rather,
        presentment of an indictment could vest                           we believe art. V, § 12(b) requires that an
        jurisdiction in any court, then, absent an                        indictment charge a particular person. This
        objection from the defendant, a capital                           interpretation is consistent with the statutory
        murder case could be properly tried in a                          definition of an indictment provided by Tex. Code
        county court. I cannot believe that such a                        Crim. Proc. Ann. art. 21.01: "An indictment is the
        result was the legislature's or the voter's                       written statement of a grand jury accusing a
        intent.                                                           person therein named of some act or omission
                                                                          which, by law, is declared to be an offense."
 Id., at 168 (Maloney, J., concurring, joined by Baird and       [**22]
Benavides, JJ.). See also, Marin, 851 S.W.2d at 279 ("[A]                 5 We pause to note that we are not addressing a
person may not be tried in Texas for a felony offense by                  situation where the charging instrument alleges an
the County Court at Law, even if he consents.").                          incorrect name, see, Tex. Code Crim. Proc. Ann.
                                                                          arts. 26.07 and 26.09 (accused is obliged to state
     Similarly, we do not believe a reasonable                            true name when charging instrument is read at
construction of art. V, § 12(b) permits the conclusion that               arraignment), or where the person's name is
the constitutional definition of an indictment falls within               unknown and the charging instrument alleges only
the purview of art. 1.14(b) because this construction                     a physical description, Mt, Tex. Code Crim. Proc.
clearly leads to an absurd result. If art. V, § 12(b) subjects            Ann. art. 21.07 ("... When the name of the person
all requisites of an indictment to the scope of art. 1.14(b),             is unknown to the grand jury, that fact shall be
and hence, to waiver, then we can conceive of no point at                 stated, and if it be the accused, a reasonably
which a charging instrument is so deficient as to not                     accurate description of him shall be given in the
constitute an indictment. Clearly, this construction of art.              indictment."). In such cases, the charging
V, § 12(b) [**21] would permit a blank sheet of paper to                  instrument is an indictment within the meaning of
suffice for a valid indictment. We do not believe the                     art. V, § 12(b) because whether erroneously or
Legislature or the voters could have intended this result                 through a lack of information, the indictment still
when approving art. V, § 12(b). Nor do we believe this                    charges "a person."
construction of art. V, § 12(b) comports with the right to
an indictment guaranteed by art. I, § 10.                        V.

      We therefore hold that the definition of an                     In the instant case, the charging instrument wholly
indictment provided by art. V, § 12(b) establishes               failed to charge "a person." Thus, the charging instrument
constitutional requisites for an indictment. Art. V, § 12(b)     did not meet the first prong of the constitutional
does not authorize the Legislature to statutorily change         definition of art. V, § 12(b). Consequently, the charging
these fundamental requirements. See, Howerton, 236               instrument was not an indictment as required by art. V, §
S.W.2d at 618; and, Dendy, 179 S.W.2d at 273.                    12(b) and art. I, § [**23] 10, and did not vest the trial
Accordingly, to constitute an indictment as required by          court with jurisdiction. Therefore, appellant's conviction
art. I, § 10 and art. V, § 12(b), a charging instrument must     is void.
at least charge "a person," with [*480] the commission
of an offense. 4 If the charging instrument fails to charge           The judgment of the Court of Appeals is reversed
"a person" then it is not an indictment and does not vest        and we remand this cause to the trial court with
the trial court with jurisdiction. 5 Moreover, because a         instructions to dismiss the prosecution in this cause. 6
valid indictment is essential for jurisdiction, it is not
                                                                          6 Appellant's remaining ground for review is
subject to waiver. Crawford, 624 S.W.2d at 907; and,
                                                                          dismissed.
Lackey v. State, 574 S.W.2d 97, 100 (Tex.Cr.App. 1978).
                                                                      BAIRD, Judge
        4    Perhaps one could argue that the instant
        charging instrument, by simply stating "the                   Mansfield, J. joins with note.
                                                                                                                    Page 8
                               902 S.W.2d 471, *480; 1995 Tex. Crim. App. LEXIS 78, **



    White and Keller, JJ., dissent.                            however, the Court is intellectually dishonest, and for that
                                                               reason I cannot join its opinion.
    (Delivered June 28, 1995)
                                                                    CLINTON, Judge
    En banc
                                                                    (Delivered: June 28, 1995)
CONCUR BY: CLINTON; MALONEY; Mansfield
                                                                    EN BANC
CONCUR
                                                               CONCURRING OPINION

 [**24] CONCURRING OPINION ON APPELLANT'S                           MALONEY, J.
PETITION FOR DISCRETIONARY REVIEW
                                                                    I join the opinion of the majority, but write
    CLINTON, Judge                                             separately to emphasize that the majority's opinion is
                                                               consistent with and strengthened by the principles set
     For the reasons stated in Judge Meyers' dissenting        forth in Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App.
opinion, I concur in the Court's judgment in this cause. I     1994). I also write to point out that the dissenting opinion
agree with Judge Meyers that the majority's disposition is     rests upon a flawed reading of this Court's opinion in
in all things inconsistent with the rationale and holding of   Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990).
Studer v. State, 799 S.W.2d 263 (Tex.Cr.App. 1990), for
precisely the reasons he gives in his dissent. I also agree    I.
with him that Studer was wrongly decided. Id., at
                                                                    The majority correctly states that the constitutional
286-293 (Clinton, J., concurring). Moreover, something
                                                               amendments in 1985 provided for the first [**26] time a
very similar to the approach Judge Maloney now
                                                               definition of "indictment." Majority opinion at 6. Under
advances in his concurring opinion, derived from his
                                                               this new definition, an "indictment" is an instrument that
opinion for the Court in Fisher v. State, 887 S.W.2d 49
                                                               charges (1) a person (2) with the commission of an
(Tex.Cr.App. 1994), was suggested at the time of Studer,
                                                               offense. Id. at 6.
but rejected. Id., at 293. I can only conclude that the
majority's disposition today is fundamentally at odds with          This Court in Studer v. State, 799 S.W.2d 263 (Tex.
Studer.                                                        Crim. App. 1990), held that "the commission of an
                                                               offense" was still alleged despite the omission of an
     Unlike Judge Meyers, I have no compunction about
                                                               element of the offense. We expounded on this notion in
overruling Studer, stare decisis notwithstanding. As I
                                                               Fisher, supra, where we discussed the problem of
observed in a companion case to Studer, Rodriguez v.
                                                               determining sufficiency of the evidence in the event of an
State, 799 S.W.2d 301 (Tex.Cr.App. 1990):
                                                               indictment, like that in Studer, that does not allege all of
                                                               the elements of the offense. We began by recognizing the
         "In attempting to pluck what it perceives
                                                               relationship between the indictment, a defendant's
       to be the stray thread of fundamentally
                                                               expectations about what he would be tried for, the jury
       defective [**25] indictments from the
                                                               instructions, and ultimately the appellate court's review of
       criminal jurisprudence, the majority
                                                               the sufficiency of the evidence to support the conviction.
       threatens to unravel the whole fabric of
                                                               We emphasized that "there must be a connection between
       our criminal procedure."
                                                               the crime with which a defendant is charged in the
                                                               indictment and a reviewing court's role in reviewing the
 [*481] Id., at 304 (Clinton, J., dissenting). See Studer v.
                                                               sufficiency of the evidence to support a conviction."
State, supra, 799 S.W.2d 263 at 292 (Clinton, J.,
                                                               Fisher, 887 S.W.2d at 53. Accordingly, we concluded
concurring). At the risk of mixing metaphors, I would nip
                                                               that it was necessary to be able to identify the [**27]
that threat as close to the bud as possible, and admit that
                                                               offense with which the defendant was charged in the
we are overruling Studer. Because, as Judge Meyers ably
                                                               indictment, and we set forth a scheme by which that
illustrates, the Court all but does so, I concur in its
                                                               could be accomplished even in the face of an inadequate
judgment. In failing expressly to overrule Studer,
                                                               indictment. Id. at 55-58.
                                                                                                                       Page 9
                              902 S.W.2d 471, *481; 1995 Tex. Crim. App. LEXIS 78, **27



     It logically follows from our reasoning and holding         the essential holding of Studer[.]" Dissenting opinion at 1
in Fisher that in order to charge "the commission of an          (Meyers, J., dissenting). Curiously, the dissent's own
offense" for purposes of Article V, § 12, there must be          rendition of the Court's holding in Studer represents
enough alleged to enable one to identify the offense. 1          [*482] a significant departure from the actual language
This principle also logically applies to the portion of the      of the opinion.
constitutional definition that the instrument charge "a
person." Enough must be alleged so that a person is                   The dissent summarizes the holding in Studer as
identifiable in the body of the indictment as one charged        follows:
with the commission of an offense. No person is named
or described as the accused in the indictment in the                       A written instrument presented to a court
instant case. Therefore, appellant correctly asserts that the            by a grand jury which does not charge "an
charging instrument is constitutionally deficient. For                   offense" is, nevertheless, an indictment,
these reasons, as well as those discussed in the majority                and, therefore, invests the court with
opinion, I join the opinion of the Court.                                jurisdiction.

   [EDITOR'S NOTE: TEXT WITHIN THESE                             Id. at 1. It then goes on to revisit and track the analysis in
SYMBOLS [O<>O] IS OVERSTRUCK IN SOURCE.]                         Studer leading to this purported holding. First noted is
                                                                 that Studer held that the failure to allege all of the
       1 In Fisher we stated,                                    elements of the offense is a defect of substance. This is
                                                                 accurate. The dissent then identifies the first of the four
                  We assume in this opinion that                 statutory defects of substance as "failure to charge an
               the indictment alleges enough to                  offense[.]" Id. at 2. Following this, the dissent states that
               identify the offense charged. For                 Studer therefore concluded that "a written instrument
               example, an indictment might                      which does not allege every constituent element of a
               allege only four of five elements of              statutory crime is substantively defective because it does
               a particular offense. By comparing                not charge an offense." Id [**29] . (emphasis added).
               the allegations in the indictment,
               albeit incomplete, with various                        The flaw in this line of reasoning springs from a
               penal code provisions, one should                 loose rephrasing of the first of the statutorily defined
               be able to determine which entire                 defects of substance. Article 27.08 provides that it is a
               offense the State is alleging.                    defect of substance of an indictment or information "that
                                                                 it does not appear therefrom that an offense against the
        Fisher, 887 S.W.2d at 55 n.10. Slightly further          law was committed by the defendant." Tex. Code Crim.
       elaboration is needed to put this approach into           Proc. Ann. art. 27.08(1). The dissent restates this as
       practice. If it is the case that all of the allegations   providing that it is a defect of substance of an indictment
       in the indictment are common to more than one             or information that it "does not charge an offense." I
       offense, and none are distinguishing to any single        cannot agree with this broad translation. "That it does not
       offense, then I would hold that the offense               appear that an offense was committed" is far different
       charged is that to which the fewest elements must         from "that it does not charge an offense."
       be added to those alleged in order to arrive at a
       complete offense. If the allegations in the                   This distinction is critical in light of the
       indictment are so deficient that one cannot               constitutional requirement that an indictment charge "the
       identify the offense alleged, then the indictment is      commission of an offense." Tex. Const. Art. V, § 12.
       insufficient to confer subject matter jurisdiction.       Under the dissent's rephrasing of the matter, article 27.08
                                                                 permits waiver of what the constitution requires--the
         [TEXT   DELETED                   BY       COURT        constitution requires that an indictment charge an
       EMENDATION]                                               offense; yet (according to the dissent's rephrasing) article
                                                                 27.08 provides that the "failure to charge an offense" is a
[**28] II.                                                       defect of substance which, under article 1.14(b) is
                                                                 waiveable. Under [**30] a true reading of the provisions,
    The dissent disparages the majority for "revis[ing]
                                                                                                                   Page 10
                               902 S.W.2d 471, *482; 1995 Tex. Crim. App. LEXIS 78, **30



the constitution requires that an indictment charge the                Armstrong, 110 Tex. Crim. 362, 8 S.W.2d 674,
commission of an offense; article 27.08 provides that it is            676 (1928)). Without subject matter jurisdiction a
a defect of substance "that it does not appear that an                 court has no authority to act.
offense was committed." 2 (emphasis added). The
constitution speaks in terms of what is necessary to                        The constitutional and statutory amendments
charge the commission of an offense; article 27.08                     and our interpretation of them in Studer, have not
speaks in terms of whether it appears from the                         eliminated the basic notion of subject matter
allegations that an offense was committed. The essential               jurisdiction. The Texas Constitution as amended
holding of Studer was that the absence of an element                   provides that "the presentment of an indictment or
made it appear that an offense was not committed (a                    information to a court invests the court with
defect of substance), but was nevertheless sufficient to               jurisdiction of the cause." In order to give
charge the commission of an offense for constitutional                 meaning to this provision and the constitutional
purposes of jurisdiction. 3                                            requirement that the indictment charge the
                                                                       commission of "an offense," they must be
         2 The dissent points out that article 27.08 has               construed as requiring that the indictment allege
         long been interpreted to mean that an indictment              enough to identify the offense charged and
         is substantively defective if it does not charge an           accordingly invest subject matter jurisdiction.
         offense, despite its language to the effect that it           This is also consistent with the principles set forth
         does not appear that an offense was committed.                in Fisher, as discussed above.
         Dissenting opinion at 2, n.2 (Meyers, J.,
         dissenting). These interpretations, however, were            [**32] [*483] As the majority points out, in
         made prior to the constitutional amendments in         construing constitutional provisions, "we are obliged to
         1985 which added the definition of "indictment."       avoid a construction which renders an absurd or
         As emphasized in the majority's opinion,               unreasonable result." Majority opinion at 11. In order to
         constitutional and statutory provisions should be      charge "the commission of an offense" an indictment
         interpreted in harmony, if possible, so as to give     must allege enough so that the offense alleged can be
         meaning and effect to both. See Majority opinion       identified. This vests the court with subject matter
         at 9-11.                                               jurisdiction. See fn. 2, supra. Article 1.14(b) and 27.08 do
[**31]                                                          not permit waiver of subject matter jurisdiction. Rather, if
         3 It is elemental that a trial court must have         enough is alleged to enable the identification of an
         subject matter jurisdiction. As explained by this      offense for purposes of subject matter jurisdiction under
         Court,                                                 the constitution, but the allegations are nevertheless
                                                                deficient so that technically it does not appear that an
                   A court of competent jurisdiction            offense was committed, there is a waiveable defect of
                means a court that has jurisdiction             substance. This is what happened in Studer.
                of the offense. [citation omitted] . .
                                                                    The dissent repeatedly states that in Studer this Court
                . One of the requisite elements of
                                                                decided that the indictment there did not charge an
                'jurisdiction' is jurisdiction over the
                                                                offense. The dissent quotes the following language from
                subject matter. The expression
                                                                Studer:
                'subject matter,' as used with
                reference to the problem of
                                                                           The change in Art. 1.14(b) requires,
                jurisdiction, in criminal law, refers
                                                                       among other things, that substance
                to the offense.
                                                                       exceptions be raised pre-trial or otherwise
                                                                       the accused has forfeited his right to raise
          Hulton v. State, 351 S.W.2d 248, 255 (Tex. Crim.
                                                                       the objection on appeal or by collateral
         App. 1961) (emphasis added). This Court has
                                                                       [**33] attack. If omitting an element from
         further stated that jurisdiction means "the right to
                                                                       an indictment is still a defect of substance
         adjudicate concerning the subject matter in a
                                                                       in an indictment, it naturally follows that
         given case." Garcia v. Dial, 596 S.W.2d 524, 527
                                                                       the indictment is still an indictment
         (Tex. Crim. App. 1980) (quoting Ex parte
                                                                                                                   Page 11
                             902 S.W.2d 471, *483; 1995 Tex. Crim. App. LEXIS 78, **33



       despite the omission of that element.                        Mansfield, J., joins this opinion with the following
                                                               note: I join the majority opinion of the Court, agreeing
Dissenting opinion at 3 (quoting Studer, 799 S.W.2d at         that a charging instrument that fails to charge "a person"
268). Nowhere in this quoted language or anywhere else         is not an indictment as defined by art. V, § 12(b) and art.
in the opinion can I find that the Court stated that the       I, § 10 of the Texas Constitution. I am troubled, however,
indictment failed to charge an offense. The issue              by the failure of trial counsel to object to the error in the
presented in Studer was whether the indictment's failure       charging instrument prior to trial, given that the error was
to allege all of the elements of an offense could be raised    obvious. Had this been done, a substantial amount of time
for the first time on appeal, or whether such defect was in    and resources (both State's and appellant's) would have
fact waived. 4 The defect presented in Studer was not          been saved, and justice would have been better served.
such that the offense (and accordingly the subject matter
jurisdiction of the court) could not be determined. There      DISSENT BY: MEYERS
was an absence of one element. 5 Indeed the Court spoke
throughout the opinion in terms of "omitting an element",      DISSENT
"the omission of that element", that an indictment "need
not necessarily allege every element", a "missing                 DISSENTING OPINION ON APPELLANT'S
element", "if an element of an offense is omitted", "the       PETITION FOR [**35] DISCRETIONARY REVIEW
omission of an element", "missing an element", "each
                                                                    I believe that Studer v. State, 799 S.W.2d 263 (Tex.
constituent element", "the absence of an element", and
                                                               Crim. App. 1990) was wrongly decided, mainly for the
"each element of the [**34] offense". Nowhere in our
                                                               reasons given by the majority in this case. Accordingly, I
opinion in Studer is there any discussion of the possibility
                                                               do not disagree, at least in the abstract, with most of what
that an indictment might omit more than one or even all
                                                               the majority opinion has to say. Where I part company
elements of an offense and remain constitutionally sound.
                                                               with my colleagues on this issue is at the point where
       4 Studer presented the issue as                         they revise the essential holding of Studer to support a
                                                               distinction which is at odds both with logic and with the
                      Does the wording "An                     law.
               indictment or information is a
                                                                    The Texas Constitution defines "indictment" as "a
               written instrument . . . charging a
                                                               written instrument presented to a court by a grand jury
               person with the commission of an
                                                               charging a person with the commission of an offense" 1
               offense" mean it is an instrument
                                                               and it [*484] provides that "presentation of an
               that alleges all the constituent
                                                               indictment . . . to a court invests the court with
               elements of an offense or
                                                               jurisdiction of the cause." Tex. Const. art. 5, § 12. In
               something      else    (specifically
                                                               Studer we held that a written instrument presented to a
               something less).
                                                               court by a grand jury which does not charge "an offense"
                                                               is, nevertheless, an indictment and, therefore, invests the
       Studer, 799 S.W.2d at 266 (emphasis in original).
                                                               court with jurisdiction. Today, a majority of the Court
       5 We readily identified the offense charged, but
                                                               holds that a written instrument presented to a court by a
       noted the absence of a single allegation. We stated
                                                               grand jury which does not charge "a person" is not an
       that the defendant was charged with indecent
                                                               indictment and does not, therefore, invest the court with
       exposure, but the indictment failed to allege the
                                                               [**36] jurisdiction. The basis for this remarkable
       act or acts relied upon to constitute recklessness.
                                                               distinction is not made clear by the majority opinion, and
     With these comments, I join the opinion of the            because the requirement that an indictment charge "an
majority.                                                      offense" is given by the same constitutional provision
                                                               requiring it to charge "a person," I cannot subscribe to the
    MALONEY, J.                                                view that one requirement is forfeitable while the other is
                                                               not.
    Delivered June 28, 1995
                                                                      1 The Code of Criminal Procedure describes it
    Mansfield, J., joins.                                             somewhat differently as "the written statement of
                                                                                                                  Page 12
                             902 S.W.2d 471, *484; 1995 Tex. Crim. App. LEXIS 78, **36



       a grand jury accusing a person therein named of                        degree as to charge no offense
       some act or omission which, by law, is declared to                     against the law, and thereby be
       be an offense." Tex. Code Crim. Proc. art. 21.01.                      void, will the exception to the
                                                                              substance be considered for the
      The Court's mistake, I think, derives from a                            first time on appeal under Article
fundamental misunderstanding of our opinion in Studer.                        27.08(1), supra.
The majority seems to think that, under the Studer
rationale, an indictment may be sufficient to charge an                 American Plant Food Corp. v. State, 508 S.W.2d
offense even though it fails to allege all essential                   598, 604 (Tex.Cr.App. 1974). Any suggestion,
elements of that offense so long as one can tell from                  therefore, that an indictment may be sufficient to
examining it what offense the State intended to charge.                charge an offense within the meaning of the
See Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App.                    Constitution, yet "appear" not to charge an
1994); [**37] Thomason v. State, 892 S.W.2d 8 (Tex.                    offense within the meaning of article 27.08(1),
Crim. App. 1994). But that was not Studer's rationale at               would represent an interpretation of the latter so
all. What this Court actually held in Studer, and in its               radically different from any thus far contemplated
companion case of Rodriguez v. State, 799 S.W.2d 301                   by our precedents as to be entirely novel. For
(Tex. Crim. App. 1990), was that any written instrument                present purposes, however, it is enough to know
returned by a grand jury is an indictment for purposes of              that our opinion in Studer expressly eschewed any
investing a court with jurisdiction, whether it charges "an            departure from existing case law on the subject.
offense" or not. A brief restatement of the argument          [**39]
given in Studer makes this perfectly clear.                            3     Clearly, omission of a constituent element
                                                                       does not suggest that the prosecution is limitations
     We began our analysis with the proposition that                   barred, that the alleged conduct was excused or
failure of an indictment or information to allege all                  justified, or that the subject matter of the
constituent elements of an offense is a defect of substance            prosecution is otherwise beyond the trial court's
and that "the amendments to Art. 1.14, V.A.C.C.P., and                 jurisdiction. Accordingly, if omission of a
Art. V, § 12 did not, on their face, change this                       constituent element is indeed a defect of
long-standing precedent." 799 S.W.2d 263 at 268. We                    substance, it must be because a failure to plead all
conceded that there are only four defects of substance                 offensive elements is tantamount to a failure to
known to Texas criminal law: failure to charge an offense              charge an offense.
2, failure to allege a date within the statutory period of
limitation, allegation of a defense, and apparent lack of           Having thus decided that the purported indictment in
jurisdiction. Tex. Code Crim. Proc. art. 27.08; 799           Studer did not charge an offense, we next proceeded to
S.W.2d at 267. We concluded that a written instrument         inquire whether the failure of a written instrument to
which does not allege every constituent element of [**38]     charge an offense means that it is not an indictment
a statutory crime is substantively defective because it       within the meaning of the Texas Constitution, article V,
does not charge an offense. 3                                 section 12. Reasoning that the Code of Criminal
                                                              Procedure, article 1.14(b), requires ill defects of
       2     Article 27.08, Subdivision 1 says that an        substance in an indictment, including its failure to charge
       indictment or information is substantively             an offense, to be raised prior to trial, we [*485] inferred
       defective if "it does not appear therefrom that an     that the Legislature did not mean to imply a written
       offense against the law was committed by the           instrument is not really an "indictment" unless it charges
       defendant." This Court has always understood the       the commission of an offense.
       statute to mean that an indictment is substantively
       defective if it does not charge an offense. The                     The change in Art. [**40] 1.14(b)
       cases which illustrate this fact are legion. For                requires, among other things, that
       present purposes, however, it is sufficient to quote            substance exceptions be raised pre-trial or
       from only one of the most famous and influential.               otherwise the accused has forfeited his
                                                                       right to raise the objection on appeal or by
                 Only if the defect be of such a                       collateral attack. If omitting an element
                                                                                                                   Page 13
                              902 S.W.2d 471, *485; 1995 Tex. Crim. App. LEXIS 78, **40



       from an indictment is still a defect of                  doubt about what specifically is necessary for the
       substance in an indictment, it naturally                 exercise of such jurisdiction, they have gone on expressly
       follows that the indictment is still an                  to say that "a written instrument presented to a court by a
       indictment despite the omission of that                  grand jury charging a person with the commission of an
       element.                                                 offense" is required. This seems pretty clear to me.

799 S.W.2d 263 at 268.                                                 4 Ironically, the majority seems to concede that,
                                                                       under our prior law, as interpreted in King v.
     It is thus apparent that Studer was making exactly the            State, 473 S.W.2d 43 (Tex. Crim. App. 1971),
same argument Cook makes in the instant cause. He                      indictments were not really jurisdictional, since
argued that defects in an indictment must be raised before             they could be waived. Slip Op. at 2 n.1.
trial only if the defective instrument is actually an                  Jurisdictional defects, of course, are not waivable.
indictment under the constitutional definition. He                     But the majority then goes on to describe "the
maintained that a written instrument which does not                    constitutional requirement of an indictment" as a
charge an offense is not an indictment, just as Cook now               "fundamental systemic requirement" under our
maintains that a written instrument which does not charge              holding in Marin v. State, 851 S.W.2d 275 (Tex.
a person is not an indictment. This argument, however,                 Crim. App. 1993) because it is "so important that
was plainly and unambiguously rejected in Studer. That                 it is mandatory absent an express waiver." This is
the Court now accepts it in the instant cause represents a             wrong, of course. Under Marin, fundamental
significant revision of our Studer position which, in                  systemic requirements are not waivable at all.
fairness to bench and bar alike, we ought to acknowledge.              Perhaps it is the majority's view that the
                                                                       constitutional requirement that an indictment
     Mind you, I am not irrevocably opposed to such a                  name "a person," while not jurisdictional, is
revision. Indeed, [**41] I am sympathetic with the view,               nevertheless cognizable on direct appeal even
expressed in the majority opinion here, that an indictment             absent a trial objection because it is a waivable
does not "invest a court with jurisdiction," as the                    right of the defendant. If so, the majority opinion
Constitution puts it, unless it "charg[es] a person with the           is especially interesting, since the Constitution
commission of an offense." This is not because I think                 does not seem to make the indictment itself a right
that a written instrument should be made a necessary                   of the defendant. The truth is that, prior to the
prerequisite to the exercise of a trial court's jurisdiction,          amendment of article 5, section 12 in 1985, the
any more than I think it should not. In my opinion, the                Texas Constitution did not provide that any
lawmakers of this State may choose to predicate the                    specific written instrument was necessary to
exercise of trial-level criminal jurisdiction upon the                 "invest the court with jurisdiction of the cause." It
existence of a written instrument if they see fit to do so.            was only our case law that did that -- the very
But, should they instead decide to dispense with the                   case law sought to be eliminated by the
requirement of a charging instrument altogether, I would               amendments of 1985, and which were eliminated
not be inclined to think it unconstitutional. After all, the           in fact by our holding in Studer. Accordingly, the
grand jury screening to which defendants are                           majority's position would be better supported by a
constitutionally entitled in felony cases can be                       claim that the constitutional amendment
accomplished without memorializing the process in a                    effectively overruled King. But then, of course,
formal document, and the notice to which defendants are                the Code of Criminal Procedure articles providing
constitutionally entitled in all criminal cases can be                 for the waiver of an indictment would be
provided from a different source. Tex. Const. art. I, § 9.             unconstitutional.

     Nevertheless, it is apparent that the people of Texas            [**43] [*486] But Studer would not have it to be
have not in fact opted to dispense with formal charging         so, and I will not disgrace the jurisprudence of this Court
[**42] instruments in criminal cases. Indeed, they have         or insult the intelligence of trial judges and lawyers by
deliberately chosen to require an indictment or                 pretending that Studer is consistent with the majority
information before "invest[ing] [a] court with                  view in this case when it obviously is not. The Studer
jurisdiction" of a criminal case. 4 And, lest there be any      Court realized that its interpretation of the questioned
                                                                                                                   Page 14
                             902 S.W.2d 471, *486; 1995 Tex. Crim. App. LEXIS 78, **43



constitutional language was not literal. In fact, it           just the sort of thing that introduces unnecessary [**45]
consciously decided not to construe such language              complexity into the case law, confuses practitioners, and
according to its plain meaning because it realized that        diminishes this Court in the estimation of judges and
doing so would effectively undermine the purpose of            scholars. If it were the pleasure of this Court to
those legislators who enacted the Code amendments and          reexamine the holding in Studer, I would most likely
those citizens who approved the constitutional                 approve the effort. If, after reconsideration, it were the
amendments in question. In fact, nearly half of our            opinion of the Court to overrule or substantially qualify
opinion in Studer is actually devoted to investigating and     Studer, I might even be willing to join the opinion, so
articulating extratextual sources of legislative intent in     long as it had the overwhelming support of my
order to demonstrate why the constitutional definition of      colleagues, definitively settled the issue, and was justified
"indictment" should not be read as it is written. The          by more than a mere acknowledgement of error. But the
author of Studer even cited it in a later dissenting opinion   Court has done none of these things in the instant cause,
as one of two contemporary, leading authorities for the        and seems disinclined to do them in future. Instead, it
proposition that "ambiguity in a statute is not apparent       merely reverses course, quietly reinstating the law of
until the legislative history is researched and the true       jurisdictional pleading defects and pretending all the
legislative intent is discerned." [**44] Boykin v. State,      while that Studer is still alive and well. But, of course, it
818 S.W.2d 782, 789 (Tex. Crim. App. 1991) (Miller, J.,        isn't.
dissenting).
                                                                    The rule of stare decisis obliges appellate judges to
     Thus, although I believe Studer was wrongly               respect the precedents of their own court, whether they
decided, it was by no means an accident, nor was its           agree with those precedents or not. That does not mean,
rationale expressed by the Court without due                   of course, that bad cases should never be overruled. It
consideration. Fully five years passed between enactment       only means that cases should not be overruled without a
of the statutory and constitutional amendments and our         compelling reason. It also means that cases should not be
construction of them in Studer. During that time, the          distinguished [**46] on patently fictitious grounds. The
issues were vigorously debated in the courts of appeals        underlying rationale of Studer, however mistaken it may
and eventually in this Court. Everyone knew what the           have been as a matter of constitutional interpretation, is
arguments were on both sides. And, in the end, the             nevertheless a more coherent and workable approach to
Court's opinion was virtually unanimous. Only a single         charging instrument law than the one with which,
judge expressed significant disagreement with the              inspired by Fisher and Thomason, the Court leaves us in
majority rationale. See Studer, 799 S.W.2d at 286              this case. Because I cannot agree that there are
(Clinton, J., concurring); Rodriguez, 799 S.W.2d at 303        compelling reasons to make a bigger mess of the law than
(Clinton, J., dissenting).                                     Studer already has, I respectfully dissent.

     Now, only five years later, most of the Studer Court          MEYERS, Judge
is gone. And so, apparently is Studer itself. What began
as a grass roots movement for the reform of charging               DELIVERED: June 28, 1995
instrument law, focused almost exclusively on the
                                                                   EN BANC
elimination of jurisdictional defects from indictments and
informations, has now become a caricature of itself. It is
                                                                                                                 Page 1




                     RUBEN DURON, JR., Appellant v. THE STATE OF TEXAS, Appellee

                                                    NO. 0568-96

                                 COURT OF CRIMINAL APPEALS OF TEXAS

                                  956 S.W.2d 547; 1997 Tex. Crim. App. LEXIS 76


                                            October 8, 1997, Delivered

SUBSEQUENT HISTORY:                 [**1] As Corrected      affect the jurisdiction of trial courts to proceed with an
November 20, 1997.                                          adjudication of guilt. The most widely-held view was
                                                            that, contrary to long-standing judicial interpretation, the
PRIOR HISTORY: Petition for Discretionary Review            ends of criminal justice would best be served by
from the First Court of Appeals. [HARRIS County].           providing that convictions not be reversed on account of
                                                            any pleading defects which were not called to the
DISPOSITION: Affirmed.                                      attention of the court prior to trial. In 1985, a statute to
                                                            this effect was enacted. Tex. Code Crim Proc. [**2] art.
                                                            1.14(b).
COUNSEL: Winston E. Cochran, Jr., Houston.
                                                                 But from the beginning, the meaning and effect of
Rikke Burke Graber, Assist. DA., Houston.                   this statute were unclear. Although art. 1.14(b) plainly
                                                            provided that failure to object before trial to the form or
JUDGES: MEYERS, Judge. MANSFIELD, J. Womack,                substance of an "indictment or information" forfeited the
Judge. Presiding Judge McCormick and Keller, J., join       right of a defendant to complain about it on appeal, there
this concurrence.                                           remained considerable disagreement about whether this
                                                            rule applied to an accusatory pleading which only
OPINION BY: MEYERS                                          purported to be, but was not in fact, an "indictment or
                                                            information" as defined in the Texas Constitution. See
OPINION                                                     TEX. CONST. art. V, § 12. Thus, it was argued, a
                                                            pleading which did not actually charge "a person with the
                                                            commission of an offense" was not an "indictment or
[*548] OPINION ON APPELLANT'S PETITION
                                                            information" [*549] at all within the meaning of the
FOR DISCRETIONARY REVIEW                                    Texas Constitution, and that any conviction based upon
                                                            such an instrument was, therefore, not merely defective
     More than a decade ago, the people of Texas and        or irregular but absolutely void. After some five years of
their elected representatives attempted to overcome years   litigation in the intermediate appellate courts, we held in
of charging instrument case law through constitutional      Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. Proc.
amendment and related legislation. It was the consensus     1990), that the constitutional mandate that an indictment
of lay and professional opinion that defects in the         "charge an offense" does not mean "that each element of
pleading of indictments and informations ought not to       the offense must be alleged..." It has been argued that
                                                                                                                   Page 2
                             956 S.W.2d 547, *549; 1997 Tex. Crim. App. LEXIS 76, **2



Studer [**3] 's holding necessarily means that a pleading     appear than an offense was committed, there is a
need not charge the "commission of an offense" to             waivable defect of substance.
qualify as an indictment or information under the Texas
Constitution. Studer, 799 S.W.2d at 293 (Clinton, J.,              Cook, 902 S.W.2d at 483 (Tex. Crim. App.
dissenting); Cook v. State, 902 S.W.2d 471, 483 (Tex.         1995)(Maloney, J., concurring). Judge Maloney's
Crim. App. 1995)(Meyers, J., dissenting). Indeed, later       understanding of Studer was inspired, at least in part, by
case law, citing Studer, only requires that an indictment     Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App. 1994).
purport to charge an offense in order to vest the trial       See Cook, 902 S.W.2d at 480 (Clinton, J., concurring)
court with jurisdiction, implying, perhaps, that an           and 481 (Maloney, J., concurring) and 484 (Meyers, J.,
indictment no longer need actually charge an offense. Ex      dissenting). In Fisher we addressed the problem of
parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App.            measuring the sufficiency of evidence against jury
1990); Ex parte Morris, 800 S.W.2d 225, 227 (Tex. Crim.       charges that, after Studer, could no longer be assumed to
App. 1990).                                                   incorporate indictments that alleged all the elements of
                                                              the offense charged. There we held that the sufficiency of
     But this Court has gleaned a different meaning from      evidence to support a conviction under an instrument
Studer and its progeny. In Cook v. State, 902 S.W.2d 471      which does not charge all the elements of an offense
(Tex. Crim. App. 1995), we revisited the very argument        should be measured on appeal against the statutory
advanced five years before in Studer, that an instrument      offense which the State intended to charge, at least if it is
purporting to be an indictment or information is not really   possible to determine from the face of the instrument
an indictment or information unless it actually charges "a    which statutory offense the State really intended. Fisher,
person with the commission of an offense." In Cook,           887 S.W.2d at 55.
however, this argument was directed, not at failure of the
purported pleading to charge an offense, but at [**4] its          But the Court in Fisher never squarely addressed
failure to charge a person. We accepted the argument,         [**6] the question of what need be in a written
expressly holding that "to comprise an indictment within      instrument before that instrument may be considered an
the meaning provided by the constitution, an instrument       indictment. Although Judge Maloney suggested an
must charge: (1) a person; (2) with the commission of an      answer in Cook, he did not speak for the Court. And so,
offense." 902 S.W.2d at 476. Because the written              confusion on the topic persists.
instrument in Cook did not allege the identity of any
                                                                   As this Court noted in Studer, the legislative history
person, we held that it was not an indictment or
                                                              behind the 1985 amendment and [*550] its attendant
information and the trial court had therefore never
                                                              legislation indicates that those changes meant to preserve
acquired jurisdiction to adjudicate Cook guilty of any
                                                              a written instrument as an indictment even "though it be
criminal offense. Accordingly, we reversed his conviction
                                                              flawed by matter of substance..." Studer, 799 S.W.2d at
and ordered that the purported charging instrument be
                                                              271. But, as we emphasized in Cook, not all "indictment"
dismissed.
                                                              defects are matters of substance such that a defendant
     Thus, in Cook, we emphasized that a written              must object to them before trial or lose his right to
instrument must charge a person with the commission of        complain about them on appeal. Some defects, instead,
an offense in order to qualify as an indictment. But we       remove the written instrument from the ambit of art.
did not elaborate upon this basic constitutional definition   1.14(b) because they render the instrument a
of an indictment. The only indication of what it meant to     non-indictment. Cook, 902 S.W.2d at 478. Judge
charge a person "with the commission of an offense", in       Maloney understood those defects to be of the type that
fact, came not in the majority opinion, but in Judge          would make it impossible for the defendant to know with
Maloney's concurring opinion. Joining the Court, Judge        what offense he had been charged. The legislative history
Maloney stated that:                                          behind the 1985 changes supports this understanding:

    ...if enough is alleged to enable the identification of       In essence what this [proposal] does is [to redefine]
an offense for purposes of subject matter jurisdiction        what an indictment [**7] is. And [it] actually defines it
under the [**5] constitution, but the allegations are         in fairly specific terms as to what...an indictment is
nevertheless deficient so that technically it does not        supposed to do...Obviously, it is still important that each
                                                              and every person charged with an offense know what he
                                                                                                                     Page 3
                              956 S.W.2d 547, *550; 1997 Tex. Crim. App. LEXIS 76, **7



is charged with. The definition under the [proposal]           under which the State intends to prosecute, even if the
would do that. It would advise that person essentially         instrument [*551] is otherwise defective. See Dix,
what he is charged with, but you don't have to worry           supra; Cook, 902 S.W.2d at 483 (Maloney, J.,
about whether you described the car sufficiently, or the       concurring). 3
weapon sufficiently, or those things, as long as it gives
some kind of notice of what the charge is.                              1 Our case law indicates that art. I, § 10 is
                                                                        concerned not only with the particular statutory
     G. Dix, Texas Charging Instrument Law: The 1985                    offense, but also with the specific incident of that
Revisions and the Continuing Need for Reform, 38                        statutory offense. Flowers v. State, 815 S.W.2d
Baylor L.Rev. 1, at 39-40, n. 137 (Winter 1986), citing                 724, 729 (Tex. Crim. App. 1991).
Hearing on Tex. H.R.J. Res. 7 Before the House Comm.                    2 It may be argued that a defendant can protect
On Criminal Jurisprudence, 69th Leg., (Feb. 18,                         his art. I, § 10 rights by merely objecting to the
1985)(tape recording available from the Texas                           indictment prior to trial as required by art.
legislature).                                                           1.14(b). But we have held that a defendant's art. I,
                                                                        § 10 rights to a grand jury indictment are not
     This understanding is also in keeping with a                       forfeited by the failure to object. King v. State,
defendant's TEX. CONST. art. I, § 10 rights to a grand                  473 S.W.2d 43 (Tex. Crim. App. 1971)(The right
jury screening. Id. at 43. Under art. I, § 10, a defendant              to a grand jury indictment may be expressly
has a right to have a grand jury pass upon the question of              waived but cannot be lost merely upon the failure
whether there is probable cause to believe that he                      to object); See also Ex Parte Long, 910 S.W.2d
committed a particular offense. 1 See TEX. CONST. art.                  485, 487 (Tex. Crim. App. 1995) (Meyers, J.,
I, § 10, [**8] interp. commentary. A defendant also has                 concurring).
a right, under art. V, § 12, to the presentment of an          [**10]
indictment from that grand jury. Id. While we have never                3 If it is true that, under art. I, § 10, a defendant
expressly stated that the indictment must reflect the grand             has the right to demand that the grand jury pass
jury's assessment that there is probable cause to believe               not only on whether there is probable cause that
that the defendant committed a particular offense, this                 he committed a particular statutory offense, but on
becomes apparent when the two rights are juxtaposed.                    whether there is probable cause that he committed
This is so because the written indictment most directly                 a particular statutory offense on a specific day and
evidences that the proper grand jury screening has taken                time, then it might be argued that a defendant has
place. The effect upon these rights, the right to a grand               a right to have those details reflected in the
jury screening and the right to have that screening                     indictment. See Flowers, supra. But to require
reflected in a written instrument, by our interpretation of             that amount of specificity would undermine art.
"indictment" under art. V, § 12 is obvious. If we allow a               V, § 12 as recently amended. Of course, a
written instrument to stand as an indictment even when it               defendant may complain, for the first time on
does not contain enough information to point to the                     appeal, that the specific incident of a statutory
offense charged, then we seriously undermine a                          offense for which he was convicted differs from
defendant's art. I, § 10 rights to have the grand jury's                the specific incident (of the same statutory
screening reflected in the indictment, and in so doing, a               offense) for which he was indicted, but he cannot
defendant also loses his assurance that the appropriate                 complain, for the first time on appeal, that the
screening has taken place. 2 But in Cook v. State, 902                  indictment is defective in that it did not reflect
S.W.2d at 478, we stated that, to the extent possible, we               those details (and, thus, did not allow him to
ought not define an indictment [**9] under art. V, § 12                 know what specific incident the grand jury passed
in such a way that we render a defendant's art. I, § 10                 upon). Pursuant to art. 1.14(b), he must make that
rights to a grand jury screening meaningless. Recognizing               objection before trial.
this sentiment, we today adopt as law the suggestion,
made by both Professor Dix and Judge Maloney, that a                In the instant cause, we are once again asked [**11]
written instrument is an indictment or information under       to hold that a purported indictment is not really an
the Constitution if it accuses someone of a crime with         indictment because it does not charge "the commission of
enough clarity and specificity to identify the penal statute   an offense." But unlike our earlier cases, this complaint is
                                                                                                                     Page 4
                              956 S.W.2d 547, *551; 1997 Tex. Crim. App. LEXIS 76, **11



directed against a written instrument which does allege         CONCUR
on its face all of the statutory elements comprising a
criminal offense under the Texas Penal Code. It charges
that appellant, acting with intent to arouse his own sexual     CONCURRING OPINION ON APPELLANT'S
desire, had sexual contact with a child younger than
                                                                    PETITION FOR DISCRETIONARY REVIEW
seventeen years of age who was not his spouse. These
allegations contain all of the statutory elements of                MANSFIELD, J.
indecency with a child. See Texas Penal Code §
21.11(a)(1). But, according to appellant, the instrument            Texas Constitution, Article V, § 12 provides:
also contains factual allegations establishing, if true, that
he is not guilty of indecency with a child. It alleges that          An indictment is a written instrument presented to a
the sexual contact between appellant and the child              court by a grand jury charging a person with the
occurred when appellant rubbed his penis between her            commission of an offense. An information is a written
legs. Appellant argues that, because the law defines            instrument presented to a court by an attorney for the
"sexual contact" only as "any touching of the anus,             State charging a person with the commission of an
breast, or any part of the genitals of another person," and     offense. The practice and procedures relating to the use of
because legs are not included, the purported indictment         indictments, including their contents, amendment,
does not actually charge the commission of an offense           sufficiency and requisites are provided by law. The
and is not, therefore, an indictment [**12] so as to confer     presentment of an indictment or information to a court
jurisdiction on the trial court. The First Court of Appeals     invests the court with jurisdiction of the cause.
disagreed, holding that the written instrument was,
indeed, an indictment because it was returned by a grand            Texas Code of Criminal Procedure article 1.14
jury, purported to charge the appellant with the offense of     provides:
indecency with a child, and was facially an indictment.
                                                                     (b) If the defendant does not object to a defect, error,
     The court of appeals did not err. The instant cause        or irregularity of form or substance in an indictment or
does not involve a charging instrument which is even            information before the date on which the trial on the
arguably defective on account of its failure to include one     merits commences, he waives and forfeits the right to
or more allegations necessary to give notice of the             object to the defect, error or [*552] irregularity and he
statutory offense with which the defendant was charged.         may not raise the objection on appeal or in any post
As we have come to hold today, this is all that Studer and      conviction [**14] proceeding. Nothing in this article
Cook require to satisfy the mandate of Art. V, § 12 that        prohibits a trial court from requiring that an objection to
an indictment charge "the commission of an offense."            an indictment or information be made at an earlier time in
This is true whether an indictment fails to allege one          compliance with Article 28.01 of this Code.
element of an offense or whether it contains additional
                                                                     An indictment, therefore, must, to be constitutionally
information that may indicate innocence. Thus, regardless
                                                                valid, be a written instrument which charges "a person"
of the inclusion of factual allegations that arguably
                                                                with "the commission of an offense." An indictment
evidence appellant's innocence, there is no doubt that the
                                                                serves two functions. First, the filing of an indictment is
State intended to accuse appellant of indecency with a
                                                                what vests the trial court with jurisdiction over a felony
child, and appellant does not claim otherwise.
                                                                offense. Labelle v. State, 720 S.W.2d 101, 106
     The judgment of the court of appeals is therefore          (Tex.Crim.App. 1986); Thompson v. State, 697 S.W.2d
affirmed.                                                       413, 415 (Tex.Crim.App. 1985); King v. State, 473
                                                                S.W.2d 43, 47 (Tex.Crim.App. 1971). Second, it gives
     [**13] MEYERS, Judge                                       notice to the defendant of the offense of which he has
                                                                been charged so that he can prepare a defense. Saathoff
    EN BANC                                                     v. State, 891 S.W.2d 264, 266 (Tex.Crim.App. 1994);
                                                                Evans v. State, 623 S.W.2d 924, 925 (Tex.Crim.App.
    DELIVERED: October 8, 1997                                  1981).
CONCUR BY: MANSFIELD; Womack                                        In Cook v. State, 902 S.W.2d 471 (Tex.Crim.App.
                                                                                                                 Page 5
                             956 S.W.2d 547, *552; 1997 Tex. Crim. App. LEXIS 76, **14



1995), we held that a written instrument which fails to            In the present case, the indictment contains the
charge "a person" with an offense is not an indictment as     essential elements of the offense of indecency with a
defined by Article V, § 12(b) and Article I, Section 10 of    child. Tex. Penal Code § 21.11(a)(1). It charges appellant
the Texas Constitution. 1 We held:                            with that offense, and meets all of the requirements to be
                                                              a facially valid indictment. The indictment describes the
       1 In Cook the offense charged was theft of over        sexual contact between appellant and the complainant as
       $ 20,000 in United States currency. The charging       consisting only of contact between the complainant's
       instrument properly described the offense charge       [**17] legs and appellant's penis. Appellant contends the
       but failed to name the person charged with said        indictment is constitutionally void ab initio because legs
       offense.                                               are not referenced in the definition of "sexual contact"
                                                              under Texas Penal Code § 21.01(2). This contention is
      [**15] Accordingly, to constitute an indictment as      without merit. 2 As correctly stated in the [*553]
required by Article V, § 12(b) and Article I, Section 10, a   opinion of the Court, Studer and Cook require an
charging instrument must at least charge "a person" with      indictment merely to charge "a person" with "the
the "commission of an offense." If the charging               commission of an offense" to satisfy Article V, § 12. An
instrument completely fails to charge "a person" then it is   indictment is not constitutionally defective merely
not an indictment and does not invest the trial court with    because it fails to allege one or more elements of the
jurisdiction. Moreover, because a valid indictment is         charged offense or contains language, as here, that may
essential for jurisdiction, the lack of same is not subject   indicate innocence. Furthermore, appellant does not
to waiver under Article 1.14(b) due to a failure to make a    demonstrate the indictment was so defective as to deny
timely objection to the indictment. Cook, supra, at           him the ability to prepare his defense and thereby denied
479-480 (citations and footnotes omitted).                    him of his right to due process and due course of law
                                                              under Article I, Section 19 of the Texas Constitution. See
    Therefore, an indictment which fails to name "a
                                                              Adams v. Texas, 707 S.W.2d 900 (Tex.Crim.App. 1986).
person" is not an indictment under the Texas Constitution
and its validity may be challenged on appeal even if no              2       This language may well have been
timely objection under Article 1.14(b) to it was made                successfully challenged via a timely motion to
before the date on which appellant's trial commenced.                quash under Article 1.14(b) as being defective.
      Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.               [**18] With these comments, I join the opinion of
1990), addresses the second requirement under the Texas       the Court.
Constitution that must be met for an indictment to qualify
as such: that it "charge an offense." In Studer, this Court       MANSFIELD, J.
held that while an indictment, to be valid, must charge
"an offense," it does not have [**16] to allege all of the        DELIVERED OCTOBER 8, 1997
elements of that offense for it to pass constitutional
muster. The failure to include one or more elements of            EN BANC
the offense in the indictment, while a defect of substance,
                                                                  CONCURRING OPINION ON APPELLANT'S
is not a defect of constitutional magnitude causing the
indictment not to be an indictment under Texas                    PETITION FOR DISCRETIONARY REVIEW
Constitution Article V, § 12 provided the indictment
charges an identifiable offense under the Texas Penal             Womack, Judge
Code. In effect, an indictment which merely omits one or
more elements of the offense charged is defective as               The question in this case is whether the appellant,
being incomplete; such defects are waived if not timely       who did not object to the indictment before trial, may
raised in the manner prescribed under Article 1.14(b).        raise on appeal a claim that the indictment does not
Studer, supra, at 268; Cook, supra, at 477; Rodriguez v.      charge an offense. I believe that he may not. The Court
State, 799 S.W.2d 301, 303 (Tex.Crim.App. 1990); Ex           holds that he may, because some indictments are not
parte Morris, 800 S.W.2d 225, 227 (Tex.Crim.App.              indictments, thereby resurrecting the doctrine of the
1990).                                                        fundamentally defective indictment.
                                                                                                                  Page 6
                             956 S.W.2d 547, *553; 1997 Tex. Crim. App. LEXIS 76, **18



    On June 21, 1994 this indictment was presented:                This Court's predecessor, the Court of Appeals, held
                                                              in its first term that an appeal could be based on an error
   IN THE NAME AND BY AUTHORITY OF THE                        in the substance of an indictment to which no objection
STATE OF TEXAS:                                               had been made at trial.

     The duly organized Grand Jury of Harris County,               Whatever is essential to the gravamen of the
Texas, presents in the District Court of Harris County,       indictment must be set out particularly, and whenever it
Texas, that in Harris County, Texas, RUBEN DURON,             clearly appears in the record that the defendant has been
JR., hereafter styled the Defendant, on or about APRIL        convicted on an indictment that is clearly defective in
2, 1994, did then and there unlawfully, with intent to        substance, although, as in the present case, neither
arouse the sexual desire of the Defendant, have sexual        exception, motion, nor assignment of error is presented
contact with [A.B.], hereafter styled the Complainant, a      on behalf of appellant, it will be held insufficient to
child under the age of seventeen years and not his spouse,    support a conviction.
by rubbing his penis between [A.B.'s] legs,
                                                                   White v. State, 1 Texas Ct. App. 211, 215 (1876)
   AGAINST THE PEACE AND DIGNITY [**19]                       (burglary indictment failed to set out the elements of the
OF THE STATE.                                                 intended theft). Eventually this Court held that a
                                                              judgment based on such an indictment was "void, rather
    FOREPERSON 177TH                                          than [*554] voidable," [**21] and could be attacked
                                                              for the first time in collateral proceedings as well as
     [signature]
                                                              appeals. Standley v. State, 517 S.W.2d 538, 541 (Tex. Cr.
    FOREMAN OF THE GRAND JURY                                 App. 1975). Such indictments were "fundamentally
                                                              defective." Ibid. Untold thousands of judgments were
    The appellant made no motion to set aside,           1    reversed or set aside for pleading errors which had not
exception to, 2 or other objection to, the indictment.        been pointed out to the trial court.

       1 Tex. Code Crim. Proc. art. 27.03.                         Legislative attempts to reform pleading practice were
       2 Tex. Code Crim. Proc. arts. 27.08 & 27.09.           unavailing. The Court of Appeals held that the
                                                              constitutional requirement of an "indictment" 3 meant an
     On September 22, 1994 the appellant waived his           indictment that was pleaded under the practice at the time
right to trial by jury with the consent of the State; he      the Constitution of 1876 was adopted -- that is, one that
pleaded guilty, and he made a written, judicial confession    had all the essential elements. Williams v. State, 12
in the terms of the indictment. There was no agreement        Texas Ct. App. 395 (1882). Therefore an indictment that
that the State would recommend a certain punishment or        did not charge an offense was not an "indictment" in
restrict its argument. The appellant filed a written motion   terms of the constitution. 4
for community supervision. The case was continued to
December 9. A pre-sentence investigation report was                  3 Tex. Const. art. I, § 10.
prepared. On December 9, 1994 the court found the                    4 See also Smis v. State, 43 Tex. 521 (1875)
appellant guilty and, after hearing evidence and argument            (indictment also required by Tex. Const. art V, §
and considering the pre-sentence report, sentenced the               12 to conclude "Against the peace and dignity of
appellant to two years' imprisonment. The appellant gave             the State").
notice of appeal and remained at large on appeal bond.
                                                                   The appellant [**22] makes the same argument in
     The appellant's [**20] first point of error was that     this case:
the indictment failed to allege the offense of indecency
with a child. A divided panel of the court of appeals held         An indictment must charge an offense. The Texas
that the appellant waived his claim because he did not        Constitution says so. See Cook v. State, 902 S.W.2d 471,
object before trial. Duron v. State, 915 S.W.2d 920 (Tex.     477 (Tex. Cr. App. 1995), citing Studer v. State, 799
App. -- Houston [1st] 1996). We granted discretionary         S.W.2d 263, 272 (Tex. Cr. App. 1990). Here the
review on the question of waiver.                             indictment on its face does not charge a violation of
                                                              Section 21.11, but rather charges specific conduct which
                                                                                                                    Page 7
                             956 S.W.2d 547, *554; 1997 Tex. Crim. App. LEXIS 76, **22



is not within the scope of "sexual conduct."                        The Court says that "the meaning and effect of this
                                                               statute were unclear." Ante at 956 S.W.2d 547, 548. There
     Appellant's Brief at 21-22. As another court said in      is nothing unclear about it. As we held in Studer v. State,
response to an argument that the law was not changed by        supra, the constitutional amendment and its
a constitutional amendment, "The people of the state           accompanying legislation mean that a defendant waives
adopted the amendment for the purpose of ridding the           the right to appeal a defect of substance in an indictment
state of the incubus which the construction contended for      if he does not raise an objection before trial:
had saddled upon it." Harris County v. Stewart, 91 Tex.
133, , 41 S.W. 650, 655 (1897).                                      [*555] When Art. V., § 12 is read in conjunction
                                                               with the code provisions regulating the practices and
     The same argument that the appellant presents was         procedures governing charging instruments, it is clear the
rejected in Studer v. State, supra. This Court held that the   amendment to [Code of Criminal Procedure] Art. 1.14
appellant's argument cannot prevail after the 1985             did not change what constitutes a substance defect, but
amendment to Article V, Section 12(b) of the Texas             rather only its effect. The change in Art. 1.14(b) requires,
Constitution, which now reads:                                 among other things, that substance exceptions be raised
                                                               pre-trial or otherwise the accused has forfeited his right to
     An indictment is a written instrument presented to a      raise the objection on appeal or by collateral [**25]
court by a grand jury charging a person with the               attack. If omitting an element from an indictment is still a
commission of an offense. An information is a written          defect of substance in an indictment, it naturally follows
[**23] instrument presented to a court by an attorney for      that the indictment is still an indictment despite the
the State charging a person with the commission of an          omission of that element.
offense. The practice and procedures relating to the use of
indictments and informations, including their contents,             Studer v. State, supra, at 268.
amendment, sufficiency, and requisites, are as provided
by law. The presentment of an indictment or information            The       Court's      resurrection       of     the
to a court invests the court with jurisdiction of the cause.   fundamentally-defective indictment doctrine is made in
                                                               complete disregard of the will of the people, which they
     The amendment was specifically intended to undo           have expressed directly through amendment of the
the doctrine of the fundamentally defective indictment, as     Constitution and indirectly through the enactment of
this Court explained in detail in Studer v. State, supra, at   Article 1.14.
268-72. "In conclusion then, the language in Art. V, § 12,
'charging a person with the commission of an offense,'              I do not know what the people of this state, their
does not mean, under this analysis, that each element of       legislators, and their governor can do to eliminate this
the offense must be alleged in order to have an indictment     pernicious doctrine. The argument that an indictment is
or information as contemplated by Art V, § 12." Id. at         not an indictment if it has a defect seems irresistible. I
272.                                                           believe that if this Court were abolished, its chambers
                                                               demolished, the ground plowed up, and the site paved
   Legislation which accompanied the constitutional            over, one day a crack would appear in the concrete, and
amendment enacted Tex. Code. Crim. Proc. art. 1.14(b):         through that crack a black-robed arm would thrust an
                                                               opinion that says, "We hold that the indictment in this
     If the defendant does not object to a defect, error, or   case was not an indictment."
irregularity of form or substance in an indictment or
information before the date on which the trial on the               The Court reaches the right result in this case, but for
merits commences, he waives and forfeits the right to          reasons that are obviously wrong. The conviction in this
object [**24] to the defect, error, or irregularity and he     case is affirmed, but make no mistake -- after it will
may not raise the objection on appeal or in any other          [**26] come the renewed deluge of convictions set aside
postconviction proceeding. Nothing in this article             for no good reason.
prohibits a trial court from requiring that an objection to
an indictment or information be made at an earlier time in         Womack, Judge
compliance with Article 28.01 of this code.
                                                                   En banc
                                                                                         Page 8
                             956 S.W.2d 547, *555; 1997 Tex. Crim. App. LEXIS 76, **26



Delivered: October 8, 1997                                 concurrence

    Presiding Judge McCormick, and Keller, J., join this
                                                                                                                Page 1




                BRYAN C. HARRISON, Appellant, v. THE STATE OF TEXAS, Appellee. JOHN
                    G. BENAVIDES, Appellant, v. THE STATE OF TEXAS, Appellee.

                       CAUSE NUMBER 13-01-547-CR, CAUSE NUMBER 13-01-548-CR

                   COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS
                                          CHRISTI

                                    76 S.W.3d 537; 2002 Tex. App. LEXIS 1773


                                             March 7, 2002, Delivered
                                              March 7, 2002, Filed

PRIOR HISTORY:           [**1] On appeal from the 36th      court erred by denying their motions to quash the
District Court of Arkansas County, Texas.                   indictments. Because the point of error raised by each
                                                            appellant and the facts surrounding each appellant's
DISPOSITION: AFFIRMED.                                      appeal are identical, we will address them together in this
                                                            one opinion. We affirm.

COUNSEL: ATTORNEY FOR APPELLANT: David L.                          1 Appellants were hunting together when the
Cunningham, Killian, Hayden & Cunningham, San                      events leading to their indictment occurred. The
Antonio, TX.                                                       record indicates that, while hunting on San Jose
                                                                   Island, Aransas County, Texas, Harrison shot and
ATTORNEY FOR APPELLEE: Patrick L. Flanigan,                        killed a six-point white-tail buck and Benavides
District Attorney, Sinton, TX.                                     shot and killed a seven-point white-tail buck.

JUDGES: Before Justices Dorsey, Yanez, and Castillo.              [**2] Appellants argue that the indictments in their
Opinion by Justice Yanez.                                   cases failed to allege: (1) appellants knew the property on
                                                            which the offenses were committed was private property;
OPINION BY: LINDA REYNA YANEZ                               (2) the landowner did not give consent to hunt, kill, or
                                                            possess wildlife resources on the property; and (3) the
OPINION                                                     appellants knew that the landowner had not consented. 2
                                                            We review a challenge to a trial court's ruling on a
     [*539] Opinion by Justice Yanez                        motion to quash an indictment under an abuse of
                                                            discretion standard. Thomas v. State, 621 S.W.2d 158,
     Appellants were indicted for the state jail felony
                                                            163 (Tex. Crim. App. 1980).
offense of taking a wildlife resource without the consent
of the landowner. 1 See TEX. PARKS & WILD. CODE                    2 With the exception of the defendants' names
ANN. § 61.022 (Vernon Supp. 2002). Both appellants                 and cause numbers, the indictments are identical.
moved to quash their indictments. When the court denied
the appellants' motions, they pleaded nolo contendere. In        In general, an indictment must plead any element
one point of error, appellants now argue that the trial     that must be proved at trial. See TEX. CODE CRIM.
                                                                                                                   Page 2
                               76 S.W.3d 537, *539; 2002 Tex. App. LEXIS 1773, **2



PROC. ANN. art 21.03 (Vernon 1989); Green v. State,                  4 Appellants argued in their motions to quash
951 S.W.2d 3, 4 (Tex. Crim. App. 1997). An indictment                that the San Jose Island lacked signs or other
must contain the elements of the offense charged, fairly             markings "to identify that this land was not the
inform the defendant of charges he must prepare to meet,             property of the State of Texas."
and enable the [**3] defendant to plead acquittal or
conviction in bar to future prosecution for the same                The indictments at issue state that the appellants "did
offense. TEX. CODE CRIM. PROC. ANN. art 21.11                . . . intentionally, knowingly and recklessly hunt, kill and
(Vernon 1989); Sanchez v. State, 928 S.W.2d 255, 259         possess a wildlife resource, to wit: one white-tailed deer,
(Tex. App.-Houston [14th Dist.] 1996, no pet.). When         on San Jose Island, without the consent of the
construing an indictment, we read the indictment as a        landowner's agent . . . ." The indictments correctly charge
whole, applying practical, rather than technical             the appellants with hunting and possessing a wildlife
considerations. Oliver v. State, 692 S.W.2d 712, 714         resource in a county or place in the state, without the
(Tex. Crim. App. 1985); Soto v. State, 623 S.W.2d 938,       consent of the landowner's agent. See TEX. PARKS &
939 (Tex. Crim. App. 1981).                                  WILD. CODE ANN. § 61.022 (Vernon 2002).

     Under the Texas Parks and Wildlife Code, no one              Appellants contend that the State must prove that
"may hunt or catch by any means or method or possess a       appellants knew they were hunting without the consent of
wildlife resource at any time and at any place covered by    the landowner's agent and, appellants argue, the
this chapter unless the owner of the land or water, or the   indictments do not allege that they were hunting without
owner's agent, consents." TEX. PARKS & WILD. CODE            the consent of the landowner or the owner's agent.
ANN. § 61.022(a) (Vernon Supp. 2002) (emphasis
                                                                  The State concedes that, had these cases gone to trial,
added). Chapter 61 of the Texas Parks and Wildlife Code
                                                             it would have been required to prove that the appellants
does not apply solely to [*540] private property but
                                                             knew they were acting without [**6] the consent of the
applies to every "county" and "place" in the state. TEX.
                                                             landowner, or landowner's agent. Both the State and the
PARKS & WILD. CODE ANN. § 61.003 (Vernon Supp.
                                                             appellants agree that when otherwise innocent behavior
2002). On its face, the code prohibits [**4] hunting
                                                             becomes criminal because of the circumstances under
anywhere within the State of Texas without the consent
                                                             which the behavior occurs, a culpable mental state is
of the owner of the land or the owner's agent. This would
                                                             required as to those circumstances, citing McQueen v.
apply to public lands also. 3 Thus, a person needs the
                                                             State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In
consent of a landowner, or the landowner's agent, to hunt
                                                             McQueen, a case involving the unauthorized use of a
anywhere in Texas. Therefore, an indictment for the
                                                             motor vehicle, the court of criminal appeals recognized
violation of section 61.022 need not allege that the
                                                             that conduct may be rendered criminal based on: (1) the
offense took place on private property: the indictment
                                                             nature of the conduct; (2) the result of the conduct; or (3)
need only allege that the person hunted, caught or
                                                             the circumstances surrounding the conduct. Id. The court
possessed a wildlife resource in a county or place in
                                                             of criminal appeals recognized that the act of using a
Texas, and was acting without the consent of the
                                                             motor vehicle is not criminal by nature, and further, the
landowner. 4 See TEX. CODE CRIM. PROC. ANN. art
                                                             section of the penal code dealing with unauthorized use
21.03 (Vernon 1989); Green, 951 S.W.2d at 4.
                                                             of a motor vehicle does not prohibit any specific result of
        3 The Parks and Wildlife Code provides the           the use of a motor vehicle. Id. The McQueen court held
        means by which a person may acquire permission       that what renders the use of another person's motor
        from the state to hunt on property owned by the      vehicle a criminal act is "that it is done under certain
        state. See TEX. PARKS & WILD. CODE ANN. §            circumstances, i.e., without the owner's permission." Id.
        62.062 (Vernon Supp. 2002)(Parks and Wildlife        The court of criminal appeals held that "where otherwise
        Commission may prescribe a hunting season for        innocent behavior becomes criminal [**7] because of the
        state parks, forts or sites); see also TEX. PARKS    circumstances under which it is done, a culpable mental
        & WILD. CODE ANN § 81.403 (Vernon Supp.              state is required as to those surrounding circumstances."
        2002) (discussing permitting of hunting on state     McQueen, 781 S.W.2d at 603 (citing McClain v. State,
        wildlife management areas).                          687 S.W.2d 350, 354 [*541] (Tex. Crim. App. 1985)
[**5]                                                        (what separates lawful acquisitive conduct from theft is
                                                                                                                   Page 3
                                76 S.W.3d 537, *541; 2002 Tex. App. LEXIS 1773, **7



knowledge of a circumstance surrounding the conduct,          render it fatally defective. Soto, 623 S.W.2d at 939. In
that it is without the owner's consent)).                     Soto, the court of criminal appeals held that an indictment
                                                              charging aggravated assault was not fatally defective for
     We agree that the crime of taking wildlife resources     alleging the culpable mental state "recklessly" as well as
without the consent of the landowner under section            the statutorily required culpable mental states
61.022 requires a culpable mental state. Hunting is not,      "intentionally" or "knowingly." Id.; see also Kirk v.
by its nature, a criminal act, and section 61.022 does not    State, 643 S.W.2d 190, 193 (Tex. App.-Austin 1982, pet.
prohibit any specific result. What makes hunting or           ref'd) (applying Soto [**9] ; indictment which included
possessing a wildlife resource a criminal act under           "should have been aware," which was not a culpable
section 61.022 is a circumstance; that it is done without     mental state prescribed for the offense, not fatally
the landowner's consent. Thus, it follows that a person, to   defective). In the appeals now before this Court, as in
be convicted under section 61.022, must be shown to           Soto, no essential element of culpability was omitted in
have been acting without the consent of the owner, or the     the indictments since the required mental states were
owner's agent, and must have known that he was acting         alleged. See Soto, 623 S.W.2d at 939.; see also Kirk, 643
without the owner's consent. However, this does not           S.W.2d at 193. The indictments at issue sufficiently
change the outcome of this case.                              allege the elements of the offense charged, including the
                                                              culpable mental state, fairly informed appellants of the
      The indictments in question sufficiently state the      charges, and enabled the appellants to plead acquittal or
culpable mental states being alleged. A person [**8]          conviction in bar to future prosecution for the same
violates section 61.022 by the intentional act of hunting,    offenses.
catching, or possessing a wildlife resource with the
knowledge that he does not have the consent of the                 We hold the trial court did not abuse its discretion by
landowner, or landowner's agent. TEX. PARKS & WILD.           refusing to quash the indictments in the cases now before
CODE ANN. § 61.022(a) (Vernon Supp. 2002). The                this Court. We overrule the sole point of error raised by
indictments alleged that the appellants acted                 the appellants. The judgments of the trial court are
"intentionally, knowingly and recklessly" and without the     AFFIRMED.
consent of the landowner's agent. The indictments
correctly pleaded the mental states necessary for the             LINDA REYNA YANEZ
offense that the State would have been required to prove
at trial.                                                         Justice

     Although appellants do not challenge the inclusion of        Opinion delivered and filed this the
"recklessly" in the indictment, we note that the incorrect
                                                                  7th day of March, 2002.
inclusion of "recklessly" in the indictment does not
                                                                                                                Page 1




                         J. C. HUTCH, Appellant v. THE STATE OF TEXAS, Appellee

                                                   NO. 1231-94

                                   COURT OF CRIMINAL APPEALS OF TEXAS

                                   922 S.W.2d 166; 1996 Tex. Crim. App. LEXIS 37


                                             April 3, 1996, Delivered

PRIOR HISTORY:          [**1] Petition for Discretionary   A.
Review from the FIRST Court of Appeals. 351st District
Court of Harris County.                                    The Trial Court

                                                                According to the State's testimony, Houston police
COUNSEL: Frances M. Northcutt, Houston.                    officers stopped a vehicle, in which appellant was a
                                                           front-seat passenger, because neither appellant nor the
Alan Curry, Assist. DA, Houston.                           driver were wearing seat belts. As the officers
                                                           approached the vehicle, appellant leaned forward and
JUDGES: BAIRD, Judge, Clinton, J., concurs in the          dropped an object on the floor of the car. This object was
result. KELLER, J., McCormick, P.J., White and             later determined to be cocaine. However, appellant
Mansfield, J.J. join.                                      testified [**2] he and the driver were wearing their seat
                                                           belts at the time of the stop.
OPINION BY: BAIRD
                                                                Because appellant's testimony contradicted that of
OPINION                                                    the officers, the legality of the stop was called into
                                                           question. Accordingly, the trial judge instructed the jury
                                                           as required by Tex. Code Crim. Proc. Ann. art. 38.23 that
 [*169] OPINION ON APPELLANT'S PETITION FOR                illegally obtained evidence was not admissible:
DISCRETIONARY REVIEW
                                                                      You are instructed that no evidence
     A jury convicted appellant of possession of cocaine          obtained by an officer or other person in
and the trial judge assessed punishment at forty years            violation of any provisions of the
confinement. The Court of Appeals affirmed. Hutch v.              Constitution or laws of the State of Texas,
State, 881 S.W.2d 92 (Tex. App.--Houston [1st] 1994).             or of the Constitution or laws of the
We granted review to consider whether the Court of                United States of America, shall be
Appeals correctly applied the test for determining                admitted in evidence against the accused
whether an erroneous jury charge caused egregious harm.           on the trial of any criminal case.
We will reverse.
                                                           The trial judge then charged the jury as follows:
I.                                                                      An officer is permitted, to make a
                                                                   temporary investigative detention of a
                                                                                                                    Page 2
                                922 S.W.2d 166, *169; 1996 Tex. Crim. App. LEXIS 37, **2



         motorist if the officer has a reasonable                       Appellant accurately points out that the
         suspicion that some activity out of the                      court misstated the law. The police could
         ordinary has occurred, that the person                       lawfully detain if appellant were not
         detained is connected with such activity,                    wearing a seatbelt, and the police could
         and that there is some indication that the                   not lawfully detain if appellant were
         activity is related to crime or a criminal                   wearing a seatbelt. The statement that a
         offense. Now bearing in mind these                           detention was illegal if appellant were not
         instructions, if you find from the evidence                  wearing a seatbelt is unquestionably
         that on the occasion in question the driver                  wrong. (Citation omitted.)
         and front seat passenger were [**3] not
         wearing seat belts immediately preceding             Hutch, 881 S.W.2d at 94.
         the stop and detention by the police
         officer, or you have a reasonable doubt                   Because there was no objection to the erroneous jury
         thereof, then such stopping of the accused           charge, the Court of Appeals purported to conduct the
         would be illegal, and if you find the facts          harm analysis prescribed by Bailey v. State, 867 S.W.2d
         so to be, or if you have a reasonable doubt          42, 43 (Tex.Cr.App. 1993), and Almanza v. State, 686
         thereof, you will disregard the testimony            S.W.2d 157 (Tex.Cr.App. 1985). The Court concluded no
         of the officer relative to his stopping the          egregious harm was shown because the jury was correctly
         defendant and his conclusions drawn as a             instructed elsewhere in the jury charge, and further,
         result thereof and you will not consider             because the prosecutor and defense attorney correctly
         such evidence for any purpose whatsoever.            argued the law. Hutch, 881 S.W.2d at 94-95. The Court
         1                                                    reasoned the correct general instruction, coupled with the
                                                              arguments of the attorneys, cured [**5] any error
                                                              resulting from the incorrect application of the law to the
                                                              facts:
         1    All emphasis is supplied unless otherwise
         indicated.                                                      ... It was clear to the jurors that they
                                                                      were not to consider the evidence seized if
      Near its end, the jury charge stated:                           they found that appellant and the driver
                                                                      were wearing seat belts, or if they had a
           You are the exclusive judges of the facts                  reasonable doubt about that fact.
         proved, of the credibility of the witnesses
         and the weight to be given their testimony,          Id., 881 S.W.2d at 95 (emphasis in original).
         but the law you shall receive in these
         [*170] written instructions, and you must                 Justice O'Connor dissented, arguing the misstatement
         be governed thereby. 2                               of the law constituted egregious harm and deprived
                                                              appellant of a fair trial. Id., 881 S.W.2d at 96. Justice
                                                              O'Connor found nothing in the record to demonstrate the
                                                              jury correctly understood or applied the law, and argued:
         2 See, Tex. Code Crim. Proc. Ann. art. 36.13.
                                                              "It cannot be harmless error to instruct the jury that the
       [**4] Appellant did not object to the jury charge.     law is the opposite of what it actually is." Ibid. Appellant
Id.                                                           petitioned this Court for review of the Court of Appeals'
                                                              decision. The State did not file a cross-petition.
B.
                                                              II.
      The Court of Appeals
                                                                    The Almanza Standard of Harm
    On appeal, appellant contended the charge was not a
correct statement of the law. The Court of Appeals            The purpose of the jury charge is to inform the jury of the
agreed:                                                       applicable law and guide them in its application to the
                                                              case:
                                                                                                                    Page 3
                              922 S.W.2d 166, *170; 1996 Tex. Crim. App. LEXIS 37, **5



                                                               "valuable right," or "vitally affect a defensive theory."
            It is not the function of the charge               Id., 686 S.W.2d at 172 (citations omitted). Moreover, we
       merely to avoid misleading or confusing                 do not require direct evidence of harm to establish
       the jury; it is the function of the charge to           egregious harm. Castillo-Fuentes [**8] v. State, 707
       lead and to prevent confusion. A [**6]                  S.W.2d 559, 563, n. 2 (Tex.Cr.App. 1986).
       charge that does not apply the law to the
       facts fails to lead the jury to the threshold                In either event, when conducting a harm analysis the
       of its duty: to decide those fact issues.               reviewing court may consider the following four factors:
                                                               1) the charge itself; 2) the state of the evidence including
 Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App. 1977).      contested issues and the weight of the probative evidence;
The jury charge must allow the jury to determine the           3) arguments of counsel; and, 4) any other relevant
defendant's guilt in light of the evidence and the law.        information revealed by the record of the trial as a whole.
Benson v. State, 661 S.W.2d 708, 715 (Tex. Cr.App.             Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App. 1993)
1982). And, absent evidence to the contrary, we presume        (citing Almanza).
the jury followed the law provided by the charge. See,
                                                                   B.
Rose v. State, 752 S.W.2d 529, 554 (Tex.Cr.App. 1987)
(op'n on reh'g); and, Cobarrubio v. State, 675 S.W.2d               Because appellant did not preserve the jury charge
749, 752 (Tex.Cr.App. 1983).                                   error, resolution of the instant case requires an egregious
                                                               harm analysis. Egregious harm is a difficult standard to
A.
                                                               prove and such a determination must be done on a
     In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.          case-by-case basis. We have undertaken that task on
1985) (op'n on reh'g), the defendant raised for the first      several occasions to determine whether the courts of
time on appeal a variance between the jury charge and his      appeals correctly applied the analysis required by
indictment. Id., 686 S.W.2d at 159. The Court of Appeals       Almanza.
found error in the charge and reversed. However, we
                                                                    For example, in Ruiz v. State, 753 S.W.2d 681, 686
reviewed that decision and, in the process, dispensed with
                                                               (Tex.Cr.App. 1988), the Court focused on the charge
the practice of automatically reversing upon a finding of
                                                               itself to determine egregious harm. Ruiz was charged
jury charge error.
                                                               with murder but the record contained some evidence that
     In Almanza, we held that Tex. Code Crim. Proc. Ann.       Ruiz may be guilty only of the lesser included offense of
art. 36.19 prescribed the manner in which jury charge          voluntary manslaughter. However, the trial judge [**9]
error is reviewed on appeal. [**7] Almanza, 686 S.W.2d         failed to instruct the jury on the State's burden to prove
at 171. First, an appellate court must determine whether       the Ruiz's actions were not the result of sudden passion
error exists in the jury charge. Second, the appellate court   arising from an adequate cause in the murder application
must determine whether sufficient harm was caused by           paragraph. We held Ruiz suffered egregious harm
the [*171] error to require reversal. Arline v. State, 721     because a possibility existed that the jury was confused
S.W.2d 348, 351 (Tex.Cr.App. 1986). The degree of harm         and misled into ending their deliberations under the
necessary for reversal depends upon whether the error          incorrect instruction on the law. The charge lowered the
was preserved. Ibid. Error properly preserved by an            State's burden of proof, creating the possibility Ruiz was
objection to the charge will require reversal "as long as      convicted on less than all the elements of murder. Id.,
the error is not harmless." Almanza, 686 S.W.2d at 171.        753 S.W.2d at 684.
We have interpreted this to mean any harm, regardless of
                                                                    In Manning v. State, 730 S.W.2d 744 (Tex.Cr.App.
degree, is sufficient to require reversal. Arline, 721
                                                               1987), a jury trial was held to determine the competency
S.W.2d at 351. However, when the charging error is not
                                                               of the defendant. Id., 730 S.W.2d at 745. Although proof
preserved a greater degree of harm is required. This
                                                               of a prior, unvacated finding of incompetency was
standard of harm is described as "egregious harm."
                                                               produced, the trial judge instructed the jury that the State
Almanza, 686 S.W.2d at 171. We explained that errors
                                                               had the burden of proving the defendant competent to
which result in egregious harm are those which affect
                                                               stand trial by a preponderance of the evidence. We held
"the very basis of the case," deprive the defendant of a
                                                               the charge incorrectly instructed the jury on the State's
                                                                                                                   Page 4
                             922 S.W.2d 166, *171; 1996 Tex. Crim. App. LEXIS 37, **9



burden of proof and found egregious harm:                     Williams v. State, 851 S.W.2d 282, 289 (Tex.Cr.App.
                                                              1993) (No egregious harm where error related to
          In light of the existing adjudication of            incidental theory of defense.).
       incompetency ... we cannot say that
       appellant was not harmed by the jury's                       At times we look to any other relevant information
       consideration of the evidence under a                  revealed by the record of the trial as a whole to determine
       lesser burden [**10] of proof than should              egregious harm. For example, in Saunders v. State, 817
       have been given.                                       S.W.2d 688 (Tex.Cr.App. 1991), the defendant was
                                                              convicted of conspiracy to commit arson upon the
 Id., 730 S.W.2d at 750. Thus, in some cases, the charge      testimony of an accomplice witness. However, the jury
itself will demonstrate egregious harm.                       was not instructed that accomplice testimony must be
                                                              corroborated. Saunders, 817 S.W.2d at 689. See, Tex.
     On the same day Almanza was delivered, we decided        [**12] Code Crim. Proc. Ann. art. 38.14. We reviewed
Kucha v. State, 686 S.W.2d 154 (Tex.Cr.App. 1985),            the record and determined the accomplice's testimony
wherein we considered the "state of the evidence" prong       was critical to the outcome of the trial. We held failure to
of the Almanza analysis. In Kucha, the State sought to        instruct the jury on the need to corroborate the
enhance the defendant's punishment by proving he was          accomplice's testimony effectively denied the defendant a
an habitual criminal. The jury charge correctly instructed    fair trial and, thus, constituted egregious harm. Saunders,
the jury on the range of punishment if they determined        817 S.W.2d at 693.
the defendant was an habitual criminal, but failed to
instruct the jury otherwise. Id., 686 S.W.2d at 155. We       III.
held such error was not egregious:
                                                                     Application of the Law
          ... The fact of the prior convictions was
       not a contested issue at all. Appellant's              Turning to the instant case, the Court of Appeals was
       plea of "not true" only put the State to its           required to determine whether the error affected the very
       [*172] proof. Considering that the                     basis of the case, deprived the defendant of a valuable
       evidence of the prior convictions was                  right, or vitally affected his defensive theory -- in short,
       undisputed, uncontradicted, and seemed to              whether appellant suffered egregious harm. Almanza,
       have been taken almost as a "given" by the             686 S.W.2d at 172.
       parties, we hold that the failure of the
                                                              A.
       court to charge on the range of punishment
       if the enhancements were found to be                        The application paragraph instructed the jury to
       untrue, was not so harmful that it deprived            ignore the police officer's testimony and resulting
       appellant of a fair and impartial trial.               evidence if the jury believed the stop and detention of
       [**11] If the evidence of the prior                    appellant occurred because seat belts were not being
       conviction had not been so strong, or if               worn. As the Court of Appeals noted, the instruction was
       appellant had contested it in some fashion,            "unquestionably wrong." Hutch, 881 S.W.2d at 94. As
       this issue would not be so clearcut. But,              noted by Justice O'Connor, the instruction was 180
       from the record it appears that all parties,           degrees opposite of what it should have been. 881
       including appellant, assumed the fact of               S.W.2d at 96. Nevertheless, the Court of Appeals held the
       the prior conviction and did not dispute its           [**13] otherwise correct instructions within the jury
       truth. Also, the prior was proven beyond a             charge were sufficient to prevent any misunderstanding
       reasonable doubt by the State. In light of             or confusion. The Court of Appeals noted that nothing in
       the record we hold that the error was not              the record indicates the jury misunderstood the applicable
       fundamental.                                           law. 881 S.W.2d at 94-95. This holding is erroneous for
                                                              at least two reasons.
 Id., at 156. Thus, in Kucha, we held that one of our
considerations in the determination of egregious harm is          First, the Court of Appeals did not consider the
whether the error related to a "contested issue." See also,   appellate presumption that the jury is presumed to have
                                                                                                                     Page 5
                              922 S.W.2d 166, *172; 1996 Tex. Crim. App. LEXIS 37, **13



understood and followed the court's charge absent               S.W.2d at 685. 5 Compare, Kucha, 686 S.W.2d at 156;
evidence to the contrary. Rose, supra; Cobarrubio, supra;       and, Williams, 851 S.W.2d at 289. Whether appellant was
see generally, Gardner v. State, 730 S.W.2d 675, 696            to be convicted depended upon whose testimony the jury
(Tex.Cr.App. 1987). Under this presumption, we must             found credible. Consequently, we hold the Court of
presume the jury followed the erroneous instruction             Appeals' analysis under the second Almanza factor was
which authorized the stop if appellant was wearing a seat       erroneous.
belt. In fact the opposite is true; such a stop would have
been illegal. Under the erroneous instruction, the only                  3 The Court of Appeals stated: "For the jury to
way the jury could have convicted was by using illegally                 have been confused on the law would have
obtained evidence.                                                       required it to have ignored both [the State's and
                                                                         appellant's] unequivocal evidence." Hutch, 881
      Second, it is important to note that the error occurred            S.W.2d at 94. Moreover, Judge Keller argues that
in the application paragraph. The application paragraph is               the jury charge authorized acquittal on the wrong
that portion of the charge which authorizes the jury to act.             basis, but did not authorize conviction on the
Jones v. State, 815 S.W.2d 667, 669 (Tex.Cr.App. 1991).                  wrong basis. Ante, at ___, slip op. pg. 1. This
Consequently, [**14] even though the charge elsewhere                    argument is not supported by the record. As noted
contained a correct statement of art. 38.23, that                        above, the issue of the legality of the stop was
instruction did not authorize the jury to consider or not                hotly contested. Because of the way the issue was
consider the evidence obtained from appellant's stop. It is              developed in this case the jury necessarily
not sufficient for the jury to receive an abstract                       assumed the only way the contraband could be
instruction on the law. Williams, 547 S.W.2d at 20. An                   considered was if appellant was wearing a seat
abstract [*173] charge does not inform the jury of what                  belt.
facts, if found by it, would permit the jury's consideration    [**16]
of the contested evidence. Ibid. Rather, the authority to                4 If the officer's testimony as to the stop being
consider or not consider the evidence obtained from                      legal was uncontroverted, no factual issue would
appellant's stop came solely from the erroneous                          arise and no instruction would be required. By the
application paragraph. The Court of Appeals did not                      same token, if the defendant's testimony as to the
consider that the correct statement of art. 38.23 did not                stop being illegal were not controverted, the trial
authorize the jury to correctly apply the law.                           judge would not have admitted the evidence. Tex.
Consequently, the Court of Appeals' analysis under the                   Code Crim. Proc. Ann. art. 38.23.
first factor of Almanza was erroneous.                                   5 In Ruiz we noted that the testimony on the
                                                                         defensive theory was "substantial." Id., 753
B.                                                                       S.W.2d at 685. In the instant case, the testimony
                                                                         as to the reason for appellant's stop was obviously
     The second factor of the Almanza analysis requires a                substantial.
determination of whether the jury charge error related to
a contested issue. However, the Court of Appeals                     Finally, in our analysis of this factor, after reviewing
considered whether the testimony was equivocal. 3 This          the entire record, we find nothing to indicate the jury did
was erroneous. Under an Almanza analysis, there is no           not follow the trial judge's erroneous instruction.
requirement that the testimony be equivocal; in fact
parties [**15] often present unequivocal evidence to            C.
support their respective sides of the case. Instead, this
factor asks if the jury charge error related to a contested          The next factor in our analysis is the jury argument.
issue. In the instant case, the issue was obviously             Bailey, 867 S.W.2d at 43. Although neither party
contested, otherwise an instruction would not have been         corrected the erroneous instruction, the parties correctly
required. Thomas v. State, 723 S.W.2d 696, 707                  argued their respective positions. 6 In other words, the
(Tex.Cr.App. 1986) (When a factual dispute arises as to         State argued that the stop of appellant was legal and that
whether the evidence was legally obtained, a charge on          the evidence should be considered while appellant argued
the issue is required.). 4 In fact, the legality of the stop    the stop was illegal and the evidence [**17] should not
was the crux of appellant's case. Accord, Ruiz, 753             be considered. However, these were only small portions
                                                                of the arguments; the bulk of the arguments were devoted
                                                                                                                    Page 6
                              922 S.W.2d 166, *173; 1996 Tex. Crim. App. LEXIS 37, **17



to the issue of the credibility of the witnesses.                            contest, where the persuasiveness
                                                                             of competing applications of the
        6 Judge Keller agrees that the jury charge was                       law to the facts determines guilt or
        erroneous but contends that it did not indicate the                  innocence. ...
        "converse." The jury arguments, appellate record
        and the opinion of the Court of Appeals belie this
        contention. Hutch, 881 S.W.2d at 94.                       [**19] D.

     It is axiomatic that jury arguments are not evidence          For these reasons we hold the Court of Appeals
and the jury may not consider them as such. In the instant    incorrectly applied the egregious harm analysis of
case, the trial judge, immediately after reading the jury     Almanza and erred in concluding the error did not vitally
charge, stated: "Please remember that you have been           affect appellant's defensive theory. 9
instructed that what the attorneys say is not evidence in
this case." Nor do jury arguments serve to instruct the              9 Throughout part III of this opinion we have
jury on the law. In the instant case, the jury was                   identified and carefully discussed how the Court
instructed that they were to be governed by the law as set           of Appeals erred in conducting its Almanza
forth in the jury charge. See, I A, supra.                           analysis. Judge Keller, in dissent, disagrees but
                                                                     does not suggest how this section of our opinion
      The United States Supreme Court, when faced with               is in error.
the assertion that a [*174] prosecutor's argument on a
presumption [**18] of innocence cures a jury charge               IV.
deficient in that instruction, wrote "arguments of counsel
                                                                  Conclusion
cannot substitute for instructions by the court." Taylor v.
Kentucky, 436 U.S. 478, 488-489, 98 S. Ct. 1930, 1936,             A defendant is entitled to be convicted upon a correct
56 L. Ed. 2d 468 (1978). And, we have similarly noted         statement of the law. In the instant case, the erroneous
that "jury argument is not a substitute for a proper jury     instructions had the effect of instructing the jury on the
charge." Arline, 721 S.W.2d at 353, n. 8. 7 Moreover, in      opposite of what the law actually is. Consequently, a jury
Ruiz, supra, we held that jury argument is never alone a      who diligently followed the trial judge's instructions, as
controlling factor in an Almanza harm analysis. Ruiz,         we must presume the jury did, would render a verdict in
753 S.W.2d at 686. In light of the fact that the jury         conflict with the Fourth Amendment and art. 38.23
charge's application paragraph was so flawed as to charge     because the conviction would be based upon illegally
the jury on the opposite of what the law actually             obtained evidence. The right to a trial by jury in criminal
provides, and further that this was a hotly contested issue   matters is among those fundamental [**20] rights
at trial, we cannot conclude the error was "cured" by the     guaranteed by our Constitutions. In order to effectuate
jury arguments. Ruiz, supra. 8                                this valuable right, there is a minimal requirement that the
        7 In a slightly different context, we have held       instructions to the jury not be exactly opposite of what
                                                              the law actually is.
        that it is improper for attorneys to argue outside
        the court's charge. Burke v. State, 652 S.W.2d            The judgment of the Court of Appeals is reversed
        788, 790 (Tex.Cr.App. 1983); Davis v. State, 506      and the case is remanded to the trial court.
        S.W.2d 909 (Tex.Cr.App. 1974).
        8     In Williams, 547 S.W.2d at 20, the Court            BAIRD, Judge
        stated:
                                                                  Clinton, J., concurs in the result.
                  ... To allow the jury to receive an
                application of the law to the facts               (Delivered April 3, 1996)
                only from the partisan advocates
                                                                  En Banc
                without a neutral and unbiased
                instruction on the matter in the
                                                              DISSENT BY: KELLER
                charge is to risk the degeneration
                of trial by jury to a debating
                                                                                                                   Page 7
                             922 S.W.2d 166, *174; 1996 Tex. Crim. App. LEXIS 37, **20



DISSENT                                                       absent evidence to the contrary. Slip op.7. The majority
                                                              "finds nothing [*175] to indicate the jury did not follow
   DISSENTING OPINION ON APPELLANT'S                          the trial judge's erroneous instruction." Slip op. 9. But we
PETITION FOR DISCRETIONARY REVIEW                             know that the jury did not follow the erroneous part of
                                                              the instruction -- to do so would have resulted in
     To understand why the majority is wrong, one need        acquittal. The majority says, "The only way the jury
only read the jury charge. Upon doing so it is apparent       could have convicted was by using illegally obtained
that, while the charge is erroneous, it is not erroneous in   evidence." In fact, the only way the jury could have
the way that the majority says it is.                         convicted was by disregarding the erroneous instruction
                                                              and acting in accord with the rest of the jury charge and
     The charge erroneously instructed the jury to
                                                              the jury arguments.
disregard the officer's testimony if the jury believed that
appellant was not wearing his seat belt. Thus, had the jury        The Court of Appeals correctly applied the analysis
believed that appellant was not wearing his seat belt, and    set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
followed the instruction, the jury would have disregarded     App. 1984) (op. on rehearing) and reached a conclusion
the testimony and acquitted appellant. The charge did not     "within a reasonable zone of disagreement." Montgomery
instruct the jury as to the converse of the above. The        v. State, 810 S.W.2d [**22] 372, 391 (Tex. Crim. App.
charge did not tell the jury what to do if it believed that   1990) (op. on rehearing). I would affirm the judgments of
appellant was wearing his seat belt. [**21] In other          the Court of Appeals and the trial court.
words, the jury charge authorized acquittal on the wrong
basis, but did not authorize conviction on the wrong              KELLER, J.
basis. Thus, the majority is wrong when it says that the
erroneous instruction "authorized the stop if appellant           DELIVERED: April 3, 1996
was wearing a seat belt." Slip op.7.
                                                                  McCormick, P.J., White and Mansfield, J.J. join.
    As the majority says, there is an appellate
presumption that the jury followed the court's charge
                                                                                                              Page 1




                      BEVERLY KIRKPATRICK, Appellant v. THE STATE OF TEXAS

                                        No. PD-0873-07 and PD-0874-07

                               COURT OF CRIMINAL APPEALS OF TEXAS

                               279 S.W.3d 324; 2009 Tex. Crim. App. LEXIS 378


                                           March 18, 2009, Delivered

NOTICE:     PUBLISH                                      opinion and substitute the following opinion.

SUBSEQUENT HISTORY: On remand at Kirkpatrick                  Appellant was charged with several offenses by way
v. State, 2009 Tex. App. LEXIS 7348 (Tex. App. Dallas,   of three indictments. Only two of those indictments are
Sept. 18, 2009)                                          presently before us. 1 On appeal, the court of appeals
                                                         found that the trial court had not acquired jurisdiction and
PRIOR HISTORY: [**1]                                     reversed appellant's convictions. We reverse the
   ON STATE'S PETITION FOR DISCRETIONARY                 judgment of the court of appeals as to both causes and
REVIEW FROM THE FIFTH COURT OF APPEALS                   remand Cause No. 05-06-1230-CR so that the court of
KAUFMAN COUNTY.                                          appeals may resolve appellant's remaining issue.
Kirkpatrick v. State, 2008 Tex. Crim. App. LEXIS 1568
(Tex. Crim. App., Dec. 17, 2008)                                1 Pursuant to the third indictment, trial-court
Kirkpatrick v. State, 2007 Tex. App. LEXIS 2905 (Tex.           cause number 23337-86, appellant was convicted
App. Dallas, Apr. 17, 2007)                                     of falsely holding herself out as a lawyer and
Kirkpatrick v. State, 2007 Tex. App. LEXIS 2906 (Tex.           sentenced to six years' confinement. On appeal,
App. Dallas, Apr. 17, 2007)                                     the court of appeals held that the evidence was
                                                                legally insufficient to sustain the conviction,
                                                                reversed the trial court's judgment, and rendered a
COUNSEL: For APPELLANT: DAN WOOD JR.,                           judgment of acquittal. Kirkpatrick v. State, No.
TERRELL.                                                        05-06-01275-CR, 2007 Tex. App. LEXIS 2905
                                                                (Tex. App.--Dallas, delivered April 17, 2007, no
For STATE: CARIANN ABRAMSON, ASST. D.A.,                        pet.)(not designated for publication). No petition
KAUFMAN.                                                        for discretionary [**2] review was filed
                                                                regarding that case.
JUDGES: JOHNSON, J., delivered the opinion for a
unanimous Court.                                              In indictment number 23290-86, appellant was
                                                         charged with forgery and tampering with a governmental
OPINION BY: JOHNSON                                      record in three counts: count one-- publishing a forged
                                                         writing, knowing it to be forged, with such writing
OPINION                                                  purporting to be the act of Lance Rabenaldt, who did not
                                                         authorize that act; [*325] count two--presenting a letter
     [*324] We withdraw our December 17, 2008            purporting to bear the signature of Warren Samuelson,
                                                                                                                       Page 2
                              279 S.W.3d 324, *325; 2009 Tex. Crim. App. LEXIS 378, **2



with knowledge of its falsity and with intent that it be        further held that "the indictment alleged Class A
taken as a genuine governmental record; and count               misdemeanor offenses of tampering with a governmental
three--presenting a letter purporting to bear the signature     record[,]" but "[t]he indictment in this case does not show
of Chau Vo, with knowledge of its falsity and with intent       on its face the State's intent to charge a felony or other
that it be taken as a genuine governmental record. In           offense for which the district court has jurisdiction." Id.
indictment number 23338-86, a single count charged              at *5. It also held that "because the indictment did not
appellant with tampering with a governmental record by          vest the district court with jurisdiction, appellant did not
making a document, specifically a letter from Michael D.        waive her complaint by [*326] failing to object prior to
Grant attached to a motion for continuance, with                the day of trial." Id. at *5-6.
knowledge of its falsity and with intent that it be taken as
a genuine governmental record.                                         3     The court of appeals did not discuss the
                                                                       single-count indictment, trial-court cause number
     After the state had presented its case-in-chief,                  23338-86, which likewise charged appellant with
appellant moved for an instructed verdict on the felony                tampering with a government record, alleging that
forgery count, asserting that the state had failed to prove            she did "then and there make a document, to-wit:
felony forgery because it had not alleged or proven [**3]              [**5] a letter from Michael D. Grant attached to a
any of the elements necessary to make the forgery a                    Motion for Continuance, with knowledge of its
felony rather than a misdemeanor. The trial court agreed               falsity and with intent that it be taken as a genuine
and granted appellant's motion for instructed verdict as to            governmental record." However, the court of
count one of indictment number 23290-86. The trial court               appeals's reasoning and analysis is applicable to
overruled appellant's complaints as to the other                       the similar allegation in that indictment.
allegations. The jury convicted appellant of the remaining
alleged offenses, and the trial court sentenced her to two           We granted the State Prosecuting Attorney's petition
years' confinement on each of those counts, to be served        for discretionary review, which raised three grounds for
concurrently.                                                   review.

     On appeal, appellant raised one issue in Cause No.                    1) Did the Court of Appeals err by
05-06-01274-CR (trial-court Cause No. 23290-86), a                     concluding that the district court did not
claim that the trial court did not have jurisdiction because           have subject-matter jurisdiction of the
appellant had been indicted for a misdemeanor in each of               offense?
the two indictments that are before us. She raised the
same issue in Cause No. 05-06-01230-CR (trial-court                         2) Where an offense can be charged
Cause No. 23338-86), and she also raised an additional                 as either a felony or a misdemeanor, does
issue that the court of appeals did not address because it             the return of the indictment into a court
found the first issue dispositive. 2 The court of appeals              with subject-matter jurisdiction of only the
held that the indictments failed to satisfy the                        felony offense indicate the State's intent to
constitutional requirement of subject-matter jurisdiction              charge the felony offense?
and did not vest the district court with jurisdiction.
                                                                            3) Is ambiguity or confusion about the
Kirkpatrick v. State, 2007 Tex. App. LEXIS 2906, No.
                                                                       particular offense that has been charged
05-06-01230-CR, No. 05-06-01274-CR [**4] (Tex.
                                                                       [sic] the type of objection to an indictment
App.--Dallas, delivered April 17, 2007, no pet.)(not
                                                                       that must be raised by a defendant prior to
designated for publication). It therefore dismissed both
                                                                       the date of trial?
cases for want of jurisdiction. Id. at *6.

       2 "The trial court erred in overruling appellant's
                                                                    The Arguments of the Parties
       objection under the attorney-client privilege."
                                                                     The state, represented by the State Prosecuting
     The court of appeals noted that the multi-count
                                                                Attorney, argues that the language of the indictments, and
indictment alleged that appellant presented two letters,
                                                                their return to the district court, were sufficient to show
one purporting to bear the signature of Samuelson and the
                                                                the state's intention to charge the felony offenses of
other purporting to bear the signature of Vo. 3 Id. at *4. It
                                                                                                                     Page 3
                              279 S.W.3d 324, *326; 2009 Tex. Crim. App. LEXIS 378, **5



tampering [**6] with a governmental record, thus the            [*327] about whether the state did charge, or intended to
indictments invested the district court with subject-matter     charge, her with a felony, she could have, and should
jurisdiction. It asserts that the indictments' failure to       have, objected to the defective indictment before the day
allege all of the elements of the felony offense of             of trial.
tampering with a governmental record constituted a
defect of substance, and it was therefore incumbent upon             Appellant claims that the indictments gave her notice
appellant to raise the defect prior to the date of trial. It    only that she had been indicted for misdemeanor
contends that, because appellant failed to object, the court    tampering offenses under TEX. PENAL CODE §
of appeals erred by dismissing the counts for want of           37.10(a)(2) because they did not include any of the
jurisdiction.                                                   elements that the statute requires in order to raise the
                                                                misdemeanor offense to a state-jail or second-degree
     Appellant argues that the indictments were proper,         felony. She points out that, pursuant to TEX. CODE
facially complete indictments that alleged all the              CRIM. PROC., Art. 20.21, the grand jury, not the state,
elements necessary to charge her with the misdemeanor           presents an indictment and argues that it is the grand
offense of tampering with a government record. She              jury's intent, not the state's, that is most important. She
asserts that, being misdemeanor offenses, the district          also notes that nothing prohibits the grand jury from
court did not have subject-matter jurisdiction, and that        indicting an accused for only a misdemeanor offense and
such a claim of lack of jurisdiction is not waived by           that "there is no requirement under the law that a grand
failure to object before trial. She argues that she was thus    jury return only felony indictments."
not required to object before trial to the presentment of an
indictment to a court without competent jurisdiction.                The state points to Art. V, § 12(b), of the Texas
                                                                Constitution, which states that "[t]he [**9] presentment
     The parties agree that the faces of the indictments at     of an indictment or information to a court invests the
issue here allege misdemeanor tampering with a                  court with jurisdiction of the cause" and that the practices
governmental record; "the indictment[s] failed [**7] to         and procedures relating to the use of indictments are as
contain language that would charge a felony offense-i.e.,       provided by statutory law. It also points to TEX. CODE
that Appellant intended to defraud or harm another or that      CRIM. PROC. art. 1.14(b), which after its 1985
the governmental record was of the type to make the             amendment provides that a defendant waives or forfeits
offense a third-degree felony." State's Brief, p. 2.            his right to object to a defect of form or substance in an
Predictably, they disagree as to whether appellant's            indictment if he fails to object before the date on which
failure to object, before trial, to being tried on              the trial commences and that he may not first raise the
misdemeanor allegations in a district court prevented the       objection on appeal. In Studer v. State, 799 S.W.2d 263
court of appeals from granting relief on her appellate          (Tex. Crim. App. 1990), we discussed this principle at
complaints about subject-matter jurisdiction.                   length and determined that a defendant who failed to
                                                                timely object to a defective charging instrument before
     The state asserts that, while the offense of tampering     trial began would lose the right to later complain about
with a governmental record may be charged as either a           such defect on appeal.
felony or a misdemeanor, the fact that the indictment was
returned to a district court with subject-matter jurisdiction        The state acknowledges that in Thomason v. State,
over felony offenses "is an indication that the State           892 S.W.2d 8, 11 (Tex. Crim. App. 1994), we held that
intended to charge a felony offense." It also suggests that     "where an indictment facially charges a complete offense,
the pretrial proceedings "were also indications that            it is reasonable to presume that the State intended to
Appellant was being charged with a felony offense, and          charge the offense alleged, and none other." We stated,
not a misdemeanor." It asserts that the indictments,            "Consequently, where an indictment facially charges a
whatever their defects, can be construed as intended to         complete offense, the State is held to the offense charged
charge a felony because there does exist a felony offense       [**10] in the indictment, regardless of whether the State
of tampering with a governmental record and the                 intended to charge that offense." Id. However, the state
indictments in these cases were returned to a court [**8]       suggests that, in Teal v. State, 230 S.W.3d 172 (Tex.
with subject-matter jurisdiction over only felony               Crim. App. 2007), we retreated from such all-inclusive
offenses. It adds that, if appellant had been confused          language.
                                                                                                                         Page 4
                              279 S.W.3d 324, *327; 2009 Tex. Crim. App. LEXIS 378, **10



     Thomason is distinguishable on its facts. Thomason          trial court. Id. at 180. The state acknowledges that the
was indicted for felony theft of at least $ 20,000, but the      text of appellant's indictments, like the indictment in
indictment did not include the words necessary to charge         Teal, does not contain the language necessary to raise the
an aggregated theft. The evidence showed that Thomason           offense of tampering with a governmental record from a
had received ten checks, totaling $ 518,787, with each of        misdemeanor to a felony. State's Brief, p. 10.
eight of the checks having an amount in excess of the            Nevertheless it suggests that, because the indictments
alleged $ 20,000. At the end of the state's evidence,            were returned to a district court, a court with
Thomason asked the trial court to require the state to elect     subject-matter jurisdiction over felonies, and a felony
on which of the checks it sought a conviction. The trial         offense of tampering with a governmental record exists, it
court refused to require an election, and the court of           is clear that the state intended to charge a felony offense.
appeals affirmed, saying, "[W]e cannot conclude that the
failure to include the phrase in the indictment evinces an           Analysis
intent that the checks not be aggregated." Thomason v.
                                                                      Teal is more on point with regard to the issue
State, No. 05-92-00414-CR, 1993 WL 189615 (Tex.
                                                                 presented here than is Thomason, but it does not assist
App.--Dallas, June 2, 1993)(not designated for
                                                                 appellant. As Teal pointed out, legislative changes in
publication).
                                                                 1987 ensured that defects in an indictment would be
     This Court held that, "where an indictment facially         objected to and, if possible, 4 repaired before trial and
charges a complete offense, it is reasonable to presume          that such defects would not invalidate an otherwise valid
the State intended to charge [**11] the offense alleged,         conviction [**13] if they were not raised before trial.
and none other." Thomason, 892 S.W.2d at 11. That case           Teal at 176. The Teal Court held that, after Studer v.
is distinguishable on at least two grounds: Thomason             State, 799 S.W.2d 263 (Tex. Crim. App 1990), and Cook
asked for an election, thus calling the issue to the             v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995), courts
attention of the trial court, and the indictment, on its face,   must now look to the indictment as a whole, not just to its
alleged a felony, albeit not the felony [*328] the state         specific formal requisites. Id. at 180.
intended to charge. There was no question that the trial
court had subject-matter jurisdiction over the offense                     Implicit within both Studer and Cook is
alleged on the face of the indictment.                                  that "the offense" charged must be one for
                                                                        which the trial court has subject-matter
     The text of the two indictments at issue here facially             jurisdiction. . . .
alleges misdemeanor tampering with a governmental
record. Appellant argues that, under Teal, she did not                       Thus, the complete test for the
have to object because there was no ground for objecting;               constitutional sufficiency of a particular
the indictment in her case alleged a complete                           charging instrument goes slightly further
misdemeanor offense and grand juries are authorized to                  than that expressly set out in Studer and
issue indictments for misdemeanor offenses.                             Cook: Can the district court and the
                                                                        defendant determine, from the face of the
     Teal involved an indictment that alleged hindering                 indictment, that the indictment intends to
apprehension, but the indictment failed to include an                   charge a felony or other offense for which
allegation that the defendant had knowledge of the                      a district court has jurisdiction? . . . [T]he
suspect's status as a fugitive felon, the element that raised           indictment, despite whatever substantive
the offense to a felony. We recognized in Teal that Texas               defects it contains, must be capable of
law now requires the defendant to object to errors in the               being construed as intending to charge a
form or substance of an indictment before the day of trial              felony (or a misdemeanor for which the
[**12] and before the jury is empaneled. Teal, 230                      district court has jurisdiction).
S.W.3d at 177. We also indicated that the critical
determination is whether the trial court (and reviewing                      . . . It certainly was a defective
appellate courts) and the defendant can identify what                   indictment because it omitted one of the
penal-code provision is alleged and whether that                        two [*329] elements that raise hindering
penal-code provision is one that vests jurisdiction in the              apprehension from a misdemeanor to a
                                                                        felony, but it was nonetheless sufficient to
                                                                                                                    Page 5
                             279 S.W.3d 324, *329; 2009 Tex. Crim. App. LEXIS 378, **14



       [**14] vest jurisdiction-it charged "an                         harm or defraud another, then a state-jail felony.
       offense" and one could fairly conclude
       from the face of the charging instrument                              (c)(2) school records, license, permit, seal,
       that the State intended to charge a felony                      title, letter of patent, or similar document; a
       offense. If appellant was confused about                        third-degree felony unless the actor's intent is to
       whether the State did or intended to charge                     harm or defraud another, then a second-degree
       him with a felony, he could have and                            felony.
       should have objected to the defective
                                                                            (c)(3) a record required to enroll a student in
       indictment before the date of trial.
                                                                       a school district and used to establish residency; a
                                                                       class C misdemeanor.
Id. at 181-82.
                                                                            (c)(4) a written appraisal [**16] filed with an
       4        For example, a district court lacks
                                                                       appraisal review board that was performed by a
       subject-matter jurisdiction over a speeding
                                                                       person with a contingency interest in the outcome
       offense no matter how perfect the wording of a
                                                                       of the hearing; a class B misdemeanor.
       charging instrument alleging such an offense, and
       there is no such offense as felony speeding. The                    (d) vehicle liability insurance form; varying
       trial court clearly lacks subject-matter jurisdiction,          levels, depending on how the tampering was done
       and the indictment cannot, therefore, be repaired.              (§ 37.10 (a)(1-6)).
     Here, although the indictment properly charged a                      Although the heading alleges a third-degree
misdemeanor and lacked an element necessary to charge                  felony, the jury convicted appellant of a state-jail
a felony, the felony offense exists, and the indictment's              felony. Such a conviction may be had only under
return in a felony court put appellant on notice that the              § 37.10(c)(1) with proof of intent to defraud or
charging of the felony offense was intended. Further, the              harm another.
face of each indictment contains a heading:
"Indictment--Tampering with a Governmental Record 3rd                The court of appeals erred when it concluded that
Degree Felony,--TPC § 37.10(a)--Code 73990275." 5               these indictments fail to satisfy the constitutional
The Penal Code section was easily ascertainable, and the        requirement of subject-matter jurisdiction and did not
notation that the offense [**15] was a third-degree             vest the district court with jurisdiction. We reverse the
felony clearly indicated that the state intended to charge a    judgment of the court of appeals and affirm the judgment
felony offense and that the district court had                  of the trial court in Cause No. 05-06-01274-CR
subject-matter jurisdiction. Appellant had adequate notice      (trial-court Cause No. 23290-86). In Cause No.
that she was charged with a felony. If she had confusion        05-06-01230-CR (trial-court Cause No. 23338-86), the
about whether the State did, or intended to, charge her         court of appeals found appellant's first issue, lack of
with a felony, she could have, and should have, objected        jurisdiction, dispositive and therefore did not address her
to the defective indictment before the date of trial.           second issue. We reverse the judgment of the court of
                                                                appeals in Cause No. 05-06-1230-CR and remand it to
       5     The heading sets out that the charge is a          that court so that it may consider appellant's unaddressed
       third-degree felony. Section 37.10(a) enumerates         claim of error as to an objection [**17] under the
       the elements of tampering with a governmental            attorney-client privilege. We deny appellant's motion for
       record. Section 37.10(c) and (d) state what              rehearing.
       punishment ranges apply to different kinds of
       governmental records.                                        Delivered: March 18, 2009

            (c)(1) general classification not covered by            Publish
       subdivisions (2), (3), and (4) and subsection (d); a
       class A misdemeanor unless the actor's intent is to
                                                                                                                    Page 1




                      DAVID WAYNE MIDDLETON, Appellant v. THE STATE OF TEXAS

                                                      NO. 1263-01

                                  COURT OF CRIMINAL APPEALS OF TEXAS

                                   125 S.W.3d 450; 2003 Tex. Crim. App. LEXIS 73


                                               April 23, 2003, Delivered

NOTICE:       [**1] PUBLISH                                   if the officer lacked probable cause. We conclude that the
                                                              failure to [*452] define that term was not error because
SUBSEQUENT HISTORY:                As Corrected May 5,        this jury did not need the definition.
2003.
                                                              I. Facts
PRIOR HISTORY:   ON APPELLANT'S PETITION
FOR DISCRETIONARY REVIEW. FROM THE                                 On New Year's Eve, 1998, Sergeant Stanford was
SECOND COURT OF APPEALS. WISE COUNTY.                         "working radar" at the intersection of Crittendon Street
                                                              and Cates Street in Bridgeport. He testified that he saw a
DISPOSITION: Court of Appeals' judgment affirmed.             small blue Chevy pick-up fail to come to a complete stop
                                                              at the stop sign. Stanford followed the vehicle with his
                                                              lights flashing and after a few blocks the truck came to a
COUNSEL: FOR APPELLANT: KEN MAHAFFEY,                         stop. Stanford approached the truck and identified the
AUSTIN.                                                       driver [**2] as Middleton. Middleton consented to a
                                                              search, and upon searching the truck, Stanford found
FOR STATE: BARRY'S GREEN, DA, DECATUR.                        methamphetamine behind the ashtray.

JUDGES: Keasler, J., announced the judgment of the                  Middleton testified that he stopped at the stop sign.
Court and delivered an opinion, in which Keller, P.J., and
Womack and Hervey, JJ., joined. Holcomb and Cochran,              At the conclusion of testimony, defense counsel
JJ., concurred in the result. Womack, J. filed a concurring   requested a charge pursuant to Art. 38.23:
opinion. Price, J., filed a dissenting opinion, joined by
                                                                   I would request the Charge, under Article 38.23 of
Meyers and Johnson, JJ.
                                                              the Code of Criminal Procedure at the beginning of top
                                                              of Page 2, I would ask that it be inserted. "Our law
OPINION BY: Keasler
                                                              provides that any evidence seized in violation of the
                                                              United States Constitution, the Texas State Constitution,
OPINION
                                                              the laws of the State of Texas or of this county, shall not
      [*451] A police officer said he saw David               be admitted into evidence in any criminal proceeding."
Middleton run a stop sign, but Middleton claimed that he
                                                                  Basically, I would ask for that charge as a descriptive
stopped. The officer pulled Middleton over and found
                                                              of what the law is for the next two paragraphs, your
drugs. The jury was instructed to disregard this evidence
                                                                                                                    Page 2
                              125 S.W.3d 450, *452; 2003 Tex. Crim. App. LEXIS 73, **2



Honor.                                                         reasonable doubt as to whether or not that stop was valid,
                                                               you don't consider anything that was a result of that stop.
     The court denied Middleton's request but did include
the following language in the charge:                              ***

     The court further instructs you that before you may            The evidence is - The evidence is that there is some
consider the testimony of Steve Stanford concerning the        factual dispute whether or not there was a valid stop or
search of the Defendant's vehicle, you must first find         some pre-textual-type stop by the police.
beyond a reasonable doubt that the officer had probable
cause to believe and did believe that the defendant did not        The jury found Middleton guilty of possessing
bring the vehicle he was operating to a stop [**3] at the      methamphetamine and the judge sentenced him to 12
intersection of Cates and Crittendon in Bridgeport, Texas,     years in prison.
and if you do not so find beyond a reasonable doubt, or if
                                                               II. Court of Appeals
you have a reasonable doubt, you will disregard such
testimony and evidence.                                             Middleton appealed arguing, among other things,
                                                               that the trial judge erred by failing "to include an abstract
     During closing arguments, the defense made the
                                                               instruction on the law of illegal search and seizure in the
following statements:
                                                               Art. 38.23 charge." He argued the charge failed to
     Remember we told you that any law [sic] that's            describe [**5] the law that the jury was to apply and
seized in violation of the United States Constitution, State   failed to define "probable cause." The State responded
Constitution the laws of the State of Texas is not             that Middleton failed to preserve error and, if he did so,
admissible in Court.                                           any error was harmless. The Court of Appeals held that
                                                               "probable cause" was not required to be defined in the
     Now, this is where the issue comes. You get a charge      charge because it is not defined by statute. 1 We granted
on the law because there's an issue, and the issue is: Do      Middleton's petition for discretionary review to decide
you have a reasonable doubt as to whether or not he came       whether a trial court "should provide the jury with a
to a complete stop. See, that's the probable cause issue.      definition of the term 'probable cause' in an Art. 38.23
That's the probable cause issue. You have a reasonable         instruction."
doubt as to whether or not he came to a complete stop or
whether Mr. Stanford - Officer - Sergeant Stanford was                1 Middleton v. State, No. 02-00-00039-CR, slip
just out there making a lot of routine traffic stops.                 op. at 8-9 (Tex. App. - Fort Worth, delivered April
                                                                      26, 2001) (not designated for publication).
     So you have to have a reason to stop somebody, just
to get into the idea where you can ask them for search of      III. Preservation of Error
the vehicle.
                                                                   The State argues initially that Middleton's complaint
     Now, if you have a reasonable doubt as to whether or      on appeal is different from his complaint at trial. This
not Stanford - as he prefers to be called - had a reasonable   argument is premature.
doubt as to whether or not he, in fact, observed a traffic
                                                                   As we explained in Hutch v. State, 2 an appellate
[**4] violation, if you even have a reasonable doubt to
                                                               court's first duty in evaluating a jury charge issue is to
have to prove it beyond a reasonable doubt, Stanford who
                                                               determine whether error exists. Then, if error is found,
makes all these routine stops and who is an officer of the
                                                               the appellate court should analyze [**6] that error for
year, and doesn't know whether or not he's officer of the
                                                               harm. Error preservation does not become an issue until
year because of all these routine consensual stops he
                                                               harm is assessed because "the degree of harm necessary
makes, you have to believe beyond a reasonable doubt.
                                                               for reversal depends upon whether the error was
It's not a weighing or balancing [*453] of, you know,
                                                               preserved." 3
I'm not sure maybe it was an okay stop, maybe it wasn't.
                                                                      2 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
    Remember the protections. It's to protect everybody
                                                                      3 Id.
from ill - unreasonable illegal detentions. If you have a
                                                                                                                    Page 3
                              125 S.W.3d 450, *453; 2003 Tex. Crim. App. LEXIS 73, **6



     This is the analysis we set forth almost 20 years ago            (Tex. Crim. App. 2000); Andrews v. State, 652
in Almanza v. State. 4 There we explained that Art. 36.19             S.W.2d 370, 375-76 (Tex. Crim. App. 1983)
contains harm standards for "both 'fundamental error and              (explaining that term acquiring technical meaning
ordinary reversible error' in jury charges." 5 As a result,           need not necessarily be defined).
all jury charge error must be considered, whether or not              11 Medford, 13 S.W.3d at 772.
the defendant preserved error. 6 And we have specifically             12 See Draughon v. State, 831 S.W.2d 331, 338
applied the harmless error rule of Art. 36.19 to Art. 38.23.          (Tex. Crim. App. 1992).
7 So we must analyze whether error existed in
Middleton's jury charge before we consider whether that             "Probable cause" is not statutorily defined, and
error was preserved. 8                                         Middleton argues that it must be defined because it has a
                                                               technical legal meaning. But even if "probable cause" has
        4 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on        acquired a technical legal meaning, that does not
        reh'g).                                                necessarily mean that it had to be defined. 13 In this case,
        5 Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim.        there was no risk [**9] that the jurors would arbitrarily
        App. 1998).                                            apply their own personal definition, nor was a definition
[**7]                                                          of the term required to assure a fair understanding of the
        6      Almanza, 686 S.W.2d at 171. See also            evidence.
        Saunders v. State, 817 S.W.2d 688 (Tex. Crim.
        App. 1991).                                                   13 See Andrews, 652 S.W.2d at 375-76.
        7 Atkinson v. State, 923 S.W.2d 21, 27 (Tex.
                                                                    This case involved a single, and simple, factual
        Crim. App. 1996).
                                                               dispute - whether or not Middleton stopped at the stop
        8 See Balentine v. State, 71 S.W.3d 763, 774
                                                               sign. Its resolution determined whether the seized
        (Tex. Crim. App. 2002) (stating that "because we
                                                               evidence could be considered. There were no other facts
        find that no error occurred, we need not decide
                                                               which could have established probable cause. As the
        whether appellant waived the asserted jury charge
                                                               State explained in its brief to the Court of Appeals:
        error.").
                                                                    If this case had been a case wherein an officer had to
    IV. Analysis
                                                               rely upon a multitude of factors to come to his conclusion
      Article 38.23(a) provides that no evidence obtained      regarding probable cause, a definition for the jury might
in violation of the law [*454] should be admitted at trial.    have been helpful. However, the only issue involved in
It also provides that if the evidence "raises an issue         the determination of probable cause in this case is
hereunder, the jury shall be instructed that if it believes,   whether [Middleton] failed to come to a complete stop.
or has a reasonable doubt, that the evidence was obtained
                                                                    Indeed, defense counsel's argument to the jury
in violation of the provisions of this Article, then and in
                                                               highlighted this fact and explained to the jury that, in this
such event, the jury shall disregard any such evidence so
                                                               case, "probable cause" meant a failure [**10] to stop at
obtained."
                                                               the stop sign.
     As a general rule, terms need not be defined in the
                                                               V. Conclusion
charge if they are not statutorily defined. 9 But terms
which have a technical legal meaning may need to be                Because there was no ambiguity in this case as to the
defined. 10 This is particularly true when there is a risk     meaning of "probable cause," we conclude that the trial
that the jurors [**8] may arbitrarily apply their own          judge did not err in failing to define it.
personal definitions of the term 11 or where a definition
of the term is required to assure a fair understanding of          We affirm the Court of Appeals' judgment.
the evidence. 12
                                                               CONCUR BY: WOMACK
        9 Martinez v. State, 924 S.W.2d 693, 698 (Tex.
        Crim. App. 1996); Garcia v. State, 887 S.W.2d          CONCUR
        846, 859 (Tex. Crim. App. 1994).
        10 See Medford v. State, 13 S.W.3d 769, 772
                                                                                                                   Page 4
                             125 S.W.3d 450, *454; 2003 Tex. Crim. App. LEXIS 73, **10



WOMACK, J., filed a concurring opinion.                       [**12] any term that is not defined in the relevant statute.
                                                              Probable cause is not defined in article 38.23. Therefore,
     I join the Court's opinion with the understanding        the court of appeals concluded, the trial court was not
that, because of an unusual feature of this case, it does     required to include a definition in the charge. Middleton
not resolve the general question of the need to define        v. State, No. 02-00-0039-CR, slip op. at 8-9 (Tex.
"probable cause" in the court's charge under [*455]           App.--Fort Worth Apr. 26, 2001) (not designated for
Article 38.23. The Court prudently decides no more than       publication).
the case requires.
                                                                     2 The portion of the charge that the appellant
     The State took the issue of probable cause out of this          complains was incomplete reads as follows:
case by accepting a burden to prove more than the law
required; that is, that the defendant did commit an offense               The court further instructs you that before
in the officer's presence. The law's requirement is only             you may consider the testimony of Steve Stanford
that the officer have probable cause to believe that                 concerning the search of the Defendant's vehicle,
someone committed an offense in the officer's presence. *            you must first find beyond a reasonable doubt that
We have not decided (although, it seems to me, the issue             the officer had probable cause to believe and did
would not be close) whether "probable cause" must be                 believe that the defendant did not bring the
defined when probable cause is the standard for the jury.            vehicle he was operating to a stop at the
                                                                     intersection of Cates and Crittendon in
       * See, e.g., Brinegar v. United States, 338 U.S.              Bridgeport, Texas, and if you do not find so
       160, 174-76, 93 L. Ed. 1879, 69 S. Ct. 1302                   beyond a reasonable doubt, or if you have a
       (1946) (constitutional law); Carlock v. State, 609            reasonable doubt, you will disregard such
       S.W.2d 787, 790 (Tex. Cr. App. 1980) (state                   testimony and evidence.
       statutory law).
                                                                   The appellant filed a petition for discretionary
     [**11] En banc.                                          review, [**13] which we granted, claiming that the
                                                              court of appeals erred because probable cause is a
DISSENT BY: Price                                             technical legal term, which should be defined for jurors.

DISSENT                                                            The general rule, as the court of appeals explained, is
                                                              that a term need not be defined in the jury charge if the
   Price, J., filed this dissenting opinion, in which         legislature failed to define it in the relevant statute.
Meyers and Johnson, J.J., joined.                             Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App.
                                                              1996). The relevant statute in this case, Texas Code of
     While searching the appellant's truck, police found
                                                              Criminal Procedure article 38.23, 3 does not define
methamphetamine and marihuana behind the ashtray. The
                                                              [*456] probable cause. Indeed, the Article does not even
appellant claimed that the officer had no probable cause
                                                              contain the term probable cause. Article 38.23 is a
to pull him over. The trial court included an article
                                                              statutory exclusionary rule that prohibits the use of
38.231 instruction in the proposed guilt-innocence jury
                                                              evidence if it was obtained in violation of the constitution
charge; the appellant requested a more detailed
                                                              or laws of the State of Texas and the United States. The
instruction. The trial court denied his request, and the
                                                              general rule cannot apply in this case since the term
appellant was convicted. Today the Court addresses
                                                              probable cause does not appear in Article 38.23.
whether the trial court should have defined probable
cause in the jury charge. The Court concludes that answer            3 Article 38.23 reads:
is no. I disagree, and therefore, I dissent.
                                                                         (a) No evidence obtained by an officer or
       1 Tex. Code Crim. Proc. art. 38.23.                           other person in violation of any provisions of the
                                                                     Constitution or laws of the State of Texas, or of
     On direct appeal, the appellant claimed that the trial
                                                                     the Constitution or laws of the United States of
court should have included a definition of probable cause
                                                                     America, shall be admitted in evidence against the
in the jury charge. 2 The court of appeals explained that
                                                                     accused on the trial of any criminal case.
the trial court is not required to provide a definition for
                                                                                                                   Page 5
                             125 S.W.3d 450, *456; 2003 Tex. Crim. App. LEXIS 73, **13



            In any case where the legal evidence raises an            State, 588 S.W.2d 327, 338 (Tex. Crim. App.
       issue hereunder, the jury shall be instructed that if          1979) (serious physical deficiency need not be
       it believes, or has a reasonable doubt, that the               defined in context of injury to a child); Mitchell v.
       evidence was obtained in violation of the                      State, 135 Tex. Crim. 176, 178, 117 S.W.2d 443,
       provisions of this Article, then and in such event,            445 (1938) (unlawful arrest should be defined).
       the jury shall disregard any such evidence so
       obtained.                                                     [**15] In Andrews v. State, 652 S.W.2d 370 (Tex.
                                                               Crim. App. 1983), we attempted to refine this exception
            (b) It is an exception to the provisions of        to the rule. We explained that a word or phrase with a
       Subsection (a) of this Article that the evidence        technical legal meaning will not always need to be
       was obtained by a law enforcement officer acting        defined. Id. at 375-76. In that case the defendant
       in objective good faith reliance upon a warrant         complained that the trial court should have defined the
       issued by a neutral magistrate based on probable        term "prurient interest." Ibid. We said that it might have
       cause.                                                  been wise for the legislature to include a definition of
                                                               prurient interest, but we concluded that the statute's
      [**14] We have recognized an exception to the            failure to include a definition did not "cause[] a jury
general rule when a term in a statute has a technical          charge to be subject to an objection for failure to define
meaning. If a term does not have a common, ordinary            that term." Id. at 376.
meaning that we can presume jurors to know and apply, a
definition of the term should be included in the jury               We said that the Code Construction Act specifies that
charge. Phillips v. State, 597 S.W.2d 929, 934 (Tex. Crim.     "Words and phrases shall be read in context and
App. [Panel Op.] 1980); King v. State, 553 S.W.2d 105,         construed accordingly. Words and phrases that have
107 (Tex. Cr. App. 1977) (citing Joubert v. State, 136         acquired a technical or particular meaning, whether by
Tex. Cr. R. 219, 124 S.W.2d 368 (1938)). 4 This might be       legislature or otherwise shall be construed accordingly."
the test when a technical term does not appear in a            Ibid. (quoting Tex. Rev. Civ. Stat. art. 5429b-2, § 2.01).
statute, but we cannot tell that from the cases cited by the   Also we noted Code of Criminal Procedure Article 3.01
majority.                                                      states "Words and terms used in this Code are to be taken
                                                               and understood [**16] in their usual acceptability in
       4     We have applied this test explicitly and          common language, except where specially defined." 5
       implicitly in several cases. See, e.g., Paulson v.      Ibid. (quoting Tex. Code Crim. Proc. art. 3.01). We said
       State, 28 S.W.3d 570 (Tex. Crim. App. 2000)             that neither the Code Construction Act, nor Article 3.01
       (beyond a reasonable doubt need not be defined);        of the Code of Criminal Procedure, require the definition
       Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim.        in the jury charge. Of course, this is [*457] not a
       App. 2000) (arrest should be defined); Motley v.        surprising conclusion because both provisions deal with
       State, 773 S.W.2d 283, 289-90 (Tex. Crim.               the interpretation of statutes, not whether a term should
       App.1989) (deliberately and intentionally need not      be defined in a jury charge. Also, as I explained above,
       be defined); Whaley v. State, 717 S.W.2d 26,            the term probable cause does not appear in Article 38.23
       30-31 (Tex. Crim. App. 1986) (constructive              because it is a general exclusionary rule. These rules
       transfer should be defined); MacDougall v. State,       cannot apply to the situation in the instant case.
       702 S.W.2d 650, 652 (Tex. Crim. App. 1986)
       (deception should be defined); Phillips v. State,              5     This provisions has been revised by the
       597 S.W.2d 929, 937 (Tex. Crim. App. 1980)                     legislature. Today, Article 3.01 reads: "All words,
       ("violate or abuse sexually" need not be defined);             phrases, and terms used in this Code are to be
       Coplin v. State, 585 S.W.2d 734, 736 (Tex. Crim.               taken and understood in their usual acceptation in
       App. 1979) (fiduciary property, commercial                     common language, except where specially
       bailee, trustee, guardian, administrator, executor,            defined."
       conservator, receiver, and managing partner need
       not be defined because they are not essential to             Even assuming the test for the exception to the rule
       prosecution under Penal Code section 32.45,             about defining statutory [**17] terms in the jury charge
       misapplication of fiduciary property); Ahearn v.        applied in this case, probable cause is a technical term
                                                               that is not easily understood by the average juror. If one
                                                                                                                   Page 6
                             125 S.W.3d 450, *457; 2003 Tex. Crim. App. LEXIS 73, **17



were to ask the average juror what probable cause means,             no egregious harm was shown. This does not
the smart money says he will not get even close.                     defeat the appellant's argument.

     The appellant argues that probable cause has a                 [**19] Ibid. Braggs, like the appellant, complained
peculiar and technical meaning in this context and that it    that the trial court failed to include a definition of
should be defined in the charge. In support of this           probable cause. The court of appeals's holding that the
argument, the appellant claims that one court of appeals      trial court erred by failing to instruct on the law of
has held that probable cause should be defined in this        probable cause seems to be in response to Braggs's
context, 6 published jury instruction guides include a        complaint. The Court explained in Braggs and Davis, the
definition of probable cause, the Texas Supreme Court         case on which Braggs relies, that the explanation, or
has required a definition of probable cause, 7 and the        abstract portion of the charge was required. It is true that
definition of probable cause varies depending on the area     we have held that a jury charge should contain the
of law in which it is applied.                                abstract portion of the charge and the application portion.
                                                              Riley v. State, 830 S.W.2d 584, 586-87 (Tex. Crim. App.
       6 The appellant cites Braggs v. State, 951 S.W.2d      1992). But whether the abstract portion of the charge
       877, 881 (Tex. App.--Texarkana 1997, pet. ref'd)       should define a [*458] term is determined by the rules
       (holding article 38.23 instruction inadequate for      set out above: Is the term defined in the relevant statute,
       failure to define probable cause and reasonable        and if not, is it a technical term that we cannot presume
       suspicion).                                            the jury to know and apply? See King v. State, 553
       7 The appellant cites Akin v. Dahl, 661 S.W.2d         S.W.2d 105, 107 (Tex. Cr. App. 1977).
       917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983).
                                                                   The State notes that at least one other court of
     [**18] The State argues that probable cause is not a     appeals has rejected the argument that probable cause
technical term that should be defined because it embraces     should be defined. But in Rendon v. State, 695 S.W.2d 1,
a practical, common sense approach in contrast to the         4 (Tex. App. -- Corpus Christi 1984, pet. ref'd), the court
terms beyond a reasonable doubt and preponderance of          [**20] provides no analysis for its conclusion. It merely
the evidence.                                                 explained that Rendon provided no authority for his claim
                                                              that a definition of probable cause was required. Ibid.
     The appellant notes that at least one court of appeals   This basis was adequate for the court's disposition of
has determined that trial courts should define probable       Rondon's claim, but it does not dispose of the question
cause in an article 38.23 instruction. In Braggs v. State,    we address today.
951 S.W.2d 877, 881 (Tex. App.--Texarkana 1997, pet.
ref'd), 8 the court held that an article 38.23 instruction         The appellant also argues that because published jury
was defective:                                                instruction guides recommend the inclusion of a
                                                              definition of probable cause, the definition should be
     This Court recently addressed this issue in Davis v.     required. The appellant cites W. Scott Carpenter and Paul
State, 905 S.W.2d 655, 663-64 (Tex. App.--Texarkana           J. McClung, Texas Criminal Jury Charges, sections
1995, pet. ref'd). As in Davis, the instruction here          12:750 & 12:1090.20 (2001), in which the authors
consists only of an abstract proposition of law drawn         conclude that instructions that merely track the language
directly from Article 38.23. The jury charge does not         of article 38.23 are inadequate and they include a
instruct the jury on the law governing probable cause.        definition of probable cause in the article 38.23
The charge does not apply the legal concept to the            instruction.
evidence involved, nor does it ask the jury to resolve the
disputed fact issues that either justify or invalidate the         For the proposition that an article 38.23 instruction
officer's conduct. Id. The charge is defective.               should do more than track the statutory language, the
                                                              authors cite Braggs, which relies on Davis v. State, 905
       8 The State argues that the appellant's reliance       S.W.2d 655, 663-64 (Tex. App. Texarkana 1995, pet.
       on Braggs does not help him because here, as in        ref'd). As we explained above, the court in Braggs and
       Braggs, the defendant's request was not specific       Davis did not include analysis or authority for its
       enough. Therefore, the State argues, the Court of      conclusion other than to say that the instruction must
       Appeals properly affirmed the trial court because      include [**21] an abstract explanation of the law and an
                                                                                                                     Page 7
                             125 S.W.3d 450, *458; 2003 Tex. Crim. App. LEXIS 73, **21



application of the law to the facts of the case. Braggs,           In forfeiture proceedings, the definition is different.
951 S.W.2d at 881; Davis, 905 S.W.2d at 663-64. The            Probable cause "is a reasonable belief that a 'substantial
court's analysis in those cases does not support its           connection exists between the property to be forfeited and
conclusion.                                                    the criminal activity defined by the statute.'" State v. $
                                                               11,014.00 in U.S. Currency, 820 S.W.2d 783, 784 (Tex.
     For the wording of their recommended instruction,         1991) (citing $ 56,700 in U.S. Currency v. State, 730
the authors rely on cases that hold an instruction must be     S.W.2d 659 (Tex. 1987)).
given if a question of fact arises under article 38.23, 9
and one case that holds an article 38.23 instruction given          In the civil tort malicious prosecution, probable
by the trial court was not an incorrect statement of the       cause is defined similarly to the way we define it in a
law. 10 But these cases do not require the trial judge to      criminal case. Probable cause is "the existence of such
include a definition of probable cause. This is persuasive     facts and circumstances as would excite belief in a
authority, but it does not dispose of the question in this     reasonable mind, acting on the facts within the
case.                                                          knowledge of the prosecutor, that the person charged was
                                                               guilty of the crime for which he was prosecuted." Akin v.
       9 Jordan v. State, 562 S.W.2d 472, 472-473 (Tex.        Dahl, 661 S.W.2d 917, 921, 27 Tex. Sup. Ct. J. 23 (Tex.
       Crim. App. 1978) (requiring an article 38.23            1983) (citing Ramsey v. Arrott, 64 Tex. 320 (1885)).
       instruction when a question of fact was raised
       concerning the legality of the way evidence was              The fact that the definition of this term is different in
       obtained).                                              different legal contexts is a good reason to conclude that
       10 Attwood v. State, 509 S.W.2d 342, 346 (Tex.          probable cause is a technical legal term and that we
       Crim. App. 1974) (approving of an article 38.23         should not assume that jurors know the term and can
       instruction when a definition of probable cause         apply it in context.
       appeared elsewhere in the charge, a fact which
       was not mentioned by the Court).                             The State claims that probable cause is not a
                                                               technical [**24] term that should be defined because it
     [**22] The appellant also argues that because civil       embraces a practical common sense approach in contrast
cases have required a definition of probable cause we          to the terms beyond a reasonable doubt or preponderance
should include a definition in this case. The case on          of the evidence. It cites In re A.A., 929 S.W.2d 649,
which the appellant relies is Akin v. Dahl, 661 S.W.2d         653-54 (Tex. App.--San Antonio 1996, no pet.), in which
917, 921, 27 Tex. Sup. Ct. J. 23 (Tex. 1983). In that case,    the Court explained:
the Texas Supreme Court approved of a definition that
was used by the trial judge in the case, but did not                "Probable cause" for waiver of jurisdiction by the
address the question of whether one must be given. Ibid.       juvenile court is defined as sufficient facts and
This is more persuasive authority that it is advisable to      circumstances to warrant a prudent individual to believe
include a definition of probable cause.                        the suspect committed or was committing an offense.
                                                               "The probable cause standard of proof embraces a
     The appellant argues that probable cause is a             practical, common sense approach rather than the more
technical term because it is defined differently in            technical standards applied in the burdens of proof either
different legal contexts. In the context of an article 38.23   beyond a reasonable doubt or a preponderance of the
instruction, probable cause exists where police have           evidence."
reasonably trustworthy information, considered as a
whole, sufficient to warrant a reasonable person to                 Ibid. (citations omitted). The definition contains
believe that a particular person [*459] has committed or       differences, depending on the context, that refute the
is committing an offense. Probable cause requires more         State's conclusion. It may be a standard based on
than mere suspicion but far less evidence than that            common sense, but jurors need to know to what standard
needed to support a conviction or even that needed to          they should apply their common sense.
support a finding by a preponderance of the evidence.
                                                                   The State also argues that the definition does not
                                                               have a peculiar meaning because non-legal dictionaries
Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App.
                                                               contain definitions of the word. This does not mean that
2000) (citations [**23] omitted).
                                                                                                                 Page 8
                            125 S.W.3d 450, *459; 2003 Tex. Crim. App. LEXIS 73, **24



the term has a common and ordinary meaning that [**25]       believe that a particular person has committed or is
we can presume jurors know and can apply.                    committing an offense. Probable cause requires more
                                                             than mere suspicion but far less evidence than that
     The definition in non-legal dictionaries provides       needed to support a conviction or even that needed to
context for the term: It is used in criminal cases to        support a finding by a preponderance of the evidence.
determine when a criminal charge is well-founded. See,
e.g., Webster's Third New International Dictionary 1806      Hughes, 24 S.W.3d at 838 (citations omitted).
(1969) ("a reasonable ground for supposing that a
criminal charge is well-founded"). But the definition we          That this case involves a swearing match between
use and apply provides the quality and quantum of            the officer and the appellant is not the focus of the
information an officer must possess to authorize certain     question we are called on to decide today. The fact that
actions. See Hughes, 24 S.W.3d at 838 ("where police         the focus of our inquiry is whether the term is a technical
have reasonably trustworthy information, considered as a     legal term that the trial court should have defined when it
whole, sufficient to warrant a reasonable person to          gave the charge to the jury. The appellant's arguments
believe that a particular person has committed or is         after the charge was given to the jury without the
committing an offense"). Knowledge that probable cause       requested language are a concern in determining whether
is what is required to arrest someone or to support a        the appellant was harmed. It does not tell us whether the
warrant or to support the presentment of an indictment,      trial court erred when it omitted the definition from the
does not allow [*460] the jury to apply the term to the      charge.
facts and produce a reliable and consistent outcome.
                                                                  I would hold that the trial court erred. [**27] It is
     Because the term probable cause has different           futile to try to measure distance with a ruler that lacks
meanings in different contexts and is not commonly           lines of demarcation. Telling a juror to look at facts to
defined in such a way that permits jurors to know its        determine whether probable cause existed is equally
meaning and apply it easily, the term should be defined      futile unless the juror understands and can apply the term.
for purposes [**26] of an article 38.23 instruction. Trial
courts should apply the definition of probable cause              The court of appeals erred in holding that probable
found in Hughes: Probable cause exists where police          cause need not be defined. The judgment below should be
have reasonably trustworthy information, considered as a     reversed. Therefore, I would remand the case to that court
whole, sufficient to warrant a reasonable person to          to address whether the appellant had been harmed.
                                                                                                               Page 1




                         THANH CUONG NGO, Appellant v. THE STATE OF TEXAS

                                                NO. PD-0504-04

                                COURT OF CRIMINAL APPEALS OF TEXAS

                                175 S.W.3d 738; 2005 Tex. Crim. App. LEXIS 457


                                           March 16, 2005, Delivered
                                            March 16, 2005, Filed

NOTICE:      [**1] Publish                                [*741] The indictment contained three paragraphs,
                                                          alleging three separate criminal acts-stealing a credit
PRIOR HISTORY:          ON STATE'S PETITION FOR           card, receiving a stolen credit card, and fraudulently
DISCRETIONARY REVIEW FROM THE ELEVENTH                    presenting a credit card to pay for goods or services. The
COURT OF APPEALS. HARRIS COUNTY.                          three application paragraphs in the jury charge permitted
Ngo v. State, 129 S.W.3d 198, 2004 Tex. App. LEXIS        the jury to convict appellant if some of the jurors found
1605 (Tex. App. Eastland, 2004)                           that he stole the credit card, others believed he received a
                                                          stolen credit card, and still others thought that he
DISPOSITION: Affirmed.                                    fraudulently presented it. The Eastland Court of Appeals
                                                          held that this jury charge "did not require that the jurors
                                                          unanimously agree upon any one of the three alternate
COUNSEL: For APPELLANT: Elizabeth L. Derieux,             theories," and [**2] thus, it violated both the Texas
Longview, TX.                                             Constitution and state statutes which require a unanimous
                                                          jury verdict. 1 The court of appeals further found that,
For STATE: Donald W. Rogers, Jr., ASSIST. DA.,            although appellant affirmatively stated that he had "no
Houston, TX.                                              objection" to the jury charge, this error was reversible
                                                          under Almanza 2 because appellant suffered "egregious
JUDGES: COCHRAN, J., delivered the opinion of the         harm." 3 We granted the State's petition for discretionary
Court in which MEYERS, PRICE, WOMACK,                     review to determine the correctness of that decision. 4
JOHNSON and HOLCOMB, J.J., joined. WOMACK, J.,            Because we agree with the court of appeals' reasoning
filed a concurring opinion in which MEYERS, J., joined.   and result, we affirm its judgment.
HERVEY, J., filed a dissenting opinion in which
KEASLER, J., joined. KELLER, P.J., dissented without             1 Ngo v. State, 129 S.W.3d 198, 200 (Tex. App. -
opinion. Cochran, J. Hervey, J.                                  Eastland 2004).
                                                                 2 Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
OPINION BY: Cochran                                              App. 1985).
                                                                 3 Ngo, 129 S.W.3d at 202.
OPINION                                                          4 We granted both of the State's grounds for
                                                                 review:
     [*740] Appellant was charged with credit card
abuse under section 32.31 of the Texas Penal Code.                     1) The court below erroneously held that
                                                                                                                   Page 2
                             175 S.W.3d 738, *741; 2005 Tex. Crim. App. LEXIS 457, **2



       appellant's trial counsel's affirmative statement      credit cards had been stolen when her apartment was
       that there was no objection to the court's charge      burglarized a few weeks earlier. She had come home
       did not forfeit or waive appellant's right to          from visiting her sick grandfather in the hospital on
       fundamental error review of the court's charge         [*742] Thanksgiving Day and found that the lock on her
       under Almanza v. State, 686 S.W.2d 157 (Tex.           window had been broken and her apartment ransacked.
       Crim. App. 1985).                                      All [**4] of her credit cards had been in a purse in her
                                                              bedroom closet. As far as she knew, none of the cards
            2) The court below erroneously determined         had been used after the burglary because she had called
       contrary to and in conflict with prior decisions of    and canceled them. Ms. Truong identified the credit card
       this Court and the Supreme Court of the United         that appellant had given to Mr. Nguyen as one of her
       States that appellant was denied his right to a        credit cards that had been stolen during the burglary.
       unanimous verdict when the trial court
       disjunctively submitted the State's theories of            Ms. Truong had seen appellant around her apartment
       conviction alleged in the indictment to the jury in    complex several times. He had knocked on her door
       its charge at the guilt-innocence stage of the trial   before, but she did not open the door for him because she
       with a general verdict form, where each of the         had a small child. Appellant had also asked her for
       alleged theories of conviction were not separate       money. He made her nervous.
       offenses, as found by said appellate court, but
       merely alternative means of committing the                  Appellant testified that he had come to America from
       offense of credit card abuse as defined by Section     Vietnam and had lived here for eleven years, but he did
       32.31(b) of the Penal Code.                            not speak much English. He worked on a shrimp boat. He
                                                              said that his friend Mike gave him the credit cards while
            In its Brief on the Merits, the State             they were playing pool. Mike wanted appellant to give
       abandoned its first ground for review as that very     the credit cards to Mr. Nguyen, so appellant waited at the
       issue had, in the meantime, been resolved              bar until Mr. Nguyen came in. Meanwhile, he bought a
       adversely to the State in Bluitt v. State, 137         beer and paid for it with cash. He insisted that he did not
       S.W.3d 51 (Tex. Crim. App. 2004). We therefore         try to use a credit card to pay for the beer. "I don't know
       dismiss the State's first ground for review and        about credit card because I'm from Vietnam. I never use
       address only the second issue.                         credit card. I know nothing about credit card." He denied
                                                              burglarizing Ms. [**5] Truong's apartment or stealing
[**3] I.                                                      any of her credit cards. He did admit to having a prior
                                                              burglary conviction.
     The evidence at trial showed that, on December 13,
2002, appellant went to a karaoke bar in Houston around            The application paragraphs of the jury charge
11 p.m. and ordered a couple of beers. He gave Hanh           instructed the jury to find appellant guilty if it concluded
Nguyen, the Vietnamese manager of the bar, a credit           that he committed credit card abuse by any one of three
card. The name on the credit card was Hong Truong. Mr.        separate acts. 5 Appellant's counsel stated that he had no
Nguyen was immediately suspicious because "Hong" is a         objection to the jury charge.
woman's name, and, serendipitously enough, "Hong
Truong" is the name of Mr. Nguyen's ex-wife. Mr.                     5 The application paragraphs read:
Nguyen immediately called his ex-wife and asked her to
come down to the bar. Meanwhile, appellant pulled out a                   Now, if you find from the evidence beyond a
large stack of credit cards, as well as an HMO and dental            reasonable doubt that [appellant] on or about the
plan card, all in the name of Hong Truong, and asked:                13th day of December, 2002, did then and there
"Which one of these can I use?" Mr. Nguyen declined to               unlawfully, intentionally or knowingly steal a
take any of them, and appellant sat quietly finishing his            credit card owned by the card holder, Hong
beer.                                                                Truong, with intent to deprive the cardholder of
                                                                     the property and without the effective consent of
     Mr. Nguyen told his security guard to call the police.          the cardholder; or
They arrived at about the same time as Hong Truong. She
told her ex-husband and the policeman that all of her                     If you find from the evidence beyond a
                                                                                                                     Page 3
                              175 S.W.3d 738, *742; 2005 Tex. Crim. App. LEXIS 457, **5



        reasonable doubt that [appellant] on or about the        concluded that it could address the merits [**7] of
        13th day of December, 2002, did then and there           appellant's complaint even though he had affirmatively
        unlawfully and knowingly receive with intent to          said he had no objection to the jury charge. 8 Second, the
        use a credit card owned by card holder, Hong             court of appeals held that the trial court erred in
        Truong, knowing the credit card had been stolen;         submitting the three separate offenses set out in
        or                                                       application paragraphs of the jury charge in the
                                                                 disjunctive because such a charge would allow for a
            If you find from the evidence beyond a               non-unanimous jury verdict. 9 Third, it concluded that
        reasonable doubt that [appellant] on or about the        this error was "egregious" under Almanza "because it
        13th day of December, 2002, with intent to obtain        deprived appellant of his right to a unanimous jury
        a benefit fraudulently, did use or present to Hanh       verdict and, thus, denied appellant a fair and impartial
        Nguyen a credit card knowing the use was                 trial." 10 The court of appeals reversed the judgment of
        without the effective consent of the cardholder,         the trial court and remanded the case for a new trial.
        Hong Truong, namely without consent of any
        kind, and knowing that the credit card had not                   6 129 S.W.3d at 199.
        been issued to the defendant, then you will find                 7 137 S.W.3d 51, 53 (Tex. Crim. App. 2004)
        [appellant] guilty as charged in the indictment.                 ("we hold that an affirmative denial of objection,
                                                                         as in this case, shall be deemed equivalent to a
            (Emphasis added).                                            failure to object. An appellant may raise such
                                                                         unobjected-to charge error on appeal, but may not
      [**6] The prosecutor told the jury during his                      obtain a reversal for such error unless it resulted
closing argument that the jury charge did not require that               in egregious harm").
the jurors unanimously agree upon any one of the three                   8 Ngo, 129 S.W.3d at 199 ("we fail to see any
alternate theories:                                                      meaningful distinction, in the context of Almanza,
                                                                         between a failure to object and an affirmative
          You know what? I have all the ways that                        approval of the jury charge").
        we can prove it. You know, he even                       [**8]
        testified that, you know, he received the                        9 Id. at 201.
        card from someone else.                                          10 Id. at 202.
             I don't know how, you know- I don't                 II.
        know if I proved all three or one or two or
        all- I have no idea. You know, what I do                      In its petition for discretionary review, the State
        know is that for sure the credit card, he                contends that the court of appeals erred in finding that
        had no right to use it. That's clear. And                appellant was denied his right to a unanimous verdict.
        that he tried to present it and it was                   First, it argues that the application paragraphs merely set
        presented to Mr. Nguyen. And he was                      out alternate means of committing a single offense of
        trying to get something for it. That's clear.            credit card abuse, but those paragraphs did not allege
        That's how simple this is. (emphasis                     separate credit card abuse offenses. Second, the State
        added).                                                  argues alternatively that the application paragraphs
                                                                 "merely showed repeated instances of commission of the
The jury returned a general guilty verdict and sentenced         offense of credit card abuse." Because appellant failed to
appellant to two years in a state jail facility, plus a $ 3500   request the State to elect which single offense it would
fine.                                                            rely upon for conviction, it was permissible to submit the
                                                                 three separate offenses in the disjunctive. Each juror
     [*743] In his sole point of error on appeal, appellant      could then decide which of the three criminal acts it
argued that his constitutional and statutory right to a
                                                                 thought the State had proven and return a general verdict
unanimous jury verdict was violated "by the disjunctive          so long as all of the jurors unanimously agreed that he
submission in the jury charge of two or more separate            had committed the general offense of credit card abuse.
offenses." 6 First, the court of appeals, presciently            In sum, according to the State, there was no error, much
anticipating this Court's decision in Bluitt v. State, 7
                                                                                                                        Page 4
                               175 S.W.3d 738, *743; 2005 Tex. Crim. App. LEXIS 457, **8



less egregious harm.                                                     knowing the use was without the effective
                                                                         consent of the cardholder, Hong Truong.
      [**9] Our first duty in analyzing a jury-charge issue              20
is to decide whether error exists. 11 Then, if we find error,
we analyze that error for harm. 12 Preservation of charge
error does not become an issue until we assess harm. 13
The degree of harm necessary for reversal depends on                     18 TEX. PENAL CODE § 32.31(b)(4).
whether the appellant preserved the error by objection. 14      [**11]
Under Almanza, jury charge error requires reversal when                  19 Id.
the defendant has properly objected to the charge and we                 20 TEX. PENAL CODE § 32.31(b)(1)(A).
find "some harm" to his rights. 15 When the defendant
                                                                     The State charged all three offenses in three separate
fails to object [*744] or states that he has no objection to
                                                                paragraphs within a single count of one indictment. It
the charge, we will not reverse for jury-charge error
                                                                sought one conviction for the commission of one credit
unless the record shows "egregious harm" to the
                                                                card abuse offense by proving any of three different
defendant. 16 Thus, we review alleged charge error by
                                                                criminal acts, occurring at three different times, and in
considering two questions: (1) whether error existed in
                                                                three different ways.
the charge; and (2) whether sufficient harm resulted from
the error to compel reversal. 17 We turn first to the                When the State charges different criminal acts,
question of error.                                              regardless of whether those acts constitute violations of
                                                                the same or different statutory provisions, the jury must
         11 Middleton v. State, 125 S.W.3d 450, 453 (Tex.
                                                                be instructed that it cannot return a guilty verdict unless it
         Crim. App. 2003) (citing Hutch v. State, 922
                                                                unanimously agrees upon the commission of any one of
         S.W.2d 166, 170-71 (Tex. Crim. App. 1996)).
                                                                these criminal acts. 21 In this case, for example, all twelve
         12 Middleton, 125 S.W.3d at 453.
                                                                members of the jury must unanimously agree that
[**10]
                                                                appellant did at least one of three different acts: either he
         13 Id.
                                                                stole Ms. Truong's credit card; or he received her credit
         14 Id. (citing Hutch, 922 S.W.2d at 171).
                                                                card, knowing that it was stolen and intending to use it
         15 Almanza, 686 S.W.2d at 171; see also Hutch,
                                                                fraudulently; or he fraudulently presented her credit card
         922 S.W.2d at 171.
                                                                with the intent to obtain a benefit. 22 In [*745] this case,
         16     Bluitt, 137 S.W.3d at 53; Almanza, 686
                                                                however, the word "unanimously" appeared only [**12]
         S.W.2d at 171.
                                                                in the "boilerplate" section of the jury charge dealing
         17 See Posey v. State, 966 S.W.2d 57, 60 & n.5
                                                                with selection of the jury foreman:
         (Tex. Crim. App. 1998).

A. Error existed in this jury charge because it allowed                     After you retire to the jury room, you
for a non-unanimous jury verdict.                                        should select one of your members as your
                                                                         Foreman. It is his or her duty to preside at
     The indictment charging appellant with credit card                  your deliberations, vote with you, and
abuse under section 32.31 of the Penal Code alleged three                when you have unanimously agreed upon
statutorily different criminal acts:                                     a verdict, to certify to your verdict by
                                                                         using the appropriate form attached hereto
           1) stealing a credit card owned by Hong                       and signing the same as Foreman.
         Truong; 18
                                                                Here the jury could well have believed that they need
              2) receiving a credit card owned by               only be unanimous about their "verdict" of guilty or not
         Hong Truong, knowing that it had been                  guilty of the general offense of credit card abuse. Indeed,
         stolen, and acting with the intent to use it;          this unanimity instruction is worse than saying nothing
         19                                                     because it affirmatively supports the prosecutor's
                                                                erroneous jury argument that the jurors need agree only
              3) presenting a credit card with the              on their ultimate general "verdict" of guilty, rather than
         intent to obtain a benefit fraudulently,               specifying that they need to unanimously agree on any
                                                                                                                     Page 5
                              175 S.W.3d 738, *745; 2005 Tex. Crim. App. LEXIS 457, **12



one of the three specific criminal acts set out in the jury            Process Clause would permit a State to convict
charge.                                                                anyone under a charge of 'Crime' so generic that
                                                                       any combination of jury findings of
         21 Francis v. State, 36 S.W.3d 121, 125 (Tex.                 embezzlement, reckless driving, murder, burglary,
         Crim. App. 2000) ("the unanimity requirement is               tax evasion, or littering, for example, would
         undercut when a jury risks convicting the                     suffice for conviction"); id. at 651 ("we would not
         defendant of different acts, instead of agreeing on           permit ... an indictment charging that the
         the same act for a conviction") (citing United                defendant assaulted either X on Tuesday or Y on
         States v. Holley, 942 F.2d 916, 925 (5th Cir.                 Wednesday, despite the 'moral equivalence' of
         1991)).                                                       those two acts")(Scalia, J., concurring).
[**13]
         22 Based upon the record evidence, it is entirely            [**14] Under our state constitution, jury unanimity
         possible that the jury could have found that           is required in felony cases, and, under our state statutes,
         appellant committed two of these criminal acts: he     unanimity is required in all criminal cases. 23 Unanimity
         either burglarized Ms. Truong's apartment and          in this context means that each and every juror agrees that
         stole her credit cards himself or he obtained them     the defendant committed the same, single, specific
         from the original burglar, knowing that the cards      criminal act. Stealing a credit card on Monday is not the
         belonged to someone else, and he also tried to use     same specific criminal offense as receiving a stolen credit
         Ms. Truong's credit cards to pay for his beer. The     card on Tuesday or presenting a stolen credit card to a
         State could have charged appellant with both of        bartender on Wednesday. Indeed, stealing a credit card at
         these credit card abuse offenses and obtained two      9:00 a.m. on Monday is not the same specific criminal
         convictions had it charged appellant in separate       offense as receiving a stolen credit card at 9:00 a.m. on
         counts instead of separate paragraphs. See TEX.        Monday. These are all credit card abuse offenses, to be
         CODE CRIM. PROC. art. 21.24(b) ("[a] count             sure, but they are not the same, specific credit card abuse
         may contain as many separate paragraphs                criminal acts committed at the same time or with the
         charging the same offense as necessary, but no         same mens rea and the same actus reus.
         paragraph may charge more than one offense");
         see also Francis v. State, 36 S.W.3d at 126                   23 See Francis, 36 S.W.3d at 126 (Womack, J.,
         (Womack, J., concurring) (stating that "our law               concurring) (citing TEX. CONST. art. V, § 13;
         allows only one offense to be charged in each                 TEX. CODE CRIM. PROC. arts. 36.29(a), 37.02,
         paragraph of an indictment, information, or                   37.03,     45.034-45.036).      The    unanimity
         complaint. Here, the State, having chosen to plead            requirement is a complement to and helps in
         only one paragraph, was required to elect one                 effectuating the "beyond a reasonable doubt"
         incident on which to rely. This requirement is not            standard of proof. See United States v. Gipson,
         only essential to giving a defendant the requisite            553 F.2d 453, 457 n.7 (5th Cir. 1977).
         notice of the charge against which to defend, it
                                                                      [**15] The State is mistaken in its first argument
         helps assure that the jury's verdict will be
                                                                that the trial court simply submitted a single "credit card
         unanimous") (footnote omitted).
                                                                abuse" offense with three different statutory manners and
             In this case, the State affirmatively decided to   means. The phrase "manner or means" describes how the
         seek only one conviction. It was certainly entitled    defendant committed the specific statutory criminal act. It
         to do so. But it can charge only one specific          does not mean that the State can rely upon a laundry list
         criminal offense in one paragraph; it cannot           of different criminal acts and let the individual jurors take
         charge different violations of the same generic        their pick on which each believes the defendant
         offense by the commission of different criminal        committed. 24 The State relies upon Schad v. Arizona, 25
         acts in a single paragraph and then seek a             [*746] but that case does not support its argument, rather
         non-unanimous general "credit card abuse" guilty       it holds that a jury must be unanimous on what specific
         verdict. See Schad v. Arizona, 501 U.S. 624, 633,      criminal act the defendant committed. In Schad, the
         115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991)              Supreme Court noted that the actus reus was "murder."
         ("nothing in our history suggests that the Due         All twelve jurors had to agree that the defendant
                                                                                                                    Page 6
                            175 S.W.3d 738, *746; 2005 Tex. Crim. App. LEXIS 457, **15



committed that act. They did not need to be unanimous                  groupings" in Schad as being "too conclusory to
on the issue of whether the defendant murdered "with                   serve as a real test" for deciding what facts a jury
premeditation or in the course of committing a robbery."               need unanimously agree upon, the Schad plurality
26 The preliminary factual questions of premeditation or               did not disagree with the underlying proposition
robbery go to "how" he committed the murder, not                       that all jurors must agree upon the specific
whether he committed the act of murder. As the Supreme                 statutory criminal act that the defendant was
Court explained:                                                       alleged to have committed. 501 U.S. at 634-35.

     We have never suggested that in returning general                     In any case, we have already stated, in
verdicts in such cases [**16] the jurors should be                     Francis, that the Texas requirements for a
required to agree upon a single means of commission,                   unanimous jury verdict "are not identical to the
any more than the indictments were required to specify                 requirements under federal law." Francis, 36
one alone. In these cases, as in litigation generally,                 S.W.3d at 125 n.1; id. at 127 n.11 (Womack, J.,
"different jurors may be persuaded by different pieces of              concurring).
evidence, even when they agree upon the bottom line.          [**17]
Plainly there is no general requirement that the jury reach            25 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct.
agreement on the preliminary factual issues which                      2491 (1991) (plurality op.).
underlie the verdict." 27                                              26 Id. at 630.
                                                                       27 Id. at 631-62; see also Aguirre v. State, 732
       24 A handy, though not definitive, rule of thumb                S.W.2d 320, 324-27 (Tex. Crim. App. 1987) (op.
       is to look to the statutory verb defining the                   on reh'g) (general verdict form proper when State
       criminal act. That verb-such as steal, receive, or              alleged alternative means of committing one
       present-in section 32.31 of the Penal Code, is                  murder-intentionally causing victim's death or
       generally the criminal act upon which all jurors                felony-murder). Similarly, under Schad and
       must unanimously agree. See United States v.                    Aguirre, the State could charge Prince Yussupov
       Gipson, in which Judge Wisdom stated:                           with the murder of Rasputin, alleging five
                                                                       different manners and means- by poisoning,
                  The unanimity rule ... requires                      garroting, shooting, stabbing, or drowning
               jurors to be in substantial                             Rasputin. The jury could return a general verdict
               agreement as to just what a                             if it found that Prince Yussupov intentionally
               defendant did as a step preliminary                     caused the death of Rasputin by any of those
               to determining whether the                              means; the unanimity requirement goes to the act
               defendant is guilty of the crime                        of "causing the death of Rasputin," while the jury
               charged. Requiring the vote of                          need not be unanimous on the preliminary fact
               twelve jurors to convict a                              issues- whether it was by poisoning, garroting,
               defendant does little to insure that                    etc. Id.; see Kitchens v. State, 823 S.W.2d 256,
               his right to a unanimous verdict is                     257-58 (Tex. Crim. App. 1991).
               protected unless this prerequisite of
               jury consensus as to the                            Furthermore, the plurality opinion in Schad has been
               defendant's course of action is also           undercut by the [**18] reasoning and result in the
               required.                                      Supreme Court's later decision in Richardson v. United
                                                              States. 28 In this more recent case, the Court held that,
       553 F.2d at 457-58 (concluding that a federal          under the "continuing criminal enterprise" statute, the
       statute criminalizing the "bartering, selling, or      jury must "agree unanimously [*747] about which
       disposing" of a stolen vehicle in interstate           specific violations make up the 'continuing series of
       commerce or "receiving, concealing, or storing"        violations.'" 29 In Richardson, as in the present case, it is
       it, required jury unanimity as to which type of        not enough that the jurors might be convinced beyond a
       criminal act defendant committed-"selling" or          reasonable doubt that the defendant committed "a series
       "receiving"). Although the Supreme Court               of violations in concert with others," it must be
       criticized Gipson's notion of "distinct conceptual     unanimous about each specific violation (i.e., which
                                                                                                                     Page 7
                             175 S.W.3d 738, *747; 2005 Tex. Crim. App. LEXIS 457, **18



specific criminal act- which specific drug sale) that it        results. 33 Second, the State could put on evidence of
found the defendant had committed. 30 The Supreme               repetition of the same criminal act on different occasions.
Court explained that a federal criminal jury must               34 Third, the State could put on evidence, as it did in this
unanimously agree on each "element" of the crime in             case, of different criminal acts, each one of which [*748]
order to convict, but need not agree on all the "underlying     is a violation of a specific penal statute such as credit
brute facts [that] make up a particular element." 31 The        card abuse. Under any of these three scenarios, the
crucial distinction is thus between a fact that is a specific   defendant could require the State to elect which specific
actus reus element of the crime and one that is "but the        act it was relying upon for conviction, but he need not.
means" to the commission of a specific actus reus               Nonetheless, the jury must reach a unanimous verdict on
element. 32 Richardson is precisely analogous to the            which single, specific criminal act the defendant
present case.                                                   committed.

         28 526 U.S. 813, 143 L. Ed. 2d 985, 119 S. Ct.                  33      For example, the State might charge a
         1707 (1999).                                                    defendant with stealing a credit card from Hong
[**19]                                                                   Truong and put on evidence that he stole a credit
         29 Id. at 815.                                                  card from Hong Truong and Hanh Nguyen. See
         30 Id. at 816.                                                  GEORGE E. DIX & ROBERT O. DAWSON,
         31    Id. at 817. As the Court in Richardson                    TEXAS        CRIMINAL         PRACTICE        AND
         explained:                                                      PROCEDURE § 30.51 at 664 n.1 (2nd ed. 2001)
                                                                         ("If an indictment alleges theft of one hog and the
                  where ... an element of robbery is                     proof shows that by a single act the defendant
                force or the threat of force, some                       stole two hogs, does this show two different units
                jurors might conclude that the                           between which the State is required to elect?") &
                defendant used a knife to create the                     § 30.58 at 679 (discussing Coward v. State, 24
                threat; others might conclude he                         Tex. App. 590, 7 S.W. 332 (1888), in which "the
                used     a      gun.    But     that                     old Court of Appeals held . . . that when a
                disagreement--a       disagreement                       defendant was tried for theft of one animal and
                about means-- would not matter as                        the evidence showed the thief took two animals,
                long as all 12 jurors unanimously                        the jury charge had to make clear which of the
                concluded that the Government                            animals was the subject of the charged offense")
                had proved the necessary related                         & § 30.57 n.17 at 149 (Supp. 2004) (noting Cates
                element, namely that the defendant                       v. State, 72 S.W.3d 681, 695 n.5 (Tex.App.-Tyler
                had threatened force.                                    2001) "where the State's evidence showed
                                                                         multiple sexual acts committed by the accused
         Id. at 817.                                                     against two children, the need for an election was
         32 Id.; see also United States v. Reeder, 170                   not eliminated by the continuing course of
         F.3d 93, 105 (1st Cir. 1999) ("while a jury must                conduct exception").
         agree on all of the elements of an offense, it need    [**21]
         not agree on the means by which all the elements                34     For example, the State could allege that
         were accomplished").                                            appellant fraudulently presented Hong Truong's
                                                                         credit card to Hanh Nguyen, and then prove that
     The State is also mistaken in its second argument                   he did so on Monday, Tuesday, and again on
that, because the evidence shows the commission of two                   Wednesday. See DIX & DAWSON, § 30.55 at
or more acts violating the same statutory offense, the                   673 (discussing Crawford v. State, 696 S.W.2d
defendant was required to request an election if he                      903 (Tex. Crim. App. 1985), in which "the
wanted the jury to reach a unanimous verdict on one                      indictment charged rape of a child consisting of a
[**20] single act. There are three variations on this                    single act of intercourse with the named victim.
theme, but none of them permits a non-unanimous                          The victim testified to numerous acts of
verdict. First, the State could put on evidence of                       intercourse over several years. Since each act of
repetition of the same criminal act, but with different                  intercourse could constitute the charged offense,
                                                                                                                    Page 8
                             175 S.W.3d 738, *748; 2005 Tex. Crim. App. LEXIS 457, **21



       the State was required to elect one on which to         to request an election means that the jury may be
       proceed").                                              instructed on several different criminal acts in the
                                                               disjunctive, but it will still be instructed that it must
     The present case bears great similarity to the            unanimously agree on one specific criminal act. 40 As the
scenario in Francis v. State, 35 in which the defendant        State correctly points out, one of the purposes of
was charged with one count of indecency with a child in        requiring an election is "to ensure unanimous verdicts,
a single paragraph indictment. 36 The State presented          that is, all of the jurors agreeing that one specific
evidence of four separate acts of indecency, each act          incident, which constituted the offense charged in the
occurring at a different time and date. After the defendant    indictment, occurred[.]" 41 But the converse is not true.
requested the State to elect which specific act it sought to   The failure to request an election does not eliminate a
obtain a conviction, the State chose two of them-one           defendant's right to a unanimous verdict. 42
involving touching the victim's [**22] breasts and one
touching her genitals. 37 Those are separate criminal acts.             40 See DIX & DAWSON, § 30.67 at 688-89
These two separate acts were charged in the disjunctive                 (such a charge "would not limit the jury to any
in a single application paragraph, 38 such that the jury                one of several acts or incidents that might
could have returned a non-unanimous verdict, with some                  constitute the crime. It would, however, make
of the jurors finding that the defendant touched the child's            clear that the jurors must unanimously agree on
breast while others concluding that he touched her                      one of them as constituting the proved offense").
genitals. In Francis, we held that a jury charge which         [**24]
allows for a non-unanimous verdict concerning what                      41 Phillips v. State, 130 S.W.3d 343, 349 (Tex.
specific criminal act the defendant committed is error. 39              App. - Houston [14th Dist.] 2004, n.p.h.).
                                                                        42      See Francis, 36 S.W.3d at 127 n.10
       35 36 S.W.3d 121 (Tex. Crim. App. 2000).                         (Womack, J., concurring) ("we do not reverse for
       36 Id.                                                           the election error. It is necessary to discuss the
       37 Id.                                                           principles that underlie the requirement of
       38 The application paragraph in Francis, read, in                election because one of those principles was
       pertinent part:                                                  violated by the error in the charge").

                   If you find from the evidence                     [*749] There is one point upon which we disagree
               beyond a reasonable doubt that on               with the Eastland Court of Appeals. The error here is not
               or about the 1st day of November,               in submitting the three separate offenses "in the
               1992, in Tarrant County, Texas,                 disjunctive." 43 The error is in failing to instruct the jury
               the Defendant, Joseph Clayton                   that it must be unanimous in deciding which one (or
               Francis, did ... engage in sexual               more) of the three disjunctively submitted offenses it
               contact by touching the breast or               found appellant committed. Indeed, the application
               genitals of ...                                 paragraphs submitted to the jury in this case would have
                                                               been clearly correct had each paragraph included just one
       36 S.W.3d at 124 (emphasis in original).                additional word: "unanimously," such that all twelve
       39 36 S.W.3d at 125                                     jurors would immediately realize that they had to agree
                                                               on one specific paragraph which set out one specific
      [**23] In its Brief, the State attempts to distinguish   criminal act. 44 The general verdict form of "guilty" or
Francis by arguing that appellant did not request an           "not [**25] guilty" is also proper because it does not
election, while the defendant in Francis did request an        matter which criminal act of credit card abuse the jury
election. The State posits that jury unanimity is required     found appellant had committed as long as each juror
only if the defendant requests an election between             agreed on the same criminal act. In this case, however,
separate offenses. A request for an election, however, is      the jury was never informed, in any way, by anyone, at
not a prerequisite for implementing Texas' constitutional      any time, that-as a collective body- it was required to
and statutory requirement of jury unanimity. An election       reach a unanimous verdict concerning one specific
simply limits the number of specific offenses that the jury    criminal act. The way that these three application
may consider during its deliberations. Appellant's failure     paragraphs were set out, the jury could well have been
                                                                                                                      Page 9
                              175 S.W.3d 738, *749; 2005 Tex. Crim. App. LEXIS 457, **25



misled into believing that only its ultimate verdict of                        doubt that [appellant] on or about
"guilty" need be unanimous. Under these particular                             the 13th day of December, 2002,
circumstances, we conclude that, taken as a whole, the                         with intent to obtain a benefit
jury charge contained error.                                                   fraudulently, did use or present to
                                                                               Hanh Nguyen a credit card
         43 Ngo, 129 S.W.3d at 201 (stating that "because                      knowing the use was without the
         of the possibility of a non-unanimous jury verdict,                   effective consent of the cardholder,
         'separate offenses' may not be submitted to the                       Hong Truong, namely without
         jury in the disjunctive"). In making this statement,                  consent of any kind, and knowing
         the court of appeals cited to Francis, but as the                     that the credit card had not been
         State correctly points out, the defendant in                          issued to the defendant, then you
         Francis requested that the State elect one single                     will find [appellant] guilty as
         offense to submit to the jury. Here, appellant did                    charged in the indictment.
         not so request. Therefore, he waived any right to
         require the State to pick just one of the three               (Emphasis added). There is, of course, nothing in
         criminal acts to submit. The jury could be charged            the Texas Constitution, statutes, or case law that
         disjunctively, as long as it was also informed that           requires a jury charge to contain the explicit
         it must be unanimous in deciding which criminal               words "unanimous" or "unanimously." But Texas
         act (or acts) appellant committed- stealing the               law does explicitly require that a jury's verdict be
         credit card, receiving a stolen credit card, or               unanimous. The addition of the word
         fraudulently presenting it.                                   "unanimously" before the description of each
[**26]                                                                 distinct criminal act in the application is merely
         44     Thus, a clearly correct version of the                 one way to implement that legal requirement. We
         application paragraphs would have read:                       certainly do not suggest that it is the only way.

                   Now, if you unanimously find                      [**27] Having found error in the jury charge, we
                from the evidence beyond a                      now turn to the question of whether appellant suffered
                reasonable doubt that [appellant]               "egregious harm" because he failed to object to the jury
                on or about the 13th day of                     charge.
                December, 2002, did then and
                there unlawfully, intentionally or               [*750] B. Appellant suffered "egregious harm" when
                knowingly steal a credit card                   the jury was repeatedly told that it need not return a
                owned by the card holder, Hong                  unanimous verdict.
                Truong, with intent to deprive the
                                                                     Under the Almanza standard, the record must show
                cardholder of the property and
                                                                that a defendant has suffered actual, rather than merely
                without the effective consent of the
                                                                theoretical, harm from jury instruction error. 45 Errors
                cardholder; or
                                                                that result in egregious harm are those that affect "the
                    If you unanimously find from                very basis of the case," "deprive the defendant of a
                the evidence beyond a reasonable                valuable right," or "vitally affect a defensive theory." 46
                doubt that [appellant] on or about              Appellant argues that he suffered actual harm from the
                the 13th day of December, 2002,                 faulty jury instruction and that he was, in fact, deprived
                did then and there unlawfully and               of his valuable right to a unanimous jury verdict.
                knowingly receive with intent to
                                                                       45 Dickey v. State, 22 S.W.3d 490, 492 (Tex.
                use a credit card owned by card
                                                                       Crim. App. 1999) (citing Arline v. State, 721
                holder, Hong Truong, knowing the
                                                                       S.W.2d 348, 351 (Tex. Crim. App. 1986)).
                credit card had been stolen; or
                                                                       46 Hutch v. State, 922 S.W.2d at 171.
                    If you unanimously find from
                                                                     [**28] The court of appeals found egregious error
                the evidence beyond a reasonable
                                                                under Almanza because: 1) the jury charge permitted a
                                                                                                                    Page 10
                             175 S.W.3d 738, *750; 2005 Tex. Crim. App. LEXIS 457, **28



non-unanimous verdict; 2) during its closing argument,                 you believe.
the State forthrightly told the jury that it need not be
unanimous in its verdict (as quoted in Part I supra); and                   Everyone in the first row agree that
3) "there were contested issues at trial." 47 In fact, there           that's okay? Because that's the law.
was more. 48                                                           (emphasis added).

       47 Ngo, 129 S.W.3d at 201-02.                           But that is not the law; that is the error in this case. Then,
       48     Under Almanza, to determine whether the          during the defense voir dire, while the defense was trying
       error was so egregious that a defendant was             [**30] to explain (erroneously) that the State must prove
       denied a fair and impartial trial, a reviewing court    all three criminal acts, the prosecutor objected, and the
       should examine: 1) the entire jury charge; 2) the       trial judge told the jurors:
       state of the evidence; 3) the arguments of counsel;                   There's three ways alleged that the
       and 4) any other relevant information in the                     offense can be committed. The State must
       record. 686 S.W.2d at 171.                                       prove, to your satisfaction, one of the
                                                                        number of them; however, in the course of
    Near the beginning of the State's voir dire, the                    the proof, the State may prove [*751] one
prosecutor told the jurors:                                             to the satisfaction of part of the jury,
                                                                        another one to the satisfaction of others,
           So, I'm going to explain the three ways                      the third one to the satisfaction of another
       that we've alleged that I'm going to intend                      part of the jury, but if you found the
       to prove in this case: That the defendant,                       defendant guilty, you must believe the
       Mr. Ngo, on or about December 13th, in                           State has proved one of the three
       Harris County, Texas, intentionally and                          paragraphs in its entirety.
       [**29] knowingly stole a credit card with
       intent to deprive without the consent of                Thus, both the trial judge and the prosecution misstated
       Hong Truong. That's one way we can do                   the law at the very beginning of the case and at the very
       it.                                                     end. 49 This is not an instance of a jury charge which is
                                                               simply missing an important word-"unanimously"- which
           Second way, that the defendant, on or               reasonable jurors might infer from the context of the
       about December 13, in Harris County,                    entire charge or from the comments of the advocates
       Texas, received with intent to deprive                  emphasizing the correct legal principles. 50 Here, the jury
       without the consent of Hong Truong.                     was affirmatively told, on three occasions, twice by the
       That's one way we can do it.                            prosecutor and once by the trial judge, that it need not
                                                               return a unanimous verdict. Both told the jury that "a mix
           And the third way, defendant, on or
                                                               and match" [**31] verdict of guilt based upon some
       about December 13th, in Harris County,
       Texas, with intent to obtain a fraudulent               jurors believing appellant stole a credit card, others
                                                               believing he received a stolen credit card, and still others
       benefit used or presented a credit card to
                                                               believing that he fraudulently presented one, was "the
       Mr. Hanh Nguyen without the consent of
                                                               law." 51
       Ms. Hong Truong. Does that make sense
       to everybody? There's several different                         49     Defense counsel did not object to these
       ways this can happen. Who in the first row                      misstatements of the law by either the prosecutor
       does that not make sense to?                                    or trial judge. The record shows that the
                                                                       prosecutor handed the trial judge a copy of a case
            The important thing with this is that if
                                                                       from this Court. Apparently all three-the
       three of you who end up sitting on the jury
                                                                       prosecutor,       defense        attorney,     and
       panel feel like he stole the credit card and
                                                                       judge-innocently, but mistakenly, believed that
       used it, six of you think that he received it
                                                                       this Court's opinion that a jury's "mix and match"
       and three of you think he presented it, it
                                                                       nonunanimous verdict on the specific "manner
       doesn't matter which one you think he did.
                                                                       and means" of committing one single criminal act
       It can be a mix and match, whichever one
                                                                                                                    Page 11
                              175 S.W.3d 738, *751; 2005 Tex. Crim. App. LEXIS 457, **31



         (e.g., causing a person's death by strangling,                unanimous verdict violated when defendant
         shooting, poisoning, or garroting) also applied to            charged with three counts of delivery of a
         a "mix and match" nonunanimous verdict                        controlled substance and verdict form included
         concerning different criminal acts which violate              only one count of delivery, allowing jurors to find
         the same statutory provision. Thus, all three acted           guilt without agreeing upon which count he was
         in complete good faith when each either                       guilty).
         unintentionally committed error or failed to object
         to the error.                                                [**33] Furthermore, the evidence was contested as
         50 Compare Hoover v. Johnson, 193 F.3d 366,            appellant testified and denied committing any one of the
         367-68 (5th Cir. 1999) (when both state                three offenses. And, under no theory of the evidence in
         prosecutor and defense attorney correctly              this case, could appellant have committed both the
         explained Texas law of unanimity to jury, habeas       original theft by burglarizing Ms. Truong's apartment and
         petitioner's federal constitutional claim that jury    have received the [*752] stolen credit cards from
         instructions did not guarantee jury unanimity          someone else who had committed the burglary. These
         rejected).                                             two offenses are mutually exclusive in this particular
[**32]                                                          context. If even a single juror believed that appellant was
         51 See, e.g., Castillo v. State, 734 N.E.2d 299,       not the original thief, but did believe that he had received
         304-305 (Ind. App. 2000) (trial court's failure to     the stolen credit card from "Mike," this could not have
         instruct jury on unanimity requirement when State      been a unanimous verdict.
         offered evidence that defendant had committed
                                                                     In sum, this is an instance in which the original jury
         same "dealing cocaine" offense twice was
                                                                charge error was not corrected or ameliorated in another
         reversible error when both trial court and
                                                                portion of the charge; instead, it was compounded by the
         prosecutor told jury it had "a choice" of
                                                                one misleading statement concerning unanimity that was
         convicting defendant for "one or the other ... or
                                                                set out in the jury charge, as well as by the affirmative
         both" instances of drug dealing); Colorado v.
                                                                statements of both the trial judge and prosecutor that the
         Estorga, 200 Colo. 78, 82, 612 P.2d 520, 523
                                                                jury could indeed return a non-unanimous verdict. And,
         (Colo. 1980) (en banc) (defendant's right to
                                                                given the state of the evidence, we-like the court of
         unanimous verdict violated where state offered
                                                                appeals-cannot determine that the jury was, in fact,
         evidence of more than one alleged sexual assault
                                                                unanimous in finding appellant guilty of one specific
         on different occasions and trial court instructed
                                                                credit-card-abuse offense. [**34] Some jurors could
         the jury it could find defendant guilty if "the
                                                                have found appellant's defense to one or more of the three
         evidence showed that the crime had occurred at
                                                                allegations persuasive while finding another one
         any time within three years prior to the filing of
                                                                unpersuasive. We therefore agree that appellant's
         the information"); Horton v. United States, 541
                                                                constitutional and statutory right to a unanimous jury
         A.2d 604, 610-11 (D.C. Ct. App. 1988)
         (defendant's right to unanimous jury verdict           verdict was violated and this violation caused egregious
                                                                harm to his right to a fair and impartial trial. 52 We affirm
         violated when different factual scenarios could
                                                                the judgment of the court of appeals.
         have supported jury verdict on assault conviction
         and appellate court could not "infer from the                 52 See Clear v. State, 76 S.W.3d 622, 624 (Tex.
         verdicts themselves that all the jurors were in               App. - Corpus Christi 2002, no pet.) (finding
         agreement as to appellant's specific criminal                 egregious harm to defendant's right to a
         acts"); Hawaii v. Mahoe, 89 Haw. 284, 291, 972                unanimous jury verdict when jury charge allowed
         P.2d 287, 294 (Haw. 1998) (right to unanimous                 conviction upon disjunctive submission of three
         jury verdict violated when defendant made two                 separate sexual assault of a child offenses); see
         distinct entries into residence, prosecution did not          generally, Ruiz v. State, 753 S.W.2d 681, 683
         elect which entry to rely on for conviction, and
                                                                       (Tex. Crim. App. 1988) (egregious harm resulted
         jury not given specific instruction of requirement            from failure to instruct jury on State's burden to
         of unanimity for underlying criminal act); Illinois           disprove sudden passion when defendant did not
         v. Scott, 243 Ill. App. 3d 167, 612 N.E.2d 7, 9,              offer evidence of any other defense); Bellamy v.
         183 Ill. Dec. 750 (Ill. Ct. App. 1993) (right to
                                                                                                                  Page 12
                            175 S.W.3d 738, *752; 2005 Tex. Crim. App. LEXIS 457, **34



       State, 742 S.W.2d 677, 685-86 (Tex. Crim. App.
       1987) (plurality op.) (egregious harm resulted
       from erroneous instruction on presumption of
                                                                      2 See id., 125, at 127 (concurring opinion).
       knowledge that property was stolen when
       defendant's knowledge was sole contested issue at            The charge in this case also was surrounded by
       trial); see also Horton, 541 A.2d at 611-12             errors, as the court's opinion points out: the prosecutor's
       (although defendant did not object to lack of           incorrect statement in voir dire that the law does not
       unanimity instruction in jury charge, failure to        require a unanimous verdict, the trial court's making a
       give such an instruction was "plain error, that is,     statement to the same effect in voir dire, and the
       error so clearly prejudicial to substantial rights of   prosecutor's reiteration of the wrong law in argument. 3
       the defendant as to jeopardize the very fairness
       and integrity of the trial" when jury could have               3 See ante, at Part II. B.
       been misled into believing that it need not be
       unanimous on which of two different assaults he              It could be said of both Francis and this case that, by
       committed).                                             failing to cure the cumulative effect of a series of
                                                               missteps, the courts' charges contained the ultimate step
     [**35] Cochran, J.                                        that make "it appear[] from the record that the defendant
                                                               has not had a fair an impartial trial" within the meaning
CONCUR BY: WOMACK                                              of Article 36.19.

CONCUR                                                             En banc.

                                                               DISSENT BY: Hervey
WOMACK, J., filed a concurring opinion, in which
MEYERS, J., joined.                                            DISSENT

     I join the Court's opinion with the understanding that        Hervey, J., filed a dissenting opinion in which
its finding of "egregious harm" in this case, like our         [**37] Keasler, J., joined.
finding of "some harm" in Francis v. State, 1 is based on
more than the mere use of the word "or" in the charge.         DISSENTING OPINION

       1 36 S.W.3d 121 (Tex. Cr. App. 2000).                        I respectfully dissent. In this case, a jury
                                                               unanimously convicted appellant of a single credit card
     Three of the six members of the court who found the       abuse offense. The Court decides that appellant's state
error in Francis to be reversible recognized the "strange      constitutional right to a unanimous jury verdict was
context" in which it occurred:                                 violated because the jury's unanimous guilty verdict
                                                               could have been based on a split vote. The State alleged,
         a general, one-paragraph indictment that              in three separate paragraphs, three separate acts, that
       was ill-suited to a multiple-offense trial;             could have been charged as three separate offenses. See
       an indictment in the conjunctive that could             Ngo v. State,     S.W.3d     slip op. at 1-2 (Tex.Cr.App.
       have been in the disjunctive; evidence of               No. PD-0504-04, delivered this date) (three application
       multiple offenses, none of which were                   paragraphs in jury charge permitted jury to convict
       described by the conjunctive pleading; two              appellant if some of the jurors found that he stole the
       denied requests for the State to elect the              credit card, others believed he received a stolen credit
       incident on which it would rely; the State's            card, and still others thought that he fraudulently
       incorrect decision to rely on two incidents             presented it).
       when it had only pleaded one; and the
       erroneous decision to authorize the jury to                 This scenario implicates the Supreme Court's
       convict [*753] for either of two offenses               decision in Schad v. Arizona 1 and this Court's decision in
       [**36] when the indictment pled only                    Francis v. State. 2 It does not, however, implicate
       one. 2                                                  appellant's state constitutional right to a unanimous jury
                                                                                                                Page 13
                            175 S.W.3d 738, *753; 2005 Tex. Crim. App. LEXIS 457, **37



verdict. Rather, it implicates the "permissible [due                         verdict based on any combination
process] limits in defining criminal conduct, as [**38]                      of the alternative findings. If it
reflected in the instructions to jurors applying the                         was, then the jury was unanimous
[application paragraphs], not one of jury unanimity." See                    in reaching the verdict, and
Schad, 501 U.S. at 631. 3 And, it would appear that                          petitioner's proposed unanimity
[*754] (even though all three acts in the application                        rule would not help him. If it was
paragraphs are morally equivalent), 4 those permissible                      not, and the jurors may not
due process limits may have been exceeded in this case 5                     combine findings of premeditated
unless the jury was instructed that it had to unanimously                    and      felony    murder,     then
agree on at least one of the application paragraphs before                   petitioner's conviction will fall
it could convict appellant.                                                  even without his proposed rule,
                                                                             because the instructions allowed
       1 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct.                         for the forbidden combination.
       2491 (1991).
       2 36 S.W.3d 121 (Tex.Cr.App. 2000).                                        In other words, petitioner's
       3 In Schad, 501 U.S. at 630-31, the Supreme                           real challenge is to Arizona's
       Court described the issue in the following                            characterization of first-degree
       manner:                                                               murder as a single crime as to
                                                                             which a verdict need not be limited
                Petitioner's first contention is that                        to any one statutory alternative, as
              his       [first-degree       murder]                          against which he argues that
              conviction under instructions that                             premeditated murder and felony
              did not require the jury to agree on                           murder are separate crimes as to
              one of the alternative theories of                             which the jury must return separate
              premeditated and felony murder is                              verdicts. The issue in this case,
              unconstitutional.           [Footnote                          then, is one of the permissible
              omitted]. He urges us to decide this                           limits in defining criminal conduct,
              case by holding that the Sixth,                                as reflected in the instructions to
              Eighth,         and        Fourteenth                          jurors applying the definitions, not
              Amendments require a unanimous                                 one of jury unanimity.
              jury in state capital cases, as
              distinct from those where lesser               [**39]
              penalties are imposed. [Citations                       4     See Schad, 501 U.S. at 643-45 ("moral
              omitted]. We decline to do so,                          disparity" between different means in jury charge
              however, because the suggested                          to satisfy mens rea element of single offense
              reasoning would beg the question                        could present federal constitutional due process
              raised.     Even       assuming       a                 violation).
              requirement of jury unanimity                           5     See Schad, 501 U.S. at 651 (Scalia, J.,
              arguendo, that assumption would                         concurring) (due process would not permit "an
              fail to address the issue of what the                   indictment charging that the defendant assaulted
              jury must be unanimous about.                           either X on Tuesday or Y on Wednesday, despite
              Petitioner's jury was unanimous in                      the 'moral equivalence' of those two acts"); Ngo,
              deciding that the State had proved                      slip op. at 9 n.22; Francis, 36 S.W.3d at 125 (jury
              what, under state law, it had to                        charge permitted conviction for an offense based
              prove: that petitioner murdered                         on separate acts at different times).
              either with premeditation or in the
              course of committing a robbery.                    The Court decides that this could have been
              The question still remains whether             accomplished by inserting the word "unanimously" into
              it was constitutionally acceptable             each application paragraph. See Ngo, slip op. at 17
              to permit the jurors to reach one              (application paragraphs would have been correct had
                                                                                                                   Page 14
                            175 S.W.3d 738, *754; 2005 Tex. Crim. App. LEXIS 457, **39



each paragraph included the word "unanimously"). But,         charge and given the trial court an opportunity to correct
the charge instructed the jury that it had to unanimously     any error in the charge. See Almanza v. State, 686 S.W.2d
agree on a verdict. 6 This instruction with each              157, 171 (Tex.Cr.App. 1984) (op on reh'g) ("some harm"
application paragraph submitted in the disjunctive            [*755] analysis applies to jury charge error that is subject
accomplished instructing the jury that it had to              to timely objection, "egregious harm" analysis applies to
unanimously [**40] agree on at least one of the               jury charge [**42] error that is not subject to timely
application paragraphs before it could convict appellant.     objection); Posey v. State, 966 S.W.2d 57, 60
                                                              (Tex.Cr.App. 1998) (discussing reasons for requiring a
       6 The jury charge stated:                              party to timely object).

                 After you retire to the jury room,                Both harm standards set out in Almanza require that
               you should select one of your                  "the actual degree of harm must be assayed in light of the
               members as your Foreman. It is his             entire jury charge, the state of the evidence, including the
               or her duty to preside at your                 contested issues and weight of probative evidence, the
               deliberations, vote with you, and              argument of counsel and any other relevant information
               when you have unanimously                      by the record of the trial as a whole." See id.; Posey, 966
               agreed upon a verdict, to certify to           S.W.2d at 60 n.3. Applying this analytical framework to
               your verdict by using the                      this case, it is evident that the jury did not believe
               appropriate form attached hereto               appellant's testimony that someone named "Mike" gave
               and signing the same as Foreman.               him the credit cards or that, in direct conflict with the bar
                                                              manager's testimony, appellant did not attempt to use any
                                                              of these credit cards to buy beer. See Ngo, slip op. at 3-4.
     In addition, the three application paragraphs arising    Had the jury believed appellant, it would have acquitted
from one offense are what distinguishes this case from        him. At the very least then, the record in this case shows
Francis which involved a single application paragraph         that the jury had to have believed that appellant attempted
authorizing the defendant's conviction for indecency with     to buy beer with a credit card that did not belong to him
a child if the jury found that the defendant touched the      (which is covered by the third application paragraph). See
victim's "breast or genitals" which the evidence showed       id.
"referred to two offenses that were committed in two
separate incidents." See Francis, 36 S.W.3d at 121                  [**43] Based on this state of the record, I would
(Womack, J., concurring). The single application              decide that appellant was not "egregiously harmed" by
paragraph presenting two separate offenses in Francis         any error in the charge because the jury could have given
presented a risk [**41] that the defendant could have         effect to appellant's defense and acquitted him under the
been convicted on either of these two separate offenses       instructions given, and the evidence is sufficient to
submitted in that single application paragraph even           support at least the third application paragraph. Cf.
though the jury was not unanimous. See id. This case          Gonzalez v. State, 8 S.W.3d 640, 641 (Tex.Cr.App. 2000)
does not present that situation.                              (general substantive constitutional rule is that "a general
                                                              verdict [is] valid so long as it [is] legally supportable on
     Here, appellant failed to alert the trial court to his   one of the submitted grounds-even though that [gives] no
unanimous jury verdict claim. He also failed to object to     assurance that a valid ground, rather than an invalid one,
any statements by the prosecution and the trial court         [is] actually the basis for the jury's action"). This is how I
during voir dire on this subject. This should not entitle     would apply the harm analysis in this case where
appellant to a harm analysis that seeks to determine          appellant may have helped lead the trial court into error
whether "the jury was, in fact, unanimous in finding          when he affirmatively stated that he had no objection to
appellant guilty of one specific credit card abuse case."     the charge.
See Ngo, slip op. at 21 (deciding that appellant was
"egregiously harmed" because it cannot be determined              In footnote 52 of its opinion, the Court cites a
whether jury unanimously agreed on one of the                 District of Columbia Court of Appeals case to support its
application paragraphs). This is the type of harm analysis    decision that the lack of a special unanimity instruction
that should apply had appellant timely objected to the        constituted egregious harm. See Ngo, slip op. at 22 n.52
                                                                                                                    Page 15
                             175 S.W.3d 738, *755; 2005 Tex. Crim. App. LEXIS 457, **43



citing Horton v. United States, 541 A.2d 604                    in Horton on this basis and not finding, as another
(D.C.Ct.App. 1988). Horton applied [**44] a "plain              possible source of jury confusion, a problem with distinct
error" harm analysis to unpreserved error in the failure to     and sharply different defenses).
submit a special unanimity instruction. See Horton, 541
A.2d at 611 (unpreserved jury charge error requires                    [*756] Shivers also notes that the District of
reversal only upon "a showing of plain error, that is, error    Columbia practice is "somewhat more stringent" than the
so clearly prejudicial to substantial rights of the defendant   "apparent prevailing [plain error] practice in the federal
as to jeopardize the very fairness and integrity of the         courts." See Shivers, 533 A.2d at 261 n. 7, and at 263 n.
trial").                                                        13. According to Shivers, the apparent prevailing practice
                                                                in the federal courts "is to find no 'plain error' so long as
     Horton, however, is distinguishable from this case in      evidence as to each incident is sufficiently strong to
several important respects. Horton involved three               defeat a motion for a directed verdict of not guilty as to
separate convictions (where it was possible that the jury       that incident." See Shivers, 533 A.2d at 261 n. 7. Also,
may not have been unanimous on any one of these                 according to Shivers, the "federal courts consider a
convictions) while this case involves only one conviction.      general unanimity instruction [such as the one in this
See Horton, 541 A.2d at 605-06. Horton also involved an         case] sufficient to insure a unanimous verdict 'except in
element of juror confusion inherent in separate defenses        cases where the complexity of the evidence or other
to separate alleged acts. See Horton, 541 A.2d at 606-08,       factors create a genuine danger of jury confusion.'" See
611 (right to unanimous jury clearly prejudiced by              Shivers, 533 A.2d at 263 n. 13. This relatively simple
confusion inherent in separate defenses to separate             case did not create a genuine danger of jury confusion.
gunshots). This case essentially involves one defense
(appellant received from "Mike" a credit card which                 I respectfully dissent.
appellant never used) applicable to all three application
                                                                    Hervey, J. [**46]
paragraphs. See Shivers v. United States, 533 A.2d 258,
263 (D.C.Ct.App. 1987) [**45] (distinguishing situation
                                                                                                                 Page 1




                 JERRY GLENN PATTERSON, Appellant v. THE STATE OF TEXAS, Appellee

                                                       No. 272-87

                                  COURT OF CRIMINAL APPEALS OF TEXAS

                                   769 S.W.2d 938; 1989 Tex. Crim. App. LEXIS 50


                                                     March 8, 1989

PRIOR HISTORY: [**1] Petition for Discretionary               V.A.C.C.P. The Austin Court of Appeals affirmed the
Review from the Third Court of Appeals [BELL County].         judgment of conviction, but it set aside the assessment of
                                                              punishment and remanded for a reassessment [**2] of
                                                              punishment. 1 Patterson v. State, 723 S.W.2d 308
COUNSEL: Paul Francis, Temple, Texas, Attorney for            (Tex.App. -- Austin 1987). We granted appellant's
appellant.                                                    petition for discretionary review to determine only
                                                              whether the court of appeals erred in defining "use,"
Arthur C. Eads, D. A. & James T. Russell, Asst. D. A.,        within the meaning of Art. 42.12, § 3g(a)(2), to mean
Belton, Texas, Robert Huttash, State's Attorney, Austin,      "any employment of a deadly weapon, even its simple
Texas, Attorneys for State.                                   possession, if such possession facilitates the associated
                                                              felony." Patterson, supra, at 315. 2
JUDGES: En Banc. Duncan, Judge. Duncan, III, Judge,
Clinton & Teague, JJ., dissent.                                      1 The court of appeals' decision on assessment
                                                                     of punishment has no bearing on the issue
OPINION BY: DUNCAN, III                                              currently before this Court.
                                                                     2     Appellant suggests that we grant review
OPINION                                                              because the court of appeals appears to have
                                                                     misconstrued a statute. See Tex.R.App.Pro.
    [*939] OPINION ON APPELLANT'S PETITION                           200(c)(4). While this ground is appropriate, we
FOR DISCRETIONARY REVIEW                                             could have also granted review under Rule
                                                                     200(c)(2). This Court has never construed the
     Appellant was convicted, after a jury trial, of
                                                                     meaning of "use" in Art. 42.12, § 3g(a)(2).
illegally possessing less than 28 grams of
methamphetamine. Art. 4476-15, §§ 4.02(b)(6), 4.04(b),             Based on information received from a confidential
V.A.T.S. The verdict reflects that in response to a special   informant, police obtained a search warrant for the home
issue the jury also found that "the defendant used or         of David Law. When officers arrived to execute the
exhibited a deadly weapon during the commission of the        warrant, [**3] they saw at least two people enter Law's
offense which we found the defendant guilty." A               apartment. A few moments later, the officers went to the
punishment of 25 years, enhanced by two prior felony          door, knocked, and announced themselves as police
convictions, was assessed by the trial court. An              officers. After waiting approximately ten seconds, the
affirmative finding of use of a deadly weapon was             officers kicked in the door. Another officer was at the
entered in the judgment. Art. 42.12, § 3g(a)(2),              back door and entered by the same means. Upon gaining
                                                                                                                     Page 2
                              769 S.W.2d 938, *939; 1989 Tex. Crim. App. LEXIS 50, **3



entry, the officer who entered the front door observed              The court next summarized a series of cases which
seven people in the living room. Two others were                construed [**5] the meaning of "use a weapon" in other
discovered elsewhere in the apartment.                          contexts. 3 These cases rejected a narrow construction
                                                                which would have defined "use" to mean "fire" in the
     The appellant was sitting on a sofa in the living          case of a gun. Desiring to make the statute flexible in its
room. He was seated at the extreme, left end, which was         deterrence of danger to human life, the court adopted the
nearest to the front door. Next to appellant was an end         approach of the cases cited, holding "use" to constitute "
table. On the table was a suede bag, a wallet, and a "gun       any employment of a deadly weapon, even simple
boot." As one officer approached him, appellant raised          possession, if such possession facilitates the associated
his hands and said "I have a gun right here, but I'm not        felony." Patterson, supra, at 315.
going to touch it." As he said this, appellant indicated a
location between his left leg and the end of the sofa. The             3 The court cited Gaston v. State, 672 S.W.2d
officer retrieved the gun, and then the items on the end               819 (Tex.App. -- Dallas 1983, no pet.), and
table. A subsequent search revealed that the wallet                    incorrectly attributed it to this Court.
contained $ 905; the bag held 1.10 grams of
methamphetamine and miscellaneous drug paraphernalia;                The appellant couches his argument in terms of the
and the "gun boot" contained several rounds of                  sufficiency of evidence to support an affirmative finding
ammunition which fit the gun that had [**4] been seized.        that he used a deadly weapon. He argues that the gun was
Soon after this, appellant was arrested and taken to the        difficult for the officer to find, and that there was no
police station.                                                 evidence of a threat involving the gun. At trial, the State
                                                                argued that the appellant had the gun in order to protect
    Art. 42.12, § 3g(a)(2), supra, provides as follows:         his drugs and to facilitate their possession. Appellant
                                                                counters by claiming [**6] that if the gun was to
         [*940] (a) The provisions of Sections 3                facilitate possession of anything, it was to protect his $
       and 3c of this Article do not apply:                     905 cash. The State filed no brief or response before this
                                                                Court.
            ***
                                                                     The court of appeals found that, although stated as a
            (2) to a defendant when it is shown                 sufficiency question, appellant's argument is essentially
       that the defendant used or exhibited a                   one of statutory construction. Id., at 314. We agree. There
       deadly weapon as defined in Section                      are a multitude of rules for statutory construction, and
       1.07(a)(11), Penal Code, during the                      authority exists in support of virtually every position one
       commission of a felony offense or during                 might wish to take. The most common thread running
       immediate flight therefrom. Upon                         through these competing maxims is for the judiciary to
       affirmative finding that the defendant used              attempt to effectuate the intent of the Legislature. Direct
       or exhibited a deadly weapon during the                  reference to the evolution of Art. 42.12, § 3g, supra,
       commission of an offense or during                       through both houses of the Legislature and conference
       immediate flight therefrom, the trial court              committee sheds no light on what the Legislature
       shall enter the finding in the judgment of               intended to be meant by "used or exhibited a deadly
       the court. Upon an affirmative finding that              weapon," and tapes of the legislative debates and
       the deadly weapon the defendant used or                  committee hearings are equally as barren. We are left
       exhibited was a firearm, the court shall                 with the words of the statute itself and a collection of
       enter that finding in its judgment.                      often conflicting rules of construction.

                                                                      One thing is clear however, in construing the statute
     The court of appeals began its discussion of the           it is necessary that the verb forms of the words "use" and
propriety of the affirmative finding by determining the         "exhibit" be "read in context and construed according to
scope of felonies embraced by Art. 42.12, § 3g, and             rules [**7] of grammar and usage." Sec. 311.011(a),
decided that all felonies are theoretically susceptible to an   Tex.Gov't. Code. 4 At the outset it is essential to note that
affirmative finding of use or exhibition of a deadly            "use" and "exhibit" are not synonymous. Each word is
weapon. We agree with this conclusion.                          exemplary of different types of conduct. "Use," as a verb,
                                                                                                                     Page 3
                               769 S.W.2d 938, *940; 1989 Tex. Crim. App. LEXIS 50, **7



may mean a number of things. For example, "use" is               possession, if such possession facilitates the associated
defined as "to put into action or service: have recourse to      felony." Patterson v. State, supra, at 315. However, to
or enjoyment of: employ . . . to [*941] carry out a              "exhibit" a deadly weapon it need only be consciously
purpose or action by means of: make instrumental to an           displayed during the commission of the required felony
end or process: apply to advantage: turn to account:             offense. Thus, one can "use" a deadly weapon without
utilize." Webster's Third New International Dictionary           exhibiting it, but it is doubtful one can exhibit a deadly
(1976), p. 2523-2524. In explicating the word the                weapon during the commission of a felony without using
dictionary provides the following synonym: "employ,              it.
utilize, apply, avail: use is general and indicates putting
to service of a thing, usu. for an intended or fit purpose . .        In United States v. La Guardia, 774 F.2d 317 (8th
. ." Id.                                                         Cir. 1985), the defendants were convicted of possession
                                                                 of cocaine with the intent to distribute [18 U.S.C. § 2 and
        4    The Code Construction Act applies to all            21 U.S.C. § 841(a)(1)] and using a firearm during the
        amendments and revisions of a code or code               commission of a felony. Briefly, during a search of the
        provision made after the 59th Legislature.               defendants' residence the police found a quantity of
        Tex.Gov't. Code, § 311.002(2). Art. 42.12, §             cocaine, $ 9,800, and a loaded .22 caliber pistol inside a
        3g(a)(2), was added to the Code of Criminal              purse, a nine millimeter [**10] automatic pistol in a hall
        Procedure by the 65th Legislature.                       closet, and a .44 caliber rifle in one of the defendants'
                                                                 automobile. On appeal one of the defendants claimed that
      [**8] "Exhibit," on the other hand, as a verb, is          there was insufficient evidence to prove his use of a
much more definitive in its meaning: "to present to view:        firearm to commit a felony.
show, display: as a. to show (as a feeling) or display (as a
quality) outwardly esp. by visible signs or actions." Id., at         Prior to its amendment in 1986, 18 U.S.C. §
796.                                                             924(c)(1), increased the scope of permissible punishment
                                                                 for "Whoever -- (1) uses a firearm to commit any felony .
     Comparing the words, both are transitive verbs              . ., or (2) carries a firearm unlawfully during the
because they require an object to complete their meaning.        commission of any felony." 5 The federal statute
In the language of the statute their object is a "deadly         identifies the prohibited conduct as "uses" and "carries."
weapon." In contrasting the word's definitions, "use" is         The circuit court of appeals in interpreting this statute
commonly employed to describe conduct in which the               commented that "Section 924(c)(1) reaches the
verb's object, again, in this case a deadly weapon, is           possession of a firearm which in any manner facilitates
utilized in order to achieve a purpose. In other words, the      the execution of the felony." United States v. La Guardia,
deadly weapon must be utilized, employed, or applied in          supra, at 321. See also: United States v. Grant, 545 F.2d
order to achieve its intended result: "the commission of a       1309 (2nd Cir. 1976), cert denied, 429 U.S. 1103, 51 L.
felony offense or during immediate flight therefrom."            Ed. 2d 554, 97 S. Ct. 1130 (1977); United States v.
Art. 42.12, § 3g(a)(2), supra. Conversely, "exhibit" only        Moore, 580 F.2d 360 (9th Cir. 1977), cert denied, 439
requires that a deadly weapon be consciously shown,              U.S. 970, 99 S. Ct. 463, 58 L. Ed. 2d 430 (1978). [*942]
displayed, or presented to be viewed during "the                 Under the facts, the court of appeals concluded that the
commission of a felony offense or during immediate               "weapons had undoubted utility in the protection of the
flight therefrom" Id.                                            valuable supply [**11] and cash on hand." Id., at 321.

     Thus, "used . . . a deadly weapon" during the                      5 18 U.S.C. § 924(c)(1), et seq. now is applicable
commission of the offense means that the deadly weapon                  only to a "crime of violence or drug trafficking
was employed or utilized in order to achieve its purpose.               crime."
Whereas [**9] "exhibited a deadly weapon" means that
the weapon was consciously shown or displayed during                   The facts in United States v. La Guardia, supra, and
the commission of the offense. Therefore, the court of           those in the present case are quite similar. The appellant
appeals was correct when it stated that "'used . . . during      claims that the weapon, if used at all, was used to protect
the commission of a felony offense' refers certainly to the      his $905. That could obviously be true, but as in La
wielding of a firearm with effect, but it extends as well to     Guardia, supra, it does not mean that the weapon had no
any employment of a deadly weapon, even its simple               utility to his protection of the drugs.
                                                                                                               Page 4
                             769 S.W.2d 938, *942; 1989 Tex. Crim. App. LEXIS 50, **11



The court of appeals determined "that a rational trier of          The judgment of the court of appeals is affirmed;
fact could find that appellant 'used' the firearm during the   however, the cause is remanded to the trial court for
commission of the felony offense of possessing the             reassessment [**12] of punishment as ordered by the
contraband, in a sense that the firearm protected and          court of appeals.
facilitated appellant's care, custody, and management of
the contraband." We will defer to the collective judgment          (Delivered March 8, 1989)
of the court of appeals in this regard and accordingly
                                                                   DUNCAN, III, Judge, Clinton & Teague, JJ., dissent.
reject appellant's point of error.
                                                                                                                Page 1




                            THE STATE OF TEXAS v. GEORGE MOFF, Appellee

                                                   NO. 458-03

                                COURT OF CRIMINAL APPEALS OF TEXAS

                               154 S.W.3d 599; 2004 Tex. Crim. App. LEXIS 1648


                                           October 6, 2004, Delivered

NOTICE:      [**1] PUBLISH                                OPINION BY: Meyers

SUBSEQUENT HISTORY: Rehearing denied by State             OPINION
v. Moff, 2005 Tex. Crim. App. LEXIS 52 (Tex. Crim.
App., Jan. 12, 2005)                                             [*600] The Appellee, Moff, was charged with
Rehearing denied by Moff v. State, 153 S.W.3d 452, 2005   intentional, knowing and reckless misapplication of
Tex. Crim. App. LEXIS 108 (Tex. Crim. App., Jan. 26,      fiduciary property. TEX. PEN. CODE § 32.45(b). The
2005)                                                     indictment submitted by the district attorney failed to
                                                          specify the transaction or transactions involved. Moff
PRIOR HISTORY:            ON APPELLEE'S PETITION          filed a motion to quash the indictment, which was granted
FOR DISCRETIONARY REVIEW FROM THE                         by the trial court. The trial court's order directed the State
THIRTEENTH COURT OF APPEALS. NUECES                       to re-file the indictment, specifying which purchases were
COUNTY.                                                   alleged to be unauthorized. The State appealed, and the
State v. Moff, 133 S.W.3d 648, 2003 Tex. App. LEXIS 942   Court of Appeals reversed the trial court's order quashing
(Tex. App. Corpus Christi, 2003)                          the indictment. State v. Moff, 133 S.W.3d 648 (Tex. Crim.
                                                          App. 2003). Appellee filed a petition for discretionary
DISPOSITION:          Judgment of the Court of Appeals    review, asserting that the trial court had the discretion to
was reversed, and the cause was remanded to the trial     quash the indictment and to require more specificity. We
court to resume the proceedings.                          granted review to determine "whether a trial court abuses
                                                          its discretion when it requires [**2] more specificity in
                                                          an indictment alleging recklessness and spanning seven
COUNSEL: For APPELLANT: Michael H. Hummell,               years which fails to identify which of the countless
Corpus Christi, TX.                                       transactions during that time span the State may rely on
                                                          for conviction." We hold that this issue warrants a de
For STATE: Douglas K. Norman, ASSIST. DA., Corpus         novo, rather than an abuse of discretion standard of
Christi, TX, Matthew Paul, STATE'S ATTORNEY,              review. After a de novo review, we conclude that the
Austin, TX.                                               Court of Appeals erred by reversing the trial court's order
                                                          because the accused was deprived of the notice required
JUDGES: Meyers, J., delivered the opinion of the Court,   to prepare an adequate defense.
in which Keller, P.J., and Womack, Johnson, Keasler,
Hervey, Holcomb, and Cochran, JJ., join. Price, J.,       FACTS
concurs.
                                                                                                                   Page 2
                            154 S.W.3d 599, *600; 2004 Tex. Crim. App. LEXIS 1648, **2



    Moff was the chief appraiser of Nueces County for         discretion in granting the motion to quash.
twenty years. In his capacity as chief appraiser, he was
responsible for making various purchases for the County.      STANDARD OF REVIEW
A grand jury indicted Moff for alleged misapplication of
                                                                   Prior to our decision in Guzman v. State, 955 S.W.2d
fiduciary property. The indictment read:
                                                              85 (Tex. Crim. App. 1997), abuse of discretion was the
                                                              standard employed by our Court when reviewing a trial
           On or about and between January 1,
                                                              court's decision to quash an indictment. But we did not
       1993 and December 31, 1999, George
                                                              have occasion to analyze its appropriateness. However,
       Moff did then and there intentionally,
                                                              we now determine that a de novo review is more
       knowingly, and recklessly misapply
                                                              appropriate in a case such as the one before us. The
       property, to wit: money and credit cards,
                                                              amount of deference appellate courts afford a trial court's
       of the value of $ 20,000.00 or more but
                                                              rulings depends upon which "judicial actor" is better
       less than $ 100,000.00, that the said
                                                              positioned to decide the issue. Guzman, 955 S.W.2d at
       defendant held as a fiduciary in a manner
                                                              89. The sufficiency of an indictment is a question [**5]
       that involved substantial risk of loss to the
                                                              of law. When the resolution of a question of law does not
       Nueces County Appraisal District, the
                                                              turn on an evaluation of the credibility and demeanor of a
       owner of said property, [**3] and the
                                                              witness, then the trial court is not in a better position to
       person for whose benefit the property was
                                                              make the determination, so appellate courts should
       held, by using said money and credit cards
                                                              conduct a de novo review of the issue. While this case is
       to make purchases without the effective
                                                              different from Guzman in that it involves the Appellee's
       authorization of the Nueces County
                                                              due process right to notice of the charges against him, our
       Appraisal District Board of Directors.
                                                              reasoning for modifying the standard of review is the
                                                              same. The trial court's decision in this case was based
Appellee filed a motion to quash the indictment for
                                                              only on the indictment, the motion to quash, and the
failing to specify which purchases were made without the
                                                              argument of counsel, so the trial court was in no better
authorization of the Appraisal District Board of Directors.
                                                              position than an appellate court to decide this issue.
Moff was also under indictment on two other charges that
                                                              Because the Court of Appeals used an abuse of discretion
might have involved the same item or items, and he
                                                              standard of review, we will conduct a de novo review of
argued that until he knew which purchases were alleged
                                                              the trial court's ruling rather than review the decision of
to be unauthorized, he could not raise the defense that the
                                                              the Court of Appeals.
charges in the current indictment were jeopardy barred.
The trial court held an initial hearing on the motion,        NOTICE
during which the State argued that the identification of
which purchases were unauthorized was an evidentiary               The right to notice is set forth in both the United
issue that Appellee could learn through discovery. The        States and Texas Constitutions. See U.S. CONST. amend.
court deferred ruling on the motion. At a subsequent          VI; TEX. CONST. art. I, § 10. Thus, the charging
hearing to determine which purchases were alleged to be       instrument must be specific enough to inform the accused
unauthorized, the State acknowledged that its report on       of the nature of the accusation against him so that he may
charges for the time period [*601] identified in the          prepare a defense. [**6] State v. Mays, 967 S.W.2d 404,
indictment was 60 pages long, but stated that it was not      406 (Tex. Crim. App. 1998); Daniels v. State, 754 S.W.2d
required to disclose which purchases were unauthorized.       214, 217 (Tex. Crim. App. 1988); Adams v. State, 707
[**4] The State argued that it had not yet determined         S.W.2d 900, 901 (Tex. Crim. App. 1986). In addition, the
which charges it planned to use to support its case against   Texas Code of Criminal Procedure provides guidelines
Appellee. The trial court then granted the motion to quash    relating to the sufficiency of an indictment. See, e.g.,
and ordered the State to re-file its indictment to assert     Article 21.03 ("Everything should be stated in an
with specificity which purchases were allegedly               indictment which is necessary to be proved."); Article
unauthorized. On appeal, the State asserted that the          21.04 ("The certainty required in an indictment is such as
indictment included all elements of the offense, and left     will enable the accused to plead the judgment that may be
out only evidentiary matters not required to be pled. The     given upon it in bar of any prosecution for the same
Court of Appeals held that the trial court abused its         offense."); Article 21.11 ("An indictment shall be deemed
                                                                                                                      Page 3
                            154 S.W.3d 599, *601; 2004 Tex. Crim. App. LEXIS 1648, **6



sufficient which charges the commission of the offense in            nature of the charges against the accused
ordinary and concise language in such a manner as to                 in our system of justice, a timely claim of
enable a person of common understanding to know what                 inadequate notice requires careful
is meant, and with that degree of certainty that will give           consideration. . . . When the defendant
the defendant notice of the particular offense with which            petitions for sufficient notice of the state's
he is charged, and enable the court, on conviction, to               charge by motion to quash adequately
pronounce the proper judgment. . . .").                              setting out the manner in which notice is
                                                                     deficient, the presumption of innocence
    Here, the indictment followed the statute for                    coupled with his right to notice requires
misapplication of fiduciary property, which provides:                that he be given such notice.

         A person commits an [**7] offense if he              Drumm v. State, 560 S.W.2d 944 at 946-47. Thus, the
       intentionally, knowingly, or recklessly                accused has the right to notice that is specific enough to
       misapplies [*602] property he holds as a               allow him to investigate the allegations against [**9]
       fiduciary or property of a financial                   him and establish a defense.
       institution in a manner that involves
       substantial risk of loss to the owner of the                We have considered issues similar to the one before
       property or to a person for whose benefit              us in Swabado v. State, 597 S.W.2d 361 (Tex. Crim. App.
       the property is held.                                  1980), and Amaya v. State, 551 S.W.2d 385 (Tex. Crim.
                                                              App. 1977). In Swabado, the defendant was charged with
TEX.PEN.CODE. § 32.45(b). We have stated that                 tampering with a government record. He filed a motion to
ordinarily, an indictment is legally sufficient if it         quash the indictment, contending that it was vague and
delineates the penal statute in question. Daniels, 754        ambiguous due to the fact that, as a nursing home
S.W.2d at 218; Thomas v. State, 621 S.W.2d 158, 161           administrator for several years prior to the indictment, he
(Tex. Crim. App. 1981) (opinion on rehearing); Haecker        routinely prepared and filed government records
v. State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978).         including monthly staffing reports. Swabado, 597 S.W.2d
However, these cases are different from the case before       at 362-63. The trial court denied the motion. We held that
us because the issue in them relates to whether the terms     the trial court erred in denying the motion because the
used in the indictment are sufficiently specific to provide   indictment failed to identify the monthly staffing report
notice to the defendant. Thus, this rule applies when the     on which the State would rely. Id. at 364. Thus, the
indictment is framed under a statute in which the act         statutory language was insufficient to provide the
constituting the offense is defined so that the accused is    defendant with notice of the offense.
informed of the nature of the charge. Haecker, 571
S.W.2d at 921. Additionally, this rule does not mean that          The defendant in Amaya was required to make many
a trial court cannot require the State to amend an            statements to the Department of Public Welfare. The
indictment which tracks the [**8] language of the statute     information alleging welfare fraud failed to allege which
when more notice is needed so that the accused can            of the defendant's statements was false. We stated that,
adequately prepare a defense.                                 "if a proper exception [**10] or motion to quash is filed
                                                              and brought to the attention of the court before trial, the
     Because fundamental constitutional protections are       State must then respond by amending the indictment or
involved, if a defendant files a timely motion stating that   information to include a specific allegation of what the
the indictment does not provide adequate notice, there are    State will rely upon to convict." Amaya, 551 S.W.2d at
some circumstances in which the trial court may require       387, citing American Plant Food Corp. v. State, 508
more information. In Drumm, the appellant filed a motion      S.W.2d 598, 603 (Tex. Crim. App. 1974). We held that the
to quash, stating that the information failed to give         [*603] defendant was entitled, upon proper exception, to
sufficient notice. The trial court overruled the motion. We   know which false statement the State would rely upon for
reversed the judgment and stated that:                        conviction. Amaya, 551 S.W.2d at 387. Thus, as a general
                                                              rule, an indictment must give the defendant notice of
          Because of the fundamental notions of               precisely what he is charged with so that he may prepare
       fairness that require adequate notice of the           an adequate defense. However, in a case such as the one
                                                                                                                     Page 4
                             154 S.W.3d 599, *603; 2004 Tex. Crim. App. LEXIS 1648, **10



before us, in which each unauthorized transaction was a          outside the indictment to a report generated by the Texas
separate criminal act but together constitutes the single        Rangers to identify the unauthorized purchases. The trial
offense of misapplication of fiduciary duty, details             judge specifically rejected this idea and found that the
regarding the specific acts on which the State intends to        documents that had been provided to Moff did not
rely are not required to be listed in the indictment, as long    provide sufficiently specific notice to allow him to
as they are provided by some other means.                        prepare [**13] his defense. 1

ANALYSIS                                                                1      [STATE] I think that the best working
                                                                        blueprint we have at this point we've already
     The indictment in the case before us alleges that the              produced to them, which is the ranger's 60-plus
illegal purchases occurred "on or about and between                     page report. So that, in terms of theory of a case at
[**11] January 1, 1993 and December 31, 1999." Similar                  this point, that's probably the best one we have.
to the defendant in Swabado, in his capacity as Chief
Appraiser of the Nueces County Appraisal District, Moff                       [COURT] Have you folks been talking to the
used money and credit cards to make numerous purchases                  - - to the federal government? That's how - - that's
of equipment and supplies during the time period alleged                what they do. They produce hundred-page
in the indictment. Although the indictment correctly                    documents and go "Somewhere in there lies the
tracks the language of the statute, in this type of case, that          offense."
alone is not sufficient to fulfill the constitutional and
statutory requirements of specificity. It is unreasonable to                 ***
require the defendant to gather evidence and prepare a
                                                                             But it seems to me that there seems to be a
defense for each of the credit card and cash transactions
                                                                        notice problem. You've got the dollar amount but
he made during the seven-year time frame in the
                                                                        there's got to be some documentation that says:
indictment. Thus, additional information that is
                                                                        Well, Mr. Moff, on this date did A and this is
reasonably necessary for the defense to prepare its case
                                                                        what we say he did, he misappropriated or used a
must be provided. This is not to say that the State must
                                                                        credit card.
lay out its case in the indictment, only that the defendant
must be informed of the specific transactions that                           ***
allegedly violate the statute. We recently stated in Kellar
v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003),                        It seems to me that if I'm going to sit here and
that "this due process requirement may be satisfied by                  we have a jury in the box, that a person that's
means other than the language in the charging                           accused of a crime needs to know what he or she
instrument." In Kellar [**12] , prior to trial, the State               is accused of. For the State to say, "Well, between
filed an itemized list containing the dates, check numbers,             '93 and '99," and produce whatever documents,
and amounts of each transaction, which provided the                     and just throw it against the wall is not serving
defendant with sufficient notice to prepare his defense.                anyone, including Mr. Moff or any accused that
This is not meant to imply that the notice requirement is               comes into court.
always satisfied by discovery. For example, the State may
not conduct "trial by ambush," in which the information                      ***
necessary to provide notice is buried somewhere in a
mass of documents turned over to the defendant. The trial                    [DEFENSE] All I'm asking them to do is
court must determine whether the notice given to the                    identify out of the thousands of pages of
defendant is sufficient and should quash the indictment if              documents they've produced which ones reflect
the notice is not specific enough. Therefore, the trial                 something that they can - - that they contend was
court did not err in quashing the indictment because the                illegal.
State failed to give Moff sufficiently specific notice of
                                                                         [**14] [*604] Because the indictment was
the particular act or acts with which he is charged.
                                                                 quashed and the State appealed the decision of the trial
    We note that in the pre-trial hearing and at oral            court rather than re-file the indictment, there has been no
argument, the State suggested that Moff should look              trial. Since there was no trial from which to show harm,
                                                                 the situation before us is not subject to a harm analysis.
                                                                                                                   Page 5
                            154 S.W.3d 599, *604; 2004 Tex. Crim. App. LEXIS 1648, **14



Conclusion                                                     Appeals is reversed, and the cause is remanded to the trial
                                                               court to resume the proceedings.
     We hold that, because the State failed to provide
sufficient notice to inform the accused of the specific acts       Meyers, J.
for which he was charged, the trial court did not err in
quashing the indictment. The judgment of the Court of
                                                                                                               Page 1




                        TRACY PAUL TAYLOR, Appellant v. THE STATE OF TEXAS

                                    NO. PD-0266-09, PD-0267-09, PD-0268-09

                                 COURT OF CRIMINAL APPEALS OF TEXAS

                                 332 S.W.3d 483; 2011 Tex. Crim. App. LEXIS 326


                                             March 9, 2011, Delivered

NOTICE:     PUBLISH                                        seventeen. On appeal, Appellant argued in part that the
                                                           jury charges were erroneous because they did not limit
SUBSEQUENT HISTORY: On remand at, Decision                 the jury's consideration to evidence of acts committed
reached on appeal by Taylor v. State, 2012 Tex. App.       after his seventeenth birthday. The court of appeals held
LEXIS 581 (Tex. App. Houston 1st Dist., Jan. 26, 2012)     that the error in the jury charges deprived Appellant of a
                                                           fair and impartial trial. We granted review to consider the
PRIOR HISTORY: [**1]                                       effects of the instructions received and not received by
   ON STATE'S PETITION FOR DISCRETIONARY                   the jury in this case. We will reverse.
REVIEW FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY.                                             I. PENAL CODE SECTION 8.07(b)
Taylor v. State, 2009 Tex. App. LEXIS 430 (Tex. App.
Houston 1st Dist., Jan. 22, 2009)                              Texas Penal Code Section 8.07(b) states:
Taylor v. State, 2009 Tex. App. LEXIS 418 (Tex. App.
Houston 1st Dist., Jan. 22, 2009)                                       Unless the juvenile court waives
Taylor v. State, 288 S.W.3d 24, 2009 Tex. App. LEXIS              jurisdiction under Section 54.02, Family
7075 (Tex. App. Houston 1st Dist., 2009)                          Code, and certifies the individual for
                                                                  criminal prosecution or the juvenile court
                                                                  has previously [**2] waived jurisdiction
JUDGES: MEYERS, J., delivered the opinion of the                  under that section and certified the
Court, in which KELLER, P.J., and WOMACK,                         individual for criminal prosecution, a
KEASLER, HERVEY, and COCHRAN, JJ., joined.                        person may not be prosecuted for or
PRICE, J., concurred. JOHNSON, J., dissented.                     convicted of any offense committed before
                                                                  reaching 17 years of age except an offense
OPINION BY: Meyers                                                described by Subsections (a)(1)-(5). 1

OPINION                                                    TEX. PENAL CODE ANN. § 8.07(b) (emphasis added).

      [*485] Appellant, Tracy Paul Taylor, was convicted          1 Subsections (a)(1)-(5) are not applicable in this
of three offenses of aggravated sexual assault and                case.
sentenced to seventy years' confinement with a fine of
$10,000 for each offense. Much of the testimony at trial   II. PROCEDURAL HISTORY
related to acts committed before Appellant turned
                                                                                                                     Page 2
                              332 S.W.3d 483, *485; 2011 Tex. Crim. App. LEXIS 326, **2



     The jury found Appellant guilty of three offenses of       Appellant's seventeenth birthday. After reviewing the
aggravated sexual assault, as charged in three separate         court's proposed charge, defense counsel stated that she
indictments. The earliest date cited among the                  had no objections.
indictments was "on or about September 01, 2002." On
that date, Appellant was seventeen years old. 2 Therefore,           At the court of appeals, Appellant argued that,
the indictments did not violate Section 8.07(b), nor did        without an 8.07(b) instruction, the charges were
the verdict forms, which referred back to the indictments.      erroneous because the evidence presented at trial
3 The issue before this Court relates to the jury charges.      included acts committed before he turned seventeen. The
                                                                court of appeals agreed, concluding that without an
       2 Appellant turned seventeen earlier that year on        8.07(b) instruction, "the charge authorized the jury to
       March 25, 2002.                                          convict [A]ppellant based on acts he committed before
       3 For two of the three offenses, the indictments         his seventeenth birthday." Taylor v. State, 288 S.W.3d 24,
       evolved from the time they were originally filed         30 (Tex. App.--Houston [1st Dist.] 2009, pet. granted).
       to the time they were presented at the start of the
       trial. The altered allegations pertained to the dates         The State now argues to this Court that, in the
       of the offenses and the specific methods of              absence of any request for an 8.07(b) instruction from
       assault. However, the inconsistences do not affect       defense counsel, the judge was not required to sua sponte
       our analysis because [**3] the final revised dates       instruct the jury on this point. The State also argues that
       that were presented to the jury all fall after           the court of appeals should have found any error to be
       Appellant's seventeenth birthday (as were all of         harmless. 5
       the dates in the original indictments); and the
                                                                       5 We granted [**5] the following two issues:
       earliest date, after the revisions, remained
       September 1, 2002.                                                   (1) Is the age-based defense located in
                                                                       Section 8.07(b) of the Texas Penal Code a
     At trial, testimony referred to various years as the
                                                                       "defensive issue" (as opposed to "law applicable
start of Appellant's abusive conduct, all pre-dating
                                                                       to the case") for purposes of determining whether
Appellant's seventeenth birthday. A child-abuse
                                                                       the trial judge must sua sponte submit a jury
pediatrician testified regarding her examination of the
                                                                       instruction on this defense?
victim, which took place at the Children's Assessment
Center in 2006. Her report, admitted into evidence, stated                 (2) Was Appellant harmed by any error
that [*486] Appellant touched the victim inappropriately               resulting from the absence of an instruction on the
for the first time when the victim was seven. Appellant                age-based defense located in Section 8.07(b) of
would have been twelve at that time. The victim's father               the Texas Penal Code when the victim testified
dated the start of his daughter's contact with Appellant as            that the worst abuse occurred after Appellant
the fall of 1998, when the victim would have been eight                turned 17 years old?
and Appellant would have been thirteen. The victim's
own testimony described the "worst" years of abuse as           III. ARTICLE 36.14 AND THE LAW APPLICABLE
her sixth through eighth grade years. She agreed with the       TO THIS CASE
State's assertion that in sixth grade she was ten and
eleven. Appellant would have then been fifteen and                   The State's first issue asks if the trial judge was
sixteen. 4                                                      required to sua sponte submit an 8.07(b) instruction in
                                                                this case. Code of Criminal Procedure Article 36.14
       4 The record includes different dates of birth for       details the requirements and procedures for the delivery
       the victim. The Children's Assessment [**4]              of the court's charge to the jury. TEX. CODE CRIM. PROC.
       Center report lists June 12, 1990 as the victim's        ANN. art. 36.14. It states, "the judge shall . . . deliver to
       date of birth, while the victim testified that her       the jury . . . a written charge distinctly setting forth the
       birthday was October 1. Therefore, to a small            law applicable to the case." Id. Article 36.14 also
       extent, these calculations are approximate.              provides that, before the charge is read to the jury, "the
                                                                defendant or his counsel shall have a reasonable time to
     The jury charges did not contain an 8.07(b)                examine the same and he shall present his objections."
instruction to limit the jury's consideration to events after
                                                                                                                     Page 3
                             332 S.W.3d 483, *486; 2011 Tex. Crim. App. LEXIS 326, **6



[**6] Id. However, the judge's duty to instruct the jury on    argues that an 8.07(b) instruction is a defensive issue in
the law applicable to the case exists even when defense        this case because defense counsel's theory at trial was that
counsel fails to object to inclusions or exclusions in the     Appellant never sexually assaulted the victim, not that he
charge; this may require the judge to sua sponte provide       only did so only before turning seventeen. 7 In other
the jury with the law applicable to the case, under Article    words, the State suggests that activating 8.07(b) and
36.14. So, even in the absence of action on the part of        directing attention away from Appellant's pre-seventeen
Appellant's defense counsel, if an 8.07(b) instruction         conduct would have contravened the defense's theory that
were the law applicable to this case, the trial judge was      Appellant was innocent at every age.
required, under Article 36.14, to include it in the jury
charges. We must assess whether the jury charges set                  7    To support this reading of the defendant's
forth the law applicable to the case, [*487] and                      theory of the case, the State cites to defense
specifically, whether an 8.07(b) instruction belonged in              counsel's closing argument, where counsel stated,
the jury charges.                                                     "the State simply has not met its burden of proof
                                                                      to you that Tracy Taylor committed these
     We have previously held that Article 36.14 imposes               offenses."
no duty on trial courts to sua sponte instruct the jury on
unrequested defensive issues. Posey v. State, 966 S.W.2d            A feature of a defensive issue is that it is a strategic
57, 62 (Tex. Crim. App. 1998). An unrequested defensive        decision "generally left to the lawyer and the client."
issue is not the law applicable to the case. Id. So, we must   Posey, 966 S.W.2d at 63. However, the applicability of
classify an 8.07(b) instruction as the law applicable to the   Section 8.07(b) is not contingent upon any party's theory
case or as an unrequested defensive issue.                     of the case. It is not within the defendant's (or counsel's)
                                                               discretion to decide whether or not he may be prosecuted
     In Posey, the instruction we labeled an "unrequested      for or convicted of offenses committed before turning
defensive issue" was a mistake-of-fact instruction. Id. at     seventeen. Even if the defense wanted to avoid a legally
59. The appellant argued [**7] that the trial court erred      innocent [**9] argument, that does not change the fact
by not instructing the jury sua sponte on that point. Id.      that the jury in this case received evidence upon which
The defense of mistake of fact is codified in Section          they were statutorily prohibited from convicting
8.02(a) of the Texas Penal Code. 6 TEX. PENAL CODE             Appellant.
ANN. § 8.02(a). The close proximity of Sections 8.02(a)
and 8.07(b) in the Penal Code, both in the General                  Due to the repeated testimony regarding Appellant's
Defenses chapter, invites a comparison of the statutes.        pre-seventeen conduct, the absence of an 8.07(b)
Section 8.02(a) establishes mistake of fact as "a defense      instruction in the jury charges is problematic. Further
to prosecution," which correlates to its classification as a   complicating matters is an instruction that was included:
"defensive issue." Id. In contrast, Section 8.07(b) does not
refer to a "defense" at all. TEX. PENAL CODE ANN. §                      You are further instructed that the State
8.07(b). Rather, it is a prohibition of prosecutions and              is not bound by the specific date which the
convictions based upon offenses committed before the                  offense, if any, is alleged in [*488] the
age of seventeen. Id.                                                 indictment to have been committed, 8 but
                                                                      that a conviction may be had upon proof
       6 Note that in Posey we explained that an 8.02(a)              beyond a reasonable doubt that the
       instruction will not be a "defensive issue" in every           offense, if any, was committed at any time
       case. Posey, 966 S.W.2d at 62. When a defendant                within the period of limitations. The
       timely objects to the omission of the instruction in           limitation period applicable to the offense
       the jury charge at trial, it will be the "law                  of aggravated sexual assault of a child is
       applicable to the case." Id.                                   ten years from the date of the 18th
                                                                      birthday of the victim of the offense.
     In addition to studying the language of 8.07(b) and
its general applicability, we must also consider the           With this paragraph, the jury was instructed that it could
particulars of the record before us in order to decide         ignore the dates cited in the indictments and could
whether an 8.07(b) instruction is the law applicable [**8]     convict Appellant for any offense committed prior to the
to this case or an unrequested defensive issue. The State
                                                                                                                    Page 4
                             332 S.W.3d 483, *488; 2011 Tex. Crim. App. LEXIS 326, **9



victim's twenty-eighth birthday, which will fall in 2018.             Appellant's charges established a certain future
                                                                      chronological        limitation--the      victim's
       8 The dates alleged were the first, fifteenth, and             twenty-eighth birthday--the past chronological
       thirtieth of September 2002 (all after Appellant's             limitation was more vague; it simply provided
       seventeenth birthday).                                         that the State was not bound by the specific dates
                                                                      alleged in the indictments. Alberty's instruction
     We noted [**10] a similar problem in Alberty v.                  more blatantly contravened Section 8.07(b)'s
State, 250 S.W.3d 115, 116 (Tex. Crim. App. 2008), in                 prohibition of convictions based upon juvenile
which indictments alleged that the defendant, as an adult,            conduct.
sexually assaulted a child. However, testimony described              10 The court of appeals [**12] in Alberty then
incidents of assault dating from the time the defendant               proceeded, under Almanza v. State (discussed
was thirteen. Id. The jury charges in that case featured the          infra), to determine that the defendant was
following instruction, to which the defendant made no                 egregiously harmed. Alberty, 2008 Tex. App.
objection:                                                            LEXIS 5252.

          You are instructed that the State is not                  We, too, conclude that a jury charge is erroneous if it
       required to prove the exact date alleged in             presents the jury with a much broader chronological
       the indictment. The term "on or about the               perimeter than is permitted by law. The trial judge is
       [respective date]" means any date prior to              "ultimately responsible for the accuracy of the jury
       the date of the filing of the indictment,               charge and accompanying instructions." Delgado v. State,
       August 27, 2003, and within the Statute of              235 S.W.3d 244, 249 (Tex. Crim. App. 2007). This is an
       Limitations. The Statute of Limitations for             "absolute sua sponte duty," and, [*489] in this case, the
       this type of alleged offense is 10 years past           trial judge had a sua sponte duty to provide an 8.07(b)
       the child's 18th birthday. 9                            instruction. Id. Although the jury instruction here did not
                                                               specifically refer to "any offense anterior to the
Id. at 117. On appeal, the defendant asserted that the jury    presentment of the indictment" as did the charge in
charges were erroneous because "they instructed the jury       Alberty, it did not limit the jury's consideration of such.
that they could convict appellant of any offense anterior      The absence of an 8.07(b) instruction, combined with the
to presentment of the indictment and within the statutes       evidence of Appellant's conduct as a juvenile and the
of limitations, when in fact he could only be convicted of     instruction that the jurors did receive--that "a conviction
offenses occurring on or after his seventeenth birthday,       may be had" for any offense committed before the
July 7, 2001." Id. This issue, highlighting the tension        victim's twenty-eighth birthday--ultimately resulted in
between 8.07(b) and the statute-of-limitations [**11]          inaccurate charges that omitted an important portion of
instruction, was misconstrued by the court of appeals in       the law applicable to the case. Therefore, we find a
Alberty as a jurisdictional complaint. Id. We reversed and     [**13] violation of Article 36.14 and must proceed to a
remanded the case for resolution of the jury-charge issue.     second step of analysis.
Id. at 118. On remand, the court of appeals concluded
that the jury charges were erroneous because the               IV. ARTICLE 36.19 AND ALMANZA
instruction received by the jurors contravened Section
8.07(b). Alberty v. State, No. 05-05-01687-CR, No.                  After finding error in the court's charges, we must
05-05-01688-CR, 2008 Tex. App. LEXIS 5252, *8-9 (Tex.          next consider whether Appellant was harmed by the
App.--Dallas July 16, 2008, no pet.) (not designated for       error. Alberty, 250 S.W.3d at 119. Article 36.19
publication). 10                                               establishes the standard for reversal on appeal when the
                                                               requirements of Article 36.14 11 have been disregarded:
       9 Arguably, the statute-of-limitations instruction      "the judgment shall not be reversed unless the error
       in Alberty was more injurious than the instruction      appearing from the record was calculated to injure the
       featured in Appellant's jury charges because            rights of defendant, or unless it appears from the record
       Alberty's explicitly stated that the offense could      that the defendant has not had a fair and impartial trial."
       have occurred on "any date prior" to the filing of      TEX. CODE CRIM. PROC. ANN. art. 36.19.
       the indictment. While the instruction in
                                                                      11 Article 36.19 addresses appellate review for a
                                                                                                                   Page 5
                             332 S.W.3d 483, *489; 2011 Tex. Crim. App. LEXIS 326, **13



       group of statutes, not just Article 36.14. The other   probative evidence, the argument of counsel and any
       articles to which this provision applies are 36.15,    other relevant information revealed by the record of the
       36.16, 36.17, and 36.18. TEX. CODE CRIM. PROC.         trial as a whole." Almanza, 686 S.W.2d at 171. We will
       ANN. art. 36.19.                                       examine "any . . . [*490] part of the record as a whole
                                                              which may illuminate the actual, not just theoretical,
    In Almanza v. State, 686 S.W.2d 157 (Tex. Crim.           harm to the accused." Id. at 174. Errors which result in
App. 1985) (op. on reh'g), we construed Article 36.19 as      egregious harm are those that affect the very basis of the
presenting two distinct standards for jury-charge error,      case, deprive the defendant of a valuable right, vitally
the application of each determined by whether the             affect the defensive theory, or make a case for conviction
defendant objected at trial. 12                               clearly and significantly more persuasive. Id. at 172; see
                                                              Hutch, 922 S.W.2d at 171.
       12 Note that Almanza does not apply unless the
       appellate court first finds a violation of Article     A. J.G.'s Testimony
       36.14 (or any [**14] of the other articles
       referenced in Article 36.19). Posey, 966 S.W.2d at          J.G. testified that she began staying with Appellant's
       60. "Neither 'harm' standard set out in Article        family at the age of eight (when Appellant was 13 years
       36.19 as construed by Almanza applies unless an        old). J.G's father paid Appellant's twin sister, Sheena, to
       appellate court first finds 'error' in the jury        babysit his daughter until he was able to pick her up after
       charge." Id.                                           school, normally around 6:00 p.m. J.G. explained that
                                                              Appellant initially treated her like an "annoying little
                                                              sister," but this soon progressed such that he would be
                                                              "mean" and make J.G. [**16] feel "uncomfortable."
         If the error in the charge was the subject           Referring to the acts of molestation, J.G. testified that
       of a timely objection in the trial court, then         "[i]n the beginning -- like when I first came to move
       reversal is required if the error is                   down here, it didn't happen as much. Then as the years
       "calculated to injure the rights of                    progressed, it progressed, what he did."
       defendant," which means no more than
       that there must be some harm to the                          The first instance that J.G. could remember when she
       accused from the error.                                felt "uncomfortable" happened in Appellant's mother's
         ...                                                  bedroom. J.G. could not recall her age at the time but did
         On the other hand, if no proper objection            remember that, other than J.G. and Appellant, only
       was made at trial and the accused must                 Appellant's sick grandmother was home. Appellant asked
       claim that the error was "fundamental," he             J.G. if she wanted to play "Doctor." Appellant proceeded
       will obtain a reversal only if the error is so         to roll a new roller paint brush up and down her leg. Then
       egregious and created such harm that he                he took off her "bottoms" and put the handle of the brush
       "has not had a fair and impartial trial"--in           inside of her vagina. Appellant stopped when his
       short "egregious harm."                                grandmother threw a shoe at the bedroom door. J.G. also
                                                              recalled an occurrence months later when Appellant
Id. at 171. Because Appellant did not object to the           instructed her to put a CoCoa Puff in her vagina and
jury-charge error at trial, resolution of the instant case    leave it there. J.G. pulled out the cereal when Appellant
requires an egregious harm analysis, and we do not            left the room.
believe that egregious harm resulted from the charge
error in this case.                                                In addition, J.G. described an incident that took place
                                                              when she was in the fifth grade. She stated that she knew
      As we have stated, "[e]gregious harm is a difficult     it occurred shortly after she began going to Appellant's
standard to prove and such a determination must be done       house because she remembered the navy pants that she
on a case-by-case basis." Hutch v. State, 922 S.W.2d 166,     was wearing then. J.G. [**17] testified that, when no one
172 (Tex. Crim. App. 1996). In [**15] determining             else was home, Appellant told her to go into the
whether Appellant was deprived of a fair and impartial        bathroom. There, he instructed her to stand on the toilet
trial, we review "the entire jury charge, the state of the    and pull down her pants, and he licked her vagina.
evidence, including the contested issues and weight of        Eventually, Appellant took J.G. into his bedroom, told
                                                                                                                   Page 6
                             332 S.W.3d 483, *490; 2011 Tex. Crim. App. LEXIS 326, **17



her to take off all of her clothes, and "put his penis in      when the family returned from North Carolina, at which
[her] vagina."                                                 time she took J.G. to the police station to file a report.

     Appellant began asking J.G. for oral sex "a lot," and          The deputy from the Child Abuse Investigation Unit
they had vaginal and anal sex "a lot." In fact, J.G.           who was assigned to J.G.'s case took the stand, too.
testified that "something" would happen nearly every           Although he did not speak directly with J.G. during the
time she went over to the house. She could remember            course of the investigation, the deputy watched, via
some instances clearly while others were only recalled in      video, the interview between J.G. and a forensic
flashes. Among the more vivid recollections were the           interviewer. The deputy believed J.G.'s behavior to be
times when Appellant instructed J.G. to put various            consistent with other cases that he had seen involving
things in her vagina (e.g., the top of a lava lamp, the        sexual abuse. He also explained that a delayed outcry,
handles of a broom and a hammer, an ice cube, a bar of         one taking place some time after the initial abuse, was not
soap, and a vibrator), and he would often attempt to push      unusual. Subsequently, a psychologist and a professional
the objects in farther.                                        counselor with whom J.G. interacted at the Children's
                                                               Assessment Center testified that J.G.'s behavior was
     This type of abuse continued for years. J.G. testified    consistent with years of sexual abuse but on
that the "worst" years were between sixth grade (when          cross-examination acknowledged that the same
J.G. was 10 and 11 and Appellant was 15 and 16) and            symptoms occur in children that were not sexually
eighth grade (when J.G. was 12 and 13 and Appellant            abused.
was 17 and 18). She also asserted that Appellant "did it a
lot" when she was in the seventh, eighth, and ninth                The pediatrician at the Children's Assessment Center
[**18] grades, typically immediately after school. When        who performed J.G.'s medical examination was called to
J.G. would object to Appellant's demands, he would             [**20] the stand next. She explained that J.G. seemed
threaten to tell her father about the things that she had      emotionally distraught and complained of headaches and
done, such as sneaking clothes into school during the fifth    blood in her stool. A physical examination showed that
and sixth grades because her father thought they were too      J.G. was healthy, with no signs of trauma. The doctor
tight or too short.                                            asserted that a normal exam is the most common finding
                                                               in children who have been sexually abused because the
      [*491] The instances of abuse were not happening         vagina heals quickly and it is not uncommon for the
as much toward the end. J.G. claimed that about the time       hymen to remain intact. During the examination of J.G.'s
that Appellant started dating his future wife, she began to    anus, the doctor discovered a hemorrhoid but no
say "No" more often. J.G. stated that the molestation          bleeding.     On     cross-examination,     the   doctor
stopped when she turned 15 (at which time Appellant was        acknowledged that the physical examination results
20 years old), but she emphasized that it occurred every       concerning J.G.'s vagina and anus were also consistent
day before that. In July 2006, the summer before she was       with someone who had not been sexually assaulted. The
to enter the eleventh grade, J.G. traveled to North            physician's report indicated that Appellant touched J.G.
Carolina with Appellant and his family to visit their          inappropriately for the first time when the victim was
relatives. During the trip, J.G. told Appellant's wife and     seven (and Appellant would have been 12 years old) and
sister-in-law about the abuse.                                 the abuse continued until about six weeks before the
                                                               exam (when Appellant was 20 years old).
B. Other Testimony
                                                                    In Appellant's case-in-chief, several witnesses
    During its case-in-chief, the State called several         testified and generally maintained that Appellant was
other witnesses to testify. J.G.'s father testified that he    never left alone with J.G., thereby suggesting that
worked a lot, so J.G. would stay at Appellant's home           Appellant would not have had the opportunity to molest
during the day. She began spending time there in October       J.G. Appellant's mother testified that J.G. was never
1998 (when she was eight years old), but her father was
                                                               [**21] left alone with Appellant, but on
unaware of any abuse until J.G.'s [**19] outcry in July        cross-examination, she admitted that she worked long
2006. J.G.'s godmother attested similarly, stating that J.G.   hours. Sheena asserted that she was paid to take care of
began staying over at Appellant's home when she was            J.G., so during those eight years, she was watching her all
eight years old. She became aware of the sexual abuse
                                                                                                                  Page 7
                            332 S.W.3d 483, *491; 2011 Tex. Crim. App. LEXIS 326, **21



of the time and never left her alone with Appellant.          incident merged into another in J.G.'s recollection. The
Sheena and her [*492] husband explained that Appellant        State referred to the initial abuse that occurred when J.G.
spent time at the library after school playing card games     was in the fifth and sixth grades (before Appellant was 17
and Game Boy, and by the time he would return home,           years old). However, it also highlighted that some of the
J.G.'s dad would have already picked her up. A friend         "worst" molestation occurred when J.G. was in the sixth,
who stayed in the family's home during September 2002         seventh, eighth grades, as well as part of the ninth grade.
(when Appellant was 17) maintained that she never saw         The State further pointed out that Appellant was 17, 18,
Appellant and J.G. together. Sheena's husband, who            and 19 years old when J.G. was in the seventh, eighth,
moved into Sheena's room in September 2002 and                and ninth grades, and by doing so, the State emphasized
remained there for three years, stated the same.              an age range for Appellant that complied with Section
                                                              8.07(b).
     In its rebuttal, the State called Appellant's
sister-in-law. She thought that she had seen Appellant        D. Jury Charge
and J.G. alone before, but she could not be sure. She also
explained that after J.G. confided in her about the                The jury charge erroneously instructed the jury that a
molestation, she was worried about J.G. returning to          conviction could be had for offenses "committed at any
Texas in the same car as Appellant. The State also called     time within the period of limitations," which was "ten
Appellant's wife, who testified outside of the jury's         years from the date of the 18th birthday of the victim of
presence. She stated that she met Appellant when he was       the offense." The State suggests that "[t]here is no
18 years old, and she was in disbelief when [**22] she        language in the jury instruction suggesting the
heard J.G.'s outcry because she had never seen Appellant      consideration of dates before the presentment of the
alone with J.G.                                               indictment" and argues that (the jury charge instruction
                                                              focuses on looking forward in time "[J.G.'s] eighteenth
C. Arguments of Counsel                                       birthday and beyond)." But we presume [**24] that the
                                                              jury understood and followed the court's charges absent
     The defense's theory was that Appellant never            evidence to the contrary. Hutch, 922 S.W.2d at 172.
molested J.G. 13 During closing arguments, Appellant          Therefore, the jury charge authorized the jury to convict,
argued that the evidence was insufficient to prove beyond     in part, based on acts committed [*493] before
a reasonable doubt that he ever molested J.G. Appellant       Appellant's seventeenth birthday; however, it also
highlighted the testimony of several witnesses that he was    allowed the jury to consider acts that occurred after his
never alone with J.G. during the eight-year period when       seventeenth birthday but before the limitations period
the abuse allegedly occurred. He also indicated that J.G.'s   expired.
emotional and physical symptoms could logically occur
for reasons other than sexual abuse.                               Taking the record as a whole, we believe that
                                                              egregious harm did not result from the jury-charge error.
       13 This was made clear in one of Appellant's           The defensive theory was that no sexual abuse occurred
       first objections at trial. Outside of the jury's       at any time. It is unlikely that the jury believed that
       presence, Appellant suggested that J.G. was            Appellant sexually assaulted the victim before he turned
       making up the allegations against him--J.G. was        17 years old but not after. In this case, the jury either
       allegedly molested before she moved in with her        believed Appellant or believed the victim.
       father, and that is where "she got the idea to start
       saying she was molested by [Appellant]." The                This case can be distinguished from Hutch in which
       allegations of prior abuse were not developed at       we held that egregious harm resulted from a charge error.
       trial.                                                 There, "the instruction was 180 degrees opposite of what
                                                              is should have been." Id. at 172. We explained that "we
    In contrast, the State's closing statement stressed the   must presume the jury followed the erroneous instruction
consistency of J.G.'s testimony, including that the sexual    which authorized the stop if appellant was wearing a seat
abuse began when she was in the fifth grade and               belt. In fact the opposite is true; such a stop would have
continued until she turned fifteen. The State noted that      been illegal. Under the erroneous instruction, [**25] the
the abuse started [**23] off slow but increased in            only way the jury could have convicted was by using
frequency; in fact, the abuse occurred so often that one      illegally obtained evidence." Id.
                                                                                                                 Page 8
                            332 S.W.3d 483, *493; 2011 Tex. Crim. App. LEXIS 326, **25



Here, the error was the omission of an instruction, rather   36.19.
than the presentation to the jury of an erroneous
instruction. In contrast to Hutch, the jury in this case     V. [**26] CONCLUSION
could have convicted Appellant based upon evidence
                                                                  Section 8.07(b) is the law applicable to this case and
presented, even if the proper instruction had been given
                                                             therefore subject to sua sponte submission. Appellant was
and Appellant's pre-seventeen acts were disregarded by
                                                             not required to make an objection or request to have this
the jury. The evidence showed an eight-year pattern of
                                                             instruction included in the jury charges. See Huizar v.
escalating sexual abuse of J.G. by Appellant. Appellant
                                                             State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The
turned 17 years old midway through the abusive period,
                                                             court of appeals was correct to conclude that the trial
meaning that he is subject to prosecution for his conduct
                                                             court erroneously failed to instruct the jury on Section
beginning on that birthday or March 25, 2002, and
                                                             8.07(b). However, the court of appeals erred in
evidence of molestation that occurred after that date was
                                                             concluding that the error resulted in egregious harm. We
introduced at trial. For example, although J.G. described
                                                             reverse the court of appeals and remand to the court of
with more detail the instances that occurred during
                                                             appeals to address the remaining issues.
Appellant's juvenile years, she also described abuse that
occurred when Appellant was 17, 18, 19, and 20 years             Meyers, J.
old. The State emphasized this in its closing argument.
                                                                 Delivered: March 9, 2011
    Accordingly, we conclude that Appellant was not
denied a fair and impartial trial and was, therefore, not        Publish
egregiously harmed. TEX. CODE CRIM. PROC. ANN. art.
                                                                                                                  Page 1




                        WILBERT JAMES TEAL, Appellant v. THE STATE OF TEXAS

                                                    NO. PD-0689-06

                                 COURT OF CRIMINAL APPEALS OF TEXAS

                                 230 S.W.3d 172; 2007 Tex. Crim. App. LEXIS 316


                                                March 7, 2007, Delivered

NOTICE:      [**1] PUBLISH                                    that appellant knew that Curtis Brown, the person whose
                                                              apprehension appellant was hindering, was a fugitive for
SUBSEQUENT HISTORY: On remand at Teal v. State,               Failure to Register as a Sex Offender. The court of
2007 Tex. App. LEXIS 9322 (Tex. App. Beaumont, Nov.           appeals held that the district court never acquired
28, 2007)                                                     subject-matter jurisdiction to try the case because the
                                                              indictment alleged only a misdemeanor. 2 We granted the
PRIOR HISTORY:           ON STATE'S PETITION FOR              State's Petition for Discretionary Review to determine
DISCRETIONARY REVIEW FROM THE NINTH                           whether "the court of appeals erred in holding that the
DISTRICT COURT OF APPEALS ANGELINA                            indictment presented in this case was insufficient to vest
COUNTY.                                                       the district court with subject-matter jurisdiction." We
Teal v. State, 187 S.W.3d 80, 2006 Tex. App. LEXIS 1773       hold that, under Studer v. State, 3 the indictment sufficed
(Tex. App. Beaumont, 2006)                                    to vest jurisdiction in the district court. Therefore, we
                                                              vacate the judgment of the court of appeals and remand
                                                              the case to that [**2] court to address appellant's
COUNSEL: For           APPELLANT:        Bill      Burnett,   remaining claims.
Coldspring, TX.
                                                                     1 TEX. PENAL CODE § 38.05.
For STATE: Dale Summa, ASSISTANT DISTRICT                            2     Teal v. State, 187 S.W.3d 80, 83 (Tex.
ATTORNEY, Lufkin, TX.                                                App.--Beaumont 2006).
                                                                     3 799 S.W.2d 263 (Tex. Crim. App. 1990).
JUDGES: COCHRAN, J., delivered the opinion of the
Court, in which MEYERS, PRICE, KEASLER and                    I.
HOLCOMB, JJ., joined. KELLER, P.J., filed a
concurring opinion in which WOMACK and HERVEY,                     On June 8, 2004, Lufkin police received a
JJ., joined. JOHNSON, J., concurred.                          Crimestopper's tip that a fugitive, Curtis Brown, was
                                                              staying at appellant's house. When police officers arrived
OPINION BY: COCHRAN                                           at his house, appellant was sitting on the front porch with
                                                              his front door open. Officer Burfine told appellant that
OPINION                                                       they were looking for Brown, a fugitive with outstanding
                                                              parole violator and sex offender warrants. He informed
     [*173] Appellant was indicted for the offense of         appellant that both of these were [*174] felony warrants.
hindering apprehension. 1 The indictment failed to allege     Officer Burfine told appellant that they had information
                                                                                                                    Page 2
                             230 S.W.3d 172, *174; 2007 Tex. Crim. App. LEXIS 316, **2



that Brown was in the house. Appellant said that he had       degree felony under section 38.05, and vest the district
seen Brown the night before, but that he had not seen         court with subject-matter jurisdiction." 6 Because the
Brown that day. He repeatedly denied that Brown was in        charging instrument did not charge an offense that fell
the house, and he refused to allow the police to enter his    within the district court's jurisdiction, the court of appeals
house.                                                        concluded that the district court should have transferred
                                                              the indictment to a county court with misdemeanor
    Meanwhile, Officer Smith heard noises from the rear       jurisdiction. 7 Justice Gaultney dissented and stated that
[**3] of the house, so he went to check and discovered        the indictment did vest the district court with jurisdiction.
Brown attempting to flee. Officer Smith arrested Brown.       8 Relying on the Texas Constitution and this Court's
The officers also found another man who had an                decision in Studer v. State, Justice Gaultney concluded
outstanding sexual assault warrant when they searched         that the indictment was valid because "[a]n indictment
appellant's house.                                            vests the court with jurisdiction even if it fails to allege
                                                              an element of the offense." 9
    Appellant was indicted for the offense of hindering
apprehension. The indictment alleged that appellant                   5 Teal, 187 S.W.3d at 81.
                                                              [**5]
          . . . then and there intentionally, with                    6   Id. at 82.
       intent to hinder the arrest, prosecution, or                   7   Id. at 83.
       punishment of Curtis Brown for the                             8   Id. (Gaultney, J., dissenting).
       offense of Failure to Comply with                              9   Id. (Gaultney, J., dissenting).
       Registration as a Sex Offender, did harbor
       or conceal Curtis Brown by stating to                  II.
       peace officers that Curtis Brown was not
       present at said residence occupied by                       The Texas Constitution requires that, unless waived
       defendant at a time when Curtis Brown                  by the defendant, the State must obtain a grand jury
       was then and there present . . . .                     indictment in a felony case. 10 Absent an indictment or
                                                              valid waiver, a district court does not [*175] have
As soon as the jury was empaneled, appellant objected to      jurisdiction over that case. 11 An indictment also provides
the indictment and argued that the district court did not     a defendant with notice of the offense and allows him to
have jurisdiction because the indictment alleged only a       prepare a defense. 12 Further, the "constitutional
misdemeanor, not a felony. 4 The trial court overruled his    guarantee is intended to provide the accused an impartial
objection. After hearing the evidence, the jury convicted     body which can act as a screen between the rights of the
appellant and sentenced him to two years in prison.           accused and the prosecuting power of the State." 13

       4     The misdemeanor offense of hindering                     10 TEX. CONST. art. I, § 10.
       apprehension becomes a felony when the person                  11 Cook v. State, 902 S.W.2d 471, 475-76 (Tex.
       who is being harbored "is under arrest for,                    Crim. App. 1995) (collecting cases and stating,
       charged with, or convicted of a felony . . and the             "Jurisdiction vests only upon the filing of a valid
       person charged under this section knew that the                indictment in the appropriate court.").
       person they harbored . . . is under arrest for,                12 Id.
       charged with, or convicted of a felony[.]" TEX.                13       Brian A. Kilpatrick, Comment, The
       PENAL CODE ANN. § 38.05(c).                                    Constitutional Right to Indictment by a Grand
                                                                      Jury: Does It Survive after Studer v. State and the
      [**4] On appeal, appellant argued that the evidence             1985 Constitutional and Statutory Amendments?,
was legally and factually insufficient and that the jury              44 BAYLOR L. REV. 345, 345 (1992); see also
instructions were erroneous. 5 The court of appeals,                  Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim.
however, sua sponte addressed the issue of whether the                App. 2000) (noting that indictments are used to
trial court had subject matter jurisdiction. A two-justice            "protect[] citizens against arbitrary accusations by
majority of the court of appeals stated that the indictment           the government.").
failed to allege "that Teal had knowledge of Brown's
felony fugitive status so as to facially charge a third             [**6] Before 1985, defects of form and defects of
                                                                                                                    Page 3
                             230 S.W.3d 172, *175; 2007 Tex. Crim. App. LEXIS 316, **6



substance in an indictment had very different results. 14              1978) (op. on reh'g) (even though indictment
Failure to object to a defect of form waived any error on              alleged that defendant supervised, controlled, and
appeal, but the failure to object to a defect of substance             managed prostitution ring, it was fundamentally
did not waive error on appeal. 15 The reasoning was that               defective because it did not allege that he
an indictment that contained a substantive defect was                  "knowingly" did so); see also David Weiner,
"void" and therefore insufficient to invoke the                        Comment, Particularity and Precision in Texas
jurisdiction of the court. Under this reasoning, a                     Indictments and Informations: What Is
defendant could attack a felony conviction based on a                  Fundamental Defect, 10 ST. MARY'S L.J. 281,
substantively defective indictment on appeal, even                     282-84 (1978-1979).
though he had not objected at trial. 16 Defendants could       [**8]
"lie behind the log," and either plead guilty or take their            17      Robert R. Barton, Since 1985, Can an
chances at trial and, if convicted, then raise a claim of a            Indictment or Information Be "Fundamentally"
"void" indictment in a later appeal or application for                 Defective for Failing to Charge an Offense?, 25
habeas corpus relief. 17 Numerous decisions from this                  ST. MARY'S L.J. 217, 222-224 (1993). "Being
Court exhaustively debated the fine technical distinctions             void, a judgment of conviction entered on an
between defects of form and those of substance, and                    indictment or information containing such a
numerous decisions from this Court reversed convictions                defect of substance could be attacked by the
years after the fact for [*176] defects of substance in the            defendant at any time, either directly for the first
indictment. 18                                                         time on appeal or collaterally by postconviction
                                                                       application for writ of habeas corpus." Id. at 223.
        14 See American Plant Food, Corp. v. State, 508                18 Studer cited several cases that demonstrate
        S.W.2d 598, 602 (Tex. Crim. App. 1974) (stating,               the number and variety of convictions reversed
        "This distinction between an objection to the                  for indictment errors. See, e.g., Carpenter v. State,
        charge based on substance and one based on form,               551 S.W.2d 724, 725-26 (Tex. Crim. App. 1977)
        subtle though it be, is well founded in reason, in             ("Hence, a false imprisonment indictment which
        justice, and in the logic of the Code of Criminal              alleges mere restraint does not invoke the
        Procedure.").                                                  jurisdiction of the district court, unless the
[**7]                                                                  indictment also sets out the added penalty
        15     See id. at 603 ("If the charge alleges an               allegations of Section 20.02(c). . . . Clearly, the
        offense was committed by the defendant, then it is             indictment in this case does not allege that the
        sufficient in law to support a verdict of guilty if            appellant recklessly exposed the complainant to a
        one be rendered thereon. If it does not so allege,             substantial risk of serious bodily injury; felony
        then it is utterly insufficient and any conviction             false imprisonment has not been alleged."); Ex
        based thereon is void. A void conviction may be                parte Winton, 549 S.W.2d 751 (Tex. Crim. App.
        challenged at any time and thus an exception to                1977) (indictment defective for failure to allege a
        the substance of the State's pleading . . . may be             culpable mental state). See generally Pospishel v.
        raised for the first time on appeal.") (footnote               State, 95 Tex. Crim. 625, 255 S.W. 738 (1923)
        omitted).                                                      (op. on reh'g); Williams v. State, 12 Tex. Ct. App.
        16 See Studer, 799 S.W.2d at 266-68 (noting,                   395 (1882); White v. State, 1 Tex. Ct. App. 211
        "For more than a century cases have come from                  (1876). See also Fisher v. State, 887 S.W.2d 49,
        this Court holding that a defect in the 'substance'            55 n.8 (Tex. Crim. App. 1994) (detailing the
        of a charging instrument may be raised for the                 history of indictment dismissals pre-Studer:
        first time on appeal for it renders the charging               "Some other defects of substance, in addition to a
        instrument 'fundamentally defective.'"). Some of               missing element, that were recognized prior to the
        these indictment problems involved the failure to              1985 amendments included failure to allege date
        allege a specific element of the offense. See, e.g.,           of offense, culpable mental state, victim's name,
        Standley v. State, 517 S.W.2d 538, 540-41 (Tex.                enhancement allegations, amount of a controlled
        Crim. App. 1975). Some errors concerned the                    substance, and manner and means of committing
        specificity of the indictment. See, e.g., Chance v.            the offense where it is the manner and means that
        State, 563 S.W.2d 812, 813 (Tex. Crim. App.                    renders the act criminal.") (collecting cases).
                                                                                                                  Page 4
                            230 S.W.3d 172, *176; 2007 Tex. Crim. App. LEXIS 316, **8



      [**9] In 1985, the citizens of Texas and their                objection on appeal or in any other
legislature resoundingly rejected this hypertechnical case          postconviction proceeding. Nothing in this
law both by Constitutional amendment and by statute.                article prohibits a trial court from
The voters amended the Texas Constitution to include the            requiring that an objection to an
definition of an indictment. An indictment, as now                  indictment or information be made at an
defined by the Texas Constitution, is                               earlier time in compliance with Article
                                                                    28.01 of this code. 20
          a written instrument presented to a court
       by a grand jury charging a person with the            Additionally, the legislature amended article 28.01 to
       commission of an offense. An information              ensure that the State had ample opportunity to repair
       is a written instrument presented to a court          indictment defects and that the defendant received the
       by an attorney for the State charging a               requisite notice of indictment changes, as well as an
       person with the commission of an offense.             opportunity to respond to them:
       The practice and procedures relating to the                        [*177] (a) After notice [**11] to the
       use of indictments, and informations,                         defendant, a matter of form or substance in
       including their contents, amendment,                          an indictment or information may be
       sufficiency, and requisites, are as provided                  amended at any time before the date the
       by law. The presentment of an indictment                      trial on the merits commences. On the
       or information invests the court with                         request of the defendant, the court shall
       jurisdiction of the cause. 19                                 allow the defendant not less than 10 days,
                                                                     or a shorter period if requested by the
                                                                     defendant, to respond to the amended
                                                                     indictment or information.
       19 TEX. CONST. art. V § 12(b); see also TEX.
       CODE CRIM. PROC. art. 21.01 (defining                            (b) A matter of form or substance in
       indictment as "the written statement of grand jury           an indictment or information may also be
       accusing a person therein named of some act or               amended after the trial on the merits
       omission which, by law, is declared to be an                 commences if the defendant does not
       offense"); see generally Studer v. State, 799                object.
       S.W.2d 263 (Tex. Crim. App. 1990) (detailing the
       legislative history of the constitutional                         (c) An indictment or information may
       amendment and changes to the Code of Criminal                not be amended over the defendant's
       Procedure).                                                  objection as to form or substance if the
                                                                    amended indictment or information
      [**10] As part of the same reform package, the                charges the defendant with an additional
legislature amended several provisions of the Code of               or different offense or if the substantial
Criminal Procedure to ensure that indictment defects                rights of the defendant are prejudiced. 21
could be objected to and repaired pretrial, but that these
defects would not invalidate an otherwise valid              The legislature's purpose in amending the constitution
conviction if not raised before trial. For example, the      and the statutes was to change the focus from "whether a
implementing legislation added section (b) to article        defect is fundamental [i.e. a defect of substance or not]"
1.14:                                                        to "whether the defendant brought the defect to the
                                                             court's attention." 22 And the legislature intended the
           If the defendant does not object to a             constitutional provision and statutes to work together.
       defect, error, or irregularity of form or             That is, indictments charging a person with committing
       substance in an indictment or information             [**12] an offense, once presented, invoke the
       before the date on which the trial on the             jurisdiction of the trial court and jurisdiction is no longer
       merits commences, he waives and forfeits              contingent on whether the indictment contains defects of
       the right to object to the defect, error, or          form or substance. 23 The 1985 statutes clearly mandate
       irregularity and he may not raise the                 that defendants must object to errors in the form or
                                                                                                                       Page 5
                              230 S.W.3d 172, *177; 2007 Tex. Crim. App. LEXIS 316, **12



substance of an indictment "before the date on which the
trial on the merits commences[.]" 24 Thus, Texas law             We also concluded that the 1985 constitutional
now requires the defendant to object to any error in the         amendment made the specifics of an indictment or
indictment before the day of trial and certainly before the      information statutory requirements, not constitutional
jury is empaneled.                                               requirements. 32 Thus, all substantive defects in
                                                                 indictments are waiveable under the statutes and these
        20 TEX. CODE CRIM. PROC. art. 1.14(b).                   defects do not render the indictment "void." 33
        21 TEX. CODE CRIM. PROC. art. 28.10.
        22 Brian A. Kilpatrick, The Constitutional Right                  25 Morrison v. Olson, 487 U.S. 654, 699, 108 S.
        to Indictment by a Grand Jury: Does It Survive                    Ct. 2597, 101 L. Ed. 2d 569 (1988) (Scalia, J.
        after Studer v. State and the 1985 Constitutional                 dissenting). See also Fisher v. State, 887 S.W.2d
        and Statutory Amendments, 44 BAYLOR L.                            49, 55 (Tex. Crim. App. 1994) ("Expressing
        REV. 345, 350 (1992).                                             frustration over the ability of a defendant to raise
        23 Studer, 799 S.W.2d at 268.                                     substantive defects in the indictment for the first
        24     TEX. CODE CRIM. PROC. art. 1.14(b).                        time on appeal, the 69th Legislature submitted for
        Also, art. 1.14(b) and art. 28.10 are read together               approval to the voters an amendment to article V,
        for the proposition that "[i]f the defendant fails to             § 12 of the Texas Constitution which would give
        raise a substance defect prior to trial, he or she                the legislature authority to regulate practices and
        waives that right; if the defect is raised, the State             procedures relating to the use of indictments and
        can then amend the indictment to include the                      informations. The proposed amendment was
        missing element." Kilpatrick, supra, note 22 at                   approved by the voters, and the legislature
        355.                                                              accordingly passed amendments to the Texas
                                                                          Code of Criminal Procedure, all effective
       [**13] This Court's first interpretation of the                    December 1, 1985.") (footnote omitted).
indictment reform legislation did not come "clad, so to          [**15]
speak, in sheep's clothing." Instead this "wolf came as a                 26 Studer, 799 S.W.2d at 264.
wolf." 25 The wolf was Studer, and this Court was clear:                  27 Id. at 264-65. The information alleged that
raise indictment defects before the date of trial. In Studer,             the defendant
the defendant was charged by information with indecent
exposure. 26 He pled nolo contendere, and, on direct                                 did unlawfully then and there
appeal, despite having failed to object in the trial court,                      intentionally    and     knowingly
claimed that the information was fatally defective. 27 The                       expose his genitals to R.E. Bishop,
defendant complained "that the information [*178] was                            hereinafter called complainant,
defective for failing to 'allege, with reasonable certainty,                     with intent to arouse and gratify
the act or acts relied upon to constitute recklessness[.]'" 28                   the sexual desire of the said
He argued that the trial court therefore never obtained                          [defendant], and the [defendant]
jurisdiction. 29 In Studer, we addressed the legislative                         acted recklessly and in conscious
history and purpose of the constitutional amendment 30                           disregard of whether another
and rejected the defendant's "fatally flawed indictment"                         person was present who would be
claim:                                                                           offended and alarmed by such act .
                                                                                 ...
             Clearly both the House and Senate
        believed that all defects in a charging                           Id. at 265.
        instrument were waived if not raised by a                         28 Id.
        defendant before trial. Clearly the                               29 Id.
        perceived evil that they were correcting                          30 See id. at 267-71 (setting out the history of
        was the raising of indictment defects for                         appellate reversals for indictment flaws and citing
        the first time after a trial and [**14]                           comments by Senator Ike Harris: "What this
        conviction and the subsequent reversal of                         basically does . . . it's a bill that deals with that
        that conviction because of that defect. 31                        problem that has plagued the criminal justice
                                                                                                                 Page 6
                              230 S.W.3d 172, *178; 2007 Tex. Crim. App. LEXIS 316, **15



         system and the Court of Criminal Appeals over a           statute of limitations, and holding that
         number of years, that involves a defective                "jurisdiction was conferred upon the trial court by
         indictment which a defense goes to trial upon,            the presentment of the charging instrument, even
         makes no objection, then raises on appeal for the         if the charging instrument was flawed. . . . If the
         first time, then the court reverses, based upon that      defendant failed to direct the trial court's attention
         defect in the indictment and the lower court has          to the defects in the charging instrument before
         never had the opportunity to rule upon that               trial, the defendant would be precluded from
         question. There are a number of cases that have           raising those defects 'on appeal or in any
         been reversed on those technicalities."). See also        postconviction proceeding.' Therefore, an
         id. at 274-284 (appendices containing the House           indictment which charges the commission of an
         Legislative report and the Texas Legislative              offense barred by limitations still confers
         Council report on the proposed constitutional             jurisdiction upon the trial court, such that the
         amendment).                                               defendant must bring the defect to the attention of
[**16]                                                             the trial court in order to preserve any error."); Ex
         31 Id. at 270-71.                                         parte Morris, 800 S.W.2d 225, 227 (Tex. Crim.
         32 Id. at 272.                                            App. 1990) ("In the case at bar, the indictment in
         33 Id. (stating, "In sum, the wording of Article V,       question clearly fails to allege a constituent
         § 12(b), that provides 'an indictment is a written        element of the offense of forgery, namely, that the
         instrument presented to a court by a grand jury           writing purported to be the act of another 'who did
         charging a person with the commission of an               not authorize the act.' . . . However, the charging
         offense; an information is a written instrument           instrument was issued by the grand jury, filed
         presented to a court by an attorney for the State         with the district clerk and purports to charge
         charging a person with the commission of an               applicant with the primary offense of forgery.
         offense,' abolishes the former prerequisites to           Pursuant to the rationale in Studer and Gibson,
         which the referred to charging instruments must           this instrument is an indictment as contemplated
         adhere, lest they fail as charging instruments, at        by Art. V, § 12(b). . . . Article 1.14(b) prohibits
         least from the standpoint of Art. V, Section 12.").       applicant from raising the defect in the indictment
         We noted that the omission of an element of the           for the first time in a postconviction
         offense was "still a defect of substance in an            proceeding."); Rodriguez v. State, 799 S.W.2d
         indictment, [so] it naturally follows that the            301, 303 (Tex. Crim. App. 1990) (in evading
         indictment is still an indictment despite the             arrest information, "[t]here [was] no allegation
         omission of that element." Id. at 268.                    that appellant knew the complainant was 'a peace
                                                                   officer attempting to arrest him.'. . . Thus, the
     In the five years after Studer, this Court addressed          information failed to allege one element of the
indictment defects and Studer related issues                       offense of evading arrest. The failure of a
approximately thirty times. Those cases consistently               charging instrument to allege an element of an
reiterated the same proposition: "In Studer . . . we               offense is a substance defect. . . . Clearly then, the
interpreted the amendments [**17] to art. V, § 12(b) and           information in this cause suffered from a defect of
art. 1.14 and held a defect in a charging instrument is            substance by failing to allege appellant knew the
waived unless raised prior to trial." 34                           complainant was a peace officer who was
                                                                   attempting to arrest him. But the information in
         34 Ex parte Matthews, 873 S.W.2d 40, 41 (Tex.             this cause was, 'on its face,' an information. Thus,
         Crim. App. 1994). See, e.g., Fisher v. State, 887         the information was not 'fundamentally defective',
         S.W.2d 49, 60-61 (Tex. Crim. App. 1994)                   and it did invest the trial court with jurisdiction.
         (addressing whether an indictment is facially             We find, therefore, that appellant has waived this
         incomplete and analyzing the sufficiency of the           defect under Art. 1.14(b) because of his failure to
         evidence in relation to that indictment); State v.        object to this defect 'before the date on which the
         Yount, 853 S.W.2d 6, 8-9 (Tex. Crim. App. 1993)           trial on the merits commenced.'"); Ex parte
         (considering whether an indictment is sufficient if       Gibson, 800 S.W.2d 548 (Tex. Crim. App. 1990)
         it indicates an offense date that is barred by the        (holding that defects, errors, and irregularities of
                                                                                                                      Page 7
                             230 S.W.3d 172, *178; 2007 Tex. Crim. App. LEXIS 316, **17



       either form or substance in an indictment or             Can the trial court (and appellate courts who give
       information must be raised by pretrial objection or      deference to the trial court's assessment) and the [**20]
       are waived in postconviction proceedings;                defendant identify what penal code provision is alleged
       indictment that failed to allege year of alleged         and is that penal code provision one that vests jurisdiction
       offense contained a substantive defect, but              in the trial court? With this background, we turn to the
       because defendant failed to object to this defect        present case.
       pretrial, he could not raise it in a postconviction
       proceeding).                                                    39    Cook, 902 S.W.2d at 481 (Maloney, J.,
                                                                       concurring).
       [**18] The "fatally flawed indictment" issue
[*179] was raised again in Cook v. State, 35 in which the       III.
charging instrument did not charge "a person." No person
                                                                    Appellant alleges that the present indictment was
was alleged to have committed the offense. This was too
                                                                missing one of the elements that raises the offense of
much. We noted in Cook that the 1985 constitutional
                                                                Hindering Apprehension from a misdemeanor to a
amendment defined an indictment: "To constitute an
                                                                felony:
indictment, the charging instrument must charge: (1) a
person, and (2) the commission of an offense. It is clear,
                                                                            In order for the State to prosecute
however, that if the charging instrument fails to charge a
                                                                       Appellant for the third degree felony
person, then it is not an indictment as required by art. V,
                                                                       offense of hindering apprehension in
§ 12(b) and art. I, § 10." 36 It was this premise, that the
                                                                       district court the State had to additionally
Constitution expressly required that a person be charged
                                                                       allege and prove that the person, in the
with an offense, that led us to conclude that "[i]f the
                                                                       present case Curtis Brown, who was
charging instrument fails to charge 'a person' then it is not
                                                                       allegedly being harbored or assisted was
an indictment and does not vest the trial court with
                                                                       facing arrest, charge or had been convicted
jurisdiction. Moreover, because a valid indictment is
                                                                       of a felony and that Appellant had
essential for jurisdiction, it is not subject to waiver." 37
                                                                       knowledge that the person (Curtis Brown)
Accordingly, Cook held that, because the charging
                                                                       who he was allegedly harboring or
instrument failed to charge a person, it did not meet one
                                                                       assisting had been convicted of a felony.
of the two requirements of an indictment, and therefore, it
                                                                       40
was not an indictment at all and did not vest any trial
court with [**19] jurisdiction. 38

       35   902 S.W.2d 471 (Tex. Crim. App. 1995).                     40 Appellant's Brief at 7.
       36   Id. at 477.
       37   Id. at 480 (footnote omitted).                            [**21] Appellant further argues that "[e]ven though
       38   Id.                                                 the indictment in the instant case did state that Curtis
                                                                Brown did have felony fugitive status for failure to
     Studer and Cook are "book-end" cases. Studer held          comply with Registration as a Sex Offender it failed to
that the defendant must object to any indictment defects        additionally allege that Appellant had knowledge of
before the date of trial or forfeit any complaint about its     Curtis Brown's felony fugitive status." 41 Thus, appellant
sufficiency thereafter. Cook held that the Texas                contends that the indictment was defective because it did
Constitution requires that an indictment allege that (1) a      not explicitly state that appellant knew that Curtis Brown
person, (2) committed an offense. Without both of those         was a felon. This defect, he contends, was jurisdictional
elements the charging instrument is not an indictment and       and thus it "may be raised at any time [because] . . . .
does not vest the district court with jurisdiction.             [j]urisdiction is a systemic requirement that cannot be
                                                                waived or conferred by consent and which may be
      [*180] The proper test to determine if a charging
                                                                considered at any time." 42
instrument alleges "an offense" is whether the allegations
in it are clear enough that one can identify the offense               41 Id.
alleged. If they are, then the indictment is sufficient to             42 Id. at 9.
confer subject matter jurisdiction. 39 Stated another way:
                                                                                                                        Page 8
                             230 S.W.3d 172, *180; 2007 Tex. Crim. App. LEXIS 316, **21



     The State responds that it did allege that appellant                  the information. If the defendant does not object
was harboring a fugitive, and "it is clear that the State                  to a defect, error, or irregularity of form or
intended to prosecute the defendant for the felony offense                 substance in an indictment or information before
of Hindering Apprehension, by including the language                       the date on which the trial on the merits
'with intent to hinder the arrest, prosecution, or                         commences, he waives and forfeits the right to
punishment of Curtis [**22] Brown for the offense of                       object to the defect, error, or irregularity, and he
Failure to Comply with Registration as a Sex Offender."                    may not raise the objection on appeal or in any
43 This offense is itself a felony, which, the State argues,               other postconviction proceeding.").
clearly indicates its intent to prosecute appellant for the       [**24]
felony offense of Hindering Apprehension. 44                               47 Id. at 551 (concluding that "there is no doubt
                                                                           that the State intended to accuse appellant of
       43 State's Brief at 14.                                             indecency with a child," thus indictment
       44 Id. at 14-15. Ample evidence at trial showed                     sufficient).
       that appellant had knowledge of Brown's felony
       status: Officer Burfine testified that he told                 Implicit within both Studer and Cook is that "the
       Appellant that (1) the police were looking for             offense" charged must be one for which the trial court has
       Curtis Brown, (2) Curtis Brown was a fugitive,             subject-matter jurisdiction. Although the "indictment"
       (3) Curtis Brown had an outstanding parole                 provision of the constitution explicitly speaks only of the
       warrant and a sex offender violation warrant, and          two requirements of "a person" and "an offense," the
       (4) both were felony warrants.                             constitution also sets out the subject-matter jurisdiction of
                                                                  Texas courts. 48 An indictment must also satisfy the
     After Studer and Cook, courts must now look to the           constitutional requirement of subject-matter jurisdiction
indictment as a whole, not to its specific formal                 over "an offense."
requisites. Constitutionally, district courts have
jurisdiction over a felony when an indictment charging a                   48 See TEX. CONST. Art. V, § 1; see Davis v.
person with an offense is signed by the grand jury                         State, 956 S.W.2d 555, 557-59 (Tex. Crim. App.
foreman and presented to the [*181] district court. In                     1997) (discussing tendency to confuse jurisdiction
Duron v. State, 45 this Court held that "a written                         of the court with authority of the judge). See TEX.
instrument [**23] is an indictment or information under                    CONST. Art. V, § 8 (setting out jurisdiction of
the Constitution if it accuses someone of a crime with                     district courts); TEX. CODE CRIM. PROC. art.
enough clarity and specificity to identify the penal statute               4.05 ("District courts and criminal district courts
under which the State intends to prosecute, even if the                    shall have original jurisdiction in criminal cases
instrument is otherwise defective." 46 We stated that                      of the grade of felony, of all misdemeanors
                                                                           involving     official    misconduct,     and    of
            all that Studer and Cook require to                            misdemeanor cases transferred to the district court
       satisfy the mandate of Art. V, § 12 [is] that                       under Article 4.17 of this code.").
       an indictment charge "the commission of
       an offense." This is true whether an                             [**25] Thus, the complete test for the constitutional
       indictment fails to allege one element of                  sufficiency of a particular charging instrument goes
       an offense or whether it contains                          slightly further than that expressly set out in Studer and
       additional information that may indicate                   Cook: Can the district court and the defendant determine,
       innocence. 47                                              from the face of the indictment, that the indictment
                                                                  intends to charge a felony or other offense for which a
                                                                  district court has jurisdiction? Suppose, for example, that
                                                                  a named person is indicted for the offense of speeding.
       45 956 S.W.2d 547, 551 (Tex. Crim. App. 1997).             The constitutional requirements of an indictment are
       46 Id. at 550-51; see also Ramirez v. State, 105           met-- a named person and an offense-- but district courts
       S.W.3d 628, 629-30 (Tex. Crim. App. 2003) ("The            do not have subject-matter jurisdiction over speeding
       appellant filed a motion to dismiss the complaint          offenses, regardless of how "perfect" the wording of the
       based on the fact that her name was incorrectly set        charging instrument might be. Thus, the indictment,
       out. . . . In this case, the appellant did not object to
                                                                                                                     Page 9
                             230 S.W.3d 172, *181; 2007 Tex. Crim. App. LEXIS 316, **25



despite whatever substantive defects it contains, must be               intentionally attempted to evade arrest; defect
capable of being construed as intending to charge a                     waived because defendant did not object before
felony (or a misdemeanor for which the district court has               trial); Studer v. State, 799 S.W.2d 263 (Tex. Crim.
jurisdiction).                                                          App. 1990) (indictment failed to set out the acts
                                                                        constituting the mens rea element of
     The element that was missing in this indictment was                recklessness).
whether appellant knew that Brown was a felony fugitive.       [**28]
This is one of the two mens rea requirements for                        51 Appellant was indicted on August 12, 2004,
Hindering Apprehension. 49 We have previously [*182]                    and trial did not occur until March 23, 2005, over
upheld the validity of the indictment in several cases,                 seven months later. Appellant said nothing about
including Studer itself, [**26] in which the mens rea                   the sufficiency of the indictment during those
allegation was missing or defective. 50 In this case, the               seven months. Because this indictment was
indictment, as a whole, was sufficient to vest the district             presented to a district court with felony
court with subject-matter jurisdiction and give the                     jurisdiction, it is logical to assume that appellant
defendant notice that the State intended to prosecute him               prepared for a felony trial in district court, not a
for a felony offense. It alleged whom appellant was                     misdemeanor trial in county court.
hiding (Brown); it stated the offense Brown was hiding
from (a felony); it alleged that appellant told police that         Appellant did not object to the substance of the
Brown was not present. Because Brown was alleged to be         indictment until right after the jury had been empaneled.
a fugitive "for the offense of Failure to Comply with          His failure to make a timely objection before the date of
Registration as a Sex Offender" which is a felony, the         trial was exactly the type of action that the citizens of
district court could conclude, from the face of the            Texas summarily rejected in voting for the 1985
charging instrument, that the State intended to charge a       constitutional amendment and the Texas Legislature
felony hindering apprehension offense. It certainly was a      prohibited in enacting the 1985 enabling statutes. 52
defective indictment because it omitted one of the two         Appellant forfeited any right to object to indictment
elements that raise hindering apprehension from a              defects thereafter, and the court of appeals should not
misdemeanor to a felony, but it was nonetheless                have sua sponte reversed appellant's conviction on this
sufficient to vest jurisdiction--it charged "an offense" and   basis. Therefore, we vacate the judgment of the court of
one could fairly conclude from the face of the charging        appeals and remand the case to that court to address
instrument that the State intended to charge a felony          appellant's original complaints [**29] of legal and
offense. If appellant was confused about whether the           factual sufficiency and jury charge error.
State did or intended to charge him with a felony, he
could have and should [**27] have objected to the                       52 See Brian A. Kilpatrick, The Constitutional
defective indictment before the date of trial. 51                       Right to Indictment by a Grand Jury: Does It
                                                                        Survive after Studer v. State and the 1985
       49 Under section 38.05, the State must prove                     Constitutional and Statutory Amendments, 44
       that the defendant (1) intended to hinder the arrest             BAYLOR L. REV. 345, 348 (1992) (stating that
       of the fugitive, and (2) knew the person was a                   "[t]he existence of the fundamental defect
       fugitive. To raise to offense from a misdemeanor                 doctrine was problematic because it encouraged
       to a felony, the State must prove that the                       "sandbagging" techniques by defendants. In other
       defendant (1) intended to hinder the arrest of a                 words, when the defendant's counsel discovered a
       felony fugitive, and (2) knew the person was a                   fundamental defect in the charging instrument,
       felony fugitive. TEX. PENAL CODE § 38.05(c).                     withholding such information was usually in the
       50 See, e.g., State v. Oliver, 808 S.W.2d 492,                   defendant's best interest. Only upon losing the
       493-94 (Tex. Crim. App. 1991) (indictment that                   trial would the defect be brought to the appellate
       failed to allege culpable mental state in possession             court's attention.").
       of controlled substance case is still an
       "indictment" conferring jurisdiction); Rodriguez            Delivered: March 7, 2007
       v. State, 799 S.W.2d 301, 302-03 (Tex. Crim. App.
                                                                   Publish
       1990) (indictment did not allege that appellant
                                                                                                                     Page 10
                               230 S.W.3d 172, *; 2007 Tex. Crim. App. LEXIS 316, **29



CONCUR BY: KELLER                                               offenses could contain those allegations. Under Duron,
                                                                this simply would not [**32] be enough information to
CONCUR                                                          allege an offense.

       [*183] Article 1.14 provides that a defendant                 But even under appellant's reasoning, the indictment
forfeits appellate review if he "does not object to a defect,   in the present case alleges an offense: it at least alleges
error, or irregularity of form or substance in an               the misdemeanor offense of hindering apprehension. 7
indictment . . . before the date on which the trial on the      That is an offense that is insufficient to invoke the district
merits commences." 1 The statute essentially [**30]             court's jurisdiction, but it is an offense nonetheless. The
dictates a three-step process for reviewing appellate           State, of course, contends that the indictment alleges
complaints relating to indictments: (1) Is there an             more than that, charging the felony offense of hindering
indictment? (2) If so, is the indictment defective,             apprehension. But the fact that an offense of some sort is
erroneous, or irregular in some respect? (3) If so, did the     alleged is not in dispute. Therefore, under the Texas
defendant lodge a timely objection to the defect, error, or     constitution, the written instrument in this case is,
irregularity? The Court treats the issue before us as a step    indisputably, an indictment.
(1) inquiry, but I believe that the pivotal issue is actually
a step (2) inquiry.                                                     7 See TEX. PEN. CODE § 38.05(a), (c).

       1 TEX. CODE CRIM. PROC., Art. 1.14(b).                       2. Is the indictment defective?

1. Is there an indictment?                                           The real question in this case is what kind of offense
                                                                is being charged in the indictment? That question brings
     According to the Texas Constitution, an indictment         us to step (2) of the inquiry, whether the indictment is
is "a written instrument presented to a court by a grand        defective, erroneous, or irregular. Even when an
jury charging a person with the commission of an                indictment is error-free, a defendant can raise [**33] a
offense." 2 In Cook v. State, we held that this language        claim that he was convicted of an offense that was not
literally required a "person" to be named as the                authorized by the facially complete indictment. 8 [*184]
perpetrator in the written instrument in order for that         Under those circumstances, the defendant can argue
instrument to qualify as an indictment. 3 In Duron v.           persuasively that the indictment was not defective, and
State, we addressed the requirement that an indictment          thus, there was nothing to object to prior to trial. In that
charge an "offense." 4 We held that an "offense" is             situation, there is no indictment error; rather, there is
charged [**31] if the written instrument "accuses               error in charging the jury or in rendering judgment on an
someone of a crime with enough clarity and specificity to       offense that the indictment does not authorize. If, for
identify the penal statute under which the State intends to     example, an indictment contains allegations necessary to
prosecute." 5 If the written instrument purporting to be an     establish the offense of robbery but contains no additional
indictment does not in fact qualify as an "indictment,"         allegations that would suggest the greater offense of
then the defendant is exempted from the usual                   aggravated robbery, 9 then there may be no error in the
requirement that he object to defects in the indictment         indictment but error would occur at trial if the
before the date of trial. 6                                     prosecution were permitted to pursue an aggravated
                                                                robbery conviction. A defendant must preserve such a
       2   TEX. CONST., Art. V, § 12(b).                        complaint by objecting at trial. 10
       3   902 S.W.2d 471, 480 (Tex. Crim. App. 1995).
       4   956 S.W.2d 547, 551 (Tex. Crim. App. 1997).                  8 Sutton v. State, 899 S.W.2d 682, 686 (Tex.
       5   Id.                                                          Crim. App. 1995).
       6   Id. at 550 (citing Cook, 902 S.W.2d at 478).                 9 Compare TEX. PEN. CODE § 29.02 with §
                                                                        29.03.
     Duron's standard for determining when an "offense"                 10 If the error is considered to be in the jury
is alleged can be understood through the following                      charge, then even without an objection, the error
example. Suppose the purported indictment alleged only                  would be subject to the Almanza "egregious
the name of the perpetrator and a culpable mental state:                harm" standard.
e.g. "John Smith intentionally." Any number of criminal
                                                                                                               Page 11
                            230 S.W.3d 172, *184; 2007 Tex. Crim. App. LEXIS 316, **33



  [**34] In appellant's case, however, we are not                be incomplete if it appears to allege only a
confronted with a facially complete indictment alleging          misdemeanor but was filed in district court, and
the misdemeanor offense of hindering apprehension. The           the misdemeanor is not one of those few that are
misdemeanor offense of hindering apprehension does not           sufficient to invoke the district court's jurisdiction.
require proof that the fugitive committed a felony               Under those circumstances, the State's filing of
offense, but the felony offense of hindering apprehension        the indictment in district court evidences its intent
does. 11 The indictment in this case contains an additional      to prosecute a felony offense, and a felony offense
allegation that suggests the greater offense of felony           exists to which the allegations in the indictment
hindering apprehension: that the harbored fugitive was           might reasonably pertain. Of course, where a
wanted for the offense of "failure to comply with                misdemeanor is not related to any felony offense
registration as a sex offender," which is a felony offense.      for which a district court would have jurisdiction,
Consequently, we have an incomplete indictment alleging          such as in the "speeding" example given by the
the felony offense of hindering apprehension, so the             Court, then an indictment alleging such an offense
indictment was defective, and appellant was required by          would not be capable of conferring such
statute to lodge a pretrial objection to preserve error on       jurisdiction.
appeal. 12
                                                               [**35] I concur in the Court's judgment.
       11 See § 38.05(a), (c).
       12 See Studer v. State, 799 S.W.2d 263 (Tex.            Date filed: March 7, 2007
       Crim. App. 1990). I also believe that when the
                                                               Publish
       lesser and greater offenses straddle the
       misdemeanor-felony divide, an indictment could
