                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00102-CR


PAUL LEONE                                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                                  OPINION

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      Appellant Paul Leone appeals from his conviction for harassment by a

person in a correctional facility. See Tex. Penal Code Ann. § 22.11 (West 2011).

We affirm.

      Appellant has an extensive criminal record: a sexual-assault conviction in

1986, an indecency-with-a-child conviction in 1988, and a capital-murder

conviction in 1996. In 2006 and while Appellant was incarcerated, Appellant

caused another person “to contact urine of a person.” Appellant pleaded guilty,
and the trial court sentenced him to three years’ confinement. Appellant appeals

and argues, as he did in a pretrial motion to set aside the indictment, that the trial

court had no jurisdiction to adjudicate the offense alleged in the indictment

because the indictment on its face stated it was returned by a grand jury outside

of its term.

       The indictment in this case alleged an offense under section 22.11 of the

penal code, and appellant does not challenge this portion of the indictment on

appeal. 1 The indictment recited that the grand jury that returned the indictment

was “duly organized at the January Term A.D. 2007”; however, the indictment

was filed November 5, 2008, which was well after the end of the six-month term

for the January 2007 grand jury. 2 See Tex. Gov’t Code Ann. § 24.012(a) (West

Supp. 2013), § 24.132(c) (West 2004). Appellant filed a pretrial motion to set

aside the indictment arguing that the indictment’s failure to state it was returned

by a properly empaneled grand jury rendered it invalid, divesting the trial court of

jurisdiction.   See Tex. Code Crim. Proc. Ann. arts. 27.08(4), 27.09(3) (West

2006). The trial court held a hearing at which the State made an oral motion to

amend the indictment “to correctly reflect that it was returned by the July 2008

Grand Jury.” The trial court granted the motion to amend and denied the motion

       1
        Appellant argued in his pretrial motion to set aside that the indictment
failed to allege an offense under section 22.11. See Tex. Code Crim. Proc. Ann.
art. 27.08(1) (West 2006).
       2
      The trial court did not extend the term of the January 2007 grand jury.
See Tex. Code Crim. Proc. Ann. art. 19.07 (West 2005).

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to set aside the indictment. After entering his guilty plea and receiving a three-

year sentence, Appellant filed a notice of appeal.

      As stated above, Appellant raises a discrete issue: whether the trial court

had jurisdiction over the charged offense in light of the grand-jury defect in the

indictment. As a question of law, we review the sufficiency of the indictment to

confer jurisdiction on the trial court de novo. Pollock v. State, 405 S.W.3d 396,

403 (Tex. App.—Fort Worth 2013, no pet.) (citing Smith v. State, 297 S.W.3d

260, 267 (Tex. Crim. App. 2009), cert. denied, 559 U.S. 975 (2010)). To confer

jurisdiction on a trial court, an indictment must charge: (1) a person and (2) the

commission of an offense. Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App.

2007) (relying on Cook v. State, 902 S.W.2d 471, 477–80 (Tex. Crim. App.

1995)). The court of criminal appeals mandated the appropriate inquiry when an

appellant challenges an indictment for failure to vest jurisdiction on the trial court:

“Can the trial court (and appellate courts who give deference to the trial court’s

assessment) and the defendant identify what penal code provision is alleged and

is that penal code provision one that vests jurisdiction in the trial court?” Id. at

180. As stated above, Appellant does not argue on appeal that the indictment

failed to allege a penal-code violation that the trial court had jurisdiction to

adjudicate. Indeed, the indictment alleges the violation of section 22.11, which is

an offense over which the trial court had jurisdiction. See Tex. Const. art. V, § 8

(setting out jurisdiction of district courts); Tex. Code Crim. Proc. Ann. art. 4.05

(West 2005) (same). The Texas constitution requires nothing more than this to

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confer jurisdiction on the trial court. Tex. Const. art. V, § 12(b). See generally

Teal, 230 S.W.3d at 177 (“[I]ndictments charging a person with committing an

offense, once presented, invoke the jurisdiction of the trial court and jurisdiction is

no longer contingent on whether the indictment contains defects of form or

substance.”).

      Appellant’s claim also fails because he has not shown that his substantial

rights were prejudiced by the defect. See Tex. Code Crim. Proc. Ann. art. 21.19

(West 2009). A complaint that an indictment “was not returned by a lawfully

chosen or empaneled grand jury” is a defect of form. Id. art. 27.09(3). Likewise,

an indictment’s failure to state that it “was presented in the district court of the

county where the grand jury [was] in session” or that it was “the act of a grand

jury of the proper county” are defects of form. Id. art. 21.02(2)–(3). With defects

of form, there must be some prejudice shown: “An indictment shall not be held

insufficient, nor shall the 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.” Id. art. 21.19. 3 Therefore, we must focus on the effect

of the defect of form in the indictment and not on the trial court’s ruling. 42

George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice

and Procedure § 26:87 (3d ed. 2011).


      3
      Even defects of substance in an indictment also are subject to a similar
harmless-error analysis under rule 44.2(b). Mercier v. State, 322 S.W.3d 258,
263–64 (Tex. Crim. App. 2010).

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      Appellant does not attempt to show that his substantial rights were affected

by the defect of form in the indictment, and indeed, they were not. See, e.g.,

Adams v. State, 707 S.W.2d 900, 903–04 (Tex. Crim. App. 1986); Fritz v. State,

No. 2-08-432-CR, 2009 WL 2138929, at *5 (Tex. App.—Fort Worth July 16,

2009, pet. ref’d) (mem. op., not designated for publication).         We overrule

Appellant’s issue and affirm the trial court’s judgment.



                                                    /s/ Lee Gabriel
                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: March 6, 2014




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