                         NO. 07-10-00402-CR; 07-10-00403-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                   MARCH 23, 2011


                              EDDIE PEEL, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 367TH DISTRICT COURT OF DENTON COUNTY;

      NO. F-2010-0942-E, F-2010-0943-E; HONORABLE LEE GABRIEL, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

                              MEMORANDUM OPINION


      Appellant, Eddie Peel, entered pleas of guilty to sexual assault of a child1 in

Cause No. 07-10-0402-CR and sexual assault2 in Cause No. 07-10-0403-CR.3

Pursuant to a plea agreement, appellant was placed on deferred adjudication

community supervision on each case.       The deferred adjudication was subsequently

adjudicated and appellant was sentenced to serve a term of confinement of 11 years in

      1
          See TEX. PENAL CODE ANN. § 22.011(a)(2) (West Supp. 2010).
      2
          See TEX. PENAL CODE ANN. § 22.011(a)(1).
      3
         Further reference to the Texas Penal Code Ann. will be by reference to “section
___” or “§ ___.”
the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) on each

case, all confinement to be served concurrently. Appellant appeals raising two issues.

We will affirm.


                             Factual and Procedural Background


       Appellant was initially indicted on charges of sexual assault of a child and

aggravated sexual assault of a child. See §§ 22.011(a)(1), 22.021(a). After indictment

and prior to entry of a plea, appellant and the State agreed on a plea whereby appellant

would plead guilty to the sexual assault of a child in Cause No. 07-10-0402-CR and to a

lesser-included charge of sexual assault in Cause No. 07-10-0403-CR. In return for the

pleas of guilty, appellant was placed on deferred adjudication community supervision for

a period of eight years on each case. No pretrial motions were filed in either case by

appellant’s trial counsel.


       Subsequently, the State filed a motion in each case to adjudicate appellant guilty.

The trial court conducted a hearing on the State’s motion to adjudicate and appellant

entered pleas of true to each of the allegations contained in the State’s motions. After

hearing evidence regarding punishment, the trial court sentenced appellant to

confinement in the ID-TDCJ for a period of 11 years on each case.


       Appellant appeals contending that the indictment in Cause No. 07-10-0402-CR is

fundamentally defective, and that section 22.021 is void for vagueness as applied to

appellant. We will affirm the judgment of the trial court.




                                             2
                                   Defective Indictment


       Appellant’s first issue contends that the indictment in Cause No. 07-10-0402-CR

is defective because it fails to negate an exception to the crime, as provided in section

22.011(e), that the actor was the spouse of the child at the time of the offense.

Appellant’s theory continues that, since the missing portion is an element of the offense,

the indictment is incomplete.     Therefore, according to appellant, the indictment is

fundamentally defective. See Murk v. State, 775 S.W.2d 415, 416 (Tex.App.—Dallas

1989), rev’d 815 S.W.2d 556 (Tex.Crim.App. 1991). Further, appellant posits that a

fundamentally defective indictment does not invest jurisdiction in the trial court. See

Beets v. State, 767 S.W.2d 711, 723 (Tex.Crim.App. 1987).             Accordingly, under

appellant’s theory, this type of error cannot be waived. See Oliver v. State, 787 S.W.2d

170, 172 (Tex.App.—Beaumont 1990), rev’d 808 S.W.2d 492 (Tex.Crim.App. 1991). As

can be ascertained by the subsequent history of the cases cited to support appellant’s

position, most of the cases have been reversed.


       The State posits that appellant has forfeited his complaint by not raising this

issue when the deferred adjudication was first granted.       See Manuel v. State, 994

S.W.2d 658, 661-62 (Tex.Crim.App. 1999).          It is only if we are reviewing a void

judgment that this rule is not applicable. See Nix v. State, 65 S.W.3d 664, 667-68

(Tex.Crim.App. 2001). Therefore, if the indictment was defective to the point that it did

not confer jurisdiction to render a judgment, then appellant would not have to worry

about the issue of preservation of this point for appeal. See id.




                                             3
       The problem with appellant’s theory, as pointed out by the State and accepted by

this Court, is that the law regarding an indictment that is so defective as to not confer

jurisdiction on the trial court has changed. Under the Texas Court of Criminal Appeals’s

decision in Smith v. State, a defect in an indictment by failure to recite an element is a

substance defect in the indictment.          Smith v. State, 309 S.W.3d 10, 16-17

(Tex.Crim.App. 2010). A substance defect in an indictment still confers jurisdiction on

the trial court. Id. at 17. Therefore, the conviction is not void. Id. Since the conviction

is not void, appellant must comport with the requirements of article 1.14 of the Texas

Code of Criminal Procedure.4 The record clearly bears out that there was no objection

ever lodged against this indictment in Cause No. 07-10-0402-CR.                 Accordingly,

appellant has waived any purported error and his issue is overruled.


                            Constitutional Challenge to § 22.021


       Appellant’s final issue contends that section 22.021 is unconstitutionally void for

vagueness as applied to him. Because of this alleged constitutional infirmity, appellant

insists that we must reverse and dismiss the case in Cause No. 07-10-0403-CR. The

record reveals that, although appellant was indicted pursuant to section 22.021, he

entered a plea of guilty to the lesser-included offense found in section 22.011(a)(1).

Therefore, we are immediately faced with the issue of whether or not appellant has


       4
           Article 1.14(b) of the Texas Code of Criminal Procedure provides:

       If the defendant does not object to a defect, error, or irregularity of form or
       substance in an indictment or information before the date on which the
       trial on the merits commences, he waives and forfeits the right to object to
       the defect, error, or irregularity and may not raise the objection on appeal
       or in any other postconviction proceeding.
                                              4
standing to challenge the constitutionality of section 22.021. We hold that appellant

does not have standing to make a constitutional challenge to section 22.021.


       To have standing to challenge the constitutionality of a statute, the challenger

must first demonstrate an adverse impact on his rights. See Suarez v. State, No. 14-

97-00342-CR, 1999 Tex. App. LEXIS 1256 at *6 (Tex.App.—Houston [14th Dist.] Feb.

25, 1999, no pet.) (not designated for publication) (citing Santikos v. State, 836 S.W.2d

631, 633 (Tex.Crim.App. 1992)). In the case before the Court, appellant did not enter a

plea to any charge pursuant to section 22.021. In the Suarez case, the appellant was

attempting to challenge the constitutionality of Texas Transportation Code section

724.061 regarding admission of the appellant’s refusal to give a specimen of his breath

or blood. Id. at *6-*7. Suarez pleaded guilty and did not go to trial, therefore, the court

held he had no standing to challenge the constitutionality of section 724.061 of the

Texas Transportation Code. Id. Here, appellant entered his plea to a reduced charge

and was not subjected to the punishment of section 22.021, therefore, he has no

standing. Appellant’s challenge is overruled.


                                        Conclusion


       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                                        Mackey K. Hancock
                                                             Justice


Do not publish.

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