Opinion issued June 14, 2016




                                     In The

                              Court of Appeals
                                    For The

                           First District of Texas
                             ————————————
                              NO. 01-15-00737-CR
                            ———————————
                           RONALD PARKS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 2009726


                           MEMORANDUM OPINION

      Ronald Parks was convicted of interference with the duties of a public

servant and sentenced to 30 days in jail. In his single issue, he argues that the

indictment did not adequately describe the offense for which he was charged in

several ways. We affirm.
                                    Background

      Parks was indicted for interfering with a public servant’s duties. See TEX.

PENAL CODE ANN. § 38.15(a)(1) (West Supp. 2015). Section 38.15(a)(1) provides:

“A person commits an offense if the person with criminal negligence interrupts,

disrupts, impedes, or otherwise interferes with a peace officer while the peace

officer is performing a duty or exercising authority imposed or granted by law.” Id.

The indictment tracked the Penal Code; it charged him with acting “unlawfully

with criminal negligence” by “failing to obey a lawful order, interrupt, disrupt,

impede and interfere with . . . a peace officer, while [he] was performing a duty

and exercising authority imposed and granted by law.” The indictment gave the

date of the alleged offense and the officer’s name. It did not, however, identify the

specific lawful order that was not obeyed or police officer action that Parks

interfered with. Nor did the indictment specify acts that constituted criminal

negligence. See id. (requiring “criminal negligence” as requisite mental state for

interfering with public servant’s duties).

      After indicting Parks, the State provided him with the police report, which

contained a description of the order Parks had been given and had not followed.

And, later, in response to Parks’ discovery requests, the State provided Parks its

trial witness list. Parks also filed two “self-authenticating business records” from

the Houston Police Department for use at trial.



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      Parks filed a motion to quash his indictment, which the trial court denied.

Parks appeals his conviction. We affirm.

                                    Indictment

      Parks argues that the indictment was inadequate because it failed to:

(1) “properly plead an act in conjunction with the mental state of criminal

negligence”; (2) set forth with “required certainty to enable [Parks] to plead the

judgment that may be given upon it in bar of any prosecution for the same

offense”; (3) “state everything necessary to be proved”; (4) give him “notice of the

offense charged with sufficient certainty”; and (5) “charge an offense as a result of

these issues and prejudice[d] [his] substantial rights.” According to Parks, these

omissions mean that, under the indictment, he could be “tried for disobeying one

lawful order this week and then next week tried for disobeying some other lawful

order.” The State responds that Parks (1) “provides argument and authorities on

appeal for only two” of those five arguments and (2) failed “to provide an adequate

record to evaluate” the two claims that are reviewable.

A.    Applicable law and standard of review

      An indictment is defective in form if it does not give the defendant sufficient

notice of the charged offense. Kellar v. State, 108 S.W.3d 311, 313–14 (Tex. Crim.

App. 2003); Flores, 33 S.W.3d at 919. But, even if the indictment is defective, we

will reverse the judgment only if the defect in the indictment prejudices “the



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substantial rights of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 21.19 (West

2009); Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986) (appellate

court must determine whether lack of notice in charging instrument “had an impact

on the defendant’s ability to prepare a defense, and . . . how great an impact”);

White v. State, 50 S.W.3d 31, 39 (Tex. App.—Waco 2001, pet. ref’d) (appellate

court must determine whether lack of notice “prejudiced the substantial rights of

the defendant”) (internal quotation marks and brackets omitted). To prejudice the

“substantial rights of the defendant,” the failure must “affect[] the defendant’s

ability to prepare a defense.” Flores, 33 S.W.3d at 919.

      A defendant cannot establish that an omission in an indictment prejudiced

his substantial rights if he had adequate notice to prepare a defense through an

alternative means. See Kellar, 108 S.W.3d at 313 (Even if indictment does not give

sufficient notice to prepare defense, defendant may receive notice “by means other

than the language in the charging instrument . . . . [A] defendant suffers no harm

unless he did not, in fact, receive notice of the State’s theory against which he

would have to defend.”); see also State v. Stukes, No. 14-15-00287-CR, 2016 WL

720845, at *4 (Tex. App.—Houston [14th Dist.] Feb. 23, 2016, no pet.) (“[A]n

indictment cannot be held insufficient by reason of a formal defect that does not

prejudice the defendant’s substantial rights.”).




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      To determine whether the defendant’s ability to prepare a defense has been

prejudiced, “we consider the complete record.” Flores, 33 S.W.3d at 919. We must

review the record to examine the defense strategy and whether that strategy was

impaired by the lack of notice in the indictment. Id. at 920. If we are “unable to

find from this record that the omission” in the indictment “had a deleterious impact

on appellant’s defense,” we must conclude that the trial court’s denial of the

motion to quash “did not prejudice [the] appellant’s substantial rights.” Id.

B.    No evidence of harm

      The State argues that Parks failed to file a sufficient record to enable us to

determine whether he received adequate notice to prepare his defense and that this

absence of an adequate record prevents us from concluding that he was harmed by

the trial court’s ruling. See TEX. R. APP. P. 44.2(b); Mercier v. State, 322 S.W.3d

258, 264 (Tex. Crim. App. 2010) (holding that unless “defects of form prejudice

[defendant’s] substantial rights, the indictment will be deemed sufficient . . . .”).

      When filing an appeal, an appellant must request a reporter’s record,

consisting of the transcripts of the proceedings in the trial court, and a clerk’s

record. See TEX. R. APP. P. 34.6(b)(2); id. at 34.5. If the appellant requests only

part of the reporter’s record, “the appellant must include in the request a statement

of the points or issues to be presented on appeal and will then be limited to those

points or issues.” TEX. R. APP. P. 34.6. If that statement is filed, we must then



                                           5
“presume that the partial reporter’s record designated by the parties constitutes the

entire record for purposes of reviewing the stated points or issues.” Id.

      Parks filed a partial record. He filed a reporter’s record of the pre-trial

hearing on his motion to quash the indictment, but he did not file a reporter’s

record of his trial. Because Parks did not file a full reporter’s record, we cannot

review the complete record to determine whether his ability to present a defense

was impacted. Nor can we determine whether Parks received adequate notice of

the charged offense in another way. Moreover, Parks did not file a statement with

the trial court, pursuant to Rule 34.6(c) of the Rules of Appellate Procedure,

identifying the issues he would be presenting on appeal. Without this statement, we

must “presume that the material missing from the reporter’s record is relevant and

supports the trial court’s” decision to overrule Parks’ motion to quash. In re J.S.P.,

278 S.W.3d at 418.

      In any event, there is some indication in this limited record that Parks did

receive adequate notice of the charge through some means other than the

indictment. Parks filed a motion arguing that the search and arrest during which he

allegedly interfered with a public officer’s duties were conducted without a warrant

or probable cause—indicating that he knew which encounter with law enforcement

led to the charge. Parks filed “self-authenticating business records” from the

Houston Police Department for use at his trial—implying they were related to the



                                          6
alleged offense. He admitted at the motion-to-quash hearing that he had a copy of

the police report, which contained the order that the officer gave Parks. These facts

indicate that Parks had notice of the offense with which he was charged and was

able to prepare a defense.

      We conclude, therefore, that the trial court’s denial of Parks’s motion to

quash the indictment did not constitute harmful error.1

                                     Conclusion

      We affirm the trial court’s order.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Keyes, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




1
      For purposes of this opinion we have assumed that error exists in the indictment.
      The State, however, argues that the indictment did not contain error because the
      indictment “states the act which constitutes criminal negligence,” namely failing
      to obey a lawful order, and “provides adequate notice” by “specifying the manner
      and means by which [Parks] committed the offense.” We do not address the merits
      of either the State’s or Park’s arguments regarding whether the trial court erred in
      denying the motion to quash the indictment because Parks cannot establish harm
      on this limited record.

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