            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1100-17

                          CYNTHIA KAYE WOOD, Appellant

                                              v.

                                THE STATE OF TEXAS


            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIRST COURT OF APPEALS
                            HARRIS COUNTY

       R ICHARDSON, J., delivered the opinion for a unanimous Court.

                                         OPINION

       Appellant, Cynthia Kaye Wood, was indicted for the offense of attempted capital

murder. She entered into an open plea of guilty. Following the completion of a pre-sentence

investigation report, the trial court conducted a sentencing hearing. At the conclusion of the

hearing, the trial court sentenced Appellant to life imprisonment. Appellant appealed her

conviction and sentence, alleging five points of error. Finding Appellant’s life sentence to

be an illegal sentence, the court of appeals reversed Appellant’s conviction for attempted
                                                                     Cynthia Kaye Wood — 2


capital murder and ordered the trial court to adjudge Appellant guilty of attempted murder.1

The case was remanded to the trial court to hold a new sentencing hearing. The State

petitioned this Court to review the decision of the court of appeals. We hold that Appellant’s

sentence is not an illegal sentence. We reverse the judgment of the court of appeals and

remand the case to the court of appeals to address Appellant’s remaining points of error.

                               FACTUAL BACKGROUND

       Appellant gave birth prematurely to a baby boy named K.W. on May 10, 2014. The

baby spent the first three months of his life in the hospital. Two days after being released to

go home, K.W. was brought back to the hospital because he had stopped breathing, and he

remained at the hospital for another five days. On September 19, 2014, after vomiting, K.W.

was brought back to the hospital and he underwent surgery. K.W. was readmitted to the

hospital—the intensive care unit—on September 30, 2014, because Appellant claimed that

he was not breathing and did not have a pulse. Medical personnel conducted several tests

to determine what was wrong with K.W., but they could not find anything wrong with him,

and the baby’s repeated hospitalizations appeared to be out of proportion to his healthy

appearance. Appellant requested that a gastrostomy tube (a “G-tube”) be inserted so that

K.W. would get food directly to his stomach, but no medical reason could be found to

support the insertion of a G-tube. During the two days in the intermediate care unit of the


       1
         Wood v. State, No. 01-16-00179-CR, 2017 WL 4127835, at *6 (Tex. App.—Houston [1st
Dist.] 2017)(mem. op. on reh’g).
                                                                        Cynthia Kaye Wood — 3

hospital—October 8 and 9, 2014—K.W. did very well. Appellant was not there at that time,

but K.W.’s grandmother was with him.

       When Appellant visited K.W. on October 10, 2014, he had another lack-of-breathing

episode. K.W. was put in a new room, and the medical staff placed a hidden camera in the

room to observe. On October 11, 2014, Appellant was seen placing an oxygen bag (that was

not hooked up to oxygen) over K.W.’s face. The next day, the video recording captured

Appellant attempting to suffocate K.W. on two separate occasions. She first pulled a blanket

up over K.W.’s face, then she put her hand over his face, setting off his oxygen monitors both

times. He was thereafter transferred to the intensive care unit. When K.W. recovered, he

was separated from his mother and sent to a foster home.

                                     THE INDICTMENT

       The State charged Appellant with the felony offense of “Attempted Capital Murder.”

The indictment against her read as follows, in pertinent part:

       [I]n Harris County, Texas, CYNTHIA KAYE WOOD hereafter styled the
       Defendant, heretofore on or about OCTOBER 12, 2014, did then and there
       unlawfully intentionally, with the specific intent to commit the offense of
       CAPITAL MURDER of K.W., hereafter styled the Complainant, do an act, to-
       wit: USE HER HAND TO IMPEDE THE COMPLAINANT’S ABILITY TO
       BREATHE, which amounted to more than mere preparation that tended to but
       failed to effect the commission of the offense intended.2




       2
         The indictment was amended to include an allegation of a deadly weapon, to which Appellant
pled “true.” There is no issue before us involving the deadly weapon allegation.
                                                                    Cynthia Kaye Wood — 4

                                   THE PERTINENT STATUTES

Murder § 19.02

       The offense of “Murder” under Texas Penal Code § 19.02(b)(1) occurs if a person

“intentionally or knowingly causes the death of an individual.” 3

Capital Murder § 19.03

       The offense of Capital Murder under Texas Penal Code § 19.03(a)(8) occurs if a

person “commits murder as defined under Section 19.02(b)(1) and . . . the person murders

an individual under 10 years of age.” 4

Criminal Attempt § 15.01

       An “attempted” offense is one category lower than the offense attempted.5 Texas

Penal Code § 15.01 defined “Criminal Attempt” as follows:

       (a)       A person commits an offense if, with specific intent to commit an
                 offense, he does an act amounting to more than mere preparation that
                 tends but fails to effect the commission of the offense intended.

       (b)       If a person attempts an offense that may be aggravated, his conduct
                 constitutes an attempt to commit the aggravated offense if an element
                 that aggravates the offense accompanies the attempt.6




       3
           T EX. P ENAL C ODE § 19.02(b)(1).
       4
           Id. at § 19.03(a)(8).
       5
           Id. at § 15.01(d).
       6
           Id. at § 15.01(a) and (b).
                                                                            Cynthia Kaye Wood — 5

                                            ANALYSIS

        The key to our analysis in this opinion is the well-established rule that an indictment

charging criminal attempt is not fundamentally defective for failure to allege the constituent

elements of the offense attempted.7 Although Appellant does not allege that the indictment

was defective, the basis for her illegal-sentence claim is that, since the indictment omitted

one of the elements of capital murder, the indictment alleged only attempted murder, not

attempted capital murder, and so she only pled to, and should only be convicted of, attempted

murder, not attempted capital murder.8 The court of appeals agreed with Appellant, finding


       7
        Whitlow v. State, 609 S.W.2d 808, 809 (Tex. Crim. App. 1980); Jones v. State, 576 S.W.2d
393, 395 (Tex. Crim. App. 1979); Williams v. State, 544 S.W.2d 428, 430 (Tex. Crim. App. 1976);
Young v. State, 675 S.W.2d 770, 771 (Tex. Crim. App. 1984).
       8
           Under Texas Code of Criminal Procedure Article 1.14(b),

        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 he may not raise the objection on appeal or in any other post-
        conviction proceeding.

T EX. C ODE C RIM. P ROC. art. 1.14(b). Although the court of appeals failed to address preservation of
error, it “is a systemic requirement that must be reviewed by the courts of appeals regardless of
whether the issue is raised by the parties.” Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App.
2005); Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009) (“Preservation of error is a
systemic requirement on appeal. . . . Ordinarily, a court of appeals should review preservation of error
on its own motion[.]”).

        In this case, however, Appellant did not file a motion to quash nor directly attack the
indictment. The third issue raised by Appellant on direct appeal, which was the one sustained by the
court of appeals and the reason for the reversal, was worded in Appellant’s brief filed with the court
of appeals as follows:

        A sentence that is outside the maximum or minimum range of punishment is
                                                                             Cynthia Kaye Wood — 6


her life sentence illegal because “[t]he indictment in this case did not authorize a conviction

for attempted capital murder.”9 The specific reasoning behind the appellate court’s decision

can be found in the following excerpt from the lower court’s opinion on the motion for

rehearing:

        Here, the indictment charged a complete offense—attempted murder.
        Although the State intended to charge appellant with the offense of attempted


        unauthorized by law and constitutes an illegal sentence. Here, Cynthia was sentenced
        to life in prison which is a legal sentence for a first degree felony conviction. But the
        evidence was sufficient only to support a second degree felony conviction which
        carries a punishment of two to twenty years in prison. Was Cynthia’s sentence illegal?

Appellant’s Brief on Direct Appeal at 6, 65, Wood, 2017 WL 4127835. But, we note that Appellant’s
brief on direct appeal pointed to the language in the indictment as the basis for her challenge on appeal.
She argued that, “[f]or the reasons set out in Issue Number One and Issue Number Two,” the evidence
substantiated only the offense of attempted murder—a second degree felony. Appellant’s Brief on
Direct Appeal at 65, Wood, 2017 WL 4127835. Earlier in that brief, Appellant set out the “reasons”
that supported her arguments in Issues One and Two. She asserted that the indictment “describes a
murder, but does not say anything about an aggravating factor.” Appellant’s Brief on Direct Appeal
at 33. Thus, she said, the indictment failed to properly charge her with attempted capital murder since
no aggravating circumstance was found therein. Id. According to Appellant, since the aggravating
circumstance was missing from the indictment, and the indictment language was used for her judicial
confession forming the basis for her plea, she did not judicially confess to committing all the elements
of attempted capital murder. Id. at 33-34. And, said Appellant, since her judicial confession did not
establish every element of the offense of attempted capital murder, her judicial confession does not
constitute sufficient evidence to support her plea of guilty to the charge of attempted capital murder.
This argument persuaded the court of appeals to sustain Appellant’s third point of error, which was
that her sentence was illegal.

        Nevertheless, Appellant has never characterized this issue as an alleged “defect” in the
indictment. Moreover, Appellant does not claim that the indictment fails to properly charge her with
any offense at all. Therefore, since Appellant’s argument is, instead, that her indictment charges her
for an offense that is different from—and carries a lesser punishment than—the offense that she was
convicted of and sentenced for, preservation of a “defective-indictment”-claim is not an issue in this
case.
        9
            Wood, 2017 WL 4127835, at *5.
                                                                           Cynthia Kaye Wood — 7


       capital murder, it did not do so because the aggravating factor was missing
       from the indictment. See Crawford v. State, 632 S.W.2d 800, 801 (Tex.
       App.—Houston [14th Dist.] 1982, pet. ref’d) (reversing defendant’s conviction
       for capital murder where indictment did not allege “aggravated rape” as
       enhancing offense under Penal Code section 19.03(a)(2) elevating murder to
       capital murder). The term “capital murder” is a term that describes a
       sentencing regime rather than a criminal offense. There is no crime of capital
       murder that is different from murder. Capital murder is murder. But, it is
       murder that is accompanied by an aggravating factor that provides the State
       with a greater range of punishment than that which applies to the offense of
       murder. The requirement that the indictment allege the aggravating factor
       under section 19.03(a)(2) is particularly important given that the statute lists
       nine possible aggravating circumstances elevating the offense of murder to
       capital murder. The indictment in this case did not authorize a conviction for
       attempted capital murder, and the State is held to the offense charged in the
       indictment. See Sierra [v. State], 501 S.W.3d [179], 183 [(Tex.
       App.—Houston [1st Dist.] 2016, no pet.)].10

       Appellant argues to this Court that the appellate court is correct—that her sentence

is illegal because her indictment did not charge, and she did not plead to, the offense of

attempted capital murder. Appellant claims that the court of appeals correctly held that the

indictment charged, and she pled to, the offense of attempted murder, which made her life

sentence illegal because it fell outside the permissible punishment range for attempted

murder.

       It is true that “[a] sentence that is outside the maximum or minimum range of

punishment is unauthorized by law and is therefore illegal.”11 However, based on our



       10
            Id.
       11
            Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
                                                                     Cynthia Kaye Wood — 8


precedent discussed below, we hold that Appellant was charged with, pled to, and was

properly sentenced for, the offense of attempted capital murder.

       In Whitlow v. State,12 the appellant was convicted of the offense of attempted escape

with a deadly weapon. No motion to quash was filed, but the appellant contended on appeal

that the indictment was fundamentally defective for failing to include each of the elements

of the offense of escape. The indictment in Whitlow charged the appellant “with the specific

attempt to commit the offense of escape,” by “attempt[ing] to escape from the custody of the

Falls County Sheriff by the use of a deadly weapon,” and “said attempt amount[ed] to more

than mere preparation that tend[ed] but fail[ed] to effect the commission of the offense

intended.”13 In Whitlow, we held that,

       The elements necessary to establish an offense under V.T.C.A., Penal Code,
       Section 15.01 the attempt statute comprise: 1) a person, 2) with specific intent
       to commit an offense, 3) does an act amounting to more than mere preparation
       that 4) tends, but fails, to effect the commission of the offense intended.14

We concluded in Whitlow that the indictment, which is similar to the one in this case, charged

attempted escape with a deadly weapon, and thus it was not fundamentally defective.15 We




       12
            609 S.W.2d 808 (Tex. Crim. App. 1980).
       13
            Id. at 809.
       14
            Id.
       15
            Id.
                                                                          Cynthia Kaye Wood — 9


cited to our decision in Williams v. State,16 wherein this Court unanimously rejected the

contention that an indictment charging an attempted offense is defective for not alleging an

essential element of the consummated offense that was alleged to have been attempted.17 In

fact, we made it a point to note in Whitlow, that “[i]f this were a conviction for a

consummated escape, the contention[—that the indictment failed to include each of the

elements of the offense of escape—] would have merit.” 18

       In Jones v. State,19 a jury convicted the appellant of attempted murder. The appellant

alleged on appeal that his motion to quash should have been granted and that the court’s

charge was fundamentally defective. Again, we cited to our Williams decision, wherein we

held that “an indictment for criminal attempt is not fundamentally defective for failure to

allege the constituent elements of the offense attempted.”20            We noted in Jones that,

regarding an attempted offense, “the offense attempted need not be proved as a completed




       16
            544 S.W.2d 428 (Tex. Crim. App. 1976).
       17
          Whitlow, 609 S.W.2d at 809 (citing Williams v. State, 544 S.W.2d at 430 and Gonzales v.
State, 517 S.W.2d 785, 787-88 (Tex. Crim. App. 1975)).
       18
          Whitlow, 609 S.W.2d at 809 n.1 (first citing to Ex parte McCurdy, 571 S.W.2d 31 (Tex.
Crim. App. 1978), and then citing to Ex parte Abbey, 574 S.W.2d 104 (Tex. Crim. App. 1978), and
noting that, “[t]he charge here was not consummated escape but attempted escape.”).
       19
            576 S.W.2d 393 (Tex. Crim. App. 1979).
       20
          Id. at 395 (citing Williams, 544 S.W.2d at 430). See also Young v. State, 675 S.W.2d at 771;
Boston v. State, 642 S.W.2d 799, 802 (Tex. Crim. App. 1982) (holding that an indictment for a
criminal attempt need not set out the elements of the offense intended).
                                                                          Cynthia Kaye Wood — 10


offense.” 21

       Although our decisions in Williams, Jones, and Whitlow address allegations that an

indictment is fundamentally defective, not that a sentence is illegal, the reasoning of those

decisions, and not the cases cited by the court of appeals, nevertheless governs the outcome

here. The intermediate appellate court opinions in Crawford v. State22 and Sierra v. State,23

which are the cases cited by the court of appeals to support its holding, are distinguishable

because those cases did not involve attempted offenses.

       In Crawford v. State, the appellant was charged with capital murder, not attempted

capital murder. And since the indictment failed to allege one of the elements of the offense

of capital murder, the Fourteenth Court of Appeals followed authority from this Court

holding that “fundamental error exists when a jury charge authorizes a conviction for an

offense not found in the indictment.”24 In this case, the offense of attempted capital murder

was found in the indictment. Thus, while the decision in Crawford was not incorrect, it does

not control the outcome in this case.


       21
            Jones, 576 S.W.2d at 395.
       22
            632 S.W.2d 800 (Tex. App.—Houston [14th Dist.] 1982, pet. ref’d).
       23
            501 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
       24
          Crawford, 632 S.W.2d at 801 (citing Ross v. State, 487 S.W.2d 744 (Tex. Crim. App.
1972)). The Crawford opinion also cites to Brasfield v. State, 600 S.W.2d 288, 294 (Tex. Crim. App.
1980), “where the Court reversed a conviction for capital murder because the indictment was
‘susceptible of an interpretation that the victim of the alleged kidnapping was a person other than the
named deceased.’”
                                                                             Cynthia Kaye Wood — 11


        In Sierra v. State, the appellant pled guilty to burglary of a habitation with intent to

commit sexual assault. The trial court classified the offense as a first-degree felony and

sentenced the appellant to a 30-year prison term. On appeal, the appellant challenged this

as an illegal sentence, arguing that the indictment charged him with burglary of a habitation

“by concealment,” which is a second degree felony, not a burglary of a habitation “by entry,”

which is a first degree felony. The First Court of Appeals agreed with the appellant that,

because he was only charged with a second degree felony, he could not be punished for a

first degree felony. If an indictment charges a complete offense, the State is held to the

offense charged in the indictment.25 In Sierra the indictment charged a completed offense,

not an attempted offense. Thus, again, this rule of law in Sierra is not incorrect, but under

these facts, Sierra does not mandate that Appellant’s conviction for attempted capital murder

be reduced to attempted murder.26

        An indictment charging a consummated offense must properly charge all of the

elements of that offense.          But an indictment charging an attempted offense is not

fundamentally defective for failure to allege the constituent elements of the offense




        25
             Sierra, 501 S.W.3d at 183.
        26
          In fact, if we were to follow the logic of Sierra, it is difficult to understand how the court of
appeals could have concluded that the indictment in this case alleged the offense of attempted murder,
any more than it alleged the offense of attempted capital murder, since the indictment did not charge
the specific elements of murder that allegedly were attempted—i.e., that Appellant attempted to cause
the death of K.W.
                                                                     Cynthia Kaye Wood — 12


attempted.27 We hold, therefore, that the indictment in this case properly charged attempted

capital murder. It logically follows, then, that Appellant’s agreement to plead to the

allegations in the indictment was an agreement to plead to the offense of attempted capital

murder. Thus, Appellant’s life sentence, which falls within the punishment range for

attempted capital murder, is not an illegal sentence.

                                       CONCLUSION

       The court of appeals overruled Appellant’s first two points of error, but sustained her

third point of error alleging that her sentence of life imprisonment is an illegal sentence. The

court of appeals did not resolve Appellant’s fourth and fifth points of error.28 Because we

hold that Appellant’s sentence was not illegal, we reverse the judgment of the court of

appeals and remand the case for the court of appeals to address Appellant’s remaining two

points of error.

DELIVERED:             September 19, 2018

PUBLISH




       27
         Whitlow, 609 S.W.2d at 809; Jones, 576 S.W.2d at 395; Williams, 544 S.W.2d at 430; and
Young, 675 S.W.2d at 771.
       28
            Wood, 2017 WL 4127835 at *6 n.3.
