       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-02-00410-CR



                                         Gary Messig, Appellant

                                                      v.

                                      The State of Texas, Appellee




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
               NO. 2020061, HONORABLE JON N. WISSER, JUDGE PRESIDING




                               MEMORANDUM OPINION


                 Appellant Gary Messig was convicted of burglary of a building, enhanced by two prior

convictions, and was sentenced to two years in state jail. See Tex. Pen. Code Ann. ' 30.02 (West 2003).

On appeal he raises a single issue: whether the trial court erred in overruling his objection to the indictment,

which was unsigned. Because appellant failed to timely object to the indictment, we affirm the conviction.

                 The grand jury indicted appellant for burglary, and the indictment was filed with the trial

court on March 28, 2002. The indictment is not signed by the grand jury foreperson or any other member

of the grand jury. Appellant was served with a certified copy of the indictment on April 13. On May 9,

appellant, represented by counsel, was arraigned, pleaded not guilty, waived the reading of the indictment,

and waived his right to a jury trial. On June 5, appellant appeared before the trial court for a bench trial. At
the beginning of the trial, he objected to the indictment because it Adoes not contain the signature of the

foreperson of the grand jury.@ The State responded that appellant had waived his right to object to the

indictment by not raising his objection before the day of trial. The trial court stated,


        I think the Court is going to take judicial notice of it=s [sic] own file. And the records in the
        file includes [sic] a notice of indictment listing and also an additional order signed by the
        judge of the 147th showing receipt of the indictment from the grand jury. I think that was
        Judge Flowers received that indictment.

        So, I think with those documents, which sort of attest to the fact that the grand jury did in
        fact indict this case, it does appear that there is no signature however under Article 1.14(b)
        the Court is going to overrule the objection.


                Article 21.02 of the code of criminal procedure sets out requirements for an indictment to

be deemed sufficient including, among other requirements, that A[i]t shall be signed officially by the foreman

of the grand jury.@ Tex. Code Crim. Proc. Ann. art. 21.02(9) (West 1989). Article 27.09 allows a

defendant to make an exception to the form of an indictment if it does not appear to have been presented in

the proper court, lacks a requirement set out in article 21.02, or was not returned by a lawfully chosen or

empaneled grand jury. Id. art. 27.09 (West 1989). An objection to a defect of form or substance in a

charging instrument must be raised before the day of trial or it is waived. Id. art. 1.14(b) (West Supp.

2003); Rodriguez v. State, 799 S.W.2d 301, 303 (Tex. Crim. App. 1990); Anderson v. State, 905

S.W.2d 367, 369 (Tex. App.CFort Worth 1995, pet. ref=d); Alexander v. State, 820 S.W.2d 821, 822

(Tex. App.CWaco 1991, pet. ref=d).

                The indictment clearly accuses appellant of committing burglary of a building, and the lack of

a signature is not a defect that renders the indictment Afundamentally defective.@ Thus, the trial court had

                                                       2
jurisdiction of the cause. See Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997) (written

document amounts to charging instrument Aif it accuses someone of a crime with enough clarity and

specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is

otherwise defective@); Rodriguez, 799 S.W.2d at 303 (if charging instrument is not fundamentally defective,

trial court has jurisdiction). Appellant did not object to the indictment=s defect until the day of trial, and

therefore he has waived his complaint. Tex. Code Crim. Proc. Ann. art. 1.14(b); Rodriguez, 799 S.W.2d

at 303; Alexander, 820 S.W.2d at 822.

                 Furthermore, although article 21.02 uses mandatory language when it states that an

indictment Ashall@ be signed by the grand jury foreperson, Texas courts have held that Athe absence of [the

foreperson=s] signature did not adversely affect the validity of the indictment.@ Tatmon v. State, 815

S.W.2d 588, 590 (Tex. Crim. App. 1991);1 see Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App.


          1
                 Appellant urges that Tatmon Arests on two false premises@ and contends that this Court
should at a minimum distinguish this cause from Tatmon. Appellant admitted committing trespass but
denied having an intent to commit theft, and he argues that the grand jury might therefore have intended to
indict him not for burglary but for the lesser included offense. The indicted offense in Tatmon was burglary
of a vehicle, and Tatmon does not discuss the defenses raised. See 815 S.W.2d 588, 589-90 (Tex. Crim.
App. 1991); see also Tatmon v. State, 786 S.W.2d 523, 524 (Tex. App.CAustin 1990), aff=d, 815
S.W.2d at 590. Appellant argues that because Tatmon and other such cases Acontained no indication that
the grand jury intended any result other than indicated by the indictment,@ and the grand jury in this case
Acould reasonably reject the felony charge,@ the lack of a signature implicates his substantial rights and
amounts to a substantive defect.

           We are bound to follow the law as it is pronounced by the Texas Court of Criminal Appeals, and
decline to ignore Tatmon. See Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (once Aproposition
of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction
of the particular case, the decision is accepted as a binding precedent by the same court or other courts of
lower rank@). Further, appellant did not argue before the trial court that the grand jury did not intend to
indict him for the felony offense. On appeal he contends that it could have indicted him for the lesser

                                                      3
2000) (signed page of original indictment omitted when indictment amended; held, AThe lack of a signature

is of no consequence in this matter, and is, in fact, not essential to the validity of an indictment.@) (citing

Tatmon, 815 S.W.2d at 589); Peck v. State, 923 S.W.2d 839, 841 (Tex. App.CTyler 1996, no pet.)

(indictment was signed by assistant foreman; held, Athe absence of the foreman=s signature does not

invalidate an indictment that otherwise fulfills legal requirements@) (citing Tatmon, 815 S.W.2d at 590).

                 Appellant has waived his complaint by not making a timely objection and, even if it had

been timely, the lack of a signature does not invalidate the indictment. See Tex. Code Crim. P. Ann. art.

1.14(b); Tatmon, 815 S.W.2d at 590. The trial court, in taking judicial notice that its file contained

documents indicating that the trial court received the indictment from the grand jury, did not err in refusing to

dismiss the indictment. We overrule appellant=s issue on appeal and affirm the conviction.




                                                    ___________________________________________

                                                    Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: April 24, 2003

Do Not Publish




misdemeanor offense, but presents nothing more than the mere possibility as support.


                                                       4
