                                     In The

                               Court of Appeals

                   Ninth District of Texas at Beaumont

                             __________________

                             NO. 09-18-00201-CR
                             __________________

                        JERALD MANGAN, Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 356th District Court
                       Hardin County, Texas
                       Trial Cause No. 23212
__________________________________________________________________

                         MEMORANDUM OPINION

      The trial court convicted Jerald Mangan of the second-degree felony offense

of aggravated assault with a deadly weapon following Mangan’s open plea of guilty

and sentenced him to six years of confinement in the Institutional Division of the

Texas Department of Criminal Justice. In one issue on appeal, Mangan challenges

the trial court’s denial of his motion to dismiss the indictment, contending the

indictment is void by failing to incorporate a proper element required by law and


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“fails to support the validity upon which a conviction could stand.” 1 We affirm the

trial court’s denial of the motion to dismiss the indictment.

                                    Background

      A Hardin County grand jury indicted Mangan as follows:

            THE GRAND JURORS for the County of Hardin, State of
      Texas, duly organized as such at the JULY Term, A.D., 2014 of the
      88th/356th District Court of Hardin County, Texas, . . . upon oath in
      said Court present that JERALD DEAN MANGAN hereafter styled
      the defendant, heretofore on or about AUGUST 22, 2014 Hardin
      County, Texas; did:

           THEN AND THERE INTENTIONALLY AND KNOWINGLY
      THREATEN [COMPLAINANT] WITH IMMINENT BODILY
      INJURY BY POINTING A KNIFE AT THE SAID
      [COMPLAINANT], AND DID THEN AND THERE USE OR
      EXHIBIT A DEADLY WEAPON, TO-WIT: A KNIFE, DURING
      THE COMMISSION OF SAID ASSAULT

      AGAINST THE PEACE AND DIGNITY OF THE STATE OF TEXAS.


      1
          The Appellant uses the terms “indictment” and “information”
interchangeably in his brief. While either may vest the trial court with jurisdiction,
these terms may not be used interchangeably as there is a significant distinction
between them. The record reveals the grand jury returned an indictment in this case.
The Texas Constitution guarantees criminal defendants the right to indictment by a
grand jury for all felony offenses. Riney v. State, 28 S.W.3d 561, 564–65 (Tex. Crim.
App. 2000) (citing Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995); Tex.
Const. art. I, § 10)); see also Tex. Const. art. 5, § 12(b); Tex. Code Crim. Proc. Ann.
arts. 21.01, 21.20 (West 2009) (defining an “indictment” as “[a] written statement
of a grand jury accusing a person therein named of some act or omission which, by
law, is declared to be an offense” and an “information” as “a written statement filed
and presented in behalf of the State by the district or county attorney, charging the
defendant with an offense which may by law be so prosecuted”) (emphasis added).
                                            2
The heading of the indictment indicated the offense was “AGG ASLT W/ DW[,]”

noted the Penal Code section as “22.02,” and “F2” for the degree of the offense.

Mangan filed a motion to dismiss the indictment asserting the identical arguments

he raises on appeal. The trial court held a hearing on the motion to dismiss, which

the court denied. Immediately after the hearing on Mangan’s motion to dismiss, the

trial court heard his open plea of guilty. 2 The trial court ordered a pre-sentence

investigation (PSI) report and ultimately sentenced him to six years of confinement.

      Our review of the record reveals very limited details pertaining to the incident

which led to the charges against Mangan, the majority of which are contained in the

PSI report. According to the PSI report, Mangan went onto the complainant’s

property, produced a knife, and threatened “to cut him open.”

                                Standard of Review

      We employ a hybrid standard of review when examining a trial court’s denial

of a motion to dismiss an indictment: determinations of historical fact are reviewed

for an abuse of discretion, while the application of those facts to the law and

questions of law are reviewed de novo.3 Farrakhan v. State, 263 S.W.3d 124, 130–

31 (Tex. App.—Houston [1st Dist.] 2006, pet. granted) aff’d 247 S.W.3d 720 (Tex.



      2
          Mangan pleaded guilty to two separate offenses during the same hearing.
      3
          In his brief, Mangan contends the trial court “abused his discretion.”
                                           3
Crim. App. 2008) (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.

2004)). How much deference appellate courts give a trial court’s ruling depends

upon which “judicial actor” is better situated to decide the issue. Moff, 154 S.W.3d

at 601 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Because

this case does not involve an issue of historical fact, we conduct a de novo review.

See id.

                                       Analysis

      Mangan asserts the indictment here is void in that it fails to specify that the

manner in which Mangan used the knife rendered it capable of causing serious bodily

harm, and accordingly, constitutes “at most” a Class A misdemeanor. Assuming

without deciding that the wording of this indictment only charges a misdemeanor, it

does not render the indictment void.

      To meet the constitutional definition of “indictment” and vest the court with

personal and subject matter jurisdiction, the indictment must: (1) charge a person;

and (2) charge the commission of an offense. Jenkins v. State, No. PD-0086-18, 2018

WL 6332219, at *3 (Tex. Crim. App. Dec. 5, 2018) (citing Tex. Const. art. V, §

12(b)). Even an indictment with a substantive defect can still qualify as one that vests

the trial court with jurisdiction. Id. (citing Studer v. State, 799 S.W.2d 263, 271 (Tex.

Crim. App. 1990)). An indictment is sufficient if it

                                           4
        charges the commission of the offense in ordinary and concise language
        in such a manner as to enable a person of common understanding to
        know what is meant, and with that degree of certainty that will give the
        defendant notice of the particular offense with which he is charged, and
        enable the court, on conviction, to pronounce the proper judgment[.]

Tex. Code Crim. Proc. Ann. art. 21.11 (West 2009).

        Courts must look to the indictment as a whole, not just its specific formal

requisites to assess its validity. See Jenkins, 2018 WL 6332219, at *4; Kirkpatrick

v. State, 279 S.W.3d 324, 328 (Tex. Crim. App. 2009); Teal v. State, 230 S.W.3d

172, 180 (Tex. Crim. App. 2007). An indictment, as a whole, which is “sufficient to

vest the district court with subject-matter jurisdiction and give the defendant notice

that the State intended to prosecute him for a felony offense” will stand. See Jenkins,

2018 WL 6332219, at *4 (quoting Teal, 230 S.W.3d at 182). In this analysis, the

courts may look to the heading of the charging instrument and whether the

indictment was returned in a felony court. See id. (citing Kirkpatrick, 279 S.W.3d at

329).

        In Teal, the Court of Criminal Appeals dealt with a defective indictment that

failed to include one of two elements required for the offense to qualify as felony

and ultimately held that “the indictment, as a whole, was sufficient to vest the district

court with subject-matter jurisdiction and give the defendant notice that the State

intended to prosecute him for a felony offense.” See 230 S.W.3d at 182. In

                                           5
Kirkpatrick, the appellant argued that the indictment, as worded, charged a

misdemeanor rather than a felony. See 279 S.W.3d at 325. This is the same argument

advanced by Mangan in this appeal. The Court of Criminal Appeals held that while

the indictment properly charged a misdemeanor and lacked a necessary element to

charge a felony, the instrument, as a whole, charged a felony offense. Id. at 329. In

its analysis, the Court in Kirkpatrick relied on two other items in the charging

instrument to support its conclusion. See id. First, the Court explained that “the

indictment’s return in a felony court put appellant on notice that the charging of the

felony offense was intended.” Id.; see also Jenkins, 2018 WL 6332219, at *4.

Second, the Kirkpatrick Court pointed to the heading of the charging instrument and

noted “the face of each indictment contains a heading: ‘Indictment–Tampering with

a Governmental Record 3rd Degree Felony,—TPC 37.10(a)–Code 73990275.’” See

279 S.W.3d at 329; see also Jenkins, 2018 WL 6332219, at *4. The Court reasoned

that this made the Penal Code section “easily ascertainable” and clearly indicated

the State’s intent to charge a felony. See Kirkpatrick, 279 S.W.3d at 329; see also

Jenkins, 2018 WL 6332219, at *4.

      A person commits an assault if he “intentionally or knowingly threatens

another with imminent bodily injury[.]” Tex. Penal Code Ann. § 22.01(a)(2) (West

2019) A person commits an aggravated assault if he commits an assault as defined

                                          6
by Texas Penal Code section 22.01 and “uses or exhibits a deadly weapon during

the commission of the assault.” Id. § 22.02(a)(2) (West 2019). The offense of

aggravated assault is a second-degree felony. Id. § 22.02(b) (West 2019). A “deadly

weapon” is defined as “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” Tex. Penal Code Ann. §

1.07(a)(17)(B) (West Supp. 2018).

      Mangan complains that because a knife is not a deadly weapon per se and the

indictment does not specify the manner of use, it does not show it could be used to

inflict serious bodily injury. Thus, the indictment does not charge a felony and is

void. Despite his contention, the indictment alleges Mangan committed an assault as

defined in Texas Penal Code section 22.01(a)(2) and used a deadly weapon while

doing so. See id. §§ 22.01(a)(2), 22.02(a)(2). Further, the indictment specifies that

Mangan “pointed” the knife at the Complainant and that he threatened the

Complainant with it.

      Looking at the indictment as a whole, we observe that it was returned to the

Hardin County District Court, which has jurisdiction over felony offenses. See

Jenkins, 2018 WL 6332219, at *4; Kirkpatrick, 279 S.W.3d at 329. Additionally, the

heading stated “OFFENSE: AGG ASLT W/ DW” and referenced 22.02, the Penal

Code section governing aggravated assault with a deadly weapon, and the “F2”

                                         7
notation is commonly interpreted as a second-degree felony. The fact that the penal

code section was easily ascertainable, coupled with the notation the offense was a

second-degree felony, “clearly indicated that the [S]tate intended to charge a felony

offense and the district court had subject matter jurisdiction.” See Jenkins, 2018 WL

6332219, at *4; Kirkpatrick, 279 S.W.3d at 329. We overrule Mangan’s sole issue

on appeal.

                                    Conclusion

      The indictment in this case was sufficient to put Mangan on notice the State

charged him with a felony and to vest the district court with jurisdiction. Therefore,

the indictment is not void. We affirm the trial court’s judgment.

      AFFIRMED.



                                                    _________________________
                                                         CHARLES KREGER
                                                              Justice

Submitted on July 22, 2019
Opinion Delivered September 11, 2019
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




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