









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 1051-03


Rafael Sanchez, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE DALLAS COURT OF APPEALS

DALLAS COUNTY



 Meyers, J., delivered the opinion of the Court, in which Keller, P.J., and
Johnson, Holcomb, and Cochran, JJ., joined.  Keasler, and Hervey, JJ., concurred. 
Price, J., filed a dissenting opinion.  Womack, J., concurred without opinion.

O P I N I O N


	Appellee was charged in a Dallas municipal court with a consumer affairs violation. 
On the day the case was set for trial, he made an oral motion to quash the complaint.  The
municipal court granted Appellee's motion to quash in an unrecorded hearing.  Arguing that
the motion was untimely according to Texas Code of Criminal
				 Procedure article (1) 45.019(f), the State appealed to the County
Criminal Court of Appeals, which affirmed the judgment of the municipal court.  The State
then appealed to the Dallas Court of Appeals, which in an en banc published opinion
affirmed the judgment of the County Court of Criminal Appeals.  Four judges dissented to
the majority's opinion.  The Court of Appeals overruled the State's motion for rehearing,
and the State subsequently filed this petition for discretionary review.
	The issue in this case is one that has not been examined directly by this Court. 
Under article 45.019(f) of the Texas Code of Criminal Procedure, what does the phrase
"before the date on which the trial on the merits commences" mean?  Tex. Code Crim.
Proc. Ann. art. 45.019(f) (Vernon 2002).  Is the phrase to be interpreted by its literal
meaning, in which case a defendant must object before the date on which the trial starts, or
should the phrase mean, rather, that the defendant must object before the date on which the
case is set for trial?
	The overall goal when interpreting a statute is to give effect to the collective intent
or purpose of the Legislature that enacted the statute.  Boykin v. State, 818 S.W.2d
782,785 (Tex. Crim. App. 1991).  To do so, one must focus on the literal text of the statute
and try to discern the fair, objective meaning of that text.  Id.  If the meaning of the text is
clear and unambiguous, the court should give effect to that meaning.  Id.  If however, the
statute is ambiguous or the plain meaning of the statute would lead to absurd consequences
that the Legislature could not possibly have intended, extratextual sources may "then and
only then, out of absolute necessity," be consulted.  Id.
	The first step is therefore to discern the plain meaning of the statute according to
the literal text.  Boykin, 818 S.W.2d at 785.  Chapter 45 of the Texas Code of Criminal
Procedure, which governs criminal actions in municipal and justice courts, states (in
relevant part):
	If the defendant does not object to a defect, error, or irregularity of form or substance
in a charging instrument before the date on which the trial on the merits commences,
the defendant waives and forfeits the right to object to the defect, error, or irregularity.
Tex. Code Crim. Proc. Ann. art. 45.019(f) (Vernon 2002) (emphasis added). The Court of
Appeals used the dictionary to find that "commence" means "to begin, start" or "to initiate
formally by performing the first act."  State v. Sanchez, No. 05-02-00727-CR, (Tex. App.-
Dallas, Apr. 10, 2003) at *2, citing Webster's Third New Int'l Dictionary 456 (1981). 
The court thus determined that, under the plain meaning of the statute, the defendant must
object before the date on which trial begins or starts.  Id.  The court did not discuss when
"trial on the merits" commences, but held that because the municipal court granted
Appellee's motion to quash, trial did not commence on that day, and Appellee's motion was
therefore timely.
	The State argues that the Court of Appeals: 1) failed to consider instructive authority
and 2) interpreted article 45.019(f) in a manner that leads to absurd consequences.  The
State urges that although the literal text of the statute would mean what the court of appeals
claims, the results are so absurd that such a meaning could not have been intended by the
Legislature.  Rather, the State insists that the phrase "before the date on which the trial on
the merits commences" should be construed to mean that the defendant must make a
motion to quash before the date on which the case is set or scheduled for trial.  Under the
State's interpretation, then, Appellee's motion to quash, on the date the case was set for
trial, was untimely.
Case Law
	The State concedes that this Court has never before determined the meaning of
"before the date on which the trial on the merits commences" in article 45.019(f), but cites
to cases which have analyzed identical language in other Texas statutes.  Because the
language is the same, the State uses the cases for instructive purposes.  In one instance, this
Court interpreted the exact same language contained in article 1.14(b) of the Texas Code of
Criminal Procedure. (2) See State v. Turner, 898 S.W.2d 303 (Tex. Crim. App. 1995),
overruled on other grounds, Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998). 
In Turner, on "the day of trial," the defendant filed a motion to dismiss the indictment,
claiming it was barred by the statute of limitations.  Id. at 306.  The trial court granted the
defendant's motion and, as a result, the case did not go to trial that day.  The court of
appeals affirmed.  This Court reversed, stating that "[b]y waiting until the day of  trial" to
object to the indictment, the defendant had waived his right to complain and the motion to
dismiss the indictment was untimely.  Id. (emphasis added).
	The State insists that since the Court in Turner declares the defendant's motion
untimely because it was made on "the day of trial," and since the motion was made on the
date the case was set for trial but before anything had occurred to "begin" the trial, the
language in the statute must mean that the motion needs to be filed before the date on which
the case is set for trial.  We disagree with the State's interpretation of Turner.  In an
important footnote, the majority in Turner responded to Judge Baird's dissent which asked
the majority to determine when "trial on the merits commences."  898 S.W.2d at 310
(Baird, J. dissenting) ("Because the Legislature did not define when 'trial on the merits
commences,' it is  incumbent upon us to determine what constitutes trial on the merits in
determining whether appellee's motion was timely").  In that footnote, the majority pointed
out that neither of the parties raised the issue of when "trial on the merits commences," and
the Court explicitly stated that it "[does] not address issues that are not addressed by the
Court of Appeals or raised by the parties."  Id. at 306, n.4.  Furthermore, the majority stated
that the "Court of Appeals assumed that the day of trial was the date on which appellee's
motion to dismiss was filed [and that] [n]either party dispute[d] the Court of Appeal's
assumption as to the date of trial or contend[ed] that this was not 'the date on which the
trial commenced' for purposes of article 1.14(b)."  Id. (emphasis added) (citations
omitted).  Thus, we decline to say the Court was implying that a motion to quash must be
made before the date the cause is set for trial.  If the Court was indeed deciding when "trial
on the merits" commences, why would the Court respond in such a way to a dissent that
alleged it had not answered the important issue?  If any type of conclusion can be drawn
from the footnote, we are inclined to believe that the Court was specifically pointing out
that it did not decide the issue of "when trial on the merits commences" because the issue
was not contested or raised.  Therefore, Turner is unhelpful in our decision today.
	The Court of Appeals' dissent cites to another case which it deems instructive.  See
Sanchez, slip. op. at *6 (James, J., dissenting), citing Sodipo v. State, 815 S.W.2d 551,
552 (Tex. Crim. App. 1990), opinion on rehearing at 1991 Tex. Crim. App. LEXIS 126
(June 12, 1991).  In Sodipo, on "the day of trial," but prior to jury selection, the State
moved to amend the indictment under article 28.10(a) of the Texas Code of Criminal
Procedure. (3) 815 S.W.2d at 552.  The trial court allowed the amendment and proceeded
with trial that day.  Id. at 553.  On rehearing, this Court noted that "neither Section (a) or (b)
[of article 28.10] addresses an indictment amendment on the date of trial prior to the
commencement of trial on the merits" and concluded that "the State was not permitted to
amend the . . . indictment on the date of trial prior to the trial on the merits commencing." 
State v. Sodipo, 1991 Tex. Crim. App. LEXIS 126 at *2,4 (Tex. Crim. App. 1991).  Justice
James, in his dissenting opinion in Sanchez, attempts to convince us that by holding that the
trial court should have denied the motion "when faced with [it]," the Sodipo Court of
Appeals was saying that the motion must have been filed before the date of trial, whether or
not the trial actually commenced on that day.  Sanchez, slip. op. at *6.  In other words,
Justice James insists that the Court considered the motion to be untimely even before the
trial court had decided to commence the trial on that day.  He further declares that
impaneling the jury was not "core" to the Court's decision.  Id.  But the Court's entire
discussion pertains to a motion being made "on the date of trial prior to the
commencement of trial on the merits."  State v. Sodipo, 1991 Tex. Crim. App. LEXIS 126
at *1 (emphasis added).  That suggests two things: 1) the Court did not equate the date set
for trial with commencement of trial, and 2)  the Court did not interpret the phrase "before
the date on which the trial on the merits commences" in article 28.10 to mean that the
motion must be filed before the day on which the case was set for trial, as the State
suggests.  If the Court had construed the phrase in such a manner, then why would it
articulate the issue as determining the timeliness of a motion "on the date of trial prior to
the commencement of trial on the merits[?]"  Id. at *3 (emphasis added).  And, Sodipo is
distinguishable in another way:  There, after the motion was made, but on the same day, the
jury was impaneled and the trial actually commenced, unlike in the case at hand.  815
S.W.2d at 553; see Sanchez, slip. op. at *4 (there is no indication, and the State did not
argue, that any steps were taken to commence trial on the merits).
Absurd Results
	The State maintains that applying the statute's plain meaning will lead to absurd
results the Legislature could not possible have intended.  First, the State comments that
applying the statute's literal text causes the timeliness of a motion to quash to be
determined by subsequent events:  If the court grants the motion to quash, the motion is
timely because the trial will start at a later date; but, if the court denies the motion to quash
and trial commences on that day, then the defendant's motion is untimely (after the fact)
because it will not have been made on the day before trial commenced.  The State is
correct.  But, as Appellee notes, a case may be set for trial numerous times.  As such, under
the State's proposed interpretation, if the case is re-set, the defendant is likewise uncertain
as to when will be the particular day before which he must object for the motion to be
timely.  Therefore, the defendant faces an amount of uncertainty in either situation.  Using
the plain meaning of the statute, the defendant would still be aware that if the case goes to
trial on the set date, then a motion on that date would be too late.  Hence, he is on notice
that he is taking a risk by objecting on that day.  We decline to say that the Legislature
could not have intended such a meaning.
	Second, the State argues that applying the plain meaning of the statute encourages
sandbagging, giving the State no notice and no opportunity to correct the error before trial. 
The State cites Van Dusen v. State, 744 S.W.2d 279 (Tex. App.- Dallas 1987), in support
of this concern.  In Van Dusen, the defendant complained of the information for the first
time on the day of trial. (4)  The court of appeals analyzed article 1.14(b) of the Texas Code of
Criminal Procedure and determined that the purpose of the statute was to eliminate
sandbagging and to allow the State to correct defective indictments before a cause
commences in the trial court.  Id. at 280.  But as the Court of Appeals and Appellee both
note here, the State is not ambushed if the defendant chooses to wait until the day the case
is set for trial to make his motion to quash.  See Sanchez, slip. op. at *3.  Instead, the State
has two options if the motion is heard and granted.  It can:  1) appeal the ruling under article
44.01(a)(1) of the Texas Code of Criminal Procedure, or 2) refile the complaint.  Id.  In
effect, the judge has the ability to "ensure the complaint is not defective prior to trial."  Id. 
These two options protect against the defendant sandbagging the State.
	The State would like us to hold that the Legislature could not have intended the
phrase "trial on the merits" to be applied literally because such an interpretation would
cause absurd results.  Instead, the State wants us to conclude that even though the
Legislature used the particular phrase "trial on the merits," the only reasonable
interpretation of the statute would be to add the words set or scheduled, so that the statute
would essentially read, " . . . on the day before the trial on the merits is set to commence." 
We cannot agree with the State.  The phrase "trial on the merits" is a term of art that
specifies a "distinct phase late in a criminal proceeding."  See Tigner v. State, 928 S.W.2d
540, 544 (Tex. Crim. App. 1996); see also Turner, 898 S.W.2d at 310 (Baird, J.,
dissenting) ('[T]he phrase 'trial on the merits' designates the stage of trial where the
substantive facts of the case are presented to the factfinder").  We have found no persuasive
precedent that equates the phrase "trial on the merits" with the date a case is set for trial in
this context.  But we have found many court of appeals cases standing for the proposition
that "trial on the merits" begins when the jury is impaneled and sworn.  See Hinojosa v.
State, 875 S.W.2d 339, 342 (Tex. App.- Corpus Christi 1994, no pet.) ("We hold that [, for
purposes of article 28.10,] trial on the merits commences at the time that the jury is
impaneled and sworn, i.e., at the same time that jeopardy attaches"); Westfall v. State, 970
S.W.2d 590, 592 (Tex. App.- Waco 1998, pet. ref'd) (For purposes of article 28.10, trial
on the merits commences at the same time jeopardy attaches- when the jury is impaneled
and sworn); Thornton v. State, 957 S.W.2d 153, 156 (Tex. App.- Ft. Worth 1997, aff'd,
986 S.W.2d 615 (Tex. Crim. App. 1999)) (For purposes of Texas Penal Code article 3.02,
trial begins when jeopardy attaches, in other words, when the jury is impaneled and sworn);
Carpenter v. State, 952 S.W.2d 1, 16 (Tex. App.- San Antonio 1997) (For purposes of
article 28.10, "trial 'commences' at the same point that double jeopardy attaches- that is,
on the day the jury is sworn"); Dixon v. State, 932 S.W.2d 567, (Tex. App.- Tyler 1995, no
pet.) (Regarding article 28.10, "trial on the merits commences" when the jury is impaneled
and sworn); Garcia v. State, 928 S.W.2d 666 (Tex. App.- Corpus Christi 1996, no pet.)
(Trial on the merits commences when the jury is selected and sworn).  
	In the case Sanders v. State, 978 S.W.2d 597 (Tex. App.- Tyler 1997, pet. ref'd),
the State twice moved to amend the indictment on the date the case was set for trial
pursuant to article 28.10.  Id. at 598.  The trial court granted both of the State's motions. 
Appellant requested and received a ten-day continuance, and a jury was not selected until
after that ten-day period.  The court held that trial on the merits therefore had not
commenced on that date.  Id.  In Carpenter, another article 28.10 case, the State moved to
amend the indictment on the day that trial was "scheduled to start," even though the case did
not go to trial that day.  The defendant wanted the court to construe "date" in article 28.10
to mean "the day the trial is scheduled to start," as the State asks us to do here.  Id. at 16. 
The court in Carpenter, however, was "not persuaded," and we are similarly not persuaded
today.  Id. at 16-17.
	In Turner, the Court stated that article 1.14(b) "means what it says."  898 S.W.2d at
306.  We likewise agree that article 45.019(f) means what it says.  If the Legislature wanted
the statute to mean that a defendant must make a motion to quash before the date on which
the cause was set for trial, it could simply have said so, as it did in articles 28.01 and 46.03
of the Texas Code of Criminal Procedure. (5)  Instead, the Legislature chose a term of art tied
to a specific meaning.  And although some negative implications may result from the
application of the statute's plain text, we cannot say that the results are so absurd that the
Legislature could not have intended it to be interpreted as such.  Consequently, we disagree
with the State's suggestion that "before the date on which trial on the merits commences"
should mean, essentially, "before the date on which the case is set for trial."  Article
45.019(f) means what it says, that a party can move to quash a charging instrument at any
time prior to the day on which the trial on the merits commences. (6)  We therefore affirm the
Court of Appeals.

							Meyers, J.
Delivered: June 30, 2004
Publish
1.   Unless otherwise noted, all future references to Articles refer to the Texas Code of Criminal
Procedure.
2.  Article 1.14(b) states, in relevant part: "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 . . . ."
Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003) (emphasis added).  Although article
1.14(b) refers to an "indictment or information" (instead of a "charging instrument" in article 45.019(f)),
the distinction is irrelevant.  See Sanchez, slip. op. at *3, n.5 (James, J., dissenting).
3.   Article 28.10 states, in relevant part: ". . . a matter of form or substance may be amended at
any time before the date the trial on the merits commences."  Tex. Code Crim. Proc. Ann. art.
28.10 (Vernon 2002) (emphasis added).
4.  It is worth noting that the State had announced "ready" on January 27, 1986, but the case
"did not come to be heard" until February 13, 1987.  Van Dusen, 744 S.W.2d 279.  The court did not
distinguish between the date set for trial and the date trial commenced when it said the motion was
made on "the day of trial." But the court did cite to Aylor v. State, 727 S.W.2d 727 (Tex. App.-
Austin 1987, no writ), saying that a defendant waives his right to object to a defective indictment if it is
"not objected to before the date on which the trial on the merits commences."  744 S.W.2d at 280
(citing Aylor, 727 S.W2d at 730). Clearly then, the court did not consider the announcement of
"ready" on January 27, presumably the date the case was set for trial, as the commencement of the
trial on the merits.
5.  Article 28.01 says that a court can set a criminal case for a pre-trial hearing "before it is set
for trial upon its merits."  Tex. Code Crim. Proc. Ann. art. 28.01(1) (Vernon 2002) (emphasis
added).  Article 46.03 states that a defendant must file a notice of intent to offer evidence of the insanity
defense "at least 10 days prior to the date the case is set for trial."  Id. at. art. 46.03(2)(a)(1)
(emphasis added).
6.  This opinion is not intended to indicate at exactly which point trial on the merits commences
for the purposes of this statute.  Rather, the opinion merely expresses that trial on the merits, under
Article 45.019(f), does not necessarily commence on the date the case is set for trial.
