Affirmed and Memorandum Opinion filed July 9, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00424-CR
                              NO. 14-12-00425-CR


                      GARY WAYNE BRYAN, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 356th District Court
                           Hardin County, Texas
                    Trial Court Cause Nos. 19201, 19537

                  MEMORANDUM OPINION

      Appellant, Gary Wayne Bryan, appeals the trial court’s adjudication of guilt
for two offenses. In one case, appellant was indicted for attempted burglary of a
habitation. In the other case, appellant waived his right to an indictment and was
charged by information with burglary of a habitation. Pursuant to a plea bargain,
appellant pleaded “guilty” to each offense. The trial court placed him on ten years’
deferred-adjudication community supervision for each offense.            The State
subsequently moved to adjudicate guilt for each offense on the ground appellant
violated multiple conditions of his community supervision. Appellant pleaded
“true” to one allegation in each motion, and the State abandoned the remaining
allegations. The trial court adjudicated appellant’s guilt for each offense. The trial
court sentenced appellant to ten years’ confinement for attempted burglary of a
habitation and thirty years’ confinement for burglary of a habitation—the
sentences to run concurrently. We affirm.
                                      ANALYSIS

      Appellant has filed a separate appellate brief relative to each offense. In
both cases, appellant presents a single issue, contending the trial court lacked
jurisdiction to adjudicate guilt because the charging instruments to which he
pleaded guilty were, respectively, void and “fatally defective.” The State contends
the charging instruments were sufficient to invoke the trial court’s jurisdiction and
appellant waived his right to complain about alleged defects in the instruments by
failing to object before pleading guilty. The State also contends appellant was
required to raise his complaints on appeal, if any, from the trial court’s initial order
imposing community supervision and may not now raise them on appeal from the
trial court’s adjudication of guilt. We agree with both of the State’s contentions.

      Before 1985, failure to object to a defect of form in a charging instrument
waived error on appeal, but failure to object to a defect of substance did not waive
error on appeal. Teal v. State, 230 S.W.3d 172, 175 (Tex. Crim. App. 2007). The
reasoning was that a charging instrument which contained a substantive defect was
“void” and thus insufficient to invoke the court’s jurisdiction. Id.

      In 1985, the Texas Constitution was amended to provide,

      An indictment is a written instrument presented to a court by a grand
      jury charging a person with the commission of an offense. An

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      information is a written instrument presented to a court by an attorney
      for the State charging a person with the commission of an offense.
      The practice and procedures relating to the use of indictments and
      informations, including their contents, amendment, sufficiency, and
      requisites, are as provided by law. The presentment of an indictment
      or information to a court invests the court with jurisdiction of the
      cause.
Tex. Const. art. V, § 12(b); see Teal, 230 S.W.3d at 176. In conjunction with the
constitutional amendment, the Legislature amended Texas Code of Criminal
Procedure article 1.14(b) to provide, in pertinent 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 to the defect, error, or irregularity and he may not raise
      the objection on appeal or in any other postconviction proceeding.
Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005); see Teal, 230 S.W.3d at 176.

      In light of the constitutional and statutory amendments, an indictment or
information “charging a person with committing an offense, once presented,
invoke[s] the jurisdiction of the trial court and jurisdiction is no longer contingent
on whether the indictment contains defects of form or substance.”           Teal, 230
S.W.3d at 177. If a charging instrument meets the constitutional requirements, a
defendant who fails to object pretrial to a defect of form or substance in the
instrument waives the right to complain about the defect in any post-conviction
proceeding. See Tex. Code Crim. Proc. Ann. art. 1.14(b); Teal, 230 S.W.3d at 177.

      Also relevant to this appeal is the authority holding that a defendant placed
on deferred-adjudication community supervision may raise issues relating to the
original plea proceeding only on appeal from the order imposing community
supervision and may not raise the issues on appeal from the revocation of
community supervision. See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App.


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2001); Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). There is
a “void judgment” exception to this rule. See Nix, 65 S.W.3d at 667. An error or
defect at the original plea proceeding that renders the subsequent judgment of
conviction void may be raised for the first time after adjudication and sentencing.
Id. at 667–68. The rationale is that, if the original judgment imposing probation
was void, the trial court would have no authority to revoke probation because there
is nothing to revoke. Id. One of the rare situations in which the subsequent
judgment of conviction is void is when the purported charging instrument does not
satisfy the constitutional requisites of a charging instrument and thus the trial court
has no jurisdiction over the defendant. Id. at 668.

      Consequently, if the alleged defects in the indictments do not show a lack of
jurisdiction, we must conclude appellant waived the complaints by not raising
them at an earlier point. See Tex. Code Crim. Proc. Ann. art. 1.14(b); Teal, 230
S.W.3d at 177.     To make this determination, we will address separately the
charging instrument for each offense because appellant’s complaint is different for
each instrument.

      Attempted Burglary of a Habitation

      Appellant suggests the indictment for attempted burglary of a habitation was
void because it did not allege an offense. When evaluating whether an indictment
alleges an offense, the critical determination is whether the trial court and the
defendant can identify what penal-code provision is alleged and whether the
provision vests the trial court with jurisdiction. Kirkpatrick v. State, 279 S.W.3d
324, 328 (Tex. Crim. App. 2009) (citing Teal, 230 S.W.3d at 180). If that test is
satisfied, the instrument charges the commission of an offense, even if the
instrument fails to allege an element of the offense or contains additional
information indicating the defendant is innocent. See Teal, 230 S.W.3d at 181–82.

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We consider the indictment as a whole, not just its specific formal requisites, when
determining whether it alleges an offense. Kirkpatrick, 279 S.W.3d at 328 (citing
Teal, 230 S.W.3d at 180).

      A person commits burglary “if, without the effective consent of the owner,
the person . . . enters a habitation . . . with intent to commit a felony . . . .” Tex.
Penal Code Ann. § 30.02(a)(1) (West 2011). With respect to criminal attempt, “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.” Id. § 15.01(a) (West 2011).

      The following is written on the caption of the indictment:

                     OFFENSE: Attempted Burg. Habitation
                         30.02    3rd degree

The body of the indictment alleged appellant:

      heretofore on or about September 16, 2007, in Hardin County,
      Texas; did;

            then and there, with the specific intent to commit the offense of
      murder of Christal Bryan do an act, to-wit: went to the residence
      armed with a handgun, which amounted to more than mere
      preparation that tended but failed to effect the commission of the
      offense intended. . . .

      Appellant complains the instrument did not allege an offense, or at least a
felony offense, because it did not identify the “manner and means of how the
Appellant committed the burglary, which is by entering a habitation without the
effective consent of the owner.”       However, appellant was not charged with
burglary of a habitation. Rather, appellant was charged with attempted burglary of
a habitation—hence, the allegation appellant “went to the residence . . . which
amounted to more than mere preparation that tended but failed to effect the
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commission of the offense intended.”         Assuming, without deciding, lack of
language more specifically alleging appellant “attempted to enter the residence
without the effective consent of the owner” (or similar) constituted a defect, the
defect was merely an inadequate description of an element of the offense. The
instrument clearly alleged attempted burglary of a habitation, despite any such
defect, based on the caption and the allegations in the body of the instrument.
Moreover, any such defect did not preclude the instrument from alleging a felony
because attempted burglary of a habitation is necessarily a second or third degree
felony and the caption stated “3rd degree.” See id. § 30.02(c)–(d) (providing
burglary of a habitation is a first or second degree felony, depending on
circumstances of the offense); § 15.01(d) (providing a criminal attempt offense is
one category lower than the offense attempted). Consequently, the trial court and
appellant could determine the instrument charged the third degree felony offense of
attempted burglary of a habitation—an offense within the trial court’s jurisdiction.
Accordingly, the instrument constituted an indictment under the constitutional
requisites.

      Burglary of a Habitation
      Appellant does not argue the information for burglary of a habitation failed
to charge him with an offense.        Instead, appellant’s sole complaint is the
instrument was “fatally defective” because the State omitted the phrase “Against
the peace and dignity of the State” at the conclusion of the instrument. Appellant
cites the former version of Article V, Section 12 of the Texas Constitution, which
prescribed the contents of an indictment or information, including the above-cited
phrase. See Tex. Const. art. V, § 12(b) (amended 1985). Appellant also cites pre-
1985-amendment authority holding omission of the phrase rendered a charging
instrument “fatally defective” and mandated reversal of a conviction even when the


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defendant failed to object in the trial court. See, e.,g., Ex parte Warnell, 606
S.W.2d 923, 923 (Tex. Crim. App. 1980); Saenz v. State, 670 S.W.2d 667, 669
(Tex. App.—Corpus Christi 1984, pet. ref’d).
      However, under the 1985 amendment, the constitutional provision no longer
prescribes the contents of an indictment or information. See Tex. Const. art. V, §
12(b). Instead, as discussed above, the current provision requires only that the
instrument “charg[e] a person with the commission of an offense” to invoke the
trial court’s jurisdiction and relegates the requisite contents of such instrument to
statute. See id. The requirement that an information include the above-cited
phrase is now prescribed by statute. See Tex. Code Crim. Proc. Ann. art. 21.21
(West 2009). Therefore, in light of the 1985 amendment, omission of that phrase
in the present case was merely a substantive defect which did not preclude the
instrument from constituting an information under the constitutional requisites.

      Because the charging instruments satisfied the constitutional requisites and
were not void, the trial court had jurisdiction to adjudicate guilt for each offense.
The State correctly argues that appellant waived his right to complain about the
alleged defects in the indictments in any post-conviction proceeding by failing to
object before pleading guilty. See id. 1.14(b); Teal, 230 S.W.3d at 177. Moreover,
irrespective of whether appellant objected, he was required to raise his complaints
on appeal, if any, from the initial order imposing deferred-adjudication community
supervision and may not raise them on appeal from the trial court’s adjudication of
guilt. See Nix, 65 S.W.3d at 667–68; Manuel, 994 S.W.2d at 661–62.




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      Accordingly, we overrule appellant’s sole issue in each case and affirm both
of the trial court’s judgments adjudicating guilt.




                                        /s/       John Donovan
                                                  Justice

Panel consists of Justices Frost, Brown, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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