
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-99-00437-CR





The State of Texas, Appellant


v.


David Chardin, Appellee





FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY

NO. 522,511, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING






	The State appeals from the trial court's order dismissing an information.  The
information alleged that appellee, as a second offender, operated a motor vehicle in a public place
while intoxicated, a misdemeanor offense.  See Tex. Penal Code Ann. §§ 49.04, .09 (West Supp.
2000).  However, the information included an additional paragraph alleging that "as a direct result
of the defendant committing the said offense, another person, Arthur Pulido, suffered serious
bodily injury."  Appellant argues that this additional paragraph resulted in the allegation of a
felony offense. (1) See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen.
Laws 3586, 3697 (Tex. Penal Code Ann. § 49.07(a)(1)(C), since amended).
	Appellant filed a motion to dismiss the information because the county court did
not have felony jurisdiction and only had jurisdiction to dismiss the information.  Appellant relied
primarily on Garcia v. Dial, 596 S.W.2d 524, 527-28 (Tex. Crim. App. 1980), a case that
predated the Texas Constitutional amendment adding Article V, section 12(b).  The trial court
agreed with appellee, refused to allow the State to abandon the paragraph of the information that
it was claimed  raised the offense to a felony, and dismissed the information.
	In its appeal, the State contends the trial court erred and abused its discretion in
dismissing the information and in not allowing the State to abandon the serious bodily injury
allegation so that the information would allege only a misdemeanor.  When the motion to dismiss
was granted, the statute of limitations prevented the State from refiling the information.  See State
v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992).
	In November 1985, the Texas Constitution was amended to provide:

(b)  An indictment is a written instrument presented to a court by a grand jury
charging a person with the commission of an offense.  An 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).
	Prior to 1985 the Court of Criminal Appeals consistently held that substantive
defects in the charging instrument failed to vest the trial court with jurisdiction.  See Cook v.
State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995); Studer v. State, 799 S.W.2d 263, 267 (Tex.
Crim. App. 1990).  Article V, section 12(b), as interpreted in Studer, changed this.  "From
Studer it follows . . . a substantively defective indictment [information] is sufficient to vest the
trial court with jurisdiction."  Cook, 902 S.W.2d at 477; see also Castro v. State, 970 S.W.2d
699, 700 (Tex. App.--Corpus Christi 1998, pet. ref'd); State v. Smith, 957 S.W.2d 163, 164-65
(Tex. App.--Austin 1997, no pet.).
	The Court of Criminal Appeals has cautioned courts about reliance on cases
predating the 1985 amendment to the Texas Constitution  and has admonished courts to appreciate 
that the amendment now provides in explicit terms that mere presentment of an information to the
trial court vests that court with jurisdiction.  See Aguilar v. State, 846 S.W.2d 318, 320 (Tex.
Crim. App. 1993).
	Since the 1985 constitutional amendment, appellate courts have held that, absent
a timely objection, trial courts have jurisdiction to try causes despite substantively defective
charging instruments that failed to allege an offense by omitting an essential element of the offense
charged.  See, e.g., Ex parte Morris, 800 S.W.2d 225, 227 (Tex. Crim. App. 1990); Rodriguez
v. State, 799 S.W.2d 301, 303 (Tex. Crim. App. 1990); Studer v. State, 799 S.W.2d at 272.
	The Court of Criminal Appeals has held that a trial court had jurisdiction when the
charging instrument, in addition to charging an offense, also included allegations that, if true, no
offense was committed.  See Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). 
"[T]o comprise an indictment [or information] within the meaning provided by the constitution,
an instrument must charge:  (1) a person, (2) with the commission of an offense."  Id. at 549
(quoting Cook, 902 S.W.2d at 477).
	In his brief, appellee faults the State's reasoning and argument that the county court
had jurisdiction of this cause by citing the following opinion:

[A] literal reading of article V, § 12(b) could lead to absurd results.  If the mere
presentment of an indictment could vest jurisdiction in any court, then . . . a
capital murder could be properly tried in a county court.  I cannot believe that such
a result was the legislature's or the voter's intent.


DeDonato v. State, 819 S.W.2d 164, 168 (Tex. Crim. App. 1991) (Maloney, J., concurring). 
The absurdity suggested in the DeDonato concurring opinion is not before us for a decision.  An
accused cannot be tried and convicted for a felony except on indictment of a grand jury unless the
accused waives that right.  See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. arts. 1.05,
1.141 (West 1977).  Appellant was not charged by indictment nor did he waive that right. 
Therefore, based on the charging instrument in this case, appellant could not be tried and
convicted of a felony offense in any court.
	Appellant was charged by information filed by the county attorney.  See Tex. Code
Crim. Proc. Ann. art. 21.20 (West 1989).  Although flawed by the additional serious bodily
injury allegation, the information alleged a misdemeanor offense of which the county court had
jurisdiction.  The information charged a person with the commission of an offense.  We hold that
this information vested the trial court with jurisdiction to try the misdemeanor charged and that
the trial court abused its discretion in dismissing the information.
	Appellee's motion to dismiss the information should have been construed as an
exception to the information.  See Tex. Code Crim. Proc. Ann. art. 27.02 (West 1989).  An
exception to the substance of an information is proper if it shows upon its face that the court
trying the case has no jurisdiction thereof.  See id. art. 27.08(4).  If the exception to an
information is sustained, the information may be amended and the cause may proceed upon the
amended information.  See id. art. 28.09.  A matter of form or substance in an information may
be amended at any time before the date of trial on the merits after notice to the defendant.  See
id. art. 28.10(a).  On request of the defendant, the court shall allow the defendant not less than
ten days to respond to the amended information.  See id. art. 28.10(c).  The trial court abused its
discretion in dismissing the information and in not allowing the State to amend the information
by abandoning the serious bodily injury allegation.
	The order of the trial court is reversed, and the cause is remanded to that court for
further proceedings.


 

	Carl E. F. Dally, Justice
Before Justices B. A. Smith, Yeakel and Dally*
Reversed and Remanded
Filed:   March 23, 2000
Publish



*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   The additional paragraph does not properly allege a felony offense because it does not
allege as the statute requires that the offense was committed "by accident or mistake."  See
Stidman v. State, 981 S.W.2d 227, 230 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

rmation] within the meaning provided by the constitution,
an instrument must charge:  (1) a person, (2) with the commission of an offense."  Id. at 549
(quoting Cook, 902 S.W.2d at 477).
	In his brief, appellee faults the State's reasoning and argument that the county court
had jurisdiction of this cause by citing the following opinion:

[A] literal reading of article V, § 12(b) could lead to absurd results.  If the mere
presentment of an indictment could vest jurisdiction in any court, then . . . a
capital murder could be properly tried in a county court.  I cannot believe that such
a result was the legislature's or the voter's intent.


DeDonato v. State, 819 S.W.2d 164, 168 (Tex. Crim. App. 1991) (Maloney, J., concurring). 
The absurdity suggested in the DeDonato concurring opinion is not before us for a decision.  An
accused cannot be tried and convicted for a felony except on indictment of a grand jury unless the
accused waives that right.  See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. arts. 1.05,
1.141 (West 1977).  Appellant was not charged by indictment nor did he waive that right. 
Therefore, based on the charging instrument in this case, appellant could not be tried and
convicted of a felony offense in any court.
	Appellant was charged by information filed by the county attorney.  See Tex. Code
Crim. Proc. Ann. art. 21.20 (West 1989).  Although flawed by the additional serious bodily
injury allegation, the information alleged a misdemeanor offense of which the county court had
jurisdiction.  The information charged a person with the commission of an offense.  We hold that
this information vested the trial court with jurisdiction to try the misdemeanor charged and that
the trial court abused its discretion in dismissing the information.
	Appellee's motion to dismiss the information should have been construed as an
exception to the information.  See Tex. Code Crim. Proc. Ann. art. 27.02 (West 1989).  An
exception to the substance of an information is proper if it shows upon its face that the court
trying the case has no jurisdiction thereof.  See id. art. 27.08(4).  If the exception to an
information is sustained, the information may be amended and the cause may proceed upon the
amended information.  See id. art. 28.09.  A matter of form or substance in an information may
be amended at any time before the date of trial on the merits after notice to the defendant.  See
id. art. 28.10(a).  On request of the defendant,