                                        NO. 12-16-00145-CR

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

JOHN MARK HOUSTON,                                        §       APPEAL FROM THE 369TH
APPELLANT

V.                                                        §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §       ANDERSON COUNTY, TEXAS

                                        MEMORANDUM OPINION
          Appellant, John Mark Houston, appeals from his conviction for attempted aggravated
kidnapping. In one issue, Appellant contends that the indictment is fundamentally defective. We
affirm.


                                                 BACKGROUND
          In a two-count indictment, the State charged Appellant with Attempted Aggravated
Kidnapping (Count 1) and Assault Family Violence, Impeding Breath or Circulation (Count 2).
Count 1 alleges that Appellant


          . . . with the specific intent to commit the offense of Aggravated Kidnapping of Randi Burris, …
          assaulted her with his hands, dragged her by her hair, forced her outside, and attempted to force
          her into a vehicle, which amounted to more than mere preparation that tended but failed to effect
          the commission of the offense intended.


A jury found Appellant guilty of Count 1, Attempted Aggravated Kidnapping, and guilty of
Count 2’s lesser included offense of Assault Family Violence. The jury assessed Appellant’s
punishment as follows: (1) Count 1, confinement for nine years and a fine of $10,000.00; and (2)
Count 2, confinement in the Anderson County jail for three hundred and sixty-five days and a
fine of $2,000.00. This appeal followed.
                                CHALLENGE TO THE INDICTMENT
       In his sole issue, Appellant contends that Count 1 in the indictment failed to give him
adequate notice of the charge against him. Accordingly, he maintains that Count 1 of the
indictment is fundamentally defective.
Applicable Law
       A person commits aggravated kidnapping if he intentionally or knowingly abducts
another person with the intent to inflict bodily injury on the person or violate or abuse the person
sexually. TEX. PENAL CODE ANN. § 20.04(a)(4) (West 2011). Accordingly, the offense is
comprised of two elements: (1) intent to abduct, and (2) intent to commit an aggravating
element. Id. “Abduct” means to restrain a person with intent to prevent the person’s liberation
by: (1) secreting or holding the person in a place where he is not likely to be found; or (2) using
or threatening to use deadly force. Id. § 20.01(2) (West 2011). When a particular intent is a
material fact in the description of the offense, it must be stated in the indictment. TEX. CODE
CRIM. PROC. ANN. § 21.05 (West 2009).
       “An indictment is a written instrument presented to a court by a grand jury charging a
person with the commission of an offense.” TEX. CONST. art. V, § 12 (b). The presentment of an
indictment or information to a court vests the court with jurisdiction over the case. Id. “[A]
written instrument is an indictment or information under the Constitution if 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.” Duron v. State, 956 S.W.2d
547, 550-51 (Tex. Crim. App. 1997). “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 post-conviction
proceeding.” TEX. CODE CRIM. PROC. ANN. art 1.14(b) (West 2005).
       The court of criminal appeals has consistently held that indictments that omit an element
of the crime charged, although defective, are valid indictments. Teal v. State, 230 Ss.W.3d 172,
178 (Tex. Crim. App. 2007); Ex parte Morris, 800 S.W.2d 225, 227 (Tex. Crim. App. 1990);
Rodriguez v. State, 799 S.W.2d 301, 302-03 (Tex. Crim. App. 1990). The test is whether,
looking at the indictment as a whole, are the court and the defendant able to determine from the




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face of the indictment that the instrument intends to charge an offense for which the court has
jurisdiction. See Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim. App. 2009).
Analysis
         On appeal, Appellant contends the indictment is fundamentally defect because it fails to
allege the specific intent required of assault, the specific intent to prevent a person’s liberation,
and the specific intent of the aggravating element, i.e., to inflict bodily injury or abuse sexually.
See TEX. PENAL CODE ANN. §§ 20.01(2), 20.04(a)(4). However, the alleged defects in the
indictment are within that class of defects, errors, or irregularities in form or substance which
must be challenged by objection prior to trial.                Appellant’s failure to raise an appropriate
objection before trial forfeits his right to complain of any defects, errors, or irregularities on
appeal. See TEX. CODE CRIM. PROC. ANN. art 1.14(b). Nevertheless, even if error had been
preserved, the indictment alleges the crime with sufficient “clarity and specificity” to identify the
penal statute under which the State intended to prosecute. See Kirkpatrick, 279 S.W.3d at 328;
see also Duron, 956 S.W.2d at 550-51. Under these circumstances, we conclude that the
indictment was not fundamentally defective.
         Appellant’s sole issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                               BILL BASS
                                                                                Justice

Opinion delivered March 31, 2017.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 31, 2017


                                          NO. 12-16-00145-CR


                                     JOHN MARK HOUSTON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 369th District Court
                    of Anderson County, Texas (Tr.Ct.No. 369CR-15-32259)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
