

NO. 07-10-00402-CR; 07-10-00403-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 

MARCH
23, 2011
 

 
EDDIE PEEL, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 367TH DISTRICT COURT OF
DENTON COUNTY;
 
NO. F-2010-0942-E, F-2010-0943-E; HONORABLE LEE GABRIEL, JUDGE

 

 
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
 
MEMORANDUM OPINION
            Appellant,
Eddie Peel, entered pleas of guilty to sexual assault of a child[1]
in Cause No. 07-10-0402-CR and sexual assault[2]
in Cause No. 07-10-0403-CR.[3]  Pursuant to a plea agreement, appellant was
placed on deferred adjudication community supervision on each case.  The deferred adjudication was subsequently
adjudicated and appellant was sentenced to serve a term of confinement of 11
years in the Institutional Division of the Texas Department of Criminal Justice
(ID-TDCJ) on each case, all confinement to be served concurrently.  Appellant appeals raising
two issues.  We will affirm.
Factual and Procedural Background
            Appellant
was initially indicted on charges of sexual assault of a child and aggravated
sexual assault of a child.  See §§
22.011(a)(1), 22.021(a).  After indictment and prior to entry of a
plea, appellant and the State agreed on a plea whereby appellant would plead guilty
to the sexual assault of a child in Cause No. 07-10-0402-CR and to a
lesser-included charge of sexual assault in Cause No. 07-10-0403-CR.  In return for the pleas of guilty, appellant
was placed on deferred adjudication community supervision for a period of eight
years on each case.  No pretrial motions
were filed in either case by appellant’s trial counsel.
            Subsequently,
the State filed a motion in each case to adjudicate appellant guilty.  The trial court conducted a hearing on the
State’s motion to adjudicate and appellant entered pleas of true to each of the
allegations contained in the State’s motions. 
After hearing evidence regarding punishment, the trial court sentenced
appellant to confinement in the ID-TDCJ for a period of 11 years on each case.  
            Appellant
appeals contending that the indictment in Cause No. 07-10-0402-CR is
fundamentally defective, and that section 22.021 is void for vagueness as
applied to appellant.  We will affirm the
judgment of the trial court.
 
Defective Indictment 
            Appellant’s
first issue contends that the indictment in Cause No. 07-10-0402-CR is
defective because it fails to negate an exception to the crime, as provided in
section 22.011(e), that the actor was the spouse of the child at the time of
the offense.  Appellant’s theory
continues that, since the missing portion is an element of the offense, the
indictment is incomplete.  Therefore,
according to appellant, the indictment is fundamentally defective.  See Murk v. State, 775 S.W.2d
415, 416 (Tex.App.—Dallas 1989), rev’d
815 S.W.2d 556 (Tex.Crim.App. 1991).  Further, appellant posits that a
fundamentally defective indictment does not invest jurisdiction in the trial
court.  See Beets v. State,
767 S.W.2d 711, 723 (Tex.Crim.App.
1987).  Accordingly, under appellant’s
theory, this type of error cannot be waived. 
See Oliver v. State, 787 S.W.2d 170, 172 (Tex.App.—Beaumont 1990), rev’d
808 S.W.2d 492 (Tex.Crim.App. 1991).  As can be ascertained by the subsequent
history of the cases cited to support appellant’s position, most of the cases
have been reversed.  
            The
State posits that appellant has forfeited his complaint by not raising this
issue when the deferred adjudication was first granted.  See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.
1999).  It is only if we are reviewing a
void judgment that this rule is not applicable. 
See Nix v. State, 65 S.W.3d 664,
667-68 (Tex.Crim.App. 2001).  Therefore, if the indictment was defective to
the point that it did not confer jurisdiction to render a judgment, then
appellant would not have to worry about the issue of preservation of this point
for appeal.  See id.
            The
problem with appellant’s theory, as pointed out by the State and accepted by
this Court, is that the law regarding an indictment that is so defective as to
not confer jurisdiction on the trial court has changed.  Under the Texas Court of Criminal Appeals’s decision in Smith v. State, a defect in an
indictment by failure to recite an element is a substance defect in the
indictment.  Smith v. State, 309 S.W.3d 10, 16-17 (Tex.Crim.App.
2010).  A substance defect in an
indictment still confers jurisdiction on the trial court.  Id. at 17.  Therefore, the conviction is not void.  Id. 
Since the conviction is not void, appellant must comport with the
requirements of article 1.14 of the Texas Code of Criminal Procedure.[4]  The record clearly bears out that there was
no objection ever lodged against this indictment in Cause No.
07-10-0402-CR.  Accordingly, appellant
has waived any purported error and his issue is overruled.
Constitutional Challenge to § 22.021
            Appellant’s
final issue contends that section 22.021 is unconstitutionally void for
vagueness as applied to him.  Because of
this alleged constitutional infirmity, appellant insists that we must reverse
and dismiss the case in Cause No. 07-10-0403-CR.  The record reveals that, although appellant
was indicted pursuant to section 22.021, he entered a plea of guilty to the
lesser-included offense found in section 22.011(a)(1).  Therefore, we are immediately faced with the
issue of whether or not appellant has standing to challenge the
constitutionality of section 22.021.  We
hold that appellant does not have standing to make a constitutional challenge
to section 22.021.
            To
have standing to challenge the constitutionality of a statute, the challenger
must first demonstrate an adverse impact on his rights.  See Suarez v. State, No.
14-97-00342-CR, 1999 Tex. App. LEXIS 1256 at *6 (Tex.App.—Houston
[14th Dist.] Feb. 25, 1999, no pet.) (not designated for publication) (citing
Santikos v. State, 836 S.W.2d 631, 633
(Tex.Crim.App. 1992)).  In the case before the Court, appellant did
not enter a plea to any charge pursuant to section 22.021.  In the Suarez case, the appellant was attempting
to challenge the constitutionality of Texas Transportation Code section 724.061
regarding admission of the appellant’s refusal to give a specimen of his breath
or blood.  Id.
at *6-*7.  Suarez pleaded guilty
and did not go to trial, therefore, the court held he
had no standing to challenge the constitutionality of section 724.061 of the
Texas Transportation Code.  Id.  Here, appellant entered his plea to a reduced
charge and was not subjected to the punishment of section 22.021,
therefore, he has no standing. 
Appellant’s challenge is overruled.
Conclusion
            Having
overruled appellant’s issues, the judgment of the trial court is affirmed.
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice
Do not publish.  




[1] See Tex.
Penal Code Ann. § 22.011(a)(2) (West Supp.
2010).
 


[2] See Tex.
Penal Code Ann. § 22.011(a)(1).
 


[3] Further reference to the Texas Penal Code Ann. will
be by reference to “section ___” or “§ ___.”


[4] Article 1.14(b) of the Texas Code of Criminal
Procedure provides: 
 
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 may
not raise the objection on appeal or in any other postconviction
proceeding.


