Motion Denied; Affirmed and Memorandum Opinion filed May 19, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-01069-CR

                       MICHAEL MCCANN, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

      On Appeal from the County Court at Law No. 1 & Probate Court
                         Brazoria County, Texas
                      Trial Court Cause No. 209154

                 MEMORANDUM                     OPINION


      Appellant Michael McCann was charged with failure to identify by giving
false or fictitious information to a police officer. He was convicted by a jury and
sentenced by the trial court to 180 days’ confinement in the Brazoria County Jail,
probated for 12 months. Appellant challenges his conviction on the grounds that
(1) section 38.02 of the Texas Penal Code requires that the accused elect between
his conception day of birth and the day of delivery; (2) section 38.02 violates
religious constitutional rights if the accused elects to use his day of birth,
conception and delivery date; (3) section 38.02 does not contain the element of
“live birth” as alleged by the State; (4) the offense of failure to identify is not an
offense listed in the Texas Penal Code; (5) the complaint is invalid because it does
not contain a citation to the Texas Penal Code; (6) the trial court did not have
jurisdiction because the complaint does not present an offense; (7) section 38.02 is
unconstitutional; (8) the State cannot charge appellant with an offense that
occurred six months prior to the date of the information; (9) the trial court should
have dismissed the case because the State failed to prove a crime; and (10) the trial
court should have set aside the judgment notwithstanding the jury verdict. We
affirm.

                I.     FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged with failure to identify by giving false or fictitious
information to a police officer. He waived his right to be represented by an
attorney, entered a “not guilty” plea, and requested a jury trial. Trooper Joshua
Strawn with the Texas Department of Public Safety stopped appellant on October
25, 2013, for speeding. During the traffic stop, appellant produced an
“International Driver’s Permit” that indicated appellant’s date of birth to be
October 8, 1948. It was later discovered that appellant’s true date of birth is July
19, 1949.

      A jury found appellant guilty and the trial court assessed punishment at 180
days in county jail, probated for one year. Appellant filed a timely notice of appeal.
The District Clerk filed a clerk’s record and appellant filed a pro se brief. No
reporter’s record was filed. Because this court was unaware whether appellant was
entitled to proceed without payment of costs, the court abated the appeal for the
trial court to determine whether appellant was entitled to a free record and

                                          2
appointed counsel on appeal.

      The trial court conducted a hearing at which appellant and the State
appeared. At the hearing appellant stated his desire to continue the appeal.
Appellant admitted he is not indigent. The trial court filed findings of fact and
conclusions of law in which it found that appellant had not shown he was entitled
to a free record or appointment of counsel.

      On March 29, 2016, the State filed a motion to dismiss the appeal pursuant
to Texas Rule of Appellate Procedure 37.3(c), which provides:

      (c) If No Reporter’s Record Filed Due to Appellant’s Fault. Under the
      following circumstances, and if the clerk’s record has been filed, the
      appellate court may—after first giving the appellant notice and a
      reasonable opportunity to cure—consider and decide those issues or
      points that do not require a reporter’s record for a decision. The court
      may do this if no reporter’s record has been filed because:
      (1) the appellant failed to request a reporter’s record; or
      (2)(A) appellant failed to pay or make arrangements to pay the
      reporter’s fee to prepare the reporter’s record; and
      (B) the appellant is not entitled to proceed without payment of costs.

Tex. R. App. P. 37.3(c)

      An appellant has the burden to properly initiate the completion of a record
sufficient to illustrate reversible error. See Tex. R. App. P. 35.3; see also Perez v.
State, 261 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). If
the appellant fails to do so, and an issue on appeal involves matters omitted from
the record due to the appellant’s failure to request or pay for the record, then the
appellant’s actions will prevent the court of appeals from adequately addressing the
dispute. Id. This failure to provide the record effectively waives any complaint on
these issues. Id. Nonetheless, we may consider and decide those issues that do not
require a reporter’s record for a decision. See Tex. R. App. P. 37.3(c).

                                          3
      We do not read Rule 37.3(c) to permit dismissal of appellant’s appeal. See
Tex. R. App. P. 37.3(c) (permitting appellate court to consider and decide those
issues or points that do not require a reporter’s record for a decision). Therefore,
we deny the State’s motion to dismiss, but will address appellant’s issues that do
not require a reporter’s record for a decision.

                                   II.   ANALYSIS

      In his first and second issues and fourth through ninth issues appellant
argues that and the trial court lacked jurisdiction because the information did not
charge an offense under the Penal Code and section 38.02 of the Texas Penal Code
is unconstitutional.

      A. The Charging Instrument

      An indictment or information provides a defendant with notice of the offense
and allows the defendant to prepare a defense. Teal v. State, 230 S.W.3d 172, 175
(Tex. Crim. App. 2007); Martin v. State, 346 S.W.3d 229, 231 (Tex. App.—
Houston [14th Dist.] 2011, no pet.).

      Article 1.14 of the Texas Code of Criminal Procedure provides that:

      [i]f 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. art. 1.14(b).

      An information charging a person with committing an offense invokes the
jurisdiction of the trial court, and jurisdiction is not contingent on whether the
charging instrument contains defects of form or substance. See Teal, 230 S.W.3d at
177. The right to be charged by an instrument that is free of defects, errors, and


                                           4
omissions is neither a “systemic” requirement nor a “waivable” right. Sanchez v.
State, 120 S.W.3d 359, 367 (Tex. Crim. App. 2003); see also Marin v. State, 851
S.W.2d 275, 279 (Tex. Crim. App. 1993) (identifying and defining three categories
of rights belonging to litigants as “systemic,”, “waivable,” and “forfeitable.”). The
defendant must object to any error in the charging instrument in a timely and
specific manner, and any unobjected-to error in the charging instrument is not
“fundamental.” Sanchez, 120 S.W.3d at 367. Thus, Texas law “requires the
defendant to object to any error in the [charging instrument] before the day of trial
and certainly before the jury is empaneled.” Id.

      Nevertheless, for the trial court to have jurisdiction, there still must be a
charging instrument. See Martin, 346 S.W.3d at 232. A charging instrument must
allege that (1) a person (2) committed an offense. Teal, 230 S.W.3d at 179; see
also Tex. Const. art. V, § 12(b) (defining “indictment” and “information” as
written instruments presented to the court “charging a person with the commission
of an offense”). Accordingly, a defendant may challenge for the first time on
appeal an instrument that fails to charge the commission of an offense or does not
charge a particular person with the crime. See Teal, 230 S.W.3d at 178–80.

      To determine whether an instrument is so flawed that it does not constitute
an actual charging instrument and thus does not vest the trial court with
jurisdiction, the critical determination is whether the court and the defendant can
identify what penal-code provision is alleged and whether that provision vests the
trial court with jurisdiction. Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim.
App. 2009). We look to the charging instrument as a whole, not just to its specific
formal requisites. Id. If we conclude that the trial court and the defendant can
determine that “the instrument intends to charge” an offense for which the trial
court has jurisdiction, then the instrument charges the commission of an offense,

                                          5
even if the instrument fails to allege an element of the offense or contains
additional information indicating the person charged is innocent. Teal, 230 S.W.3d
at 181–82; Martin, 346 S.W.3d at 232.

       The information in this case provided:

       BEFORE the undersigned authority, on this day personally appeared
       SHEILA WREN, herein called “Affiant” who, after being by me duly
       sworn, on oath deposes and says: That the Affiant has good reason to
       believe and does believe and charge that heretofore, on or about the
       25th day of October, 2013, and before the making and filing of this
       Complaint in the County of Brazoria and the State of Texas, that one
       MICHAEL MCCANN did then and there knowing that the said J.
       Strawn was a peace officer, intentionally give a false or fictitious date
       of birth, to-wit: October 8, 1948, to J. Strawn, a peace officer who had
       requested the information and who had good cause to believe that the
       defendant was a witness to a criminal offense, and the defendant was
       then and there a fugitive from justice; against the peace and dignity of
       the State.
       A person commits the offense of failure to identify if the person
intentionally gives a false or fictitious name, residence address, or date of birth to a
peace officer who has lawfully arrested or detained the person. Tex. Penal Code
Ann. § 38.02(c). Failure to identify is a misdemeanor offense. Id. Thus, based on
the allegations in the information, both appellant and the trial court could
determine that “the instrument intended to charge” a misdemeanor offense for
which the trial court has jurisdiction. See Teal, 230 S.W.3d at 181–82; Martin, 346
S.W.3d at 232. Accordingly, we determine the trial court had subject matter
jurisdiction in this case.

       B. Constitutionality of Texas Penal Code § 38.02

       Appellant argues that section 38.02 is unconstitutional as applied to him
because it “violates religious constitutional rights if the accused elects to use both
of his day of birth, conception and delivery date.”
                                           6
      The constitutionality of a statute as applied must be raised in the trial court
to preserve error. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); see
also Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex. Crim. App. 2008) (noting the
“well-established requirement that appellant must preserve an ‘as applied’
constitutional challenge by raising it at trial”). Moreover, a defendant may not raise
for the first time on appeal a facial challenge to the constitutionality of a statute.
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).

      To preserve error for appeal, a party is required to make a timely request,
objection or motion to the trial court and obtain an express or implied ruling. Tex.
R. App. P. 33.1(a). The clerk’s record does not contain an objection to the
constitutionality of the statute. Without a reporter’s record we cannot determine
whether appellant objected at trial. Because there is no record that appellant
requested the trial court to find the statute unconstitutional as applied to him,
appellant has waived this complaint on appeal. See Fuller v. State, 253 S.W.3d
220, 232 (Tex. Crim. App. 2008) (“[A]lmost all error—even constitutional error—
may be forfeited if the appellant failed to object”). We overrule issues one and two
and four through nine.

      C. Jury Charge

      In his third issue appellant appears to complain about the inclusion of a
definition of “live birth” in the jury charge.

      We review claims of charge error under a two-pronged test. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); Rolle v. State,
367 S.W.3d 746, 757 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). We first
determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.
App. 2005); Rolle, 367 S.W.3d at 757. If error exists, we then evaluate the harm
caused by that error. Ngo, 175 S.W.3d at 743; Rolle, 367 S.W.3d at 757. The
                                           7
degree of harm required for reversal depends on whether error was preserved in the
trial court. When error is preserved in the trial court by timely objection, the record
must show only “some harm.” Rolle, 367 S.W.3d at 757. If a party asserts no
objection, , then the error must be “fundamental error” and requires reversal only if
it was so egregious and created such harm that the defendant has not had a fair and
impartial trial. Id. In this case, we have no record of an objection to the jury
charge. Therefore we review the charge for “fundamental error.”



      Appellant appears to argue that by including a definition of “live birth” in
the jury charge, the State enlarged upon the allegations in the information and
authorized the jury to convict appellant on facts not alleged by the State.

      The application portion of the court’s charge instructed the jury as follows:

      Now, bearing in mind the foregoing instructions, if you believe from
      the evidence beyond a reasonable doubt that the Defendant, Michael
      McCann, on or about the 25th day of October, 2013, in Brazoria
      County, Texas, did then and there knowing that the said J. Strawn was
      a peace officer, intentionally give a false or fictitious date of birth, to
      wit: October 8, 1948, to J. Strawn, a peace officer who had lawfully
      arrested or detained the Defendant, then you will find the Defendant
      “guilty” as charged in the Information, and say so by your verdict.
      But if you do not so believe or if you have a reasonable doubt thereof,
      you will acquit the Defendant and say by your verdict, “not guilty.”

      A defendant is to be tried only on the crimes alleged in the charging
instrument. Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994). The
jury charge may not enlarge the offense alleged and authorize the jury to convict a
defendant on a basis or theory permitted by the jury charge but not alleged in the
charging instrument. See Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App.
2003); Head v. State, 299 S.W.3d 414, 439 (Tex. App.—Houston [14th Dist.]


                                          8
2009, pet. ref’d). A conviction cannot stand if premised upon an offense different
from that set forth in the charging instrument. Schmuck v. United States, 489 U.S.
705, 717 (1989). The harm that flows from a charge that enlarges the offense
alleged occurs if a defendant is convicted of an offense other than that charged in
the information or indictment. See Beasley v. State, 426 S.W.3d 140, 148 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (“jury rested its conviction on the crime
[that] the defendant had not been charged with committing.”).

      The information charged appellant with failure to identify by giving false or
fictitious information to a police officer, and appellant was convicted of that
offense. Under the egregious-harm standard, we review alleged charge error by
considering (1) the entirety of the charge itself, (2) the evidence, (3) the arguments
of counsel, and (4) other relevant information revealed by the record. See Sanchez
v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at
171. In this case, we do not have a record of the evidence or arguments of counsel.

Because we do not have a complete record we cannot engage in an analysis under
Almanza. We overrule appellant’s third issue.

      D. Sufficiency of the Evidence to Support Conviction

      In his tenth and eleventh issues, appellant argues the trial court should have
dismissed the case or set aside the jury’s verdict because the State failed to prove a
crime. We construe appellant’s issues as challenges to the sufficiency of the
evidence to support his conviction. In reviewing the sufficiency of the evidence,
we must consider “all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, a
rational fact finder could have found the essential elements of the crime beyond a
reasonable doubt.” Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
Because we do not have a reporter’s record from which to review the evidence, we
                                          9
overrule issues ten and eleven.

      Having addressed and overruled each of appellant’s issues, we affirm the
trial court’s judgment.



                                            PER CURIAM



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




                                       10
