# Cook v. State

> Court of Criminal Appeals of Texas · June 28, 1995 · 902 S.W.2d 471

URL: https://www.frixlaw.com/law-library/cases/9760744

## Case

- **Full name:** Larry Neil COOK, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 28, 1995
- **Citations:** 902 S.W.2d 471; 1995 Tex. Crim. App. LEXIS 78; 1995 WL 379925
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Baird, Clinton, Maloney, Meyers, White, Keller, Mansfield
- **Cited by:** 233 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760744

## How later opinions describe it (automated extraction)

- holding that a charging instrument is not void merely for omitting an element of the offense, despite being substantively defective, because it sufficiently vested the trial court with jurisdiction
- holding that failure to allege the name of the defendant is jurisdictional error and not subject to being waived by not objecting prior to the date of trial
- holding that Texas Constitution article I, section 10 and article V, section 12(b) requires indictment to charge "a person" with commission of offense
- holding that a charging instrument must allege (1) a person and (2) the commission of an offense to be an indictment under the constitution

## Opinion text

CLINTON, Judge,
concurring on Appellant’s Petition for Discretionary Review.
For the reasons stated in Judge Meyers’ dissenting opinion, I concur in the Court’s judgment in this cause. I agree with Judge Meyers that the majority’s disposition is in all things inconsistent with the rationale and holding of Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), for precisely the reasons he gives in his dissent. I also agree with him that Studer was wrongly decided. Id., at 286-293 (Clinton, J., concurring). Moreover, something very similar to the approach Judge Maloney now advances in his concurring opinion, derived from his opinion for the Court in Fisher v. State, 887 S.W.2d 49 (Tex.Cr.App.1994), was suggested at the time of Studer , but rejected. Id., at 293 . I can only conclude that the majority’s disposition today is fundamentally at odds with Studer .
Unlike Judge Meyers, I have no compunction about overruling Studer, stare decisis notwithstanding. As I observed in a companion ease to Studer, Rodriguez v. State, 799 S.W.2d 301 (Tex.Cr.App.1990):
“In attempting to pluck what it perceives to be the stray thread of fundamentally defective indictments from the criminal jurisprudence, the majority threatens to unravel the whole fabric of our criminal procedure.”
*481 Id., at 304 (Clinton, J., dissenting). See Studer v. State, supra, at 292 (Clinton, J., concurring). At the risk of mixing metaphors, I would nip that threat as close to the bud as possible, and admit that we are overruling Studer . Because, as Judge Meyers ably illustrates, the Court all but does so, I concur in its judgment. In failing expressly to overrule Studer , however, the Court is intellectually dishonest, and for that reason I cannot join its opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760744. Public record. Not legal advice.