Cook v. State

MALONEY, Judge,

concurring.

I join the opinion of the majority, but write separately to emphasize that the majority’s opinion is consistent with and strengthened by the principles set forth in Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App.1994). I also write to point out that the dissenting opinion rests upon a flawed reading of this Court’s opinion in Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990).

I.

The majority correctly states that the constitutional amendments in 1985 provided for the first time a definition of “indictment.” Majority opinion at 477. Under this new definition, an “indictment” is an instrument that charges (1) a person (2) with the commission of an offense. Id. at 477.

This Court in Studer v. State, 799 S.W.2d at 268 , held that “the commission of an offense” was still alleged despite the omission of an element of the offense. We expounded on this notion in Fisher, supra, where we discussed the problem of determining sufficiency of the evidence in the event of an indictment, like that in Studer , that does not allege all of the elements of the offense. We began by recognizing the relationship between the indictment, a defendant’s expectations about what he would be tried for, the jury instructions, and ultimately the appellate court’s review of the sufficiency of the evidence to support the conviction. We emphasized that “there must be a connection between the crime with which a defendant is charged in the indictment and a reviewing court’s role in reviewing the sufficiency of the evidence to support a conviction.” Fisher, 887 S.W.2d at 53 . Accordingly, we concluded that it was necessary to be able to identify the offense with which the defendant was charged in the indictment, and we set forth a scheme by which that could be accomplished even in the face of an inadequate indictment. Id. at 55-58 .

It logically follows from our reasoning and holding in Fisher that in order to charge “the commission of an offense” for purposes of Article V, § 12, there must be enough alleged to enable one to identify the offense. 1 This principle also logically applies to the portion of the constitutional definition that the instrument charge “a person.” Enough must be alleged so that a person is identifiable in the body of the indictment as one charged with the commission of an offense. No person is named or described as the accused in the indictment in the instant case. Therefore, appellant correctly asserts that the charging instrument is constitutionally deficient. For these reasons, as well as those discussed in the majority opinion, I join the opinion of the Court.

II.

The dissent disparages the majority for “revis[ing] the essential holding of Studer [.]” Dissenting opinion at 483 (Meyers, J., dissenting). Curiously, the dissent’s own rendition of the Court’s holding in Studer repre *482 sents a significant departure from the actual language of the opinion.

The dissent summarizes the holding in Studer as follows:

A written instrument presented to a court by a grand jury which does not charge “an offense” is, nevertheless, an indictment, and, therefore, invests the court with jurisdiction.

Id. at 484. It then goes on to revisit and track the analysis in Studer leading to this purported holding. First noted is that Stu-der held that the failure to allege all of the elements of the offense is a defect of substance. This is accurate. The dissent then identifies the first of the four statutory defects of substance as “failure to charge an offense[.]” Id. at 484. Following this, the dissent states that Studer therefore concluded that “a written instrument which does not allege every constituent element of a statutory crime is substantively defective because it does not charge an offense.” Id. (emphasis added).

The flaw in this line of reasoning springs from a loose rephrasing of the first of the statutorily defined defects of substance. Article 27.08 provides that it is a defect of substance of an indictment or information “[t]hat it does not appear therefrom that an offense against the law was committed by the defendant.” Tex.Code Crim.Proc.Ann. art. 27.08(1). The dissent restates this as provid-mg that it is a defect of substance of an indictment or information that it “does not charge an offense.” I cannot agree with this broad translation. “That it does not appear that an offense was committed” is far different from “that it does not charge an offense.”

This distinction is critical in light of the constitutional requirement that an indictment charge “the commission of an offense.” Tex. Const. Art. V, § 12. Under the dissent’s rephrasing of the matter, article 27.08 permits waiver of what the constitution requires — the constitution requires that an indictment charge an offense; yet (according to the dissent’s rephrasing) article 27.08 provides that the “failure to charge an offense” is a defect of substance which, under article 1.14(b) is waivable. Under a true reading of the provisions, the constitution requires that an indictment charge the commission of an offense; article 27.08 provides that it is a defect of substance “that it does not appear that an offense was committed.” 2 (emphasis added). The constitution speaks in terms of what is necessary to charge the commission of an offense; article 27.08 speaks in terms of whether it appears from the allegations that an offense was committed. The essential holding of Studer was that the absence of an element made it appear that an offense was not committed (a defect of substance), but was nevertheless sufficient to charge the commission of an offense for constitutional purposes of jurisdiction. 3

*483 As the majority points out, in construing constitutional provisions, “we are obliged to avoid a construction which renders an absurd or unreasonable result.” Majority opinion at 479. In order to charge “the commission of an offense” an indictment must allege enough so that the offense alleged can be identified. This vests the court with subject matter jurisdiction. See fn. 2, supra. Article 1.14(b) and 27.08 do not permit waiver of subject matter jurisdiction. Rather, if enough is alleged to enable the identification of an offense for purposes of subject matter jurisdiction under the constitution, but the allegations are nevertheless deficient so that technically it does not appear that an offense was committed, there is a waivable defect of substance. This is what happened in Studer .

The dissent repeatedly states that in Stu-der this Court decided that the indictment there did not charge an offense. The dissent quotes the following language from Studer :

The change in Art. 1.14(b) requires, among other things, that substance exceptions be raised pre-trial or otherwise the accused has forfeited his right to raise the objection on appeal or by collateral attack. If omitting an element from an indictment is still a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element.

Dissenting opinion at 485 (quoting Studer, 799 S.W.2d at 268 ). Nowhere in this quoted language or anywhere else in the opinion can I find that the Court stated that the indictment failed to charge an offense. The issue presented in Studer was whether the indictment’s failure to allege all of the elements of an offense could be raised for the first time on appeal, or whether such defect was in fact waived. 4 The defect presented in Studer was not such that the offense (and accordingly the subject matter jurisdiction of the court) could not be determined. There was an absence of one element. 5 Indeed the Court spoke throughout the opinion in terms of “omitting an element”, “the omission of that element”, that an indictment “need not necessarily allege every element”, a “missing element”, “if an element of an offense is omitted”, “the omission of an element”, “missing an element”, “each constituent element”, “the absence of an element”, and “each element of the offense”. Nowhere in our opinion in Studer is there any discussion of the possibility that an indictment might omit more than one or even all elements of an offense and remain constitutionally sound.

With these comments, I join the opinion of the majority.

MANSFIELD, J., joins.

. In Fisher we stated,

We assume in this opinion that the indictment alleges enough to identify the offense charged. For example, an indictment might allege only four of five elements of a particular offense. By comparing the allegations in the indictment, albeit incomplete, with various penal code provisions, one should be able to determine which entire offense the State is alleging.

Fisher, 887 S.W.2d at 55 n. 10. Slightly further elaboration is needed to put this approach into practice. If it is the case that all of the allegations in the indictment are common to more than one offense, and none are distinguishing to any single offense, then I would hold that the offense charged is that to which the fewest elements must be added to those alleged in order to arrive at a complete offense. If the allegations in the indictment are so deficient that one cannot identify the offense alleged, then the indictment is insufficient to confer subject matter jurisdiction.

. The dissent points out that article 27.08 has long been interpreted to mean that an indictment is substantively defective if it does not charge an offense, despite its language to the effect that it does not appear that an offense was committed. Dissenting opinion at 484, n. 2 (Meyers, J., dissenting). These interpretations, however, were made prior to the constitutional amendments in 1985 which added the definition of "indictment.” As emphasized in the majority’s opinion, constitutional and statutory provisions should be interpreted in harmony, if possible, so as to give meaning and effect to both. See Majority opinion at 478-479.

. It is elemental that a trial court must have subject matter jurisdiction. As explained by this Court,

A court of competent jurisdiction means a court that has jurisdiction of the offense, [citation omitted] ... One of the requisite elements of 'jurisdiction' is jurisdiction over the subject matter. The expression ‘subject matter,' as used with reference to the problem of jurisdiction, in criminal law, refers to the offense.

Hultin v. State, 171 Tex.Crim. 425 , 351 S.W.2d 248, 255 (App.1961) (emphasis added). This Court has further stated that jurisdiction means "the right to adjudicate concerning the subject matter in a given case.” Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App.1980) (quoting Ex parte Armstrong, 110 Tex.Cr.R. 362 , 8 S.W.2d 674, 676 (1928)). Without subject matter jurisdiction a court has no authority to act.

The constitutional and statutory amendments and our interpretation of them in Studer , have not eliminated the basic notion of subject matter jurisdiction. The Texas Constitution as amended provides that "the presentment of an indictment or information to a court invests the court with jurisdiction of the cause.” In order to give meaning to this provision and the constitutional requirement that the indictment charge the commission of "an offense,” they must be construed as requiring that the indictment allege enough to *483 identify the offense charged and accordingly invest subject matter jurisdiction. This is also consistent with the principles set forth in Fisher , as discussed above.

. Studer presented the issue as

Does the wording "An indictment or information is a written instrument ... charging a person with the commission of an offense” mean it is an instrument that alleges all the constituent elements of an offense or something else (specifically something less).

Studer, 799 S.W.2d at 266 (emphasis in original).

. We readily identified the offense charged, but noted the absence of a single allegation. We stated that the defendant was charged with indecent exposure, but the indictment failed to allege the act or acts relied upon to constitute recklessness.