# Thomas v. State > Court of Criminal Appeals of Texas · July 1, 1981 · 621 S.W.2d 158 URL: https://www.frixlaw.com/law-library/cases/9761458 ## Case - **Full name:** Joseph THOMAS, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** July 1, 1981 - **Citations:** 621 S.W.2d 158; 1981 Tex. Crim. App. LEXIS 1097 - **Precedential status:** Published - **Opinion:** Dissent by Teague - **Judges:** Clinton, McCORMICK, Odom, Roberts, Teague - **Cited by:** 364 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/9761458 ## How later opinions describe it (automated extraction) - stating that the standard of review applicable when reviewing decisions quashing an indictment is one of abused discretion - stating motion to quash will be granted where language concerning defendant’s conduct is so vague or indefinite as to deny effective notice of alleged acts - holding that when a term is defined in the statute it need not be further alleged in the indictment - observing that the reason for conjunctive and multi-count indictments is “to avoid an acquittal by any unforeseen lack of harmony between allegation and proofs . . .” - reasoning inadmissible evidence was rendered harmless because same or similar evidence was introduced elsewhere without objection ## Opinion text TEAGUE, Judge, dissenting. Since at least 1882, almost 100 years ago, when Judge Hurt of The Court of Appeals, this Court’s predecessor, wrote the opinion of Huntsman v. State, 12 Tex.App. 619 (1882), this Court, I thought, had not deviated in principle or decision from the rule that was recently restated in Brasfield v. State, 600 S.W.2d 288, 302 (1980). The right to indictment by a grand jury before answering a felony charge and the right to notice ride in tandem. No one is answerable to a felony charge except on action by a grand jury making such an accusation 3 — and it is from that accusation that notice must be had. The offense so charged may not be amended, neither by reducing the facts alleged, nor by changing them, nor by adding to them. To allow amendment by supplemental notice from the State violates the rule that notice must come from the facts found and alleged by the grand jury in the indictment. The proper relief upon motion to quash an indictment that gives insufficient notice is to dismiss the indictment, not to amend it. ... In Huntsman v. State, supra, 1 we find the following questions and answers: What is meant by this right to demand the nature and cause of the accusation? It is merely the right to have a copy of whatever written charge may have been filed in the court against him? Is it met and satisfied by a pleading which does not state the material elements of the offense for which he is to be tried? Does it permit him to be convicted of embezzlement upon an indictment which does not state a single one of the particular facts or circumstances which would render him guilty of that offense? If not, why not? Because the law has always required ‘such a certain description of the offense for which he is to be placed in jeopardy, and statement of the facts by which it is constituted, as will fully identify the charge against him, lest the grand jury should find a bill for one offense, and the defendant be put upon his trial for another, without any authority,’ and without his knowing what crime he is required to answer, or being prepared with his evidence to meet the charge; and in such manner that the record of his conviction or acquittal would insure his subsequent *169 protection against another prosecution on the same ground; and because this right is incompatible with any power of a Legislature to dispense with any material allegations in the indictment, requisite to describe and identify the particular offense with that degree of certainty which will enable the accused and the court to know that the offense for which he is put upon his trial is the same offense with that for which he stands indicted, in order that he may plead in bar a previous conviction, or acquittal. Id. at 626. ****** Additionally, Judge Hurt said: ****** ‘The object of the indictment [is] to give the accused reasonable notice of the cause for which he is called upon to make his answer, in order that he may prepare for his defense, and that by its averments he may be protected against a second trial for the same offense, Id. at 633. ****** In short, an indictment is the very foundation for the whole criminal proceedings against an accused person. See Jones v. State, 611 S.W.2d 87 , (Tex.Cr.App.1981). The panel’s unanimous opinion may have been shocking to some, but if one closely analyzes the issue before the Court, it will be found it is not shocking in the least, but actually expounds sound law. 2 After a grand jury elects to return a true bill against an accused person for a criminal wrong, it is the prosecution that is the arbiter of what language is placed in the indictment, as it is the given prosecutor’s responsibility to present to the foreman of the grand jury an indictment for approval and signature before it is returned into open court or assigned to a particular district court. See Art. 20.20, V.A.T.C.C.P., hereinafter cited as C.C.P. An accused person or his counsel, when the client is confronted with an indictment, 3 will usually first look to the indictment to see if the trial court has jurisdiction of the alleged offense and then will more closely examine the indictment’s contents as to the offense alleged against the defendant. Oftentimes, the attorney for the defendant or the defendant himself, if pro se, takes no action toward the indictment, such as filing a motion to quash; he and the defendant being satisfied to go to trial as the indictment is then worded. If the defendant is convicted, and an appeal comes to this Court, historically, this Court first looks to see if the indictment is fundamentally defective and void, for if it is determined the instrument is void, the trial court had no jurisdiction over the accused in the first place, and we will order the indictment dismissed. Even where this Court determines that an indictment is fundamentally defective and void, this does not mean that the defendant goes free; it only means that the trial court had no jurisdiction over the defendant’s person and it was impermissible for the trial court to try the defendant without jurisdiction over his person. A judgment rendered by a trial court without jurisdiction is void and has no meaning in law. “Such a judgment has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant.” Freeman and Tuttle, A Treatise On The Law Of Judgments, (5th Edition 1925), at p. 645. If a contention goes to non-evidentiary defects the indictment may have, if first raised on appeal, this Court always looks to see if the appellant first complained in the trial court by way of a motion to quash. Only if he did, will this Court then consider the merits of that contention; otherwise, we only examine the indictment to see if it states an offense against the laws of the *170 State of Texas and make that determination. Our law previously provided that an accused person, if dissatisfied with the form or the contents of the indictment or charging instrument, may challenge it in the trial court by way of a motion to quash, which is what the appellant did in this cause. In sum, Thomas and his attorney were dissatisfied with the way the indictment was worded. They made demand upon the State, by motion to quash, to furnish them with more “notice” than was in the indictment, that is, of what criminal wrong was Thomas charged with committing. Thomas and his attorney, as any accused person could formerly do in this State, merely exercised a right the law previously granted and allowed an accused person. Here, the trial judge disagreed with appellant’s position and overruled his motion to quash. When the trial judge overruled Thomas’ motion to quash, and did not require the State to replead, Thomas had no legal right at that time to appeal to this Court the ruling of the trial court. Such error, if any, in the trial court’s failure to grant the motion to quash, could not be considered by this Court unless and until there was a final conviction in the trial court. In short, Thomas had to be convicted before he could appeal to this Court to challenge the ruling of the trial court on his motion to quash. 4 That is the law. The procedure outlined for challenging a trial court’s ruling on a defendant’s motion to quash is not only the law, but is the policy of this State, set by the Legislature of this State; the elected representatives of our citizenry. This policy was recently reaffirmed by the citizens of this State when they declined to adopt a Constitutional amendment which would have allowed, for example, Thomas and his attorney to appeal the trial court’s ruling on his motion to quash prior to trial. It is implied by the State, in her well written briefs, that our decision today will return us to fifteenth century pleadings. It is true that Sir Thomas Littleton, a justice of the Common Pleas Court in England, once remarked: ... ‘And know, my son, that it is one of the most honorable, laudable, and profitable things in our law to have the science of well pleading in actions reals and personals: and therefore I counsel thee especially to employ thy courage and care to learn this.’ 5 The fear of the State, and impliedly a majority of this Court, is misplaced, for the panel’s decision did not mean that the prosecutor, who has prepared a valid indictment, must repeatedly return to a grand jury for a new indictment each time the defendant or his attorney files a motion to quash. 6 I observe in this cause that a pre-trial hearing date was never set prior to the date of trial. It was, however, apparently agreed between the parties and the trial judge that all motions of the defendant would be heard on the day of the trial, as they were. 7 *171 To eliminate the possibility of an attorney, or an accused if pro se, from presenting himself in court on the day of trial, with a motion to quash in hand, thereby challenging non-evidentiary allegations of the indictment, a trial court may invoke the salutary provisions of Art. 28.01, C.G.P. Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pretrial proceedings. The pre-trial hearing shall be to determine any of the following matters: (2) Pleadings of the defendant; (4) Exceptions to the form or substance of the indictment or information; See. 2. When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits. * * * * * * In this cause, the appellant’s motion to quash went to a crucial element of the indictment; the allegation of ownership. Appellant adequately set out in his motion the manner in which the indictment was subject to a motion to quash. The panel opinion held that the indictment is subject to a motion to quash because it failed to state which manner of ownership, see V.T. C.A. Penal Code, § 1.07(a)(24), would be relied on by the prosecution at his trial, and ruled that for failure to grant the appellant’s motion to quash, the trial court committed reversible error. I agree with that holding. Additionally, the panel held that appellant’s motion to quash the indictment was good because the indictment failed to give him adequate notice on the manner of lack of effective consent. Due to the expansive definition of effective consent in V.T.C.A. Penal Code, § 31.01(1), (2), and (4), it was held that the motion to quash should have been granted. I also agree with that holding. Though the indictment in this cause appears to have been drawn in the language of our felony theft statute, and would therefore fall within the general rule that if an indictment drawn in the language of the penal statute involved it will usually be legally sufficient to provide a defendant with notice of the charged offense, nevertheless, as Judge W. C. Davis of this Court said in Haecker v. State, 571 S.W.2d 920 (1978), in quoting from Conklin v. State, 144 Tex.Cr.R. 343 , 162 S.W.2d 973 (1942): It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law. Id. at page 921. The majority today tells us the new rule is as follows: “The only viable alternative is allowing the trial judge sound discretion in granting a motion to quash.” Additionally, we are told “that this Court [will] review the trial court’s action on a case by case basis.” I fear the new rule will result in summary denials of motions to quash, as this decision allows trial courts to make their own determination as to when an indictment is “quashable,” although this Court will still *172 review “quashing” decisions. The “case-by-case” method, however, now leaves trial courts without clear-cut guidelines, and this Court has traditionally been averse to finding an abuse in a trial court exercising sound discretion. Thus, I fear, as Jerome Frank said: “The law always has been, is now, and will ever continue to be, largely vague and variable.” Today, I believe we take one giant step forward to achieve that objective. I respectfully dissent. 8 This right may, however, be waived in non-capital cases by following the requirements of Art. 1.141, V.A.C.C.P. . Huntsman’s teachings are still viable. It was recently cited by Judge Clinton in the opinion of McDonald v. State, 608 S.W.2d 192, 194 (1980), which he wrote for a panel of this Court. . The panel opinion did not, I repeat, did not hold the indictment in this cause void for failure to state an offense; it’s holding only goes to the merits of the appellant’s motion to quash. . Cf. footnote 3 in Brasfield, supra. . If, however, the pleading on its face shows that the offense charged is so fundamentally defective that the trial court did not have jurisdiction, then writ of habeas corpus will lie. See Ex parte Mangrum, 564 S.W.2d 751 (Tex.Cr.App.1978); Menefee v. State, 561 S.W.2d 822 (Tex.Cr.App.1978). This is in contrast to the general rule that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is not available to test the sufficiency of the complaint, information, or indictment. See Ex parte Oliver, 374 S.W.2d 894 , (Tex.Cr.App.1964). . Pound, Roscoe, Jurisprudence, Vol. V, at p. 480, (West Publishing Co. 1959). . Compare what a majority of this Court recently said in May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981), a death penalty case, at pp. 9-10 of the slip opinion. See also the discussion regarding amending complaints, informa-tions and indictments found in the newsletter of the Texas District and County Attorneys Association, dated December 31, 1971. . I observe by the trial court’s docket sheet that the parties appeared in court on six different occasions for trial before the cause was finally heard. The first trial setting date shown is December 12, 1977. The motion to quash *171 was heard on April 11, 1978. Thomas, being indicted as a habitual criminal, remained and has remained continuously confined since his arrest. . The subject of amending indictments and in-formations may very well be an appropriate subject for the Legislature to consider in light of our decision, for I recognize that Art. 28.01, supra, is not a panacea to a trial judge’s provin-cia! problems. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761458. Public record. Not legal advice.