State v. Murk

*559 CLINTON, Judge,

dissenting.

The single ground for review presented by the State is based solely on Article 1.14(b), V.A.C.C.P., viz:

“The Court of Appeals erred in holding that appellant did not waive his objection to the information under Tex.Code Crim. Proc.Ann. art. 1.14(b).”

PDR, at 2. It first raised the question of waiver in oral argument before the court of appeals, which rejected the contention, reversed judgment below and ordered the information dismissed. Murk v. State, 775 S.W.2d 415, at 416-417 (Tex.App.—Dallas 1989).

Article 1.14(b) purports to fault an accused who “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[.]” 1 Here, appellant had no cause to object before the day of trial. Thus the majority is constrained to find “Murk is not an Article 1.14(b), V.A.C.C.P., case,” ergo “our decision to grant review [to determine waiver under 1.14(b)] was improvident.” Opinion at 558.

Although that determination should finally dispose of this cause, nonetheless the majority plows ahead to conclude that even though “the state did what was not permitted ... error is error.” Id., at 558 . On that thesis, the majority still faults appellant for failure to raise the error at trial, thus waiving it on appeal. Instead of Arti-ele 1.14(b), however, the majority gratuitously cites Tex.R.App.Pro. Rule 52(a). Ibid. Therefore, appellant now complains the Court erred in holding that he waived his right to object under Rule 52(a). I would grant the motion to examine the propriety of filling a legislative void by application of a procedural rule at this late date.

Because Article 1.14(b) is not implicated here, the opinion of this Court in Studer is inapposite. 2 Because the State has never invoked Rule 52(a), and also because appellant moved for an instructed verdict on the ground that the information, as amended, is fatally insufficient (S.F. 47-48), this Court should not reverse the judgment of the court of appeals on the basis of Rule 52(a); if the rule is worthy of any consideration in this context, the cause should be remanded to that court to determine the question in the first instance. See, e.g., Tallant v. State, 742 S.W.2d 292, at 294-295 (Tex.Cr.App.1987); cf. Rochelle v. State, 791 S.W.2d 121 CTex.Cr.App.1990).

Accordingly, I respectfully dissent. 3

MALONEY, J., joins.

. All emphasis here and throughout this opinion is mine unless otherwise indicated.

. In Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), the Court seized "our first opportunity to interpret the 1985 amendments to Art. 1.14, V.A.C.C.P., and Art. V, § 12, Tex.Const., concerning defects in charging instruments.” Id., at 264. After analyzing what it considered to be germane matters, the Court pronounced its conclusions, viz.

"The result reached by the court of appeals is correct. Under the foregoing construction of Art. V., § 12 and Art. 1.14(b) the error is waived. The information in this case ... fails to allege the acts relied upon by the State to constitute recklessness, a defect we held in Gengnagel [v. State, 748 S.W.2d 227 (Tex.Cr.App.1988)] was one of substance. Although the information ... is substantively defective, it was, on its face, an information as contént-plated by Art. V, § 12. Once presented to the trial court 'by an attorney for the State,’ the trial court obtained jurisdiction of the cause. Subsequently, it was incumbent upon appellant under Art. 1.14(b) to lodge an objection to this substantive defect. Since appellant failed to make any pre-trial objection to the substance error in the information, it is waived. See Helms [v. State, 484 S.W.2d 925 (Tex.Cr.App.1972) ]."

Id., at 273. (Presumably Helms is cited because Studer pled nolo contendere to an information that purported to charge an offense under V.T.C.A. Penal Code, § 21.08, thus implicating the pleading requirements as to recklessness in Article 21.15, V.A.C.C.P.)

. Since Article 1.14(b) is not applicable in the circumstances, it may not be said that appellant waived "any defect, error, or irregularity” in the amended information on that account.

*560 Rule 52(a) premises "preserving a complaint for appellate review.” The majority identifies the "error” here as the State doing "what it was not permitted [by law to do].” Opinion at 558. But an accused need not object to a motion to amend the charging instrument on the day trial is about to commence unless he contemplates complaining that any amendment at that time is, as the majority finds, "not permitted.” As to content of the proposed amendment, if the State is practically amending itself out of court, where is it written that an accused must protest that the prosecution may be placing itself under a disadvantage? In our vaunted adversarial system of justice an accused is entitled to have his lawyer devise a trial strategy calculated to protect his rights, and to execute it through defensive tactics sanctioned by law. To remain passive while a prosecutor obtains leave of court to amend a charging instrument moments before trial does not preclude an accused from invoking appropriate protective procedures during trial, including a motion for instructed verdict, pertinent objections to and germane requested instructions for a jury charge, motion for new trial, motion in arrest of judgment, et cetera.

In the instant cause, presentment of the original information invested the trial court with jurisdiction over the subject matter and the parties. Article V, § 12. The amendment made by the State would not divest the court of its power "to determine all essential questions ‘and to do any and all things with reference thereto authorized by the Constitution and statutes, or permitted ... under established principles of law.’ Cleveland v. Ward, 116 Tex. 1 , 285 S.W. 1063, 1069 (1926).” Garcia v. Dial, 596 S.W.2d 524, 527-528 (Tex.Cr.App.1980). One essential question posed by appellant in his motion for instructed verdict is whether by its amended information the State so “redefined the portion of sexual contact to be sexual conduct in the ‘touching of genitals through the clothing of said other person with the hand of said defendant,’ and striking, 'with the intent to arouse and gratify the sexual desire of said person,’ ” as to fail to allege on offense. (S.F. 47-48). In effect, that motion raised an issue of the authority of the court to find appellant guilty and to render judgment on that finding — in short, fundamental error. Rule 52(a) does not bar appellant from presenting that issue on appeal. West v. State, 567 S.W.2d 515, at 516 (Tex.Cr.App.1978); see Ex parte Rogers, 589 S.W.2d 132 (Tex.Cr.App.1979); Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977).