Opinion
04-22-00029-CR
11-16-2022
Shaun Andrew HAGA, Appellant v. The STATE of Texas, Appellee
Do not publish
From the 454th Judicial District Court, Medina County, Texas Trial Court No. 18-02-12709-CR Honorable Donna S. Rayes, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
LORI I. VALENZUELA, JUSTICE
A jury convicted appellant, Shaun Andrew Haga, of murder and assessed punishment at thirty years' confinement. In three issues on appeal, Haga asserts (1) the trial court erred by denying his motion for new trial based on a Brady violation, (2) he is entitled to a new trial because the State failed to disclose favorable evidence to him, and (3) the trial court committed reversible error by including murder in the jury instructions when the indictment charged him only with deadly conduct. We affirm.
BRADY VIOLATION
In his first two issues, Haga contends the victim's daughter, "Nicole," met with the prosecution before trial and made known to them information, some of which was favorable to Haga, that she later provided in her victim impact statement. Haga contends this favorable evidence was not disclosed by the State to him and, had it been disclosed to him, he would have called Nicole to testify during the punishment phase. Haga argues the prosecution's failure to disclose this evidence amounts to a violation of Brady v. Maryland, 373 U.S. 83 (1963). Because Haga raised this alleged Brady violation in a motion for a new trial, we review the trial court's ruling for abuse of discretion. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). Under this standard, we view the evidence in the light most favorable to the ruling and will reverse only if no reasonable view of the record could support it. Id. We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Id.
A. Relevant Background
After the punishment phase of trial, the jury assessed punishment at thirty years' confinement. The trial court then sentenced Haga, told him he had the right to appeal, and he had the right to have an attorney appointed to represent him on appeal if he was unable to afford an attorney. The court remanded Haga to the custody of the Medina County Sheriff. Nicole then made her victim impact statement off the record. Haga later filed a motion for new trial in which he alleged the following:
Defendant was denied the benefits of Brady material. In Brady v. Maryland, the U.S. Supreme Court mandated that prosecutors must promptly deliver to opposing counsel any evidence which had a tendency to exculpate a defendant from guilt or which might mitigate his punishment. After being sentenced, the victim's daughter was allowed to make a victim impact statement and made declarations known to the prosecution during trial. Specifically, the victim's daughter, told Defendant Shaun Haga she knew his actions were aberrant, that he was not the person who
would commit such an act of violence, that the drugs made him act atypically, that [Nicole] forgave Mr. Haga for his actions and she wanted Mr. Haga to have a sober life when he left the prison system. While [Nicole] had not been inclined to talk to defense counsel during the trial, [she] had made these mitigating sentiments known to the State. The prosecution never shared the mitigating information with the Defendant or counsel. Had the jury heard the statements made during the victim impact statement, it is probable that this jury that showed compassion in its sentencing verdict, would have assessed an even more lenient sentence.The trial court denied the motion.
B. Brady Review
In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. Brady is violated when three requirements are satisfied: (1) the State suppressed evidence; (2) the suppressed evidence is favorable to the defendant; and (3) the suppressed evidence is material. Ex parte Lalonde, 570 S.W.3d 716, 724 (Tex. Crim. App. 2019); Ex parte Chaney, 563 S.W.3d 239, 266 (Tex. Crim. App. 2018) (stating defendant need not request disclosure of Brady evidence "because the State's duty to disclose is an affirmative one").
"Favorable evidence is any evidence that, if disclosed and used effectively, may make a difference between conviction and acquittal and includes both exculpatory and impeachment evidence." Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006). "The nondisclosure of favorable evidence violates due process only if it is 'material' to guilt or punishment." Diamond v. State, 613 S.W.3d 536, 546 (Tex. Crim. App. 2020). Evidence is material only if there is a reasonable probability-defined as "a probability sufficient to undermine confidence in the outcome"-that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Lalonde, 570 S.W.3d at 724 (citation omitted).
The third element, materiality, incorporates a requirement that the defendant must be prejudiced by the State's failure to disclose the favorable evidence. Id. (quoting Harm, 183 S.W.3d at 406). "Materiality is determined by examining the alleged error in the context of the entire record and overall strength of the state's case." Diamond, 613 S.W.3d at 546. "The suppressed evidence is considered collectively, not item-by-item." Id. "The mere possibility that the undisclosed information might have helped the defense or affected the trial's outcome does not establish materiality." Lalonde, 570 S.W.3d at 725. "The State does not have a duty to disclose if the defendant was actually aware of the exculpatory evidence or could have accessed it from other sources." Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011); see also Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976) ("We cannot conclude that the prosecutor violated his duty to disclose favorable evidence to the appellant when the evidence was already available to him.").
C. The Evidence
Nicole testified during the case-in-chief but not the punishment phase. Her victim impact statement, following the punishment phase, was not recorded; therefore, we rely on the testimony given during the hearing on Haga's motion for new trial.
We recognize that Nicole's testimony during the case-in-chief is not a factor when determining whether a Brady violation occurred in this appeal. However, to provide context for the statements heard by the trial judge who presided over the trial, the victim impact statement, and the motion for new trial hearing, we include portions of Nicole's testimony on both direct and cross-examination. Nicole said her father "was an awesome person" and the "best father that he knew how to be," but the "disease of addiction" ran in her family, her father "never really grew up," he used drugs most of his life, and struggled his entire life with a methamphetamine addiction. Nicole was not surprised that at the time of his death her father had methamphetamine in his system. Nicole admitted she also suffered from addiction problems. Haga and her father were friends, and she knew Haga but was "not directly" friends with him. She believed her father introduced her to Haga "but there was a lot going on. He [Haga] wasn't really paying attention."
"Victim-impact" evidence is generally defined as evidence concerning the effect of the crime after the crime occurs. See Reynolds v. State, 371 S.W.3d 511, 525 (Tex. App.-Houston [1st Dist.] 2012, pet. ref'd). A trial "court shall permit a . . . close relative of a deceased victim . . . to appear in person to present to the court and to the defendant a statement of the person's views about the offense, the defendant, and the effect of the offense on the victim." Tex. Code Crim. Proc. art. 42.03(b). "The court reporter may not transcribe the statement." Id. "The statement must be made: (1) after punishment has been assessed and the court has determined whether or not to grant community supervision in the case; (2) after the court has announced the terms and conditions of the sentence; and (3) after sentence is pronounced." Id.
At trial, Haga was represented by Mr. Demetrio Duarte, Jr. At trial and the motion for new trial hearing, the State was represented by Mr. Geoffrey Barr and Mr. Joshua Somers.
1. Nicole's victim impact statement
Nicole said that, to the best of her memory, her victim impact statement was as follows:
Okay. My name is Nicole. I'm a recovering drug addict. I have a year and three months clean. Shaun [Haga] you look good, sober. I'm sorry that it came to this. You're not a bad person. You're just in a bad situation. This is what drugs and alcohol do to you. The family disease. It runs in my family. Runs in everybody's family at some point in time but there is a solution and I hope that you find that solution.
Today I have decided to forgive you for myself, not for anybody else but for myself because I was forgiven. But unfortunately, there has to be justice for my father. We all have to pay for our mistakes at some point in time but this is where drugs and alcohol get you. . . ..
2. Nicole's thoughts regarding Haga and her emotional journey
When asked if she thought drugs made Haga act the way he did, Nicole stated, "Definitely. They definitely change who you are definitely." She said her relationship with Haga was "not a very good one," they were never close, and "[i]t was always about drugs and that's pretty much to the point." She did not recall expressing, in her victim impact statement, her thoughts that Haga was not the person who would commit such an act of violence. She believed he committed the crime. She had "no idea" whether Haga's actions were out of character for him, but she forgave Haga and wanted him to have a sober life when he left prison. On cross-examination by Mr. Barr, Nicole replied "not at all" when she was asked whether she believed Haga was "too severely punished for his crime."
She admitted her emotions ranged through the full spectrum before, during, and after trial. She said she was still trying to cope with her feelings, she learned new aspects of the case during the trial, and some of what she learned during trial had an effect on her when she later gave her victim impact statement.
Nicole admitted she was not present when her father was killed and did not know if drugs were a motive for the crime. She stated she was speculating when she said as part of her forgiveness of Haga that drugs were involved. Nicole said no one from Haga's defense team ever contacted her, and, had they contacted her, she would have spoken to them. Nicole said she did not indicate her willingness to forgive Haga until the day of her victim impact statement, but she never used the word "forgive" when she spoke to the prosecution. Instead, she told someone from the prosecution she hoped Haga had a better life after his incarceration.
3. Examination by Haga's attorney regarding what Nicole told the State
Q. And these thoughts, you shared them with the prosecutors at some point during all the prep on everything?
A. Yes.
Q. I'm sorry?
A. Yes.
Q. Do you recall how many times you met with the prosecutors? Real roughly, not exactly.
A. Maybe three or four times.
Q. Okay.
A. And even prior to court as well.
Q. Okay. And so what we've been talking about today that was in your victim impact statement. These are things that you voiced with the prosecutors also, correct?
A. Briefly, yes.
. . .
Q. So you know the D. A.'s Office, the Attorney General's Office, cases like this they have victim advocates.
A. Yes, sir.
Q. And I'm sure you've dealt with victim advocates, right?
A. Yes, sir.
Q. Give us a little idea of how the victim advocate helped you in pretrial of this case?
A. She offered her help. She gave me her phone number and told me that if I had any questions, if I needed anything that I could contact her, yeah.
Q. What I'm getting at is, you know there's three gentlemen in here for the prosecution, right?
A. Yes.
Q. But there's more people than that involved in prosecuting this case, right?
A. Yes, sir.
Q. And folks like you meet with victim advocates and other folks in the D. A.'s
Office, right?
A. Yes.
Q. Or the OGA's Office, right?
A. Right.
Q. But of course, you probably don't know which entity they were with, right?
A. I know who the victim impact lady was with and obviously those were the only people that I met with.
Q. And so when you and I were discussing this on your direct examination this morning and you said you talked about forgiving Shaun Haga, that was with one of those people on the staff with the D. A.'s Office?
A. Briefly but not completely and I hadn't really said that I had forgiven him yet.
It took that week just to-everything-it was very emotionally fueled that day and that moment and I've been taught that I needed to forgive because it would hold me back from my life, and yeah.
Q. And so what I'm getting at is someone-and of course you don't know these people-but someone in the D. A.'s Office or on the prosecution team, someone heard you indicate that you forgave Shaun Haga, right?
A. Not until that day really.
Q. Okay.
A. I never used that word.
Q. What word did you use, ma'am, or what thoughts? I don't want to pin you down.
A. That I was hoping that he had a better life afterwards, that he could maybe, you know, find a solution while he was incarcerated. I did.
Q. And those are things you expressed to someone on the prosecution team pretrial, right?
A. Yes, but not forgiveness, no.
Q. But words to the effect of what you just talked about, right?
A. Yes.
4. Examination by the prosecutor (Mr. Barr) regarding what Nicole told him or another prosecutor (Mr. Somers)
Q. You testified that we met a few times. I think I remember meeting in person a couple of times. Would that being [sic] accurate?
A. Yes, sir.
Q. And you testified a second ago that you made me aware of, I guess, essentially your victim impact statement.
A. Yes, sir.
Q. Can you tell me specifically what you told me?
A. I told you that I did not want him-that I didn't wish ill will for him. That I had experience with drugs and it completely took my life apart and I was too, incarcerated, and I know what it meant and that I wanted him to have a better life but it doesn't take away the fact of the actions that were committed against my father.
Q. Okay. You never told me that you forgave the defendant?
A. Not specifically but it was-no. I kind of came up with that later. It took some processing to be able to do that, meeting with sponsors and things like that, of my recover [sic].
Q. Okay. And at some point did I approach you about a conveyance of a plea offer, to at least advise you that I was going to be giving a plea offer in this case?
A. Yes, sir.
Q. And did I advise you that it was going to be a 35-year plea offer?
A. Yes.
Q. Did you have any objection to that 35-year plea offer?
A. No, sir.
Q. And in fact, were you fine with that 35-year plea offer?
A. Yes.
Q. Now after this offense occurred against your father, did the District Attorney's
Office ever reach out to you? When I say District Attorney's Office, the Medina
County District Attorney's Office, reach out to you and give you information regarding making a victim impact statement?
A. No.
Q. And did you ever return anything in writing to the District Attorney's Office -
A. No, sir.
Q. Okay-regarding your feelings and sentiments on the defendant and his sentence?
A. No, sir.
Q. Okay. Or your forgiveness thereof?
A. No, sir.
Q. Did you ever give me anything in writing concerning that?
A. No, sir.
Nicole also replied "no" when asked if she "ever express[ed] any-essentially, what you testified earlier to that you stated you had told me on prior occasions. Did you ever express that to Mr. Somers?"
5. Testimony by Haga's trial counsel, Mr. Duarte
Haga's trial counsel, Mr. Duarte, also testified. He said someone from his defense team, probably a paralegal, tried to contact Nicole about six months before trial and he was told they could not reach her. He did not know if any messages were left. Duarte was then asked about the contentions he made in the motion for new trial. Regarding the contention that Nicole was not inclined to talk to defense counsel during trial, he responded:
This was a lengthy trial and [Nicole] came into court and testified and was allowed to be in the courtroom at certain times and she was out in the hallway at certain times. She was very emotional at different points. I initiated [sic] brief conversation with her, "Good morning. How are you?"; those kind of things. And she is, I believe, a very nice and personable individual but because of the circumstances it was pretty clear to me that my continued conversations might be found to be intrusive or offensive and I did not want to jeopardize Mr. Haga's defense by pursuing that further.
No [he did not attempt to talk to her as trial was on-going], she is a very nice person, as I indicated. However, the responses and body language and verbiage and tone was such that the indication to me was she's going to be very polite and nice to me but don't cross that line.
Regarding the contention that Nicole told Haga she knew his actions were abhorrent, Duarte responded:
In summary, I heard her statement and she indicated that she had known Shaun for some time, had seen him previously, knew who he was and what his heart had, and believed him to have a good heart and someone who did not have a tendency for violence. Her indication was that this was something which was not in character with him as an individual that she knew, that she described her father and who her
father was and the type of individual he was and I won't go into all the terminology that she used but he was a rough individual. She acknowledged that Mr. Haga had similar tendencies in terms of using drugs, sharing drugs, participating in the use of drugs and she knew - [objections sustained].
After hearing arguments, the trial court made the following findings on the record and then denied the new trial motion:
I find that [Nicole's] victim impact statement was the result of a process in her own mind and heart and that she did not know what she was going to say until she actually got on the stand, and so if she didn't know what her testimony was going to be, the prosecution could certainly not have known what she was going to say. In addition to that, although I appreciate Mr. Duarte's sensitivity to [Nicole], he had ample opportunity to inquire about what [her] feelings were during the several days of trial.
C. Application of Brady to the Evidence
"Favorable evidence is any evidence that, if disclosed and used effectively, may make a difference between conviction and acquittal and includes both exculpatory and impeachment evidence." Harm, 183 S.W.3d at 408. "Consequently, prosecutors have a duty to learn of Brady evidence known to others acting on the state's behalf in a particular case." Id. at 406. "It is irrelevant whether suppression of the favorable evidence was done willfully or inadvertently." Id.; see also Taylor v. State, 93 S.W.3d 487, 499 (Tex. App.-Texarkana 2002, pet. ref'd) ("The first element of Brady is present if the prosecution actively suppresses evidence or negligently fails to disclose it."). Here, we must decide whether the State had evidence favorable to Haga that it suppressed.
In his new trial motion, Haga alleged as follows:
. . . After being sentenced, the victim's daughter was allowed to make a victim impact statement and made declarations known to the prosecution during trial. Specifically, the victim's daughter, Nicole . . told Defendant Shaun Haga she knew his actions were aberrant, that he was not the person who would commit such an act of violence, that the drugs made him act atypically, that Ms. Ortega forgave Mr. Haga for his actions and she wanted Mr. Haga to have a sober life when he left the prison system. While [Nicole] had not been inclined to talk to defense counsel during the trial, the victim's daughter had made these mitigating sentiments
known to the State. The prosecution never shared the mitigating information with the Defendant or counsel. Had the jury heard the statements made during the victim impact statement, it is probable that this jury that showed compassion in its sentencing verdict, would have assessed an even more lenient sentence. [Emphasis added.]
Nicole stated she met with the prosecution three or four times prior to trial and she "briefly" voiced what was in her victim impact statement. When asked more specifically what she shared with the prosecution regarding forgiving Haga, she stated she did not decide to forgive Haga until the moment she gave her victim impact statement ("not until that day really," "I never used that word" before the victim impact statement, "but not forgiveness, no," "I came up with that later. It took some processing to be able to do that"). When asked what word she did use, Nicole said she hoped Haga "had a better life afterwards" and "maybe . . . find a solution while he was incarcerated." When asked what she told the prosecution about her victim impact statement, she said she told Mr. Barr that she did not wish Haga ill will and she "wanted him to have a better life but it doesn't take away the fact of the actions that were committed against [her] father."
Nicole did not state she told the prosecution before trial that she did not consider Haga to be a "bad person," that she thought he was "just in a bad situation," that "[t]his is what drugs and alcohol do to you," or that "this is where drugs and alcohol get you." Also, contrary to the contentions in Haga's new trial motion, Nicole's recollection of her victim impact statement did not include and she did not testify she told the prosecution before trial that "she knew his actions were aberrant," Haga "was not the person who would commit such an act of violence" or that "the drugs made him act atypically."
It is apparent from the record that, at most, Nicole told the prosecution before trial that she hoped Haga had a better life and a "sober life" after he left prison. Although we recognize the potential impact of a daughter's testimony, Haga does not explain on appeal how and, on this record we cannot conclude, Nicole's hope that Haga would have a better life after his release from incarceration is the type of evidence that, "if disclosed and used effectively, [might have made] a difference between conviction and acquittal." Harm, 183 S.W.3d at 408. Therefore, based on the record presented at the motion for new trial hearing, we conclude the trial court did not abuse its discretion in determining Haga did not establish a Brady violation.
JURY CHARGE
On appeal, Haga contends the indictment charged him with only deadly conduct and not murder because the indictment alleged he shot "at" the victim, which is language from the deadly conduct statute. He argues the trial court had a sua sponte duty to prepare a jury charge that accurately set forth the law applicable to the charged offense-only deadly conduct and not murder. Haga asserts the trial court erred by instructing the jury on murder with an instruction on deadly conduct only as a lesser-included offense.
A. Background
Haga was indicted as follows:
The duly organized Grand Jury of Medina County, Texas, presents in the District Court of Medina County, Texas, that in Medina County, Texas, SHAUN ANDREW HAGA, hereinafter styled the defendant(s), heretofore on or about the 21st day of October, A.D. 2017, did then and there intentionally and knowingly cause the death of an individual, namely Harvey Gene Brown, Jr., by shooting at him with a firearm. [Emphasis in original.]
Haga did not object to a defect, error, or irregularity of form or substance in the indictment before trial. During voir dire, both sides repeatedly mentioned the charge of murder. On the record, Haga rejected the State's plea bargain offer in exchange for which he would have pled guilty to murder.
After voir dire was complete and the jury sworn in, the State informed the trial court it was abandoning the word "at" in the indictment. Haga's attorney objected to the request as untimely. Counsel stated his client "was given notice of what he was charged with" and the defense "had an opportunity to file a motion to quash." The State withdrew its request.
It was not until the close of evidence that Haga first raised the issue that the indictment charged him only with deadly conduct. Haga's attorney argued:
. . . I will note again for the record that the indictment in this case accuses the defendant Shaun Haga on or about the 21st day of October, 2017, did then and there intentionally and knowingly cause the death of an individual named Harvey Gene Brown, Jr, by shooting at him with a firearm. Because of the way the indictment was issued, we have an in-artful attempt at indicting someone for the deadly conduct per Article 22.05 of the Texas Code of Criminal Procedure. My argument would be that the allegations are such that deadly conduct is alleged and it is the only offense that is really here. I say it was in-artfully drafted because it sought to indict the defendant for the offense of murder. In order to do that you have to do certain things and you have to make allegations that track the statute. In this case the State did not do that. If we were going to write a jury charge right now with the evidence that we have, we would in the application paragraph of the Court's charge be asking the jury to convict the defendant for the offense of murder for having attempted the offense of deadly conduct. Well, that is not the way that we found this indictment. . . . .
Haga's counsel argued that, based on the use of the word "at," the indictment charged only deadly conduct and not murder; therefore, Haga was entitled to a directed verdict of acquittal on murder. The court denied the request for a directed verdict and granted the request that the lesser-included offense of deadly conduct be included in the jury charge. Haga then moved for a mistrial based on legally insufficient evidence to support a finding of murder, which was also denied. During the charge conference, defense counsel reurged the motion for a directed verdict and stated:
We are not waiving those arguments. Understanding the Court's rulings and moving forward with the understanding of what the Court is going to be submitting to the jury, the issue of the murder, I would have to reurge my motion simply to indicate that we are not in agreement with what is charged because we do not believe the charge was appropriately described in the indictment. However, with the Court's ruling, we do not object to the specific applicable law in the general area of murder. I'm not waiving the argument on how that applies in this case or with this indictment.
The court denied the motion.
The jury instructions began with this statement: "The defendant, Shaun Andrew Haga, is accused of murder. The defendant has pleaded 'not guilty,' and you have heard all the evidence that will be produced on whether the defendant has been proved guilty." The jury was informed of the "accusations" as follows: "The state accuses the defendant of having committed the offense of murder. Specifically, the accusation is that on or about October 21, 2017, in Medina County, Texas, the defendant, Shaun Andrew Haga, did intentionally or knowingly cause the death of an individual, Harvey Gene Brown, Jr., by shooting at Harvey Gene Brown, Jr. with a firearm." The jury was also provided instructions on the law of murder and deadly conduct.
B. Standard of Review & Analysis
When reviewing claimed charge error, we first determine whether charge error occurred. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). Haga does not complain on appeal that the instruction on murder was incorrect. Instead, his argument is that the jury should not have been instructed on murder because he was indicted only for deadly conduct. In other words, according to Haga, the instructions on murder should never have been included in the jury charge because he was not indicted for murder. By couching his argument as jury charge error, Haga attempts to avoid the questions of whether the indictment provided him with notice that he was being charged with the offense of murder and, if it did, whether he has waived his complaint on appeal. See Nguyen v. State, 506 S.W.3d 69, 78 (Tex. App.-Texarkana 2016, pet. ref'd).
In Nguyen, the indictment alleged that by "driving recklessly," Nguyen "intentionally, knowingly, or recklessly" injured Willett by causing him to crash his motorcycle. 506 S.W.3d at 78. On appeal, Nguyen contended that, by alleging he acted recklessly, the State was required to allege in the indictment "the act or acts relied upon to constitute recklessness" and, because the State failed to do so, "the indictment could not support or authorize a verdict or judgment based on reckless conduct." Therefore, Nguyen concluded, the trial court erred in submitting aggravated assault with a deadly weapon to the jury based on recklessness. The court of appeals held, "[d]espite Nguyen's attempt to couch this as a jury charge error, it is apparent from his argument that he 'challenges his conviction on the basis of a defective charging instrument' as 'recklessness was not properly alleged . . . in the manner mandated by Article 21.15.'" Id.
"If 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). "Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this code." Id.
If Haga had cause to question the allegations in the indictment, the proper vehicle would have been a timely motion to quash the indictment, not a complaint that the trial court should not have included instructions on murder in the jury charge. See Moreno v. State, 405 S.W.3d 763, 766 n.3 (Tex. App.-Houston [1st Dist.] 2013, no pet.) ("If Moreno had cause to question the identical wording of the indictments, however, the proper vehicle would have been a timely motion to quash the information, not an unpreserved double jeopardy appeal."). Therefore, we conclude Haga waived his complaint that the indictment was insufficient to support the trial court's submission of murder to the jury. See Nguyen, 506 S.W.3d at 78 (concluding that because Nguyen waived any complaint that the indictment failed to allege recklessness as required by Article 21.15, he also waived any complaint that the indictment was insufficient to support the trial court's submission of recklessness to the jury).
The court concluded Nguyen was required to assert any objection "to any defect, error, or irregularity of form or substance in [the] indictment" before trial. 506 S.W.3d at 78 (quoting Tex. Code Crim. Proc. art. 1.14(b)). By failing to do so, Nguyen waived any complaint that the indictment failed to allege recklessness as required by Article 21.15. Id. Therefore, Nguyen also waived any complaint that the indictment was insufficient to support the trial court's submission of recklessness to the jury.
CONCLUSION
For the reasons stated above, we affirm the trial court's judgment.