Hinojosa v. State

Full title: JOSE RODOLFO HINOJOSA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Apr 1, 2004

No. 01-03-00009-CR (Tex. App. Apr. 1, 2004)

Opinion

No. 01-03-00009-CR.

Opinion issued April 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause No. 907704.

Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.

MEMORANDUM OPINION

SHERRY RADACK, Chief Justice.

Appellant, Jose Rodolfo Hinojosa, without an agreed recommendation from the State, pleaded guilty to the felony offense of possession with intent to deliver a controlled substance, namely, cocaine, weighing at least 400 grams. The trial court found appellant guilty and assessed punishment at 20 years' confinement and a $5,000 fine. In a single point of error, appellant contends that his conviction is void because it was based on a "bogus" indictment. We affirm.

Anders Brief

Appellant's appointed counsel moved to withdraw from appellant's representation on appeal and, in support, submitted a brief stating his opinion that the appeal was without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds of error on appeal. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.-Houston [1st Dist.] 2000, no pet.). Counsel advised appellant of his evaluation of the appeal, sent appellant a copy of his Anders brief, and informed him of his right to file a pro se response. The State waived its opportunity to respond to appellant's Anders brief. Thereafter, appellant filed a pro se response.

Background

On April 3, 2002, appellant was arrested and detained in the Harris County Jail. On April 4, 2002, the State filed a complaint charging appellant with the felony offense of possession with intent to deliver a controlled substance, namely cocaine, weighing at least 400 grams. On June 19, 2002, the Harris County Grand Jury indicted appellant.

Discussion

In his sole point of error, appellant argues that his conviction is void because it was based on a "bogus" indictment. Appellant bases his argument on language on the face of the indictment indicating that it was prepared on April 4, 2002, less than 24-hours after his arrest. According to appellant, this alone proves that the prosecutor prepared the indictment without a grand jury first voting to indict appellant. Appellant further hypothesizes that, on June 19, 2002, the grand jury foreman, or someone other than the foreman, "rubber-stamped" the "bogus" indictment. Appellant asserts that this process violated articles 20.19 and 20.20 of the Texas Code of Criminal Procedure,¹ Article 5, section 12(b) of the Texas Constitution,² and the Fifth Amendment to the United States Constitution.³ However, it is well established that if an indictment is valid on its face, an appellate court may not go behind the indictment to determine whether the indictment was properly returned or to review alleged procedural errors in its presentment. Matney v. State, 99 S.W.3d 626, 629 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing DeBlanc v. State, 799 S.W.2d 701, 706 (Tex.Crim. App. 1990)); Douglas v. State 739 S.W.2d 660, 661-62 (Tex. App.-Houston [1st Dist.] 1987, pet. ref'd). Under article 21.02 of the Code of Criminal Procedure, an indictment is deemed sufficient if it has the following requisites:

1. It shall commence, "In the name and by authority of The State of Texas".

2. It must appear that the same was presented in the district court of the county where the grand jury is in session.

3. It must appear to be the act of a grand jury of the proper county.

4. It must contain the name of the accused, or state that his name is unknown and give a reasonably accurate description of him.

5. It must show that the place where the offense was committed is within the jurisdiction of the court in which the indictment is presented.

6. The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.

7. The offense must be set forth in plain and intelligible words.

8. The indictment must conclude, "Against the peace and dignity of the State".

9. It shall be signed officially by the foreman of the grand jury.

Tex. Code Crim. Proc. Ann. art. 21.02 (Vernon 1989). In this case, the indictment, signed by the grand jury foreman, states:

In the name and by authority of the State of Texas: The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, Jose Rodolfo Hinojosa, hereafter styled the Defendant, heretofore on or about April 3, 2002, did then and there unlawfully, knowingly possess with intent to deliver a controlled substance, namely, cocaine, weighing at least 400 grams by aggregate weight, including any adulterants and dilutants. Against the peace and dignity of the State.

There is no dispute that the indictment is valid on its face. Therefore, we may not go behind the indictment to review any alleged procedural errors in its presentment. Matney, 99 S.W.3d at 630. Accordingly, we overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court. We grant appellate counsel's motion to withdraw. Stephens, 35 S.W.3d at 771. We note that counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim. App. 1997).