Opinion
No. 05-10-00770-CR
Opinion issued May 9, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-40134-PW.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Chasidy Shreese McWright appeals her conviction for fraudulent use and possession of identifying information. After entering a non-negotiated plea of guilty, the trial court found her guilty and sentenced her to three years' confinement and a $1,500 fine. In a single issue, appellant contends the indictment is fundamentally defective and should be dismissed because it does not state facts which, if proved, would show a violation of law or constitute a criminal offense. We affirm.
Background
Appellant was indicted for the fraudulent use and possession of identifying information. Appellant entered an open plea of guilty, waived her right to a jury, judicially confessed to having committed the offense, plead guilty, and was found guilty by the trial court. The trial court sentenced appellant to three years in prison and a $1,500 fine. This appeal ensued.Analysis
In her only issue, appellant contends the indictment is fundamentally defective and should be dismissed because it does not state facts which, if proved, would show a violation of law or constitute a criminal offense. Specifically, she argues because the indictment does not allege the intent to defraud, which is a "material fact in the description of the offense," the indictment is fundamentally flawed in violation of article 21.05 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. Art. 21.05 (West 2009) ("Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment. . . .") The indictment contains a heading, which reads: " CHARGE FRAUD USE/POSS ID 50." The State contends that this is a short-hand reference to section 32.51 of the penal code. Tex. Penal Code Ann. § 32.51 (West Supp. 2010). In her brief, appellant concedes "the indictment appears to track the statutory language found in Section 32.51 of the Penal Code." This statute provides that a "person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses . . . identifying information of another person without the other person's consent." Id. at § 32.51(b)(1) (emphasis added). The indictment in this case alleged that appellant:unlawfully, intentionally and knowingly, without the effective consent of RALPH STOW, obtain and possess and transfer identifying information of RALPH STOW, to-wit: NAME OF RALPH STOW,
And further did unlawfully, intentionally and knowingly, without the effective consent of THOMAS GLYNN, obtain and possess and transfer identifying information of THOMAS GLYNN, to-wit: DISCOVER CREDIT CARD NUMBER ENDING IN 4014,
And further did unlawfully, intentionally and knowingly, without the effective consent of WESLEY REEDER, obtain and possess and transfer identifying information of WESLEY REEDER, to-wit: UNITED STATES SOCIAL SECURITY NUMBER ENDING IN 5483.
And [appellant] did unlawfully, intentionally and knowingly, without the effective consent of at least 3 persons, obtain and possess and transfer identifying information of at least 3 persons, in an amount of 50 or more items.We agree with the parties that the indictment appears to track the language of section 32.51 of the penal code, but does not contain the mental state. The Court of Criminal Appeals has held that the failure to allege an essential element, such as a culpable mental state, is a defect of substance. See Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). Section 1.14(b) of the code of criminal procedure states that if the appellant does not object to a defect, error, or irregularity of substance in an indictment before the date of trial, she waives and forfeits the right to object to the defect, error, or irregularity and she may not raise the objection on appeal. See Tex. Code Crim. Proc. Ann. Art. 1.14(b) (West 2005). Prior to the entry of her guilty plea, appellant specifically waived "any and all defects, errors, or irregularities, whether of form or substance, in the charging instrument." Appellant has, therefore, waived any complaint of defects in the indictment. See id.; Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009). We overrule appellant's sole issue and affirm the judgment of the trial court.