Opinion
No. 05-04-01210-CR
Opinion issued August 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 47136. Reversed and Remanded.
OPINION
This is a State's appeal from the trial court's pretrial order granting appellee James Harbour's "Motion to Quash and Exception to Form of Indictment" in an arson case. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2004-05). The issue we must resolve is whether the trial court abused its discretion in quashing the indictment on the grounds stated in appellant's written motion to quash. Concluding the trial court abused its discretion, we reverse the trial court's order granting appellee's motion and remand this case to the trial court for reinstatement of the indictment and further proceedings consistent with this opinion. Background Appellee was arrested and indicted on June 7, 2000 for arson under section 28.02 of the Texas Penal Code, which reads in relevant part:
(a) A person commits an offense if he starts a fire or causes an explosion with intent to destroy or damage:
(2) any building, habitation, or vehicle:
(A) knowing that it is within the limits of an incorporated city or town.See Act of May 29, 1993, 63d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3628, amended by Act of May 24, 2001, 77th Leg., R.S., ch. 976, § 1, 2001 Tex. Gen. Laws 2138, 2138 (current version at Tex. Pen. Code Ann. § 28.02(a)(2)(A) (Vernon 2003)). Omitting the formal parts, the indictment alleges, in relevant part, that JAMES DALE HARBOUR, hereinafter called "Defendant" did then and there, with intent to damage and destroy a habitation located at 512 E. Texas Street in Denison, Grayson County, start a fire, or cause an explosion by a manner and means unknown to the Grand Jury, knowing that said habitation was within the limits of an incorporated city and town, namely, Denison, Texas. Appellee filed a written pretrial "Motion to Quash and Exception to Form of Indictment." See Tex. Code Crim. Proc. Ann. art. 27.09, 27.10 (Vernon 1989). Paragraph 3 of the motion alleges, "This exception is brought pursuant to the grounds specified in Article 27.09 of the Texas Code of Criminal Procedure." Paragraph 4 states, James Harbour alleges that there is a want of requisite in the form of the Indictment in that it does not comply with the requirements of Article 21.02 of the Texas Code of Criminal Procedure, to-wit: a. the Indictment does not set forth the offense in plain or intelligible language. Oral arguments were presented to the trial court on appellee's motion. However, no evidence was presented. The record reflects the prosecutor was confused about exactly what appellee's written complaint was, as evidenced by the following exchange:
[Prosecutor]: And I'm a little confused about what he's arguing because I think he's claiming that they have not received notice based on manner and means in the indictment. However, I'm a little confused about what he's arguing, because what he's arguing is not the manner and means. So, I just want to clear that up so I can make the appropriate argument or response.
[Defense counsel]: Your Honor, what I am arguing is that the manner and means are not identified . . .
[Prosecutor]: Well, that's what I'm trying to get clear, because is he complaining about the part in the indictment that says that he
[The Court]: I guess he wants to know how you — how he allegedly started the fire or explosion. Is that —
[Prosecutor]: Is he talking about manner and means —
[The Court]: Hold on a second.
[Prosecutor]: — unknown to the Grand Jury? I don't know which part of the indictment he's complaining about.
[The Court]: Can you tell her?
[Defense Counsel]: Yes. I think that they ought to have — they ought — they need to be able to say manner and means by use of a solvent or something.The prosecutor then argued, based on Taylor v. State, 735 S.W.2d 930 (Tex.App.-Dallas 1987, no pet.), that allegations of the manner and means of starting the fire are not required to invoke the trial court's jurisdiction. Defense counsel distinguished the Taylor case, and cited to the trial court "the Castro case" as supporting his argument that an unknown manner and means of setting the fire was insufficient either to give his client notice of the offense or to bar a subsequent prosecution for the same offense. Later that day, the trial court sent a letter to the parties stating he was granting the motion to quash without stating its grounds. Standard of Review and Applicable Law We review the trial court's ruling on a motion to quash under an abuse of discretion standard. See State v. York, 31 S.W.3d 798, 801 (Tex.App.-Dallas 2000, pet. ref'd). A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. See Resendiz v. State, 112 S.W.3d 541, 544 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 1032 (2004). An accused in a criminal case is guaranteed the right to demand the nature and cause of the accusation against him and to have a copy thereof. See Tex. Const. art. 1, § 10; DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App. 1988). Statutorily, a criminal offense must be set forth in a charging instrument in plain and intelligible words. See Tex. Code Crim. Proc. Ann. art. 21.02(7) (Vernon 1989). "Everything should be stated in an indictment which is necessary to be proved." Id. art. 21.03. And the certainty required in an indictment is such as will enable the accused to prepare his defense and also to plead the judgment that may be given upon it in bar of any prosecution for the same offense. See id. arts. 21.04, 21.11; DeVaughn, 749 S.W.2d at 67. Except in rare cases, a charging instrument that tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense, and the State need not allege facts which are merely evidentiary in nature. See State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App. 1996). A charging instrument that is valid on its face and returned by a legally constituted grand jury is sufficient to mandate trial of the charge on its merits. See State v. Rosenbaum, 910 S.W.2d 934, 947-48 (Tex.Crim.App. 1995) (op. on reh'g). Failure of a charging instrument to contain an essential element of the offense, while a defect of substance, is nonjurisdictional. See Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App. 1990). Further, failure to timely object to omission of an essential element waives the error. See Rodriquez v. State, 799 S.W.2d 301, 302-03 (Tex.Crim.App. 1990). A charging instrument may be attacked either on grounds of substance or form, or both. A defect of form is a failure to allege facts sufficient to give the accused adequate notice of precisely what he is charged with. See Tex. Code Crim. Proc. Ann. arts. 21.03, 21.04, 27.09. A defect of substance, however, is the absence of a requisite element of the offense. See Tex. Const. art. V, § 12; Tex. Code Crim. Proc. Ann. art. 21.01. To be timely, an objection and exception should be filed before an announcement of ready by the defendant. See Wilson v. State, 398 S.W.2d 291, 292 (Tex.Crim.App. 1966) (op.on reh.) An objection and exception should state the manner in which the indictment is deficient and show the precise nature of the defect which is being objected to. See Jones v. State, 672 S.W.2d 798, 800 (Tex.Crim.App. 1984). Complaints such as "vague, indefinite," "does not fairly inform defendant of the offense" or "does not set forth offense with sufficient particularity" are generally not sufficient to preserve error. See Zimmerman v. State, 750 S.W.2d 194, 211-12 (Tex.Crim.App. 1988). Arguments on Appeal On appeal, the State contends the trial court erred in granting the motion on the grounds alleged. The State argues that alleging a specific manner and means is not required to invoke the trial court's jurisdiction nor does the failure to state a known manner and means render the indictment fundamentally defective. The State points to a factual difference between the indictment here and the indictment in Castillo. In the Castillo indictment, there was no allegation about manner and means, known or unknown. Here, the indictment alleges "start a fire, or cause an explosion by a manner and means unknown to the Grand Jury." The State, therefore, contends the indictment here sufficiently alleges a manner and means, albeit an unknown one, and is sufficiently specific to set forth the offense of arson in plain or intelligible language and is adequate to withstand a motion to quash. Thus, argues the State, the trial court abused its discretion in granting appellee's motion. Appellee, in response, phrases the issue on appeal as, "Did the trial court err in granting the motion to quash an arson indictment which said '. . . start a fire or cause an explosion by a manner and means unknown to the Grand Jury . . .'?" Appellee then concludes the trial court did not err, but correctly set aside the indictment because it failed to comply with articles 21.02, 21.04, and 27.09 of the Texas Code of Criminal Procedure. Thus, appellee, argues the trial court did not abuse its discretion. In support of his argument, appellee relies on Castillo, stating, The Castillo case said "start a fire or explosion" is not sufficient, if excepted to, as giving notice to the defendant. If that is a correct statement of Texas law, then to say that adding "manner and means unknown to the grand jury" to starting a fire or explosion" gives the defendant more notice is equivalent to mathematically saying that "two times zero equals two." Two times zero still equals nothing. Analysis We must first determine the scope of our review on appeal. We do so by reviewing the motion to quash appellee filed in the trial court. Appellee's motion to quash did not set out the specific manner in which the indictment was deficient. Thus, appellee's written motion did not invoke fundamental constitutional protections. Cf. Drumm v. State, 560 S.W.2d 944, 946 (Tex.Crim.App. 1977) (challenge to charging instrument "when properly asserted with adequate statement of the manner in which notice is deficient, fundamental constitutional protections are invoked"). Nor did appellee's written motion state how, or even that, the indictment failed to put him on notice of the offense with which he was charged or to bar a subsequent offense. Nor did the written motion complain the indictment was substantively deficient for failure to state an offense. A motion to quash an indictment must be in writing. Tex. Code Crim. Proc. Ann. art. 27.10; State v. Goldsberry, 14 S.W.3d 770, 775 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Article 27.10 serves two purposes. First, written notification assures adequate notice to the State either allowing an opportunity for amendment, or providing the State an opportunity to prepare for a hearing on such issue. Second, written notification preserves any error for appellate review. The written motion ensures that the State receives meaningful review of the defendant's successful challenge. Id. (citing State v. Abrego, 974 S.W.2d 177, 179 (Tex.App.-San Antonio 1998, no pet.)). Appellee's written motion raised complaints of two specific failures of the indictment: (1) violations of article 21.02 and 27.09 of the code of criminal procedure. Article 27.09(2) implicates articles 21.02 and 21.21. Article 21.02 sets out the requisites of an indictment. However, appellee's written motion to quash complained only of the requisite number seven, requiring that the offense be set forth in plain and intelligible language. Consequently, we limit our review to the trial court's ruling based on the complaints raised in the written motion to quash. To the extent the trial court's ruling was based on grounds that were outside the scope of the written motion, the trial court erred. See York, 31 S.W.3d at 803. We will not address those arguments on appeal. Limiting our review to the allegation in the written motion to quash that the indictment is not set forth in plain and intelligible language, we now consider the State's contention the trial court erred in granting appellee's motion to quash because the State was not required to allege a known manner and means of how appellee started the fire. The elements of the offense of arson, as alleged, are: (1) a person (2) starts a fire or causes an explosion (3) with intent to destroy or damage (4) any habitation (5) knowing it is within the limits of an incorporated city or town (6) by a manner and means unknown to the Grand Jury. See Tex. Pen. Code Ann. § 28.02. Allegations of an unknown manner and means are permissible. The State may allege manner and means unknown to the grand jury, and need not be prepared to prove the manner or means was unknown to the grand jury, nor that the grand jury used due diligence to ascertain the means used, unless the evidence at trial shows what that manner or means was. See Matson v. State, 819 S.W.2d 839, 847 (Tex.Crim.App. 1991). "If the grand jury did not know, they did not know." Edlund v. State, 677 S.W.2d 204, 208 (Tex.App.-Houston [1st Dist.] 1984, no pet.). And if allegations of manner and means unknown to the grand jury reflect the findings of the grand jury, as is presumed, then the allegation that the exact nature of the manner and means was unknown is sufficient, even in light of a motion to quash. See id. (allegation that exact nature of the instrument was unknown is sufficient, even in light of motion to quash). Allegation of manner and means of "starting a fire" under section 28.02 is not a fundamental requisite of charging the offense for purposes of invoking the trial court's jurisdiction. Taylor, 735 S.W.2d at 943 (citing Castillo v. State, 689 S.W.2d 443, 449 (Tex.Crim.App. 1984)). But, in Castillo, the court of criminal appeals held the appellant's motion to quash should have been granted because the indictment failed to allege a manner and means of how the arson was committed. See Castillo, 689 S.W.2d at 449. This case, however, is distinguishable from Castillo in two ways: first, the indictment here, unlike in Castillo, does allege a manner and means, albeit an unknown one; and second, appellee's complaint in his motion to quash is limited to the failure of the indictment to set forth the offense in plain and intelligible language, whereas the written motion to quash in Castillo was much broader, more specific, and invoked constitutional considerations not invoked here. Reviewing the trial court's ruling under the appropriate standard, we conclude the trial court abused its discretion by both exceeding the scope of appellee's written motion to quash, and by quashing the indictment in the face of presumptively accurate allegations of an unknown manner and means of starting the fire. The trial court's action terminated the prosecution in the face of a facially valid indictment returned by a presumptively legally constituted grand jury which mandated trial of the charge on its merits. Rosenbaum, 910 S.W. 2d at 947-48. We resolve the State's issue in its favor. We reverse the trial court's order quashing the indictment. We remand this case to the trial court with instruction to reinstate the indictment.
We construe the trial judge's August 5, 2004 letter to the parties that "[d]efendant's motion to quash the indictment in the above styled cause is granted" as its order.
Appellee's written motion was filed on December 2, 2003. On August 5, 2004, arguments on the motion were presented to the court, after which the trial judge granted the motion. Appellee was indicted on June 7, 2000 for arson which is alleged to have been committed on or about December 27, 1998. The record reflects a letter from the Grayson County Attorney dated December 6, 1999 to appellant's attorney to which were attached ten documents: Denison Synopsis Investigation Report (12 pages), Photographic Index Sheet (5 pgs.), Photos (21 pgs.), Probable Cause Statement, Texas Fire Incident Fire Report (2 pgs.), Consent to Search Kimberly Diane Harbour (2 pgs.), Offense Report #9812-1395 (2 pgs.), Stmt. Of Darla Bookout Extradition of Defendant, and Complaint.
On November 16, 2001, appellant filed a motion for discovery, which the trial judge set for a pretrial hearing on November 19, 2001.
The case counsel really meant was Castillo v. State, 689 S.W.2d 443 (Tex.Crim.App. 1984), and the State so concedes.
The State has the right of appeal from a trial court's dismissal of an indictment or information that occurred on or after December 1, 1987. See Tex. Const. art. V, § 26; Tex. Code Crim. Proc. Ann. art. 44.01(a)(1). Although the trial court did not dismiss appellant's indictment, the trial court's order quashing the indictment is appealable. See State v. Moreno, 807 S.W.2d 327, 332 (Tex.Crim.App. 1991); State v. Eaves, 800 S.W.2d 220, 224 (Tex.Crim.App. 1990). Following the grant of a motion to quash, the State has no affirmative duty to amend the indictment before appealing. See State v. Garrett, 824 S.W.2d 181 (Tex.Crim.App. 1992). For the purpose of appeal, a trial court's order is appealable if the ruling of the trial court effectively terminates the prosecution. See Eaves, 800 S.W.2d at 224. An order quashing an information effectively terminates the prosecution. See Moreno, 807 S.W.2d at 332.
Article 21.04 states "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."