Falcone, David D. v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmedand Opinion filed January 16, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00073-CR

____________

DAVID D. FALCONE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 860,873

M E M O R A N D U M O P I N I O N

Appellant David D. Falcone was charged by indictment with the felony offense of aggravated sexual assault of a child. Appellant pleaded guilty to the offense and was sentenced to 30 years= confinement in the Texas Department of Criminal Justice, Institutional Division. In a single point of error, appellant contends that the indictment violated his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution because it did not allege a culpable mental state as to the age of the minor victim. Specifically, appellant contends the indictment was defective because it did not allege appellant knew the victim was under fourteen years of age. We affirm.

Factual and Procedural Background

Appellant was charged by indictment on November 29, 2000 with the felony offense of aggravated sexual assault of a child. The victim was appellant=s 13-year-old step-daughter.

Appellant entered a guilty plea on September 19, 2001, in accordance with an agreement with the State. In relevant part, the agreement provided the following: (1) there was no agreed recommendation regarding punishment, (2) a presentence investigation (PSI) would be ordered, and (3) the State would recommend a sentencing cap of forty years. In a form document entitled Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, appellant also agreed to waive any right of appeal he may have if the court accepted his agreement with the State.

On December 18, 2001, the trial court, after receiving the PSI report and hearing testimony from witnesses for both parties, found appellant guilty and sentenced him to 30 years= confinement in the Texas Department of Criminal Justice, Institution Division.[1] Appellant filed a general notice of appeal the same day.

Discussion

The State argues that we lack jurisdiction over the appeal because appellant=s general notice of appeal failed to comply with the requirements of Texas Rule of Appellate Procedure 25.2(b)(3), and appellant agreed to waive the right to appeal as part of the plea agreement. However, assuming, without deciding, that we have jurisdiction over appellant=s appeal, we find that appellant has waived his sole issue.

Texas Code of Criminal Procedure article 1.14(b) provides that if a 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 postconviction proceeding. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2002). The failure to allege an element of an offense in an indictment or information is a defect of substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). Article 1.14(b) requires substance exceptions to be raised pretrial; otherwise, the defendant has forfeited his right to raise the objection on appeal or by collateral attack. Id. Consequently, an indictment or information flawed by a defect of substance but which purports to charge an offense is not fundamentally defective and, in the absence of a pretrial objection, will support a conviction. Ex Parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998); Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App. 1997).

Here, the record contains no indication that appellant ever objected to the indictment. While appellant acknowledges that no pretrial motions were filed to bring the alleged defect in the indictment to the trial court=s attention, he offers no argument or authority to support any contention that this case falls within an exception to the requirements of article 1.14(b). Instead, he merely states, in a cursory fashion, that it would have been futile to file any pretrial motions because this genre of offense is deemed one of strict liability under Texas law. Therefore, we find that appellant has waived his sole issue and presents nothing for review.

The judgment is affirmed.

/s/ Paul C. Murphy

Senior Chief Justice

Judgment rendered and Opinion filed January 16, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Murphy.1 (Hudson, J. concurs without opinion.)

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant was also required to register as a sex offender.

1 Senior Chief Justice Paul C. Murphy participating by assignment.