In Re: John Wayne Charleston--Appeal from of County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00094-CV
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IN RE: JOHN WAYNE CHARLESTON
Original Mandamus Proceeding
Before Morriss, C.J., Moseley and Cornelius,* JJ.
Memorandum Opinion by Justice Moseley

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*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

John Wayne Charleston (1) petitions this Court for a writ of mandamus, claiming that the trial court erroneously interlined the word "aggravated" next to "robbery" on Charleston's 1999 indictment from Cass County. (2) Specifically, Charleston would have us direct the trial court to issue a declaratory judgment wherein that court would declare its actions to have violated Charleston's Due Process and Equal Protection (3) rights. Charleston claims he suffered such constitutional deprivations when the trial court made the above-mentioned interlineation on the indictment, as well as changing the Texas Penal Code citation to read "TEXAS PENAL CODE 29.03," rather than 29.02. (4) Because we find that Charleston has failed to state a case where mandamus is appropriate, we dismiss this petition without deciding whether an order from this Court directing the entry of a declaratory judgment of the type which Charleston seeks is a remedy available to him.

"[M]andamus is a drastic remedy, to be invoked only in extraordinary situations." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex. Crim. App. 1994). To permit the issuance of such writs in less than extraordinary situations "would encourage piecemeal litigation and frustrate the efficient administration of justice." Id. (quoting State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992) (orig. proceeding)). Mandamus will issue only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994);Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). An abuse of discretion occurs only when the record affirmatively shows the trial court "acted without reference to any guiding rules or principles, or acted in an arbitrary or unreasonable manner." Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994).

Charleston has attached to his petition two copies of the indictment. Both bear typed allegations stating:

OFFENSE: ROBBERY

STATUTE: TEXAS PENAL CODE 29.02

On the second copy, the word "Aggravated" has been handwritten next to "ROBBERY," and the last numeral in "29.02" has been changed to read "29.03." Otherwise, the two copies are identical. Each bears a stamp of the Cass County District Clerk. Both allege the offense of robbery, then allege three prior felony convictions, and, finally, allege that Charleston "used and exhibited a deadly weapon, to-wit: a wrench during the commission of the felony offenses [sic] set out in the first paragraph hereof."

After jurisdiction vests in a trial court by the filing of an indictment, a defendant who fails to object to any defect, error, or irregularity of form or substance in that indictment, waives and forfeits the right to object to the defect, error, or irregularity; and the objection may not be raised on appeal or in any other post-conviction proceeding. Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990); see also Ex parte Smith, 178 S.W.3d 797, 803 (Tex. Crim. App. 2005). In order to complain of a defect of form or substance in an indictment, a defendant must object to the defect at trial. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).

The indictment in this case put Charleston on notice that he was charged with the offense of aggravated robbery, irrespective of whether that crime was listed in the document's style. The last paragraph alleged the use and exhibition of a deadly weapon during the offense. An indictment is sufficient if it accuses one of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute. See Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997); Studer, 799 S.W.2d at 271. However, even if Charleston had a complaint about the indictment, he was required to object before his trial began.

Charleston has failed to demonstrate that he is entitled to mandamus relief. We deny his petition.

 

Bailey C. Moseley

Justice

 

Date Submitted: August 13, 2007

Date Decided: August 14, 2007

1. This Court affirmed Charleston's conviction and sentence for armed robbery. Charleston v. State, 33 S.W.3d 96 (Tex. App.--Texarkana 2000, pet. ref'd).

2. Although Charleston names Honorable Ralph Burgess, the current judge of the 5th Judicial District, as Respondent, we point out that the trial judge at that time was actually Honorable Jack Carter, now a member of this Court. In an abundance of caution, Justice Carter has recused himself from this matter.

3. See U.S. Const. amends. V, XIV.

4. Section 29.02 of the Texas Penal Code describes the offense of robbery; Section 29.03 of the Texas Penal Code describes the offense of aggravated robbery. Tex. Penal Code Ann. 29.02, 29.03 (Vernon 2003).