Douglas Leroy Hopkins v. The State of Texas--Appeal from Co Crim Ct at Law No 7 of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-98-171-CR

DOUGLAS LEROY HOPKINS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court at Law No. 7

Harris County, Texas

Trial Court # 98-04127

O P I N I O N

Appellant Hopkins appeals his conviction for driving while intoxicated for which he was sentenced to 180 days in the county jail, probated for one year, and fined $1,500.

On January 29, 1998, the district attorney filed a complaint and information against Appellant for DWI, alleging the offense occurred on or about January 29, 1998. The information made no allegation that the offense occurred anterior to the filing of the information.

Appellant filed a motion to quash the information. After a hearing on March 24, 1998, the trial judge denied such motion. On that same day Appellant entered a plea of no contest. The judge found Appellant guilty and assessed punishment at 180 days in jail, probated for one year, and a $1,500 fine.

Appellant appeals on two points of error:

(1) The trial court erred in denying Appellant s motion to quash the information.

(2) The trial court erred in denying Appellant s motion to quash the information as the failure to allege the offense took place anterior to the filing of the information was an error of substance, cannot be amended, and the case should be dismissed.

The information reads in pertinent part:

The State of Texas Arrest date: 1/29/98

vs. Date prepared: 1/29/98

Douglas Leroy Hopkins Filed: 1/29/98

In the Name and by authority of the State of Texas:

Comes now the undersigned Assistant District Attorney of Harris County, Texas, on behalf of the State of Texas, and presents in and to the County Criminal Court at Law No. 7 in Harris County, Texas, Douglas Leroy Hopkins, hereafter styled defendant, on or about January 29, 1998, did then and there unlawfully while intoxicated, namely not having the normal use of his mental and physical facilities by the reason of the introduction of alcohol into his body, operate a motor vehicle in a public place.

Appellant argues that the complaint and information were both made and filed on January 29, 1998, indicating that the offense, with which appellant was charged, was committed on January 29, 1998; and that there was no allegation that the offense took place anterior to the making and filing of the information and/or complaint, for which reason it should have been quashed.

Appellant further argues that the information and complaint were filed in violation of Article 21.21(6) of the Texas Code of Criminal Procedure, which provides:

Art. 21.21. Requisites of an Information. An information is sufficient if it has the following requisites:

. . .

(6) that the time mentioned be some date anterior to the filing of the information and that the offense does not appear to be barred by limitations.

Appellant cities Gill v. State, 20 SW 578 (Tex. Crim. App. 1892); Martini v. State, 205 S.W.2d 988, 989 (Tex. Crim. App. 1947); Cockrell v. State, 227 S.W.2d 216 (Tex. Crim. App. 1950); and Thomas v. State, 252 S.W.2d 162 (Tex. Crim. App. 1952), as dispositive of this case in his favor.

These cases hold that an information filed on a date which alleges that an offense occurred on that same date is fatally defective if it does not allege that the offense was committed before the filing of the information.

More recent cases of Clark v. State, 590 S.W.2d 512, 513 (Tex. Crim. App. 1979); Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997); Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997), hold that the on or about language of an information or indictment allows the State to prove a date (or time) other than the one alleged in the information or indictment as long as the date (or time) is anterior to the information or indictment and is within the statutory limitation period. These cases hold that the State is not bound by the alleged date so long as the date (or time) proved is anterior to the filing of the State s pleadings and is not so remote as to show the offense is barred by limitations.

We choose to follow the most recent cases and disregard the earlier cases. Moreover, Rule 44.2(b), Texas Rules of Appellate Procedure, Reversible Error in Criminal Cases, provides:

(b) Other errors. Any other error, defect, irregularity or variance that does not affect substantial rights must be disregarded.

We hold that the alleged error in the information does not affect substantial rights and should be disregarded. For all of the above reasons both of Appellant s points are overruled.

The judgment is affirmed.

FRANK G. MCDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 16, 1999

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