The State of Texas v. Gerald Gonzales--Appeal from County Court at Law No. 1 of Hays County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-193-CR
THE STATE OF TEXAS,

APPELLANT

 
vs.
GERALD GONZALES,

APPELLEE

 
FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY,
NO. 32,653, HONORABLE HOWARD S. WARNER, II, JUDGE

This is an appeal by the State from an order quashing and dismissing an information. See Tex. Code Cr. P. Ann. art. 44.01(a)(1) (Supp. 1991). The complaint and information charged Gerald Gonzales with the misdemeanor offense of possession of marihuana in a useable quantity of less than two ounces. See Tex. Health & Safety Code Ann. sec. 481.121 (a) & (b) (Supp. 1991). Appellee Gonzales filed a motion to quash the information on the basis that nformation (1) failed to allege or name a complainant and (2) was based upon a complaint which did "not adequately allege the authority to so act of the person before whom the complaint was sworn and subscribed."

On August 31, 1990, the trial court, apparently after a hearing, granted appellee's motion to quash and ordered the information dismissed. The State gave notice of appeal.

The State advances four points of error. In points of error two and three the State contends that the trial court erred in quashing the information because there is no need to allege or name a complaining witness in the information in a possession of marihuana prosecution, and that the instant complaint's jurat was sufficient to meet the requirements of the law. The fourth point of error contends that the trial court's "dismissal of the case" was an improper remedy when a motion to quash has been granted. The State, as appellant, contends in its first point of error that the trial court's action in quashing and dismissing the information was erroneous "because the record is silent as to whether the substantial rights of the defendant were prejudiced."

The elements of the Class B misdemeanor offense of possession of marihuana are (1) a person (2) knowingly or intentionally (3) possesses a useable quantity of marihuana (4) in an amount of two (2) ounces or less.

The instant information alleged in pertinent part that appellee: did "then and there knowingly and intentionally possess a useable quantity of marihuana of less than two (2) ounces." Subject to rare exceptions, an indictment or information that tracks the words of the penal statute in question is legally sufficient. Marrs v. State, 647 S.W.2d 286, 289 (Tex. Cr. App. 1983); see also Garcia v. State, 747 S.W.2d 379, 380 (Tex. Cr. App. 1988); Marras v. State, 741 S.W.2d 395, 401 (Tex. Cr. App. 1987). The instant information tracks the language of the statute. See Tex. Health & Safety Code sec. 481.121 (a) & (b) (Supp. 1991). In light of the elements and the nature of the offense, there need not necessarily be a "victim" or complaining witness in a possession of marihuana offense for there to be a violation of the law. Moallen v. State, 690 S.W.2d 244, 246 (Tex. Cr. App. 1985). Any reliance upon Lewis v. State, 544 S.W.2d 430, 431 (Tex. Cr. App. 1976), to the effect that, in every case the name of the complaining witness is a necessary requisite to a valid indictment or information is misplaced. See Moallen, 690 S.W.2d at 245-46; Pierce v. State, No. 3-90-213-CR, this day decided. The instant information was legally sufficient to charge the offense alleged. It was not void for the failure to allege the name of the complaining witness in the body thereof.

Any contention that the information is defective because it failed to allege therein the name of the person who signed and swore to the complaint is without merit. It is not required that the complaint be referred to in the information. Ashley v. State, 237 S.W.2d 311, 312 (Tex. Cr. App. 1951). The trial court erred in granting the motion to quash the information on the basis that no complainant was named therein. (1) The State's second point of error is sustained.

In the third point of error, the State claims that the trial court erred in granting the first motion to dismiss because the jurat on the complaint was sufficient. It was appellee's claim that the jurat was insufficient to show the authority or official character of the officer or person before whom the complaint was subscribed and sworn. The jurat on the complaint was subscribed and sworn to before "John A. Costello, Attorney For The State, Hays County, Texas." The jurat in the instant case is the same as the one in Pierce, No. 3-90-213-CR. For the reasons set forth in Pierce, the trial court properly granted the motion to quash on the basis that the jurat did not properly reflect the authority of John A. Costello to take the oath in question. The State's third point of error is overruled.

In the fourth point of error, the State urges that "dismissal of the case is the improper remedy when a motion to quash is granted." If there is a distinction to be made between dismissing the "case" as opposed to dismissing the "information," it is observed that the order in the instant case dismissed the "information" only.

The granting of a motion to quash and the statutory motion to set aside an indictment or information (2) are synonymous in their common meaning of "to vacate, to annul, to make void." Eaves v. State, 800 S.W.2d 220, 221 n.5 (Tex. Cr. App. 1990). See also Moreno, 807 S.W.2d 327, 329 n.2 (Tex. Cr. App. 1991). Thus, a trial court's action in quashing or dismissing an indictment or information in essence terminates the proceedings. See Moreno, 807 S.W.2d at 333.

If the motion to set aside or the exception to an indictment or information is sustained, the defendant in a misdemeanor case shall be discharged, but may be again prosecuted within the time allowed by law.

Tex. Code Cr. P. Ann. art. 28.04 (1989).

The State does not point out why the dismissal order was an improper remedy. If it be the State's contention that the dismissal somehow cut off its right to amend the complaint's jurat, it appears that the contention is being raised for the first time on appeal, presenting nothing for review. It is certainly not properly briefed. See Tex. R. App. P. Ann. 74(f) (Pamph. 1991). The State does assert that the trial court did not give it the opportunity to amend. Assertions in briefs not supported by the record cannot be considered. See Beck v. State, 573 S.W.2d 786, 788 (Tex. Cr. App. 1978); Herrin v. State, 525 S.W.2d 27, 29 (Tex. Cr. App. 1975). The fourth point of error is overruled.

The State, in its first point of error, urges that the trial court erred in granting the motion to quash and dismissing the information "because the record is silent as to whether the substantial rights of the defendant were prejudiced." See Tex. Code Cr. P. Ann. art. 21.19 and 21.23 (1990). The order entered by the trial court reflected that the motion to quash was "heard." The burden is on the party seeking review to see that a sufficient record is presented to show error requiring reversal. See Tex. R. App. P. Ann. 50(d) (Pamph. 1991). That burden was on the State in this case. If there was a statement of facts prepared, it is not in the record. See Tex. R. App. P. Ann. 53(a) (Pamph. 1991). For this and other reasons stated in Pierce (No. 3-90-213-CR) where the state raised the same contention, the first point of error is overruled.

The order granting the motion to quash and dismissing the information on the basis that the complaint's jurat was defective is affirmed. The State is free, if it desires, to file a new complaint and information "within the time allowed by law." See article 28.04.

 

John F. Onion, Jr., Justice

[Before Justices Powers, Jones and Onion*]

Affirmed

Filed: September 25, 1991

[Do Not Publish]

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (1988).

1. Whenever the trial court sustains a motion, it is presumed, unless otherwise shown, that it has acted on the grounds asserted by the movant. Wilson v. State, 792 S.W.2d 477, 481 (Tex. App. 1990, no pet.).

2. See Tex. Code Cr. P. Ann. art. 27.03 (1989).