Ruben Rodriguez Montano v. The State of Texas--Appeal from 143rd District Court of Reeves County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RUBEN RODRIGUEZ MONTANO, )

) No. 08-04-00282-CR

Appellant, )

) Appeal from the

v. )

) 143rd District Court

THE STATE OF TEXAS, )

) of Reeves County, Texas

Appellee. )

) (TC# 00-03-06402-CRR)

)

O P I N I O N

Appellant waived his right to be indicted by indictment by a grand jury and pled guilty to the offense of delivery of a controlled substance as alleged in the information. On appeal, Appellant raises two issues. In Issue One, Appellant contends that his waiver to his right to a grand jury indictment was not given intelligently, voluntarily, and knowingly. In Issue Two, Appellant challenges the trial court=s jurisdiction to hear his case due to an insufficient criminal information. We affirm.

Appellant was charged by information of the offense of delivery of a controlled substance, namely heroin. After pleading guilty, Appellant was punished to 10 years of deferred adjudication and imposed a $5,000 fine. Approximately four years later, the State filed a Motion to Adjudicate Guilt. The trial court entered an order issuing capias for Appellant=s arrest for violating the terms and conditions of his community supervision. Thereafter, Appellant was assessed a punishment of 12 years= confinement.

Appellant filed a motion for new trial, wherein he alleged fundamental error on the face of the indictment because the date the offense committed was reflected as August 27, 1999, and the filed date of the indictment was stamped March 20, 1999. The District Clerk of Reeves County filed a Motion to Correct the Record, making the representation that the filing date that appeared on the information was incorrectly stamped and that the actual filing date was March 20, 2000. In response, Appellant filed a Motion to Quash and Objections to District Clerk=s Motion to Correct Record, asserting that the district clerk lacked standing to file such motion. At the hearing on Appellant=s motion for new trial and the motion to correct the record, the State adopted the district clerk=s motion. The trial court then issued an order granting the Motion to Correct and ordered the correction of the file mark. Further, the trial court overruled Appellant=s motion for new trial. Appellant now timely files this appeal.

In Issue One, Appellant complains that the trial court failed in properly admonishing him as to his rights to a grand jury indictment. Appellant alleges that the trial court Asimply told him of his right to a grand jury indictment and then asked if he wished to proceed on a criminal information.@ Appellant contends that such cursory explanation resulted in the failure of his waiver of a right to a grand jury by indictment to be given in an intelligently, voluntarily, and knowingly manner.

Under the Texas Constitution article I, section 10, when charged with a felony, an individual has a constitutional right to be indicted by a grand jury. See Tex.Const. art. I, ' 10. A felony prosecution must be based on an indictment, unless the indictment is waived. State v. Chardin, 14 S.W.3d 829, 831 (Tex.App.--Austin 2000, pet. ref=d). Texas law allows indictment to be waived in any noncapital felony case. Tex.Code Crim.Proc.Ann. art. 1.141 (Vernon 2005) states:

A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.

For a waiver of an indictment to be effective under Article 1.141, it must be intelligently, voluntarily, and knowingly given by the accused while represented by counsel. Lackey v. State, 574 S.W.2d 97, 100 (Tex.Crim.App. 1978); King v. State, 473 S.W.2d 43, 44 (Tex.Crim.App. 1971); Garrett v. State, 625 S.W.2d 809, 810 (Tex.App.--Houston [14th Dist.] 1981, no pet.). When the record reflects that a defendant waived his or her right to an indictment and such waiver fully complied with Article 1.141, it is not error to try the defendant on a felony information. Ex parte Hunter, 604 S.W.2d 188, 190 (Tex.Crim.App. 1980).

The record in this case contains a Waiver of Specified Constitutional Rights, which states in pertinent part:

I am aware of my right to a trial, including the right to . . . my right to service of a copy of the indictment or information . . . . If the grand jury has not returned an indictment, I am aware that I have the right to be accused by indictment. I waive reading of the indictment or information . . . . All of these rights have been explained to me by my attorney and by the judge of this Court. I wish to waive, or give up, all of these rights and enter my plea of guilty as charged in the indictment or information.

The waiver was filed and signed on March 20, 2000 by the Appellant, by Appellant=s attorney[1], and by the trial judge approving such waiver.

At the deferred adjudication hearing held also on March 20, 2000, the following exchange took place between the trial judge, the Appellant, and Appellant=s counsel:

The Court: Now, Mr. Montano, no one can make you go to trial on an Information - that=s something where the State of Texas files a piece of paper with the Clerk and he alleges that you=ve committed a crime.

In this country, no one can be made to go to trial on a felony case unless a grand jury return an indictment. You understand that?

Appellant: Yes, sir.

The Court: Now, you have a right to give up that grand jury indictment and to proceed on this Information if you want to do that. Is that what you want to do?

Appellant: Yes, sir.

The Court: Do you agree with your client=s decision, Mr. Albidrez?

Defense: I do, Your Honor.

The Court: Now, even so, this Information is >hot off the press= - it was just filed this morning. Do you understand that?

Appellant: Yes, sir.

The Court: Now, no one can make you go to trial on an Information even if you waive a grand jury indictment until it=s been on file for two full days.

However, you have a right to waive that two-day waiting period if you want to. Do you want to give up that two-day waiting period?

Appellant: Yes, sir.

The trial judge proceeded to inquire as to whether Appellant=s attorney agreed with the Appellant=s decision. Appellant=s attorney stated that he did. Then the trial judge inquired about Appellant=s Waiver of Specified Constitutional Rights. The trial judge asked the Appellant whether he had carefully read the document before he signed. Appellant represented to the court that he had and that he had also reviewed the document thoroughly with his attorney. The trial judge then noted that Appellant=s attorney had also signed the document and proceeded to ask him if he had gone over the document carefully with the Appellant prior to signing. Appellant=s counsel represented to the court that he had and that it was his belief that Appellant was making a free and voluntary waiver of his rights with full knowledge of the consequences.

As the record reflects, Appellant was represented by counsel at the time that he signed the waiver of his constitutional rights, which included his right to be indicted by a grand jury, and which he orally waived at the hearing. We find that there is sufficient evidence in the record to indicate the Appellant fully understood the waiver. The Appellant points to no evidence in the record disputing that the waiver was voluntarily and knowingly given. On the contrary, after carefully reviewing the record, we believe that the evidence is sufficient to show that Appellant=s waiver was given intelligently, knowingly, and voluntarily. We therefore overrule Issue One.

In Issue Two, Appellant argues that the trial court lacked jurisdiction to decided this case because of an insufficient criminal information. Specifically, Appellant argues that the information contained a date for the alleged offense of August 27, 1999, but the filed stamp date from the district clerk=s office was March 20, 1999. Appellant argues that this mistake made the information insufficient under law.

Appellant had an affirmative duty to object to any defect in the indictment before trial, and a failure to do so would prevent him from raising a claim of a defect for the first time on appeal. See Tex.Code Crim.Proc.Ann. art. 1.14(b)(Vernon 2005); Sanchez v. State, 120 S.W.3d 359, 364 (Tex.Crim.App. 2003). An instrument is deemed filed when it is left with the clerk, regardless of whether a file mark is placed on the instrument. See Williams v. State, 767 S.W.2d 868, 871 72 (Tex.App. Dallas 1989, pet. ref=d), citing Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex. 1979); Queen v. State, 701 S.W.2d 314, 316 (Tex.App. Austin 1985, pet. ref=d); Phariss v. State, 144 Tex.Crim. 234, 161 S.W.2d 1066, 1067 (1942). A mistake in the date of filing the indictment must be taken advantage of before or at the trial. See Scivener v. State, 44 Tex.Crim. 232, 234, 70 S.W. 214, 215 (1902), citing Terrell v. State, 41 Tex. 463 (1874).

A careful reading of the record reflects that Appellant failed to timely object to the alleged defect in the indictment. Moreover, Appellant concedes in his appellate brief that he failed to timely object, but argues that Awhen viewed in the light of the facts described in issue number one,@ such objection was impossible. We refuse to agree with Appellant=s assertion. We therefore express no opinion as to whether Appellant=s indictment was defective, and find that Appellant failed to properly preserve such issue for review. Issue Two is overruled.

Accordingly, the judgment of the trial court is affirmed.

May 12, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant=s attorney=s signature was preceded by the following statement: AI approve all of the foregoing waivers, admonitions and stipulations and same have been signed by Defendant with my advise [sic] and consent as defense counsel.@