RONALD G. MURK,FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01100-CR
 
RONALD G. MURK,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, BAKER, AND KINKEADE
OPINION BY JUSTICE BAKER
JULY 7, 1989
        In this public lewdness case, we hold that the State's amendment of the information rendered it fundamentally defective by deleting an essential element concerning intent. We set aside the conviction and order the information dismissed.
        The information originally charged that appellant:
        knowingly engage[d] in an act of sexual contact with Albert Pagan, hereinafter called other person, said sexual contact being a touching of the genitals through the clothing of said other person, with the hand of said defendant, with the intent to arouse and gratify the sexual desire of said defendant, while said persons were in a public place, to-wit: 700 E. Lawther, Dallas[,] Texas ....
At trial, the State amended the information by deleting the words "with the intent to arouse and gratify the sexual desire of said defendant." Appellant did not object to this amendment. The trial began, and at the conclusion of the State's case, appellant moved for an instructed verdict on the ground that the information failed to allege an offense upon which he could be tried. The motion was overruled, and appellant was convicted as charged and sentenced to thirty days in jail, probated for one year, plus a $200.00 fine and costs.
        Appellant contends, in two points of error, that the information was fundamentally defective. He argues that it failed to allege an essential element and that it did not allege a required culpable mental state. The statute under which appellant was charged states in pertinent part:
                (a)        A person commits an offense if he knowingly engages in any of the following acts in a public place ...:
 
                (3)    an act of sexual contact [.]
TEX. PENAL CODE ANN. § 21.07(a)(3) (Vernon 1989). Sexual contact is defined as "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." TEX. PENAL CODE ANN. § 21.01(2) (Vernon 1989) (emphasis added).
        Appellant argues that by deleting the phrase "with the intent to arouse and gratify the sexual desire of said defendant," the information was rendered fatally defective because an essential element concerning intent was deleted, and the information failed to allege an offense.
        At oral argument, the State contended that appellant waived the right to object to the alleged defect because he failed to timely object to the information as amended. The State relies on article 1.14(b) of the Texas Code of Criminal Procedure, which provides that if the defendant fails to object to a defect, error, or irregularity of form or substance in an information before trial on the merits begins, he waives and forfeits the right to object to the defect, error, or irregularity, and he may not raise the objection on appeal. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 1989); Van Dusen v. State, 744 S.W.2d 279, 279-80 (Tex. App.--Dallas 1987, no writ).
        This argument fails to recognize the distinction between jurisdictional defects and insufficient notice of the offense charged. When an information is challenged as not having provided the defendant with adequate notice of the acts alleged, the indictment is examined from the defendant's viewpoint. The issue is waived if not raised by motion because it is presumed that the information gives an accused sufficient notice for preparation of a defense if he proceeds to trial without complaint. See Ex parte Kirby, 626 S.W.2d 533, 534 (Tex. Crim. App. 1981). However, a defect in the charging instrument relating to jurisdictional requirements cannot be "cured" by subsequent proceedings and cannot be waived. Judicial action without jurisdiction is void. Kirby, 626 S.W.2d at 534.
        The Texas Constitution states that the presentment of an information to a court invests the court with jurisdiction of the cause. It defines an information as a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. TEX. CONST. art. V, § 12(b). An instrument that does not charge the commis-sion of an offense is not a charging instrument under the Constitution and does not invest a court with jurisdiction. Such a defect may be raised at any time, and the failure to object is not fatal to an appeal. See Kirby, 626 S.W.2d at 534; Studer v. State, 757 S.W.2d 107, 110 (Tex. App.--Dallas 1988, pet. granted); Milam v. State, 742 S.W.2d 810, 814-l5 (Tex. App.--Dallas 1987, pet. granted); see also Aylor v. State, 727 S.W.2d 727, 730 (Tex. App.--Austin 1987, pet. ref'd). The appellant does not contend that the information fails to give him notice but that the information, as amended, does not charge an offense and is fundamentally defective. We reject the State's waiver argument.
        An indictment that lacks an essential element of the offense sought to be charged does not charge an offense against the laws of Texas and is fundamentally defective. See Ex parte Elliott, 746 S.W.2d 762, 763-64 (Tex. Crim. App. 1988); Whetstone v. State, 739 S.W.2d 650, 652 (Tex. App.--Dallas 1987, pet. granted). An indictment that fails to allege a culpable mental state is fundamentally defective and is utterly insufficient to invoke the trial court's jurisdiction. See Kirby, 626 S.W.2d at 534. The State contends that the information does not lack an essential element. The State argues that the information tracks the statutory language and in such cases is ordinarily sufficient to allege an offense. See Ward v. State, 642 S.W.2d 782, 783 (Tex. Crim. App. 1982). The State also notes that the information alleges "sexual contact." The State argues that where a term such as "sexual contact" has been legislatively defined, it is not necessary to place that definition in the information when the substantive offense is defined in terms of a word or words that have been assigned technical meanings. See Baldwin v. State, 538 S.W.2d 109, 112 (Tex. Crim. App. 1976) (op. on reh'g); see also Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981) (op. on reh'g).
        We note that this rule applies when the definitions of the terms are essentially evidentiary. See Thomas, 621 S.W.2d at 161; Brown v. State, 717 S.W.2d 763, 764 (Tex. App.--San Antonio 1986, no pet.), overruled on other grounds, Solis v. State, 742 S.W.2d 873 (Tex. App.--San Antonio 1987, pet. ref'd). The Texas Court of Criminal Appeals has held that the definition of "sexual contact" is more than merely evidentiary. The court stated that part of the specialized meaning of sexual contact is the requirement that the acts described therein be committed with a particular intent. The court held that such intent is a material fact and an essential part of the description of the offense. See Victory v. State, 547 S.W.2d 1, 3 (Tex. Crim. App. 1976) (op. on reh'g); TEX. CODE CRIM. PROC. ANN. art. 21.05 (Vernon 1989). In Victory, the offense charged was indecency with a child by engaging in sexual contact with the child. The court reversed because the indictment failed to allege "intent to arouse or gratify the sexual desire of any person," a culpable mental state. Victory, 547 S.W.2d at 2. The court of criminal appeals later held that an indictment using the same words as the indictment in Victory was fundamentally defective. See Slavin v. State, 548 S.W.2d 30, 31 (Tex. Crim. App. 1977). The intent element is material to consummated sexual contacts. Cardenas v. State, 640 S.W.2d 291, 292 (Tex. Crim. App. 1982).
        We conclude that we are bound by Victory and Slavin. For the same reasons set forth in these cases, the information in this case was fundamentally defective. It did not charge an offense, and the trial court was without jurisdiction.
        We reverse the trial court's judgment and order the information dismissed.
 
                                                                                                                   __________________________
                                                          JAMES A. BAKER
                                                          JUSTICE
PUBLISH
TEX. R. APP. P. 90
 
88-01100.F
 
Dissenting opinion by Justice Kinkeade.
 
 
File Date[01-02-89]
File Name[881100F]