ERNEST DWAYNE DERRYBERRY, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed September 13, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 88-01236-CR
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ERNEST DWAYNE DERRYBERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the 292nd District Court
Dallas County, Texas
Trial Court Cause No. F84-86053-V
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OPINION PER CURIAM
BEFORE JUSTICES MCCLUNG, THOMAS, AND WHITTINGTON
        Ernest Dwayne Derryberry pleaded guilty of murder and pursuant to a plea bargain agreement, the trial court sentenced appellant to five years' confinement and assessed him a $750.00 fine. In his sole point of error, appellant complains that the trial court erred in denying his motion to set aside the indictment. We affirm the trial court's judgment.
        Prior to entering his plea, appellant filed a motion to set aside the indictment on the ground that it was so vague and general that it was impossible for him to prepare his defense. The trial court denied this motion. In the plea bargain agreement, appellant specifically reserved the right to appeal any matter presented in writing prior to his plea. On the same date, however, appellant executed a written waiver stating: "I waive any defect, error, or irregularity of form or substance in the charging instrument." This waiver was signed by appellant, his attorney, the prosecutor, and the trial judge.
        When a defendant pleads guilty to a felony pursuant to a plea bargain agreement, he does not necessarily waive complaints which were submitted by written motion to the trial court before the plea. See TEX. R. APP. P. 40(b)(1). Appellant, moreover, expressly reserved the right to appeal such matters in the plea bargain agreement. At the same time, however, appellant expressly and specifically waived in writing any error of form or substance in the indictment. A party may waive any error of form or substance in the indictment. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 1989). We hold that appellant's express, written waiver precludes him from asserting this complaint on appeal.
        Nevertheless, we will address appellant's complaint on the merits in the interest of justice. The relevant portion of the indictment alleges that appellant did "knowingly and intentionally cause the death of [complainant], an individual, by stabbing the said [complainant] with a deadly weapon, to-wit: an object the nature and kind of which is unknown to the Grand Jurors." Appellant asserts that the ordinary meaning of the word "stab" is to pierce, penetrate, force, or wedge a way into. Thus, he claims that the indictment, accusing him of stabbing the complainant, was so vague and general that it alleged any number of offenses proscribed by the Texas Penal Code, including homosexual conduct, sexual assault, and aggravated sexual assault. He asserts that at the very least the indictment was required to allege whether the deadly weapon was wedged into a natural body cavity of the victim.
        An indictment should charge an offense in plain and intelligible words with such certainty as to enable the accused to know what he will be called upon to defend against and to enable him to plead any judgment in bar of further prosecution for the same offense. Castillo v. State, 689 S.W.2d 443, 449 (Tex. Crim. App. 1984); Caro v. State, 761 S.W.2d 488, 489 (Tex. App.--Dallas 1988, pet. ref'd). An indictment must allege sufficient facts to give the accused proper notice of the offense charged. Thus, an indictment for murder should allege the manner and means used to cause the death of the victim or that such facts are unknown. See Nethery v. State, 692 S.W.2d 686, 695 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 1110 (1986); Garrett v. State, 632 S.W.2d 301, 308 (Tex. Crim. App. 1984). On the other hand, an indictment need not set forth evidentiary facts beyond what is necessary for such notice. See Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2858 (1988); Nethery, 692 S.W.2d at 695.
        From our review of the indictment in this case, we conclude that the indictment charges the offense of murder in plain and intelligible language with enough certainty as to enable appellant to know what he was required to defend against and to enable him to raise any plea of former jeopardy. The indictment's allegations do not create confusion with the offenses of homosexual conduct, sexual assault or aggravated sexual assault. The indictment also sufficiently alleged the manner and means of death--stabbing with a deadly weapon. Cf. Nethery, 692 S.W.2d at 695 (shooting with a handgun sufficient). We consider the exact location where the deadly weapon penetrated the body of the victim an evidentiary fact nonessential to provide adequate notice. We overrule the point of error and affirm the trial court's judgment.
                                                         PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
881236F.U05
 
 
File Date[09-13-89]
File Name[881236F]