Christopher Dickey v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-06-00560-CR

No. 04-06-00561-CR

Christopher DICKEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court Nos. 2005-CR-8505B & 2005-CR-8506

Honorable Sharon MacRae, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

Delivered and Filed: June 13, 2007

AFFIRMED

Defendant, Christopher Dickey, pled guilty to the jury to the charge of evading arrest, and not guilty to two counts of aggravated assault. During trial, the police officers involved in his arrest testified they did not appear before the grand jury. After the State rested, defendant orally moved to dismiss the indictment containing the two aggravated assault charges. Defendant argued that the only witness identified in the indictment was the "State's Attorney," who most likely was not placed under oath and, therefore, no sworn testimony was before the grand jury. The trial court denied the motion on the grounds that defendant had waived his complaint. The jury ultimately found defendant guilty on both counts of aggravated assault and assessed punishment at twenty years' confinement on each aggravated assault charge and two years' confinement for evading arrest. In two issues on appeal, defendant contends the trial court erred in denying his motion to dismiss the indictment containing the two counts of aggravated assault. (1)

On appeal, defendant asserts that only the "State's Attorney" testified before the grand jury, the testimony was unsworn, and unsworn testimony is incompetent evidence. Thus, defendant argues that because the State failed to present competent evidence to the grand jury, the indictment should be dismissed. Defendant also contends the trial court should have determined whether sworn evidence was presented to the grand jury.

The Texas Code of Criminal Procedure provides as follows: "If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding." Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Defendant contends the trial court erred in determining he waived his right to complain under article 1.14(b) because his complaint does not go to either the form or substance of the indictment. Instead, defendant asserts his complaint is that the indictment is not supported by sworn evidence.

However, the Texas Court of Criminal Appeals has made clear that a "motion to set aside, dismiss, or quash an indictment should be made at the first opportunity, and must be presented to the trial court prior to an announcement by that party that it is ready for trial." Neal v. State, 150 S.W.3d 169, 176 (Tex. Crim. App. 2004). "This rule serves the salutary purpose 'of preventing unnecessary trials and deterring the interruption of a trial on the merits for any objection relating to the institution and presentation of the charge.'" Id. "It would make little sense to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed." Id. Here, defendant's motion to dismiss the indictment was not made until after the State rested. Accordingly, it was not timely and his complaint was waived.

CONCLUSION

We overrule defendant's issues on appeal and affirm the judgments of the trial court.

Sandee Bryan Marion, Justice

Do Not Publish

1. Defendant also complains about the trial court's denial of his motion to dismiss the indictment for evading arrest. However, he did not move to dismiss this indictment at trial; therefore, any complaints on appeal with regard to that indictment are waived.