Court of Appeals of Texas, Fourth District, San Antonio
the 186th Judicial District Court, Bexar County, Texas Trial
Court No. 2014CR8396 Honorable W.C. Kirkendall, Judge
Angelini, Justice, Rebeca C. Martinez, Justice, Patricia O.
appeal, we are presented with this issue: does a charging
instrument that does not identify the defendant by name, but
which is preceded by a caption that does identify the
defendant by name, meet the jurisdictional requirement that a
charging instrument name a "person" as set forth in
article V, § 12(b) of the Texas Constitution? Because we
conclude that it does not, we hold that the charging
instrument in this case did not vest the trial court with
jurisdiction. Therefore, Appellant Deondre Javqueen
Jenkins's conviction is void.
September 2014, Deondre Javqueen Jenkins was charged with one
count of continuous trafficking of persons:
jury trial, Jenkins was found guilty and sentenced to
twenty-five years of imprisonment. On appeal, he argues the
trial court did not have jurisdiction over his case because
the charging instrument was fatally defective. According to
Jenkins, the charging instrument failed to conform to the
Texas Constitution's definition of an indictment because
it did not name "a person." Jenkins did not move to
quash or dismiss the indictment before trial commenced. On
the second day of trial, Jenkins argued that the charging
instrument was fatally defective under the Texas Constitution
because it did not charge "a person." Jenkins's
motion to dismiss the case was denied by the trial court.
sufficiency of an indictment is a question of law and is
reviewed de novo. Smith v. State, 297
S.W.3d 260, 267 (Tex. Crim. App. 2009); State v.
Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
Texas Constitution guarantees to defendants the right to
indictment by a grand jury for all felony offenses.
See Tex. Const. art. 1, § 10 (providing that in
all criminal prosecutions the accused "shall have the
right to demand the nature and cause of the accusation
against him, and to have a copy thereof" and that in
felony cases, "no person shall be held to answer for a
criminal offense, unless on an indictment of a grand
jury"). "An indictment serves two functions."
Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App.
1995). "First, it provides notice of the offense in
order to allow a defendant to prepare a defense."
Id. "Second, an indictment serves a
jurisdictional function." Id. "The filing
of an indictment is essential to vest the trial court with
jurisdiction over a felony offense." Id.
Article V, section 12(b) of the Texas Constitution provides
that jurisdiction vests only upon the filing of a valid
An indictment is a written instrument presented to a court by
a grand jury charging a person with the commission
of an offense. An information is a written instrument
presented to a court by an attorney for the State charging a
person with the commission of an offense. The practice and
procedures relating to the use of indictments and
informations, including their contents, amendment,
sufficiency, and requisites, are provided by law. The
presentment of an indictment or information to a court
invests the court with jurisdiction of the cause.
Tex. Const. art. V, § 12(b) (emphasis added); see
Cook, 902 S.W.3d at 476. According to Jenkins, the
charging instrument in this case does not comply with article
V, § 12(b) of the Texas Constitution because it does not
charge "a person." He argues that it is therefore
not an indictment pursuant to the Texas Constitution and did
not confer jurisdiction on the trial court. The State
responds that Jenkins waived this defect pursuant to article
1.14 of the Texas Code of Criminal Procedure because he did
not object to the defect before commencement of trial.
History of Defective Charging Instruments
Defective Charging Instruments Before 1985
1985, the court of criminal appeals used "the terms
'substance defect, ' 'fundamental error, '
and 'fatally defective' interchangeably when
addressing unpreserved errors in charging instruments that
could be raised for the first time on appeal." See
Smith v. State, 309 S.W.3d 10, 16 (Tex. Crim. App.
2010). The court "called substance defects
'fundamental error' because a charging instrument
with a substance defect deprived the trial court of
jurisdiction" and a "conviction based on such a
charging instrument was void." Id. at 16-17;
see Gengnagel v. State, 748 S.W.2d 227, 229 (Tex.
Crim. App. 1988); Ex parte Cannon, 546 S.W.2d 266,
268 (Tex. Crim. App. 1976).
1985 Constitutional Amendment and Reform Legislation
1985, frustrated over the ability of a defendant to raise
substantive defects in an indictment for the first time on
appeal, the 69th Legislature proposed, and the voters
approved, an amendment to article V, § 12 of the Texas
Constitution. Smith, 309 S.W.3d at 17. "The
amendment provided, for the first time, a ...