Janecka v. State

¶1dissenting.

¶2I dissent to the Court’s disposition of appellant’s first ground of error.

¶3In Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), a majority of the Court elected to overrule the dictates of Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981) (Opinion on State’s Motion for Rehearing) which had emphasized that a defendant is constitutionally entitled to obtain notice of the offense from the face of the indictment. In overruling Jeffersthe Court reinstated the approach announced in Craven v. State, 613 S.W.2d 488 (Tex.Cr.App.1981): if the alleged defect in the indictment is a matter of form (as opposed to substance) then the appellate review is directed by Art. 21.19 V.A.C.C.P. which requires that substantial rights of a defendant must be prejudiced before the “indictment ... [can be] held ... insufficient.” Art. 21.19, supra. And, in order to make such a review it is necessary to examine the statement of facts.1 Thus, at least in this instance, “harm” is synonymous with a defendant having a substantial right prejudiced.

¶4*838In making such a ruling the panel in Cravenadopted the distinctions between “form” and “substance” as detailed in American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).2 In summary, the American Plant Food Corp. case, albeit somewhat contradictorily, concluded that notice defects “though relating to the substance of the charge [indictment] in one sense, are ... grounds for an exception to form ... and not for an exception to the substance of an indictment....” Id. at 603.

¶5This distinction between form and substance, although not detailed precisely in every succeeding case dealing with this issue, has been interjected into the formulation for the rule adopted in Adams. However, as far as I can tell, it has not been noted previously that the distinction between form and substance made in the American Plant Food Corp. case was limited to a determination of whether the alleged error in the information in that case was fundamental.3 In other words, whether the claimed error had to be preserved for review by a motion to quash or, conversely, whether the error dominated the proceedings to the extent that even in the absence of a proper pretrial objection the error would mandate reversal of a conviction was the issue confronting the court. The case had absolutely nothing to do with the dictates of Art. 21.19 and the statutorily imposed limitations on reviewing indictments. Limited to the issue of fundamental error, the case is correct. It is, however, not stare decisis for this issue. It is rather merely dictum that can properly and with no disrespect to authority be rejected. And, should be.

¶6Further, to argue that the failure of an indictment to provide adequate notice in which to formulate a defense to a prosecution is a matter of mere form rather than substance ignores both the invaluable purpose of the indictment4 and the observations Judge Odom made in American Plant Food Corp.: notice does have a relationship to the substance of an indictment.

¶7In distinguishing between form and substance the Court in American Plant Food Corp. relied entirely upon the relationship between Art. 27.09 V.A.C.C.P. (Exception to Form of Indictment) and Art. 21.21 (7) V.A.C.C.P. (Requisites of an Indictment: “The offense must be set forth in plain and intelligible words.”) However, in the context of determining whether adequate notice has been given to a defendant in the indictment, one’s attention must focus upon Art. 21.11 V.A.C.C.P., which provides:

An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, ... (Emphasis added.)

¶8The logical and obvious converse interpretation of that provision is: if that pleading criteria is not met then the indictment will be deemed insufficient. Surely, a statute that directs both the style in which an alleged offense is pled, as well as the extent of the content necessary to adequately plead the alleged offense relates more to the substance of an indictment than its form. As such, Art. 21.19 V.A.C.C.P. is not even applicable. Consequently, a review of the statement of facts to discover harm is neither necessary or appropriate.

¶9*839Even assuming that inadequate notice is a defect of form rather than substance, there is another reason Adamsis inappropriate authority. The majority opinion concludes the appellant was not harmed by the “indictment’s failure to name the party who remunerated or promised remuneration to the appellant ...,” because he “has totally failed to show how he was harmed by the trial court’s admittedly improper refusal to grant his motion to quash.” The difficulty I have with such reasoning is that it essentially demands the impossible: the imposition' of hindsight, the most clear and unencumbered vision, upon foresight, a vision that is impaired by the unknown, with the expectation that a valid pragmatic judgment can be made. In other words, by utilizing Adamsthe majority assumes the responsibility of judging, or more appropriately surmising, whether the appellant was harmed by the deficient notice of the indictment by examining the conduct of the defense counsel during the trial, or whether an absence of harm is otherwise apparent from the record. Thus, rather than require that the indictment set forth “[ejverything ... which is necessary to be proved,” Art. 21.03 V.A.C.C.P., the majority opinion in essence holds that even though the information should have been provided the appellant, he must also prove that the refusal to give him the information affected his defense in some detrimental manner. This amounts to the court deciding after the trial what information should be presented in the indictment before the trial because of what happened during the trial. With all due respect to the majority’s opinion, I find no logic in such reasoning.

¶10Specifically, the appellant was prosecuted for capital murder on the basis that it was committed “for remuneration or the promise of remuneration.” Sec. 19.03(a)(3), V.A.P.C. Thus, common sense, if nothing else, demands that to prove such an allegation the State has to prove that someone gave the appellant money to kill the deceased or promised to do so. In short, it is apparent to me that before a conviction can be legally achieved in a prosecution of this

¶11nature the State would have to prove all of the elements of the offense. And, one of the statutory elements is that someone gave or promised the appellant remuneration for killing the deceased. It is therefore undeniable that that “someone” is something “which is necessary to be proved.” Art. 21.03 V.A.C.C.P. Consequently, that “someone” should have been named in the indictment. Not surprisingly, the majority agrees with this conclusion. We then part company because the majority thereafter performs the erroneous harm analysis advocated and compelled by Adams. I point out that I cannot find in the Code of Criminal Procedure any language that limits the dictates of Art. 21.03 V.A.C.C.P., such as: adequate information does not have to be pled if a defendant already knows it. Furthermore, there is no language in the Code of Criminal Procedure that specifically authorizes a harm analysis on a deficient indictment. The majority opinion imposes such an exception on Art. 21.03 V.A.C.C.P.

¶12To support its unauthorized legislative proclivity several fallacious explanations are made. For example, the State argues that the appellant had notice because he had two codefendants, Duff-Smith and Waldhauser; that the appellant’s counsel had seen the State’s file; “appellant had told Karen that Mark Duff-Smith was paying to have it all done;” and, “Karen had told ... [that] Duff-Smith was behind it.” In an almost gullible fashion the majority uses these arguments to support its conclusion that the appellant has failed to show he was harmed. However, as will be pointed out, the telling thing about the State’s arguments is not what they say, but what they do not say.

¶13Taking each in order: Duff-Smith and Waldhauser were not really codefendants. The Appellant was the only person indicted in the trial court under the applicable cause number. The record does reflect that Duff-Smith and Waldhauser were charged with the same capital murder but it doesn’t reflect that either were charged with being the party that provided the remuneration.5*840Rhetorically, how does this argument alone support the State’s position that the Appellant knew who provided the money?

¶14Next, the State argues that Appellant’s counsel “had seen the State’s file or substantial portions thereof.” [emphasis added] But, just what did Appellant’s counsel see when he examined the file? If, as the State contends, appellant’s counsel already knew who was providing the remuneration, maybe that information wasn’t substantial enough to be included in the file. The record does not show what was in the State’s file, or when the appellant’s attorney examined it.

¶15In the appellant’s comments to Karen he did concede that Duff-Smith was “paying to have it all done.” However, that admission fails to identify what, if anything, the appellant knew of Waldhauser.

¶16Finally, there is the comment of Karen to a detective that “Duff-Smith was behind it.” Note, that comment is not attributed to the appellant. Equally significant is what she did not say to the detective: what the appellant knew of Waldhauser’s role.

¶17I recognize the above comments, which discount the explanations used to support the absence of harm, are speculative to the point of being almost imaginative. But no more so than the majority’s speculation when it reaches the opposite conclusion.

¶18One must also note that there is a relationship between Art. 21.03, V.A.C.C.P. and Art. 21.19, V.A.C.C.P. Assuming again that the absence of notice goes to the form rather than the substance of the indictment, American Plant Food Corp. v. State, supra, it is imperative that in reviewing the statement of facts pursuant to the limitation imposed by Art. 21.19, as required by Adams v. State, supra, the relevance of Art. 21.03, V.A.C.C.P. should not be forgotten. Unfortunately, the majority has done just that. As stated previously, since a conviction could not have been acquired under this indictment without the State proving “someone” paid or promised to pay the appellant then that “someone” became something “which is necessary to be proved.” Art. 21.03, V.A. C.C.P. Therefore, it is an element of the offense necessary to be pled. Accordingly, it was one of the appellant’s “substantial rights ...,” Art. 21.19, V.A.C.C.P., to be given that information. The failure of the State to plead that information prejudiced that substantial right. Thus, even under the majority’s theory, when taking into consideration Art. 21.03, V.A.C.C.P., it is evident that the appellant’s motion to quash should have been granted.

¶19As an additional example to support its position, the majority states: “It appears that the indictment’s failure to name the party who remunerated or promised remuneration to the appellant, in no way figured into the appellant’s defense at trial.” It attempts to rationalize this statement by asserting that the appellant’s “only position at guilt-innocence was that his confessions were improperly admitted into evidence....” The necessary extension of that position is that should a defendant elect to rely upon his constitutional right of having the state prove his guilt beyond a reasonable doubt, In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and not actively assert a defense, then this Court will interpret that as his already having knowledge of the requested information and that will be viewed as indicative of his not being harmed by failing to receive information he was unquestionably entitled. The absurdity of that proposition needs no further elaboration.

¶20Be all that as it may, the most unfortunate aspect of the majority’s opinion is that *841it condemns the appellant for failing to show “how he was harmed by the trial court’s admittedly improper refusal to grant his motion to quash.” However, it never recognizes that when this case was tried such a showing of harm was not a procedural requirement, and, worse than that, it does not even suggest or authorize a means of his now doing so. At the time this case was tried the appellant perfected his claimed error in accordance with the procedure in effect at that time: a specific and timely filed pretrial motion to quash. American Plant Food Corp. v. State, supra. This appellant will nevertheless suffer the death penalty, which is so “ ‘unique in its severity and irrevocability,’ ” Tison v. Arizona, — U.S. -, -, 107 S.Ct. 1676, 1683, 95 L.Ed.2d 127 (1987), because the record before this Court does not reflect something it did not have to reflect until some three years after this case was tried, or until Adams v. State, supra. Furthermore, and most tragically, the appellant will not even be given the opportunity to try to show something (harm) that he was never required to do before Adams v. State, supra. The majority’s decision to close its collective eyes to this blatant injustice is unfortunate and frankly alarming.

¶21Because the majority refuses to recognize that Adamsis an invalid analysis tool and should therefore be expressly overruled, I dissent.

¶22Alternatively, at the very least the case should be remanded to the trial court for a hearing to allow the appellant to show, if he can, that he was harmed by the trial court’s denial of his motion to quash. Cf. Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987); Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987).6 Because the majority refuses to take even this short step and thereby insure that the appellant had a fair trial I dissent. Time, in the context of an execution, is an inexhaustible commodity —I am sure the needle of death would be willing to wait those few months it would take to have the proposed hearing and for this Court to review the record. Unfortunately, the majority is not similarly inclined.