dissent">BROOKSHIRE, Justice,

dissenting.

Respectfully, this dissent is filed. This is a limited dissent. It does not address the *179problems of the jury selection or Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) or its progeny. The concurring opinion filed herein by Chief Justice Walker is a very well-reasoned and persuasive opinion.

The people of Texas have amended their State Constitution. TEX. CONST. art. V, sec. 12(b) is now a part of the organic law. Art. V, sec. 12(b) reads:

“(b) 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 in-formations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.”

The language provides that the practice and procedures relating to the use of indictments, including their contents, their sufficiency, their requisites, are as provided by law. This change is of extreme importance. The last sentence clearly provides that the presentment of an indictment to a court invests that court with jurisdiction of that cause. This amendment was adopted in November of 1985.

Oliver was convicted twice in a consolidated trial for the offenses of possession of the controlled substances. The first controlled substance was phenylacetone in an amount in excess of 400 grams and the second contraband was methamphetamine in the amount of less than 28 grams. The jury assessed punishment at 99 years confinement in the State Department of Corrections plus a $100,000 fine and 20 years confinement in the State Department of Corrections and a $10,000 fine respectively.

The Court holds that the indictments in the cases are simply not indictments. The indictments returned by the Grand Jury, the Court declares, are void. The basic thrust is that since neither indictment alleges in certain words a culpable mental state, then the indictment is fundamentally defective because no offense was charged.

Hence, the Court reasons that, in order to invoke the jurisdiction of the trial court, the charging instruments must allege an offense. The dictat of the Court is that jurisdiction never vested in the trial court and any judgment that was entered was void. The Court maintains that, even under the present Constitution and under the procedural posture of this case, the indictment must allege “intentionally and knowingly”.

A very important statutory provision is TEX.CODE CRIM.PROC.ANN. art. 1.14(a), (b) (Vernon Supp.1990) reading, in relevant part:

“(a) The defendant in a criminal prosecution for any offense may waive any rights secured him by law_

(b) 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....” (Emphasis added)

It is very interesting and of paramount, crucial impact to note that Art. 1.14(b) states that if the defendant does not object to a defect, error, or irregularity of form or substance in an indictment — which certainly, by the very clearest language means that the instrument can still be an indictment even if it has a defect, an error, or an irregularity of either form or substance— then that defendant waives and forfeits his right to object on appeal or in any other postconviction proceeding. The Court acknowledges Art. 1.14 and acknowledges that it is a waiver statute, but simply says it is inapplicable because no offense was ever charged. Of course, the very language of Art. 1.14(b) eviscerates that position.

At the top of one of the indictments, it is clearly set out that the State of Texas is versus William Robert Oliver, Jr., and that *180the charge is unlawful possession of a controlled substance — phenylacetone.

The indictment charges possession. In common understanding the word “possess”, itself, connotes knowledge and even intention to possess that substance. And TEX.CODE CRIM.PROC.ANN. art. 3.01 provides that words used in the Code are to be taken and understood in their usual accepted and common meaning except where specially defined.

TEX.CODE CRIM.PROC.ANN. art. 21.-16 (Vernon 1989) provides, in substance, that the following form of indictments is sufficient and then lists in the name and by authority of the State of Texas, the grand jury of the State of Texas organized at a certain term, in the district court of the said county, in the said court and term, do present that the defendant on or about the blank day of blank, in said county and state, did (description of offense); against the peace and dignity of the State, signature line, foreman of the grand jury. Art. 21.16 does not say that the indictment has to set out in specific words of art each and every detailed description of the offense. The grand jury clearly alleged and set out that Oliver possessed 400 grams or more. Possession, in the Penal Code, has been defined as meaning the actual care, custody, control or management of a substance. If an individual has the actual care, he must know something. If he has the actual custody, he must know something. If he is actually controlling a substance he must have knowledge and intent to possess the same, and if he is actually managing it; that is, moving it around and protecting it, he must have knowledge and intention concerning the 400 grams or more of pheny-lacetone. Hence, a legitimate position can be taken that this defect was merely a matter of form.

TEX.PENAL CODE ANN. sec. 6.03 (Vernon 1974), entitled “Definitions of Culpable Mental States”, points out that a person acts intentionally or with intent when it is his conscious objective or desire to engage in the conduct or cause the result. This definition, coupled with the definition of possession, shows intent. The same is true of a person who acts knowingly or with knowledge. See TEX.PENAL CODE ANN. sec. 6.03(a) and (b) (Vernon 1974).

In Shaw v. State, 728 S.W.2d 889 (Tex.App.—Houston [1st Dist.] 1987, no pet.), Chief Justice Evans wrote, in substance, that there is no longer fundamental error in indictments, if the indictments were presented after December 1, 1985, citing TEX.CODE CRIM.PROC.ANN. art. 1.14(b) (Vernon Supp.1987). The indictments in these appeals were presented and filed in September, 1988. TEX. CONST. art. V, sec. 12(b) (Vernon Supp.), was in effect in calendar year 1988. TEX.CODE CRIM.PROC.ANN. art. 1.14(a), (b) (Vernon Supp.1990), was in effect in calendar year 1988.

In my opinion, the Appellant in both cases, under each of the indictments, did receive a fair and impartial trial. TEX. CODE CRIM.PROC.ANN. art. 21.02(7) (Vernon 1989) only requires that the offense be set forth in plain and intelligible words.

I respectfully submit that TEX. CODE CRIM.PROC.ANN. art. 1.14(b) (Vernon Supp.1990), upon a reasonable, logical reading, means that there can be a defect or an error or an irregularity of either form or substance in a written instrument and that instrument can still be an indictment. Otherwise, there is no meaningful purpose to Art. 1.14(b). And, further, Art. 1.14(b) provides that, unless the defendant objects to the defect in the indictment, that statute clearly and unequivocally, in the strongest and most unambiguous language, provides that the defendant waives and forfeits his right to object to a defect, error, or irregularity of form or of substance and may not raise the same upon appeal unless he objected before the date of the trial. This Appellant failed to timely and properly object.

A scholarly and comprehensive law review article has been written on Texas charging instruments. The article is entitled: “Texas Charging Instrument Law: The 1985 Revisions and the Continuing Need for Reform”, by George E. Dix, pub*181lished in volume 38 Baylor Law Review, page 1.

According to Professor Dix, a major objective of the 1985 reforms was the elimination, on the part of defense counsel, of a practice known as “sandbagging”. Professor Dix characterized this practice as proceeding with a case despite the presence of reversible error in the charging instrument. Defense counsel, consistent with protecting his client’s interest, would only infrequently complain of fundamental defects in the indictment or trial. These defects would probably provide a predictable basis for a reversal of any conviction.

The article, at least in my opinion, seems to agree that the 1985 changes in the Texas Constitution and relevant statutes seemingly abolished fundamental defects in indictments if no objection was made or no motion to quash was filed — neither one having been urged or called to the attention of the trial court.

Hence, the “most blatant form of ‘sandbagging’ ” was thwarted by these reforms. The article lucidly points out that many problems still exist. Nevertheless, a fair reading, I think, of the excellent law review article is that:

“Amended article 1.14, however, requires that the defense object to a charging instrument defect ‘before the date on which the trial on the merits commences’.”

And among the matters that are required to be raised, objected to or filed within the statutory period are exceptions or objections to either the form or the substance of the indictment.

For the above reasons, I dissent with respect.

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