Ex Parte Long

¶1dissenting.

¶2Ordinarily I would agree that the mere violation of a statute is not a matter that ought to be cognizable in posb-conviction collateral attack. However, when a statute identifies a fundamental systemic requirement, see Marin v. State, 851 S.W.2d 275 (Tex.Cr.App.1993), then the State’s otherwise legitimate interest in the finality of convictions must give way in the wake of a failure to follow that requirement. Ex parte Sad-berry, 864 S.W.2d 541, 545 (Tex.Cr.App.1993) (Clinton, J., dissenting); Ex parte Tovar, 901 S.W.2d 484, 486-88 (Tex.Cr.App.1995) (Clinton, J., dissenting). In my view, Article 1.141 identifies such a requirement.

¶3Article 1.141 permits an accused to “waive the right to be accused by indictment” so *489long as his waiver is voluntary, and “in open court or by written instrument.”1 Shortly after this provision was added to the Code of Criminal Procedure in' 1971, it was attacked on the grounds that in cases of felony an indictment is not just a “right” of the accused; rather, it is necessary prerequisite to the trial court’s exercise of its jurisdiction, under Article I, § 10 of the Texas Constitution. In King v. State, 473 S.W.2d 48 (Tex.Cr.App.1971), this Court repelled that attack, holding that the language of Article I, § 10, that “no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury,” conferred a personal right upon the criminal accused, which could be expressly waived. As long as the waiver was properly executed, the information is sufficient to vest jurisdiction in the trial court. However, writing for the Court, Judge Onion made it clear that in the absence of an indictment, a trial court acquires jurisdiction only when Article 1.141 is complied with:

“If an accused has not effectively waived his right to indictment in full accordance with the statute the felony information is void. An indictment is still mandatory in absence of a valid waiver.”

¶4Id-., at 52. Thus the Court created a sort of hybrid. On the one hand we seemed to identify grand jury indictment in felony cases as a personal right, optional with the defendant. On the other hand, we indicated that in the absence of a waiver of indictment made under the express terms of the statute, a felony information would be “void.” Surely a conviction that rests upon a void information would be challengeable in post-conviction collateral attack under any rational scheme of cognizability!

¶5In essence, the Court in Kingmade jurisdiction of the trial court contingent upon a valid waiver under the statute. Moreover, we have held that the statutory waiver cannot itself he waived, because it is a “condition precedent to the court acquiring jurisdiction[.]” Lackey v. State, 574 S.W.2d 97, at 100 (Tex.Cr.App.1978). In that sense, compliance with the statute is a fundamental requirement. Unless the Court is prepared to overrule that aspect of King, under the prevailing regime of habeas cognizability the Court must reach the merits of applicant’s claim, predicated though it may be upon the violation of a statute. Ex parte Banks, 769 S.W.2d 539 (Tex.Cr.App.1989). This is precisely what we did in Ex parte Smith, 650 S.W.2d 68 (Tex.Cr.App.1981), which the majority fails to mention, much less overrule.

¶6The majority opinion cites Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), for the proposition that presentation of an information to the trial court is sufficient to vest it with jurisdiction. Maj. op. at 486. Of course it is true that after Studer, an indictment or information that is defective as to either form or substance will nevertheless serve to invoke the jurisdiction of the trial court. Article 1.14(b), V.A.C.C.P. Still, what is presented to the trial court must be an information, in the contemplation of Article Y, § 12(b) of the Texas Constitution, before it can be said that the trial court’s jurisdiction has been invoked. Cook v. State, 902 S.W.2d 471, at 477-480 (Tex.Cr.App.1995). In the absence of a waiver of indictment that satisfies the statutory requisites, an information is “void.” King, supra at 52. A “void” information is the same as no information at all. It would not seem to me that presenting it to the trial court would serve to invoke that court’s jurisdiction. See Cook v. State, supra, at 475, n. 1. The Court should at least address the question why a void information nevertheless meets the Article V, § 12(b) definition.

¶7The majority concludes that applicant “has the burden of showing a denial of his right to indictment. Studer, 799 S.W.2d at 267.” Of course the applicant has the burden to prove any contention raised in a post-conviction collateral attack, Studeror no Studer.2But we have held that the failure to comply with Article 1.141 essentially is the same as failure to waive the right to indictment. King, *490supra;Lackey, supra. Unless we overrule these eases, we are constrained to hold that in the absence of a written waiver or waiver in open court, the trial court lacked jurisdiction to proceed to conviction. All applicant need show to meet his burden is that the record reflects neither mode of waiver. Ex parte Smith, supra.

¶8Because the Court will neither follow existing precedent nor disavow it, I dissent.