09 168 CR 09 169 CR WESLEY WAYNE MILLER APPELLANT v. THE STATE OF TEXAS STATE (2010)

OPINION

I. Introduction

On October 23, 2006, a jury adjudged Appellant Wesley Wayne Miller to be a violent sexual predator, making him subject to a civil commitment order.   By three separate indictments filed in August and December 2008, a grand jury indicted Appellant for the third degree felonies of violating his civil commitment order.¹  Appellant filed motions to quash each of the indictments, and he pleaded guilty to each offense after the trial court denied the motions to quash.   In two points, Appellant argues that the trial court erred by failing to quash the August 2008 indictment in Cause Number 1112197D because it does not allege an offense in clear and intelligible terms and by failing to quash the December 2008 indictments in Cause Numbers 1139006D and 1139010D because they do not allege offenses against the law.   We affirm in part and vacate and remand in part.

II. Background

A jury convicted Appellant in 1982 of murder and assessed his punishment at twenty-five years in prison.   See In re Miller, 262 S.W.3d 877, 881 (Tex.App.-Beaumont 2008, pet. denied), cert. denied, 130 S.Ct. 156 (2009).   Near the end of Appellant's twenty-five-year prison term, the State filed a petition for civil commitment under the Texas Sexually Violent Predator Act (the Act).  Id. at 881;  see Tex. Health & Safety Code Ann. § 841.002(7-a), (8)(D) (Vernon 2010).   Following a jury trial, the jury unanimously found beyond a reasonable doubt that Appellant is a sexually violent predator as defined by health and safety code section 841.003.   See Tex. Health & Safety Code Ann. § 841.003 (Vernon 2010).   The resulting judgment and civil commitment order required, among other things, that Appellant “not contact, or cause to be contacted, in person, by telephone, correspondence, or by any electronic means, a victim or potential victim of [Appellant], including the complaining witnesses in all cases [in which Appellant] has been charged, convicted, [or] otherwise committed” and that he “participate in and comply with a specific course of treatment, determined by the Council on Sex Offender Treatment [CSOT].”

Appellant discharged his underlying twenty-five-year sentence on February 23, 2008, and CSOT assumed sole responsibility for his supervision.   Several months later, Appellant's therapist determined that Appellant had violated a condition of his civil commitment order and terminated Appellant from the sex offender treatment program.   Appellant was then arrested for violating the requirements of his civil commitment order, transferred to the Tarrant County jail, classified as a maximum security inmate, and placed in administrative segregation.

On August 1, 2008, a grand jury indicted Appellant for violating the requirements of his civil commitment order in May 2008 by failing to comply with the course of treatment determined by CSOT and by having unauthorized contact in April 2008 with K.B., a person identified in the indictment as a family member, casual relation, or potential victim.   On December 10, 2008, a grand jury indicted Appellant for violating the requirements of his civil commitment order by having unauthorized contact “without approval of his case manager and treatment provider” in September, October, and November 2008 with S.M. and M.M., persons identified in the indictments as family members or casual relations.

Appellant filed motions to quash the August and December 2008 indictments, and the trial court denied the motions to quash after conducting a hearing.   Appellant then pleaded guilty in each case, and the trial court sentenced him to ten years' confinement for each offense, with the sentences to run concurrently.   These appeals followed.

III. Alleged Ambiguity in August 2008 Indictment

Appellant argues in his first point that the trial court erred by failing to quash the August 2008 indictment in Cause Number 1112197D because it does not allege an offense in clear and intelligible terms.   The State responds that Appellant failed to preserve this issue for appellate review because he did not make this argument to the trial court.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion.  Tex.R.App. P. 33.1(a)(1);  Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999).   The code of criminal procedure specifically provides,

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).   Further, when the objection made in the trial court does not comport with the argument made on appeal, the appellant fails to preserve the argument for our review.   See Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App.2002).  “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).”   See Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004).

Appellant filed a motion to quash the August 2008 indictment, but he did not allege in the motion to quash or argue at the hearing that the indictment does not allege an offense in clear and intelligible terms;  he argued only that health and safety code section 841.150(a) contains a bar to prosecution and that he had been denied due process and equal protection.   Because Appellant's appellate argument concerning the August 2008 indictment does not comport with the objections and arguments he made in the trial court, Appellant has not preserved his first point for appellate review.   See id.;  Martinez, 91 S.W.3d at 336;  see also Tex.Code Crim. Proc. Ann. art. 1.14(b) (providing that a defendant waives any complaint concerning an indictment by not objecting at trial).   We overrule Appellant's first point.

IV. December 2008 Indictments Fail to State Offenses

Appellant contends in his second point that the trial court erred by failing to quash the December 2008 indictments in Cause Numbers 1139006D and 1139010D, which allege that he contacted family members or casual relations in September, October, and November 2008 “without approval of his case manager and treatment provider.”   Specifically, Appellant argues that the relevant statutory chapter, health and safety code chapter 841, provides that its provisions are suspended while he is confined and that the indictments therefore do not state offenses against the law because he was confined in September, October, and November 2008.

A. Applicable Law

1. Sufficiency of Indictment

The sufficiency of an indictment is a question of law.  State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004).   Therefore, we review a trial court's ruling on a motion to quash an indictment de novo.  Id.

An indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all the material elements of the offense charged.  Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App.1998);  State v. Laird, 208 S.W.3d 667, 670-71 (Tex.App.-Fort Worth 2006, no pet.).  “An indictment must be facially tested by itself under the law, as a pleading;  it can neither be supported nor defeated as such by what evidence is introduced on trial” or in a pretrial hearing.  State v. Rosenbaum, 910 S.W.2d 934, 942 (Tex.Crim.App.1994) (Clinton, J., dissenting) (majority op. on reh'g adopted Judge Clinton's dissent to original majority opinion);  see State v. Seibert, 156 S.W.3d 32, 35 (Tex.App.-Dallas 2004, no pet.).  “[E]verything that must be proved must be pleaded in the indictment.”  Whitehead v. State, 745 S.W.2d 374, 376 (Tex.Crim.App.1988).   In other words, the indictment “must state facts which if true show a violation of the law.”  Posey v. State, 545 S.W.2d 162, 163 (Tex.Crim.App.1977).   “[A]n indictment which fails to allege criminal conduct is subject to being quashed.”  State v. Campbell, 113 S.W.3d 9, 12 (Tex.App.-Tyler 2000, pet. ref'd) (citing State v. Williams, 780 S.W.2d 891, 894 (Tex.App.-San Antonio 1989, no pet.)).

2. Health and Safety Code Chapter 841

Chapter 841 of the health and safety code sets forth the procedures and requirements applicable before and after a person is adjudicated a sexually violent predator.   See Tex. Health & Safety Code Ann. § 841.001-.150 (Vernon 2010).   Once a person has been adjudicated a sexually violent predator, the trial court is required to “impose on the person requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community.”   Id. § 841.082(a).   That civil commitment order must include, among other things, requirements that the person participate in and comply with a specific course of treatment and that the person not contact a victim or potential victim.   Id. § 841.082(a)(2), (4).   The person commits a third degree felony if he violates a requirement of his civil commitment order.   Id. § 841.085(a), (b).

Chapter 841 also imposes duties on the person's case manager to provide supervision to the person, coordinate the person's outpatient treatment, and provide semi-annual reports.   Id. § 841.083(b), (e).   However, section 841.150(a) provides that “[t]he duties imposed by [chapter 841] are suspended for the duration of any confinement of a person, or any commitment of a person to a community center, mental health facility, or state school, by governmental action.”   Id. § 841.150(a).

B. Analysis

In this case, the December indictments allege that Appellant contacted family members or casual relations in September, October, and November 2008 “without approval of his case manager and treatment provider.”   The indictments only allege that the unapproved contacts violated Appellant's civil commitment order;  they do not allege that the unapproved contacts are otherwise unlawful.   But Appellant's civil commitment order and his case manager's duties to monitor Appellant arise only under health and safety code chapter 841, and section 841.150(a) suspends all duties imposed under chapter 841 while Appellant is confined.  Id. If Appellant is confined, his case manager has no duty to approve or disapprove of Appellant's contact with family members or casual relations, and Appellant cannot, while confined, commit the third degree felony of violating the terms of his civil commitment order by contacting family members or casual relations without his case manager's approval.   It is only during a period when Appellant is not confined that his failure to get his case manager's approval to contact family members or casual relations is a violation of the law.   See id. §§ 841.085(a), (b), .150(a).   Thus, because the indictments do not allege that Appellant was not confined when the unapproved contacts occurred, the indictments do not allege criminal conduct.   See id. §§ 841.085(a), (b), .150(a);  see also State v. Goodman, 221 S.W.3d 116, 120-21 (Tex.App.-Fort Worth 2006, no pet.) (holding part of indictment failed to allege criminal activity).

The State argues that the issue is one of notice, that the sufficiency of an indictment is determined by comparing the face of the indictment to the applicable statute, that the reviewing court cannot consider the factual record in determining the sufficiency of the indictment, and that the indictments provided Appellant with sufficient notice of violations of his civil commitment order.   Although we agree that we may not consider the factual record to determine the sufficiency of the indictments, the issue is one of jurisdiction, not notice.   Because the indictments do not allege that Appellant was not confined at the times he had unauthorized contacts with family members or casual relations in September, October, and December 2008, the indictments do not allege criminal activity.   See Posey, 545 S.W.2d at 163 (requiring indictment to “state facts which if true show a violation of the law”).   And because the indictments do not allege criminal activity, the trial court did not have jurisdiction.   See Ex parte County, 577 S.W.2d 260, 261 (Tex.Crim.App.1979) (“The referenced indictment fails to allege an offense under the laws of this State and is therefore void.   The trial court never had jurisdiction to entertain petitioner's plea.”).   We hold that the trial court erred by failing to grant Appellant's motions to quash the December 2008 indictments.²

We must now determine whether the trial court's error requires reversal.   “[W]here a purported charging instrument does not satisfy constitutional requirements, the resulting lack of jurisdiction over the defendant [is] characterized as the absence of a nonforfeitable, systemic requirement.”   Smith v. State, 309 S.W.3d 10, 18 (Tex.Crim.App.2010).   Because a trial court does not have jurisdiction to entertain a plea to an indictment which does not allege an offense, it follows that a trial court “lacks jurisdiction to accept a plea for something which is not an offense at all.”  Nasser v. State, 797 S.W.2d 318, 320 (Tex.App.-Corpus Christi 1990, pet. ref'd);  see Ex parte County, 577 S.W.2d at 261.   In the absence of jurisdiction, any conviction is a nullity.   Ex parte County, 577 S.W.2d at 261;  Nasser, 797 S.W.2d at 320.

Appellant received a ten-year sentence for each conviction arising from the December 2008 indictments, but he timely objected to the defects of substance in the December 2008 indictments.   See Smith, 309 S.W.3d at 18 (holding that failure of indictment to allege all elements of an offense is a defect of substance).   And the trial court's failure to quash the indictments, given its lack of jurisdiction, is harmful under any standard of review.   See Thompson v. State, 44 S.W.3d 171, 183 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding that if any harm analysis is applied, the trial court's failure to quash substantively defective indictment would be harmful under any standard of review);  but see Smith, 309 S.W.3d at 19 (stating that the appropriate harm analysis for defects of substance in indictment has not been determined and remanding to court of appeals to determine appropriate harm analysis).   We sustain Appellant's second point.

V. Conclusion

Having overruled Appellant's first point, we affirm the trial court's judgment in Cause Number 1112197D.   Having sustained Appellant's second point, we vacate the trial court's judgments in Cause Numbers 1139006D and 1139010D and remand those causes to the trial court for further proceedings consistent with this opinion.

PUBLISH

FOOTNOTES

FN1. See Tex. Health & Safety Code Ann. § 841.085 (Vernon 2010)..  FN1. See Tex. Health & Safety Code Ann. § 841.085 (Vernon 2010).

FN2. The State also argues that Appellant has briefed only count one of the December 2008 indictments and has therefore forfeited any complaint about the remaining counts in each indictment.   We disagree.   All counts in the December 2008 indictments are identical except for the name of the person contacted and the date of the contact, Appellant's brief refers to all dates in September, October, and November 2008 on which he allegedly violated his civil commitment order, Appellant's second point is framed as encompassing all counts in each of the December 2008 indictments, and Appellant's prayer seeks reversal of the judgments in their entirety.   Thus, Appellant did not forfeit any complaint concerning the December 2008 indictments..  FN2. The State also argues that Appellant has briefed only count one of the December 2008 indictments and has therefore forfeited any complaint about the remaining counts in each indictment.   We disagree.   All counts in the December 2008 indictments are identical except for the name of the person contacted and the date of the contact, Appellant's brief refers to all dates in September, October, and November 2008 on which he allegedly violated his civil commitment order, Appellant's second point is framed as encompassing all counts in each of the December 2008 indictments, and Appellant's prayer seeks reversal of the judgments in their entirety.   Thus, Appellant did not forfeit any complaint concerning the December 2008 indictments.

PER CURIAM