Smith v. State (494 S.W.3d 243, 2015)

OPINION

Opinion by

Justice Carter

A jury convicted Shawn Smith of two counts of indecency with a child by sexual contact and one count each of aggravated sexual assault of a child, injury to a child, and assault causing bodily injury. Pursuant to findings of true to the State’s enhancement allegations, Smith was sentenced to ninety-nine years’ imprisonment each for the indecency with a child by sexual contact and aggravated sexual assault offenses, twenty-five years’ imprisonment for injury to a child, and one year in county jail for assault causing bodily injury. Smith appeals these convictions.

On appeal, Smith argues (1) that due to a fundamental error, the State’s indictment failed to charge him with commission of the offense of injury to a child, (2) that the trial court erred in failing to grant his motion to quash the aggravated sexual assault count of the State’s indictment, (3) that he was improperly tried in absentia during the punishment phase of his trial, and (4) that the trial court erred in admitting a DNA laboratory report without affording Smith the right to confront the serologist who conducted the DNA testing.

We overrule Smith’s first two points of error because we find that the State’s indictment is not fundamentally defective and that it provided Smith with constitutional notice of the charges against him. We further find that the trial court did not abuse its discretion in finding that Smith voluntarily absented himself from the punishment phase of his trial and that Smith failed to preserve a Confrontation Clause objection to the laboratory report. Accordingly, we affirm the trial court’s judgment.

I. The Indictment Is Not Fundamentally Defective

Smith’s first point of error on appeal questions whether the State properly indicted him for the offense of injury to a child. “An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense.” Tex. Const. amend. Y, § 12(b). “[A]n instrument which is not an indictment or information under Article V, Section 12 of the Texas Constitution fails to vest the trial court with jurisdiction.” Mantooth v. State, 269 S.W.3d 68, 72 (Tex.App.-Texarkana 2008, no pet.).

Count 4 of the State’s indictment alleged,

Injury to a Child

And it is further presented ... that [ ] on or about January 19, 2013, the said Shawn Lewis Smith, did then and there intentionally or knowingly [sic] bodily injury to Shelby Jones (a pseudonym), a child who was then and there 1J years of age or younger, by beating Shelby Jones (a pseudonym) mth a belt.

A person commits the offense of injury to a child if he intentionally or knowingly causes bodily injury to a child. Tex. Penal Code Ann. § 22.04(a)(3) (West Supp. 2014). Due to the State’s omission of the term “caused” following the alleged mens rea, Smith argues that count 4 of the State’s indictment is fundamentally defective and failed to confer jurisdiction upon the trial court because it “omitted the required causation element.”

Smith concedes that “[although [he] objected to the indictment, [he] did not object to the indictment on th[e] basis” now raised on appeal, but correctly argues that a complaint that an indictment is so defective that it deprives the trial court of jurisdiction can be raised for the first time on appeal. Mantooth, 269 S.W.3d at 72 (citing Duron v. State, 956 S.W.2d 547, 555 (Tex.Crim.App.1997) (Womack, J., concurring); Cook v. State, 902 S.W.2d 471, 479-80 (Tex.Crim.App.1995); Teal v. State, 230 S.W.3d 172, 180 (Tex.Crim.App.2007)). However, as we explain below, the indictment is not fundamentally defective.

“The sufficiency of an indictment is a question of law.” State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). “ ‘[T]o comprise an [information] within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with the commission of an offense.’” Mantooth, 269 S.W.3d at 72 (quoting Cook, 902 S.W.2d at 477). “ ‘[A] written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective.’ ” Id. (quoting Duron, 956 S.W.2d at 550-51).

The State’s indictment unquestionably omitted the word “caused.” However, the indictment clearly states that the offense alleged is injury to a child. Further, it is clear from the indictment as a whole that the State is alleging the injuries resulted from Smith intentionally or knowingly beating Jones with a belt. We have previously held that an “omission of an element of the offense [] does not prevent the instrument from being an information.” Id. (citing Studer v. State, 799 S.W.2d 263, 272 (Tex.Crim.App.1990)). Likewise, “[bjecause the information is sufficient to identify the penal statute under which the State intends to prosecute, the error is not a ‘fundamental’ error.” Id.

“[I]ndietments charging a person with committing an offense, once presented, invoke the jurisdiction of the trial court, and jurisdiction is no longer contingent on whether the indictment contains defects of form or substance.” Teal v. State, 230 S.W.3d 172, 177 (Tex.Crim.App.2007). Because defects in indictments are subject to waiver, the existence of such defects does not render the indictment void. See id. at 178; Piland v. State, 453 S.W.3d 473, 479-80 (Tex.App.-Texarkana 2014, pet. filed) (concluding that by failing to raise the issue with the trial court, defendant waived complaint that indictment was defective because it failed to specify any level of mens rea). Specifically, Article 1.14 of the Texas Code of Criminal Procedure provides, in part,

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 Chim, PROC. Ann. art. 1.14(b) (West 2005). The omission of the term “caused” was a defect that Smith was required to raise with the trial court. See id.

Wé overrule Smith’s first point of error because (1) the indictment was not fundamentally defective and (2) Smith failed to raise a complaint of form or substance in the trial court with respect to count 4 of the State’s indictment.

II. The Trial Court Did Not Err in Overruling Smith’s Motion to Quash the Aggravated Sexual Assault Count

We conduct'-a de novo review of a trial court’s denial of a motion to quash. Smith v. State, 297 S.W.3d 260, 267 (Tex.Crim.App.2009); Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007). '“A defendant has a constitutional right to sufficient notice so as to enable him or her to prepare a defense.” Hughen v. State, 265 S.W.3d 473, 481 (Tex.App.-Texarkana 2008), aff'd, 297 S.W.3d 330 (Tex.Crim.App.2009). Thus, to ensure proper notice, “the indictment must be specific enough to inform the defendant of the nature of the accusations against him.” Smith, 297 S.W.3d at 267; see State v. Mays, 967 S.W.2d 404 (Tex.Crim.App.1998) (en banc).

Count 1 of the' State’s indictment contained a notation specifying that it alleged the offense of “Aggravated Sexual Assault-Child Victim (22.021PC).” Section 22.021 of the Texas Penal Code states,

(a) A person commits an offense:

(1) if the person:

(B) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a child by any means; and

(2) if:

(A) the person:

(ii) by acts or words places the victim in fear that ... death, serious bodily injury, or kidnapping will be imminently inflicted on any person.

Tex. Penal Code Ann. § 22.021(a) (West Supp. 2014). In the body of the indictment, the State alleged that Smith,

[o]n or about January 2], 2013, did then and there intentionally or knowingly cause the penetration of the sexual organ of Shelby Jones (a pseudonym), a child who was then and there younger than 17 years of age, by defendant’s sexual organ, and the defendant did then and there by acts or words threaten to cause, or place, [Jones] in fear that death would be imminently.inflicted on [Jones] and said acts or words occurred in the presence of [Jones].

Smith concedes that the indictment alleged all necessary elements of -aggravated sexual assault of a child. Yet, on August 12, 2014, Smith moved to quash count 1 of the indictment on the ground that he had insufficient notice of the allegation because the State “failed to allege what type act or words the Defendant is alleged to have done or said.” On appeal, Smith argues that the trial court erroneously overruled his motion to quash count 1 because the indictment alleged nine possible aggravating factors. Specifically, Smith argues that according to the State’s indictment, the sexual assault could have been aggravated in the following nine ways:

(1)' by “voluntary bodily movement” [that] places the victim in fear that death would be imminently inflicted on her,

(2).by “involuntary bodily movement” [that] places the victim in fear that death would be imminently inflicted on her,

(3) by "speech” [that] places the victim in fear that death would be imminently inflicted on her,

(4) by “word” [that] places the victim in fear that death would be imminently inflicted on her,

(5) by “voluntary bodily movement” occurring in the presence of the victim [that] threatens to cause the victim’s death,

(6) by “involuntary bodily movement” occurring in the presence of the victim [that] threatens to cause the victim’s death,

(7) by “speech” occurring in the presence of the victim [that] threatens to cause the victim’s death,

(8) by “word” occurring in the presence of the victim [that] threatens to cause the victim’s death, or

(9) [because] the victim is younger than 14 years of age.

We remain unpersuaded by Smith’s argument. Under Section 22.021 of.the Texas Penal Code, the crime is aggravated if:

(A)the,person:

(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the samé criminal episode;

(ii)" by acts oh words places the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;

(iii) by acts or words occurring in the presence of the victim threatens to cause any person to become the victim of an- offense under Section 20A.02(a)(3), (4), (7), or (8) or to cause the death,' serious bodily injury, or kidnapping of any person;

(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;

(v) acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode;

or

(vi) administers.or provides flunitra-zepam, otherwise known as 'rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating the commission of the offense;

(B) the victim is younger than 14 years of age; or

(C) the victim is an elderly individual or a disabled individual.

Tex. Penal Code Ann. § 22.021(a)(2).

Here, The State’s indictment clearly tracked the' language of Section 22.021(a)(2)(A)(n). The State did not allege (1) that Smith caused serious bodily injury or attempted to cause Jones’ death, (2) that Smith used or exhibited a deadly weapon, acted in concert with another, or administered any drugs to Jones, or (2) that Jones was a child younger than fourteen years of age or was an elderly or disabled individual.' Because the State alleged that the acts or words threatening Jones amounted to a threat that death would be imminently inflicted upon her, the State alleged 'a violation of subsection (a)(2)(A)(ii), not (iii). Also, since the State alleged that Smith’s acts were intentional or knowing, the words or acts used to threaten Jones’ death were alleged to be voluntary.

“Subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature.” Mays, 967 S.W.2d at 406. However, “[a] statute which uses an undefined term of indeterminate or variable meaning requires more specific pleading in order to notify the defendant of the nature of the charges against him.” Id. at 407. The term “Act” is defined as “a bodily movement, whether voluntary or involuntary, and includes speech.” Tex. Penal Code Ann. § 1.07(a)(1) (West Supp. 2014).

Presumably, the term “act” on its own could have indeterminate or variable meanings. Neither Smith’s research nor ours uncovers a case addressing whether the term “act” is so indefinite as to require further notice. However, Texas courts considering the term “force” within the context of our predecessor sexual assault of an adult statute have rejected the argument that further pleading is required, even though the act is only prohibited when it is non-consensual and three out of ten instances in which the prohibited act is non-consensual involve the use of force. See Tullous v. State, 23 S.W.3d 195, 197 (Tex.App.-Waco 2000, pet. ref'd) (citing Johnson v. State, 623 S.W.2d 654, 655 (Tex.Crim.App.1981); Brem v. State, 571 S.W.2d 314, 317 (Tex.Crim.App. [Panel Op.] 1978); Watson v. State, 548 S.W.2d 676, 678-79 (Tex.Crim.App.1977)); see also Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 3, 1983 Tex. Gen. Laws 5311, 5312 (amended, most recently, 2009) (current version at Tex. Penal Code Ann. § 22.011(b) (West 2011)).

In reasoning that the term “force” was not so indefinite, in the context of the sexual assault statute, as to require further pleading, the court in Watson observed:

The only type of “force” which will support a rape conviction is that which “overcomes • such earnest resistance as might reasonably be expected under the circumstances.” The only type of “threat” which will support a rape conviction is that which “would prevent resistance by a woman of ordinary resolution.” The indictment in effect alleged what had to be proved. When the terms “force” and “threats” were used in the indictment, the appellant was given adequate notice of the offense with which he was charged ....

While generally it is better practice to describe the offense in the indictment in the words of the statute, the instant indictment was not fundamentally defective. It is not necessary that an indictment for rape allege the character of the force or specify the threats. The use of the general terms as in the instant indictment is sufficient.

Watson v. State, 548 S.W.2d 676, 678-79 (Tex.Crim.App.1977) (footnotes omitted) (citations omitted).

Similarly, here, the acts or words, as alleged in the State’s indictment, must have been acts or words occurring in Jones’ presence either threatening to cause Jones’ death or placing her in fear of death. The indictment tracked the language of the statute and provided notice of the exact subsection under which the indictment was brought. Thus, we conclude that the State, in the indictment, was required to neither allege the character of the acts or words used by Smith nor further specify the manner in which the death threats were made. See id. Accordingly, the trial court did not err in failing to quash the State’s indictment.

Moreover,