Reversed and Remanded and Opinion filed April 22 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00 254

- CR

THE STATE OF TEXAS , Appellant

V.

DMITR IY YAKUSHKIN , Appellee

NO. 14

- 20

- 00 256

- CR

THE STATE OF TEXAS , Appellant

V.

CESAR MORA

- ORTIZ , Ap pel lee

N O. 14

- 20

- 0032 0

- CR

THE STATE OF TEXAS , Appellant

V.

ISAI CESPEDES

- JUAREZ , Appellee2 NO. 14

- 20

- 0032 1

- CR

THE STATE OF TEXAS , Appellant

V.

ALBERTO CRUZ PONCE , Appellee

N O. 14

- 20

- 0032 2

- CR

THE STATE OF TEXAS , Appellant

V.

DON EDWARD LONG , Appellee

NO. 14

- 20

- 0032 3

- CR

THE STATE OF TEXAS , Appellant

V.

IVERY VERONN MYERS , Appellee

NO. 14

- 20

- 0032 4

- CR

THE STATE OF TEXAS , Appellant

V.

BRANDON SILVA , Appellee3 NO. 14

- 20

- 00325

- CR

THE STATE OF TEXAS , Appellant

V.

BERNARDINO AMBUNDIZ , Appellee

NO. 14

- 20

- 00 32 6

- CR

THE STATE OF TEXAS , Appellant

V.

DARNELL THIBODEAUX , Appellee

NO. 14

- 20

- 0032 7

- CR

THE STATE OF TEXAS , Appellant

V.

OSCAR LEDET III , Appellee

NO. 14

- 20

- 0032 8

- CR

THE STATE OF TEXAS , Appellant

V.

ADRIANA DELEON IBARRA , Appellee4 On Appeal from Co u nty Cr im inal C our t at Law No

. 8

Harris County , Texas Tri al Court Cause No s . 221 4656, 2252333 , 2300032, 2278514, 2292998, 2293155, 2296769, 2294900 , 2295063, 2297333, 2299436

O P I N I O N

T he common issues present ed in these cri minal appeal s are whether t h e Ha rris C ounty District Attorney has statutory auth ority to file a n appeal on the
State ’ s behalf from county

- level criminal courts of Harris C ount y, and if so
whether the judge of C ounty C rim inal C ourt at L aw No . 8 erred in quashing the
in formations f

iled aga inst a ppellee s on the ground that the comp laint supporting
each information is invalid

.
F or the re asons explained, we ho ld that the Le gislature has authorized the
Harri s County District Attorney to represent the State in appeals from county

- level
crim ina l co ur ts of Harris County

. Because the district attorney filed a timely
notic e of ap peal in each of these cases , we have j uris dicti on over them , an d we de ny appellee s ’ request s to dismiss these appeal s for want of ju risdi ction

.
R e aching the merits of th e St at e ’ s c hallenge to the order s , we conclude that

t he trial court erred in qua shing the information s on the ground that th e sup porting complain t s are invalid. T he complaint s satis f y all statutory requi rements and
therefore are valid

. W e sustain the Sta te ’ s i ssue in each appeal , reverse the trial

court ’ s order s quashing the information s , an d remand the c ase s for further

p r oceedings.5

Due to common dispositive questio ns, the court has consolidated these appeals on its own motion for sub mission p urposes. 1 A j u st ice of this court requested a vote on whether t o consider the issues e n banc

. A majo rity of the en banc court has voted against en banc consi der ation. 2 A panel of the court will
consider the cases. See Tex. R. App. P. 41.1(a), 41.2(c).
Backgr oun d

T he S t a te charged each appellee by information with various offense s

. Ea ch
information was supported by a sworn complaint.

A ppellee s moved to quash and set aside the inf ormation s and dismiss t he

ca se s against t hem

. 3 In their motions, each appellee so ug h t d i s m issal largely for
the same reason, namely , that the com plaints or affidavits accompanying each
information were defective or invalid . Appel lee Yakushkin argued that the information against hi m was not supported by an affidavit ma de by a credib le

pe r son , c on trary to Code of Crim inal Procedure article 21.22. T h e other appellees

a r gu ed that “[t]he co mplaint in this case does not meet the basic essential requirements provided by Texas statute, the Texas Constitution, or the U.S.
Constitution

. ” The ir m o t ion s d id not specif y p re cisely in which particulars the

co mp laint s were def

icient, bu t at the hearing appellee s argued that the complaint s

1 Chief Justice Christopher and Justices Wis e , Jew ell, Zimmer er, and Wi lson voted in favor of consolidation; Justices Bourliot, Spain, Hassan, and Poissant voted against consolidation. We have exclu ded one similar appeal from con soli da tion because a panel of the court has already submitted that cas e on o ral argu men t. Appeal No. 14

- 20

- 0025 5

- CR; State v. Martinez

. S everal appeals invo lvin g iden tical issues were docketed i n the Firs t Cour t of A ppeals and decid ed recently

. See State v. S ant illana , 612 S.W. 3d 582 , 584 n.3 (Tex. App.

— Houston [1st Dist. ] 2 0 20 , pet. ref

’ d )

. 2 Chie f Justice Christopher and Justices Wise, Jewell, Zimmerer, and Wilson voted against en b anc consideration ; Justices Bourliot, Spain, Hassan, and Poissant voted for en banc consideration

.

3 W e note one possibl e exception: the c l erk ’ s record in a ppeal No. 14

- 2 0

- 00 256

- CR , State v. Mora

- Ortiz , does n o t c ontain a moti on to quash the information

.6

in each case did not allege sufficient facts to establish probable cause. 4 In opposition to th e motion s , the S tat e a rgu e d that the complaint s are valid be c ause they sati sfied the requirements of C ode of Criminal Procedure article 15.05

. See
Tex. Code Crim. P roc . art. 15.05. Over three successive days, the trial co urt signed orders qua shi ng the
inform ation s in a ll e l e ven c a ses. On Febr uary 17 and 18, 2020, the court qua shed

t he information s as to appellees Yakus h kin and Mora

- Ortiz, finding in each case
that the affidavi ts supporting th e information s failed to state sufficient facts to support probable cause. On Feb r u a ry 1 9 , 2020 , the court signed order s quashing
the in form ation s as to all other appellees. Th ose orders d o not state gr ou nds, but at
the conclusion of the Feb ruary 19, 2020 hearing , t he court stated it was grant ing appellee s ’ motion s to set aside the in f o r mat i o n s “ on the grou nd they are not based on a valid complaint and so the informatio n s are ordered set aside .”
The Harris County Distric t Attorney, on behalf of the State, fil ed a ti mely notice of appeal in each case pursuant to Texas Code of Crimi nal P r oced u r e article 44.01(a)(1)

.
I ssue s Presented

In its sole iss ue , the S tate contends that the trial court erred in dismi s sing the
informatio n against each appellee b ecaus e , in pr osecution s like these under Code
of Criminal Proce dure article 21. 22, T exa s l aw d o e s not r equire th at a complaint
include sufficient facts to establish probable cause

. In their response brief s ,

4 W ith the e xception of appe llees Yakush kin and Mora

- Ortiz, the trial co unt held a si ngle hearing on February 19, 2020 , to co nsider all a p pell ees ’ motions , which we re fi led by the same counsel and were, as th e co urt noted, “ i dentic al ” or “ vir tually identical

. ” The co urt held a hearing on appellee Yakush kin ’ s motion two days earlier, F e bruary 17, 2020. We hav e no record of a he aring re gard i ng a ppellee Mora

- Ortiz

.7

appel lee s acknowledge th e S t ate is corr ect and thus concede error on that particular point

. On appeal, h owever, appellee s raise an a ddi t i o nal r e ason why each complaint is invalid and more ove r challenge our jurisdiction over the State ’ s appeal s

. Regarding the jurisdictional quest i on , appe l lee s argue that we must dismiss th ese case s because the Harris County District Attorney has n o aut hor i t y to f i le a notice of appeal on the State ’ s be half in cases from the Harris County

c riminal c ourts at l aw. If, as appellee s contend , the Harris C ounty District Attorney has no authority to file a notice of appeal in cases originating in the

c oun ty cr imi n a l co u r

t s at law, then the notice s of appeal s he filed on the State ’ s behalf here were insufficient to invoke this court ’ s jurisdiction.

Con cerning the merits , appel lee s assert for the first ti me on appeal that the
tri al court p roperly dismissed the com p l a in t s b ecause they did not comply with
Code of Crimina l Procedure article 2.04

. Because appellee s ’ first argumen t concerns this court ’ s jurisdiction, we

a ddress it first. See, e.g

. , Galliford v. State , 101 S.W.3d 600, 603 (Tex. App.

— Houston [1 st Di s t. ] 2 003, p et. ref ’ d)

. J urisdiction
Appellee s ar gue that “ [t]he Harris County District Attorney is not statutorily
autho rized to represent the State of Texas i n criminal appeals from county

- level
courts.” Appellee s insist that “[o]nly the State Pros ecut i ng A t t orne y ” has the statutory authorit y to do so, and, because the State Prosecuting Attorney did not
file a no tice of appeal in these case s , we have no jurisdic t ion to consider the appeal s

. In support , appellee s poin t to several statutes, which th e y say do n o t gr a n t the Harris C ounty District Attorney the a uthority to file a notice of appea l for the8

State in appeals from a county

- level court. In the absence of an y statutory authority granting the Harris County District Attorney authority to f ile th e app eal ,

a ppel l e e s continue , w e must conclude that she doe s not

. A. R elevant L aw
We br iefly summarize the au thority on which appellee s r el y

. 1. Texas Constitution a r ticle V, s ection 21
Appellee s first direct us to the provision of the Texas Con stituti on th at

e m p ower s the Legislature to estab l ish the duties of district a t torneys. The Texas
Constitution provides in relevant part : A County Attorney, for counties in wh i ch there is not a resid ent Crimi nal District Attorney, shall be elected by t he q ualifie d vot ers o f

e ac h county.

. . . The County Attorneys shall represent t h e State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a di strict in which there shall be a District At torn ey, the resp ect i v e d ut i e s of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature

. Tex. Const. art. V, § 21 (emphasis added). This c o nstitutional provision speak s

on ly to representation in the district and inf erio r court s, no t a p p e ll at e courts, and provides that in districts, like Harris C o unty, that have both a district attorney and a county attorney, the Legislature will determine th e ir “respective duties.” Id.

2. Texas Code of Criminal Procedure article 2 .01

O n e st atute t ha t a ddre s s es district att orneys ’ duties pertain ing s p ecifically to appeals is Texas Code of Criminal Procedure article 2.01

. T hat article p rovides in relevant p art: “Each district attorney shall represent t he State in all criminal cas e s in the di strict co u r t s of h is district and in appeals therefrom

. ” Tex. Code Crim.
Proc. art. 2.01. Th is statute give s district attorneys auth ority to represent the State9

in a p p e als from cases in “the district courts of his district

. ” However, as app el lee s

o bser v e , the st a t

u te d o e s not specif

y who has authority to file appeals fo r t he State when, as here, the Harris County District Attorney ’ s st atutor y authori ty to prosecute cri minal cases on the State ’ s behalf extends not only to district courts but
al so c ounty crimina l c o u r ts a t law.

3. Texas Government Code section s 25.1033 and 43.180

Section 25.1033 of the Government Code pertains directly to Harris County ’ s statutory crim inal courts at law

. That section prov ides that “[t]he Harris County distric t at tor

ney serves as p r osec u t or for the county criminal courts at law as provided by Section 43.180.” Tex. Gov ’ t Code § 25.1033(k). This statute clearly provides that the Harris County District Atto rney is to be the prosecutor in the county criminal cour ts a t law , but it do e s not s p ecifically address whether, as prosecutor, the Harris County District Attorney has authority to file appeals on
behal f of the State in cases arising fr om those courts. Be cause it refe rences secti on 43.180 , ho wever , w e consider tha t sect ion as wel l

. S ect i o n 43.180 authorizes the office of Harris Cou nty District Attorney . It provi des in relevant part:
(a) The voters of H arris County elect a d istrict atto rney. (b) The district attorn ey shall a ttend each term and session of the di stri ct cou rts of Har

r i s Cou n t y. The district atto rney shall represent the state in criminal cases pendin g in the district and inferior courts of the county. The distr ict attorney has control of any case hear d on habeas corpus before any civil di strict co urt or cri minal c our t o f th e county. (c) The distr ict attorney has all the powers , duties, and privileges in Harris County relating to criminal ma tters for and i n behal f of the sta te that are conferred on dist rict attorne ys in the various countie s and dis trict

s

.10

Id. § 43

. 1 80 ( a), (b), (c) (emphasis added). Notably, this statute specifically

empowers the Harris County District Attorney to lit igate criminal cases “in the
distr ic t and inferior courts of th e county ,” see id. § 43.108(b) (e mphasis a dded) , and bestow s on t he Har r is Co unty Di strict Att orney “all the powers” “relating to
crimina l matters” “that are conferred on district attorneys in the various counties
and districts

. ” See id

. § 43.180(c). Neither sec tion 43.180 nor section 2 5.1033

sp ecifically address es a p peals.

4

. Texas G over nment Co de se ct ion 42.0 01

Acco rding to app ellee s , onl y the S tate P rosecuting A ttorney is authorized to represent the State in appeals from Harr is County criminal courts at law

. They
direct us to Gover nment Cod e s ection 42.0 01 , whic h provi d es:
The cour t of crimi nal app eals s hall appoint a state pros ecuting atto rney to represent the state in all proceedings before the court. The state prosecuting attorney may also represent the st ate in any stage of

a c riminal c ase before a state cou r t of a p pea ls if he considers it

n ece ssary for the interest of the s tate

. Tex. G o v ’ t Code § 42.001 (a) (emphasis added) . As appellee s point out, the State Prosecuting Att orney is not required to represent the State in app eals f rom Harri s County’s criminal co u rts at l aw but “ma y” do so “i f he [o r she] con s iders it necessary f

or the inter est of the state.” Based on this sectio n, appellee s state that
the State Prosec uting At torney is the “ only entity capable of representing the St ate of Te xas in an appeal from a count y crimi na l court at law in Har ris Co unty

. ”

B. Discussion
App ellee s contend that none of the statutes referenced above specifically grant s the Harris County Distri ct Attorney power to appeal judgme nt s from Harris
C ounty criminal courts at law

. Becau s e no s t a tut e auth oriz es t h e H arris C ounty Dist rict Attorney to ap pe al cases from the county crimina l courts at l aw , app e llee s11

say that only the State Prosecuting Attorn ey had the discretionary authority to file
the notice of appeal i n these case s

. Becaus e the S t a te Prosecuting Attorn ey did not ch oose to file an app eal , and the Harris County District Atto rney ha d no power to do so, appel lee s argue that the app eal s were never perfected and must b e dismissed for lack of jurisdi ction.

In its reply b rief

, the S tate c o n tends that the Harris County Distr ict
Att orney ’ s authorizin g statute

— section 43.180 of t he Gove rnment Code

— is ambiguous because neither subsection (b) nor subsection (c) explicitly empo wers the Harris County District Attorney to represen t th e Stat e on ap p e al in criminal

cases from th e coun ty c riminal co urts at law. The State also asserts tha t appel lee s ’ interpretation of the statute would lead to the ab surd result of requiring the State Prosecuting Attorney, a three

- person of fice based i n Au stin , t o hand l e all of the appeals f rom Ha r ris Co unty ’ s statuto ry county criminal courts at law, as wel l as
th ose from several other counties in similar situations. In light of its claim that
section 43.180 is ambiguous, the State urges th i s c ourt to cons ider e x tratex t u al
sources such as le gislati ve his tory to determ ine whether the Harris County District
A ttorney had the authority to file and prosecute these appeal s

. We need not do so. W e conclude th at the Harris County District A ttorney ’ s
statuto ry a utho rity to rep r e sent the State i n ap peals fr om cou nty

- level courts at law in Harris County is eviden t from the pl ain language of the statutes appellee s cite , read in conj unction with the statute authorizi ng s tate ’ s appeals.

The Stat e has no right of appe a l in cri m inal c a s es unless it is a uth orized by

statu te. See Tex. Const. art. V, § 26 (West 1987) (“The State is entitled to appeal in criminal cases, as authorized by general law

. ”) ; see also Todd v. State , 661
S. W.2 d 116, 117 n.1 ( Tex. Crim . App. 1983) (addressi n g pre
- 1 9 87 version of article V, section 26 , which provided: “ The State shall have no right of appeal in12

criminal cases.” )

. The State is gr ante d the right of appeal by Texas Code of
Cri minal Proc edure article 44.01

. See T ex. Code Crim. Proc. art. 44.01

. Beca u s e the State ’ s ability to appeal in a criminal ca se is statutorily creat ed, the ter ms of the
statute must be followed. State v. Janss en , 592 S.W.3d 530, 533 (T ex. App.

— Amarillo 20 19, pe t. r ef

’ d) (citing State v. Sell ers , 790 S.W.2d 316, 316 (Tex. C rim.
A p p . 1990) ) ; see also State v. Wachtendorf , 475 S .W.3d 895, 899 (Tex. Crim. App.
2015 ) ( “ The State has not always enjoyed a right to app eal in Texas, and that right
is a statutorily create d on e.” ) (interna l quotation om itted)

. Article 44.01 provides , among o ther things, the circumstances under which the State may file an appeal,
the time for filing such an appea l, and who may file the app eal on behal f of the
State. See T ex. Code Cri m

. Pro c. a rt. 44.01(a ), (b), (c), (d) , ( i ).

R e garding the filing of t h e app e a l, article 44.01 provides:
The prosecuting att orney may not make an appeal under S ubsection (a) or (b) of this a rticle later than the 20t h day af ter the date on which the order, r

uling, or sentence to be appealed is entered b y the court.

Id. art. 4 4.01(d ) (emphasis added). The statute then defines “p rosecuting attorney” :
In this articl e, “prosecuti ng att orney” means the county at torney , di strict attorney , or criminal d istrict atto rney w ho h as the primary responsibili ty o

f pro secuting cases in the c ourt h e a ring the case and does not include an assistan t prosecuting attorney.

Id. art. 44. 01(i) (emphas is add ed).

I t is undisputed that “[t]h e [H arris County] district attorne y shall repr esent the state in criminal cases p en ding in t he district and inferi o r cour t s of the county” and “serves as prosecutor for the county criminal courts at law

. ” Tex. G ov ’ t Code §§ 43.180(b), 25.1033(k). U nder C ode of Criminal Procedure article 44.01(i),

mo reover , th e “prosecuting attorney” fo r the cou nty

- level courts of Ha r ris Co u n ty13

is the Harris County District Attorney beca use she “has the primary responsibil ity of prosecuting cases” in County Criminal Court at L aw No. 8 of Harris C ounty.
As the “p rosec uting atto rney,” it is her responsibi lity to “ make an appeal” wit hin twenty d ays of the date of the trial court ’ s order

. I n the present case s , the Harris
Count y District Att or

ney filed timely notice s of appe al. Accordingly , she properly
invo k ed ou r appel late j uris diction, and we deny appell ee s ’ requ est s that we dismiss

t h ese ca s e s for want of jurisdiction.
Our disposition on this issue a ligns with that of o ur s is ter court in H ouston , which recently r eje c ted an identical argument , raise d by t he same publ ic def ende r, in State v. Sant illana , 612 S.W.3 d 582 (Tex. App.

— Houst o n [1st D ist.] 2 0 20 , pet. ref ’ d )

. Ba sed on the pla in text of t he various statutes cited above , the S antillana
court concluded that a time ly notice of appeal f iled b y the Harri s County Dis trict
Atto rney from Harris County C ri mina l C ourt at L aw No. 8 proper l y in vo k e d the appell ate court ’ s jurisdiction

. Id. at 587

. W e agree with t he First Court of Appeals
on this issue

. See id

. The Stat e ’ s Issue on Appeal
In its issue on appeal , the State conten ds t hat the trial court erred i n di smissing the charges becaus e the a f f idavit s supporting each infor mation are statutori ly complia nt and because the court was incor rect to rule that an affi davi t or complaint supporting an information must articulate suffic ient facts to establish probabl e ca use

. T he trial court also e xpress e d concern during the hearing that the
affi a nt s ’ signatures on each affidavit are illegible. Th e State notes , however, that
artic le 15.05 imposes no l egibility r e quirement , 5 and that an af fia nt may attest to

5 Smi th v . State , 811 S.W.2d 665, 668 (Tex. App.

— Houston [14th Dist.] 1991, pet. ref ’ d) (stating “[t]her e is no requirement in the statute that the signatures be legible”)

.14

the state ment s in a n affidavit or compla i nt mer e l y b y “ affixing his mark

. ” See Tex.
Code Crim . Proc. art . 15.05

.
In r esponse , a ppe llee s urge us to affirm the trial court ’ s order s because the complaint s upon which each informa tio n wa s based are invalid. Appellees argue
that the complain ts are inv ali d for one reason, albeit a different reason f rom those presented in the motions below , discussed during the hea rings, or identi fied in the

t ria l court orders. Specifically, appellees co nt end th at the affiant on a written complaint must be the perso n who m a d e the original complaint to the district attorney. They base their argument on a rticle 2.04 o f th e Texas C ode of Crimi nal
Procedure , which provides : Upon complaint being m ade before a d istrict or county attorney that an offense has been committed in his d istr i ct or county, he shall reduce the complaint to writing and caus e the same t o be s ign e d and sworn to by the complainant, and it shall be duly at tested by said at torney.
Tex. Code Cri m. Proc. art. 2.04.
Appellee s argue that this statute “contai n s an a d d iti on al requirement for a complaint,” beyond the four statutory requ i si te s appli cable to “ complain ts ” listed
in arti cle 15.05 , and that the Harris County Distr ict Attorney ’ s admitted

com p liance with article 15.05 therefore is insufficient. Accord i ng to a p pellees, the

co mplaint s or affidavit s are inv alid because they do not comply with ar ticle 2.04. 6

6 Appellees acknow ledge on appeal that a n affidavit or c o mpla int supporti ng an info rmati on n eed not include sufficient facts to establish probabl e c ause. Thus, they do not seek to defend the orders on that ground. Additionally, while not ing that the affiants ’ signatures are illegible, appellees do not argue t h at t he complaint s are inv a lid s olel y b ecause the signatures are illegible, see Smith , 81 1 S.W.2d at 668; rather, they contend that illegible signatures or marks prevent them from determining whether each affian t is “ the person who first noti fied the distr i ct
a tto rney ” of the allege d vio lati ons.15

A rticle s 15.04 an d 15 .05 describe “ complaints ” and their requirements. A

“ c omplai nt , ” as refe r enced by article 15. 04, refers to the “ affidavit made b e for e t h e magistrate or district or county attorney ” that alleges the commission of an offense.
Id . art. 15.04

. A rticle 1 5. 05 lists a complaint ’ s necessar y requisit es :

The complaint shal l b e su ffici ent, w itho ut regard to form, if it have these substantia l requi s i tes: 1. It must state the name of the accused, if known, and if not known, must give some reasonably definite desc ri pt ion of him. 2. It must show that the accused has committed so me of fe nse
a gainst the laws of the State, either directly or that th e affia n t has good reason to believe, and does believe, that the accused has committed such offense. 3. It must state the t im e and place of the commission of the offense, as definitely as can b e done by the aff iant. 4. It must be signed by the affiant by w r iting h i s name or affixing his mark.

Id . art. 15.05. 7

A rticle 21.20, entitled “Information,” defines an information as “a wr it ten statement filed and presented i n behalf of the State by t he dist rict or cou nty attorney, charging the defendant with an offen s e whic h may by law be so prosecuted.” Id. art. 21.20

. No information shall be presented until an “ affidav it ”

7 A r ticle 15.05 appears in c hapter f ifteen o f th e Code, entit led “ A rrest Under Warrant

. ” The “ affidavit ” or “ complaint ” referenced in article 15.04 refers to an affid avit supporting a

w arra nt or summon s by a magis t rate

. See id . a rt. 15.03( a)(2)

. T he affidavit required by art icle 15.05 to support a wa rrant of arre st is not to be co nfused wit h the affidavit required by art i cle 21.22 to support an information ; they have separate purposes

. Se e Jernigan v. State , 661 S.W. 2d 93 6 , 938 (Tex. Cr im

. App

. 19 83), cert. denied , 464 U.S. 986 ( 1983 )

. In today ’ s ca s e s , the parties d o not dispute that a rti cle 15.05 ’ s re quireme nts applicable to complaints supporting warrant s or
summon ses also appl y to an “ aff idavi t ” or “ complaint ” sup porting a mi sdemeanor infor mati on

. O u r court and others have stated or implied as muc h. See , e.g. , We lls v. State , 516 S. W.2 d 66 3, 664 (Tex. Cr im

. App. 1975) ; St ate v. Caves , 496 S.W.3d 153, 15 6 (Tex. App.

— San Antonio 2016 , pet. ref

’ d); Gholson v. S t ate , 667 S.W .2d 168, 177 ( Tex. App.

— Houston [14th Dist.] 1983, pet. ref’d)

.16

has been made by “ some credible person ” charging the defen dan t wi th an offen se. Id . art. 21.22

. The “ affidavit ” shall be fil e d with the information. T he affida v it may be sworn to before the district or c ounty attorney , or it may be made before

any o ff ic er authorized by law to administer oaths. Id

. Here, as to e a ch a

ppell ee, th e St ate filed an “ information ” together with a sig n ed aff

i d avit , describe d on it s face as a “ complaint. ” A cco rding to a ppellee s , article 2.04 r equires that the affiant for a “ comp laint ” b e th e sam e person who originally complaine d about the all eged offens e to the district attorney

. Th us , appellees are c o ntendi n g that the “affidav it” required to be attached to the
information under article 21.22 must be sworn to by the person w ho “ made the origina l complaint to the district attorney , ” whi ch, acc ordin g to a ppel lee s , usu ally
is a “law enforcement officer.” Appell e e s continue that th e Stat e in the pres ent case did not prove that the affiant on the affidavit attached to eac h i nfor mation is in
f act the o ff

icer who first complained to the distr ict att orney

. App elle e s generally
be lieve or suspect that the affiant s are in s tead a d ministrat ive employ ee s of t h e Harr is County District Attorney ’ s o ffice

. For thi s reason, appellee s conte nd that
the affidavit s or “ complain t s ” filed with each info rmation violate art icle 2.0 4

. Appe llee s did not cite or discuss article 2.04 in thei r motio n s or duri ng the
hea ring s

. Defects in complaints must be rais ed befo re trial , a nd a defendant w ho
f ail s to object to a defect, error, or irregular it y of form or substance in an
inf orm atio n bef

ore th e da te on which the trial on the merits commences w aives t he right to object to the defect, error, or irregularity on a ppeal

. See Ramirez v. State , 105 S.W. 3d 628, 630 (Tex. Crim. App. 2003) ; Tex. Code C ri m. P roc . art. 1.14

. Here, trial on the meri ts ha d not commence d . T he court quashed each informa tio n befor e tr ial

. Because th e State does not argue waive r but instea d addresses the
substance of app e lle e s ’ article 2.04 a rgument , we will as well, presum ing without17

dec id ing that we may do so des p ite appell ee s ’ failure to assert the argume nt they
raise on a ppeal i n the tri al court b efore the court dismissed the charge s

. Cf.
S antillana , 61 2 S. W.3d at 587

- 88 (concluding that ap pellees failed to preserve

ar gument by not adva nc ing it be for e trial ).

A n inf ormati on n eed only be based upon a sworn “affidavit” “by some

c r edible pe rson” othe r than the prosecutor. Tex. Code Crim. P roc . art

. 21.22; Wells
v. State , 51 6 S. W.2d 663, 664 (Tex. Cr im

. App. 1975); Gholson v. State , 667
S.W.2d 1 68 , 177 ( Tex. Ap p.

— H ousto n [14t h Di st.] 1983, pet. ref ’ d)

. A cred ible person is a ny per s on compe t ent to tes t ify. Halbad ier v. State , 220 S.W. 85, 8 7 ( Tex. Crim. App. 1 920). Article 2. 04 says that a dist rict or county attorney is obliga ted to reduce to w riting an y comp lain t a lle ging a n of fense and to have the

“ comp lainant ” sign th e d o cument

. Ar ticle 21.22 , ho wever, does not require that
the “ affiant ” who sign s the affidavit upon whic h an information is based m ust be the person who first notified the di st rict or c ounty atto rney o f the offe nse

. Nor
does article 21.22 state that the af f idavit filed wit h the info rmation must be the “complaint” referenced in article 2.04 . Under article 2 1.22 , the “affidavit” supporting an information must be signed by a “ c re dible per son, ” and courts hav e long held that this affiant can be a police office r , or s o meone els e , includi ng someone without personal knowledge of the facts supporting the offense

. See
Wel ls , 516 S.W.2d at 6 64 ; Catchings v. State , 285 S.W.2d 233, 234 (Te x. Cr im. Ap p. 1955) ( compla int fi led by secretary for Harri s County District Att o rney h e ld
to be complaint by a “credible person,” even though she did not have first

- hand knowledg e and b ased her affirmat ion on information from a police report and an
in stru me nt sign ed by a police off icer ) ; San tillana , 612 S.W.3d at 588 ; State v.
Baland r ano , N o . 13

- 13

- 0 0536

- CR, 2 015 WL 5136453, at *2

- 3 (Tex. App.

— Corpus Christi Aug. 31, 2015, no pet.) (mem . op ., not designated for publication)18

(affidavit in support of inform at ion not i nva lid because n ot sig ned by someone
with first

- hand knowledge of fact s ) (dis c ussing We lls ); Paul sen v. State , No. 01

- 99

- 00 271

- CR, 2000 WL 1678444, at *2 (Tex. App.

— Houston [1 st D ist.] Nov. 9, 2000, no pet.) (mem. op., not designated for publication) ( ex pl aining that dist rict

a ttor ney in ve stigator may serve as affiant ) ; Rose v. Sta t e , 799 S. W.2d 381, 384 (Tex. App.

—

Dallas 1990, no pet.); Pringle v. State , 732 S.W.2d 363, 368 (Tex. App.

— Dallas 1987, pet. ref

’ d)

. Nothin g in the Code or any authority c ited p revents the dist rict a tt or ne y fr om discharging her duty under a rticle 2 .04 by reducing to writing a “complaint” signed by a “ complainant ” and also fil ing an information accompanied by an affidavit signed by some credib le p erson other than the person who si gned the “compla int”

r efer enced by article 2.04. The “ complaint ” in a r ticle 2 .04 and t he “ affida vit ”

re f erenced in article 21.22 need no t be the same document or signed by the same

person , although they may be

. Typic ally , the affidavit filed with a n in fo rmation is
in th e form of a “ com pl aint , ” 8 but all article 21.22 re quir e s is t h at an inf ormation
b e support ed by an “ affidavit

. . . made by some credible per son charging the
defendant with an offense ” and that it be sw orn to before the district or co unty

a tt orney , or an ot her pe rson autho r i z ed to administer oaths

. Tex. Code C rim. P r oc

. art

. 21.22. Ac cordingly, we hold that a rticle 21.22 imposes no requirement that the

perso n signing the affidavit referenced in that ar ticl e be the person who first

rep orte d the alleged offe nse to the dis trict a ttor ney. T he aff

idavit s acco mp an y ing
th e informat ion s in th e pre sent cas e s do not violate article 2.04 for the reason appellee s assert

.

8 See Mayo v. Sta te , No. 09

- 13

- 00387

- CR , 2014 WL 3 387 017 , at *4 (Tex. App.

— Beaumont July 9, 2014, no pet.) (m em . op. , not designated f or publication) ( “ As a gene ral rule, an info r mati on may not b e presente d unt il a n affidavit, typically in the form of a complaint, h as been made by some credi ble person ch argi ng the defendant with an offense. ” )

.19

Moreover, even indulging the premise that the aff idavit f iled with a

n inform atio n must b e signed b y the firs t person who rep orted the offense to the
dis t rict a t torney , a ppellee s ’ ar gument fa ils for an alternative reason. T he defendant has the burden of proof on a motion to quash an indictment or com plai nt. Wheat v.
State , 537 S. W.2d 2 0, 21 (Tex. C rim

. App. 197 6). Ap p e lle e s ’ response to the
State ’ s appe l late i s sue is pr emised on the notion that the S tate failed to show that
the affidavit in each case was signed by the first person who complained . B u t i t was not the S tate’s burde n to d o so; it was app ellee s ’ bu rden to prove that the
af fida vit s are invali d

. App e llees pr e s ented no evidence at the hearing s an d failed
in t his burden.

W e con clu de appellee s ’ argument regardin g t he s ufficiency of the complaint s under article 2 .04 l acks merit, and thus th e trial c ourt c ould not have properly dismissed appellees ’ charge s on this ba sis. Se e Santi l lana , 612 S.W.3d at
588

. Conclusion Having conclud ed that we have jurisdi ctio n over these appeal s and having
held that the trial co urt erred in quashing the information in each c ase , we reverse the trial c ourt ’ s orders an d reman d the case s for furt her pr oceedings.

/s/ Ke vin Jewel l Justic e

Panel consists of Justices Jewell, Poissant , and Wilson

. P u blish

— Tex. R. App. P. 47. 2 ( b).