In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00169-CR

STEPHEN W. PENDERGRASS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th District Court

Marion County, Texas

Trial Court No. F14437

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley
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MEMORANDUM OPINION

After Stephen W. Pendergrass entered a plea of guilty in October 2013 to the charge of 

delivery of a controlled substance, the trial court entered an order placing him on deferred 

adjudication community supervision for a period of five years. Less than a year later (in April 

2014), the State moved to adjudicate guilt alleging that Pendergrass had violated five of the 

conditions of his community supervision. At the hearing on this motion, Pendergrass (who was 

the sole witness) entered a plea of “true” to all five of the alleged violations. The trial court 

adjudicated Pendergrass guilty and sentenced him to fifteen months’ confinement in state jail. 

On appeal, Pendergrass does not fault the procedures at the hearing to adjudicate his 

guilt, but rather, contends that the original indictment was fundamentally defective because it 

failed to name the person to whom he was alleged to have delivered the controlled substance. 

We affirm the trial court’s judgment because Pendergrass waived his complaint regarding 

the indictment.

Pendergrass Waived his Complaint Regarding the Indictment

The pertinent portion of Pendergrass’ indictment in this case alleged that “on or about the 

25th day of July, 2012,” he “did then and there deliver, by actual transfer, to Confidential 

Informant #7-25-12, a controlled substance . . . .” In his sole point of error, Pendergrass 

contends that the indictment to which he pleaded guilty was insufficient as a matter of law 

because the identity of the person to whom it was alleged that Pendergass had delivered the 

controlled substance was so “vague . . . general and non-descriptive as to constitute no allegation 

of a name at all . . . .” 
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Pendergrass does not take into account Article 1.14 of the Texas Code of Criminal 

Procedure, which provides in part that

[i]f 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) (West 2005). Indictments 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). Thus, because all substantive defects in 

indictments are subject to waiver, the existence of such defects does not render the indictment 

“void.” See id. at 178.

As a general rule, the original plea cannot be attacked on an appeal from the revocation 

proceedings in a deferred adjudication context. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. 

App. 2001). However, an exception to this general rule exists if a judgment of conviction is 

void. Id. The void judgment exception recognizes that there are some rare situations in which a 

trial court’s judgment is accorded no respect due to a complete lack of jurisdiction to render the 

judgment in question. Id. “A void judgment is a ‘nullity’ and can be attacked at any time.” Id. 

at 667–68 (citing Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998)). Thus, a 

defendant who was placed on deferred adjudication may raise on appeal an error that would 

render the original judgment void, even if that appeal comes after the defendant’s guilt has 

already been adjudicated. Id. at 668.
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An instrument which is not an “indictment” under Article V, Section 12 of the Texas 

Constitution fails to vest the trial court with jurisdiction, and that issue can be raised for the first 

time on appeal. See Duron v. State, 956 S.W.2d 547, 551 n.3, 555 (Tex. Crim. App. 1997)

(Womack, J., concurring); Cook v. State, 902 S.W.2d 471, 479–80 (Tex. Crim. App. 1995). 

“[T]o comprise an indictment within the definition provided by the constitution, an instrument 

must charge: (1) a person; (2) with the commission of an offense.” Cook, 902 S.W.2d at 476. 

“[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 indictment is otherwise defective.” Duron, 956 S.W.2d 

at 550–51. The issue presented to this Court is whether identifying the confidential informant 

only with the numbers “7-25-12” (the date of the offense) prevents the charging instrument from 

describing the crime with sufficient clarity and specificity to identify the relevant penal statute.

Here, Pendergrass was charged with delivery of a controlled substance, the elements of 

the offense being that (1) a person (2) knowingly (3) delivers (4) a controlled substance. See

TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010). The indictment alleged that “on 

or about the 25th day of July, 2012” Pendergrass “did then and there deliver, by actual transfer, 

to Confidential Informant #7-25-12, a controlled substance . . . .” Although Pendergrass is 

correct in pointing out that the indictment does not give the specific name of the person to whom 

the delivery was allegedly made by him, the name of the recipient is not an essential element of 

the crime. See id. The indictment clearly accuses Pendergrass “of a crime with enough clarity 

and specificity to identify the penal statute under which the State intends to prosecute” and,
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therefore, is sufficient to constitute an indictment or information under the Constitution. See 

Duron, 956 S.W.2d at 550–51.

Because the indictment was constitutionally sufficient, the judgment is not void and 

Pendergrass cannot attack the original plea. See Nix, 65 S.W.3d at 667. There being no other 

points on appeal, we affirm the trial court’s judgment. 

Bailey C. Moseley

Justice

Date Submitted: January 29, 2015

Date Decided: February 3, 2015

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