COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00054-CR

ROBERT IAN PERRY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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In three issues, appellant Robert Ian Perry appeals his conviction and his 

eight-year sentence for aggravated assault with a deadly weapon.2

 We affirm.

 1

See Tex. R. App. P. 47.4.

2

See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
2

Background Facts

In the first count of a two-count indictment, a grand jury charged appellant 

with aggravated assault with a deadly weapon. Specifically, the first count 

alleged that appellant had intentionally, knowingly, or recklessly threatened 

imminent bodily injury to a victim and had used or exhibited a deadly weapon 

during the assault. Appellant filed several pretrial motions, including a motion to 

quash the indictment. In that motion, he contended that the “wording of the 

indictment in count one [was] unconstitutionally vague and ambiguous in that it 

fail[ed] to sufficiently apprise [him] of the manner and means” of the threat of 

imminent bodily injury. Appellant acknowledges that he never obtained an 

express ruling on the motion to quash.

Three days after appellant filed the motion to quash, he pled guilty to count 

one3 while receiving written plea admonishments, waiving constitutional and 

statutory rights, and judicially confessing. While pleading guilty, appellant 

expressly waived any pretrial motions that he had filed. After receiving evidence 

and arguments related to appellant’s proper punishment,4 the trial court 

convicted him of aggravated assault with a deadly weapon and sentenced him to 

 3

The State waived count two. 

4

The trial court considered a presentence investigation report; testimony 

from the victim, appellant, and appellant’s mother; and a video of the offense, in 

which appellant shot at an employee of a towing company after his car had been 

towed from an apartment complex.
3

eight years’ confinement. The trial court certified appellant’s limited right to 

appeal his “sentence,” and he brought this appeal.

The Forfeiture of Appellant’s Issues

The substance of appellant’s three related issues concerns his contention 

that he preserved an argument related to the denial of his motion to quash the 

indictment and that the trial court erred by allegedly overruling that motion.5

 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); Clark v. State, 365 S.W.3d 333, 

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort 

Worth 2012, no pet.). Further, the trial court must have ruled on the request, 

objection, or motion, either expressly or implicitly, or the complaining party must 

have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena 

v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).

A reviewing court should not address the merits of an issue that has not

been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. 

App. 2010) (op. on reh’g); Clay, 361 S.W.3d at 765. Preservation of error is a 

systemic requirement. Wilson, 311 S.W.3d at 473–74; Ford v. State, 305 S.W.3d 

530, 532–33 (Tex. Crim. App. 2009); Clay, 361 S.W.3d at 765.

 5

Although appellant phrases the title of his first issue in terms of 

jurisdiction, the body of his first issue concerns preservation of error.
4

Complaints concerning the adequacy of an indictment are subject to 

forfeiture. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005) (explaining 

that if the defendant fails to object to an error in the form or substance of an 

indictment “before the date on which the trial on the merits commences, he 

waives and forfeits the right to object to the . . . error, . . . and he may not raise 

the objection on appeal or in any other postconviction proceeding”); Tex. R. App. 

P. 33.1(a); Miller v. State, 333 S.W.3d 352, 356 (Tex. App.—Fort Worth 2010, 

pet. ref’d) (op. on reh’g). In fact, except for “complaints involving systemic (or 

absolute) requirements, or rights that are waivable only, . . . all other complaints, 

whether constitutional, statutory, or otherwise, are forfeited by failure to comply 

with Rule 33.1(a).” Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 

2004). The right to be charged by an instrument that is free of defects, errors, 

and omissions is neither a “systemic” requirement nor a “waivable-only” right. 

Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App. 2003). “By the 

requirement of an act of the legislature under specific authority granted by an 

amendment of the Constitution, any error in the charging instrument must be 

objected to in a timely . . . and specific manner, and any unobjected-to error in 

the instrument is not ‘fundamental.’” Id. (emphasis added).

The facts in this appeal are similar to facts in an appeal that one of our 

sister courts resolved. See Garcia v. State, 32 S.W.3d 328 (Tex. App.—San 

Antonio 2000, no pet.). In Garcia, the defendant complained that a trial court had 
5

erred by denying his motion to quash an indictment, but the San Antonio Court of 

Appeals held that the defendant had not preserved his complaint, explaining,

Article 1.14 of the Code of Criminal Procedure requires a defendant 

to object, not merely file a motion to preserve error. The simple filing 

of a motion is not sufficient to bring a matter to the trial court’s 

attention. To preserve error, a defendant must present the motion 

before the day of trial for it to be considered timely under article 

1.14(b). 

In the instant case, Garcia filed his motion to quash the 

indictment on Monday, May 17, 1999, and the trial began on 

Tuesday, May 18, 1999. The objections regarding the defective 

indictment, however, were not presented to the trial court until 

June 24, 1999, at the hearing on the motion for new trial. The trial 

court denied the motion for new trial on July 12, 1999. Garcia failed 

to present his motion to quash the indictment to the trial court before 

the date of trial. Under these circumstances, we conclude that 

Garcia failed to timely object to any defects in the indictment. 

Because Garcia failed to timely object to any defects in the 

indictment, the error is waived.

Id. at 331 (emphasis added) (citations omitted).

The record in this case reveals facts that are similar to what the court in 

Garcia held to be insufficient to preserve error: appellant simply filed a motion, 

and nothing in the record indicates that he presented the motion to the trial court 

or that the trial court was otherwise aware of it either before or after he pled 

guilty. In fact, at the beginning of the February 2013 hearing on appellant’s 

punishment, the trial court asked the parties whether any pretrial matters needed 

to be resolved, and both parties responded that there were not any. Because the 

record does not establish the trial court’s awareness of the motion to quash, we

cannot conclude, as appellant urges, that the trial court implicitly overruled the 
6

motion. See Gutierrez v. State, 36 S.W.3d 509, 511 n.1 (Tex. Crim. App. 2001) 

(explaining that a ruling can be implied when the trial court’s actions 

unquestionably indicate a ruling); see also Montanez v. State, 195 S.W.3d 101, 

104–05 (Tex. Crim. App. 2006) (holding that a trial court implicitly overruled a 

motion to suppress when the court held a hearing on the motion, a notation on 

the docket sheet stated that an appeal had been preserved, and a certification of 

the defendant’s right to appeal stated that matters had been raised by a written 

motion filed and ruled on before trial); James v. State, 102 S.W.3d 162, 169 (Tex.

App.—Fort Worth 2003, pet. ref’d) (“While an appellate court will generally find 

that a trial court made an implicit ruling on an objection when the objection was 

brought to the trial court’s attention, it will only do so when ‘the trial court’s 

subsequent action clearly addressed the complaint.’”) (emphasis added) (quoting

State v. Kelley, 20 S.W.3d 147, 153 n.3 (Tex. App.—Texarkana 2000, no pet.)).

Because the record establishes that appellant merely filed a motion to 

quash the indictment, did not bring the motion to the trial court’s attention, did not 

obtain an express or implied ruling on it, and expressly informed the trial court 

that no pretrial matters needed a resolution, we conclude that appellant forfeited 

all of his complaints concerning the alleged denial of the motion.6

 See Tex. Code 

 6

Similarly, we also hold that appellant forfeited the part of his third issue in 

which he complains, for the first time on appeal, that section 22.01 of the penal 

code is facially unconstitutional. See Karenev v. State, 281 S.W.3d 428, 434 

(Tex. Crim. App. 2009); Ibenyenwa v. State, 367 S.W.3d 420, 422 (Tex. App.—

Fort Worth 2012, pet. ref’d) (op. on reh’g).
7

Crim. Proc. Ann. art. 1.14(b); Tex. R. App. P. 33.1(a); Garcia, 32 S.W.3d at 331; 

see also Cabral v. State, 170 S.W.3d 761, 764 (Tex. App.—Fort Worth 2005, pet. 

ref’d) (mem. op.) (holding that a defendant’s complaint about an indictment was 

forfeited because he did not bring the complaint to the attention of the trial court); 

Suarez v. State, No. 05-03-00096-CR, 2003 WL 23025024, at *2 (Tex. App.—

Dallas Dec. 30, 2003, pet. ref’d) (not designated for publication) (“By failing to 

present her motion to quash the indictment to the trial court or to object before 

the date of trial, Suarez has failed to timely object to any defects in the 

indictment. Thus, Suarez has waived any error . . . .”) (citations omitted); Mills v. 

State, 941 S.W.2d 204, 209 (Tex. App.—Corpus Christi 1996, pet. ref’d). We 

overrule appellant’s three issues.

Conclusion

Having overruled appellant’s issues, we affirm the trial court’s judgment.

PER CURIAM

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: January 9, 2014