## NO. 12

- 16

- 00145

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN MARK HOUSTON, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 369TH

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEX AS

MEMORANDUM OPINION Appellant, John Mark Houston, appeals from his conviction for attempted aggravated kidnapping. In one issue, Appellant contends that the indict ment is fundamentally def ective . We
affirm.

B ACKGROUND In a two

- count indictment, the State charged Appellant with Attempted Aggravated Kidnapping (Count 1) and Assault Family Violence, Impeding Breath or Circulation (Count 2).
Coun t 1 alleges that Appellant

. . . with the spe cific intent to commit the offense of Aggravated Kidnapping of Randi Burris,

... assaulted her with his hands, dragged her by her hair, forced her outside, and attempted to force her into a vehicle, which amounted to more than mere preparation that tended b ut failed to effect the commission of the offense intended.

A jury found Appellant guilty of Count 1, Attempted Aggravated Kidnapping, and guilty of
Count 2 ’s lesser included offense of Assault Family Violence. The jury assessed Appellant’s punishment a s follows: (1) Count 1 , confinement for nine years and a fine of $10,000.00; and (2) Count 2, confinement in the Anderson County jail for three hundred and sixty

- five days and a fine of $2,000.00. This appeal followed.2 C HALLENGE TO THE I NDICTMENT In his sole issue, Appellant contends that Count 1 in the indictment failed to give him adequate notice of the charge against him. Accordingly, he maintains that Count 1 of the indictment is fundamentally defective. Applicable Law
A person commits aggravated k idnapping if he intentionally or knowingly abducts

a nother person with the intent to i nflict bodily injury on the person or violate or abuse the person sexually

. T EX

. P ENAL C ODE A NN

. § 20.04(a)(4) (West 2011). Accordingly, the offense is comprised of two elements : (1) intent to abduct, and (2) intent to commit an aggravating
element. Id

. “Abduct” means to restrain a person with intent t o prevent the person’s liberation by: (1 ) secreting or holding the person in a place where he is not likely to be foun d; or ( 2 ) using or threatening to use deadly force. Id

. § 20.01 (2) (West 2011). Whe n a particular intent is a material fact in the description of the offense, it must be stated in the indictment. T EX

. C ODE C RIM

. P ROC

. A NN

. § 21.05 (West 2009).

“ An indi ctment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. ” T EX

. C ONST

. art. V, § 12 (b). The presentment of an
indictm ent or information to a court vests the court with jurisdiction over the case

. Id

. “ [ 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 i s otherwise defective.” Duron v. State , 956 S.W.2d 547, 550

- 51 (Tex. Crim. App. 1997). “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 mer its 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 post

- conviction proceeding.” T EX

. C ODE C RIM

. P ROC

. A NN

. art 1.14 (b) (West 2005).
T he court of crimi nal appeals has consistently held that indictments that omit an element of the crime charged, although defective, are valid indictments. Teal v. State , 230 Ss.W.3d 172, 178 (Tex. Crim. App. 2007); Ex parte Morris , 800 S.W.2d 225, 227 (Tex. Crim. App. 1990 ); Rodriguez v. State , 799 S.W.2d 301, 3 02

- 03 (Tex. Crim. App. 1990) . The test is whether, looking at the indictment as a whole, are the court and the defendant able to determine from the3

face of the indictment that the instrument intends to charge an off ense for which the court has jurisdiction. See Kirkpatrick v. State , 279 S.W.3d 324, 328 (Tex. Crim. App. 2009)

. Analysis On appeal, Appellant contends the indictment is fundamentally defect because it fails to allege the specific intent required of assa ult, the specific intent to prevent a person’s liberation,
and the specific intent of the aggravating element , i.e., to inflict bodily injur y or abuse sexually

. See T EX

. P ENAL C ODE A NN

. §§ 20.01(2), 20.04(a)(4). However, the alleged defects in the
indictme nt are within that class of defects, errors, or irregularities in form or substance which must be challenged by objection prior to trial. Appellant ’s failure to raise an appropriate objection before trial forfeit s his right to complain of any defects, err ors , or irregularities on appeal

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art 1.14 (b)

. Nevertheless , e ven if error had been preserved, the indictment alleges the crime with sufficient “clarity and specific ity” to identify the penal statute under which the State int ended to prosecute. See Kirkpatrick , 279 S.W.3d at 328 ; see also Duron , 956 S.W.2d at 550

- 51

. Under these circumstances, we conclude that the indictment was not fundamentally defective. Appellant’s sole issue is overruled.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

B ILL B ASS Justice
Opinion delivered March 31 , 2017. Panel consisted of Worthen, C.J., Neeley , J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 31 , 2017

NO. 12

- 16

- 00145

- CR

JOHN MARK HOUSTON, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 369th District Court
of Anderson County, Texas (Tr.Ct.No. 369CR

- 15

- 32259) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance.

Bill Bass , Justice. Panel consisted of Worthen, C.J., Neeley , J., and Bass, Retired J., Twelfth Cou rt of Appeals, sitting by assignment.