COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00354-CR

NO. 02-17-00355-CR

OLIVER WESLEY EVANS, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NOS. 1458253D, 1458254D

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MEMORANDUM OPINION1

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Oliver Wesley Evans, Jr. appeals his convictions for credit-card abuse and 

for fraudulent use or possession of identifying information. See Tex. Penal Code 

Ann. §§ 32.31, 32.51 (West 2016). In two issues, he argues that the indictments 

in each case were fatally flawed because they did not allege a culpable mental 

state and therefore did not vest the trial court with jurisdiction. We will affirm.

 1See Tex. R. App. P. 47.4.
2

Background

A grand jury indicted Evans for credit-card abuse and for fraudulent use or 

possession of identifying information. The credit-card-abuse indictment2 alleged 

that Evans

[i]n the County of Tarrant, State of Texas, did with the intent to 

fraudulently obtain a benefit, present or use a credit card, namely a 

Capital One credit card with the knowledge that said card had not 

been issued to [him], and with the knowledge that said card was not 

used with the effective consent of Jack Chester, the cardholder[.]

The indictment for fraudulent use or possession of identifying information alleged 

that Evans

[i]n the County of Tarrant, State of Texas, did . . . with intent to harm 

or defraud another, obtain, possess[,] transfer, or use identifying 

information of another person, without the person’s consent, and the 

type of information, name of the owner of such identifying 

information, and number of items, is as follows:

1. The financial institution account number of Jack Chester,

2. The financial institution account number of Tracy Petty, [and]

3. The financial institution account number of Judith Baty[.]

Each indictment also included an enhancement paragraph alleging that Evans 

was convicted of possession of more than 28 grams but less than 200 grams of 

codeine in May 2012 and was convicted of possession of more than 4 grams but 

less than 200 grams of cocaine in February 2005. Evans did not move to quash 

or otherwise object to the indictment.

 2The quoted portions of the indictments in each case are in all capital 

letters. For readability, we are not repeating that format.
3

Evans pleaded guilty to each offense without a sentence bargain or a 

charge bargain. At the sentencing hearing’s conclusion, the trial court found 

Evans guilty of both offenses, found the enhancement paragraph alleged in each 

indictment true, and sentenced him to 30 months’ confinement for each offense, 

with the sentences to run concurrently. Evans appealed.

Discussion

In his two issues, Evans alleges that both indictments failed to allege a 

culpable mental state: the credit-card-abuse indictment did not allege that Evans 

intentionally or knowingly presented or used the credit card, and the indictment 

for fraudulent use or possession of identifying information did not allege that he 

intentionally or knowingly obtained, possessed, transferred, or used the 

identifying information. Evans argues that because of these omissions, the 

indictments were fatally flawed and therefore insufficient to invoke the trial court’s 

jurisdiction.

An indictment suffices to vest a trial court with jurisdiction over a case if it 

charges a person with an identifiable offense over which the trial court has 

subject-matter jurisdiction. See Teal v. State, 230 S.W.3d 172, 179–81 (Tex. 

Crim. App. 2007). A defendant must object to any other defect, error, or 

irregularity of form or substance in the indictment before the trial begins, or else 

he waives and forfeits the right to object to the defect, error, or irregularity and 

cannot raise the objection on appeal. See Tex. Code Crim. Proc. Ann. 
4

art. 1.14(b) (West 2005). Failing to allege a culpable mental state is a defect of

substance. See State v. Murk, 815 S.W.2d 556, 557–58 (Tex. Crim. App. 1991).

The indictments here sufficiently charged Evans with an identifiable 

offense over which the trial court had jurisdiction: one charges him with the 

offense of credit-card abuse and the other charges him with the offense of 

fraudulent use or possession of identifying information.3 See Teal, 230 S.W.3d at 

179–81. Evans forfeited any other alleged error in the indictment—including any 

claimed failure to allege a culpable mental state—by failing to object to it before 

the start of trial.4 See id. at 181–82 (holding that when the indictment was 

sufficient to vest the trial court with jurisdiction, defendant waived his argument 

that the indictment was flawed for failing to allege a culpable mental state by not 

objecting before the trial started); Piland v. State, 453 S.W.3d 473, 479–80 (Tex. 

App.—Texarkana 2014, pet. ref’d) (concluding that by failing to raise the issue in 

the trial court, defendant waived complaint that the indictment was defective 

 3Each indictment tracks the statutory language for the offense charged. 

See Tex. Penal Code Ann. §§ 32.31(b)(1)(A), 32.51(b)(1). Criminal district courts 

have original jurisdiction over felony criminal cases. Tex. Code Crim. Proc. Ann. 

art. 4.05 (West 2015); see Tex. Const. art. V, § 8 (setting out jurisdiction of 

district courts). Each offense as charged was a state-jail felony enhanced to a 

second-degree felony punishment range. See Tex. Penal Code Ann. § 12.425(b) 

(West Supp. 2017), §§ 32.31(d), 32.51(c)(1).

4Additionally, as part of his pleas, Evans waived all his rights—whether of 

form, substance, or procedure—under code of criminal procedure article 1.14. 

Tex. Code Crim. Proc. Ann. art. 1.14.
5

because it did not allege mens rea). Accordingly, we overrule Evans’s two 

issues.

Conclusion

Having overruled Evans’s two issues, we affirm the trial court’s judgments.

/s/ Elizabeth Kerr

ELIZABETH KERR

JUSTICE

PANEL: MEIER, GABRIEL, and KERR, JJ.

DO NOT PUBLISH

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

DELIVERED: August 16, 2018