PD-0243-23 08/23/2023
1. “When determining what felony offense was charged, must everything on the face of the charging instrument the grand jury had before it be considered?”
2. “Must a defendant object pretrial when the charging instrument creates doubt about which of two related offenses is being charged?”
Crawford was indicted for felony assault. The victim was a deputy sheriff. The caption of the indictment said the charge was “ASSAULT PEACE OFFICER/JUDGE,” listed the offense as Section 22.01(b-2) of the Penal Code, and said it was a second-degree felony. The body of the indictment identified the victim as a deputy sheriff but alleged “the defendant knew that the complainant was a public servant,” not a peace officer. Assault of a public servant is prohibited by Section 22.01(b)(1). It is a third-degree felony. After the jury was sworn and he pleaded guilty, Crawford claimed he should be on trial for a third-degree assault on a public servant, not second-degree assault on a peace officer. His objection was overruled. He was convicted and sentenced to twelve years in prison.
The court of appeals reversed. It held that Crawford was indicted for a third-degree offense because the body of the indictment showed a facially complete allegation of assault on a public servant. It distinguished cases from the Court of Criminal Appeals that require pretrial objection and consideration of the caption in their respective analyses by saying those cases apply only when a defendant alleges a constitutional defect like lack of jurisdiction. See, e.g., Jenkins v. State, 592 S.W.3d 894 (Tex. Crim. App. 2018), Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009).
The State asks that this area of law be clarified. The Texas constitution defines an indictment as “a written instrument presented to a court by a grand jury charging a person with the commission of an offense.” Tex. Const. art. V, § 12(b). The code of criminal procedure defines it as “the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.” Tex. Code Crim. Proc. art. 21.01. Regardless of whether a pretrial objection to the indictment under Art. 21.02 (“Requisites of an Indictment”) can be construed to exclude consideration of the caption, there is no reason to allow a defendant to wait until after jeopardy has attached to voice a doubt about the charge against him and refuse to consider the entire charging instrument to address his claim.
