Most of my posts here are geared toward non-attorneys, as well as attorneys. This one is geared more toward attorneys.
I occasionally run into this situation, as I am sure, many have, where a judge, or a prosecutor, or both, in justice or municipal court, do not have a criminal law background. Some come from civil law backgrounds, or no law background at all, and are taking the bench, or prosecuting, for the first time.
Some of you defense attorneys, like myself, have experienced the frustration of making a motion to quash, for obvious defects in the complaint, only to have the judge deny the motion. Now you are stuck with going to trial on a bad or defective complaint.
I recently ran into the situation, in justice court, where the speeding complaint failed to allege essential elements of the offense including the following: 1) motor vehicle 2) public road 3) at a speed greater than was reasonable and prudent 4) the prima facie reasonable and prudent speed limit. In fact, the only thing the complaint did allege was that the defendant exceeded the speed limit, and the county where the offense occurred.
The prosecutor, in opposing my motion to quash, cited
Kindley v. State, 879 S.W.2d 261, and in so doing, misrepresented that Kindley means that the only purpose of the complaint is to give defendant sufficient notice to prepare a defense.
I argued that a complaint may give sufficient notice under Kindley, yet still be defective for not alleging all essential elements.
The judge, not knowing what either of us was talking about, and having a jury panel waiting outside, was not in the mood to postpone the trial, in order to look at the cases and statutes, and hopefully make an informed decision. The judge decided that we were going forward on the complaint as drafted.
Needless to say, going to trial on such a complaint is a terrible injustice to the defendant. It misleads the jury into thinking that all the state has to prove is that the defendant exceeded the speed limit. Not having to prove all elements of the offense charged, substantially lowers the burden of proof for the state, below that required by law. A complaint that does not allege all elements of the offense, is defective, and does not give sufficient notice for the defendant to prepare a defense. Further, if a complaint does not state all elements of an offense, then it does not allege an offense. How does the court have personal jurisdiction over a defendant who has not been charged with an offense?
Going to trial on a defective complaint deprive's the defendant of due process and a fair trial. I put my objections to the complaint in writing, and gave notice of appeal, rather than wasting time going to trial on a complaint, where frankly, all the prosecutor had to do was cough, and the defendant would be found guilty.
I decided I needed to do a better job in presenting this issue to judges and prosecutors in a concise manner they could grasp in minutes. This is it.
COMPLAINTS AS CHARGING INSTRUMENTS
IN JUSTICE AND MUNICIPAL COURTS
There are several types of complaints. The affidavit in support of an arrest warrant is called a complaint. (Art. 15.04. Tex. Code Crim. Proc.). The affidavit in support of a criminal information is called a complaint. (Art. 21.22. Tex. Code Crim. Proc.). The charging instrument used in justice and municipal courts, is also called a complaint. (Art. 45.018. Tex. Code Crim. Proc.).
Unlike a support affidavit for an arrest warrant or criminal information, a complaint in justice or municipal court is a charging instrument.
“For purposes of this chapter, a complaint is a sworn allegation charging the accused with the commission of an offense.” (Art. 45.018. Tex. Code Crim. Proc.).
As a charging instrument, the complaint must allege essential elements, or else it is defective.
Adams v. State, 524 S.W.2d 67 (Tex.Crim.App. 1975) (Where defendant was charged with Fail to Control Speed, and complaint failed to allege the essential elements that appellant was operating (1) a motor vehicle (2) on a highway, complaint was defective). (Both of these facts are essential elements of the offense sought to be charged).
Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App., 1966).
“Although the particularity in pleading that is required for an indictment or an information may not be required for a complaint”, as noted in
Kindley v. State, 879 S.W.2d 261, 263 Tex.App.—Houston [14th Dist.] 1994, “a complaint used as a charging instrument must nonetheless allege all the essential elements of an offense.”
Bird v. State , 927 S.W.2d 136 (1996) Court of Appeals of Texas, Houston (1st Dist.);
Adams v. State, 524 S.W.2d 67 (Tex.Crim.App. 1975)
CONCLUSION
Complaints in justice or municipal courts are charging instruments. They should not be confused with the complaints that are support affidavits for search warrants or criminal informations, which are not charging instruments. Although, a fundamental purpose of the complaint is to give sufficient notice, so that the defendant can prepare a defense, a charging instrument must also allege the essential elements of the offense charged. A complaint that fails to do so is defective, does not charge an offense, unfairly lowers the state’s burden of proof , as required by law, and deprives the defendant of due process and a fair trial.
Notes on Kindley V. State
1.
Although the complaint was a charging instrument in justice court, the court cited Art. 15.04, which is an affidavit in support of an arrest warrant
2.
The complaint was not challenged for failing to plead essential elements of the offense, it was challenged for 1) seal, 2) notary 3) not being verified 4) notice 5) jurisdiction.
3.
The complaint alleged most elements, but did not plead public road. Had the appellant raised this issue, the complaint would have been found defective. In fact; Justice Sears even summed up the opinion saying “Once again, a pro se litigant has proven the wisdom of the old adage “one who represents himself has a fool for a client.”“
4.
Here are three quotes from Kindley with a follow up note on each.
1) “the particularity in pleading that is required for an indictment or an information is not required for a complaint”
Note: What does this mean? As far as I can tell it has never been defined. Does it mean you have to plead motor vehicle, but do not have to specify Ford or Chevy? It does not mean anything.
2) “a complaint will not be dismissed due to a mere informality”
Note: This was based on Art. 45.27, of the 1965 Code, which has since been omitted from the current Code. As far as I can tell “informality” has never been defined. I can only assume, Kindley was talking about the court seal, and the notary seal, both which were not required, at that time.
3) “The purpose of such a complaint is to apprise the accused of the facts surrounding the offense with which he is charged so that he may prepare a defense”
Note: I know what this doesn’t mean. It doesn’t mean “As long is it gives notice, it does not have to do anything else”.
Note: A complaint can be sufficient for notice purposes under Kindley, and still be defective for failing to allege all essential elements.
Bird v. State, 927 S.W.2d 136 (1996) Court of Appeals of Texas, Houston (1st Dist.),
Adams v. State, 524 S.W.2d 67 (Tex.Crim.App. 1975).
Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:
http://www.charlesfrenchattorney.com
