Monday, November 1, 2010

Substantive Defects in Indictment Must Undergo a Harm Analysis

Does a substantive defect in an indictment require a harm analysis, or is it per se harmful, thus requiring that the indictment be quashed?  (Appellate law nerd alert – nothing sexy in this post!)

Although the CCA recently remanded a case (Smith v. State) to the 1st District Court of Appeals (Houston) to determine whether defects of substance in an indictment are subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b), the CCA just couldn’t wait to answer the question itself.  It took the opportunity in Mercier v. State.

In Mercier, the State reindicted a defendant after having dismissed a previous indictment.  However, the new indictment was outside the 3 year statute of limitations and the State did not include any tolling language therein.   The trial court dismissed the defendant’s motion to quash and allowed the case to proceed.  The defendant was convicted.  He challenged the indictment again on appeal.  The 13th District Court of Appeals (Corpus Christie) reversed the trial court’s ruling that the indictment did not require tolling language and dismissed the prosecution as being time-barred, holding that:
a defect of substance is harmful per se.
The CCA then granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in disregarding CCA precedent, Tita v. State, by holding that the case need not proceed to a harm analysis.

Outlining the history of TRAP 44.2(b) and the relevant cases dealing with substantive defects in an indictment, the CCA concluded that
unless proceeding under the indictment violated the defendant’s substantial rights, the trial court does not err by allowing the trial to go on.  The purpose of Rule 44.2(b) is for appellate courts to determine whether a non-constitutional error that occurred at the trial affected the defendant’s substantial rights, and if it did, then the error is reversible.  Rule 44.2 does not consider whether the error is a defect of form or a defect of substance; rather is differentiates between constitutional error and other errors.
With that, the CCA remanded the case back to the 13th Court to conduct a harm analysis.  This case clarifies the CCA's stance on procdural/substantive/constitutional defects.  The former 2 will be subject to a harm analysis, while the latter will require automatic reversal.

Note:  If the alleged criminal act is actually outside the statute of limitations and there is no basis for tolling, there should obviously be harm to a defendant/appellant.