Indictment is the process of formally accusing that a person has committed a crime.  A charging instrument, to confer jurisdiction, must charge the commission of an offense.  Here is a case, Smith v. State, 309 S.W.3d 10 (2010), decided by Court of Criminal Appeal of Texas.

The Houston Police Officer, Shannon Farquhar was conducting a sting operation in response to reports of individuals engaging in sexual behavior, masturbation and stuff in Houston’s Memorial Park.  Farquhar parked his unmarked city vehicle near a parking lot.  At that time Smith, the defendant, entered into the lot.  The two exchanged glances and stares without any verbal contact. Farquhar exited his vehicle and walked towards a bathroom in the nearby building and Smith followed him.  Outside the bathroom, Farquhar began touching himself in a mock ‘masterbation’.  At that time, Smith began to ‘gratify himself’ from the outside of his pants and proceeded to unzip his fly and place his hands in his shorts and removed his penis from his shorts for thirty to forty-five seconds.  At that time Farquhar identified himself as a police officer and told Smith that he was under arrest for indecent exposure.

Smith was charged under Texas Penal Code Section 21.08. The charge instrument filed by Farquhar stated:

Joseph Denver Smith, hereafter styled the Defendant, heretofore on or about April 12, 2007, did then and there unlawfully expose his genitals to S. Faquhar with intent to arouse and gratify the sexual desire of the Defendant, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: the Defendant exposed his penis and masturbated.

Smith moved to quash the information as the State failed to allege what act or acts constituted recklessness by Article 21.15 of the Texas Code of Criminal Procedure. Smith also argued that the information was fundamentally defective pursuant to Article 21.15 of the Texas Code of Criminal Procedure and Section 6.03(c) of the Penal Code. The trial court overruled Smith’s motion without a hearing.  Smith appealed.

The First Court of Appeals affirmed the order of the trial court.  But the Court of Criminal Appeals of Texas found that although the information was sufficient to satisfy due process notice requirements, it did not comply with the requirements of Article 21.15. The allegation that defendant exposed his penis and masturbated was not sufficient to meet the requirements of Article 21.15. A trier of fact could not have inferred recklessness from the information because there was nothing inherently reckless about either exposing oneself or masturbating. The information would have sufficiently apprised defendant of the act or acts constituting recklessness if the State had alleged that he exposed his penis and masturbated in a public place. The information suffered from a substance defect.

The court further held in this case that “a judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument, i.e. indictment, information, or complaint, does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant; (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law; (3) the record reflects that there is no evidence to support the conviction; or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived. This list is very nearly exclusive.”