EARL JAMES HUFF, JR., Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-88-00701-CR

Case Date: 10/05/1989

Plaintiff: EARL JAMES HUFF, JR., Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:EARL JAMES HUFF, JR., Appellant v. THE STATE
OF TEXAS, Appellee
Affirmed and Opinion filed October 5, 1989
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-88-00701-CR
EARL JAMES HUFF, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-93548-PN
O P I N I O N
Before Justices Whitham, Baker and Ovard
Opinion by Justice Ovard
Earl James Huff, Jr. entered a plea of guilty to the charge of unlawful possession of a firearm by a felon.
Punishment was assessed at ten years' confinement and a two hundred dollar fine. In his sole point of error, Huff
claims that his motion to quash the indictment should have been granted because the State misspelled Huff's name in
the indictment. We affirm the trial court's judgment.
To preserve complaints regarding defects in an indictment, the defendant must object to the defect, error, or
irregularity before the date on which the trial commences; otherwise he forfeits the right to object to the defect, and he
may not raise the objection on appeal. See Van Dusen v. State, 744 S.W.2d 279, 280 (Tex. App.--Dallas 1987, no pet.);
Evans v. State, 622 S.W.2d 866, 871 (Tex. Crim. App. 1981); see also Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon
Supp. 1989); Tex. R. App. P. 52(a). Although Huff did file a pre-trial motion to quash the indictment, he failed to
point out the alleged defect now urged on appeal, namely, the misspelling of his name in a portion of the indictment.
FN:1
Courts have consistently held that notice defects, such as name misspellings, are matters of form and must be
timely raised or they are deemed waived. See e.g., Gengnagel v. State, 748 S.W.2d 227, 228-29 (Tex. Crim. App.
1988); Jones v. State, 504 S.W.2d 442, 444 (Tex. Crim. App. 1974); Smith v. State, 754 S.W.2d 414, 416 (Tex. App.--
Corpus Christi 1988, no pet.).
Because Huff urges an objection on appeal which is different from that raised in his pre-trial motion to quash, he
has failed to properly preserve his point of error and it is waived. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim.
App. 1982).
The point of error is overruled and the trial court's judgment is affirmed.
JOHN OVARD
JUSTICE
Do Not Publish
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Tex. R. App. P. 90
880701F.U05
FN:1 The portion of the indictment which forms the basis of Huff's complaint refers to a prior felony conviction but
incorrectly recites the style of the referenced case as "The State of Texas v. Earl James Hugg." However, the
indictment correctly commences with "Earl James Huff. Jr." as the person charged and states that Huff shall thereafter
be styled "defendant." The word "defendant," a substitute for Earl James Huff, Jr., appears three separate places in the
body of the indictment. Therefore, the indictment contains four correct references to Huff and one incorrect reference.
Although we do not reach the merits of Huff's point of error because we find that it has not been properly preserved for
appellate review, Huff's lack of notice claim is not well-founded in light of the four correct references to his name. See
Skinner v. State, 154 S.W.2d 1007, 1008(Tex. Crim. App. 1913); see also Tex. Code Crim. Proc. Ann. art. 21.19
(Vernon 1989).
File Date[10-05-89]
File Name[880701F]
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