WHITE, Judge.
Appellant was convicted by a jury of burglary of a vehicle. V.T.C.A., Penal Code § 30.04. At the penalty phase, the trial court found it to be true that appellant had previously been finally convicted of three felony offenses, and assessed appellant's punishment at thirty-five years confinement in the Texas Department of Corrections. V.T.C.A., Penal Code § 12.42(d). Appellant appealed his conviction.
Now, the Texas Department of Criminal Justice, Institutional Division.
The Court of Appeals found that the trial court did not err in overruling appellant's motion to quash his indictment. Appellant had argued that because his indictment lacked the signature of the grand jury, he could not be sure if his indictment was the same indictment which the grand jury had seen, and was therefore invalid. The Court of Appeals held that "the signature of the foreman of the grand jury is not essential to the validity of the indictment." Tatmon v. State, 786 S.W.2d 523 (Tex.App. — Austin, 1990). This Court granted appellant's petition for discretionary review to examine his contention that the Court of Appeals' holding was in error. We will affirm the decision of the Court of Appeals.
The precursor to our current Code of Criminal Procedure discussed the absence of a signature or an indictment. Article 512, V.A.C.C.P. (repealed 1966), set out:
The precursor to Art. 512 was ARt. 565, C.C.P. (1895).
"Exceptions to the form of an indictment or information may be taken for the following causes only:
. . . . . .
(2) The want of any other requisite or form prescribed by articles 396 and 414, except the want of the signature of the foreman of the grand jury, or in the case of an information, of the signature of the State's attorney."
In contrast, Art. 27.09, V.A.C.C.P. (Eff. Jan. 1, 1966) states:
"Exceptions to the form of an indictment or information may be taken for the following causes only: (1) That it does not appear to hae been presented in the proper court as required by law; (2) The want of any requisite prescribed by Articles 21.02 and 21.21. (3) that is was not returned by a lawfully chosen or empaneled grand jury."
In the deciding that the trial court properly overruled appellant's motion to quash, the Court of Appeals did not ignore the distinction between Art. 27.09 and its precursor, Art. 512. Instead, the court of Appeals relied upon cases which were governed by both statutes:
"The signature of the foreman of the grand jury is not essential to the validity of the indictment.
McCullough v. State, 425 S.W.2d 359, 360(Tex.Cr.App. 1968);
Ex Parte Landers,
366 S.W.2d 567 (Tex.Cr.App. 1963);
Ex Parte King, 156 Tex.Crim. 231,
240 S.W.2d 777 (1951);
Marks v. State, 721 S.W.2d 401, 404 (Tex.App. — Beaumont, 1986);
Hamilton v. McCotter, 772 F.2d 171, 183 (5th Cir. 1985)."
Tatmon v. State, 786 S.W.2d, at 524.
All of these cases held that the foreman's signature was not essential to the validity of an indictment. In McCullough, the defendant argued to this this Court that the absence of the foreeeman's signature from his indictment did not comply with the requirements of ARt. 21.02, Subd. 9, V.A.C.C.P. This court carried forowared the holding in Ex Parte Landers to overrule the defendant's claim. McCullough, at 360. This Court made the same ruling ten years later in the case of Owens v. State, 540 S.W.2d 324, at 325 (Tex.App. 1976), wherein the defendant claimed his indictment did not comply with Art. 21.02, subd. 9, V.A.C.C.P., because it was not signed personally by the forman of the grand jury. Other courts of appeals of this State have also made similar rulings. See Lugan v. State, 626 S.W.2d 854, at 862 (Tex.App. — San Antonio, 1982, pet.ref'd); Straps v. State, 632 S.W.2d 781 (Tex.App. — Houston [14 Dist.], 1982); and Marks v. State, 721 S.W.2d 401 (Tex.App. — Beaumont, 1986).
In Hamilton v. McCotter, 772 F.2d 171 (5th Cir. 1985) (reh. and reh. en banc denied), the defendant did not argue that his indictment lacked the signature of the foreman of the grand jury. Instead , the defendant claimed that the foreman's signature on the indictment had been forged. The State relied upon McCullough, 425 S.W.2d at 360; Landers, 366 S.W.2d 567; and King, 240 S.W.2d 777, to counter the defendant's argument. Judge Garwood, writing for the 5th Circuit, distinguished those cases in ruling on the defendant's claim of a forged signature:
"However, neither that case nor
Ex Parte Landers, . . ., which
McCullough cites as authority for the proposition, not the case cited in turn in
Landers, Ex Parte King,. . ., involved indictments that were alleged to have been other than properly returned by a duly constituted grand jury. As we read them,
McCullough and its predecessors properly stand only for the proposition that the mere
absence of grand jury foreman's signature on an indictment
otherwise actually properly returned by the grand jury is not fatal to the indictment's validity." (emphasis supplied on original)
Hamilton, supra, at 183. In the instant case, appelant did not contend that his indictment was not properly returned by the grand jury to the district court where he was tried. Instead, he argued to the trial court in his motion that the indictment did not contain the signature of the foreman and was, therefore, not shown to have been "prepared and presented by members of a duly sworn and selected grand jury." This allegation is disproven by the record in the instant case. The recorded prsentment of the grand jury reflects that on August 10, 1988, the grand jury of the present term of the 331st District Court, "through their foreman, Dorthy M. Orion, present to the Court the following indictments, to wit:
NO. 93, 010 —
THAT STATE OF TEXAS VS JOHN TATMON
An indictment for — for —
BURGLARY OF A VEHICLE AND HABITUAL"
The instant case presents a situation where an indictment which had been properly returned by a grand jury was missing the signature of its foreman. Therefore, Justice Smith of the Court of Appeals was correct in concluding that the absence of that signature did not adversely affect the validity of the indictment.
Appellant's ground for review is overruled. The judgement of the Court of Appeals is affirmed.
CLINTON, J., dissents because the majority does not take into account that the legislature revised former Article 512 by deleting the "except" clause, thereby removing the statutory basis for pre-1966 dicisions of the Court.
OVERSTREET, J., dissents.