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Click here for the full text of this decision The “right not recognized” exception to the contemporaneous-objection rule relates to a kind of fundamental error that is contrary to a specific act of the legislature, and that Marin generally eliminated. FACTS:This case presents the issue of whether the doctrine of a “right not recognized” permits a defendant to complain for the first time on appeal that the charging instrument failed to allege the required culpable mental state. HOLDING:Vacated and remanded to the court of appeals. Based on the language in the motion to quash and defense counsel’s supporting arguments reflected in the record, the court erred in summarily concluding that the motion nevertheless was specific enough to apprise the trial court and the state of the appellant’s objection. The court of appeals’ second basis for its holding is of more legal significance. The court said, “[N]o waiver can be inferred or appellant faulted for failure to point out in his motion to quash the omission in the indictment of elements later developed by case law when the claim would have been novel and the claim would have been futile.” In other words, the court asserts that the appellant should not be penalized for failing to object to the indictment’s compliance with requirements that were not “developed” until this court’s decision in Sanchez v. State, 995 S.W.2d 677 (Tex. Cr. App. 1999) ( Sanchez II). However, this “right not recognized” doctrine is inconsistent with current law of error preservation. The courts of every jurisdiction in this country have some doctrine that permits appellate courts to consider claims that fundamental rights were violated without objection. In the criminal law of this state, such errors are called “fundamental errors.” Before 1993 this Court had recognized more than a dozen kinds of fundamental error. This jurisprudence “reflects piecemeal developments that each have somewhat different rationales. The overall situation, then, simply [could] not be explained by reference to any unifying principle or principles. Marin v. Statesuggest[ed] both the need to reconsider this case law and a framework for that reconsideration.” In Marin, this court identified and defined the three categories of rights belonging to litigants. The first category, “absolute requirements and prohibitions” or “systemic” rights, are those rights “which are essentially independent of the litigants’ wishes. Implementation of these requirements is not optional and cannot, therefore, be waived or forfeited by the parties. The clearest cases of . . . systemic requirements are laws affecting the jurisdiction of the courts.” Systemic requirements “are to be observed even without partisan request” and cannot “lawfully be avoided even with partisan consent.” Therefore, an appellant may “complain that an absolute requirement or prohibition was violated, and the merits of his complaint on appeal are not affected by the existence of a waiver or forfeiture at trial.” In the second category, Marin classifies a litigant’s “waivable” rights. “A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. His rights to the assistance of counsel and to a jury trial are of this kind.” “Although a litigant might give [these rights] up, . . . he is never deemed to have done so in fact unless he says so plainly, freely, and intelligently” and the trial court “has an independent duty to implement them absent an effective waiver by [the litigant].” These rights are not systemic, for they may be waived. Waivable rights do not vanish so easily [as forfeitable ones]. Although a litigant may give them up, and, indeed, has a right to do so, he is never deemed to have done so in fact unless he says so plainly, freely, and intelligently, sometimes in writing and always on the record. He need make no request at trial for the implementation of such rights, as the judge has an independent duty to implement them absent an effective waiver by him. As a consequence, failure of the judge to implement them at trial is an error which might be urged on appeal whether or not it was first urged in the trial court. The remaining category consists of “forfeitable” rights. A party must “insist upon [the implementation of these rights] by objection, request, motion, or some other behavior calculated to exercise the right in a manner comprehensible to the system’s impartial representative, usually the trial judge . . . . The trial judge as an institutional representative has no duty to enforce forfeitable rights unless requested to do so.” Thus, when a defendant fails to assert his forfeitable rights at trial, “no error attends failure to enforce them and none is presented for review on appeal.” The right to be charged by an instrument that is free of defects, errors, and omissions is neither a “systemic” requirement nor a “waivable” right. By the requirement of an act of the legislature under specific authority granted by an amendment of the Constitution, any error in the charging instrument must be objected to in a timely (in this case, before trial) and specific manner, and any unobjected-to error in the instrument is not “fundamental.” The “right not recognized” exception to the contemporaneous-objection rule relates to a kind of fundamental error that is contrary to a specific act of the Legislature, and that Marin generally eliminated. The court of appeals should not have relied on the doctrine to support its holding on the first point of appeal. OPINION:Womack, J.; Keller, P.J., and Meyers, Price, Johnson, Keasler, Holcomb and Cochran, JJ., join. Hervey, J., did not participate.

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