Allison v. State, 67400
| Decision Date | 15 July 1981 |
| Docket Number | No. 2,No. 67400,67400,2 |
| Citation | 618 S.W.2d 763 |
| Parties | Forrestal Schoendienst ALLISON, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Tom Mills, Elizabeth Unger Carlyle, Dallas, for appellant.
Henry Wade, Dist. Atty., R. K. Weaver and Lee Hight, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.
This is an appeal from an order revoking probation.
Originally appellant was charged by indictment with burglary of a habitation. On motion of the State the offense was reduced to burglary of a building with the approval of the court. Appellant entered a guilty plea before the court to that offense and his punishment was assessed at ten (10) years' imprisonment. The imposition of the sentence was suspended and he was placed on probation subject to certain conditions.
Later the State filed a motion to revoke probation alleging certain violations of the probationary conditions. On October 6, 1980, the court conducted a hearing on said motion. The appellant entered a plea of "true" to the allegations in the revocation motion. The State introduced a stipulation of evidence and the appellant took the stand and made a judicial confession as to the alleged violations. Probation was revoked, sentence imposed and notice of appeal given.
On appeal appellant attacks the validity of the original indictment for burglary of a habitation. As to his right to do so in an appeal from an order revoking probation, see Daniels v. State, 573 S.W.2d 21 (Tex.Cr.App.1978); Reed v. State, 586 S.W.2d 870 (Tex.Cr.App.1979). Appellant contends the indictment is defective because it fails to define what type of "owner" was involved and fails to define what type of "lack of effective consent." He relies upon the panel decision in Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App. 1980). He argues that if Thomas requires a motion to quash the indictment he did in the instant case file a motion to quash alleging the indictment fails to set forth an offense in plain and intelligible words and " to allege with particularity a violation of the law and the Defendant cannot adequately prepare his defense."
On July 1, 1981, the en banc court in Thomas overruled the panel opinion and held the trial court there did not err in overruling the motion to quash the indictment for felony theft for failure to define or set forth the type of "owner" and type of "lack of effective consent" of the owner.
Further, if the motion to quash the indictment here was sufficient to call the trial court's attention to the defect in the indictment now claimed on appeal, Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976), we observe the appellate record fails to show that the motion was ever called to the court's attention or that the appellant ever obtained a ruling on the same. His contention is overruled.
Next appellant contends that it was error for the trial court to allow the State to reduce the original offense charged to burglary of a building, a second-degree felony.
Burglary of a building is a lesser included offense of burglary of a habitation as originally charged. Jones v. State, ...
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...of the offense and the facts as alleged in the charging instrument, would require us to address conflicts in our cases. For example, in Allison v. State,46 the appellant had been charged with burglary of a habitation, but the State reduced the original offense charged to burglary of a build......
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