Beck v. State

• Decision Date: 09 January 1985
• Docket Number: No. 189-83,189-83
• Citation: 682 S.W.2d 550
• Parties: Allan BECK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 550

682 S.W.2d 550

Allan BECK, Appellant, v. The STATE of Texas, Appellee.

No. 189-83.

Court of Criminal Appeals of Texas En Banc.

Jan. 9, 1985.

Scott E. Segall, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and David Clay Cowan, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for the second-degree felony offense of escape under V.T.C.A., Penal Code, § 38.07(d). The punishment was assessed at 20 years' imprisonment. On appeal the conviction was reversed by the El Paso Court of Appeals. Beck v. State, 647 S.W.2d 55 (Tex.Cr.App.1983). The court found the trial court erred in overruling appellant's motion to set aside the indictment, finding a lack of specificity in the notice given in that the indictment failed to state the victim of appellant's alleged use or threatened use of a deadly weapon in the course of his escape. We granted the State's petition for discretionary review to determine the correctness of that decision.

V.T.C.A., Penal Code, § 38.07, provides:

"(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.

"(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.

"(c) An offense under this section is a felony of the third degree if the actor: ¹

"(1) is under arrest for, charged with, or convicted of a felony; or

"(2) is confined in a penal institution.

"(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape." ²

The Practice Commentary to said § 38.07 provides:

"This section restates Penal Code arts. 353a, 353b, and 353d without significant change ....

"The offense is aggravated to a third-degree felony if the escapee was charged with or convicted of a felony or was confined in a penal institution and to a second-degree felony if he used or threatened to use a deadly weapon. These aggravating factors are roughly the same as prior law."

The elements necessary to establish the offense of escape are:

"(1) a person (2) who has been arrested for, charged with, or convicted of an offense (3) when he knowingly and intentionally (4) escapes from custody ³ [for a felony] (5) and the offense for which he was arrested, charged or convicted was a felony or (6) the custody was confinement in a penal institution, or (7) he used or threatened to use a deadly weapon." See Branch's 3rd Ed., Texas Annotated Penal Statutes, Vol. III, § 38.07, p. 126.

The second count of the indictment upon which the conviction was based reads:

"The Grand Jurors for the County of El Paso, State aforesaid, duly organized as such, at the January term, A.D. 1981, of the 120th Judicial District Court for such county upon their oaths in said court, present that Allen Beck, hereinafter styled Defendant, on or about the 22nd day of March One Thousand Nine Hundred and Eighty one and anterior to the presentment of this indictment, in the County of El Paso and State of Texas, did then and there unlawfully intentionally and knowingly escape from the custody of the Sheriff of El Paso County, Texas when he, the said Allen Beck, had been charged with Robbery (Enhanced), a felony, by using and threatening to use a deadly weapon, towit: a sharpened metal object, that in the manner of its use and intended use was capable of causing death and serious bodily injury."

It is clear that the indictment charged a second-degree felony under V.T.C.A., Penal Code, § 38.07(d). The indictment form tracks the various form books examined. See also and cf. Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976).

Appellant's motion to "quash" the indictment stated in part:

"The indictment does not say against whom the ... 'sharpened metal object that in its manner of use or intended use was capable of causing death and serious bodily injury ....' was directed against, therefore denying Defendant notice, as is required by the Texas and United States Constitution (sic), and therefore would not fully act as double jeopardy as is required by the United States and the Texas constitution (sic)." (Emphasis supplied.)

When the motion was presented to the trial court, it was summarily overruled.

The El Paso Court of Appeals found the trial court erred. It did not find the instant indictment fundamentally defective or that any essential element was not alleged, but that it was defective in the sufficiency of notice as to the identity of the victim of the aggravating feature of the offense, a fact crucial to the appellant's preparation of a defense to the main charge, where specification of the victim's identity was properly sought by the motion to quash the indictment, challenging the notice afforded by the pleadings. ⁴

Article 21.11, V.A.C.C.P., provides in part:

"An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; ...."

Article 21.04, V.A.C.C.P., provides:

"The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."

Thus an offense should be charged in plain and intelligible words with such certainty as to enable an accused to know what he will be called upon to defend against and to enable him to plead judgment that may be given as it is in bar of any further prosecution for the same offense. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973); Burck v. State, 106 S.W.2d 709 (Tex.Cr.App.1937).

It must also be remembered that it is the intent of Article I, § 10 of the Texas Constitution that an accused in a particular case must be furnished information upon which he may prepare his defense, and this information must come from the face of the indictment. Moore v. State, supra; Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973). See also McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979). It is, of course, not sufficient to say the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Moore v. State, supra; Wilson v. State, supra; Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971).

An indictment should allege all that the State is required to prove. Article 21.03, V.A.C.C.P.; Ex parte Charles, 582 S.W.2d 836 (Tex.Cr.App.1979); Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977). While all the essential elements of the offense must be alleged in the indictment, an indictment drafted in the language of the statute creating and defining an offense is ordinarily sufficient. Few v. State, 588 S.W.2d 578, 583 (Tex.Cr.App.1979). See also Ward v. State, 642 S.W.2d 782 (Tex.Cr.App.1982); Bollman v. State, 629 S.W.2d 54 (Tex.Cr.App.1982); Ex parte Holbrook, 609 S.W.2d 541 (Tex.Cr.App.1980); Boney v. State, 572 S.W.2d 529 (Tex.Cr.App.1978); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976); Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1954).

It is a rare exception when an indictment drawn in the language of the penal statute is legally insufficient to provide an accused with notice of the offense charged. Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978); Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973); Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973). See also May v. State, 618 S.W.2d 333, 341 (Tex.Cr.App.1981); Zapalac v. State, 638 S.W.2d 546 (Tex.App.-Houston [1st] 1982).

Although, as seen, an indictment which tracks the language of the statute is ordinarily sufficient, this is not always sufficient where more particularity is necessary to meet the requirement of notice to the accused. Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971). The State, however, is not required to plead evidentiary facts which are not essential to provide such notice. Slayton v. State, 633 S.W.2d 934 (Tex.App.-Ft. Worth-1982). Thus, unless a fact is essential for notice to the accused, the indictment need not plead the evidence relied upon by the State. Phillips v. State, supra; Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). However, a motion to set aside an indictment will be allowed if the facts sought are essential to give notice. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981).

Escape is an offense under Title 8, Chapter 38 of the Penal Code and is an offense against public administration (obstructing government). It is not classified as an offense against the person or against property. The existence of a physically assaulted or injured victim is not an essential element of escape, nor an essential part of the aggravating feature under § 38.07(d). A deadly weapon may be used, or displayed or exhibited, in a threatening manner in an escape or escape attempt without the necessity of any physical contact with, physical assault upon or injury to any individual. No one need suffer bodily injury or a physical assault in order for there to be a complete offense under § 38.07(d). In some escape cases certain individuals may be physically assaulted or injured by use of a deadly weapon and others may be merely threatened with the weapon. All of these individuals will have had the weapon "directed" against them. In a given case these individuals, possibly including law enforcement officers, jail inmates and citizens, could...