Brackley-Gross v. State, 07-14-00269-CR

• Decision Date: 16 May 2016
• Docket Number: No. 07-14-00269-CR,07-14-00269-CR
• Parties: LEILA BRACKLEY-GROSS, APPELLANT v. THE STATE OF TEXAS, APPELLEE
• Court: Texas Court of Appeals

LEILA BRACKLEY-GROSS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-14-00269-CR

Court of Appeals Seventh District of Texas at Amarillo

May 16, 2016

On Appeal from the County Court at Law No. 2 Bexar County, Texas

Trial Court No. 39219; Honorable Jason Wolff, Presiding

MEMORANDUM OPINION

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Leila Brackley-Gross, pleaded no contest to theft of property worth between $50 or more but less than $500, a Class B misdemeanor¹ pursuant to a plea agreement and received deferred adjudication community supervision for nine months.By two issues, Appellant asserts the trial court erred in denying Appellant's Amended Motion To Set Aside The Information because the charging instrument in her case failed to sufficiently (1) identify or describe the property alleged stolen and (2) specify how the complainant's consent was not effective. We affirm.

APPLICABLE LAW

The United States and Texas Constitutions guarantee an accused the right "to be informed of the nature and the cause of the accusation" against him. U.S. CONST., amend. VI; TEX. CONST. art. I, § 10. Additionally, the jurisdiction of the trial court in a criminal matter vests only upon the filing of a valid information in the appropriate court. TEX. CONST. art. V, § 12(b). Under these constitutional provisions, a charging instrument is sufficient to constitute an information and thereby vest the trial court with jurisdiction if it charges (1) a person (2) with the commission of an offense. See Cook v. State, 902 S.W.2d 471, 477, 479-80 (Tex. Crim. App. 1995). See also State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). To charge the commission of an offense, the charging instrument is not required to allege every element of the offense but is sufficient if it "accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute . . . ." See Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App. 1997). See also Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990).

In additional to the constitutional prerequisites, the Code of Criminal Procedure sets forth certain statutory requirements for an information. See TEX. CODE CRIM. PROC. ANN. art. 21.21 (West 2009). One such statutory requirement is that the information setforth the offense in "plain and intelligible words." Id. at art. 21.21(7).² Generally, an information is sufficient to provide notice if it follows the statutory language of the offense. Olurebi v. State, 870 S.W.2d 58, 62 (Tex. Crim. App. 1994). The sufficiency of a charging instrument presents a question of law and we review a trial court's ruling regarding the sufficiency of a charging instrument under a de novo standard of review. Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010).

DISCUSSION

A person commits theft if he or she (1) unlawfully appropriates property (2) with the intent to deprive the owner of that property. TEX. PENAL CODE ANN., § 31.03(a) (West Supp. 2015). The Penal Code further provides that appropriation is unlawful if it is obtained without the owner's "effective consent." Id. at § 31.03(b)(1). Effective consent includes consent by an owner or person legally authorized to act for the owner, so long as it is not obtained by one of five statutorily defined exceptions. Id. at § 31.01(3). "[T]he gravamen of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent." Byrd v. State, 336 S.W.3d 242, 250 (Tex. Crim. App. 2011) (quoting Stewart v. State, 44 S.W.3d 582, 588-89 (Tex. Crim. App. 2001) (emphasis supplied)).

Here, the information stated as follows:

[O]n or about the 20th day of November, 2011, Leila Brackley-Gross, with intent to deprive the owner, Target, of property, namely: Twenty Two (22) Clothing items(s), did unlawfully, without the effective consent of the owner, appropriate said property by acquiring and otherwise exercising control over said property, said property being other than real property which had avalue of Fifty Dollars ($50.00) or more but less than Five Hundred Dollars ($500.00).

This information follows the language of the theft statute. Compare TEX. PENAL CODE ANN. § 31.03(a). Appellant, however, asserts the State failed to (1) adequately identify or describe the alleged stolen property and (2) specify how the complainant's consent was not effective.

Concerning the description of the property stolen, article 21.09 of the Texas Code of Criminal Procedure directs that, if known, the "personal property alleged in an indictment shall be identified by name, kind, number, and ownership." See TEX. CODE CRIM. PROC. ANN. art. 21.09 (West 2009). When such information is unknown, "that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice." Id.

Here, because the information did not state that a description of the property was unknown, Appellant contends the general classification of "clothing" was insufficient to provide the requisite notice. Following a pretrial hearing on Appellant's Amended Motion to Set Aside the Information, the trial court denied that motion. Relying on Wood v. State, 632 S.W.2d 734, 736 (Tex. Crim. App. 1982), the State contends the trial court did not err in doing so because a specific and particular description of the property is not necessary so long as the charging instrument alleges (1) quantity, (2) general type of property (more specific than the words "property" or "merchandise"), (3) ownership of the property, and (4) if necessary, the jurisdictional value of the property. See Harris v. State, 587 S.W.2d 429, 430 (Tex. Crim. App. 1979) (finding "property" to be aninsufficient description); Richard v. State, 563 S.W.2d 626, 626-27 (Tex. Crim. App. 1978) (finding "merchandise" to be an insufficient description).

While it can reasonably be argued that the description of the stolen property in this case as simply "clothing items" could have been more descriptive (particularly in light of the State's failure to allege that a description of the property was unknown), given the facts of this case, we find the allegations were sufficient to apprise Appellant of the charge against her. See Inman v. State, 650 S.W.2d 417, 420 (Tex. Crim. App. 1983) (en banc) (finding description of property stolen as "an automobile" to be sufficient); Wood, 632 S.W.2d at 737 (finding "one truck trailer" and "one automobile" to be a sufficient description of property stolen); Bruner v. State, 509 S.W.2d 620, 621 (Tex. Crim. App. 1974) (finding "two suits" to be a sufficient description); Gaines v. State, 501 S.W.2d 315, 317 (Tex. Crim. App. 1973) (finding description of property stolen as "one automobile" to be sufficient). In light of the allegations that the property stolen consisted of twenty-two items, allegedly stolen from Target, having a value between $50.00 and $500.00, we do not think the description of the property merely as "clothing" is so vague as to be insufficient under Article 21.09.³ Issue one is overruled.

Concerning Appellant's second issue that the trial court erred by failing to quash the information because the charging instrument failed to specify how the complainant's consent was not effective, the State contends the information is not defective because the State is not required to allege a precise definition as to how the property was unlawfully appropriated. In order to be sufficient, the charging instrument need notdefine a term when a statutory definition of that term is available. See Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988) (stating that when "terms and elements in...