Gentry v. State, 65430
| Decision Date | 12 November 1980 |
| Docket Number | No. 65430,No. 3,65430,3 |
| Citation | 608 S.W.2d 643 |
| Parties | Jean GENTRY, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
David L. Botsford, Dallas, for appellant.
Henry M. Wade, Dist. Atty. and Karen Chilton Beverly, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, ODOM and CLINTON, JJ.
This is an appeal from a conviction of theft of property with value of at least $20.00 but less than $200.00. An information charging the commission of the offense stated, in pertinent part, that appellant "... did unlawfully and intentionally appropriate property, namely: merchandise, the exact name and number and kind of which is unknown to the affiant ..." Appellant filed a motion and supplemental motion to quash the information complaining of the italicized language set out above. Specifically, she contends that the description of the "merchandise" contained in the information was insufficient notice to allow the preparation of a defense.
The issue before this Court, correctly stated by appellant, is whether an allegation of theft of "merchandise," which by itself is fundamentally defective, 1 is rendered sufficiently specific to withstand a motion to quash by a further allegation that the exact name, kind, and number of the merchandise is unknown. It is appellant's position that "merchandise" is not a "general classification" as that term is employed by Art. 21.09, V.A.C.C.P.; he relies primarily on Rhodes v. State, 560 S.W.2d 665 to support this contention.
Article 21.09, supra, addresses three distinct situations, the first two of which are pertinent here. The statute first deals with personal property the precise description of which is known: "If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership." (Emphasis added.) The second sentence deals with personal property where the name, kind, number, and ownership is unknown: "When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice." (Emphasis added.)
In Rhodes v. State, 560 S.W.2d 665, we dealt with theft offenses involving personal property, a precise description of which was known, that is, the first part of Art. 21.09, supra. Under those circumstances we noted that the term "merchandise" alone in a theft indictment is so general and non-descriptive as...
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Wood v. State, 67486
...HELD SUFFICIENT NOTWITHSTANDING A MOTION TO QUASH WAS FILED See, "merchandise, exact name, number, and kind unknown," Gentry v. State, 608 S.W.2d 643 (Tex.Cr.App.1980); "seven rifles," Welch v. State, 543 S.W.2d 378 (Tex.Cr.App.1976); "two suits," Bruner v. State, 509 S.W.2d 620 (Tex.Cr.App......
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Roberson v. State
...where name, kind, number and ownership of stolen property are unknown and that fact is stated in the indictment. Gentry v. State, 608 S.W.2d 643 (Tex.Crim.App.1980); Hood v. State, 607 S.W.2d 567 Roberson also complains of a material variance between the allegation and proof, because the ev......