Holland v. State
Decision Date | 18 November 1981 |
Docket Number | No. 61264,61264 |
Parties | Mike HOLLAND, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Jerry Paquin, court appointed, Seminole, for appellant.
Joe K. McGill, County Atty., Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and W. C. DAVIS and TOM G. DAVIS, JJ.
This is an appeal from a conviction for delivery of marihuana of less than one-fourth ounce without remuneration. The punishment was assessed at sixty (60) days in the county jail and a fine of $200.00, probated.
On appeal appellant in a single ground contends the court erred in failing to grant his motion to set aside the misdemeanor complaint and information based on the variance between the two.
Omitting the formal parts, the complaint alleged that in Gaines County on or about the 25th day of April, 1978, the appellant "did then and there intentionally deliver to Zane Roberson a useable quantity of Marihuana ...."
Omitting the formal parts, the information alleged that in Gaines County on or about the 25th day of April, 1978, the appellant "did then and there knowingly and intentionally deliver to Zane Roberson, without receiving remuneration, a usable quantity of marihuana of not more than one-fourth ounce ...."
It is observed that the information alleges "knowingly" in addition to "intentionally" and alleges the delivery was "without receiving remuneration" and the quantity of marihuana was "of not more than one-fourth ounce."
Article 21.20, V.A.C.C.P., defines an information and Article 21.21 set forth its requisites.
Article 21.22, V.A.C.C.P., provides 2
In 30 Tex.Jur.2d, § 11, p. 548, it is stated:
"When the prosecution is by information the accusatory pleading must be based on a proper complaint ...."
A valid complaint is a prerequisite to a valid information in a misdemeanor case. Wheeler v. State, 172 Tex.Cr.R. 21, 353 S.W.2d 463 (1962); Addison v. State, 283 S.W.2d 55 (Tex.Cr.App.1955); Article 21.22, supra, note 4, and cases there cited.
As early as 1811 the Court of Appeals in Cole v. State, 11 Tex.App. 67, held that particularity as a requisite in an information is not necessary in the complaint on which it is founded, nor are discrepancies between them of any consequence, provided there is accordance in substance. They should agree as to time and venue, and the names of the defendant and the injured party, and there should be substantial conformity in their allegations descriptive of the offense.
In 30 Tex.Jur.2d, Indictment and Information, § 12, p. 550, it is stated:
In 1 Branch's Anno.P.C., 2nd Ed., § 501, p. 488, it is written:
"When there is a substantial agreement between the information and the complaint on which it is based, a mere variance in the wording is not material."
In Hardy v. State, 161 Tex.Cr.R. 637, 279 S.W.2d 345 (1955), it was held that a variance may be immaterial when the information uses or omits words not used or omitted in the complaint if both instruments charge the same offense.
Turning again to the allegations of the instant complaint and information, attention is called to Harris v. State, 565 S.W.2d 66, 67, 68 (Tex.Cr.App.1978), where this court wrote:
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