Jackson v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: ODOM
• Citation: Jackson v. State, 571 S.W.2d 1 (Tex. Crim. App. 1978)
• Decision Date: 20 September 1978
• Docket Number: No. 55924,No. 1,55924,1
• Parties: Regina JACKSON, Appellant, v. The STATE of Texas, Appellee

Page 1

571 S.W.2d 1

Regina JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 55924.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 20, 1978.

James P. Finstrom, Dallas, for appellant.

Henry Wade, Dist. Atty., William M. Lamb, Gerald A. Banks and John D. Ovard, Asst. Dist. Attys., Dallas, for the State.

Before ODOM, VOLLERS and W. C. DAVIS, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for theft; punishment, enhanced by proof of two prior convictions, was fixed at life.

In her first ground of error appellant challenges the jury charge at the guilt stage of the trial as fundamentally defective. The indictment alleged theft by exercising control over property other than real property without the owner's effective consent. V.T.C.A., Penal Code Secs. 31.01(5), 31.03(a), (b) (1). The jury charge instructed on theft by appropriating the property. The definition of "appropriate" in Sec. 31.01(5), supra, includes "to acquire or otherwise exercise control over property other than real property." This definition was the only one given in the instructions to the jury. We hold the jury instruction is not fundamentally defective as an enlargement upon the allegations in the indictment, and that the definition of "appropriate" in the jury charge restricted its use to the means alleged in the indictment. The first ground of error is overruled.

It is next contended that the definition of "appropriate" in Sec. 31.01(5) (B), supra, i. e.; "to acquire or otherwise exercise control over property other than real property," is unconstitutionally vague in that "otherwise exercise control" is impossible to define. We think it is commonly understood what it means to "exercise control" over something, and this is particularly so in the context of the offense, which is described in Sec. 31.03, supra, as alleged in this case, by such exercise of control being with the intent to deprive the owner of the property and without the owner's effective consent. Cf. Morgan v. State, 557 S.W.2d 512, 515 (Tex.Cr.App.); Courtemanche v. State, 507 S.W.2d 545 (Tex.Cr.App.). The ground of error is overruled.

Appellant next argues the indictment is fundamentally defective for failure to allege the manner in which control was exercised over property. No motion to quash was filed alleging insufficient notice. Any defect here goes only to notice and is not fundamental. See, Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.); Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.).

In her next three grounds of error appellant asserts fundamental errors in the jury charge at the punishment stage of the trial. No trial objections were made to the charge. The jury was instructed on the issues of the truth of each prior conviction alleged, and on the punishment ranges for a finding of only one...