Rhodes v. State, 56119

• Citation: 560 S.W.2d 665
• Decision Date: 18 January 1978
• Docket Number: No. 56119,56119
• Parties: Alford RHODES, Appellant, v. The STATE of Texas, Appellee. . En Banc
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 665

560 S.W.2d 665

Alford RHODES, Appellant,

v. The STATE of Texas, Appellee.

No. 56119.

Court of Criminal Appeals of Texas En Banc.

Jan. 18, 1978 Appellant's Motion for Rehearing Denied Feb. 8, 1978.

Holt, Tatum & Meehan, Nacogdoches, for appellant.

Herbert B. Hancock, Dist. Atty., Nacogdoches, for the State.

EN BANC.

OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

On February 5, 1974, appellant waived his right to trial by jury and entered a plea of guilty before the court to an indictment which charged him with the offense of theft of corporeal personal property of the value of over Fifty Dollars ($50.00), a violation of Articles 1410 and 1421, Vernon's Ann.P.C. (1925). Punishment was assessed at imprisonment for five (5) years; however, the imposition of sentence was suspended and appellant was placed on probation. A judgment was entered reciting that appellant "pleaded guilty to the offense charged in the indictment," and that it was "ORDERED, ADJUDGED, and DECREED by the Court that the defendant is guilty as charged in the indictment in this cause and as confessed by the Defendant in the plea of guilty herein made," etc.

On March 1, 1977, the State filed a motion to revoke appellant's probation. That motion alleged that appellant had violated his probation in that, on or about February 25, 1977, he unlawfully drove and operated a motor vehicle on a public road and highway while he was intoxicated and under the influence of intoxicating liquor.

On March 24, 1977, the trial court, after a hearing, revoked appellant's probation, finding that he had violated his probation in the manner alleged in the State's motion to revoke. On the same date the trial court, with all parties being present, entered an order correcting the original judgment nunc pro tunc to reflect that appellant had been convicted of the offense of "theft of property of the value of fifty dollars or more."

On this appeal appellant does not challenge the trial court's finding that appellant violated his probation in the manner alleged. However, he does contend that the trial court abused its discretion in revoking his probation for the reason that the original judgment of conviction did not recite whether appellant was convicted of felony theft or misdemeanor theft; that the defect in the original judgment was fundamental and could not be corrected by a nunc pro tunc entry as attempted by the court; and, that the trial court abused its discretion "by permitting revocation even if a nunc pro tunc hearing was permitted for the reason that such correction occurred after the date of the alleged violation and such judgment would only be valid from the date of the correction if the court had such authority to correct." We overrule these contentions.

The case of Hughes v. State, 493 S.W.2d 166 (Tex.Cr.App.1973), is dispositive of appellant's contentions. There we stated:

"The indictment may be considered in construing the judgment and sentence in order to determine the offense for which an accused is convicted. The judgment may be reformed so as to show the offense of which the accused was found guilty by the court and jury. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777; Beebe v. State, 99 Tex.Cr.R. 638, 271 S.W. 97.

"A judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked. Barker v. State, 169 Tex.Cr.R. 277, 334 S.W.2d 182; Ex parte King, supra."

The indictment in the instant case charged appellant with the offense of theft of corporeal personal property of the value of over fifty dollars. The original judgment of conviction recited that appellant had been found guilty "as charged in the indictment." Considering the indictment in construing the original judgment in this cause, we find it adequate to show that appellant was convicted of the offense of theft of corporeal personal property of over fifty dollars. No reversible error is shown.

We next consider as unassigned error in the interest of justice under Art. 40.09(13), Vernon's Ann.C.C.P., the question of the sufficiency of the original indictment. The indictment alleged that the property stolen was "wall paneling of the value of over Fifty ($50.00) Dollars." Appellant did not attack the indictment in the trial court in any manner, nor does he question the sufficiency of the indictment in this Court.

Prior to amendment in 1975, Article 21.09 Vernon's Ann.C.C.P., provided:

"When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. . . ." ¹

In Willis v. State, 544 S.W.2d 150 (Tex.Cr.App.1976), we held that a theft indictment which was drawn under V.T.C.A., Penal Code Sec. 31.03, was fundamentally defective because it described the property allegedly stolen only as "merchandise." We turn first to the cases cited in Willis as authority.

In Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), the description of stolen property in a theft indictment as "barbed wire" was held insufficient. It should be noted, however, that in Moore the trial court had overruled a motion to quash. ² Likewise, in Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971), it was held that an indictment, which alleged that the defendant stole "tires of the value of over $50.00," was "fundamentally" defective and that the trial court erred in overruling a motion to quash.

In Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43 (1959), a theft indictment alleged the stolen property to be "seed of the value in excess of $50." On original submission the Court noted that there was no motion to quash the indictment and stated that "the failure to describe the seed alleged in the indictment is not of such nature as would require a reversal when raised for the first time on appeal." ³ On appellant's second motion for rehearing it was concluded that the description of the property contained in the indictment was insufficient to meet the requirements of Article 403 (now Article 21.09), V.A.C.C.P. ⁴

In Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817 (1951), a theft indictment described the stolen property as "oil field equipment of the value of over $50.00." This description was held to be "fatally" defective. ⁵

Howk v. State, 138 Tex.Cr.R. 275, 135 S.W.2d 719 (1940), involved a complaint and information for swindling. There the property was described as "personal property of the value of six dollars." This Court held the pleadings defective; however, the opinion does note a motion to quash those pleadings. ⁶

In the case of Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040 (1934), an embezzlement indictment was held "fatally" defective. There the indictment described the property as "certain lubricating oil." However, no mention was made as to whether the indictment was challenged prior to trial. ⁷

Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095 (1920), involved a swindling indictment. Although the indictment was said to contain a "fatal" defect on other grounds, the Court did hold that, "against a motion to quash," property described as "the furniture and equipment" was insufficient. ⁸ The Court cited with approval the case of Mathews v. State, 39 Tex.Cr.R. 553, 48 S.W. 189 (1898). ⁹

Mathews was a conviction for cattle theft that was reversed on motion for rehearing. On original submission, Mathews v. State, 39 Tex.Cr.R. 553, 47 S.W. 647 (1898), the conviction was affirmed over the defendant's contention that the indictment failed to allege an offense against the law and failed to allege the theft of any specific property from any person. The indictment charged appellant with the theft of "on cattle." Although the defendant did not challenge the indictment prior to trial, he did challenge it in a motion for new trial. This Court treated the word "on" as surplusage and held that the indictment was good as against a motion in arrest of judgment. On rehearing the Court held that "cattle" was an insufficient description of the property and reversed. The Court stated:

"But we know of no case in this state that holds an indictment sufficient which does not in some way designate the number of things or animals alleged to have been stolen; and we hold that, if any case could be found, it would not be supported by authority."

Summarizing these cases decided under Art. 21.09, supra, and its prior enactments, we see that five were reversed because motions to quash were improperly overruled, five were reversed in the absence of a motion to quash for fundamental defects in the property descriptions, and one was affirmed.

Some of the statements from these cases quoted above suggest an inconsistency in the need for a motion to quash for a defect under Art. 21.09, supra. (Contrast Oakley on original submission, Donahoo, and Crawford, all supra, with Mathews, the early Scott, Leos, Oakley on second rehearing, and Willis, all supra.) An examination of Art. 21.09 in its context in the Code of Criminal Procedure may prove helpful in resolving this apparent inconsistency.

This article is one of several in Chapter 21 of the Code that provide rules for allegations of particular matters. ¹⁰ Other articles in that chapter express general requirements for alleging an offense. ¹¹

The requisites of an indictment are listed in Art. 21.02, Vernon's Ann.C.C.P., number 7 of which provides, "The offense must be set forth in plain and intelligible words." In American Plant Food Corp. v. State, 508 S.W.2d 598, the Court considered the corresponding requisite for informations found in Art. 21.21(7), V.A.C.C.P. We find the holdings in that case with respect to informations and the need for a motion to quash are also applicable to indictments.

"If the charge alleges an offense was committed by the defendant, then it is sufficient in law to support a verdict of guilty if one be rendered...