Smith v. State
| Decision Date | 24 February 1982 |
| Docket Number | No. 2-81-323-CR,2-81-323-CR |
| Citation | 629 S.W.2d 238 |
| Parties | Bobby Gene SMITH, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Carl E. Mallory, Arlington, for appellant.
Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for appellee.
Before HUGHES, JORDAN and RICHARD L. BROWN, JJ.
The appellant, Bobby Gene Smith, plead guilty to the offense of burglary of a habitation. This appeal goes to the trial court's denial of the appellant's motion to quash the indictment.
We affirm the judgment of the trial court.
The indictment under attack here reads as follows:
The appellant urged before the trial court that he could not prepare a defense because he did not know where in the county the alleged burglary occurred.
V.A.C.C.P. art. 21.09 (Supp.1982), which addresses the description of property in an indictment, reads in pertinent part:
"If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same."
In construing this provision (and its indistinguishable predecessors) in reference to offenses such as burglary the Court of Criminal Appeals has generally held that it is only necessary to allege the name of the county as the place where the offense was committed because, (1) the offense may be committed anywhere within the county, (2) the place where it is committed is not an element of the offense, and (3) the court in which the offense is tried (usually) has countywide jurisdiction. The case of Hodge v. State, 527 S.W.2d 289 (Tex.Cr.App.1975), a burglary case, contains a very thorough discussion of this topic. See also: Ex Parte Hunter, 604 S.W.2d 188 (Tex.Cr.App.1980); Nevarez v. State, 503 S.W.2d 767 (Tex.Cr.App.1974); Howard v. State, 480 S.W.2d 191 (Tex.Cr.App.1972); Thomas v. State, 168 Tex.Cr.R. 544, 330 S.W.2d 201 (1959). All the elements discussed above are present in this case.
The latest pronouncement in regard to the description of real property in an indictment is found in Lane v. State, 621 S.W.2d 172 (Tex.Cr.App.1981). In Lane the appellant had plead not guilty to the offense of criminal mischief. As is true with burglary, the section under which the appellant was indicted did not require that the criminal mischief be committed at a particular place or location. V.T.C.A. Penal Code sec. 28.03(a)(1). Asserting that the indictment's description of a damaged house was insufficient, the appellant in Lane filed a motion that the indictment be quashed. The indictment in Lane was as follows:
"In the name and by the authority of the State of Texas, the Grand Jurors, good and lawful men of the County of Dallas and State of Texas, ... do present ... that one MICHAEL DEAN LANE, ... in the County and State aforesaid, did then and there unlawfully then and there, knowingly and intentionally damage and destroy tangible property, namely: one boat, one house and furnishings, without the effective consent of Edward E. Hamilton, the owner; the said damage and destruction amounting to a pecuniary loss of over $10,000.00...."
In passing on the sufficiency of this indictment the Court of Criminal Appeals held that in the face of the appellant's motion to quash, the indictment was insufficient in its allegation of the property's general locality in the county. The court did not discuss what specificity is required by article 21.09. Moreove...
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King v. State, 2-82-093-CR
...Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974). The real gist of the Craven, supra, holding, as we held in Smith v. State, 629 S.W.2d 238, 240 (Tex.App.--Fort Worth 1982), "is that those persons pleading guilty do have a right to appeal written motions to quash filed prior to trial und......
- Smith v. State