State v. Bartee

• Decision Date: 30 December 1994
• Docket Number: 04-94-00128-CR,Nos. 04-94-00127-C,s. 04-94-00127-C
• Citation: 894 S.W.2d 34
• Parties: The STATE of Texas, Appellant, v. Jimmy BARTEE and Janet Mangum, Appellees.
• Court: Texas Court of Appeals

Page 34

894 S.W.2d 34

The STATE of Texas, Appellant, v. Jimmy BARTEE and Janet Mangum, Appellees.

Nos. 04-94-00127-CR, 04-94-00128-CR.

Court of Appeals of Texas,

San Antonio.

Dec. 30, 1994.

Concurring Opinion of Justice Rickhoff

Feb. 15, 1995.

Steven C. Hilbig, Crim. Dist. Atty., Angela Moore, Asst. Crim. Dist. Atty., San Antonio, for State.

Bernard Campion, Campion & Campion, San Antonio, for Jimmy Bartee.

John M. Killian, Killian, Caspers & Associates, San Antonio, for Janet Mangum.

Before PEEPLES, RICKHOFF and ONION, JJ.

OPINION

ONION, Justice. ¹

These appeals are taken by the State from pretrial orders setting aside indictments in trial court nos. 93-CR-7158A and 93-CR-7158B. See TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(1) (Vernon Supp.1994); State v. Eaves, 800 S.W.2d 220, 224 (Tex.Crim.App.1990). These orders were on motions to set aside the indictments which attacked the facial validity of the indictments.

These appeals present rather novel and interesting legal questions and are possibly a case of first impression as to whether a white-tailed deer can be the subject of the theft and criminal mischief statutes, and whether the State of Texas may be alleged as an owner in such situations. A question of the applicability of the theft statute to deer antlers is also presented but scant attention is given to this matter by the parties. The questions presented are based strictly on the face of the indictments and are matters of law only. Properly, no facts were developed at the pretrial hearing. For the reasons which follow, we conclude as a matter of law that the trial court erred in granting the motions to set aside the indictments. When the facts are eventually developed, however, the State may find that it has attempted to reach a bridge too far.

In separate but identical indictments (except for name) each appellee was charged with theft of a white-tailed deer, theft of deer antlers, and criminal mischief. One of these indictments, in pertinent part, alleged on or about the:

COUNT I

PARAGRAPH A

13TH day of NOVEMBER, A.D., 1992, JIMMY BARTEE, hereinafter referred to as defendant, with intent to deprive the owner, namely: THE STATE OF TEXAS, of property, namely: ONE WHITE-TAILED DEER, did unlawfully appropriate said property by acquiring and otherwise exercising control over said property, said property being other than real property which had A VALUE of Seven Hundred and Fifty Dollars ($750.00) or more but less than Twenty Thousand Dollars ($20,000.00), without the effective consent of the owner;

PARAGRAPH B

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present in and to said Court that on or about the 13th day of November, A.D., 1992, and anterior to the presentment of this indictment, in the County of Bexar and State of Texas, JIMMY BARTEE, hereinafter referred to as defendant, with intent to deprive the owner, namely: THE STATE OF TEXAS of property, namely: ONE PAIR OF WHITE-TAILED DEER ANTLERS, did unlawfully appropriate said property by acquiring and otherwise exercising control over said property, said property being other than real property which had A VALUE of Seven Hundred and Fifty Dollars ($750.00) or more but less than Twenty Thousand Dollars ($20,000.00), without the effective consent of the owner;

COUNT II

And for the Grand Jurors aforesaid, upon their oaths aforesaid, do further present in and to said Court that on or about the 13th day of November, A.D., 1992, and anterior to the presentment of this indictment, in the County of Bexar and State of Texas, JIMMY BARTEE, hereinafter referred to as defendant, did then and there knowingly and intentionally damage and destroy tangible property of the STATE OF TEXAS, the owner, namely: ONE WHITE-TAILED DEER, without the effective consent of the said owner, by SHOOTING SAID WHITE-TAILED DEER and did thereby cause pecuniary loss in an amount less than Twenty Thousand Dollars ($20,000.00), without the effective consent of the owner;

Each appellee filed an amended motion to set aside the indictment in his or her case. Such motions argued that the respective indictments did not allege an offense or offenses against the laws of the State of Texas because a wild animal such as a white-tailed deer could not be the subject of the theft or criminal mischief statutes for the reason that there are no identifiable property rights in wild animals; the "State of Texas" cannot legally be the owner of a white-tailed deer as alleged in the indictment; and such deer "can not be associated with any given monetary value greater than $750."

In addition, the appellees contended that the theft statute was in pari materia with certain cited provisions of the Texas Parks and Wildlife Code; that the latter constituted the more "specific statute" and controlled over the general theft statute; and that since the "specific statute" related to a misdemeanor offense, see TEX.PARKS & WILDLIFE CODE ANN. § 61.901(a) (Vernon 1991), the district court was without jurisdiction of the offenses.

A hearing was conducted on the amended motions to set aside or quash the indictments. The hearing concerned only the facial validity of the indictments as a matter of law. The trial court granted the motions and filed the following findings of fact and conclusions of law:

The white tailed deer named in the indictment is a "wild animal."

Pursuant to Section 1.011 of the Texas Wildlife Regulatory Act, "all wild animals ... inside the borders of this state are the property of the people of this state." Therefore, alleging the State of Texas as "owner" in the indictment does not allege a criminal offense.

White tailed deer, being wild animals, are not subject to theft under Chapter 31 of the Texas Penal Code, nor subject to Criminal Mischief under Section 28.03 of the Texas Penal Code.

The acts alleging theft in the indictment constitute an "unlawful taking" which is a violation of the Texas wildlife [sic] Regulatory Act. This specific statute prevails over the general statute, Texas Penal Code, and therefore prosecution for any unlawful taking of wild animals must be prosecuted under the Wildlife Regulatory Act.

In accordance with the foregoing, the defendants' Motion to Quash is hereby granted.

It is not clear whether the trial court indulged in making a presumption as to the white-tailed deer named in the indictment being a wild animal, or improperly and sua sponte amended the indictments, or attempted to take some form of judicial notice. The finding was the foundation stone for the trial court's conclusions. After concluding that white-tailed deer are not subject to Chapter 31 of the Texas Penal Code (theft) nor to section 28.03 of that code (criminal mischief), the trial court decided that the acts of theft alleged must be prosecuted under the Texas Regulatory Act, ² a "specific statute" which controlled over the "general statute, Texas Penal Code." No particular statutes of the Wildlife Regulatory or Conservation act were mentioned and the entire Penal Code is referred to as a general statute in an apparent application of the in pari materia rule of statutory construction despite the earlier somewhat inconsistent conclusion that white-tailed deer are not subject to the theft statute. The trial court made no express finding or conclusion as to jurisdiction.

We have consolidated these cases for the purpose of appeal, and in each case the State has advanced the same points of error as follows:

POINT OF ERROR NUMBER ONE

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE'S MOTION TO SET ASIDE THE INDICTMENT IN RULING THAT THE STATE OF TEXAS CANNOT BE THE OWNER OF A WILD WHITE TAILED DEER BECAUSE OWNERSHIP IS A FACT ISSUE TO BE PROVEN AT THE TRIAL ON THE MERITS.

POINT OF ERROR NUMBER TWO

THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO SET ASIDE THE INDICTMENT BECAUSE THE TRIAL COURT'S RULING THAT THE CHARGED CONDUCT DID NOT CONSTITUTE CRIMINAL OFFENSES IS ERRONEOUS BECAUSE THE TRIAL COURT PREJUDGED FACT ISSUES TO BE PROVEN AT TRIAL.

POINT OF ERROR NUMBER THREE

THE TRIAL COURT ERRED IN MAKING A LEGAL CONCLUSION THAT THE PARKS AND WILDLIFE CODE GOVERNS BECAUSE IT IS MORE SPECIFIC, WHEN SUCH CLAIM WAS NOT RAISED IN THE MOTION OR AT THE HEARING ON APPELLANT'S MOTION.

The State's first and second points of error are not well expressed, but the real thrust of the argument presented thereunder is that the trial court erred in holding that under no circumstances could a white-tailed deer be property subject to the theft and criminal mischief statutes and that the State could not be alleged as an owner in such an indictment. ³

The intent of article I, section 10 of the Texas Constitution is that an accused in a particular case must be furnished information upon which he may prepare his defense and this information must come from the face of the indictment. Livingston v. State, 739 S.W.2d 311, 321 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); State v. Moreno, 822 S.W.2d 754, 755 (Tex.App.--Corpus Christi 1992, no pet.). Moreover, all essential elements of an offense should be alleged in the indictment. An indictment which tracks the statutory language of the offense is generally sufficient in the face of a motion to set aside the indictment. Beck v. State, 682 S.W.2d 550, 554 (Tex.Crim.App.1985); Barnhart v. State, 648 S.W.2d 696, 699 (Tex.Crim.App.1983). The ruling of the trial court in the instant case was not based on the lack of notice or the absence in the indictment of the constituent elements of the offenses charged therein, but upon the failure to charge any offense at all. Upon this point, the parties are seemingly in agreement.

Thus, the questions presented are ones of law based on the State's pleadings alone. They are not whether the indictments could have been skillfully drafted nor whether the State can subsequently prove at trial the allegations in the indictments.

The...