State v. Moff

• Decision Date: 06 October 2004
• Docket Number: No. 458-03.,458-03.
• Citation: 154 S.W.3d 599
• Parties: The STATE of Texas v. George MOFF, Appellee.
• Court: Texas Court of Criminal Appeals

154 S.W.3d 599

The STATE of Texas v. George MOFF, Appellee.

No. 458-03.

Court of Criminal Appeals of Texas.

October 6, 2004.

Rehearing Denied January 12 and 26, 2005.

Michael H. Hummell, Corpus Christi, for Appellant.

Douglas K. Norman, Asst. District Atty., Corpus Christi, Matthew Paul, State's Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., join.

The Appellee, Moff, was charged with intentional, knowing and reckless misapplication of fiduciary property. Tex. Pen.Code § 32.45(b). The indictment submitted by the district attorney failed to specify the transaction or transactions involved. Moff filed a motion to quash the indictment, which was granted by the trial court. The trial court's order directed the State to re-file the indictment, specifying which purchases were alleged to be unauthorized. The State appealed, and the Court of Appeals reversed the trial court's order quashing the indictment. State v. Moff, 133 S.W.3d 648 (Tex.Crim.App.2003). Appellee filed a petition for discretionary review, asserting that the trial court had the discretion to quash the indictment and to require more specificity. We granted review to determine "[w]hether a trial court abuses its discretion when it requires more specificity in an indictment alleging recklessness and spanning seven years which fails to identify which of the countless transactions during that time span the State may rely on for conviction." We hold that this issue warrants a de novo, rather than an abuse of discretion standard of review. After a de novo review, we conclude that the Court of Appeals erred by reversing the trial court's order because the accused was deprived of the notice required to prepare an adequate defense.

FACTS

Moff was the chief appraiser of Nueces County for twenty years. In his capacity as chief appraiser, he was responsible for making various purchases for the County. A grand jury indicted Moff for alleged misapplication of fiduciary property. The indictment read:

On or about and between January 1, 1993 and December 31, 1999, George Moff did then and there intentionally, knowingly, and recklessly misapply property, to wit: money and credit cards, of the value of $20,000.00 or more but less than $100,000.00, that the said defendant held as a fiduciary in a manner that involved substantial risk of loss to the Nueces County Appraisal District, the owner of said property, and the person for whose benefit the property was held, by using said money and credit cards to make purchases without the effective authorization of the Nueces County Appraisal District Board of Directors.

Appellee filed a motion to quash the indictment for failing to specify which purchases were made without the authorization of the Appraisal District Board of Directors. Moff was also under indictment on two other charges that might have involved the same item or items, and he argued that until he knew which purchases were alleged to be unauthorized, he could not raise the defense that the charges in the current indictment were jeopardy barred. The trial court held an initial hearing on the motion, during which the State argued that the identification of which purchases were unauthorized was an evidentiary issue that Appellee could learn through discovery. The court deferred ruling on the motion. At a subsequent hearing to determine which purchases were alleged to be unauthorized, the State acknowledged that its report on charges for the time period identified in the indictment was 60 pages long, but stated that it was not required to disclose which purchases were unauthorized. The State argued that it had not yet determined which charges it planned to use to support its case against Appellee. The trial court then granted the motion to quash and ordered the State to re-file its indictment to assert with specificity which purchases were allegedly unauthorized. On appeal, the State asserted that the indictment included all elements of the offense, and left out only evidentiary matters not required to be pled. The Court of Appeals held that the trial court abused its discretion in granting the motion to quash.

STANDARD OF REVIEW

Prior to our decision in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997), abuse of discretion was the standard employed by our Court when reviewing a trial court's decision to quash an indictment. But we did not have occasion to analyze its appropriateness. However, we now determine that a de novo review is more appropriate in a case such as the one before us. The amount of deference appellate courts afford a trial court's rulings depends upon which "judicial actor" is better positioned to decide the issue. Guzman, 955 S.W.2d at 89. The sufficiency of an indictment is a question of law. When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo review of the issue. While this case is different from Guzman in that it involves the Appellee's due process right to notice of the charges against him, our reasoning for modifying the standard of review is the same. The trial court's decision in this case was based only on the indictment, the motion to quash, and the argument of counsel, so the trial court was in no better position than an appellate court to decide this issue. Because the Court of Appeals used an abuse of discretion standard of review, we will conduct a de novo review of the trial court's ruling rather than review the decision of the Court of Appeals.

NOTICE

The right to notice is set forth in both the United States and Texas Constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. Thus, the charging instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998); Daniels v. State, 754 S.W.2d 214, 217 (Tex.Crim.App.1988); Adams v. State, 707 S.W.2d 900, 901 (Tex.Crim.App.1986). In addition, the Texas Code of Criminal Procedure provides guidelines relating to the sufficiency of an indictment. See, e.g., Article 21.03 ("Everything should be stated in an indictment which is necessary to be proved."); Article 21.04 ("The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."); Article 21.11 ("An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment....").

Here, the indictment followed the statute for misapplication of fiduciary property, which provides:

A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.

TEX.PEN.CODE. § 32.45(b). We have stated that ordinarily, an indictment is legally sufficient if it delineates the penal statute in question. Daniels, 754 S.W.2d at 218; Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981) (opinion on rehearing); Haecker v. State, 571 S.W.2d 920, 921 (Tex.Crim.App.1978). However, these cases are different from the case before us because the issue in them relates to whether the terms used in the indictment are sufficiently specific to provide notice to the defendant. Thus, this rule applies when the indictment is framed under a statute in which the act constituting the offense is defined so that the accused is informed of the nature of the charge. Haecker, 571 S.W.2d at 921. Additionally, this rule does not mean that a trial court cannot require the State to amend an indictment which tracks the language of the statute when more notice is needed so that the accused can adequately prepare a defense.

Because fundamental constitutional protections are involved, if a defendant files a timely motion stating that the indictment does not provide adequate notice, there are some circumstances in which the trial court may require more information. In Drumm, the appellant filed a motion to quash, stating that the information failed to give sufficient notice. The trial court overruled the motion. We reversed the judgment and stated that:

Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration.... When the defendant petitions for sufficient notice of the state's charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice.

Drumm, 560 S.W.2d at 946-47. Thus, the accused has the right to notice that is specific enough to allow him to investigate the allegations against him and establish a defense.

We have considered issues similar to the one before us in Swabado v. State, 597 S.W.2d 361 (Tex.Crim.App.1980), and Amaya v. State, 551 S.W.2d 385 (Tex.Crim.App.1977). In Swabado, the defendant was charged with tampering with a government record. He filed a motion to quash the indictment,...