Swabado v. State, 59,434

Citation597 S.W.2d 361
Decision Date12 March 1980
Docket NumberNo. 59,434,59,434
PartiesBetty SWABADO, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for tampering with a government record. V.T.C.A. Penal Code, Section 37.10. Punishment is imprisonment for 10 years, probated.

Appellant contends that the trial court erred in overruling her motion to quash the indictment. We agree, and reverse.

Section 37.10, supra, provides in part:

(a) A person commits an offense if he:

(1) knowingly makes a false entry in, or false alteration of, a governmental record; . . .

(c) An offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the third degree.

The indictment in this case alleged that appellant

. . . on or about January 12, 1976, did then and there unlawfully and knowingly make a false entry in a government record, namely a Nursing Facility Monthly Staffing Report by recording the employment of a licensed vocational nurse who was not in fact employed, with intent to defraud and harm another.

SECOND COUNT

The Grand Jury of Harris County, Texas, present in the District Court of Harris County, Texas, that in Harris County, Texas, Betty Swabado, hereafter styled the Defendant, heretofore on or about February 11, 1976, did then and there unlawfully and knowingly make a false entry in a government record, namely a Nursing Facility Monthly Staffing Report by recording the employment of a licensed vocational nurse who was not in fact employed, with intent to defraud and harm another.

THIRD COUNT

The Grand Jury of Harris County, Texas, present in the District Court of Harris County, Texas, that in Harris County, Texas, Betty Swabado, hereafter styled the Defendant, heretofore on or about May 6, 1976, did then and there unlawfully and knowingly make a false entry in a government record, namely a Nursing Facility Monthly Staffing Report by recording the employment of a licensed vocational nurse who was not in fact employed, with intent to defraud and harm another.

Prior to trial appellant filed a motion to quash the indictment, urging in part that "the instant indictment, charging Defendant with the offense of tampering with a government record, is vague and ambiguous." The court held a hearing, and overruled the motion to quash. At trial the State elected to dismiss the second and third counts of the indictment. The jury found appellant guilty under the first count. Appellant urges on appeal that the indictment is vague, ambiguous, and fails to give adequate notice of the offense charged.

This Court has long held that to be sufficient an indictment

. . . should set out the particular offense charged with such certainty as that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him. . . .

Hardin v. State, 85 Tex.Cr.R. 220, 211 S.W. 233 (1919). See also Earl v. State, 33 Tex.Cr.R. 570, 28 S.W. 469 (1894); Brown v. State, 26 Tex.App. 540, 10 S.W. 112 (1888).

Drawing on several provisions of Chapter 21 of the Code of Criminal Procedure, this Court has more recently set forth the following basic requirements for a "plain and intelligible" indictment:

. . . The indictment must allege on its face the facts necessary (1) to show that the offense was committed, (2) to bar a subsequent prosecution for the same offense, and (3) to give the defendant notice of precisely what he is charged with. . . .

Terry v. State, 471 S.W.2d 848, 852 (Tex.Cr.App.1971). See Articles 21.02(7), 21.03, 21.04, and 21.11 of the Code of Criminal Procedure; American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

In Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), we stated:

It must be remembered that it is the intent of Article I, Sec. 10 of the Texas Constitution 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. Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973). . . .

Further, the rule is that an offense should be charged in plain and intelligible words with such certainty as to enable the accused to know what he will be called upon to defend against and to enable him to plead the judgment that may be given on it in bar of any further prosecution for the same offense. . . .

As urged by appellant, the indictment in this case fails to meet these basic notice requirements.

First, the indictment fails to sufficiently identify the alleged government records. In each count it alleges only that the record is a "Nursing Facility Monthly Staffing Report." The record reflects that appellant worked as administrator for the Lewis Nursing Home for years prior to the return of the indictment, and, as required by rules of the Department of Public Welfare, filed a staffing report each month during this period. Department of Public Welfare records were admitted in evidence covering a period from May 1974 through June 1976.

The "on or about" dates contained in the indictment were insufficient to identify the alleged reports. The State is not bound by the date on or about which the offense is alleged to have been committed, and a conviction may be had upon proof that the offense was committed at any time prior to the return of the indictment which is within the period of limitation. Hill v. State, 544 S.W.2d 411 (Tex.Cr.App.1976); Nees v. State, 402 S.W.2d 186 (Tex.Cr.App.1966). The instant indictment was returned on May 11, 1977, and encompassed all monthly reports filed within the prior three-year limitation period beginning May 11, 1974.

In Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App.1977), we held that the indictment alleging welfare fraud was defective because it failed to allege which statement made to the Department of Public Welfare was false. The defendant in that case, similar to this case, had made numerous statements to the agency. We held that the defendant's exception to the information should have been sustained, stating:

One of the "deficiencies" under Article 21.21(7), supra, is the failure of an indictment or information to give the defendant notice of precisely what he is charged with. American Plant Food, supra, at 603. What this means is that if a proper exception or motion to quash is filed and brought to the attention of the court before trial, the State must then respond by amending the indictment or information to include a specific...

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38 cases
  • State v. Edmond
    • United States
    • Texas Court of Criminal Appeals
    • October 2, 1996
    ...forth in plain and intelligible language sufficient information to enable the accused to prepare his defense."); Swabado v. State, 597 S.W.2d 361, 363 (Tex.Cr.App.1980); and, Earl v. State, 33 Tex.Crim. 570, 28 S.W. 469 (1894). More recently we held: ... an [indictment] must allege facts su......
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    ...621 S.W.2d 597, (Tex.Cr.App.1980); Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1979) (opinion on original submission); Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980). Appellant argues that the trial court erred in admitting hearsay statements of the murder victim as related to a police ......
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    ...663 S.W.2d 838, 840 (Tex.Crim.App.1984); Hooker v. State, 621 S.W.2d 597, 598 (Tex.Crim.App.1981) (op. on reh'g); Swabado v. State, 597 S.W.2d 361, 364 (Tex.Crim.App.1980); Gonzalez v. State, 869 S.W.2d 588, 591 (Tex.App.--Corpus Christi 1993, no pet.). This was done in Foster v. State, 635......
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    • September 19, 1984
    ...by appellant. Thompson v. State, 621 S.W.2d 624 (Tex.Cr.App.1981); Hooker v. State, 621 S.W.2d 597 (Tex.Cr.App.1980); Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980).7 "To hold otherwise would create a purely arbitrary distinction between those in [appellant's] position and others who wo......
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